You are unlikely to be ‘stood down’ without pay in the short term

This is probably because:

  • A significant proportion of APS employees do essential work that has not stopped;
  • The crisis is generating more work for the APS in some agencies;
  • A lot of APS employee roles can be usefully performed, even if from home; and
  • Standing down APS employees at this time is politically inconsistent with the government’s preference for workforces to remain attached to their employer and performing work as much as possible.

There is also legal uncertainty over what, exactly, amounts to “any cause for which the employer cannot reasonably be held responsible”. A government order that shuts your business down for external reasons (such as, say the Public Health ((Closure of Non-Essential Business or Undertaking) Emergency Direction (No 3) ACT of March 26, 2020), which shut down ACT-based hotels, cinemas and gyms, due to COVID 19), can lawfully trigger unpaid stand down under the Fair Work Act. But as to where the stoppage of work arises from circumstances short of a government ban – which was the case at the time of writing for most APS agency employees – no clear precedent exists.

Your department may require you to keep working on-site, even though others are being advised to work from home

There have been reports some public servants who can work from home have not been allowed to do so yet, because of a lack of IT preparedness. If you are directed to physically attend work, you do not have a compromised immune or respiratory system or are over 70, and your workplace is complying with any government orders, and the latest COVID-19 advice alert published by Department of Health (regarding social distancing, personal hygiene, personal protective equipment, etc.), then the direction should be considered lawful and reasonable. Failure to comply with a lawful and reasonable direction can be a breach of the APS Code of Conduct and the equivalent under section 9 of the ACT Public Sector Management Act (PSMA).

If you do work from home, as the home becomes a place of work for workplace health and safety and workers compensation purposes, expect your employer to conduct some initial basic risk assessment. For example, they might require you to conduct a home self-assessment, possibly verified by video. Expect protocols around checking in at least daily and reporting any home-based injury.

By the way, the fact a public servant might also have housebound children to educate and care for at the same time might prompt employees to apply for leave or reduced hours; but of itself, it does not entitle an employee to reduce their expected level of productivity. Parties are going to have to deliver on trust, be flexible, and get creative. I know several public service employees who are home schooling in the morning; working in the afternoon; taking a break over the dinner/bath/bed shift; and then getting back to work later in the evening. It seems to be working well enough for now.

You may be required to work in an alternative area of the APS

If you cannot work from home, or your job is considered “non-essential”, there is a chance you will be forced to work in an alternative area of the APS where demand for labour is high. Both voluntary and compulsory moves between agencies have always been permitted under the Public Service Act and the PSMA, with few constraints.

The employment instruments that govern your employment are likely to change

APS and ACT public sector employees are traditionally employed under enterprise agreements (although SES-level employees generally are not). Obligations and entitlements under enterprise agreements replace those found in the relevant modern awards. On March 28, 2020, the Fair Work Commission varied the Clerks Award to allow employers greater flexibility when it comes to reducing employees’ ordinary hours and directing employees to take annual leave. Other awards have also been varied. It is open to the government to seek to vary the various enterprise agreements that cover public servants. Agreement will need to be reached (as a probable alternative to redundancy).

Salary deductions may be on the horizon

As Australia’s unemployment rate grows and the cost of the government’s COVID-19 response stimulus packages rise, it is possible the APS and other public sector employers may seek to reduce salaries. Some employer groups are already calling for reductions in the federal minimum wage.

Ordinarily in the APS, it is for the agency head to determine salaries and other terms and conditions like redundancy pay. Salaries and conditions can be reduced this way for all APS employees (SES included) provided they don’t go below the enterprise agreement, and/or National Employment Standards of the Fair Work Act. Agency heads can always apply to vary enterprise agreements in the usual fashion – but this takes time and agreement. So, SES employees who are not covered by enterprise agreements are particularly vulnerable to quick pay cuts in this regard. Reducing the proxy redundancy payment for SES employees known as an “incentive to retire” payments currently requires the APS Commission’s cooperation.

However, in “exceptional circumstances”, the public service minister may, by legislation, determine the terms and conditions for all APS employees, which can “override” enterprise agreements, SES determinations, and the National Employment Standards that apply across the country.

So, changing times ahead for many public servants. But to end on two positive notes. Firstly, public servants as a cohort are likely to fare much better though this crisis than their private sector counterparts. Secondly, change is not always bad. There’s opportunity for many workplaces to emerge from the COVID-19 crises to be more human, more creative and more fruitful. Let’s hope the public service is one of them.

This article first appeared in The Canberra Times.

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