The Law Handbook 2024

1066 NOTE The law in this chapter is current as at 1 September 2023. Enforcing your entitle- ments as an employee First steps An employee who has a dispute with an employer about an entitlement under an enterprise agree­ ment, a common law contract of employment, or the relevant modern award should first raise the matter with the employer, or ask their union to do so. If the matter is not resolved, the following steps could be considered. Enforcement The Fair Work Act 2009 (Cth) (‘ FW Act ’) empowers inspectors to investigate breaches of modern awards and enterprise agreements. Inspectors are appointed by the Fair Work Ombudsman under section 700 of the FWAct. If, on investigation, an inspector considers that there has been a breach of an enterprise agreement or award, they usually attempt to get the employer to rectify it. If the employer fails to rectify the breach, the inspector may then prosecute the employer. The legislation also protects employees from any discriminatory action by an employer as a result of an employee making a report about breaches of employment conditions, such as underpayment of wages, or non-payment. Civil proceedings Breach of an award or an enterprise agreement A union or individual employee covered by a modern award, enterprise agreement or collective agreement, or by the National Employment Standards ( NES ) (see ‘National Employment Standards’ in Chapter 11.5: Employment contracts, awards and agreements) may bring proceedings for a penalty to be imposed on the employer and/or to recover money due and payable under the relevant modern award or enterprise agreement (ss 44, 45, 50, 539, 540 FW Act). Proceedings may be brought up to six years after the date payment was due. The proceedings may be brought in the Federal Circuit and Family Court or the Federal Court. Proceedings for an injunction to prevent, stop or remedy the effects of a breach may only be brought in the Federal Circuit and Family Court or the Federal Court (s 545 FW Act). The FW Act imposes maximum penalties for breaching a modern award, enterprise agreement or the NES. There are higher penalties for corporations than for individuals. Section 557A of the FW Act provides for the imposition of harsher penalties for corporations and individuals who knowingly and repeatedly breach the FW Act. As a general rule, parties to proceedings brought under the FWAct pay their own legal costs. However, parties may be ordered to pay the other party’s costs if it can be shown that: • the proceedings were brought vexatiously, without reasonable cause (ss 570, 611); or • the party’s unreasonable act or omission caused the other party to incur costs; or • the other party unreasonably refused to participate in a matter before the Fair Work Commission ( FWC ) that was related to the matter in which costs were sought (s 570). Breach of a contract of employment An employee whose employment is governed by a common law contract of employment, and who has been underpaid, can take action to recover wages as a contractual debt. The employee sues on the basis of the terms and conditions of the contract of employment and in this way can recover over- Protection for your rights at work 11.6 Contributors: Reetika Khanna and Cristina Trafficante, Lawyers, Lander & Rogers