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Flexible Working Hours Award Update: ODPP Claims Flex Forfeiture The “Natural Consequence” of Work

  25 August 2023

ODPP: Workload Dispute and Award Application Update

This bulletin is a summary of the status of the Award application and provides an update on proceedings since our last Bulletin of 23 June 2023 HERE.

The ɫ������has brought the Award application in response to unaddressed and ongoing overwork issues in the ODPP. The ɫ������contends that overwork has manifested widespread forfeiture of flex time by solicitors at the ODPP and that the problem remains ongoing. The PSA’s application seeks to enshrine aspects of the existing Office of the Director of Public Prosecutions (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 16 August 2023 final submissions of the parties were heard by the Full Bench of the Industrial Relations Commission (“the Commission”).

Final submissions of parties

Submissions by the PSA

Counsel for the PSA, Patricia Lowson, submitted that the Commission would be satisfied that the widespread and endemic forfeiture of flex hours by ODPP solicitor warranted to making of a special award for ODPP solicitors. Evidence before the Commission showed that the ODPP’s own flex data recorded that ODPP staff forfeited more than 104,000 hours of flex.

Ms Lowson took the Commission to clause 7.8 of the Flexible Working Hours Agreement, a provision intended to prevent flex forfeiture by creation of a written strategy and noted that there was no evidence before the Commission of any written strategy ever having been entered into at all by any employee with their manager: T7; T26.

LOWSON: There’s no evidence from any managing solicitor that they at any time complied with the flexible working hours agreement by identifying when an employee was approaching the 50 hour accrual, nor that they had identified ways to ensure that the hours were not forfeited and, again, no evidence that they had ever prepared a written strategy with an employee with a view to avoid forfeiture of flex, and whether or not any such strategy worked.

… the 35 hours is a baseline, it’s what you are to work, and you’re not to work more than that. Everybody would accept that there’s a degree to which people do work more, or that five minutes either side isn’t going to count, but we don’t accept that there’s some minimal

level where you go, “That’s only an hour, that’s fine.” Because, the evidence doesn’t show that, what the evidence shows is frequent engaging in excess hours, and I’ll come to that in a moment.

… there is no evidence that deputy solicitors are engaging in any kind of performance management of managing solicitors, and no evidence from managing solicitors, that there is any degree of compliance with 7.8 of the flexible working hours agreement. So, Mr Mahendra made submissions that the respondent, in due course, today I guess, will say, “This isn’t really – it’s just a few employees.” In fact, that was put, we only called 1% of the employees in this case. Their own evidence demonstrates how widespread the forfeiture of flex hours is… It shows enormous numbers of hours of flex leave being forfeited.

Ms Lowson highlighted that employees’ ability to work flexibly to meet operational requirements of the ODPP was to the benefit of the employer, but that due to the widespread forfeiture of flex, the ODPP also improperly benefitted from of thousands of hours of unpaid work: T7, T11-12. Ms Lowson was critical of the cross examination by the ODPP of its solicitors that sought to minimise their flex forfeiture by averaging it, describing such cross examination as “entirely misplaced and frankly demeaning”: T30.

Ms Lowson pointed to evidence from ODPP solicitors, giving evidence for the PSA, of the detrimental impact and personal cost of working, and forfeiting, excessive hours: T19. This was in the face of evidence that the relationship between overwork and health issues was acknowledged by the ODPP, and yet little was done about it: T18. Ms Lowson highlighted the factors which result in overwork of staff including, the culture of the ODPP and the siloed nature of work: T23.

Ms Lowson emphasized the need for the proposed Award to address the ODPP’s culture of pressuring staff into overwork in the context of prosecution work which involves external pressures such as Court deadlines and professional obligations (T13), and articulated to the Commission the purpose of the proposed Award:

LOWSON: This award, if it is made, will force the employer to do what it should be doing under the Flexible Work Hours Agreement but is not. They’re not doing it. … They simply have not stuck to their side of the bargain, the very thing that would prevent forfeiture of flex. And they’ve benefited accordingly. This award has the effect of requiring that to be done. If it’s not done it’s a breach of award and the consequences would flow.

ODPP submissions

Counsel for the ODPP, Dilan Mahendra, submitted that the Commission should not make the Award sought by the ɫ������because the current Award already provides fair and reasonable conditions of employment, characterizing the issue as “a compliance issue as opposed to an award issue”: T35, T43.

Mr Mahendra contended that “The forfeiture of flex leave, as contemplated by the Flexible Working Agreement, is a natural consequence of the nature of the work that solicitors perform” (T37) and that only a “a small group of people who are working beyond what we say a Flexible Working Agreement really does contemplate” and forfeiting flex: T38. Mr Mahendra submitted that there were “a number of staff who don’t want to engage” with discussions about reallocating work and spreading the load: T40.

Mr Mahendra pointed to the introduction of the Managers Guide to Forfeited Flex as showing that the ODPP is taking steps to put strategies in place to adhere to the flexible working hours. Clarification from Commissioner Muir resulted in the concession by the ODPP that the Managers Guide to Forfeited Flex was introduced by the ODPP three months after the ɫ������commenced proceedings and that the document had only “arisen because of the concerns that have been raised by the PSA.” The ODPP further conceded it would not be able to take the Commission to any evidence of implementation of the document: T39.

Commissioner Sloane questioned Mr Mahendra about the Managers Guide to Forfeited Flex noting that it invited employees to “tick a box saying they’re fine, they’ll keep working hours that are in breach of the award obligations” and queried the emphasis the ODPP placed on an employee’s obligation to raise workload issues:

Mr Mahendra contended that it is a “two way street” but conceded that the only evidence of the ODPP’s action was the Managers Guide to Forfeited Flex, which Commissioner Sloane described as “flawed because what it allows for is … the manager and the ODPP can wipe their hands of any responsibility”: T41.

The full transcript of final submissions is available HERE.

Decision reserved

The Full Bench has reserved its decision.

Members will be notified of the decision as soon as it is available.

We take the opportunity to thank the PSA’s witnesses and delegates for their contribution to this significant endeavor. We also thank the members who provided their moral support and encouragement.

The ɫ������supports you in your efforts to address overwork at the ODPP. Members are encouraged to reach out to delegates if they have unresolved issues with excess workload.