Abstracts Category : Other

Unjust enrichment and employee overpayments in Western Australia

by Cory Fogliani

Overpaid remuneration is an ordinary aspect of the employment relationship. From time to time, it happens. What is extraordinary is the lack of attention that this issue has received from the legislature, and from legal scholars. The resolution of overpayment disputes between employers and employees has been left almost entirely to the common law. This thesis looks at how employers and employees in Western Australia can use the law to resolve an overpayment dispute. It does so through the lens of unjust enrichment law. In particular, this study examines how the truck provisions in the Minimum Conditions of Employment Act 1993 (WA) and in the Fair Work Act 2009 (Cth) limit an employers ability to unilaterally deduct an overpayment from the pay of an employee; what an employer needs to prove in order to establish a prima facie case for restitution of an overpayment; how an employee can use the restitutionary defences to rebut the employers prima facie case; what strategies an employee can utilise to defend against a claim by their employer for overpaid tax or superannuation; and, the remedies that are available to an employer who is successful in an unjust enrichment-type claim against an employee. This thesis concludes that the common law is not always a practical mechanism for resolving overpayment disputes between employers and employees. This is because of the costs involved in litigating in the common law courts. This thesis recommends that the Western Australian and Commonwealth legislatures should make legislative changes in order to better facilitate the resolution of overpayment disputes that arise in an employment context. This thesis also provides some suggested wording that the legislatures could adopt to implement that recommendation.Advisors/Committee Members: Van der Waarden, Natalie, Brown, Murray, Brohmer, Jurgen.