Australia: The innovative public sector workplace ... in spite of outdated laws

"Disrupting" public sector teams and creating true flexibility are incredibly challenging.

"Flexibility", "innovation" and "disruption" are the buzz words the Australian Public Service is currently grappling with. What they mean and how to achieve them are complex questions that agencies face in an uncertain budgetary environment. The answers, of course, are not so easily found.

How then do you begin to imagine the future of the public service, its workforce and its employees?

The APS is a heavily regulated sector steeped in history and tradition. There is legislation that governs how to hire, fire and manage people. Agencies also tend to have their own enterprise agreements, which regulate extra issues, such as core hours and conditions of employment, including where work is performed and the process by which such arrangements are altered.

Public service offices are traditionally steeped in piles of paper, managed with varying degrees of compliance with security protocols, such as "safe hands" delivery of Cabinet and other sensitive documents in a zipped bag. Communication systems, such as CabNet, the Secure Enclave and third-party secure email providers are cumbersome and difficult to navigate. The employment model is built around a culture of facetime and flextime as a way of monitoring performance.

Agencies have struggled with these concepts during enterprise agreement negotiations that require them to identify and cost productivity improvements. The Public Service Commission publication "Unlocking Potential" recognises the pressure on the APS and says "workforce practices must be flexible enough to allow agencies to continually challenge talented employees and respond quickly to changing business priorities".

The idea of "disrupting" public sector workplaces and creating workforce structures that are truly "innovative" and "flexible" is incredibly challenging. When considering innovative and flexible workplaces, most of us think of the stories told about Google, Facebook and Atlassian, where technology and on-site facilities mean there are no set working hours, staff are assessed on a results-only basis, work is performed wherever the employee wants to do it and the office is a paperless environment.

However, these flexible and innovative initiatives haven't always turned out to be the magic offering that earns an organisation both street cred and the title "employer of choice".

In 2013, a leaked memo to Yahoo employees revealed the company had decided arbitrarily to direct employees who had been working remotely to relocate back to Yahoo's facilities on the basis that "speed and quality are often sacrificed when we work from home". Yahoo took the view that to feel more like "one Yahoo", all employees needed to physically work together at the office.

Best Buy soon followed suit, ending its innovative and influential "results-only work environment" program in favour of a more conservative approach. Forbes also reported that Reddit ordered its remotely working employees to relocate to San Francisco, or risk losing their jobs.

Fast forward two years later, and it seems Yahoo has softened its stance, with employees reporting that they are indeed permitted to work from home occasionally, depending on their job.

So where does the happy medium lie?

In circumstances where public servants' working conditions are heavily prescribed - for example, various APS enterprise agreements dictate that the "standard hours of work are from 8.30am to 12.30pm and 1.30pm to 4.51pm", and that any variance in standard hours can only be agreed between an employee and their manager "in special circumstances" - finding ways to be innovative and encourage flexibility is challenging. "Results-only work environment" arrangements are undoubtedly difficult to implement in this kind of framework and likely out of the question.

Added to the mix are restrictions on the amount of flextime hours an employee can take at one time, how time-off-in-lieu entitlements accrue for executive level employees (the approach differs between agencies in both formality of arrangements and amount of time accrued) and a multitude of internal approval processes for working overtime.

The CSIRO report "Tomorrow's Digitally Enabled Workforce" identified technology as a key consideration when any workplace, public or private, is trying to plan for the future. However, it notes that a potential stumbling block is the cumbersome and at-times outdated nature of Australian workplace laws and says "existing regulations, laws and policies will have to be adjusted to keep pace with the changing workplace conditions and emerging issues". This is particularly so in the public service for reasons already noted.

Therefore, the most obvious starting point would be to remove the legislative impediments and amend enterprise agreements that dictate to workers when their standard hours are, in favour of a more malleable approach.

In the absence of such radical legislative change, there are small things agencies can do. Consider, for example, the difference between a "formal request" to vary hours and an informal flexible agreement between the manager and an employee on an ad hoc rather than ongoing basis. Such an approach might include allowing employees to set their start and finish times by agreement with their manager, without needing to satisfy any "special circumstances" requirements and provided they complete the required minimum hours each day.

But it's not just the employment framework that needs to be reconsidered to achieve flexible and innovative ideals.

Fundamentally, the Minister is the "client" of his or her portfolio agency. The Minister relies on advice from his or her agency to champion new policy initiatives and deliver budgetary measures that best serve Australia.

Prime Minister Malcolm Turnbull said recently in an address to the APS "[w]e want you to tell us what you believe is best for Australia, not what you think the adviser in your Minister's office wants to hear". Some may say this is easier said than done, depending on the adviser and their appetite for patience and openness.

In a heavily regulated environment built on history, bureaucracy and culture embedded in a certain way of doing things, initiatives such as improving technology, embracing diversity, streamlining processes and modelling good private-sector practice can only go so far.

True innovation will be achieved in espousing the Prime Minister's words such that it doesn't result in giving your portfolio Minister a heart attack. True flexibility is creating and empowering a workforce that is more focussed on objectives, outcomes and results than face-time (and flextime). "Disruption" is the process by which we get there without compromising the quality of service provided to the Minister's office.

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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