This bulletin is a summary of the status of the Award application and provides an update on proceedings. Previous bulletins can be found at www.psa.asn.au.
The PSA has brought the Award application in response to unaddressed and ongoing overwork issues in the ODPP. The PSA contends that overwork has manifested widespread forfeiture of flex time by solicitors at the ODPP and that the problem remains ongoing. 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.
Further, as members were advised in our February Bulletin, an additional issue of concern has arisen during proceedings – namely, the uncertain legal basis for two ODPP salary tiers: Solicitor Advocates (Level 5, Step 1) and the top-level salary increment for Managers (Level 4, Step 3).
On 17 May 2023 a further directions hearing was held at the Industrial Relations Commission (IRC) before Chief Commissioner Constant. This followed directions hearings on 23 March 2023 and 1 May 2023. These are summarized below.
23 March 2023 – IRC directions hearing
On 19 January 2023 the IRC directed that the ODPP provide a response to issues raised by the PSA by 28 February 2023, including whether the Crown would agree to an Award by consent to ensure a legal basis for the two salary points with an identified lawful basis.
The ODPP failed to comply with these directions. Instead, the ODPP wrote to the IRC advising that it could not obtain instructions from the Industrial Relations (IR) Secretary about a consent award due to the operation of the caretaker provisions relating to the NSW state election on 25 March 2023.
On 23 March 2023 the parties returned to the IRC for directions hearing and report back.
Counsel for the PSA, Patricia Lowson, raised concerns that the ODPP had written to the IRC advising that the IR Secretary was now unable to comply with the IRC Order dated 19 January 2023 due to the operation of the caretaker conventions and requested that order was to be vacated. Ms Lowson reiterated previous concerns that in the face of a breach of the IRC’s orders that the respondent had failed to file evidence to provide relevant information such as the dates of Departmental meetings, when further meetings will occur and what steps have been taken since the last IRC appearance.
The Chief Commissioner criticised the ODPP for putting these matters to the IRC and the PSA at such a late time in circumstances where it was well known to the ODPP that caretaker provisions apply every four years.
The Chief Commissioner highlighted an inconsistency in the position advanced by the ODPP that the IR Secretary was unable to enter into a consent award by noting that, in fact, the IR Secretary had filed consent award applications as late as 23 March 2023. Counsel for the ODPP, Dilan Mahendra, advised that he would have to seek instructions. Mr Mahendra confirmed that the ODPP would not be able to engage in any agreement to an Award in the forthcoming conciliation.
The Chief Commissioner vacated the conciliation date of 28 March 2023.
1 May 2023 – IRC directions listing
The PSA requested a further IRC directions hearing and report back which was listed on 1 May 2023. Ms Lowson of counsel for the PSA outlined two issues that the PSA wished to raise:
- The PSA has consistently sought to have the ODPP provide their position in relation to the two salary points with an uncertain legal basis, which have been ignored despite the directions made by the Chief Commissioner on 19 January 2023. The PSA indicated that, as a result, it would seek leave to amend the application in this matter to include the two salary points in the Legal Officers Award to ensure a legal basis for those salaries.
- The PSA would be seeking leave to re-open its case and tender fresh evidence in relation to the workload issues that had recently come to the attention of the PSA after the conclusion of the evidence in proceedings in October 2022.
Noting the above, the hearing date of 9 May 2023 was vacated and the hearing of the application to re-open was listed on 14 June 2023 at 10am.
It was determined that the application to re-open and introduce fresh evidence would be heard by the Full Bench of the IRC.
Updated directions were issued and the Chief Commissioner’s directions of 19 January 2023, which the ODPP had been in breach of, were confirmed as continuing.
Orders of Chief Commissioner Constant may be found HERE.
17 May 2023 – IRC directions listing
On 17 May 2023 the parties attended a further directions hearing before Chief Commissioner Constant. Counsel for the ODPP advised that the IR Secretary had made a Determination pursuant to section 52(1) of the Government Sector Employment Act 2013 to formalise the payment of salaries and conditions of employment for the two specialist legal classifications of prosecution officer in the ODPP within their existing structure.
A determination is an ad hoc instrument which does not carry the same status as an Award in all circumstances.
The PSA made clear that it considered this determination a temporary measure only and confirmed that any salary increases would be applied to the salaries contained in the determination. Further, the PSA indicated its expectation that the ODPP would engage in negotiations with the PSA about including the two salary points in an Award instrument within the next 12 months.
Updated directions were made, and a final hearing date was listed for 16 August 2023 at 10am.
Orders of Chief Commissioner Constant may be found HERE.
The PSA’s fresh evidence
The PSA is seeking to re-open its case in the Award application to adduce fresh evidence which has come to light since the evidence concluded in October last year. This evidence includes evidence of the Director’s speech at the Solicitor’s Conference in December 2022 in which she indicated that the workload concerns of solicitors was a very pressing issue, and steps being taken by the ODPP to address this issue, including engaging an external consultancy (Nous Group).
The PSA contends this acknowledgement by the Head of the Agency and the steps taken by the ODPP to address workload concerns are important evidence in light of the inconsistent position taken by the ODPP in the IRC to date that the workload issue advanced by the PSA is “an exaggeration.”
Summary
Next listings:
- 14 June 2023 for the PSA’s application to re-open its case to adduce fresh evidence.
- 16 August 2023 for final hearing
The PSA hears your concerns about your excessive workloads and for three years have been fighting on your behalf to have this ongoing problem acknowledged by the ODPP. We stand with you on this issue and together we are fighting to improve your working conditions.
Members are encouraged to attend the hearing on 14 June 2023 and reach out to PSA staff or delegates with concerns or reports.
Your PSA Industrial Staff
Dean Allen, Industrial Officer