Circular 2011/3: Additional Advice to Agencies on Facilitating Access to Employee Representatives

Last updated: 13 Apr 2011

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1. The purpose of this Circular is to provide additional advice in response to frequently asked questions from APS agencies:

  • on the facilities to be provided to union delegates and bargaining representatives under the Australian Public Service Bargaining Framework (APSBF);
  • on issues arising under the Privacy Act 1988 in respect of access to employee email addresses; and
  • to ensure that employees have access to enough information to make decisions.

Agencies should note that this advice provides further information and clarification on current Australian Government policy, and should be read in conjunction with the APSBF and Supporting Guidance. In that context, this advice is not intended to diminish any existing arrangements which have been agreed and are successfully operating.

APS employees’ right to representation

2. Under the APSBF, the role of workplace representatives, including union delegates and other bargaining representatives, is to be respected and facilitated. It is also the Government’s expectation that agencies will work collaboratively and professionally with employee representatives, both to resolve issues arising in the workplace and to establish practices and procedures in APS workplaces which facilitate employees’ access to their representatives.

3. In order to facilitate this collaborative and professional relationship, the APSBF outlines a minimum range of facilities to be provided to employee representatives both in bargaining and during the normal course of business.

4. When facilitating employee access to representatives during bargaining, agencies should discuss their proposed approach to facilities matters with unions, union delegates and bargaining representatives, seeking to resolve any issues collaboratively wherever possible.

Provision of ongoing facilities under Attachment C

5. Attachment C to the APSBF outlines the principles in relation to minimum ongoing facilities for workplace delegates which are to form the basis of protocols which agencies should enter into with relevant unions on these matters.

6. Agencies should note that it is Australian Government policy that “it is not intended that any existing facilities provided be reduced where they exceed the minima” (Supporting Guidance, paragraph 1.5.6). For the avoidance of doubt, these existing facilities include facilities provided to union delegates in the normal course of business arising from Attachment C to the Supporting Guidance, or local arrangements entered into with union delegates reflecting Attachment C. These facilities should not be reduced in bargaining when Attachment B comes into operation in respect of bargaining representatives.

7. These ongoing facilities include, but are not limited to:

  • the right to reasonable paid time to provide information to and seek feedback from employees in the workplace on workplace relations matters (including bargaining) at the agency during normal working hours; and
  • the right to email employees in their workplace to provide information and seek feedback, subject to individual employees exercising a right to ‘opt out’.

Extension of bargaining facilities under Attachment B

8. Attachment B to the APSBF outlines the minimum facilities which are to be provided to bargaining representatives in the context of negotiating enterprise agreements.

9. Agencies should extend the level of facilities provided, or access to those facilities, beyond the minima outlined in Attachment B where agency circumstances support doing so. In particular, agencies are encouraged to extend the provision of such facilities where it is considered that doing so is likely to enhance or expedite the bargaining process, where those facilities have been provided under existing protocols, or there is an existing custom or practice within the agency which supports the extension of those facilities.

10. Agencies should also consider the importance of employees receiving information on the views being expressed by all parties in relation to bargaining in the interests of a fair and balanced approach. Agencies should therefore consider, in the light of the numbers and level of representation of bargaining representatives within their agency, the appropriate facilities to extend to bargaining representatives, having regard to the good faith bargaining and general protections and other provisions of the Fair Work Act 2009 (FW Act).

Good faith bargaining provisions

11. The good faith bargaining requirements of the FW Act require all bargaining representatives to conduct themselves appropriately during bargaining, including refraining from "capricious or unfair conduct that undermines freedom of association or collective bargaining" (FW Act s.228(1)(e)).

12. To this end, and particularly when there are bargaining representatives other than unions who represent a significant number of employees, agencies should ensure that their approach to facilities is fair in all of the circumstances and any differences in facilities can be justified.

General protections and adverse action provisions

13. The general protections provisions (FW Act Part 3-1) outline a range of protected workplace rights. These include "industrial activities" related to membership of, and involvement in the activities of, an industrial association. They prohibit the taking of adverse action against an employee (or in some cases, a prospective employee or independent contractor) for exercising, or choosing not to exercise, those rights. Adverse action includes dismissal, discriminating between employees, or anything which injures a person in their employment or alters the position of an employee to the employee’s prejudice. These protections apply at all times irrespective of whether bargaining is taking place.

14. The general protections provisions apply to APS employers at all times. When considering their approach to facilities, agencies should be mindful of particular provisions of the general protections, such as the provision regarding discrimination between employees on the basis of their membership or non-membership of a union. Where agencies provide different levels of access to facilities for different bargaining representatives, the agency should ensure that their approach to facilities is fair in all of the circumstances and any differences in facilities can be justified.

Particular agency circumstances

15. Agencies should note that establishing whether a particular course of action was in breach of the good faith bargaining requirements or general protections would depend on the particular facts, and should not necessarily be guided by the actions of other agencies when considering their own options.

Further issues for agency consideration

Access to agency email facilities

16. As agencies would be aware, Attachment C to the APSBF provides that union workplace delegates have a variety of rights including the right to email employees in their workplace to provide information and seek feedback, subject to individual employees exercising a right to ‘opt out’.

17. The APSC has recently received advice from the Australian Government Solicitor (AGS) on the application of the Privacy Act 1988 (Privacy Act) in relation to the provision and use of employee email addresses. While the risks highlighted by this advice may be small, and can be mitigated through adoption of approaches outlined below, agencies should consider these risks as necessary in the context of their own operations.

18. AGS considers that work emails include ‘personal information’ relating to information about an employee’s place of work including the work email address itself. Disclosure and use of such information may give rise to Privacy Act issues.

19. The risk that an issue may arise under the Privacy Act is very much dependent on individual agency circumstances and the arrangements that are in place. For example, where there are well-established practices around access to and use of email addresses, continuing those practices may not create any issues in relation to the Privacy Act.

20. There are a number of options that have already been utilised by agencies to facilitate email communication that are unlikely to cause Privacy Act concerns. Some of these include:

  • creating a blind email list (e.g. "all staff APSC" or "all staff Victorian State Office"), provided that it was not possible to go behind the blind list and retrieve individual email addresses from it; or
  • distribution of material by the agency on behalf of union delegates or bargaining representatives as applicable.

Publishing information through agency email facilities

21. In facilitating email communication, APS agencies should also be careful to ensure that such arrangements do not give rise to any liability to the Commonwealth as a ‘publisher’ of material. As with the potential Privacy Act concerns, arrangements to facilitate email communication can be designed in such a way to mitigate this risk. This may include for example the use of disclaimers about the employer not necessarily endorsing the content of any emails sent through its systems and ensuring that there are clear expectations placed around the conditions of use of agency IT facilities for these purposes.

APSC Contact

22. Should you require further information or assistance on this matter, please contact the visit www.apsc.gov.au or email workplacerelations@apsc.gov.au.

Stephen Sedgwick
Public Service Commissioner
14 April 2011