Enterprise Agreement Underpayment: How to Check and Claim

A registered enterprise agreement is made under Part 2-4 of the Fair Work Act 2009 and, once registered by the Fair Work Commission, applies in place of the modern award. Being a fair work instrument, its terms are enforceable: its rate schedule, its ordinary-hours definition and its overtime and penalty clauses all have legal force. Paying below them is a civil remedy provision — the same category of breach the law lets you pursue for any underpayment. What distinguishes an agreement is that you can measure your pay against a specific, negotiated document for your workplace. The broader comparison with awards is in Modern Awards vs Enterprise Agreements.

Get a copy of your registered enterprise agreement and compare your actual pay against it, clause by clause:

• Rate schedule — is your hourly rate at least the rate for your classification in the agreement?
• Ordinary-hours clause — how does the agreement define ordinary hours and their spread? Hours outside that are candidates for overtime.
• Overtime and penalty clauses — did you receive the agreement's overtime multiplier and penalty rates for the hours and days that qualify?

Whatever the agreement says on these points is what governs your pay — not the general modern award, and not a rate borrowed from elsewhere. Read the multipliers off your agreement.

To reconcile properly, you need the employer's own records. Request, in writing, your employee records and pay slips. Your employer must keep employee records for 7 years (art. 535) and give you a pay slip within one working day of paying you (art. 536). Keep proof of your request.

If the employer produces the records, you can match them line by line against the agreement and your own time log. If the employer failed to keep the required records, that failure is not the end of the road — it triggers the rule in the next step.

Where the employer was required to keep records or give pay slips and failed to do so, in proceedings the employer bears the burden of disproving your allegation about hours and amounts (art. 557C) — unless they show a reasonable excuse (art. 557C(2)). Your own contemporaneous, timestamped log of hours stands as your allegation, and the missing records put the onus on the employer to disprove it.

The Fair Work Ombudsman (FWO) is the free, official body for information and mediation. Many agreement-underpayment matters resolve here — the FWO can explain your entitlements under the agreement and help mediate with your employer — without a court ever being involved.

If it is not resolved, two routes lead to recovery:

• Small claims procedure (art. 548). The simplified, less formal path before a magistrates court or the Federal Circuit and Family Court of Australia (Division 2). The court may not award more than $100,000 (art. 548(2)) — and crucially, interest does not count towards that cap (art. 548(2A)). Proportionate for most files.
• Ordinary application (art. 545). A standard application before the Federal Court or the Federal Circuit and Family Court, without the $100,000 ceiling — for larger or more complex claims.

Act within the window. An application may be made only within 6 years after the contravention occurred (art. 544), and a court must not order an underpayment for a period more than 6 years before the proceedings commenced (art. 545(5)). Each unpaid pay period runs its own six-year clock, so the oldest hours fall away first.

• How to Recover Unpaid Wages in Australia: Step-by-Step Underpayment Claim
• Modern Awards vs Enterprise Agreements: What's the Difference?
• Pay Slip Errors: What to Do If Your Overtime Is Missing