WRITTEN BY John Wilson & Kieran Pender
Modern society has inherited much from Ancient Greece, but our system of public sector employment is an exception. Whereas Ancient Egypt and Rome were early forerunners of a professional civil service, the Greeks initially believed that all citizens should bear the burden of contributing to the performance of public business, adopting a rotating system of volunteers. Once a year, those volunteers were required to front up to a citizen’s assembly and account for their actions – a forebear to Senate Estimates, perhaps.
Fast forward two millennia and public servants are paid professionals, rather than volunteers fulfilling their civic duty. But the special nature of public service has not been lost; public sector employment is distinct from other, private sector employment relationships. That distinction has legal significance, which public servants need to know to fully appreciate their rights and obligations at work.
In Australia, all employment is contractual. That means there is a contract between an employee and an employer, and either party can exercise ordinary contractual remedies in the event the contract is breached. This is true for public servants, too.
Most employees in Australia (with some exceptions) are also covered by the national system of employment regulation – in the Fair Work Act. This provides a range of rights and protections for workers, including federal public servants, and access to the Fair Work Commission to resolve disputes. The Fair Work Act also establishes a regime for enterprise agreements to govern the relationship between an employer and its workers; almost all federal government agencies have enterprise agreements in place.
Under federal law, there are also four anti-discrimination statutes – covering sex, age, disability and race discrimination – which provide protection in the workplace, and elsewhere.
But that is where the commonality stops. While federal public servants can access almost all of the rights and protections available to private sector workers, there are also additional elements that come with the special nature of public sector employment.
First, APS employment has a statutory basis in the Public Service Act, which sets out the powers of agencies to hire and fire, conditions governing the exercise of those powers, and certain obligations on public servants, such as to obey the APS Code of Conduct.
Second, employment decisions in the Australian Public Service – promotion decisions, Code of Conduct processes, disciplinary action and so on – are administrative decisions, like any other decision made by government (say to approve a coal mine, or award a grant).
That means there are review opportunities through the Merit Protection Commissioner, allowing public servants unhappy with certain employment decisions to seek closer scrutiny. And, if necessary, those employment decisions can be subject to judicial review. Say a public servant is dismissed from their job, but the decision-maker failed to afford procedural fairness in the termination process – the public servant could challenge the firing in court, and if successful, the decision would be void.
While the distinct nature of public sector employment means public servants have additional rights to their private sector counterparts, it is not a one-way street: APS employment also comes with additional obligations.
Take the Code of Conduct. It sets out the behavioural requirements of public servants at work; its requirements have statutory force, and non-compliance can lead to disciplinary action. But it goes further than any private sector code of conduct policy could.
For example, one part of the Code of Conduct requires public servants to “at all times” behave in a way that upholds APS Values and the APS’s reputation. Private sector employers face legal constraints in their ability to govern the out-of-hours conduct of staff; as was famously said in an employment tribunal case, “an employee is entitled to a private life.” While there is some legal debate over whether “at all times” literally means 24/7, 365 days a year, it is undeniable that higher standards are expected of public servants, whether on duty or not.
One area where a public servant’s obligations above and beyond ordinary employment is particularly acute is political engagement. As we have written about many times in these pages, there are limits on the ability of public servants to engage in political commentary or participate in public life.
The law here seeks to strike a balance. Public servants are not, as a Canadian court once said, silent members of society. But impartiality is central to an effective public service. Public servants need to be careful about political commentary, particularly around issues relevant to their work, and especially as seniority increases.
Participating in electoral campaigning may be possible, but public servants should be careful to comply with any agency guidelines and conflict of interest management procedures, as required.
The concept of public sector employment in Australia might have evolved from a group of volunteers fulfilling their civic function. But in some ways, the core ethos remains: the public service is essential to the functioning of our society. Public servants play a critical role in Australia. The nature of their employment reflects that, with special rights and obligations.
First published 28 September in the Canberra Times – “Beyond the contract: I’m a public servant. What are my rights at work?“.