Solicitors fight employer over flex hour payouts

The NSW Industrial Relations Commission has heard claims by five former ODPP solicitors over concerns regarding alleged victimisation as a result of overtime and forfeited flex hours following their employment.

Deputy president Anthony Howell of the Industrial Relations Commission has dismissed claims brought by five applicants against the Industrial Relations secretary, finding they disclosed no reasonable cause of action under s210 of the Industrial Relations Act 1996 (NSW) (IR Act).

The allegations centred on the mistreatment of applicants regarding overtime and unpaid flex hours accumulated during their employment as solicitors with the Office of the Director of Public Prosecutions (ODPP).

Ultimately, the substantive proceedings involved 16 individual applicants, of which one had already been settled, with the five relevant applicants looking to pursue claims that they were victimised by the ODPP for not receiving compensation for forfeited flex hours and unpaid overtime comparable to payments made to PSA members under a confidential settlement.

The respondent – being the ODPP – relied upon the ground that none of the relevant applicants was, at the time of the alleged victimising conduct, either an employee or prospective employee of the ODPP and was not protected by s210 of the IR Act.

The ODPP contended that the same outcome should occur as in Hall v Tweed Shire Council [2026], in which the commissioner dismissed an application for relief against victimisation brought by Hall, as he was neither an employee nor a prospective employee, when the alleged victimisations occurred.

The applicants expressed that “employee” under s5 extends to former employees whose claims stem from their past employment, while the ODPP claimed that “employee” in s5 refers to a current employee, not a former employee, and thus s210 protection is limited to current or prospective employees at the time of the alleged victimisation.

In the consideration, Howell outlined that the sole issue is whether “employee” in s210 can refer to both current and former employees, having regard to the definition of “employee” and the context and purpose of s210.

Howell stated that the ordinary and grammatical meaning of “employed” in s 5(1)(a) of the IR Act means a person engaged in work or occupation or having employment, and does not support the contention that “employee” includes a former employee for the purposes of s 210.

The surrounding context did not support expanding “employed” in s5 to include former employees, as the retrospective operation of s10 and s15 applies to a time when the person was still an employee.

“The word ‘employee’ is used in a great many provisions of the IR Act ... so far as I can see, nowhere is it deployed in a context that would support the ambulatory meaning advanced by the applicants,” Howell said.

Howell referenced the aforementioned Hall case, stating that, “the respondent is correct to argue it is implicit in commissioner Muir’s conclusion that the fact Mr Hall was not an employee (or a prospective employee) at the time of the alleged victimisation meant that ‘no victimisation can exist within the meaning of s 210’.”

The claims by the first, third, eighth, 12th, and 15th applicants were dismissed.

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