As mentioned in the PSA’s previous bulletins, the PSA is pursuing two claims against the Department in respect of judicial associates. One of those claims is an industrial dispute in which the PSA is alleging that Judicial Associations are covered by the Conditions Award and Salaries Award and have been covered since Associates became employed Public Servants. This claim is referred to as the ‘Historical Claim’. This claim is separate to the PSA’s goal of creating an award specifically for associates.

The PSA and the Department have been in settlement discussions since October 2023 to resolve the Historical Claim. On 9 April 2024, the PSA received a settlement offer which the PSA considers to be reasonable. The PSA wants your feedback before it responds to the offer.

Complete the short survey HERE on the settlement of the Historical Claim

Background

The PSA has received an offer to settle the Historical Claim. The Historical Claim is an industrial dispute before the Industrial Relations Commission in which the PSA is alleging that judicial associates are covered by the Conditions Award and Salaries Award. The relief sought in these proceedings are recommendations (which are non-binding) that the Department apply, retrospectively, the two awards and backpay the various entitlements provided under these awards.

While the PSA is confident that it will be successful in arbitration of this industrial dispute, the recommendations are non-binding. Additionally, the legal precedent dealing with the coverage of the Conditions Award is inconsistent. Accordingly, there is every possibility that if the matter proceeds to hearing the PSA will lose or, if we win, the Department will not comply with the recommendations.

The offer

The parties have been engaged in settlement negotiations since October 2023. On 9 April 2024, the Department made a further settlement offer. The key features of the offer are:

1. The Department accepts that both Awards apply and will retrospectively apply both Awards from 1 January 2020.
2. The Department will credit all leave balances in accordance with the Conditions Award retrospectively to 1 January 2020. In practical terms, this means that associates will receive an additional 5 days sick leave per annum – 15 days in total.
3. The Department will, in lieu of unpaid overtime, allowances and penalties accrued since 1 January 2020, pay each associate $6000 (prorated at $1500 per year for those who commenced employment after 1 January 2020).
4. To the extent any associate receives better employment conditions under their employment contract than those provided under the awards, the Department will continue to apply those superior conditions. This is a safety net in case any contracts provided superior conditions, which the PSA doubts.
5. As the Department has already been applying the salaries found in the Salaries Award, we do not anticipate any backpay of underpaid salaries.

In exchange, the PSA will withdraw the Historical Claim.

Notably, the above offer does not permit Associates to submit claims for backpay of overtime, allowances and penalties. Rather, under term 3, all associates will receive the same $6000 (pro-rated) in lieu of overtime, allowances and penalties. To be clear, Associates will be entitled to make these claims moving forward, as term 3 only deals with backpay.

The Department has not agreed to give associates additional leave in lieu of unpaid overtime, allowances and penalties.

Your worksite delegates, industrial staff and other members who have been instrumental in obtaining this offer, strongly recommend a ‘yes’ vote. To this extent, we note:

1. The offer represents a significant industrial win in which the Department concedes that associates are Award covered public servants.
2. If the matter proceeds to hearing, there is every possibility that the PSA will lose and the Commission will find that the Awards do not apply to associates.
3. Even if the PSA wins, the outcome will be in the form of non-binding recommendations.
4. In respect of term 3, this a better alternative than associates submitting claims for backpay noting that associates would be required to evidence such claims which will be impossible for the majority of associates due to the lack of any records recording the hours worked.

Only members have a say on this offer, so please encourage your colleagues to join today. We encourage you to forward this bulletin to a colleague, who can read more about joining here.

Please complete this survey to have your say on this offer.