Wage recovery and long service leave

A Fair Work Claim is a claim in relation to a civil remedy provision under the Fair Work Act 2009 (Cwlth), section 539(1) and (3).

A Fair Work Claim must be made within six years after the day on which the contravention occurred.

(contravention meaning: an action (e.g. an underpayment) that was not in compliance with the Fair Work Act 2009 (Cwlth))

The following can make a claim for a Fair Work Claim:

• an employee;
• an employee organisation (union) acting for an employee or an eligible employee affected by a contravention, and who is entitled to be represented by that organisation; 
• a person authorised by an eligible employee to make an application acting on the employee’s behalf; or
• an inspector.

Note:  If you are an employee with the Queensland Government, a local government council in Queensland or a parents and citizens association, please go to unpaid wages tab.
 

An application to recover unpaid wages must be made within six years after the amount claimed in the application became payable.

The following can make an application to the Commission to recover unpaid wages:

• Section 475
  • an employee;
  • an employee organisation (union) of which the eligible employee is a member, acting for the employee;
  • a person authorised by the eligible employee or to make an application acting on the employees behalf; or
  • an inspector

• Section 386 (regarding an outworker)
  • an outworker;
  • an employee organisation (union) of which the outworker is a member, acting for the outworker; or
  • an inspector

An application can be made by state system employees (employed by Queensland Government, a local government council in Queensland, or a parents and citizens association). National system or private sector employees may only use this process to recover unpaid long service leave.

To apply to recover unpaid wages, download and complete a Form 15 - Application to recover unpaid wages, superannuation contributions etc (Forms).

Form 15 can be filed at the Industrial Registry via the following methods:

In most instances the Industrial Registry will communicate with you by email. If you have not provided an email address on your Form 15 then the Registry will be in contact with you requesting that you provide an email address. If you do not have an email address then the Registry will communicate with you by post.

The process for an Unpaid Amount Claim is almost identical to the process for Fair Work Claims, however these claims are made directly to an Industrial Magistrates Court.

These claims are filed with the Industrial Magistrates Court (Magistrates Courts in Queensland ) and are made pursuant to the Industrial Relations Act 2016 in relation to:

• s 379 – Recovery of unpaid wages etc . (Wages, apprentice’s tool allowance or remuneration)
• s 386 – Recovery of unpaid wages (regarding an outworker) (for amounts over $100K)
• s 396 – Recovery of unpaid superannuation contribution
• s 402 – Magistrate may order repayment of fees – civil proceedings (regarding repayment of a fee received by a private employment agent)

An Unpaid Amount Claim must be made within six years after the amount claimed in the application became payable.

The process for making a Unpaid Amount Claim is outlined in this flowchart. 

The following can make an Unpaid Amount Claim:

• Section 379 (Wages, apprentice’s tool allowance or remuneration)
  • an employee;
  • an employee organisation (union) acting for an employee or an eligible employee affected by a contravention, and who is entitled to be represented by that organisation;
  • a person authorised by an eligible employee to make an application acting on the employees behalf; or
  • an inspector
• Section 386 (regarding an outworker)[if the amount claimed is under $100K, you may be able to make an Unpaid wages application to the Commission on a Form 15 (Forms)]
  • an outworker;
  • an employee organisation (union) of which the outworker is a member, acting for the outworker; or
  • an inspector
• Section 396 (unpaid superannuation contribution)
  • an employee who is an eligible employee on whose behalf an employer is required to contribute to an approved superannuation fund;
  • an employee organisation (union) of which the employee is a member, acting for the employee; or
  • an inspector
• Section 402 (regarding repayment of a fee received by a private employment agent)
  • the claimant (a person seeking a repayment of a fee received by a private employment agent);
  • an employee organisation (union) of which the claimant is a member, acting for the claimant;
  • another person authorised to act for the claimant; or
  • an inspector

Note: If you are an employee with the Queensland Government, a local government council in Queensland, or a parents and citizens association, please go to Unpaid wages tab.

To make an Unpaid Amount Claim mentioned above, download and complete a Form 68 – Claim before an Industrial Magistrate (Forms)

A claim is filed with a registry of a Magistrates Court ( Magistrates Courts in Queensland ).

If you have an entitlement to long service leave, and you are experiencing financial hardship, or you require extra funds due to unforeseen personal, family or other circumstances, you may be entitled to have your long service leave paid out in part, or in a lump sum. You should check with your employer or payroll department to see whether you are eligible.

You may also be entitled to receive a payment for the balance of any long service leave accrued on the termination of your employment. Please refer to 'Proportionate payment (pro-rata) of long service leave on termination of employment' below.

For a more detailed guide on making an application to the Commission for a payment of a long service leave entitlement download a copy of the Payment instead of taking long service leave application guide.

It costs nothing to make an application for payment of a long service leave.

Yes. If your application is granted, the lump sum payment is subject to the tax rates as set by the Australian Taxation Office (ATO). Generally, your payroll department will deduct the amount and then deposit the money into your nominated bank account. If you are unsure how much tax will be deducted, please contact either the ATO or your payroll department.

To apply to have your long service leave paid out, download and complete a Form 13 – Application for payment instead of taking long service leave.

Form 13 can be filed at the Industrial Registry via the following methods:

In most instances the Industrial Registry will communicate with you by email. If you have not provided an email address on your Form 13 then the Registry will be in contact with you requesting that you provide an email address. If you do not have an email address then the Registry will communicate with you by post.

After your application is successfully filed the Registry will send you and your employer a directions order which sets out who needs to do what, and by when, for the application.

For more information about making an application see "Part 3: Applications" of the Payment instead of taking long service leave application guide.

There is no set definition for 'financial hardship' or 'compassionate' grounds. Generally, applicants who are entitled to access their Long Service Leave in this way, and who are experiencing difficult times, or financial hardship can apply to the Commission. 

Applications are granted for various reasons, and some of the more common reasons can include:

• overdue bills
• credit card debts
• outstanding mortgage or loan repayments
• rent in arrears, or pending eviction
• funeral costs
• medical or surgical costs
• separation or divorce
• other unexpected family or life events; and/or
• other unforeseen circumstances.

If your reason for applying is because of financial hardship then you must attach evidence to the Form 13 that demonstrates your financial position – the list of income, expenditure, assets, is an effective way of quickly summing up your finances.

This depends on many factors including whether you have a valid application, the time it takes for both yourself and your employer to respond to the Directions Orders, and other unforeseeable delays. Generally, a valid application made without any delays can take up to four weeks until funds become available to you. These types of applications are generally dealt with by the Commission as a matter of priority. Once all the required material is received as per the Directions Orders, the Commission considers these quite quickly. You will be notified of the outcome of your application in a timely manner. 

Once you have made an application you will receive a Directions Order. A Directions Order sets out who needs to do what and by when. An example of a Directions Order can be found in the guide: "Part 4: Directions Order" of the Payment instead of taking long service leave application guide.

Most applications are decided on the material that has been filed. However, in a few instances the Commission may wish to speak with you about your application to clarify some points or request further information. The hearings are usually informal and conducted over the phone.

For a more detailed guide on making an application to the commission, download a copy of the Payment instead of taking long service leave application guide.

If you are representing yourself in a hearing or conference before the Industrial Court or Commission, please refer to the "Fact Sheet - Tips for the Self Represented Litigant"

If your employment has been terminated, and you've completed the required period of service then you may be eligible to have your accrued long service leave paid out pro-rata in a lump sum.

Applications are granted for various reasons, and some of the more common reasons can include:

• the employee was unable to continue working due to illness; 
• the employee was experiencing a domestic or other pressing necessity;
• the employee's service was terminated because of the employee’s death;
• the employer dismissed the employee because of the employees illness;
• the employer dismissed the employee for another reason other than the employee’s conduct, capacity or performance; or
• the employer unfairly dismissed the employee.

If you are unsure whether you qualify, you may make an application to the Commission. There is no fee associated with making the application.

It costs nothing to make an application for payment of pro-rata long service leave.

Yes. If your application is granted, the lump sum payment is subject to the tax rates as set by the Australian Taxation Office (ATO). If you are unsure how much tax will be deducted, please contact the ATO.

To apply to have your long service leave paid out, download and complete a Form 14 - Application for proportionate payment of long service leave.

Form 14 can be filed at the Industrial Registry via the following methods:

In most instances the Industrial Registry will communicate with you by email. If you have not provided an email address on your Form 14 then the Registry will be in contact with you requesting that you provide an email address. If you do not have an email address then the Registry will communicate with you by post.