Under section 548 of the Fair Work Act 2009, you can ask that certain applications be dealt with as a small claim proceeding.
Claims for unpaid wages and other employment entitlements up to $100,000 (plus interest)
In relation to unpaid wages and other employment entitlements, you can ask that an underpayment claim be dealt with as a small claim in the Fair Work Division of the Court if:
- the claim is for $100,000 or less; and
- you are not seeking a pecuniary penalty order;
- the claim does not relate to a period that is more than 6 years before the proceedings commenced;
- the claim relates to an entitlements:
- under the Fair Work Act – e.g. under:
- the National Employment Standards; or
- section 323 of the Fair Work Act (which may cover certain incentive-based payments and bonuses);
- under a Fair Work Instrument (e.g. a modern award or enterprise agreement, workplace determination or a Fair Work Commission order)
- because of a ‘safety net contractual entitlement’, which can include an entitlement in a contract that relates to one of the National Employment Standards or an entitlement in modern award.
- under the Fair Work Act – e.g. under:
If you are claiming unpaid wages, you can also claim:
- the costs of any filing fee you paid to commence your application;
- interest on the underpaid amounts; and
- in limited circumstances, the costs in relation to legal fees paid by you, but only if you satisfy the Court that section 570 of the Fair Work Act applies.
Other small claims proceedings
You can also ask that an application be dealt with as a small claim in the Fair Work Division of the Court if the dispute relates to the matters set out in subsection 548(1B) and (1C) of the Fair Work Act 2009 being where you apply for an order (other than a pecuniary penalty order) in connect with a dispute about:
- whether a person has contravened subsection 333E(1) (limitations on fixed term contracts)
- whether subsection 333G(1) (effect of entering prohibited fixed term contract) applies in relation to a contract
- whether a person was a casual employee of an employer when the person commenced employment with that employer.
Features of the small claims process
The small claims process is more informal than most court proceedings and is usually conducted without lawyers (unless the Court gives leave to be represented). The small claims process aims to settle disputes quickly and fairly, with minimum expense to the parties.
Rules about the conduct of small claim legal proceedings in the Fair Work Division of the Court can be found in division 31.4 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025.
How do I make a small claims application?
You should first try and resolve the dispute with your employer, as outlined in Avoiding court, before applying to the Court.
If the matter remains unresolved and you wish to make a small claims application, see I want to apply.
How small claims hearings are heard
When the application is filed, the details of the time and location for the hearing are usually written on the application.
Small claims matters will be conducted online, unless the Judge / Registrar considers it appropriate to list the matter for an in-person hearing.
Depending on the complexity of the matter, it will be listed for:
- a final hearing as soon as practicable; or
- directions hearing as soon as practicable.
Sometimes the Court will adjourn the hearing or reschedule it to a later date and ask you to do certain things before the hearing. For example, you might be asked to get further evidence for your claim.
Legal Representation
You cannot have a lawyer represent you at a hearing unless the Court permits you to (see section 548(5) of the Fair Work Act).
Lawyers seeking leave to represent clients at a hearing will need to raise this with the Court as soon as practicable.
Mediation
You will be given the option of attending a confidential mediation, if you think a mediation may assist resolve your claim. You may request a mediation at any time by emailing the Small Claims Team (smallclaims@fcfcoa.gov.au).
A mediation is a confidential process in which you try and settle the dispute with your employer / former employer.
Mediations are facilitated by a Registrar of the Court. The Registrar will encourage you to discuss the claim, review documents and try to resolve some or all of the issues before the final hearing.
At a mediation, you should be prepared to outline your case and be prepared to (if required) agree to a compromise.
The benefit of a mediation is that it resolves your claim without the need for you to proceed to a final hearing.
If the claim cannot be resolved at mediation, a final hearing date will be allocated.
What happens at a small claims final hearings?
Hearings of small claims are generally quite informal. In these hearings, the Court is not bound by the rules of evidence and may inform itself of any matter in any manner it thinks fit.
Depending on the complexity of the matter, the final hearing of your application could be on the first court date.
For more information about attending Court, see the Attending court.
Non-attendance and default judgment
If you, as the applicant, don’t attend the court hearing, the Court is likely to dismiss your application.
If the respondent does not attend the hearing, the Court will want to know that they received notice of the hearing. You will need to show the Court that you served the respondent with a copy of the application. You can do this by filing an Affidavit of service (Fair Work) which sets out the steps you have taken to serve the respondent with a sealed copy (i.e. a copy stamped by the Court) of:
If you, as the applicant, cannot show the Court that the respondent was properly served, the Court may adjourn the hearing to give you more time to properly serve the respondent.
For further information regarding service see 'Serving the application' on the Fair work: I want to apply page.
If you can show that the application was properly served on the respondent, the judge will usually consider your evidence and decide the case in the respondent’s absence.
You do not automatically get judgment against a respondent who does not attend the hearing. You will still have to prove your claim based on evidence. If the evidence convinces the judge of your claim, you may be awarded some or all of the amount claimed.
