The Merit Protection Commissioner is an independent statutory office holder with functions aimed at ensuring accountability and integrity in APS employment decision making. In particular, the Merit Protection Commissioner is responsible for the following:
- conducting independent reviews of employment actions
- providing recruitment services and Code of Conduct inquiry services to APS agencies
- supporting public sector agencies more broadly with employment-related services on a fee-for-service basis
- conducting special inquiries.
Ms Linda Waugh took up office as Merit Protection Commissioner on 25 June 2018 following the resignation of Ms Annwyn Godwin, which took effect on 31 December 2017. Mr Mark Davidson acted as Merit Protection Commissioner until Ms Waugh’s appointment.
During 2017–18 the Office received 166 applications for review of employment actions, along with applications for review of 97 agency decisions to promote one or more employees. Five Code of Conduct inquiries were concluded and 19 Independent Selection Advisory Committees were finalised.
We have a performance target of completing 75% of reviews of employment actions within 14 weeks from the date of receipt. In 2017–18 this target was met: 77.3% of review of action cases were finalised within the target period. This is a good result in view of the number of large, complex cases and staff movements within the Office.
The Corporate Statement and Priorities for the Office of the Merit Protection Commissioner for 2017–18 is published on the Merit Protection Commissioner’s website. The focus for the reporting year was to:
- deliver high-quality review, inquiry and employment services in a timely manner
- work with agencies to improve employment decision making through feedback on review decisions and presentations to staff and networks
- advise the Australian Public Service Commissioner of gaps in the legislative and policy framework for review
- improve the productivity of the Office of the Merit Protection Commissioner
- ensure compliance with the Notifiable Data Breaches Scheme and the Privacy Code.
We continued the Office’s outreach to APS agencies, human resources practitioners and employees on the lessons learnt from the review caseload:
- The acting Merit Protection Commissioner arranged a meeting with Senior Executives with responsibility for integrity and staff conduct from the four largest APS agencies to discuss culture and practice in relation to employee behaviour and misconduct.
- The Merit Protection Commissioner established a Sydney-based Review of Action and Code of Conduct Community of Practice for APS practitioners. The group held two meetings in 2017–18.
- The Merit Protection Commissioner made a presentation entitled ‘The Right Way to Investigate Wrongdoing’ to the APS Small Agencies Forum.
- In April 2018 a staff member gave a presentation to the Canberra-based APS Code of Conduct Practitioners’ Network on the subject of evidence, making findings of fact and conflicts of interest.
- The Merit Protection Commissioner made presentations on the APS Values, Employment Principles and Ethics to orientation sessions for officers newly promoted to the Senior Executive Service.
- In November 2017 Mr Davidson represented the Merit Protection Commissioner and made a presentation to the National Human Resources Development Institute 2017 Leaders Forum in Seoul. The forum’s theme was Public Sector HR Challenges in the Era of Globalisation.
The Merit Protection Commissioner contributes to the ethics and integrity framework as a member of the Integrity Agencies Group. The group enables information sharing and collaboration between statutory office holders and agencies with responsibility for integrity matters. The Acting Merit Protection Commissioner attended the meeting held in April 2018.
During the reporting year we met with senior executives in agencies to discuss specific review outcomes, including outcomes that raised broader issues about agency policy and practice.
The Merit Protection Commissioner brought a number of policy and legislative matters arising from the review casework to the attention of the Australian Public Service Commissioner. These are discussed in Box M1.
We have improved our Office’s service by moving to electronic transactions with agencies and review applicants. Agencies are now able to lodge papers electronically, although agency firewalls have prevented this in some cases. There has been an investment in staff capability through training in administrative decision making, writing clear reasons for decisions and coaching. We continue to monitor client satisfaction by means of a survey of review applicants.
During the year we worked to ensure compliance with the Notifiable Data Breaches Scheme and the Privacy Code, using this as an opportunity to begin reviewing and updating policies. Staff received training in privacy and freedom of information.
The Merit Protection Commissioner also inquired into the conduct of the Australian Public Service Commissioner under section 50(1)(b) of the Public Service Act.
Box M1: Policy feedback provided by the Office of the Merit Protection Commissioner
During 2017–18 we provided feedback and input in relation to policy matters to the Australian Public Service Commissioner. The Merit Protection Commissioner’s staff met quarterly with staff of the Integrity Team in the Australian Public Service Commission to provide feedback from the review casework and to discuss policy initiatives.
On 18 December 2017 the former Merit Protection Commissioner, Ms Annwyn Godwin, wrote to the Australian Public Service Commissioner putting forward suggestions for amendments to Handling Misconduct: A Human Resource Practitioner’s Guide. These suggestions arose from the Merit Protection Commissioner’s review casework and observations of agency practice. They concerned the following:
- an omission in the model procedures for investigating the suspected misconduct of a former employee when some or all of that misconduct occurred while the employee was working for a different APS agency
- a recommendation that greater consideration be given to procedural fairness considerations arising from concurrent misconduct and criminal investigations
- further guidance to agencies on calculating fines when fines are imposed on employees working part-time hours.
The Australian Public Service Commission drew agencies’ attention to the second suggestion in the February 2018 edition of APS News.
The Merit Protection Commissioner also provided comments on the proposal for a ‘short-form’ procedure for investigating suspected misconduct and wrote to the director of the Integrity Team about areas where agency misconduct practice could be strengthened.