The PSA’s application for an Office of the Director of Public Prosecutions (ODPP) Flexible Working Hours Award (FWHA) was listed for an interlocutory hearing before the Full Bench of the Industrial Relations Commission (IRC) on 14 June 2023.
As members will recall from our previous bulletins, the PSA has brought the substantive 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 FWHA into an Award, including a Safe Workload Practice requirement and accountability measures designed to prevent the forfeiture of flex by solicitors.
Application to reopen the hearing and adduce fresh evidence
The PSA made an application to reopen the hearing in order to adduce further evidence. The Full Bench delivered an ex tempore decision refusing leave to reopen the case so that the PSA might adduce fresh evidence, including the ODPP People Matter Employee Survey (PMES) results, the Director’s speech to the ODPP solicitors conference in December 2022, and evidence about the Nous Consultancy engaged by the ODPP. The PSA contended that the open acknowledgement by the Director of workload issues was relevant to the Award application because it undermines the position put forward by the ODPP to date that forfeiture of flex was not widespread and was ‘exaggerated.’
Counsel for the ODPP had submitted that if the evidence were admitted that the ODPP would lead evidence about what was meant by “workload” when used by the ODPP and what “workload” when referred to by the PSA and that this would cause further delay. In light of this, the full bench was concerned that admitting the fresh evidence would run “a very real risk of the parties and of the Commission becoming embroiled in potentially fruitless debate as to whether the parties mean the same thing when the applicant refers to “work overload” and the respondent refers to “workload issues”.
The full ex tempore judgment may be found HERE.
The PSA maintains widespread flex forfeiture is a symptom of systemic overwork and, while disappointed with the decision of the IRC Full Bench, accepts the ruling. Your union is reassured the ruling does not undermine the strength of the existing evidence submitted in the PSA’s substantive case, which shows widespread and concerning forfeiture of flex hours by hard-working ODPP Solicitors. Notably, the PSA has adduced, without objection, evidence from the ODPP’s own records that ODPP staff had forfeited more than 104,000 hours of flex between July 2019-June 2022.
Speech made by Sally Dowling SC, Director of Public Prosecutions
As members would be aware, the Director of Public Prosecutions delivered a speech to the ODPP solicitors’ conference in December 2022 and acknowledged workload as an issue. The ODPP had put to the IRC in proceedings that excessive workload and forfeiture of flex time is ”an exaggeration in terms of the hours that are actually being worked by employees”. The PSA contended in the application that the ODPP’s position in this regard is inconsistent with the position taken by the ODPP outside of proceedings in light of the Director’s speech, the PMES survey results and the recent engagement of the Nous consultancy to consider employee concerns including workload. Notably, the Director made the following statements to the Solicitor’s conference:
“So before we get to the fun stuff I would like to talk to you briefly about a very pressing issue, which is your workload.
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“But very high workloads are not sustainable and I would like to reassure you that we are working on this. We heard what you had to say in the PMS – in the People Matter Employee Survey and we take it very seriously. Our greatest asset is our people and it’s our priority to ensure that you have the time and the tools to do and be your best.
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“We are also going to engage early in 2023 an expert consultancy to re view our statistical data, and the results of the PMES survey, to frame a conversation with you about workload. This will examine workload challenges, the impact of the District Court practice notes, EAGP processes – external and internal, and the practices of the courts in which we practice.
…
“I do wish to assure you that your workload and your wellbeing are a priority of mine personally and also of the entire executive team.”
Both the PSA and the ODPP are well aware of your workload concerns. We note the PMES survey found significant reductions in employee engagement, satisfaction, and wellbeing compared with previous years including the following results:
- Less than half of all staff report they can keep work stress at an acceptable level (44 per cent, down 14 per cent from 2021)
- Most staff do not feel they have the time to do their job well (34 per cent, down 10 per cent)
- The vast majority of staff report experiencing overwork, with only 27 per cent disagreeing with “I feel burned out by my work”
- Only 47 per cent feel they are paid fairly for the work they do – down 21 per cent, the single largest reduction in favourability across the survey.
Alleged breach of Model Litigant policy
In light of the apparent inconsistency between the position the ODPP has taken in the IRC and the position taken by the ODPP outside of the IRC, the PSA recently wrote to the ODPP in respect of the ODPP’s obligation to adhere to the Model Litigant Policy (the Policy).The PSA raised concerns directly with the ODPP that this conduct was inconsistent with the Policy and, in light of the statements by the Director, asked for confirmation that this had been referred to the Head of the Agency, that is, the Director. The ODPP responded denying any failure to meet its obligations under the Policy, claiming that “the Policy applies to civil claims and civil litigation (see clause 1.2). In other words, the Policy requires the respondent to act consistently in litigation.”
Although the PSA requested confirmation that the dispute had been referred to the Director, concerningly the ODPP’s response did not confirm this. Instead, the ODPP claimed “the parties are attempting to resolve this matter between themselves in the first instance as required by the Policy”, indicating it was not required to refer the dispute regarding non-compliance with the Policy to the Director as yet, asserting that the exchange of correspondence was such an attempt at resolution. The PSA is concerned that this correspondence indicates that the very serious concern about noncompliance with the Model Litigant Policy appears not to have been referred to the Director.
The PSA remains concerned that the ODPP is not acting consistently with the Model Litigant Policy. Your union considers that the staff of the ODPP are entitled to expect that their organisation and Executive comply with the same high standards of fairness and integrity required by solicitors and Crown Prosecutors when they appear for the Director.
Forfeited Flex Form – advice to members
The PSA understands that some members have been directed by their managers to sign the Forfeited Flex Form. As outlined in earlier bulletins, the PSA has raised concerns about this form and the associated Managers’ Guide – Forfeited Flex.
The PSA has raised concerns with the wording of the Guide because it contains terms that are contrary to an employer’s obligations under the Work Health Safety Act 2011 and considers it contrary to the Award-protected flex entitlements of staff to have them certify they are content to work for no pay by forfeiting their flex entitlements.
The PSA recommends that members should decline to agree to forfeit their flex time or certify on the Forfeited Flex Form that they agree to forfeit their flex time. The following section of the Forfeited Flex Form should not be endorsed by members:
“I am managing my workload and am content working my current hours and do not seek any adjustments be made. I confirm that my current excess flextime is not negatively impacting on my wellbeing. I undertake to notify my manager should my position change and discuss alternative arrangements.”
If managers place pressure on staff to endorse this statement, please notify your Delegate or PSA staff.
When completing the Forfeited Flex Form with managers, members should utilise the other actions to reduce flex hours including reducing workload, scheduling flex leave or adjusting working hours.
Overtime
The PSA encourages all members to submit claims for overtime when they are required to work outside of core hours.
Unfortunately, the existing ODDP overtime policy dated December 2008 lacks clarity as to who can approve overtime and the existing policy dated December 2008 references defunct industrial instruments and legislation for example, ‘the Office’s Enterprise Agreement’ and the Public Sector Employment and Management Act 2002 (repealed).
Accordingly, the PSA has written to Human Resources seeking clarification and for a proposed draft updated Overtime policy to be provided to the PSA for consultation. We will provide an update once we have further information.
Next IRC listing – hearing on Wednesday 16 August 2023
The matter is listed for further Hearing on 16 August 2023 10:00am before the Full Bench of the IRC.
We encourage members to attend the further hearing.
PSA Delegates
The PSA wishes to extend its thanks to all Delegates for their participation and invaluable support in relation to these proceedings. We welcome the return of Amanda-Lee James as a delegate in July 2023.
Your PSA Industrial Staff