A recent dispute lodged with Fairwork Australia by the ETU has resulted in a significant victory for ETU members and their colleagues who work in the maintenance section at Australia’s Parliament House. The dispute arose from a decision made by the Department of Parliamentary Services (DPS) Employee Relations section to discontinue the application of an entitlement contained in the current EA covering the workplace. The DPS EA is quite clear on the application of an allowance paid to maintenance workers in lieu of the ‘flexibility” that this group must provide for periods when Parliament sits throughout the year. The Flexibility Payment is clearly defined as an all-purpose payment and it clearly sets out that it is to be paid for overtime, superannuation and all leave. The payment had been applied in this way for over 10 years.
Last year when ETU member Steve Gardner-Pugh took a period of long service leave he noticed his pay was short and that it was short to the extent of the flexibility payment. On his return to work he enquired as to why this had occurred and was told quite abruptly that the department had discovered that they should not be paying this allowance on long service leave due to restrictions contained in the Long Service Leave Act, and it had now stopped for LSL. At no time was the ETU or the employees advised of this decision by DPS to withhold the payment. Steve contacted ETU Organiser Matt McCann through his ETU delegate for assistance and a meeting was arranged to attempt to resolve the issue.
It became apparent pretty quickly that no movement on the impasse could be reached at this level and the ETU notified DPS of its intention to enter into dispute and the matter was subsequently lodged with the Fairwork Commission. According to Matt McCann DPS were unable to explain why they failed to notify the union or the employees prior to making the decision to withhold payment of the flexibility payment.
“We pointed out the clear intention in the agreement was to apply this payment for all forms of leave and they agreed that they understood this as well, but they claimed their hands were tied as there was a problem with other legislation that they felt made the payment illegal”. McCann said.
“We put it to them quite strongly that we felt they were wrong and we also pointed out that it was a clear case of failing to consult on changes that effect employee entitlements” McCann said.
The matter was listed for conciliation in Canberra before DP Kovacic. DPS fronted up with an in house lawyer from the Australian Government Solicitor’s Office who was armed with a bevy of folders and documents ready to argue the legal technicalities of the dispute. The rug was pulled out from under them when McCann pointed out the ETU was not there to argue the merits of technical legal argument on the application of the LSL Act, but would be focussing on a fundamental and core principle of the Fairwork Act and that is “the intent of the parties at the time an agreement is made”. In its oral submission the ETU successfully established that the intent of the parties was always to apply the allowance to LSL and that effectively this intent had not changed by their own admission. They conceded that the decision was based on legal advice from internal sources. It was suggested that maybe their legal advice could be wrong and had they could have sought external independent advice, before making the final decision, they conceded they had not, and that maybe they should have. A recommendation was made by DP Kovacic that DPS seek external legal advice and if that found in favour of the employees, then the department should be able to rely on that advice and continue to apply the established intent.
The advice provided found strongly in favour of the ETU and the department then agreed to back pay all affected employees including some who received a belated bonus to their redundancy payments after taking earlier redundancies in late 2014. The ETU ran this matter on behalf of other unions covered in the maintenance section. In summing up the victory Matt McCann said “It was great to get a positive result for our members who stood up on this, to be honest a lot of credit should go to Neville Betts who pointed out the intent of the parties’ angle when some of our own legal advice suggested we may not have a strong case”.
Long-time ETU member Steve Gardner-Pugh who attended the hearing also later thanked the ETU in an email stating “Fantastic result! Thanks again on behalf of all our guy’s very impressed with the handling of this matter, and as a personal note, thanks it was great to see how you roll”.