APS won’t be immune to IR, employment reform in the air

WRITTEN BY John Wilson & Kieran Pender

Change is in the air.

The APS jobs summit earlier this month underscored the new government’s desire to undertake significant economic reform.

Despite domestic and international upheaval – or, indeed, perhaps because of it – there is an evident appetite to drive significant change.

In an outcomes paper following the summit, the Albanese government committed to “immediate actions will be taken to build a bigger, better trained, and more productive workforce.”

Industrial relations policy is set to be at the centre of the government’s economic reform agenda.

Some significant IR upheaval have already been announced; other policy initiatives are understood to be in the pipeline.

What, we might ask, does that mean for the Australian Public Service?

Not only will the APS be implementing the policy agenda, but IR reform could also have a significant impact on public servants themselves.

First, there are some short-term commitments set out in the outcomes paper.

The Albanese government has indicated that the APS will be required to report to the Workplace Gender Equality Agency and set targets to improve gender equity in the service.

Together with “complementary existing commitments”, both at a workforce-wide level and APS-specific targets for First Nations employment (5 per cent by 2030), the government is evidently signalling its commitment to improving diversity, inclusion and equality in the APS.

In a similar vein, in the staffing context, the government has promised 1,000 “digital traineeships” in the APS over the next four years, “with a focus on opportunities for women, First Nations people, older Australians, and veterans transitioning to civilian life.”

Next will come wider industrial relations reform.

There are three primary components of relevance to the APS.

For some months now, the government has been expressing its intent to address the absence of workplace rights in the gig economy.

The extent of the proposal outlined so far includes giving the Fair Work Commission jurisdiction over “employee-like” forms of work, “allowing it to make orders for minimum standards for new forms of work”.

Although this initiative has largely been messaged as a step to address insecure work in the mobile-app economy – Uber drivers, Deliveroo bike riders and so on – it could have interesting consequences for the APS.

So too the government’s related commitments to “legislate same job, same pay”, “limit the use of fixed-term contracts” and wind back Coalition changes to the Fair Work Act that entrenched casual employment by focusing on legal language rather than practical realities.

As is well-known, there has been a significant rise in the use of contracting and labour hire arrangements in the APS.

It is premature – without draft legislation – to express firm views about what these proposed changes might mean for APS labour hire.

But we can offer some tentative thoughts. APS labour hire arrangements are typically tripartite – the agency needing staff, a labour hire company supplying them, and the individual workers. Some are engaged on a contractor basis, with Australian Business Numbers, some are engaged as casuals.

Both forms of labour hire will give rise to heightened legal risk in this new legislative era (if the reforms are enacted).

Where it cannot be said that an ABN contractor is genuinely operating their own business, the Fair Work Commission’s new jurisdiction may be enlivened.

Where labour hire workers are engaged on a casual employment basis, but work nine to five within a government department for a year or more (as is common), new legal tests for casual employment might be harder to satisfy.

While there will no doubt remain a need for labour hire arrangements in the APS and elsewhere, those providing labour and those engaging it will need to adapt in light of these forthcoming reforms.

Second, the government has committed to bolstering workplace rights in a range of areas, including for public servants. In the coming year or so, public servants will benefit from stronger and more enforceable protections against discrimination and harassment and an overhaul of whistleblower protections in the Public Interest Disclosure Act.

Third, a primary focus in media coverage of the job summit concerned mooted reform to bargaining parameters.

In the outcomes paper, the government committed to revitalising “a culture of creativity, productivity, good faith negotiation and genuine agreement in Australian workplaces”, including through amendments to the Fair Work Act.

While the devil will be in the (as yet unseen) detail, and these changes are unlikely to have a major practical impact on APS bargaining, it sets a new tone for negotiations between the government and the Community and Public Sector Union.

Following a near-decade of adversarial bargaining policy from the Coalition, including wage freezes and the infamous average staffing level cap, the new wave of enterprise agreement bargaining across APS departments should bear more fruit.

These are just the start. More policy announcements will no doubt be forthcoming, many of which will have an impact on the public service. It will be a busy three years ahead, with a long to-do list.

Industrial relations reform will be at the heart of the government’s agenda, and its changes could significantly transform the APS.

The above article was written for and published in the Canberra Times.

For all employment related queries or concerns, please contact our Employment Law & Investigations team at BAL Lawyers.

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