In addition, under the Fair Work Act, 2009 (Cth) (Act FW) and the Fair Work Regulations, 2009 (Cth)[6], employers are required to keep various records (and provide employees with detailed pay slips). This may include the obligation to record and/or report the number of overtime hours worked, the average of the hourly arrangements, the number of hours normally worked and similar matters. Failure to comply with these requirements is one of the most common forms of violation of the FW Act by the employer. There are a number of common pitfalls that employers should avoid when drafting and implementing a common law set-off clause. Employers should note the following: The Fair Work Board itself has clarified that employers and employees are not required to rely solely on an annual wage plan – they may choose to enforce the normal common law contract with a compensation clause as described above. As the Commission noted, « model clauses (in arbitral awards) are not intended to invalidate or regulate such contractual arrangements ». [13] This view is consistent with the approach taken in many of the key cases discussed above. The recent high-profile case of Macquarie Bank`s underpayment of arbitration claims is a timely reminder of the importance (and legality) of set-off clauses written in common law contracts and other legitimate set-off options. The legality of common law set-off clauses was reconfirmed by the Full Court of the Federal Court of Justice in Linkhill Pty Ltd v Director, Office of the Fair Work Building Industry Inspectorate (2015) FCA FC 99. It is common for a number of specific additional obligations to be listed in detail in the compensation clauses, but the salary can also be used to offset other obligations or payment claims. Sometimes this can be done by listing certain attribution clauses by number and title.
This has the allure of clarity and certainty, but can become problematic if the award itself is changed or if more than one clause is (or becomes) relevant to the particular claim. See De Magno v. United States, 636 F.2d 714, 727 (D.C. Cir. 1980) (The District Court had jurisdiction to hear VA`s claim for compensation for « affirmative action against an individual, » whether by granting a recurrence action on a claimed claim or by proceeding with its common law discount right ») (Discussion of similar language in the previous act, 38 U.S.C§ 211) Recent high-profile cases related to the alleged underpayment of employee claims have drawn attention to: whether employers can rely on set-off clauses in common law contracts and other forms of annualized wage agreements to meet their contracting obligations. In addition, the Fair Work Board recently released new « annualized wage clauses » that will be incorporated into a variety of modern prices. In some cases, the courts have found that where a surtax rate is paid but the contract does not explicitly attribute the over-allocation component to a specific attribution obligation, the employer is free to « appropriate » a portion of that component to satisfy a particular award debt by simply claiming that the money paid is now being used to fulfill that particular obligation. [8] This approach follows from the general common law principles of creditors` obligations: the creditor may choose to allocate the surtax to a specific part of a debt or security (provided that the over-allotment component has not already been allocated elsewhere). Set-off is a legal event and, therefore, a legal basis is needed to assume when two or more gross claims are net. Among these legal bases, a common form is the legal defense of compensation, which was originally introduced to avoid the unjust situation where a person (« Party A ») who owed money to another (« Party B ») could be sent to the prison of the debt, even if Part B also owed money to Part A. The law thus allows both parties to defer payment until their respective claims have been heard by the court. It worked as a just shield, but not as a sword.
With judgment, both claims are extinguished and replaced by a single net amount due (for example.B. if Part A owes 100 to Part B and Part B owes 105 to Part A, both amounts will be offset and replaced by a single obligation of 5 from Part B to Part A). .