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:
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.
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:
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.
A penalty unit is used to define the amount payable for pecuniary penalties.
The maximum number of penalty units for contravening s.233 of the Fair Work Act (which prohibits a person contravening a bargaining order) is 60 penalty units.
From 1 July 2017 a penalty unit was $210.
The court may order that the pecuniary penalty, or a part of the penalty, be paid to:
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: