If you have been served with an Originating Application – Fair Work, this means an employee (or former employee) has filed an application in the Fair Work division of the Court. The person who filed the application with the Court is known as the applicant and you (as the other party) are known as the respondent.  

You should read the application as soon as possible. 

What should I do next? 

Small claims 

Small claims is faster and more informal than other court proceedings. If a small claim application has been served on you, you have various options. 

You might admit the claim or negotiate an agreement with the employee (or former employee) and agree to pay the money as a lump sum or in instalments. 

You might dispute the claim, either in part or in full. In that case, you should prepare a Response – General federal law and gather any supporting documents.  

The application served on you will include a hearing date. You might decide not to respond or attend the hearing. At the hearing, the Court might make orders against you in your absence if the applicant can show that you were aware of the proceedings and that they have a valid claim. 

If you do respond to the claim, you will need to file a response and any supporting documents within 28 days after the day on which you were served. If the hearing date is less than 28 days from when you are served, you should still try to file your response at least a few days before the hearing.  

If you cannot file a response before the hearing because the applicant has not given you enough time to prepare your response, you should still attend the hearing and tell the Court that you have not had enough time to prepare a response. You should be ready, however, that a judicial officer might still decide to hear the case on the day. 

Generally with a small claims application, you cannot have a lawyer represent you at the hearing(s) (and neither can the applicant) unless you have leave of the Court (this means asking the Court’s permission). 

For more information about the small claims process see, Small claims. 

Other Fair Work applications 

For other Fair Work applications you may choose to file a Response – General federal law before the first court date. The application served on you will include details of the first court date. 

If you file a response, you must file and serve the response within 28 days after receiving the application. If a statement of claim or points of claim are filed with the application, you will need to file a defence or points of defence with the response. You may also make a cross-claim. 

If an affidavit is filed with the application, you will need to file an Affidavit - General federal law and migration with your response. 

If you do not file a response, you must file and serve a Notice of address for service before the hearing.  

You (or your lawyer) must attend court on the first court date. If you don’t attend, the Court could make orders against you.  

Filing with the Court 

Wherever possible, you must file court documents online using eLodgment. You may also eLodge documents regarding a proceeding including draft orders, consent orders, and case management correspondence. See the Federal Court website for information on how to use eLodgment. 

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 response

Any documents filed with the Court must also be served on the applicant. 

To serve a response and your other filed documents on the applicant, use the address for service contained in their application. 

Seeking legal advice 

You should seek legal advice about your matter 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. The 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. 

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 the following types of matters, you need to obtain a certificate from the Fair Work Commission before filing an application with the Court:

• general protections claims (section 370 of the Act)
• unlawful termination claims (section 778 of the Act), and
• sexual harassment claims that originated as a sexual harassment dispute application in the Fair Work Commission (section 527T of the Act).   

In relation to general protections and unlawful termination claims, you must commence proceedings within 14 days of the date the Fair Work Commission issues its certificate. Generally sexual harassment disputes must be brought within 60 days of the date the Fair Work Commission issues its certificate. 

Seeking legal advice

You should seek legal advice about your matter 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 independent legal advice in relation to your situation. 

A community legal centre or legal aid may be able to assist you with advice. 

The Registry may also be able to provide you with information on legal assistance that may be available.

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 regarding fixed term contracts and whether an employee was a casual upon commencement of their 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, neither party has a lawyer (both parties are unrepresented) unless a party has leave of the Court (this means asking the Court’s permission).

To apply for unpaid wages and entitlements under the small claims process you must file: 

• an Originating Application - Fair Work Division, and
• a Form 5: Small claim under the Fair Work Act 2009 (subrule 31.11 of the Rules), and
• any other material relied on, including supporting documents such as:
  • your contract of employment
  • payslips
  • timesheets
  • bank account statements
  • statements from your superannuation fund, and
  • a spreadsheet / table setting out your calculations. 

To apply under the small claims process in relation to disputes about fixed term contracts (section 548(1B) of the Fair Work Act) or disputes about whether a person was a casual employee (section 548(1C) of the Fair Work Act) you must file: 

• an Originating Application - Fair Work Division, and
• a completed Form 5A: Small claims under the Fair Work Act 2009 (subrule 31.11 (2), and  
• any other material relied on, including supporting documents. 

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 have performed your calculations. 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. 

The Fair Work Ombudsman’s website contains some additional information regarding small claims.

Adverse action

Another Fair Work application relates to a breach of the general protections provisions in the Fair Work Act. 

For a claim alleging dismissal in contravention of a general protection, you must file: 

• an Originating Application - Fair Work Division, and
• a Form 2 - Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection (subrule 31.03 of the Rules), and
• a certificate from the Fair Work Commission issued pursuant to section 368 of the Fair Work Act that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful (unless an interim injunction is being sought), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit. You should ensure that the Application, so far as practicable, includes details of the loss you are claiming you have suffered because of the alleged contravention, and how you calculated that loss. 

You should be aware that you have 14 days from the date of the certificate issued by the Fair Work Commission to commence your proceedings in the Court. 

Unlawful termination

For a claim alleging unlawful termination, you must file:

• an Originating Application - Fair Work Division, and
• a Form 3 – Claim under the Fair Work Act 2009 alleging unlawful termination of employment (subrule 31.04 of the Rules), and
• a certificate from the Fair Work Commission under section 776 that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful (unless an interim injunction is being sought), and
• any other documents or evidence you want to rely on. 

You do not need to file an affidavit.

Contravention of a general protection

For a claim alleging breach of a general protection (not involving dismissal), you must file: 

• an Originating Application - Fair Work Division, and
• a Form 4 – Claim under the Fair Work Act 2009 alleging contravention of a general protection, (subrule 31.07 of the Rules), 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 under the Fair Work (Registered Organisations) Act 2009 

For a claim alleging reprisal under section 337BB of the Fair Work (Registered Organisations) Act 2009, you must file: 

• an Originating Application - Fair Work Division, and
• a Form 6 – Claim under the Fair Work (Registered Organisations) Act 2009 alleging reprisal (subrule 31.09 of the Rules), 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 2009 

If you make an application regarding any other alleged contravention of the Fair Work Act 2009, you must file: 

• an Originating Application - Fair Work Division, and
• either:
  • an affidavit, or
  • a statement of claim or points of claim, and
• any other documents or evidence you want to rely on. 

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 to start a proceeding?

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 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 for Exemption from Paying Court Fees – Financial Hardship.

For the current fees and more information about applying for a fee exemption see Fees.

The filing fee is separate from legal fees you may need to pay your lawyer if you decide to use one for your matter.

Filing with the Court

Wherever possible, you must file court documents commencing or relevant to an existing matter online using eLodgment. You may also lodge documents such as draft orders, consent orders, and case management correspondence via eLodgment.

See the Federal Court website for information on how to use eLodgment. 

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.

How do I notify the respondent?

After your application has been filed, you must ‘serve’ the application on the respondent. That means you must make sure that the respondent receives a sealed version of the documents filed with the court, including sealed documents containing court dates on them.

At the first court date, if the Respondent is not in attendance, the judicial officer may 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: 

• sending the documents by registered or express post to the corporation’s registered business address, or
• leaving a copy with a person who appears to be an officer of the corporation or appears to be working for the corporation at the corporation’s registered office, or if there is no registered office, at the corporation’s main place of business or main office.  

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 Interlocutory Application with an affidavit explaining why you need to serve the application in a different way. 

Affidavit of service 

After the documents have been served, you must complete an Affidavit of service, which you must file with the Court (using eLodgment). For a small claims matter use the Affidavit of service (Fair Work – small claims proceedings). 

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. 

Filing a response 

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. 

Ending the application before judgment

By consent between the parties

If you and the other party resolve your dispute at any time before the judicial officer delivers a decision, you may notify the Court that you have reached agreement. You will need to send the Court a proposed ‘consent order’ (signed by each party) that sets out that the proceedings be dismissed and any other orders you have agreed to. Either party may send the draft consent order by email, provided the other party is copied on the email. 

Discontinuance

You can choose to discontinue the application at any time before the first court date or, if the proceeding is continuing on pleadings, any time before the pleadings have closed, by filing a Notice of discontinuance with the Court. 

You will need the other party’s consent or the Court’s permission if you want to file a Notice of discontinuance if the first court date has occurred or pleadings have closed (see Rule 23.02).

Costs

Costs in Fair Work matters may only be ordered against a party in the circumstances set out in section 570 of the Fair Work Act. This includes if: 

• the party instituted proceedings vexatiously or without reasonable cause, or
• the party engaged in an unreasonable act or omission that caused the other party to incur the costs (see section 570 of the Act). 

The Court will consider application for costs if there is a failure to follow the Court’s orders or a Court Practice Direction.

If the Court makes an order for costs, costs will be in accordance with Schedule 2 of the General Federal Law Rules. However, the Court has discretion to impose different amounts and may fix the amount of costs and disbursements payable.

In small claims matters, if the applicant is successful, the Court may require the Respondent pay the Applicant’s filing fees. 

Under section 548 of the Fair Work Act 2009, you can ask that certain applications be dealt with as a small claim proceeding.

Claims for unpaid wages and other employment entitlements up to $100,000 (plus interest)

In relation to unpaid wages and other employment entitlements, you can ask that an underpayment claim 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 
• you are not seeking a pecuniary penalty order;
• the claim does not relate to a period that is more than 6 years before the proceedings commenced;
• the claim relates to an entitlements:
  • under the Fair Work Act – e.g. under:
    • the National Employment Standards; or
    • section 323 of the Fair Work Act (which may cover certain incentive-based payments and bonuses);   
  • under a Fair Work Instrument (e.g. a modern award or enterprise agreement, workplace determination or a Fair Work Commission order)
  • because of a ‘safety net contractual entitlement’, which can include an entitlement in a contract that relates to one of the National Employment Standards or an entitlement in modern award.   

If you are claiming unpaid wages, you can also claim:   

• the costs of any filing fee you paid to commence your application;
• interest on the underpaid amounts; and
• in limited circumstances, the costs in relation to legal fees paid by you, but only if you satisfy the Court that section 570 of the Fair Work Act applies. 

Other small claims proceedings

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  matters set out in subsection 548(1B) and (1C) of the Fair Work Act 2009 being where you apply for an order (other than a pecuniary penalty order) in connect with a dispute about:

• whether a person has contravened subsection 333E(1) (limitations on fixed term contracts)
• whether subsection 333G(1) (effect of entering prohibited fixed term contract) applies in relation to a contract
• whether a person was a casual employee of an employer when the person commenced employment with that employer.

Features of the small claims process 

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.

Rules about the conduct of small claim legal proceedings in the Fair Work Division of the Court can be found in division 31.4 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2025.

How do I make a small claims application?

You should first try and resolve the dispute with your employer, as outlined in Avoiding court, before applying to the Court.

If the matter remains unresolved and you wish to make a small claims application, see I want to apply. 

How small claims hearings are heard 

When the application is filed, the details of the time and location for the hearing are usually written on the application. 

Small claims matters will be conducted online, unless the Judge / Registrar considers it appropriate to list the matter for an in-person hearing. 

Depending on the complexity of the matter, it will be listed for:

• a final hearing as soon as practicable; or
• directions hearing as soon as practicable. 

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.

Legal Representation 

You cannot have a lawyer represent you at a hearing unless the Court permits you to (see section 548(5) of the Fair Work Act).

Lawyers seeking leave to represent clients at a hearing will need to raise this with the Court as soon as practicable.  

Mediation

You will be given the option of attending a confidential mediation, if you think a mediation may assist resolve your claim. You may request a mediation at any time by emailing the Small Claims Team (smallclaims@fcfcoa.gov.au).

A mediation is a confidential process in which you try and settle the dispute with your employer / former employer.  

Mediations are facilitated by a Registrar of the Court. 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. 

At a mediation, you should be prepared to outline your case and be prepared to (if required) agree to a compromise. 

The benefit of a mediation is that it resolves your claim without the need for you to proceed to a final hearing.  

If the claim cannot be resolved at mediation, a final hearing date will be allocated.

What happens at a small claims final 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. 

Depending on the complexity of the matter, the final hearing of your application could be on the first court date.

For more information about attending Court, see the Attending court.

Non-attendance and default judgment 

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. You can do this by filing an Affidavit of service (Fair Work) which sets out the steps you have taken to serve the respondent with a sealed copy (i.e. a copy stamped by the Court) of: 

• Originating Application – Fair Work Division
  • Form 5 or Form 5A
  • Any orders made by the Court (if there has already been a court date). 

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. 

For further information regarding service see 'Serving the application' on the Fair work: I want to apply page. 

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. 

Depending on the type of issue/s, there are a number of ways to attempt to resolve your dispute before coming to Court.

Use the dispute resolution procedures in your award or enterprise agreement

The quickest and easiest way for you to resolve a dispute with your employer is to use the dispute resolution options available at your workplace. Employment contracts, modern awards and enterprise agreements often contain a dispute resolution procedure that should be followed to help resolve disputes.

If you are no longer working for the employer, you could still try talking to them or writing to them to try to resolve the matter by agreement.

If you cannot resolve the dispute informally, you might send a formal letter to your employer (or former employer) asking that they pay you what you believe you are owed. The letter should outline what the dispute is about and the different entitlements you believe are owed. You should explain how you reached your calculation. If your claim is under $100,000, you should be clear that you intend to start a small claim legal proceeding if the matter is not resolved by a set date. Sending a letter creates a final opportunity to resolve things without legal proceedings.

Settling a dispute privately has many benefits. It can save time and is often less stressful and costly than going through a formal legal process. See the Fair Work Commission’s page Resolving issues at the workplace for more information.

Fair Work Ombudsman

The Fair Work Ombudsman aims to help you understand your rights and responsibilities at work. They work with employees, employers and the community to educate and encourage compliance with Australia's workplace laws.

The Fair Work Ombudsman provides lots of resources to help resolve workplace issues.

Fair Work Commission

If you are unable to resolve your dispute at the workplace directly or through mediation, you can file an application with the Fair Work Commission.

The following pages on the Fair Work Commission website provide information about how the Commission can assist with resolving disputes:

• Issues we help with
• Disputes about general protections
• Resolving workplace disputes
• Apply or lodge an application 

Other legal assistance

A community legal centre or legal aid may also be able to assist you with advice about how to resolve your dispute or other options for getting help from a third-party mediator. For more information about getting legal assistance see Find a lawyer.

What happens if I can’t resolve the dispute?

If you cannot resolve your dispute at the Fair Work Commission or with other assistance, you can seek the assistance of a suitable court. For more information see Small claims and I want to apply.