Applying to the Federal Circuit and Family Court Small Claims Division

Before applying to the Court for your small claim, you should:

1. calculate how much you are owed;
2. speak to your employer;
3. send your employer a ‘letter of demand’ which outlines your claim and gives them the opportunity to pay you your outstanding entitlements; and
4. contact the Fair Work Ombudsman to discuss your claim. 

If this doesn’t resolve your claim, the following steps should be followed to be ready to go to court. 

In preparation for your application:

1. Collect all evidence: You need to provide the Court with evidence so that the Court can decide about your claim. Evidence can include emails, pay slips, pay rate calculations, diary entries of hours worked, timesheets, rosters, witness testimony, affidavit etc. It will depend on the type of claim you are bringin.
2. Check your entitlements: Understand where your legal entitlements come from. Is it based on the national minimum wage, a modern award, enterprise agreement etc.? If you are not sure, you can call the Fair Work Ombudsman for assistance on 13 13 94 or visit the Pay and Conditions Tool, available here: P.A.C.T Home – (fairwork.gov.au).
3. Calculate your claim: Present your calculations of amounts owed to you in an easy-to-understand format. This should include how much you were actually paid according to payslips, group certificates and bank statements, and how much you should have been paid. 
4. Check the legal name of your employer: Your claim needs to be against the correct legal employer. You should make sure the legal name of your employer is correct. It can be a company, sole trader or partnership.

You need to fill out 2 forms:

1. Application – Fair Work Division: You can access the application form on the Court’s website, here: Application – Fair Work Division | Federal Circuit and Family Court of Australia (fcfcoa.gov.au). Remember to tick “Yes” under the “Small claims list” heading on the first page. 

2. Claim form: You can access the claim form on the Court’s website. There are two claim forms:

   • For a small claim related to unpaid wages or entitlements, you can access the form here: Form 5 – Small claim under the Fair Work Act 2009 | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

   • For a small claim related to a casual conversion dispute, you can access the form here: Form 5a – Small claim under the Fair Work Act 2009 – casual conversion dispute | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

Your application should clearly outline the entitlements you claim are owed, where these entitlements come from (for example, your employment contract or modern award) and support your claim by attaching schedules or spreadsheets with your calculations. 

Wherever possible you should file your court documents online using the eLodgement portal. Guidelines for the electronic filing of documents are available on the Court’s website. Information about preparing your documents for eFiling is available, here: https://www.fcfcoa.gov.au/pubs/preparing-docs-efiling.

If it is not possible to file using eLodgement, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. The Court’s contact details are available on the Court’s website if you need to speak to someone about how to file your documents, here: Contact us | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

Fees

You need to pay the filing fee when you file your documents. You can view the fees on the Court’s website, by selecting “General federal law fees” and scrolling to the second heading titled “Small Claims”, here: Fees | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

You may be exempt from paying the filing fee if you hold certain government concession cards, are experiencing financial hardship or are under the age of 18. More information is available on the Court’s website, here: https://www.fcfcoa.gov.au/gfl/forms/app-exemption-fees-general; and here: https://www.fcfcoa.gov.au/gfl/forms/app-exemption-reduction-fin-hardship.

Once you have filed your documents with the Court registry, sealed electronic copies of the documents will be returned to you and you will be given a hearing date for your claim. 

After you have filed your documents with the Court, you need to give a copy of your documents to your employer (or other person you are claiming against) so they can respond to your claims. 

This must be done at least 7 days before the date of the first hearing.

If your employer is a person, you need to:

• give the forms to them in person; or

• if they won’t accept the forms, put them down in their presence and explain what they are. 

If your employer is a company, you need to:

• post the forms to the company’s registered office (address it to the “Proper Officer”); 

• take the forms to the registered office and leave them with an employee; or

• hand the forms personally to a director of the company. 

Once you have served your employer, you need to let the Court know. 

Fill in the Affidavit of Service (Fair Work) form available from the Court’s website, here: Affidavit of Service (Fair Work) | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

File the form with the Court registry through the eLodgement portal. The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).