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An order is a compulsory direction given by the Fair Work Commission in accordance with a decision.
An order made by the Commission is legally binding.[1] However the Commission does not itself have the power to enforce its orders.
Normally an order from the Commission will provide a timeframe within which the order must be complied with. It is advisable to wait until the timeframe has lapsed before seeking enforcement of the order.
It is a criminal offence to not comply with an order of the Commission.[2]
If an employee does not receive the compensation ordered by the Commission or is not reinstated in accordance with the order of the Commission, the employee (or an industrial association acting on the employee’s behalf or a Fair Work Inspector) may seek enforcement of the Commission’s order through the commencement of civil proceedings in:
A failure to comply with a Commission order may result in the Court awarding a pecuniary penalty.
An application before the Fair Work Division of the Federal Circuit and Family Court of Australia may be dealt with as a small claim proceeding if the amount sought to be recovered for non-compliance with the Commission’s order is $20,000 or less and no application is made for a pecuniary penalty.
Normally an order for compensation or reinstatement from the Commission will provide a timeframe within which the order must be complied with. It is advisable to wait until the timeframe has lapsed before seeking enforcement.
See Fair Work Act s.548
A small claim procedure in the Federal Circuit and Family Court of Australia is a way by which a person can seek to recover unpaid monies. The proceedings are generally faster and more informal than other court proceedings and each party can only be represented by a lawyer if permission is given by the court.
The maximum amount you can recover through the small claim procedure is $20,000. If a general protections dismissal dispute order for compensation is more than this, you can still make a claim for enforcement of the order using other court procedures.
A pecuniary penalty order cannot be sought through this small claim procedure.
Coverage: ALL Australian employees
Cost for application:
Lodgment time limit: 6 years
High income threshold: No limit
Maximum amount of compensation possible: $20,000
If an employer has not complied with an order made by the Commission, it is possible for the Court (except in a small claim proceeding) to order the payment of an additional penalty.
This kind of penalty is known as a pecuniary penalty and is in addition to any order made by the Commission.
Meadley v Sort Worx Pty Ltd [2013] FCA 1012 (8 October 2013).
The employee was found to have been unfairly dismissed and the Commission ordered that she be reinstated and awarded compensation of $24,143 in May 2013.
By June, when the company still hadn’t reinstated or compensated her, the employee sought Federal Court orders requiring it to do so, plus pecuniary penalties. The company paid the compensation but still did not reinstate the employee.
The Court held that the company’s managing director had made a ‘deliberate decision’ not to reinstate the employee or pay her compensation for lost wages until the end of its appeals process, despite both the Commission and the company’s employer association making it clear it had to comply with the Commission’s orders.
The company was fined $10,000 and the employee was awarded a further $15,045 in redundancy pay, lost wages, notice and accrued leave entitlements, plus interest.
[1] Fair Work Act s.369(3).
[2] Fair Work Act s.675.
[3] Fair Work Act s.539, item 11.