Crown Solicitor’s Office: Legal support review dispute lodged with the Industrial Relations Commission for breach of legal duty to consult
On 8 December 2022, the PSA filed a dispute notification with the NSW Industrial Relations Commission (IRC) regarding the failure of the Crown Solicitor’s Office (CSO) to consult with the PSA in accordance with its mandatory legal obligations in respect of the major organisational changes and restructuring of the organisation arising from the Legal Support Review.
On 25 November 2022, a CSO all-staff announcement informed members of the decision to implement a finalised ‘new structure’ commencing by March 2023 along with the associated recruitment action for the new roles to be advertised this week. This announcement was made without any consultation with the PSA despite a previous undertaking given at the Joint Consultative Committee (JCC) meeting held on 2 June 2022 that the PSA would be consulted on any changes coming out of the Legal Support Review, and that the ‘Change Management Framework is under development and will be shared with the PSA when available’.
Following the all-staff announcement dated 25 November 2022, the PSA wrote to the Crown Solicitor (CS) and requested revocation of the decision to implement the new structure until consultation with the PSA and members had taken place. The CS rejected our request contending that the decision involves ‘minor changes’ having ‘reasonably exercised her responsibility to ensure our core business objectives are achieved’. In other words, that the CSO is not required to adhere to the obligation to consult with the PSA and members.
The PSA, including your delegates, attended the IRC on Friday 9 December 2022 for a Compulsory Conference before IRC Commissioner O’Sullivan.
Your union requested the assistance of the IRC for the following:
- Proper consultation in accordance with the mandatory consultation obligations under the Award in relation to the Role Descriptions for new legal support roles or changed roles as members have expressed concerns that the responsibilities of legal support roles may have changed meaning that the roles would be assessed at a different grade level.
- The provision of a proper Organisation chart showing the rationale and changes that have been made at the Executive level in order to clearly show the changes in reporting lines and positions.
- A formal change management plan in accordance with Clause 4.2 of NSW Premier & Cabinet Directive 2011_014 Agency Change Management Guidelines.
CSO response
The CSO did not agree to further consultation.
The PSA sought a recommendation for proper consultation, including more specific detail around the restructure. Commissioner O’Sullivan asked whether the CSO, as a Model Litigant, would adhere to an IRC recommendation. The CSO acknowledged it would definitely comply with an IRC recommendation.
Consequently, on a positive note, the CSO agreed to undertake consultation in respect of the Role Descriptions and undertook to respond to further PSA correspondence seeking additional information relating to the restructure. We will of course need to review any response as to whether the CSO adheres to its mandatory consultation obligations and participates in genuine and proper consultation.
Next steps
The PSA has written to the CSO requesting a more descriptive updated Organisation chart, including identification of new reporting lines, consultation in respect of the legal support role descriptions and clarification as to the urgent recruitment process.
The matter has been listed for Report Back before Commissioner O’Sullivan on Monday 19 December 2022.
Should any members wish to provide feedback or concerns in respect of the restructure please contact your PSA Industrial Officer or delegates as below.
Your PSA Industrial Officer
Your PSA Delegates