The PSA’s application for a Flexible Working Hours Award (FWHA) was listed for a Directions hearing on Thursday 16 November 2023 before Commissioner Sloan of the Industrial Relations Commission (IRC). This followed from the landmark decision of the Full Bench of the Industrial Relations Commission (IRC) on Friday 27 October 2023 in favour of the PSA for the creation of a new Award for ODPP solicitors.
The PSA brought the application in response to longstanding unaddressed and ongoing overwork issues at the ODPP. The PSA contended that overwork manifested in widespread forfeiture of flex by solicitors at the ODPP. The PSA’s application sought to enshrine aspects of the existing ODPP Flexible Working Hours Agreement into an Award, including a Safe Workload Practice requirement and accountability measures designed to prevent the forfeiture of flex by solicitors.
On Monday 13 November 2023 the PSA was notified by the IRC that the ODPP is no longer legally represented by Herbert Smith Freehills lawyers and is now represented by the Crown Solicitor’s Office (CSO). The PSA served a draft Award on the CSO on 13 November in advance of the Directions hearing on 16 November 2023.
Directions Hearing – ODPP disputes finality of full bench judgment
At the Directions hearing, the CSO put on the record that the ODPP’s view is that the decision of the IRC Full Bench is ‘preliminary’ and not a final decision. The PSA strongly contended that the unanimous decision of the IRC Full Bench is clearly a final decision, the terms of which should be respected and implemented without delay.
The ODPP complained that it should have been provided with an opportunity to put on evidence about the cost of payment of overtime and an extension of the bandwidth. This submission was made despite the fact that the counsel for the ODPP, Dilan Mahendra, cross examined each of the PSA’s ODPP solicitor witnesses about overtime and put to each witness that applying for overtime was a simple process they had chosen not to pursue. The ODPP’s complaint now that it did not have an opportunity to address overtime in the hearing is at odds with its own cross examination of these employees. Additionally, the transcript of proceedings reveals the Chief Commissioner raised the question of reduced bandwidth with the parties on multiple occasions revealing that the complaint that the ODPP did not have opportunity to submit in relation to bandwidth is not borne out. The PSA contends that the ODPP’s complaint it was not given an opportunity to address these issues is a disingenuous one.
The ODPP objected to any directions being made other than a conciliation on or after 11 December and sought further time to provide a response to the draft Award. They indicated on the record they may wish to make an application to file further evidence about budgetary constraints. Counsel for the PSA contended that this is irrelevant, but that the ODPP should indicate quickly what they are going to do. The ODPP’s raising of budgetary constraints is also at odds with how it ran its case – namely that there was no widespread overwork issue. If that were in fact the case, any impact on the ODPP’s budget would be minimal.
The PSA is firmly against any delay of the speedy implementation of the IRC’s Award decision.
Commissioner Sloan made the following directions:
- The ODPP is to provide to the PSA a document setting out the matters agreed and not agreed and, in as much detail as is reasonable, the reasons for any disagreement by 4.00pm on 27 November 2023
- The matter is listed for conciliation in person at 2.00pm on 30 November 2023.
PMES (People Matter Employee Survey) 2023 Results
Members will be aware of the PMES 2023 survey results found HERE.
The ODPP was reported in the media earlier this week as ‘the unhappiest place in the NSW public service’. The abysmal PMES 2023 results included:
- An overall wellbeing score of 34%, which is 20% lower than the overall NSW public sector.
- 60% of respondents reported that they are experiencing burnout.
- Less than a third of respondents reported that they had enough time to do their job well, or believed senior managers listened to them.
- Increased bullying, in which a quarter of ODPP respondents reported witnessing bullying in the workplace.
- Sadly, only 27% of respondents said they were confident that the ODPP would act on the survey results.
- 43% of respondents said they were seeking employment elsewhere within the NSW public sector and one in five employees were considering private sector employment.
The PSA is interested in your views, and we encourage you to discuss this with your delegates or industrial staff.
Chair: Amanda-Lee James
Vice Chair: Nicholas Leach
Secretary: Vanessa Chan
Assistant Secretary: Erin Brown
Women’s Contact Officer: Fiona Horder
Delegate: Tamara Kuppusamy
PSA Industrial Staff