Fair Work Commission

What is a Commission order?

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.

What options are available when orders are not complied with?

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:

• the Fair Work Division of the Federal Circuit Court of Australia, or
• the Fair Work Division of the Federal Court of Australia.^[3]

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 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.

What is a small claim procedure?

See Fair Work Act s.548

A small claim procedure in the Federal Circuit 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.

Penalties

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.

Case examples

References