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Last updated: 25 August 2003

APS Values and Code of Conduct in practice

Section 3: Relationships in the workplace

Chapter 9: Working with APS colleagues

Relevant Values and elements of the Code of Conduct

APS Values

(b) The APS is a public service in which employment decisions are based on merit.
(c) The APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves.
(i) The APS establishes workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace.
(j) The APS provides a fair, flexible, safe and rewarding workplace.
(o) The APS provides a fair system of review of decisions taken in respect of APS employees.

APS Code of Conduct

(2) An APS employee must act with care and diligence in the course of APS employment.
(3) An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.
(5) An APS employee must comply with any lawful and reasonable direction given by someone in the employee's agency has authority to give the direction.
(11) 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.

Cooperative and productive working relationships are at the heart of values-based management. While employers have an obligation to provide a safe, harassment-free, flexible and rewarding workplace, APS employees have an obligation to obey lawful instructions and contribute effectively to corporate management.

APS employees are bound by the Workplace Relations Act 1996 and other employment related legislation that applies also to private sector employees, including the:

They are also bound by the Occupational Health and Safety (Commonwealth Employment) Act 1991 (OH&S(CE) Act).

These Acts can be found at the Attorney-General's website at: http://scaleplus.law.gov.au.

Merit principle

Section 10(2) of the PS Act clarifies that a decision relating to engagement or promotion is based on merit if:

an assessment is made of the relative suitability of the candidates for the duties, using a competitive selection process
the assessment is based on the relationship between the candidates' work related qualities and the work-related qualities genuinely required for the duties.
the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties.
the assessment is the primary consideration in making the decision.

Public Service Commissioner's Direction 2.3 and Chapter 4 of the Directions set out the minimum requirements that Agency Heads and employees must meet to uphold and promote merit in employment.

In accordance with s. 19 of the PS Act, a Minister cannot direct an Agency Head about employment decisions. For senior positions an Agency Head may seek the Minister's views about the relative merits of candidates known to the Minister, but the final decision rests with the Agency Head, must be based on merit and must not be subject to Ministerial direction. A representative of the Public Service Commissioner must endorse the processes for all Senior Executive Service engagements and promotions.²⁷

Workplace diversity

Workplace diversity aims to make best use of people's backgrounds, skills, talents and perspectives, to ensure fairness and improve productivity. Managers are encouraged to recognise, value and develop the different skills and competencies of employees through flexible employment practices and ways of doing work to enhance agency and employee performance. Agencies should seek a balanced workforce where different backgrounds and perspectives are drawn on to maximise effectiveness. Good diversity practices also enable agencies to contribute to the fairness of the overall Australian workforce. An agency that provides services direct to the public should pay particular attention to the diversity of its workforce so that it meets the needs of its customers and clients.

Section 18 of the PS Act requires Agency Heads to establish a workplace diversity program that assists agencies to uphold the APS Values.

Also, Public Service Commissioner's Direction 2.13 and Chapter 3 of the Directions, require agencies to develop measures to remedy any employment background related disadvantages on the basis of Aboriginal or a Torres Strait Islander, gender, race or ethnicity or physical or mental disability. Under the Directions, APS employees must help to ensure that these anti-discrimination measures are implemented.

Review of actions

Under s. 33 of the PS Act, non-SES employees are entitled to apply for review of actions that relate to their employment.²⁸

Fair treatment in the workplace is not just an employee's right. A productive workplace requires trust, and access to a credible internal review process that promotes trust and improves decision making. Although good communication and employee participation in management processes should reduce the need for reviews, it will not eliminate the need for a credible review process.

More information about review of actions is in the APS Commission publication Review of employment-related actions in the APS, available from the Commission’s website.

Discrimination and harassment

Eliminating discrimination

It is unlawful to discriminate against or harass a person at work, and in most other areas of public life. APS employees must comply with all Commonwealth anti-discrimination laws (listed on page 58).

Investigating complaints

The President of the Human Rights and Equal Opportunity Commission (HREOC) can investigate and conciliate complaints under anti-discrimination legislation.²⁹ The Federal Court and Federal Magistrates Court can determine complaints that are not conciliated, and their decisions are enforceable.

HREOC can also inquire into and report on complaints about discrimination on the basis of age, and other forms of discrimination covered by the HREOC Act. It can recommend payment of damages or compensation but cannot make any binding determination. The Federal Court has no jurisdiction to determine such complaints, but can judicially review HREOC decisions. Further information about HREOC is available from its website at: http://www.hreoc.gov.au.

Workplace harassment and bullying

The APS Commission publishes advice about how to prevent and manage workplace harassment, available under 'publications' on the Commission's website.

Workplace harassment like bullying entails offensive, belittling or threatening behaviour directed at an individual or group of APS employees. The behaviour is unwelcome, unsolicited, usually unreciprocated and usually (but not always) repeated. It makes the workplace or association with work unpleasant, humiliating or intimidating for the individual or group targeted. It can make it difficult for effective work to be done. The requirement in the Code of Conduct that employees treat everyone with respect and courtesy and without harassment was reinforced by a case before the Australian Industrial Relations Commission³⁰ involving the termination of employment of an APS employee whose behaviour failed to meet that requirement.

Apart from potentially breaching the Code of Conduct, harassing an APS employee on the basis of race, sex or disability may breach the anti-harassment³¹ provisions in anti-discrimination legislation.

Workplace harassment and bullying should not be confused with advice or counselling on work performance or work-related behaviour of an individual or group, which might include critical comments about work performance. Feedback or counselling on work performance or work-related behaviour differs from harassment in that feedback or counselling is intended to assist employees to improve work performance or change behaviour. Feedback or counselling should be constructive, not humiliating or threatening. The booklet Counselling for better work performance issued by the APS Commission and Comcare, advises managers about how to give effective feedback and counselling.

Health and safety

The OH&S(CE) Act is the principal legislation that governs the management of occupational health and safety in the workplace. The Act has a preventive focus. It places legal obligations on management and employees, and requires agencies to:

take all reasonable steps to protect the health, safety and welfare of employees by providing and maintaining a safe work environment
develop a local policy in consultation with unions
ensure employees are familiar with emergency procedures
monitor employees' health and safety
provide necessary information, instruction, training and supervision to allow employees to perform their work safely
establish a local health and safety committee.

Agencies use different methods to demonstrate commitment to the occupational health and safety of their employees such as:

providing employees and families access to employee assistance programs
conducting health and safety awareness programs such as 'health weeks'
providing employees and families access to free inoculation programs
subsidising employee membership to health clubs and gymnasiums
offering free eye testing.

The Act also sets out the role of health and safety representatives, which includes investigating complaints made by employees and issuing provisional improvement notices.

The Act outlines the obligations of managers and employees. For example, while at work, employees are expected to take all reasonable and practicable steps to:

use equipment in accordance with instructions issued by management
not risk the health and safety of other people
cooperate with those who have obligations under the Act.

Non-public servants working on Commonwealth premises are covered by the relevant State or Territory occupational health and safety legislation.³²

Smoking

Government workplaces have been 'smoke free' since 1988. APS employees and others working or visiting the APS are not permitted to smoke in the workplace. There are agency-specific policies that set out the responsibilities of APS employees in relation to smoking. There should be no disruption to work caused by employees leaving the workplace to smoke. To encourage the health of employees, some agencies support employee participation in 'quit-smoking' programs and sponsor health promotion activities.

Misuse of other drugs including alcohol

If an APS employee misuses alcohol or other drugs and this adversely affects their performance, the safety of colleagues or the reputation of the APS, they may be in breach of the Code of Conduct and could be subject to misconduct action.

Agencies generally have agency-specific policies that address the misuse of alcohol and other drugs, which should take into account the complex nature of the problem. Further information can be obtained at the Department of Health and Ageing's website at: http://www.health.gov.au.

Counselling services

Agencies generally provide some counselling assistance to employees who are experiencing work-related or personal difficulties. There may be people within the agency who have special counselling skills to assist with problems. Alternatively, agencies may provide access to external professional counselling services, such as employee assistance programs. These programs are usually available to both APS employees and their families.

In cases where an employee has sought assistance, it is important that all information provided is treated as confidential. All discussions on work performance, including issues covered by this chapter, should be conducted in private.

27 See Public Service Commissioner's Direction 6.3

28 Certain actions are not reviewable, and these are listed in Schedule 1 to the Public Service Regulations 1999:

termination of the employee's employment (such actions may be reviewed under the Workplace Relations Act 1996)
action about policy, strategy, nature, scope, resources or direction of the APS or an APS agency
action taken, or not taken, in accordance with a direction or reference given by the Minister under the Public Service Act 1999 or another Act
the giving of a direction by the Public Service Commissioner under sections 11, 15 or 36 of the Public Service Act 1999 (these directions relate to the APS Values, breaches of the APS Code of Conduct, and SES employment matters)
action taken, or not taken, for a special inquiry under section 43 or 50 of the Public Service Act 1999 (these sections deal with special inquiries by the Public Service Commissioner or the Merit Protection Commissioner)
action taken, or not taken, under section 72 of the Public Service Act 1999 in relation to the implementation of machinery of government changes by the Public Service Commissioner
action arising under any of the following Acts: Australian Security Intelligence Organisation Act 1979; Safety, Rehabilitation and Compensation Act 1988; Superannuation Act 1976; or Superannuation Act 1990 action relating to the engagement of an APS employee
action taken by a Promotion Review Committee (PRC) or an Independent Selection Advisory Committee (ISAC)
action relating to the promotion of an ongoing APS employee as an SES employee (whether or not the employee is already an SES employee)
action that determines under section 25 of the Public Service Act 1999 duties of an APS employee, or the place or places where they are to be performed, unless the action involves one of the following—a reduction in classification; a relocation to another place; a promotion to a classification level in APS Group 7 or 8 (for example, Executive Level 1 or 2) for which the employee was an applicant and there were serious defects in the selection process; or the reassignment of the employee to duties that the employee could not be reasonably expected to perform
where the applicant has applied to have the same action reviewed by a court or tribunal and the matter is within that body's jurisdiction.

29 Racial Discrimination Act 1975, Sex Discrimination Act 1984, Disability Discrimination Act 1992

30 AIRC, PR932560, Purser v AGD (2003)

31 While the Racial Discrimination Act does not use the language of 'racial harassment', some types of workplace harassment could be seen as unlawful behaviour under this Act.

32 AGS has recently suggested that State occupational health and safety laws are likely to be capable of applying to the Commonwealth. If circumstances warrant it, agencies may need to seek legal advice on this issue.

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