Public Sector Informant: Labor’s IR agenda to change work in APS

WRITTEN BY John Wilson & Kieran Pender

After nine years of Coalition government, last month’s election of Anthony Albanese’s Labor Party will bring significant policy change in a range of areas. One area anticipated for reform is employment law; another is the public service. It seems timely, then, to explore what the next three years might have in store through a public sector employment law lens.

Beginning at a macro-level, the next three years will bring significant growth to the APS. Ahead of the election, Labor committed to abolishing the average staffing level cap, investing up to $500 million to restore APS capacity and shifting away from the use of labour hire. The bottom line will be more APS jobs; in the 2021 ALP National Platform, the party pledged to “increase the number of direct, permanent jobs in the public service, and reduce the use of contractors, casual, labour hire, and non-ongoing positions”.

Conditions are also likely to improve for APS employees, with Labor pledging to engage in genuine bargaining on wage increases and other condition enhancements and ditch the Coalition’s prior policy that fixed APS pay rises to the private sector wage price index. A foreshadowed audit of labour hire roles, to ensure “same job, same pay“, might also see some public servants benefit from pay rises.

Labor indicated that it would introduce APS-wide paid leave and other supporting entitlements for public servants affected by family and domestic violence; currently the baseline entitlement is for unpaid family and domestic violence leave. This policy commitment has been somewhat overtaken by events, with the Fair Work Commission last month provisionally indicating that it intended to insert paid family and domestic violence leave provisions in all modern awards. It seems likely that Labor will support the Commission’s position and may even legislate for paid family and domestic violence leave for all employees in the Fair Work Act.

Regular readers of this column will recall our frequent criticism of what we see as unjustifiable limits on the free speech of public servants, especially following the High Court’s decision in Banerji. Labor’s national platform brings good news in that regard, with the party promising to recognise “the right of public servants to hold and express political views as private citizens, limiting restrictions to this right to actions and expressions which genuinely undermine their capacity to serve the public”. While this is to be welcomed, it remains to be seen how it will be put into practice (it should be noted that the Banerji saga began under a Labor government, in 2012).

At a legislative level, the Albanese government will be kept busy with industrial relations reform. Much of this will have an impact on public servants (and not just those beavering away to make the reform a reality).

First, Labor will look to grapple with the increased prevalence of precarious work – exacerbated by three High Court decisions over the past nine months. Last year, in the case of Rossato, the High Court rejected an argument that a casual employee was in fact a permanent employee (with the accompanying entitlements) because of his long-term, regular, ongoing work arrangement. The Coalition also legislated to minimise risk to businesses engaging casual employees. Then, in February, in the cases of Personnel Contracting and Jamsek, the High Court adopted a conservative, black letter approach to determining whether a worker is an independent contractor or an employee.

Labor has indicated it will address these decisions through legislative intervention, including by amending the Fair Work Act‘s definition of casual employment and giving the Fair Work Commission jurisdiction over gig work. The specifics of its response to Personnel Contracting and Jamsek have not yet been announced, but may well have a significant impact on those who engage workers via labour hire arrangements (including the APS).

The new government has also signalled further changes to sexual harassment laws, implementing in full the Respect@Work recommendations from Sex Discrimination Commissioner Kate Jenkins (the Morrison government has enacted some but left others for further consideration). The most significant of the outstanding recommendations are a positive duty on employers to prevent sexual harassment, which may lead to departments rolling out further training and other strategies. Another change will be costs protections for those who bring harassment claims.

Changes to public sector whistleblowing law are also expected. The Public Interest Disclosure Act was enacted by the last Labor government in 2013 – a 2016 independent review recommended a range of changes, which were largely (if belatedly) adopted by the Morrison government in 2020. These amendments have not yet come to fruition, though, meaning Labor will pick up the task. The Jenkins review into workplace conditions in Parliament also recommended that the PID Act be expanded to cover parliamentary workers.

We have above outlined some specific areas where concrete reform has already been flagged. There have also been initial murmurings of a wider overhaul of the Fair Work Act, which was introduced by the Rudd government in 2009. Given the seismic changes to the modern workforce in the subsequent decade, such reform may be warranted – although it will no doubt be attended by significant complexity.

All in all, the new government will have a busy time on the industrial relations front. Much of this change will be felt in the APS. We’ll be sure to keep readers up to date.

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

Kieran Pender and John Wilson thank Kate O’Shannessy for her research assistance.

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

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