NSW Wants Power Without Accountability


What is the difference between the “public service” and the “government sector”? It's not immediately obvious to everyone, but the NSW Government has a good idea. The Government Sector Employment Bill 2013 currently before the NSW Parliament may well be a clever attempt to make strong inroads into reducing the size of the formal public service, while increasing significant control over the less defined, uncertain and growing government sector.

The broader range of services provided by the NSW Government are being redefined to be more inclusive of pretty much anything the Government decides to include. This is taking place through a change in regulation. It's best described using an example: let's consider the TAFE Commission.

In 2011, TAFE employees were moved from the public service (under control of the minister) and under the NSW Industrial Relations Commission, to being employed by the TAFE Commission and under the Fair Work Act. The big problem the Government then had was how to control what the executive of the TAFE Commission did with their employees, with the wages cap, spending Government money and other workforce related policies.

Under these proposed laws, and a simple change in regulation, the NSW Government will be able to have significant control over the TAFE Commission and its employees. The misnamed Public Service Commissioner will be able to create "employment rules" applying to, and binding, the TAFE Commission. This will effectively prevent any genuine negotiations between management and staff as the employment rules are legally imposed.

The commissioner will also have a unique power just for the government sector, in issuing "directions" to the heads of the government sector agencies or organisations. These directions will be legally binding on the heads of the agencies and unable to be amended.

Let's be clear: this is a new mechanism to remove the management prerogative from the heads of government sector agencies. By contrast, the heads of the public service departments can ignore a direction issued by the commissioner, as long as they report on the reasons why they chose to ignore it.

The commissioner will be required to consult with the head of a government sector agency before issuing a direction. It would be assumed then that a direction would be by negotiation. The loss of discretionary power in these circumstance then gives rise to serious questions on how this power will be used, and why it would be instigated.

Another possible example of how widespread this could be, is how it could be applied to NSW universities. The draft Bill proposes that NSW universities will be part of the Government Services for the purposes of the new Workforce Diversity section. This section will replace the Equal Employment Opportunity laws currently in the Anti-Discrimination Act 1977 (NSW).

Using the University of Sydney as an example, the NSW Government could then include the University of Sydney to be part of the broader "government sector" by simple regulation. Then the commissioner could issue legally binding directions to the Vice Chancellor. This would give legal effect to, among other things, a cap on wage rises at 2.5 per cent per year, and any other workforce related issues they had discussed.

This would certainly help the Vice Chancellor at the moment! He is facing ongoing industrial action by his staff over pay rises and conditions. If the NSW Government was to remove his ability to agree to more than what he wanted, then no industrial action against the University could force him to make changes or compromises.

The Vice Chancellor's response then would simply be "We have been directed by the NSW Government to implement a 2.5 per cent pay rise and other workforce related matters. We all must just accept it. No way around it." Negotiations for him made easy.

As more and more of the NSW public service gets privatised or semi-privatised by becoming more "hands off" from the ministers, control over how these organisations manage their workforces becomes more and more necessary.

Already the NSW Government has extended the definition of a "public official" to include contractors associated with any government service for the purposes of the now mandatory whistleblowers legislation. This by itself is an extraordinary extension of the responsibilities of a public official of the NSW Government onto employees of private enterprise.

It appears that the Government Services Employment Bill 2013 establishes a framework to allow the NSW Government significant control of “independent” agencies and organisations that accrue government funds. The more the Government transfers "public services" over to the state owned corporations, statutory authorities and companies whose shareholders are ministers, the more they can claim they are moving to a smaller "public service" without actually reducing the services provided by government.

The end result is that the Government will likely be able to maintain significant control over all the services provided with less direct responsibility. We may end up seeing an ever-greater range of public services being transferred to the new “government sector” agencies.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.