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Nebulous APS values and skyrocketing breaches a worrying slippery slope

According to the Australian Public Service Commission’s latest State of the Service Report, the most common form of suspected misconduct by Commonwealth public servants was a failure to uphold APS values and employment principles and the integrity and good reputation of the service. In 2013-14, 441 employees were investigated for suspected breaches of this code of conduct section, a 43% increase on the previous reporting period. The vague and aspirational nature of many values and employment principles makes this statistic a cause for concern.

Section 13 of the Public Service Act 1999 establishes the APS code of conduct, mandating that public servants must do everything from acting with care and diligence to complying with lawful and reasonable directions. Subsection 11(a) relevantly requires that “an APS employee must at all times behave in a way that upholds the APS values and APS employment principles.” These values include acting ethically, impartially and respectfully, while the employment principles dictate effective performance, meritorious promotion and diverse workplaces.

These values and employment principles are particularly significant because, unlike much of section 13, they are not limited by a necessary “connection with employment” but instead must be observed “at all times”. If this phrase were to be given a strictly literal interpretation, it would require public servants to act in accordance with such strictures 24 hours per day, seven days per week and 365 days per year.

” … APS values and employment principles are nebulous and appear difficult to enforce directly against individuals.”

The scope of these provisions was considered, albeit not conclusively, in the recent Fair Work Commission decision of Cooper v Australian Tax Office. There, the applicant’s employment had been terminated for failing to uphold the (since amended) value 10(1)(d): “that the APS has the highest ethical standards”, and remedy was sought under the Fair Work Act 2009′s unfair dismissal protections. Cooper had been convicted of “indecency on a person who was under 16 years-of-age outside of Australia”, a conviction which the ATO submitted was in conflict with the “ethical standards and good reputation of the APS.”

At first instance, deputy president Lawrence agreed with the Commonwealth, finding that the various sections referenced above create “an overriding obligation, not just in work time or workplaces, for an employee to behave with the highest ethical standards so the APS’s reputation is maintained.” Accordingly, he held that Cooper was in breach of the code, and it followed that his dismissal was not harsh, unjust or unreasonable.

On appeal, Cooper alleged that this decision gave a literal meaning to “at all times”, in doing so “greatly increasing the scope of a public sector employer’s ability to intrude into the private lives of public servants.” Moreover, he alleged that the Values should not be construed as applying to individual public servants, but are “merely declaratory of the ethical standards held by the APS as an organisation.”

While the full bench declined the application for permission to appeal on other grounds, it did briefly consider these arguments. Justice Ross, vice president Hatcher and deputy president Gostencnik observed that “the broad construction … might not be correct having regard to the text of the provisions themselves and the legislative context … However, it does not follow that this case is an appropriate vehicle through which to review the scope and proper construction.”

Many of the APS values and employment principles are nebulous and appear difficult to enforce directly against individuals. Suggesting that a public servant must, at all times, respect “all people, including their rights and their heritage” might sound desirable in theory, but an expansive interpretation would extend the Commonwealth’s reach into the homes and private lives of its employees.

It does not seem unreasonable that a person with Cooper’s conviction should be terminated from APS employment. This conclusion is only strengthened by deputy president Lawrence’s observation that his “conduct was incompatible with the employee’s duty as an employee especially as his position involved supervision of other employees.”

Yet it remains regrettable that the full bench declined to determine the broader issue, regardless of the unsavoury facts. In the course of their employment, public servants should act in accordance with the relevant values and employment principles, to protect their agency’s integrity and ultimately uphold the good reputation of the service. But punishing an employee for breaching nebulous aspirational provisions, particularly if such allegations stem from conduct occurring outside work hours and away from the place of employment, is a very slippery slope indeed.

Read more at The Mandarin: Public servants and free speech: knowing when to shut up

Author Bio

John Wilson

John Wilson is the managing legal director of Bradley Allen Love in Canberra and an accredited specialist in industrial relations and employment law. He has twice appeared on the Best Lawyers list, and has an extensive public sector employment practice.