What happens if my employer does not comply with an order of the Fair Work Commission?

An employer may be tempted not to comply with orders of the Fair Work Commission as it does not hold the same formality that a Court proceeding does. However, employers must legally comply with orders made by the Fair Work Commission. Refusal to comply may result in civil penalties under section 405 of the Fair Work Act 2009 (Cth).

This was recently affirmed in Fair Work Ombudsman v G&G Group Trading Pty Ltd [2021] FedCFamC2G 105, where an employer’s company director informed a Fair Work Inspector that “I don’t care about breaching the act” and “the FWO can come after me”.

The Fair Work Commission had determined that G&G Group Trading Pty Ltd had unfairly dismissed Ms Mylie Woodland. The Fair Work Commission ordered that the employer pay Ms Woodland $5,096.14 plus $677.78 in superannuation.

The company director refused to comply with an order for payments within 21 days, despite clearly understanding the order. The Court considered that the employer was no longer trading, and the company director was a pensioner but ultimately handed down an additional penalty of $30,000 for the employer and $6,000 for the company director to deter other employers from non-compliance with Fair Work Commission orders.

This demonstrates that employers cannot avoid compliance with orders based on their perceived “deservedness” of the employee’s claim, or simply ignore the order altogether.

Employees who do not receive compensation ordered by the Fair Work Commission can seek enforcement through the commencement of civil proceedings in:

• the Federal Circuit Court of Australia or a State Magistrates Court by commencing a small claim proceeding;
• the Fair Work Division of the Federal Circuit Court of Australia; or
• an eligible State or Territory Court such as a District or County Court or state industrial relations commission.

If you believe this scenario applies to you, contact the lawyers at McDonald Murholme for further advice.