Lawyer takes employer to Fair Work over $1 raise

After being ignored by his workplace, a lawyer turned to the Fair Work Commission so he could be moved into a higher employee grade that paid an extra $1 a year.

Principal solicitor Andrew Lew turned to the Fair Work Commission when the Office of Public Prosecutions (OPP) refused to reclassify him to a higher employee grade that would have seen him earn an additional $1 per year.

Commissioner Leigh Johns OAM found Lew had the relevant experience to be reclassified from the Victorian Public Service (VPS) grade 6.1 to 6.2, which would allow Lew to move through higher salary bands.

While it had no bearing on his reclassification decision, Johns found the OPP’s decision to shell out taxpayer money to defend itself in the proceedings was “bewildering”, particularly because the cost of counsel would have been “many more times than the $1 per annum”.

Johns also took issue with Lew’s failed attempts to meet with management to discuss “realistic benchmarks and milestones” for progression.

When grilled on this, a superior conceded the meetings never took place, but it was his role to meet with solicitors of all levels about career progression.

“It was an extraordinary concession,” Johns said.

Johns said the observations were made in the hopes the OPP “will reflect deeply” on its human resources and future litigation involving employees.

“He is a longstanding and skilled lawyer – I have no doubt that, given clear development goals, Lew would have risen to the occasion. He should not have had to litigate to achieve an outcome that proper, effective and competent human resource management could have achieved,” Johns said.

While there was nothing to prevent principal solicitors from being in grade 6.2, Johns said there was a bias of favouring managing principal solicitors for this classification. In “recent memory”, the last time a non-management principal solicitor was reclassified into this grade was in 2010.

If the OPP wanted to ensure only managing principal solicitors could be reclassified into this grade, Johns said it should have sought to do that through the bargaining agreement and “not through the application of (what appears to be) some informal policy to that effect”.

When Johns attempted to get a clear picture of what principal solicitors needed to be reclassified, neither witness could “clearly articulate” this.

He added the witnesses appeared to have “invented their own descriptors”.

“Having heard their evidence, I am none the wiser about how, if I was a VPS grade 6.1 solicitor, I could progress to VPS grade 6.2 non-managerial solicitor. It must be baffling and frustrating for VPS grade 6.1 principal solicitors eager to advance their careers,” Johns said.

Johns also observed the difference between Lew’s role and the requirements of principal solicitors in 6.2 who are non-managerial was “wafer thin”.

Although the OPP claimed Lew does not perform the leadership, strategic decision-making or managerial duties required for grade 6.2, Johns said his years of experience have seen Lew become a “leader” in the provision of legal advice concerning litigation and a subject matter expert.

Lew has also been the point of contact with Victoria Police on sporting integrity issues and has presented during an orientation for the Law Institute of Victoria’s accredited specialist program.

Johns was also satisfied Lew has “direct engagement” with and has given litigation advice and guidance to senior Crown prosecutors, the chief Crown prosecutor, and the Director of Public Prosecutions.

The OPP had 21 days to reclassify Lew.

In a final note, Johns said that while the decision was confined to the reclassification, he said it was for the OPP to “more clearly communicate to its solicitors about pathways for progression”.

“It is not appropriate to leave them guessing,” Johns said.

The case is Andrew Lew v State of Victoria T/A Office of Public Prosecutions.