Claiming unpaid entitlements in the Federal Circuit and Family Court (more than $100,000)

What is this resource?

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.

What are ‘Unpaid Entitlements’? 

‘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.

What options do I have to get my employer to pay my unpaid entitlements? 

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: 

1. Bring a general application to the Fair Work division of the FCFCoA; or 
2. 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. 

How can I make a general application for unpaid entitlements to the Federal Circuit and Family Court? 

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: 
  • the Fair Work 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). 
• (for outworkers) you are making a claim for an unpaid entitlement under a modern award. 

Examples of when you can make a claim 

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. 

How do I apply?

Before applying to the Court for your unpaid entitlements claim, you should take all of these steps.

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 these steps are unsuccessful, the following process should be followed.

What orders can the Federal Circuit and Family Court make?

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).

Useful information

• 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 Court Rules 2011
• Federal Circuit and Family Court – Attending Court
• Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
• The Law Handbook (NSW) – Chapter 22 Employment