Applying to the Federal Circuit and Family Court Small Claims Division

This resource explains what a Small Claim proceeding is and how to make a Small Claim application to the Federal Circuit and Family Court.

• What is a ‘Small Claim’?
• What are the benefits of a Small Claim proceeding?
• How to apply to the Small Claims Division of the Federal Circuit and Family Court
• What happens a Small Claims hearings?
• Orders the Federal Circuit and Family Court can make

What is a small claim?

A ‘Small Claim’ is a claim you can choose to make to the Federal Circuit and Family Court (the Court) if:

1. Your employer has underpaid you or owes you unpaid entitlements to the value of $100,000 or less; or
2. You are a casual employee, and you have a dispute with your employer about converting to full-time or part-time employment.

What are the benefits of a Small Claim proceeding?

A small claims proceeding is quicker and usually cheaper than regular court proceedings. As the Court is not bound by rules of evidence and procedure, it is more informal, and the Court may seek information about your matter in any way it considers appropriate. The proceedings are usually resolved with only one hearing.

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. Permission is not automatically granted and depends on whether certain criteria are met.

How can I apply to the Small Claims Division of the Federal Circuit and Family Court?

You can apply to the Small Claims Division of the Court if:

• you are an employee, former employee or outworker (an employee who performs work at home or a similar place) but are not an independent contractor;
• the amount you are claiming is $100,000 or less;
• the claim you are making relates to an entitlement due to you within six (6) years from the date of your application; and
• you are making a claim for an unpaid entitlement from one of the following:
  • one of the National Employment Standards;
  • a modern award;
  • an enterprise agreement;
  • a workplace determination;
  • a Fair Work Commission (FWC) order;
  • additional contractual entitlements (known as Safety Net Contractual Entitlements) for national system employees;
  • a national minimum order; or
  • an equal remuneration order.

  Examples of when you can make a claim

  You can make a claim when recovering:

  • unpaid wages, including base rate of pay and overtime;
  • unpaid leave entitlements, including annual leave;
  • unpaid penalties or allowances, e.g. public holiday pay; and
  • unlawful deductions from your pay.

  How do I apply?

  Before applying to the Court

  Before applying to the Court for your small claim, you should:

  1. calculate how much you are owed;
  2. speak to your employer;
  3. send your employer a ‘letter of demand’ which outlines your claim and gives them the opportunity to pay you your outstanding entitlements; and
  4. contact the Fair Work Ombudsman to discuss your claim.

  If this doesn’t resolve your claim, the following steps should be followed to be ready to go to court.

  Step 1: Prepare supporting information for your application

  In preparation for your application:

  1. Collect all evidence: You need to provide the Court with evidence so that the Court can decide about your claim. Evidence can include emails, pay slips, pay rate calculations, diary entries of hours worked, timesheets, rosters, witness testimony, affidavit etc. It will depend on the type of claim you are bringin.
  2. Check your entitlements: Understand where your legal entitlements come from. Is it based on the national minimum wage, a modern award, enterprise agreement etc.? If you are not sure, you can call the Fair Work Ombudsman for assistance on 13 13 94 or visit the Pay and Conditions Tool, available here: P.A.C.T Home – (fairwork.gov.au) .
  3. Calculate your claim: Present your calculations of amounts owed to you in an easy-to-understand format. This should include how much you were actually paid according to payslips, group certificates and bank statements, and how much you should have been paid.
  4. Check the legal name of your employer: Your claim needs to be against the correct legal employer. You should make sure the legal name of your employer is correct. It can be a company, sole trader or partnership.

  Step 2: Fill out the forms

  You need to fill out 2 forms:

  1. Application – Fair Work Division: You can access the application form on the Court’s website, here: Application – Fair Work Division | Federal Circuit and Family Court of Australia (fcfcoa.gov.au). Remember to tick “Yes” under the “Small claims list” heading on the first page.
  2. Claim form: You can access the claim form on the Court’s website. There are two claim forms:
     • For a small claim related to unpaid wages or entitlements, you can access the form here: Form 5 – Small claim under the Fair Work Act 2009 | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)
     • For a small claim related to a casual conversion dispute, you can access the form here: Form 5a – Small claim under the Fair Work Act 2009 – casual conversion dispute | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

  Your application should clearly outline the entitlements you claim are owed, where these entitlements come from (for example, your employment contract or modern award) and support your claim by attaching schedules or spreadsheets with your calculations.

  Step 3: File the forms and supporting documents

  Wherever possible you should file your court documents online using the eLodgement portal. Guidelines for the electronic filing of documents are available on the Court’s website. Information about preparing your documents for eFiling is available, here: https://www.fcfcoa.gov.au/pubs/preparing-docs-efiling.

  If it is not possible to file using eLodgement, you may be able to file your documents in person, by mail, or in certain circumstances by fax or email. The Court’s contact details are available on the Court’s website if you need to speak to someone about how to file your documents, here: Contact us | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

  Fees
  

  You need to pay the filing fee when you file your documents. You can view the fees on the Court’s website, by selecting “General federal law fees” and scrolling to the second heading titled “Small Claims”, here: Fees | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

  You may be exempt from paying the filing fee if you hold certain government concession cards, are experiencing financial hardship or are under the age of 18. More information is available on the Court’s website, here: https://www.fcfcoa.gov.au/gfl/forms/app-exemption-fees-general ; and here: https://www.fcfcoa.gov.au/gfl/forms/app-exemption-reduction-fin-hardship .

  Once you have filed your documents with the Court registry, sealed electronic copies of the documents will be returned to you and you will be given a hearing date for your claim .

  Step 4: Serve the forms on your employer

  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 7 days before the date of the first hearing.

  If your employer is a person, you need to:

  • give the forms to them in person; or
  • if they won’t accept the forms, put them down in their presence and explain what they are.

  If your employer is a company, you need to:

  • post the forms to the company’s registered office (address it to the “Proper Officer”);
  • take the forms to the registered office and leave them with an employee; or
  • hand the forms personally to a director of the company.

  Step 5: Let the Court know you have served the forms on your employer

  Once you have served your employer, you need to let the Court know.

  Fill in the Affidavit of Service (Fair Work) form available from the Court’s website, here: Affidavit of Service (Fair Work) | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

  File the form with the Court registry through the eLodgement portal. The affidavit must be witnessed by a qualified person (for example, a justice of the peace or a lawyer).

  Tip

  You can check the company’s registered address by searching the ASIC Register, here: Search ASIC’s Registers | ASIC.

  What happens at Small Claims hearings?

  Your claim is likely to be heard and decided on the first court date. However, you might first have to attend a mediation or a directions or mentions hearing. These usually take place in front of a Registrar of the Court, who is trained to help parties reach agreement. The Registrar will encourage you to discuss the claim, review documents and try to resolve some or all the issues before the final hearing. If a mediation is arranged, you must attend and 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) 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 heard in front of a Judge. If you do not attend the mediation, the claim could be dismissed or decided in your absence.

  If the first court date is the hearing, the judge might still order you to attend mediation, either on that day, or at a later date set by the Court. Sometimes a judge 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. Alternatively, if the case is not properly prepared, the Judge may still proceed to determine the matter on the day.

  What orders can the Federal Circuit and Family Court make?

  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 filing fees and legal fees (known as costs) – in very limited circumstances.

  Costs orders

  A costs order is where the Court orders one party to pay the other party’s legal costs. The Court may make a costs order against you if you are unsuccessful in claiming for unpaid entitlements. This may happen in circumstances where you have acted unreasonably or where the main purpose of your claim was to harass or embarrass your employer.

  More information

  For more information, you can read: