Heads of Corporate Forum

1. Heads of Corporate Forum 10 December 2013

2. APS Strategic Workforce Analysis Tony Cotton Human Capital Research and Evaluation Group

3. Background • Aim is to improve the human capital information we provide to agencies. • Agencies identified critical skills gaps. • HR, ICT, Accounting and Finance • Develop methodology • Identify outcomes

4. Purpose • To identify key issues facing the HR occupational group in the APS • To develop an understanding of external labour supply issues and risks • To provide the evidence base to inform the HR strategies required to address these skills shortages and related risks

5. This paper will …… Draw on the following data streams: Integrate these data streams to understand: Potential current and future supply of employees Externally Internally Nature of employee engagement • SOSR Employee Census Data • SOSR Agency survey data • ABS Census data • External Labour Market • Internal Labour market

6. Through this lens we will be able to understand… • Our internal HR labour market • HR employee attitudes and opinions • Where employees are located • Agency skill shortages • External HR labour market • Skill shortages in domestic labour market • Location of HR talent pools

7. …and provide to agencies • Potential future critical skills gaps • Potential strategies to address these • Information to assist strategic workforce planning.

8. So what do we know?

9. The National HR workforce

10. How are HR professionals and their managers distributed across industries? Lots of processing staff in admin services. Higher proportion of “managers” in professional and scientific and public administration.

11. The APS HR workforce.

12. Respondent Profile 4,741 HR staff. 71% female (higher than the APS figure of 57%) Tend to be more centralised (44% ACT-based compared to 39% in the APS). Similar pattern of service length to the APS. Less likely to have tertiary qualification (44% compared with 51%) Substantially different classification profile from the APS.

13. Workforce capability and capacity

14. What is it like to work in HR in the APS?

15. HR Leaders Forum • Asked two questions: • Are HR specialist skills required? • What do lack of tertiary qualifications mean?

16. HR Leaders Forum • Are HR specialist skills required? • Depends on size of agency • Value in training managers in HR roles • Mobility is valuable for both HR and generalists • HR specialists are most effective when they understand the business they serve.

17. HR Leaders Forum • What do lack of tertiary qualifications mean? • Depends on level and role (specialist or generalist) • Important for growth (and maintenance) of HR in the APS. • While a good manager can be a good specialist there are times when you need a specialist.

18. There is more…. Information Communication and Technology Accounting and finance

19. What we want from you… • Next Heads of Corporate forum: • Presentation of the data to date. • Seek your input on key questions for ICT and Accounting and Finance. • Seek volunteers to participate in in-depth interviews about expectations for these job families.

20. Heads of Corporate Forum - Privacy and Transparency - How to have your cake and eat it ! Karin Fisher Group Manager Ethics Group 10 December 2013

21. Privacy and Transparency The extent to which people who have made allegations of misconduct by an APS employee should be informed about the outcome of their complainant and whether the outcome should also be disclosed to others The publication of staffing decisions, in particular terminations decisions and the reasons for the termination, in the APS Gazette

22. Why are we doing this work? • For some years the Commission has provided guidance to agencies and employees about the information that is appropriate to disclose to a person who has reported misconduct by another employee • Circular 2008/3 providing information on Code of Conduct investigations outcomes to complainants • Circular 2007/2 the Privacy Act and information concerning Code of Conduct matters • Recent cases, as well as enquiries to the Ethics Advisory Service, have indicated a cautious approach by agencies – a tendency to err on the side of non-disclosure; understandable but could lead to public criticism

23. Case example 1– Mr Brown • Mr Brown wrote to the PSCer complaining about the actions of an agency employee • That employee had sent a tweet using a twitter handle (which did not give his name) commenting in a highly derogatory way about Mr Brown • Mr Brown reported that the tweet had been re-tweeted by others and had a hash tag that made it easily accessible • Mr Brown also reported that the employee had owned the tweet, had identified himself as an APS employee in other blogs/articles but said that his comments did not represent the views of his agency • Mr Brown asked whether the employee had breached the Code of Conduct

24. Case example 1 –Mr Brown cont. • The PSCer referred the complaint to the agency and informed Mr Brown • About 3 months later Mr Brown wrote again saying he had heard nothing further • The agency advised the Commission that it had addressed the complaint and gave contact details to be passed to Mr Brown • There was a delay in passing those details on and Mr Brown contacted the Commission again about 4 months later. Contact details were passed to Mr Brown and the agency wrote to Mr Brown two week later. • Unfortunately, the agency referred Mr Brown back to the Commission and cited privacy as the reason for not being able to disclose any information about the outcome. • Senior staff from the Commission took the matter up with senior staff in the agency. • The agency briefed the Commission that Mr Brown had subsequently been advised that the matter had been taken seriously, and was acted on in accordance with agency procedures, but that on legal advice it could not release any further information about the details of the outcome.

25. Case example 1 –Mr Brown cont Shortly after an article appeared in the public domain outlining the incident on Twitter and the response by the Commission and the agency. The article stated, among other things: What warrants immediate attention within the bureaucracy is the tardy effort from the APS in dealing with the complaint, and the lack of information about what occurred in response to it. …Still, the information passed on was hardly satisfactory. Apparently the matter had been resolved in [date] but the agency and APSC had "forgotten" to inform [the complainant]. And now, regardless, they refused to provide details of the outcome…

26. Case example 1– Mr Brown cont On the same day Mr Brown posted a piece on a website, For eight months I was shunted, fobbed off, given the flick and ignored by the Australian Public Service Commission and [name of agency] regarding a complaint about a public servant who tweeted … It had started to feel like they were running some kind of protection racket. Mr Brown also said the dismissive tone of the email from the agency notifying the outcome offended him: It made me feel like I was doing something wrong for even asking to know the outcome. Why the secrecy?

27. Case example 2 Federal Court case dealing substantively with a different issue The applicant had previously made a complaint against another employee in the agency, whose conduct was investigated as a result The applicant was advised that ‘appropriate action’ had been taken by the department in relation to the complaint, but the Privacy Act prevented disclosure of any relevant details Neville J said The letter is (a) less than informative (or otherwise illuminating), and (b) classic ‘Yes Minister’ speak

28. Case example 3: Ms J and FOI request An employee complained about her supervisor The agency investigated whether the supervisor had breached the Code of Conduct and determined that she had done so. The agency informed the employee that a breach had been found, and that [a]ppropriate action has now been taken. The employee then sought access under FOI to the investigation report and details of any sanction The agency refused access citing, among other things, personal privacy exemption

29. Case example 3: Ms J and FOI request cont On review the FOI Commissioner released documents that disclosed the outcome of the investigation noting: I do not consider it unreasonable to disclose this information to the applicant in these circumstances. Indeed, that disclosure may assure the applicant that the Department (in the words of the APSC circular) has taken her allegation seriously, does not tolerate behaviour that is inconsistent with the APS Code of Conduct, has imposed an appropriate sanction where a breach has been found, and has taken appropriate steps to ensure the problem will not recur. If the Department had provided the applicant with more information about the outcome of the investigation (not necessarily in written form), the result of her FOI request might have been different. The disclosure of the supervisor’s personal information to the applicant might not have been reasonable if the Department had already provided the applicant with more detail about the outcome of the investigation, so some of the documents the subject of this IC review might have been exempt

30. Privacy and protection of information International Covenant on Civil and Political Rights—Article 17: No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Privacy Act 1988—regulates the collection, use, and disclosure of personal information, such that any limitations imposed on individuals’ right to privacy are reasonable and lawful. Both the ICCPR and the Privacy Act recognise that the right to privacy and protection of reputation is not unfettered.

31. Privacy and protection of information cont. Article 17 of the ICCPR is concerned with arbitrary or unlawful intrusions into a person’s activities. As explained in guidance from AGD: Article 17 of the ICCPR does not set out the reasons for which the guarantees in it may be limited. However, limitations contained in other articles, for example, those which are necessary in a democratic society in the interests of…. public order, ….or the protection of the rights and freedoms of others, might be legitimate objectives in appropriate circumstances in respect of the prohibition on interference with privacy and attacks on reputation. In any event, limitations on privacy must be authorised by law and must not be arbitrary. The term unlawful means that no interference can take place except as authorised under domestic law.

32. Privacy and protection of information cont. Tension between private interests and the public interest: Private—an employee whose conduct has been called into question has the right to privacy and to the protection of their reputation Public—providing information about the outcome of a complaint gives confidence to complainants and the public that suspected misconduct is taken seriously and addressed appropriately by agencies. Agency employees also : need to know that expected standards of behaviour are being enforced and that action in taken when behaviour falls below those standards have a right to expect a safe, harmonious working environment; and that their agency will address and resolve their complaints

33. Questions? Is an employee’s right to protection of their reputation limited by their own poor behaviour? How far is it reasonable to protect an employee from the consequences of their own misconduct? What if the behaviour is not serious? Who should have access to information about the outcome of a complaint of misconduct? The complainant in all circumstances, or only where they have been adversely affected by the alleged misconduct? All employees in the agency, provided the identity of the employee who breached the Code is not disclosed? How practical is this?

34. Questions? cont. What information should be disclosed? Whether a code investigation was conducted as an outcome of the complaint and, if not, why not? Whether the matter was dealt with in another way and how? Whether a breach was found and if not why not? Any recommendations made in the absence of a finding of a breach? The sanction if imposed? Where information is disclosed to the complainant, should there be an attempt to limit any further disclosure so as to protect the privacy of the employee? How likely is it that providing information will jeopardise the willingness of individuals to provide information to subsequent Code of Conduct investigations? What would be helpful to agencies in Commission guidance? What information do complainants need to know about how privacy and complainants of misconduct are handled generally in the APS?

35. Why are we doing this work? cont. The Parliamentary Joint Committee on Human Rights in reviewing the Australian Public Service Commissioner's Directions 2013 commented: ..why is it necessary to publicise employment decisions in the Public Service Gazette, in particular publication of decisions to terminate employment and the grounds for termination, and how is this compatible with the right to privacy and the Convention on the Rights of Persons with a Disabilities [i.e. where termination is due to a physical or mental incapacity]…?

36. Gazettal of employment decisions • The gazettal of certain employment decisions has been a feature of public service legislation for many years • The 1922 PS Act – ‘notice of every appointment, promotion, retirement or dismissal of officers’ as well as certain transfers ‘shall be published in the Gazette’ • Under the 1999 arrangements, the requirements were moved to the PS Regulations in substantially the same form • Reg 3.12 amended in Dec 2000 to include a specific requirement that the gazettal of termination decisions include the grounds for termination

37. Gazettal of employment decisions cont • 2013 changes did not address broad issue of gazettal but inserted a provision allowing the PSCer to agree to an agency withholding the name of an employee from the gazette notice in certain work-related or personal circumstances • The arrangements for gazettal in recent years have moved broadly in the opposite direction to agency practice

38. Gazettal of employment decisions cont • The majority of employer-initiated employment decisions are required to be gazetted • although employee-initiated decisions such as resignation and retirements are not. • Publishing APS employment decisions reinforces the openness, transparency and accountability of the APS. • Notifying engagement and promotion decisions in the Gazette: • allows the community to hold the public service to account that such decisions are based on merit • provides a public record of when engagement and promotion decisions take effect. • for promotions, the gazettal also facilitates applications for review of certain promotion decisions.

39. Gazettal of employment decisions cont • Rationale for publishing termination decisions, including those relating to SES employees, which contain the name of the employee and the grounds for termination, is not as strong. • Openness and transparency are important • but needs to be balanced against the concerns expressed by the Committee about the impact on the privacy of employees (noting that the right to privacy is not an absolute right)

40. Next Steps Release of a public discussion paper in the next few weeks Grateful for your views ASAP on any matter that should be highlighted in forthcoming discussion paper Please look out for the paper and provide comment in light of your experiences Happy to have private discussion as well Contacts: Karin Fisher, Group Manager, Ethics 02 6202 3846 karin.fisher@apsc.gov.au Helena Sverdlin, A/g Director, Ethics Advisory Service 02 6202 3842 helena.sverdlin@apsc.gov.au Ethics Advisory Service 02 6202 3737 ethics@apsc.gov.au