The Public Service Amendment Act 2013, which takes effect on July 1, makes significant changes to the Public Service Act 1999, including to its code of conduct.
One of the changes to the code is that its first four elements have been altered so that they apply "in connection with" an APS employee's employment, instead of only "in the course of employment". From July 1, the code will provide:
The Public Service Commission says this about the change:
This amendment was designed to give agencies greater clarity and confidence when considering suspected breaches of the code which occurred outside work hours and away from the conventional workplace. For example, the amendment should provide more certainty when dealing with suspected breaches that occurred on work-related travel or training, and will reinforce the need for public servants to remember the code of conduct when they are, for example, posting comments about their workplace or colleagues on social media forums.
However, at the same time, public servants are entitled to a private life and the amendments are not intended to allow the code to regulate every aspect of that private life.
This broader-reaching obligation on APS employees contrasts with the "code" applicable to ACT public servants under the territory's Public Sector Management Act 1994, which only applies to an ACT public servant's conduct "in performing his or her duties" – and, therefore, on its face, appears only to apply to at-work, and not outside-of-work, conduct.
Courts and industrial tribunals have, for some time, recognised that employers, including the Commonwealth, are able to regulate the conduct of their employees "outside work hours and away from the conventional workplace". Indeed, as Justice Finn of the Federal Court pointed out in 1996 in McManus v Scott-Charlton, public service legislation in Australia has, for "public interest" reasons, imposed strictures and limits on the "private" conduct of public servants since 1862.
As to when outside-of-work conduct may be said to be "in connection with" employment is succinctly summarised in a 1998 decision of Vice-President Ross of the Industrial Relations Commission in Rose v Telstra, which has been applied by that tribunal and its successors (now the Fair Work Commission) ever since.
The principle is that out-of-work conduct will only be seen to be "in connection with" employment if it:
"In essence," Ross said, "the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee." In the public sector context, one might also add rejection of the APS employee's statutory duties as found in the Public Service Act.
However, the point is that it is a fairly high test. As Finn observed in McManus: "I am mindful of the caution that should be exercised when any extension is made to the supervision allowed an employer over the private activities of an employee. It needs to be carefully contained and fully justified."
Much depends on what the APS employee is employed to do as to whether outside conduct has a relevant connection to his or her employment. For instance, a conviction for drink-driving outside of work ordinarily would not be relevant to the employment of many APS staff. It may well be, though, for APS staff employed as drivers. Similarly, whether an APS employee's involvement in theft outside of work had a "connection with" his or her employment would depend on the circumstances of their job. It may well if the APS employee was engaged in a position of responsibility, honesty and trust, particularly in handling money.
Indeed, McManus is a case in point. A male employee in a federal government agency made several unsolicited and unwelcome out-of-hours calls of a sexual nature to female colleagues. One of the women complained to the agency. The male employee was directed not to call the women. He disobeyed the direction. He was charged with, and found guilty of, a breach of the Public Service Act 1922, which required public servants to obey "a direction given by a person having authority to give the direction". He sought to overturn the direction and the guilty finding.
However, even in that case, Finn did not find that the employee's out-of-work conduct was "in connection with APS employment". Rather, he only went so far as to determine that the agency's direction to the employee was "lawful and reasonable", and therefore was required to be obeyed, because, even if the outside-of-work conduct was not "in connection with" the employment, the agency nonetheless had a "legitimate interest" in addressing the behaviour because of its relationship to the employment and of its consequences in the workplace. As he put it:
... once an employee's conduct can be shown to have significant and adverse effects in the workplace – because of its impact on workplace relations, on the productivity of others, or on the effective conduct of the employer's business – that conduct becomes a proper matter of legitimate concern to an employer, and does so because of its consequences.
Thus, the agency was able to legitimately make a direction to the employee proscribing his private sexual conduct towards a colleague.
The Commonwealth, then, is able to regulate outside-of-work conduct that, strictly speaking, is not "in connection with APS employment", but nonetheless has a relationship to the employment or consequences in the workplace. And it may be a breach of the code for an APS employee to defy such regulation: section 5 of the code provides: "An APS employee must comply with any lawful and reasonable direction given by someone in the employee's agency who has authority to give the direction."
For those charged in agencies with considering the regulation of employees' outside-of-work conduct, the changes to the first four elements of the code should give rise to reflection on current written policies on the subject.
Caution will also have to be exercised by those charged with investigating breaches of the code to avoid overzealousness: it is a high test; most outside-of-work conduct that an agency will be "uncomfortable with" will not be "in connection with APS employment".
Nonetheless, for all APS employees, the changes to those elements should give cause to reflect on outside-of-work activities, because the application of the code to such conduct has certainly been extended.
John Wilson is the managing legal director of Bradley Allen Love Lawyers.
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