Nebulous APS values and skyrocketing breaches a worrying slippery slope

The expansive potential breadth of the APS values is a troubling slippery slope, especially in light of recent APSC data showing a sharp rise in breaches. Employment law director John Wilson explains his concerns:

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.”

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