I've Been Underpaid

Most underpayments are resolved without going to court. The usual first step is a detailed letter to your employer setting out what you are owed, how it has been calculated, and what will happen if it is not paid by a set date.

A letter from a lawyer is often more effective than a letter you send yourself, because it shows the employer that you understand your entitlements and are prepared to enforce them. Our letters set out the calculation, the provisions breached, the personal exposure of the people involved, and the penalties a court can impose.

You can also ask the Fair Work Ombudsman for help. It is free, and its inspectors can investigate, issue a compliance notice requiring your employer to calculate and pay what is owed, and take employers to court. The Ombudsman does not act as your lawyer, and it chooses which matters to pursue.

For amounts up to $100,000 (the cap since 1 July 2023), you can ask for your claim to be dealt with under the small claims procedure in s 548 of the Fair Work Act. It is run informally, without the strict rules of evidence, and lawyers can appear only with the court's permission. You can file in the Federal Circuit and Family Court of Australia (Division 2) or, in Western Australia, in the Industrial Magistrates Court, which hears Fair Work Act claims as an eligible State court. A small claim recovers what you are owed; it cannot impose penalties on your employer. Interest does not count towards the cap.

Larger or more complex claims, and claims seeking penalties or orders against individuals, are brought in the Federal Circuit and Family Court or the Federal Court. The court can order your employer to pay what you are owed, compensation, interest and penalties, and can order that all or part of a penalty be paid to you.

In Fair Work Act claims each side usually pays its own legal costs, whatever the result. A court can order costs against a party only if it started proceedings vexatiously or without reasonable cause, or caused the other side costs through an unreasonable act or omission (s 570). That lowers the financial risk of bringing a genuine claim.

Anyone involved in a contravention, such as a director, manager or HR officer who knowingly took part, is treated as having contravened the Act personally (s 550). Courts can impose penalties on them and in some cases order them to pay compensation. This matters if the company is struggling or has gone into liquidation.

Maximum civil penalties increased from 27 February 2024, five-fold for many contraventions by employers with 15 or more employees, and a "serious contravention" now includes one that is knowing or reckless. From 1 January 2025, a larger employer's maximum penalty for an underpayment can in some cases be three times the amount underpaid, and intentional underpayment became a criminal offence (s 327A), with fines and, for individuals, up to 10 years' imprisonment. Only the Commonwealth Director of Public Prosecutions or the Australian Federal Police can prosecute it, usually on a referral from the Fair Work Ombudsman. Honest mistakes are not criminal, and a small business that complied with the Voluntary Small Business Wage Compliance Code will not be referred. (Source: Fair Work Ombudsman, criminalising wage underpayments.)

If you are in the WA state system, your award, industrial agreement and Minimum Conditions of Employment Act 1993 (WA) entitlements are enforced in the Industrial Magistrates Court under s 83 of the Industrial Relations Act 1979 (WA). You must apply within 6 years (s 82A), the court must order any underpayment it finds to be paid (s 83A), and since 31 January 2025 the maximum penalty is $18,000 for an individual and $93,000 for a company, ten times that for a serious contravention. You can also contact Private Sector Labour Relations (Wageline). A claim for a contract benefit that is not in an award goes to the WA Industrial Relations Commission instead. See underpayments in the WA state system and denied contractual benefits.

We can work out what you are owed, write to your employer, request your records, and run your claim through to mediation or a hearing if it does not settle. Many claims settle once the calculation and the employer's exposure are laid out clearly, but every case is different. Read more about how we help with underpayments. If you think you have been underpaid, contact us for a free confidential discussion. Do not wait: every month of delay can cost you a month of your claim.