Question

1. When an employer breaches an award or enterprise agreement, or even the national employment standards, by paying an employee less than they are entitled to, the employee has the right to make a claim under the Fair Work Act either by themselves or through the Fair Work Ombudsman. What can the Fair Work Commission do under the Fair Work Act to make the situation right?

Answer 1

Fair Work Commission is responsible for reviewing the legislation that includes updating entitlements, national minimum wages, etc. , administering the act, and operates as a tribunal to hear claims and declare rulings. whereas, the Fair Work Ombudsman governs and investigates breaches in the workplace and initiates legal proceedings.

Such a situation can be dealt with as "small claims procedure" under the Fair Work Act as follows:-

(1) Proceedings are to be dealt with as small claims proceedings under this section if:

                     (a) a person applies for an order (other than a pecuniary penalty order) under Division 2 from a magistrates court or the Federal Circuit Court; and

                     (b) the order relates to an amount referred to in subsection (1A); and

                     (c) the person indicates, in a manner prescribed by the regulations or by the rules of the court, that he or she wants the small claims procedure to apply to the proceedings.

          (1A) The amounts are as follows:

                     (a) an amount that an employer was required to pay to, or on behalf of, an employee:

                              (i) under this Act or a fair work instrument; or

                             (ii) because of a safety net contractual entitlement; or

                            (iii) because of an entitlement of the employee arising under subsection 542(1);

                     (b) an amount that an outworking entity was required to pay to, or on behalf of, an outworking under a modern award.

Section 542(1):- For the purposes of this Part, a safety net contractual entitlement of a national system employer or a national system employee, as in force from time to time, also has effect as an entitlement of the employer or employee under this Act.

Limits on award

             (2) In small claims proceedings, the court may not award more than:

                     (a) $20,000; or

                     (b) if a higher amount is prescribed by the regulations—that higher amount.