Circular 1999/9: Principles for review of employment decision

Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

This circular has been prepared in support of Advice No. 1999/8 Policy Parameters for Agreement Making in the APS (May 1999), issued by the Department of Employment, Workplace Relations and Small Business on 17 May 1999.

2. This circular seeks to:

clarify the relationship between the grievance framework under the Public Service Act 1922 (the PS Act) and the broader industrial dispute settling procedures;
clarify the relationship between dispute settling procedures under certified agreements and the grievance provisions of the Public Service Regulations;
provide guidance on the circumstances in which the different processes might be used; and
identify the principles that might be adopted by agencies in developing internal mechanisms for resolving individual grievances in the workplace.

3. The principles listed below have been developed to assist agencies in dealing with internal complaints and also to provide guidance on the circumstances in which the different processes might be used.

Workplace Relations Act - Dispute settling procedures and the grievance framework

4. Section 170LT(8) of the Workplace Relations Act 1996 (the WR Act) requires that certified agreements made under the WR Act include procedures for preventing and settling disputes in relation to matters arising under the agreement. These procedures are separate from, and don't replace, the review procedures available under the Public Service Regulations.

5. Subject to the specific provisions of a certified agreement, a party to the agreement may seek to refer a matter arising under the agreement to the Australian Industrial Relations Commission. This would normally occur where:

the matter relates to an industrial issue affecting a class of employees;
the issue concerns a dispute regarding the level or nature of a condition of service but is not concerned with its application; or
the matter is otherwise excluded from review by the MPRA.

Certified Agreements and the APS Grievance Framework

6. The provisions of a certified agreement cannot override the provisions of the Public Service Act or Public Service Regulations except to the extent prescribed by the Regulations made under the WR Act. The grievance framework contained within the Public Service Regulations is not so prescribed.

Public Service Regulations

7. The Public Service Regulations establish a two tier framework for the formal consideration of complaints relating to decisions or actions which affect the employment of APS employees. The first tier, which requires complaints to be considered by the employing authority under Regulation 83, recognises the central proposition that disputes should be resolved in the workplace wherever possible. External review by the Merit Protection and Review Agency (MPRA) under Regulation 84 cannot be undertaken without a prior internal review.

8. As a general rule, employees are entitled to have a matter considered under Regulations 83 where the action or decision complained of: relates to an individual employee in the course of their APS employment, rather than a class of employees; and relates to the application of a condition of service over which there has been exercise of a management discretion (or failure to exercise an available management discretion) under the employment framework which exists within the employing agency.

9. Where an employee is dissatisfied with the outcome of a review under Regulation 83 they may apply to their employer to have the matter referred to the MPRA for an external review under Regulation 84.

Interaction of the different approaches to review

10. In relation to grievances which may be dealt with under Regulations 83 and 84, agencies need to take care in framing the provisions of their certified agreements that a third tier of formal review is not created. Also, agencies should avoid creating confusion about the dispute resolution procedures of the agreement and the grievance resolution arrangements available under the regulations. It is suggested that certified agreements indicate that where a matter is raised in a way which complies with the requirements of Regulation 83 it will be dealt with under that regulation. This would mean that where an employee makes a written request for review of an action by describing the action and setting out why he or she is aggrieved by it, the matter will be investigated by the agency and the employee will be advised of the results of the investigation.

11. Where an agency deals with a matter using procedures which are separate from those prescribed under Regulation 83, and the Secretary, or the Secretary's delegate, is of the view that any further internal review of that matter under Regulation 83 would be unlikely to assist in the resolution of the complaint, the Secretary (or delegate) may, subject to the complaint and the outcome of the investigation being recorded in writing, choose to adopt the earlier review and its outcome as an investigation for the purposes of sub-regulation 83(3)(b).

Principles

12. Thus while an agency should avoid creating a third tier of review under its agreement, it should not feel precluded from including the principles or procedures to be observed in dealing with grievances in its agreement such a statement of principles would operate as a guide for dealing with both informal (that is, matters raised orally or not in compliance with Regulation 83) and formal grievances.

13. The following principles could be used by agencies in devising procedures for resolving grievances:

the aim of the complaint handling process is to produce outcomes which are fair, equitable, accord with sound personnel management practices and which have regard to the efficiency of the organisation and the maintenance of good employer/employee relations;
the case will be dealt with as quickly as practicable in the belief that early resolution of any complaint is in the best interests of all parties;
a variety of methodologies may be adopted in resolving grievances. These methodologies include counselling, conciliation, mediation and investigation;
the process to be followed to resolve any grievance will be made known to the employee concerned and should be transparent so far as issues of privacy allow;
where possible, disputes will be dealt with within the workplace and resolved between the employee concerned and the direct supervisor or line management;
the onus is on the complainant to establish their case, to outline the issues they see as relevant and to specify the outcome(s) that he or she is seeking;
procedural fairness will apply to all parties involved in any investigation;
- there is a right to fair and impartial consideration by an unbiased person; and
- the parties have the right to know of, and comment on, any information which is damaging to their case or interests;
in establishing contested facts, the standard of proof to apply will be the balance of probabilities;
a full investigation of alleged incidents, statements and events will only be conducted if preliminary consideration shows this would be helpful in resolving the complaint; and
as far as possible, requests by parties for information to be treated confidentially will be respected, subject to the requirements of procedural fairness, the disclosure of information on relevant files under the agency's policy on freedom of information, and the need for transparency in the resolution process.

Terminology and consultation

14. A review of agreements developed by agencies within the APS has confirmed that some existing agreements use a variety of different terms to refer to the body that undertakes external review under Regulation 84. Agencies should take care in referring to reviews conducted under Regulation 84 and note that they are carried out by the MPRA rather than any other body or person.

15. Where an agency wishes to create a new right of review to be exercised by an independent body, or to specify a role for an independent body, within their agreements, it is important that they discuss this matter with the MPRA at an early stage. The initial point of contact for such discussions is 02 6202 3859. It should be noted that under its legislation MPRA is able to undertake a variety of employment related functions on behalf of agencies in addition to the statutory appeal and review functions. While the functions of the MPRA are largely performed by staff of the PSMPC, any references in agreements to the review of employment decisions should refer to the MPRA.

16. Any other enquires regarding this circular should be directed to the PSMPC's Helpline at (02) 6202 3859.

Jeff Lamond
Team Leader
Staffing, Structures and Performance Team

28 July 1999

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