The Commission has made a declaration regarding the interpretation Department of Justice Prison Officers’ Industrial Agreement 2020 regarding whether prior service in a substantive appointment counts as prior service for the purposes of clause 48.
In May 2021, the Minister reduced a Senior Prison Officer’s classification following a disciplinary process. In November 2021, the Minister directed the Officer to act as Senior Officer on a higher duties basis, paying her a higher duties allowance at the ‘1st Year’ increment of the Senior Officer salary range. After the demotion, the Minister did not recognise the Officer’s prior service in her substantive appointment as Senior Officer.
The Union brought an application seeking interpretation of clause 48. The Union sought an answer to the following question:
When paying a higher duties allowance under sub-clause 48.2 of the Industrial Agreement, must the employer pay an amount equivalent to the increment the Officer had attained in the previous 18 months, regardless of whether:
- the Officer attained the increment through higher duties or substantive appointment; or
- the Officer had a break in acting of less than 18 months following a disciplinary outcome?
The Union contended that the parties to the Agreement intended to recognise all service at a higher classification in the previous 18 months when calculating increments, and that there is nothing to indicate that the parties intended the entitlement to apply differently to employees whose break in service was due to a disciplinary outcome.
The Minister contended that the construction of the word ‘act’ in the context means ‘acting’ means temporarily working in a role in that sense of acting, and not just simply working in a role, whether substantively appointed. The Minister also contended that it is not unjust that an employee does not ‘get the value’ of their prior service for higher duties allowances, as the main rationale for a demotion for disciplinary reasons would be that the conduct the subject of the disciplinary action makes the employee unsuitable for the higher role, and that it is not unfair that the employee would not get the benefit of that prior service.
The Commission considered that the definition of acting in the context means ‘serving temporarily; substitute’ and not ‘working in’. and that the objective intention of the parties was therefore to give the higher increment on acting to employees who have acted in a higher position on a temporary basis, not a substantive basis, in the previous 18 months. The Commission further considered that where an employee is demoted for disciplinary reasons because their conduct the subject of the disciplinary action made them unsuitable for the higher position, it would not be unfair that the employee would not get the benefit of prior service when acting up.
The Commission considered that the parties did not intend to recognise all service at a higher classification in the previous 18 months when calculating increments. For the purposes of sub-clause 48.2, only prior service in an acting appointment qualifies as service, and prior service in a substantive appointment does not qualify as service.
The decision can be read here.