OFFICIAL
Dear Mr Smith,

I am writing to acknowledge receipt of your request under the Freedom of Information Act 1982 for access to documents held by the Commission.

The timeframe for responding to your request is 30 days from the date of receipt. This timeframe may be extended in certain circumstances. You will be notified if these circumstances arise and the timeframe is extended.

Regards,

FOI Officer
Legal Services

Australian Public Service Commission
Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3500 w: www.apsc.gov.au

-----Original Message-----
From: John Smith <[FOI #6166 email]>
Sent: Monday, 17 February 2020 2:16 PM
To: FOI <[email address]>
Subject: Freedom of Information request - Labour hire and APS code of conduct

Dear Australian Public Service Commission,

I request the following documents:

1. All documents in the possession of the APS Commission, relating to the applicability of the APS Code of Conduct to labour hire employees, procured throughout the APS.

Yours faithfully,
John Smith

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Please use this email address for all replies to this request:
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IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
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must not review, copy, disseminate or disclose its contents to any other
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OFFICIAL

Dear Mr Smith,

Thank you for your email to the Freedom of Information (FOI) team at the
Australian Public Service Commission (Commission) regarding your FOI
request lodged under the Freedom of Information Act 1982.

Your request may cover a large number of documents that deal only
peripherally with the subject matter of your request.  We are happy to
provide you the information compiled below in the expectation that this
information meets your needs. We would be happy to consider any follow up
queries you may have.

APS Code of Conduct and labour hire workers

The Australian Public Service (APS) Code of Conduct generally only applies
to APS employees and not to individuals engaged by APS agencies through
labour hire arrangements.  APS employees are only those persons who have
been engaged under [1]section 22 of the Public Service Act 1999 (PS Act). 
The APS Code of Conduct is found at [2]section 13 of the PS Act and the
terms of the Code of Conduct apply only to APS employees.

From time-to-time, APS agencies use the services of labour hire firms or
individual contractors to meet temporary workload demands.  There are
several different ways an agency can procure labour hire services:

1)    An agency can directly engage the services of an individual through
a contract for services.  In this type of arrangement, the agency would
execute a contract with an individual and the individual would provide
services to the agency in accordance with the terms of that contract.  For
example, agencies sometimes engage individual management consultants in
this manner.

2)    An agency can engage the services of a labour hire firm to provide
labour services.  In this type of arrangement, the agency would execute a
contract with the labour hire firm and the firm would direct one or more
individuals to perform work in and on behalf of the agency.  In this type
of arrangement, the individuals may be employees or subcontractors of the
labour hire firm – they are not engaged by the agency under the PS Act as
employees.

3)    An agency can engage the services of a recruitment services provider
to identify candidates for a non-ongoing vacancy.  In this type of
arrangement, the agency essentially pays the provider under contract to
assist the agency to conduct recruitment activity.  The agency then
engages the preferred candidates under the PS Act as APS employees.

In the first two examples, the individuals would only be subject to the
APS Code of Conduct if the terms of the relevant contract explicitly
provide for the personnel to be bound by the APS Code of Conduct or
similar requirements.  Some contracts may specifically require that
personnel must comply with the APS Code of Conduct.  However, most
contracts do not explicitly require this because they already include
similar obligations or there are other more flexible remedies under the
contract that negate the need to conduct a formal Code of Conduct
investigation.

When an agency has concerns about the conduct of an APS employee engaged
under the PS Act, the agency may decide to investigate the matter as a
suspected breach of the APS Code of Conduct.  Any such investigation must
be conducted in accordance with the agency’s procedures established under
[3]subsection 15(3) of the PS Act.  An agency cannot impose any sanction
on an APS employee unless a breach of the APS Code of Conduct has been
determined in accordance with the procedures under [4]subsection 15(3). 
Contractual arrangements involving labour hire personnel are usually much
more flexible than this process.  For example, under a contractual
arrangement, if an agency has concerns about the conduct of a person
providing services under a labour hire arrangement, it may be open to the
agency to simply require the labour hire firm to replace the person with
another person.

The [5]Commonwealth Contracting Suite (CCS) is one contract that may be
used by agencies when procuring labour hire services The CCS includes the
mandatory [6]Commonwealth Contracting Terms (CCT) that suppliers would be
subject to.

Some of the CCTs are equivalent or similar to elements of the APS Code of
Conduct, which subcontractors would need to comply with. As an example, as
part of the APS Code of Conduct under [7]subsection 13(7) of the PS Act,
APS employees are required to take reasonable steps to avoid a real or
apparent conflict of interest, and to disclose details of any material
personal interest, in connection with their employment. Similarly,
suppliers and their subcontractors under the CCTs are required to abide by
the following equivalent clause of the CCTs:

C.C.3 Conflict of Interest:

The Supplier has either declared any real or perceived conflicts of
interest that might arise; or states that no conflicts of interest exist,
or are anticipated, relevant to the performance of its obligations under
the Contract. If any conflict or potential conflict arises during the
Contract Term, the Supplier will immediately notify the Customer and
comply with any reasonable Notice given to the Supplier by the Customer in
relation to the conflict. As soon as practicable, any verbal advice must
be followed by written confirmation.

From a practical perspective breaches by a subcontractor in those
instances would be dealt with under the contract between the contractor
and the Commonwealth instead of through the PS Act requirements for APS
employees. Normally this could result in removal of the subcontractor from
the contracted work, however in some instances this may lead to
termination of the whole contract between the supplier and the
Commonwealth.

Although the CCS may not be used in all instances, other contracts used by
agencies will usually include similar requirements.

We propose to treat your FOI request as withdrawn on the basis that the
information above meets your needs.  Please notify us by close of business
28 February 2020 if you disagree with this approach.

Please note that if you wish to maintain your FOI request as presently
framed, the Commission may be required to search and examine a large
number of potentially relevant records.  For example, your request as
presently framed could encompass numerous contractual documents which
would likely contain commercial-in-confidence materials.  There may also
be numerous records within the scope of your request that deal only with
the subject matter of your request in an incidental or peripheral manner. 
The Commission would likely consider whether charges should be imposed or
whether your request as presently framed should be refused on the basis
that it would involve a substantial and unreasonable diversion of
resources.

Regards,

FOI Officer

Legal Services

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

t: 02 6202 3500  w: [8]www.apsc.gov.au    

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______________________________________________________________________

IMPORTANT: This message, and any attachments to it, contains information
that is confidential and may also be the subject of legal professional or
other privilege. If you are not the intended recipient of this message,
you
must not review, copy, disseminate or disclose its contents to any other
party or take action in reliance of any material contained within it. If
you
have received this message in error, please notify the sender immediately
by
return email informing them of the mistake and delete all copies of the
message from your computer system.
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