Public Service Act 1999 and Public Service Regulations 1999
Most people think that the Public Service Act 1999 (PS Act) and the Public Service Regulations 1999 (PS Regulations) are designed to protect APS employees from workplace bullying, harassment, victimisation and discrimination. Of course, on paper, this is a correct interpretation. Yet, the reality can sometimes be that the PS Act and PS Regulations are used as both a sword and a shield by perpetrators higher up in the APS hierarchy, leaving targets lower in the APS hierarchy astonished at their discovery that the source of protection they thought they could rely on rings hollow. When this happens, there are a number of options for targets to consider (which are discussed throughout the other pages of this website), but the first line of defence is to have confidence in your knowledge of the APS legislative framework.
The areas in the PS Act and PS Regulations that this page covers are:
The areas in the PS Act and PS Regulations that this page covers are:
- 1. APS Values
- 2. APS Code of Conduct
- 3. Whistleblowing ('Protection' against Victimisation and Discrimination)
- 4. Termination of APS Employment
- 5. Rights of Review
- 6. Compulsory Medical Referrals (The 'Soviet' Style of Victimisation)
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| public_service_regulations_1999.pdf |
1. APS Values
In 1999, the PS Act changed the focus of Commonwealth public service legislation from a primarily regulatory framework to one that is values-based. Rather than enforcing the application of values through prescriptive procedures that protect employees, the PS Act places obligations on employees to uphold the APS Values under the threat of sanctions. Relevant APS Values under the PS Act include:
Section 12 of the PS Act provides a specific obligation on agency heads to uphold and promote the APS Values. Section 35(2) of the PS Act provides that Senior Executive Employees have a specific obligation to promote the APS Values and to uphold the
APS Code of Conduct.
- the APS provides a workplace free from discrimination and recognises and utilises the diversity of the Australian community it serves (section 10(1)(c));
- the APS has the highest ethical standards (section 10(1)(d));
- the APS has leadership of the highest quality (section 10(1)(h));
- the APS provides a fair, flexible, safe and rewarding workplace (section 10(1)(j));
- the APS promotes equity in employment (section 10(1)(l);
- the APS provides a fair system of review of decisions taken in respect of APS employees (section 10(1)(o)).
Section 12 of the PS Act provides a specific obligation on agency heads to uphold and promote the APS Values. Section 35(2) of the PS Act provides that Senior Executive Employees have a specific obligation to promote the APS Values and to uphold the
APS Code of Conduct.
2. APS Code of Conduct
Relevant sections of the APS Code of Conduct under the PS Act include:
Section 15(1) of the PS Act provides a list of sanctions that may be imposed by APS agency heads for findings of breaches of the APS Code of Conduct:
Section 15(3) of the PS Act provides that APS agency heads must establish procedures for determining whether an APS employee has breached the APS Code of Conduct, and the procedures must have due regard to procedural fairness and must comply with written procedural requirements set out in the Australian Public Service Commissioner's directions (see the APS Policies sub-page). Since APS agencies' procedures for determining breaches of the APS Code of Conduct are legally binding documents under section 15(3) of the PS Act (see the APS Policies sub-page), non-compliance with the procedures documents in the course of decision-making about an APS Code of Conduct complaint may be addressed under the Administrative Decisions (Judicial Review) Act 1977 (see the Administrative Law sub-page).
Section 15(5) of the PS Act states that APS agency heads must take reasonable steps to ensure that every APS employee in their agency has ready access to documents that set out the APS Code of Conduct procedures.
- an APS employee must behave honestly and with integrity in the course of APS employment (section 13(1));
- an APS employee must act with care and diligence in the course of APS employment (section 13(2));
- an APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment (section 13(3));
- an APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment (section 13(9));
- an APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS (section 13(11)).
Section 15(1) of the PS Act provides a list of sanctions that may be imposed by APS agency heads for findings of breaches of the APS Code of Conduct:
- termination of employment;
- reduction in classification;
- re-assignment of duties;
- reduction in salary (which cannot be more than 2% of the employee's annual salary
(reg. 2.3(2) of the PS Regulations)); - deductions from salary, by way of fine;
- a reprimand.
Section 15(3) of the PS Act provides that APS agency heads must establish procedures for determining whether an APS employee has breached the APS Code of Conduct, and the procedures must have due regard to procedural fairness and must comply with written procedural requirements set out in the Australian Public Service Commissioner's directions (see the APS Policies sub-page). Since APS agencies' procedures for determining breaches of the APS Code of Conduct are legally binding documents under section 15(3) of the PS Act (see the APS Policies sub-page), non-compliance with the procedures documents in the course of decision-making about an APS Code of Conduct complaint may be addressed under the Administrative Decisions (Judicial Review) Act 1977 (see the Administrative Law sub-page).
Section 15(5) of the PS Act states that APS agency heads must take reasonable steps to ensure that every APS employee in their agency has ready access to documents that set out the APS Code of Conduct procedures.
3. Whistleblowing ('Protection' against Victimisation and Discrimination)
Section 16 of the PS Act states that whistleblowers reporting breaches (or alleged breaches) of the APS Code of Conduct must not be victimised or discriminated against. This 'protection' only applies to current APS employees reporting to authorised persons, not former APS employees or contractors (despite the fact that the majority of the international whistleblowing literature recognises that former employees and contractors can also be whistleblowers). There is no indication in the PS Act or the PS Regulations as to what specifically happens if a whistleblower is victimised or discriminated against (other than the assumed usual inquiry into breaches of the APS Code of Conduct), and what remedies are available to the whistleblower.
The term 'whistleblower' is not defined in any Australian legislation. However, for the purpose of the PS Act, a definition for 'whistleblower' is not needed since section 16 of the PS Act clearly implies that a whistleblower is any APS employee who makes an APS Code of Conduct complaint to an 'authorised person'. An authorised person includes: the Australian Public Service Commissioner, the Merit Protection Commissioner, an APS agency's head or their delegates. Thus, any current APS employee who makes a complaint about workplace bullying, harassment, victimisation or discrimination to these authorised persons would be a whistleblower for the purposes of the PS Act.
Reg. 2.4(1) of the PS Regulations states that APS agency heads must establish procedures for dealing with reports made by whistleblowers (see the APS Policies sub-page). Reg. 2.4(2) of the PS Regulations states that an APS agency's whistleblowing procedures must:
Reg. 2.5 and reg. 2.6 of the PS Regulations states that if a report is made to the Australian Public Service Commissioner (or delegate) or the Merit Protection Commissioner (or delegate), then the report has to be investigated if it is not considered to be frivolous or vexatious.
For a discussion of what you can really expect when you make a report about breaches of the APS Code of Conduct, see The Reality page.
The term 'whistleblower' is not defined in any Australian legislation. However, for the purpose of the PS Act, a definition for 'whistleblower' is not needed since section 16 of the PS Act clearly implies that a whistleblower is any APS employee who makes an APS Code of Conduct complaint to an 'authorised person'. An authorised person includes: the Australian Public Service Commissioner, the Merit Protection Commissioner, an APS agency's head or their delegates. Thus, any current APS employee who makes a complaint about workplace bullying, harassment, victimisation or discrimination to these authorised persons would be a whistleblower for the purposes of the PS Act.
Reg. 2.4(1) of the PS Regulations states that APS agency heads must establish procedures for dealing with reports made by whistleblowers (see the APS Policies sub-page). Reg. 2.4(2) of the PS Regulations states that an APS agency's whistleblowing procedures must:
- have due regard to procedural fairness and compliance with the Privacy Act 1988;
- inform that APS employees can make reports to their APS agency head (or delegate);
- inform that APS employees can make reports to the Australian Public Service Commissioner (or delegate) or the Merit Protection Commissioner (or delegate) if it would be inappropriate to report to the APS agency head;
- ensure that the APS agency head (or delegate) will investigate reports if they are not considered to be frivolous or vexatious;
- provide information about the 'protections' available to whistleblowers under section 16 of the PS Act;
- enable whistleblowers, who are dissatisfied with the outcome of an investigation, to refer their report to the Australian Public Service Commissioner (or delegate) or the Merit Protection Commissioner (or delegate);
- ensure that the findings of an investigation are dealt with as soon as practicable.
Reg. 2.5 and reg. 2.6 of the PS Regulations states that if a report is made to the Australian Public Service Commissioner (or delegate) or the Merit Protection Commissioner (or delegate), then the report has to be investigated if it is not considered to be frivolous or vexatious.
For a discussion of what you can really expect when you make a report about breaches of the APS Code of Conduct, see The Reality page.
4. Termination of APS Employment
Under section 29 of the PS Act, an ongoing APS employee can only have his or her employment legally terminated on the following grounds:
Reg. 3.11(3) of the PS Regulations provides that a non-ongoing APS employee may have his or her employment legally terminated on the ground of a breach of the APS Code of Conduct only in accordance with procedures established by the APS agency head under section 15(3) of the PS Act. In accordance with reg. 3.11(2) of the PS Regulations, an employment arrangement can also set out lawful grounds for termination of non-ongoing APS employment.
The Australian Public Service Commission has produced a guide on terminating APS employment, which provides more information (see the PDF document below).
- the employee is excess to the requirements of the agency;
- the employee lacks, or has lost, an essential qualification for performing his or her duties;
- non-performance, or unsatisfactory performance, of duties;
- inability to perform duties because of physical or mental incapacity;
- failure to satisfactorily complete an entry-level training course;
- failure to meet a condition imposed under section 22(6) of the PS Act;
- breach of the APS Code of Conduct;
- any other ground prescribed by the PS Regulations.
Reg. 3.11(3) of the PS Regulations provides that a non-ongoing APS employee may have his or her employment legally terminated on the ground of a breach of the APS Code of Conduct only in accordance with procedures established by the APS agency head under section 15(3) of the PS Act. In accordance with reg. 3.11(2) of the PS Regulations, an employment arrangement can also set out lawful grounds for termination of non-ongoing APS employment.
The Australian Public Service Commission has produced a guide on terminating APS employment, which provides more information (see the PDF document below).
| apsc_-_terminating_aps_employment.pdf |
5. Rights of Review
Section 33(1) of the PS Act provides a right of review for actions taken by APS agencies of an 'employment nature' against an APS employee (but does not apply to termination of employment). Section 33(1) would apply to decisions relating to complaints about breaches of the APS Code of Conduct, including bullying, harassment, victimisation or discrimination.
Under reg. 5.23A of the PS Regulations, an application for primary review by the APS agency has to be made within 120 days of the APS action, or to the Merit Protection Commissioner (or delegate) under reg. 5.24 of the PS Regulations within 60 days of the APS action. Reg. 5.25 of the PS Regulations sets out grounds for when an APS agency head should refer a primary review to the Merit Protection Commissioner. Under reg. 5.24(4) of the PS Regulations, primary review applications must state why the review is sought and, if a particular outcome is sought, the outcome sought. Reg. 5.27 of the PS Regulations sets out the conduct for a primary review by an APS agency head (or delegate). Reg. 5.28 of the PS Regulations sets out the conduct of a primary review by the Merit Protection Commissioner (or delegate).
Reg. 5.23 of the PS Regulations sets out grounds for when an APS action is not reviewable. The most popular ground used by APS agencies is that the review application is 'frivolous and vexatious' under reg. 5.23(b) of the PS Regulations (see The Reality page). Reg. 5.26 of the PS Regulations sets out what a notice of non-reviewable action must contain.
Section 33(4)(c) of the PS Act provides that APS employees must be provided with a right of secondary review to the Merit Protection Commissioner (or delegate) if applicants are not satisfied with outcomes of primary reviews by APS agencies. Under reg. 5.23A of the PS Regulations, applications for secondary review must be made within 60 days of the APS agency's decision of the primary review. Under reg. 5.29 of the PS Regulations, secondary review applications must be made through the APS agency head and must state why the review is sought. Under reg. 5.30 of the PS Regulations, an APS agency head must give the review application and any relevant documents from the primary review to the Merit Protection Commissioner within 14 days of receipt of the application. Reg. 5.30 of the PS Regulations sets out the conduct of review by the Merit Protection Commissioner (or delegate).
Section 33(5) of the PS Act states that recommendations by the Merit Protection Commissioner (or delegate) can be made to an APS agency resulting from a review, but the Merit Protection Commissioner does not have the power to make a binding decision. Reg. 5.32 of the PS Regulations sets out actions an APS agency head must undertake upon receiving recommendations from the Merit Protection Commissioner.
Reg. 5.33 of the PS Regulations sets out the minimum requirements for review, which includes:
Reg. 5.1 of the PS Regulations sets out the following overarching general policy position about reviews:
Non-compliance with the review provisions in the PS Act and PS Regulations may be addressed under the Administrative Decisions (Judicial Review) Act 1977 (see the Administrative Law sub-page).
For a discussion of what to really expect when you request a review and the way the phrase 'frivolous and vexatious' tends to be applied by APS agencies, see The Reality page.
Under reg. 5.23A of the PS Regulations, an application for primary review by the APS agency has to be made within 120 days of the APS action, or to the Merit Protection Commissioner (or delegate) under reg. 5.24 of the PS Regulations within 60 days of the APS action. Reg. 5.25 of the PS Regulations sets out grounds for when an APS agency head should refer a primary review to the Merit Protection Commissioner. Under reg. 5.24(4) of the PS Regulations, primary review applications must state why the review is sought and, if a particular outcome is sought, the outcome sought. Reg. 5.27 of the PS Regulations sets out the conduct for a primary review by an APS agency head (or delegate). Reg. 5.28 of the PS Regulations sets out the conduct of a primary review by the Merit Protection Commissioner (or delegate).
Reg. 5.23 of the PS Regulations sets out grounds for when an APS action is not reviewable. The most popular ground used by APS agencies is that the review application is 'frivolous and vexatious' under reg. 5.23(b) of the PS Regulations (see The Reality page). Reg. 5.26 of the PS Regulations sets out what a notice of non-reviewable action must contain.
Section 33(4)(c) of the PS Act provides that APS employees must be provided with a right of secondary review to the Merit Protection Commissioner (or delegate) if applicants are not satisfied with outcomes of primary reviews by APS agencies. Under reg. 5.23A of the PS Regulations, applications for secondary review must be made within 60 days of the APS agency's decision of the primary review. Under reg. 5.29 of the PS Regulations, secondary review applications must be made through the APS agency head and must state why the review is sought. Under reg. 5.30 of the PS Regulations, an APS agency head must give the review application and any relevant documents from the primary review to the Merit Protection Commissioner within 14 days of receipt of the application. Reg. 5.30 of the PS Regulations sets out the conduct of review by the Merit Protection Commissioner (or delegate).
Section 33(5) of the PS Act states that recommendations by the Merit Protection Commissioner (or delegate) can be made to an APS agency resulting from a review, but the Merit Protection Commissioner does not have the power to make a binding decision. Reg. 5.32 of the PS Regulations sets out actions an APS agency head must undertake upon receiving recommendations from the Merit Protection Commissioner.
Reg. 5.33 of the PS Regulations sets out the minimum requirements for review, which includes:
- the procedures must have regard to procedural fairness;
- the review must be conducted in private;
- the review must be finished as quickly, and with as little formality, as a proper consideration of the matter allows.
Reg. 5.1 of the PS Regulations sets out the following overarching general policy position about reviews:
- APS agencies should aim to achieve and maintain workplaces that encourage productive and harmonious working environments;
- a fair system of review is provided;
- APS employees' concerns are intended to be dealt with quickly, impartially and fairly;
- the review processes are intended to be consistent with the use of alternative dispute resolution methods to reach satisfactory outcomes where appropriate;
- nothing in the PS Regulations is intended to prevent an application for review from being resolved by conciliation or other means at any time before the review process is complete.
Non-compliance with the review provisions in the PS Act and PS Regulations may be addressed under the Administrative Decisions (Judicial Review) Act 1977 (see the Administrative Law sub-page).
For a discussion of what to really expect when you request a review and the way the phrase 'frivolous and vexatious' tends to be applied by APS agencies, see The Reality page.
6. Compulsory Medical Referrals (The 'Soviet' Style of Victimisation)
One of the most controversial provisions under the PS Regulations is reg. 3.2 which gives APS agencies the power to direct APS employees to: (a) undergo a medical examination by a medical practitioner of the agency's choice for an assessment of the employee's fitness for duty; and (b) give the APS agency head a medical report of the examination. This power has been abused by APS agencies for the sadistic purpose of referring complainants for psychiatric assessments as a form of victimisation. For more information about this practice, see The Reality page.
