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:
This fact sheet covers:
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.
You can make a general application for unpaid entitlements to the FCC if:
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.
You can make a claim when:
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.
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:
(Note: If you intend to commence proceedings in the Federal Court, different court procedures may apply)
You can find copies of these forms here under ‘Industrial Law’.
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.
You may not have to pay the filing fee if you hold certain government concession cards or are suffering financial hardship. More information is available on the Federal Court website.
The filing fee for an unpaid entitlement claim of more than $20,000 is $675.
Step 3: Serve the forms on your employer
After you have filed your documents with the Court, you need to give a copy of them to your employer (or other person you are claiming against) so they can respond to your claims.
This must be done at least 5 business days before the date of the first hearing.
If your employer is a person, you need to:
If your employer is a company, you need to:
Step 4: Let the Court know you have served the forms on your employer
Once you have served your employer, you need to let the Federal Circuit Court know.
Fill in the Affidavit of Service (Fair Work) form available from the Federal Circuit Court website.
Take the form in to the court registry. The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
The Court can make a number of orders in unpaid entitlements matters. For example, the Court may order that you attend a mediation conference to attempt to settle your claim with your former employer.
If, following a hearing, the Court decides that your employer owes you money, it can order that your employer pay you the outstanding amounts.
If you are unsuccessful, the Court (in very limited circumstances) may also order that you pay the successful party’s legal fees (known as costs).
This resource was published 21/09/2017. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.