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Minimum Entitlements

Minimum Entitlements

A claim for minimum entitlements can be made when an employer has not paid an employee an entitlement due under industrial legislation or an industrial instrument (such as an award, industrial or enterprise agreement, or Order).

 

External publications that may provide guidance with this type of claim include:

Please note the Court is not responsible for the content of external publications or the services of external providers.

The Process

 

To make a claim for minimum entitlements, you must lodge all three of the following forms:

When completing these forms, please note the following:

  • The information on all three forms must be identical
  • It is important to correctly name parties
  • A statement of claim should be included and can be attached as a separate document
  • The respondent’s address cannot be a Post Office Box address
  • The Grounds, Act and Orders Sought sections must be completed

The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgement fee is $40.00. Once you have lodged your claim, you will usually have 30 days to serve the respondent/s. After you have served the respondent/s, you must lodge an affidavit of service with the Court.

 

If you have been served a Form 1.3 – Originating Claim (Respondent’s Copy) where you are a named respondent, it is important that you lodge a completed Form 2 – Response with the Court within the time specified on the front of the form. The time specified will either be 21 or 28 days. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgement fee is $5.00. You must then serve the claimant with a copy of your response within 14 days of the lodgement of your response. If you do not do these things, the claimant may obtain default judgment against you.

When completing your response, you must select one of the following options in the Response section:

  • Wholly deny the claim
  • Admit part of the claim
  • Wholly admit the claim

If you are not wholly admitting the claim, you need to provide your reasons for this.

 

If a response has been lodged which does not wholly admit the claim, the Court will arrange a pre-trial conference. A pre-trial conference is a meeting between the parties facilitated by a Clerk of the Court. It is an opportunity for the parties to confidentially discuss the claim and come to an agreed resolution without the need to go to a hearing.

Attendance is compulsory and you should let the Court know as soon as possible if you have any concerns about attending or accessibility by contacting the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au.

If the claim cannot be resolved at the pre-trial conference, it will be scheduled to proceed to a hearing. This may involve the Clerk of the Court making orders to help prepare the matter for hearing. These orders can include:

  • The requirement for one or more parties to lodge Case Outline/Further and Better Particulars of Case Outline. The Court's Practice Direction 1 of 2017 (PDF) outlines the procedures to be followed for these
  • Programming the matter to substantive hearing which may include timelines for the exchange of documents between the parties, including witness statements

 

Directions Hearing

An Industrial Magistrate may conduct a directions hearing before a claim goes to the substantive hearing. Matters that may be covered in a directions hearing include:

  • Identifying the issues that require determination at the substantive hearing (often referred to as the 'issues in dispute')
  • Identifying any interim issues that need to be determined before the substantive hearing
  • Issuing or amending programming orders
  • Identifying the evidence proposed to be called by the parties at the substantive hearing and how that evidence can be presented
  • Exploring the prospects of a settlement of the claim on terms that are agreed upon by the parties
  • Listing the claim for the substantive hearing

Substantive Hearing

A substantive hearing, which is sometimes referred to as a trial, is where the Court will hear and determine the substance or merits of the claim in dispute. It is a formal process held at the Court where each party presents their version of what has happened to an Industrial Magistrate.

Hearings usually proceed in the following manner:

  • The claimant will make their case first, calling witnesses and providing documents and other evidence to the Court
  • The respondent then has their turn to make their case and respond to anything the claimant has raised and present their evidence to the Court
  • The claimant then has the opportunity to respond to anything the respondent has raised

Decision

The Industrial Magistrate looks at the evidence, decides the outcome of the claim and makes an order/s. The Industrial Magistrate may give their decision and make orders at the end of the hearing or they may reserve their decision (meaning they will give their decision and make orders at a later date).

The Court’s decisions are required to be published online and remain on the public record.

FAQs

The Court’s Registry can be contacted on (08) 9420 4467 or registry@wairc.wa.gov.au. Court staff cannot give legal advice or opinion on the merits of any claim or potential claim. However, they can give information on: the processes of the Court; how to lodge forms; and other organisations that may be able to assist you.

Other organisations that may be able to assist you include:

You do not need to be represented in making or responding to a claim or when appearing at the Court. If representing yourself in the Court, you may like to obtain some legal advice ahead of time to make sure you are doing the right thing. Legal advice includes deciding which option is best for you. Some lawyers provide advice on how to represent yourself and run your own matter.

If you do want to be represented, you will need to inform the Court by lodging a Form 23 - Notice of Appointment of Lawyer or Agent. The Court must also be informed if you cease being represented or change representatives. Completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au.

If you do want to be represented and you have elected to have the small claims procedure apply to your claim, you must get permission of the Court first.

Regarding representation by industrial agents, please take note of Practice Direction 1 of 2022 (PDF) .

 

It is important to correctly name parties when making a claim. This means using an entity’s legal name. An entity’s legal name may be different to its business trading name or the name of a company director. Incorrectly naming a party can cause delays with a claim or result in an order being unenforceable.

Searches can be made on the Australian Business Register and the Australian Securities & Investment Commission public registers to try to find out the legal name of an entity. These searches can be done using a business name, an Australian Business Number (ABN) or an Australian Company Number (ACN). Some searches may require a fee to be paid.

You should provide enough relevant detail about your claim or your response so that both the Court and the other party know what you are saying has happened. If there is insufficient space on the relevant form, you may attach a separate document providing the additional details. For a claim, this is sometimes called a ‘statement of claim’ or ‘claim particulars’. For a response, this is sometimes called a ‘statement in response’ or ‘full particulars of response’.

It is generally helpful to use paragraphs that place information in chronological order. The paragraphs should be numbered, and each paragraph should only describe one action or one event. It is also helpful to provide the details of any calculations relevant to your claim or response.

If you wish to attach any other documents (for example: a payslip or a contract of employment) to your claim or response, you should refer to each document in the statement of claim or statement in response explaining the nature of the document and how it is relevant to what you are saying has happened.

The Industrial Magistrates Courts Practice Direction 1 of 2017(PDF) may provide some helpful guidance at point [1] on the type of information that can be useful to include and how it should be structured.

The respondent must respond to a claim within 21 days of being served with the claim. The respondent, in the response, can wholly deny the claim, admit part of the claim or wholly admit the claim.

If the respondent has not filed a response, it is open to the claimant to make an application to the Court for default judgment. Applying for default judgment means applying to the Court for judgment to be entered in the absence of the other party. To make this application, the claimant needs to lodge a Form 6 – Application and a Form 7 - Affidavit. The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. Once the application has been filed, the Court will list the matter for a preliminary hearing.

Service of documents is the process of giving documents that have been filed with the Court to another party. There are strict rules about how this can be done and about proving to the Court that it has been done in compliance with the law. This is to ensure the Court can be confident that parties have received documents in a matter.

It is important to note that originating claims (such as a Form 1.3 - Originating Claim (Respondent's Copy) cannot be served by email or fax. It is only once a respondent has filed a response to the claim with the Court that provides email or fax details as the address for service, that you can serve the respondent by email or fax.

There are different rules of service depending on the nature of the entity being served:

Corporation

Documents can be served on a corporation in one of the following ways:

  • Delivering in person to a director, manager or secretary (within the meaning of the Corporations Act 2001 (Cth)) of the named party
  • By posting the documents to the registered office of the named party - Please note you must be able to provide a copy of the Current Company Extract to the Court, upon request
  • In person at the principal place of business to an employee of the named party over 16 years of age
  • In person at the registered office to an employee of the named party over 16 years of age
  • By email at the address for service
  • By fax at the address for service
     

Natural person

Documents can be served on a natural person in one of the following ways:

  • In person at the named party’s address
  • Leaving it with someone over the age of 16 years old at the named party’s last/usual place of residence
  • Leaving it with someone over the age of 16 years old at the named party’s last/usual place of business
  • By email at the address for service
  • By fax at the address for service
     

Public authority

Documents can be served on a public authority in one of the following ways:

  • In person at the office of the public authority to an employee of the public authority over 16 years of age
  • By posting the documents to the the office of the public authority
  • By email at the address for service
  • By fax at the address for service
     

You do not personally have to serve documents. A friend, family member or process server can serve documents for you. The person who serves the document must be the one who completes the affidavit of service.

An affidavit of service is a written statement that a person has successfully served (given) a legal document or documents to another party in a matter. It needs to be made on an approved form. The approved form required will depend on the nature of the entity that has been served and will be one of the following:

The Court does require parties to attend pre-trial conferences and hearings in person. If you believe in person attendance is not appropriate in your circumstances, you can make an application to the Court for remote attendance. Please contact the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au for guidance on this.

When appearing before the Court dress as neatly as possible. You must be respectful to everyone in the Court. This includes the Industrial Magistrates, Court staff, the other party involved in your matter and witnesses.

Please let the Court know well before the date of your hearing or pre-trial conference if you require any special assistance (such as an interpreter, hearing loop or wheelchair access).

The Court has a very busy schedule, so you must be on time. If you are late, your matter might be adjourned, or heard without you there. It is a good idea to arrive at the Court at least 15 minutes early and allow time for traffic and parking if relevant.

Make sure you bring all the documents you need for your matter, pens and paper, and that you are fully prepared to present your case.

The time span of a claim process highly depends on each individual case and is not fixed. There will be many factors which will affect the length of the process, including whether the parties reach settlement at the pre-trial conference or the claim proceeds to hearing, whether any interlocutory hearings are necessary and the complexity of the matter.

You can discontinue your claim in whole by filing a Form 18 – Notice of Discontinuance – Whole of Claim or in part by filing a Form 19 – Notice of Discontinuance – Part of Claim. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. 

If a final order is not complied with, an application for enforcement can be made 21 days from the date of the order.

 To do this, you first need to contact the Court on (08) 9420 4467 or registry@wairc.wa.gov.au to request a certified copy of the final order. Once you have obtained this, you will need to attend your local Magistrates Court and provide a copy of the certified order and an affidavit stating to what extent the order has not been complied with. The affidavit form will not be the same as the Court’s forms.

If you have any questions regarding the processes involved with the Magistrates Court, please contact the Magistrates Court directly on (08) 9425 2222. The Court is a separate court to the Magistrates Court and cannot answer any questions relating to the processes involved in enforcing orders.

You may be able to appeal a decision of the Court to the Full Bench of the Western Australian Industrial Relations Commission or to the Federal Court of Australia. Please note, timeframes for appealing may apply and can be as short as 21 days. It is suggested that you seek legal advice to determine which commission or court is appropriate for your appeal.

Employees covered by the national system of employment laws making a claim for an amount up to $100,000 can elect to have the small claims procedure apply to the proceedings.

The small claims procedure is designed to be a quicker and more informal process than regular court proceedings. It is a simpler process where lawyers are generally not needed, and penalties cannot be sought. If a party does wish to be represented in a small claims procedure, it must get permission from the Court first by lodging a Form 6 – Application and a Form 7 - Affidavit. The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au.