For employees
Underpayment claim: how far back, which route, and whether you need a lawyer
Being paid below the award, missing penalty rates, or working unpaid hours adds up faster than most people expect. The law lets you recover six years of it. The question is not whether you can claim but which route: a letter and the Fair Work Ombudsman, the small claims procedure, or a lawyer-run claim. Which one fits depends on the size of the underpayment, whether the employer is still trading, and how clean the records are.
Updated . General information, not legal advice.
Time limits that apply
| What | Limit | Source |
|---|---|---|
| Recovery period for underpaid wages and entitlements | 6 years back from the date the claim is made | Fair Work Act s 544 |
| Small claims procedure cap (Federal Circuit and Family Court) | $100,000 (raised from $20,000 on 1 July 2023) | Fair Work Act s 548 |
| If you were dismissed for raising the underpayment | 21 days to lodge a general protections application | Fair Work Act s 366 |
Do you need a lawyer for this?
Advice usually pays for itself when
- The amount is large, spans several years, or crosses more than one pay rise, and the employer disputes the classification or the hours.
- The employer is in financial trouble or has changed entity, and timing and the right respondent matter.
- You were dismissed or your hours were cut after you raised the underpayment. That is a general protections matter with its own 21-day deadline.
- The underpayment looks deliberate and systematic, which since 1 January 2025 can be a criminal matter for the employer.
The free route is usually enough when
- The amount is modest, the employer is still trading, and the rate question is clear-cut. The Ombudsman handles this free of charge.
- The claim is under $100,000 and you are comfortable with an informal court process where lawyers usually need the court's permission to appear.
How do I work out what I am owed?
Start with your classification under the award or agreement, then the base rate that applied on each date, then the penalties, overtime and allowances for the hours you actually worked. Rates change on 1 July each year after the annual wage review, so a claim that spans years has to use the rate in force at the time, not today's rate. FairWork Mate's historical pay rates tool holds the rate history for exactly this, and the back pay calculator turns hours and dates into a figure. Rosters, payslips, bank statements and your own diary of hours are the evidence. Employers must keep time and wage records, and a claim where the employer cannot produce them tends to be decided on the employee's evidence.
What is the free route through the Ombudsman?
The Fair Work Ombudsman on 13 13 94 gives free advice on the correct rate and can help you write to the employer. It can also take a request for assistance, contact the employer, and in some cases investigate and require back pay. It does not act as your lawyer and it chooses which matters to take on, so a modest, clear-cut underpayment with a cooperative employer is where it works best. Many underpayments are resolved with nothing more than a written request setting out the award, the rate, the hours and the shortfall. FairWork Mate's underpayment claim builder and enquiry letter produce that request for free.
What is the small claims procedure?
A stream of the Federal Circuit and Family Court, and some state courts, for Fair Work claims up to $100,000. The cap rose from $20,000 on 1 July 2023, which brought most underpayment claims within reach. The procedure is informal: no strict rules of evidence, a registrar or judge who helps unrepresented parties through it, and lawyers usually need the court's permission to appear. You lodge a claim form with your calculation and evidence, the employer responds, and the matter is listed. Court filing fees apply and are not stated here. It is designed to be run without a lawyer, and a well-prepared calculation is most of the work.
What changed with criminal wage theft?
Since 1 January 2025, intentionally underpaying an employee has been a Commonwealth crime. It applies only to deliberate conduct, not mistakes, and only to conduct after that date. An individual faces up to ten years' imprisonment, and fines are the greater of three times the underpayment or a fixed maximum. Prosecutions are a matter for the Ombudsman and the prosecuting authorities, not something you bring yourself, and they do not replace your civil claim for the money. What the criminal offence has changed is the employer's incentive to settle a clearly deliberate underpayment quickly, and a lawyer's letter that sets out the facts calmly lands differently than it did before.
When does a lawyer pay for itself?
When the amount is large enough that a contested classification argument or a disputed hours record decides tens of thousands of dollars. When the employer has stopped trading or moved the business into a new entity, because recovering from the right party in time is a legal task. When you were penalised for raising it, because a general protections claim runs on a 21-day clock alongside the money claim. And when the employer's conduct looks deliberate. Liquid Employment Lawyers is FairWork Mate's paid legal partner for these matters. It is an Australian employment law firm, not a free government service, and they set out scope and fees before you commit.
What if the employer has gone under?
If the employer is in liquidation or bankruptcy, the Fair Entitlements Guarantee may cover unpaid wages, leave and redundancy up to its limits, and FairWork Mate's FEG claim calculator explains the scheme in general terms. Superannuation is not covered by that scheme and is pursued through the Australian Taxation Office. Timing matters, and the moment you hear that administrators have been appointed is the moment to check the scheme's rules and to make sure your claim is lodged with the administrator. A lawyer can advise on whether directors or related entities can be pursued, which is a separate question with its own rules.
Free FairWork Mate tools for this
Talk to Liquid Employment Lawyers about this
Share a few details and their team will be in touch to talk it through. No obligation, and you decide whether to go further after that first conversation.
Liquid Employment Lawyers is an Australian employment law firm and FairWork Mate's paid referral partner, not free Fair Work advice. They discuss scope and any fees with you directly. FairWork Mate is not affiliated with the Fair Work Commission or the Fair Work Ombudsman. For free general guidance, use the tools above or call the Fair Work Ombudsman on 13 13 94.
Prefer to read about the partnership first? About Liquid Employment Lawyers
Common questions
How far back can I claim?
Six years from the date you make the claim, under the Fair Work Act. An underpayment that started seven years ago is recoverable for the most recent six. Interest may also be awarded by a court.
Do I need a lawyer for the small claims procedure?
No, and that is the design. Claims up to $100,000 go through an informal process where lawyers usually need the court's permission to appear. The work is in the calculation and the evidence, which the free tools help with.
Can I be sacked for complaining about my pay?
Asking about your pay or making a complaint is a workplace right. Dismissal or a cut in hours because of it is adverse action, and a general protections claim must be lodged within 21 days of a dismissal. Keep the complaint in writing.
Is Liquid Employment Lawyers free?
No. It is an Australian employment law firm and FairWork Mate's paid referral partner. Enquiring through the site is free and there is no obligation. The free official route is the Fair Work Ombudsman on 13 13 94.
Is an honest payroll mistake wage theft?
No. The criminal offence that started on 1 January 2025 requires intentional conduct. A mistake is still recoverable as a civil underpayment, with the same six-year reach, but it is not a crime.
Official sources
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General information and estimates only — not legal, financial or tax advice. Always check your specific award, agreement or contract, or a qualified professional, before you rely on the result.
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