Update: Psychologists Reclassification Dispute
In December 2023, the Public Service Association (PSA) lodged a dispute in the Industrial Relations Commission (Commission) against the Department of Communities and Justice (the Department) in relation to the reclassification process of Psychologists and Senior Psychologists to Specialist Psychologists or Senior Specialist Psychologists.
The Dispute
The Department’s position was that only psychologists with a master’s degree (in an area deemed relevant of at least 2 years full time duration or its equivalent) were eligible for reclassification to Specialist or Senior Specialist Psychologist. The basis for this is that the Guidelines for Reclassification of Psychologists (Guidelines) included a cutoff date which restricted employees from applying without a master’s degree beyond 30 June 2008.
It was the PSA’s position that the Crown Employees (Psychologist) Award (Psychologist Award) provided that an employee would be eligible if they had a master’s degree or higher as described above OR education, experience and training deemed by the Department to be equivalent. The Department had not identified any education, experience or training which would be deemed equivalent other than a master’s degree. Relevantly, there is no restriction currently in the Psychologists Award which prevents the Department from considering relevant education, training and experience and it is the PSA’s position that the Department has been providing employees with incorrect advice about eligibility for reclassification.
As a result of this dispute, the PSA and the Department met over the course of several months and as a result, agreed on revised Guidelines (Revised Guidelines) that were consistent with the Psychologist Award, and a set of criteria which employees could reference to demonstrate that they had equivalent education, experience or training for the purposes of applying to be reclassified.
The reclassification process that occurred in mid-2024 was the first reclassification process in over 10 years during which the Department took into consideration an employee’s education, training and experience if an employee did not have a master’s degree. The PSA understands that a number of employees across the Department applied who have previously been advised by the Department that they were ineligible as they did not have a master’s degree.
Backpay Offer
As part of the Dispute, the PSA sought to get the Department’s agreement on a framework for backpay for employees that were successfully reclassified in 2024 that could satisfy the Department that they would have been successfully reclassified to Specialist or Senior Specialist Psychologist at an earlier stage if the Department considered their experience, training and education.
The Department has provided a best and final offer in the following terms:
Eligibility
- For an employee to be eligible to be considered under this proposal they must:
- have been successfully reclassified to Specialist Psychologist or Senior Specialist Psychologist in 2024 by way of a reclassification committee.
- can demonstrate that at a specified date they would have met the relevant criteria to be reclassified to either:
- the position of Specialist Psychologist from the position of Psychologist or Senior Psychologist; or
- the position of Senior Specialist Psychologist from the position of Senior Psychologist.
by reference to cls 4 and 5 of the Crown Employees (Psychologists Award) (the Award).
- To be entitled to any payment, the employee will enter into an appropriate Deed of Release and Settlement prepared by the respondent.
- The Department will consider outliers on a case-by-case basis. For example, employees who are on maternity leave in 2024.
- For the purposes of the Department’s best and final offer, Corrective Services NSW would convene two reclassifications this year.
Quantum
- To those employees that meet the eligibility requirements outlined above, the Department will offer a maximum lump sum payment of $15,000 per person.
- The maximum lump sum payment of $15,000 is payable if the employee would have met the relevant criteria on or before 29 May 2018 (6 years prior to 29 May 2024).
- The quantum payable to any employee that would have met the relevant criteria to be reclassified at a later date than 29 May 2018 will be assessed on a pro rata basis e.g. if the Department considers an employee would have met the criteria on 29 May 2021, the Department will offer the employee a lump sum payment of 50% of the maximum amount, being $7,500.
Overview of the Department’s Offer
The Department’s offer provides employees who may have been eligible to be reclassified at an earlier date the ability to demonstrate this to the Department and receive a lump sum in recognition of this.
In terms of employees of Corrective Services NSW (CSNSW), it has been the position of the Department for the past few years, with the exception of 2023, to convene two reclassification committees. The Department has confirmed that for the purposes of the best and final offer, CSNSW would convene two reclassification committees in 2024. If the offer is not accepted, there is no requirement that CSNSW reconvene a second reclassification in 2024.
If the Department’s offer is not accepted, this will mean that the PSA would have to consider whether it seeks to arbitrate the dispute before the Commission in order to try and obtain backpay for employees. This means that the decision about whether employees would be entitled to backpay would be determined by the Commission and there is no guarantee that the Commission would determine that any employees are actually entitled to backpay. This is potentially the outcome of any arbitration of this dispute, in circumstances where there is no automatic entitlement to be reclassified under the Psychologists Award. In short, rejecting the Department’s offer may result in employees who would otherwise be eligible under the Department’s current offer not receiving any payment in recognition of the fact that they may have been successfully reclassified at an earlier date if their education, experience or training had been considered.
If the Department’s offer is rejected and the PSA decides to arbitrate this dispute, this would require members who wish to obtain backpay to give evidence in the Commission, which would likely include providing evidence about how they say they satisfied each criteria for the relevant classification at some earlier date.
Under the current offer, any employee who believes they are entitled to more than $15,000 is able to seek their own external legal advice about what avenues they have to pursue this.
The PSA and Psychology Advisory Group (PAG) endorses the acceptance of the Department’s offer and a ‘yes’ vote.
We invite psychologist members to vote on The Department’s offer here https://www.surveymonkey.com/r/Y5Z9GBW which will inform the PSA’s position.
The survey will close at 5 pm on Tuesday, 23 July 2024.
If you have any questions about the specifics of the above offer, please contact one of the PAG delegates identified below: