Senate Finance and Public Administration Legislation Committee, , 5:26:36 to 5:50:49
Questioning focuses on the termination of departmental secretaries, record-keeping standards, and the use of NDAs in the public service.
Topics: Public service staffing, Privacy
Speakers: Senator The Hon Jane Hume, Senator The Hon Katy Gallagher, Senator Fatima Payman, Jacqui Curtis, Alison Stott, Dr Daniel Tracey, Jo Talbot, Senator Barbara Pocock, Senator Karen Grogan, Speaker 27
>> Welcome back everybody. We will recommence with uh the Australian Public Service Commission. But before we do, I would just advise that the committee has decided to release the CA technology from this evening's program. Yeah. >> Um, we will, um, I think we'll probably go to, uh, Miss Curtis, the commissioner. Um, there was a document tabled, well, proposed to be tabled before we took the lunch break. Um, would you or Mr. Tracey like to address that document?
>> Thank you, Senator. Yes, Dr. Tracey and I have had a chat about that in the break about the tableabling of it and some of our concerns over that. So, I'm just going to throw to Dr. Tracey who'll explain those to the committee um so that you can see where we where we stand on this issue and what you'd like to do about it. Thank you very much.
>> Can I just check the document was traded before lunch is
>> you propose to table it. We like to check the veracity of documentation. That's how we always work. So it hasn't been tabled yet. No. >> Okay. Um it takes the committee to agree to table. Um so we just we're just checking the documentation. Um and had some questions. um and um have asked the APSC if they had any concerns which is quite common pathway. Um so we'll just hear from them now and then we'll decide where we go from there. >> Dr. Tracey,
>> thank you chair. um in the committee's consideration of the document um that was presented to the officials earlier um we just wanted to uh draw to the committee's attention for consideration that on a sort of quick perusal of the document it appears that there are a number of um individuals named in this document. Um and what we would say about that is that um in the handling of any integrity referrals that are dealt with by the commission um considerations of procedural fairness and natural justice are obviously paramount for us um in the handling of uh any inquiry that comes forward. Um and so we would ask the the committee um on your indulgence to have regard to those matters in the disclosure of any information that's in this document. um particularly in circumstances where um information that's referred to the commission may be the subject of future processes as well. And so what we're mindful is how that sort of interacts or might inadvertently impact how future matters are handled. Um we are minded to the precedent that it might set um while matters might still be on foot. So we just wanted to present those concerns to your attention.
>> Okay. Thank you Dr. Tracey. Um the committee will further consider that um before we uh proceed with any tableabling. So we'll we'll um we will have a meeting later on to um consider what we do with that document. Um but we will go back to questioning and we'll go
want to follow up on some of the questions that I was asking before about the four corners episode that was uh reporting last week of widespread discrimination of pregnant public servants and public servants returning from maternity leave. Uh my uh understanding is that it was Minister Rishworth was responded to those claims but Minister as Minister for Women and Minister for the Public Service. Did you make a response?
I've got a lot of messages. Sorry. Um, uh, four corners journalists asked if I or a relevant government minister could sit down and do an interview on their story. um but I don't think it was specific that it was about the APS and so it was referred to um Minister Rishworth to deal with under her portfolio responsibilities.
>> Okay. Well, having seen the show now and knowing that it was about the APS is going to be a formal response.
>> Well, Minister for the APS. >> Well, the response is in the work that we're doing.
>> So, all right. Well, that's actually a good question. Yeah. Can you tell me what steps you've taken to ensure that Comwalth meets its basic employer
obligations? Well, I mean through through the work that the APSC does all the time, we're not responsible for individual complaints within agencies, but we do have a broad responsibility across the APS to ensure that agencies understand their responsibilities under law and in addition the issues that are being ventilated through the bargaining of which this is one around flexibility at work are considered. So
sorry I just want to understand then whether you have taken any sort of specific actions in response to the four
Well, we've done I mean this is a piece of ongoing work. Um you know, we've done a lot of reform in the APS uh to ensure that there are good conditions of employment for everyone who works here. Um and so that's why we've extended parental leave including to the other parent, the second parent, the non-birth parent. Um it's why we've got the flexibility arrangements in the EBA which I know others in this place have criticized over time and it is in direct response to ensuring that we are supporting people with different caring responsibilities in the workplace and it will continue. There is zero tolerance for not following the law. Um pregnancy discrimination is unlawful and should not occur anywhere in and the APS should lead the way. It's a model employer. it has to set the standard and that is a very clear instruction from the APSC from myself and AC you know I think it's well understood across government and if we received an example or a complaint um you know that we would pursue it okay >> I urge women to come forward if that has been their experience more often than not the thing I like I was saying to you before lunch the thing I worry about the most is that there uh systems kind of the way this happens is that people don't make a complaint. >> So, you know, how do you make SCES and EL2 jobs more part-time available? That's a big problem in the APS. I hear that from women. Um you know, so we're considering that as part of both the culture but also, uh the bargaining
that's underway. So um the department for home of home affairs responded to the episode of four corners by stating I'm quoting them here any expenditure of resources including the engagement of staff must be considered within the department's budget and in accordance with its obligations under the public governance performance and accountability act. You're the minister responsible for the PGPA act. I don't know anywhere where it says in that act that somehow it can be used as a shield for discriminatory practices against women. That's
>> no it can't. >> Okay. So is that an inadequate responsibility for the act but the act actually devolves responsibilities to agencies for the decisions they take. That's what the PGPA act actually establishes. You are you are the accountable authority for the purposes of your budget. I didn't see that the I haven't seen that full quote, but
>> it does s though that like honey is an inadequate that's an inadequate response surely.
>> Well, I think they're separate issues. How you live within budget and whether you discriminate on the grounds of pregnancy [snorts] are two different things.
>> Senator, I might just u let you know that the commission has actually followed up with home affairs. One of our officers has checked the circumstances of this. Just as the minister says, we can only look at issues that are actually brought to our attention. This is of attention now to us and we are looking at the matter and I understand that home affairs are prepared to answer some questions on this issue uh when they appear.
>> Okay. So when you say that you're looking at this now, what does that
mean? One of our officers has spoken to home affairs as Miss Tolbert said earlier in the um hearing today and uh we have un tried to understand the circumstances with their chief people officer and I understand that there were further circumstances that they may not have said in the response that you've just read out.
>> Okay, good. I want to turn to the termination of um those that might be holding the position of secretary and how that might work. process questions. I've got here um a brief that was released under Freedom of Information relating to the termination of the Secretary of the Department of Employment and Workplace Relations, Miss Natalie James. I'm happy to provide you with that and table the Who would like to take my table um before the document is tabled and before I refer to it obviously um in February in uh in estimates uh PMC confirmed that the former commissioner was consulted of Miss James' termination and I suppose I want to get an understanding of what role the APSC has in providing advice or support to government when a departmental secretary is terminated.
>> Thank you Senator. I might need to take this particular um circumstance on notice because I haven't to date had to actually be in a position to provide any advice. But I do understand that I do get consulted as the public service commissioner on these issues. Um and to the extent of my knowledge, it is a consultation to see whether that is an appropriate course of action that I understand that I might just check with um Dr. Tracey to see if there's anything further in the legislation that could expand on the answer for me. Otherwise,
>> Senator. The short answer is that that is the thrust of it. It's a consultation provision. Um it is uh effectively given effect under section 59 of the public service act.
So section 59 my understanding mandates that the prime minister has to receive a report from the secretary of PMC prior to the termination termination of a departmental secretary and the report requires prior consultation with the APS commissioner that is that have I missed anything? explain to me on what grounds the termination of a departmental secretary
>> Sorry, Senator, I'm not sure that's on that particular question. I'm not sure that's a matter for the commission to to speak to.
>> Well, does it have to be a breach of a code of conduct >> or can it just be I mean, can you just say I haven't I have no confidence in you anymore and you can go? I don't know
if this was dealt with yesterday when um Secretary Kennedy was here, but it would seem more appropriately dealt with at um PMNC level.
>> Well, considering the APS commissioner has to be involved in the process, I'm assuming that the APS commissioner
>> there's consultation requirements I think um rather than be involved in I mean that they have involvement as per that section of the act. I think this was under um the former commissioner's we can provide on notice, um
>> I'm just after processions. I'm not after specifics.
>> We'll take it on notice. Thank you.
>> Very happy to provide it.
>> Senator Hume, can I just um ask you the status of that document you were seeking to table?
>> It's an FOI.
>> It's an FOI. Can we have the FOI number if you have it?
>> I don't have it on front of me unless it's on the document for you. Uh so I suppose what I want to understand is if a termination or when a termination occurs, would the um would the public service commissioner be required to provide a report in writing or can the advice be verbal?
>> Again, Senator, I'd have to take it on notice. I I don't know uh at this moment in time, but I could probably get some advice from Dr. Tracey.
>> Yes, Commissioner. rather than taking that on notice center I can just give you the answer now so um subsection 4 at 59 uh it simply prescribes that a report is prepared uh after consultation with the commissioner that provision is not prescriptive about whether something is written verbal etc
there's a standard that the department keeps proper records obviously for significant processes can you Tell me in the circumstance of u uh of um uh Miss James whether there is a written document or whether it was a verbal advice and what records were kept not after the records.
>> So that information is not something I have to hand.
>> I think the the problem we have here is that um both Dr. Tracey and the commissioner this predates their time at the commission. Um and I like we can see what we can provide you on notice,
Senator Hume. Okay. Um perhaps and I'm sure that there is there are people here that do know this in relation to Miss James, what date the former commissioner was first approached around the termination of Miss James and who approached the former commissioner. I'm certain that that would be documented somewhere.
>> Well, I'm not sure whether it's accessible for the purposes of this hearing. That's all. And it is it's not something that I think people would have prepared for, but we can take it on notice.
>> Okay. I mean, obviously much of this is a a process question as opposed to specifics, but if there's specifics, I would understand why you would need to take it on notice. If it's a process question, it should
>> Well, but you're asking about a report and what date and things like that. I'm just saying we we can't we're not in a position to answer that here, but happy
>> we are heading towards that rotate hall, Senator Hume, if that's of use.
>> I understand. I have more questions on this issue. I hope that there might be somebody from the APS. >> See if there's anything we can provide >> because I don't think just saying we weren't here is good enough in these circumstances. This didn't occur that long ago. there are people at the APSC that would know what's going on. Um so
>> let's rotate the call and give people a
chance.
>> That would be great. >> Um we'll go to Senator Payman.
>> Thank you. Thanks, Chair. Um my line of questioning similar to Senator Hume just around the ABC four corners episode, the pregnancy penalty, and I'm just after some process um information. Um, does the public sector commission have a policy on flexible working arrangements for SEES employees?
>> Senator, I might just um throw to Miss Tolbert who can come and speak to those conditions. Um, most agencies have their own approach. SCS are not covered by their enterprise agreement. They're in their determinations. So, most agencies apply their own policy to flexible work. But, um, I'll see if Mr. O'Reilly or Mr. Tracey can add any more on that for you.
>> Thank you, Commissioner.
>> Uh James O'Reilly, assistant commissioner, workplace relations and that's correct. U it will be up to agencies to to put in place workplace policies that would cover those
>> But do you have like a list to provide them to guide them around it or is it just left to each agency?
>> We wouldn't differentiate between SCS and nons. Okay. um with the exception about where we're referencing a condition under the enterprise agreement.
so would you have any information around how many SCES have flexible working arrangements >> in the public sector?
>> Not not to hand. No. No senator.
>> Okay. Um you wouldn't know how many roles are vacant or you've been temporarily filled? just in regards to the human rights commission report on supporting working parents and carers um called the balancing act and released on October 19. Um has this report and its recommendations been uh considered by
>> Uh sorry again which report Sander? Uh
this is the uh the balancing act uh which was um in order to support working parents and carers and it was released on October 19th.
>> Uh yeah, I think that was last week, Sand. We're aware of the report. Um I don't think it goes specifically to to public sector employment. Um but again, I can take that on notice.
>> Okay. Um cuz yeah I'm just curious to understand you know if you are willing to you know take the recommendations and consider them um what's the timeline uh in terms of adopting that um but if you're not going to uh are there any plans to review you know the current return to work policies that you know has been up for discussion um or whether the department or the commission thinks that you know the current arrangements are fit for
up as part of bargaining where we have considered areas um around access for parents returning from leave also recover recovering mothers. We have a couple of clauses that are common across enterprise agreements. One of which is the flexible working clause. We know from our census data across the APS that um we have good access to those clauses. I think with 86% of people 83% of people accessing that clause and 86% of people that feel comfortable that their um or confident that their request will be considered um by their manager. We also at the commencement of bargaining did a survey across the APS where we asked APS employees what conditions they were most satisfied with and the flexible working clause came back as the most satisfied clause that our employees had. Now, we are obviously in the middle of negotiations, so I don't I need to be careful what I say about that. But we have tabled preliminary positions that we're still discussing with bargaining parties around retaining the flexible work um clauses, but also to make advancements in the parental leave clause. Um, one of those advancements that we have um, tabled that we are still discussing with uh, bargaining parties is a guaranteed access uh, to part-time arrangements up to school age children. So, if you you have a a child that is up to school age and that's for both parents. So, that's um, we've also introduced some other things as part of that clause and we are still bargaining in good faith with all of the unions. There's nine unions and over 280 individual bargaining reps as part of the the bargaining room. So, we are still discussing those proposals.
>> Amazing. Brilliant. Thank you. Um and just on um NDAs, does the APS track the amount of NDAs or other non-disclosure measures such as a deed of confidentiality uh that they may ask outgoing public servants to sign?
Senator Joyce Tolbert will um be able to give you some further information on
>> Senator. Uh we we do indeed track uh NDAs and in particular in 2022, the then APS commissioner made it a requirement in relation to that. Let me just get So, my computer's not going very quickly here with uh the problem going digital.
>> Cuz yeah, I would just love the number for the last financial year, that's all.
>> No. So in the last financial year it was 76.
>> 76 NDAs.
>> Yep. There was
Senator, we might come back to it. >> Can I just say my understanding is this is at the request of an individual, not a requirement from the government. >> Yep. for for the obvious reasons where um NDAs have been criticized, but I'll check that. >> Um but that was certainly a change that
>> Okay. Thank you. And what I should um say to be a bit more specific there senator is that in terms of that total
number of agreements was for the purpose of settling a dispute about employment matters um which included non-disclosure or confidentially confidentiality provisions and of that 76 purpose of settling disputes about sexual harassment. >> Beautiful one in relation to that.
>> Thank you very much Miss Talbert. Thank Thank you, chair.