APS Update: Our guide to the guide

By Jennifer Wyborn, Lauren Haywood and Nicholas West-Foy

17 Aug 2017

New guidelines have been released by the APSC that clarify the expectations of Commonwealth public servants' behaviour on social media. It comes at a time where politically charged topics such as same sex marriage dominate the national conversation.

"Making comment on social media: A guide for employees" was released on 7 August 2017. The guide reiterates to APS employees the potential pitfalls faced when commenting on public and political topics via social media. It clarifies that comments which might undermine the public's perception of the APS being impartial and professional may amount to a breach of the APS Code of Conduct.

Is it binding?

In short, no. The guide is simply that, a guide. The guide does not displace any of the existing obligations under the Code, agency enterprise agreements, or workplace policies, including Social Media policies.

What does the guide say?

The guide outlines a number of risk factors for APS employees to be aware of, including:

  • being overly critical of an agency or Minister the employee is working for, or has worked for;
  • inadvertently disclosing confidential information;
  • posting comments under the belief that it is being done anonymously;
  • sending something privately to a friend who subsequently passes it on, leading to its further dissemination beyond the employee's control; and
  • incorrectly assuming that making a post:
    • after hours;
    • on a private device; or
    • with an express statement that it is in a personal capacity;
    • will not give rise to a breach of the Code.

Thumbs down

The guide also deals with certain features on social media that may impliedly express an APS employee's opinion on an issue. It warns APS employees to be cautious when "liking", "sharing" or "reposting" on social media as "it will generally be taken to be an endorsement of that material as though you'd created that material yourself", and advises that if an employee disagrees with a post they are "sharing" or "reposting" to make that expressly clear at the time.

With friends like these…

Interestingly, the guide also warns that objectionable material posted by a friend to an APS employee's social media page could be a breach of the Code as it too may be seen as an endorsement of that content. The guide notes that a breach of the Code in this instance would come not from the person making the post, but from how the APS employee reacts to it. It recommends deleting these posts or commenting to make it clear they do not agree with the position.

What role will the guide play in employment decisions? 

While the CPSU acknowledge that a right exists under the Code for agencies to regulate the conduct of their employees on social media, it believes certain aspects of the guide are "completely unreasonable" and "support a very restrictive interpretation of when, how and under what circumstances APS employees can engage in commentary… on social media." The CPSU believes that only comments which may call into question the capacity of the particular employee to do their job impartially, or has the risk of significantly damaging the reputation of that employee's agency or the APS, should be subject to disciplinary action under the Code.

The CPSU has also said that the guide amounts to an "overreach" and it is unreasonable for an employee to face disciplinary action over a private email or for "liking" a social media post.

This appears to be overstated. For managers dealing with potential breaches of social media policies, it is important to bear in mind that each case will turn on its facts, and a mere oversight by an APS employee is unlikely to constitute a valid reason for termination on its own.  For example, in Daniel Starr v Department of Human Services [2016] FWC 1460, VP Hatcher considered DHS' decision to dismiss Mr Starr, who had made negative comments about Centrelink on social media, while justified, was harsh in his particular circumstances (which included the administrative nature of his work and the length of his service). 

The decision in Starr highlights that the FWC will take into account all of the factors surrounding the agency's decision in considering whether dismissal was appropriate. The guide is only one relevant factor. The guide can assist agencies in making these decisions where there are a number of competing considerations but will not be determinative if a matter reaches the Commission.

So where does the guide stand?

As we know, in Australia there is no individual right to freedom of political communication and unlike many private sector employees, there are particular requirements of APS employees under the APS legislative framework, including the Code, agency-specific enterprise agreements and workplace policies.

Public Service Commissioner John Lloyd has stated that "current obligations are not well understood by employees" and the new guidelines make the expectations of APS employees' use of social media clearer. We agree with this view. This is especially so where the APS Values require APS employees to be impartial and apolitical at all times.

Determining what behaviour contravenes the APS Values (and thereby the Code) will vary according to the nature of the content being considered. For example, while the content in Starr was highly offensive, the FWC took into account the connection with Mr Starr's work and whether it impacted on his ability to uphold the APS Values. However, if an employee currently working on facilitating the public postal vote on marriage equality made comments that:

  • criticised the government of the day;
  • endorsed a comment opposing the postal vote by "liking" or sharing it;
  • or was not otherwise behaving in an apolitical manner on social media;

The employee's ability to uphold and abide by the APS Values could certainly be examined more closely. In these circumstances, the FWC may be less inclined to consider a dismissal harsh, unjust or unreasonable.

Social media, and its use by employees, poses a complex problem for agencies. The guide sheds some light on the issues but does not give agencies complete protection from claims. As always, make sure you have a good policy, follow it and enforce it and you will mitigate legal risk associated with employee use of social media.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.