APSC in the FWC

M Poler made this Freedom of Information request to Australian Public Service Commission

The request was successful.

From: M Poler

Delivered

Dear Australian Public Service Commission,

I refer to the decision of the Full Bench of the Fair Work Commission in [2019] FWCFB 143 available here: https://www.fwc.gov.au/documents/decisio...

and I note the following at paragraph [146] onwards:

“[146] With regard to the interactions between the Department and the APSC in this case, having reviewed the various communications referred to by the CPSU in its submissions we consider that overwhelmingly those interactions were consistent with the APSC’s role under the Government’s Workplace Bargaining Policy. However, we also consider that there was at least one instance where in our view the APSC inappropriately exceeded its “gatekeeper” role. Specifically, on 22 July 2015 the APSC sent an email to a number of agencies which read as follows:

“Dear Colleagues

As you may be aware from recent discussions, there are now a number of agencies who are close to being able to put EAs out for a vote. We have identified your agencies as those who are in this category, or who could be with some quick work on obtaining final approvals. You or your staff may have already had discussions with me or other staff from the APSC along those lines.

Given recent experience, we think there is value in a coordinated approach to timing, such that a number of EAs are put out to a vote on or near the same day. Our informal discussions with agencies so far suggest thinking is coalescing around two clusters of voting dates: a first group around the week commencing 17 August and the later group in or about the week commencing 31 August.

With that in mind, would you let me know:

• whether you’d be interested in being part of a coordinated strategy; and
• whether you think you will be sufficiently advanced in terms of bargaining and approvals in the next week or two, to be able to facilitate this.

We will do everything we can from our end to facilitate the necessary policy approvals.
Given the sensitivities involved, we’d ask that these discussions be treated confidentially.”
[…]

[150] The above email extracts show the APSC engaging in a strategic role regarding the timing of votes on proposed agency agreements. This in our view is inconsistent with the role of the APSC as set out in administering the Government’s Workplace Bargaining Policy and providing advice to agency on the Government’s employment and workplace relations policies...."

Under the FOI Act, I seek a copy of the complete email that has been partially extracted at paragraph [146] of the Full Bench’s decision. I agree to the APSC redacting the names of any persons included in that email except where those persons were, at the time the email was sent, either: a) the Public Service Commissioner, or b) an APSC staff member. I note the following contained in the OAICs FOI Guidelines:

“6.152 Documents held by agencies or ministers often include personal information about public servants. For example, a document may include a public servant’s name, work email address, position or title, contact details, decisions or opinions.

6.153 Where public servants’ personal information is included in a document because of their usual duties or responsibilities, it would not be unreasonable to disclose unless special circumstances existed. This is because the information would reveal only that the public servant was performing their public duties Such information may often also be publicly available, such as on an agency website.

6.154 When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose. In seeking to claim the exemption an agency needs to identify the special circumstances which exist rather than start from the assumption that such information is exempt”

Yours faithfully,
M Poler

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From: FOI
Australian Public Service Commission

Dear Sir/Madam

I am writing to acknowledge receipt of your request under the Freedom of Information Act 1982 for access to documents. The statutory timeframe for responding to your request is 30 days from the date your request is received. This timeframe may be extended in certain circumstances. You will be advised should this occur.

Regards

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From: FOI
Australian Public Service Commission


Attachment 2019.01.24 FOI request M Poler copy of signed decision.pdf
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For Official Use Only
Dear M Poler

I refer to your FOI request below.

Please see attached decision letter.

Regards
Susannah

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From: M Poler

Delivered

Dear FOI,

Thank you for your response and the quick turnaround.

Yours sincerely,

M Poler

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