On Friday 27 October 2023 the Full Bench of the Industrial Relations Commission (IRC) handed down a landmark decision in favour of the PSA for the creation of a new Award for ODPP solicitors. The matter has been listed for further Directions Hearing before the Full Bench of the IRC on Monday 6 November 2023 for the new Award to be made.

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.

ODPP culture ripe for exploitation

The IRC found that ODPP employees both regularly forfeit flex and work outside of bandwidth hours unpaid.

The IRC held that the present working conditions and ODPP management approach to flex forfeiture by use of a Forfeited Flex form was “ripe for exploitation” noting a culture of “organisational resistance within the ODPP to the approval and payment of overtime.”

In these circumstances the Commission held it could not condone the maintenance of the status quo.

New Award to be made

The IRC held that the Award is to provide as follows:

• The bandwidth be reduced to 7.30am to 6.30pm, Monday to Friday.
• The restrictions in the Agreement on the taking of flex leave will not apply where their application would result in a solicitor accruing more than 50 flex hours in a settlement period. This includes flex leave taken either at the request of the solicitor or as directed by their supervisor.
• There will be NO forfeiture of flex hours.
• If at the end of a settlement period a solicitor has more than 50 accrued flex hours, there will be a discussion between the solicitor and their supervisor with a view to agreeing whether the hours will be carried over into the next settlement period, or be paid as overtime. As a general principle, hours should not be carried over unless the solicitor and their supervisor have devised a strategy in accordance with cl 7.8.1 of the Agreement that will allow the solicitor to use the flex hours as flex leave.
• In the absence of agreement between the solicitor and their supervisor, any flex hours above 50 at the end of a settlement period will be paid as overtime.
• The requirement that a solicitor must be directed to work outside bandwidth hours to be entitled to be paid overtime would be removed. Instead, all hours worked outside of the bandwidth would be paid as overtime subject to the following:
• The hours worked outside of the bandwidth must be reasonable and necessary for the proper performance of the solicitor’s duties.
• A solicitor must take all reasonable steps to obtain prior approval from their supervisor to work overtime. Approval to work overtime will not unreasonably be withheld. A failure by a supervisor to respond to a request for approval, provided that it is made in a timely manner, will be taken to be approval. A supervisor must provide reasons for any refusal to approve overtime.
• Prior approval to work overtime will not be required in the case of unforeseen or exceptional circumstances, which preclude a solicitor seeking such approval. In that case, the solicitor must endeavour to notify their supervisor that they will be required to work overtime and as soon as practicable after having done so explain to their supervisor why it was not possible to obtain prior approval.
• If a solicitor routinely seeks approval to work overtime, their supervisor should meet with them to discuss their workload and why their work is unable to be performed during contract hours.
• A consultative committee comprising representatives of the PSA and ODPP management would be formed. It would meet at least six monthly to explore the impact of the Award on the hours of work and workload of solicitors.

A copy of the IRC Full Bench decision can be found HERE.

The PSA hopes that this decision will be the catalyst for much-needed institutional change at the ODPP in relation to overwork, eliminate the forfeiture of flex at the ODPP, and lead to a safer working environment for solicitors.

PSA Delegates

The PSA wishes to extend its thanks to all Delegates and members for their participation and invaluable support in relation to these proceedings and particularly to those who risked reprisal to give evidence in the proceedings.

PSA

PSA Delegates wish to extend their gratitude to all current and former colleagues who courageously came forward to give evidence in the proceedings and also those who provided invaluable information about their experiences. None of this would have been possible without the tireless work and advocacy of the PSA – in particular, in particular Dean Allen (Industrial Officer), Monika Wunderlin (previous Industrial Officer), Alison McRobert (Legal Counsel), and Patricia Lowson (Counsel) – for the incredible investment of their time and resources into fiercely advocating on behalf of us all.

As this is an evolving issue, we urge all staff who are currently not members of the PSA to join and be a part of this exciting time of change in the organization.

The current structure of the PSA organizational committee is as follows and you are welcome to contact any member of the committee should you require further information:

Chair: Amanda-Lee James

Vice Chair: Nicholas Leach

Secretary: Vaneesa Chan

Vice-Secretary: Erin Brown

Women’s Contact Officer: Fiona Horder

 

Delegate: Tamara Kuppusamy