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REVIEW OF EMPLOYMENT ACTIONS

One of the APS Values relevant to the employment relationship is that the APS provides a fair system of review of actions taken in respect of APS employees. The PS Act and Regulations and the PS Commissioner’s Directions establish a review of action framework for the Service. The intent of the framework is to encourage the resolution of employee concerns in the workplace, including through the use of alternative dispute resolution methods where appropriate.

Under the Regulations, non-SES employees may seek review of certain actions or decisions that relate to their employment. Subject to some exceptions, the Regulations provide for a primary review by the relevant agency of actions affecting the employee. The Regulations also provide that for cases where employees concerns are not resolved, the employee can apply to the Merit Protection Commissioner for review of the agency’s action that affected them. Reviews of actions relating to alleged breaches of the Code of Conduct are dealt with directly by the Merit Protection Commissioner.

In the case of certain promotion decisions (promotion to APS 2 to 6 classifications), the decision is reviewable by a Promotion Review Committee (PRC) established by the Merit Protection Commissioner.

In addition to addressing individual employee concerns with employment actions, the central monitoring of review mechanisms can be used by agency heads as an assurance mechanism to identify areas where APS Values relating to workplace relationships are not being applied as well as they could be.

Raising awareness of the availability of review mechanisms and providing appropriate support to employees who choose to seek review can help to develop a relationship of trust between employees and management. Effective ‘fair treatment’ processes are important to high-performing organisations, contributing to strong alignment with business objectives.

This section reports the results of the employee and agency surveys on the procedures used in agencies for internal reviews, and employees’ awareness of these procedures and of the reviews available from the Merit Protection Commissioner. Additional information on promotion reviews conducted by PRCs is also presented.

AGENCIES’ INTERNAL REVIEWS IN 2003—04

The agency survey asked about applications for primary reviews of actions lodged in agencies during 2003—04. Overall, 44% of agencies reported having had at least one such application lodged during the year, and in most of those cases agencies had one or two applications lodged. A total of 357 applications were lodged during the year across the APS; the highest number lodged in one agency was 98 (Centrelink). Four large agencies (Centrelink, Defence, ATO and Customs) accounted for almost three-quarters of all applications for primary reviews of actions lodged in the APS. The rate of applications per thousand non-SES employees in 2003—04 varied widely among large agencies, with the highest being around six per thousand at Customs and DFAT; DITR and Finance had no applications.¹⁰

Of the agencies that had at least one application for review lodged in 2003—04, 76% had in place alternative dispute resolution (ADR) as a first step following lodgement of a review application. This compared to 54% of agencies that had at least one application lodged in 2002—03. This is a positive development in line with the general policy about the use of ADR, where appropriate, in reviews of actions.¹¹ ADR methods are often likely to lead to satisfactory outcomes acceptable to all the parties involved without aggravating the situation. Figure 5.2 shows the variation in agency measures in place to deal with reviews over the last two years.¹²

Figure 5.2: Agency measures for review of employment actions, 2002—03 and 2003—04

Note: Only agencies that had received at least one application for review during the reporting period have been included.

Source: Agency survey

Figure 5.2 shows that agencies were more likely to use consultants (58% up from 46% of relevant agencies last year) and employees in corporate services (92% up from 79% of relevant agencies least year) to conduct reviews, reflecting the advantage of drawing on expertise to manage reviews fairly and properly.

PROMOTION OF AGENCIES’ INTERNAL REVIEW PROCESSES

Last year’s State of the Service report referred to the mixed experiences of employees and their varying degrees of knowledge and confidence in agency review processes. The report included the suggestion that some agencies need to focus on providing training in this area, educate employees about review processes and promote a workplace culture that does not discourage the use of review mechanisms.

Overall, the results from the 2004 agency and employee surveys indicate that the findings of last year’s report remain relevant, although differences in questions about agencies’ review processes in the 2003 and 2004 employee surveys means that results are not directly comparable. The analysis of employee survey results about agency review procedures in the following section is limited to 2004 survey results.

This year’s employee survey found that 84% of non-SES employees were aware that they are able to seek a review of an action. This result is reasonably high and the APS should be pleased at the overall awareness level amongst non-SES employees. However, employee survey results in relation to actual agency review procedures are not as positive.

Twenty per cent of non-SES employees indicated that they were fully aware of the procedures for review of employment actions available within their agency. A further 60% of non-SES employees advised they were partially aware of their agency procedures, while 21% were not aware of the processes that they had available to query employment actions. The proportion of employees in the 22 large agencies that indicated they were not aware of their agency procedures ranged between 10% and 33%.

Of the around 80% of employees who were either fully or partially aware of their agency’s review regime, 37% felt that such arrangements were either always or usually effective and fair, 21% thought that they were sometimes effective and fair, 13% were of the view that such processes were seldom or never effective and fair and 29% were unsure. The proportion of employees in the 22 large agencies that were unsure about the effectiveness and fairness of agency review arrangements ranged between 17% and 41%, and the proportion who thought that the arrangements were sometimes, seldom or never effective and fair ranged between 20% and 56%. The large agency with the most positive employee survey results was BOM, with around 50% of employees having indicated that review arrangements in their agency were always or usually effective and fair.

While not directly comparable, the 2004 employee survey results seem to indicate that there has been no improvement in employees’ perceptions of their agencies review procedures over the last year. The results of both the 2003 and 2004 surveys show that a substantial proportion of employees do not understand their agency’s review procedures, and those that do understand them have mixed confidence in their effectiveness and fairness.

Agency survey results show that there is very little difference in the approaches agencies adopted during 2003—04 to train and inform their employees on review processes compared to 2002—03. Figure 5.3 shows the agency survey results for both years.

Figure 5.3: Agency approaches to the provision of training and information on review processes, 2002—03 and 2003—04

Source: Agency survey

In addition, and consistent with last year’s results, few agencies sought to gauge the opinion of staff about the effectiveness of their review processes–18% of agencies (compared to 15% last year) collected information on employees’ confidence that the agency’s system of primary review provides fair, objective outcomes. Of those agencies that did gauge employees’ opinions, most did so through staff surveys. A handful of agencies used consultative committees to seek this type of information.

THE ROLE OF THE MERIT PROTECTION COMMISSIONER

Comparable annual data is available on employees’ views on the role of the Merit Protection Commissioner in the review scheme as the same question was asked in both the 2003 and 2004 employee surveys.

The 2004 results show that employees’ awareness of the role of the Merit Protection Commissioner in the review scheme had improved a little, particularly in relation to reviews of decisions on breaches of the Code of Conduct. This year 50% of non-SES employees indicated that they were aware of the Commissioner’s role in reviews of this type of decision, compared to 45% last year. Likewise, employee awareness of the Commissioner’s role in relation to other decisions and actions (e.g. refusal of leave, allegations of harassment) increased from 37% last year to 40% of non-SES employees. Awareness of the Commissioner’s role in promotion and review of promotion decisions remained the highest at 65% of non-SES employees.

As highlighted in last year’s report, the Merit Protection Commissioner is developing strategies and continuing to engage in activities that describe his statutory functions, with the aim of building awareness of his role and developing stronger partnerships with agencies in their management of workplace relationships consistent with the APS Values. The settlement of a number of threshold issues relating to the APS review provisions was progressed by the Merit Protection Commissioner with the Office of the Australian Government Solicitor during 2003—04. Promotion and awareness-raising activities, including the production of new, simplified pamphlets on the review process and changes to the Commission’s website, have been delayed pending the settlement of these threshold issues. These awareness-raising activities will be a priority for the Merit Protection Commissioner in 2004—05.

Review of promotion decisions

The ability of APS employees to apply to the Merit Protection Commissioner for the review of promotion decisions at the APS 2—6 levels is one of the assurance mechanisms that protect merit as the basis for the promotion of employees. Promotion decisions at these classifications can be reviewed on the ground of merit. The Merit Protection Commissioner appoints an independent three-person PRC to consider such applications. A recommendation by a PRC is binding on the agency head.

Table 5.2 details the total number of promotion decisions considered by PRCs (or Promotion Appeal Committees (PACs) under the former legislation), and the number and percentage of promotion decisions that have been varied during the last seven years.

Table 5.2: Promotion decisions reviewed and varied, 1997—98 to 2003—04

Notes: (a) May include a small number of temporary performance selection decisions. (b) In 1999—00, 485 promotion decisions were considered by PRCs. Thirteen or 2.7% of these promotion decisions were not upheld. In addition, a number of promotions and temporary performance selections were also considered by PACs, established under the Merit Protection Act 1984 (Cwlth) or the transitional regulations under the Public Employment (Consequential and Transitional) Amendment Act 1999 (Cwlth) (PECTA). PACs established under the Merit Protection Act considered 233 promotions, varying the decision in 10 or 4.3% of cases. PACs established under the PECTA provisions considered 329 promotions, varying the decision in six or 1.8% of cases. (c) Historical information not available in this format.

Source: APS Commission

The number of PRCs established and promotion decisions reviewed has generally been in decline over recent years. An exception to this trend occurred in 2002—03, when the number of committees established and decisions reviewed was particularly high, coinciding with the unusually high number of promotions at the APS 2—6 levels that were gazetted during that financial year (10,248 compared to 6071 in 2003—04). While the number of promotion decisions reviewed in 2003—04 was higher than the number reviewed in 2001—02, the number of PRCs established was three fewer because a significant number of promotion decisions reviewed related to bulk selection processes. Overall, it seems that the downward trend in PRC numbers has now reached a plateau. The percentage of promotion decisions varied in 2003—04 (5.9% of those reviewed) was similar to the percentage varied in 2001—02.

10 The rate was based on total non-SES employees at 31 March 2004 from APSED and includes ongoing and non-ongoing APS employees.

11 See PS regulation 5.1(4).

12 Please note that a minor variation in the question may account for some of the difference (in 2003 agencies were asked which measures they had used; whereas in 2004 agencies were asked which measures they had in place).