The Australian government has released its report on the review of the federal court system for claiming unpaid wages. It adopts several key reforms we proposed in last year’s All Work, No Pay report, which we submitted in draft to the review. These include a new ‘equal access costs’ model that will remove unfair legal costs for workers who successfully recover the wages they are owed.
The report acknowledges that the ‘small claims’ jurisdiction remains ‘underutilised’ with just 137 small claims filed in 2023-23.
Australia’s inaccessible wage claim system cannot be allowed to continue. Implementation of an equal access costs model and other recommended reforms must be a priority for whichever government wins the upcoming federal election.
Dated February last year but only released in 2025, the report contains findings from the Department of Employment and Workplace Relations’ review of the Federal Circuit and Family Court procedure available for claiming unpaid wages up to $100,000.
all work, no pay recommendations adopted
Under our ‘equal access costs’ model adopted by the review, a court could order employers to pay the legal costs of workers who succeed in their wage claim against the employer. However, where an employee is unsuccessful, each party would bear its own costs (as is currently the case) unless the worker’s claim is unreasonable or vexatious. This means workers who take their employer to court would no longer have to deduct legal fees from the wages the employer was required to pay in the first place, and would not have to incur the risk of legal costs if they bring a reasonable, but ultimately unsuccessful, wage claim. This would remove a critical obstacle to underpaid workers pursuing wage claims and increase the availability of private lawyers willing to assist vulnerable workers.
The next government should also implement the following further reforms set out in our All Work, No Pay, which the review recommends for government consideration:
Simplification of Court application forms;
Visa protections to remove barriers to migrant workers’ pursuit of claims;
Extension of the Fair Entitlements Guarantee (FEG) to temporary visa holders when a business liquidate leaving wages unpaid;
Additional funding for community legal services, including the establishment of duty lawyer services; and
Consideration of the extension of the small claims jurisdiction to a tribunal and establishment of a new federal industrial court.
In addition, the report recommends government consider an automatic exemption from filing fees (around $265) for workers aided by a migrant worker centre, union or the FWO, or is claiming less than $5,000, and clear communication of the fee wavier on the court’s website. It suggests government produce a ‘do it yourself’ kit for applicants along with additional information for vulnerable workers including in languages other than English.
reforms must go further
These reforms will go some way towards improving the effectiveness the wage claim process for migrant workers. However, All Work, No Pay sets out further critical reforms which are necessary to ensure migrant workers can meaningfully access justice for wage theft. Most importantly, we recommend:
A new Wages & Superannuation Calculation Service, providing workers with a free and accurate calculation of the amount they are owed, based on information the worker provides about their job and the hours they worked
Simplified rules guiding the service of an applicant’s documents on their employer
Greater support for parties through case management processes, with new legislative consequences for respondents who fail to attend a hearing or comply with key procedural steps;
A new wage guarantee scheme, administered by the Department, to ensure any worker with a court judgment in their favour receives their entitlements if the employer disappears or refuses to pay.
Without these reforms the wage claim process will remain inaccessible to migrants and many other workers, leaving basic labour protections in Australian law practically unenforceable and effectively hollow. Implementation of an equal access costs model and other recommended reforms must be a priority for whichever government wins the upcoming federal election.