What new public servants need to know about their rights

Now that a new cohort of graduate have their feet under the desk, we thought it would be timely to provide a primer on APS employment law. What are the things public servants - both new and old - need to know about their workplace rights and obligations?

Commonwealth public servants are employees under the federal employment law regime. This means workplace rights applicable to other Australian workers, in the private sector, are equally applicable here. Public servants are entitled to the benefits in the Fair Work Act's national employment standards - core conditions around leave, work hours and so on - plus protection from adverse action, unfair dismissal, bullying and sexual harassment.

In addition to these foundational rights and protections, the content of any department's workplace arrangements will typically be found in its enterprise agreement. These documents contain some core conditions across the APS, and then department-specific conditions negotiated between the agency and its staff. Departments will also have policies and procedures - some unique, some common under guidance from the Australian Public Service Commission (APSC).

The unique aspect of federal public service employment, though, is that it is underpinned by its own statute: the Public Service Act. This sets out a public servant's obligations, including under the APS code of conduct.

The code is at the heart of a public sector employment, and its requirements should be known by all public servants. It requires public servants to behave honestly and with integrity, to avoid conflict of interests, to comply with lawful and reasonable directions, to treat everyone with respect and courtesy and without harassment. Most parts of the code of conduct are said to apply "in connection with APS employment" - some claim to apply "at all times", although there is some dispute as to whether that literally means 24/7/365.

Failure to comply with the code can lead to an investigation, disciplinary action and even dismissal.

Another consequence of the distinct nature of public service employment is that decisions relating to employment - to terminate a public servant's employment, to suspend them or demote them - are reviewable under ordinary administrative law principles. So a public servant unhappy with their treatment not only has internal review avenues (such as to the merit protection commissioner) and protections under the Fair Work Act, but can also seek judicial review of an adverse decision under traditional principles - arguing, say, that a decision was made without procedural fairness.

A common issue we see in practice is public servants unsure of their rights and obligations around free speech and political activity. In the digital age this can often manifest through concerns about social media posts, but there can also be questions about participation in political parties, door-knocking and so on.

The code of conduct provides that "at all times behave in a way that upholds ... the integrity and good reputation of the employee's agency and the APS". Public servants are also required to uphold the APS Values, which includes impartiality - "the APS is apolitical".

For most of last decade, many APS agencies took a hard-line stance - with a number of public servants losing their jobs or facing sanctions for political activity. The issue ended up in the High Court in the Banerji case, where the judges gave the APS some latitude in their approach to ensuring political impartiality.

Fortunately, in recent years the APSC has adopted a more balanced approach. Key factors to consider, which were endorsed by the High Court, include the seniority of a public servant, the connection between the commentary or political activity and the public servant's APS role, whether the conduct was public or private and the nature or tone of the comments.

The APSC currently offer a helpful case study of a public servant sharing a meme of a political leader in a clown outfit, with text stating: "Elect a clown, expect a circus." For a junior employee, such a comment might warrant no more than an informal discussion; for a senior public servant, working at a central department that interacts with the Prime Minister's Office, it could be a code of conduct breach.

The lack of clarity in this area can be difficult for public servants, and there is an unfortunate risk of self-censorship. But the law, and new APSC guidance, is clear that public servants are not second-class citizens, and are entitled to participate in political life provided it doesn't undermine public confidence in the impartiality of the public service.

Federal anti-discrimination law provides protection against discrimination on the basis of sex (including sexual harassment), age, disability and race. Since legal changes last year, APS agencies now have a positive duty to actively prevent and address sexual harassment and sex discrimination. Unlawful discrimination can take a range of forms, both direct and indirect - workers who feel they have been disadvantaged as a result of these protected characteristics should seek advice about their rights.

Befitting the democratic importance of transparency and accountability, public servants are protected to speak up about wrongdoing in the workplace. The Public Interest Disclosure Act provides mechanisms for APS employees to call out wrongdoing - illegal conduct, corruption, maladministration, abuses of public trust, conduct that endangers health, safety or the environment and more - through defined channels. Workers can speak up internally, to a supervisor or an agency head, or in some cases to oversight agencies (such as the Ombudsman) or even the media.

Whistleblowers who speak up pursuant to the PID Act are protected from retaliation - it is unlawful to take a reprisal against a whistleblower, and whistleblowers who face detriment can bring a claim for compensation. The PID Act also provides for processes agencies must follow in investigating information brought to light by whistleblowers. Reform is on the horizon, too - the government is currently consulting on a major overhaul of the PID Act to ensure it better protects whistleblowers.

Many public servants will never encounter the legal issues we write about above. Those individuals are fortunate - it is never pleasant to navigate the employment law system. But all public servants benefit from knowing their workplace rights and responsibilities. We wish the graduate cohort of 2024 all the best for a long and fulfilling career in the public service.