Part 4: Merit Protection Commissioners report
Last updated: 03 May 2012
This page is: current
Canberra ACT 2600
Dear Prime Minister
I am pleased to present the Merit Protection Commissioner’s report for the period 1 July 2010 to 30 June 2011 as part of the Australian Public Service Commissioner’s annual report required by section 51 of the Public Service Act 1999.
This report is prepared in accordance with the guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit as required by subsection 51(2) of the Public Service Act 1999. In accordance with the provisions of the Public Service Act 1999, detailing the administrative arrangements to support the performance of the Merit Protection Commissioner’s functions, some of the required information is published within the Australian Public Service Commissioner’s annual report.
In presenting you with the report on the activities of the Merit Protection Commissioner, I take this opportunity to express my thanks to the staff of the Australian Public Service Commission for their assistance in a time of substantial organisational change.
Merit Protection Commissioner
Merit Protection Commissioner’s review
Purpose and nature of role
The Merit Protection Commissioner is an independent statutory office holder who contributes to maintaining high standards of public administration through:
- ensuring that the Australian Public Service (APS) Values are applied effectively
- improving the quality, efficiency and effectiveness of agency employment-related decisions and the management of merit-based employment
- supporting agencies to maintain fair review procedures
- promoting the highest ethical standards.
In particular, the Merit Protection Commissioner is responsible for:
- overseeing the APS review of employment actions scheme by providing independent review as well as guidance and feedback to agencies on review arrangements and employment-related decision-making
- working with APS agencies to deliver effective, merit-based selection processes including establishing Independent Selection Advisory Committees1 (ISACs) to assist in agency recruitment programs
- supporting public sector agencies more broadly, and other organisations, with employment-related services on a fee-for-service basis
- inquiring into whistleblowing reports
- conducting inquiries at the request of the minister responsible for the public service.
The office of the Merit Protection Commissioner is co-located within the Australian Public Service Commission. The staff who support the Merit Protection Commissioner in the performance of her functions are employed in the Australian Public Service Commission (the Commission) and are made available by the Public Service Commissioner (the Commissioner).
The respective responsibilities of the Merit Protection Commissioner and the Commissioner are established in the Public Service Act 1999. The two roles are complementary, particularly in relation to protecting the integrity of the public service and maintaining confidence in public administration.
The Commissioner is responsible for promoting the APS Values and Code of Conduct and evaluating the extent to which agencies incorporate and uphold the APS Values and comply with the Code. The Merit Protection Commissioner, by reviewing individual actions or decisions for consistency with the APS Values and other requirements, and through reviews of determinations of breaches of the Code and/or sanctions imposed on individuals, helps to ensure consistent standards of decision-making and people management practices across the APS.
In practice the two Commissioners work closely together on systemic matters relating to the APS.
Focus this year
The year 2010-11 was again a busy year. The structural changes within the Commission affecting the review function outlined in my last report have presented challenges in implementation. Supporting the new team and monitoring performance has occupied a considerable proportion of my time. I have also concentrated on bringing internal instructions and guidance up to date, in particular as they relate to promotion reviews and fee-for-service activities.
I have continued to support the Commissioner with his statutory responsibility of promotion of the APS Values, including through speaking engagements and chairing the new Ethics Advisory Group and meetings of the Ethics Contact Officer network. As a member of the Commission’s Executive, I have contributed to the corporate governance of the Commission (see also the Public Service Commissioner’s annual report).
As anticipated the major influence on the delivery of my functions was the restructure within the Commission that came into operation on 1 July 2010. As part of a new business model for the Commission, the Commissioner decided that in 2010-11 the Merit Protection Commissioner’s review function and fee-for-service activities would be delivered out of the Commission’s Sydney office. I, and my Principal Adviser, together with policy support, remained based in the Canberra office.
The relocation of the functions to Sydney necessitated recruitment, induction and training of new staff. Recruitment for the Sydney office was finalised in July and the new employees started work the following month.
The specialised nature of the review work required the development and delivery of a comprehensive induction program for new staff; tailored training in conducting Code of Conduct investigations and related matters; and, as part of the Commission’s performance management process, an individual training plan for each staff member. Additional support has been provided by the managers and my delegates in developing the case management capability of the review staff. I have also put in place arrangements for regular meetings with managers, and with the Sydney office, to ensure that the communication flow is effective for the review and fee-for-service functions. Even with this support, the nature of the work and the complexity of the issues mean that the transition is not yet complete.
This is partly due to the devolved employment framework of the APS with agencies adopting differing policies and practices that are tailored to their operating environments, coupled with the complexities applying generally to employment and administrative law and the nature of review. The quality of decisions and recordkeeping practices in agencies also influence the workload of the review staff. Poorly articulated reasons, inadequate explanations of decisions and records that are incomplete or not well ordered are likely to lead to a greater review caseload.
Applications for review are running at higher levels than in recent years, which, coupled with the time necessary to establish a new office and train staff, has resulted in considerable time delays in addressing casework. However, the caseload had started to build before the relocation took place, with 59 cases on hand at the end of 2009-10.
In early 2011, following discussion with the Commissioner, an additional review adviser was recruited and another delegate was allocated on a part-time basis. Despite these measures, it is clear that challenges remain in managing the review caseload.
As a result, I have commissioned a review of the function. Terms of reference were developed and the review started early in 2011-12. It will examine the efficiency of the review function in the context of the policy intent of the scheme, good practice in review of administrative decisions and good practice in client service. It is also timely, given the move of the review function to Sydney and the experiences of the relatively new staff, to reconsider the ‘what and how’ of that aspect of my role. I am confident that an independent consultant working with clients and staff will identify other efficiencies or changes to procedures to make the service more effective.
Review and fee-for-service initiatives
Since my appointment in 2008, I have focused on streamlining the process and procedures for conducting review of action and fee-for-service activities. The Public Service Regulations 1999 require me to issue instructions about the procedures to be followed in the conduct of reviews and Independent Selection Advisory Committees (ISACs).
In December 2010, I issued new instructions for Promotion Review Committees (PRCs) and ISACs. These instructions were supported by the development of revised guidelines and templates to assist committee convenors and the administrative staff that support the committees. Guidance relating to PRCs was finalised in March 2011. To recognise the increased administration involved in larger promotion review exercises, I introduced a revised target of 12 weeks to finalise a promotion review where the process involves more than 10 parties. The target for promotion reviews with 10 or fewer parties remains eight weeks. Guidance relating to ISACs has been completed and is being prepared for publication on my webpage on the Commission website at www.apsc.gov.au.
Over the last three years I have been working to streamline the administration of promotion reviews to improve timeliness and efficiency and to ensure procedural fairness is afforded to all parties to the review. One area identified as needing attention was the method of distributing statements made by parties to the review. I proposed changing the existing practice so that information obtained for consideration by the PRC from a party to the review would be disclosed to all relevant parties to the review rather than just those in a direct relationship. Particularly in large recruitment exercises where there are multiple parties and a combination of both active and protective review applications, determining ‘direct’ relationships can be difficult, and a number of anomalies in accessing information have been identified. Following the preparation of a privacy impact assessment, which concluded that the change was unlikely to breach the Privacy Act 1988, I sought the views of the Community and Public Sector Union. At the end of the financial year I was considering the union’s response.
In 2010-11, I continued to place a high priority on ensuring that the services I offer agencies on a fee-for service basis, such as ISACs, are of a high quality. My staff have worked to improve the outcomes and modernise the administration of the ISACs and to promote their use with agencies.
I have also continued to make case summaries of the reviews conducted by my office available on my webpage. These are aimed at assisting agencies to understand the nature of the review undertaken by my office and to highlight approaches to common problems. In particular, agencies will be able to take decisions by my office into account when confronted with similar employment issues.
Last year I noted that amendments to Regulations concerning timeframes for lodging reviews were to come into effect on 2 August 2010. The timeframe to lodge an application for review of an employment decision occurring on or after 2 August 2010 has been reduced from 12 months to 120 days, or 60 days, depending on the nature of the review sought. This reduction in timeframes is consistent with the policy objective of dealing with employees’ concerns quickly to help encourage productive and harmonious workplaces. The amendment to the Regulations has resulted in a transitional period where two timeframes for lodging applications operate. Actions occurring before 2 August 2010 are still subject to the 12-month timeframe and applications under these timeframes continue to be received. It is too early to evaluate the impact of the Regulation change.
Ongoing role in feeding trend analysis back to agencies
Last year I foreshadowed the release of a better practice guide to assist agencies with the management of individual employee complaints and disputes between employees. The guide Not just about process: the review of actions scheme: A human resources practitioner’s guide to responding to and managing employee complaints and disputes is available on my webpage, and a printed version is being prepared for publication early in the new financial year. Feedback to date indicates that the guide is a useful tool for all agencies, but in particular, smaller agencies with more limited experience with reviews because of their infrequency.
As indicated above, an important part of my role is ensuring that feedback is provided to agencies on reasons for decisions to assist them with better decision-making. During 2010-11, I and my delegates have continued to meet agencies to discuss issues arising from reviews and the wider organisational context where appropriate. Everyone benefits from a high standard of decision-making and review within agencies. If an issue is dealt with in a timely way and the reasons for the decision are communicated effectively, it is more likely that the issue will be resolved, the decision accepted and the harmony, and productivity, of the workplace improved. A poor approach within agencies often leads to an escalation of the case, the issues becoming more complicated and a greater likelihood of the matter being referred to me for review.
Legislative reform and ethics
In 2010-11 the Commission developed amendments to the Public Service Act 1999 (PS Act) to implement recommendations in the Ahead of the game: Blueprint for the reform of Australian Government administration (the Blueprint). These reforms aim to support the APS workforce and leadership, and embed new practices and behaviour in the culture of the APS.
The Blueprint also proposed that the Commission consult broadly on a revised set of APS Values, including with employees and stakeholders from the government, the community, the private sector and relevant unions. Given my role, I have been involved in the legislative reform process, including consultation and the drafting of legislative change relating to my review function.
I have also continued my involvement with the Commission’s Ethics Advisory Service (EAS) Implementation Advisory Group (IAG). Once the IAG had performed its initial function of overseeing the establishment and effective operation of the EAS, its focus moved to wider ethics and integrity questions. In recognition of this change the IAG has been renamed the Ethics Advisory Group (EAG). I chaired the first meeting of the EAG in June 2011 which agreed revised terms of reference.
I also chaired the three meetings of the Ethics Contact Officer network (ECOnet), which promoted debate on issues such as code of conduct investigations and the impact of social media in the workplace. Keynote speakers have included Mr Andrew Kefford, the ACT Commissioner for Public Administration, and from the Australian National University, Professor John Wanna; Sir John Bunting, Chair of Public Administration; and Professor John Uhr, Director, Policy and Governance Program. Activities such as the ECOnet promote the role of the Merit Protection Commissioner and also enable me to support the Commissioner in promoting the APS Values.
I use the insight I gain from performing my statutory role, and as a member of the Commission’s Executive, to assist APS agencies and their employees to understand their respective responsibilities within the APS employment framework. This year I have worked closely with the Department of Immigration and Citizenship on its Next Step Program, focusing on talent management, and with the Department of Defence on approaches to complaints management. I have also welcomed the opportunity to address a wide cross-section of APS agencies on topics covering my role, leadership and ethics, and organisational change and leadership. In addition, I have regularly run sessions on the APS Values and Code of Conduct and performance and conformance at SES orientation programs delivered through the Commission. This is one way in which I discuss ethical obligations with new APS leaders and outline the expectations of leadership in the APS.
I have also had the opportunity to share my experiences with the wider public sector through my participation in the Australian Government Leadership Network. The network aims to facilitate the effectiveness of senior leaders in the APS by providing leadership development and a forum for the exchange of innovative thinking and experiences. I have participated in other networks including EXPAND (an APS-wide Network of Executive Assistants and Personal Assistants) and the Indigenous Australian Public Service Employee Network to promote ethical issues and understanding on such topics as ‘What is and isn’t bullying and harassment’. I finalised an article on merit in recruitment and decision-making that has been accepted for publication in the Australian Journal of Public Administration in 2011-12.
Engagement with the wider community
I regularly meet colleagues in complementary roles to discuss policy areas where we have common interests and to share and learn about different approaches to common problems. This year I met with employees of the Fair Work Ombudsman, the Australian Commission for Law Enforcement Integrity, and the Office of the Australian Information Commissioner. I also maintain contact with my state and territory counterparts. While I was unable to attend this year, I was represented at the National Public Sector Appeals Conference in September 2010. This forum provides an opportunity for an exchange of views and experiences by senior public sector representatives engaged in the external review of employment-related decisions.
During the year I received a number of requests from Parliament, APS agencies and other institutions for my input or services. In this context I made a submission to the Senate Standing Committee on Environment and Communications in relation to its inquiry into the National Broadcasting Legislation Amendment Bill 2010. I played a leading role in the development of the Commission’s submission to the Senate Finance and Public Administration’s inquiry into reform of Australian Government administration. In February 2011, I appeared with the Commissioner before the Parliamentary Joint Committee on the Australian Commission for Law Enforcement Integrity in relation to its inquiry into the operation of the Law Enforcement Integrity Commissioner Act 2006. I have also provided advice to the Department of the Prime Minister and Cabinet for it to consider in the context of the development of public interest disclosure legislation.
My office has provided significant assistance to AusAID in the development of the Australian Civilian Corps Act 2011 and its subordinate legislation. I have agreed to be one of the possible reviewers of determinations of breaches of the Australian Civilian Corps code of conduct by employees. My staff are currently working with AusAID on developing a memorandum of understanding governing the provision of review services. The service will be provided on a voluntary, fee-for-service basis.
I have also participated in Senior Executive Service selection panels as an independent member. This year I have been involved in staff selections in agencies such as the Australian Customs and Border Protection Service, the Australian Sports Commission, the Department of Human Services and within the Commission.
During 2010-11 I have assisted the Commissioner in supporting international reform. In September 2010 I represented the Commissioner at the Pacific Public Service Commissioners’ Conference in Vanuatu. I gave the keynote address on the Australian perspective of strategic leadership for successful organisational reform and led a working session on strategic integration.
I have supported the work of the Papua New Guinea public service. In July 2010, I attended a conference in Papua New Guinea on values and transparency in agency head recruitment and facilitated a workshop. I have continued to work with officials on the Papua New Guinean Values.
I have met on behalf of the Commission delegations from a wide range of countries, including Vietnam, Bangladesh and Japan, and from the World Trade Organization. I continue to share information, learning and ideas with my counterparts in the Canadian and New Zealand public service. The opportunities to share information and experiences are valuable both for the APS and our international colleagues.
Results have been mixed for the review and fee-for-service functions in 2010-11. The deterioration in the performance of the promotion review function reported last year was reversed; however, the review of action function has not met its target.
There was an increase both in the number of promotion review cases (92 compared to 59 in 2009-10) and the number of promotion reviews completed (70 compared to 34 in 2009-10). At the same time, the number of applications received for review of a promotion decision increased by 253 to 423-the highest level since 2007-08. Timeliness has also improved significantly with 86% of all promotion reviews concluded within target dates (compared to 47% in 2009-10), and a further 11% completed one week outside of the target date. Only two cases were on hand at 30 June 2011 and both were within time.
One possible reason for the rise in promotion review applications may be a perception by employees that promotion opportunities are less readily available in an environment of fiscal restraint. There is no evidence to suspect deterioration in the quality of agency selection processes, as only 12 promotion decisions were varied in 2010-11. This represents 2.5% of all promotions and is consistent with the variation range of 2-5% over the last few years.
Last year I reported that the outcomes on timeliness in reviewing applications for review of employment decisions were likely to suffer in 2010-11. As anticipated, the large residual caseload and the effects of structural change, combined with an increase in the number and apparent complexity of applications, have seen the number of reviews of actions completed within 14 weeks fall below the target of 70%.
In 2010-11, 39.6% of the 53 completed reviews were finalised within 14 weeks, compared to 82% of the 76 completed reviews in 2009-10. The average time taken to complete reviews is just under 23 weeks. The lower number of review cases finalised together with the increase in the number of applications has resulted in 135 cases carried over into 2011-12. Fifteen of these cases are more than 12 months old.
This year there was a 16% increase in the number of review applications received, with the greatest increase seen in applications from employees seeking primary review of determinations of breaches of the Code of Conduct and/or sanctions imposed. Of all review applications received (excluding promotion reviews), 30% were not accepted. Many of these requests were for primary review of agency decisions (other than Code of Conduct matters) and were referred to the relevant agency for review, consistent with the intent of the scheme.
During the year, 31 reviews lapsed or were withdrawn. Such cases can still involve considerable work, depending on the complexity of the case and the timing of the withdrawal.
In almost 25% of cases, it was recommended that the agency’s original decision be varied or set aside. As in previous years the majority of these recommendations (77%) were made in reviews of determinations of the Code of Conduct and/or the imposition of a sanction. Three recommendations were not accepted by agencies in 2010-11. Further consultation with the agency in one case resulted in changes to agency policies, which I accepted. I am pursuing the matters involved in the other two cases with the relevant agency.
In 2010-11, I handled 10 whistleblowing reports. Assessments of whistleblowing reports and inquiries this financial year have taken longer than in previous years. This is largely because this function was also relocated to Sydney in July last year. The situation is similar to that of the review work, in that there is a steep learning curve for this work, but also only a small number of cases from which to learn.
I have continued to promote my fee-for-service functions, in particular the use of ISACs. Eleven agencies used ISACs, with nearly 60% of ISACs convened in two agencies-the Department of Defence and the Australian Taxation Office. While the number of requests for ISACs is similar to that of 2009-10, the number completed has increased by 23%. The size of ISACs, as measured by the average number of candidates, also appears to have increased significantly. This increase was influenced by the large recruitment exercises in the Australian Taxation Office which averaged over 1,500 candidates per ISAC. ISACs provide a cost-effective way of handling large numbers of candidates quickly and fairly and without the need for promotion review.
In 2011-12 my focus will be primarily on the review of action function. While the reasons for the increase in cases on hand and the reduction in timeliness are valid, this situation is not one that can be continued. Unresolved reviews have implications for individual review applicants, their colleagues and employers. While matters remain unresolved, there are impacts on employee engagement and productivity, and a continuation of any poor decision-making. I will be examining ways to improve timeliness.
At the end of August 2011, I will receive a report from the consultant engaged to undertake a review of the review of action function. Following consideration of the report’s recommendations, measures will be taken to assist the review team to conduct quality reviews in a timely way. The terms of reference require the consultant to examine existing business processes and decision support tools with a view to identifying efficiencies, as well as examining the legislative framework to assess the scope for improvement.
I will encourage the review team to identify any changes that will increase their efficiency without compromising quality. However, in the short term, I do not envisage a significant improvement in the timeliness of review casework. While I anticipate an improvement in outcomes in 2011-12, I expect that it will take longer to meet targets. The rate of the improvement will also be influenced by the level and complexity of applications for review received in the coming months.
If the number of applications for review of actions continues to grow, serious examination of the resourcing of the function will be necessary. This will be difficult given the tight financial climate. As well as considering the possibility of additional staff, other options will need to be explored. These may include more strictly enforcing minimum standards for agency decision-making; raising awareness of the review provisions and what is reviewable; and encouraging agencies to implement the lessons learnt more quickly.
I am conscious that the Merit Protection Commissioner is the final authority for administrative review-beyond this the only avenue available to employees is the court system. Review by the Merit Protection Commissioner assists both agencies and employees to understand the reasons and context for decisions and the perspectives of all parties to a matter. Improving timeliness at the expense of quality is not an option. Whatever initiatives are introduced to improve performance, I will not accept any lessening of the material quality of the review undertaken by my office. I will also be monitoring whether the changes to the timeframes for lodging reviews has any impact on the number of review applications received.
Amendments to the Regulations governing review are being considered as part of the reform of the PS Act arising from the implementation of the Blueprint’s recommendations. While the proposed amendments will be valuable in clarifying my statutory functions, the work to date has not focused on whether Part 5 of the Regulations is the best articulation of the APS Value of a fair system of review.
The consultant’s recommendations will influence the extent to which there is further review of my functions, but I anticipate that more work will be required on the legislative basis for review. This work will also extend to an examination of the legislative provisions underpinning promotion review and the establishment of ISACs. There is an opportunity to modernise and update the legislation while reinforcing the transparency and trust generated by the processes.
From my discussions with agencies I am aware that some aspects of the Regulations are hindering the effectiveness of ISACs as well as promotion and general reviews. In 2011-12, I will undertake an internal examination of the Regulations with the intention of identifying areas that need to be amended to reflect the current and possible future APS employment needs, such as bulk selection rounds, multiple employment opportunities and e-recruitment. Any substantial changes to the Regulations will be preceded by consultation with agencies and with the unions.
While the extent of my fee-for-service activity is largely generated by agency recruitment activity, I will continue to promote the benefits of ISACs to agencies. I believe that the benefits of ISACs will be further enhanced following the proposed legislative review. Subject to resource constraints, I will consider requests from non-APS organisations for review and recruitment services such as the Australian Civilian Corps and the Australian Federal Police for review and recruitment services.
At the same time as focusing on the review area, I will ensure that my other statutory functions are pursued and that I continue to support the Commissioner with his statutory responsibilities.
I will continue to meet agencies to discuss trends and issues identified through the review work and to manage the increased number of review cases on hand. I will also be seeking feedback from agencies about the impact of the better practice guide on handling review applications. Other work planned for the year ahead will be the development of a guide to assist agencies to choose an external investigator to undertake Code of Conduct investigations. This will complement the role we already play in strengthening the skills of investigators through the accreditation of courses run by external providers. It is likely that the guide will be published jointly with the Commissioner. I will also post further case studies and revise material on my webpage to make it more user-friendly.
My most pressing external focus will be working closely with the Commissioner in implementing the proposed new APS Values. This will be a significant body of work and will directly relate to my statutory role. I will continue my involvement with the Ethics Advisory Group and the ECOnet, which will be one of the main ways information on the new Values will be dispersed. I will also use the opportunities to speak at conferences and to agency forums to ensure that the ethical and accountability issues are considered and understood.
Role, function and structure
The office of the Merit Protection Commissioner, established under section 49 of the Public Service Act 1999 (PS Act), is an independent office located within the Australian Public Service Commission.
The Merit Protection Commissioner’s functions are set out in section 50 of the PS Act and Parts 2, 4, 5 and 7 of the Public Service Regulations 1999 (the Regulations). They include:
- reviews of employment actions and promotion decisions
- inquiries into whistleblower reports made to the Merit Protection Commissioner by APS employees alleging breaches of the APS Code of Conduct
- employment services for APS agencies, in particular ISACs
- other reviews, in particular reviews of the entitlements on separation of former APS employees and reviews of the employment-related actions of statutory office holders
- employment services to non-APS organisations on request, including agencies in other jurisdictions
- other inquiry functions, including inquiries into alleged breaches of the APS Code of Conduct by the Public Service Commissioner and inquiries into APS actions at the request of the Public Service Minister.
The Merit Protection Commissioner charges a fee for establishing ISACs and for providing employment services.
In accordance with section 49 of the PS Act, the Commissioner makes available staff to assist the Merit Protection Commissioner in the performance of her functions.
The Ethics Group in Canberra provides coordination and policy support for the Merit Protection Commissioner. In July 2010, the Merit Protection Commissioner’s review and fee-for-service activities were moved to the Commission’s Sydney office.
The principal adviser in the Ethics Group is the full-time delegate of the Merit Protection Commissioner for review decision-making.
This report and further information about the Merit Protection Commissioner’s role and services are available on the Commission’s website.
Management and accountability
The Commissioner, as the head of the Australian Public Service Commission, is responsible for its corporate governance. The Merit Protection Commissioner is a member of the Commission’s Executive-a senior management group chaired by the Commissioner.
The Merit Protection Commissioner has taken on a wider governance role within the Commission. The Merit Protection Commissioner assists in the Commission’s governance arrangements by chairing the Audit Committee and the Information Technology Advisory Committee, and by providing management oversight to the Ethics and Corporate Groups as appropriate. The Merit Protection Commissioner has no direct management role in respect of these groups. To assist with her role on the Audit Committee, the Merit Protection Commissioner undertook training with the Australian Institute of Company Directors on Audit Committees.
In 2010-11, the Merit Protection Commissioner continued as the Commission’s representative on the Government 2.0 Steering Group.
Review of performance
Contribution to outcomes 2010-11
The Commission is included in the Department of the Prime Minister and Cabinet’s Portfolio Budget Statements. The Commissioner, as head of the Commission, is responsible for the Commission’s financial and human resources and for assessing the level of the Commission’s achievement against its output structure.
The performance indicators and targets relevant to the Merit Protection Commissioner’s functions are provided under ‘Program 1.1-APS people and organisational performance’ in Part 2 of the Public Service Commissioner’s annual report.
The information on activity and performance provided below in Tables M1 to M9 refers to the Merit Protection Commissioner’s statutory functions.
Review of employment actions
Section 33 of the PS Act and Part 5 of the Regulations provide a scheme for the review of employment actions affecting individual APS employees. The Merit Protection Commissioner can review a broad range of employment matters affecting the individual employee in the workplace. Certain employment decisions, most notably review of termination of employment, are excluded from the review framework by the legislation. The Merit Protection Commissioner is also able to review complaints by former APS employees about the final entitlements they received upon separation from the APS.
The three main categories of reviews conducted by the Merit Protection Commissioner are:
- reviews of breaches of the APS Code of Conduct
- reviews of other employment actions
- reviews of promotion decisions.
Table M1 provides information on the number of applications for review (other than promotion review) received and reviews completed in 2010-11 compared with 2009-10. Table M2 provides information on the timeliness with which these functions were performed in comparison with 2009-10.
The tables refer to ‘primary’ and ‘secondary’ reviews. Primary reviews are reviews conducted by the Merit Protection Commissioner without first being reviewed by the agency head. The majority of primary reviews involve reviews of decisions that an APS employee has breached the Code of Conduct, and/or sanctions imposed as a result of a breach of the Code. There are also provisions in the Regulations for review of employment matters where it would be inappropriate for the review to be conducted within the agency.
Secondary reviews are conducted by the Merit Protection Commissioner in circumstances where:
- the employee is dissatisfied with the review conducted by the agency head
- the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.
In 2010-11, the Merit Protection Commissioner received 229 applications for review and carried over 59 cases from the previous year. This represents a 16% increase in applications over the 198 received in 2009-10.
A total of 153 cases were finalised in 2010-11, of which 53 were reviewed (that is, they were not ruled ineligible or withdrawn before the review was finalised).
In 2010-11, 30% of applications received were assessed as non-reviewable compared to 44% in 2009-10. In 2009-10 the rate of non-reviewable applications was inexplicably high, but has returned to more normal levels in 2010-11.
|Cases||Primary reviews-Code of Conduct||Primary reviews-other||Secondary reviews||Complaints by former employees||Total|
|Note: The data in Table M1 on page 92 of the 2009-10 annual report contained some errors as a result of system reporting problems. The figures marked * have been corrected in this table. The corrections affect cases on hand at the start of 2009-10 and applications received during 2009-10.|
|On hand at start of year||19||2||38||0||*44||*59|
|Received during the period||65||41||122||1||*198||229|
|Lapsed or withdrawn||10||4||16||0||20||31|
|Total finalised during period||40||41||69||1||183||153|
|On hand at end of year||44||2||91||0||*59||135|
My office is carrying over 135 cases to the next financial year, which is more than twice as many as in 2009-10, which was in its turn a 44% increase over 2008-09 levels. Of these 135 cases, 94 (70%) are outside the target date on carryover. This high rate of cases that have already reached their target date will impact on performance figures for 2011-12.
Table M2 compares timeliness figures for 2010-11 with those for 2009-10. The target timeframe for completion of reviews in all these categories is 14 weeks from receipt of application. There has been a significant fall in percentage of cases completed within target times in 2010-11 (39.6%) compared to 2009-10 (82%). The average time for Code of Conduct and secondary reviews rose correspondingly in 2010-11, with an overall average time taken to finalise a case being just over 23 weeks.
The enhanced case management and streamlining of processes and procedures introduced over the last three years has meant that the decrease in 2010-11 in the time taken to complete reviews as a result of resource issues has been minimised. My office aims for timely review without any loss in quality-resolution of cases is beneficial to both the employee and employer as it improves the prospect of successfully reintegrating the employee into the workplace and minimises the ongoing impact on the individual, colleagues and the organisation.
|Review type||Average time to complete reviews (weeks)||Completed within target time frames (%)||Average time to complete reviews (weeks)||Completed within target time frames (%)|
|Primary reviews-Code of Conduct||12.30||75||20.79||46.15|
Table M3 provides a breakdown of the number of reviews by agency. As has been the case for the last few years, the agencies with the highest number of applications for review were the large employers, namely the Australian Taxation Office, Centrelink and the Department of Defence. These three agencies continue to account for just over 80% of completed reviews (61% in 2009-10).
1. ISACs are independent committees that make recommendations to agencies about the suitability of candidates in staff recruitment exercises