Enforcing your entitlements

Contributed by CatherineRusso and current to 27 July 2018

Denied contractual benefits claim

Where an employee has been denied a benefit to which they are contractually entitled under a contract of service, they may make an application to the WAIRC under section 29(1)(b)(ii) of the IR Act.

A benefit due to an employee under an award or industrial instrument is not included as a benefit due under a contract of service. For example, a claim for an unpaid Christmas bonus would be brought in the WAIRC, but not a claim for basic award entitlement such as overtime payments.

Who can make a denied contractual benefits claim?

An employee may bring a claim who:

• earns below $162,990.00 (after 1 July 2018) or
• who is covered by an 'industrial instrument’ may make a claim.

An employee of a constitutional corporation (and so covered by the national system), may also be able to make a claim of denied contractual benefits in the WAIRC. This is because claims for enforcement of contracts of employment are considered to be non-excluded matters under the FW Act and may be dealt with by state law.

When does a claim need to be made?

A claim must be made within 6 years of the entitlement becoming payable.

Claim for unpaid entitlements

Claims are to be made to the Industrial Magistrates Court for:

• non-payment of a benefit under an order or Award of the WAIRC,
• for alleged breaches of the Minimum Conditions of Employment Act 1993 (WA); or
• small claims (up to $20,000) under the FW Act.

The Department of Mines Industry Regulation and Safety is also able to investigate alleged underpayments in the state system, and the Fair Work Ombudsman is able to investigate workplace issues, such as underpayments, in the national system.

Breach of contract claim

Either party to an employment contract, like any other contract, may lodge a common law claim for breach of one or more terms of the employment contract. For example, if an employee is constructively dismissed, or not given adequate notice of termination or payment in lieu specified under their employment contract, or the employee had not been paid such commissions or expenses that are required by the contract to be paid, the employee may seek damages for breach of contract.

The usual remedy for breach of contract claims is damages. Claims for breach of contract are exercised less frequently than other claims, and are usually made by more senior employees.

These claims are generally made in the Magistrates Court of Western Australia and must be brought within 6 years.