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Public Sector Informant: APS agencies are reaching into the ...
A SIGNIFICANT distinction between public and private sector employment is the extent of legally-permitted intrusion into
an employee's private life. Absent conduct so severe as to destroy the employment relationship, a private sector employer
cannot regulate what an employee does in their own time.
While this principle has suffered some erosion in the past two decades, the words of now-Fair Work Commission President Iain
Ross in 1998 remain good law: "employers do not have an unfettered right to sit in judgment on the out of work behaviour of
their employees. An employee is entitled to a private life."
Public servants are not so fortunate. It has long been recognised that public service employment has particular status and significance which justify more expansive regulation. Hence various provisions of the Australian Public Service Code of Conduct
are expressed to apply "in connection with APS employment" or even "at all times".
Clearly, these empower public sector agencies to regulate the out-of-hours conduct of public servants to an extent. However, the exact scope of that regulatory authority remains somewhat uncertain.
This is problematic because, in our experience, APS agencies tend to err on the side of over-reach. We have acted in many cases
where the entirely private conduct of a public servant suddenly finds itself under the Code of Conduct spotlight. Agencies seem to think that "at all times" literally means 24 hours a day, 365 days a year.
This is not a peculiarly federal phenomenon, either. In late April,The Age reported on the case of Mike Davis, a Victorian public servant who had been threatened with sanctions for running a podcast in his own time.
His agency claimed that Davis' podcasting might constitute a breach of the Victorian Code of Conduct and its outside employment
policy. Davis ultimately resigned, unwilling to tolerate such a gross intrusion into his private life.
Fortunately for public servants, there are some green shoots from within the law. In the 2016 case of Starr v Department of Human Services, a Fair Work Commission member reinstated a Centrelink employee fired for anonymous online commentary.
The decision was unusually strident:
I reject completely the proposition that the
APS value in s.10(3) ("The APS respects all
people...") is to be read, in conjunction with
s.13(11)(a), as requiring all members of the
APS to be "respectful" at all times outside of
working hours, including in the expression of
their attitude to the government of the day. It
would require express and absolutely unambiguous
language in the statute to justify the
conclusion that such a gross intrusion into
the non-working lives and rights of public
servants was intended.
Another win for the position that "at all
times" does not literally mean "at all times"
came from an unlikely source: the federal
government itself. In the case of Comcare v
Banerji, involving a tweeting public servant,
the Code's proper construction was at issue
before the High Court. Intervening in the
case, Western Australia proposed an expansive
interpretation: "the words are emphatic
in referring to 'all times'".
Worried about the constitutional
implications of this stance, the federal
Attorney-General proposed a narrower
interpretation in written submissions.
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