WA Employer trying to recover benefit after not paying correct wages.

[ConysBear]

Hello,

I have an issue with my employer where they were not paying me (and other staff) the correct penalty rates and in my case, non payment of leave loading. While I was able to finally convince them of my correct entitlements under the Award for the penalty rates and loading and they have agreed to back date my pay, they are now stating I owe them eleven days worth of annual leave because they had given me (and everyone else) an extra day of annual leave when ever we were not scheduled to work on a day that was also a public holiday (rotational shift worker) because this entitlement is not given under the Award.

There is no formal written agreement for this benefit.

They are making this retraction a condition for the back pay.

They initially wanted the eleven days taken from the monies owed rather than the accrued leave I have stored.

Can they retroactively claim back a benefit they offered several years later, simply because it was never in the Award?

What information can I show them to shows this is not right?

 

[Rod]

Can they retroactively claim back a benefit they offered several years later, simply because it was never in the Award?

Unlikely.

What information can I show them to shows this is not right?

A letter from a lawyer

 

[ConysBear]

Unlikely.



A letter from a lawyer

Thanks the reply Rod, could you please expand more on your answer?

 

[Rod]

It is difficult to be precise due to the lack of detail, and on these forums only opinion can be given not advice.

I'd need to see the employment contract to see what is says about awards and leave. I'd need to know how many years they are attempting to claim back days (11?), is the employer covered by the Fair Work Act? Is there any other correspondence relating to the contract of employment?

With the above information I'd either say the employer has a good chance of claiming the days, or I'd be able to prepare a letter that tells the employer they are dreaming if they try to claim back an above award perk they granted years ago.

While I don't doubt you know the award, the other stuff is about common law and interpretation and requires proper evaluation before an answer can be given. Even then, an answer may well be a qualified answer to due to different interpretations of wording used.

 

[ConysBear]

It is difficult to be precise due to the lack of detail, and on these forums only opinion can be given not advice.

I'd need to see the employment contract to see what is says about awards and leave. I'd need to know how many years they are attempting to claim back days (11?), is the employer covered by the Fair Work Act? Is there any other correspondence relating to the contract of employment?

With the above information I'd either say the employer has a good chance of claiming the days, or I'd be able to prepare a letter that tells the employer they are dreaming if they try to claim back an above award perk they granted years ago.

While I don't doubt you know the award, the other stuff is about common law and interpretation and requires proper evaluation before an answer can be given. Even then, an answer may well be a qualified answer to due to different interpretations of wording used.

As I stated in my first post. There is no written agreement where the benefit were to be given, it is entirely verbal. I also stated that the Award does not include this particular benefit. The time period for my own situation is four years, for other employees who received the same benefit the time period is over ten years. I do not know if my employer is seeking over payment from other employees.

 

[Rod]

I understand the award doesn't cover the particular benefit, hence my comment about 'above award perk'.

Fours years keep it within the statute of limitations. The other employees can at least limit the claim based purely on this limitation.

Personally I don't think the employer has a strong case but without seeing more information I can't say one way to the other.