Enforcement of awards and agreements

Contributed by Clare Ozich and current to 1 September 2005

An employee who has a dispute with an employer concerning an entitlement under an employment agreement, a contract or the relevant award should first raise the matter with the employer, or ask his or her union to do so. The most common disputes relate to non-payment, or underpayment, of wages. If the matter is not resolved, the following steps could be considered.

FEDERAL AWARDS AND AGREEMENTS

Prosecutions

The Workplace Relations Act empowers inspectors to investigate breaches of awards and agreements. Inspectors may prosecute employers for breaches of awards and agreements that are not rectified. The legislation 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 nonpayment, is considered to be a breach.

A party to an AWA faces a civil penalty for breach of an AWA.

Proceedings for recovery of wages

Where the employment is covered by a Federal award, civil proceedings for wage recovery and other proceedings for relief arising from a breach of the award or agreement may be brought in the Magistrates, Local or District Courts. Alternatively, proceedings may be brought in the Federal Court of Australia. The general rule about proceedings brought under the Workplace Relations Act is that the parties bear their own legal costs, except where it can be shown that the proceedings were brought vexatiously, or without reasonable cause.

Proceedings may be brought at any time up to six years from the date payment became due. In the absence of good reason to the contrary, the Court has power to order interest to be paid on the amount claimed.

STATE AWARDS AND AGREEMENTS

A number of parties, including unions and any person covered by an award or industrial agreement made by the Western Australian Industrial Relations Commission, may apply to the Industrial Magistrates Court for the enforcement of the award or agreement.

The Industrial Magistrate may impose a penalty if any failure to comply with the award is proved, and may order that an employer pay unpaid wages to an employee that were due under any award or order.

Proceedings for recovery of wages under awards and orders should be brought within 6 years of the wages or other entitlements being due to the employee, and parties may appear in person or be represented by a legal practitioner or agent.

Parties generally bear their own costs for representation by a legal practitioner or agent in proceedings brought in the Industrial Magistrates Court, except where it can be shown that proceedings have been instituted or defended frivolously or vexatiously.