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 in spite of outdated laws

Last Updated: 11 August 2016
Article by Jennifer Wyborn and Lauren Haywood

Most Read Contributor in Australia, August 2016

"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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.