Money claims / monetary claims
A ‘money claim’ or ‘monetary claim’ means a claim under s9 of the Fair Work Act (1994) (SA) (the State Act) or a claim for a sum or a debt under s 10. Special provisions relating to monetary claims are set out in Chapter 2 Part 5 of the State Act.
A claim may be brought by an employee against an employer or by an employer against an employee (including former employers or employees).
The claim may be for a sum due under the State Act or the Fair Work Act 2009 (Cth), or due under an award or industrial agreement made under either Act, or due under a contract of employment. The claim may seek a pecuniary penalty under the Commonwealth Act.
A claim may be made under s 9 for compensation by an employee due to a failure of an employer to make contributions to a superannuation fund, or for payment of a benefit against the trustee of a superannuation fund to which contributions have been made.
A monetary claim will also include a claim for payment due under the Long Service Leave Act 1987 – refer s 13(5) of that Act.
A monetary claim will be heard by the SAET constituted as the South Australian Employment Court.
Who can apply?
If you are an employee who believes you have not been paid money owed by your employer, you can make a claim with SAET.
What do I need to do?
You may wish to consider whether your employer can pay the money you believe you are owed.
If your employer has no money it may not be worth taking the matter to court. You could do a company search and if the employer is in the hands of a receiver or liquidator contact that person directly.
If you wish to proceed, you should gather evidence such as payslips, timesheets or witnesses and lodge an application with SAET by email, post or fax.
You should set out clearly what you are seeking and the reasons you are making the claim so your employer understands the claim. This should include the amount you are claiming and under what entitlements or conditions, specifying each amount separately.
You may attach extra sheets to the application.
When your application is received, SAET will ask your employer to respond, also by post, fax or email.
If your employment has been terminated and your claim is about unpaid long service leave entitlements, your application must be lodged within three years of the termination of your employment.
You may wish to seek help from a lawyer, union, registered agent or other representative.
What can I expect?
You and your employer must attend at the date and time specified on the SAET documents.
The date and time of filing will be the date “sent” as recorded on the email message received by SAET. If you lodge the claim by email you will receive an electronic receipt.
Your employer will respond in the “answer by respondent” form, which SAET must receive within 14 days. SAET will send you a copy.
You and your employer will be asked to attend a Conciliation Conference, which aims to settle the matter by agreement. It is informal and private with each party given an opportunity to explain their position.
The SAET Member presiding may during the conference speak to you and your employer separately to develop settlement options. Anything you say privately will not be repeated to the other party without your permission.
You may bring a lawyer, union representative, registered agent or other representative to the conference but you must attend yourself. If an agreement can be reached then the SAET Member will record the terms of settlement, and these this agreement is binding on the parties.
If the matter doesn’t resolve at the conference then it will be given a date for a listing conference. This is an informal type of hearing to make sure that the parties are ready to go to trial, and to set a date for the trial.
If the matter goes to trial the discussion or recommendations from the conciliation conference remain confidential and cannot be used at the trial.
What forms are relevant?
- A38 – Application for money claim under industrial law or instrument
- P50 – Affidavit for recovery (Money Claim)
- P51 – Answer (Money Claim)
These can be downloaded from the forms page.
Is there a cost?
A monetary claim as described above may be lodged in the SAET without incurring a filing fee. However if a monetary claim under s 9 or a monetary claim for a sum or a debt under s 10 of the State Act is brought in conjunction with additional claims under section 10, such as a claim for damages, or for an injunction or for specific performance, filing and other fees will be payable in the same amount as would be have been incurred if such additional claims were filed in the District Court or the Magistrates Court – refer to the page entitled Employment contract disputes (civil action).
Monetary Claims – cost liability of parties
Section 36 of the State Act limits the circumstances in which a party to a monetary claim may be liable for the legal costs of the other party – generally there will only be an exposure to such costs if a party brings an unsuccessful appeal against an initial decision on a claim.
Parties should note however that if a monetary claim is brought under s 10 of the State Act, with or without additional claims such as for damages, an injunction or specific performance, costs of any proceedings will be awarded on the same basis as costs would be awarded in a corresponding civil action brought in the District Court or the Magistrates Court (as the case may be) – s 10(6) of the State Act.
Where can I find more information?
You may wish to contact a union, employee association or a lawyer.
If it is under a Federal law contact the Fair Work Ombudsman on 13 13 94 or www.fairwork.gov.au