Legal, Policy, Administrative and Cultural Reform Issues
This page discusses legal, policy, administrative and cultural reform issues relating to the APS and workplace bullying, harassment, victimisation and discrimination. The topics covered below are:
- 1. Repealing the Compulsory Medical Referral Provision under the Public Service Regulations 1999
- 2. Policies to Address the Bystander Effect
- 3. Introducing Legislative Sanctions for Defences that are Trivial, Frivolous, Vexatious, Misconceived or Lacking in Substance
- 4. Addressing Flaws in APS Preliminary Inquiries/Investigations into Workplace Mistreatment
- 5. Reigning in APS Censorship
- 6. One Consolidated Law - Unreasonable Behaviour
- 7. Targeting APS Culture
1. Repealing the Compulsory Medical Referral Provision under the Public Service Regulations
One of the most controversial provisions under the Public Service 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 APS 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 to psychiatric assessments as a form of victimisation. This issue is discussed in detail at The Reality page.
The compulsory medical referral provision should be repealed. The fact is that there is no need for the existence of this provision when an APS employee can simply be redeployed or dismissed for non-performance or unsatisfactory performance of duties (see clause 2.12(1)(e) of the Public Service Commissioner’s Directions 1999 and section 29(3)(c) of the Public Service Act 1999), provided that there is no breach of any workplace or human rights laws. It is the actual performance of an APS employee that should be assessed, not the reasons behind the APS employee's performance, as it should not be the APS's role to enter into a paternalistic relationship with its employees. Repealing the provision is the best way to overcome the exploitative nature of compulsory medical referral provisions.
If there is any place for psychiatric assessments in the workplace context, a more ethical mechanism should include employees deciding of their own will (without pressure) to see psychiatrists of their own choice, referred from their general practitioners. Assessment reports should be provided to employees' general practitioners in the normal way whom, in turn, only provide medical certificates for the APS agency if employees wish for this to happen. In fact, this should be applicable to all kinds of medical issues.
The compulsory medical referral provision should be repealed. The fact is that there is no need for the existence of this provision when an APS employee can simply be redeployed or dismissed for non-performance or unsatisfactory performance of duties (see clause 2.12(1)(e) of the Public Service Commissioner’s Directions 1999 and section 29(3)(c) of the Public Service Act 1999), provided that there is no breach of any workplace or human rights laws. It is the actual performance of an APS employee that should be assessed, not the reasons behind the APS employee's performance, as it should not be the APS's role to enter into a paternalistic relationship with its employees. Repealing the provision is the best way to overcome the exploitative nature of compulsory medical referral provisions.
If there is any place for psychiatric assessments in the workplace context, a more ethical mechanism should include employees deciding of their own will (without pressure) to see psychiatrists of their own choice, referred from their general practitioners. Assessment reports should be provided to employees' general practitioners in the normal way whom, in turn, only provide medical certificates for the APS agency if employees wish for this to happen. In fact, this should be applicable to all kinds of medical issues.
2. Policies to Address the Bystander Effect
The serious impact of the bystander effect on workplace bullying, harassment, victimisation and discrimination in the APS is discussed at The Reality page.
There needs to be policies and practices in the APS to encourage observers to openly support targets and safely confront perpetrators, and to have disciplinary measures in place for when observers join in the mistreatment of targets or are found to lie in their witness testimony during APS preliminary inquiries/investigations.
In particular, APS employees need to be made aware that colleagues are one of the most unreliable class of witnesses (due to their fears around workplace/professional survival) so that complainants are not unfairly accused of embellishment/fabrication when a colleague that they put forward as a witness later denies what they have previously stated/witnessed.
Perpetrators thrive in environments of secrecy, fear and silent/deceitful witnesses. Workplace bullying, harassment, victimisation and discrimination is guaranteed to continue in the APS unless the APS addresses the bystander phenomenon.
There needs to be policies and practices in the APS to encourage observers to openly support targets and safely confront perpetrators, and to have disciplinary measures in place for when observers join in the mistreatment of targets or are found to lie in their witness testimony during APS preliminary inquiries/investigations.
In particular, APS employees need to be made aware that colleagues are one of the most unreliable class of witnesses (due to their fears around workplace/professional survival) so that complainants are not unfairly accused of embellishment/fabrication when a colleague that they put forward as a witness later denies what they have previously stated/witnessed.
Perpetrators thrive in environments of secrecy, fear and silent/deceitful witnesses. Workplace bullying, harassment, victimisation and discrimination is guaranteed to continue in the APS unless the APS addresses the bystander phenomenon.
3. Introducing Legislative Sanctions for Defences that are Trivial, Frivolous, Vexatious, Misconceived or Lacking in Substance
Under various pieces of legislation, applications to seek the assertion of legal rights can be dismissed if a complainant/complaint is declared to be trivial, frivolous, vexatious, misconceived or lacking in substance. The public policy intent behind such provisions is to protect respondents from annoyance/harassment and unnecessary cost in defending a claim without merit, and to prevent waste of scarce public resources. Thus, the existence of such legislative provisions is completely justifiable. However, all too often these labels are misused and abused by the APS in defending against legitimate claims. This leaves genuine complainants devastated at the hurt and damage caused to their reputation and claims, and increased costs for complainants who have to refute such unfair allegations.
Even more problematic for complainants is that the APS also too often engages in behaviours and defences that are trivial, frivolous, vexatious, misconceived or lacking in substance. This also leaves genuine complainants' feeling hurt and frustrated, and their costs increase when addressing such defects with defences. Yet, generally legislation does not contain equivalent provisions of penalties/recourse where respondents/defences are trivial, frivolous, vexatious, misconceived or lacking in substance. Thus, in addition to legislation that puts the onus on the complainants to prove all of the factual and legal matters of their complaint, complainants face a real power imbalance when seeking justice because of the inadequacies in legislation.
If the Commonwealth Government was genuine about trying to curb workplace bullying, harassment, victimisation, discrimination and any other legal rights breaches, it would amend its legislation to provide penalties/recourse for grossly inaccurate/malicious misuse of the labelling of complainants/complaints as trivial, frivolous, vexatious, misconceived or lacking in substance. The Commonwealth Government should also provide legislative sanctions/recourse where respondents engage in defences that are trivial, frivolous, vexatious, misconceived or lacking in substance. Such amendments would address the current power imbalances and act as a powerful deterrent on the APS against engaging in reckless/unethical behaviour and defences in legal matters.
Even more problematic for complainants is that the APS also too often engages in behaviours and defences that are trivial, frivolous, vexatious, misconceived or lacking in substance. This also leaves genuine complainants' feeling hurt and frustrated, and their costs increase when addressing such defects with defences. Yet, generally legislation does not contain equivalent provisions of penalties/recourse where respondents/defences are trivial, frivolous, vexatious, misconceived or lacking in substance. Thus, in addition to legislation that puts the onus on the complainants to prove all of the factual and legal matters of their complaint, complainants face a real power imbalance when seeking justice because of the inadequacies in legislation.
If the Commonwealth Government was genuine about trying to curb workplace bullying, harassment, victimisation, discrimination and any other legal rights breaches, it would amend its legislation to provide penalties/recourse for grossly inaccurate/malicious misuse of the labelling of complainants/complaints as trivial, frivolous, vexatious, misconceived or lacking in substance. The Commonwealth Government should also provide legislative sanctions/recourse where respondents engage in defences that are trivial, frivolous, vexatious, misconceived or lacking in substance. Such amendments would address the current power imbalances and act as a powerful deterrent on the APS against engaging in reckless/unethical behaviour and defences in legal matters.
4. Addressing Flaws in APS Preliminary Inquiries/Investigations into Workplace Mistreatment
Proper investigation frameworks are a cornerstone of the practical implementation of the APS Code of Conduct, resulting in matters being dealt with appropriately and the full facts of a situation discovered. The confidence of APS employees in internal and contracted investigators’ thoroughness, fairness, expertise and professionalism is pivotal to whether targets would report their concerns internally. The complex matter of conducting investigations into workplace bullying, harassment, victimisation and discrimination cannot be taken lightly, nor can the skills required for such investigation work be taken for granted. Unfortunately, the APS does not appear to genuinely recognise this.
APS agencies constantly put the burden on targets to complain when they experience workplace mistreatment and APS agencies also invest heavily in preliminary inquiries/investigations by internal or contracted investigators to address complaints.
A proactive approach is one that invests more in awareness raising, education, training and monitoring, and is proven to be more effective and less costly than the reactive approach in the long-term. The proactive approach does not appear to be the preferred approach in the APS. Thus, there is a grave misplacement of focus and resources which needs to be urgently addressed.
There are also grave flaws with preliminary inquiries/investigations into workplace mistreatment in APS agencies, which is discussed at The Reality page. Firstly, some APS agencies fail to recognise that internal and contracted investigators need to have a specific professional skillset to effectively inquire into workplace bullying, harassment, victimisation and discrimination. It appears that many investigators have substandard education and training backgrounds, such as former police detective work or certificates in government or fraud investigation (which can take anywhere between 2 and 32 weeks to complete depending on the education institution). Some investigators do not even have any related education or training backgrounds and merely ‘learn on the job’. Anecdotal evidence indicates that investigators with these substandard backgrounds tend to cause greater harm and can hold false prejudiced views that the complainants are ‘the problem’.
Secondly, APS agencies fail to recognise that preliminary inquiries/investigations into workplace mistreatment requires the adoption of context-specific methodologies. Instead, all APS agencies must comply with is its procedures document under section 15(3) of the Public Service Act 1999 (see the APS Policies sub-page) and the Australian Government Investigation Standards 2011 (AGIS) (see the PDF document below). The AGIS wrongly applies homogenised criminal investigative methodologies to all types of investigations of misconduct, including complaints that do not encompass criminal allegations. One particular AGIS methodology of electronically recording complainants’ interviews is actually in direct contravention to criminal justice law, which does not allow police officers to electronically record victims of crime when interviewing them. Instead, they can only take down a written statement, which the victim is allowed to review, amend and sign. Police officers cannot interview and electronically record criminal offenders unless they are under arrest and informed about their legal rights. Thus, in some areas, the ludicrous consequence of the implementation of the AGIS is that APS agencies are going beyond what the criminal justice system prescribes.
Thirdly, complainants have to deal with the reality that APS agencies have a perverse incentive to find that their complaints of workplace mistreatment are unsubstantiated or unfounded in order to protect the APS agencies from potential legal liability and reputational damage. This perverse incentive manifests into other various obstacles that complainants can come up against, including:
To address the above flaws, the Commonwealth Government should be looking at professionalising investigator positions. A separate accreditation body should be formed which has the following functions:
In terms of qualifications and competencies, investigators should hold professional tertiary qualifications that involve holistic training, such as social work, and should have undertaken courses directly related to their field of investigation work. Whilst there also needs to be training in technical investigation skills, these are not as important as the holistic training.
In terms of conduct and ethics standards, it is unacceptable for criminal investigation standards to be used by non-law enforcement agencies in investigations of workplace mistreatment, due to the significant risk of re-victimisation of targets. In the rare cases where workplace mistreatment is serious enough to amount to criminal conduct, then such cases should be referred to the police.
Other specific issues that should be covered in any manual dealing with preliminary inquiries/investigations so that best practice is achieved, include:
APS agencies constantly put the burden on targets to complain when they experience workplace mistreatment and APS agencies also invest heavily in preliminary inquiries/investigations by internal or contracted investigators to address complaints.
A proactive approach is one that invests more in awareness raising, education, training and monitoring, and is proven to be more effective and less costly than the reactive approach in the long-term. The proactive approach does not appear to be the preferred approach in the APS. Thus, there is a grave misplacement of focus and resources which needs to be urgently addressed.
There are also grave flaws with preliminary inquiries/investigations into workplace mistreatment in APS agencies, which is discussed at The Reality page. Firstly, some APS agencies fail to recognise that internal and contracted investigators need to have a specific professional skillset to effectively inquire into workplace bullying, harassment, victimisation and discrimination. It appears that many investigators have substandard education and training backgrounds, such as former police detective work or certificates in government or fraud investigation (which can take anywhere between 2 and 32 weeks to complete depending on the education institution). Some investigators do not even have any related education or training backgrounds and merely ‘learn on the job’. Anecdotal evidence indicates that investigators with these substandard backgrounds tend to cause greater harm and can hold false prejudiced views that the complainants are ‘the problem’.
Secondly, APS agencies fail to recognise that preliminary inquiries/investigations into workplace mistreatment requires the adoption of context-specific methodologies. Instead, all APS agencies must comply with is its procedures document under section 15(3) of the Public Service Act 1999 (see the APS Policies sub-page) and the Australian Government Investigation Standards 2011 (AGIS) (see the PDF document below). The AGIS wrongly applies homogenised criminal investigative methodologies to all types of investigations of misconduct, including complaints that do not encompass criminal allegations. One particular AGIS methodology of electronically recording complainants’ interviews is actually in direct contravention to criminal justice law, which does not allow police officers to electronically record victims of crime when interviewing them. Instead, they can only take down a written statement, which the victim is allowed to review, amend and sign. Police officers cannot interview and electronically record criminal offenders unless they are under arrest and informed about their legal rights. Thus, in some areas, the ludicrous consequence of the implementation of the AGIS is that APS agencies are going beyond what the criminal justice system prescribes.
Thirdly, complainants have to deal with the reality that APS agencies have a perverse incentive to find that their complaints of workplace mistreatment are unsubstantiated or unfounded in order to protect the APS agencies from potential legal liability and reputational damage. This perverse incentive manifests into other various obstacles that complainants can come up against, including:
- preliminary inquiries/investigations being designed to create the appearance of ‘official concern’ and serve the APS agency’s interests rather than being a genuine fact-finding process;
- investigations being disguised as preliminary inquiries;
- complainants being taken advantage of during times of emotional vulnerability by manipulating them into making statements that are not in their best interests and victimising them;
- complainants’ legal and policy rights being misrepresented;
- complainants being provided with little open justice and procedural fairness.
To address the above flaws, the Commonwealth Government should be looking at professionalising investigator positions. A separate accreditation body should be formed which has the following functions:
- setting appropriate qualifications and competencies for different types of investigators;
- setting appropriate conduct and ethics standards;
- prescribing appropriate processes to be followed in different types of investigations;
- prescribing ongoing training requirements;
- monitoring performance;
- conducting investigations into complaints about investigators/investigations;
- disciplinary procedures for investigators who breach the rules.
In terms of qualifications and competencies, investigators should hold professional tertiary qualifications that involve holistic training, such as social work, and should have undertaken courses directly related to their field of investigation work. Whilst there also needs to be training in technical investigation skills, these are not as important as the holistic training.
In terms of conduct and ethics standards, it is unacceptable for criminal investigation standards to be used by non-law enforcement agencies in investigations of workplace mistreatment, due to the significant risk of re-victimisation of targets. In the rare cases where workplace mistreatment is serious enough to amount to criminal conduct, then such cases should be referred to the police.
Other specific issues that should be covered in any manual dealing with preliminary inquiries/investigations so that best practice is achieved, include:
- ensuring that a complaint was actually intended to be made before invoking the complaint-handling procedures;
- clearly and appropriately delineating the differences between preliminary inquiries and investigations;
- ensuring that parties are not pressured to take part in preliminary inquiries/investigations if they have a medical certificate;
- providing parties with the option of making submissions in writing, rather than oral submissions, during preliminary inquiries/investigations and allowing parties to refuse electronic recordings of interviews;
- if interviews are audio recorded, the Queensland Public Service approach to recording interviews should be adopted, that is, an interviewee is entitled to a transcript of the interview and, because the interview is recognised as forming part of an administrative inquiry, not a criminal inquiry, the interviewee can add or delete anything that he or she wishes in his or her statement;
- allowing interviewees to obtain the professional background of investigators, like in the Queensland Public Service;
- encouraging potential complainants to seek support from colleagues and collect documentary evidence to support their claims (such as signed written witness testimonies) before making a complaint (this particularly needs to be addressed since many APS senior officers and investigators often mistakenly or falsely claim that the Privacy Act 1988 prevents targeted employees from discussing their bullying experience with colleagues, thereby limiting targeted employees' opportunities to obtain support and witness evidence, which naturally aids the agency in achieving its goal to 'contain' complaints so that the risk of legal liability is reduced);
- requiring that all parties, prior to participating in interviews, are to be informed of the scope of questioning (this will help reduce the risk of investigators asking unnecessary and intrusive questions which may infringe upon interviewees' privacy) and how interviews will be recorded;
- stipulating rules of evidence to ensure that evidence of questionable quality is not relied upon by investigators;
- recognising that all parties have a right to procedural fairness;
- recognising that whilst confidentiality needs to be maintained, the importance of open justice should also be a strong consideration (this is a significant problem in preliminary inquiries/investigations, as numerous investigators often misrepresent the coverage of the Privacy Act 1988 to support their claim that they cannot provide complainants with witness evidence or even records of meetings that the complainants participated in, leaving complainants with no sure way of knowing whether they have been provided with procedural fairness or knowing how much evidence they need to provide in order to persuade the investigators to find that their claims are substantial);
- ensuring that all parties are entitled to have a support person/advocate present during interviews, particularly given the fact that workplace mistreatment grievances involve emotionally charged matters and, consequently, parties may not be fully articulate, calm or have the ability to protect their interests;
- ensuring that parties are provided with the reasons of a preliminary inquiry/investigation outcome, not just the outcome itself, for the purposes of openness and transparency and to reduce the concern that complaints were not properly investigated (this is a problem in the APS, as some investigators mistakenly or falsely claim that providing the reasons for an outcome of a preliminary inquiry/investigation would be a breach of the Privacy Act 1988);
- ensuring that investigators, decision-making officers and review officers understand the case law around the meaning of 'vexatious' complaints (this is a problem in the APS, as some investigators, decision-making officers and review officers give the word 'vexatious' an overly wide meaning and therefore misuse this label, not realising that they often require evidence of the complainant's intentions to find that a complaint is actually vexatious);
- informing employees that they have a right to make complaints to external investigation/review agencies, if appropriate, particularly where employees do not have confidence in the independence, impartiality, fairness, transparency or competency of their APS agency's complaint-handling processes or complaint-handling officers;
- requiring organisations to be supportive of parties' choices to seek external assistance from specialist organisations or professionals that deal with workplace bullying, harassment, victimisation and discrimination matters.
| agis_2011.pdf |
5. Reigning in APS Censorship
The APS is notoriously hypersensitive about bad publicity and can go to desperate lengths to try to silence and frustrate someone engaging in a damaging exposure of the APS, particularly when it comes to APS employees. The APS is particularly worried about the networking power of social media. Two standout methods that the APS has concocted in silencing criticism and dissent is the 'Australian Public Service Commission's (APSC) Circular 2012/1: Revisions to the Commission's Guidance on Making Public Comment and Participating Online' (see the PDF document below) and gagging clauses in deeds of release (that is, the written terms of a settlement coming out of legal action). These are both discussed below.
A. APSC's Circular 2012/1
The APSC's Circular 2012/1 was introduced in January 2012 in reaction to the increased usage of social media by APS employees to critique the APS/Commonwealth Government and its decisions. The Circular instructs that it is not appropriate for APS employees to make comment that is, or could be perceived to be:
These instructions even apply to comments made in a personal and unofficial capacity outside of office hours and unrelated to the APS employee's area of work. The Circular does not refer to defences of truth, fair comment or public interest. Indeed, on the face of it, the APSC has arguably taken rather extreme measures in curbing criticism and dissent by APS employees.
It is yet to be seen how broadly the APS will interpret the instructions in the Circular and how consistently it will be applied. There have already been suggestions that the Circular is undemocratic and unconstitutional. The Circular also flies in the face of traditional and contemporary philosophical justifications of freedom of expression, that is: (1) to enable the quest for the 'truth'; (2) individual self-fulfilment and autonomy; (3) to facilitate self-governance; (4) to promote tolerance; and (5) to maintain a safety-valve for the release of destructive emotion. However, the main point is that the Circular is going to have a massive chilling effect on APS employee's freedom of expression long before a test case appears before the courts, thereby supporting the APS's goal to protect itself from public criticism by its own, no matter how justifiable the criticism is. Thus, targets of workplace bullying, harassment, victimisation and discrimination in the APS will no doubt be reluctant now to make public comment on their experiences.
The APSC needs to rewrite the Circular so that any censorship instructions are in line with the implied freedom of political communication under the Australian Constitution and in line with the philosophical justifications of freedom of expression.
A. APSC's Circular 2012/1
The APSC's Circular 2012/1 was introduced in January 2012 in reaction to the increased usage of social media by APS employees to critique the APS/Commonwealth Government and its decisions. The Circular instructs that it is not appropriate for APS employees to make comment that is, or could be perceived to be:
- so harsh or extreme in its criticism of the Commonwealth Government, a member of parliament from another political party, or their respective policies, that it raises questions about the APS employee's capacity to work professionally, efficiently or impartially;
- so strong in its criticism of an APS agency's administration that it could seriously disrupt the workplace - APS employees are encouraged instead to resolve concerns by informal discussion with a manager or by using internal dispute resolution mechanisms, including the APS whistleblowing scheme if appropriate;
- compromising public confidence in an APS agency or the APS (including lowering or undermining the reputation of an APS agency or the APS as a whole).
These instructions even apply to comments made in a personal and unofficial capacity outside of office hours and unrelated to the APS employee's area of work. The Circular does not refer to defences of truth, fair comment or public interest. Indeed, on the face of it, the APSC has arguably taken rather extreme measures in curbing criticism and dissent by APS employees.
It is yet to be seen how broadly the APS will interpret the instructions in the Circular and how consistently it will be applied. There have already been suggestions that the Circular is undemocratic and unconstitutional. The Circular also flies in the face of traditional and contemporary philosophical justifications of freedom of expression, that is: (1) to enable the quest for the 'truth'; (2) individual self-fulfilment and autonomy; (3) to facilitate self-governance; (4) to promote tolerance; and (5) to maintain a safety-valve for the release of destructive emotion. However, the main point is that the Circular is going to have a massive chilling effect on APS employee's freedom of expression long before a test case appears before the courts, thereby supporting the APS's goal to protect itself from public criticism by its own, no matter how justifiable the criticism is. Thus, targets of workplace bullying, harassment, victimisation and discrimination in the APS will no doubt be reluctant now to make public comment on their experiences.
The APSC needs to rewrite the Circular so that any censorship instructions are in line with the implied freedom of political communication under the Australian Constitution and in line with the philosophical justifications of freedom of expression.
| apsc_circular_2012-1.pdf |
B. Gagging Clauses in Deeds of Release
The use of confidentiality clauses and non-disparagement clauses in settlement agreements between an APS agency and a litigant is discussed at The Reality page. Non-disparagement clauses can be so wide as to prevent a litigant from making any kind of disparaging remark (which means to express a low opinion, regardless of how truthful or fair the remark is) about the whole of the Commonwealth and its past and current employees. The absurdity of such a wide clause means that litigants cannot even technically sign a petition against a Commonwealth Government policy. To impose such conditions on litigants, whom, at the time of agreeing to such conditions have usually reached a state of desperation in terms of dwindling financial resources and emotional reserves, is clearly exploitative. Where the litigants' legal action was about workplace bullying, harassment, victimisation or discrimination, the litigants' silence is bought forever, thereby destroying the disincentive for perpetrators and retaliatory/neglectful APS agencies to not engage in repeat misconduct, and also destroying the chances of future targets to obtain a behavioural history of their perpetrators and retaliatory/neglectful APS agencies.
Confidentiality clauses and non-disparagement clauses have been imposed by APS agencies regardless of the fact that:
Like the implications of the APSC Circular 2012/1 discussed above, there are clear arguments that such imposed confidentiality and non-disparagement conditions are undemocratic, unconstitutional and contrary to the philosophical justifications of freedom of expression. The Commonwealth Government needs to curb the APS's powers to impose such conditions on vulnerable litigants.
The use of confidentiality clauses and non-disparagement clauses in settlement agreements between an APS agency and a litigant is discussed at The Reality page. Non-disparagement clauses can be so wide as to prevent a litigant from making any kind of disparaging remark (which means to express a low opinion, regardless of how truthful or fair the remark is) about the whole of the Commonwealth and its past and current employees. The absurdity of such a wide clause means that litigants cannot even technically sign a petition against a Commonwealth Government policy. To impose such conditions on litigants, whom, at the time of agreeing to such conditions have usually reached a state of desperation in terms of dwindling financial resources and emotional reserves, is clearly exploitative. Where the litigants' legal action was about workplace bullying, harassment, victimisation or discrimination, the litigants' silence is bought forever, thereby destroying the disincentive for perpetrators and retaliatory/neglectful APS agencies to not engage in repeat misconduct, and also destroying the chances of future targets to obtain a behavioural history of their perpetrators and retaliatory/neglectful APS agencies.
Confidentiality clauses and non-disparagement clauses have been imposed by APS agencies regardless of the fact that:
- part 1, paras 4.5 of the Legal Services Directions 2005 states that an APS agency can only impose or agree to a confidentiality term of a settlement where it is necessary to protect the Commonwealth's interests (see the Legal Services Directions sub-page);
- there is no reference in the Legal Services Directions 2005 to non-disparagement clauses (see the Legal Services Directions sub-page); and
- the APS Values assert openness.
Like the implications of the APSC Circular 2012/1 discussed above, there are clear arguments that such imposed confidentiality and non-disparagement conditions are undemocratic, unconstitutional and contrary to the philosophical justifications of freedom of expression. The Commonwealth Government needs to curb the APS's powers to impose such conditions on vulnerable litigants.
6. One Consolidated Law - Unreasonable Behaviour
There is currently a patchwork of laws that deal with various types of unreasonable behaviour. There are civil remedies available under human rights legislation for employees who belong to a recognised protected category (see the Human Rights Law sub-page), and there are laws to protect employees from reprisals for exercising workplace rights (see the Workplace Laws sub-page). However, there is no real coherent system of legal rights under any legislation for targets of workplace bullying, which actually makes up the majority of unreasonable behaviour in the workplace.
Current debates are focusing on the introduction of anti-bullying laws to complement the existing laws that already deal with harassment, victimisation and discrimination. However, to add an extra layer to an already complex system of protecting employee's rights is unnecessary when the fine lines that separate bullying, harassment, victimisation and discrimination can simply be consolidated into one piece of legislation, along with administrative arrangements, so that the focus is not on the reasons or causes of the misconduct, but rather the unreasonable behaviour itself. The differences in understanding nuances between bullying, harassment, victimisation and discrimination can still be maintained at an educative level. Basing the consolidated legislation on the existing Fair Work System is a good place to start. A supplementary program set up to fund legal costs of targets who have merit in their case should also be considered so that targets do not have to dip into their own savings to protect their livelihoods and reputations, and there is an increase in equality of arms between a relatively unlimited resourced respondent and a resource-limited target.
Any consolidation and introduction of laws around unreasonable behaviour in the workplace will need to take into account the realities that complainants come up against when utilising existing protection measures, such as the APS Code of Conduct, namely:
Current debates are focusing on the introduction of anti-bullying laws to complement the existing laws that already deal with harassment, victimisation and discrimination. However, to add an extra layer to an already complex system of protecting employee's rights is unnecessary when the fine lines that separate bullying, harassment, victimisation and discrimination can simply be consolidated into one piece of legislation, along with administrative arrangements, so that the focus is not on the reasons or causes of the misconduct, but rather the unreasonable behaviour itself. The differences in understanding nuances between bullying, harassment, victimisation and discrimination can still be maintained at an educative level. Basing the consolidated legislation on the existing Fair Work System is a good place to start. A supplementary program set up to fund legal costs of targets who have merit in their case should also be considered so that targets do not have to dip into their own savings to protect their livelihoods and reputations, and there is an increase in equality of arms between a relatively unlimited resourced respondent and a resource-limited target.
Any consolidation and introduction of laws around unreasonable behaviour in the workplace will need to take into account the realities that complainants come up against when utilising existing protection measures, such as the APS Code of Conduct, namely:
- current codes, policies and laws are often used by employees higher up in the workplace hierarchy as both a sword and a shield against targeted employees lower in the workplace hierarchy;
- current codes, policies and laws can often be merely for public consumption rather than actual compliance, and formal complaint-handling processes are often designed to create the appearance of 'official concern' rather than be a genuine fact-finding and disciplinary process;
- regardless of codes, policies and laws being in place, in many cases, organisations' investigators have a perverse incentive to find that targeted employees are not being mistreated (or sometimes even unjustly paint targeted employees as the wrongdoers) in order to help the organisation avoid legal liability for detriment suffered by targeted employees;
- since targeted employees will often need to rely upon evidence from colleagues in order to substantiate their claims of being mistreated, targeted employees are at a huge disadvantage, as colleagues are notorious for being an unreliable class of witnesses, often refusing to provide evidence and denying/changing what they have claimed to have witnessed/stated out of fear that their job security or career advancement opportunities could be jeopardised;
- current codes, policies and laws offer little practical protection for those who suffer subtle mistreatment behaviours that can only be understood by those who have actually been in the targeted employee's position;
- inquiries/investigations are designed to leave targeted employees in the position of having to emerge either as a 'winner' or a 'loser', rather than being left with the possibility of a more neutral outcome, putting targeted employees at risk of victimisation if they emerge as a 'loser';
- internal review officers rarely deviate from inquiry/investigation decisions due to organisational micro-politics and the belief in protecting the portrayed legitimacy of inquiries/investigations;
- turning to external investigation/review agencies can often provide little remedy/satisfaction to targeted employees, due to these agencies' regulation constraints and under-resourcing, and sometimes bureaucratic incompetency or even corruption (thus, transforming external channels into mere symbolic channels).
7. Targeting APS Culture
There are some general high level cultural view changes that need to be addressed in the APS in order for workplace bullying, harassment, victimisation and discrimination to be effectively addressed. These are discussed below.
Firstly, there needs to be recognition of the need to invest more into training and education (the proactive approach) rather than inquiries/investigations (the reactive approach), as inquiries/investigations are not as effective, are more expensive in the long-run, and can have a punitive impact on complainants. In APS inquiry/investigation processes, the rights and the career of the (usually more senior) perpetrator seems to receive more attention than the rights and needs of the (usually more junior) complainant. This needs to change so that there is an equal balance of attention paid to the rights of the complainant and perpetrator.
Secondly, there is a false assumption in the APS that because there are policies and procedures in places then they must be effective, when they often are not. There seems to be a view that when a complainant agitates and uses other official channels open to them, then they must be the problem and are accused of 'shopping around' for assistance. This erroneous view needs to come to an end. Complainants actually have little choice in how their complaint is dealt with when the Commonwealth has set up a silos system of dealing with mistreatment issues, rather than a consolidated one. Targets are simply motivated to protect their well-being, career and reputation, which they should be entitled to do.
Thirdly, the APS needs to know that targets want their complaints heard, validated and proportionately acted upon. Perpetrators need to be punished - it is the strongest disincentive against repeated behaviour. When perpetrators are left unpunished, they are viewed as untouchable, thereby discouraging other targets from lodging complaints.
Fourthly, if employees who are targets of workplace mistreatment choose to resolve their concerns by themselves, their managers or supervisors should be responsible for ensuring they are protected from any reprisals for doing so. This protection needs to be officially afforded to targets because too often targets, who decide to confront their perpetrators, are punished by superior officers for this, thereby providing the perpetrators with an implied mandate to continue/escalate their unreasonable behaviour with impunity. Such an approach is negligible when research is revealing that a hostile-assertive confrontation by the targeted employee can be the best way to nip problem-behaviours in the bud.
Fifthly, the value of mediation in dealing with workplace mistreatment needs to be brought into serious question. This is because expecting targets to enter into agreements with their perpetrators constitutes a form of punishment to the targets. Given that targets usually face a detrimental power imbalance, they are often not in an equal bargaining position and may feel pressured to compromise on matters that should not be negotiable. For mediation to occur, parties to a dispute need to be accurately assessed as being the right candidates for mediation because they are genuine equals and approach mediation in good faith. It is essential that a presiding mediator be viewed by all participants as suitably qualified, fair, independent, impartial, non-judgmental, and has a genuine record of professionalism and integrity. It is also important to allow all parties to have a support person/advocate with them. When these prerequisites are met, this is the only time mediation can truly be considered as appropriate and legitimate. Otherwise, taking part in a mediation session that is run by amateurs or where candidates have not been properly assessed for suitability means that the odds are stacked against the target from the start and the target will nearly always suffer some form of detriment.
Sixthly, the fact that the current legal framework seems to be failing complainants needs to be officially acknowledged. This is because to use the official channels in the conventional manner is to play the opponent's game largely by the opponent's rules. Targets who are dis-empowered by using official channels should not be punished, but encouraged, when they subsequently decide to turn to social media to expose their plight, since use of social media currently seems to be one of the best tools targets have in trying to create an incentive for the APS to live up to its mantra that it does not tolerate workplace mistreatment, rather than relying on the current flawed legal framework.
Finally, policy analysts should pay greater attention to the issue of workplace bullying, harassment, victimisation and discrimination in the public services, as there is arguably a link between workplace mistreatment in the APS and lesser quality public policy creation and service delivery.
Firstly, there needs to be recognition of the need to invest more into training and education (the proactive approach) rather than inquiries/investigations (the reactive approach), as inquiries/investigations are not as effective, are more expensive in the long-run, and can have a punitive impact on complainants. In APS inquiry/investigation processes, the rights and the career of the (usually more senior) perpetrator seems to receive more attention than the rights and needs of the (usually more junior) complainant. This needs to change so that there is an equal balance of attention paid to the rights of the complainant and perpetrator.
Secondly, there is a false assumption in the APS that because there are policies and procedures in places then they must be effective, when they often are not. There seems to be a view that when a complainant agitates and uses other official channels open to them, then they must be the problem and are accused of 'shopping around' for assistance. This erroneous view needs to come to an end. Complainants actually have little choice in how their complaint is dealt with when the Commonwealth has set up a silos system of dealing with mistreatment issues, rather than a consolidated one. Targets are simply motivated to protect their well-being, career and reputation, which they should be entitled to do.
Thirdly, the APS needs to know that targets want their complaints heard, validated and proportionately acted upon. Perpetrators need to be punished - it is the strongest disincentive against repeated behaviour. When perpetrators are left unpunished, they are viewed as untouchable, thereby discouraging other targets from lodging complaints.
Fourthly, if employees who are targets of workplace mistreatment choose to resolve their concerns by themselves, their managers or supervisors should be responsible for ensuring they are protected from any reprisals for doing so. This protection needs to be officially afforded to targets because too often targets, who decide to confront their perpetrators, are punished by superior officers for this, thereby providing the perpetrators with an implied mandate to continue/escalate their unreasonable behaviour with impunity. Such an approach is negligible when research is revealing that a hostile-assertive confrontation by the targeted employee can be the best way to nip problem-behaviours in the bud.
Fifthly, the value of mediation in dealing with workplace mistreatment needs to be brought into serious question. This is because expecting targets to enter into agreements with their perpetrators constitutes a form of punishment to the targets. Given that targets usually face a detrimental power imbalance, they are often not in an equal bargaining position and may feel pressured to compromise on matters that should not be negotiable. For mediation to occur, parties to a dispute need to be accurately assessed as being the right candidates for mediation because they are genuine equals and approach mediation in good faith. It is essential that a presiding mediator be viewed by all participants as suitably qualified, fair, independent, impartial, non-judgmental, and has a genuine record of professionalism and integrity. It is also important to allow all parties to have a support person/advocate with them. When these prerequisites are met, this is the only time mediation can truly be considered as appropriate and legitimate. Otherwise, taking part in a mediation session that is run by amateurs or where candidates have not been properly assessed for suitability means that the odds are stacked against the target from the start and the target will nearly always suffer some form of detriment.
Sixthly, the fact that the current legal framework seems to be failing complainants needs to be officially acknowledged. This is because to use the official channels in the conventional manner is to play the opponent's game largely by the opponent's rules. Targets who are dis-empowered by using official channels should not be punished, but encouraged, when they subsequently decide to turn to social media to expose their plight, since use of social media currently seems to be one of the best tools targets have in trying to create an incentive for the APS to live up to its mantra that it does not tolerate workplace mistreatment, rather than relying on the current flawed legal framework.
Finally, policy analysts should pay greater attention to the issue of workplace bullying, harassment, victimisation and discrimination in the public services, as there is arguably a link between workplace mistreatment in the APS and lesser quality public policy creation and service delivery.