Angelica Pumperknickle
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Our reference: LEX 824
Dear Ms Pumperknickle
Freedom of Information request
1. I am writing about your Freedom of Information (FOI) request under the
Freedom
of Information Act 1982 (FOI Act) made on
16 February 2024 for access to documents
held by the Australian Public Service Commission (Commission).
2. The FOI Act and all other Commonwealth legislation referred to in this letter are publicly
available from www.legislation.gov.au.
Documents relevant to your request
3. You requested access to documents in the following terms:
‘All correspondence (including emails, letters, meeting minutes, reports, or any other
written or recorded communication) between Rebecca Fawcett of the Community and
Public Sector Union (xxxxxxx.xxxxxxx@xxxx.xxx.xx) and any APSC employee
regarding the following topics:
•
APS-wide bargaining
•
Common conditions
•
Gender affirmation leave clauses
•
Disability leave clauses
•
Delegates' rights clauses
•
Pay increase negotiations
Any requests for discussions or meetings sent by the CPSU regarding the above topics,
directed at the chief negotiator or other APSC employees, that occurred outside the
publicly released bargaining meeting schedule.
Timeframe: Communications sent between June 2022 and February 2023.
Information Redactions
To protect the privacy of individuals, I consent to the redaction of the following
information:
Names and contact details of APSC employees below the Senior Executive Service (SES)
level.’
4. On 18 March 2024, the Commission wrote to advise you that a practical refusal reason
existed for your FOI request under section 24AA of the FOI Act, and initiated a ‘request
consultation process’ by issuing you a request consultation notice (
Notice).
5. In that Notice, the Commission advised that processing the request, in its current form,
would substantially and unreasonably divert the resources of the Commission from its
other operations. The Commission also sought your consent to 30 day extension under
section 15AA.
6. On the same day, you responded to the Notice, and revised your scope to the following
terms:
"All correspondence (including emails, letters, meeting minutes, reports, or any other
written or recorded communication) between Rebecca Fawcett of the Community and
Public Sector Union (xxxxxxx.xxxxxxx@xxxx.xxx.xx) and any APSC employee
regarding the following topics:
•
APS-wide bargaining
•
Common conditions
•
Delegates' rights clauses
•
Pay increase negotiations
Any requests for discussions or meetings sent by the CPSU regarding the above topics,
directed at the chief negotiator or other APSC employees, occurred outside the publicly
released bargaining meeting schedule.
Please exclude any duplicate documents.
Timeframe: Communications sent between 1 October 2023 and 22 December 2023."
7. On 19 March 2024, you also agreed to provide the Commission an extension of 30 days
to process your request.
8. On 21 March 2024, the Commission notified you that a third party consultation was
being undertaken, as some documents contained personal information about third
parties. In notifying you, the Commission indicated that third party consultation extends
the statutory timeframe by 30 days, under subsection 15(6) of the FOI Act.
9. On the same day, you requested clarification as to why third party consultations are
necessary, as you have consented to redact the staff names below the SES level, and the
scope of the communications is between APSC and CPSU official, Rebecca Fawcett.
10. The Commission wrote back on 26 March 2024 to advise that the documents within the
scope of the request contained personal information of third parties (that are not
Commission staff), and under the section 27A of the FOI Act, the Commission decided
it was necessary to consult with the respective individual/s to provide comment on the
release of relevant documents.
11. On 10 April 2024, the Commission requested that you exclude attachments to email
correspondence that are draft versions.
12. On 12 April 2024, you revised the request to the following terms:
To clarify, my revised request now seeks:
"All correspondence (including emails, letters, meeting minutes, reports, or any other
written or recorded communication) between Rebecca Fawcett of the Community and
Public Sector Union ([email address]) and any APSC employee regarding the following
topics:
•
APS-wide bargaining
•
Common conditions (excluding draft attachments to emails)
•
Delegates' rights clauses
•
Pay increase negotiations
Any requests for discussions or meetings sent by the CPSU regarding the above topics,
directed at the chief negotiator or other APSC employees, occurred outside the publicly
released bargaining meeting schedule.
Please exclude any duplicate documents.
Timeframe: Communications sent between 1 October 2023 and 22 December 2023.
13. A decision is due to you by
16 May 2024.
Decision on your FOI request
5. I am authorised under subsection 23(1) of the FOI Act to make FOI decisions.
6. I am satisfied that all reasonable steps have been taken to locate documents relevant
to your request.
7. I have identified thirty-nine (39) documents within scope of your request.
8. The documents within scope are as follows:
• Document 1: Request for meeting between APSC and CPSU
• Document 2: Commonwealth pay outcome & concluding APS bargaining
• Document 3: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions
• Document 4: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions
• Document 5: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – job security
• Document 6: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – flexible working arrangements
• Document 7: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions - overpayments
• Document 8: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – remote localities
• Document 9: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – classifications and work level standards
• Document 10: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – classifications and work level standards
• Document 11: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – closed comprehensive agreement
• Document 12: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – consultation and consultative committees
• Document 13: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – consultation and consultative committees
• Document 14: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – delegates’ rights
• Document 15: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – delegations
• Document 16: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – incremental advancement
• Document 17: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – incremental advancement
• Document 18: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
draft statement of common conditions
• Document 19: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
correspondence to Fair Work Commission
• Document 20: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – superannuation clause
• Document 21: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – superannuation clause
• Document 22: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
commencement provisions and one-off payment
• Document 23: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
commencement provisions and one-off payment
• Document 24: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
one-off payment examples
• Document 25: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
revised position on pay
• Document 26: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – TOIL
• Document 27: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions – delegations and cultural competency training
• Document 28: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
draft statement of common conditions
• Document 29: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
revised position on pay
• Document 30: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
draft statement of common conditions
• Document 31: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
draft letter to Fair Work Commission
• Document 32: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
incremental advancement
• Document 33: Incremental Advancement: Guidance for Agency Lead Negotiators
• Document 34: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions - TOIL
• Document 35: Meeting request between APSC and CPSU, Rebecca Fawcett regarding
salary increase clause
• Document 36: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
delegates rights clauses with attachment
• Document 37: CPSU Draft Clauses
• Document 38: One-off Payment Calculator
• Document 39: Correspondence between APSC and CPSU, Rebecca Fawcett regarding
statement of common conditions.
9. I have decided to grant full access to Document 1, 33, 37 and 38.
10. I have decided to grant partial access to Documents 2-32, 34-36, and 39 as I consider
some content in scope of your request is exempt from release under section 47F of the
FOI Act. I have also removed irrelevant material under section 22 of the FOI Act.
11.
Attachment A provides a description of the document in scope and sets out the grounds
on which the document is partially exempt.
12. My reasons are set out in
Attachment B.
Deletion of exempt matter or irrelevant matter
13. Section 22 of the FOI Act requires an agency to provide access to an edited version of a
document where it is reasonably practicable to edit the document to remove exempt
material or material that is irrelevant to the scope of a request.
14. Copies of requested documents have been edited to remove material that is irrelevant to
the scope of your request, as you have agreed to exclude them from your request. In
particular the following material was redacted, which assisted in limiting the scope of
the task to one that was manageable by the Commission:
a) correspondence that did not relate to the specified subject matters;
b) correspondence that was not to or from the requested correspondent; and
c) repeated material that was already included in the documents provided.
Contacts
15. If you require clarification on matters in this letter please contact the Commission’s
FOI team at xxx@xxxx.xxx.xx.
Review rights
16. You are entitled to seek review of this decision. Your review rights are set out at
Attachment C.
Yours sincerely
SM
Authorised FOI decision maker, EL2 officer
15 May 2024
ATTACHMENT A
SCHEDULE OF DOCUMENTS
Document Description
Exemption grounds
Request for meeting between APSC and CPSU
Section 22 – Irrelevant information
1
2
Commonwealth pay outcome & concluding APS bargaining
Section 47F – Personal Information
3
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 22 – Irrelevant information
common conditions
Section 47F – Personal Information
4
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions
Section 22 – Irrelevant information
5
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – job security
Section 22 – Irrelevant information
6
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – flexible working arrangements
Section 22 – Irrelevant information
7
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions - overpayments
Section 22 – Irrelevant information
8
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – remote localities
Section 22 – Irrelevant information
9
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – classifications and work level standards
Section 22 – Irrelevant information
10
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – classifications and work level standards
Section 22 – Irrelevant information
11
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – closed comprehensive agreement
Section 22 – Irrelevant information
12
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – consultation and consultative committees
Section 22 – Irrelevant information
13
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – consultation and consultative committees
Section 22 – Irrelevant information
14
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – delegates’ rights
Section 22 – Irrelevant information
15
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – delegations
Section 22 – Irrelevant information
16
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – incremental advancement
Section 22 – Irrelevant information
17
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – incremental advancement
Section 22 – Irrelevant information
18
Correspondence between APSC and CPSU, Rebecca Fawcett regarding draft
Section 47F – Personal Information
statement of common conditions
Section 22 – Irrelevant information
19
Correspondence between APSC and CPSU, Rebecca Fawcett regarding
Section 47F – Personal Information
correspondence to Fair Work Commission
Section 22 – Irrelevant information
20
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – superannuation clause
Section 22 – Irrelevant information
21
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – superannuation clause
Section 22 – Irrelevant information
22
Correspondence between APSC and CPSU, Rebecca Fawcett regarding
Section 47F – Personal Information
commencement provisions and one-off payment
Section 22 – Irrelevant information
23
Correspondence between APSC and CPSU, Rebecca Fawcett regarding
Section 47F – Personal Information
commencement provisions and one-off payment
Section 22 – Irrelevant information
24
Correspondence between APSC and CPSU, Rebecca Fawcett regarding one-off
Section 47F – Personal Information
payment examples
Section 22 – Irrelevant information
25
Correspondence between APSC and CPSU, Rebecca Fawcett regarding revised
Section 47F – Personal Information
position on pay
Section 22 – Irrelevant information
26
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – TOIL
Section 22 – Irrelevant information
27
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions – delegations and cultural competency training
Section 22 – Irrelevant information
28
Correspondence between APSC and CPSU, Rebecca Fawcett regarding draft
Section 47F – Personal Information
statement of common conditions
Section 22 – Irrelevant information
29
Correspondence between APSC and CPSU, Rebecca Fawcett regarding revised
Section 47F – Personal Information
position on pay
Section 22 – Irrelevant information
30
Correspondence between APSC and CPSU, Rebecca Fawcett regarding draft
Section 47F – Personal Information
statement of common conditions
Section 22 – Irrelevant information
31
Correspondence between APSC and CPSU, Rebecca Fawcett regarding draft letter to
Section 47F – Personal Information
Fair Work Commission
Section 22 – Irrelevant information
32
Correspondence between APSC and CPSU, Rebecca Fawcett regarding incremental
Section 47F – Personal Information
advancement
Section 22 – Irrelevant information
33
Incremental Advancement: Guidance for Agency Lead Negotiators
Full release
34
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions - TOIL
Section 22 – Irrelevant information
35
Meeting request between APSC and CPSU, Rebecca Fawcett regarding salary
Section 47F – Personal Information
increase clause
Section 22 – Irrelevant information
36
Correspondence between APSC and CPSU, Rebecca Fawcett regarding delegates
Section 47F – Personal Information
rights clauses with attachment
Section 22 – Irrelevant information
37
CPSU Draft Clauses
Full release
38
One-off Payment Calculator
Full release
39
Correspondence between APSC and CPSU, Rebecca Fawcett regarding statement of
Section 47F – Personal Information
common conditions
- 11
ATTACHMENT B
Reasons for decision
1. In making my decision I have had regard to:
a) the terms of your request;
b) the content of the documents;
c) the
Public Service Act 1999 (PS Act);
d) the FOI Act; and
e) the Freedom of Information Guidelines (
FOI Guidelines) issued by the Australian
Information Commissioner.
Exemptions
Section 47F – Personal privacy
2. Section 47F of the FOI Act provides that a document is conditionally exempt if it would
involve the unreasonable disclosure of personal information about any person.
3. Personal information means information or an opinion about an identified individual,
or an individual who is reasonably identifiable whether:
a) the information or opinion is true or not; and
b) the information or opinion is recorded in a material form or not.
4. I consider that Documents 2-32, 34-36 and 39 contains such matter; specifically, the
names and contact information of APS staff, contact details of SES staff that are not
publicly available, and name and contact details of third parties.
5. I have had regard to the matters I must consider under subsection 47F(2) of the FOI Act in
determining whether the disclosure of the personal information would involve the
unreasonable disclosure of personal information.
6. In considering what is unreasonable, the Administrative Appeals Tribunal in
Re Chandra
and Minister for Immigration and Ethnic Affairs [1984] AATA 437 at [51] stated:
…whether a disclosure is ‘unreasonable’ requires… a consideration of all the
circumstances, including the nature of the information that would be disclosed,
the circumstances in which the information was obtained, the likelihood of the
information being information that the person concerned would not wish to have
disclosed without consent, and whether the information has any current relevance…
and to weigh that interest in the balance against the public interest in protecting the
personal privacy of a third party…
- 12
7. Other factors to be considered include the nature, age and current relevance of the
information, any opposition to disclosure held by the person that the personal
information relates to, and the circumstances of an agency’s collection and use of the
information (‘
FG’ and
National Archives of Australia [2015] AICmr 26 at [47]).
8. I note that in
Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 (9 November 2020), Deputy President S A Forgie
found (at [130]):
‘An individual may include his or her direct telephone number in correspondence
directed to other persons. Unless published on an agency’s website or made public in
some other way, such as on a pamphlet or report available to the public, I consider
that disclosure of an individual’s telephone number in his or her place of employment
is unreasonable. Its disclosure will provide an avenue by which others may choose to
express their displeasure with the individual or with that for which he or she is
responsible but its disclosure does not make any positive contribution to increasing
public participation in Government processes or in increasing scrutiny, discussion,
comment and review of the Government’s activities.’
9. In relation to the question of whether disclosure would be unreasonable, the FOI
Guidelines provide, at paragraph 6.144:
‘For example, in Colakovski v Australian Telecommunications Corp, Heerey J
considered that ‘... if the information disclosure were of no demonstrable relevance to
the affairs of government and was likely to do no more than excite or satisfy the
curiosity of people about the person whose personal affairs were disclosed ...
disclosure would be unreasonable’. This illustrates how the object of the FOI Act of
promoting transparency in government processes and activities needs to be balanced
with the purpose of s 47F to protect personal privacy, although care is needed to
ensure that an FOI applicant is not expected to explain their reason for access to
contrary to s 11(2).’
10. Relevant to personal information of certain public servants, under the FOI Act there is
no presumption that agencies and ministers should start from the position that the
inclusion of the full names of staff in documents increases transparency and the objects
of the FOI Act:
Warren; Chief Executive Officer, Services Australia and (Freedom of
information) [2020] AATA 4557 at [83].
11. I have identified the following factors that, in my view, do not support the release of
this personal information under section 47F of the FOI Act:
• the individuals’ personal information, in particular their name, will identify them;
• the personal information is unique and relates specifically to the individuals, and is
generally not well known or publicly available; the FOI Act does not control or restrict
the subsequent use or dissemination of information released under the FOI Act;
• the disclosure of this information will not advance scrutiny of any decisions falling
- 13
within scope of your FOI request;
• the disclosure of this information could expose concerned individuals to unsolicited and
inappropriate approaches by external parties;
• release of the individuals’ personal information may cause stress for them or other
detriment; and
• disclosure would prejudice the individuals’ right to privacy.
12. I have therefore decided to the extent that Documents 2-32, 34-36 and 39 includes
personal information of APS staff, and third parties, those parts are conditionally exempt
from disclosure under section 47F of the FOI Act because disclosure would involve the
unreasonable disclosure of their personal information.
Section 11A – Public interest test
13. Subsection 11A(5) of the FOI Act provides that an agency must give access to a
document if it is conditionally exempt unless access to the document would, on balance,
be contrary to the public interest.
14. I have considered the public interest exemption factors in favour of disclosure at
subsection 11B(3) of the FOI Act, including the extent to which access to the documents
would promote the objects of the FOI Act and inform debate on a matter of public
importance.
15. I have identified the following factors as weighing against disclosure:
a) disclosure of individuals’ personal information will not advance any scrutiny
of any decisions falling within the scope of your FOI request;
b) disclosure would prejudice individuals’ right to privacy;
c) disclosure could lead to unwarranted approaches to individuals which would
adversely impact their ability to perform their role and functions, noting
that general enquiry phone numbers and email addresses are available;
16. Subsection 11B(4) of the FOI Act lists factors that are irrelevant to determining
whether access would be in the public interest. I have not considered these factors.
17. On balance, I find disclosure of some parts of Documents 2-32, 34-36 and 39
would be contrary to the public interest. To the extent that the material contained in
Document 2-32, 34-36 and 39 is conditionally exempt under section 47F, those
parts are exempt from disclosure.
ATTACHMENT C
Rights of Review
Asking for a full explanation of a Freedom of Information decision
If you are dissatisfied with this decision, you may seek review. Before you seek review of a
Freedom of Information (FOI) decision, you may contact us to discuss your request and we
will explain the decision to you.
Seeking review of a Freedom of Information decision
If you still believe a decision is incorrect, the
Freedom of Information Act 1982 (the FOI Act)
may give you the right to apply for a review of the decision. Under sections 54 and 54L of the
FOI Act, you can apply for a review of an FOI decision by seeking:
1. an internal review by an different officer of the Australian Public Service
Commission; and/or
2. external review by the Australian Information Commissioner.
There are no fees applied to either review option.
Applying for a review by an Internal Review Officer
If you apply for internal review, a different decision maker to the departmental delegate who
made the original decision will carry out the review. The Internal Review Officer will
consider all aspects of the original decision and decide whether it should change. An
application for internal review must be made in writing within 30 days of receiving this letter
to:
Email:
xxx@xxxx.xxx.xx
Post:
The FOI Officer
Australian Public Service Commission
B Block, Treasury Building
GPO Box 3176
Parkes Place West
PARKES ACT 2600
You do not need to fill in a form. However, it is a good idea to set out any relevant
submissions you would like the Internal Review Officer to further consider, and your reasons
for disagreeing with the decision.
Applying for external review by the Australian Information Commissioner
If you do not agree with the original FOI decision or the internal review decision, you can ask
the Australian Information Commissioner to review the decision. You have 60 days to apply
in writing for a review by the Office of the Australian Information Commissioner (the OAIC)
from the date you received this letter or any subsequent internal review decision.
You can
lodge your application: Online:
www.oaic.gov.au
Post:
Australian Information
Commissioner GPO Box 5218
SYDNEY NSW 2001
Email:
xxxxxxxxx@xxxx.xxx.xx
The OAIC encourage applicants to apply online. Where possible, to assist the OAIC you
should include your contact information, a copy of the related FOI decision and provide
details of your reasons for objecting to the decision.
Complaints to the Information Commissioner and Commonwealth Ombudsman
Information Commissioner
You may complain to the Information Commissioner concerning action taken by an agency
in the exercise of powers or the performance of functions under the FOI Act. There is no fee
for making a complaint. A complaint to the Information Commissioner must be made in
writing. The Information Commissioner's contact details are:
Telephone:
1300 363 992
Website:
www.oaic.gov.au
Commonwealth Ombudsman
You may complain to the Ombudsman concerning action taken by an agency in the exercise
of powers or the performance of functions under the FOI Act. There is no fee for making a
complaint. A complaint to the Ombudsman may be made in person, by telephone or in
writing. The Ombudsman's contact details are:
Phone:
1300 362 072
Website:
www.ombudsman.gov.au
Document Outline