2012–13 was a busy but rewarding year, dominated by work on legislative reform to the functions of the Merit Protection Commissioner, promoting the wider changes to the PS Act for the Australian Public Service Commission (the Commission) and delivering fair and effective reviews and fee-for-service activities. A particular focus was improving the timeliness of reviews and there was success in this respect.
The institutional importance and personal impact of the review role was articulated in a comment from a review applicant. The applicant noted in responding to a review outcome:
The important role you play in ensuring a fair workplace which adheres to the principles enshrined in the Public Service Act cannot be overstated. The effect of poor decision-making can be devastating to individuals and their families, both professionally and personally.
Throughout the year the Merit Protection Commissioner has continued to support the Australian Public Service Commissioner (the Commissioner) with his statutory responsibility of promoting the APS Values and Code of Conduct. The Merit Protection Commissioner has also contributed to the corporate governance of the Commission as a member of the Executive, including as chair of the Commission’s Audit and Risk Management Committee.
Review and fee for service
Over the last few years significant work has been undertaken on streamlining internal case management and developing the capability of review staff. Although review casework is demand-driven, and therefore unpredictable, the time taken to complete reviews and the quality of the outcomes have steadily improved since 2010–11, a year of relatively poor timeliness largely resulting from the relocation of the review function from Canberra to Sydney.
During the year the management information database relating to the Merit Protection Commissioner’s functions was enhanced to capture more detailed data and to enable more comprehensive reporting of trends in review matters. While the original purpose of the database was to keep track of the nature of the casework and key dates, there have been increasing demands for other information in response to requests from parliament and other bodies, and to support submissions to various inquiries. Other improvements to the database enable better tracking of case handling which allows for better use of resources and further improves timeliness. This work was largely completed in 2012–13.
During 2012–13 delegates of the Merit Protection Commissioner worked with the review advisers to continue to build capability, particularly in the areas of assessing and weighing evidence in administrative decision-making. This year the developmental needs of the delegates has also been enhanced by a one-day workshop on intensive coaching skills, followed by action learning sessions with the trainer.
The Merit Protection Commissioner continued to meet regularly with her delegates and the Group Manager, Ethics, to monitor and report on the progress of cases, identify potential problems, and develop strategies to improve handling of cases. These discussions also allow agency-wide or systemic issues to be identified in order to feed them back to agencies, or to other relevant office holders or bodies, as appropriate.
Box M1: Code of Conduct case—a harsh sanction decision
A supervisor was found to have breached four elements of the Code of Conduct, including section 13(3) of the PS Act—‘An APS employee … must treat everyone with respect and courtesy, and without harassment’. The supervisor was found to have breached the Code for the way they conducted discussions with subordinate staff about work-related matters, including standard of dress and attendance. The supervisor was found also to have raised their voice and handled discussions in a clumsy and unprofessional manner.
The agency imposed a sanction of a reduction in classification from Executive Level 1 to APS 6. In making the decision, the decision-maker considered a number of aggravating factors, including that the supervisor had failed to show remorse by apologising to the staff members concerned and that one staff member had successfully sought workers’ compensation for psychological injury on the basis of their interactions with their manager.
The Merit Protection Commissioner found that the sanction imposed was too harsh and recommended that it be varied to a reduction in salary. The agency accepted the recommendation.
In the view of the Merit Protection Commissioner, the proven behaviours were relatively minor acts of discourtesy that were not sufficiently serious to warrant a reduction in classification. The Merit Protection Commissioner also considered that there were significant mitigating factors, including that the supervisor was a newly promoted and inexperienced manager when the behaviours occurred, was managing a challenging team in which there were staff with performance, attendance and behavioural problems, and had received little practical support and guidance from more senior managers.
The Merit Protection Commissioner was also of the view that the successful compensation claim was not an aggravating factor. The Commonwealth compensation scheme is a ‘no fault’ scheme and Comcare accepts claims where it is satisfied that the employment situation contributed to an employee’s perception that they were bullied and harassed. While a complainant’s perception is a relevant consideration, in the view of the Merit Protection Commissioner, agency decision-makers in Code of Conduct matters need to make an independent judgement of the seriousness of the behaviour of the employee under investigation. The fact that a workers’ compensation claim had been accepted in this case did not demonstrate that the behaviours found to have been in breach were, in fact, serious.
Another area of focus in 2012–13 was ensuring the efficiency and effectiveness of the promotion review process.
The office of the Merit Protection Commissioner maintains a register of appropriately qualified and trained APS employees who can be nominated as an independent third party on a promotion review committee (PRC). In 2012–13 the register was refreshed and agencies were encouraged to nominate employees with experience in staff selection to participate in promotion reviews. More than 200 expressions of interest were received and the review team conducted nine training sessions around Australia. There are now over 150 employees available for this role in agencies.
Ms Godwin spoke at two of the Canberra-based sessions and reinforced the importance of the role in ensuring the integrity of staff selection and employee confidence in the review system.
While the fee-for-service activity has reduced this year, reflecting a general downturn in recruitment across the APS, the Merit Protection Commissioner has continued to place a high priority on the quality of those services. The fee-for-service activities predominantly comprise establishing Independent Selection Advisory Committees (ISACs) to manage recruitment processes at the APS 1–6 level. ISACs are a cost-effective and efficient method of ensuring public and employee confidence in the merit-based selection of staff.
The Merit Protection Commissioner finalised an internal examination of the ISAC function in 2012–13 and used the conclusions to improve ISAC processes and procedures. Staff working for the Merit Protection Commissioner have also developed draft revised templates for agreements with agencies on establishing an ISAC with a view to have a clearer understanding of roles and responsibilities.
Legislative reform agenda
During the year, staff of the Merit Protection Commissioner worked with other staff from the Commission’s Ethics Group to develop advice for the Minister for the Public Service and Integrity on changes to the review of actions scheme, the arrangements for establishing ISACs and the Merit Protection Commissioner’s functions.
In February 2013, the Public Service Amendment Act 2013 was passed by parliament and the amended PS Act came into effect on 1 July 2013. The amendments to the PS Act were complemented by amendments to the Public Service Regulations 1999 (the Regulations) and the new Australian Public Service Commissioner’s Directions 2013.
The PS Act, as amended, provides for two new functions for the Merit Protection Commissioner:
- Section 15 of the PS Act was amended to enable an agency head to investigate allegations of breaches of the Code of Conduct by former employees. An amendment to Part 7 of the Regulations enables the Merit Protection Commissioner to review a determination that a former APS employee has breached the Code of Conduct.
- Section 50A of the PS Act was also amended to enable the Merit Protection Commissioner to inquire into, and determine whether a non-SES employee or former employee has breached the Code of Conduct, if requested to do so by an agency head and with the consent of the employee. The Merit Protection Commissioner may decline the request.
Other amendments to the PS Act enable the Commissioner to investigate alleged breaches of the Code of Conduct by APS employees in certain circumstances. Section 33 of the PS Act was amended to make clear that ‘an APS action’ for the purposes of the review of action scheme includes an action by the Commissioner in respect of this new function.
As part of the legislative change, the government updated and improved the regulations relating to the operation of reviews, promotion reviews and ISACs, such as enabling the Merit Protection Commissioner to conduct reviews as he or she sees fit—a provision already available to agency heads. This provision will enable the office of the Merit Protection Commissioner to manage less complex review cases as appropriate and allow more attention to be given to complex and serious review cases.
With the passage of the legislation, work was undertaken on updating policies and guidelines, supporting documents and the website to be ready for the introduction of the reforms on 1 July 2013. Between mid-April and early May 2013, the Commission released a series of ‘advices’ to inform agency corporate areas about the changes to the PS Act and subordinate legislation, and the action agencies needed to take to be ready for commencement. Four of the 16 advices concerned changes to the Merit Protection Commissioner’s functions.
The Merit Protection Commissioner’s staff participated in the Commission’s information sessions to agency corporate staff to explain the changes. These sessions were well-attended and well-received.
Ethics and integrity
As a member of the Commission’s Executive, the Merit Protection Commissioner provided support to the Commissioner with his responsibilities of promoting the APS Values and Code of Conduct.
On behalf of the Commissioner, towards the end of the year Ms Godwin launched the revised APS Values and the Employment Principles to APS employees in Adelaide and Melbourne.
The Merit Protection Commissioner continued to chair the Ethics Advisory Group (EAG) of agencies. This group enables the Commission to draw on agency experience when developing ethics policies and services to address existing and emerging matters affecting the APS. A focus for the EAG has been on the changes to the PS Act and the proposed plan for communicating the changes to agencies and employees.
Ms Godwin also chaired the Ethics Contact Officer Network, which provides a point of contact for discussion and resources on matters relating to ethics in the APS. The network also focused on the changes to the PS Act, in particular the new APS Values and Employment Principles, and how agencies could embed these in their policies and practices. These meetings continue to be well-attended by agencies, reflecting the benefit in sharing information, experience, and good practice advice.
During the year Ms Godwin met several times with representatives from the Australian Commission for Law Enforcement Integrity (ACLEI) to discuss issues of mutual interest. All but one of the agencies subject to ACLEI’s jurisdiction are in the APS. The sharing of information and experiences, as appropriate, is beneficial as it enhances the ability of the Commonwealth to address integrity concerns and potential cross-jurisdictional issues as they emerge and in an integrated manner.
The Merit Protection Commissioner is also a member of, and secretary to, the Integrity Agencies Group. The group enables information sharing, understanding and collaboration between statutory office holders and agencies with responsibility for integrity issues. The meetings are aimed at supporting a whole-of-APS approach to maintaining a strong and ethical public service.
Working within the APS
In 2012–13, the Merit Protection Commissioner had regular discussions with agency representatives to explain decisions and to support continuous improvement in agency processes and decision-making. The Merit Protection Commissioner continued the policy introduced last year of ‘courtesy calls’ which alert agency delegates of recommendations made by Merit Protection Commissioner’s delegates to set aside or vary significant decisions before the correspondence is despatched. These courtesy calls help agencies to understand the reasons for the recommendation and gives them an opportunity to seek clarification or further information. It has been an important initiative to assist agencies to learn from the Merit Protection Commissioner’s experience.
The Merit Protection Commissioner, Annwyn Godwin, speaking at the Executive Level Leadership Network Annual Forum in Canberra, 26 June 2013.
The Merit Protection Commissioner had regular meetings with the larger agencies—the Australian Taxation Office and the departments of Defence and Human Services—to discuss general trends and, in some circumstances, a post-case debrief. Meetings were also held with some smaller agencies as issues arose in the review work.
This year the Merit Protection Commissioner addressed a wide cross-section of APS employees on their respective responsibilities within the APS employment framework. During 2012–13
Ms Godwin spoke to employees in the departments of Health and Ageing; Agriculture, Fisheries and Forestry; Human Services; Defence; and Immigration and Citizenship and the APS Small Agencies Forum. Among other things, Ms Godwin took the opportunity these sessions presented to discuss with APS managers best practice in having difficult conversations with staff, for example during performance management discussions, while minimising perceptions of bullying and harassment on the part of the employee.
In 2012–13, the Merit Protection Commissioner continued her engagement with agency graduate programs and leadership programs such as the Department of Defence’s JASMO—Junior and Senior Management Orientation—and the Commission’s Executive Level Leadership Network.
The Merit Protection Commissioner provided assistance to the Commissioner with the delivery of the Senior Executive Service orientation program and presented at a number of sessions, including in relation to the APS Values and Code of Conduct.
The varying audiences addressed by Ms Godwin enabled her to communicate with employees at all levels and at different stages of their careers about the role of leadership and the importance of ethical behaviour and gain insights from employees to inform her review work.
Box M2: Review case—dispute about unsatisfactory performance
The employee who applied to the Merit Protection Commissioner was working in a policy role and disputed a rating of ‘developmental’ at the end of the performance management cycle. The employee had been in the role for four years and had received a rating of ‘fully effective’ in each of the three previous performance management cycles.
The Merit Protection Commissioner recommended that the ‘developmental’ rating be set aside and a rating of ‘fully effective’ substituted for it. The reasons were:
The process to manage the employee’s performance had substantially failed to comply with the agency’s enterprise agreement and performance management policy with respect to the feedback provided to the employee during the performance cycle. There was no evidence of any feedback, beyond editing of the employee’s written work. This meant that the employee was not notified of the areas of concern and given a reasonable opportunity to address the issues with performance. The manager had one discussion with the employee one month before the final rating. This discussion was held in the general office area at the manager’s work station after the employee approached the manager with questions about a work issue.
- The manager described the employee’s alleged behavioural deficits in very strong terms, including using language that was personal and subjective, but provided no indicative incidents or documentary evidence.
- The employee’s performance expectations were expressed in general language aligned with the agency’s capability framework for the employee’s classification level and they were not tailored to the employee’s role.
- The evidence relating to the quality of the employee’s written work was mixed but on balance not sufficient to establish that the employee failed to meet the standard of work expected of an employee at the relevant classification level.
The agency accepted the Merit Protection Commissioner’s recommendation.
In 2012–13, the office of the Merit Protection Commissioner developed a case study on lessons learned from review of action casework on performance management decisions. This formed part of a body of work on performance management undertaken by the Commissioner in response to recommendations of the Advisory Group on the Reform of Australian Government Administration. The Commissioner’s work involved the development of a framework aimed at assisting agencies to optimise their performance management systems with a view to developing high-performance cultures.
The review work gives the Merit Protection Commissioner an understanding of the way agencies both succeed and struggle in implementing elements of the human capital framework. The Merit Protection Commissioner’s delegates assist with strategic analysis of the operation of both the performance management and Code of Conduct frameworks in the APS.
Good performance management requires skills in a range of areas, including:
- the ability to translate business outcomes into individual expectations
- confidence to have difficult conversations and to praise and reward
- the capacity to coach and develop staff
- a capacity to work with, and bring together, a team comprising a diversity of backgrounds and work styles.
The Merit Protection Commissioner regularly sees agencies experiencing problems with the quality of individual performance agreements. Examples include poor agreements which have vague performance measures, an over-reliance on general skills at the expense of measurable outcomes, and a focus on process compliance rather than genuine discussion. The Merit Protection Commissioner also sees agency policies and procedures which are not clear about whether unacceptable actions and behaviours should be dealt with under an agency’s performance management or misconduct processes.
Box M3: Review case—dispute about underperformance
An employee sought review by the Merit Protection Commissioner of an agency decision not to place them on a performance improvement plan and defer performance progression for the next performance cycle. The employee was in a role that processed payments to clients.
The employee considered that because the agency had failed to follow its performance management processes, as detailed in its procedural guidance, a valid performance agreement was not in place. The employee also disputed the factual evidence managers relied on to establish unsatisfactory performance.
The Merit Protection Commissioner considered that the employee’s argument about whether a valid performance agreement was in place lacked substance and was a narrow reading of the agency’s policy and procedural guidance material.
The Merit Protection Commissioner considered that the performance measures for this employee were appropriate—focusing on output, quality and behaviours that support the effective performance of the function.
The Merit Protection Commissioner noted that the employee was not subject to quantifiable targets with respect to error rates and assumed that there was no expectation that the employee would have a zero error rate. However, the Merit Protection Commissioner was satisfied by the documentary evidence the manager provided of the employee’s errors, the impact of these errors on clients and the evidence of failure to follow correct procedures designed to provide accountability for the expenditure of public monies. The Merit Protection Commissioner concluded that although the number of errors was relatively small they were serious and affected the effective administration of the business area.
The Merit Protection Commissioner noted that the employee had no output targets but accepted that the manager’s concerns about the employee’s output were genuine and fair and had no reason to doubt the manager’s judgement on this point.
The Merit Protection Commissioner concluded that the evidence suggested that there was a sufficient basis to place the employee on a performance improvement plan.
Parliament and government
Ms Godwin engaged in regular meetings with the Minister for the Public Service and Integrity and his staff to discuss issues of relevance to her functions.
In November 2012, the House Standing Committee on Education and Employment tabled its report on the inquiry into workplace bullying entitled Workplace bullying: We just want it to stop. The Merit Protection Commissioner contributed advice to the government on its response. Among other things, the government accepted the report’s recommendation that the Merit Protection Commissioner’s database be enhanced so that it can capture the number of review cases in which employees are required to attend medical examinations at the direction of their employer (fitness for duty) and the outcome of such review applications. The Merit Protection Commissioner undertook to capture this information manually from 1 January 2013 and to have the system amendments operational by 1 July 2013. The work was completed on time.
The parliament passed the government’s Public Interest Disclosure Act 2013 (PID Act) on 26 June 2013. The PID Act scheme will result in changes to the whistleblower framework in the APS. The Merit Protection Commissioner was involved in consultations on the development of the PID Act and will work with the Commonwealth Ombudsman, the Inspector-General of Intelligence and Security and the Commissioner to implement the required changes.
During 2012–13, the Merit Protection Commissioner continued to assist the Commissioner in supporting international reform, including representing the Commissioner in the Pacific Public Service Commissioners’ Conferences.
In August 2012 Ms Godwin attended a working group meeting in Tonga (the ‘Terms of Reference’ working group), where the future direction and focus of the conference were scoped and developed. A wide range of papers as part of the conference’s 10–year review were discussed.
These papers and recommendations were then presented to the Pacific Public Service Commissioners’ Conference in the Republic of the Marshall Islands in October 2012. The theme for the conference was ‘Good Governance—the road map for the next 10 years’. In addition to representing the Commissioner, Ms Godwin also presented a keynote address and assisted by chairing a workshop.
The Merit Protection Commissioner continued her support for this Commissioners’ forum between conferences through active participation in two working groups—the Terms of Reference group which has a particular emphasis on future focus and governance arrangements, and a second group, which had been established as an outcome of the conference to develop a ‘State of the Service’ report. The initial focus of this latter group was to consider the data needs and the timing and format of the report. Ms Godwin was also involved in advising the secretariat on strategic matters as required.
The Merit Protection Commissioner continued to meet international delegations to discuss her functions and the review of action scheme and, on behalf of the Commissioner, the APS Values and APS-wide legislation. This year Ms Godwin discussed these matters with representatives from Laos and Myanmar. The Merit Protection Commissioner also contributed to the work of the Commission with the OECD, briefing the Commissioner and Deputy Commissioner on matters of relevance to the review framework.
Ms Godwin kept in regular contact with senior officials in other public services, in particular, colleagues from New Zealand, the Netherlands and Canada. Being able to discuss matters of mutual interest and share observations on trends, work programs and experiences is valuable both for the office of the Merit Protection Commissioner and the APS and for international colleagues.
In 2012–13 Ms Godwin supported the work of the Sex Discrimination Commissioner with the promotion of the Male Champions of Change program. This initiative brings together influential and diverse male chief executives and chairpersons to form the Male Champions of Change group. The group aims to use their individual and collective influence and commitment to ensure women’s representation in leadership is elevated on the national business agenda.
The Merit Protection Commissioner regularly meets fellow statutory office holders and agencies to discuss topical issues and to share and learn about different approaches to common problems. For example, this year Ms Godwin had meetings with the Disability Discrimination Commissioner and with the Office of the Commonwealth Ombudsman.
During the year Ms Godwin participated as a member of the panel considering submissions to the 2013 ACT Public Service Awards for Excellence and attended the award ceremony in May 2013. Participation in such activities develops contacts with other jurisdictions.