Last week the union was made aware of two alleged instances where our members had been misinformed of their award right to claim higher grade pay for relief work when performing higher grade duties. This is an issue of concern to Local Government members across NSW.
The first alleged incident arose following a yard meeting of members at a Council located in the Hunter Region where the USU Organiser and Delegates attended a meeting of USU outdoor staff members where a Manager and the HR Manager were present when the matter of when an employee is entitled to claim for relieving in higher grade duties was raised.
It was alleged that a Manager stated that a worker could only claim higher grade pay after working at a higher grade for three (3) consecutive working days.
The Union Organiser pointed out that this was incorrect and was not in accordance with the Award.
The response it is alleged, was that it was a practice at Council only to pay higher grade pay after 3 consecutive days of higher-grade duties were performed.
It is alleged that the Manager of HR did not correct this incorrect statement at the meeting.
On learning of this within a couple of hours of the meeting, the Manager North personally phoned the Manager of HR to directly raise the allegations.
The Manager of HR said it had been a practice at Council as far back as 2014 that higher grade pay only be paid after 3 consecutive days of performing higher grade duties. The USU Manager expressed his complete shock at how a HR Manager could admit breaching the Award and in her alleged failure to do her job in advising Council to comply fully with its Award obligations.
Her admission that Council had been undertaking this practice as far back as 2014 demonstrated she had been aware of the breach, and in doing so this has now resulted in Council facing a six (6) year claim for back pay of our USU members who have been underpaid when performing higher grade work for less than 3 consecutive days.
The General Manager, when contacted by the USU Manager North, was totally unaware that Council had not been complying with its Award obligations and gave an undertaking to have the matter addressed.
The Manager North was also informed in the same week that a Manager of HR at another Hunter region Council had also allegedly told a member recently when asked by an Indoor worker about their right to higher grade pay after they claimed they had been relieving in a higher-grade position for the previous 3 months, “that the Award is only a guide”.
This too will be followed up by the Union.
Listed below in part is the complete part of the clause in (i) and the relevant section of (ii) from the Award clause.
Clause 11. Payment For Relief Duties/Work
- An employee required to relieve in a position which is at a higher level within the salary system shall be paid for that relief. The rate to be paid shall be determined by considering the skills/experience applied by the employee relieving in the position but shall be at least the minimum rate for the position in accordance with the salary system except where the higher level skills have been taken into account within the salary of the relieving employee.
- (In Part) Payment for use of skills relieving in a higher paid position shall be made for the time actually spent relieving in the higher position.
The clause also covers when staff are required to relieve in a Senior Staff position as well as clarifying what the entitlements to higher grade pay are or aren’t when on paid leave or an award holiday.
The right to recognition to higher grade pay when taking annual or long service leave is covered in Clause 22D(xi) and 22E(iii) of the Award where an employee who has been performing higher grade duties for at least 6 months in the aggregate of the previous 12 months is entitled to an average rate as earnt over the previous 12 month period.
NO MINIMUM PERIOD
The Award clause makes it clear that YOU ARE ENTITLED AND HAVE THE RIGHT TO BE PAID FOR HIGHER GRADE DUTIES FOR ALL TIME SPENT IN PERFORMING THOSE HIGHER GRADE DUTIES. There is NO MINIMUM PERIOD required before you are eligible.
You must be paid no less than the minimum higher grade rate for relieving in a higher grade position, but you have the right to be assessed in the relieving role so that you can be paid at the appropriate level above the minimum rate based upon your skills and experience.
The clause in section (i) also refers to where the higher grade relief payment has been built into the employee’s salary. In this case the employee would receive a higher hourly rate all the time in recognition that the relief duties are recognised and not just absorbed. Council must be able to clearly demonstrate this when requested. In most cases the building in of the higher grade is the exception and not the norm.
The Union believes that the 2 instances referred to earlier in this update demonstrate that quite often staff below the General Manager level make decisions that are in breach of their Award obligations without the knowledge and approval of those above them.
The lesson in this is to KNOW YOUR AWARD RIGHTS by joining the Union and asking for advice when you suspect the advice given from your HR and or Supervisors seems to be questionable.
The Minimum period to be eligible to claim higher grade duties went out of the Award 30 years ago.
If you are unsure of your rights contact your workplace delegate or USU organiser or call our support team on 1300 136 604.
