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Integrity and fairness

Review of employment actions

One of the Values relevant to ensuring integrity and fairness in decision-making is that the APS provides a fair system of review of actions taken in respect of APS employees. The Act, the Regulations and the Commissioner’s Directions establish a review of actions framework for the APS. 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. The Regulations also provide that in cases where employees’ concerns are not resolved, employees can apply to the Merit Protection Commissioner for secondary review of the relevant action. Also, as discussed earlier in this chapter, reviews of actions relating to breaches of the Code are dealt with directly by the Merit Protection Commissioner.

Agencies’ internal reviews

Over the last three years, the proportion of agencies reporting at least one application for primary review, that is, an application for a review of an employment action lodged by an employee directly with an agency, has fluctuated between 40% and 49%. This year, 43% of agencies reported having at least one application for primary review, with applications concentrated in large agencies.

Agencies that had at least one application for review lodged in 2006–07 were asked whether they had a range of measures and processes in place for handling such applications. Responses to this question for the last five years are set out in Figure 6.1.

The use of measures for handling reviews of action was widespread. Ninety-two per cent of relevant agencies had three or more of these measures in place with 45% having all five. There were differences depending on agency size—large agencies averaged 4.3 measures compared to medium agencies with 4.0 and small agencies with 2.8.

Given that there will be some variation in the agencies where an application for review has been lodged each year, it is difficult to be definitive about any trends in the use of the individual measures. However, the overall trend continues to be towards an increased use of most measures. It is particularly pleasing to see the continued growth in the number of agencies using alternative dispute resolution procedures as a first step as such procedures can often lead to satisfactory outcomes acceptable to all parties.

Figure 6.1: Relevant agency measures for review of employment actions, 2002–03 to 2006–07

Figure 6.1 shows the proportion of relevant agencies using particular measures for review of employment actions for the period 2003 to 2007. The overall trend seems to be to an increased use of all measures although there is some variation over the years reflecting the variations in the agencies where an application for review has been lodged each year.

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

Source: Agency survey

Agencies also reported on the number of applications for primary review of employment actions (other than decisions about breaches of the Code and matters that went to a Promotion Review Committee (PRC)) that were finalised during 2006–07. Overall, 38% of agencies reported having finalised at least one application for primary review of an employment action—the same as in 2005–06 but a fall from 43% in 2004–05. A total of 278 primary review applications were finalised during the year across the APS (compared to 283 in 2005–06 and 358 in 2004–05). Of the 278 finalised applications, 52 were lodged prior to 2006–07.

In 2006–07, 65% of applications (181) were upheld (i.e. the original decision was not varied or overturned), compared to 41% in 2005–06 and 34% in 2004–05. Thirteen per cent (36) of the 278 finalised applications became the subject of external review by the Merit Protection Commissioner. This compares to 12% in 2005–06 and 15% in 2004–05. The rate of finalised applications per thousand employees in 2006–07 did not vary widely between large agencies.

In those agencies reporting applications finalised in 2006–07, nearly two-thirds (64%) reported applications that related to access to leave or other conditions of employment compared to 44% in 2005–06. Just over half (52%) of agencies reported that any of the applications had related to performance feedback or assessment (up from 47%), 36% had related to procedural issues concerning selection exercises (down from 53% in 2005–06), 33% to bullying or harassment (down from 41%), and 27% to inappropriate behaviour in the workplace.

Table 6.11 shows the training or information provided by agencies to line managers and other employees to ensure that they were aware of the principal features of the processes of internal review and/or to allow them to effectively manage such reviews. Agencies are generally favouring provision of information rather than proactive techniques such as training for staff and managers.

Employee confidence

Employees’ degree of confidence in the processes used by their organisation to resolve employee concerns has increased slightly. However, there is still room for improvement. Just under half (46%) of APS employees agreed that they had confidence in their agency’s procedures. This has increased from 41% in 2005–06. The level of confidence expressed by APS employees is slightly higher than results from three state jurisdictions—Tasmania (42%), Western Australia (38%) and South Australia (36%).¹⁴

Only a minority of agencies used staff surveys or consultative committees to collect information during 2006–07 on employees’ confidence that the agency’s system of primary review provided fair and objective outcomes, although there has been a small increase in usage since 2005–06. Five agencies reported using other methods—such as the results of staff exit surveys. Seventeen per cent of agencies made use of a staff survey while slightly more made use of a consultative committee (22%).

Review of promotion decisions

The ability of APS employees to apply to the Merit Protection Commissioner for the review of promotion decisions up to the APS 6 classification 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 and decide on such applications.

In 2006–07, only 2.4% of 12,850 promotions to APS 1–6 were the subject of review. Table 6.12 details the total number of promotion decisions considered by PRCs, and the number and proportion of promotion decisions that have been varied during the past six years. The number of PRCs continues to fluctuate between years.

There was a significant reduction in the number of both applications for promotion review and of the cases completed this year, with 303 individual applications being made for promotion review (783 in 2005–06) and 45 cases completed during the year (105 in 2005–06). 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. PRCs varied eight (2.6%) of the 307 promotion decisions reviewed—this is the lowest rate of variation since the passing of the Act in 1999, and is a strong indication that merit is usually applied in APS promotion decisions.

The lower number of applications for promotion reviews during the year is likely to be due, in part, to several large national bulk recruitment exercises in ATO and Defence where independent selection advisory committees (ISACs) were used. Agency heads may request the Merit Protection Commissioner to establish an ISAC which is an independent three-member selection committee that makes recommendations to the agency head on selection decisions. If the agency head accepts the recommendations, then any promotion decisions are not subject to review.

14 The jurisdictional comparison data from surveys conducted in 2005–06 and 2006–07 was provided to the Commission by the Department of Premier and Cabinet, South Australia, on behalf of the Commissioner for Public Employment (Workplace Perspectives Survey 2006); Tasmania (State Service Employee Survey 2005); and the Office of the Public Standards Commissioner, Western Australia (Climate Survey 2006–07). The South Australian survey covers all employees employed under the Public Sector Management Act 1995 and the Tasmanian survey covered all employees employed under the State Service Act 2000. The Western Australian Climate Survey involved 14 separate agencies in 2006–07. Each year 10–15 agencies are surveyed with each agency being surveyed approximately once every five years.