Personal Property Securities Act 2009

What should I do if my employer hasn’t paid all of my wages or superannuation?

As an employee, you have a legal entitlement to be paid a wage for work you perform and your employer must also make minimum superannuation contributions on your behalf.

The amount that you are entitled to be paid for work will be set out in your Employment Contract or the relevant Award or Enterprise Agreement (if applicable).

The amount of superannuation your employer is required to contribute on your behalf is set by the Australian Taxation Office. The current contribution amount is 9.5%. If you earn less than $450 gross in a calendar month, your employer is generally not required to make any superannuation contribution on your behalf.

If you believe you have not been paid your correct entitlements, your options are:

  1. make a complaint to the Fair Work Ombudsman (FWO); or
  2. make a claim in Court.

If you are a member of a Union, you may be able to get assistance from your Union.

Fair Work Ombudsman

Your first port-of-call should be the FWO, which has a process for resolving disputes between employers and employees about entitlements. The FWO process is:

  1. you must lodge a written complaint with the FWO using the “Workplace Complaint Form” which can be found on the FWO website;
  2. an FWO investigator will contact you to discuss the complaint;
  3. usually the FWO will refer you and your employer to attend an “Assisted Voluntary Resolution” which is a mediation process facilitated by the FWO to achieve a resolution between you and your employer.

Sometimes the FWO may take legal action against your employer in Court, or they may recommend that you start legal action to recover your entitlements if the above process is not, or is unlikely to be, successful.

Lawyers are not usually involved in the FWO process.

Court Proceedings

Generally, you should go through the FWO process before pursuing your claim in Court. This is because you will usually need to get a lawyer to act on your behalf if you commence a claim in Court because of the complexity of the legal system, which will of course include legal costs payable by you if you engage a private lawyer.

If you want to commence legal proceedings while your FWO complaint is still ongoing, you should discuss this with the FWO investigator beforehand as it could stop the FWO process.

For employees in NSW, you claim for unpaid wages can be commenced in one of the following Courts:

  1. Federal Circuit Court or Federal Court – for workers covered by the Fair Work Act 2009 (Cth);
  2. Chief Industrial Magistrates Court – specialist Court that deals with industrial disputes that can be filed and dealt with at any Local Court in NSW;
  3. Local Court of NSW – claims for unpaid wages or entitlements up to $100,000;
  4. District Court of NSW – claims for unpaid wages or entitlements between $100,001 and $750,000.

If your claim is for up to $20,000 then you can commence action in either of the Courts referred to at points 1, 2 or 3 above. You should seek legal advice about which Court will be the best option for your specific claim. However, small claims are usually more informal in the way they are handled by the Court and are aimed at employees and employers representing themselves without legal representation so if your claim is below $20,000 you may want to consider this.

You should consider getting legal advice about your claim before commencing any Court action.

It is important to note that you must commence this type of claim with the Court within six (6) years from the date that the amount became due and payable to you.

If you believe you may have a claim for unpaid entitlements, we suggest that you get in contact with the FWO in the first instance. If you require advice about what your legal entitlements are, or if you were unsuccessful in the FWO process, please contact us for assistance.

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