Fair Work Commission

Enforcement of Commission orders

If a person does not comply with a bargaining order, an employee who the proposed agreement will cover, a bargaining representative or an inspector may seek enforcement of the Fair Work Commission's order through civil remedy proceedings in:

• the Fair Work Division of the Federal Circuit Court of Australia
• the Fair Work Division of the Federal Court of Australia, or
• an eligible state or territory court.^[1]

Failure to comply with a bargaining order may result in the court imposing a pecuniary penalty or making other 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.

Types of order made by the Court

See Fair Work Act 2009 ss.545, 546 and 570

The Federal Court or the Federal Circuit Court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision (such as section 233, which prohibits a person contravening a bargaining order).

Orders the Federal Court or Federal Circuit Court may make include the following:

• an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention, or
• an order awarding compensation for loss that a person has suffered because of the contravention (which can include interest).

Pecuniary penalty orders

The Federal Court, the Federal Circuit Court or an eligible state or territory court may, on application, order a person to pay a pecuniary penalty that the court considers is appropriate if the court is satisfied that the person has contravened a civil remedy provision.

The pecuniary penalty for an individual must not be more than the maximum penalty for the relevant contravention set out in section 539 of the Fair Work Act.

In the case of a body corporate, the maximum penalty is 5 times the maximum for an individual.

The court may order that the pecuniary penalty, or a part of the penalty, be paid to:

• the Commonwealth
• a particular organisation (such as a union), or
• a particular person.

Costs orders

A party to proceedings (including an appeal) in a court in relation to a matter arising under the Fair Work Act may be ordered by the court to pay costs incurred by another party to the proceedings.

The party may be ordered to pay the costs only if the court is satisfied that:

• the party instituted the proceedings vexatiously or without reasonable cause
• the party's unreasonable act or omission caused the other party to incur the costs, or
• the party unreasonably refused to participate in a matter before the Commission, and the matter arose from the same facts as the proceedings.

References