If your employment contract promises you something and your employer has not given it to you, such as salary, a bonus or commission, an allowance, extra leave, a notice period, or the rest of a fixed-term contract, you may be able to recover it through a denied contractual benefits claim in the Western Australian Industrial Relations Commission (WAIRC). The claim is made under s 29(1)(d) of the Industrial Relations Act 1979 (WA) (IR Act). Older decisions and articles call it s 29(1)(b)(ii); it is the same claim, renumbered in 2022.
It is a low-cost way to enforce your contract without going to court. It has no compensation cap, and it can be run alongside an unfair dismissal claim. This page is written for employees of WA state system employers, but the WAIRC says it can also hear contractual benefit claims against federal system employers (WAIRC guidance); see Am I in the State or Federal System? if you are not sure.
Time limits. The WAIRC says a contractual benefits claim must be brought within 6 years of the entitlement falling due (WAIRC guidance). But if you have been dismissed, the unfair dismissal claim has only 28 days, so lodge both claims together within that time. Long delay can also weaken a claim even inside 6 years.
What You Can Claim
The claim is for a benefit you are entitled to under your contract of employment as a matter of legal right. The WAIRC is not asked to decide what would be fair; it decides what the contract actually gives you, and whether your employer denied it (Mortimore v ALOSCA Technologies Pty Ltd [2023] WAIRC 00138).
Common examples:
- unpaid salary, or salary cut without your agreement;
- a bonus or commission the contract promises;
- an allowance, vehicle or other benefit in the contract;
- leave above the legal minimum that the contract gives you, such as five weeks' annual leave;
- a contractual notice period, or reasonable notice where no period is stated;
- the rest of a fixed-term contract that was ended early.
The terms can be written, agreed orally, incorporated from another document, or implied. A term will only be implied if it is necessary for the contract to work and meets the usual strict legal tests; the WAIRC will not add a term just because it would be fair.
To succeed you need to show that you were an employee of the respondent (the claim is only against your own employer, not a host business, related company or director: Williams v WA Main Roads [2022] WAIRC 00664), that the benefit comes from your contract, and that your employer has not provided it.
What Is Not a Contractual Benefit
These are the traps that most often defeat a claim. Check them before you lodge.
- Award and agreement entitlements. Anything you are owed under a WA award, an industrial agreement or a WAIRC order is excluded by the words of s 29(1)(d). Those claims go to the Industrial Magistrates Court. See Underpayments and Enforcement.
- Statutory minimums. Minimum leave and pay under the Minimum Conditions of Employment Act 1993 (WA) or the Long Service Leave Act 1958 (WA) are also enforced in the Industrial Magistrates Court, not through this claim.
- Clauses that just point to the law. A clause saying the employer will "comply with the National Employment Standards", or give you leave "in accordance with legislation", does not turn those laws into contract terms that the WAIRC can enforce (McCarthy v My Foodie Box Ltd [2025] WAIRC 00682). A clause that says "you will receive five weeks' paid annual leave" or "your notice period is three months" is different: that creates a contractual right.
- Superannuation, usually. The superannuation guarantee is a tax law obligation enforced by the ATO. A bare "+ super" next to your salary does not create a contractual right to it. A specific contractual promise, such as a stated contribution rate or a named fund, may (Bignold v The Orange Card Pty Ltd [2026] WAIRC 00149).
- Cashing out leave. A contractual leave entitlement cannot be turned into a cash payment unless the contract says so.
- Overtime the contract does not provide for. If your contract says your salary covers all hours worked, including reasonable additional hours, there is no contractual claim for those extra hours.
- Claims that are not really about the contract, such as a general claim that you should be paid a fair amount for work done where there is no contract to support it (Rohan v S&DH Enterprises Pty Ltd [2023] WAIRC 00076, Full Bench).
If part of what you are owed comes from an award and part from your contract, you may need two claims in two forums.
Pay Cuts and Changes to Your Contract
Pay is a fundamental term of your contract. A cut to your pay is a denial of a contractual benefit unless the contract allows it, a law allows it, or the contract was lawfully varied.
- Carrying on working is not, by itself, agreement. Continuing to work at the lower rate does not on its own mean you accepted the cut; something more than silence is needed (Wegener v Trustee for Cottesloe Hotel Trust [2022] WAIRC 00156).
- But agreement can be found. A valid variation needs agreement, certain terms, an intention to be bound and something in return. The Full Bench has held that job security can be enough: "accept the cut or we cannot keep you on" can amount to a binding variation if you agree to it (McCarthy v My Foodie Box Ltd [2026] WAIRC 00145, Full Bench).
- A "variations must be in writing" clause does not always protect you. The parties can still agree orally to change the contract, and the WAIRC looks objectively at what they intended, including how they behaved afterwards.
If your pay has been cut, put your objection in writing and say you are reserving your rights. Evidence that you protested, and that nothing was offered in return, is what keeps a pay cut claim alive.
Notice and Fixed-Term Contracts
On termination, notice is often the most valuable contractual claim.
- Notice. A contractual notice period, or reasonable notice where the contract is silent, is a contractual benefit, and you can be awarded money instead of the notice itself (Rohan, Full Bench). A longer notice period in your contract prevails over the statutory minimum.
- Fixed-term contracts ended early. If your employer ended a fixed-term contract before its end date without a right to do so, you may be able to claim what you would have earned for the rest of the term, less what you earned or reasonably could have earned elsewhere (Frawley v CFMMEU [2023] WAIRC 00708).
- No cap. The 6-month compensation cap for unfair dismissal does not apply to a contractual claim. The Industrial Appeal Court confirmed this in Matthews v Cool or Cosy Pty Ltd [2004] WASCA 114. A long notice period or a fixed term with time left to run can be worth considerably more than the unfair dismissal cap.
If You Were Dismissed Without Notice for Misconduct
This is where running a contractual claim alongside an unfair dismissal claim really matters.
In an unfair dismissal claim, the WAIRC's Full Bench has held that the employer need only show it honestly and reasonably believed, after a proper investigation, that you committed the misconduct. But in a contractual claim for your notice, the employer must actually prove on the balance of probabilities that you committed misconduct serious enough to justify dismissal without notice. An honest belief is not enough (Trestrail v City of Karratha [2025] WAIRC 00820, Full Bench).
So an employer can defend an unfair dismissal claim and still have to pay your notice if it cannot prove what it says you did.
When Relief Can Be Refused
The WAIRC acts according to equity, good conscience and the substantial merits (IR Act s 26(1)(a)). It can refuse relief even where you are strictly entitled, if you acted dishonestly or in breach of contract in relation to the very matter you are claiming, for example if you caused your employer loss under the same contract you are now enforcing (Galloway v Signcraft (Aust) Pty Ltd [2025] WAIRC 00033). Misconduct that has nothing to do with the benefit claimed is not a reason to refuse it.
The Salary Bar
The WAIRC cannot decide a contractual benefits claim if no award or registered agreement covers your job and your contract salary is above the prescribed amount, which the WAIRC publishes as $212,800 from 1 July 2026 (IR Act s 29AA(4)). The same bar applies to unfair dismissal. An award or agreement that covers you defeats the bar however much you earn.
If the bar applies, your contract claim goes to the ordinary civil courts instead, where the usual limitation period for contract claims is 6 years.
Time, Interest and Costs
- Time. The IR Act itself sets no time limit for this claim. The WAIRC's guidance is 6 years from when the entitlement fell due. Delay can still count against you: the Full Bench has said claims should be dealt with without delay, and a very old claim can be dismissed (Magyar v Department of Education [2019] WAIRC 00781, Full Bench).
- No interest or penalty. The WAIRC's guidance says no interest or penalty is added to a contractual benefits order. (Underpayment claims in the Industrial Magistrates Court can carry interest and penalties.)
- Costs. The WAIRC does not order legal costs at first instance (IR Act s 27(1)(c)), so each side usually pays its own.
Running It With an Unfair Dismissal Claim
The WAIRC allows you to lodge both claims for the same employment, and if both are open you usually should.
| Unfair dismissal (s 29(1)(c)) | Denied contractual benefits (s 29(1)(d)) | |
|---|---|---|
| The question | Was the dismissal harsh, oppressive or unfair? | What does the contract entitle you to, and was it denied? |
| Misconduct | Employer's honest and reasonable belief may be enough | Employer must prove the misconduct happened |
| Time | 28 days | 6 years (WAIRC guidance) |
| Cap | 6 months' remuneration | None |
| Form | Form 2 | Form 3 |
| Fee | $50 | $50 |
How to Lodge
Lodge a Form 3 with the WAIRC, with the $50 fee (which can be waived for significant financial hardship). Set out clearly which contract term you rely on, what it entitles you to, and what your employer has not provided: the claim is confined to what you plead, and the employer must know the case it has to meet. The WAIRC will usually list the matter for a conciliation conference before any hearing. Lawyers can appear for you as of right (IR Act s 31(1)(c)).
Gather your contract and every variation, your offer letter, payslips, any bonus or commission plan, and emails or messages about the benefit.
For Employers
The contract is what you will be held to. Draft bonus and commission clauses carefully, including what happens on termination and whether any discretion exists. If you need to change pay or hours, agree it in writing, explain what the employee gets in return, and keep a record. If you dismiss without notice for misconduct, be ready to prove the misconduct, not just your belief in it.
How MKI Legal Can Help
We regularly advise on bonus and commission disputes, pay cuts, notice and fixed-term contracts in the WA state system, and on which parts of a claim belong in the WAIRC and which in the Industrial Magistrates Court. We can read your contract, tell you what you are entitled to, and run the claim for you. Contact us for a free, no-obligation and confidential discussion about your circumstances.