If your employer does not follow an order made by the Fair Work Commission (the Commission) it is possible to apply to the Federal Court or the Federal Circuit Court for orders enforcing the Commission's decision. The Federal Court/Federal Circuit Court can order that compensation be paid to you for any loss you have suffered because your employer did not do what they were supposed to. Your employer can also be fined.
If your employer does not follow an order made by the Commission and you want to enforce the orders, you must make your application within six years of the breach. If you're not sure how to apply, or whether you're within the time limit, you should get
Usually, applications should be made to the Federal Circuit Court. If the matter is complicated, the Federal Circuit Court may transfer it to the Federal Court.
To make an application to the Federal Circuit Court you need to complete an 'Application - Fair Work Division' Form. The form is available:
You must also complete an affidavit and send it with your application form. There is no set form. You can use the standard 'Affidavit' form available from the
Federal Circuit Court website.
Once you have completed the forms you must file them at a registry office and pay a filing fee of $69.60 (as at July 2016).
Before making an application to the Federal Circuit Court you should get
The Federal Circuit Court may:
If your employer is an individual they can be fined 60 penalty units. Each penalty unit is worth $180.00, this means your employer can face a maximum fine of $10 800 (as at July 2016).
If your employer is a corporation they can be fined five times as much as an individual. This means your employer can face a maximum fine of $54 000 (as at July 2016).
Before you apply to the Federal Court or the Federal Circuit Court to enforce the Commission's orders, you should get
If the court has made orders about your employer paying you money and they have not done so, there are things you can do to try and force them to follow the orders. This process is called 'enforcement'.
If your employer does not follow an order to reinstate you, they may be in 'contempt of court'. It is possible for the Federal Court or Federal Circuit Court to punish parties that do things that are in contempt of court.
You can ask the court to make an order that the judgment be enforced by:
If the judgment debt is more than $5000 and your employer is an individual, you can have them declared bankrupt by applying to the court. However, this is an expensive and complex way of enforcing the judgment and you should get
legal advice before taking this action.
If you employer is a company, it can be wound up. To wind up a company you must show that it is insolvent (unable to pay its debts). This can be done by issuing a statutory demand. If the judgment debtor company does not respond to a statutory demand within 21 days you can file an application for a winding up order in the Supreme Court. This is an expensive and complex way of enforcing the debt and you should get legal advice before taking this action.
You may also be able to register the orders made by the court as a judgment in the Local Court of NSW. You should get
legal advice about whether you are able to do this.
You will need to complete a 'Form 45: Registration or Filing of (Certificate of) Judgment/Order'. You can get copies of this form from:
After you complete the form, you will need to attach Federal Circuit Court order and file the form at any Local Court. The filing fee is $90.00 for an individual and $180.00 for a corporation (as at July 2016). Once the order is registered, it will have the same effect as a judgment of the Local Court.
If you are able to register the orders as a judgment of the Local Court of NSW, you can then enforce the judgment using the procedures set out in the
After the case section of the 'Debt - small claims' topic of this website.
Enforcing court decisions is complicated and you should get
legal advice about the best steps to take.