Consequences when a Fair Work order is not complied with

Updated: 15 February 2021

Did you know that it's a criminal offence not to comply with an order by the Fair Work Commission?

Below are the actions an employee can take if an order has not been complied with. 

Fair work order

First, when we are talking about an order, we are referring to a compulsory direction given by the Fair Work Commission in accordance with a decision. 

Also, a Fair Work order is legally binding. 

And you should pay attention for timeframes for when an order needs to be complied with. 

Employee options for non compliance

If an employer does not follow an 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

And, a failure to comply with a Commission order may result in the Court awarding a pecuniary penalty.

Small claim process

An application before the Fair Work Division of the Federal Circuit Court of Australia may be dealt with as a small claim  if the amount is $20,000 or less and no application is made for a pecuniary penalty.

What is a small claim procedure?

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. 

If a general protections dismissal dispute order for compensation is more than $20,000, other processes for enforcement can be used.

A pecuniary penalty order cannot be sought through a small claim procedure.

And there is a lodgment time limit of 6 years.

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.

Do you have questions or comments about a Fair Work order? Be sure to leave them below.