It is commonplace to hear a colleague complain that they are overworked. "I'm so stressed", "I'm overwhelmed", "I have too much to do" - we are probably all guilty of expressing such sentiment from time to time. In the digital era, employees in the public and private sector struggle with the ever-increasing demands on their time.
The inverse feeling, of having too little to do, is less commonly expressed out loud. With modern work culture treating busyness as a status symbol, admitting to being idle in the workplace can feel almost blasphemous. But for every employee pulling long hours and sacrificing sleep, there is another monitoring their email for something, anything to do. Just as being overworked can impact an employee's mental and physical wellbeing, so too can underutilisation.
Workloads in many organisations, including Australian Public Service agencies, ebb and flow. There is nothing necessarily malicious or inappropriate about having an employee sit on their hands for a day. But a recent court decision in France has highlighted the insidious practice of deliberately underworking staff. Much discussion of case has resorted to the usual French stereotypes. But clichés aside, the judgment provides useful insight for all managers.
In 2014, Frédéric Desnard was working as a manager at Interparfums, a perfume company. He claimed that the employer began deliberately giving him minimal work, other than menial tasks below his level, in an attempt to force him out without paying severance. This tactic has its own name in French: la mise au placard, literally "putting an employee in the cupboard". Mr Desnard subsequently sued, arguing it constituted workplace bullying and caused a work-related illness.
Last month, the Paris Court of Appeal upheld his claim and awarded A$80,000 in damages. The court likened "bore-out" to "burn-out", and accepted that it amounted to bullying. Boredom, it seems, is now a workplace illness.
It is unlikely that we will see a sudden increase in Comcare claims for workplace boredom in the APS (particularly given, as is probably self-evident, French legal decisions have no influence here). But the case underscores a number of important points that are just as true in Canberra as they are in Paris.
Firstly, work allocation is an important managerial responsibility, with potential legal consequences. Giving someone too much work can constitute bullying, as can giving someone too little work. This is certainly the Fair Work Commission's position: among the examples they provide as part of the anti-bullying jurisdiction are "unreasonable work expectations, including too much or too little work, or work below or beyond a worker's skill level".
Secondly, employees are entitled to a certain quantity and quality of work, commensurate with their position and experience. Here the law is somewhat more complex. It was once the case that provided employees were paid, they had no expectation of actual work. As a British judge quipped, "Provided I pay my cook her wages regularly, she cannot complain if I choose to take any or all of my meals out". There were always exceptions to that general position, such as for athletes and actors where the performative element of the work was critical to the role, or where employee remuneration was performance-based.
But in the modern employment law context, the rule seems entirely outdated and is probably no longer correct. In 2005, several members of the High Court queried the enduring applicability of historical British jurisprudence on the matter. They observed: "It may be that in modern times, a desire for what has been called 'job satisfaction', and a need for employees of various kinds, to keep and to be seen to have kept their hands in by actual work have a role to play in determining whether work should in fact be provided."
Particularly in the APS, with detailed job responsibilities, explicit performance metrics and frequent performance monitoring, employees are likely entitled as a matter of law to substantive work. Sometimes, of course, that work might not be on hand - managers are not required to "find" work from thin air. But an ongoing inability to provide work to a public servant could mean that the APS is in breach of contract.
Thirdly, the APS Code of Conduct demands effective utilisation of public servants. This has a number of consequences in the present context: managerial bullying in the French placard style would almost certainly be in breach of the Code, but equally even inadvertent, non-malicious failures to provide sufficient work could be problematic.
The Code requires APS employees to "act with care and diligence", "use Commonwealth resources in a proper manner and for a proper purpose" and comply with the APS Values and APS Employment Principles. Among the APS Values is "committed to service", including that "the APS is professional, objective, innovative and efficient"; the APS Employment Principles, meanwhile, require "effective performance from each employee". Not only do these various provisions compel APS managers to properly manage staff workload, but they could also ground a legitimate grievance from an underutilised staff member: it is hard for a public servant to comply with these obligations if they are given no work.
Finally, the French decision reminds us that for many people, work is about far more than a pay cheque. Our modern employment system has evolved considerably from its origins, and what we actually do at work is now often as important as where we work or how much we are paid. As a Parisian lawyer told Law.com: "My clients who have experienced the 'placard' have taken it very poorly to have their company say, essentially, 'we can do without you'. People who think they are overworked might find the idea of having less to do very attractive. But in fact, psychologically, being asked to do too much can be better than not enough."
The plight of Mr Desnard might give us all reason to pause next time we complain about having too much to do. The challenge for any manager, in the APS or elsewhere, is to find the right balance for staff: neither over-worked nor under-worked. That will not always be easy. But if we fail to achieve it, the law may prove unforgiving.