Fair Work Commission

About decisions and orders

Decisions in matters before the Fair Work Commission are generally written (and published) and include the reasons for the outcome of the matter. For some applications, the Commission will also issue an order, which is a direction given by a Commission Member in accordance with a decision.

In relation to dismissal applications, an order may:

• dismiss the application
• require reinstatement
• require compensation to be paid, or
• require compensation to be paid and reinstatement.

An order made by the Commission is legally binding. However the Commission does not have the power to enforce an order. 

Is an order the same as a Terms of Settlement document?

An order is different from a Terms of Settlement document.

A Terms of Settlement is a document signed by two parties agreeing to a settlement, and is usually obtained during a conciliation process with the Commission or through mediation at the Fair Work Ombudsman. For information on enforcing a Terms of Settlement document you may need to seek legal advice.

Options to enforce an order

If an employee does not receive compensation ordered by the Commission, there are several options to seek enforcement through the commencement of civil proceedings in:

• the Federal Circuit Court of Australia or a State Magistrates Court, by commencing a small claim proceeding (available for the enforcement of a Commission order for the payment of money up to $20,000 where there is no application for a pecuniary penalty order)
• the Fair Work Division of the Federal Circuit Court of Australia, or
• an eligible state or territory court such as a District or County Court or state industrial relations commission.

Normally an order for compensation from the Commission will provide a timeframe within which compensation is to be paid. You should wait until that timeframe has passed before seeking an enforcement option. 

Small claim proceedings

A small claim proceeding in the Federal Circuit Court of Australia or a state Magistrates Court is a way you can seek to recover money that has not been paid.

The proceedings are generally 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. A pecuniary penalty order cannot be sought through this procedure. If an order for compensation is more than $20,000, you can still make a claim for enforcement of the order using other court procedures.

Further information regarding small claims procedures appears at s.548 of the Fair Work Act 2009.

Information on filing a small claim in the Fair Work Division of the Federal Circuit Court of Australia can be accessed on the Federal Circuit Court of Australia website.

If you wish to file a claim through a state Magistrates Court, you should contact that court directly.

Penalties

If an employer has not complied with an order made by the Commission, it is possible for courts, such as the Federal Court of Australia, Federal Circuit Court of Australia, or an eligible state or territory court 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. 

The Fair Work Ombudsman's role in enforcing orders

The Fair Work Ombudsman is an independent statutory agency, separate from the Fair Work Commission.

If an order made by the Commission is not complied with, you can contact the Fair Work Ombudsman for information on possible assistance with enforcing the order.

You can contact the Fair Work Ombudsman through the Fair Work Infoline on 13 13 94.