Public Sector Employment in the Twenty-First Century Public Sector Employment in the Twenty-First Century Marilyn Pittard Phillipa Weeks EdiTorS Published by ANU E Press The Australian National University Canberra ACT 0200, Australia Email: [email protected] This title is also available online at: http://epress.anu.edu.au/public_sector_citation.html National Library of Australia Cataloguing-in-Publication entry Public sector employment in the twenty-first century. ISBN 9781920942601 (pbk.) ISBN 9781920942618 (online) 1. Civil service - Australia. 2. Labor contract - Australia. 3. Privatization - Australia. 4. Contracting out - Australia. 5. Labor laws and legislation - Australia. 6. Industrial relations - Australia. 7. Civil service - New Zealand. 8. Civil service - Great Britain. I. Pittard, Marilyn J. (Marilyn Jane). II. Weeks, Phillipa. 351.60994 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of the publisher. Cover design by Teresa Prowse Cover image used by permission of Bruce Moore Printed by University Printing Services, ANU This edition © 2007 ANU E Press Table of Contents Phillipa Weeks 1953 – 2006: A Tribute vii Preface xi Contributors xiii Chapter 1. Public Sector Employment in the Twenty-First Century: Themes and Introduction, Marilyn Pittard and Phillipa Weeks 1 Chapter 2. The Reshaping of Australian Public Service Employment Law, Phillipa Weeks 11 Chapter 3. The Australian Public Service: Statutory, Doctrinal and Institutional Arrangements for its Governance, John R Nethercote 55 Chapter 4. A Revised Legislative Framework for Australian Public Service Employment: The Successive Impacts of the Workplace Relations Act 1996 (Cth) and The Public Service Act 1999 (Cth), Mark Molloy 81 Chapter 5. From Workplace Bargaining to Workplace Relations: Industrial Relations in the Australian Public Service under the Coalition Government, John O’Brien and Michael O’Donnell 127 Chapter 6. Whistleblower Protection and the Challenge to Public Employment Law, Robert G Vaughn 155 Chapter 7. Outsourcing and New Employer Entities: Challenges to Traditional Public Sector Employment, Marilyn Pittard 189 Chapter 8. ‘The Politics of Partnership’: The Evolution of Public Sector Industrial Relations in Victoria, Peter Gahan 229 Chapter 9. Reconstructing State Employment in New Zealand, Jane Bryson and Gordon Anderson 253 Chapter 10. The Privatisation of the Civil Service, K D Ewing 281 Chapter 11. Challenges Ahead: Workplace Relations Legislation and the Future, Marilyn Pittard 309 Table of Cases 317 Table of Statutes 319 Index 327 Phillipa Weeks 1953–2006 A Tribute1 Phillipa Weeks spent much of her life being too young. She won her first major scholarship in 1963, a Canberra-Goulburn Archdiocese Bursary to enter first year of high school as a boarder at Our Lady of Mercy College Goulburn, but had to forfeit it because she was only 10! Six years later, having completed her schooling at Harden Catholic Primary School, Cootamundra Catholic High School (to year 10), and Cootamundra High School (to year 12), she won a prestigious National Undergraduate Scholarship to attend The Australian National University at the age of only 16 Ð too young even to have a drink, legally, at the University Union bar. And on 4 August 2006, she died of cancer at the age of only 53 Ð far too young for a person whose outstanding achievements to that point, and whose remarkable impact on those around her, only underlined how much more she still had to give. Phillipa was born in Sydney in 1953, the oldest of four children. The family moved to Harden, in country New South Wales, when she was two, and later to Cootamundra. Her secondary school final year results in 1969 were brilliant: 1st in the State in Modern History, 5th in French, 16th in English, and School Captain to boot. Taking up the scholarship that led her to the ANU, she graduated in 1974 with a Bachelor of Arts, with first class honours in history, in the course of which she clearly made a considerable impression on Professor Manning Clark, who later mentioned her in his autobiography in the company of Geoffrey Blainey and Ken Inglis.2 After a brief stint with the Department of Foreign Affairs in 1975, Phillipa turned to the law in 1976, embarking on a graduate-entry law degree at ANU.3 She graduated in 1979 with first class honours and a swag of prizes, including the Supreme Court Judges Prize for the best honours result on graduation. Her talent, and her potential for an outstanding academic career, were quickly spotted, and she was recruited, when she was but a student in Family Law in 1978, to teach that subject in 1979. vii Public Sector Employment in the Twenty-First Century A tenurable position in the Faculty became available in 1982 for a specialist in property law, one of the few subjects which Phillipa had not been called upon to teach in her four years of temporary teaching appointments. The selection committee wisely invested in her potential, and she turned herself into a leading property lawyer, though the scholarship for which she is best known is her work in the area of labour law. She won the ANU's prestigious Crawford Prize in 1987 for her LLM thesis on trade union law, and subsequently earned a well-merited reputation as one of Australia's leading labour lawyers. She was appointed as a Professor of the ANU in 2001, and in her Inaugural Professorial Lecture in early 2002 spoke on `Fairness at Work', a subject on which she was not only an incisive and insightful scholar, but also, in her capacity as Associate Dean and Head of School from 2000 to 2005, a masterful exponent. Phillipa's scholarship made a significant contribution to our understanding of labour law, particularly in the areas of trade union security, freedom of association, and public sector employment. The last topic is of course the subject of this book, Phillipa's final work, published posthumously; indeed, checking the proofs was the last work-related thing that Phillipa did before she died. She also made a significant contribution as a teacher, and not just because of the clarity of her exposition and the sweep of her erudition. Generations of students attest to the personal interest she took in them, citing in particular her practice of writing personal notes of congratulation and encouragement; this in an era in which teachers of larger and larger classes are hard-pressed to know their students by name, let alone to have a meaningful relationship with them. If her contributions to scholarship and teaching were significant, her contributions to the university and the wider community were astonishing: Director of the Credit Union of Canberra, Member of the Social Security Appeals Tribunal, Chair of the ACT Sex Industry Consultative Group, and a plethora of like offices and activities. Although quite ill, she was fittingly honoured for her service to the university community at an ANU graduation ceremony in December 2005, when a packed Llewellyn Hall rose to its feet as one and movingly paid tribute Ð a magical moment that will live in the memory of those present. It is not these contributions, however Ð significant as they are Ð for which Phillipa Weeks will be primarily remembered. Every now and again, a person comes along with personal qualities that (if we assume, as we must, that they are capable of acquisition rather than simply part of our genetic inheritance) are truly inspirational. A mere catalogue cannot do Phillipa justice, but these are some of the values and qualities with which she was typically identified: grace, empathy, generosity, integrity, compassion, courtesy, kindness, modesty, collegiality, humanity, commitment, honesty, respect, wisdom, warmth, positiveness, unaffectedness, courage, gentleness, good humour and a good sense of humour Ð and yet, amidst these saintly characteristics, an indelible viii Phillipa Weeks 1953–2006: A Tribute professionalism, even a certain toughness when the situation required it. She was, most of all, a refreshing and powerful antidote to cynicism, an awesome role model, and incontrovertible, though regrettable, evidence of the truth of the aphorism that it is indeed the good who die young. A measure of the affection and esteem in which Phillipa was held is that, at the ANU College of Law Annual Alumni Dinner on 25 August 2006, a group of Phillipa's former students spontaneously initiated a fund-raising campaign for a scholarship in her name. Accordingly, the Phillipa Weeks Scholarship in Law has been established at the ANU, and will assist students who have a country or regional background not dissimilar from Phillipa's own formative experiences in Harden and Cootamundra and who display similar academic and leadership qualities.4 Phillipa Weeks was a wonderful colleague and a very special person, and is sorely missed. Her presence defined the spirit of collegiality that pervades the ANU College of Law. Her memory will continue to do so. Professor Michael Coper Dean of Law and Robert Garran Professor The Australian National University ENDNOTES 1 This is an edited version of the obituary that first appeared in The Canberra Times on 16 December 2006. A more comprehensive and personal eulogy, delivered by the author at Phillipa's funeral on 9 August 2006, is published in (2006) 34 Federal Law Review iii, together with the proceedings of a memorial gathering for Phillipa held at the ANU on 31 August 2006. 2 Manning Clark, The Quest for Grace (Viking, 1990) 212, and see SG Foster and Margaret M Varghese, The Making of The Australian National University 1946-1996 (Allen & Unwin, 1996) 209. 3 Phillipa's husband Ian Hancock, also then an ANU historian, has remarked that Phillipa's abandonment of a career in Foreign Affairs meant that, rather than have them wasted on the Russians, the ANU was to become the beneficiary of her considerable skills of tact and diplomacy.