The Public Service Amendment Act 2013 (Cth) (the Amending Act) brings significant changes to the Public Service Act 1999 (PS Act) and Commonwealth public sector employment. The reforms will come into effect on 1 July 2013.
Some of the important changes made by the Amending Act include:
- Changes to the APS values and the introduction of the APS Employment Principles
- Expansion of the Code of Conduct, and
- New functions of the Australian Public Service Commissioner.
Each of these changes to the PS Act is described below in more detail.
The Amending Act replaces the APS values with five key values, which will be contained in an updated section 10 of the PS Act. The new values are:
- Committed to Service
The APS is professional, objective, innovative and efficient, and works collaboratively to achieve the best results for the Australian community and the Government.
The APS demonstrates leadership, is trustworthy, and acts with integrity, in all that it does.
The APS respects all people, including their rights and their heritage.
The APS is open and accountable to the Australian community under the law and within the framework of Ministerial responsibility.
The APS is apolitical and provides the Government with advice that is frank, honest, timely and based on the best available evidence.
APS Employment Principles
In addition, new APS Employment Principles have been established under a new section 10A. These principles are closely aligned with the APS values and relate to engagement, performance and promotion of APS employees and the key aspects of an APS workplace.
The APS Employment Principles are:
- The APS is a career based public service that:
- makes fair employment decisions with a fair system of review
- recognises that the usual basis for engagement is as an ongoing APS employee
- makes decisions relating to engagement and promotion that are based on merit
- requires effective performance from each employee
- provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued
- provides workplaces that are free from discrimination, patronage and favouritism, and
- recognises the diversity of the Australian community and fosters diversity in the workplace.
The APS Employment Principles also provide the circumstances in which a merit decision is made in relation to engagement and promotion. This largely reflects what was previously in section 10(2) of the PS Act with a new provision that a decision will be merit based if "all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties".
A failure by an APS employee to uphold section 10(2) of the new APS Employment Principles will be considered a breach of the Code of Conduct. Employees will also be required to behave in a way that upholds the integrity of that employee's Agency, as well the APS more broadly. Previously, this obligation did not expressly extend to the employee's particular Agency.
Code of Conduct
The Code of Conduct has been expanded to include conduct 'in connection with' APS Employment. Previously, only conduct in the course of APS employment could amount to a breach of the Code (apart from the obligation in relation to conflicts of interest).
Specifically, the changes will require APS employees to:
- Behave honestly and with integrity in connection with APS employment
- Act with care and diligence in connection with APS employment
- When acting in connection with APS employment, treat everyone with respect and courtesy, and without harassment, and
- When acting in connection with APS employment, comply with all applicable Australian laws.
As a result the amendments will arguably broaden the scope of conduct, which will be subject to review as part of an APS employee's employment. It is possible that conduct, which was not previously within the scope of the Code of Conduct as it was not 'in the course of employment', will, under the amended PS Act, be considered to be in connection with APS employment and a breach of the Code of Conduct.
In addition, it will be a breach of the Code of Conduct for an APS employee, prior to their engagement, to have:
- knowingly provided false or misleading information
- wilfully failed to disclose information that the person knew, or ought reasonably to have known, was relevant
- failed to behave honestly and with integrity.
Australian Public Service Commissioner
The Amending Act also endeavours to clarify the role of the Australian Public Service Commissioner as the main authority for the development of the APS. This is achieved through the delineation of general and specific functions for which the Commissioner is responsible.
Relevantly, a new section 41(2)(n) of the PS Act charges the Commissioner with the function to inquire into and determine whether an APS employee or former employee has breached the Code of Conduct. The process for an inquiry is set out in a new section 41B of the PS Act, which allows for an inquiry to be held if the Agency Head or Prime Minister requests the Commissioner to do so. Section 41B also requires the Commissioner to establish publicly available written procedures for such inquiries, which must have regard to procedural fairness. These procedures may vary across different categories of APS employees. The results of inquiry must be reported to the Agency Head and, if relevant, the Prime Minister. The report may contain a recommended sanction, to be imposed by the Agency Head.
The Amending Act also introduces two new reviews of the APS, which the Prime Minister can direct the Commissioner to conduct. First, the Prime Minister (either of her own motion or based on a request from an Agency Head or Secretary of a Department) can direct a systems review to be conducted, which will address management and organisational systems of an Agency, or the relationship of two or more Agencies. Alternatively, the Prime Minister may direct a special review be conducted into any matter relating to an Agency, including its relationship with other Agencies.
These inquiry and review powers, which are in addition to existing powers exercised by Agency Heads, will, if utilised, provide an additional level of overview of conduct of current and former APS employees.
Ahead of the commencement of the changes, Agencies should ensure that:
- Internal policies and procedures are updated to reflect the new provisions and the amendments to existing provisions, and
- Employees are informed of the changes and adequate training has been offered to ensure that employees understand their new obligations.
Norton Rose can assist Commonwealth Government Agencies to get ready for the commencement of the PS Act changes through the provision of pro-active and strategic advice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.