Fair work: I want to apply

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.