EMPLOYMENT ISSUES

The Commonwealth’s legal framework for employing people is based on three key pieces of legislation:

the Public Service Act 1999
the Public Service Regulations
the Workplace Relations Act 1996.

The Public Service Act provides the general framework for the employment of people who work in three types of Commonwealth agencies:

Commonwealth departments
statutory agencies who employ under the Public Service Act (not all of them do)
executive agencies (created under the Public Service Act).

Heads of these three types of agencies have responsibility for actually engaging Australian Public Service (APS) employees. When they employ people under this Act, they employ them on behalf of the Commonwealth rather than on their own behalf. This means people are employed in APS agencies and are not employees of APS agencies. They are all employees of the Commonwealth.

Section 6 of the Public Service Act states that all people engaged as employees in a department or executive agency must be engaged under the Public Service Act or under the authority of another Act.

A few statutory bodies can employ staff under the Public Service Act and under their own legislation. Examples are the Australian Securities and Investments Commission and the Australian Bureau of Statistics.

Wider public sector employment

Public sector employment does not stop at the APS. Many government bodies and government business enterprises employ staff on their own account, not on behalf of the Commonwealth.

These will usually be bodies that have their own corporate identity. They also usually have a legislative power to determine their employees’ terms and conditions of employment.

Some features of APS employment

Employment is based in contract and statute

APS employment is now generally regarded as being contract-based as well as statute-based. So it is generally accepted that there is a contractual relationship between each APS employee and their employer – the Commonwealth. But the contract of employment must be consistent with any statutory provision that affects the relationship.

This position has probably been made clear by section 20 of the Public Service Act, which says an agency head has, on behalf of the Commonwealth, all the rights, duties and powers of an employer in respect of APS employees in their agency. Before the commencement of this provision, the employer role was fulfilled by the Public Service Board and the Public Service Commissioner. A consequence of this provision is that common law employment contract principles apply to public sector employment relationships, at least to the extent that they do not conflict with statutory provisions.

The agency head and the minister

Secretaries of departments are, under their minister, responsible for managing their departments (see s 57 of the Public Service Act). The same applies for the heads of executive agencies (see section 66). Responsibilities of heads of statutory agencies are generally set out in the legislation establishing the relevant agency.

Section 19 of the Act makes it clear that an agency head is not subject to the direction of a minister in relation to the exercise of staffing powers under the Act.

Departments of state are not created by the Public Service Act. Their existence is assumed by the Act. By contrast, executive agencies are established under the Public Service Act, and statutory agencies are established under separate statutes.

Engagement and dismissal

The Public Service Act has specific provisions relating to the engagement of employees. Engagement decisions must be based on the merit principle and follow merit requirements in the Public Service Commissioner’s Directions.

There are also specific provisions relating to termination of employment. An ongoing APS employee may only be dismissed on one of the grounds specified in the Act. Termination on Code of Conduct grounds must be in accordance with published procedures. Termination of APS employment is generally subject to the unfair dismissal jurisdiction of the Australian Industrial Relations Commission under the Workplace Relations Act.

General workplace relations framework

APS employment now operates within the wider workplace relations framework that applies to employment in Australia. In general, the Workplace Relations Act 1996 governs APS employment.

Most APS agencies have in place one or more collective agreements (or certified agreements pre-March 2006) made under the Workplace Relations Act. These collective agreements set out terms and conditions of employment of their APS employees. Most APS agencies also have individual arrangements covering some of their employees. Usually, this is done by a combination of an individual contract supplementing the terms of the underlying contract, and a determination by the Agency Head under s 24(1) of the Public Service Act supporting that supplementary contract. Former arrangements involving Australian Workplace Agreements have now all been replaced as a matter of government policy.

Several industrial awards under the Workplace Relations Act apply in the APS. The most significant of these is the APS Award 1998 (now modified by the Work Choices legislation). The APS Award has little effective operation because most certified agreements in the APS (as a matter of their drafting) and all Australian workplace agreements (as a matter of law) operate to the exclusion of the applicable awards. Any new workplace agreements made by an agency from the commencement of the Work Choices Act on 27 March 2006 entirely exclude the APS Award.

A party to an award, a certified agreement, a collective agreement or an Australian workplace agreement must comply with its terms. An agency that fails to comply with a term of any of these instruments that applies to it can be sued under section 179 of the Workplace Relations Act.

APS agency heads have a power under section 24 of the Public Service Act to determine the terms and conditions of APS employees in their agency. A section 24 determination may not reduce the benefit to an employee of any award or collective agreement term or condition. Collective agreements cannot override any other provisions of the Public Service Act or the regulations.

Main functions of the Public Service Commissioner

The Public Service Commissioner guides, supervises and monitors the APS. The Commissioner issues binding directions in relation to the administration of various parts of the Public Service Act. She is responsible for moving employees between departments and agencies where there is a machinery of government change. She also has some special responsibilities for senior executive service employees and agency heads, and for monitoring the state of the APS.

More information

For more information on employing people in the public service, contact:

Leah Edwards
T 02 6253 7090 | F 02 6253 7304

Jim Heard
T 02 9581 7477 | F 02 9581 7650