Office of the Director of Public Prosecutions Award application update: ODPP claims PSA is exaggerating time employees are working for free
The PSA application for an Office of the Director of Public Prosecutions (ODPP) Flexible Working Hours Award was listed for further hearing before the Full Bench of the Industrial Relations Commission (IRC) on 17 November 2022.
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 Award application seeks to enshrine aspects of the existing Office of the Director of Public Prosecutions (ODPP Flexible Working Hours Agreement (FWHA)) and to include a Safe Workload Practice requirement and accountability measures to seek to ensure the ODPP to prevent loss of flex. During opening submissions, Ms Patricia Lowson, counsel appearing on behalf of the PSA, outlined:
“The purpose of the award is to elevate the importance of the management of excess work hours and the forfeiting of flex leave, and to introduce at cl 6 an accountability measure which allows PSA, the applicant, which is also a party to the flexible work hours agreement, to monitor, as it were, the degree of compliance with the strategies, the adoption of strategies to deal with excess flex being worked and being lost.”
The PSA made an application to the IRC for an Audio-Visual Link (AVL) to be made available for PSA delegates and regional members who were unable to attend the hearing due to work commitments. The ODPP did not consent to AVL access being made available to regional members, consent was provided in respect of PSA delegates. The Full Bench declined the request for the proceedings on 17 November 2022 to be made available via AVL to delegates and members.
Submissions of parties
Counsel appearing for the ODPP, Dilan Mahendra, submitted in opening the ODPP’s case that the PSA’s case that there is widespread forfeiture of flex by ODPP solicitors is an “exaggeration” and appears to suggest that average flex forfeiture of two or three hours a week is not significant:
“We say when you do the calculations, what seems to be apparent is that the forfeited hours, that is the hours that employees are not being paid, averages out to only be two or three hours each week that are being forfeited.
“… when one looks at properly the data that is in evidence as to the hours employees are forfeiting, that is the flex leave hours that they’re forfeiting, what it clearly demonstrates is that the case advanced by the PSA is an exaggeration of what is actually occurring.”
The PSA contends that this is incorrect, and our counsel made submissions based on flex data provided by the ODPP in response a Summons to Produce that the data plainly shows widespread forfeiture of flex by ODPP solicitors:
“The respondent has made it very clear in the hearing that it doesn’t accept that the extent of leave forfeiture is serious.
“Now, having looked at the [flex data] …what it discloses is this, nearly 200 solicitors have forfeited flex during the four settlement periods in the first half of this year.
“Nearly a hundred of those solicitors forfeited more than 20 hours in at least one settlement period and more than 50 solicitors forfeited flex over every single settlement period. So that’s what the data shows, when it’s looked at closely.”
The PSA submitted into evidence the ODPP’s own flex data which revealed that ODPP staff forfeited more than 104,000 hours of flex from July 2019-June 2022. This is the equivalent full-time workload of an additional 20 solicitors. The PSA also obtained evidence from the ODPP in response to a Summons to Produce that ODPP managers are advised by HR on a monthly basis of the extent of forfeiture of each of their staff. This evidence has been put before the IRC.
Cross-examination of Mr Nigel Richardson, HR Director, was completed on 17 November 2022. The matter was adjourned for closing submissions on 19 January 2023 and for the parties to provide additional information in relation to the history of flexible working arrangements and salary rates at the ODPP.
Next listing
The PSA again encourages members to consider attending the further hearing on 19 January 2023 at 10am in order to show your support for your delegates and colleagues who have given evidence in respect of the Award application.