Information about the claim process
DISCLAIMER: The contents of this website should be used as a general guide only. Precautions have been taken to ensure that the information is accurate, but the Court does not guarantee, and accepts no legal liability whatsoever arising from or connected to, the accuracy, reliability, currency or completeness of any material contained on the website or any linked site. This website is not to be taken to be a substitute for independent professional advice and users should obtain any appropriate professional advice relevant to their particular situation.
Types of claims |
The Court can deal with breaches of legislated minimum entitlements and industrial instruments (such as awards, industrial or enterprise agreements, and Orders). Claims can be made pursuant to the:
In addition to its power under the Industrial Relations Act 1979 (WA), the Court can hear certain matters pursuant to the Construction Industry Portable Paid Long Service Leave Act 1985 (WA) and the Children and Community Services Act 2004 (WA). Two main types of claims that can be made to the Court are:
Minimum entitlements A claim for minimum entitlements can be made when an employer has not paid an employee an entitlement due under industrial legislation or an industrial instrument (such as an award, industrial or enterprise agreement, or Order). External publications that may provide guidance with this type of claim include:
Please note the Court is not responsible for the content of external publications or the services of external providers. Protected employee rights A claim for protected employee rights can be made when an employer covered by the state system of employment laws has done one of the following:
External publications that may provide guidance on this type of claim include:
Please note the Court is not responsible for the content of external publications or the services of external providers. |
Making a claim |
To make a claim for minimum entitlements or protected employee rights, you must lodge all three of the following forms: When completing these forms, please note the following:
The completed forms can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgment fee is $40.00. Once you have lodged your claim, you will usually have 30 days to serve the respondent/s. After you have served the respondent/s, you must lodge an affidavit of service with the Court. |
If you have been served a Form 1.3 – Respondent’s Copy where you are a named respondent, it is important that you lodge a completed Form 2 – Response with the Court within the time specified on the front of the form. The time specified will either be 21 or 28 days. The completed form can be lodged with the Court by email to electroniclodgementIMC@wairc.wa.gov.au. The lodgment fee is $5.00. You must then serve the claimant with a copy of your response within 14 days of the lodgement of your response. If you do not do these things, the claimant may obtain default judgment against you. When completing your response, you must select one of the following options in the Response section:
If you are not wholly admitting the claim, you need to provide your reasons for this. |
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If a response has been lodged which does not wholly admit the claim, the Court will arrange a pre-trial conference. A pre-trial conference is a meeting between the parties facilitated by a Clerk of the Court. It is an opportunity for the parties to confidentially discuss the claim and come to an agreed resolution without the need to go to a hearing. Attendance is compulsory and you should let the Court know as soon as possible if you have any concerns about attending or accessibility by contacting the Registry on (08) 9420 4467 or registry@wairc.wa.gov.au. If the claim cannot be resolved at the pre-trial conference, it will be scheduled to proceed to a hearing. This may involve the Clerk of the Court making orders to help prepare the matter for hearing. These orders can include: The requirement for one or more parties to lodge Case Outlines/Further and Better Particulars of Case Outline. The Industrial Magistrates Courts Practice Direction No. 1 of 2017 outlines the procedures to be followed for these outlines at point[1] Programming the matter to substantive hearing which may include timelines for the exchange of documents between the parties, including witness statements |
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Initial hearing |
An Industrial Magistrate will conduct an initial hearing before a claim goes to the substantive hearing. The purpose of an initial hearing is to:
List the claim for a directions hearing and/or a substantive hearing |
A substantive hearing is where the Court will hear and determine the substance or merits of the claim in dispute. It is a formal process held at the Court where each party presents their version of what has happened to an Industrial Magistrate. Hearings usually proceed in the following manner:
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Decision |
The Industrial Magistrate looks at the evidence , decides the outcome of the claim and makes an order/s. The Industrial Magistrate may give their decision and make orders at the end of the hearing or they may reserve their decision (meaning they will give their decision and make orders at a later date). The Court’s decisions are required to be published online and remain on the public record. |
Final Order |
If a final order is not complied with, an application for enforcement can be made 21 days from the date of the order. To do this, you first need to contact the Court on (08) 9420 4467 or registry@wairc.wa.gov.au to request a certified copy of the final order. Once you have obtained this, you will need to attend your local Magistrates Court and provide a copy of the certified order and an affidavit stating to what extent the order has not been complied with. The affidavit form will not be the same as the Court’s forms. If you have any questions regarding the processes involved with the Magistrates Court, please contact the Magistrates Court directly on (08) 9425 2222. The Court is a separate court to the Magistrates Court and cannot answer any questions relating to the processes involved in enforcing orders. |
Appeal |
You may be able to appeal a decision of the Court to the Full Bench of the Western Australian Industrial Relations Commission or to the Federal Court of Australia. Please note, timeframes for appealing may apply and can be as short as 21 days. It is suggested that you seek legal advice to determine which commission or court is appropriate for your appeal. |
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