It is usually a good idea to talk to your employer before you consider starting court action to try and recover your entitlements. Your employer may not have realised that they didn't pay you the right amount.
If you are not comfortable talking to your employer, or after talking to your employer your entitlements remain unpaid, you can consider writing a letter of demand. A letter of demand is a record of how much you say is owed and makes it clear to your employer what action you may take if they don't pay.
If the business you work for changed ownership while you were working for them, you should get legal advice about whether your service is continuous. This may affect who you can claim unpaid entitlements from, and how much.
Before you talk to your employer, make sure you are clear about what you think your entitlements are.
You should spend some time preparing your thoughts and your supporting documents. The more prepared you are, the easier it will be to talk to your employer.
Some of the supporting documents you could bring with you include:
- copies of your payslips
- bank statements, from the bank your pay is deposited into
- your award or enterprise agreement, if either applies to you
- your written contract of employment, if you have one.
You could ask your employer to explain to you how your pay and other entitlements are worked out. If you think they are wrong, you can then explain why you believe you are entitled to more.
If you are still working for your employer and your employer agrees to pay you the full entitlements you are asking for, you may not need to put your agreement in writing. This is because no further action would be necessary and there was no compromise between the parties.
You should get legal advice if your employer is offering to pay you a lower amount or wants you to sign an agreement.
If you were dismissed, made redundant, or resigned, and you are claiming unpaid entitlements, your employer may want you to enter into an agreement that releases them from any further claim by you. For example, your employer may agree to pay you some or all of your entitlements if you agree in writing not to make a claim against them related to being dismissed.
A document that releases both or either of you and your employer from other claims is often called a 'deed of settlement and release' or a 'deed of release'.
You should get legal advice about the terms of any agreement with your employer.
You can both sign and date the agreement. Don't forget to make a copy of the agreement for your own records. Having a written agreement is helpful if you later need to enforce the agreement in court. For more information about enforcing agreements, see After court, in Wages and Entitlements.
Sample: Sample deed of release
You should get legal advice before signing an agreement or deed of release. You may be signing away other rights you have.
For more information on what to put in a settlement agreement, see Reading and writing legal documents.
If your employer still has not paid you after you told them that you are owed wages or entitlements, you can try writing a letter of demand.
Writing to your employer may avoid the need to go to court and can save you time and money.
If you start a court case, the court may want to know what steps you have taken (if any) to try and resolve the issue before going to court.
A letter of demand is a letter to your employer outlining what you think your entitlements are, how much you think you are owed and when you would like to be paid. It is a good idea to send your letter of demand by registered post. Don't forget to keep a copy of the letter for your own records.
There is no set format for writing a letter of demand.
Sample: Sample letter of demand
If your employer still hasn't paid you after you have sent a letter of demand, you can contact the Fair Work Ombudsman (FWO). The FWO can investigate complaints against employers and in some cases take further action.
If you have a complaint about your workplace, the FWO can investigate and help you settle your dispute with your employer by:
- explaining workplace laws
- offering assistance in resolving your complaint
- organising mediation.
If, after contacting the FWO, you can reach an agreement with your employer you can avoid the expense and stress of going to court.
To find out more about asking the FWO for assistance, go to the Resolving disputes with our help page on the FWO website.
If it has been more than six years since your entitlement was owed, you should get legal advice. You can still complain to the FWO, but there is a limit on what action the FWO can take.
The FWO will usually tell your employer your name and what the complaint is about. The FWO will normally give any documents they get from you, to your employer. The FWO will also give you any documents they receive from your employer.
If you do not want your employer to know that it was you who made the complaint you can ask that the FWO keep your identity confidential (secret). They are more likely to agree to this if you are still working for your employer or there are exceptional circumstances, for example a threat to your safety.
If the FWO later decides that there is a good reason to reveal your identity to your employer, they will talk to you first. If you still don't want your identity revealed, the FWO may decide not to continue the investigation.
When you request assistance, the FWO will contact you to explain the complaints process, give you advice on your request and try to help you resolve the issue with your employer.
For more information about what happens when you make a complaint, go to Working with you to resolve workplace issues page on the FWO website.
As part of the complaints process, the FWO may arrange mediation between you and your employer. Mediation is an informal way of resolving your complaint with your employer. It is a free and voluntary process.
For more information on the mediation process, go to Working with you to resolve workplace issues page on the FWO website.
The FWO does not investigate every complaint. It may investigate the complaint if it involves very serious issues or it is in the public interest.
An investigation by the FWO may result in:
- your employer paying you
- the FWO helping you start a court case
- the FWO taking your employer to court for a breach of workplace laws.
For more information about what might happen if your complaint is investigated, go to the Workplace investigations page on the FWO website.
After receiving your complaint, the FWO may make a decision you don't agree with, such as a decision not to investigate your complaint or to take no further action after an investigation.
For more information about how to request a review, see the FWO website.
Most cases for recovery of wages and entitlements are started in the Federal Circuit and Family Court of Australia. Cases that are more complex may be started in the Federal Court of Australia.
You may be able to start a case to recover unpaid wages or entitlements in some NSW courts, such as the Chief Industrial Magistrate's Court or the Local Court of NSW. This website only has information about the process in the Federal Circuit and Family Court of Australia.
The Federal Circuit and Family Court of Australia
The Federal Circuit and Family Court of Australia can hear claims up to $100,000 for unpaid wages and entitlements made by national system employees.
Small claims
Cases heard in this Court for recovery of wages and unpaid entitlements totalling $20,000 or less can use a small claims procedure. The small claims procedure allows cases to be heard with less formality.
For more information, see Going to the Federal Circuit and Family Court of Australia.
The Federal Court of Australia
The Federal Court of Australia can also hear claims for unpaid wages and entitlements made by national system employees. Unlike in the Federal Circuit and Family Court of Australia, the Federal Court of Australia does not use the small claims procedure. Fees in the Federal Court of Australia are generally higher than fees in the Federal Circuit and Family Court of Australia.
This website does not have information about claims for unpaid wages and entitlements in the Federal Court of Australia. If you want to start a case in the Federal Court of Australia, you should get legal advice.
If your employer is having financial problems, they may:
- become bankrupt (if they are an individual)
- go into liquidation (if they are a company).
This means that they don't have enough money to pay their debts and will usually have to stop trading. If this happens they may not be able to pay all of the wages or entitlements that you are owed.
You may be able to recover some of what is owed to you if your employment ended because your employer went into liquidation under the:
- General Employee Entitlements Redundancy Scheme (GEERS), if your employer went bankrupt or into liquidation before 5 December 2012, or
- Fair Entitlements Guarantee (FEG) if your employer went bankrupt or into liquidation on or after 5 December 2012
To be eligible under either GEERS or FEG, your employment needs to have ended:
- because your employer became insolvent, or
- less than six months before the appointment of an insolvency practitioner, or
- on or after the appointment of an insolvency practitioner.
The time limit for making a claim under GEERS or FEG is 12 months from the date you were dismissed or the date your employer went bankrupt or into liquidation, whichever is the latest.
You may be able to recover:
- up to three months unpaid wages
- unpaid annual leave
- up to five weeks unpaid payment in lieu of notice
- unpaid long service leave
- up to four weeks redundancy pay for each full year of employment.
If you want to make a claim under GEERS or FEG, you should get legal advice.
You can also:
- contact the GEERS/FEG Hotline on 1300 135 040
- go to the Department of Employment website for information on eligibility and the application process.
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