Special treatment? PC papers start workplace reform debate

By Stephen Easton

January 27, 2015

The Productivity Commission will consider whether public servants should be treated differently to other types of workers in its industrial relations inquiry, which kicked off Thursday with the release of five issues papers.

In a brief section on public sector workplace relations (WR), the commission poses two questions to guide submissions ahead of the release of a draft report in June or July:

“How should WR arrangements in state and public services (and any relevant state‑owned enterprises) be regulated? In particular, to what extent and why, should WR provisions vary with the public or private status of an enterprise?”

Giuseppe Carabetta
Giuseppe Carabetta

Public sector employment law expert Giuseppe Carabetta says he’s pleasantly surprised to see the PC “making all the right noises” about the topic, which has rarely been the subject of public debate in the past.

“I think that there should be variation [in public and private sector workplace relations], but the million-dollar question is: how much variation, and how do you actually achieve it?” the University of Sydney academic told The Mandarin.

While the public sector questions are far from the biggest to be considered by the PC, Carabetta believes Australia is overdue for a national debate about them.

“What really, really caught my attention is it’s talking about the constitutional limitations and uncertainty when you’ve got potentially a federal law regulating state public servants,” he said. “Now at the moment that only applies to Victoria, but that grabbed me in particular, because that’s going to be an issue if — and I think it’s politically unlikely — but if any of the other states decide this is too expensive to run, this tribunal system, just for [their] workers, and they follow Victoria, then you’ve got that same issue.”

The PC also acknowledges the extra layer of administrative law that applies to public sector work, the fact that governments retain authority over the kinds of enterprise agreements individual agencies can make, and that “management control in the public sector is less clear‑cut than in the private sector”. It notes that the same workplace relations laws could have different effects in the two different contexts, and suggests:

“Reforms to the WR system applying to the private sector may need to be accompanied by complementary measures (for example in administrative law, codes of conduct or long‑held work cultures) to realise the benefits for the public sector.”

Carabetta was encouraged to see the issues paper raise the possibility of special arrangements for public servants. “Whether we’ll actually see anything on that front, I don’t know, but I find that really promising and, in fact, I’m looking at making a submission on that basis,” he said.

“[In] the Commonwealth system, I think you really need to start looking at whether we need to have special arrangements for bargaining [and] whether we need to change the rules on the limitations on arbitration, particularly for the police and other emergency services.”

Conflict and the productivity conundrum

He also looks forward to public discussion of other key issues, like the conflict between government’s roles as workplace relations policymaker and major employer, as well as the long-standing problem of measuring public service productivity. The issues paper acknowledges that:

“Accordingly, arrangements in the WR system aimed at improving productivity in the private sector might not always be easily transferable to the public sector.”

Carabetta says the PC’s declaration that it is open to “lateral suggestions so long as they are practical, beneficial and backed by solid evidence and argument” and ideas from overseas is also “promising”. But he cautions that with the best part of a year before the inquiry’s final report in November, now is not the time to get “carried away”.

PC chair Peter Harris has promised its approach will be “open-minded … evidence-based and impartial” as the government’s opponents stoke fears that some elements of the unpopular WorkChoices system could return. Monash University management professor Greg Bamber says the WorkChoices experience has another lesson for Commonwealth public servants: they could be the first to experience any changes.

“When WorkChoices was introduced by the Howard government, the federal government agencies and federal government departments were obliged to apply the regime to a very high degree,” he explained.

“There have been tendencies in Australia for governments of different persuasions to politicise the public sector …”

“Whereas, in other jurisdictions, in the private sector and so forth, many employers chose not to take advantage of the full extent of that legislation, on the grounds that, in some cases, they wanted to retain good relations with their workforce …

“The only places that it ever really did apply to the very full extent were in the federal public sector because they were under the immediate control of the government. Even in Victoria [which uses the federal industrial relations system], the state government can decide to what extent, within limits, that they wish to enforce or apply current federal government policy.”

Bamber doesn’t think public servants are a high priority for the inquiry, but believes one of the best lessons government could learn from overseas is to stop politicising the public service.

“There have been tendencies in Australia for governments of different persuasions to politicise the public sector and this has led them to be pretty tough when it comes to changes of government, in wanting to change personnel,” he told The Mandarin.

“In my view that’s a regrettable tendency, and government and the public would be better served by retaining the Westminster tradition of having a de-politicised public service which can serve the government of the day, in an honest, conscientious way, whatever that government might be trying to implement in terms of policies.”

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