If you have been served with an Application – Fair Work, this means an employee (or former employee) has filed an application in the Fair Work division of the Court. The person who filed the application with the Court is known as the applicant and you (as the other party) are known as the respondent.  

You should read the application as soon as possible. 

What should I do next? 

Small claims 

Small claims is faster and more informal than other court proceedings. If a small claim application has been served on you, you have various options. 

You might admit the claim or negotiate an agreement with the employee (or former employee) and agree to pay the money as a lump sum or in instalments. 

You might dispute the claim, either in part or in full. In that case, you should prepare a Response – General federal law, or defence, and gather any supporting documents.  

The application served on you will include a hearing date. You might decide not to respond or attend the hearing. At the hearing, the Court might make orders against you in your absence if the applicant can show that you were aware of the proceedings and that they have a valid claim. 

If you do respond to the claim, you will need to file a response and any supporting documents within 28 days after the day on which you were served. If the hearing date is less than 28 days from when you are served, you should still try to file your response at least a few days before the hearing.  

If you cannot file a response before the hearing because the applicant has not given you enough time to prepare your response, you should still attend the hearing and tell the Court that you have not had enough time to prepare a response. You should be ready, however, that a judge might still decide to hear the case on the day. 

Generally with a small claims application, you cannot have a lawyer represent you at the hearing(s) (and neither can the applicant) unless you have leave of the Court (this means asking the Court’s permission). 

For more information about the small claims process see, Small claims. 

Other Fair Work applications 

For other Fair Work applications you may choose to file a Response – General federal law before the first court date. The application served on you will include details of the first court date. 

If you file a response, you must file and serve the response within 28 days after receiving the application. You may also need to file an Affidavit - General federal law and migration with your response. 

If you do not file a response, you must file and serve a Notice of address for service before the hearing.  

You (or your lawyer) must attend court on the first court date. If you don’t attend, the Court could make orders against you.  

Filing with the Court 

Wherever possible, you must file court documents online using eLodgment. See the Federal Court website for guidelines. 

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. 

Any documents filed with the Court must also be served on the applicant. You can serve documents by delivering them in person, posting them, emailing them or faxing them.  

Seeking legal advice 

You should seek legal advice 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 some independent legal advice in relation to your situation. 

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 some cases, you need to obtain a certificate from the Fair Work Commission before filing an application with the Court: see, e.g. sections 370 and 778 of the Fair Work Act 2009 (unlawful termination applications).

If you have already been issued a certificate from the Fair Work Commission saying that conciliation hasn't resolved your dispute, you must make your application to the Court within 14 days of the Fair Work Commission issuing the certificate. If the Commission member who did your conciliation told you that you don't have a good case, or it doesn't have merit, or doesn't have 'reasonable prospects of success', or if they wrote this on your certificate, you should get urgent legal advice before making a claim in the Court. 

Seeking legal advice

You should seek legal advice about your application 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 some independent legal advice in relation to your situation. 

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

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 over the conversion of casual employment to full-time or part-time 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, you do not have a lawyer (you are unrepresented) and neither does the other party (the respondent) unless you have leave of the Court (this means asking the Court’s permission).

To apply for small claims you must file:

• a completed Application - Fair Work Division; and
• a completed Form 5: Small claim under the Fair Work Act 2009 - paragraph 30.11(b); and
• the supporting documents.

If the application relates to the conversion of casual employment, use Form 5A: Small claim under the Fair Work Act 2009 casual conversion dispute—paragraph 30.11(b) instead of Form 5.

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 reached your calculation. 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.

Adverse action

If the issues in dispute do not fit the criteria for a small claim, you can still make an application to the Court for unfair dismissal, termination of employment or contravention of a general protection, these are known as ‘adverse actions’ and include:

Dismissal in contravention of general protection

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

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

You do not need to file an affidavit.

Alleging unlawful termination

For a claim alleging unlawful termination, you must file:

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

You do not need to file an affidavit.

Other alleged contravention of a general protection

For a claim alleging breach of a general protection, you must file:

• a completed Application - Fair Work Division, and
• a completed Form 4 – Claim under the Fair Work Act 2009 alleging contravention of a general protection, 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 (Registered Organisations Act)

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

• a completed Application - Fair Work Division, and
• a completed Form 6 – Claim under the Fair Work (Registered Organisations) Act 2009 alleging reprisal, 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

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

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

Preparing an affidavit 

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?

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 form 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 form for Exemption from Paying Court Fees – Financial Hardship.

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

Filing with the Court

Wherever possible, you must file court documents online using eLodgment. You can follow these instructions on how to use eLodgment or see the Federal Court website.

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.

Serving the application

After your application has been filed, you must ‘serve’ the application on the respondent. That means you must make sure that the respondent receives the filed documents. At the hearing, the judge will often 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 leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation. You can leave the documents:

• at the corporation’s registered office; or
• if there is no registered office, at the corporation’s main place of business or main office.

You can deliver the documents in person or send them by registered or express post.

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 Application in a proceeding with an accompanying Affidavit explaining why you want to serve the application in a different way.

After the documents have been served, you will need to complete an Affidavit of service, which you should file with the Court (using eLodgment). 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.

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. The response is usually filed after the first court date if the case is proceeding.

Ending the application before judgment

By consent between the parties

If you and the other party resolve your dispute at any time before the judge delivers a decision, you may notify the Court that you have reached agreement. You will need to send the Court a draft of what you have agreed, signed by each party and stating that it is a ‘consent order’. Either party may send the draft order by email, provided the other party is copied on the email.

Discontinuance

An applicant can choose to discontinue the application at any time by filing a Notice of discontinuance with the Court.

You can use the small claims process to recover employment entitlements up to $100,000 and to settle some disputes over the conversion of casual employment to full-time or part-time employment.

Under section 548 of the Fair Work Act 2009, you can ask that an application for compensation 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  
• the compensation is for one of the entitlements mentioned in subsection 548(1A), and
• the claim is not statute barred by the operation of section 544.

Broadly, those entitlements relate to:

• a term of a National Employment Standard
• a term of a Modern Award
• a term of an enterprise agreement
• a workplace determination
• a national minimum wage order
• an equal remuneration order
• a safety net contractual entitlement.

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 conversion of casual employment to full-time or part-time employment described in subsection 548(1B) of the Fair Work Act 2009. For more information see www.fairwork.gov.au/casualconversion.

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. Matters are usually resolved with only one hearing.

Rules about the conduct of small claim legal proceedings in the Fair Work Division of the Court can be found in division 30.4 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021.

How do I make a small claims application?

If you have tried other ways to resolve your dispute, like those outlined in Avoiding court you may apply to the Court.

For more information about how to make a small claims application see I want to apply.

What happens at a small claims 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.

When the application is filed, the details of the time and location for the hearing are usually written on the application.

You cannot have a lawyer represent you at the hearing(s) unless the Court permits you to.

The claim is likely to be heard and decided on the first court date. However, you might first have to attend mediation or attend a directions or mention hearing. These usually take place in front of a registrar of the Court, who is specially trained to help disputing parties reach agreement. 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. If mediation is arranged, you must attend, and you will be expected to participate in the mediation process. This means being ready to argue your case and having all your evidence ready.

In some cases, the claim is resolved at mediation (or other first hearing date) and there is no need to proceed to a final hearing. If the claim cannot be resolved at mediation (or other first hearing), a later hearing date will be set (if it has not already been set) and the claim will be returned to the small claims list for final hearing by the presiding registrar.

If the first court date is the hearing, the Court might still order you to attend mediation, either on that day, or at a later date set by the Court. If you do not attend the mediation, the claim could be dismissed or decided in your absence. 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.

For more information about attending Court, see the Attending court.

Non-attendance

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.

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. 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.

Depending on the type of issue/s, there are a number of ways to attempt to resolve your dispute before coming to Court.

Use the dispute resolution procedures in your award or enterprise agreement

The quickest and easiest way for you to resolve a dispute with your employer is to use the dispute resolution options available at your workplace. Employment contracts, modern awards and enterprise agreements often contain a dispute resolution procedure that should be followed to help resolve disputes.

If you are no longer working for the employer, you could still try talking to them or writing to them to try to resolve the matter by agreement.

If you cannot resolve the dispute informally, you might send a formal letter to your employer (or former employer) asking that they pay you what you believe you are owed. The letter should outline what the dispute is about and the different entitlements you believe are owed. You should explain how you reached your calculation. If your claim is under $100,000, you should be clear that you intend to start a small claim legal proceeding if the matter is not resolved by a set date. Sending a letter creates a final opportunity to resolve things without legal proceedings.

Settling a dispute privately has many benefits. It can save time and is often less stressful and costly than going through a formal legal process. See the Fair Work Commission’s page Resolving issues at the workplace for more information.

Fair Work Ombudsman

The Fair Work Ombudsman aims to help you understand your rights and responsibilities at work. They work with employees, employers and the community to educate and encourage compliance with Australia's workplace laws.

The Fair Work Ombudsman provides lots of resources to help resolve workplace issues.

Fair Work Commission

If you are unable to resolve your dispute at the workplace directly or through mediation, you can file an application with the Fair Work Commission.

The following pages on the Fair Work Commission website provide information about how the Commission can assist with resolving disputes:

• Disputes at work – General protections (unlawful actions)
• How the Commission works – Resolving disputes
• How the Commission works – Lodge an application

Other legal assistance

A community legal centre or legal aid may also be able to assist you with advice about how to resolve your dispute or other options for getting help from a third-party mediator. For more information about getting legal assistance see Find a lawyer.

What happens if I can’t resolve the dispute?

If you cannot resolve your dispute at the Fair Work Commission or with other assistance, you can seek the assistance of a suitable court. For more information see Small claims and I want to apply.

What is Fair Work?

The Fair Work system is Australia’s national workplace relations system. It started on 1 July 2009 and was created by the Fair Work Act 2009.

It covers the majority of workplaces in Australia. Employers and employees in the national system all have the same workplace rights and obligations, regardless of which state or territory they work in. You can find out more about the Fair Work system and who it covers on the Fair Work Ombudsman’s website.

The Federal Circuit and Family Court of Australia (the Court) has jurisdiction (along with the Federal Court of Australia) to hear claims under:

• the Fair Work Act 2009
• section 337BB of the Fair Work (Registered Organisations) Act 2009 (allegation of reprisal); and
• section 81 of the Federal Safety Commissioner Act 2022.

The Court also has jurisdiction over any civil matter arising under the Work Health and Safety Act 2011.

The Court is not the only court that deals with matters covered by the Fair Work Act. Depending on the type of issue, it may not be the most appropriate court to commence a proceeding. Section 539 of the Fair Work Act (contravention of civil remedy) is an example of a provision which identifies the courts in which proceedings may be commenced.

How can I resolve my Fair Work dispute?

Depending on the type of issue/s, there are a number of ways to attempt to resolve your dispute before coming to court. In some cases, you need to obtain a certificate from the Fair Work Commission before you can file an application in the Court. For more information see Avoiding court.

If you can’t resolve your dispute, the Court has a small claims process which is more informal than most court proceedings and is usually conducted without lawyers. The process aims to settle disputes quickly and fairly, with minimum expense to the parties. Matters are usually resolved with only one hearing. See Small claims.