This fact sheet explains what a small claims proceeding is and how to make a small claim application to the Fair Work Small Claims Division of the Federal Circuit Court, where unpaid entitlements amount to $20,000 or less. For claims over $20,000 you will have to make a claim in the Fair Work division of the Federal Circuit Court.
A small claims proceeding offers some distinct advantages to individuals seeking to recover unpaid entitlements.
This fact sheet covers:
If you think your employer owes you money, in some cases you can choose to have your claim dealt with as a small claims proceeding.
A small claims proceeding is quicker, cheaper and more informal than regular court proceedings. The court is not bound by any rules of evidence and procedure.
Small claims proceedings are designed to allow people to resolve their claims without lawyers – you need to apply for the court’s permission if you want a lawyer to represent you.
You can apply to the Small Claims Division of the Federal Circuit Court if:
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.
You need to fill out two forms:
Take 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 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. If a claim is less than $10,000 the filing fee is $250. If the claim is between $10,000 – $20,000 the filing fee is $405.
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 Circuit Court website.
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 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:
Once you have served your employer, you need to let the Federal Circuit Court know. Fill in this Affidavit of Service (Fair Work) form.
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).
If the Court decides that your employer owes you money, it can order that your employer pay you the outstanding amounts. It may also order that the unsuccessful party pay the successful party’s legal fees (known as costs) – in very limited circumstances.
Fair Work Ombudsman – Taking legal action in the small claims court
NSW Law Access – Employment rights
The Law Handbook (NSW) – Chapter 22 on Employment Law
Federal Circuit Court – Industrial Law
This resource was published 21/09/2017, and last updated on 26/08/2021. This is legal information only and does not constitute legal advice. You should always contact a lawyer for advice specific to your situation.