Fair work: I want to apply

If you could not resolve your dispute at the Fair Work Commission or with other assistance, you may seek the assistance of the Court. 

In the following types of matters, you need to obtain a certificate from the Fair Work Commission before filing an application with the Court:

• general protections claims (section 370 of the Act)
• unlawful termination claims (section 778 of the Act), and
• sexual harassment claims that originated as a sexual harassment dispute application in the Fair Work Commission (section 527T of the Act).   

In relation to general protections and unlawful termination claims, you must commence proceedings within 14 days of the date the Fair Work Commission issues its certificate. Generally sexual harassment disputes must be brought within 60 days of the date the Fair Work Commission issues its certificate. 

Seeking legal advice

You should seek legal advice about your matter as soon as possible. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. Industrial law can be complex and it is important to obtain independent legal advice in relation to your situation. 

A community legal centre or legal aid may be able to assist you with advice. 

The Registry may also be able to provide you with information on legal assistance that may be available.

What type of application do I file?

The forms and documents you file to apply to the Court can vary depending on what type of application is most suitable for your issue. Generally, Fair Work applications fall into the following categories:

Small claims

The Court has a small claims jurisdiction (along with the magistrates court in each state and territory), for claims of less than $100,000 and to settle some disputes regarding fixed term contracts and whether an employee was a casual upon commencement of their employment.

Small claims is faster and more informal than other court proceedings. It provides a more affordable option to resolve your dispute if you have tried other options like negotiating with your employer (or former employer) and mediation. Generally with a small claims application, neither party has a lawyer (both parties are unrepresented) unless a party has leave of the Court (this means asking the Court’s permission).

To apply for unpaid wages and entitlements under the small claims process you must file: 

• an Originating Application - Fair Work Division, and
• a Form 5: Small claim under the Fair Work Act 2009 (subrule 31.11 of the Rules), and
• any other material relied on, including supporting documents such as:
  • your contract of employment
  • payslips
  • timesheets
  • bank account statements
  • statements from your superannuation fund, and
  • a spreadsheet / table setting out your calculations. 

To apply under the small claims process in relation to disputes about fixed term contracts (section 548(1B) of the Fair Work Act) or disputes about whether a person was a casual employee (section 548(1C) of the Fair Work Act) you must file: 

• an Originating Application - Fair Work Division, and
• a completed Form 5A: Small claims under the Fair Work Act 2009 (subrule 31.11 (2), and  
• any other material relied on, including supporting documents. 

Preparing your small claim

You will need to provide enough details about your claim so that the Court and your employer (or former employer) can understand the claim. If you are claiming more than one entitlement, you must include details of the different entitlements and explain how you have performed your calculations. Timesheets and evidence of how you calculated your claim are helpful to the Court. For example, if you believe you are owed an amount for wages and another amount for annual leave, set out the two separate entitlements and the calculation for each of them. 

Be sure to correctly identify your employer (or former employer). Refer to your employment contract or payslips to see who your employer is (or was). The employer will be referred to in the application as the ‘respondent’. 

You do not need to use ‘legal language’ when setting out the details of your claim. You should describe in your own words what happened, making sure to include all the important points of your claim. You will need to provide supporting evidence, so gather all the relevant documents before you proceed. 

The Fair Work Ombudsman’s website contains some additional information regarding small claims.

Adverse action

Another Fair Work application relates to a breach of the general protections provisions in the Fair Work Act. 

For a claim alleging dismissal in contravention of a general protection, you must file: 

• an Originating Application - Fair Work Division, and
• a Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (subrule 31.03 of the Rules), and
• a certificate from the Fair Work Commission issued pursuant to section 368 of the Fair Work Act that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful (unless an interim injunction is being sought), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit. You should ensure that the Application, so far as practicable, includes details of the loss you are claiming you have suffered because of the alleged contravention, and how you calculated that loss. 

You should be aware that you have 14 days from the date of the certificate issued by the Fair Work Commission to commence your proceedings in the Court. 

Unlawful termination

For a claim alleging unlawful termination, you must file:

• an Originating Application - Fair Work Division, and
• a Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment (subrule 31.04 of the Rules), and
• a certificate from the Fair Work Commission under section 776 that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful (unless an interim injunction is being sought), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit.

Contravention of a general protection

For a claim alleging breach of a general protection (not involving dismissal), you must file: 

• an Originating Application - Fair Work Division, and
• a Form 4 – Claim under the Fair Work Act 2009 alleging contravention of a general protection, (subrule 31.07 of the Rules), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit.

Other matters

Application in relation to taking a reprisal under the Fair Work (Registered Organisations) Act 2009 

For a claim alleging reprisal under section 337BB of the Fair Work (Registered Organisations) Act 2009, you must file: 

• an Originating Application - Fair Work Division, and
• a Form 6 – Claim under the Fair Work (Registered Organisations) Act 2009 alleging reprisal (subrule 31.09 of the Rules), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit. 

Other alleged contraventions of the Fair Work Act 2009 

If you make an application regarding any other alleged contravention of the Fair Work Act 2009, you must file: 

• an Originating Application - Fair Work Division, and
• either:
  • an affidavit, or
  • a statement of claim or points of claim, and
• any other documents or evidence you want to rely on. 

You may need to prepare an Affidavit to support your application. If you need to file an affidavit, see the fact sheet Preparing an affidavit. 

What do I have to pay to start a proceeding?

You will need to pay a filing fee to the Court when you file the application.

In some circumstances, you may be exempted from paying court fees, for example, if you are a concession holder. You will need to apply to the Court for the exemption, using the Application for Exemption from Paying Court Fees – General. You can also apply for an exemption if paying court fees would cause you financial hardship. Use the Application for Exemption from Paying Court Fees – Financial Hardship.

For the current fees and more information about applying for a fee exemption see Fees.

The filing fee is separate from legal fees you may need to pay your lawyer if you decide to use one for your matter.

Filing with the Court

Wherever possible, you must file court documents commencing or relevant to an existing matter online using eLodgment. You may also lodge documents such as draft orders, consent orders, and case management correspondence via eLodgment.

See the Federal Court website for information on how to use eLodgment. 

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. Contact the Court if you are not sure how to file the documents.

How do I notify the respondent?

After your application has been filed, you must ‘serve’ the application on the respondent. That means you must make sure that the respondent receives a sealed version of the documents filed with the court, including sealed documents containing court dates on them.

At the first court date, if the Respondent is not in attendance, the judicial officer may ask for evidence that you have served the documents. 

In most cases, your employer will be a corporation. To serve documents on a corporation, you (or someone who serves the documents on your behalf) can serve the documents by: 

• sending the documents by registered or express post to the corporation’s registered business address, or
• leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation at the corporation’s registered office, or if there is no registered office, at the corporation’s main place of business or main office.  

If you are serving documents on a sole trader, you (or someone who serves the documents on your behalf) should serve the documents in person. 

If you cannot serve the documents in person or the documents sent by post cannot be delivered, you can apply to the Court for an order that you may serve the documents in a different way, for example, by email. This is known as ‘substituted service’. You make that application by filing an Interlocutory Application with an affidavit explaining why you need to serve the application in a different way. 

Affidavit of service 

After the documents have been served, you must complete an Affidavit of service, which you must file with the Court (using eLodgment). For a small claims matter use the Affidavit of service (Fair Work – small claims proceedings). 

The affidavit of service must be sworn or affirmed in front of a person authorised by law to witness the swearing of affidavits, such as a lawyer or Justice of the Peace. You should have a copy of the filed affidavit of service with you at the court hearing. 

Filing a response 

The respondent may choose to file a response before the first court date. If the respondent files a response, it must be filed and served within 28 days after the application was received. 

Ending the application before judgment

By consent between the parties

If you and the other party resolve your dispute at any time before the judicial officer delivers a decision, you may notify the Court that you have reached agreement. You will need to send the Court a proposed ‘consent order’ (signed by each party) that sets out that the proceedings be dismissed and any other orders you have agreed to. Either party may send the draft consent order by email, provided the other party is copied on the email. 

Discontinuance

You can choose to discontinue the application at any time before the first court date or, if the proceeding is continuing on pleadings, any time before the pleadings have closed, by filing a Notice of discontinuance with the Court. 

You will need the other party’s consent or the Court’s permission if you want to file a Notice of discontinuance if the first court date has occurred or pleadings have closed (see Rule 23.02).

Costs

Costs in Fair Work matters may only be ordered against a party in the circumstances set out in section 570 of the Fair Work Act. This includes if: 

• the party instituted proceedings vexatiously or without reasonable cause, or
• the party engaged in an unreasonable act or omission that caused the other party to incur the costs (see section 570 of the Act). 

The Court will consider application for costs if there is a failure to follow the Court’s orders or a Court Practice Direction.

If the Court makes an order for costs, costs will be in accordance with Schedule 2 of the General Federal Law Rules. However, the Court has discretion to impose different amounts and may fix the amount of costs and disbursements payable.

In small claims matters, if the applicant is successful, the Court may require the Respondent pay the Applicant’s filing fees.