As you would be aware, the PSA has been in dispute with the Department of Customer Service since 2020 concerning a number of issues arising out of the introduction of the PCard in 2017.
Part of this ongoing dispute has been a disagreement between the PSA and the Department concerning the eligibility of field workers to access allowances under clause 29 of the Conditions Award covering meal allowances on one-day journeys. The PSA’s position is that field workers are entitled to these allowances, provided they meet the requirements under clause 29, specifically that the employee is authorised to undertake a one-day journey and that journey did not require them to obtain overnight accommodation.
The Department’s position is that field workers, specifically, SafeWork Inspectors, Building Inspectors and other inspectors within the Better Regulation Division, are not entitled to allowances under clause 29 if they are undertaking travel that doesn’t require overnight accommodation if it is within the geographical location within which they ordinarily work and that clause 29 is not engaged because it requires some travel that is out of the ordinary scope of a field worker’s duties.
The Department’s offer
The PSA and the Department attended conciliation before the Commission on 18 May 2023 and the Department made the following offer:
- Commencing 1 July 2023, all field workers would be entitled to allowances arising under cl 29 of the Conditions Award if they met the required conditions. Importantly, any travel taken in the ordinary course of their duties within their designated geographical region will attract the allowances provided the other terms of cl 29 are met (i.e. breakfast allowance if required to commence travel at or before 6am or an hour before start time, lunch allowance if travel at least 100km in a day and more than 50km away from HQ at lunch time or dinner allowance if travelling until 6:30pm).
- No backpay to any field workers for any claims previously arising under cl 29.
The PSA’s offer
The PSA advised that subject to the instructions of membership, it would be prepared to resolve the proceedings on the following basis:
- Same terms as set out at Point 1 of the Department’s offer.
- Full back pay for all field workers, specifically, inspectors within the Better Regulation Division (other than SafeWork Inspectors), for a set period. This period will commence from when the Department stopped approving cl 29 claims for field workers until 1 July 2023. This is premised on the proposition that these employees have received the allowances under cl 29 until somewhat recently.
- A one-off lump sum payment to SafeWork Inspectors equivalent to 4 years back pay of allowances (applied by reference to the average back payment determined for other inspectors within BRD). This would be a pro-rata lump sum for those not employed for the full four years prior to the payment.
The Department is presently considering whether it will agree to any back payment. During this time, we want to obtain the endorsement of members in relation to the above offer. The PSA recommends the above offer for the following reasons:
- The above offer ensures that going forward, the Department adopts the PSA’s interpretation of cl 29 of the Conditions Award and the entitlements of field workers. This will avoid the PSA having to arbitrate this issue in the IRC, which could result in the IRC finding that field workers across the public service are not entitled to cl 29 meal allowances. Additionally, the IRC’s orders on award interpretation matters are non-binding meaning that even if we won the Department would not be bound by the decision. If we come to a private agreement with the Department, that agreement is binding.
- The second point of the above offer addresses the entitlements of field workers who have until recently been receiving the allowances. We understand that this includes all field workers who are not employed as SafeWork inspectors. This offer will provide all of these field workers with full back pay and should be endorsed for that reason.
- The third point addresses SafeWork inspectors. SafeWork inspectors were excluded from the second point as we understand that SafeWork inspectors have not received these allowances for many years (if ever) when travelling within their normal geographical area. Under this offer, inspectors are entitled to back payment for 4 years. At law, the backpay entitlement is 6 years. This concession is reasonable considering that:
- Inspectors would not need to provide evidence or otherwise prove and calculate their underpayment, which may be impossible for some
- It would avoid a further hearing on this issue, which the PSA may lose.
- By avoiding a hearing, inspectors will receive the back payment sooner rather than after the case is decided.
- It is a greater inducement to bring the Department to the table.
If the Department rejects the PSA’s offer and we reject the Department’s offer, the matter will need to be arbitrated. We may lose the arbitration which would mean no back pay and no entitlement moving forward for any field workers. If we arbitrate and win, and assuming the Department agrees to be bound by the Commission’s decision, each member will need to overcome the difficulties of calculating and evidencing their underpayments which is time consuming and to some extent impossible.
Your union is therefore seeking your endorsement to put this proposal formally to the Department and to bring this matter to closure.
You are requested to respond via THIS SURVEY, which is now open and will close on Friday of this week, 26 May 2023 at 5:00pm. Our apologies for the short timeframe. We are due back in the Industrial Relations Commission next week and need to have a decision on this offer resolved by then.