The PSA’s application for an ODPP Flexible Working Hours Award was listed for further hearing (closing submissions) before the Full Bench of the Industrial Relations Commission (IRC) on 19 January 2023.
The PSA has brought this application in response to unaddressed and ongoing overwork issues in the ODPP. The PSA contends that overwork has manifested widespread forfeiture of flex by solicitors at the ODPP. The PSA’s application seeks to enshrine aspects of the existing Office of the Director of Public Prosecutions (ODPP) Flexible Working Hours Agreement (FWHA) into an Award, including a Safe Workload Practice requirement and accountability measures designed to prevent the forfeiture of flex by solicitors.
IRC question legal basis for two ODPP salary tiers
During the initial hearing on 17-19 October 2022, the Full Bench questioned the legal basis of the salaries for Solicitor Advocates (Level 5, Step 1) and the top-level salary increment for Managers (Level 4, Step 3), as indicated in yellow below:
Figure 1 – Extract from ODPP current salary rates spreadsheet
The ODPP Intranet -> Remuneration page states in part:
“As a public sector agency, remuneration levels are centrally determined by Award or in some cases Remuneration Tribunal Determination, depending on the specific role.
Current salary rates for award based staff (Solicitor’s, WAS Officers, Legal Support/Administrative staff) can be found here. These rates are determined in accordance with the annual Crown Employees Public Sector Salaries Award.”
Although the salary spreadsheet includes the top-level salary increment for Managers and the salary for Solicitor Advocates (as shown in Figure 1), neither of these salaries are covered by the Crown Employees (Public Sector – Salaries 2022) Award, and their legal basis currently remains unclear.
At the hearing on 19 January 2023, counsel for the ODPP, Dilan Mahendra, was not able to identify the legal basis for the salaries in question but put forward two possibilities: a basis in contract law or, if one was uncovered, an industrial instrument such as an Enterprise Agreement.
The Chief Commissioner noted that in other matters before the IRC, the Crown had submitted that where such purported contractual arrangements had been done at an agency level without a legislative foundation, then the resulting contracts were illegal. When the Chief Commissioner asked Mr Mahendra if the Crown were adopting a different position in this case, he replied that the ODPP were presently taking “a neutral position.”
PSA seeks consent award to ensure lawful basis for salaries
The PSA is very concerned about the uncertain legal basis for the two salaries in question and has taken immediate steps to seek to enshrine those salaries into an Award and provide certainty to members at those salary levels.
The PSA has proposed to the ODPP that a new Award be made by consent to regularise the two salaries in question. The ODPP has yet to indicate if it agrees to this proposal.
The Full Bench made orders that the ODPP indicate their position in relation to the proposed consent Award by 28 February 2023, specifically, if the Industrial Relations Secretary is in a position to make the proposed consent Award or another industrial instrument in respect of the Solicitor Advocate role and the top-level salary increments for Managers, or whether there is to be a further dispute regarding this issue.
Next listing
The matter is next listed for Directions (Teleconference) on 3 March 2023 at 9:30 AM and for Conciliation before Chief Commissioner Constant at 10:30 AM on 28 March 2023.
The matter has been adjourned for the hearing to conclude on 9 May 2023 at 10:00 AM before the Full Bench. It is expected that closing submissions will be made by both parties in relation to the substantive Award application on this date, and members are encouraged to attend the IRC in person to show your support.
A Notice of Orders made by the IRC, including ancillary orders relating to the exchange of documents and in respect of the two salary levels not covered by the Legal Officers Award, can be found HERE.
PSA Delegates
The PSA wishes to extend its thanks to all Delegates for their participation and invaluable support in relation to these proceedings. We bid farewell to Delegates Kylie Latimer and Maryanne Rogers, who have accepted new roles outside of the ODPP.
All members are encouraged to consider becoming Delegates. If this is something that might interest you, please contact the PSA or one of the Delegates listed below for further information.