Public servants

The comments in this factsheet primarily apply to public servants employed by the state of Queensland.  Many of the comments are however also applicable to federal public servants.

Whilst a relatively small percentage of all employees are public servants, the Queensland government is the largest employer in Queensland. When private sector industrial powers were referred to the Commonwealth in 2009, the Queensland government retained its powers to regulate and deal with state public servants and employees of non constitutional corporations.  The state also governs the industrial relations of local government employees.

The starting point is to observe that private sector employment law is relatively simple in comparison to workplace relations law applying to public servants.  Queensland public servants are subject to the Industrial Relations Act 2016 and the Public Service Act 2008.  Industrial matters relating to Queensland public servants are largely dealt with by the Queensland Industrial Relations Commission and the Public Service Commission.  Federal public servants are subject to the Fair Work Act and the federal Public Service Act.

The key elements of Queensland’s industrial relations system include:

  • collective bargaining;
  • a safety net of minimum employment standards;
  • a system of industrial awards;
  • individual rights to fair treatment;
  • an independent commission and court; and
  • regulation of registered industrial organisations.

State public servants have similar avenues available to private sector employees in respect of unfair dismissal, breach of general protections rights, discrimination, workplace bullying and sexual harassment.  Queensland public servants also have a broad ability to raise disputes about industrial matters in the QIRC.  Schedule 1 of the Industrial Relations Act 2016 outlines a comprehensive list of industrial matters and includes things such as:

  • wages, allowances, leave and entitlements;
  • hours of work;
  • employment conditions;
  • interpretation and enforcement of industrial instruments (e.g. Awards or agreements); and
  • other disagreements in the workplace between employers and employees.

For some departments or groups, work arrangements may also be further regulated by specific Acts such as the Hospital and Health Boards Act 2011  which gives the Director-General of Health significant employment and industrial relations powers. The Public Service Commission has published various overarching directives, policies, circulars and guidelines which are supported by individual department and agency policies.

Generally, the starting point for any dispute or concern is to use the established internal review/grievance processes that exist in each department or agency.  Awards and enterprise agreements may also prescribe the process that applies in specific situations, such as performance improvement and disciplinary processes.  Queensland Health and Queensland Education for instance have their own detailed sets of department specific policies.

Apart from the broad ability to raise disputes about industrial matters in the Queensland Industrial Relations Commission, an alternative parallel system of internal appeals exists to the Public Service Commission.  Public servants can internally appeal:

  • action taken or not taken under a directive (e.g. Independent medical examinations directive);
  • disciplinary action taken under a disciplinary law (other than termination);
  • decisions by the Public Service Commission Chief Executive to direct an agency to fix a defect in the procedural handling of a work performance matter (e.g. suspension, discipline, workplace investigation);
  • suspension without pay;
  • promotion decisions (other than non-appealable appointments);
  • transfer decisions;
  • conversion, or lack of conversion, to a permanent role (e.g. non-conversion of a casual or fixed term temporary employee after 2 years, hours offered on conversion, non-appointment to a higher classification level after 2 years);
  • fair treatment.

However, some things can’t be appealed, including most recruitment and selection decisions.  The Public service appeal guide published by the Queensland Industrial Relations Commission offers a good guide to public service appeals.

As a general rule, state public servants can challenge a far broader range of issues than those in the private sector.  However, state public service law also has a number of features (some may say quirks) that distinguish it from private sector employment law, such as:

  • there is no compulsory entitlement to redundancy pay and this entitlement is subject to enterprise agreement or industrial award provisions;
  • the ability to bring unfair dismissal claims is subject to completing probation;
  • executive service level employees have much reduced rights to challenge decisions, or not rights of challenge at all, including termination of employment;
  • there is no discretion to grant legal representation rights in Public Service Commission matters.

It is also important to note that not everyone employed by the state is regarded as a public servant or entitled to the full range of rights available to public servants.  Employees of statutory authorities may be subject to some provisions of the public service legislation and the various Public Service Commission directives but not all.   Employees of government owned corporations will generally fall under federal employment law.

Local government employees have their conditions regulated by local government legislation and specific awards and enterprise agreements and do not fall under general public service legislation.