The information on activity and performance provided in Tables M1 to M10 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 2013–14. Table M2 provides information on the timeliness with which this function was performed. Both tables compare results for 2013–14 with 2012–13.
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.
Table M1: Review of employment actions workload for 2013–14 by type of review, compared with total reviews in 2012–13
|Cases||Primary reviews—Code of Conduct||Primary reviews—other||Secondary reviews||Complaints by former employees||Total|
|On hand at start of year||19||2||31||0||52||60|
|Received during the period||79||15||132||1||227||192|
|Lapsed or withdrawn||24||2||19||0||45||39|
|Total finalised during period||70||16||141||0||227||200|
|On hand at end of year||28||1||22||1||52||52|
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, 2013–14 compared to 2012–13
|Average time to complete reviews (weeks)||Completed within target timeframes (%)||Average time to complete reviews (weeks)||Completed within target timeframes (%)|
|Primary reviews—Code of Conduct||21.85||67.6||12.94||94.3|
Table M3 details the number of reviews by agency.
Table M3: Reviews completed, by agency, 2013–14
|Agency||Primary reviews—Code of Conduct||Primary reviews—other||Secondary reviews||Complaints by former employees||Total|
|Department of Human Services||10||0||14||0||24|
|Department of Defence||8||0||16||0||24|
|Australian Taxation Office||5||0||2||0||7|
|Fair Work Ombudsman||0||0||3||0||3|
|Six other agencies (two reviews each)||5||2||5||0||12|
|Twelve other agencies (one review each)||4||1||7||0||12|
Table M4 shows the main subject matter and the secondary subject matters for all the cases reviewed in 2013–14.
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, 2013–14
|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 sanction only||10|
|Code of Conduct breach and sanction||18|
|Conditions of employment||Allowances/other payments||4|
|Hours of work||8|
|Duties||Fitness for duty assessments||1|
|Outside employment issues||1|
|Workplace environment and arrangements||Bullying and harassment||6|
Review of promotion decisions
The Merit Protection Commissioner establishes promotion review committees (PRCs) to conduct merits review of promotion decisions for jobs at the APS 2 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 2013–14 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, 2013–14 compared to 2012–13
|Promotion review cases||2012–13||2013–14|
|On hand at start of year||6||1|
|Received during the period||44||43|
|Total finalised during period||49||43|
|On hand at end of year||1||1|
|Target completion time (weeks)||8 or 12||8 or 12|
|Completed within target time (number)||30||33|
|Completed within target time (percentage)||100||97|
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, 2013–14
|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 Taxation Office||10||24||12||12||28||0|
|Australian Customs and Border Protection Service||8||13||9||4||13||0|
|Department of Human Services||6||27||9||18||21||1|
|Department of Immigration and Citizenship||5||157||19||138||158||0|
|Five other agencies (with on review)||5||9||5||4||12||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. They are an important component of the framework for protecting merit in the APS 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 2013–14 compared with 2012–13.
Table M7: Independent Selection Advisory Committees, 2013–14 compared to 2012–13
|On hand at start of year||6||4|
|Received during the period||14||3|
|Total finalised during the period||16||7|
|On hand at end of year||4||0|
Table M8 sets out the number of ISACs established, by agency, and the number of candidates considered and recommendations made.
Table M8: Independent Selection Advisory Committees, by agency, 2013–14
|Agency||Committees established and completed||Candidates considered||Candidates recommended|
|Australian Taxation Office||3||2,151||318|
|Department of Agriculture, Fisheries and Forestry||1||104||17|
Employment-related services (fee-for-service)
Part 7 of the Regulations provides that the Merit Protection Commissioner may, but is not required to, undertake a range of employment-related functions on behalf of non-APS bodies, such as Commonwealth authorities to which the PS Act does not apply, or other government bodies. The Merit Protection Commissioner may charge a fee for such services. Some of the services are provided for a set period under a memorandum of understanding.
Fee-for-service work can include staff selection services and training relevant to the Merit Protection Commissioner's functions, as well as investigating grievances and providing career advice. In recent years, the majority of this fee-for-service work has involved providing members of selection panels for the Australian Federal Police.
Table M9 provides information on these services in 2013–14, in comparison with the previous year.
Table M9: Other fee-for-service functions, 2013–14 compared to 2012–13
|Note: The numbers of cases received in 2012–13 and on hand at the end of the year were underreported by two in Table M8 on page 111 of the 2012–13 annual report. This data error has been corrected in the table above.|
|On hand at start of year||7||5|
|Received during the period||38||22|
|Total finalised during the period||40||23|
|On hand at end of year||5||4|
The whistleblower scheme in section 16 of the PS Act was repealed on 15 January 2014 with the commencement of the Public Interest Disclosure Act 2013.
Agency heads were responsible for establishing procedures for handling whistleblower reports. In the first instance, such reports were expected to be made to, and investigated by, the relevant agency head. Where the employee was not satisfied with the agency's response to their report, or in other circumstances (for example, where it was not appropriate for the agency head to deal with the matter), a whistleblower report could be referred to the Merit Protection Commissioner or the Commissioner. Information on whistleblower reports made to the Commissioner is contained in Part 2 of his annual report.
Table M10 sets out information on whistleblower activity for the period 2010–11 to 2013–14.
Table M10: Whistleblower cases received by the Merit Protection Commissioner, 2010–11 to 2013–14
|Whistleblower complaints 2010–11||Whistleblower complaints 2011–12||Whistleblower complaints 2012–13||Whistleblower complaints 2013–14|
|Number of reports|
|Cases on hand at the start of the reporting period||2||8||2||4|
|On hand at the end of the reporting period||8||2||4||0|
|Source of reports|
|Current APS employees||6||4||6||7|
|Non-APS employee or unknown||2||5||0||0|
|Action by Merit Protection Commissioner|
|Referred to agency head for consideration||1||0||0||4|
|Investigated under whistleblowing powers||0||10||1||2|
|Invalid or referred elsewhere||1||5||3||1|