An employee who has a dispute with an employer about an entitlement under an enterprise agreement, a (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. An agreement that the law will enforce. of employment, or the relevant (1) A standard set of working conditions, including pay rates, for a particular industry. (2) A court decision that a party receive compensation, such as an award of damages to compensate them for physical injuries. 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.
The Fair Work A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 2009 (Cth) (‘FW Act’) empowers inspectors to investigate breaches of awards and enterprise agreements. Inspectors are appointed by the Fair Work A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority. under section 700 of the FW Act. 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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. protects employees from any discriminatory action by an employer as a result of an employee making a report about breaches of employment conditions. Underpayment of wages, or non-payment, are considered to be breaches.
Breach of an award or an enterprise agreement
A union or individual employee covered by a federal 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 award or 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 (most commonly) in the Federal Circuit An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. or in the Federal Court. Proceedings for an A court order that directs a person to do, or not to do, something. For example, a court can order a developer not to demolish a historic building. An injunction may be interim (operative until further order) or perpetual (continuing indefinitely). to stop or remedy the effects of a breach may only be brought in the Federal Circuit Court or the Federal Court (s 545).
The FW Act imposes maximum penalties for breaching an award, agreement of 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 FW Act pay their own legal The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.. This is unless it can be shown that the proceedings were brought vexatiously, or without reasonable cause (ss 570, 611). Or, that the party’s unreasonable act or omission caused the other A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. to incur costs. Or, that 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 Money that is owed by one person or business to another.. The employee sues on the basis of the terms and conditions of the contract of employment and in this way can recover over-award payments or payments in The amount a person does not get back from the insurer when they make a claim on their insurance. For example, if a car is insured for an agreed value of $10 000 with an excess of $1000, the insurer will pay only $9000 on a claim if the car is written off. of the award entitlement. The employee can also proceed in this way to recover the amount provided for in an award where a term of the contract of employment was that the employee would receive the amount payable under an award.
Proceedings for the recovery of a contractual debt are usually commenced in the Magistrates’ Court, or County Court or Supreme Court, depending on the amount in dispute (see Chapter 1.2: An introduction to the courts). Proceedings may be brought up to six years after the date payment was due.
If no wage rate is fixed or agreed, the employee can To take legal action in a civil case. for a reasonable price for the services rendered once the contract has been terminated.
Where the applicant concurrently wishes to make a claim in a federal court (e.g. for a breach of the NES), the applicant may also bring a claim for the recovery of a contractual debt as an ‘associated claim’ in the same court.
Under section 548 of the FW Act, employees can choose to take their own legal action to recover employment entitlements – up to a maximum amount of $20 000 – using the small claims process.
The small claims process may be quicker, cheaper and more informal than regular court proceedings. The aim of the small claims process is to settle disputes quickly and fairly with minimum expense to the parties. Matters are usually resolved with only one The time and place at which a court or tribunal hears the parties argue their case and makes a decision.. The simple process means there is usually no need for the involvement of lawyers.
For more information about making a small claim, see the Fair Work Ombudsman’s guide ‘Taking legal action in the small claims court’ at www.fairwork.gov.au/how-we-will-help/how-we-help-you/help-resolving-workplace-issues/taking-legal-action-in-the-small-claims-court.
Being unable to pay your debts in full when they are due. employer compensation scheme
The Fair Entitlements A binding promise made as reassurance that another person will carry out their legal obligations (e.g. paying a debt). The person making the promise is called a guarantor. If the person being guaranteed fails to pay, the guarantor becomes responsible for the debt. Act 2012 (Cth) (‘FEG Act’) provides a Fair Entitlements Guarantee Scheme (FEGS) to compensate employees who have lost wages and/or other entitlements due to an employer’s insolvency or When a debtor who cannot pay their debts has their money and property taken over and managed by a trustee who uses it to pay back creditors. The debtor is then called a bankrupt..
The scheme is administrated by the federal Attorney-General’s Department and applies to the employees of an employer who became bankrupt or entered liquidation on or after 5 December 2012.
Decisions made under the scheme can be reviewed internally (s 38 FEG Act) and externally by the Administrative Appeals A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding. (s 40). For more information about the scheme, see the federal Attorney-General’s website at www.ag.gov.au.