The federal government has previously received legal advice that may be at odds with its current position in a court battle which could ultimately see it liable for hundreds of millions of dollars.
A group of Foreign Affairs Department employees have launched a suit in the Federal Court claiming the Commonwealth underpaid them by not including a rent free allowance in superannuation calculations.
The Commonwealth has not accepted liability in the matter, and more suits from employees in other departments are expected to follow.
However, a document shared with public servants in 2013 shows that legal advice from the Australian Government Solicitor said the value of rent free accommodation for deployed workers should be included as salary for superannuation purposes.
The government solicitor's advice was given to ComSuper in relation to staff at the Bureau of Meteorology lodging claims with the agency for unpaid superannuation.
The advice points to the regulations that determine that an employee's superannuation should be based on salary made up of their base salary plus any recognised allowances.
Ultimately the advice suggests that "the rent free accommodation provided to the employee under the Agency enterprise agreement is a recognised allowance for [superannuation] purposes, thereby forming part of the employee's annual contribution salary for the purposes of the [scheme]rules."
Potential future claimants are understood to be encouraged that the government's principal legal advisor at one point found the allowance should be included.
Legal director of employment law and investigations at Bradley Allen Love John Wilson is representing the allegedly underpaid DFATemployees seeking redress in the Federal Court.
Mr Wilson said if the advice, as presented, was the position of the government solicitor in previous matters, this would support his clients' cases that the allowances should have been included in their superannuation payments.
However, Mr Wilson said while that may previously have been the advice of the government solicitor, the Commonwealth was not bound to follow that advice now. It was open to the Commonwealth to seek new or updated advice, he said.
The Attorney-General's department opted not to comment on the specific advice provided by the government solicitor and said any questions about legal matters conducted by individual departments should be directed to them.
The Foreign Affairs Department neglected to respond to questions regarding whether it was aware of the advice or considering it in its upcoming defence in the Federal Court.
The Finance Department is steering a committee to provide advice to departments and agencies on the superannuation issue.
A spokesperson said it would be inappropriate for the department to comment on advice given by the government solicitor, but advised Finance continued to take an active role in resolving the issue.
"The department is continuing to consider the issue of allowances/ 'rent-free' accommodation with reference to [superannuation regulations]. Finance continues to consult other Commonwealth agencies to ensure a collaborative and consistent approach to managing this complex issue," the spokesperson said.
Appearing before a recent Senate estimates hearing Finance Department deputy secretary Stein Helgeby admitted knowledge of a case in recent years where the Commonwealth settled with a public servant. The employee claimed unpaid superannuation from based on the rent free allowance not being included.
He also reaffirmed there would not be a "blanket whole-of-government" response to the issue as it was up to individual agencies to determine if individual employees had been payed correctly. He also told the hearing the department had not calculated how many employees across government could be affected.
The government likely views the upcoming Federal Court matter as a test case, Mr Wilson said. Because of this, he was in the process of applying to the Attorney-General for funding to run the case.
If a court case is likely to set a new principle of law or make a decision on a matter that is widely applicable to Commonwealth employment, parties can seek government funding to run the case.
Mr Wilson said that he did not consider it fair for a small group of litigants to bear the excessive costs of court action to set a precedent in a matter that could have long standing consequences for many Commonwealth employees.
