Denial of contractual entitlements claims
Employees who have not received wages or other benefits due under an employment contract can make a 'Contractual Entitlements Claim' to the Western Australian Industrial Relations Commission.
What is a contractual entitlement?
A contractual entitlement is any benefit (e.g. pay, leave or allowances) that is an agreed term of a contract of employment.
For employees covering by awards, enterprise bargaining agreements or employer-employee agreements, any agreed pay and conditions which employees may be entitled to in addition to what is in the award or agreement, for example, an over-award payment or bonus, would be considered a contractual entitlement. For award-free employees, all agreed pay and conditions that are not covered by the Minimum Conditions of Employment Act 1993 or other legislation would be a contractual entitlement.
Any wage or benefit that is provided in an award, enterprise bargaining agreement, employer-employee agreement, or the Minimum Conditions of Employment Act, is not considered a contractual entitlement for this type of claim. [For information on claiming award underpayments, see the Complaints about Wages page].
It is important to note that a contract of employment does not have to be a formal written document. Entitlements provided under an unwritten contract are also enforceable, however employees will need to provide clear evidence of the existence of such entitlement.
Lodging a claim
A claim for outstanding contractual entitlements must be lodged with the Western Australian Industrial Relations Commission (WAIRC). The appropriate form and supporting information is available from the WAIRC website.
Claims for denied contractual entitlements are often lodged in conjunction with unfair dismissal claims, and employees can use one form for both types of claim.
Time limit
An employee has 6 years in which to make a contractual entitlement claim to the WAIRC. If an employee is making a joint contractual entitlements and unfair dismissal claim, the standard unfair dismissal lodgement deadline of 28 days after termination will apply.
Process
The process for determining a contractual entitlements claim is the same as that for an unfair dismissal claim.
Employer's response
Once the claim has been lodged and a copy served on the employer, employers then have 21 days after receipt of the application to lodge a response with the WAIRC. The response is called a "Notice of Answer and Counter Proposal". A copy of the stamped response must be also served on the claimant employee.
Mediation and conciliation
The Registrar of the WAIRC will generally list the matter for mediation. This is an opportunity for employers and employees to discuss the issues and attempt to resolve the matter without the need to go to a hearing. The Registrar or a WAIRC representative conducts the mediation and both parties are required to attend. There is a further opportunity to informally resolve the matter before a Commissioner at a conciliation conference.
Mediation and conciliation are both informal situations, however the parties should be prepared to present their case. The representative of the Commission acts to assist the parties in resolving their dispute. If the parties fail to reach resolution, the matter is usually listed for arbitration where a ruling will be made as to the merits of the claim.
Arbitration
The arbitration hearing is a more formal 'court type' process. The parties will be advised of the hearing date via a Notice of Hearing. The respective parties will be required to present their case, and support their position with formal evidence. The Commissioner then has the authority to grant or dismiss the contractual entitlements claim.
Representation
Employees making a contractual entitlement claim can represent themselves during proceedings, can appoint an adult person as a representative, or can engage professional representation. A list of legal practitioners and registered industrial advocates can be found on the WAIRC website.
DOCEP does not have standing under the legislation to commence an action for a contractual entitlements claim or to represent the interests of employees.
Possible outcomes
The contractual entitlements claim will either be dismissed or granted. If granted employers can be ordered to pay or provide employees with the entitlements that were the subject of the claim.