Government hypocrisy on display again in the Fair Work Commission

A recent judgment has tipped the scales even further to the government’s advantage against public servants.

The federal government, it has been said in the litigation context, is a “behemoth”. Public servants who take on the might of the bureaucracy in employment disputes have always faced an uphill battle. The government has practically unlimited resources and its pick of legal talent; employees often have neither. However, in the past this stark inequality was partially alleviated by a requirement in the Fair Work Act that parties must seek permission before they can be represented by lawyers.

Following Gibbens v Commonwealth of Australia, public servants no longer have even this minor protection. In July, the Fair Work Commission rejected an appeal against a decision which gave lawyers at the Australian Government Solicitor the right to appear for the government without permission.

The relevant legislation provides an automatic right of appearance for lawyers who are employees of a party. But, so appellant Gregory Gibbens argued, lawyers of the AGS hold a distinct role: the AGS is a government legal practice that works across departments, whereas the exception is aimed at in-house lawyers. The Full Bench disagreed: “AGS lawyers are … employees of the respondent (that is, the Commonwealth) engaged by the Secretary of the Attorney-General’s department to work in that department.” Accordingly, post-Gibbens, the AGS can appear without leave before the Fair Work Commission, while public servants require permission to have legal representation.

While the legislative interpretation in Gibbens may be correct on a strictly textual view, it is entirely contrary to the Fair Work Act’s policy intention. The explanatory memorandum stated that the commission would “move away from formal, adversarial processes … There will also be a higher bar set for representation.” Tellingly, it continued: “Permission for representation will only be granted to parties (including the minister) where it would enable the matter to be dealt with more efficiently or fairly” (emphasis added).

Moreover, the Gibbens precedent, which the government has since relied upon in other matters, contradicts the position departments have taken in other contexts. In a 2004 High Court case, the Department of Immigration argued that the AGS was not “the Commonwealth” for the purposes of recovering legal fees. Justice William Gummow agreed. While that judgment was made when the AGS was a Commonwealth authority, and it has since been subsumed within the Attorney General’s department, this is seemingly a distinction without a difference.

The government’s approach to this issue continues a trend of self-serving inconsistency – some might even say hypocrisy – when it comes to workplace relations. Two other examples are instructive.

Judges have long adopted the view that the federal government and its myriad departments form one legal entity. The High Court held in 1920 that “the Crown”, or the executive branch, “is one and indivisible”. The bench continued: “Elementary as that statement appears, it is essential to recall it, because its truth and its force have been overlooked.”

In all but name, the government often engages in pattern bargaining during the enterprise bargaining process – seeking common terms for distinct enterprise agreements across multiple agencies – which is illegal under the Fair Work Act. This is permissible, they say, because the departments are not distinct employers but all part of the Commonwealth of Australia.

But when a dismissed public servant pursues reinstatement in the Fair Work Commission, agencies invariably resist on the grounds that doing so would be disruptive to the workplace. If the Commonwealth is just one legal entity, why can’t the unfairly dismissed public servant be reinstated to another department? This issue has arisen in the Fair Work Commission on occasion, and there are no prizes for guessing the position adopted by the Commonwealth when the shoe is on the other foot.

Former Canberra-based Fair Work Commissioner Barbara Deegan was frank about this contradiction in an interview with Workplace Reviewfollowing her retirement. “The bargaining framework does sit uncomfortably with the prohibition on pattern bargaining. Of course in a formal sense there is no inconsistency. The bargaining framework only applies to a single employer – the Commonwealth of Australia. But then in other contexts, when it is suggested that the Commonwealth is a single employer, the response is that under the Public Service Act each agency head is a separate employer or exercises all the powers of an employer. So there is a very good argument that the Commonwealth can’t have it both ways”.

Another area of inconsistency involves the APS’ reach into the private lives of public servant. I have written repeatedly about the government’s overreach in this field, and controversy was sparked again last month when the Australian Public Service Commission sought to regulate public servants’ “liking” of Facebook posts.

This expansive interpretation of the Code of Conduct’s scope was highlighted by one passage. The APSC instructed: “Your capacity to affect the reputation of your agency and the APS does not stop when you leave the office. The comments you make after hours can make people question your ability to be impartial, respectful and professional when you are at work. APS employees are required by law to uphold the APS Values at all times.” Political opinion is not the only area where the APS has sought to intrude into the private lives of employees.

Yet when an employee injures themselves outside of the office (but still in a workplace context), the APS has sought to resile from its workers’ compensation obligations. Comcare famously fought all the way to the High Court (and won) in a case involving a public servant injured having sex while away from home on work travel. The comparison between Comcare v PVYW and free speech cases may be crude, but the point nevertheless remains: the government argues for an expansive definition of what falls within the scope of employment when it suits them, and a restrictive definition when it does not.

Although so much might be expected from a private litigant, Australians are entitled to hold the Commonwealth to a higher standard. Indeed the Model Litigant Guidelines require the government to act “consistently in the handling of claims and litigation”. While it is not obliged to “fight with one hand behind its back in proceedings“, it should certainly not – to use Deegan’s language – be able to have it both ways.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks Kieran Pender and James Macken for their help in preparing this article.

First published in the Canberra Times.