Lloyd makes calls on free speech and union-bargaining policies

By Stephen Easton

Wednesday February 28, 2018

The Australian Public Service Commissioner has provided a new practical example of how the rules on public commentary operate: if a member of parliament mentions you personally, you have a lot more freedom to opine on them in return.

As expected, shadow special minister of state Penny Wong picked up where she left off in the last round of Senate estimates, quizzing commissioner John Lloyd and his corporate affairs group manager, Clare Page, about why they had not provided a series of emails she asked for last time around.

Wong clearly suspects those emails contain examples of Lloyd saying inappropriate things to his friends at the Coalition-aligned Institute of Public Affairs. Part of the excuse for not providing them was that IT issues made it impossible to access archived messages for several months last year, while Lloyd also claims the request would unreasonably divert resources.

As it stands, what Lloyd has already said to the IPA contact — about a record of a press conference where Wong “takes a swipe” at two of the IPA’s former directors — is hardly the insult of the century. Lloyd claims that since the opposition senator had “cast aspersions” on his appointment, commenting on this with his friend did not breach the very strict social media policy.

Lloyd told Senator Jenny McAllister that “sharing information about comments that are made about you personally publicly, and at times commenting on that” was appropriate for public servants, even using the office email.

McAllister read from the policy: 

“Public servants may participate in public debates about important public issues … This does not equate to a right to attack other people personally. If you make personal comments about the character or ability of other people, including members of the parliament, you immediately raise the risk that you have breached the Code as well as opening the door to those people taking legal action against you.”

The commissioner confirmed that in his view, he had “met that test” in the email.

We also learned from the same hearing that the government has no preference for either enterprise bargaining agreements (EBAs) or individual flexibility arrangements (IFAs), an option that opposition senators were reminded was added to the industrial relations framework when they were last in power.

Nothing should be read into the omission from the recently updated APS enterprise bargaining policy of a previous statement that terms of employment should normally be set via EBAs, according to the former minister responsible for the public service, Michaelia Cash, who stood in for current minister Kelly O’Dwyer.

The only reason for updating the policy, in fact, was to explain new arrangements that allow the trading of certain entitlements for each other.

Lloyd said the rather brief passage confirming that conditions are generally set through EBAs was “almost a statement of fact” that was removed to stop the policy becoming too long. He had received no direction from any minister or minister’s office to take it out.

A new set of “bargaining policy Q&As” that came out at the same time as the policy was also entirely the ASPC’s work, he explained, requiring no minister’s approval.

The commissioner said comments he made to The Australian did not mean he preferred IFAs to EBAs, contrary to what those from the Labor side of politics thought, just that he “wouldn’t mind” if agencies started using individual common-law arrangements more often, or even for all of their staff in the case of smaller entities.

The article, Federal government agencies to dodge union deals, certainly makes the claim that the new policy encourages agencies to consider whether they can avoid dealing with unions more often. But Lloyd also told the paper this would be unlikely to happen in larger agencies, where unions would no doubt oppose the move.

“Like any employer in Australia, they can choose, but most are, of course, under enterprise agreements and will continue under enterprise agreements, but those other options are available,”  Lloyd said in estimates.

“And of course an IFA operates in conjunction with an enterprise agreement, generally.”

According to Cash, “The government’s position is that employees and their employers should choose the appropriate form of employment.”

This was an “odd exercise in semantics” in McAllister’s view. She argued the proposition that there had been “no change in the government position in relation to bargaining” was illogical, since the statement suggesting EBAs were the norm had been removed from the policy.

“The government has gone out of its way to change the bargaining framework to remove a preference for enterprise agreements, but you’re saying to me that that has no practical significance,” she said.

“That is correct,” Cash replied.


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