VIC Casual employees in Victoria Public Service

Discussion in 'Employment Law Forum' started by Trevor Thomas, 18 June 2019.

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  1. Trevor Thomas

    Trevor Thomas Active Member

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    I have a question to any aspiring Industrial lawyer. Casual employees prior to the introduction of the Federal Award on 31/03/2000 ( Public Service (Non Executive Staff-Victoria )(Section 170MX ) Award 2000 ) were employed in the VPS under the Public Sector Management Act and were paid a rate of pay. With casuals becoming employed under this new Federal Award as from this date (31/03/2000). Clause 12.6.1 states that any entitlement to be calculated by reference to a rate of pay, then that rate of pay shall be read as having increased by 9.5%. If that rate of pay was for deemed and new casual employees is it legally possible for the Departments to pay that new rate of pay for existing casuals then turn around and introduce a lower rate of pay (decrease by 7.5% ) for any one who commenced after that date in the same position. Particularly in light of clause 11.3 for employees who entered into employment which is subject to this award after the 30 march 1999,the increase provided in subclauses 11.1.1 to 11.1.4 shall be payable with effect from the date upon which they entered into such employment. Regards Trevor
     
  2. Rod

    Rod Lawyer
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    You are quoting an old award - AW793859.

    What is the applicable new award?

    I'm thinking the transitional provisions in the new award will override the older award.

    Why are you concerned about an award that is 19 years old, particularly as all awards were revamped in 2010?

    You'll also likely run into statute of limitations issues.
     
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  3. Trevor Thomas

    Trevor Thomas Active Member

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    Thanks for a quick response Rod
    The reason I am concerned with the initial Award is that if the rate of pay mentioned for casuals was not allowed to be reduced then the pay rate in subsequent awards would be higher as every subsequent agreement has been for a percentage increase. There has never been a decrease granted in any subsequent agreement.
    I will give you an example of the repercussions.
    Casuals employed in the VPS as VPS 1 were paid a rate of pay under code 249. With the introduction of that 2000 award the rate of pay became $15.44 for that position. However a new code was created for that position commencing as from the next day 01/04/2000 and the code was changed to code 249a and a reduced rate of $14.34.
    If you commenced employment in that position after the 01/04/2000 and did not get a promotion then you would have been underpaid for the next 16 years.
    Here's how. In the 2004 VPS Agreement a new salary structure was created consisting of 14 progressive points. To progress to the top of that structure you had to do a performance assessment. If your performance was up to scratch you progressed 1 progressive point. So starting at the bottom took you a minimum of 13 years to reach the top.
    Commencing as a casual in 2000 on that lower rate you would have been translated into the structure according to your pay rate in this case the bottom rung.
    If the rate was not allowed to be reduced then you would have translated into the structure at a higher level say progressive point 4.

    I know this has happened to thousands of employees as casuals were the favourite way of employing back in the late 1990's and early 2000's.
    In regards to the statute of limitations under the Financial Management Act it might not apply in this case if it was illegal for them to have done this.

    Regards Trevor
     
  4. Rod

    Rod Lawyer
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    I haven't reviewed the Financial Management Act but can't see how that helps you. Do you have a particular section in mind?

    Won't be illegal when the award has been approved. The award is a legally enforceable document.

    I'd like to think there's a class action here, but at this stage I can't see it.
     
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  5. Trevor Thomas

    Trevor Thomas Active Member

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    Once again thanks Rod for a response.

    Fact 1
    Order by AIRC 27/10/1999 P0800 V004 S Print S0479 Interim Award 1996.
    Persons employed on a casual basis at the time of making of this award or thereafter shall receive the terms and conditions that were applied to casual employees in the Department or Agency in which they were employed at the time of making this award..
    In this case it was the Public Sector Management Act 1992 updated to the Public Sector Management and Employment Act 1998. Under this Act casuals were employed under Part 3 Division 4 Employees.
    Keypoint
    Part 3 Div 4 20 (2) (d) the appropriate Agency Head may determine the renumeration and other terms and conditions of employment of any individual employee.
    For this I will give you two examples of renumeration chosen by the Department of Justice for casuals.
    Custodial Officers COG2a Code 214 $17.97 hourly rate of pay.
    VPS1 Code 249 $14.10 hourly rate of pay.

    Fact 2
    Order by the AIRC P1748 A N Print S6053 MX170 Federal Award.
    Clause 5 Application of the Award and parties bound: This award shall apply to and be binding upon the State of Victoria in respect of all employees as defined in clause 4.1 of this Award.
    Clause 4.1 Employees of the Crown employed pursuant to Division 4 part 3 of the Public Sector Management and Employment Act 1998.
    This order included clause 12.6.1 Except as provided in sub clauses 12.6.2 and12.7 where any term of this award provides for eligibility for any entitlement to be calculated by reference to a rate of pay, then that rate of pay shall be read as having been increased by 9.5%. Clauses 12.6.2 and 12.7 were irrelevant in these cases.
    With this Code 214 was lifted from $17.97 to $19.68.
    Code 249 was lifted from $14.10 to $15.44 as per order as from 31/03/2000.
    However the Department then introduced new rates of pay from the very next day 01/04/2000.
    Code 214a $19.68 down to $18.21
    Code 249a $15.44 down to $14.34 for exactly the same positions.
    I thought that the granting of the Federal Award on the 31/03/2000 took over the rights of the Department Heads to lower pay rates particularly in light of clause 6 of the 170MX Award which orders No employee will have his or her pay or conditions reduced as a result of the making of this Award.
    Please advise what I am missing for an opinion to be formulated as to whether a breach of the Award has occurred.

    Regards Trevor
     
  6. Rod

    Rod Lawyer
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  7. Trevor Thomas

    Trevor Thomas Active Member

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    Thanks once again Rod,
    At the report back to the Commission on the 06/04/2000 in regards to the progress in the settlement of the Orders of the 170MX Award Dec 451/00 M Print S5227 dated 20/04/2000 discussion took place about Employees recruited after 8 November 1999.
    It states: (12) This matter was the subject of submissions in the proceedings leading to the decision of 31/03/2000. There is no reason to revisit the decision which awarded a 9.5% increase to employees in the VPS not subject to Australian Workplace Agreements (AWA's) or s.170LK Agreements. We note that in the forthcoming enterprise bargaining negotiations it would be open to the parties to address issues relating to changes in recruitment policy at the agency level.
    My opinion on this point and I know you will say it holds no creedance because I am only a layman and hold no qualifications is that the State tried to have the 9.5% allocated to casuals rejected because it placed their base rate at a higher level than the base rate for permanent staff. However their application was rejected and were told if your not happy with the decision then don't appoint casuals. Change your recruiting policies and appoint permanent staff.
    This was not suitable particularly to the Department of Justice who were employing every Prison Officer as a casual because they could work them 120 to 140 hours a fortnight on shift work weekend work and not have to pay them penalties.
    They also decided that they could reduce their base rate because who would care. It didn't matter to them if it was illegal or not. No one would pick it up.

    In regards to statute of limitations I am damn sure that if you had 1000's of casuals effected by a deliberate defraud by Government Departments then being brought out into the open would certainly make Politicians edgy and want to come to some arrangement.
    As I said I am only a layman and offering my opinion on the subject. That is why I have asked for a legal opinion particularly from an industrial lawyer as to whether it was legal for the Government Agencies to decrease the Award rate.
    The statute of limitations becomes a secondary issue to me.
    Regards Trevor.
     
  8. Rod

    Rod Lawyer
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    I accept you feel ripped off.

    It is just pointless from a legal perspective if you are outside the statute of limitations.

    What you want is a political solution and I can't do anything about that. Talk to your local state MP and see what they say.
     
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  9. Trevor Thomas

    Trevor Thomas Active Member

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    Thanks Rod,
    I don't feel ripped off. Yes they did it to me but I took them to task and got paid. I then fought for others and a lot of them got paid as well. However there were some who got in contact with me who didn't.
    At that stage I was only fighting for a particular group not the possible 1000's who are implicated.
    I have harassed the Politicians on this issue and they chucked it back to the Department concerned and made them deal with me. From this I got an assurance from the Department concerned that if it was proven by an audit that there was underpayment that they would be paid despite the statute of limitations. However they employed the auditors and you know what that means in the scheme of things with possibly thousands of other cases lurking in the background.
    I still have a copy of this assurance and still have a copy of the auditors report which in my opinion is incorrect.
    As I have been paid I cannot represent any of these at legal proceedings and continuation dealing with the Department is frutile.
    As this audit has happened within the last 3-4 years it would still be inside the statute of limitation period and if my opinion on the matter is correct (considering that they paid me and some others ) it can't be far off the mark then there is a good opportunity for the right legally qualified person to make things happen.
    Regards Trevor
     
  10. Rod

    Rod Lawyer
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    The new information is relevant and now worth exploring.

    How about giving me a call tomorrow, see my signature below, and I'll see what I can do.
     
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