Alexander Lew v State of Victoria T/A Office of Public Prosecutions
[2024] FWC 3344
•3 DECEMBER 2024
| [2024] FWC 3344 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
Alexander Lew
v
State of Victoria T/A Office of Public Prosecutions
(C2023/7258)
| COMMISSIONER JOHNS | MELBOURNE, 3 DECEMBER 2024 |
Resolution of dispute in accordance with the dispute resolution procedure of the Victorian Public Service Enterprise Agreement 2020 - dispute concerning the correct classification of a Principal Solicitor at the Office of Public Prosecutions.
This decision is about whether Alexander Lew (Applicant), a Principal Solicitor in the Trial Division 2 of the Office of Public Prosecutions (OPP/Respondent), should be re-classified, from VPS Grade 6.1 to VPS Grade 6.2 under the Victorian Public Service Enterprise Agreement 2020 (VPS EA).
The financial consequence of the decision is that a successful reclassification will result in Mr Lew being paid $1 more per annum.[1]
Having attempted to resolve the re-classification dispute directly with his employer, without success, Mr Lew applied to the Fair Work Commission (Commission) to deal with the dispute under s.739 of the Fair Work Act (Cth) (FW Act) by commencing these proceedings against the State of Victoria T/A Office of Public Prosecutions.
The Applicant contends that his duties and responsibilities align with those performed by VPS Grade 6.2 Principal Solicitors in the OPP, and that he meets the criteria for reclassification under the VPS EA.
The OPP disputes the Applicant’s entitlement to reclassification. It contends that the Applicant’s role remains appropriately classified as VPS Grade 6.1.
Consequently, the Commission must determine:
(a) Is the value of the Applicant’s work commensurate with that performed by VPS Grade 6.2 Principal solicitors employed at the OPP in the Trial Division non-management positions?
(b) Pursuant to cl 27.5 of the VPS EA should the Applicant be moved from Principal Solicitor VPS Grade 6.1 to Principal Solicitor VPS Grade 6.2.
Model Litigant Guidelines
The OPP is Victoria’s largest criminal legal practice. The OPP prosecutes serious offences in Victoria’s County and Supreme Courts on behalf of the Director of Public Prosecutions (DPP), as well as conducting committal hearings in the Magistrates’ Court. The OPP also conducts criminal appeals in the County Court, the Court of Appeal and the High Court of Australia on behalf of the DPP. Matters include homicide, culpable driving, armed robbery, drug trafficking, serious sexual offences, corruption, fraud, organised crime and serious assaults.[2] In FY22/23, 87.8% of completed prosecutions resulted in a guilty outcome.[3]
In 2001, the State of Victoria issued Model Litigant Guidelines (MLGs). The MLGs were revised in 2011. The MLGs set standards for how the State should behave as a party to legal proceedings. In order to maintain proper standards in litigation, the State of Victoria, its departments and agencies (including the OPP) must behave as a model litigant in the conduct of litigation. The MLGs include an obligation,
“… to consider seeking to avoid and limit the scope of legal proceedings by taking such steps, if any, as are reasonable having regard to the nature of the dispute, to resolve the dispute by agreement, including participating in appropriate dispute resolution (ADR) processes…”.[4]
All of the above establishes that the OPP is an important and significant public institution. It should not be involved in litigation with its own employees, over a (relatively minor) reclassification dispute.
The OPP’s Vision, Values and Strategic Priorities
The OPP has a vision to,
“…be a dynamic organisation continually adapting to deliver effective outcomes for our community by valuing and supporting our people, applying our unique legal expertise and leveraging our digital capability.” (my emphasis)[5]
The OPP has the following values:
· “Treat everyone with respect”, and
· “Work collaboratively”.[6]
The OPP has a strategic priority to,
“… invest in our people … to support them to succeed”.[7]
Under the strategic priority of “Professional Excellence”, the OPP claims,
“We aspire to develop and build outstanding capability by investing in learning and development…”.[8] (my emphasis)
Facts in this matter
In this matter the evidence is that, throughout the dispute process the Applicant has been “prepared to meet with [the delegate], Mr Fowler, to discuss and agree upon realistic benchmarks and milestones that an OPP non-management Principal Solicitor needs to meet to progress from 6.1 to 6.2. Despite repeated requests, no such meeting has been offered to [Mr Lew] by the OPP.”
Before me Mr Fowler conceded the same,
The Commissioner: At no point have you sat down with Mr Lew and said, 'In order to get from principal lawyer 6.1 to 6.2 this is the actual evidence I will require.' You've never said that to him, have you?
Mr Fowler: No, I haven’t, no.
The Commissioner: Would that be a good thing to do, to coach someone and develop them through the levels?
Mr Fowler: Mr Lew has a direct manager above that, Commissioner.
The Commissioner: So, you're saying, 'No, Commissioner, I don't think that's my role'.
Mr Fowler: No, I'm not saying that, Commissioner.
The Commissioner: All right. So, would that have been a good thing to do, to try and coach and develop him to give him guidance about … explicit evidence you require as the decision-maker to move from principal lawyer 6.1 to 6.2?
Mr Fowler: Commissioner, he applied, I dealt with his application and that is something that might come later.
The Commissioner: You've had a long time to do it. You've not done it, have you?
Mr Fowler: I haven't done it, but the dispute has ---
The Commissioner: You don't see that as your role, do you?
Mr Fowler: I talk to solicitors at all different grade levels about career progression, Commissioner. It is certainly part of my role.
The Commissioner: And you've not had those conversations with the applicant to give him an idea about the explicit evidence he has to give you in order for him to move from 6.1 to 6.2 as a principal lawyer; you've never done that, have you?
Mr Fowler: No, I haven’t, Commissioner, no.[9]
Mr Fowler also agreed with the following proposition put by the Applicant,
“I have through the OPP’s lawyers requested repeatedly that … conversations take place between you and I, or you and Ms McLeod so that explicit examples could be agreed upon and I could move towards working towards them”.[10]
It was an extraordinary concession.
It raises questions about whether Mr Fowler has fully embraced the OPP’s Vision, Values, and Strategic Priorities as they relate to employee development. As the delegate and decision-maker, Mr Fowler could have done more to demonstrate a clear commitment to supporting Mr Lew’s reasonable ambition to progress from VPS Grade 6.1 to VPS Grade 6.2.
Ms Christopoulos conceded that there was no evidence before the Commission of “[her] team” (i.e. the OPP’s HR department) providing the Applicant with “specific advice or information about what evidence he can produce that would enable him to move from principal lawyer 6.1 to 6.2,”[11] despite the Applicant seeking that information from the Respondent.
It seems to me that this entire proceeding could have been avoided had the OPP in its management of Mr Lew, sat down with Mr Lew and gave him very clear development goals that, in the OPP’s view, would have enabled Mr Lew to move from VPS Grade 6.1 to VPS Grade 6.2. Mr Lew is a very ambitious and determined person. He is a longstanding and skilled lawyer. I have no doubt that, given clear development goals, Mr Lew would have risen to the occasion. He should not have had to litigate to achieve an outcome that proper, effective and competent human resource management could have achieved.
It is clear from the materials filed in this matter and the duration of it, that much time and energy have been expended by the OPP in defending this matter. Likely the resources applied to it have been considerable too. One can only assume that the polite, reasoned and skilful advocacy of Mr McDermott of counsel comes at a not insignificant cost to the taxpayer (certainly many times more than the $1 per annum cost attached to reclassifying Mr Lew at VPS Grade 6.2).
Very little in the conduct of OPP management is evidence of, in relation to Mr Lew’s professional development, the OPP’s commitment to:
(a) valuing and supporting Mr Lew,
(b) working collaboratively with Mr Lew in relation to his career ambitions,
(c) investing in Mr Lew so that he could move from VPS Grade 6.1 to VPS Grade 6.2,
(d) supporting Mr Lew to succeed, and
(e) investing in Mr Lew’s development from VPS Grade 6.1 to VPS Grade 6.2
In short, it is bewildering that management within the OPP could not resolve this matter without the need for litigation.
Status of my observations
Having made observations (above) about:
(a) the MLGs and the OPP’s Vision, Values and Strategic priorities, and
(b) my concerns about whether the OPP have, in this proceeding,
i.complied with the MLGs; and
ii.lived its Vision, Values and Strategic Priorities,
let me make it clear that none of the above observations formed part of my decision-making process in the present matter.
My dismay at the way in which the OPP have conducted both the human relations management of Mr Lew, and the present litigation are not relevant to the question of whether Mr Lew should be reclassified. They have not influenced my decision in the matter. I have made the observations (above) solely in the hope that the OPP will reflect deeply on its human resources practices, and any future litigation involving its own employees, so that it truly,
(a) Values and supports its people,
(b) Works collaboratively with its staff,
(c) Invests in them,
(d) Supports them to succeed, and
(e) Invests in their learning and development.
Jurisdiction
Section 739 of the FW Act empowers the Commission to deal with certain disputes under enterprise agreement dispute settlement terms.
In the present matter, the clause in the Agreement dealing with dispute settling procedure is clause 13. It applies to “dispute[s] about a matter arising under this Agreement or the National Employment Standards”.[12] After compliance with the steps set out in clause 13 of the Agreement, the Agreement confers jurisdiction on the Commission to resolve disputes by conciliation, and if conciliation is complete but the dispute is not settled, by arbitration at the request of either party.
Clause 13.11(c) states that a conciliation before the Commission is to be regarded as complete when, among other things, the parties to the dispute have informed the Commission that there is no likelihood of agreement on the settlement of the dispute. On 6 December 2024, a conference was convened in the matter where the Respondent expressed the view that conciliation was unlikely to resolve the matter. Consequently, the Applicant submitted that the dispute be resolved by way of arbitration.
It is common ground between the parties, and I so find, that the Commission has jurisdiction to arbitrate the dispute.
The Agreement
The parties are covered by the Victorian Public Service Enterprise Agreement 2020. The Agreement was approved by the Commission on 9 October 2020. The nominal expiry date of the Agreement was 20 March 2024.
The coverage of the Agreement is provided by Clause 4.1:
4.1 This Agreement applies to and covers:
a)the State of Victoria in respect of all Employees (as defined in clause 2 -Definitions and interpretation); and
b)all Employees whose employment is, at any time when this Agreement is in operation, subject to this Agreement; and
c)the CPSU.
The Agreement also covers the Australian Nursing and Midwifery Federation (ANMF) and the Community and Public Sector Union (CPSU).[13]
The dispute is about whether the Applicant has been correctly classified as VPS Grade 6.1 under Clause 27.5 of the VPS EA.
Clause 27.5 of the VPS EA provides the framework for movement between value ranges for employees. It states:
27.5 Movement between Value Ranges
a) Employees and/or positions can move between Value Ranges.
Movement between the Value Ranges can occur following a job resizing review. The review process includes an assessment of the work the Employer
b) requires to be undertaken and the performance of that work by the Employee. These are assessed against the benchmarks specified in the Classification and Value Range Standard Descriptors as set out in this Agreement.
The Classification and Value Range Standard Descriptors for VPS Grade 6 are contained within Schedule D of the VPS EA:
Table 30.2: Legal Grade and Value Range Descriptors - Senior Solicitor and Principal Solicitor Principal Solicitor VPS Grade Alignment VPS Grade 6 VR1 VPS Grade 6 VR2 May manage a small to medium legal office or area of major specialisation.
Interprets the environment and makes decisions where there is limited precedent and creatively applies concepts to new situations.
Roles at this level are expected to identify and respond to new and emerging legal issues and deal with more complex or sensitive matters within the field of expertise.
Litigation Works independently on highly complex cases
May act as a solicitor advocate in the County and Supreme Courts on indictable matters which cannot be heard summarily
Develops briefs and/or advice on highly complex issues which provide options for decision at the highest level with the agency
Provides high level advice in an area of specialisation
Develops strategies for management of complex legal proceedings
Manages key stakeholder interests
Provides leadership and guidance based on advance expertise in an area of specialisation or in a broad range of legal matters to senior stakeholders Advice Work Provides authoritative advice internally and/ or to other agencies on sensitive and/ or complex legal issues
Provides authoritative written and oral advice on complex and challenging matters to stakeholders
Prepares and manages strategies for complex legal proceedings
Provides leadership and guidance based on advanced legal expertise
Identifies and advises on new and emerging issues in the law and their longer term implications for the state
Legislative Drafting Drafts complex and/or sensitive legislation and settle associated Parliamentary documentation
Prepares and manages strategies for complex matters including significant legislative change Manages and leads legislation review projects
Provides authoritative advice on legislative proposals
Analyses complex instructions to prepare proposals that incorporate stakeholder views
Provides professional leadership within the area of expertise
Prepares and manages strategies for resolving complex matters including significant legislative change
Legal Drafting Develops briefs on complex issues that provide definitive options
Prepares public communication documents on contentious/sensitive legal matters
Formulate strategies to deal with highly sensitive legal matters
Initiates legal research and analysis within the area of expertise
Develops proposals, conducts and implements major legal reviews
In the present matter the Applicant is employed in the “Litigation” stream. While his duties include some advice work and legal drafting, he need only establish that, in accordance with the Litigation stream, he “provides leadership and guidance based on advance expertise in an area of specialisation or in a broad range of legal matters to senior stakeholders.” If he can do that, he should be reclassified as VPS Grade 6.2.
Substantive hearing
At the substantive hearing of the matter the
a) Applicant represented himself; and
b) OPP was represented by Christopher McDermott of counsel, who was instructed by Caitlyn Hoffman and Aras Mollison of Landers & Rogers.
Despite the rudimentary nature of the classification dispute before me, the parties filed an unusually high volume of material in support of their respective cases. The Digital Tribunal Book comprised 1851 pages.
For completeness, I set out below the documents relied upon by the parties. I have had regard to all of this material in coming to this decision.
Exhibit Document Title Date 1 Form F10 24 November 2023 1.1 Annexure A 1.2 Annexure B 2 Submissions of the Applicant 11 January 2024 2.1 First Affidavit of the Applicant 9 January 2024 2.1.01 AL-1 Undated 2.1.02 AL-2 December 2021 2.1.03 AL-3 28 April 2023 2.1.04 AL-4 Various 2.1.05 AL-5 Various 2.1.06 AL-6 11 July 2023 2.1.07 AL-7 Various 2.1.08 AL-8 17 October 2023 2.1.09 AL-9 Undated 2.1.10 AL-10 Various 2.1.11 AL-11 Undated 2.1.12 AL-12 Undated 2.1.13 AL-13 July 2023 2.1.14 AL-14 Undated 2.1.15 AL-15 Undated 2.1.16 AL-16 Undated 2.1.17 AL-17 Various 2.1.18 AL-18 Various 2.1.19 AL-19 20 December 2023 2.1.20 AL-20 Undated 2.2 Second Affidavit of the Applicant 10 January 2024 2.2.1 AL-21 9 January 2024 3 Submissions of the Respondent 25 January 2024 3.1 Witness Statement of Paul Fowler 25 January 2024 3.1.01 PF-1 Undated 3.1.02 PF-2 Undated 3.1.03 PF-3 3 February 2020 3.1.04 PF-4 4 May 2023 3.1.05 PF-5 Various 3.1.06 PF-6 Various 3.1.07 PF-7 16 August 2023 3.1.08 PF-8 4 September 2023 3.1.09 PF-9 15 September 2023 3.2 Witness Statement of Dimitra Christopoulos 25 January 2024 3.2.01 DC-1 20 March 2017 3.2.02 DC-2 5 November 2020 3.2.03 DC-3 20 October 2021 3.2.04 DC-4 5 November 2021 3.2.05 DC-5 26 November 2021 3.2.06 DC-6 5 May 2023 3.2.07 DC-7 1 June 2023 3.2.08 DC-8 21 July 2023 3.2.09 DC-9 28 August 2023 3.2.10 DC-10 11 September 2023 3.2.11 DC-11 19 October 2023 3.2.12 DC-12 Various 3.2.13 DC-13 23 May 2023 3.2.14 DC-14 29 June 2023 3.2.15 DC-15 30 June 2023 3.2.16 DC-16 25 July 2023 3.2.17 DC-17 Various 3.2.18 DC-18 13 October 2023 3.2.19 DC-19 23 November 2023 3.2.20 DC-20 Undated 3.2.21 DC-21 June 2022 3.2.22 DC-22 June 2022 3.2.23 DC-23 Undated 4 Applicant’s Submissions in Reply 27 June 2024 4.1 Third Affidavit of the Applicant 27 June 2024 4.1.01 AL-22 Various 4.1.02 AL-23 Various 4.1.03 AL-24 Undated 4.1.05 AL-25 Undated 4.1.06 AL-26 12 January 2024 4.1.07 AL-27 Undated 4.1.08 AL-28 Various 4.1.09 AL-29 17 October 2023 4.1.10 AL-30 24 December 2020 4.1.11 AL-31 Various 4.1.12 AL-32 Undated 4.1.13 AL-33 Undated 4.1.14 AL-34 Undated 4.1.15 AL-35 Undated 4.1.16 AL-36 Undated 4.1.17 AL-37 Various 5 Statement of Agreed Facts 10 July 2024 5.1 AF-1 Various 5.2 AF-2 December 2021 5.3 AF-3 June 2022 5.4 AF-4 June 2022 5.5 AF-5 Undated 5.6 AF-6 20 March 2017 5.7 AF-7 Undated 5.8 AF-8 Undated 5.9 AF-9 Undated 5.10 AF-10 Undated 5.11 AF-11 Undated 5.12 AF-12 July 2023 5.13 AF-13 Undated 5.14 AF-14 Various 5.15 AF-15 28 April 2023 5.16 AF-16 Various 5.17 AF-17 17 October 2023 5.18 AF-18 19 October 2023
In addition, the Applicant filed a document objecting to various parts of the evidence filed by the OPP. I marked this as Exhibit 6 in the proceedings.
Exhibit 7 in the proceeding arose during the running of the hearing. It is a list of Principal Solicitors who are graded at 6.2 with their names redacted.
Uncontested facts
The following is an extract from the “Statement of Agreed Facts” (annexures omitted) and provides the relevant context of this dispute. I thank the parties for the sensible way in which they approached the matter. The Statement of Agreed Facts substantially narrowed the issues to be decided.
Unless otherwise specified by the parties regarding contested facts, I make the following findings:
The Victorian Public Service Enterprise Agreement 2020
7.On 2 October 2020, the Commission approved the Victorian Public Service Enterprise Agreement 2020 (VPS EA), with operative effect from 9 October 2020. The Applicant and the Respondent (the OPP) are covered by the VPS EA for the purposes of the Fair Work Act 2009 (Cth) (FW Act).
8.The Victorian Public Service has published the following common policies which are applicable to the OPP as an employer and Victorian statutory agency:
a.the “Movement Between Value Ranges” Policy (Movement Policy), for the purposes of cl 27.5 of the VPS EA.
b.the “Performance Development and Progression within a Value Range” policy (Performance Development / Progression Policy) for the purposes of cl 29 of the VPS EA. This policy has no direct application to this dispute, but provides context to the circumstances in which the Applicant’s performance reviews were created;
c.the “Review of Actions” policy (Review of Actions Policy) which is the internal review process contemplated under cl 13.9 of the VPS EA.
The Applicant
9.The Applicant is an employee of the OPP. He is employed in the position of “Principal Solicitor” within “Trial Division 2” at the OPP.
10.The Applicant’s resume details his qualifications and his employment history.
11.The Applicant first commenced employment with the OPP in 2010.
12.On 21 March 2017, the Applicant accepted a written offer of employment made by the OPP on 20 March 2017, to commence in the position of Principal Solicitor on 27 March 2017.
The OPP
13.The OPP is Victoria’s largest criminal legal practice, with offices in Melbourne and Geelong, Victoria. The OPP supports the Director of Public Prosecutions (the DPP) in her functions by preparing and conducting prosecutions on behalf of the State of Victoria.
14.The OPP prepares and conducts indictable (serious) criminal matters on behalf of the DPP. The OPP also provides advice to external agencies, litigates proceeds of crime, and contributes to law reform, all on behalf of the DPP.
The OPP is established under the Public Prosecutions Act 1994 (Vic), and is led by Abbey Hogan, the Solicitor for Public Prosecutions (the SPP). The SPP manages the staff and budget of the OPP. The position of SPP is an executive appointment under the Public Administration Act 2004 (Vic). The SPP is responsible for briefing Crown Prosecutors, private barristers and OPP solicitor
7. advocates to appear in court on behalf of the DPP.
8.The OPP has a 2022-2025 Strategic Plan which sets out the strategic priorities for it as an organisation.
9.There is an “Organisational Structure” for the OPP’s Legal Practice Divisions. Relevantly to this matter, there are four Trial Divisions (Numbers 1-4), which at the commencement of this application in the Commission until February 2024, were overseen by an Executive Director, Paul Fowler, who reports directly to the SPP. Mr Fowler now oversees Trial Divisions 1 and 4 and Justine McLeod, the newly appointed counterpart Executive Director oversees Trial Divisions 2 and 3. Both Mr Fowler and Ms McLeod report to the SPP.
10.The OPP has separate written position descriptions for the positions of Principal Solicitor and Managing Principal Solicitor:
…
Each position description contains a reference to the Grade adopted by the OPP, being “VPS Grade 6” without any further reference to Sch C or Sch D of the VPS EA. The parties agree, consistent with the Position Descriptions, that it is possible for Managing Principal Solicitors and Principal Solicitors to be classified at either VPS Grade 6.1 and 6.2.
11.It is the OPP’s position in this arbitration that:
a.each of the position descriptions for Principal Solicitor and Managing Principal Solicitor may be of contextual relevance to the Commission’s evaluative assessment of whether the OPP requires the Applicant specifically to perform work at the level of VPS Grade 6.2 (in the “Litigation” VPS Grade Alignment) in Sch D of the VPS EA and whether the Applicant performs work at that level for the OPP. However, the OPP’s use of the position descriptions for Principal Solicitor and Managing Principal Solicitor within the workplace is not, and cannot be, dispositive of whether the Applicant is himself performing work at the VPS Grade 6.2 level if he is required to do so by the OPP;
b.Managing Principal Solicitors are essentially distinguished from Principal Solicitors due to their people management responsibilities (including in relation to career development and well-being) and leadership requirements. Managing Principal Solicitors have a smaller workload of serious complex matters and have a reduced workload to enable them to effectively manage their teams and undertake tasks like identifying professional development opportunities for individual team members (including Principal Solicitors). Managing Principal Solicitors are often involved in projects that relate to continuous improvement and the OPP's strategic plan and are more engaged with the OPP Executive and other business functions (e.g. finance) than Principal Solicitors. Managing Principal Solicitors also have their own human resources and financial delegations. Managing Principal Solicitors are expected to conduct at least fortnightly check-ins with team members and manage team members' workloads. Managing Principal Solicitors will usually have around 10 to 12 direct reports. There is a higher expectation on Managing Principal Solicitors than Principal Solicitor roles in almost all respects, other than file load. Managing Principal Solicitors can carry and oversee more complex and sensitive files due to their greater overall legal experience (as compared to Principal Solicitors).
12.It is the Applicant’s position in this arbitration that:
a.it will not assist the Commission in determining his application by comparing his work to the duties of Managing Principal Solicitors as described in the Managing Principal Solicitor Position Description or in other evidence;
b.the Applicant’s position in [20(a)] is based on the following matters:
i.Managing Principal Solicitors have historically been at both Grade 6.1 and Grade 6.2;
ii.the Position Description for Managing Principal Solicitor makes clear that it is a role that can be performed by solicitors from the bottom of Grade 6.1 to the top of grade 6.2, like the non-management Principal Solicitor role;
iii.Table 29.2 of Sch D makes clear that solicitors classified at Grades 5.1, 5.2, 6.1 and 6.2 may hold managerial roles;
iv.the OPP has never followed the requirements of cl 27.5 of the VPS EA when conducting job resizing reviews for Managing Principal Solicitors from Grade 6.1 to Grade 6.2. Because of this, it is possible, (if not likely) that many of the cohort of Managing Principal Solicitors at the OPP are incorrectly classified by it;
managerial roles share some common features across the Victorian Public Service. When considering the classification of Managing Principal Solicitors parts of Table 27.2 of Sch C of the VPS EA may
i.come into play. This is not the case with non-management Principal Solicitors employed purely in a litigation role in the Trial Divisions of the OPP. For nonmanagement Principal Solicitors employed in Litigation roles, only the ‘Litigation’ Position Descriptors in Table 29.2 of Sch D are relevant;
ii.the Position Description for Principal Solicitor makes clear that all of the tasks that a Principal Solicitor can undertake can be performed at the VPS Grade 6.1 or Grade 6.2 level;
iii.the OPP’s expectations placed on VPS Grade 6.2 Managing Principal Solicitors is not higher – but rather equal but different to – that placed on VPS Grade 6.2 Principal Solicitors;
iv.the following statement of Mr Fowler is factually incorrect: “Managing Principal Solicitors generally carry more complex and sensitive files due to their greater overall legal experience (as compared to Principal Solicitors).”
15.As at 30 June 2024:
a.there are 62 non-management Principal Solicitors within the OPP, of which:
i.(i) 50 are classified at the VPS Grade 6.1 for the purposes of the VPS Grade 6.1 (in the “Litigation” VPS Grade Alignment in Sch D of the VPS EA);
ii.(ii) 12 are classified at the VPS Grade 6.2 for the purposes of the VPS Grade 6.2 (in the “Litigation” VPS Grade Alignment in Sch D of the VPS EA);
b.(b) there are 24 Managing Principal Solicitors within the OPP, of which:
i.(i) 1 is classified at the VPS Grade 6.1 for the purposes of the VPS Grade 6.1;
ii.(ii) 23 are classified at the VPS Grade 6.2 for the purposes of the VPS Grade 6.2.
16.Equivalent figures for the previous five years are set out in the table below.
17.The parties agree that their respective positions in [19]-[20] above should be considered by the Commission when reading any references to the descriptions of Principal Solicitor and Managing Principal Solicitor in this Statement of Agreed Facts and in assessing the evidence of the parties about those position descriptions.
18.Trial Divisions 1 and 2 have a Trial Division Manager and a Managing Principal Solicitor who reports to the Trial Division Manager. The Trial Division Managers reported to Mr Fowler as direct reports when these proceedings commenced. There are approximately 9 Principal Solicitors who report to the Managing Principal Solicitors in each of the Trial Divisions 1-2. A Managing Principal Solicitor typically has 10-12 solicitors as direct reports.
19.In Trial Division 2, one of the three Managing Principal Solicitors is Juliet Chipp, who reports to Jane Rodda as the Trial Division Manager. The Applicant reports directly to Ms Chipp in his role as Principal Solicitor.
20.In its Annual Report for 2022/2023, the OPP published:
a.a description titled “Who we are” and “What we do” (p 5);
b.a description of the OPP’s vision, mission and values and strategic priorities (pp 6-7);
c.a summary of the Director’s Committee, which explains the role of the DPP, the SPP and the Crown Prosecutor’s Chambers, and the role of the Director’s Committee in relation to prosecutions in the State of Victoria (pp 10-11)
d.an Organisational Structure for the whole of the OPP as led by the SPP (pp 12-13);
e.a “Legal Practice Report” for the work of the OPP for that year, authored in part by Mr Fowler and Ange Rankin, Executive Director, Legal Practice (pp 26-35).
21.The OPP has:
a.“Trial Division Workload Guidelines” for workload capacity for the total number of files a trial division solicitor should hold at any point in time, and the proportion of certain file types a trial division solicitor should hold at any point in time.
b.a “OPP Solicitor Capability Framework” to “help foster a shared language around the skills and behaviours that are essential to effective performance at the OPP as a Solicitor” (p 1).
The Applicant’s classification and remuneration under the VPS EA
22.The Applicant’s position as Principal Solicitor has been classified by the OPP as “VPS Grade 6.1” for the purposes of Sch D (“Legal Officer Adaptive Structure and Classification and Value Range Descriptors”) in the VPS EA.
23.It is the OPP’s position that the “Legal Officer Adaptive Structure and Classification and Value Range Descriptors” in Sch D must be read in conjunction with the VPS Grade and Value Range Standard Descriptors in Sch C for Grade 6 where the matters in Sch C are applicable. The Applicant disputes the OPP’s position.
24.The Applicant’s position is that the non-litigation position descriptors in Sch D and the position descriptors in Sch C are irrelevant to this dispute.
25.The Applicant concedes that there may be some legal officers working in different parts of the VPS for whom parts of both Sch C and Sch D are applicable. However, the Applicant says that in his Applicant’s case, the entirety of his work, including the legal advice that he is required to provide, and documents that he is required to draft, is covered by the Litigation position descriptors in Sch D.
26.Throughout his employment with the OPP, the Applicant has been remunerated within either the earlier cognate or current “VPS Grade 6.1” salary remuneration band which attaches to the “Legal Officer Adaptive Structure and Classification and Value Range Descriptors” (in the “Litigation” VPS Grade Alignment). The Applicant is currently remunerated at the top of the band for the Senior Officer Grade 6.1 ($152,772) in Sch C of the VPS EA.
Performance Reviews
27.The Applicant and his Managers complete written performance reviews each year.
The Applicant’s “Resize Application”
28.On 23 February 2023, using the OPP’s template Work Value Review Job Resizing Form, the Applicant made a written “resize application” for the purposes of cl 27.5 of the VPS EA to enable his movement between the Value Grades VPS 6.1 to VPS 6.2.
29.The resize application was considered by each of Ms Rodda and Vanessa Bunting, Senior HR Business Partner; neither of them supported the application for the reasons they identified in their written evaluations on the resize application.
30.On 28 April 2023, Mr Fowler, as the relevant delegate with authority from the SPP to determine the resize application for and on behalf of the OPP, refused the application for the reasons identified therein.
31.…
32.On 5 May 2023, using the OPP’s template, the Applicant initiated a Review of Action (Grievance) concerning Mr Fowler’s decision.
33.Following submissions and representations made by the Applicant in relation to his Review of Action (Grievance), including an external review process arranged by the OPP, on 19 October 2023, the SPP advised the Applicant in writing that his Review of Action (Grievance) was not accepted.
34.The parties agree that the decisions made by the OPP as to the resize application are not the subject of any merits review by the Commission in this arbitration.
The work that the Applicant is required to perform by the OPP
The Applicant is required by the OPP to perform the role described in the Position
35.Description annexed at [18] above.
36.The tasks that the Applicant asserts that Principal Solicitors engage in (which the Respondent does not dispute) are set out in the table below.
Principal Solicitor main tasks
Conducting prosecutions for the most complex matters in Victoria which are prosecuted in the Magistrates’ Court, County Court or Supreme Court, including:
i. drafting more complex documents required for such litigation;
ii. giving advice to the client (the DPP or her delegates) on litigation decisions that ought be made on more complex matters and taking instructions on litigation decisions on more complex matters from the client after such advice is considered;
iii. being the main point of contact between senior police officers who investigate more complex cases and the OPP;
iv. being the main point of contact between more traumatised victims and the OPP;
v. making briefing decisions and briefing counsel with the relevant skills and competency for more complex criminal litigation matters; and being the main contact between external counsel and the OPP;
vi. appearing as an advocate in more complex matters in the County Court, Supreme Court and Magistrates’ Court, where circumstances and workload permit;
vii. instructing counsel in more complex trials, committals, applications in the Magistrates’ County and Supreme Court, interlocutory appeals in the Court of Appeal, and County Court appeals in Regional Victoria;
viii. being the main point of contact between Regional Court Registrars and the OPP during the running of a regional circuit.
Mentoring and training other solicitors in the Trial Divisions by providing formal and informal supervision. Providing quick and accessible formal and informal legal advice to other solicitors in the Trial Divisions.
Principal Solicitor main tasks
Identifying new and emerging issues in Criminal Law that arise during trials, and escalating these matters to the DPP's attention through recognised internal channels. 43. The Applicant also asserts that he is required to (and does perform) work for the OPP as set out in the descriptions below for “Leadership”, “Stakeholders” and “Training Lawyers”. The Respondent's position as to the Applicant’s descriptions is as set out in the table below.
Applicant's description of the work he is required to (and does) perform for the OPP
The OPP’s position as to those descriptions Leadership
Principal Solicitors are leaders in the field of indictable criminal litigation, who provide leadership and guidance to senior stakeholders (in the form of advice, guidance, mentoring and training).
The Applicant has provided examples of his provision of leadership and guidance both within and outside of his normal caseload including:
· Examples referenced in his performance reviews;
· Examples in his RODMs and attendance at Director’s Committee meetings referred to in paragraphs [46] to [52] herein;
· His relationship with Police on sporting integrity prosecutions
There is no such thing at the OPP as a 'leading' Principal Solicitor (if this is what the Applicant is suggesting he is). The Applicant's engagement with the key stakeholders he has nominated would be through his normal caseload and is a part of his ordinary role.
Principal Solicitors have no direct reports or formal leadership responsibilities.
Applicant's description of the work he is required to (and does) perform for the OPP
The OPP’s position as to those descriptions · His relationship with the LIV in the accredited specialisation program;
· His work with the Anglicare Victoria Victims Assistance Program
Stakeholders The stakeholders who Trial Division solicitors deal with on a regular basis are those who:
· deliver the litigation service (OPP staff, police investigators, members of counsel);
· represent opponents in the litigation service (defence lawyers);
· are directly affected by the litigation service (victims, witnesses, accused persons);
· perform the role of the client in the litigation service (Crown Prosecutors, Senior Crown Prosecutors, the DPP).
The Applicant's files are predominantly files where victims have suffered intense trauma, such as experiencing the death of a family member in a criminal offence or as a child victim of a sexual offence. His direct victim engagement frequently occurs with victims whose trauma is comparatively of higher standard or ranking to that of victims who have (for example) been the subject of a burglary.
As the Applicant works on the most complex and serious of files, his engagement with defence lawyers, counsel and police investigators also primarily occurs with those who are sufficiently senior to work on the most complex, serious and traumatic of matters. The Applicant disagrees that 6.2s liaise at a higher level with senior members of Victoria Police, senior representatives of the Courts (including Judicial Registrars, Magistrates or Judges) or the Head of Court lists and engage with them in a different way and on different issues.
The Applicant notes that in response to the Form 52 the OPP was unable to provide any documentary evidence that Managing Principal Solicitors sit on committees with external stakeholders. The Applicant says that if some Managing Principal Solicitors do sit on such committees or regular liaison or user groups, that this is not something that all or most Managing Principal Solicitors would do but rather is something that some may do at the outliers.
The Respondent accepts the listed stakeholders are relevant stakeholders. The Respondent also accepts that the Applicant generally works on some of the most complex and serious of the OPP's files.
However, the process through which Principal Solicitors such as the Applicant liaise with them is materially different to the way in which a Grade 6.2 level would engage with these stakeholders. The Applicant would usually engage with these stakeholders in the conduct of an individual file, that is, his engagement is case-based or operational.
A Grade 6.2 role on the other hand would liaise at a higher level with senior members of Victoria Police, senior representatives of the Courts (including Judicial Registrars, Magistrates or Judges) or the Head of Court lists and engage with them in a different way and on different issues. For example, a Managing Principal Solicitor might sit on committees with these more senior stakeholders or have regular liaison or user group meetings which might address legislative, procedural, systemic or strategic issues impacting the Court, its operations, the parties and participants as well as the wider profession. In other words, a key distinction between Grade 6.1 and Grade 6.2 is that a Grade 6.2 would identify systemic and overarching strategic issues and liaise with senior stakeholders about those, whereas a Grade 6.1 would identify day to day issues during the conduct of a file and liaise with OPP management and potentially some stakeholders about such issues.
Principal Solicitor roles are not generally responsible for 'managing' any external stakeholder relationships at an organisation-to-organisation level and the Applicant has no such responsibilities in theory or in practice.
Training lawyers The Applicant provides one-to-one training in litigation technique and case management, to other solicitors ranging in grade from VPS3 to VPS6, engaged to work largely independently across Regional Victoria.
The Applicant has also assisted with staff development by previously supervising a Legal Trainee and a Practical Learning Training Student.
The Applicant's leadership and guidance has allowed multiple OPP solicitors to improve on their service delivery and in the case of two OPP staff members to obtain a Legal Practising Certificate.
The Applicant is frequently called upon to deliver formal continuing legal education training to OPP staff. This includes training on Regional Prosecution processes, Change of Plea Applications and Fraud prosecutions.
The Applicant maintains continuous contact with all the OPP solicitors that he has trained or mentored in regional Victoria, in his team and throughout the OPP. The professional coaching relationship that the Applicant has with them, and other solicitors in his team, is deep, continuous, and ongoing.
The Respondent accepts that the Applicant may have informally engaged in training juniors.
However, supervision or mentoring is minimal and quite often informal. For example, if a Principal Solicitor like the Applicant is on circuit in a regional area, the relevant Managers and administrative team who roster circuit and arrange training might send a junior solicitor to observe them to gain circuit experience. Therefore, any coaching or mentoring the Applicant may have done is usually not proactively organised by him and is limited in nature.
The OPP has internal mentoring and ‘buddy’ systems in place for employees in classifications from Grades 2-6.
It is not uncommon for informal training and mentoring to occur across the different classification levels and the Respondent would not consider this “strategic leadership” or leadership and guidance in relation to “senior stakeholders".
44. The parties agree that the Applicant does not complete the work that Managing Principal Solicitors engage in as set out in the table below.
Agreed Managing Principal Solicitor work Managing Principal Solicitors’ main tasks are:
a. managing leave requirements;
b. allocating files to suitably qualified solicitors upon charges being filed;
c. ensuring that solicitors’ workload is not excessive and is fairly shared across the Trial Divisions;
d. ensuring court rosters are filled with suitably capable solicitors where clashes occur;
e. approving payments for witness expenses, travel, accommodation and briefing fees and acting as a counter signatory to the solicitor who procured the original service;
f. signing criminal records;
g. endorsing recommendations to Crown Prosecutors on some of the less serious decisions (where a final decision by a Senior Crown Prosecutor, or the DPP is usually not required).
Managing Principal Solicitors are the managers of Principal Solicitors. 45. The OPP has also provided evidence that Managing Principal Solicitors perform additional work. However, the Applicant does not accept the OPP’s position in respect of this work.
Records of Decision Making (RODMs) and other agreed Principal Solicitor Duties
46. Records of Decision Making (RODMs) detail the oral and written legal opinions and recommendations that OPP solicitors make to the DPP, and Crown Prosecutors and the instructions given by the DPP and Crown Prosecutors following receipt of the OPP solicitors' legal opinions and recommendations in relation to specific cases. New and emerging legal issues of significance to the OPP, can and frequently do arise in the context of specific cases. The OPP’s instructions on how to respond to these new and emerging issues in the context of a specific case can be found in RODMs – issues which may be identified and commented upon by one or more of the relevant decision makers to varying extents depending on their knowledge, experience and judgement as to its relevance to the case at hand.
47. From time to time, OPP solicitors attend Director’s Committee Meetings to provide oral legal opinions and recommendations to the DPP, the Chief Crown Prosecutor and Senior Crown Prosecutors and to obtain instructions from the DPP in specific types of cases that require a Special Decision.
48. Principal Solicitors, including the Applicant, complete RODMs and attend Director’s Committee Meetings.
49. There is documentary evidence, in the form of RODMs and Director’s Committee Meeting minutes which shows the Applicant’s core duties include providing legal opinions and recommendations to the DPP, the Chief Crown Prosecutor and Senior Crown Prosecutors in complex and sensitive cases where instructions are required directly from the DPP herself or her senior delegates.
50. There is also documentary evidence, in the form of RODMs which show the Applicant’s core duties include providing legal opinions and recommendations to Crown Prosecutors, in less complex and sensitive cases where the Director’s delegate is a Crown Prosecutor (as opposed to a Senior Crown Prosecutor or the Chief Crown Prosecutor).
51. There is documentary evidence in the form of the Decision-Making Matrix and RODMs which shows that, when OPP solicitors are required to give legal opinions, make recommendations and obtain instructions from a Senior Crown Prosecutor, the Chief Crown Prosecutor or the DPP, a Managing Principal Solicitor’s endorsement of the carriage solicitor’s recommendation is usually not required.
52. As an experienced Principal Solicitor, the Applicant’s core duties require him to have carriage of some of the OPP's most complex and sensitive of cases. (Other suitably qualified and experienced Principal Solicitors and some Managing Principal Solicitors also have carriage of some of the most complex and sensitive cases as part of their core duties).
Principles of Interpretation
The principles relevant to the task of construing an enterprise agreement were distilled in The Australasian Meat Industry Employees Union v Golden Cockerel[14] as follows:
“1. The [Acts Interpretation] Act does not apply to the construction of an enterprise agreement made under the [FW] Act.
2. In construing an enterprise agreement, it is first necessary to determine whether an agreement has a plain meaning or contains an ambiguity.
3. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
4. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
5. If the language of the agreement is ambiguous or susceptible to more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
6. Admissible evidence of the surrounding circumstances is evidence of the objective framework of fact and will include:(a) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(b) notorious facts of which knowledge is to be presumed;
(c) evidence of matters in common contemplation and constituting a common assumption.
7. The resolution of a disputed construction of an agreement will turn on the language of the Agreement understood having regard to its context and purpose.
8. Context might appear from:(a) the text of the agreement viewed as a whole;
(b) the disputed provision’s place and arrangement in the agreement;
(c) the legislative context under which the agreement was made and in which it operates.
9. Where the common intention of the parties is sought to be identified, regard is not to be had to the subjective intentions or expectations of the parties. A common intention is identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement.
10. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.”[15]
In 2017 a Full Bench of the Commission modified the above summary in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturers Workers Union (AMWU) v Berri Pty Limited (‘Berri’).[16] In Berri, the Full Bench modified the summary set out in Golden Cockerel in light of the observations made in the course of their decision.
“[114] The principles relevant to the task of construing a single enterprise agreement may be summarised as follows:
1. The construction of an enterprise agreement, like that of a statute or contract, begins with a consideration of the ordinary meaning of the relevant words. The resolution of a disputed construction of an agreement will turn on the language of the agreement having regard to its context and purpose. Context might appear from:
(i) the text of the agreement viewed as a whole;
(ii) the disputed provision’s place and arrangement in the agreement;
(iii) the legislative context under which the agreement was made and in which it operates.
2. The task of interpreting an agreement does not involve rewriting the agreement to achieve what might be regarded as a fair or just outcome. The task is always one of interpreting the agreement produced by parties.
3. The common intention of the parties is sought to be identified objectively, that is by reference to that which a reasonable person would understand by the language the parties have used to express their agreement, without regard to the subjective intentions or expectations of the parties.
4. The fact that the instrument being construed is an enterprise agreement made pursuant to Part 2-4 of the FW Act is itself an important contextual consideration. It may be inferred that such agreements are intended to establish binding obligation.
5. The FW Act does not speak in terms of the ‘parties’ to enterprise agreements made pursuant to Part 2-4 agreements, rather it refers to the persons and organisations who are ‘covered by’ such agreements. Relevantly s.172(2)(a) provides that an employer may make an enterprise agreement ‘with the employees who are employed at the time the agreement is made and who will be covered by the agreement’. Section 182(1) provides that an agreement is ‘made’ if the employees to be covered by the agreement ‘have been asked to approve the agreement and a majority of those employees who cast a valid vote approve the agreement’. This is so because an enterprise agreement is ‘made’ when a majority of the employees asked to approve the agreement cast a valid vote to approve the agreement.
6. Enterprise agreements are not instruments to which the Acts Interpretation Act 1901 (Cth) applies, however the modes of textual analysis developed in the general law may assist in the interpretation of enterprise agreements. An overly technical approach to interpretation should be avoided and consequently some general principles of statutory construction may have less force in the context of construing an enterprise agreement.
7. In construing an enterprise agreement it is first necessary to determine whether an agreement has a plain meaning or it is ambiguous or susceptible of more than one meaning.
8. Regard may be had to evidence of surrounding circumstances to assist in determining whether an ambiguity exists.
9. If the agreement has a plain meaning, evidence of the surrounding circumstances will not be admitted to contradict the plain language of the agreement.
10. If the language of the agreement is ambiguous or susceptible of more than one meaning then evidence of the surrounding circumstance will be admissible to aide the interpretation of the agreement.
11. The admissibility of evidence of the surrounding circumstances is limited to evidence tending to establish objective background facts which were known to both parties which inform and the subject matter of the agreement. Evidence of such objective facts is to be distinguished from evidence of the subjective intentions of the parties, such as statements and actions of the parties which are reflective of their actual intentions and expectations.
12. Evidence of objective background facts will include:
(i) evidence of prior negotiations to the extent that the negotiations tend to establish objective background facts known to all parties and the subject matter of the agreement;
(ii) notorious facts of which knowledge is to be presumed; and
(iii) evidence of matters in common contemplation and constituting a common assumption.
13. The diversity of interests involved in the negotiation and making of enterprise agreements (see point 4 above) warrants the adoption of a cautious approach to the admission and reliance upon the evidence of prior negotiations and the positions advanced during the negotiation process. Evidence as to what the employees covered by the agreement were told (either during the course of the negotiations or pursuant to s.180(5) of the FW Act) may be of more assistance than evidence of the bargaining positions taken by the employer or a bargaining representative during the negotiation of the agreement.
14. Admissible extrinsic material may be used to aid the interpretation of a provision in an enterprise agreement with a disputed meaning, but it cannot be used to disregard or rewrite the provision in order to give effect to an externally derived conception of what the parties’ intention or purpose was.
15. In the industrial context it has been accepted that, in some circumstances, subsequent conduct may be relevant to the interpretation of an industrial instrument. But such post-agreement conduct must be such as to show that there has been a meeting of minds, a consensus. Post-agreement conduct which amounts to little more than the absence of a complaint or common inadvertence is insufficient to establish a common understanding.”[17]
I adopt the Berri principles. Consequently, it is necessary to,
a) begin the analysis with a consideration of the ordinary meaning of the words of the relevant clauses in the Agreement,
b) determine whether the Agreement has a plain meaning,
c) review the text of the Agreement as a whole,
d) not rewrite the Agreement to achieve what might be regarded as a fair or just outcome,
e) (in determining the objective intention of the parties) do so by reference to what a reasonable person would understand by the language used in the Agreement,
f) not adopt an overly technical approach to the interpretation of the Agreement, and
g) not contradict the plain language of the Agreement.
The Applicant’s Submissions
In his written submissions, the Applicant argued that his current role as Principal Solicitor in Trial Division 2 at the OPP warrants reclassification from VPS Grade 6.2 under Clause 27.5 of the VPS EA. He submits that the complexity of his legal work and duties performed exceeds the expectations for a Grade 6.1 role. His full written submissions read as follows:
1. Having regard to the criteria set out in Table 29.2 of the Victorian Public Service Enterprise Agreement 2020 (the "Enterprise Agreement"):
a. is the value of my work commensurate with that performed by VPS 6.2 Principal Solicitors employed at the OPP in the Trial Divisions in non-management positions?
b. pursuant to clause 27.5 should I properly be moved from Principal Solicitor VPS 6.1 to Principal Solicitor VPS 6.2?
Remedy sought
2. If the answer to both questions is yes, I seek that the Commission declare that:
a. The value of my work has crossed the threshold from VPS 6.1 to VPS 6.2.
b. The OPP must increase my salary by $1 per annum from $152,772 to $152,773 effective from a date prior to 20 March 2024 (being the nominal expiry date of the Enterprise Agreement).
Summary of contentions
3. I have demonstrated, on the balance of probabilities, that the highest functions of the position of Principal Solicitor, that I perform on a regular basis are consistent with the Position Descriptors in the 6.2 Value Range.
4. I should be paid $1 more per year to reflect the fact that I have moved from the 6.1 Value Range to the 6.2 Value Range.
5. The generic public servant Position Descriptors in table 27.2 play no role in a Resizing Review for a Principal Solicitor employed in the Trial Divisions of the OPP.
6. The only relevant Position Descriptor in table 29.2 to a Principal Solicitor in the Trial Divisions of the OPP is the Litigation Position Descriptor.
7. Even if both the Litigation and Advice Work categories are considered I should be moved from value range 6.1 to 6.2 because I have demonstrated on the balance of probabilities that the highest level functions that I perform on a regular basis are consistent with the 6.2 Position Descriptors in table 29.2 for both Litigation and Advice Work.
8. The Position Descriptor for Litigation Principal Solicitors in Table 29.2 in the 6.2 category should be read consistently with Hufton v State of Victoria as building upon the Position Descriptors for Litigation in the 6.1 category.
9. The words in the Position Descriptor should be interpreted consistently with their ordinary meaning, taking into account the industrial context in which they were agreed.
10. On a proper construction taking into account the industrial context of Position Descriptor in Table 29.2:
a. the threshold between a VPS 6.1 Litigation Principal Solicitor and a VPS 6.2 Litigation Principal Solicitor is slight.
b. public sector principles of equal opportunity employment must result in employees whose work is of substantially the same value being employed at the same Value Range.
c. effect is given to the OPP's aspiration to attract and retain highly capable and empowered professionals with growth mindsets.
11. The words "strategic nature with high levels of decision making accountability" do not appear in the Position Descriptors for VPS 6.2 Principal Solicitors, and the parties never agreed that Principal Solicitors should be assessed against whether their work had a 'strategic nature' during the resizing process.
12. There has been no restructure or changes to existing work practices, consistent with Clause 11 of the Enterprise Agreement which reserved the 6.2 Principal Solicitor grade exclusively for management.
13. There is an operational need for me to work at the 6.2 value range in Trial Division 2 given the fact that:
a. the work assigned to me must be done; and
b. many experienced solicitors, who were themselves performing at the 6.2 level, have recently retired or resigned from Trial Division 2.
14. The evidence that I rely upon in support of my Application is:
a. deposed in or annexed to my affidavits; and
b. contained in records which I will seek to obtain by way of an Application for an Order for the production of documents under section 590(2)(c) of the Fair Work Act.
The distinction between Legal Officers and generic public servants
15. The Enterprise Agreement is necessarily broad as it covers the entire Victorian public service. However the role of a Legal Officer working in the Trial Divisions of the OPP is far removed from that of 'generic' public servants.
16. Legal Officers in the Trial Divisions of the OPP are solicitors who are employed to practice as solicitors. Our role more closely resembles that of solicitors working in a large litigation practice in the private sector than it does that of Project Officers, Policy Advisers, Media Officers, Administrative Officers or Corporate Support Officers for whom the Generic Position Descriptors in Table 27.2 were written.
17. The Legal Officer salary structure classification is aligned to the VPS structure by the Enterprise Agreement, however, given the significantly different roles performed by Legal Officers to those performed by 'generic' public servants, most if not all of the 'generic' Value Range descriptors cannot be meaningfully applied to the work of solicitors.
18. In the two instances where classification disputes involving VPS Legal Officers have been resolved by Arbitration at the Fair Work Commission, the Commission only assessed the employees against the Legal Officer Value Range position descriptors and did not refer to the 'generic' Value Range position descriptors.
19. As in both Hufton and Tucker, in conducting my job resizing review the Commission should not consider the 'generic' Position Descriptors in Table 27.2. None of the 'generic descriptors' in Table 27.2 are applicable in any way to Principal Solicitors working in the Trial Divisions of the OPP.
The only relevant Legal Officer Position Descriptor is Litigation.
20. The Trial Divisions are the divisions of the OPP which oversee all jury trials, from committal proceedings to not guilty verdict or sentence. The Trial Divisions also handle interlocutory appeals in the Court of Appeal and instruct in appeals in the County Court that are conducted in Regional Victoria.
21. It is clear when comparing the Value Range Descriptors across all grades that I am employed as a Litigation Legal Officer and not an Advice Work Legal Officer.
22. Legal Officers like me who are primarily engaged in litigation necessarily also provide legal advice and draft legal documents, but only to the extent that these functions are to ancillary to our litigation work.
23. In Hufton, the Commission clarified that work required to be drafted for any matter to be submitted to the Courts or any ancillary documents (such as legal pleadings, submissions or memoranda), should not be confused with Legal Drafting as referred to in the Enterprise Agreement.
24. Legal Drafting within the Enterprise Agreement refers to the drafting of agreements, contracts, the vetting of public documents and the preparation of written reports. These tasks are largely not performed by solicitors in the OPP Trial Divisions.
25. Similarly, Litigation Solicitors who work within the OPP Trial Divisions should not be assessed against the Value Range Descriptors for Advice Work.
26. This is particularly obvious when comparing what Advice Work Solicitors do at grades 2, 3, 4 and 5, to what Litigation Officers at the OPP do at the same grades.
27. For example, Litigation Solicitors in the OPP Trial Divisions do not do any of the below tasks found in the Advice Work Positions Descriptors at the various grades:
a. advise on the requirements of contracts and agreements
b. initiate research and analysis to provide advice on complex or cross discipline matters
c. contribute to planning of research or policy development
d. provide specialist legal expertise and advice to policy/practice development
e. assess actions of individuals or organisations against legislation, rules, regulations and service agreements.
f. develop legal policy proposals for consideration by others
28. However, Litigation Solicitors in the Trial Divisions at various levels do perform the following advice tasks as found in the Litigation Position Descriptors:
a. assist in the development of legal strategies.
b. provide advice to team members in developing/endorsing preferred litigation options
c. develop briefs and/or advice on highly complex issues which provide options for decision at the highest level with the agency
d. provide leadership and guidance based on advance expertise in an area of specialisation
29. While some areas in the Advice Work category can be applied to the work that Litigation solicitors do, these are mostly replicated by the references to 'advice' in the Litigation category.
30. There are so many references to tasks foreign to the day-to-day work of Litigation solicitors in the OPP Trial Divisions in the Advice Work category across the grades, that trying to apply the Advice Work Position Descriptors to the work done by Prosecution Criminal Litigation Solicitors in the Trial Divisions at almost every grade is like trying to fit a square peg into a round hole.
31. Solicitors engaged in a Litigation role in the Trial Divisions of the OPP should be assessed against the references to 'advice' provided in the Value Range Descriptors for those engaged in Litigation and not against the Advice Work Positions Descriptors.
Alternative Submission
32. However if the Commission is not with me on the submission contained in paragraphs 20 to 31 herein and considers that the Advice Work Position Descriptor applies to me I invite the Commission to consider the work in my Performance Reviews and in my RODMs (if the Commission is able to gain access to these) against the Advice Work Position Descriptor.
33. This is because whilst there is no correlation across most of the other the grades, the references to Advice Work in 6.2 do fit my role as a Litigation Lawyer in the Trial Divisions, particularly if the reference to "Identifying and advising on new and emerging issues in the law and their longer term implications for the state" is read where the reference to 'the state' is supplemented for the words 'the Director of Public Prosecutions', 'the Crown' or 'the Employer.'
34. Whether the Commission applies only the Litigation Position Descriptor, or applies both Litigation and Advice Work, I submit that the outcome will be the same and I will be reclassified from 6.1 to 6.2.
How should the 6.2 Litigation Position Descriptor be read?
35. In Hufton the Commission said:
"A reading of the descriptors suggests that the classification needs to be determined with comparison to the level below so that a VPS4, in litigation 'prepares and/or instructs in more complex cases ... ' presumably from the VPS3.2 who 'prepares more complex cases' than the VPS3.1. There are also clearer differentiators.
The VPS5.1 for example 'Prepares and instructs counsel in complex and/or sensitive matters' whilst a VPS4 'prepares and/or instructs in complex matters' (that is, does not deal with sensitive matters)."
36. Applying the logic that was applied in Hufton it is clear that that Value Range Descriptors for VPS Grade 6.2 are meant to build upon the Value Range descriptors for 6.1.
37. For Litigation Principal Solicitors, the key points of differentiation are articulated in the tables below:
6.1. VR Litigation Principal Solicitors 6.2. VR Litigation Principal Solicitors Provides high level advice in an area of specialisation. Provides leadership and guidance based on advance expertise in an area of specialisation Manages key stakeholder interests or in a broad range of legal matters to senior
stakeholders
38. When assessing whether a Litigation Principal Solicitor has crossed the threshold from 6.1 to 6.2 it is important to consider whether:
"the highest functions of the position which are performed on a regular basis and which constitute a substantial component of the work of the position, noting that it is often the case that a position will have incidental (though important) tasks or require the exercise of responsibility or accountability at a higher or lower level than the classification of the position.
These 'outliers' cannot be the determinative factor in deciding the appropriate classification of a position. Rather, they should be seen as what they are -incidental to the main functions and responsibilities. "
39. Therefore a 6.1 Litigation Principal Solicitor will cross the Value Range threshold and become a 6.2 Litigation Principal Solicitor when most of:
a. the high level advice they provide primarily becomes leadership and guidance
b. they have obtained advanced expertise in their area of specialisation; and/or
c. the stakeholders that they engage with are primarily senior rather than key.
The principles of construction for Enterprise Agreements
40. The principles of construction of Enterprise Agreements are settled. They were helpfully and succinctly articulated by Judge Jarrett in the case of CFMEU vs Clemment Coal at paragraph 22:
[22] The parties referred me to Skene v Workpac Pty Ltd [2018] FCAFC 131; (2018) 280 IR 191 where the Full Court of the Federal Court of Australia summarised the principles at [197] as follows:
·The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes [1989] FCA 369; (1989) 30 IR 362 at 378 (French J).
·The interpretation " ... turns on the language of the particular agreement, understood in the light of its industrial context and purpose ... ": Amcor Limited v Construction, Forestry, Mining and Energy Union [2005] HCA 10; (2005) 222 CLR 241 at [2] (Gleeson CJ and McHugh J).
·The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-9, citing Geo A Bond & Co Ltd (in liq) v McKenzie [1929] AR(NSW) 498 at 503 (Street J)).
·To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Limited [1996] IRCA 166; (1996) 66 IR 182 at 184 (Madgwick J); Shop Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J).
[23] In Construction, Forestry, Maritime, Mining and Energy Union v Hay Point Services Pty Ltd (2018) 282 IR 228 at [9], the Full Court of the Federal Court pointed out that:
· The reference there made to the observations of Kirby J at [96] of Amcor is a reference to his Honour's remarks that the construction to be given to a clause in an industrial instrument "should not be a strict one but one that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the Agreement".
[24] In Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at 518 per Burchett J (with Drummond J agreeing) relevantly observed:
· The context of an expression may thus be much more than the words that are its immediate neighbours. Context may extend to the entire document of which it is a part, or to other documents with which there is an association. Context may also include, in some cases, ideas that gave rise to an expression in a document from which it has been taken. When the expression was transplanted, it may have brought with it some of the soil in which it once grew, retaining a special strength and colour in its new environment.
· There is no inherent necessity to read it as uprooted and stripped of every trace of its significance, former significance, standing bare in alien ground. True, sometimes it does stand as if alone. But that should not be just assumed, in the case of an expression with a known source, without looking at its creation, understanding its original meaning, and then seeing how it is now used.
· Very frequently, perhaps most often, the immediate context is the clearest guide, but the court should not deny itself all other guidance in those cases where it can be seen that more is needed. In literature, Milton and Joyce could not be read in ignorance of the source of their language, nor should a legal document, including an award, be so read.
What is the industrial context of the Enterprise Agreement, as it applies to Litigation Lawyers in the Trial Divisions?
41. I rely on the evidence in my Affidavits and evidence that I will seek to obtain by way of an Application for an Order for the production of documents under section 590(2)(c) of the Fair Work Act 2009 to demonstrate the industrial context in which the difference in roles between VPS 6.1 and VPS 6.2 Principal Solicitors ought to be construed. Relevant factors include:
a. There is only a $1 annual pay difference between the top of 6.1 and the bottom of 6.2.
b. Principal Solicitor positions have been historically advertised as grade 6, rather than as 6.1 or 6.2 positions.
c. Position Descriptions attached to job advertisements have historically not distinguished between 6.1 and 6.2 positions.
d. Solicitors have historically moved between roles with titles of Principal Solicitor, Managing Principal Solicitor and Legal Prosecution Specialist in all directions whilst retaining their Value Range.
e. Principal Solicitors, Team Leaders, Managing Principal Solicitors and Legal Prosecution Specialists have historically been employed at both the 6.1 and 6.2 grades.
f. A large volume of Trial Division file work has historically been done by 6.2 Solicitors.
g. The OPP does not have any internal policy documents which clearly distinguish between the role of 6.1 or 6.2 solicitors. In fact, both the Capability Framework and Workload Guidelines do not distinguish between Value Ranges.
h. There has been no restructure or significant change to work practices consistent with Clause 11 of the Enterprise Agreement which reserved the 6.2 Principal Solicitor grade exclusively for management.
i. Leadership and Management are widely understood by lawyers and managers to be different concepts.
j. Management is referred to in Table 29.2 the Enterprise Agreement as work which may be done across the 5.1, 5.2, 6.1 and 6.2 Value Ranges.
k. The OPP Executive has displayed a clear preference for Managers with superior management skills, so that they can focus on managing teams, whilst leaders in the field have focused on conducting the most complex criminal prosecution matters.
l. As a public service employer the OPP has statutory obligations to:
i.Treat its employees fairly
ii.Provide equal opportunity to all of its employees
iii.Provide access to employment in the public service on general terms of equality m.
m. The OPP aspires in its Strategic Plan to:
i.Invest in its people and support them to succeed
ii.Develop highly capable and empowered professionals with growth mindsets
iii.Be an employer of choice
42. Taking the industrial context into account, it is clear that:
a. the threshold between a VPS 6.1 Litigation Principal Solicitor, and a VPS 6.2 Litigation Solicitor is slight
b. the VPS 6.2 Litigation Principal Solicitor role was not meant to be reserved exclusively for managers
c. public sector principles of equal opportunity employment must result employees whose work is of substantially the same value, being employed at the same Value Range. This must be so regardless of the historical circumstances by which individual employees were first appointed as 6.2 Litigation OPP Trial Division Principal Solicitors
d. effect must be given to the OPP's aspiration to be an employer of choice for highly capable and empowered professionals with growth mindsets
What does Leadership and Guidance mean?
43. There have been many scholarly articles written on the difference between Leadership and Management. Whilst there is no universally agreed definition for either concept; scholars agree management and leadership are not the same.7
44. The Enterprise Agreement also recognises that Management is different to Leadership and Guidance. Table 29.2 makes clear that Legal Officers may manage at grades 5.1, 5.2, 6.1 and 6.2; however only 6.2 Principal Solicitors are required to provide "Leadership based on advanced expertise in an area of specialisation."
45. The Macquarie Dictionary defines Leadership as:
a. the position, function or guidance of a leader
b. ability to lead
46. A Leader as defined as "someone who leads".
47. The verb "to lead" has many definitions, however most relevant here to the role of Principal Solicitors is, " to guide in direction, course, action, opinion, etc .; to influence or induce".
48. Looking at these definitions and taking word 'leadership' in its industrial context it is clear that references to Leadership and Guidance in Table 29.2 refer to the provision of legal advice in the course of litigation that is recognised as coming from a leader.
49. The quality of the advice provided by 6.2 Principal Solicitors must be taken to be higher than "high level" advice but it cannot be said that it needs to be the highest level of legal advice possible, such as that which might be expected from a very experienced leading King's Counsel.
50. Rather it is highest level advice that one might expect from a solicitor employed in the Victorian Public Service in a non-executive role.
51. Such advice must not only come from a leader in the field (ie a criminal solicitor specialising in Victorian Indictable prosecutions who is considered by their peers to be amongst the most expert and knowledgeable in their field); it also must be advice of the quality that one might expect from such a leader in the field.
What is the difference between key stakeholders or senior stakeholders?
52. The Macquarie Dictionary defines stakeholder as:
"someone who is affected by, is concerned with, etc., an issue or enterprise: the students, teachers, parents and the local community are all stakeholders in the decision-making process about the new hall."
53. I rely on the list of stakeholders that I have particularised in my first affidavit, to demonstrate who are the stakeholders of the OPP Trial Divisions.
54. The Macquarie Dictionary defines key as, "chief; major; fundamental; indispensable".
55. The Macquarie dictionary defines senior as, "of higher ranking or standing".
56. The Value Range Descriptors anticipate that when a Principal Solicitor progresses from 6.1 to 6.2 their work will see them dealing with primarily 'senior' stakeholders.
57. The use of the word "senior" was inserted in the Position Descriptor with the intention that it would be a step up from the word "key". However, applying the ordinary meaning to the words "senior" and "key" show that whilst the two words each have different meanings there is only a sliver of daylight between them.
58. The narrow threshold between "senior" and "key" becomes even more clear when these words are interpreted in their industrial context, taking into account the factors referred to in paragraph 41 herein.
There is no Position Descriptor that requires Principal Solicitors at VPS 6.2 to demonstrate work of a strategic nature with high levels of decision making and accountability.
59. The Position Descriptors in Table 29.2 represent a negotiated agreement between the OPP and the employees as to how an employee's work is to be valued.
60. Had the parties intended to agree to include the words "strategic nature with high levels of decision making with accountability" in the Positions Descriptors, for 6.2 Principal Solicitors, they would have expressly included them.
61. In assessing my resizing application by referring to the above phrase the OPP undertook the incorrect test: it is clearly not an express term of the Enterprise Agreement, nor could it so be implied.
62. Litigation lawyers owe a duty to their client to advise on the best course of action, or a choice of actions within in the course of litigation. However, in litigation, the lawyer advises and the client decides.
63. My duty as a litigation solicitor is to give advice and follow instructions. This duty to follow the client's instructions is fundamental to the role and has not (and could not have) been contractually done away with; by the inclusion of terminology requiring "strategic decision making".
I am predominantly providing leadership and guidance rather that high level advice
64. I rely on the evidence:
a. deposed in my first affidavit; and
b. contained in records which I will seek to obtain by way of an Application for an Order for the production of documents under section 590(2)(c) of the Fair Work Act. to demonstrate that on a regular basis I am providing the highest level of legal advice that one might expect from a Litigation Principal Solicitor employed in the OPP Trial Division:
65. In particular, I wish to draw the Commission's attention to:
a. the type of advice contained in my RODMS which can be considered by the most senior client stakeholders being Senior Crown Prosecutors, the Chief Crown Prosecutor or the DPP herself. This includes advice relating to
i.decisions to directly indict an accused who has been discharged at committal
ii.decisions to discontinue prosecutions, including prosecutions involving a death
iii.decisions to accept plea offers for lesser charges for prosecutions involving a death
iv.decisions on whether or not to appeal an interlocutory decision of a trial judge
b. the examples contained in my Performance Reviews, which demonstrate the growth of my skillset in the role since I commenced as a Principal Solicitor in 2017.
c. the training and supervision that I have provided to solicitors at grades VPS 3 to 6, that I have referred to in my first affidavit.
d. the work that I do consulting and engaging with the most traumatised victims, from the most complex offences (such as victims who have been raped, sexually abused as children, or had family members murdered)
e. the work that I do engaging with senior police investigators, who were tasked with investigating the most complex and serious cases.
I am predominantly dealing with Senior Stakeholders rather than with Key Stakeholders
Ms Christopoulos has also explained that part of the role of an MPS, which
e.a Principal Solicitor does not formally perform, is enabling and empowering direct reports through skills and professional development to effectively manage their workload, including through an enhanced occupational, health and safety perspective;
f.The training and mentoring that the Applicant has performed in relation to OPP staff (formally and informally) is not of the same kind of leadership and capabilities expected under the MPS responsibilities and accountabilities framework in practice;
g.The Applicant’s position does not involve the same contribution to implementation of the strategic priorities underpinning the OPP’s 2022-2025 Strategy as an MPS would in their roles within each Trial Division.
20.A specific issue for the Commission will be the evaluation of the Applicant’s performance in his role, by comparison to his identification of the main tasks as he sees them (First Statement at [51]) with those of the MPS role (First Statement at [49]) with the identification of what Mr Fowler and Ms Christopolos have identified above (in summary at []). The OPP’s submission is that, on the evidence to be presented before the Commission, Mr Fowler’s initial assessment is correct or preferable when viewed against the applicable rubric in Sch D Legal Position.
21.The Applicant then seeks to agitate an unstated operational policy or decision within the leadership structure of the OPP as to why it has not replaced non-management Principal Solicitors at the Grade 6.2 level with Grade 6.1 Principal Solicitors, and that the OPP has taken somewhat covert steps to correct advertisements for these positions to remove specific references to the distinction in Sch D Legal Officer to Grades 6.1 and 6.2. 40 The OPP’s global submission in response to these assertions are that they are without evidentiary foundation, and ultimately, these are distractions from the Commission’s evaluative assessment based on the evidence about the Applicant’s position within the OPP’s Trial Division Structure.
22.Noting the directions made by this Commission on 7 December 2023, the OPP reserves its position to respond further to any application by the Applicant for the production of specific documents, including on the basis of legal professional privilege. Upon resolution of any production dispute, the OPP will address at the hearing on 6-7 March 2024 what inferences (if any) may be reasonably be drawn by the Commission as the Applicant has foreshadowed.
F DISPOSITION
23.For the reasons outlined above in Section E, the application to the Commission should be dismissed. The answers to the Disputed Issue the OPP contends for are:
Having regard to the criteria set out in Table 29.2 of the [VPS EA]:
a. Is the value of [the Applicant’s] work commensurate with that performed by VPS 6.2 Principal solicitors employed at the OPP in the Trial Division non-management positions? Answer: No.
b. Pursuant to cl 27.5 [of the VPS EA] should [the Applicant] be moved from Principal Solicitor VPS 6.1 to Principal Solicitor VPS 6.2. Answer: No.
The Applicant’s submissions in reply
In reply, the Applicant submitted that his role as a Principal Solicitor aligns more closely with the VPS Grade 6.2 classification. He submitted that the work he performs mirrors that of other Grade 6.2 solicitors at the OPP. He disputes the Respondent’s emphasis on the need for formal managerial duties at the 6.2 level. The Applicant also challenges the OPP’s assertion that operational need should determine his classification. He argues that the focus should instead be on the actual work performed, which he believes meets the criteria for a Grade 6.2 classification. Furthermore, the Applicant submits that the Respondent has not consistently applied its own criteria for job resizing, pointing to other examples within the OPP where individuals have been reclassified without strictly meeting the managerial criteria emphasised by the OPP. His full submissions in reply to the OPP’s submissions read as follows:
The test to be conducted by the Commission
1. I maintain that the only Position Descriptors that the Commission should consider when determining my application are the 6.1 and 6.2 'Litigation' Position Descriptors in Table 29.2 of Schedule D of the Enterprise Agreement.
2. Paragraph 39 of my submissions dated 11 January 2024 articulates the correct test that should be conducted by the Commission, when determining my correct classification.
3. The Commission should take into account all of the relevant evidence in or annexed to my three affidavits. The Commission should note that my Performance Reviews in AL-23 replace the copy of my Performance Reviews in AL-18, which had the names of my former managers redacted.
Industrial context
4. When interpreting the words in the 6.1 and 6.2 'Litigation' Position Descriptors in Table 29.2 of Schedule D in their industrial context, in addition to the factors described in paragraph 41 of my submissions dated 11 January 2024 the following factor is relevant:
a. The work that all non-management Principal Solicitors at the OPP do, who are presently graded at 6.2 is substantially the same, if not identical to the work that I do.
Comparison to Managing Principal Solicitor role of no assistance to the Commission
5. It will not assist the Commission in determining my application by comparing my duties to those of Managing Principal Solicitors. This is because:
a. Managing Principal Solicitors have historically been both 6.1s and 6.2s.
b. The Managing Principal Solicitors role has its own Position Description, which makes clear that it too is a role that can be performed by solicitors from the bottom of grade 6.1 to the top of grade 6.2.
c. Table 29.2 of Schedule D makes clear that solicitors classified at 5.1, 5.2, 6.1 and 6.2 may hold managerial roles.
d. The OPP has never followed the requirements of Clause 27.5 of the Enterprise Agreement when conducting job resizing reviews for Managing Principal Solicitors from 6.1 to 6.2. Because of this, it is possible, (if not likely) that many of the Managing Principal Solicitor cohort at the OPP are incorrectly classified.
e. Managerial roles share some common features across the Victorian Public Service. When considering the classification of Managing Principal Solicitors parts of Table 27.2 of Schedule C of the Enterprise Agreement may come into play. This is not the case with non-management Principal Solicitors employed purely in a litigation role in the Trial Divisions of the Office of Public Prosecutions. For non-management Principal Solicitors employed in Litigation roles, only the 'Litigation' Position Descriptors in Table 29.2 of Schedule D are relevant.
6. Because evidence of the work that Managing Principal Solicitors do is not relevant to this application, the Commission need not resolve the factual dispute concerning what some of the duties of Managing Principal Solicitors are.
Past political activities and where I live not relevant
7. The Commission need not resolve any factual dispute on the circumstances of how I came to resign as city councillor or my relocation to regional Victoria. These factual matters are not relevant to this application.
Operational need not a relevant consideration
8. Clause 27.5 of the Enterprise Agreement requires a resizing review to include "an assessment of the work the Employer requires to be undertaken and the performance of that work by the Employee. These are assessed against the benchmarks specified in the Classification and Value Range Standard Descriptors."
9. Clause 27.5 does not permit the OPP to prevent a legitimate resize taking place by claiming that there is "no operation need" for an employee to be classified at 6.2.
10. Commissioner Wilson set out the correct interpretation of clause 27.5 at [101] in Brierley & Chuck v Victoria Police. The Commission should limit its assessment to "work that [the OPP] needs or has use of and which is actually performed by [me]" against the 6.1 and 6.2 'Litigation' Position Descriptors in Table 29.2 of Schedule D.
11. The respondent does not submit that:
a. I do not actually perform the work that I have described in my evidence; or
b. that the OPP has no need or use for the work that I perform.
12. The dispute between the parties is therefore limited to whether the value of my work correlates with the relevant 6.1 or 6.2 position descriptors and the Commission need not consider whether the work that I do is "required".
13. If the Commission is not with me on this point, and does wish to consider operational need, the Commission should take into account that within three years of this Application being filed, my Trial Division lost 223 years and 8 months' worth of non-management Principal Solicitor experience, and the position of Managing Principal Solicitor in my team was left vacant for a total of 9 consecutive months.
The Applicant’s Evidence
The Applicant provided various forms of evidence in support of his claim for reclassification, including performance reports and other documentation related to his reclassification application. In addition to these documents, the Applicant submitted three affidavits that further detail his role and responsibilities, highlighting how, he contended, they align with VPS Grade 6.2 classification.
In his first affidavit[18], the Applicant recites the chronology of his resizing application commencing in February 2023. He provides an overview of his employment history and outlines the duties that he regularly performs, particularly emphasising his management of complex litigation matters and providing high-level legal advice. He speaks to his involvement in high-profile cases and his engagement with, who he considers to be, senior stakeholders. He
submits that these responsibilities are consistent with that expected at the Grade 6.2 level. He also discusses his experience in mentoring and supervising less experienced solicitors, which he believes further demonstrates his leadership capacity.
The Applicant’s second affidavit[19] details his FOI battle with the OPP. He then gives evidence that, having regard to the information his had been provided with,
(a) “The role of Principal Solicitor is performed by solicitors at both 6.1 and 6.2 Value Ranges. Therefore, progression from 6.1 and 6.2 is possible as Principal Solicitors’ skills, experience and abilities expand, denoting increased complexity and responsibility.”
(b) “The 6.2 Value Range is not exclusively reserved for management.”
In his third affidavit[20], the Applicant responded to the OPP’s submissions regarding operational need and managerial responsibilities. He then detailed the apparent bias towards Managing Principal Solicitors being graded at VPS Grade 6.2. Mr Lew also responded to the evidence of Mr Fowler and Ms Christopoulos.
Under cross-examination the Applicant:
(a) Acknowledged the correctness of his CV which does not refer to leadership and guidance.[21]
(b) Agreed he only acted-up as a Managing Principal Solicitor (they used to be called Team Leaders) for about 7 weeks in 2018.[22]
(c) Rejected the use of the generic descriptors in the VPS EA.[23]
(d) Conceded that he does not “make, strategic decisions that impact a broad rage of internal and external stakeholders. In practice, [he makes] predominantly, operational decisions relating to [his] files that require technical – and draw on [his] experience as a principal solicitor.” However, the Applicant stated a caveat that he does not “think any solicitors at the OPP, 6.2 or otherwise make those strategic decisions.”[24]
(e) Conceded there is overlap between his position description and the “features in VPS Grade 6.1 for litigation in that stream.”[25]
(f) Accepted that there are “aspects of systems that could be improved, arising from prosecutions which might be initiatives that [he] could lead or a person in [his] position could lead in order to demonstrate leadership and guidance to senior stakeholders.”[26] The Applicant stated that there are examples of the same in his performance reviews, citing ‘electronic jury books’ in regional courts.[27]
(g) Agreed that his leadership and guidance is confined to individual files,[28] but otherwise not externally.[29] This was an example of Mr Lew readily making a concession in his evidence. He was a thoughtful and truthful witness.
The OPP’s Evidence
The OPP’s evidence in this matter primarily consisted of witness testimony from Paul Fowler, Executive Director of Legal Practice, and Dimitra Christopoulos, Manager of Human Resources, as well as internal documents related to the reclassification process.
As the Executive Director of Legal Practice, Mr Fowler played a central role in the decision to deny the Applicant’s reclassification request. His witness statement traversed an overview of the OPP, his role at the OPP, the Applicant’s role (noting that “the Applicant has briefed me directly (about once or twice) regarding Court matters with significant media interest or matters that required my approval”), the Applicant’s request to resize, and his decision on the Applicant’s resize. Mr Fowler gave evidence that,
“My view as that there was no merit to the Applicant’s resize request. The Applicant met some of the descriptors for Grade 6.1 but did not satisfy many of those required to be classified at Grade 6.2 in any meaningful way. The VPS EA is clear about Grade 6.2 employees requiring managerial, leadership and strategic responsibilities, and this is reflected in what the OPP needs from a Grade 6.2 position….”[30]
It is very clear that in the course of his decision-making Mr Fowler compared the Applicant’s position unfavourably to that of a Managing Principal Solicitor. His evidence was that,
“It is my personal view that Grade 6.2 should usually be reserved for [Managing Principal Solicitors] because of the different nature of the duties required by an MPS role compared to those required of a Principal Solicitor role.”[31]
Mr Fowler also gave evidence about the Review of Actions, the Applicant’s FOI request and then contested the Applicant’s evidence.
Under cross-examination Mr Fowler,
(a) Conceded that the Applicant is “in a category of solicitors that predominantly works on the most complex of files.”[32]
(b) Agreed that the Applicant is often the “main instructor for the OPP in all the matters that are before a regional court in a particular month.”[33]
(c) Agreed that the Applicant had “mentored several staff members at the OPP”[34], “supervised legal trainees, formally known as “article clerks”[35], “supervised students”[36], “trained and supervised multiple staff members on circuit who have been VPS3 to 6”[37] and “delivered continuing legal education.”[38] Mr Fowler then conceded that this activity is “a form of” leadership and guidance.[39] However, Mr Fowler disputed that this activity related to “senior stakeholders.”[40]
(d) Accepted that he has never had a discussion with:
i.the Applicant “about the role [he plays] in the legal practice [of the OPP] mentoring and training staff.”[41]
ii.“staff that [the Applicant] mentored and trained about [his] mentoring and training.”[42]
(e) Said he relied upon “discussions with [the Applicant’s] manager and [his] manager’s manager” about the Applicant’s mentoring and training.[43]
(f) After a tortuous exchange, finally, and reluctantly, conceded that Mr Lew has advanced expertise in an area of specialisation, being criminal law.[44]
(g) Conceded that non-management solicitors can display leadership and guidance,
Mr Lew: So do you concede that non-management solicitors display leadership and guidance at the OPP?
Mr Fowler: They can do, yes.
Mr Lew: And would you concede that they display leadership and guidance in giving the highest level advice to the DPP and senior Crown prosecutors?
Mr Fowler: Again, they can do.
Mr Lew: And would you concede that they can display leadership and guidance by providing support to witnesses going through the trial process?
Mr Fowler: Yes.
Mr Lew: And would you concede that they can provide leadership and guidance to police detectives by assisting them in pointing out holes in police briefs and helping police plug those holes?[45]
Mr Fowler: Yes.
In answer to questions from me, Mr Fowler,
(a) Accepted that;
i.“the 6.2 descriptor builds on the 6.1 descriptor.”[46]
ii.“6.2 is not reserved for managers”.[47]
iii.“it’s possible for a principal lawyer with no management role, who is 6.1 to move to 6.2.”[48]
iv.“it’s not a great distinction” between 6.1 and 6.2.
v.“the fact that you report to a MPS does not mean you couldn’t be a 6.2.”[49]
vi.“the fact that the Applicant reports to a MPS wouldn’t exclude him from advancing to 6.2.”[50]
(b) Advised that, (notwithstanding his evidence above), in the three years that he has been in his role, he has never promoted a Principal Lawyer 6.1 to VPS Grade 6.2.[51]
(c) Suggested that some of the current VPS Grade 6.2 Principal Lawyers were “largely legacy issues”.[52]
After a number of paragraphs were not read because they were irrelevant to the reclassification dispute, Ms Christopoulos’s remaining evidence was about her role within the OPP, the Applicant’s employment with the OPP, the Applicant’s request to resize, the Review of Actions application, the Applicant's FOI request, the VPS EA (including the general Grade 6 descriptors), the history and current use of Grade 6.2 within the OPP, and the Applicant’s evidence.
Ms Christopoulos gave evidence that, “in my experience, it is not common from a Principal Solicitor to be graded at a higher classification than Grade 6.1.” She referred to the need for 6.2s to managerial responsibilities, strategy and leadership. Ms Christopoulos noted that,
“There are 13 Principal Solicitors graded at the Grade 6.2 level. However, these are due to unique circumstances. The majority of these individuals were originally employed as MPS or Legal Prosecution Specialists, but for various personal and other reasons they relinquished those hight positions. …. The OPP chose to continue to remunerate them at a certain level despite them taking a step down so to speak.”
Under cross-examination Ms Christopoulos was unable to give evidence about “other duties outside the standard file load” undertaken by existing non-management Principal
Lawyers graded VPS 6.2.[53]
In answer to questions from me, Ms Christopoulos accepted the same propositions as Mr Fowler did about Grade 6.2 building upon 6.1, 6.2 not being reserved for management, there being only a slight difference between 6.1 and 6.2 and the fact that a solicitor reports to a Managing Principal Solicitor is not a bar to promotion.[54]
Following further questioning from me Ms Christopoulos made several concessions about the like nature of the work undertaken by existing non-management Principal Lawyers graded VPS 6.2 and the Applicant.[55]
Consideration
It is important to note that in deciding this matter, I am not conducting a merits review of the decision made by the Applicant’s supervisors, the Executive Director, or made in the Review of Action (Grievance). It is not my job to re-evaluate the decisions previously made by the OPP to determine if they were the correct or preferrable decisions. I must decide the classification issue for myself.
Secondly, in deciding this matter I am interpreting the VPS EA. I am not interpreting position descriptions of the OPP. The position descriptions for Principal Solicitor and Managing Principal Solicitor within the OPP are not, and cannot be, dispositive of whether the Applicant is himself performing work at the VPS Grade 6.2 level. Nonetheless, they are useful indicators.
There being no doubt that the Applicant fully performs the requirements of VPS Grade 6.1, what does determine the matter is if the Applicant,
“Provides leadership and guidance based on advance expertise in an area of specialisation or in a broad range of legal matters to senior stakeholders.”
The focus must necessarily be on the Litigation Position Descriptor. The Applicant is a litigator. True it is that, as a litigator, the Applicant provides advice and undertakes legal drafting, however the “Advice Work” and “Legal Drafting” descriptors are not what the Applicant is to be assessed against.
The words contained in the VPS Grade 6.2 Litigation Position Descriptor build upon words for VPS Grade 6.1 (in respect of which there is no contest about whether the Applicant is performing at that level), and must be interpreted consistent with their ordinary meaning, taking into account the industrial context in which they appear.
There is no special meaning to be given to “leadership” or “guidance”. They have ordinary meanings.
The reference to “senior stakeholders” also has no special meaning. It is not a term of art. It simply means stakeholders who are more senior than others. They are more senior than “key” stakeholders. I accept the Applicant’s contention[56] that the more serious and complex the litigation a solicitor undertakes, the more senior the stakeholders (police,[57] detectives,[58] the DPP and senior crown prosecutors[59]) the solicitor usually interacts with.
The focus must be on the words in the VPS EA. It is not appropriate to import words that are not there. It is not appropriate to give some value to phrases like “strategic nature”, “high levels of decision making”. The Applicant is not required to demonstrate competencies beyond what is required in the VPS Grade 6.2 Litigation Position Descriptor.
It matters not that the Applicant does not have,
(a) the same decision-making responsibilities or accountabilities as a Managing Principal Solicitor, and
(b) any direct reports.
Other VPS Grade 6.2s who are non-managerial report to Managing Principal Solicitors. It necessarily follows that a solicitor at the OPP does not have to have direct reports to be graded VPS Grade 6.2.
The relevant industrial context includes that the:
(a) Schedule is intended to provide a basis for career progression by Managing Principal Solicitors and non-managerial Principal Solicitors alike. Managing Principal Solicitors have no easier path to VPS Grade 6.2, and
(b) From the top of the VPS Grade 6.1 range to the bottom of the VPS Grade 6.2 range the quantum difference is $1 per annum. That context speaks to the marginal difference between the two grades.
The generic public servant descriptors in the VPS EA are not relevant for present purposes. The express terms of the Schedule applying to solicitors displace the general descriptors.[60]
What is agreed between the parties and, I so find in relation to the VPS EA, is that non-management Principal Solicitors are not barred from being classified as VPS Grade 6.2. That is an agreed fact. It was agreed by both OPP witnesses in their testimony before me.
However, within the OPP,
(a) 80% of Principal Solicitors in the Litigation stream are VPS Grade 6.1, and
(b) 96% of Managing Principal Solicitors are VPS Grade 6.2,
Despite the above statistics there should be no impediment under the VPS EA to a non-management Principal Solicitor becoming a VPS Grade 6.2.
Because both Managerial and non-managerial Principal Solicitors can be VPS Grade 6.2 it is not necessary for the Applicant to demonstrate that his work is the same as a Managerial Principal Solicitor. It is sufficient that his work is of equal value.
However, after hearing the evidence of the OPP witnesses, what is not clear is how that is to be achieved. Neither Mr Fowler, nor Ms Christopoulos could clearly articulate what competencies a VPS Grade 6.1 Principal Solicitor would have to demonstrate to be reclassified as VPS Grade 6.2. Having heard their evidence, I am none the wiser about how, if I was a VPS Grade 6.1 solicitor, I could progress to VPS Grade 6.2 non-managerial solicitor. It must be baffling and frustrating for VPS Grade 6.1 Principal Solicitors eager to advance their careers.
It is particularly concerning that the decision maker, Mr Fowler, could not give concrete examples of the evidence he would expect to see before granting a re-sizing.[61] The one example he gave related to an employee who, when they applied to him for resizing, he denied them promotion.[62]
The OPP should have guidelines or standards that make it clear to VPS Grade 6.1 Principal Solicitors what evidence is expected and what development goals need to be achieved in order to progress.
Neither the Applicant’s Managing Principal Solicitor, Juliet Chipp, nor his Trial Division Manager, Jane Rodda, were called to give evidence. Their views of the Applicant’s skills, abilities and what he needs to demonstrate to progress could not be tested.
In the “Work Value Review Job Sizing” application:[63]
(a) Ms Rodda wrote,
“Alex is currently working at the standard expected of a Grade 6.1 Principal Solicitor and he is competently performing the core goals and duties of that role. Alex’s current role does not include higher level duties expected at the 6.2 level.”
What Ms Rodda meant by “higher level duties” remains unexplained.
(b) Ms Bunting, the Senior HR Business Partner (also not called to give evidence), did not support Mr Lew’s resizing. She stated that,
“At the VPS Grade 6.2 level, it is expected that incumbents perform a range of complex and high-level duties that are strategic in nature, with high levels of decision-making accountability.”
(c) Mr Fowler wrote (amongst other things),
“Alex is technically and operationally proficient, but he does not share the same decision-making responsibilities and accountability of a [Managing Principal Solicitor].”
“Alex … does not make strategic decisions that impact a broad range of internal and external stakeholders.”
I have observed above the inappropriateness of importing words, phrases, content and competencies into the classification that are not expressly stated. Noting their assessments, both Ms Bunting and Mr Fowler appear to have invented their own descriptors for VPS Grade 6.2. The language they use is no where to be found in the VPS EA Litigation stream descriptor.
There is clearly a bias (conscious or unconscious) towards grading Managing Principal Solicitors at VPS Grade 6.2. There has not been a non-management Principal Solicitor promoted from VPS Grade 6.1 to 6.2 in recent memory. The last appears to have been promoted in 2010. In contrast, the evidence established that “from 2018-2022 not a single application to re-size a Managing Principal Solicitor from 6.1 to 6.2 has been refused.”
Although denied by the OPP, the facts in this matter suggest that someone has decided that a Principal Solicitor cannot be graded at VPS Grade 6.2 unless they are in a managerial position. No Principal Solicitor VPS Grade 6.1 has been promoted to VPS Grade 6.2 since 2010.
Noting that, Managing Principal Solicitors,
(a) have a smaller workload of serious complex matters and have a reduced workload to enable them to effectively manage their teams and undertake tasks like identifying professional development opportunities for individual team members (including Principal Solicitors),
(b) are often involved in projects that relate to continuous improvement and the OPP's strategic plan and are more engaged with the OPP Executive and other business functions (e.g. finance) than Principal Solicitors,
(c) have their own human resources and financial delegations,
(d) are expected to conduct at least fortnightly check-ins with team members and manage team members' workloads.
(e) will usually have around 10 to 12 direct reports,
(f) have higher expectations than Principal Solicitor roles in almost all respects, other than file load,
it might be appropriate that a VPS Grade is reserved for Managing Principal Solicitors (even at VPS Grade 6.2), but that is not what the VPS EA states.
If that is what the OPP wants, then it should seek to achieve that outcome through bargaining, not through the application of (what appears to be) some informal policy to that
effect.
What is clear in the relevant Schedule is that the difference between VPS Grade 6.1 and VPS Grade 6.2 is slight. It is important, but wafer thin.
The evidence in this matter establishes that:
(a) All Principal Solicitors who are non-managerial and who are currently employed as VPS 6.2 do very similar, if not identical, work to the Applicant. Ms Christopoulos conceded the same.[64]
(b) In Performance Reviews the Applicant was regularly assessed as “Exceeds Expectations”, until the system was changed, and the highest assessment became “Meets Expectations”[65]. Since then, the Applicant has always met expectations.
(c) On 17 October 2023, at the personal written invitation of the Police Commissioner and the Minister for Tourism, the Applicant was invited to attend the Victoria Police Sporting Integrity Symposium. He attended this symposium (but did not speak) with 150 other people in his capacity as an OPP Principal Solicitor with knowledge and experience practicing in organised crime, match fixing, illegal betting and human rights in sports.
(d) The Applicant is the main point of contact between Victoria Police and the OPP on sporting integrity issues.
(e) The Applicant is involved in the Law Institute of Victoria’s Accredited Specialist program as a presenter during the orientation program.
Having regard to the evidence of what the Applicant actually does as an experienced Principal Solicitor, I am satisfied that he has demonstrated that he provides,
(a) leadership,
(b) guidance based on advance expertise,
i.in an area of specialisation (namely criminal law), and
ii.in a broad range of legal matters (most of which are complex),
to senior stakeholders.
I am satisfied that, as an experienced (16 years of post-admission experience in indictable criminal litigation) and long-serving (for 5 years) Principal Solicitor with the OPP and having regard to the evidence of his actual work (including homicides, serious injury cases, serious sex offences, major drug trafficking), the Applicant is a “leader” in the provision of legal advice concerning litigation. He is a subject matter expert. He has a Master of Laws from the University of Melbourne (specialising in Criminal Law and the Law of Evidence). He is a leader in the field of criminal law specialising in indictable offences (he obtained Specialist Accreditation from the Law Institute of Victoria) and the prosecution of them. He should be classified (and remunerated) as such.
Further, I am satisfied that the Applicant gives litigation advice and guidance to Senior Crown Prosecutors, the Chief Crown Prosecutor and the Director of Public Prosecutions. These stakeholders are clearly senior, and there is direct engagement with them by the Applicant.
The Applicant is engaged substantially in the duties of a Principal Solicitor VPS Grade 6.2.
Finally, it is clear on the evidence that there is an operational need for the Applicant to work at the VPS Grade 6.2 level having regard to the work that is assigned to him, that clearly satisfies the descriptor in the VPS EA.
Conclusion
Having regard to the reasons stated above I answer the questions to be determined as follows:
(a) Is the value of the Applicant’s work commensurate with that performed by VPS 6.2 Principal solicitors employed at the OPP in the Trial Division non-management positions?
Yes.
(b) Pursuant to cl 27.5 of the VPS EA should the Applicant be moved from Principal Solicitor VPS 6.1 to Principal Solicitor VPS 6.2.
Yes, within 21 days of the date of this decision.
The Applicant invited me to backdate any salary increase to 20 March 2024 (being the nominal expiry date of the VPS EA). I decline to do so. In the resolution of disputes under s.739 it is more appropriate that decisions operate prospectively, so that enterprise agreements are properly applied into the future.
One final observation: nothing in this decision is a statement of general principle about what is required to move from a Principal Solicitor VPS Grade 6.1 to VPS Grade 6.2. This decision is confined to the facts relating to Mr Lew. It is for the OPP to more clearly communicate to its solicitors about pathways for progression. It is not appropriate to leave them guessing.
COMMISSIONER
Appearances:
Mr Alexander Lew for himself
Mr Christopher McDermott, Counsel, instructed by Ms Caitlyn Hoffman of Lander & Rogers, for the Respondent
Hearing details:
Melbourne at 9:00 am on Thursday, 8 August 2024.
[1] There are, of course, additional costs associated with salary on-costs and superannuation. Over time Mr Lew would also then be able to further increase his salary by moving through the salary bands at VPS 6.2.
[2] page 5.
[3] Ibid, page 8.
[4] Op. cit. 2, page 6.
[6] Ibid.
[7] Ibid, page 7.
[8] Ibid.
[9] PN800 – PN806.
[10] PN811.
[11] PN1033-1035.
[12] Clause 13 of the VPS EA.
[13] [12], [2020] FWCA 5215.
[14] [2014] FWCFB 7447 (‘Golden Cockerel’).
[15] Ibid [41].
[16] [2017] FWCFB 3005 (‘Berri’).
[17] Berri (n 23) 22–23, [114].
[18] Exhibit 2.1.
[19] Exhibit 2.2.
[20] Exhibit 4.1.
[21] PN49.
[22] PN53.
[23] PN65 and PN85.
[24] PN90.
[25] PN111.
[26] PN185.
[27] PN185.
[28] PN203.
[29] PN205.
[30] Exhibit 3.1, para 24.
[31] Exhibit 3.1, para 54.
[32] PN636.
[33] PN758.
[34] PN671.
[35] PN672.
[36] PN673.
[37] PN674.
[38] PN675.
[39] PN676.
[40] PN679.
[41] PN622.
[42] PN623.
[43] PN624.
[44] PN680-702.
[45] PN654 – 657.
[46] PN434.
[47] PN435.
[48] PN436.
[49] PN442.
[50] PN443.
[51] PN550.
[52] PN497.
[53] PN1018.
[54] PN891-901.
[55] PN993-1008.
[56] PN171.
[57] PN322.
[58] I do not put victims of crimes or relatives of victims of crime in this category. They are important, but not “senior stakeholders” as the Applicant contended. I do not accept that exceptional pastoral care of a victim properly falls within leadership and guidance as contemplated by the VPS EA. On this point, I agree with Mr McDermott (PN320).
[59] PN281.
[60] Expressio unius est exclusio alterius.
[61] PN515-517.
[62] PN518, and PN521-522.
[63] Annexure 3 to Exhibit 2.1.
[64] PN1066.
[65] PN244.
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