This document was prepared by the Office of the Merit Protection Commissioner.
Merit Protection Commissioner
(This is the author's version of the work. It is posted here for personal use, not for redistribution. The definitive version was published in the Australian Journal of Public Administration, Volume 70, Issue 3, pages 318-326. DOI: 10.1111/j.1467-8500.2011.00732.x)
Since my appointment as the Merit Protection Commissioner I have reflected on what is it I am protecting and why it needs protecting. Merit is a term that most Australian Public Service (APS) employees are likely to have heard of in the course of their employment and may have views on how it applies, or should apply, at work. It is also a concept which has from time to time been the subject of serious debate. Merit as a key tenet of public service employment has most recently come to the fore in the context of proposed Australian Government reforms for the APS which include an examination of the APS Values.
That merit in the APS is accepted as 'given' is in effect an embodiment of Australian ideals—although merit as a societal ideal is clearly not exclusive to Australia. The concept of being treated on your merits is a deeply embedded ethical value for Australians and is viewed as part of the national character. The idea that people should play fair and give everyone a 'fair go' is associated in the minds of many Australians as 'being Australian'.
Merit in the APS can be seen as an extension of this prevailing attitude. The problem facing the APS is that everyone defines merit in a different way. In this article I want to look at what merit is in its simplest form, why the public service maintains the principle of merit and the current factors influencing the merit debate.
I admit to having a vested interest. My statutory role as Merit Protection Commissioner is set out in section 50 of the Public Service Act 1999 (the Act). While 'merit' is in the title, two of my key functions are to conduct independent reviews of employment actions and to receive and inquire into whistleblower reports—there is no mention of merit per se. Yet, I see my role as providing assurance through the review function that in the areas of APS employment, the APS Values are being applied.
Through reviews and investigation I discover and report on APS agency decisions from minor administrative errors to serious defects in process and policy. I use the insight I gain from performing my statutory role to assist APS agencies and their employees to understand their respective responsibilities within the APS employment framework in order to minimise the potential for recurrence. This role gives me a unique position from which I can make observations on merit and its operation in the APS.
What is merit?
Merit is defined in different ways depending on the context in which it is being used. The Macquarie Dictionary provides eight different meanings.
In the APS, when we talk about merit we are really looking at two of the eight concepts—a person's claims of commendation, excellence or worth, and the rights and wrongs of a matter unobscured by the technicalities. If you substitute a few words it becomes clearer—a person's claims of worth in a recruitment context and the rights and wrongs of how APS managers make decisions about their staff.
While merit is usually considered in the context of recruitment it is also important not to lose sight of the application of merit in decision-making.
What I mean by a meritorious decision is one where the decision-maker has considered the following questions:
- Is it legal? (i.e. an appropriate exercise of a delegation by a person with authority)
- Is it evidence-based? (i.e. does it weigh up independent and credible data or information using a variety of decision-making tools)
- Is it timely?
- Is it transparent? (i.e. are there records to support a conclusion that is logical and reasonable)
- Is it sustainable? (i.e. not a short term fix that creates longer term problems)
- Is it ethical? (i.e. while being legally correct, it is also the right thing to do)
I have previously provided detail on these concepts and noted that the REFLECT decision-making tool forms an easy-to-remember acronym for meritorious decision-making (Godwin 2009:8).
The fundamental issue of how to assess people for employment opportunities has faced all employers, including professional public services, since their inception. It is the attempts to embed the response to this issue that, over time, have led to the current consideration of merit. While equally important, the focus of meritorious decision-making has not been the subject of as much debate although it has been reflected in review systems. The current APS Value of 'a fair system of review' is in practice an examination of the rights and wrongs of decision-making.
The historical perspective
The guiding principle used to staff the APS since its introduction in 1902 has been merit. In this context, it was considered to provide a level playing field for recruitment. The concept of merit adopted into the APS was a direct inheritance of the reform movements of 19th century Britain which had as an objective the elimination of nepotism and patronage and the enhancement of efficiency in the British Civil Service. These reforms, in particular the use of competitive examinations, had largely been adopted into the State Public Services prior to Federation.
Since the introduction of the Public Service Act 1902 and its replacement, the Public Service Act 1922 (1922 Act), merit as a principle has evolved and is now expressed in terms of open access to APS opportunities with competitive selection based on relative efficiency. The other important feature impacting on merit has been the separate considerations of appointment and internal progression through promotion or transfer. This was reflected in the Public Service Commissioner's first Annual Report in 1904:
…all appointments and promotions shall be based upon a just and equitable system excluding all political or other patronage, throwing all appointments open to rich and poor alike, and establishing merit combined with fitness as the only basis of selection.
Thus from its inception, the framework for APS selection was designed to allow people to compete and to be assessed on the basis of their ability. Merit, however, was never explicitly defined in the legislation until 1999 and merit was never universally applied in recruitment—for example, there were restrictions on women obtaining ongoing employment, preferential treatment for returned servicemen, age limits on appointments and seniority criteria.
The other problem faced by any organisation in the absence of a definition of merit is that merit itself is a fluid concept reflecting the values of the society at different points of time—the current exemptions from open competition are to assist the employment of Indigenous people and people with disabilities.
In 1976, the Royal Commission on Australian Government Administration upheld the principle of recruitment by merit, but believed that there was cause for concern in the ways in which merit was applied to different groups in society such as women, indigenous people, people with disability, and people from non-English speaking backgrounds.
The 1983 White Paper Reforming the Australian Public Service led to revised provisions in the 1922 Act governing entry to the APS and determined that merit be applied by open competition and promotion and on the basis of relative efficiency. By doing so, it thus enshrined merit in the legislation.
The introduction of the Act in 1999 provided, for the first time, a definition of a merit-based decision which was common for both engagement and promotion. This simplified the application of merit for staff selection in the modern APS.
Around the same time as these merit reforms for promotion and engagement, there were also corresponding changes in how people were managed in administrative law. In broad terms, the APS moved from a centralised 'rules' based approach to a model of 'professional principles and standards' supplemented by agency-based guidance and policies. Along with the devolution came stronger accountability and responsibility for individual and collective decisions. In a devolved, principle-based environment, the role of meritorious decision-making is more important than ever, as it has a role in providing assurance and confidence as to the gravity of those decisions.
The formal review process in the APS (continued in the Act) together with other avenues such as the Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982 (FOI Act), have served to reinforce the importance of good decision-making.
The APS is not alone in facing issues regarding merit—debates on merit and its interpretation and implementation have also featured in the public services of Canada, the United Kingdom and the United States. There are also similar checks and balances with various review frameworks and auditing requirements.
Each public service is addressing the challenges of ensuring the application of merit in an increasingly competitive world through a combination of increasing the flexibility of the principle and ensuring appropriate checks and balances are in place to monitor merit as practiced.
Why does the APS pursue merit?
I think it is important to focus on why it is fundamental to our system that the APS continues to bother with merit and in particular merit-based recruitment—commonly referred to as 'getting the best person for the job' for engagement and promotion decisions.
There is an overall expectation that official power be exercised in a manner that is fair, impartial and equitable—and this is particularly so for engagement and recruitment decisions as envisaged under the Act. This is appropriate as they seek to provide additional assurance that key 'gates' within the APS are operating effectively and efficiently.
As I see it the advantages of merit in recruitment include, in no particular order:
- promoting public confidence in the APS
- supporting the Government's anti-discrimination provisions including, as a positive counter, to those early concepts of nepotism and patronage
- enabling the development of a staffing profile within the APS that better reflects the diverse community it serves, making it easier to tap into different approaches and ideas
- opening up APS employment opportunities to all eligible citizens and increasing the field of potential employees
- the recruitment of the best person for the job promotes efficiency, provides economic benefits to individual agencies, and supports the overall organisational effectiveness and productivity of the APS
- appropriate staffing that gives value for taxpayers' dollars
- focussing on the particular requirements of a role and the contribution of an individual to that role.
What does merit look like in the APS today?
The current Act includes a number of APS Values or other provisions that separately deal with aspects of what have at various times been viewed as elements of the merit principle. These include a prohibition on patronage and favouritism, non-discrimination, equity in employment and providing a reasonable opportunity for the community to have access to APS employment.
The Act provides a definition of merit as it relates to the APS Value of merit-based employment decisions. The Act states that a decision relating to promotion and engagement is based on merit if:
- an assessment is made of the relative suitability of the candidates for the duties using a competitive selection process
- the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required for the duties
- the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties
- the assessment is the primary consideration in making the decision.
While Chapter 2 of the Public Service Commissioner's Directions expands on the minimum requirements required to undertake a competitive selection process for engagement and promotion, it also provides a definition of merit to be applied to other employment-related decisions. That is, all employment decisions (other than engagement or promotion decisions) are to be made on the basis of an assessment of a person's work-related qualities and the work-related qualities required for efficient and effective organisational performance.
This applies to movements to positions at the same classification (within and between agencies) which support and promote mobility, career development and experience in different roles and environments. Such decisions are, however, subject to what I have defined as meritorious decision-making.
What are the problems with merit as currently applied in the APS?
I believe APS employees are comfortable with the basic concept of trying to ensure the person selected for promotion or for engagement to the APS is the best person available for that job and that they did not get it on the basis of who they are or who they know. In other words, there is a reasonable opportunity to apply, with selection on the basis of individual worth with no patronage or favouritism. No one argues that this is not the ideal situation, that is, it is put in the eliminative rather than the positive case, but no-one works in an ideal world and the APS needs to find an acceptable balance between idealism and pragmatism that does not render the merit value meaningless.
Over time, in striving to uphold merit the APS has developed what might be considered to be a mythology around recruitment on the basis of merit. The processes that have been built into recruitment and selection to ensure 'merit' have tended to become overly bureaucratic and time consuming. Think of what you have seen or heard over the years—there must be a panel of three, panel members must be a certain level above the level of the vacancy, three volume selection reports in case of a review, three or four levels of clearance, highly detailed selection criteria etc, etc. In fact, there is no prescription in the Public Service Commissioner's Directions for referee reports or even that an interview must be conducted. The key requirement is that there is openness and transparency of process and opportunity.
In my opinion, the emphasis sometimes placed on adhering to arbitrary rules or procedures established within agencies bear little relationship to the intention of the Act provisions and serve only to make it more difficult to compete for top people. Anecdotal evidence provided to the Australian Public Service Commission (APSC) supports this view.
Participants in APSC recruitment workshops have highlighted agency practices which entrench traditions and culture rather than exploring best practice and new opportunities. Not surprisingly, the default position of some managers is to use known and established processes which lead to the continued use of inefficient and ineffective processes such as outmoded understanding of industrial relations law. This tendency can be exacerbated in agencies where the recruitment process has been decentralised and line managers responsible for recruitment are not provided with sufficient up-to-date information on best practice and implementing agency policy, or have not considered recruitment as a strategic investment.
APS managers have consistently commented that merit selection—which is seen as synonymous with an open competitive selection process—is time consuming, resource intensive and does not necessarily deliver the right outcome. What is the use of designing and implementing an elaborate selection process if the best person for the job is no longer available at the end of the process having been snapped up by other employers, or worse, may even be deterred from applying in the first place?
The timeframes for recruitment activity were reported in the most recent State of the Service Report (APSC 2010:130). For an ongoing position below the Senior Executive Service (SES) level, it takes on average 54 days for the delegate to make the selection decision and 75 days for the person to start in the position. The averages for ongoing SES opportunities rise to 76 and 94 days respectively. To be fair to APS managers, the legislative framework which provides promotion review rights for non-SES employees at the APS 1–6 levels and the default period of four weeks for movement between agencies does build in extra times not faced by many non-APS employers. This may be an excuse for the latter indicator, but no excuse for the former. That said, there is still scope for better project management of recruitment to avoid scenarios where time is not set aside to undertake a selection process or panel members approached until after the application period is closed.
In my opinion, recruiting staff using the merit principle is not the problem. The problem facing the APS and for that matter, other state and international public services, is finding an acceptable compromise between the two extremes of absolute merit and pragmatic merit—or in other words—a balance between principle and the pressures to cut corners to be more responsive. This balance has changed over time and often reflects prevailing societal views on the value of public service and the role it plays in delivering services and as a source of employment.
What is also apparent is a lack of understanding of merit in the context of recruitment and engagement and the legislative provisions that underpin merit. A small study of APS employee's perception of merit undertaken by the Commission in 2004 (APSC 2009:83–4) supported the view that perceptions of merit are associated with the level of understanding of the processes and that training could assist employees to understand how merit applies in different situations.
One significant issue is the current conceptual confusion caused by two aspects of the current drafting of the APS Values as they relate to merit. These are the fact that 'merit' applies to all employment decisions rather than just selection for engagement and promotion, and the fact that 'reasonable opportunity to apply' is a separate Value.
As touched on above, for nearly the whole of last century the concept of merit selection was seen to apply to recruitment and promotion and reasonable opportunity to apply was seen as an integral part of this—not a separate concept.
Seeking to apply merit to all employment decisions is conceptually confusing. The ordinary common concept of merit is restricted to the process of selecting the best (most suitable) person for the duties to be performed. However that is the exact opposite of what a range of other human resource decisions require—that is they are addressing a person's lack of suitability. For example, the decision:
- to develop someone who does not yet possess specific skills
- to give someone performance counselling
- to start an underperformance process in relation to an employee
- to terminate a person's employment for incapacity or poor performance.
It is the broader concept of merit-based decision-making that needs to be applied in these situations as well as the principle of procedural fairness.
Where is merit at the moment?
Ahead of the Game: Blueprint for the Reform of Australian Government Administration (the Blueprint), released in March 2010, set out a comprehensive change strategy for the APS which, first and foremost, re‑emphasised the needs and requirements of citizens to be at the centre of service design and delivery, but also challenged the public service to be more forward looking.
While the Blueprint did not focus specifically on merit, one reform called for a reformulation of the APS Values to create 'a smaller set of core values that are meaningful, memorable and effective in driving change'. Since July 2010, the Commission has undertaken significant consultation on a revised set of values for the APS.
A discussion paper issued by the Commission in October 2010 (APSC 2010b) proposed a set of five values covering service, ethics, respect, accountability and the apolitical/impartial nature of APS advice. It also proposed that the values would be complemented by a set of binding employment principles to guide employment and workplace relationships in the APS. Those principles include
- making employment decisions that are equitable, with a fair system of review
- making promotion and engagement decisions that are based on merit
- providing a workplace that is free from discrimination, patronage and favouritism.
These principles need to be seen in the broader context of the Blueprint which has also recommended that the APS develop best practice standards for recruitment that uphold the merit principle.
It is proposed that merit will continue to be described in the Act and continue to apply to engagement and promotion decisions.
Merit-based recruitment is just one aspect of the wider human capital framework within the APS. Good people management underpins an effective human capital strategy, which in turn underpins the APS's ability to achieve its strategic objectives and meet the evolving needs of citizens. The other concept of merit—good decision-making—underpins all of the Blueprint reforms and is essential to the efficient performance of the APS. While it is intended to remove the term 'merit' in this context from the legislation, it will continue to be picked up through the review aspects of my role.
Where does the APS go from here?
I would not want to see merit as a principle watered down or thrown away because the processes associated with it have distracted people and are no longer considered relevant or useful—hence the subtitle of this article.
While all effective organisations aim to make meritorious decisions, there is a greater onus on the APS to aspire to the ideals of merit as a result of its unique position. As the then Management Advisory Board (MAB 1993) put it:
Australians rightly see a high level of accountability of public officials as one of the essential guarantees and underpinnings, not just of the kinds of civic freedoms they enjoy, but of efficient, impartial and ethical public administration.
Both Parliament and the community are likely to have expectations that promotion and engagement is on the basis of the best person for the job through open competition even if for no other reason than getting value for their tax payer investment. In addition, the employees themselves also see merit selection as being an almost sacred part of their APS employment—although not surprisingly if they are not selected for a position they are more likely to consider merit has not been applied! An equal correlation to this is independent decision-making in the application of policy and principles to ensure all Australians are treated equitably in the provision of services.
The role of the APS will be more in the spotlight following the recent government reforms to the Freedom of Information Act 1982 which in part are designed to increase public participation in government processes and increase scrutiny, discussion and review of government activities (OAIC 2010).
I do not pretend to have the solutions but I think that there are areas the APS needs to debate and act upon. I believe that it is important to recognise that merit selection in an open and competitive way is essential for engagement and promotion but the work in this area should not be at the cost, by default, of condoning poor decision-making in its more general, non-recruitment sense. Decisions in other areas need to be meritorious (legal, non-discriminatory, well-informed and transparent) as an integral part of the human capital framework.
In terms of the practical application of merit, the APS must work towards simplifying the structure or process of merit while striving towards the ideal of 'absolute' merit. This is not something new—the Commission and agencies have been engaged in this for many years. However, the nature of public sector employment changes over time and we need to continue to work on the fronts already identified and to encompass ones that have may have been in the too-hard basket.
The focus on reducing red tape must continue. Selection processes can continue to be simplified and, in particular, better planned. Leaders in the APS must insist that staff selection be considered to be an integral and strategic part of a manager or supervisor's job. No other large investment decision—and that is what recruitment is—is treated so lightly and can be handled at such junior levels without up-to-date support and training. The recruitment of just one junior level officer who remains with the APS is at least a one million dollar investment over a ten year period and should be given the appropriate scrutiny and risk assessment at all levels of an organisation.
There is growing awareness of the strategic importance of effective recruitment and staff management as part of the human capital framework. Some agencies have already started using the flexibilities within the current framework and have addressed restrictive policies which reduced their capacity for effective and timely recruitment. Others have developed partnerships between the line areas and the human resources area. Centralised management of bulk recruitment rounds to provide uniformity in selection and reduce times are features in many agencies and may include the use of Independent Selection Advisory Committees (ISACs) which are convened by a nominee of the Merit Protection Commissioner. I have been working with agencies to look at how ISACs can operate more efficiently and flexibly particularly in handling very large bulk rounds. One avenue that is being explored is using the ISAC to provide quality control over the shortlisting of candidates, particularly those that are borderline, rather than undertaking individual selection.
Measures such as these can provide more efficient recruitment while still adhering to the principle of merit. Other areas worthy of further consideration are enhancing job design to enable promotion or engagement to a level and then enhancing the mobility of employees by making it easier to move within agencies and within the APS without a competitive process. While there is no requirement for additional competitive processes when moving staff to positions at the same classification, there is a requirement for good decision-making and an open and transparent process when making that decision.
These are all initiatives that are available now to agencies if they choose to think outside the traditional mindset of how the principle operates. This could be tied in with talent management programs designed to identify and nurture employees who have the aptitude and capabilities to progress through middle management to senior management roles. With the potential for perceptions of discrimination by other employees and the cultural sensitivity involved in identifying 'talented' staff, this is one area where it is crucial that the identification methods and targeting of employees reflect good decision-making.
There is still much work to be done in ensuring that the APS presents an open approach to harnessing skills and talents of individuals. With predictions of a tighter labour market, already experienced in some fields, it becomes imperative that APS selection processes do not deter the people needed from even considering an APS career. This needs to be coupled with an understanding not just of the job or role as it stands but how that job may change over the short to medium term. We can look further at how individual merit is demonstrated. There is scope here to consider whether the recent changes implemented by the US Government (Obama 2010) designed to reduce the complexity of the recruitment process and encourage more jobseekers to apply for positions should be implemented within the APS.
In debating merit, the APS needs to acknowledge the elephant in the room—that is, the subjective element of assessing applicants. A recent media article (Eggins 2010: 24–5) suggested that what went on behind closed doors was what the author called 'the personal fit principle' where selection panels looked at how a person would fit within the organisation. This is not a new perception. In his introduction to a seminar on merit in 1996, the then Public Service Commissioner (Shergold 1996) stated:
Too often commitment to merit is seen by selection panels as a clarion call to reproduce their own talents. It is as if merit is to be transmitted by the process of cloning.
One antidote to such behaviour is the conscious identification of what the job is and what skills and qualities are considered necessary before recruitment begins. That way the people responsible for applying the merit principle are aware of what the best person may look like in an overall sense. Training is the other ingredient. It is always easier to avoid falling into a trap if you are aware of it in the first place. However, it is important to acknowledge that in assessing work-related qualities required, agencies can legitimately take into account such considerations as relevant personal qualities (i.e. integrity) and ability to contribute to team performance (i.e. a team player) that are reflected in the selection criteria. My point is that it is entirely appropriate, and within the spirit of merit in the APS to determine and select on the basis of what could be called the 'professional' fit as opposed to 'personal' fit.
Merit will always be a controversial area as its application affects individual lives and the efficiency of agencies. As Merit Protection Commissioner, I believe it is important that the APS community continues to debate merit and the manner in which merit is reflected in the legislative framework, in agency practices and decision-making. My views are summarised in a quote from one of the speakers (Hawke 1996) at the 1996 merit seminar mentioned above:
I don't believe we will ever stop debating Merit. We will never get it perfect. But if we keep working at it, I think we have a reasonable chance of giving individuals a fair go, drawing on the best talent available, achieving the objectives of our departments and agencies, and getting the leaders we need in the Service in the twenty-first century.
We can do nothing less.
APSC [Australian Public Service Commission]. 2005. State of the Service Report 2004–05, Canberra: Commonwealth of Australia.
APSC [Australian Public Service Commission]. 2010. State of the Service Report 2009–10, Canberra: Commonwealth of Australia.
APSC [Australian Public Service Commission] 2010b. Discussion Paper: Proposing a new set of Australian Public Service Values. Canberra: Commonwealth of Australia.
Commonwealth of Australia. 2010. Ahead of the Game: Blueprint for the Reform of Australian Government Administration. Report of the Advisory Group on Reform of Australian Government Administration, 2010. Canberra: Commonwealth of Australia.
Eggins, S. 2010. Choosing the 'best' candidate: our struggle with merit. Public Sector Informant, October 2010.
Godwin, A. 2009. The Merit Protection Commissioner and Ethical Decision Making. Canberra: Commonwealth of Australia.
Hawke, A. 1996. Another Look at Merit or Looking for the best piece of cheese 30 May 1996. Public Service and Merit Protection Commission Merit Seminar. Canberra: Commonwealth of Australia.
MAB [Management Advisory Board]. 1993. Accountability in the Commonwealth Public Sector, MAB/MIAC No 11, June 1993. Canberra: Australian Government Publishing Service.
OAIC [Office of the Australian Government Information Commissioner]. 2010. Freedom of Information—What's changed? Fact Sheet No 2. Canberra: Commonwealth of Australia. URL: <http://www.oaic.gov.au/freedom-of-information/foi-resources/foi-fact-sheets/>.
Obama, B. 2010. Improving the Federal Recruitment and Hiring Process. Presidential Memorandum 11 May 2010. Washington: Office of the Press Secretary. URL: <http://www.whitehouse.gov/the-press-office/presidential-memorandum-improving-federal-recruitment-and-hiring-process>.
Shergold, P. 1996. PSMPC Merit Seminar. Address to Public Service and Merit Protection Commission Merit Seminar 30 May 1996. Canberra: Commonwealth of Australia.
 The Public Service Commission of Canada's 2009–2010 Annual Report, 2010, the United Kingdom's Civil Service Commissioner's Annual Report 2009–10, and the United States Merit System Protection Board, Merit System Principles provide information on merit-related issues within the respective public services.
 The State of the Service Report 2007–08 (p. 175) reported that unsuccessful applicants for positions in the previous 12 months were nearly twice as likely to consider that merit was not routinely applied as were successful applicants.