Commission Advice 2013/06: Merit Protection Commissioner’s functions

Last updated: 06 May 2013

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Merit Protection Commissioner's functions

The Public Service Amendment Act 2013 (the Amendment Act) made significant changes to the Public Service Act 1999 (the Act). As a consequence the Public Service Regulations 1999 have been amended and the Public Service Commissioner's Directions 1999 repealed and replaced with the Australian Public Service Commissioner's Directions 2013 (the Directions).

The Australian Public Service Commission (the Commission) has developed a series of ‘Advices’to assist Australian Public Service (APS) agencies implement the changes in the amended legislation and the new Directions. The Advices are available on the Circulars and advices page of the Commission's website.

This Advice provides an overview of the changes made to the review functions of the Merit Protection Commissioner.

The commencement date for the amended Act, amended Regulations and the Directions is 1 July 2013. The changes will become part of Commonwealth law on that date. Agencies will need to take action to prepare for these changes before the commencement date.

Why are these changes being made?

The amendments strengthen the framework for the fair management of misconduct in the APS by:

  • giving the Merit Protection Commissioner—an independent and expert office—authority to investigate suspected breaches of the Code of Conduct by non-SES employees in certain circumstances (see below)
  • establishing review rights where determinations of misconduct are made by the Australian Public Service Commissioner and by agency heads in respect of former employees(see Advice 2013/5 ‘Australian Public Service Commissioner's functions' and Advice 2013/7 ‘Handling misconduct’).

What changes are being made?

Investigation by the Merit Protection Commissioner into an alleged breach of the Code of Conduct by an APS employee or former APS employee

The Act has been amended to provide for the Merit Protection Commissioner, at the request of the agency head and with the agreement of the affected employee or former employee, to determine, in accordance with written procedures, whether an APS employee or former employee has breached the APS Code of Conduct (new section 50A).

The affected employee will have no right of review under the Regulations of the Merit Protection Commissioner's determination as the investigation would be conducted by an expert body independent of the employee's agency. As the employee will have no administrative review right, the employee, or former employee, must agree in writing to the Office of the Merit Protection Commissioner undertaking the determination making process. The outcome of any such determination may still be subject to judicial review.

The procedures to be followed by the Merit Protection Commissioner in making such a determination are provided for in new regulation 7.10. The procedures substantially mirror the basic procedures set out in the Directions that an agency head must follow in determining whether an employee has breached the Code of Conduct. For these purposes the Merit Protection Commissioner is essentially standing in the shoes of the agency head.

The Merit Protection Commissioner may decline a request to conduct an inquiry. As a matter of policy, it is expected that the Merit Protection Commissioner will agree to undertake an inquiry only in limited circumstances—for example, where a small agency has had difficulty in finding a qualified investigator, or where an external and expert investigator would best promote harmonious workplace relations. Generally, it is expected that agencies should retain responsibility for investigating misconduct.

The Merit Protection Commissioner is able to charge a fee for this function, and it will be delivered on a fee-for-service basis.

Review of a determination of a breach of the Code of Conduct by a former APS employee

New Division 7.3 of the Regulations provides former non-SES employees with a right of review by the Merit Protection Commissioner where, after they have left APS employment, they have been found by an agency head or the Australian Public Service Commissioner to have breached the Code of Conduct.

These provisions are in regulations 7.2A to 7.2H of Division 7.3. The review rights are consistent with review rights applying to current employees seeking review of a determination of a breach of the Code of Conduct, including with respect to how applications are to be made, how the review is conducted, the information the agency head is required to provide the Merit Protection Commissioner and the time frame for making an application.

Review of a finding made by the Australian Public Service Commissioner under section 41B that a current employee has breached the Code of Conduct

Division 5.3 of the Regulations contains the provisions relating to reviews of employment actions (other than promotion reviews) for current employees. Regulation 5.22 in Division 5.3 has been amended to extend the right of review to current non-SES employees who have been found, by the Australian Public Service Commissioner under new section 41B of the Act, to have breached the Code of Conduct. This is appropriate given that in making such determinations, the Australian Public Service Commissioner is standing in the shoes of the agency head, and when that Commissioner undertakes an investigation, the affected employee's agreement is not required.

Employment Principle—Fair employment decisions

The amendments to the Act revise the APS Values and introduce APS Employment Principles(subsection 10A(1)) to provide, among other things,that:

The APS is a career-based public service that:

  1. makes fair employment decisions with a fair system of review; and…
  1. makes decisions relating to engagement and promotion that are based on merit

The Employment Principles are binding and are the basis for employment decisions in the APS.

As set out in Advice 2013/9 ‘Recruitment and selection’, merit as defined in the Act continues to apply to promotion and engagement decisions. All other employment decisions are required to be fair, rather than merit-based, which is a more relevant test. The amendments do not ‘water down’ the concept of merit and are aimed at reducing the scope for confusion about the nature of the process required in dealing with relatively straightforward employment decisions, such as selection of participants for a training course.

What do agencies need to do?

Agencies must comply with the amended regulations from 1 July 2013.

Agencies are advised to review their policies, procedures, and guidance material relating to investigating and determining breaches of the Code of Conduct so that they take account, as appropriate, of these legislative amendments, that is:

  • the option of approaching the Merit Protection Commissioner to undertake an investigation into an alleged breach of the Code of Conduct by a non-SES employee, or former non-SES employee, and the need for the written agreement of the affected employee or former employee in these circumstances
  • the right to review by the Merit Protection Commissioner of determinations made by agency heads of breaches of the Code of Conduct by non-SES employees after they ceased APS employment and the need to provide information regarding review rights and timeframes in correspondence with the former APS employee.
  • the right to review by the Merit Protection Commissioner of determinations made by the Australian Public Service Commissioner of breaches of the Code of Conduct by non-SES employees and former non-SES employees.

Agencies are advised to communicate the amendments to their employees.

What transition arrangements need to be put in place?

These are new functions and require no transitional arrangements.

Further information

The Advices are available from the Circulars and advices page. This advice should be read in conjunction with:

The Amendment Act, the Public Service Amendment Regulation 2013 and the Australian Public Service Commissioner's Directions 2013 are available on the Comlaw website.

Enquiries from agencies' corporate services staff can be made by email at ethics@apsc.gov.au or by telephone on 02 6202 3737.

APS employees who have queries about how the changes will affect them are asked to contact the HR area in their agency.

Karin Fisher
Group Manager, Ethics
Australian Public Service Commission

April 2013