Claiming unpaid entitlements in the Federal Circuit and Family Court (more than $100,000)
Last Updated 17 June 2024
Last Updated 17 June 2024
This resource explains what are ‘Unpaid Entitlements’ and how to make a general application for unpaid entitlements to the Federal Circuit and Family Court of Australia (FCFCoA).
It covers:
What are ‘Unpaid Entitlements”?
What options do I have to get my employer to pay my unpaid entitlements?
How to make unpaid entitlements claim for more than $100,000 in the Federal Circuit and Family Court.
Orders the Federal Circuit and Family Court can make.
‘Unpaid Entitlements’ refer to money your employer owes to you.
Your right to entitlements will be contained under a relevant industrial instrument, including the National Employment Standards contained in the Fair Work Act 2009 (Cth), your contract of employment and any award or enterprise agreement.
Examples of entitlements may include:
wages which is payment for work performed for your employer;
penalty rates which refer to a higher rate of pay for working at certain times (e.g. public holidays, weekends, extra hours);
allowances which refer to payment for working certain conditions (e.g. meals, tools, clothing etc.);
leave (e.g. annual leave);
superannuation;
payment in lieu of notice, which is payment provided by your employer instead of a period of notice of termination when you are dismissed from your job; and
redundancy pay which is payment provided by your employer if they no longer need the role to be performed, or the same number of employees to perform certain tasks.
If you think your employer owes you money, you might be able to make a claim for unpaid entitlements in the Federal Circuit and Family Court.
If the amount you are claiming is less than $100,000, you can choose to have your claim dealt with as a small claims proceeding (see ‘Applying to the Federal Circuit and Family Court – Small Claims Division’).
If you wish to claim more than $100,000, you have two options:
Bring a general application to the Fair Work division of the FCFCoA; or
Make a claim in the Federal Court of Australia (FCA), although this is generally only done where the claim is large and complex.
Alternatively, as a small claims proceeding is generally quicker, cheaper and more informal than general court proceedings, you might choose to make a small claims application to the FCFCoA even though you feel you are owed more than $100,000. However, it is important to know that the court can only make an order for a maximum of $100,000 even if you provide that you are owed over $100,000 and win your case.
You can make a general application for unpaid entitlements to the FCFCoA 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 $100,000;
the claim you are making relates to an entitlement due to you within six (6) years from the date of your application; and
(for employees) you are making a claim for an unpaid entitlement from one of the following:
(for outworkers) you are making a claim for an unpaid entitlement under a modern award.
You can make a claim when:
recovering unpaid wages, including base rate of pay, overtime;
recovering unpaid leave entitlements, including annual leave;
recovering unpaid penalties or allowances, e.g. public holiday pay; and
recovering unlawful deductions from your 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.
Before applying to the Court for your unpaid entitlements claim, you should take all of these steps.
Calculate how much you are owed;
Speak to your employer;
Send your employer a ‘letter of demand’ which outlines your claim and gives them the opportunity to pay you your outstanding entitlements; and
Contact the Fair Work Ombudsman to discuss your claim.
If these steps are unsuccessful, the following process should be followed.
Collect all evidence – You need to provide the Court with evidence so that the Court can make a decision about your case. 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 bringing.
Check your entitlements – Understand where your legal entitlements are derived 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 their Pay and Conditions Tool.
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.
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:
An Application form – Fair Work Division.
An affidavit (or a statement of claim or points of claim) – 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.
You can find copies of these forms on the Federal Circuit and Family Court of Australia’s website under the heading ‘Forms’.
Your application should clearly outline the entitlements you claim are owed, where these entitlements come from (for example, your employment contract or your modern award). You may wish to make your claim clearer by attaching schedules or spreadsheets with your calculations.
Wherever possible you should file your court documents online using the eLodgment portal. Guidelines for the electronic filing of documents are available on the FCA’s website. Information about preparing your documents for eFiling is also available on the Preparing documents for eFiling page on the FCA’s website.
If it is not possible to file using eLodgment, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. The FCFCoA’s contact details are available on the Court’s website if you need to speak with someone about how to file your documents.
You need to pay the filing fee when you file your documents. The filing fee for an unpaid entitlements claim of more than $100,000 is $785.
You may not have to pay the filing fee if you hold certain government concession cards, are suffering financial hardship or are under the age of 18. More information is available on the FCFCoA website: https://www.fcfcoa.gov.au/gfl/forms/app-exemption-fees-general and 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 them 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 will not 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 it with an employee; or
hand the forms personally to a director of the company.
You can check the company’s registered address by searching the ASIC Register.
Once you have served your employer, you need to let the FCFCoA know.
Fill in the Affidavit of Service (Fair Work) form available from the FCFCoA website.
File the form with the court registry through the eLodgment portal. The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).
The Court can make several 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 filing fees and legal fees (known as costs).
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.
NSW Law Access – Employment rights | Going to the Federal Circuit and Family Court of Australia
Federal Circuit and Family Court – Fair work: Legal resources
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
The Law Handbook (NSW) – Chapter 22 Employment
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This resource was last updated on 17 June 2024. 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.