‘Bewildering’: Victorian Office of Public Prosecutions lashed over pay dispute

Victoria’s prosecution office has been slammed for using taxpayer funds to defend a ‘minor’ remuneration action, in which a solicitor was seeking a grading review for a $1 per year pay rise.

A Victorian prosecutor has won a Fair Work case to be reclassified to a higher grade.

The Victorian prosecution office has been lashed by the Fair Work Commission for using taxpayer funds to defend a minor pay dispute brought by one of its solicitors, and has been urged to “reflect deeply on its human resources practices”.

The matter, filed by principal solicitor Alexander Lew, was over whether or not Mr Lew should be reclassified to a higher employee grade which would see him paid an extra $1 every year.

Commissioner Leigh Johns, in delivering his decision earlier this week, slammed the Office of Public Prosecutions for allowing the matter to be litigated, saying it was “bewildering” that it was not settled within the organisation.

“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,” Commissioner Johns’ decision says.

“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).”

The reclassification would see Mr Lew moved from Victorian Public Service grade 6.1 to 6.2. Commissioner Johns said, over time, Mr Lew would be able to increase his salary by moving through the salary bands of the grade.

He said the “entire proceeding could have been avoided had the OPP … sat does with Mr Lew and gave him very clear development goals”.

“In short, it is bewildering that management within the OPP could not resolve this matter without the need for litigation,” the’ decision says.

Mr Lew was described as a “very ambitious and determined person” as well as a “longstanding and skilled lawyer”.

“I have no doubt that, given clear development goals, Mr Lew would have risen to the occasion,” the decision says. “He should not have had to litigate to achieve an outcome that proper, effective and competent human resource management could have achieved”

Commissioner Johns said his “dismay” at the way in which the OPP conducted the professional management of Mr Lew had no bearing on his decision regarding the reclassification.

“I have made the observations … solely in the hope that the OPP will reflect deeply on its human resources practices, and any future litigation including its own employees,” he said.

In approving the reclassification, Commissioner Johns accused two OPP employees of having “invented their own descriptors” for the desired grade.

“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,” the decision says.

“He is a subject matter expert. He has a master of laws from the University of Melbourne … He is a leader in the field of criminal law specialising in indictable offences … and the prosecution of them. He should be classified (and remunerated) as such.”

In final comments, Commissioner Johns urged the OPP to “more clearly communicate to its solicitors about pathways for progression”.

“It is not appropriate to leave them guessing,” he said.