<p dir="ltr">This report reveals why the small claims system has not been working for migrant workers and sets out a roadmap for reform. Our recommendations build upon work that is already underway within the FCFCOA to improve access to justice in the small claims process. The findings and recommendations are drawn from data from the FCFCOA and the Fair Work Commission (FWC); analysis of survey data from over 15,000 migrant workers; consultations with trade unions, academics, community organisations and legal service providers; and first-hand observations of 25 small claims hearings.</p>
Publisher
Migrant Justice InstitutePlace of publication
Sydney, AustraliaPagination
1-81Research statement
Research background
This research concerns migrants’ access to justice. Previous research identified that many migrant workers in Australia are underpaid, but very few recover their unpaid wages (Wright and Clibborn, 2020; Farbenblum and Berg, 2018). An extremely small number use the dedicated “Small Claims” court jurisdiction to recover wages: in 2022-23, only 137 attempted to do so across the country. There was no in-depth research examining why this is the case for migrants on temporary visas.This research seeks to identify the impediments to migrants recovering unpaid wages through the Small Claims jurisdiction, and the reforms needed to overcome these impediments.
Research contribution
We found that without help, many migrants cannot identify their legal entitlements, determine how much they are owed, or complete the court application. If they file a claim, they have difficulty serving their application on their employer, navigating complex technical court processes, addressing delays by their employer, and actually being paid if they win. Our report sets out a comprehensive roadmap for reform, including four effective ways to increase necessary legal assistance, measures that establish simpler and more flexible processes within the current system along with proposals for a new system, and reforms to ensure that migrants who succeed in court ultimately get paid.
Research significance
The report was endorsed by 24 community legal centres, NGOs, university legal services and anti-trafficking organisations, including the NSW Anti-Slavery Commissioner. The authors’ article in The Conversation had over 5,800 readers. The Court’s CEO invited the authors to work with him to identify process-related changes the Court can adopt. The Department of Employment adopted several of the report's key recommendations in its report on its review of the ‘small claims’ process. The ACTU adopted the report’s recommendation for a new Fair Work court in its media work in 2025.
