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Finance and Public Administration Legislation Committee
Australian Public Service Commission

Australian Public Service Commission


CHAIR: I welcome Senator Cash in her capacity as Minister assisting the Prime Minister for the Public Service. I welcome the Hon. John Lloyd, Public Service Commissioner, and officers of the Australian Public Service Commission. I particularly draw the attention of the witnesses to an order of the Senate of 13 May 2009 specifying the process by which a claim of public interest immunity should be raised. Witnesses are specifically reminded that a statement that information or a document is confidential or consists of advice to government is not a statement that meets the requirements of the 2009 order. Instead, witnesses are required to provide some specific indication of the harm to the public interest that could result from the disclosure of the information or the document. The committee has set 7 July 2017 as the date by which answers to questions on notice are to be returned. Minister, do you wish to make an opening statement?

Senator Cash: No, thank you.

CHAIR: Mr Lloyd, do you wish to make an opening statement?

Mr Lloyd : No, thank you, Chair.

CHAIR: Senator Rice said she had five minutes, so we will start with Senator Rice.

Senator RICE: I understand that the department of environment has installed new non-gendered toilets in its buildings in Canberra and that Treasury will be doing so in a new refurbishment. Is that correct?

Mr Lloyd : I have seen a report that the department of environment did that. In relation to the Treasury, there was an article about the Treasury building, which we are moving into, but the article was not entirely accurate.

Senator RICE: What is the case, then?

Mr Lloyd : The case is that we are moving into three floors of the building and on each floor there will be an accessible single-occupant toilet, and the other toilets will be the normal toilets for males and females. That is the arrangement.

Senator RICE: Is it a responsibility of the Australian Public Service Commission to provide policy guidelines for gender-neutral toilets?

Mr Lloyd : No. My view is agencies have to comply with various laws and regulations. Often an agency will be leasing the property and the provision of toilets et cetera will be the responsibility of the building owner. There is no APS-wide policy on this.

Senator RICE: I had seen media reports that there were new inclusion policies being developed for the Public Service.

Mr Lloyd : No, not in this issue.

Senator RICE: Are there new inclusion policies being developed?

Ms Foster : We took up with the journalist his assertion that we were developing a new inclusion policy to cover this and advised him that we had not made any statement to that effect. He indicated he had other sources for that information. And, no, we do not have any plans, at this stage, for a new inclusion policy.

Senator RICE: That was not correct, then. In terms of gender-neutral toilets, do you know whether there are any other plans across the Public Service for departments to have gender-neutral bathroom facilities?

Mr Lloyd : No, I do not.

Senator RICE: And it is not something that the Australian Public Service Commission is going to be pursuing.

Mr Lloyd : No.

Senator RICE: Is the issue of gender-diverse and transgender people being comfortable in their workplace something that you think the Public Service Commission should be engaged with and should be of interest to you?

Mr Lloyd : Of course. Everybody in the workplace has a right to be treated with respect. All of our policies and various emanations of our policies are directed at that, including transgender people.

Senator RICE: As you say, everyone has a right to be treated with respect. Do you agree that everyone has a right to feel comfortable at work as well?

Mr Lloyd : Of, course, yes.

Senator RICE: Do you understand that transgender and gender-diverse people may not feel comfortable at work if they cannot access gender-neutral bathroom facilities?

Mr Lloyd : They may, but my sense is that—say, in the building mentioned in this case—there is a capacity to cater for those.

Senator RICE: In what way?

Mr Lloyd : The accessible single-occupant toilet would be an opportunity. If they were not inclined to go to the regular-type male or female toilet they could go to that single-occupant toilet.

Senator RICE: Have you done any consultation with transgender or gender-diverse people across the Public Service about what their preferences would be for their toilet facilities?

Mr Lloyd : I have not.

Ms Foster : No. We have broad guidances, as the commissioner said, about treating people with respect and courtesy. But the specific policies—for example, for facilities within buildings—are the responsibility of each agency, and each agency head carries a responsibility to ensure that they consult with their staff and that they provide appropriate responses to that.

Senator RICE: Do you do any monitoring as to whether agencies have, indeed, consulted with their transgender staff regarding the bathroom facilities?

Ms Foster : I am sorry, Senator?

Senator RICE: Do you do any monitoring? Do you have any details of whether agencies have, indeed, consulted with their transgender staff?

Ms Foster : We are aware that all agencies have some form of consultative mechanism with their staff and that staff are free to, and in fact do, raise with the agency management the questions that they want asked. In our instance it was not an issue raised by our staff through our consultative mechanisms.

Senator RICE: Do you know how many transgender staff there are in the Australian Public Service?

Ms Foster : No, I do not.

Senator RICE: Is it something that you would be monitoring?

Ms Foster : We ask a range of questions in our employee census each year. I am just trying to recall what questions we have in the current year's census. Ms Bull might be able to help us.

Ms Bull : For the first time, in this year's census—which is currently in the field—we have asked a question of staff about whether they identify as LGBTI+. That has not closed; we do not have any other data on that at the moment.

Senator RICE: Does it ask them specifically whether they identify as being transgender or gender diverse?

Ms Bull : No, not at this stage.

Senator RICE: So you do not have any information, then, about the need in the Public Service for having bathroom facilities that cater for transgender people?

Ms Foster : Individual agencies may well ask their staff that question and may well take that into account in their planning. What we do is take a broad perspective and say: what data do we sensibly need at a whole-of-APS level in order to respond to the needs of our employees?

Senator RICE: Do you provide guidelines to agencies as to how to ensure that they respect employees?

Ms Foster : We provide guidance across a very broad range of issues.

Senator RICE: But not about this issue of providing bathroom facilities for transgender people?

Ms Foster : No. In fact it is an issue that has only begun to be debated very recently.

Senator McALLISTER: Mr Lloyd, I would like to ask you a few questions about impartiality and your role in supporting the core APS value of impartiality. What advice do you give to public servants about how to distinguish between genuine community events and those that are structured to promote a political party?

Mr Lloyd : Certainly, impartiality is one of the key and important matters. We give guidance. We have a document which provides guidance about adhering to the values and the employment principles. I cannot recall its name.

Ms Foster : We have a document that is called something like 'APS values in practice', and it goes through each of the values and talks about different sorts of scenarios to help people understand how to apply the values and principles in the Public Service Act. In very broad terms, the guidance we give to people is that they should think about the actions that they take and the activities they participate in in the context of whether a government of either persuasion would feel confident about their impartiality. It is not possible to put hard and fast rules around these things. We really do need to provide people with a set of principles and some examples and have them apply their judgement to particular circumstances.

Senator McALLISTER: Do you ever provide direct advice on specific examples?

Ms Foster : It is unusual for us to do that. We do have an ethics advisory service where employees can ring Ms Crosthwaite's area. There will be, from time to time, specific questions about that, but it is much more difficult to be specific when we are trying to give generic guidance that covers more than 100 agencies and 150,000 people.

Senator McALLISTER: Do you ever provide advice to ministers? Either on individual questions, or have you prepared guidance to ministers about what is appropriate for them in terms of the requests they make of public servants?

Ms Foster : It is not within the commission's role to provide advice or administer the Ministerial Code of Conduct.

Senator McALLISTER: Do you think that an event that is publicly billed, including material which says the coalition has delivered much for small business, would be an appropriate event for public servants to be involved in?

Mr Lloyd : It would depend on the event. Outside that statement, it would very much depend on the nature of the event.

Senator McALLISTER: We have a situation where members of parliament are organising small business forums, where, in their local community, they are asking various public servants to participate. In the material that promotes that, they headline a lot of achievements that the coalition has delivered for small business, according to their perspective on it. Now, no-one disputes, of course, that MPs will champion what they believe to be their party's achievements, but do you think that public servants ought to be involved in this kind of activity? Does it represent political campaigning; and does it breach the impartiality requirements for the APS?

Mr Lloyd : Without knowing the details of the event, public servants will appear at times at an event where there is a minister or members of parliament. Their role, though, in those circumstances, in my view, should be about explaining policy: explaining how the policy is administered, the content of it, the detail of it. That may be appropriate, but I would not—

Senator WONG: We will get you a copy of the invitation, Mr Lloyd, but you would agree, wouldn't you, that impartiality is not just about what information you provide at an event? Surely, you would agree that an event that is demonstrably party political in its nature would raise questions about impartiality in terms of attendance of public servants, and that is not cured by how they answer questions.

Mr Lloyd : I do not know this event you are talking about—

Senator WONG: I will come to that. As a matter of principle, surely you—I will come to the event—

CHAIR: Just on that, perhaps if we have an invitation, could that be tabled now.

Senator WONG: I am just getting it copied. But you said—you are talking in the abstract, so I am happy to talk in the abstract—they can be impartial in how they respond. I am putting this proposition to you: the nature of the event itself also goes to impartiality.

Mr Lloyd : Yes, I would agree with that.

Senator WONG: Thank you. We can wait for the document, if you want.

Mr Lloyd : You have put in your proposition that, if an event is clearly party political, it would raise a concern.

Senator WONG: So what would an event need to be, for you to—what are the hallmarks of party political in your mind?

Mr Lloyd : It is very hard to bring down into an answer a specific case.

Senator WONG: What sort of characteristics would give rise in your mind to a question as to whether the event is actually party political?

Mr Lloyd : Look, it is unusual to speculate here. Obviously, if it is an event organised by the party itself for party members, you would have a reservation. And then, as a whole spectrum, it is not very helpful to speculate, when there is such a spectrum of events, the nature of which is hard to determine without actually seeing what is proposed. My sense is, though, that public servants do respect this impartiality. I think the leaders of public sector agencies have a good sense of what is appropriate and what is not, and I think one of the strengths of the Australian system is that the public service is seen to be impartial.

Senator WONG: And, if that service, though, is only provided, obviously, to members of the government, that does not raise any concerns for you?

Mr Lloyd : I would have to see the event. You are asking the questions without me seeing the nature of the advertisement, whatever it might be.

Senator WONG: I am giving you a copy—and I do not think I have written on it—of something that is in the things my staff have prepared. So ignore the pagination down the bottom. This is an email, and I think there are other examples from other MPs, sent from Sarah Henderson MP, the federal member for Corangamite, with photos of her and authorised by her, who is inviting people to a small business forum, including with Minister McCormack, to be joined by the deputy chair of the ACCC, Dr Craig Latham from the office of small business, and someone from the tax office—not one of the people currently in the news, but we will come to that. And it is followed by the statement which Senator McAllister read out: 'The coalition has delivered much for small business' and then a list of the things that allegedly the government has done for small business. All RSVPs are to her or her office; it is authorised by her. I would put to you, Mr Lloyd, it is a party political event.

Mr Lloyd : It is a forum, and there is no—

Senator WONG: Wow, is there anything you will not defend.

CHAIR: Senator Wong, that was really unnecessary.

Senator WONG: Look at it.

Mr Lloyd : It is a forum.

Senator WONG: You have an office to uphold—seriously.

Senator SMITH: With all due respect, there is no party logo on this documentation.

Senator WONG: Seriously—oh my goodness.

Senator SMITH: It is a member of parliament informing members of her constituency about core business issues. It does not need to—

Senator WONG: 'Sarah Henderson MP, federal member'.

Senator McKENZIE: Do you want a small business forum?

Senator SMITH: It does not even say 'the Liberal member for Corangamite'.

Senator WONG: Let him answer. I am looking forward to his defence of impartiality. I am looking forward to it a lot with interest.

Mr Lloyd : I do not know the full details, as I keep saying. But to me, one thing I do note is that there is no role ascribed to the officials. A small business forum—

Senator WONG: I am sorry? It says 'will be joined by'.

Mr Lloyd : Joined, yes.

Senator WONG: But there is no role?

CHAIR: There is no role as in what they will perform, Senator Wong.

Mr Lloyd : My expectation is that they would give advice about what are the government's policies, what programs are available to small business, particularly the person from the Office of the Small Business and Family Enterprise Ombudsman. Tax is complex for any small business, and I think they would probably welcome an assistant commissioner of tax talking about tax and its impacts on small business. It would seem to me if they are and they inform people about what these impacts are for small business, it would appear to be appropriate.

Senator WONG: Right. And so—

CHAIR: Mr Lloyd, are you aware of other similar sorts of events in the past? I personally, just of the top of my head, can think of a local member of parliament hosting a forum with the local police officer on local crime, for example. Is that a party political partisan event?

Mr Lloyd : No. I think that often happens, and throughout the community police officers will attend and advise the community about the law and crime waves, wherever they might be, and what is happening.

CHAIR: I understand, further, that under the previous government similar forums to this were held with representatives from NBN Co—local forums about broadband access.

Mr Lloyd : I was not aware of that, but it does not surprise me.

CHAIR: Would you think that that would be party political?

Senator WONG: Hang on, if he does not know, how can you ask him that question?

CHAIR: I am advised that that did occur.

Senator WONG: Well, that is nice. But you know, he cannot answer a question about something he did not know. You did not want me to ask a question about this.

CHAIR: Senator Wong, it is not actually up to you to decide what questions I can ask.

Senator WONG: You are the chair. You could at least try to demonstrate—

CHAIR: If Mr Lloyd feels unable to answer it, then he is entitled not to answer it.

Senator WONG: Point of order: you cannot ask a witness a question about something he said he has already given evidence he knows nothing about.

CHAIR: That is not true. That is not true at all. The only thing I cannot ask about is an expression of an opinion—

Senator WONG: Oh my goodness—that is fantastic.

CHAIR: He is entitled not to answer if he is not able to.

Senator WONG: Great impartiality from the chair. You and he should get together and talk about impartiality—

CHAIR: Sorry, Senator Wong, I continue on this line of questioning. Mr Lloyd, acknowledging the fact that I do not have an invitation in front of me for a forum that a previous MP has held with NBN Co. In theory, in your view, would a local MP holding a forum with NBN Co. be party political?

Mr Lloyd : It depends on the event, as I have said previously. If the role of the public servant is to impart information to business or the community, whoever it might be, it may be appropriate.

CHAIR: Thank you, Mr Lloyd.

Senator WONG: Was it you who said there was no party logo on it?

Mr Lloyd : I did not say that.

Senator WONG: Okay. I think people know she is a Liberal Right. Immediately under the reference to three pretty senior officers is this paragraph: 'The coalition has delivered much for small business, including significant red tape reduction, major tax concessions' et cetera 'and reform of section 46.' Would you agree that that paragraph is a partisan paragraph?

Mr Lloyd : It is saying what the government has done. Yes, obviously.

Senator WONG: That is not the question I asked. Would you agree that is a politically partisan paragraph?

Mr Lloyd : It is saying what the government has done. In that regard, it could be.

Senator WONG: It does not say 'the government'; it says 'the coalition'. They are a political party.

Mr Lloyd : The coalition.

Senator WONG: Yes, it does not say 'the government'; it says 'the coalition'. They are a political party.

Mr Lloyd : Yes.

Senator WONG: So you are inferring words that are not there, Mr Lloyd?

Mr Lloyd : The thing that I am taken by is that the coalition is the government, but also—

Senator WONG: That is not what it says.

Mr Lloyd : You would expect that the—

Senator WONG: It does not say 'the government'. Hang on, Mr Lloyd. You are answering a question inferring a word that is not there. Why are you doing that?

CHAIR: I think he is recognising that the coalition is in government.

Senator WONG: I think that is self-evident, but he keeps saying it is about the government. I am saying to you that it says 'the coalition', not 'the government'.

Mr Lloyd : It is implicit in the statement that the coalition is the government.

Senator WONG: Do you think it is a partisan political statement or not?

Mr Lloyd : It is stating what the coalition has delivered, what the government has delivered. I do not think it is necessarily highly partisan political.

Senator WONG: Wow. It is almost a direct lift out of some of their election policy. You are sitting there in your role and you are saying you do not think that is not partisan. You do not think, 'The coalition has delivered much for small business' is partisan?

Mr Lloyd : The thing that you asked me is what I thought about the public servants attending the forum.

Senator WONG: No, I am not asking that question. You are avoiding the question and answering a different one. I am asking you if that statement is partisan.

Mr Lloyd : That statement is saying what the coalition has done. The coalition is the government. In that position, it is talking about policy and that is as far as I am going to go. What you were asking me was—

Senator WONG: It is not talking about policy. It is a political spin: 'has delivered much for small business'. That is a political opinion; it is not a statement of fact.

Mr Lloyd : I do not think this is that unusual. I think you are going to find that public servants will address various forums with various positions of various—

Senator WONG: Why do you keep answering a different question, Mr Lloyd?

Mr Lloyd : bodies about policy, their policy position for or against certain positions, but the public servant's role is to explain what the policy is, how it is administered and what the implications are for the people that they are talking to. I do not think it is an event that they should be, in any way, concerned about appearing at. Certainly, as I said before, you would expect these types of people to be conveying information to small-business people about things like tax concessions and reform of the act for which one of the organisations is responsible. I anticipate that the Small Business and Family Enterprise Ombudsman is very involved in the red tape reduction.

Senator WONG: Thank you for answering a question I did not ask. I would like to go back to the question I asked. Are you telling this committee that, in your view as the commissioner, you do not believe the statement that says 'the coalition has delivered much for small business, including'—and then it lists a range of asserted policy achievements—is politically partisan?

Mr Lloyd : It is the coalition, and the coalition is the government. I think it is implicit. That is my answer.

Senator WONG: Fair enough. Leave aside the government issue. Even if you want to infer a word that is not there, let's leave that odd debate aside—is it your evidence that a paragraph that has, 'the coalition has delivered much for small business including significant red tape reduction', et cetera, is or is not partisan?

Mr Lloyd : If I was a small businessperson, I would be very interested in hearing, from experts, information about matters in those dot points about the misuse of market power, the agreements with South Korea, et cetera. That, to me, is very factual.

Senator WONG: The small business minister also held a forum in Belmont. A press release was issued on 4 April 2017 in relation to it. In that, the second paragraph—and I cannot provide you with this at the moment, but I can later if you want to hang around—it says that he will be attending the forum and will be joined again by the deputy of the ACCC, Dr Craig Latham and Robert Charles, the Assistant Commissioner Service Delivery, ATO. At the bottom of that press statement, it goes through all the things the coalition allegedly has done, and then it says:

In contrast, Bill Shorten has no plan for job creation and no plan for growing the economy. In fact, his frontbench cannot name one single pro-jobs, pro-growth policy they have.

Do you think that statement is partisan?

CHAIR: Senator Wong, is this another invitation that you are reading from?

Senator WONG: It is a press release from the small business minister. You can find it on his website. It is about a forum at which these three public servants were. Do you think that is a partisan statement—that Bill Shorten has no plan for job creation?

Mr Lloyd : It is criticising the opposition leader, but I think there are many occasions when public servants are mentioned in media statements where there is political comment of that nature.

Senator WONG: But this is about the forum that they were attending—that they were present at. It is a media statement that attacks the Leader of the Opposition and spruiks the attendance of three taxpayer-funded public servants. Do you have no concern about that?

Mr Lloyd : No, I think that—no.

Senator WONG: Well, that says something.

Senator McKENZIE: On that conflict of interest issue: I recall from Senate estimates a couple of years ago that Tim Harcourt, a Fair Work commissioner, who was attending—I think, Senator Wong, you were actually on that flyer as well.

Senator WONG: What has this got to do with impartiality?

Senator McKENZIE: My understanding of the code of conduct for the Fair Work commissioners is that they have to ensure that the independence and integrity of the commission is never called into disrepute. Tim Harcourt's repeated tweets and his attendance at a Labor Party fundraiser with, I think, yourself would suggest that he was actually bringing the Fair Work Commission into disrepute and not having that impartiality you are so seeking to be found across the public service.

Senator WONG: No, I would just like the Public Service Commissioner, for once, to actually defend impartiality—that is what would like—instead of sitting here and defending anything that this government does with public servants, to the detriment of the public service.

CHAIR: It does not sound like a question—

Senator WONG: No, it is not.

CHAIR: it sounds a bit like editorial to me.

Senator McKENZIE: I will table that invitation.

CHAIR: Thank you, that will be helpful.

Senator WONG: It is all been and done—four years ago. They are just trying to set you up again.

CHAIR: Mr Lloyd, just to refer to another similar recent event—

Senator McKENZIE: I think the party logo was on it.

CHAIR: Just to refer to another similar recent event in which a public servant appeared, which could be construed as political: the President of the Human Rights Commission, Gillian Triggs, addressed the 2014 Fraser Lecture, which was hosted by the federal member for Fraser, Andrew Leigh. It was introduced on his website, which is full of Labor Party branding, as being a talk on 'An unprecedented expansion of executive power'. In the speech, Professor Triggs went on to attack the government on a number of policy areas. Does that sound like a partisan event to you, which you would be concerned about?

Senator WONG: Come on, be even handed. See if you can do it. Give her as much support as you gave—

CHAIR: Senator Wong, order!

Mr Lloyd : One of the aspects of your question—it was a long question—was that she criticised the government. That, to me, would raise concerns. I think a public servant, when they are appearing in any forum, should be talking about policy and about administration, and not engaging in partisan political comment. While I do not know the details of the event you mentioned—

Senator WONG: But you are happy to comment.

Mr Lloyd : you gave a summary of it—I would be concerned about any public servant making political comment either way.

CHAIR: Yes, it does seem to be a bit of a habit of Professor Triggs in particular. You might be aware of media reporting of a speech she delivered this year to the Bob Brown Foundation. I think it is a charitable foundation but it certainly engages in environmental campaigning and activism and is attached to a former leader of a political party and former senator. Again, is that something you think could potentially be described as political in nature?

Mr Lloyd : If anybody was commenting in a partisan political way then I would have concerns as commissioner. It is the exception. My view is that public servants, by and large, respect the impartiality and certainly senior public servants, the leaders of our organisations, have a good sense of that, and so these events are very rare.

Senator WONG: Can I follow up on that?

CHAIR: You may, Senator Wong.

Senator WONG: Can you tell us what the difference is between an independent statutory officer and a public servant?

Mr Lloyd : It is often the appointment. A public servant is appointed under the Public Service Act. An independent statutory officer, in many cases, is appointed through the statute, sometimes by the Governor-General, for a term.

Senator WONG: Is Professor Triggs, in your view, a public servant?

Mr Lloyd : She is certainly a public official.

Senator WONG: Maybe you need to take advice again.

Ms Page : I will table those.

Ms Foster : The real issue is under what authority the person is appointed. The term 'public servant' is not specific to someone who was appointed under a particular act. In any case, the code of conduct in the Public Service Act applies to agency heads of APS agencies whether or not they are appointed under the act.

Senator WONG: Does that apply to Professor Triggs?

Ms Foster : Yes.

Senator WONG: So when you made those comments about Professor Triggs, did you understand her to be a public servant or an independent statutory officer?

Mr Lloyd : I had not turned my mind to it.

Senator WONG: You had not turned your mind to it?

Mr Lloyd : I was answering the chair's question. Any public servant, any public official, my sense was, who makes partisan political comment, I think, is not displaying impartiality.

Senator WONG: But it is fine for public servants to go to forums which are about spruiking a partisan agenda?

Mr Lloyd : I covered that before. The thing that I am taken by in that is that it was a small business forum. The matters being covered were very apposite to their roles about their act and the tax concessions. I think it is beneficial for small business people to have the opportunity to hear from these senior experts in those areas.

Senator WONG: Along with an email and a press release that talks about Bill Shorten in negative terms? Is that all okay with you?

Mr Lloyd : As I said before, public servants are often mentioned in press releases. They do not make the statements but ministers and opposition people at times make statements, and public servants can be mentioned in those types of press statements.

Senator WONG: So you have got no problem with Liberal MPs hosting forums where they email people in their electorates with a clearly partisan message? And I put to you that any reasonable person would see the paragraph I read to you is partisan. So issuing press releases, mentioning these public servants which attack the opposition leader, from your perspective, none of that breaches or calls into question the principle of the impartiality of the Public Service?

Mr Lloyd : I have explained to you my position on this particular forum, this email you have given me. I do not have a lot to add.

Senator WONG: No, I am sure you do not.

Senator SMITH: Commissioner, are you familiar with the situation or some of the background regarding the Australian Taxation Office and reports in regards to one of the sticking points in the CPSU negotiations around the finishing times?

Mr Lloyd : Yes I am. We are too.

Senator SMITH: If I could share my understanding, could you correct me where I am have misunderstood it. I understand there is this proposition that would extend the working day for officials at the Australian tax office from seven hours 21 minutes to seven hours 30 minutes.

Mr Lloyd : Yes. I might get Mr Spaccavento to handle that.

Mr Spaccavento : Senator, that was a proposition that had been put on the table by the ATO earlier in the bargaining; it is now no longer on the table.

Senator SMITH: Okay. So what happened? The table shifted?

Mr Spaccavento : Again I cannot speak on behalf of the ATO, but my understanding was, in response to feedback from staff and the CPSU, that the extra nine minutes a day would be unacceptable to them.

Senator SMITH: Would be acceptable?

Mr Spaccavento : Unacceptable to the staff.

Senator SMITH: Unacceptable. Why is that?

Mr Spaccavento : I could not comment on behalf of the staff.

Senator SMITH: So the CPSU said it was unacceptable?

Mr Spaccavento : That is my understanding.

Senator SMITH: Right, okay. I just want to relay a couple of comments that both the commissioner and the secretary, Nadine Flood, have said. Let me know whether or not these are familiar to you. The Australian tax commissioner was recently quoted as saying:

Clearly, the vast majority of the ATO's workforce do not 'down tools' at 4:51pm—

his words—

and this was a consideration in determining the overall productivity increases to justify the 6 per cent pay rise over three years.

Are you familiar with that comment?

Mr Spaccavento : Yes.

Senator SMITH: Then, the secretary of the CPSU, Nadine Flood, has been quoted as saying that the idea that staff leave work at 4.51 pm precisely is 'ludicrous'—her words—and that the members of the CPSU were 'working longer hours than ever before'. You are familiar with those comments?

Mr Spaccavento : I have heard comments along those lines.

Senator SMITH: Along those lines, sure. So given both of those statements that staff are working beyond 5 pm, or beyond the 4.51 designation but also beyond 5 pm, can you provide me with any sort of reason or justification for why 5 pm then would not be accepted as a finishing time to bring the agreement in line with what is the experience—the experience as communicated by the commissioner himself and by the secretary of the CPSU?

Mr Spaccavento : As to why that would not be accepted by staff and unions in bargaining? It is not a question I could answer, Senator; I cannot speak on their behalf.

Senator SMITH: Commissioner, can you?

Mr Lloyd : No, I cannot speak on behalf of them. It is a bit puzzling.

Senator SMITH: I am going to pursue this line of questioning and we will see whether or not I hit the goldmine, and there might be something that you can say. So just help me understand: what might be the benefit for employees in maintaining the official finishing time of 4.51 pm, but continuing past that time?

Mr Spaccavento : Typically, in most agencies, and certainly this is the case in the ATO, the employees below management levels are able to accrue flex time, which simply means that, for instance, if you were notionally to finish work at 4.51 but in fact continued working until, let us say, five o'clock, that would enable you to bank nine minutes that you could take off at another time.

Senator SMITH: Right. So even though the agreement says 4.51 pm, if I am an employee in the tax office and I continue to work past 4.51 pm then that time after 4.51 pm I accrue under the flex time arrangement?

Mr Spaccavento : That is correct, yes.

Senator SMITH: And that is a specific element of the tax office agreement, is it?

Mr Spaccavento : It is common across a number of agreements. Most—I am not sure I could say all, but certainly most—public service agreements would have a provision along those lines.

Senator SMITH: So the decision to work beyond the required time, would that be driven by considerations about the flex time opportunity that might accrue to them?

Mr Spaccavento : Enterprise agreements typically make clear that the ability to work extra hours depends on whether there is actually work to be done, so the intention is not that somebody would sit at their desk for nine minutes accruing time. There would be an assumption that there is in fact nine minutes' worth of work, or some other amount of work that could be done in that time. So most agreements contain provisions where managers could say they had a belief that the system was being abused, and would require an employee to work only to the strict pattern of hours in the agreement, for instance.

Senator SMITH: So obviously there is work to be done, because both the commissioner and the secretary of the union say that people are working beyond 5 pm.

Mr Spaccavento : Presumably that is the case, yes.

Senator SMITH: I think we can safely assume that, if their employer and the union that represents them are saying that.

Mr Spaccavento : Yes.

Senator SMITH: Are you able to confirm for me how many hours have been accrued in the flex time arrangements at the Australian tax office?

Mr Spaccavento : It is not a figure that I could provide. It would be a figure the ATO would need to supply.

Senator SMITH: Is it a figure you have?

Mr Spaccavento : No.

Senator SMITH: Just explain to me why you would not have that figure.

Mr Spaccavento : The ATO would keep its own records of how much flex time had been accrued by employees. It is not a figure that the APSC has. We would need to ask the ATO to provide us with that figure.

Senator SMITH: And you cannot do that?

Mr Spaccavento : I cannot do it at present, no.

Senator SMITH: But you could take it on notice.

Mr Spaccavento : We could ask them—sorry, yes.

Ms Foster : That is a question that the ATO should be asked. It is not—

Senator SMITH: 'Should' is not the same as 'must'.

Ms Foster : We would, normally, not answer agency-specific questions; we might be able to go one layer deep but we do not know what lies beyond that.

Senator SMITH: I will come to a deal. You can take it on notice and if it is not something you can provide me with on notice I will accept that; but you can just provide that in the response. Would you be able to quantify the cost of that to the department?

Mr Spaccavento : I have some figures here that might go part of the way, and I might be able to do some calculations on the fly if that might be of some interest.

Senator SMITH: And if there is an error you can correct the record, of course.

Mr Spaccavento : Of course. Based on nine minutes a day, our standard calculations for these things are that there are 226 working days in a year. Once you take out public holidays, Christmas, annual leave and so on, the figure I have is that nine minutes a day for 226 working days equates to 33.9 hours; that is over the course of a year, which is roughly 4½ days or thereabouts. Sorry, did the second part of your question ask me about the cost of that?

Senator SMITH: Yes: what is the cost to the department of these hours?

Mr Spaccavento : This is where I am wandering into maths on the fly. Four and a half days is a bit tricky. If you were to say it is close enough to five days—essentially a full week—if you were to use a salary figure of around $100,000 a year you would be looking at, basically, $2,000 per annum per employee, if those assumptions hold true. That is a back-of-the-envelope kind of figure.

Senator SMITH: With the limited time available to us, it is a good starting point. So that is $2,000 per employee.

Mr Spaccavento : In terms of output; I suppose you would say $2,000 worth of productivity or $2,000 worth of output.

Senator SMITH: How many employees are there in the Australian Taxation Office?

Mr Spaccavento : I do not know exactly. I think it is in the order of 18,000 or 20,000. I do not have that figure to hand.

Ms Foster : The other thing we do not have with us is whether or not $100,000 is an average salary.

Senator SMITH: Of course.

Ms Foster : What Mr Spaccavento is doing is giving you an indicative—

Senator SMITH: What is a reliable range of salaries in an organisation like the Australian Taxation Office, do you think?

Ms Foster : Across the APS I think that the average salary is—I wonder if Ms Bull can help me? I have $80,000 in my head.

Mr Spaccavento : $87,000 might be the median salary at the largest classification, but it varies very much by agency depending on the make-up of the employees and so on.

Ms Foster : And the tax office is one of the higher-paid agencies.

Mr Spaccavento : Yes.

Ms Foster : We would expect them to be—

Mr Spaccavento : Probably a little bit higher than that.

Ms Foster : a little bit higher.

Senator SMITH: It sounds like $100,000 would be a fair estimate.

Mr Spaccavento : There or thereabouts, possibly; it is a bit of a piece-of-string question.

Senator SMITH: That still leaves us at the $2,000 per annum per employee—

Mr Spaccavento : Yes.

Senator SMITH: and we estimate there are between 18,000 and 20,000 employees, so let's take 19,000. That is $38 million.

Mr Spaccavento : That sounds about right. I would point out that not all of the ATO's employees are eligible to access the flex scheme, so the figure is probably a little bit smaller than that.

Senator SMITH: A little bit smaller than $38 million but still a considerable sum of money. In summary, the commissioner and the secretary of the union both agree that tax office employees are working beyond the 4.51 pm requirement. The members have decided that they will not accept the offer that asks them to work until 5 pm.

Mr Spaccavento : Or the extra nine minutes a day, yes.

Senator SMITH: And this is not true of every ATO employee, but some will be seeing an opportunity here to, what is the term—flex time?

Mr Spaccavento : The system is typically called flex time.

Senator SMITH: To flex time?

Mr Spaccavento : Yes—so they can accrue flex time.

Senator SMITH: When we extrapolate the cost of that—again, not every ATO official; again, not everyone will be earning the $100,000 benchmark—even $25 million is a considerable sum of money, but the calculation we have done is $38 million worth of—

Mr Spaccavento : Of output.

Senator SMITH: Of output? Well, we do not know that. This is the financial cost to the ATO. If we were to work out the reduction in the flex bank hours, if there was a proposed change in the finish time—if the finish time was 4.55 pm, for example, that would reduce that $38 million figure.

Mr Spaccavento : Any increase in the length of the standard day, on that assumption, would reduce the extra minutes available to be accrued, yes. Five minutes would make a difference; four minutes would make a difference.

Senator SMITH: Thanks very much. I think I have made the point.

CHAIR: Senator Roberts.

Senator ROBERTS: My concerns are to do with the cost of living and also fairness that resonates amongst our constituency. I learned last week—I just wonder if you could confirm, please—that the average increase in pay in the private sector last year was 1.9 per cent. These are ABS figures, apparently, but I have not checked with the ABS. The pay increase was 1.9 per cent for the private sector, 2.5 per cent for the public sector, and the cost of living increased by 2.1 per cent. So a person in the private sector, on average, fell backwards, as they did not receive an income raise that matched the cost-of-living increase, and the increase in the public service was above the cost-of-living increase. Is that true?

Mr Lloyd : One point nine is a figure which I think I recall. I think that is right. The public service increase—you have to be a bit careful about that, because it is both state and federal public servants, and it would depend in the last quarter where the increases were coming from. Certainly, I think the figure was slightly higher for the public sector—around that. I think it was 2.4 per cent. So it was higher, yes.

Senator ROBERTS: Okay. Also, the Australian taxpayers would like to know what public servants are receiving in the way of remuneration. What is your total remuneration?

Mr Lloyd : My total remuneration?

Senator ROBERTS: Yes, including all entitlements.

Mr Lloyd : That is published by the Remuneration Tribunal in a determination. People can go and find out if they want to. But, if you want to know, it is about $680,000.

Senator ROBERTS: Okay.

Mr Lloyd : But that is the total remuneration package. It is salary, superannuation and other entitlements.

Senator ROBERTS: Would it be possible, on notice, to get the salaries of all people in the commission who are paid more than $250,000 a year and all the entitlements?

Mr Lloyd : In our last annual report, we certainly published the bands and identified staff at various bands, and that would have, I think, identified $250,000 in there. So that could be gleaned from the annual report. And we will put in our next annual report, on our website, the salary bands, and that information will be publicly available.

Senator ROBERTS: Okay. The other questions relate to employment policies of the Commonwealth Public Service. Is it true that the Public Service collects data on the percentage of minority groups, women and people with a disability who work for it?

Ms Foster : Yes, that is correct.

Senator ROBERTS: Okay. Does the Public Service generally, or any government department specifically, employ minimum numbers of ethnic minorities, women or the disabled?

Ms Foster : I am sorry; I am not quite sure where the question—

Senator ROBERTS: Does the Public Service generally, or any government department specifically, employ minimum numbers of ethnic minorities, women or the disabled? Are there targets?

Ms Foster : We have targets for the employment of Indigenous employees. We do not have specific targets for people with disability, and there are some reasons around that which I can go into if you wish me to. On women, we have asked all APS agencies to develop a gender equality plan which sets targets that are appropriate to that agency that are ambitious and achievable. Those targets are published. Each department has completed a gender equality plan and has put them on their external internet sites. The reason for handling it in that way is that we be publically accountable for the targets we are setting.

Senator ROBERTS: Does the Public Service generally or any government department specifically and preferentially promote members of ethnic minorities, women or the disabled?

Ms Foster : All of our promotion is done on the basis of merit and we have a number of mechanisms to ensure that people from particular diversity groups are able to compete on merit. For example, we have a scheme called RecruitAbility which means that, for someone who nominates that they have a disability, if they meet the minimum requirements of the position they will automatically go through to the interview stage. Once they get to the interview stage, they will compete across the board. What we are trying to do is take away hurdles to level the playing field a bit, if you like.

Senator ROBERTS: What sorts of hurdles?

Ms Foster : Sometimes the advertisements can be written in ways that are not accessible to people with various disabilities. It can be difficult to attend an interview in person. We also have some measures which allow us to restrict vacancies to particular diversity groups: one for disability and one for Indigenous employees. We will often find those being used where, for example, the agency makes an assessment that the public interest would be best served by an Indigenous employee or a person with disability occupying that position.

Senator ROBERTS: The position in Cape York, for example, under certain responsibilities.

Ms Foster : Indeed. For example, we have recently, or we are just about to, advertise a position specifically for a person with disability whom we want to help us develop our graduate program for people with disability, because we have been finding that graduates—particularly those, for example, with mental health issues—find it difficult to compete in the standard graduate process.

Senator ROBERTS: Does the Public Service generally or any government department specifically have any so called affirmative action program in favour of any groups? You have said people with disability, sometimes Indigenous—

Ms Foster : Those two groups are in what we call special measures in the commissioner's directions; they are an affirmative action.

Senator ROBERTS: When any part of the Public Service undertakes redundancy programs, have any departments sought to preferentially offer redundancies to any group on the basis of gender or ethnicity in order to effect a change in the gender or ethnic make-up of the department—for example, by preferentially offering redundancies to men of Anglo-Celtic decent?

Ms Foster : Not to my knowledge.

Senator ROBERTS: What is the current number of EL1 and EL2 public servants and the number of SES-level public servants in the Australian Public Service? How many were there five years ago, 10 years ago and 20 years ago?

Ms Foster : We will take that on notice. We do not have that detail with us.

Senator ROBERTS: What percentage of total Public Service employees do each of the EL1-, EL2- and SES-level employees represent now and at each of the previous intervals I just mentioned: five, 10 and 20 years ago?

Ms Foster : We will take that on notice.

Senator ROBERTS: What is the average annual wage of SES-level and EL-level public servants?

Ms Foster : Again, we will have to take that on notice.

Senator ROBERTS: By what percentage have SES bands 2 and 3 wages grown in the last 10 years?

Ms Foster : We will have to take that on notice.

Senator ROBERTS: Thank you very much. By the way, Chair, does anyone have any trouble seeing me, or should I stand up in future?


Senator ROBERTS: We had a senator today tweeting that no-one from One Nation is here and we had a senator last time, who I sat next to, tweeting that no-one from One Nation was here, and yet we were here for the whole time.

Senator WONG: I think you are it. I think you are the only one who comes.

Senator ROBERTS: Wait until tomorrow.

CHAIR: Thank you, Senator Roberts.

Senator WONG: But we do notice that you are here. Don't worry.

CHAIR: I very much appreciate that important clarification.

Senator WONG: I think I tabled the email but I want to table the press release that I asked questions from, which was from Ms Henderson as well. Thank you.

Senator MOORE: Mr Lloyd, I have some questions about the communique of the Secretaries Equality and Diversity Council, which is to do with the strategy that the APS has got. I quote:

The Council agreed that each Secretary will develop … measures to meet the G20 target to reduce Australia's workforce participation gender gap by 25 per cent by 2025.

It is in the printed document. Does that mean that the departments themselves will develop measures within their own policy areas or that the Public Service will develop internal strategies and model best practice, or both?

Ms Foster : In the broad, agencies are responsible for developing strategies internal to their agency. In relation specifically to the G20 target, my understanding is that that—to the extent that it is being managed centrally—is managed through the Office for Women, not through the APSC.

Senator MOORE: This goes back to what we were talking about earlier, about who does what. The G20 target is an intrinsic part of the APS strategy—in fact it has got a whole page talking about why it is important. It is not clear to me, in reading that, that that is going to go back to the Office for Women and that it is actually theirs. It talks about the APS gender strategy and what it will do to meet the 25 per cent target. It is on page 6 of the document. It actually embeds the APS strategy within the overall G20 strategy, which I understand, and I know that the overall strategy is looking at an overall target in the community of meeting that 25 per cent. But within the APS, I take it from my reading of this that you are aiming for that increase within the APS as well. Is that a misreading of the document?

Ms Foster : I am processing your question. The question is: are we also seeking to meet the G20 target within the APS?

Senator MOORE: Yes.

Ms Foster : I think the answer is yes, but let me just think that through.

Senator MOORE: That is the process. From the way it has been presented and the way I have read it is that the APS has its own strategy, and this document is a brief introduction to that strategy, the whole document and how it is going to operate.

Ms Foster : I think in the broad what we are trying to say is that the APS will continue to strive to set best practice and be a pace setter in gender equality.

Senator MOORE: Is there an expectation that each of the agencies will be doing that internally, both within their employment processes and in their development processes for their staff and that is fed back to the APSC, who actually develop best practice on the basis of what each of the agencies have fed into the process?

Ms Foster : It is indeed an iterative process. We worked with agencies to develop this. We launched it. They have taken it and they are developing internal—

Senator MOORE: Senator Roberts might have liked to have been at the launch.

Ms Foster : Each agency then develops an internal plan. We hold regular forums. For example, Ms Crosthwaite, after each meeting of the Secretaries Equality and Diversity Council, makes an open forum available, particularly to the smaller agencies who are not so well connected into the centre, so that we can discuss with them how they are going against the policy. We take best practice from each of the agencies and promulgate it to the others, so we are trying to get a continuous improvement cycle.

Senator MOORE: So the process by which the measures are reported to the secretaries council is by reports from individual agencies. Is there an expectation that the individual agencies will be making reports to the secretaries council?

Ms Foster : The individual agencies, as I said before, are putting up their strategies and their success against their measures on their websites. The kind of thing which we will do is look at those things—not just look at the plans, but in our regular discussions with the agencies we will talk about where the things are that we are doing really well and that we can promote and sell, where the things are where groups of agencies or types of agencies are struggling and how we could assist them. We have a working group that sits underneath the secretaries council. We recently undertook a number of projects to push issues where we knew we had some ground to make up. One of those was around STEM, and that working group is going to focus particularly on how we get more women with STEM into the Public Service.

Senator MOORE: So the process is that the responsibilities have been devolved to each of the agencies to work on their own plans to see how they can meet the 25 per cent target as a kind of general target. Then they put that up on their website so that all their staff members and other people know about it. Are they then also feeding that directly to the working group underneath the secretaries council process? Rather than Ms Crosthwaite or her workers having to look at every website to check what is happening in every government agency, they are submitting to your group so that you can look and see what is best practice, who is doing well and who is not doing well, and that is fed back to get a particular focus? I do not want to verbal you; I just want to be really clear about how the process is working in the APS.

Ms Foster : I guess the reason that we are not being absolutely definitive is that there is a whole range of processes that we use. Some of them are around the collection of data. Ms Bull's group will be collecting data on what is happening to changes in gender makeup in agencies. We will be holding—

Senator MOORE: That is out there at the moment—the current census—in terms of what is in the public sector. When is that due for completion?

Ms Bull : The APS Employee Census results are due about the end of July. We collect data through that, but we also collect data regularly through our HR systems on gender balance, and then we collect more detailed data about strategy.

Senator MOORE: I asked the Office for Women to get a list of all the datasets that are currently being used. Could I also have a second go and see whether I can get a list of all the datasets that are currently being used in the APS?

Ms Foster : We actually publish on our website, every six months, validated data about all sorts of statistics.

Senator MOORE: I am trying to find out how you gather that. I look at your stats, so I know there is a six-monthly update on the website, but how do you get that? I would like to know. You said there was more than one way in the census to do that.

Ms Foster : There are two fundamental ways.

Senator MOORE: You can tell me those two ways.

Ms Foster : One is through the Employee Census, which is obviously self-reporting and is done annually. The second way is by agencies providing information from their HR systems which we put into a big database called the APS Employment Database, which has over 50 years of data.

Senator MOORE: That is the basis for the six-monthly reports?

Ms Foster : That is correct.

Senator MOORE: That is compared to the census, because that database is going out on the basis of that collection and then the census goes on top of that? I bet it is not the same.

Ms Bull : No, but in terms of the data we measure on the proportion of female staff employed across the APS and at what level, the primary database is the APS Employment Database; it is not the census. The census data is used to inform us about strategy and things like more detailed information about how staff might feel about accessing flexible work and other issues covered by the strategy.

Senator MOORE: Sure. It has a lot more questions than just about gender.

Ms Bull : Yes. But the actual count in terms of how many women, what levels and what agencies, that is the six-monthly data in the APS Employment Database.

Senator MOORE: So the Employment Database is the one, which is six-monthly?

Ms Bull : Yes, that is right, because it is more comprehensive for that data.

Ms Foster : Senator, can I go back to your earlier questioning? I now understand why I was confused. The G20 commitment to reduce the gender gap in workforce participation—because the APS has more women than men, we do not have a gap.

Senator MOORE: You have in some agencies.

Ms Foster : We have in some agencies, and we are working specifically on those. In fact, there are some terrific success stories in how agencies like Treasury have turned around quite a significant gender gap at SES levels with a sustained strategy.

Senator MOORE: So your management of the G20 commitment is not across the whole APS, it is across areas which are not meeting the process now. Here is what I am trying to find out: what is the APS commitment to the G20 process, seeing that it was considered necessary to have that particularly mentioned in the strategy document for the APS?

Ms Foster : So all of these things are across the whole APS; it is the APS Gender Equality Strategy. There will be different needs in different agencies, and that is what I am trying to convey. Some people will put a significant effort into, literally, a gender gap in their workforce participation, or in their make-up. Others will be putting much greater emphasis on, for example, encouraging men to make more use of flexible working arrangements as a way of redressing the caring imbalance.

Senator MOORE: So that is all fed back to the—

Ms Foster : It is fed back to us in a range of ways. We discuss it at our working group; we get reports to the secretary's group—

Senator MOORE: Which are compulsory? Is it compulsory for the departments to report back against this?

Ms Foster : 'Compulsory' is a strong word. It is expected that every department will publish its plan, and that has happened.

Senator MOORE: Every single one has? So they have voluntarily done that?

Ms Foster : Yes, every department's plan is now up on its external website.

Senator MOORE: But there is no central website that has every department's plan on it?

Ms Foster : No, not at the moment, Senator.

Senator MOORE: Is there an intent to do so, so that we have an APS snapshot of what is happening?

Ms Foster : We are always looking at ways that we can bring the picture together. I am not sure that having every plan in the same place would do that for us. Showcasing efforts around themes or individual initiatives is possibly more useful for agencies.

Senator MOORE: And is there a plan to do that?

Ms Foster : So we have some work underway on that already.

Senator MOORE: But to the best of my knowledge that is not public yet. The other thing is, in relation to the evaluation process, which is in your document, it says:

… Agencies will monitor their progress against actions taken under the strategy and adjust their approach as required.

… The APSC will evaluate and report on APS progress towards gender equality. Agencies will contribute data to the APSC as required.

So that is the standard. You have given me some detail about what the internal process is. Is there an agreed process on the APSC evaluation of what is happening? Is there going to be an annual report, putting it up and saying: 'This is how we went on equality this year. These are the good things. These are the bad things.' I think someone made a point earlier in our questioning, in another area, that people focus on what has worked and talk about best practice, and that is good, but if you are doing a genuine evaluation you look at what has not worked as well.

Ms Foster : Indeed. We will do an evaluation at the midpoint of the strategy, which is 18 months—Ms Crosthwaite can talk to you about that; they have already started the planning for how they will do that evaluation—and then we will do an evaluation at the end point of the strategy.

Senator MOORE: So the halfway point is?

Ms Foster : It will be in the second half of this year.

Senator MOORE: Okay, Ms Crosthwaite, how is that going?

Ms Crosthwaite : We have been talking to agencies about how they can do their own evaluations, which is important, because they have their own gender equality strategies. We have also been planning how we will do an APS-wide evaluation, which is important. There will be two elements. We will be looking at the quantitative side of things, which is Ms Bull's group; the data that comes from both the census and APSED will inform that. So we will take an APS-wide view of what is happening in terms of the numbers of women in the workforce not only across the APS but also in particular agencies.

But we will also be looking at the census results to look at the experience of men and women in the workplace in their access to flexible working arrangements, at data about employee engagement and whether there has been any shift. What we are looking at is the impact of the strategies that have been implemented. In addition to that, the departments have undertaken the diagnostic tool that the Workplace Gender Equality Agency provides on its website. We have actually run some workshops on that to try and help agencies to know how to use that diagnostic tool.

Senator MOORE: Has that been completed by all agencies now?

Ms Crosthwaite : Departments have all done them. Agencies are at various stages of doing that. That was to try and set a baseline of where we can start to see some progress to measure during the course of the strategy. We will certainly be able to do an evaluation of the progress of departments from their baseline at the midpoint and at the end. And agencies will be relying more on them to provide information to us. We have a number of different ways we get that sort of information from agencies.

Senator MOORE: On notice, could you tell me the number of different ways. Can I get the number of different ways that you get that information as well. So at the end of this calendar year, we should have the halfway review pulling that all together?

Ms Crosthwaite : Yes.

Senator MOORE: Step d of the Balancing the Future strategy states:

The APSC will review and develop training on the differential impact of gender in mainstream policy development.

Has that occurred?

Ms Foster : I do not have that information off the top of my head. I will see if anybody has it here.

Senator MOORE: You can take it on notice. Is the Office for Women involved with the work?

Ms Foster : Yes, we work very closely with the Office for Women.

Senator MOORE: Is that under the workplace task force that we heard about earlier? Is that the 3.76 ASL workforce task force which is under the G20? Is that the bit of the Office for Women that work with you on this or is it another bit of the Office for Women?

Ms Crosthwaite : I could not say which allocation we talk to.

Senator MOORE: Does the G20 task force have a particular role, seeing that this is all within that aspect?

Ms Crosthwaite : I will take that on notice.

Senator MOORE: Take that on notice if you can work that out. We are getting some of the data on notice by the end of the year. Can I get on notice some detail on what you are doing and how you are going with the evaluation strategy?

Ms Foster : We are just developing that at the moment so it might not be a completely full answer.

Senator MOORE: What you can provide will be good. Through the whole document, does it refer to the SDGs within the framework of the SDG model?

Ms Foster : Within individual agencies, I am sure that is happening. It has not been a focus of a discussion that I have been involved in yet but there are a lot of things happening that we are not centrally managing.

Senator McALLISTER: Mr Lloyd, are you aware that the code of conduct investigations arising from the ATO fraud investigation?

Mr Lloyd : Yes.

Senator McALLISTER: When did you first become aware?

Mr Lloyd : I became aware of them at the weekend.

Senator McALLISTER: By what means did you become aware?

Mr Lloyd : When they became public.

Senator McALLISTER: I am not speaking about the scandal more broadly; I am speaking about the code of conduct investigations in relation to some of the employees of the ATO. So you became aware of those in what way and at what time?

Mr Lloyd : I do not know what time. I first became aware that there was a code of conduct investigation in the media. I was interstate on Friday, travelling. I cannot give you an exact time.

Senator McALLISTER: So it was through the media sometime perhaps on Friday. Do you have any role in supporting the ATO in undertaking a code of conduct investigation of this kind?

Mr Lloyd : It is essentially a matter for the ATO to undertake. They have responsibility and they are undertaking it.

Senator McALLISTER: Do the revelations reported over the last few days require any action from the APSC?

Mr Lloyd : Not at this stage, no.

Senator McALLISTER: When you say 'not at this stage' it suggests that you are contemplating the possibility that it might in the future.

Mr Lloyd : No, it does not. No, what I wanted to convey is that I thought that you asked a pretty open-ended question and, with abundant caution, you should not say 'never'. The matter is an internal investigation of the code of conduct breach by the ATO, and there they have the right and the competence to do it, so they are doing it.

Senator McALLISTER: It doesn't involve any tightening of guidance?

Mr Lloyd : No.

Senator McALLISTER: You will be monitoring it then, I imagine?

Mr Lloyd : Any code of conduct matter we monitor, but this one obviously is prominent, so, yes.

Senator McALLISTER: Have you had any contact with the ATO?

Mr Lloyd : Yes.

Senator McALLISTER: When did you contact the ATO, or did they contact you?

Mr Lloyd : Ms Foster contacted them today just to get advice about what they are doing in general terms. We have to be careful about the individuals involved and respect their privacy et cetera, but we got advice about what was being undertaken by the ATO—that they were conducting code of conduct investigations, basically.

Senator McALLISTER: So you reached out to them, Ms Foster?

Ms Foster : I certainly did this morning to ensure that, if asked at estimates, I was working on the basis of factual information from the ATO, rather than responding to media reports.

Senator McALLISTER: What did they tell you?

Ms Foster : Simply that a small number of ATO officers had been suspended from duty pending investigation and that the suspension from duty should not be construed as a prejudging of whether or not breaches of the code of conduct had occurred. They confirmed the names of the three SES officers who had been named in the press as now publicly available information. I think that was about it.

Senator McALLISTER: Mr Lloyd mentioned that you have reached out in relation to privacy issues. What were those issues?

Ms Foster : No. I cannot remember his words, but, no, I reached out to them, as I said, to make sure that I had facts and that I was not responding to media information. I am hesitating because I have pretty regular contact with my counterpart in the ATO. I was meeting with her late last week on other issues. I could not say for sure that the first contact we had about this particular issue was this morning or we had discussed it over the weekend. I do not recall.

Senator McALLISTER: So you did have conversations with the ATO over the weekend, but it may have been about other questions?

Ms Foster : No, not over the weekend. As I said, I was—

Senator McALLISTER: It is only Monday today.

Ms Foster : No, not over the weekend. As I said, I was meeting with my colleague, from memory, on Friday about another issue altogether. I do not recall what, if any, discussion we had about this case then.

Senator WONG: Did you take a note of the meeting on Friday? These matters have occupied a lot of attention. Are you telling us that you might not be able to recall if these issues were discussed at a meeting on Friday? Is that your evidence?

Ms Foster : The meeting on Friday was actually talking about our talent council, so it was not on this issue.

Senator WONG: Was the story public then?

Mr Lloyd : Yes. I think the story broke on Thursday.

Ms Foster : I think the story became public on Wednesday or Thursday.

Mr Lloyd : Thursday, I thought.

Senator WONG: And your evidence is that nothing was raised with you on the Friday?

Ms Foster : What I am saying is that that was not the purpose of the meeting.

Senator WONG: I understand that; that was not the question. Is your evidence that it was not discussed at all in your meeting on the Friday?

Ms Foster : No, I am saying I cannot recall if it was discussed on the Friday or whether it was discussed earlier in the week after the issue broke.

Senator WONG: Sorry, I misunderstood the evidence. So it might have been discussed Friday or earlier, when the matter was in the media.

Ms Foster : That is correct.

Senator WONG: We will come to the nature of the discussion.

Senator McALLISTER: So the discussions on Friday were about something completely separate.

Ms Foster : That is correct. It was a pretty scheduled meeting.

Senator McALLISTER: Have any of the discussions—earlier in the week, prior to the weekend—gone to the ATO, the factors at stake in the ATO?

Ms Foster : The initial media reports, as I recall, were focused more strongly on the fraud against the ATO rather than the role of ATO employees in any misconduct. In fact, from memory, there was conflation of those two things. Because the investigation of code-of-conduct issues is a matter for the agency head, unless it relates to that agency head, when it comes to the commissioner, there is not a role for us to seek information from the ATO about how they are handling their internal processes.

Senator WONG: We have not asked you that question. You have given evidence in answer to my question, and to, I think, an earlier question from Senator McAllister, that sometime prior to the weekend—you cannot recall whether it was in the Friday meeting, which was to discuss another matter or otherwise—you had some discussions with your counterpart, I think was the phrase you used. At which level is this person?

Ms Foster : I do not know what the technical term is in the ATO but at the deputy secretary level.

Senator WONG: So it is the deputy commissioner or someone beneath that?

Ms Foster : They use a different—

Senator WONG: Assistant commissioner? You do not know the title of your counterpart?

Mr Lloyd : They are under different sorts of titles.

Senator WONG: I do not mind; I do not care what the title is, I just want to know what level this person is.

Ms Foster : I have just told you: it is a band 3 equivalent position.

Senator WONG: But you do not know the title they use in the ATO. So you will take that on notice, the position of your counterpart, yes? Can you find that out?

Ms Foster : It is, essentially, the chief operating officer.

Senator WONG: The COO equivalent, and you have some conversation prior to the weekend—after the story has broken?—

Ms Foster : Yes.

Senator WONG: relating to the facts of the matter.

Ms Foster : I had been in discussion with my counterpart on and off during the week because she had been unable to attend another meeting and had, simply, to say, 'I'm sorry, I cannot attend.' Because we had been trying to stay connected on the other issue, which as I said was about our talent council process, I talked to her on and off during the week.

Senator WONG: I have not asked you that question. I am giving you the opportunity. You have given evidence that at some point in that week—and you have been very clear with us that you cannot remember exactly when, because you have had a range of contacts with the COO equivalent—the issue of the alleged fraudulent conduct et cetera of a number of ATO employees and these investigations, however you want to describe it, had been raised. Correct?

Ms Foster : Correct.

Senator WONG: You cannot recall when. I am not asking you when, but I am asking you what.

Ms Foster : I tried to answer that question. I did not seek specific information because that is not the APSC's role.

Senator WONG: I understand that. I am just asking what the nature was, then, of the discussion.

Ms Foster : It was not the purpose of our phone calls and so—

Senator WONG: I understand that. What information—did she tell you this has happened?

Ms Foster : I think it was much more along the lines of it had been a very busy week, a tough week. It was that nature of conversation.

Senator WONG: And the conversation definitely occurred after these matters became public?

Ms Foster : That is correct.

Senator WONG: Subsequently, I think in answer to a question from Senator McAllister, you said that today you had some further discussions.

Ms Foster : That is correct.

Senator WONG: Including in relation to suspension?

Ms Foster : I simply asked for the facts of the matter as it related to—

Senator WONG: So what are the facts?

Ms Foster : That is what I just responded to Senator McAllister.

Senator WONG: Can I understand them again?

Ms Foster : Yes. A small number of ATO employees had been suspended—

Senator WONG: How many?

Ms Foster : I think the answer was 'a small number'.

Senator WONG: I am asking you how many.

Ms Foster : What I am saying is that the ATO said to me 'a small number'.

Senator WONG: This is what you were told; okay. Did you get any details about when they were suspended?

Ms Foster : No, I did not, nor did I ask.

Senator WONG: There is a police investigation on foot—correct? But the suspension relates to others?

Mr Lloyd : The suspension relates to staff, I think.

Ms Foster : The only question I asked was in relation to what the facts are about ATO staff who are being reported in the media as being investigated for potential breaches of the code of conduct. The answer was, 'There are a small number who have been suspended from duty pending investigation.'

Senator WONG: Pending investigation?

Ms Foster : That is correct, and that the suspension from duty should not, in any way, prejudge whether or not they have breached the code of conduct.

Senator McALLISTER: To clarify, you have indicated to Senator Wong that the answer was, 'A small number of staff have been suspended.' Earlier in your evidence, you said that there are three staff whose names have appeared publically and that in your conversation it was confirmed that those three staff are amongst those who are suspended. Is that correct?

Ms Foster : That is correct. I think those three staff who have been named are SES officers.

Senator McALLISTER: But the small number may extend beyond those three SES officers?

Ms Foster : It may, but I do not have those details.

Senator McALLISTER: Mr Lloyd, does your organisation track the use of labour-hire companies within the Commonwealth Public Service?

Mr Lloyd : No, we do not, as far as I know. We have a sense of the number of non-ongoing staff. The numbers of labour hire—I am pretty sure we do not.

Senator McALLISTER: Do you provide any guidance about the use of labour-hire agreements?

Mr Lloyd : Not to my knowledge.

Senator McALLISTER: Do you provide any guidance about the treatment of personnel who may be engaged under labour-hire agreements to undertake work within Commonwealth departments?

Mr Lloyd : Not to my knowledge. Agencies are aware of the responsibilities they have. I do not think many agreements would have information about labour-hire usage in them. I might be wrong, but my sense is that there are not many.

Senator McALLISTER: I think that is clear. I am interested in the use of labour hire and its role as part of the Commonwealth's overall employment strategy. I am interested that it is not a feature of your work.

Mr Lloyd : We certainly encourage agencies to adopt a flexible approach to employment, and that can involve ongoing staff, non-ongoing staff, part-time, casuals, independent contractors or labour-hire gig employees. These things are important now and I think they will become, perhaps, more important in the future.

Senator McALLISTER: Just previously you said you do not provide guidance or advice about labour hire.

Mr Lloyd : That is right.

Senator McALLISTER: But in your evidence just now you said you encourage the use of flexible employment, including labour hire. I do not understand how those two things can be reconciled.

Mr Lloyd : We encourage people to adopt a flexible approach to work and to make what use they can of flexible arrangements. It often makes good business sense. You cannot have experts in every field in your organisation, so inevitably you have to go and get outside assistance and engage with contractors, labour hire or whatever it might be.

Senator McALLISTER: Is that written or is it just an attitude?

Mr Lloyd : Any modern business these days is contemplating and using these types of employment. It is just the reality of the employment market today.

Senator McALLISTER: Senator Cash, is it the policy of the government to expand the use of labour hire within the Public Service to undertake public service functions?

Senator Cash: I do not have specific information in relation to that, but certainly my understanding is that employment practices should ensure a good mix of workers, obviously, but they should also suit the relevant agency's needs to ensure that it functions in the most efficient manner possible.

Senator McALLISTER: Mr Lloyd is saying that he is encouraging people to explore flexible options, including labour hire, but that is not your position?

Senator Cash: No, not at all. I think my evidence is consistent with the commissioner's—that each agency will determine its own workforce based on its needs and that it will differ from agency to agency.

Mr Lloyd : And the opposite does not stand. You cannot encourage inflexible employment arrangements. In this day and age you need to encourage people to be flexible, to adapt to change.

Senator McALLISTER: There is a longer debate about flexibility, Mr Lloyd, and I do not have time to have that with you. I suppose the question is always, 'Flexible for who?' isn't it. Can I ask you about the management of payroll within the APSC. Do you have any oversight or intelligence about the extent to which payroll management is outsourced within the APSC?

Ms Foster : Do you mean within the APS or within the APSC?

Senator McALLISTER: Sorry, I misspoke—the APS.

Ms Foster : That is not a role for the commission.

Senator McALLISTER: You take no interest in that?

Senator McKENZIE: That is not the evidence, Senator.

Senator McALLISTER: No, I am not actually trying to be smart. I am sorry if it sounded impolite. I am just confirming that it is not a part of your work.

Ms Foster : That is correct.

Pr oceedings suspended from 18:27 to 19:59