This resource explains how to make a claim if you have been underpaid by over $20,000. You’ll need to make a claim to the Fair Work division of the Federal Circuit Court.
This fact sheet explains what unpaid entitlements are and how to make a claim to the Fair Work division of the Federal Circuit Court. If you want to claim unpaid wages or entitlements over $20,000 in unpaid wages, this fact sheet will help you understand the process. For claims under $20,000, see our small claims fact sheet.
You can make a general application for unpaid entitlements within six years of when you were supposed to receive:
unpaid wages, including overtime
unpaid leave entitlements, including annual leave
unpaid penalties or allowances, e.g. public holiday pay.
This fact sheet covers:
What are ‘Unpaid Entitlements’?
How to make an unpaid entitlements claim for more than $20,000 in the Federal Circuit Court
If you think your employer owes you money, you might be able to make a claim for unpaid entitlements in the Federal Circuit Court (FCC).
Your right to claim unpaid wages and certain entitlements are usually governed by a number of instruments, including the National Employment Standards (contained in the Fair Work Act 2009 (Cth) (the FW Act)), your contract of employment and any award or enterprise agreement that applies to you.
If the amount you are claiming is less than $20,000, you can choose to have your claim dealt with as a small claims proceeding (see ‘Applying to the Fair Work Small Claims Division’). A small claims proceeding is quicker, cheaper and more informal than regular court proceedings. You may still make a small claims application if you feel you are owed more than $20,000, however the court will only make an order for a maximum of $20,000 if you win your case.
If you wish to claim more than $20,000, you can bring a general application to the Fair Work division of the FCC. This claim can also be made in the Federal Court of Australia (FCA), although this is generally only done where the claim is large and complex.
2. How can I make a general application for unpaid entitlements to the Federal Circuit Court?
You can make a general application for unpaid entitlements to the FCC if:
you are an employee, former employee or outworker (an employee who performs work at home or a similar place), but you are not an independent contractor;
the amount you are claiming is more than $20,000; and
(foremployees) you are making a claim for an unpaid entitlement from one of the following:
the FW Act;
a modern award;
an enterprise agreement;
a workplace determination;
a Fair Work Commission (FWC) order; and/or
any entitlements in your employment contract that are also covered by the National Employment Standards (known as Safety Net Contractual Entitlements) (these include leave payments, notice periods and redundancy pay).
(foroutworkers) you are making a claim for an unpaid entitlement under a modern award.
A costs order is where the court orders one party to pay the other party’s legal costs. The court may make a costs order against you if you are unsuccessful in claiming for unpaid entitlements. This may happen in circumstances where you have acted unreasonably or where the main purpose of your claim was to harass or embarrass your employer.
2.1 Examples of when you can make a claim
You can make a claim when:
recovering unpaid wages, including overtime;
recovering unpaid leave entitlements, including annual leave; and
recovering unpaid penalties or allowances, e.g. public holiday pay.
You must make your application within 6 years of when you were supposed to receive your employment entitlement. You are better off making your claim as early as possible as the employer’s ability to pay you may reduce over time, or it may become more difficult to prove the claim.
3. How do I apply?
Before applying to the Court
Before applying to the Court for your unpaid entitlements claim, you should a) send your employer a ‘letter of demand’ which outlines your claim and gives them the opportunity to pay you your outstanding entitlements; and b) contact the Fair Work Ombudsman to discuss you claim. The following process should be followed if these steps are unsuccessful:
Step 1: Fill out the forms
You need to fill out:
An Application form – Fair Work Division
An affidavit – this is a formal statement outlining your claim, the evidence in your favour and your version of events. Your affidavit (or statement of claim) may contain schedules, spreadsheets or calculations outlining what you say you are owed and why.
(Note: If you intend to commence proceedings in the Federal Court, different court procedures may apply)
Your application should clearly set out what entitlements you claim are owed, where these entitlements come from (for example, your employment contract or your modern award) and you may wish to make your claim clearer by attaching schedules or spreadsheets with your calculations.
Step 2: File the forms
Take four copies of your forms in person to the nearest court registry. You can find the addresses and business hours on the Federal Circuit Court website.
You need to file the original completed documents with the court registry. The original documents will then be stamped by the court and returned to you and you will be given a hearing date for your claim.
You need to pay the filing fee when you file your documents.
This resource was last updated on 21 September 2017. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation. Please view our disclaimer for more information.