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Appendix: Review of performance by function

The information on activity and performance provided in Tables M1 to M7 refers to the Merit Protection Commissioner's statutory functions.

Review of employment actions

Section 33 of the PS Act and Part 5 of the Regulations provide a scheme for the review of a broad range of employment actions affecting individual APS employees and, in limited circumstances, former employees. Certain employment decisions, most notably termination of employment, are excluded from the review framework by the legislation.

The three main categories of reviews conducted by the Merit Protection Commissioner are:

  • reviews of breaches of the APS Code of Conduct
  • reviews of other employment actions
  • reviews of promotion decisions.

Table M1 provides information on the number of applications for review (other than promotion review) received and reviews completed in 2014–15. Table M2 provides information on the timeliness with which this function was performed. Both tables compare results for 2014–15 with 2013–14.

Table M1: Review of employment actions workload for 2014–15 by type of review, compared with total reviews in 2013–14
Cases Primary reviews—
Code of Conduct
Primary reviews—
other
Secondary reviews Complaints by former employees Total
2014–15 2014-15 2013-14
On hand at start of year 28 1 22 1 52 52
Received during the period 59 6 94 2 161 227
Total cases 87 7 116 3 213 279
Reviewed 47 1 40 1 89 85
Not accepted 14 6 50 2 72 97
Lapsed or withdrawn 12 0 7 0 19 45
Total finalised during period 73 7 97 3 180 227
On hand at end of year 14 0 19 0 33 52

The tables refer to primary and secondary reviews. Primary reviews are reviews conducted by the Merit Protection Commissioner without first being reviewed by the agency head. The majority of primary reviews involve reviews of decisions that an APS employee has breached the Code of Conduct, and/or sanctions imposed as a result of a breach of the Code.

Secondary reviews are conducted by the Merit Protection Commissioner in circumstances where:

  • the employee is not satisfied with the review conducted by the agency head
  • the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.

The target timeframe for completion of primary and secondary reviews is 14 weeks from receipt of application.

Table M2: Timeliness in handling reviews, 2014–15 compared to 2013–14
Review type 2013–14 2014–15
Average time to complete reviews (weeks) Completed within target time frames (%) Average time to complete reviews (weeks) Completed within target time frames (%)
Primary reviews—Code of Conduct 12.94 94.3 15.16 82.98
Primary reviews—other 5.71 100 12.71 100
Secondary reviews 13.29 95.7 14.97 80
Regulation 7.2 NA NA 11.57 100
Total 12.88 95.3 15.01 82.02

Table M3 details the number of reviews by agency.

Table M3: Reviews completed, by agency, 2014–15
Agency Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total
Department of Human Services 16 0 17 0 33
Australian Taxation Office 9 0 2 1 12
Department of Defence 1 0 11 0 12
Australian Customs and Border Protection Service 6 0 2 0 8
Bureau of Meteorology 0 0 3 0 3
Department of Agriculture 3 0 0 0 3
Department of Foreign Affairs and Trade 3 0 0 0 3
Three other agencies (two reviews each) 4 1 1 0 6
Nine other agencies (one review each) 5 0 4 0 9
Total 47 1 40 1 89

Table M4 shows the main subject matter and the secondary subject matters for all the cases reviewed in 2014–15.

The data in Table M4 is not directly comparable with the data in Tables M1–M3. While there were 35 applications reviewed, seven employees lodged separate applications for review of the breach determination and the sanction decision involving the same subject matter. Table M4 records the Code of Conduct reviews of the 28 employees. For the other reviews, there may be more than one secondary subject matter so the number of subjects in Table M4 is greater than the number of reviews.

Table M4: Subject matter of reviews completed, 2014–15
Subject matter Secondary subject matter Number
Note: An APS employee may make an application for review that involves more than one matter—for example, a review of a performance management application may involve performance appraisal and unsatisfactory performance.
Code of Conduct Code of Conduct breach only 3
Code of Conduct breach and sanction 19
Code of Conduct sanction only 13
Subtotal   35
Conditions of employment Allowances/other payments 6
Attendance/leave 4
Hours of work 3
Other entitlements 4
Salary 2
Subtotal   19
Duties Fitness for duty assessments 1
Relocation 2
Reclassification 2
Subtotal   5
Miscellaneous Misconduct procedures 3
Access to information 2
Subtotal   5
Performance management Salary advancement 2
Performance appraisal 5
Performance pay 1
Underperformance 1
Subtotal   9
Separation Separation entitlements 1
Workplace environment and arrangements Workplace direction 2
Management practices 2
Outside employment 1
Subtotal   5
Total   79

Review of promotion decisions

The Merit Protection Commissioner establishes PRCs to conduct reviews of promotion decisions for jobs at the APS 1 to 6 classifications. A PRC comprises a convenor, a nominee from the relevant agency and a third member nominated by the Merit Protection Commissioner.

The only ground for a review of a promotion decision is merit. The PRC has the power to confirm the promotion decision made by the agency or substitute a different decision.

Details of the promotion review caseload for 2014–15 are in Table M5. In this table, 'case' means an application by one or more APS employees for review of a promotion decision or decisions arising from a discrete agency selection exercise.

Table M5: Promotion review caseload, 2014–15 compared to 2013–14
Promotion review cases 2013–14 2014–15
On hand at start of year 1 1
Received during the period 43 47
Total caseload 44 48
Reviewed 34 14
Not accepted 4 3
Lapsed or withdrawn 5 8
Total finalised during period 43 25
On hand at end of year 1 23
Target completion time (weeks) 8 or 12 8 or 12
Completed within target time (number) 33 14
Completed within target time (percentage) 97 100

Unsuccessful candidates for a promotion may lodge an 'active' application seeking review of a promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a 'protective' application against the promotion of other successful candidates. This application will be considered by a PRC only if the employee's promotion is overturned on review.

Table M6 lists those agencies whose promotions attracted review applications, as well as a breakdown of the number of 'active' and 'protective' applications.

Table M6: Review of promotion decisions, by agency, 2014–15
Agency Promotion reviews finalised Total applications received 'Active' applications received 'Protective' applications received Promotion decisions considered Promotion decisions varied
Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications are considered by a promotion review committee. Some applications are withdrawn, are held to be invalid or, in the case of 'protective' applications, do not proceed to review.
Australian Customs and Border Protection Service 5 25 8 17 22 0
Department of Human Services 3 3 3 0 3 1
Six other agencies (with one review each) 6 9 7 2 16 0
Total 14 37 18 19 41 1

Independent Selection Advisory Committees

ISACs are established by the Merit Protection Commissioner at an agency head's request on a fee-for-service basis under Part 4 of the Regulations. ISACs are independent, three-member committees that undertake a staff selection exercise on behalf of an agency and make recommendations to the agency head about the relative suitability of candidates for jobs at the APS 1–6 classifications.

An ISAC consists of a convenor nominated by the Merit Protection Commissioner and two members, one nominated by the Merit Protection Commissioner and one nominated by the agency head. ISACs work within agency recruitment policies and have the flexibility to accommodate a range of selection assessment techniques.

An ISAC's recommendation is not binding on an agency; however, if it is accepted, any resulting promotion decisions are not subject to promotion review.

Table M7 sets out information on ISAC activity for 2014–15 compared to 2013–14.

Table M7: Independent Selection Advisory Committees, 2014–15 compared to 2013–14
  2013–14 2014–15
On hand at start of year 4 0
Received during the period 3 2
Total workload 7 2
Completed 4 0
Lapsed/withdrawn 3 0
Total finalised during the period 7 0
On hand at end of year 0 2