Enforcing agreements and orders

If you settled the case with your employer, they may have agreed to reinstate you or pay you compensation. You can record this in a written settlement agreement. 

This agreement may be called a 'Settlement Contract' or 'Deed of Release'.

You should read the settlement agreement carefully. Do not sign the agreement unless you understand and agree to it. Once you sign the agreement you will be bound by it.

If your employer doesn’t do what they agreed, it is possible to enforce the agreement. The steps you can take will depend on whether the agreement has been signed or not.​​ 

​You should not file a Notice of Discontinuance (a form that ends your case) with Fair Work Commission (the Commission) or the Federal Circuit and Family Court of Australia until your employer has done what they agreed to do in the settlement agreement (for example, paid you compensation).

If you and your employer have both signed the agreement, it is a contract.

If your employer doesn't follow the terms of the signed agreement, it is possible to enforce it. You will need to start a case in another court asking for an order that the employer follow the terms of the agreement. You may also ask for any costs you need to pay to take action in the court (like legal fees or filing fees).

The Fair Work Commission or the Federal Circuit and Family Court of Australia do not enforce the agreement. You should get legal advice about the steps you can take to enforce the agreement.

 If your employer doesn't follow the agreement you should take steps to enforce it as soon as possible. The time limit for making a claim for settlement money you are owed is six years. 

You are usually bound by any agreement that you have signed. If you make an agreement and later try to go back on it, your employer may be able to claim any costs that they have to pay to enforce the agreement.

If you and/or your employer did not sign the settlement agreement, it may be possible to have your case re-listed before the Fair Work Commission or the Federal Circuit and Family Court of Australia. Your case would then be treated in the same way as any other case that did not settle.

To re-list your case, you can call the Commission or the Court and explain what has happened. You should also get legal advice about the steps you may be able to take.

If your employer does not follow an order made by the Fair Work Commission (the Commission), you may be able to apply to the Federal Court of Australia or the Federal Circuit and Family Court of Australia for orders enforcing the Commission's decision. These Courts can order that compensation be paid to you for any loss you have suffered and fine your employer.

 If your employer does not follow an order made by the Commission and you want to enforce the orders, you must make your application within six years of the breach. If you're not sure how to apply, or whether you're within the time limit, you should get legal advice.

Usually, applications should be made to the Federal Circuit and Family Court of Australia. If the matter is complicated, it may transferred to the Federal Court of Australia.

To apply, you must complete:

• an Application - Fair Work Division, and
• an Affidavit.

You can get a copy of these forms from:

• your nearest Federal Circuit and Family court registry, or
• the General federal law forms page on the Federal Circuit and Family Court of Australia website.

Once you have completed the forms you must file them at a registry office and pay a filing fee of $83.30 (as at 1 July 2023).

Before apply to the Federal Circuit and Family Court of Australia, you should get legal advice.

The Court may:

• make an order stopping your employer from breaching an order or make an order to fix the breach
• award you compensation for any loss you have suffered because your employer has not followed the Commission's order
• reinstate your employment.

If your employer is an individual they can receive a maximum fine of $18,780 (as at 1 July 2023).

If your employer is a corporation they can be fined five times as much as an individual. This means your employer can face a maximum fine of $93,900 (as at 1 July 2023).

 Before you apply to enforce the Commission's orders, you should get legal advice.

If your employer does not follow an order to reinstate you, they may be in contempt of court. It is possible for the Federal Court of Australia or Federal Circuit and Family Court of Australia to punish parties that are in contempt of court.

If the Court has made orders about your employer paying you money and they have not done so, there are things you can do to try and force them to follow the orders. This process is called 'enforcement'.

There are different types of enforcement options, including:

• a writ / warrant for seizure and sale of property
• order for possession of land or delivery of goods
• charging order (eg charge over shares or money in a financial institution)
• redirection / attachment / garnishee of debts or earnings / instalment order
• enforcement hearing / oral examination / means of inquiry

To enforce a judgment of the Federal Circuit and Family Court of Australia, you need to:

• apply to the Federal Court of Australia
• take action through the Supreme Court of NSW.

To apply to the Federal Court of Australia, you need to file:

• a Request for Enforcement (Form NCF6)
• an Affidavit (Form 59)
• supporting documents.

You can get a copy of the:

• Request for Enforcement form from the National Court Framework (NCF) Forms page on the Federal Court of Australia website, and
• Affidavit on the Forms under the Federal Court Rules 2011 page on the Federal Court of Australia website.

The Request for Enforcement and supporting documents should be filed via eLodgment.

You do not have to pay a filing fee.

A Registrar will consider the Request for Enforcement and, if satisfied that the request and supporting documents are in an appropriate form, issue the enforcement process.

For more information, see the Enforcement, Endorsement and Contempt Practice Note (GPN-ENF) on the Federal Court of Australia website.

Once the enforcement process is issued any further steps to enforce and execute the judgment should then be taken in the Sheriff's office of the Supreme Court of NSW.

If the judgment debt is more than $10,000 and your employer is an individual, you can apply to a court to have them declared bankrupt. Before taking this action, you should get legal advice. This is an expensive and complex way of enforcing the judgment. 

If your employer is a company, it can be wound up. To wind up a company you must show that it is insolvent (unable to pay its debts). This can be done by issuing a statutory demand. If the judgment debtor company does not respond to a statutory demand within 21 days you can file an application for a winding up order. Before taking this action you should get legal advice. This is an expensive and complex way of enforcing the debt.

Enforcing court decisions is complicated and you should get legal advice about the best steps to take.