Frequently asked questions

​​Wages a​nd entitlements - FAQs​

1. What are th​​e National E​​mployment Standards?

The National Employment Standards (NES) are a set of minimum entitlements that apply to all employees in the national workplace relations system.

The NES include entitlements​ such as:

• annual leave
• long service leave
• parental leave
• personal/carer's leave
• compassionate leave
• community service leave
• flexible working arrangements
• notice of termination or payment in lieu of notice
• redundancy pay.

You are a national system employee unless you work for the NSW public service, or a local council or state owned corporation in NSW.

For more information, see Right to wages and entitlements.

2. How can ​​I find out what I​​ am entitled to?

Your right to wages and other entitlements can be found in:

• the National Employment Standards (NES)
• an award
• an enterprise agreement
• your contract of employment
• workplace legislation, such as the Fair Work Act and the Long Service Leave Act.

 Any award, enterprise agreement or contract of employment cannot provide an entitlement that is less than the minimum entitlements in the NES.

For more information, see Right to wages and entitlements.

3. Where can I fin​d an award or enter​​​prise agreement?

You can find an:

• award by searching on the Fair Work Ombudsman website
• enterprise agreement using the Fair Work​ Commission website. It can help if you know the name of the agreement or the agreement ID number.

For more information, see Right to wages and entitlements.

4. My employ​er told me that I am not entitl​ed to be paid for any leave because I am a contractor. Is this true?

If you are an independent contractor you may not get the same entitlements that employees do, such as paid leave. 

Just because you are called a contractor by the organisation you work for does not necessarily mean you are one.

An independent contractor is someone who usually:

• supplies their own tools or equipment
• does work when and how they want
• has their own workplace
• can contract the work out to someone else
• spends some of their income on their own business expenses
• pays their own tax
• doesn't get holidays or sick leave. 

The Australian Tax Office (ATO) website has an Employee/ contractor decision tool to help you decide if you are an employee or contractor.

If you think you are entitled to paid leave but your employer won't pay you, you should get legal advice.

For more information, see What type of employee am I?

What am I entitled to - FAQs​

1. I just lost ​​​my job. Wh​​at should I get in my final pay?

Depending on why you lost your job, your final pay could include:

• unpaid wages (including any commissions, bonuses and allowances)
• payment for any personal/carer's leave you took but weren't paid for
• annual leave that you haven't taken (including leave loading if you are entitled to it)
• payment for unused long service leave (depending on how long you worked for your employer and what industry you work in)
• redundancy pay (if you were made redundant)
• payment in lieu (instead) of notice (if your employer didn't want you to work out the notice period).

For more information, see What am I entitled to?

2. I think I'm bein​g underpaid. How can I find out what my employer should be paying me?

The amount you should be paid will depend on:

• the minimum wage
• your age and the position you are in
• any award or enterprise agreement you are covered by
• your contract of employment.

If you are covered by an award or an enterprise agreement, it should include your pay rate. 

If you are not covered by an award or an enterprise agreement and your contract of employment doesn't specify how much you should be paid, then you should be paid at least the national minimum wage for all the hours that you work.

As at 1 July 2022, the national minimum wage is $21.38 per hour. To check the current full-time minimum wage, go to the Fair Work Commission​ website.

 If you think you are being underpaid, you should get legal advice.

For more information, see Wages.

3. My boss constantly asks m​​e to do extra work on the weekends but he only pays me my normal hourly rate. Should my boss be paying me extra? 

Overtime is any work that you do outside of your normal working hours. Generally, any overtime that you do should be paid at a rate higher than your normal hourly rate. You should be paid penalty rates if you work on weekends, public holidays, or outside of normal hours. Like overtime, penalty rates should be paid at a higher rate than your normal rate of pay. 

The amount you are entitled to be paid for overtime and penalty rates will depend on your award, enterprise agreement or contract of employment.

For more information, see Overtime, penalty rates and allowances.

4. How much annual leave am I entitl​​ed to?

The amount of annual leave you are entitled to will depend on how long you have been working with your employer. All employees, except casual employees, are entitled to at least four weeks annual leave for each year they work. Part time employees are entitled to the equivalent on a pro-rata basis.

You should check your award, enterprise agreement or contract of employment to see if you are entitled to more than four weeks annual leave.

You are entitled to a portion of your yearly entitlement to annual leave if you've worked for less than a year. You can check how much annual leave you have by using the 'Leave Calculator' on the Fair Work Ombudsman website.

For more information, see Annual leave and leave loading.

5. I am going on holidays soon.​​ Will I be entitled to leave loading?

Leave loading is an extra payment on top of your annual leave pay. It is usually 17.5% of your normal pay.

Not all employees are entitled to leave loading. You should check your award, enterprise agreement or contract of employment to see if you are entitled to this extra payment and how much it is.

For more information, see Annual leave and leave loading.

6. I have been working for my emp​​loyer for the last 13 years and have recently resigned. Am I still entitled to long service leave?

If you have worked for your employer for 10 years or more and you are dismissed (sacked) or resign, you should be paid any long service leave that you haven't taken. You may also be entitled to payment for long service leave if you have worked more than five years but less than 10 in some cases.

In New South Wales, you are entitled to two months long service leave after working for the same employer for 10 years. If you have worked for longer than 10 years, your entitlement will increase. 

To find out how much long service leave you are entitled to, you can use the 'Long Service Leave Calculator' on the Industrial Relations website. You should also check your award, enterprise agreement or employment contract to see if you are entitled to any extra leave.

For more information, see Long service leave.

7. I just lost my job. My employer told me he would pay me in lieu of notice. What do​​es this mean? 

If you are dismissed (sacked), you will generally be entitled to be given notice before you have to stop working, unless you were dismissed because of serious misconduct.

Instead of working the notice period, your employer can pay you an amount equal to your wages for the period of notice you are entitled to, and ask you to leave straight away. This is called payment in lieu of notice.

The amount of notice you are entitled to will depend on how long you have worked for your employer.             

For more information, see Payment in lieu of notice.

8. My employer told me that my job was being made redundant. Will I be entitled to redundancy pay?

Redundancy pay is a payment offered to an employee because their employer no longer needs anyone to do their job. Whether you are entitled to redundancy pay, and how much you should be paid, will depend on:

• how long you have been employed
• the size of your employer's business
• whether your employer has offered you a different job
• the ability of your employer to pay the amount owed
• your contract, award or enterprise agreement.

For more information, see Redundancy pay.

 Not all redundancies are genuine. You should get legal advice if you have been offered a redundancy or made redundant.

9. My employment contract says I am entitled to a commission for every product that I ​sell. What does this mean?

A commission is a payment based on the value of property dealt with, rather than on actual work performed. For example, in addition to your wage, you may be paid an extra amount as a percentage of the value of each of your employer's product that you sell.

You should read your contract carefully to check if you are employed on a commission' only basis (that is, you are only paid a commission and not paid a wage) as there may be minimum conditions of employment that apply to your job.

 Not all employees can be employed on a commission only basis. 

You should get legal advice to find out if you can be employed on a commission only basis and what, if any, minimum conditions or entitlements apply.

For more information, see Commissions and bonuses.

10. My employer isn't paying me super​annuation. What should I do?

Your employer should be making superannuation contributions of at least 10.5% of your wages (as at 1 July 2022) if you are aged between 18 and 69 years.

If your employer isn't paying you the correct amount or not paying you superannuation at all, you can make a complaint to the Australian Tax Office (ATO). The ATO can investigate your complaint.

For more information, see Superannuation.

What if I am not paid - FAQs

1. I don't think ​​my employer is paying me the​​​ right wage. What can I do?

If you think you are being underpaid, you should try talking to your employer about the issue. Your employer might have made a mistake and is unaware that they are underpaying you. You could also try writing a letter of demand to your employer.

If talking or writing to your employer hasn't worked, you can make a complaint to the Fair Work Ombudsman (FWO). The FWO can help resolve the issue between you and your employer.

 You have six years from when any amount owed to you should have been paid to start a court case. You should get  legal advice if you are trying to recover money that should have been paid to you more than six years ago.

For more information, see What if my entitlements are not paid?

2. My employer wants to meet me to d​iscuss my unpaid entitlements. How can I prepare for the meeting?

Before meeting your employer, you should think about what you believe your entitlements are and gather any documents, which support your claim.

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

• copies of your payslips
• bank statements, from the bank your pay is deposited into
• a copy of the National Employment Standards (NES)
• your award or enterprise agreement, if either applies to you
• your written contract of employment, if you have one. 

You can also consider taking a support person with you, for example, your union representative if you are a member of a union.

For more information, see Talk to your employer.

3. I wasn't given my final pay when I left my job. I've tried talking to my employer about it bu​​t he refuses to pay me. How do I write a letter of demand?

There is no set format for writing a letter of demand, but your letter should include information about:

• what you think your entitlements are
• how much you think you are owed
• when you would like to be paid, and
• what action you might take if you are not paid.

For more information, see Talk to your employer.

4. I have unpaid wages and entit​​lements but my employer has gone bankrupt. Is there anything I can do?

If your employer can't pay you because they are bankrupt or the business has gone into liquidation, you may be able to recover some of your entitlements by making a claim under the General Employee Entitlements Redundancy Scheme (GEERS) or the Fair Entitlements Guarantee (FEG).

For more information, see What if my employer can't pay me?

Contacting the Fair Work Ombudsman - FAQs​

1. I left my j​​ob but I have unpaid wages that my employer refuses to pay me. Can the Fair Work Ombudsman help me?

You can contact the Fair Work Ombudsman and ask th​em for assistance. The Fair Work Ombudsman may investigate your case and help you settle your dispute with your employer by:

• explaining workplace laws to you and your employer
• offering assistance to resolve your complaint
• organising mediation.

For more information about asking for assistance, see Contacting the Fair Work Ombudsman.

2. The Fair Work Ombudsman has decid​ed to investigate my case. What does this mean?

The Fair Work Ombudsman may decide to investigate your case if you and your employer cannot come to an agreement and your case raises serious issues.

A Fair Work Inspector may investigate by gathering evidence from different people including both you and your employer. After investigating, the inspector will decide whether further action should be taken.

For more information, see Contacting the Fair Work Ombudsman​.

3. The Fair Work Ombudsman investigat​ed my case and found that my employer breached workplace laws by not paying me my entitlements. What happens now?

If, after investigating your case, the Fair Work Inspector finds that your employer has breached workplace laws and owes you money, they may decide to:

• refer your matter to mediation
• send a letter to your employer asking them to pay you your entitlements
• recommend that you start a court case.

For more information, see Contacting the Fair Work Ombudsman.

4. I asked the Fair Work Ombudsman for assistance but they didn't investigate my case. Is there anything I can do about it?

If you are unhappy about the Fair Work Ombudsman's decision not to investigate your complaint, you can apply to the Fair Work Ombudsman to conduct an internal review of their decision. 

For more information, see Contacting the Fair Work Ombudsman.

You could also start a case to get any unpaid entitlements. 

For more information, see Starting a court case.

Starting a court case - FAQs 

1. I contacted t​​he Fair Work Ombudsman about unpaid wages but they were unable to resolve my issue. Is there anything else that I can do?

You can start a court case to try and recover the money you are owed from your employer.

If you start a court case, you may have to go to court for:

• one or more directions hearings
• mediation
• a final hearing.

 This website only provides information on starting a court case in the Federal Circuit and Family Court of Australia. You may be able to make a claim in a different court. You should get legal advice about which court you should start your case in. 

For more information, see Starting a court case.

2. How do I ma​ke a claim for unpaid wages and entitlements in the Federal Circuit and Family Court of Australia?

To make a claim in the Federal Circuit and Family Court of Australia, you will need to file and serve:

• an application, and
• a claim form.

You will also have to pay a filing fee.

For more information, see Step by step guide: Making a small claims application to the Federal Circuit and Family Court of Australia.

3. I have started a case in the Federal Circuit and Family Court of Australia. What happens when I go to court?

When you make a claim in the Federal Circuit and Family Court of Australia, your case will be listed for a 'first court date'. This is called a directions hearing. At the first directions hearing, the Judge may:

• decide to hear your case straight away
• make orders about how your case is to be run
• order that you and your employer attend mediation
• list your case for a further directions hearing after mediation.

If you and your employer are unable to resolve your case at mediation, the Judge may set a hearing date for your case.

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

4. I want to stop my claim​ in the Federal Circuit and Family Court of Australia because my employer and I have settled our case. How do I do this?

To stop your case, you will need to file and serve a Notice of Discontinuance form.

 You should get legal advice before stopping your case.

For more information, see Stopping your case.

5. My case is listed for a directions hearing. What is a directions hearing?

A directions hearing is a short court appearance where the Judge will make orders about what should happen next in your case.

If your case is listed in court for the first time, this is called the first directions hearing. In some cases, the Judge may want to hear your case at the first directions hearing.

If your case has been in court at least once before, any other directions hearing is called a further directions hearing.

For more information, see Directions hearing.

6. The Judge told my employer and I that we have to go to mediation. What is mediation?

Mediation is an informal way of solving a problem. At mediation, a neutral person (the 'mediator') helps people involved in a dispute come together to discuss the issues and reach agreement. In the Federal Circuit and Family Court of Australia the mediator will usually be a Registrar.

During the mediation, you and your employer will be able to each tell your side of the story. After that there will be time for discussion with each other and also with the mediator in private sessions.

For more information, see Mediation.

7. At the directions hearing, the Judge told me I had to file and serve a 'Statement of claim' as well ​​as 'Affidavit evidence'. What are they and how do I prepare them?

A Statement of claim is a form that sets out your case in detail. Sometimes it is called 'points of claim'. It usually contains numbered paragraphs that state what you are claiming and on what basis you are making that claim.

An Affidavit is a written statement that is sworn or affirmed to be true. An Affidavit is often used in court cases as a way to give evidence.

For information on how to:

• prepare for the hearing, see Step by step guide: Preparing for the hearing
• prepare and write a Statement of Claim, see Statement of claim
• prepare and write an Affidavit, see Affidavits and statements.

8. My case is listed for a hearing. What happens when I go to court?

Once your name is called, the Judge is ready to hear your case. You will be asked to present your evidence first. The Judge will want to know what your case is about and what your evidence is. You should refer to any filed affidavits and written statements that you want to rely on.

After you have given your evidence, your employer, or their lawyer if they have one, may want to cross- examine you.

If you have any witnesses, you will usually call them after you have given your evidence. After you have presented your evidence, your employer and their witnesses will give their evidence.

For more information, see Step by step guide: Presenting your case at the hearing.

9. If I lose my case, can I be made to ​​​pay my employer's legal costs?

If you lose your case, the Judge may, in very limited circumstances, order you to pay your employer's legal costs, such as lawyer's fees, fees for subpoenas and witnesses.

Costs orders are usually only made where the Court believes the application was frivolous or vexatious (meaning that it had no chance of winning).

For more information, see Costs.

After court - FAQs​

1. My employer and I h​​​ave a settlement agreement but my employer refuses to pay m​e. What can I do?

If you have a settlement agreement but your employer is not doing what they agreed to do, you may be able to enforce the agreement.

For more information, see Enforcing an agreement.

2. When I went to court, the Judge told my employer he had to pay me the wages an​d other entitlements I had claimed. My employer still hasn't paid me. What can I do?

If your employer is not following court orders, you can take court action to make your employer pay you the money. This is called enforcement.

For more information, see Enforcing a judgment.

3. I lost my claim in the Federal C​​​ircuit and Family Court of Australia but I think the Judge made a mistake about what happened in my case. Can I do anything about it?

If you think the Judge made a mistake in your case about the law, you may be able to appeal within 21 days from the date of the decision.

 You should get legal advice before you appeal.

For more information, see After court.