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Appendix: Review of performance by function

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

Review of employment actions workload for 2013–14 by type of review, compared with total reviews in 2012–13 (Table M1)
Cases Primary reviews—Code of Conduct Primary reviews—other Secondary reviews Complaints by former employees Total
2013–14 2013–14 2012–13
On hand at start of year 19 2 31 0 52 60
Received during the period 79 15 132 1 227 192
Total cases 98 17 163 1 279 252
Reviewed 35 3 47 0 85 82
Not accepted 11 11 75 0 97 79
Lapsed or withdrawn 24 2 19 0 45 39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

Timeliness in handling reviews, 2013–14 compared to 2012–13 (Table M2)
Review type 2012–13 2013–14
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
Primary reviews—other 25.5 0 5.71 100
Secondary reviews 19.57 73.9 13.29 95.7
Total 20.66 69.5 12.88 95.3

Table M3 details the number of reviews by agency.

Table M3: Reviews completed, by agency, 2013–14

Reviews completed, by agency, 2013–14 (Table M3)
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
IP Australia 3 0 0 0 3
Six other agencies (two reviews each) 5 2 5 0 12
Twelve other agencies (one review each) 4 1 7 0 12
Total 35 3 47 0 85

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 of reviews completed, 2013–14 (Table M4)
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
Subtotal 28
Conditions of employment Allowances/other payments 4
Attendance/leave 5
Hours of work 8
Other entitlements 2
Salary 2
Subtotal 21
Duties Fitness for duty assessments 1
Outside employment issues 1
Reclassification 1
Selection process 1
Subtotal 4
Miscellaneous Misconduct procedures 1
Performance management Counselling 1
Performance appraisal 5
Performance pay 1
Underperformance process 3
Unsatisfactory performance 2
Workplace direction 2
Subtotal 14
Separation Voluntary redundancy 2
Workplace environment and arrangements Bullying and harassment 6
Management practices 4
Outside employment 1
Workplace direction 1
Subtotal 12
Total 82

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 caseload, 2013–14 compared to 2012–13 (Table M5)
Promotion review cases 2012–13 2013–14
On hand at start of year 6 1
Received during the period 44 43
Total caseload 50 44
Reviewed 30 34
Not accepted 3 4
Lapsed/withdrawn 16 5
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

Review of promotion decisions, by agency, 2013–14 (Table M6)
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
Total 34 230 54 176 233 2

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

Independent Selection Advisory Committees, 2013–14 compared to 2012–13 (Table M7)
2012–13 2013–14
On hand at start of year 6 4
Received during the period 14 3
Total workload 20 7
Completed 15 4
Lapsed/withdrawn 1 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

Independent Selection Advisory Committees, by agency, 2013–14 (Table M8)
Agency Committees established and completed Candidates considered Candidates recommended
Total 4 2,255 335
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

Other fee-for-service functions, 2013–14 compared to 2012–13 (Table M9)
  2012–13 2013–14
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 workload 45 27
Completed 39 23
Lapsed/withdrawn 1 0
Total finalised during the period 40 23
On hand at end of year 5 4

Whistleblowing

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 cases received by the Merit Protection Commissioner, 2010–11 to 2013–14 (Table M10)
  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
Received 8 9 6 3
Total workload 10 17 8 7
Finalised 2 15 4 7
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