Enforcement

The powers of the Fair Work Commission are different to the powers of the courts. The Commission is a tribunal and does not have the power to enforce the orders that it can make under the Fair Work Act 2009 (Cth) (the Fair Work Act).

The enforcement role is performed by either the Federal Court or the Federal Circuit Court. The powers of the courts (including powers to grant injunctions and make declarations) are not limited by any term of the Fair Work Act.

If a person does not comply with a Commission order, a person affected may seek enforcement of the Commission's order through civil remedy proceedings in the courts.

Typically applications of this kind are made to the Federal Circuit Court.

The Fair Work Act provides a table in s.539 which details who may make an application to the court for the various civil remedy provisions. Provisions relating to industrial action are set out in Items 14–24.

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

Related information

• Orders to stop or prevent unprotected industrial action

See Fair Work Act ss.545, 546 and 570

The types of orders the courts may generally make in respect of a contravention or proposed contravention of a civil remedy provision include the following:

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

Orders awarding compensation for loss are not available under the Fair Work Act in relation to contraventions of stop orders made under s.418, s.419 or s.420 (see s.421(4)).

Orders awarding compensation for loss are available under s.417.

Pecuniary penalty orders

The courts may, on application, order a person to pay a pecuniary penalty considered appropriate if 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 s.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 by the courts

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