Review of employment actions

One of the 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 Act, the Public Service Regulations 1999 (the Regulations) and the Commissioner’s Directions establish a review of action framework for the APS. The intent of the framework is to encourage the resolution of employee concerns in the workplace, including 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, employees can apply to the Merit Protection Commissioner for review of the agency action that affected them. Reviews of actions relating to alleged breaches of the Code are dealt with directly by the Merit Protection Commissioner and considered in In the case of certain promotion decisions (promotions between APS 2 and APS 6), the decision is reviewable by a Promotion Review Committee (PRC) established by the Merit Protection Commissioner.

In addition to addressing individual employee concerns about employment actions, the centralised review processes can be monitored and used by agency heads as an assurance mechanism to identify areas where Values relating to workplace relationships are not being applied as well as they could be in particular agencies.

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. This section reports the results of the agency survey on the procedures used in agencies for internal reviews, review applications finalised during the year, and the promotion reviews conducted by PRCs.

Agencies’ internal reviews in 2004–05

The agency survey asked about applications for primary review, that is, application for review of employment actions lodged directly with agencies, during 2004–05. Overall, 49% of agencies reported having had at least one such application lodged during the year—this compares to 44% last year.

Of the agencies that had at least one application for review lodged in 2004–05, 63% had in place alternative dispute resolution (ADR) as a first step following lodgement of a review application. The comparable figure in 2003–04 was 76%; in 2002–03, it was 54%. Last year’s report suggested that the increase to 76% was a positive development in line with the general policy about the use of ADR methods, where appropriate, in reviews of actions.¹⁵ Conversely, this year’s drop to 63% of relevant agencies using ADR as a first step is concerning as ADR methods can often lead to satisfactory outcomes acceptable to all the parties involved without aggravating the situation. However, the three-year trend remains upwards overall and will continue to be monitored. Figure 5.3 shows the variation in agency measures in place to deal with reviews over the last three years.

Figure 5.3: Relevant agency measures for review of employment actions, 2002–03 to 2004–05

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

Source: Agency survey

Figure 5.3 shows a steady upwards trend among relevant agencies towards the use of reviewers from within line management structures (from 67% in 2002–03 to 73% in 2004–05). The results of the other four measures are somewhat less stable. The use of corporate services employees as reviewers (down to 80%) and of reviewers identified after lodgement (up marginally to 88%) appears to have stabilised to 2002–03 levels after variations last year. Although the use of contractors as reviewers dropped to 53% from 58% in 2003–04, the three-year trend is still upwards. These fluctuations may reflect the nature of applications in a particular year and agency decisions to choose the most appropriate approach to deal with particular matters. The trends will continue to be monitored and more data may assist in determining overall trends and other relationships.

In order to assist agencies in calculating their responses, and to improve data quality, this year’s survey targeted in-depth questions on this topic to applications for primary review of employment actions (other than decisions about breaches of the Code and matters that went to a PRC that were finalised during 2004–05. As a result this year’s figures are not comparable with those from previous years. Overall, 43% of agencies reported having finalised at least one application for primary review of an employment action. A total of 358 primary review applications were finalised during the year across the APS, leading to 123 applications being upheld (i.e. the original decision was varied or overturned). Fifty-five of these 358 finalised applications became the subject of external review by the Merit Protection Commissioner.

Four large agencies (Centrelink, ATO, Defence, and DFAT) accounted for three-quarters of all applications for primary reviews of actions finalised in the APS during the past year. The highest number of primary applications finalised in one agency was 110 (Centrelink).

The rate of finalised applications per thousand non-SES employees in 2004–05 varied widely among large agencies, with the highest being about nine per thousand at DFAT. Finance, DVA and CRS did not finalise any applications.

The role of the Merit Protection Commissioner

Both the 2003 and 2004 employee surveys collected data on employees’ awareness of the role of the Merit Protection Commissioner and the survey results were discussed in last year’s State of the Service report. Questions seeking this data were not included in the 2005 survey but will be asked again in future years.

Last year’s report stated that progress had been made towards settlement of a number of threshold issues relating to the review function, and noted that a number of activities associated with promoting the Merit Protection Commissioner’s role and services were tied to the settlement of these issues. These matters were resolved during the year and, as a consequence, the Merit Protection Commissioner expects to be able to focus on a number of awareness raising activities in 2005–06. In that context, the Merit Protection

Commissioner will continue to promote his role and functions through activities such as speeches and presentations. He also intends to develop new, simplified material on the review process, ensuring that information is provided in the ways which best meet the needs of both employees and agencies. The Merit Protection Commissioner’s priorities for 2005–06 also include contributing to the review of the Act.

Review of promotion decisions

The ability of APS employees to apply to the Merit Protection Commissioner for the review of promotion decisions to the APS 2–6 classifications 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 decision 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 past seven years. During 2004–05, 658 individual applications for review by a PRC were considered relating to 99 cases reviewed. This compared with 443 individual applications in 2003–04 relating to 73 cases reviewed.

By way of background the following information should assist in interpreting this data and the data contained in Table 5.2. A case is defined as an application by one or more APS employees for a review by a PRC of a decision or decisions arising from a discrete agency selection exercise. This year’s data records 658 applications for review in relation to 99 cases and each application may seek review of more than one promotion decision. Thus, the 658 applications for review led to 840 promotion decisions being reviewed (as per Table 5.2). Bulk recruitment exercises in Customs and ATO that resulted in high numbers of promotions to reviewable classifications contributed significantly to the number of applications for review lodged and the number of promotion decisions reviewed during the reporting period. No applications for review by a PRC were received this financial year in relation to the engagement in the APS of a Parliamentary Service employee.

Table 5.2: Promotion decisions reviewed and varied, 1998–99 to 2004–05

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 is not available in this format.

Source: APS Commission

The number of PRCs established increased this financial year compared with 2003–04 (99 established in 2004–05 compared with 73 established in 2003–04, an increase of 26 or 36%). The number of PRCs has fluctuated over recent financial years. This appears to some extent to be a reflection of volatility in recruitment patterns. The increase in the number of PRCs this financial year, for example, coincides with an increase of about 25% in the number of reviewable promotions and engagements gazetted, compared with the number last financial year.

15 See Regulation 5.1(4).

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