Employer tries to recover almost $40,000 in alleged overpayments
The Fair Work Commission (FWC) recently dealt with a dispute about an alleged overpayment to a worker and whether the Commission had the power to arbitrate the matter.
The worker argued he was entitled to a higher pay rate for an extended period, despite his employer claiming he had been overpaid. The worker maintained that he continued performing higher duties even after his temporary appointment officially ended.
He also argued that he had properly followed dispute procedures while still covered by the relevant enterprise agreement, and that his right to have the dispute determined should continue even after moving to a new role outside the agreement's coverage.
The case looked at issues of agreement interpretation, dispute resolution procedures, and the Commission's powers to arbitrate disputes under enterprise agreements.
‘Overpaid’ worker
The dispute started when an employer said it had overpaid a worker and wanted to recover $39,615.88. The worker said he wasn't overpaid and was entitled to the higher rate he received.
The worker had been employed since 2013 and was working at the employer's Altona Refinery when the alleged overpayment happened. He later moved to an offshore role in December 2023, which meant he was no longer covered by the agreement governing Altona operations.
The overpayment dispute was about a period when two enterprise agreements were in effect - one that ended in December 2022 and a new one that started in April 2023.
The worker had been in a temporary higher-level role as a Zone Team Leader (ZTL) from December 2020. This role was supposed to end in March 2022, but the worker said he kept doing ZTL duties and was paid the ZTL rate until May 2023.
Can the FWC decide?
The main question for the FWC was whether it had the power to decide on the dispute, given that the worker was no longer covered by the relevant agreement when he filed his application.
The employer argued the Commission didn't have jurisdiction because the dispute was mainly about the old agreement that had ended. It also said that the worker hadn't followed proper dispute procedures, and that he wasn't covered by the agreement when he applied to the FWC.
Meanwhile, the worker said that the dispute was about both the old and new agreements. He further said that had followed proper procedures while still covered by the agreement, and that he is right to have the dispute decided continued even after moving to a new role.
FWC’s analysis of jurisdiction
The Commission had to decide on several key points:
- If there was a valid dispute under the 2023 agreement
- What powers the FWC had to deal with disputes under the agreement
- If dispute procedures were properly followed
- If the FWC's power to arbitrate was triggered before the worker stopped being covered
The Commissioner looked closely at the dispute settlement clause in the agreement, saying:
The Commission found there was a valid dispute about matters under the 2023 agreement, for the period of April 12-May 2, 2023 when that agreement was in effect.
The Commissioner found that the FWC's power to arbitrate was triggered on November 27, 2023 - before the worker moved to his new role. The Commissioner explained:
"The Commission's power to arbitrate this dispute was enlivened on 27 November 2023. At this time, [the worker] was covered by the 2023 EA, had complied with its terms and had a right that accrued under that Agreement to have a dispute determined by the Commission."
The Commission decided it had the power to determine the dispute for the period of April 12-May 2, 2023 under the 2023 agreement. The Commissioner said:
"I am satisfied [the worker] has met these requirements under the 2023 EA in this matter. Consistent with these authorities, I am satisfied he is entitled to have his dispute determined on this basis."
As the Commissioner concluded:
"For the reasons cited above, I am satisfied the Commission has the power to determine [the worker's] dispute in relation to the period from 12 April 2023 – 2 May 2023 under the 2023 EA."
