WRITTEN BY John Wilson & Kieran Pender
Each new year brings both change and continuity. In the Australian Public Service, January and February typically herald the arrival of over one thousand fresh-faced graduates from across the country, a majority descending on Canberra. For most of this cohort, the months ahead will offer their first taste of public sector employment. For more experienced public servants, meanwhile, 2022 might bring a change of scenery or more of the same. The coming months will also see people joining the APS from the private sector and state and territory bureaucracies, and vice versa.
Our first column for 2022, therefore, seems an apt time to provide a brief summary of the law that governs the rights and obligations of federal public servants. We hope this might be helpful, particularly for newcomers to the APS, given the complexities that distinguish the public sector from private sector employment; as we have written before, APS employment “is an interesting legal construct.” Here is our employment law 101.
The relationship of employment has, at its heart, the law of contract. All Australian employees, in addition to whatever statutory overlay might be applicable, have a contract of employment with their employer. That contract comes with a range of express and implied rights and obligations. This remains true for public servants (despite the contrasting position in some other countries). As the High Court said as early as 1923, “the relation between the Crown and its officers is contractual in natural … peculiar in its conditions, no doubt, and in many cases subject to statutory provisions and qualifications – but still a contract.”
Unlike in the private sector, public servants often do not receive a document entitled “Contract of Employment”. Instead, it is commonplace for a “Letter of Offer” to stipulate the role responsibilities and so on, but not much else – instead referring to the relevant enterprise agreement and Public Service Act 1999 (both discussed below). It would be fair enough, then, to think that the contract has little work to do in defining the rights and obligations of public servants. Nonetheless, public servants would be well-advised to remember that their employment relationship remains contractual because there are important rights and responsibilities, particularly implied terms, that apply. These are unlikely to be material in day-to-day employment, but could become important in the event of a dispute.
General statutory employment law also applies to the APS. The Fair Work Act 2009 (Cth), for example, defines a “national system employer” (an important operational definition for the remainder of the FWA) as including “the Commonwealth … [and] a Commonwealth authority, so far as it employs, or usually employs, an individual”. This means that public servants are entitled to the minimum National Employment Standards in the FWA (annual leave, parental leave, the ability to request flexible working arrangements and so on).
Public servants can also avail themselves of the various protections provided for in the FWA. If a public servant believes they have suffered adverse action for exercising a workplace right – say they were mistreated for asking queries about working unduly long hours – they can sue their agency under the general protections scheme. If a public servant is dismissed, they can claim unfair dismissal in the Fair Work Commission (subject to meeting the eligibility requirements). The FWA also provides the anti-bullying regime (recently expanded to cover sexual harassment), whereby a public servant can seek a stop-bullying order from the commission. As we have explored before, model litigant guidelines require agencies to play fair in litigation with their staff. There are also other statutory employment law schemes that bind federal agencies, such as anti-discrimination and workplace health and safety law.
If contract and statutory employment law outline the broad contours of public servant employment, and the safeguards when things go wrong, enterprise agreements – developed pursuant to the FWA – provide most of the content. If you have a question about the terms and conditions of your employment, your enterprise agreement is typically the first place to look (they can be found on the Fair Work Commission website). One notable exception is for Senior Executive Service public servants, who are excluded from enterprise agreements.
Enterprise agreements outline the nitty-gritty. For example, the Department of Jobs and Small Business’ current agreement covers things like study assistance, travel allowances and performance management arrangements. Because an enterprise agreement is a creature of the FWA, it has more force than a policy or procedure – the commission can be asked to address non-compliance.
In the private sector, enterprise agreements are developed by individual businesses in consultation with staff against the backdrop of a sector-specific award that applies unless an enterprise agreement is reached. In theory that is true for the public sector – with the Australian Public Service Enterprise Award 2015 – but with almost all agencies having enterprise agreements, the terms of the award are not as material. In some cases, where an agency and its staff have not been able to reach an agreement, the commission will instead make a workplace determination, which has the same effect – this is what currently covers Home Affairs.
Finally, public sector employment is governed by the Public Service Act. This provides agencies with the statutory power to hire and fire and so on. Perhaps importantly for an ordinary public servant, the legislation sets out the APS Code of Conduct and the related APS Values and APS Employment Standards. These require public servants to, for example, “behave in a way that upholds … the integrity and good reputation of [the APS]”, or “act with care and diligence in connection with APS employment.”
We have tried here to set out the different sources of a public servant’s employment rights and obligations. For present purposes, we have done our best to make it sound straight-forward. Of course, nothing in life is ever simple. Employment law is an ever-changing beast and the unique nature of public service employment means that unresolved questions linger. We will no doubt touch on some of those in this column in the months ahead.
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.