What if my entitlements are not paid?

Taking action for unpaid wages or entitlements

If you believe you have been underpaid or not paid your correct wages or entitlements, you should check:

• your award and/​​​or employment contract
• the minimum entitlements outlined in the National Employment Standards (NES).

If your employer hasn’t paid your wages or entitlements, you can:

• speak to your manager or supervisor
• speak to your Human Resources section, if your workplace has one
• speak to your union representative
• make a complaint to the Fair Work Ombudsman
• apply to the court.

You can't take or refuse to return your employer's property if you have unpaid wages or entitlements.

If you take or keep your employer's property without their agreement, they may take legal action against you to recover it. They might also call the police.

Talk to your employer

It is usually a good idea to talk to your employer before you consider starting court action to try and recover your entitlements. Your employer may not have realised that they didn't pay you the right amount.

Before you talk to your employer, make sure you are clear about what you think your entitlements are.

You should spend some time preparing your thoughts and your supporting documents. The more prepared you are, the easier it will be to talk to your employer.

Some of the supporting documents you could bring with you include:

• copies of your payslips
• bank statements, from the bank your pay is deposited into
• your award or enterprise agreement, if either applies to you
• your written contract of employment, if you have one.

You could ask your employer to explain to you how your pay and other entitlements are worked out. If you think they are wrong, you can then explain why you believe you are entitled to more.

If the business you work for changed ownership while you were working for them, you should get legal advice about whether your service is continuous. This may affect who you can claim unpaid entitlements from, and how much.

Make a written agreement

If you are still working for your employer and your employer agrees to pay you the full entitlements you are asking for, you may not need to put your agreement in writing. This is because no further action would be necessary and there was no compromise between the parties.

You should get legal advice if your employer is offering to pay you a lower amount or wants you to sign an agreement.

If you were dismissed, made redundant, or resigned, and you are claiming unpaid entitlements, your employer may want you to enter into an agreement that releases them from any further claim by you. For example, your employer may agree to pay you some or all of your entitlements if you agree in writing not to make a claim against them related to being dismissed.

A document that releases both or either of you and your employer from other claims is often called a 'deed of settlement and release' or a 'deed of release'. 

You should get legal advice about the terms of any agreement with your employer.

You can both sign and date the agreement. Don't forget to make a copy of the agreement for your own records. Having a written agreement is helpful if you later need to enforce the agreement in court. For more information about enforcing agreements, see After court, in Wages and Entitlements.

Sample: Sample deed of release

You should get legal advice before signing an agreement or deed of release. You may be signing away other rights you have.

For more information on what to put in a settlement agreement, see Reading and writing legal documents.

Write to your employer

If you are not comfortable talking to your employer, or after talking to your employer your entitlements remain unpaid, you could send your employer a letter of demand.  A letter of demand is a record of how much you say is owed and makes it clear to your employer what action you may take if they don't pay.

Writing to your employer may avoid the need to go to court and can save you time and money.

If you start a court case, the court may want to know what steps you have taken (if any) to try and resolve the issue before going to court.

A letter of demand is a letter to your employer outlining what you think your entitlements are, how much you think you are owed and when you would like to be paid. It is a good idea to send your letter of demand by registered post. Don't forget to keep a copy of the letter for your own records. 

There is no set format for writing a letter of demand.

Sample: Sample Letter of demand

Complain to the Fair Work Ombudsman

If your employer still hasn't paid you after you have sent a letter of demand, you can contact the Fair Work Ombudsman (FWO). The FWO can investigate complaints against employers and help you settle your dispute with your employer by:

• explaining workplace laws
• offering assistance in resolving your complaint
• organising mediation
• in some cases, taking legal action.

For more information, see Complain to the Fair Work Ombudsman.

Starting a court case

Most cases for recovery of wages and entitlements are started in the Federal Circuit and Family Court of Australia. Cases that are more complex may be started in the Federal Court of Australia.

You may be able to start a case to recover unpaid wages or entitlements in some NSW courts, such as the Chief Industrial Magistrate's Court or the Local Court of NSW. This website only has information about the process in the Federal Circuit and Family Court of Australia.

The Federal Circuit and Family Court of Australia 

The Federal Circuit and Family Court of Australia can hear claims up to $100,000 for unpaid wages and entitlements made by national system employees.

Small claims

Cases heard in this Court for recovery of wages and unpaid entitlements totalling $20,000 or less can use a small claims procedure. The small claims procedure allows cases to be heard with less formality. 

For more information, see Going to the Federal Circuit and Family Court of Australia.

The Federal Court of Australia

The Federal Court of Australia can also hear claims for unpaid wages and entitlements made by national system employees. Unlike in the Federal Circuit and Family Court of Australia, the Federal Court of Australia does not use the small claims procedure. Fees in the Federal Court of Australia are generally higher than fees in the Federal Circuit and Family Court of Australia.

This website does not have information about claims for unpaid wages and entitlements in the Federal Court of Australia. If you want to start a case in the Federal Court of Australia, you should get legal advice.  

What if my employer can’t pay me?

When an employer is in financial difficulty they might decide to:

• enter administration, if your employer is a company
• go into liquidation and wind up the company, if your employer is a company
• go bankrupt, if your employer is a sole trader.

This means that they don't have enough money to pay their debts and will usually have to stop trading. If this happens they may not be able to pay all of the wages or entitlements that you are owed.

If your employer is a:

• ​company and is under the control of an administrator, receiver or liquidator, you can send your claim (details of what you are owed) to the administrator, receiver or liquidator
• sole trader or partnership you can send your claim to the Australian Financial Security Authority (AFSA).

If you are told or believe your employer will not have enough funds or assets to pay you, you may be able to recover some of what is owed to you by applying to the ​Fair Entitlements Guarantee (FEG). This scheme was previously known as the General Employee Entitlements and Redundancy Scheme (GEERS).

To be eligible under FEG, your employment needs to have ended:

• because your employer became insolvent, or
• less than six months before the appointment of an insolvency practitioner, or
• on or after the appointment of an insolvency practitioner.

You need to make a claim for unpaid wages and entitlements from FEG within 12 months from the date you were dismissed or the date your employer went bankrupt or into liquidation, whichever is the latest.

You may be able to recover:

• up to three months unpaid wages
• unpaid annual leave
• up to five weeks unpaid payment in lieu of notice
• unpaid long service leave
• up to four weeks redundancy pay for each full year of employment.

You can’t claim:

• unpaid superannuation
• bonuses
• non-going or irregular commissions
• reimbursement payments.

It is often difficult to know which situation applies to your employer. 

The law can be complex. You should get legal advice about whether you can still bring legal action against your employer if they are bankrupt, in administration or liquidation.

For more information :

• contact the FEG Hotline on 1300 135 040, or
• see Fair Entitlements Guarantee on the Department of Employment and Workplace Relations website.