Public Service Act 1999 Advice No. 14: Promotion Review Committees

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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.

Introduction

1. This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). The new legislation came into operation on 5 December 1999.

2. The purpose of this advice is to provide information in relation to applications for reviews of promotion decisions under the new PS Act and Division 5.2 of the Public Service Regulations made under it.

3. This advice is complemented by Advice Number 13 which deals with applications for review of actions generally, and Advice Number 15 which deals with Independent Selection Advisory Committees (ISACs).

Background

4. Under the Public Service Act 1922 (the old PS Act) APS officers had a right to lodge appeals against promotions made under the Act provided that:

they had been an applicant for the relevant promotion;
the decision to make the promotion was not based on the unanimous recommendation of a Joint Selection Committee (or, in cases where the Committee was convened under section 50DA of the old PS Act, a majority recommendation of the Committee); and
the position to which the promotion was made was not at an Executive Level 1, or higher, classification.

5. These appeals were considered and determined by a Promotion Appeal Committee (PAC) established under the Merit Protection (Australian Government Employees) Act 1984. PACs were empowered to:

form an opinion as to who was the most efficient officer of the parties to the appeal; and
allow or disallow the appeal so as to give effect to that opinion; or
form a view that none of the parties to the appeal were suitable for the position in question and cancel the promotion.

Operation of the new legislation

6. Under the new legislation employees will be able to lodge an application for review of a promotion decision with the Merit Protection Commissioner who will arrange for the review to be conducted by a Promotion Review Committee (PRC).

Applicants for review

7. Valid applications for review of promotion decisions can only be lodged:

by an ongoing APS employee who applied for promotion to the relevant employment; and
where the promotion decision is to promote an APS employee to the relevant employment (ie it cannot relate to a decision concerning the engagement or assignment of duties of an employee); and
where the relevant employment is at a classification mentioned in any of Groups 1 to 6 set out in Schedule 1 to the Classification Rules; and
where the promotion decision is not made in accordance with the recommendation of an ISAC.

Lodgement of the application

8. The Merit Protection Commissioner will specify the time and place for lodgement of applications for review of promotion decisions. These details will be published in the Gazette.

9. There is no prescribed form for lodgement of the applications for review other than that it must be in writing and made to the Merit Protection Commissioner. An indicative pro forma for applications for review is available on the Public Service and Merit Protection Commission's website.

Grounds for an application

10. An application for review may only be made on the grounds of merit.

Effect of application for review

11. Applications for a review of a promotion decision will operate to stay the promotion decision until the relevant Agency Head is notified of the PRC's decision. Composition of Promotion Review Committee

12. The Merit Protection Commissioner will establish a Promotion Review Committee to consider applications for review of promotion decisions. Such committees will include

a Convenor nominated by the Merit Protection Commissioner;
an APS employee nominated by the relevant Agency Head; and
an APS employee nominated by the Merit Protection Commissioner (the third member). The Merit Protection Commissioner is required to be satisfied that this employee has the appropriate personal qualities and skills to undertake his or her role independently and impartially.

13. Where an employee is nominated by the Merit Protection Commissioner as the third member of a PRC then, subject to the operational efficiency of their employing Agency, they must be released to perform that role.

Determination of the application for review

14. A PRC is required to assess the relative merits of the parties to the review having regard to the test of merit established in section 10(2) of the new PS Act.

15. Once the Committee has made its decision about the relative merits of the parties to the review, it must advise the Agency Head of that decision. The decision is binding on the Agency Head and the Agency Head is obliged to notify the decision in the Gazette as a promotion decision.

Date of effect of PRC Decision

16. The promotion will take effect in accordance with the review decision either 4 weeks after the Agency Head is notified of the decision of the PRC; or at another date if that is agreed between the employee who is to be promoted, the Agency Head and, if the employee is moving from another Agency, the other Agency Head.

Independence of the PRC

17. A person is not subject to direction in carrying out his or her duties as a member of a PRC, except by a Court or in accordance with instructions on procedures issued by the Merit Protection Commissioner.

Co-operation of agencies

18. The effectiveness of the new procedures for the review of promotion decisions will depend in large part on the co-operation and support of Agencies. The Merit Protection Commissioner will be seeking Agency commitment to encourage interested APS employees to make themselves available to participate as third members of PRCs, including allowing such employees the time for necessary training.

Further advice

19. Further advice in relation to review of actions generally is contained within Advice Number 13, Review of Actions.

20. PSMPC contact is ph: 02 6202 3859.

Boris Budak
Acting Merit Protection Commissioner

16 December 1999