About the small claims court

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Learn more about the small claims court and what types of disputes can be resolved there.

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The small claims court process

The small claims court process is a way for employees to take their own legal action to resolve certain workplace disputes, for example, to recover unpaid entitlements.

Usually, the:

The small claims process is usually faster, cheaper and more informal than other court proceedings. Hearings at the small claims court are usually in front of a registrar or other representative of the court first and not a judge. Matters are usually resolved with only one hearing.

Learn more about what to expect at Attending the small claims court.

Usually, both parties represent themselves. If either party wants to be represented by a lawyer, they must get permission from the court.

Small claims proceedings can be lodged in the Federal Circuit and Family Court of Australia or the magistrate’s court in your state or territory. For more information, read about the Types of courts.

In some cases, we may provide you with help to lodge a small claims application.

When to use the small claims court

The small claims process can be used to resolve claims about underpayments up to $100,000.

The dispute must relate to entitlements covered by the Fair Work Act. These can include:

An application for a small claims proceeding must be made within 6 years of the date of the contravention.

Claims about underpayments

The small claims process in the Federal Circuit and Family Court of Australia and in state or territory magistrates and local courts, can deal with claims about the payment of money.

For example, the claim could be about being underpaid:

  • a base pay rate
  • penalty rates
  • allowances
  • leave entitlements.

Claims can also be about unlawful deductions from an employee’s pay or unpaid superannuation.

An applicant may also be able to claim interest in some circumstances.

In some cases, where an applicant is successful in their claim, the court may allow them to also claim any court filing fees paid.

Example: Employee taking a pay dispute to the small claims court

Max is a casual barista at a café and regularly works weekends. His pay rates and entitlements come from the Restaurant Award.

Max believes he’s been underpaid because he hasn’t been paid the weekend penalty rates under the Restaurant Award.

Max has spoken to his boss, Alison, and has sent her a letter requesting back pay, but he hasn't been able to resolve the dispute.

Max reads the information about going to the small claims court on our website and decides to take further action.

Max uses his pay slips and timesheets to calculate how much he’s owed. The amount he’s calculated is less than $100,000 so he decides to make a small claims application in the Federal Circuit and Family Court of Australia.

Max gathers the documents to support his claim and then seeks independent legal advice about making his application.

Types of courts

Individuals can choose from 2 different types of court:

Each one provides similar services.

You can read more about the different courts for each state and territory on their websites:

Tip: Our role at the Fair Work Ombudsman

We can’t help you decide which court to choose.

For help deciding which type of court to choose, you should consider getting independent legal advice.

For more information on what services are available, visit Legal help.

Example: Employee gets advice about which court to choose

Anita works as a mechanic at a vehicle smash repairs business in Melbourne. She’s covered by the Vehicle Award.

Anita believes she’s been underpaid by her employer. She’s tried to resolve the issue multiple times but has been unsuccessful.

Anita goes through the small claims information on our website and decides that she’ll make a claim.

Anita learns that she can make a small claims application in either:

  • the Federal Circuit and Family Court of Australia, or
  • the Magistrates Court of Victoria.

Anita learns that different forms and processes apply depending on which court the small claim is made in.

Anita isn’t sure which court to choose so she decides to get legal advice to help her decide. She visits Legal help to find a legal advice service.

Before making a small claim

Before starting a small claims application, it’s important to consider if there are other options for resolving the workplace dispute.

Discuss the problem

Problems in the workplace can usually be resolved quickly at a workplace level when employers and employees work together to find a solution.

Even if you’ve left your employment, it can be helpful to try talking or writing to your employer to resolve the problem.

Learn more about how to start the conversation and find helpful resources at Raising your problem in the workplace.

Put it in writing

If the dispute can’t be resolved by having a conversation, it can be helpful for you to send a formal letter to your employer.

The letter should set out what the dispute is about and what entitlements are owed. It should also include notice that a small claim will be made if the dispute isn’t resolved by a set date.

An example letter can be found in the Employee's guide to resolving workplace issues Employee's guide to resolving workplace issues.

Sending a letter gives your employer a final opportunity to resolve the dispute without going to court.

Tip: Keep records

Keep a copy of the letter or email you send and any response you get back.

Taking further action

If the dispute can’t be resolved at the workplace level, you may consider taking further action to resolve the issue. This could include:

  • making a small claims application
  • applying to the Fair Work Commission
  • getting your own legal advice.

Tip: Resolving disputes through the Fair Work Commission

The Fair Work Commission (the Commission) is the national workplace relations tribunal.

In some cases, if a dispute can’t be resolved in the workplace, an employee or employer can apply to the Commission for help. The dispute resolution clause in an award can also be used to resolve some issues.

Learn more about how to apply for help on the Commission’s website at Issues we help with.

Source reference for page: Fair Work Act 2009 sections 544–545

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