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Industrial Relations Commission (IRC) Award Application

  27 July 2022

The ɫ������has filed an application with the IRC for a new Award seeking to enshrine aspects of the existing Office of the Director of Public Prosecutions (ODPP) Flexible Working Hours Agreement (FWHA) and to include a Safe Workload Practice requirement. This follows from the discontinuance of the recent IRC workload dispute. The ɫ������is legally represented in these proceedings.

The ɫ������filed its evidence on 10 June 2022. The ODPP is to file its evidence on 27 July 2022.

The matter was listed for conciliation before Commissioner Webster on 20 July 2022, despite objections from the ɫ������due to the futile conciliation attempts in the previous workload dispute.

In advance of the conciliation, the ɫ������contacted the ODPP requesting that the ODPP outline any proposal or concessions that it would be prepared to make in respect of the application for a new Award. The ODPP advised the ɫ������that it would not provide any offer prior to the conciliation.

The conciliation on 20 July 2022 failed and the matter will now be listed for hearing before a Full Bench of the IRC during the week commencing 17 October 2022.

Managers Guide – Forfeited Flex

At the conciliation on 20 July 2022, the ODPP served a copy of a new “Managers Guide – Forfeited Flex” (the Guide) at the bar table. The Guide was dated 19 July 2022 and said by the ODPP to be effective on and from that date. The Guide outlines the steps that a manager is required to take in relation to employees who have forfeited flex time or who have accrued flex time which may lead to forfeiture.

A copy of the Guide can be found HERE.

The ɫ������objected to the document and subsequently wrote to the ODPP objecting to its implementation due to the failure by the ODPP to consult with the ɫ������in accordance with Clause 65 of the Crown Employees (Public Service Conditions of Employment Award) 2009 (the Award).

The ɫ������also 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 (the WHS Act).

The ODPP responded overnight advising that it has no intention of suspending application of the Guide, claiming that the ODPP has issued guidance to its managers in relation to compliance with the existing provisions in the FWHA.

The ODPP contends that the subject matter of the Guide does not require consultation either under the Award or WHS legislation.

The ɫ������is concerned that the ODPP is ignoring its legal obligations to consult under the Award.

Forfeited Flex Form

At the end of the Guide is a ‘Forfeited Flex Form’ that managers are required to forward to any employees who have forfeited flex time or who have accrued flex time which may lead to forfeiture.

Managers are to request that employees sign the Forfeited Flex Form and return it to them for filing and record keeping purposes.

The Forfeited Flex Form includes the following statements:

“I am managing my workload and am content working my current hours and do not seek any adjustment be made. I confirm that my current excess flexitime is not negatively impacting on my wellbeing. I undertake to notify my manager should my position change and discuss alternative arrangements.”

and

“This arrangement is made in accordance with the provisions of the ODPP Flexible Working Hours Agreement and is designed to ensure mutual obligations of managers and staff are maintained and workloads are monitored and managed to ensure the wellbeing, health and safety of all staff.”

The ɫ������is strongly opposed to members signing the Forfeited Flex Form in its current form and is currently seeking legal advice in respect of it, and the Guide generally.

The PSA’s current advice to members is that they should not sign the Forfeited Flex Form. Members should rely on the provisions of the FWHA, particularly Clauses 2.1.5 and 7.8.

Since May 2015, clause 7.8 of the FWHA has required ODPP managers, in conjunction with employees, to devise written strategies to ensure that employees are able to take, and not continually forfeit, flexitime.

The ODPP’s own data demonstrates that, between June 2019 and October 2020, employees forfeited more than 50,000 hours of flexitime. This is simply unacceptable.

If members are compelled to sign the form against their wishes, we encourage you to lodge a Work Health Safety incident report and notify the ɫ������immediately.

Settlement offer by ODPP

On Friday 22 July 2022, the ODPP emailed a settlement offer after hours in relation to the application for an Award. The ɫ������will update Members about this offer at the state wide members meeting on Wednesday 27 July 2022.

Your ɫ������staff

Dean Allen Industrial Officer
Alex Sala Organiser