Office of the Director of Public Prosecutions: Award application update – three-day hearing set to commence
As reported in our previous Bulletin, the PSA has filed an application with the Industrial Relations Commission (IRC) for a new Award seeking 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. This follows from the long running IRC workload dispute in relation to the Workload Management Agreement (WMA) and the implementation of the Workload Measurement Tool (WMT).
In short, PSA members have been working excessive hours which is detrimental to health and work life balance, are not obtaining the benefit of flex leave in accordance with the FWHA, including that an undue amount of flex leave is being forfeited at the end of every settlement period and the provisions of the Award including payment of overtime are not being met by the ODPP.
The PSA is legally represented, and the proceedings have been set down for three-day hearing before a Full Bench of the IRC commencing on Monday 17 October 2022.
Hearing of notices of motion on 2 September 2022
Managers’ Guide – Forfeited Flex
The PSA attended the IRC on 2 September 2022 for the hearing of two notices of motion before Commissioner Sloan.
The first notice of motion was filed by the PSA seeking orders for the withdrawal of the ‘Managers’ Guide – Forfeited Flex’; a direction for all managers to cease using the Forfeited Flex Form and related orders.
Commissioner Sloan dismissed our notice of motion although indicated that he had ‘significant reservations about an approach that requires targeted meetings with solicitors in the ODPP and for the solicitor to be invited … to warrant that they are happy with the current arrangements and that they cause no work health and safety risks and [to] leave it entirely for them to notify their manager if that situation changes’.
Further, Commissioner Sloan observed that ‘on its face, the forfeited flex form is entirely one way’ and that ‘nothing that is being done by the ODPP, whatever reservations there may be, in any way renders nugatory or ineffective the ability of the Commission to make the award sought in the substantive proceedings. To the extent that the conduct of the ODPP may be called into question, it may be something to be considered by the Full Bench in the substantive matter. ‘
PSA Summons to Produce directed to the Director of the ODPP filed on 5 August 2022
The second notice of motion was filed by the ODPP seeking to have a PSA Summons to Produce against the ODPP set aside. The PSA summons sought updated data on the forfeiture of flex by solicitors, and managers reports and data about overtime approvals. Commissioner Sloan dismissed the ODPP notice of motion subject to three caveats as follows:
‘Firstly, in dismissing the respondent’s motion I should not be taken as indicating that the respondent is required to create a document which is not in existence. I direct those comments particularly to category 1.
Secondly, the documents to be produced should be limited to those employees who would be covered by the award which is the subject of the substantive proceedings.
Thirdly, the documents should be redacted so as to preserve the anonymity of the employees to whom they relate. ‘
Summons to Produce confirms over 104,000 hours worked for free
The ODPP has now produced material in answer to the summons to produce and various material has now been incorporated into evidence filed on behalf of the PSA.
The summonsed material confirmed that:
- ODPP solicitors have continued to forfeit accrued flex hours over the last six months at alarming levels. The data produced by the ODPP indicates there has been forfeiture of accrued flex over the last six months that totalled well over 14,000 hours.
- The overtime approvals over the last six months totalled only 140 hours.
- By provision of monthly managers reports, ODPP managers are advised by HR on a monthly basis of the extent of forfeiture of each of their staff.
Overall, the PSA has uncovered that from July 2019 to June 2022 ODPP staff have forfeited over 104,000 hours of accrued flex time. When you break it down, 104,000 hours is the equivalent workload of an additional 20 full time solicitors employed since 2019.
PSA ODPP solicitor witnesses
The ODPP has indicated that it requires all of the PSA’s ODPP solicitor witnesses for cross examination.
The PSA extends our appreciation to the invaluable assistance of the PSA delegates and solicitor witnesses. We encourage members to extend your support for those members who have provided statements and assistance in respect of the Award application including if available, to attend the IRC hearing.
If you are interested in attending the hearing virtually, please contact your PSA delegate or industrial officer for dial in details.
Thank you for your ongoing support.