WRITTEN BY John Wilson & Kieran Pender
This time last year, in our pre-Christmas column, we proposed an APS workplace wish list for 2021. Over the subsequent 12 months, some of our wishes were granted. The Morrison government finally responded to Kate Jenkins’ Respect@Work report and implemented many, although not all, of her recommendations. Other items on our list – such as “a more sensible APS-wide approach to out of hours conduct”, or a practical focus on procedural fairness in code of conduct investigations – have yet to materialise.
To mark our final column for 2021, we thought we would undertake a similar exercise. Yet this time we have replaced hope with pragmatism – putting aside what we might like to see in 2022, what employment law developments do we expect to impact public servants in the year ahead? Regardless of the outcome of the election, which will of course influence the broader context, we hope the below serve as informed predictions.
Probably the most controversial employment issue of 2021 has been the ability of employers to direct employees to get vaccinated against COVID-19. This turned on whether such a request was lawful and reasonable. Other than in exceptional circumstances, the answer to that question is yes. Legal challenges to mandates have, as yet, been unsuccessful – although several remain on-foot.
The APS has not issued a mandatory vaccination directive (although some public servants are covered by mandates in particular states). Given the exceedingly high take-up rate in Canberra, it seems unlikely an APS mandate will be necessary in the short-term. However, given the latest Omicron variant and high infection rates overseas, we do not anticipate that this issue will go away in 2022. APS- or ACT-wide mandates remain possibilities
Canberra’s two COVID lockdowns forced the vast majority of public servants to work from home. Unsurprisingly, many appreciated the change. The prospect of working remotely – whether permanently or a day or two a week – has become enticing for many (we both, at least sometimes, work from home). But Public Service Minister Ben Morton is not a fan. Last month, he told staff at two departments that they needed to get back to the office. Default work from home, he said, would soon become “a thing of the past.”
We anticipate that this tension will be a feature of APS life in 2022. Many staff want to work from home – resistance from management will cause headaches. Australian Public Service Commissioner Peter Woolcott admitted that failing to be flexible could hurt the APS’s ability to recruit. “To remain an employer of choice, and access new pools of talent, flexibility will remain an important component of the APS,” he said.
Unfortunately for staff, their legal rights to work from home are fairly limited. The Fair Work Act does permit certain categories of employees, such as parents or carers, to request a flexible working arrangement. These must be granted unless there are “reasonable business grounds” for refusal. However, the provision is somewhat of a toothless tiger, as it is difficult to challenge a refusal. In any event, many employees are not covered. In the absence of a ministerial change of heart, public servants aiming to work from home next year will have to hope for an independent streak in their managers.
There are thousands of labour-hire staff in the APS. It is the invisible distinction within public sector offices – some staff are permanent public servants, with all the perks and stability that comes with that status, while others are on insecure, short-term contracts. This model has been built on important legal distinctions between independent contractor and employment relationships, and between casual and full-time employment. Thus, in a typical triangular labour hire arrangement, a firm can employ an employee on a casual basis (employment relationship), and then provide the employee to an agency (contractor relationship). Often these contractors will work full-time equivalent hours, for periods of a year or more, but remain casual (able to be dismissed with one hour’s notice) and employed by the labour hire firm, rather than the APS.
There are pros and cons to this model, for both the individual and society at large. However, a number of cases have recently come before the High Court that could disrupt the status quo. In September, the Court heard the cases of CFMMEU v Personnel Contracting and Jamsek v ZG Operations. Both offer the potential to significantly change the law in this area. Neither has yet been decided – a judgment is expected either this month, or early in 2022.
If the court follows its recent approach in WorkPac v Rossato, a case involving long-term casual employment, the APS and labour hire firms have nothing to worry about. The Court adopted a black letter approach with an emphasis on the words of the contract(s), rather than wider context and subsequent conduct. But until the cases are decided, uncertainty will linger.
Efforts to address bullying and sexual harassment in public sector workplaces, including Parliament, will continue in 2022. Labor has committed to implementing the outstanding Respect@Work recommendations if they win the election. The Coalition has indicated its intention to act on another phase of law reform following further consultation. As part of the initial amendments, enacted in September, the Fair Work Commission was given an “anti-sexual harassment” jurisdiction which is now available for employees, including public servants.
Reform to federal whistleblower protections, in the Public Interest Disclosure Act, is also likely in 2022. In Jenkins’ recent review of harassment in parliament, the Sex Discrimination Commissioner recommended that parliamentary staff be included within the scope of the PID Act. Amendments to that effect will likely be implemented as part of a wider overhaul of the law, which is long overdue.
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.