Ancient Greek mythology is filled with stories of multi-headed monsters battling to the death with the heroes of the age. The chimera, Cerberus and, perhaps most famous of them all, the Hydra are just some examples. Fortunately, these monsters are confined to legend.
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Unfortunately, the multi-headed monsters of modern employment law are well and truly alive and breathing. One of the nation's largest employers, the Australian Public Service, is perhaps the best and most confusing example.
Sometimes, the Commonwealth is treated as the sole employer of all public servants. But other times, each department and agency appears to be treated, for all intents and purposes, as separate employers. However, unlike the legends of ancient Greece, it is public servants (and their lawyers) who confront the Commonwealth and its multiple heads of departments and agencies – not mythical heroes.
This raises the question: should the Commonwealth be treated as a single employer, or are each of its departments and agencies individual employers in and of themselves?
The uncertainty surrounding the Commonwealth's status as an employer is not of purely academic concern either – it has led to concerning inconsistencies when it comes to the treatment of the Commonwealth in employment matters and disputes.
For example, I have written previously on the right of all government departments and agencies to be represented in the Fair Work Commission by the Australian Government Solicitor under the in-house counsel exception. This relies on the Commonwealth being treated as the sole employer of the entire APS.
Meanwhile, the Commonwealth has successfully defended Fair Work Commission applications for public servants to be reinstated or transferred to different departments by arguing that to do so would be unreasonably disruptive. Here, focusing on the differences between each department.
So is the Commonwealth one employer or many?
The relevant legislation, the Public Service Act and the Fair Work Act, provides some guidance. Section 22(1) of the Public Service Act provides that an "agency head, on behalf of the Commonwealth, may engage persons as employees for the purposes of the agency". Meanwhile, section 14(1)b) of the Fair Work Act provides that the "Commonwealth" is a national system employer for the purposes of the act, not its various departments and agencies.
You would be right to think this suggests that all public servants are employed by a single employer: the Commonwealth of Australia. Indeed, this position was adopted by the Fair Work Commission's full bench in the case Gibbens v The Commonwealth. Here, the commission found that Gregory Gibbens, a former border security officer at Perth Airport (and, by analogy, all other APS employees engaged under section 22 of the Public Service Act) was an "employee of the Commonwealth" and not of an individual department.
The Commonwealth takes full advantage of this during enterprise-bargaining negotiations – seeking common terms between enterprise agreements for each of its departments. Were each department treated as a different employer, seeking common terms for enterprise agreements covering each department would likely fall under the definition of pattern bargaining in section 412 of the Fair Work Act. No prizes for guessing the government's opinion of unions engaging in pattern bargaining: Parliament enacted section 422 of the Fair Work Act, which authorises the Federal Court and Federal Circuit Court to issue injunctions to stop them.
None of this is necessarily problematic. In fact, treating the Commonwealth as the sole employer of public servants is probably consistent with the Public Service Act, the Fair Work Act and the description of executive government in the Australian constitution.
But what happens when a public servant seeks reinstatement in an unfair-dismissal application? Or when a public servant asks to be transferred to a different department following incidents of bullying or harassment? In other words, what happens when it is the public servant who is arguing that the Commonwealth should be treated as the sole employer of all public servants?
Let me give you some examples of when this could happen.
Can a public servant employed by the Treasury ever be genuinely redundant if they could reasonably have been redeployed to the Finance Department? Given the Commonwealth is treated as the sole employer of all public servants, section 389 of the Fair Work Act suggests not. Arguably, the public servant could have been "redeployed within ... the employer's enterprise".
Alternatively, is reinstatement to APS employment really inappropriate after an irreparable breakdown in the employment relationship between a public servant and a department if they could simply be reinstated into a different department instead? Again, given the Commonwealth is taken to be the sole employer of all public servants, arguably a loss of trust between one department and the public servant should not preclude reinstatement to Commonwealth employment in a different department.
In my experience, the Commonwealth will often vigorously (and successfully) oppose the reinstatement or transfer of a public servant to another department on the basis that to do so would be disruptive. This is like the Commonwealth asking the Fair Work Commission to focus on the differences between the Hydra's heads, and ignore the fact that they all belong to the same monster.
It is therefore unsurprising that former fair work commissioner Barbara Deegan observed "there is a very good argument that the Commonwealth can't have it both ways". On one hand, the Commonwealth argues it is the employer of all public servants and, on the other, it seemingly rejects the implications arising directly from this.
Of course, the Commonwealth is entitled to defend itself as robustly as public servants are entitled to prosecute their cases against it. Sometimes, that could mean adopting inconsistent positions.
However, there will come a time, if it hasn't come already, that the Commonwealth should be treated consistently. Just as there is no place for the multi-headed monsters of Greek mythology in the modern world, there should be no place for them in modern employment law either.
John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. He thanks his colleague Robert Allen for his help in preparing this article. john.wilson@ballawyers.com.au
