As discussed, the first major reform in terms of general industrial relations law was the introduction of the WRA.^[174] That Act continued the then recent trend to emphasise workplace bargaining arrangements over industry awards, and the approach taken under the WRA has been to introduce comprehensive bargaining at APS agency level in place of service-wide agreements. It is true that comprehensive bargaining at the agency level was a significant step but, put in an historical context, the 1996 workplace relations reforms were carrying on a recent trend of change in the APS, rather than striking out in a new direction.

Agency level bargaining under the WRA has produced some variations in outcomes on pay and other conditions across the APS, although the Government maintains a significant degree of centralised control through its agreement making policy parameters and guidelines.

A significant new area of reform however was the introduction of individual bargaining to the APS in the form of AWAs. This form of agreement has provided some flexibility in terms and conditions and specific remuneration arrangements to apply in particular cases. AWAs have become standard for employees at SES level but, a decade or so later, it still remains to be seen how pervasive they will become at levels below the SES. For this latter group, AWAs are primarily used as a vehicle for performance pay and other specific benefits; otherwise there has been no real incentive for these employees to move out from cover under a certified agreement.^[175]

The other significant change under WROLA was the winding back of a formal (or guaranteed) union role in negotiating agreements on a service wide or agency basis. Nevertheless, it is clear that unions have played a significant role in the negotiation of many certified agreements. The substantial majority of those agreements were made with unions under old s 170LJ of the WRA, and, it is probably the case that unions have also played a significant role in the conclusion of many of the agreements expressed to have been made directly with employees.^[176]

The 1996 WRA regime, as applied in the APS, initially made the arrangements for determining terms and conditions of employment more complex. Certified agreements and AWAs were difficult to frame for the following reasons:

Nevertheless, it is fair to say that the 1996 WRA arrangements presented the opportunity for more simplified arrangements. As time progressed, certified agreements became more comprehensive in nature, meaning less reliance on the need to refer to awards and other instruments (and the ‘no disadvantage test’ became less significant as successive agreements were negotiated). Moreover, when AWAs were able to sit above (or call up) certified agreements, their operation also became clearer. Nevertheless, difficulties (both real but mainly in terms of presentation) remained with the continued operation of the PSA 1922. These were largely addressed with the passage of the PSA 1999.

The second major initiative affecting APS employment since 1996 has been the passage of the PSA 1999. This Act ultimately had bipartisan support and completed the work to modernise the legislation that had commenced with the McLeod Report in 1994.^[177]

As has been noted, the PSA 1999 represented a welcome rewrite and modernisation of the old legislative framework. In particular, it works better with the WRA.^[178] While the PSA 1999 is shorter and simpler, the detail has been moved to an increased number of subordinate instruments which keep in place a measure of control of employment policy and practice, especially with the continuing roles of the Public Service Commissioner and Merit Protection Commissioner.

A key design aspect of the PSA 1999 is that it embodied the relatively recent reforms in relation to the APS Values and the APS Code of Conduct. The APS Values provide an express statement of the principles of the APS which previously had to be derived from the prescriptive duties of officers formerly contained in the old Public Service Regulations.

Nevertheless, the APS did not undergo revolutionary change as a result of the PSA 1999. As a practical matter for APS employees, the passage of the PSA 1999 presented no great change to the way they were engaged and rewarded or how they went about their business.^[179] The substance of the matters dealt with by the new framework had already been substantially put in place under the framework of the PSA 1922 (albeit in a more convoluted way). As such, the new Act really represented a step closer to the end of a journey of reform, rather than the beginning of another.

There was, however, a deal of activity required to adapt management systems to take account of the new legislative framework and terminology.^[180] This seems to be confirmed by the State of the Service Report 1999/2000 tabled by the Public Service Commissioner. An entire section of that report is, not surprisingly, devoted to the experience of working with the PSA 1999 and it identified the major implementation issues for agencies as:

These issues were largely ones for organisations to deal with rather than being of practical day to day effect on employees. For example, for an employee, undergoing a promotion review process under the Public Service Regulations 1999 (Cth) is not unlike undergoing an appeals process under the provisions of the PSA 1922.

To reiterate, the above discussion is not to suggest the enactment of the PSA 1999 was not a significant and welcome step, for it was. It should however be seen for what it was: merely one of a series of steps in reform and not the entire reform agenda.

Since 1996, the third significant change to the legislative framework for APS employment has, of course, been the Work Choices legislation. It is too early to discern the practical significance of the legislation in relation to the APS but the following aspects might be noted.

The Work Choices legislation further entrenches agreement making arrangements at agency level across the APS. However, particular provisions have the potential to have significant effects on the environment in which those agreements are reached, including by further regulation of the formal role of unions in the process.

It is not so much a change to the general framework of agreement making but rather a number of changes to the rules within that framework that have potential impact, including the following changes:

Furthermore, the legislation now puts it beyond doubt that AWAs can be made a condition of engagement for new APS employees, with the potential to erode, over time, the numbers on collective agreements.

Obviously the issue of the ability of workplace agreements to modify or exclude the operation of award conditions has received some commentary and has prompted the recent introduction of the ‘fairness test’. Nevertheless, this aspect of the potential operation of workplace agreements does not appear to have been an issue in the APS employment context.

The Work Choices legislation should generally make the framing of collective agreements and AWAs easier because it will be clear that only one instrument will apply to an employee at any one time. Nevertheless, there are initial complexities because of the need for new workplace agreements to pay appropriate regard to the AFPC Standard and to avoid the inclusion of any ‘prohibited content’.

It remains to be seen how the other matters mentioned above will affect the way workplace agreements are made in the APS. The experience of the next couple of years will tell in that regard.