Who can bring a claim?
To make an application for denied contractual benefits at the Commission, you will need to show that:
- you are or were an employee employed under a contract of employment;
- you are due a benefit under the contract of employment;
- you have been denied this benefit by your employer or former employer; and
- the benefit is not an entitlement under an award, industrial agreement or Act.
Note: claims for non-payment of a benefit under an order, award of the Commission or industrial agreement, or for alleged breaches of the Minimum Conditions of Employment Act 1993 (WA) are to be made to the Industrial Magistrates Court, not to the Commission.
Please also note that the Commission cannot determine an application for denied contractual benefits if:
How do I submit a claim?
Who is my employer?
Your employer is not necessarily the director, owner or manager of the business. To identify your former employer, one or more of the following may be helpful:
You could also try to obtain company information from the Australian Securities and Investments Commission (ASIC) or the Department of Mines, Industry Regulation and Safety.
What happens next?
After you have submitted your Form 3, the Commission’s Registry will:
- check the form to make sure that it contains all the required information;
- if the form is complete, send a copy of it to you for your records; and
- serve a copy of it on your employer or former employer. There is no need to serve a copy of your Form 3 on your former employer unless you are instructed to do so.
If your employer or former employer intends to respond to the claim, they can file a response. This must be done within 21 days of being served a copy of your claim.
After your application has been filed and your employer or former employer has had an opportunity to file a response, your matter will be allocated to a Commissioner and listed for a conciliation conference.
What is a conciliation conference?
In the context of the Commission, a conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.
Conciliation conferences are private and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be used against one of the parties if the matter goes to hearing. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim. The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited. An agreement may be reached during or after the conference, the parties have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.
For more information, please read the Commission’s conciliation conference fact sheet by clicking here.
Possible outcomes of conciliation
- Agreement may be reached during or after the conference.
- If agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.
What is a hearing?
A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a room that is similar to a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.
Interlocutory or preliminary hearings
There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) matters may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents.
Some examples of preliminary issues include:
- whether the Commission has jurisdiction to deal with the application;
- whether the employee is under the salary cap; or
- whether the Commission can accept an application that was made out of time.
There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.
A Directions hearing is similar to a preliminary hearing. It is where the Commission will set out how the matter will progress. This can include setting out a timeline for when things ought to occur such as discovery, or when things are to be filed with the Commission, such as outlines of submissions or witness statements.
A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute.
For more information, please read the Commission’s hearing fact sheet by clicking here.
For information on evidence, please read the Commission’s evidence fact sheet by clicking here.
For information on representation and representing yourself, please read the Commission’s representation fact sheet by clicking here.
- If your claim is successful, the Commission may order your employer or former employer to provide you with the benefit that you were denied. No interest or penalty is applicable.
- If the Commission makes an order in your favour, and your former employer does not comply with the order, you can apply to the Industrial Magistrates Court to have the Commission's order enforced. The Industrial Magistrates Court can also impose a penalty of up to $5,000 on the employer for non-compliance with the Commission's order.