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.
