Chapter 4 of The Fair Work Bill deals with compliance and
Through Fair Work Australia, compliance with workplace laws,
awards and agreements will be enforced.
Fair Work Australia replaces the Australian Industrial Relations
Commission, the Australian Fair Pay Commission and the Workplace
The Workplace Ombudsman enjoyed a significant and prominent role
in the Workplace Relations regime. The new regime continues that
role albeit with a rebadging as the Fair Work Ombudsman.
The Fair Work Ombudsman will have an investigatory and
prosecutorial function, which will be carried out by workplace
inspectors, now called Fair Work Inspectors.
Within the Federal Court there will be a Fair Work Division and
similarly within the Federal Magistrates Court a Fair Work
The Act broadens the powers available to the courts to give so
called flexible remedies, including a power to issue injunctions
for breaches of an award or workplace agreement.
Of most interest perhaps, the Bill proposes a system for the
enforcement of individual contractual entitlements. These are
entitlements created under a contract between the employer and the
employee in relation to matters which are dealt with in the
National Employment Standards ("NES") or a modern award.
If one of these entitlements is breached, the employer or employee
can apply to the Federal Court/Federal Magistrates Court to enforce
the entitlement. A Fair Work Inspector may also bring this action
on behalf of the employee or as an adjunct to an action for a
breach of an NES, modern award, enterprise agreement or other
Penalties for breaching awards or enterprise agreements are set
at a maximum of 60 penalty units. This equates to $6,600.00 for an
individual or $33,000.00 for a company. The Federal Court and the
Federal Magistrates Court may make such orders as they consider
appropriate including the making of injunctions in relation to
alleged breaches of civil remedy provisions.
The Federal Magistrates Court will now offer a small claims
mechanism. A small claims procedure is presently available in state
Magistrates Courts under the Workplace Relations Act. The new Act
extends the small claims procedure to the Fair Work Division of the
Federal Magistrates Court. The monetary limit will be increased to
$20,000.00 (it is currently $10,000.00).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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