Enforcing orders - Unfair dismissal

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 legal advice. 

Enforcing orders made by the Fair Work Commission​​​

How do you apply?

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' Form.

The form is available:

• from the Federal Circuit​ Court, or
• onli​ne​.

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 on​line.

Once you have completed the forms you must file them at a registry office and pay a filing fee of $71.90 (as at 1 July 2018).

 Before making an application to the Federal Circuit Court you should get legal advice.

What orders can the court make?

The Federal Circuit Court may:

What fines can the court impose?

If your employer is an individual they can be fined 60 penalty units. Each penalty unit is worth $210.00, this means your employer can face a maximum fine of $12 600 (as at July 2017).

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 $63 000 (as at July 2017). 

Before you apply to the Federal Court or the Federal Circuit Court to enforce the Commission's orders, you should get legal advice.

Enforcing orders made by the Federal Circuit Court

 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.

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'.

There are different types of enforcement options, including:

• a writ / warrant for seizure and sale of property
  
• order for possession of land or delivery of goods
• charging order (eg charge over shares or money in a financial institution)
  
• redirection / attachment / garnishee of debts or earnings / instalment order
• enforcement hearing / oral examination / means of inquiry
  

To enforce a judgment of a Federal Circuit Court, you need to:

• apply to the Federal Court to enforce a judgment
  
• take action through the Supreme Court.
  

Apply to the Federal Court to enforce a judgment

To apply to the Federal Court, you need to file:

• a Request for Enforcement form
  
• supporting documents
  
• an Affidavit of support.
  

The Request for Enforcement and supporting documents should be filed via eLodgment.

There is no filing fee incurred in the Federal Court for the filing of a Request for Enforcement.

A registrar will consider the Request for Enforcement and, if satisfied that the request and supporting documents are in an appropriate form, issue the enforcement process.

For more information, see the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF) on the Federal Court of Australia website.

Take action through the Supreme Court

Once the enforcement process is issued any further steps to enforce and execute the judgment should then be taken in the Sheriff's office of the relevant Supreme Court.

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. Before taking this action you should get legal advice. This is an expensive and complex way of enforcing the judgment. 

If your 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. Before taking this action you should get legal advice. This is an expensive and complex way of enforcing the debt.

Enforcing court decisions is complicated and you should get legal advice about the best steps to take. 

For answers to commonly asked questions, see After the case - Frequently Asked Questions.