What is this factsheet? 

This factsheet sets out the process for making a claim for unpaid entitlements under the Fair Work Act 2009 (Cth) (the FWA) in the Federal Circuit and Family Court (Division 2) (the FCFC).  

This factsheet only covers claims for employees covered by the Fair Work system. See the Fair Work Ombudsman’s guidance on the Fair Work system for more information. 

What is an unpaid entitlements claim? 

You may have a claim for unpaid entitlements if your employer or former employer has not paid you any amounts you are legally entitled to, and which are connected to your employment. 

For example, your employer may have underpaid you (or not paid you at all): 

• your wages – i.e. the amount you are owed for performing work. For example, they might have paid you at the incorrect rate of pay, not paid you overtime, or not paid you penalty rates; or 
• other entitlements, for example amounts owed for leave, breaks, commission, or allowances. 

There must be a legal basis for the entitlements you say you are owed. For example: 

• the National Employment Standards (the NES) in FWA (see from s 59) – which contain the minimum safety net entitlements; 
• a contract of employment – if you have one (either written or verbal); 
• an Award or Enterprise Agreement – if such an instrument covers your employment;  
• a National Minimum Wage Order – if one applies; and/or  
• a workplace determination or equal remuneration order made by the Fair Work Commission – if one applies. 

If your employer or former employer has not paid you your entitlements, they may have contravened the following sections of the FWA: 

• section 44 – if they contravene the NES; 
• section 45 – if they contravene the term of an Award; 
• section 50 – if they contravene an Enterprise Agreement; and/or 
• section 323 – if they do not pay you in full amounts payable in relation to the performance of work. 

What should I do first? 

Letter of demand 

We recommend that before you start court proceedings, you should try to resolve your claim outside of court.   

To do so, we would recommend sending a letter of demand to the employer. Sending a letter of demand can often result in a successful outcome, without the need to take further steps. 

Generally, a letter of demand for unpaid entitlements should include the following: 

• the background to your claim – i.e. what has happened to date; 
• the unpaid entitlement/s claimed and its legal basis – e.g. overtime under your contract of employment; 
• the amount you are claiming; 
• a demand for payment of the amount by a specified date; and 
• the next steps you intend to take if the employer does not pay you the amounts demanded – e.g. starting court proceedings. 

Contact the FWO 

You may wish to raise your concerns about unpaid entitlements with the Fair Work Ombudsman (the FWO) by submitting an online enquiry or calling them. The FWO may be able to help you to resolve your unpaid entitlements claim without you having to commence court proceedings. 

Contact the ATO 

If your matter relates to superannuation, you can make a complaint to the Australian Taxation Office (the ATO). 

What if I can’t resolve the matter outside of court? 

If you cannot resolve the matter outside of court, you may wish to consider starting court proceedings. 

Before starting proceedings, you should consider that court proceedings are likely to be stressful and time-consuming and can take many months from start to end. If you are representing yourself, you will also need to prepare court documents, prepare evidence, and appear at court hearings. You will also have to pay court fees, unless you can get a fee waiver, and there is a risk (although limited) that you will have to pay the employer’s legal costs in some situations. 

Time limit for starting proceedings 

The time limit for starting a court proceeding claiming unpaid entitlements is 6 years from the date that the entitlement was meant to be paid. 

For example, if you were not paid an amount that was due to be paid on 1 July 2024, you must start court proceedings in relation to claiming that amount by 1 July 2030.  

This time limit is calculated from each separate occasion or instance where you are claiming an unpaid entitlement. For example, if you were paid the incorrect rate of pay for an entire year, every pay period in that year would be a separate instance when you are calculating your time limit to start proceedings. For this reason, it is often useful to focus on the first instance of an unpaid entitlement and use that as a deadline to give yourself for when you need to commence any proceeding. This ensures that you stay within the time limit for every unpaid entitlement that comes after that initial date. 

Where should I start court proceedings? 

You can start an unpaid entitlements claim in the FCFC. 

If your claim is less than $100,000 (previously $20,000 before 1 July 2023), you may choose to commence proceedings under the FCFC’s small claims procedure. The procedure is more informal than under the general Fair Work division, making it more accessible to self-represented litigants.  For example, matters are managed by a registrar rather than a judge, and companies cannot be legally represented without the court’s permission. For more information, see the FCFC’s guidance. 

If your claim is for $100,000 or more, or you do not want to proceed under the small claims procedure, you could start proceedings in the general Fair Work division of the FCFC. 

You could also start proceedings in the Federal Court of Australia (FCA) – however, the FCA generally only hears claims that are large and/or complex. 

In Queensland, you may be able to commence proceedings in the Queensland Industrial Relations Commission (QIRC), Industrial Magistrates Court of Queensland, or the Magistrates Court of Queensland. This is not covered in this factsheet, but you can see the QIRC’s guidance for more information. If you are in another State or Territory, you should seek advice about whether you can commence proceedings outside the Federal Courts system. 

How to make a small claims application 

To apply to the FCFC under the small claims procedure, you must file: 

1. an Application form – Fair Work Division;  and 
2. a Form 5: Small claim under the Fair Work Act 2009, annexing any supporting evidence.  

Once you have completed these forms, you will need to file your application with the Court. This can be done online through the court’s electronic filing system, in person or, in certain circumstances, by email.  

When you file your documents, you will need to pay a filing fee. A list of the payable fees is available on the FCFC’s website. In some circumstances, you may be exempt from paying court fees, for example if you are a concession card holder or experiencing financial hardship. Further information on fee exemptions, see our fee waiver guide.  

In your forms, you will need to outline your claim for unpaid entitlements and identify the correct party (or parties) to bring the proceedings against (usually your employer). In certain circumstances, you may be able to bring proceedings against other people (e.g. a director, human resources manager, etc.) involved in the underpayments under the accessorial liability provisions (FWA s 550).   

After filing your forms, you must ‘serve’ the application on your employer along with any other party you have commenced proceedings against (known as the respondent/s). This means providing a copy to your employer so they can respond to your claims. This must be done at least seven days before the date of the first hearing. After the documents have been served, you will need to complete an Affidavit of service. Further information about service is available in our service factsheet.  

Small claims hearings 

Generally, your first court date will be within few months of your claim being filed. Small claims matters may be resolved at the first hearing. However, you may be ordered to attend a conciliation conference, or the hearing may be adjourned (postponed) to a later date. You may be asked to do certain things before your next hearing, for example, file more evidence or documents.      

If your matter is referred for a conciliation conference, you must attend and participate in the process. A conciliation conference is a type of court-ordered mediation and allows you and the employer to meet and work with a Registrar in an attempt to come to a resolution with each other without the need to continue through a formal court process. You should be prepared to present your case at the conciliation conference and have a general idea of what you would be prepared to accept to resolve the dispute. If your matter is resolved at the conciliation conference stage, you will not need to attend the final hearing before a judge.  

If you are not able to resolve the matter through conciliation or at the first hearing, your claim will generally be heard and decided by a judge. You may need to attend a directions hearing or mention before your final hearing to set up a timeline for next steps in your proceedings. 

How to make a claim in the Fair Work Division  

For claims for unpaid entitlements over $100,000, or where you do not elect to be covered by the small claims procedure, proceedings should instead be commenced in the Fair Work Division of the FCFC.  

To commence proceedings, you will need to file and serve: 

1. an Application form – Fair Work Division; and  
2. an affidavit outlining your statement of facts and including any documentary evidence you intend to reply upon.  

Alternatively, statement of claim or points of claim may be filed with the Application form instead of an affidavit. This should be done in accordance with Part 16 of the Federal Court Rules 2011 (Cth). 

Please see above under “How to make a small claims application” for information about accessorial liability, filing and serving.  

Fair Work hearings 

After your documents have been filed, you will be given a first court date. This will be a directions hearing to set up a timeline for your court proceedings. A final court date may be set in addition to other orders such as when you need to file certain documents.  

You may have further directions hearings or an interlocutory hearing to deal with a specific issue before your final hearing. The final hearing is where you present your case to the judge. Further information on what to expect at different hearings is available on the FCFC’s website. You may also be ordered to attend a conciliation conference before the final hearing.  

Outcomes of unpaid entitlements claims 

You may be able to settle your dispute with your employer through informal negotiation with your employer or a court-ordered conciliation if you have commenced proceedings.  

However, if your claim is not able to be resolved through alternative dispute resolution, then your matter will be decided by the court. 

The court may order that part or all of your claimed unpaid entitlements be paid by your employer. For information on how to enforce an order, see Enforcement of monetary decisions in the Federal Circuit and Family Court. 

However, if you are unsuccessful, in limited circumstances, the court may order you to pay the other party’s legal fees (also known as costs). Generally, parties in Fair Work matters pay their own costs regardless of the outcome. However, you may be liable to pay costs if the proceedings were started vexatiously or without reasonable cause. 

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.