WRITTEN BY John Wilson & Kieran Pender
‘Tis the season. And as is tradition for this more-or-less monthly public sector employment law column, before heading to the beach for our summer break we like to run the rule over key trends from the past 12 months and look forward to the year ahead.
The Albanese government came to power with an ambitious industrial relations reform agenda, with significant implications for the APS. While two phases of reform have already been legislated, the most recent tranche of reform – “Closing Loopholes” – was until recently stuck in the Senate.
A deal with the Senate crossbench has seen some parts of the bill passed before parliamentary rose for the year, with the remainder to return to Parliament in February.
The reform package will have implications for all workplaces, the APS included. It will change the definition of casual employee and introduce pathways to permanent employment. It will also regulate labour hire arrangements, establish a new jurisdiction for the Fair Work Commission over employee-like gig economy workers and tweak enterprise bargaining rules.
These changes, and the government’s wider attitude to the public service, are seeing more permanent jobs created and a decreased reliance on contractors, labour hire and other short-term working arrangements.
With inflation and growing cost-of-living pressures, the headline pay increase had been a point of contention. But other issues will also have a significant impact on public servants – including more flexibility around working from home.
With the end of year in sight, a majority of Community and Public Sector Union members voted in favour of a revised 11.2 per cent pay offer. However, government hopes to put bargaining to bed before Christmas remain in the balance with the Taxation Officers’ Branch of the Australian Services Union not yet supportive of the deal.
After the bombshell that was the robodebt royal commission final report, which revealed major concerns about integrity within parts of the public service, there were hopes of significant reform to the APS framework. The government recently accepted all but one recommendation from the royal commission, and those changes will be worked through in the months ahead. There is also significant work being led by the APSC and the Department of Prime Minister and Cabinet to promote integrity across the APS.
At a legislative level, the government proceeded with initial changes to the Public Service Act, which were criticised as unambitious. A wider overhaul of the law governing the public sector has been foreshadowed – although details are as-yet sparse. Rebuilding confidence in the APS post-robobdebt and ensuring the public service is fit for purpose during a turbulent time should be priorities for the federal government in 2024.
In mid-December, the Australian Human Rights Commission’s jurisdiction to enforce the positive duty now owed by workplaces to prevent and address sexual harassment and sex discrimination commences. This year has also seen a number of record awards of damages for sexual harassment and other forms of discrimination. The impact of the #MeToo movement and the Respect@Work report continue to be felt – although despite the positive progress, too many Australians still experience unlawful harassment at work.
We anticipate a continue focus on safe workplaces in the APS and beyond in 2024. The commission’s enforcement jurisdiction will see managers alert to the risk of liability where agencies and organisations fail to take adequate steps to prevent harassment. We will watch the first few enforcement cases with interest. And these important legal developments are a reminder for all of us, especially during the end of year party season, that we must always act respectfully towards our colleagues.
In November, the Attorney-General released a discussion paper on possible reform to the Public Interest Disclosure Act 2013, the law which protects federal public sector whistleblowers. The law has been criticised (by us and others) for its complexity, inaccessibility and loopholes. Concerns have also been raised about the lack of support for whistleblowers, and the discussion paper canvasses whether to establish a whistleblower protection authority to oversee and enforce the law.
With a statutory review of private sector whistleblowing law also due next year, plus mooted reform to secrecy offences and national security legislation, we expect it will be a busy year for transparency and accountability.
The impartiality balance remains a vexed issue We have written frequently in these pages about the challenges in striking an appropriate balance between the importance of public sector impartiality and the proper participation of public servants in political communication. Public servants are not, as a Canadian judge once noted, “second class citizens” – but overt partisanship can undermine public confidence in the APS.
These issues loomed large through 2023. The Voice referendum prompted renewed guidance from the APSC, while the NSW Ombudsman issued a timely reminder that praise of government policy is just as apt to undermine neutrality as criticism.
The suspension and ultimate dismissal of Home Affairs boss Michael Pezzullo for extremely political text messages with a senior Liberal official underscored the risk posed (with a large dose of irony, given it was Home Affairs that fought for greater control of public servants’ private lives in the Banerji case).
Public servants need not self-censor in conversations with friends at summer barbeques – but it would be prudent to be careful with overtly political sentiment expressed on social media.
Thank you for reading, happy holidays and we will be back in February.
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.