Dear Department of Employment,

The Department of Employment supports and advises the Employment portfolio Ministers in its responsibility as the primary source of advice on policy development and the performance of the portfolio’s regulatory systems. The Minister expects that the department and Fair Work Building and Construction maintain a collaborative working relationship to communicate the objectives of the deregulation agenda and to report progress on regulatory reforms delivered by the Employment portfolio to the Government.

Media articles and a Federal Court report indicate that from 1 January 2013 to 28 July 2016 false information was disseminated by Fair Work Building and Construction (now ABCC), and FWBC was aware the information was false. Federal Court proceedings under the Fair Work legislation were instituted against the Director of FWBC on 19 Aug 2016 and on 18 October 2016 the Commonwealth of Australia was joined to the case. On 8 Sept 2017 the applicant and the Commonwealth consented to the proceedings against the Commonwealth being dismissed. The case against the Director was subject of a Federal Court judgement on 29 Sept 2017. It appears that the Minister Assisting the Prime Minister for the Public Service, Minister for Employment and Minister for Women first became aware of the behaviour of the Director of FWBC in October 2016.

The Public Service Act 1999 establishes a statutory Code of Conduct that binds all APS employees and agency heads to defined behavioural standards. It has been said that the scheme that currently applies in the Australian Public Service is robust and effective. Clause 1.3(f) of the Australian Public Service Commissioner’s Directions 2013 require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code.

I seek access under FOI to documents in the possession of the Agency relating to any assessment or consideration - conducted in the period 1 December 2013 to 12 September 2017 – that the behaviour of the Director of the Fair Work Building Industry Inspectorate involved a potential breach of the Australian Public Service Code of Conduct.

Yours faithfully,

JS

Dear Information Law Team,

Thank you for telling me that my FOI request has been transferred to the ABCC under section 16 of the FOI Act. Because the email emanates from Information Law Team I am unsure who is satisfied when you say “we are satisfied….”. Is it the Department and ABCC collectively or simply the Department (Information Law Team) itself?

OAIC Guidelines provide (in part) [An agency or minister who receives a request may transfer the request, or part of the request, to another agency or minister with their agreement if the subject matter of the document is more closely connected with the functions of another agency or minister (s 16(1)). It is implicit in those requirements that a request cannot be transferred solely as a matter of administrative convenience, or because another agency or minister produced the document requested or also has a copy of it. Equally, before a decision is made to transfer a request an agency or minister should take whatever reasonable steps are necessary to ascertain whether they have the documents that may meet the description in the FOI request.] I assume those reasonable steps have been taken by the Department.

While “We” is satisfied that the subject-matter of the documents being sought is more closely related with the functions of the ABCC than those of the Department I note that ‘We” does not provide any basis for that satisfaction. In any event I do not agree that the subject-matter of the documents being sought is more closely related with the functions of the ABCC than those of the Department.

The Public Service Act 1999 establishes a statutory Code of Conduct that binds all APS employees and agency heads to defined behavioural standards. It has been said that the scheme that currently applies in the Australian Public Service is robust and effective. Clause 1.3(f) of the Australian Public Service Commissioner’s Directions 2013 require all APS employees, having regard to their duties and responsibilities, to report and address misconduct and other unacceptable behaviour by public servants in a fair, timely and effective way. Failure to report suspected misconduct may itself warrant consideration as a potential breach of the Code. The standards/obligations apply equally both to the Dept and the ABCC (formerly FWBC).

The subject-matter of the documents being sought is closely related to the standards and obligations imposed on the Department and its officials by the PSA Act 1999 and APSC Directions 2013 rather than more closely related functions of the ABCC. Both agencies would appear to have identical obligations. Consequently, I do not agree with the transfer and believe the Department should process the FOI request.

Yours sincerely,

JS

Dear Employment - FOI,

Thank you.

Yours sincerely,

JS