Premier Barry O'Farrell disallows 2.5 percent pay rise for judges and magistrates ... NSW government wants judges to pay for superannuation increases ... State-federal judge pay relativity at risk ... Judges as "employees" of the state ... Paul Karp reports
Pay rise confiscated
NSW premier Barry O'Farrell has intervened to disallow a 2.5 percent pay increase granted to judges, magistrates and court officers.
The government wants judicial officers to pay for a superannuation increase out of their pay rise.
On September 27 the Statutory and Other Officers Remuneration Tribunal (SOORT) made the determinations for a 2.5 percent pay rise, the first since judges and magistrates were formally brought under the 2.5 percent public sector pay cap.
The O'Farrell government's wage policy originally had required that superannuation increases, such as the 0.25 percent increase on July 1, be absorbed into pay rises since they were an "employee-related expense".
However, on August 22, the Legislative Council disallowed that regulation - leaving SOORT open to grant the maximum 2.5 percent pay rise without forcing judges to chip in for their own super rise.
This displeased the government, which is hoping the NSW Industrial Relations Commission - which is currently deciding how much of a pay rise to give to public employees - would let the state plead poor and restrict pay rises to 2.25 percent.
So on November 12 the government passed a disallowance motion moved by O'Farrell tearing up the 2.5 percent pay increase for judges, beaks, court and other related officers.
O'Farrell said:
"A fair and reasonable wages policy should apply consistently across the public sector, including even to members of parliament and judicial officers ...
It would be self-evidently unfair if senior public servants were eligible for a pay increase out of kilter with that offered to the overwhelming majority of ordinary public servants."
Judges were surprised to find themselves lumped-in with "public servants".
The logic of the government's wage cap is that everybody paid out of general revenue is a public servant - but it's not a term of art, more a sleight of hand that conveniently elides the distinction between the constitutionally independent judiciary, executive and legislature.
In March the original proposal for the government to set judges' pay caused Chief Justice Bathurst to issue a rebuke - that it might risk the public perception of the courts as impartial and may even be unconstitutional.
O'Farrell said once the Industrial Relations Commission decides pay rises for the public service "new determinations [by SOORT] can be made and backdated to the date of the disallowance".
"All employees [by which he includes judges] will be eligible to receive back pay and will be no worse off financially as a result of the disallowance."
From the premier who'd just shredded an increase they'd already been granted, it must have sounded to the judges a lot like "the cheque is in the mail".
NSW judges may become feds' poor cousins
SOORT said it "has consistently supported maintaining the 85 percent nexus between the salary of a Supreme Court judge and the salary of a High Court Judge".
It questioned whether the 2.5 percent pay cap threatened to leave NSW judges behind in the pay stakes.
SOORT said:
"The government's decision to extend the wages cap to judicial officers, effectively limiting increases in remuneration to 2.5 percent unless sufficient officer-related savings can be found to offset any additional increase, would appear to contravene the long-standing inter-governmental agreement in relation to salary relativities between judicial office holders in NSW and the Federal Courts."
The Government's submission to SOORT said the Department of Attorney General and Justice continues to support the nexus between Federal Court and Supreme Court judges' pay, but (here's the catch) "within the bounds of the limitation [of the 2.5 percent pay cap]."
SOORT issued a please explain:
"Should the government intend that the tribunal no longer have regard to the long standing inter-governmental agreement ... the tribunal would appreciate clarification of the government's position in relation to this matter."
The submissions of the Supreme Court judges warned that "timely and adequate adjustments of judicial salaries in this state" was necessary "to prevent a diminution in the available pool of candidates for appointment and indeed a leakage to other jurisdictions".
With their raise gone, and the guarantee their pay will keep up with federal counterparts under a cloud, it's little wonder NSW judges are no fans of the public sector pay cap.