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Current and former lawyers with the Office of the Director of Public Prosecutions are seeking compensation for unpaid overtime, two years after some of their colleagues received an unknown settlement.
About 16 lawyers who are or were formerly employed by the Office of the Director of Public Prosecutions (ODPP) have filed proceedings in the Industrial Relations Commission (IRC) for what they alleged was a failure of their employer to pay them their unpaid overtime hours.
Much of their application hinges on an October 2023 decision by the full bench of the Industrial Relations Commission, which found “a significant number of lawyers are regularly forfeiting flex leave” and those lawyers were “not being paid for all the hours they work”.
Those proceedings were initiated by the Public Service Association and Professional Officers Association Amalgamated Union of NSW (PSA) with the intention of introducing a new award.
At the time, conditions of employment were provided by the Crown Employees – Legal Officers (Crown Solicitors’ Office, Legal Aid Commission Staff Agency, Office of the Director of Public Prosecutions and Parliamentary Counsel’s Office) Review Award, the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009, and the Flexible Working Agreement (made under cl 10.1 of the Conditions Award).
The commission’s full bench came up with a new award, known as the Crown Employees (Office of the Director of Public Prosecutions, Flexible Working Hours) Legal Officers Award 2023.
The October 2023 decision was followed by action filed by approximately 15 lawyers, via the PSA, for compensation for the alleged “unpaid work in the form of forfeited flex and overtime”. It ended in a confidential settlement sometime after August 2024.
Despite the full bench finding that the Conditions Award did not provide for a local arrangement to require a lawyer to perform work for which they are not being paid, the ODPP did not go back and provide redress to lawyers not involved in the confidential settlement matter.
A number of them instructed a law firm to seek redress for their own forfeited flex hours, but each was refused.
They have now commenced proceedings alleging the ODPP victimised them by, among other things, a failure to pay them any sum referable to the value of flex leave and overtime forfeited in accordance with the Conditions Award, “when similar payments were made on an unknown date to other solicitors of the ODPP”.
Conciliation in the matter is ongoing.
A summons filed in May has sought the production of documents linked to the confidential settlement, including deeds of settlement, an originating application, and any document that might record the payment of any sum to the original 15 lawyers.
The Industrial Relations Secretary, as defendant in these proceedings, and the ODPP agreed to release the documents, so long as those under three categories were kept confidential. The PSA filed a similar notice of motion for those same categories of documents.
Neither the Industrial Relations Commission, the ODPP, nor the PSA suggested the summons was a “fishing expedition”, and they “were right not to raise arguments of that kind”, the IRC found.
The documents were ordered to be produced, with those under the three categories subject to redactions. Orders were also made that they be kept confidential, for use in the present proceedings only, and not intended to confine use in the current conciliation process.
They are also to be securely destroyed at the conclusion of the present proceedings.
Citation: Wasilweicz & Ors v Industrial Relations Secretary o/b the Director of Public Prosecutions [2026] NSWIRComm 1065.
