Court Wage Claims and the Legal Processes You Should Know

A wage claim can be made to the Industrial Magistrates Court as a Fair Work Claim. This may seem odd at first glance but is due to the FW Act vesting jurisdiction in eligible State and Territory courts to hear and determine applications for contraventions of civil remedy provisions. The claim must be made within six years after the day on which the contravention is alleged to have occurred.

The applicant (being the employee or ex-employee) must lodge the claim with the Industrial Registry of the Industrial Magistrates Court (which is also the registry for the Industrial Court of Queensland and the Queensland Industrial Relations Commission (“QIRC”)). It may also be lodged with the Magistrates Court Registry although it will be referred to the Industrial Registry.

The applicant may elect to have the matter dealt with in accordance with the small claims procedure (other than for a pecuniary penalty order). In this instance, monetary awards cannot be greater than $100,000. Further, the court is not bound by the rules of evidence and procedure, and legal representation is only allowed with leave of the court.

A conciliation conference will take place before an Industrial Commissioner of the QIRC unless one of the parties objects. If the conciliation is unsuccessful or there is an objection, the matter will be referred to the relevant Magistrates Court Registry for allocation to an Industrial Magistrate.

If the respondent (being the employer) intends to dispute the claim, then the respondent must file a response and serve a copy on the applicant. Ultimately, the Industrial Magistrate will conduct a hearing and make a decision.

A wage claim can also be made to the Federal Circuit and Family Court of Australia (“FCFCA”) as part of its Fair Work jurisdiction. The time limit for starting a FCFCA proceeding is 6 years from the date the entitlement was meant to be paid. The FCFCA has a small claims procedure and a Fair Work Division.

The small claims procedure is for claims of up to $100,000 (other than for a pecuniary penalty order) and where an applicant (being the employee or ex-employee) chooses to commence proceedings under this procedure. Further, the court is not bound by the rules of evidence and procedure, and legal representation is only allowed with leave of the court.

The procedure commences with the applicant lodging an application and small claim form with the FCFCA and serving it on the respondent (being the employer). The applicant is then required to serve this on the respondent.

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.

Depending on the complexity of the matter, it may be listed for a final hearing or a directions hearing. The parties may also be required to attend a conciliation before a Registrar to try to resolve the matter. Where there is a final hearing, it will be dealt with by a Registrar or Judge who will make a decision.

The Fair Work Division is for claims of more than $100,000 or where the applicant does not choose the small claims procedure. The claim commences with the applicant lodging an application and either an affidavit outlining the statement of facts including documentary evidence or a statement of claim.

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.

A directions hearing will be scheduled to establish a timeline for court proceedings with a view to having a final hearing. The parties may also participate in a conciliation. Where there is a final hearing, it will be dealt with by a Judge who will make a decision.

It is important for employers to ensure that the correct wages are paid to employees so if a claim is made there will be grounds for defence. However, if there is an underpayment, it is important to resolve it as soon as possible to avoid the time and cost of litigation. In the instance a court wage claim is received, then it is important to obtain advice to navigate the legal process.