The PSA’s application for a Flexible Working Hours Award (FWHA) was listed for conciliation between the parties on 30 November 2023 and 5 December 2023 in the Industrial Relations Commission (IRC) before IRC Commissioner Sloan. The PSA brought the application in response to longstanding unaddressed overwork issues at the ODPP.

On Friday 8 November 2023, the Crown Solicitor’s Office (who have now been briefed in lieu of Freehills) advised that changes proposed by the PSA were agreed and the consent Award (found HERE) was forwarded to the IRC for approval.

Subject to any feedback from the Full Bench, the Award will be made in Chambers and will take effect from 4 December 2023, which is the start of the current Flex Period.

The consent Award seeks to give effect to the landmark IRC Full Bench decision (found HERE), which acknowledged the significant workload difficulties faced by Legal Officers at the ODPP, against a backdrop of long-term denial of overwork issues by the Office.

Key Changes

The new Award will apply to all Legal Officers employed by the ODPP, including Solicitor Advocates.

Key changes include:

1. Bandwidth change: Bandwidth is reduced to 7.30am to 6.30pm, Monday to Friday.
2. There will be no forfeiture of flex hours:a. Restrictions on taking flex leave (i.e. 5 flex days in a flex period, or 30 flex days in a 12-month period) will not apply where that would result in a Legal Officer accruing more than 50 flex hours in a settlement period.

   b. If it is likely that a Legal Officer will have more than 50 flex hours at the end of a settlement period, the Legal Officer and their supervisor must either devise a strategy in writing to ensure the Legal Officer is able to use flex leave to avoid accruing more than 50 flex hours at the end of the settlement period. If that is not possible, consideration should be given to carrying over all accrued flex into the next settlement period, with whole or half days identified in advance that can be taken as flex leave that will have the effect of reducing the Legal Officer’s flex balance back below 50. As a general principle, accrued flex should not be carried over unless the Legal Officer and their supervisor have devised a written strategy that will allow the Legal Officers to use the accrued flex as flex leave.

   c. Excess flex to be paid as overtime: in the absence of agreement between the Legal Officer and their supervisor, any flex hours above 50 at the end of a settlement period will be paid as overtime at the rate of time and one half, with those hours then removed from the accrued flex calculation.

3. Overtime no longer required to be directed: the requirement that a Legal Officer must be directed to work overtime is removed. All hours worked outside of the bandwidth will be paid as overtime subject to conditions outlined in clause 12 including:a. The hours worked outside of the bandwidth must be reasonable and necessary for the proper performance of the Legal Officer’s duties,

   b. A Legal Officer 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.

   c. Prior approval to work overtime will not be required in the case of unforeseen or exceptional circumstances, which preclude a Legal Officer seeking such approval. In that case, the Legal Officer 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.

   d. If a Legal Officer 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 will be formed to explore the impact of the award on the hours of work and workload of Lawyers. Please get in touch with your delegates if you would like to know how you can assist.

PSA Delegates

The PSA extends 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.

Chair: Amanda-Lee James
Vice Chair: Nicholas Leach
Secretary: Vanessa Chan
Assistant Secretary: Erin Brown
Women’s Contact Officer: Fiona Horder
Delegate: Tamara Kuppusamy