This year there was an almost 30% reduction in applications for review over the previous year. The reduction was proportional across all categories of review.
The reduction experienced in 2014–15 was consistent with the pattern of normal variability in annual application rates experienced over the last eight years. Figure M1 shows the trends in review casework over the last eight years. The reduction in applications for review has resulted in a 36.5% decrease in the number of cases carried over into 2015–16.
Figure M1: Trends in review caseload, 2007–08 to 2014–15
There was also a significant fall in the number of promotion reviews, although this was reversed in the last two months of the financial year.
There was also a decrease in demand for the Merit Protection Commissioner's fee-for-service functions.
The review function again exceeded its performance target for timeliness with 82% of cases reviewed within 14 weeks (the target is 70%). All promotion reviews were completed within target timeframes.
Review of action performance
My office conducts a 'primary' review of matters that have not been reviewed first by the agency. The majority of these are 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. For most other employment matters the agency head conducts the primary review. Where a matter has been reviewed first by the agency head, my office conducts a 'secondary' review if the employee is not satisfied with the review conducted by the agency head or has been told that the matter is not reviewable.
Table M1 in the appendix provides information on the number of applications for review (other than promotion review) received, and reviews completed, in 2014–15. The table compares results for 2014–15 with 2013–14.
In 2014–15, the Merit Protection Commissioner received 161 applications for review and carried over 52 cases from the previous year. This represents a 29.5% decrease in applications, and a 23.6% decrease in the total number of cases handled, compared with 2013–14. Applications for reviews of Code of Conduct decisions decreased by 25% and for secondary reviews by 29%. Other categories of review decreased by 44% (10 compared to 18 in 2013–14).
While the number of applications was down, the number of cases reviewed was consistent with previous years. A total of 180 cases were finalised in 2014–15, of which 89 were reviewed on the merits. The remainder of the finalised cases were ruled ineligible for review as a result of a decision made under the Regulations. Of the 52 cases carried over from 2013–14, all were finalised in 2014–15.
Table M2 in the appendix provides information on the timeliness with which the review function was performed. The table compare results for 2014–15 with 2013–14.
In 2014–15, the review function exceeded its performance target of completing 70% of reviews within 14 weeks. As indicated above, the percentage of cases completed within target times was 82%. While this is lower than the 95% achieved in 2013–14, it is still a significant achievement.
The average time taken to finalise a case was 15 weeks compared to just less than 13 weeks in 2013–14. The average time taken to finalise Code of Conduct cases increased by 2.2 weeks (17%) and by 1.7 weeks (13%) for secondary reviews. Five reviews (two Code and three secondary reviews) which took over 28 weeks to finalise have influenced average case completion times—if these five cases are excluded the average time was just over 13 weeks.
At 1 July 2015, 85% of the 33 cases carried over to 2015–16 were still within the target date for completion.
A case is usually put 'on hold' when the review is not able to progress because my office is waiting for information or because of the unavailability of parties to the review. Most of these events are outside the control of my office, an exception being the scheduled office closure over Christmas. Time 'on hold' is not counted towards timeliness statistics.
In 2014–15, on average 35% of the time between the date an application was received and the date the review was finalised was spent 'on hold'—i.e. the review was not being actively worked on. The average time 'on hold' for a finalised review was eight weeks. These delays may contribute to a 'lack of timeliness' perception in the applicant feedback questionnaire. Of the respondents to the survey, 86% were dissatisfied with the time taken to review their matter.
The majority of time 'on hold' arises from the agency's actions or inactions. This is an area where small improvements by agencies could contribute to faster resolution of cases, particularly with regard to secondary reviews. Work done by the review team to improve checklists for human resource practitioners should assist agencies to provide relevant information in a timely way. Figure M2 shows the reasons for delays.
During the year, 19 reviews lapsed or were withdrawn, compared to 45 in 2014–15. The main reason for reviews lapsing is the applicant leaving APS employment. The average amount of time a withdrawn or lapsed review was under consideration was 5.6 weeks in 2014–15.
Figure M2: Reasons for delays in reviews, 2014–15
Applications not accepted for review
In 2014–15, 34% of applications received, or carried over from 2013–14, were not accepted for review, compared to 35% in 2013–14. These cases took an average of nearly nine weeks of staff time before being closed.
The main reasons for not accepting 13 reviews of Code of Conduct decisions in 2014–15 were that they were out of time or review was not justified as the applicant provided insufficient reasons to justify a review. For non-Code reviews, the main reasons for not accepting an application were:
- the applicant needed to first lodge an application with their agency
- the application was out of time
- review was not justified in all the circumstances such as that the agency had already addressed the employee's concerns and nothing could be achieved by reviewing the matter further
- the application was about a matter that fell into one of the categories of non-reviewable actions set out in Schedule 1 to the Regulations or the employee had resigned
- the grounds in the Regulations for the Merit Protection Commissioner to conduct a primary review were not met.
Number of reviews by agency
Table M3 in the appendix details the number of reviews by agency.
The agencies with the highest number of applications for review were the larger employers, namely the Department of Human Services (DHS), the Department of Defence and the Australian Taxation Office (ATO). These accounted for almost two-thirds of the completed reviews (64%), a similar result to the previous three years. However, while the number of DHS cases increased by 37.5%, the number of review applications made by Defence employees fell by 50% compared to 2013–14. In particular, Code of Conduct reviews from the Department of Defence showed a significant decrease. At the same time, the number of applications for review from ATO employees increased by 71%; all of this growth was in Code of Conduct reviews.
The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld.
In 2014–15, 82% of the finalised reviews (89) resulted in a recommendation to the agency head to uphold the original agency decision, compared to 80% in 2013–14. However, a higher proportion of secondary reviews were upheld (90%) compared with reviews of Code of Conduct decisions (74.5% upheld). This is because the primary review conducted by agencies assists to correct errors in decisions.
Sixty-eight percent of breach decisions reviewed were upheld, compared to 81% of sanction decisions reviewed.
If I am not satisfied with an agency's response to my delegate's recommendations, section 33(6) of the PS Act provides that, after consulting the Public Service Minister, I may provide a report to the relevant agency minister and to either or both of the Prime Minister or the Presiding Officers. Agencies accepted review outcomes, or I was satisfied with the agency response, in all but three cases in 2014–15. In these three cases, agencies had not responded by the end of the reporting period to recommendations made for cases finalised in June 2015.
Recommendations to vary or set aside an agency decision are not made lightly and indicate significant problems with the quality and/or fairness of the original decision. My expectation is that agencies will accept the recommendations of my delegates and that there would need to be exceptional circumstances to explain why a recommendation based on an independent and expert assessment is not accepted.
The types of employment matters for which review is sought are shown in Figure M3.
In 2014–15, the number of Code of Conduct cases as a proportion of the number of cases reviewed increased to 46% from 41% in the last two years. Conditions of employment accounted for 43% of all non-Code review cases. Other significant changes were a decrease of 7% in the number of reviews concerning performance management outcomes and an absence of any cases in which bullying or harassment was the main subject of the review (in contrast with 7% of cases in 2013–14).
Table M4 in the appendix shows the nature of complaints within the broad categories for the non-Code review cases. The main complaint areas were allowances/other payments, performance appraisal, attendance/leave, other entitlements, hours of work and misconduct procedures, which made up over half of cases reviewed.
Figure M3: Cases reviewed by subject, 2014–15
Breaches of the code of conduct
APS employees who are found to have breached the Code of Conduct can apply to the Merit Protection Commissioner for a review of the determination that there has been a breach, and any sanction imposed for that breach. There were 59 applications for review of a decision that an employee had breached the Code of Conduct and/or the sanction, and 28 cases on hand at the start of the year. Forty-seven cases were reviewed during the year involving 35 employees.
There were 19 requests for review of both the breach and the sanction. Three employees sought review of the breach decision only. In one case an application for review of the sanction was out of time; in the other two cases the agencies chose to await the outcome of the review before imposing a sanction.
Thirteen employees sought review of the sanction only, four because they failed to make applications for review of a breach determination in time.
Based on data in Commission's annual State of the Service Report over the last two years, it is estimated that between 7% and 10% of agency Code of Conduct decisions are reviewed. Review by my office provides an assurance check on this important area of employment decision-making.
Allegations of discourteous and disrespectful behaviour continued to be the most significant factor in the Code of Conduct review caseload in 2014–15. There were 20 cases (57% of finalised cases) where this was a significant reason for the agency investigating the employee for suspected misconduct.
There were six cases where Executive Level 2 staff were found to have engaged in misconduct because of their behaviour towards team members and colleagues. The review of one of these cases was not finalised because the employee accepted a redundancy. In two cases the behaviours were sufficiently serious for the employee to be reduced in classification. In both these cases, the findings and sanction were upheld on review. However, there were two cases where the behaviours did not warrant a misconduct investigation. In these cases, my delegates recommended that the decisions be set aside, one because of significant procedural defects and one because of an absence of evidence of misconduct. In both these cases, it would have been preferable to manage concerns about the employees' behaviour through less formal interventions or through the performance management framework.
There were two cases of junior employees failing to show respect and courtesy to managers trying to manage their behaviour and performance. In both these cases, the findings of breach and the sanction decision were upheld.
There were two cases of employees, who were also clients of their agency, failing to show courtesy and respect to client service staff. These cases are discussed in Box M7. Two other cases involved sending inappropriate emails or messages and two more involved inappropriate use of social media.
Four cases of unauthorised access to client records in agency databases were reviewed, including access to the records of the review applicant's family members. Three of these decisions were upheld, but my delegate recommended that the finding of breach be set aside in one case where the evidence indicated that the employee had not browsed a client record.
Three cases involving a conflict of interest were reviewed—one involving outside employment, one regarding not disclosing a personal relationship in the workplace and one where an employee was also a client of the agency.
There were five cases involving failure to follow a direction, including two employees who received directions about their attendance and one employee directed to attend a medical examination. False recording of attendance also featured in one case, as did inadvertent release of personal information that breached privacy.
Promotion review performance
Figure M4 shows how the promotion review casework has fluctuated over the last eight years. Despite an increase in 2009–10 and 2010–11, the overall trend has been a decline in applications and the number of promotion review committees (PRCs) convened.
Figure M4: Trends in promotion review caseload, 2007–08 to 2014–15
In 2014–15, the promotion review function continued to be affected by the interim recruitment arrangements introduced in November 2013. These arrangements controlled recruitment and focused on the redeployment of existing staff.
The interim recruitment arrangements, together with agency actions to reduce or stabilise their workforce, significantly affected the number of applications for promotion review over the year. There were only four PRC constituted and finalised in July–December and 10 finalised in January–June.
In the last six weeks of the year 30 applications were received. Twenty-nine of these resulted from a large recruitment campaign by DHS. At the end of June there were 23 promotion reviews underway. Table M5 in the appendix sets out the promotion review caseload for 2014–15.
Work undertaken over previous years to streamline processes has ensured that promotion reviews are conducted quickly so as not to significantly delay agency staff selection processes. Over the last four years the promotion review function has exceeded its performance targets for timeliness. All promotion reviews in 2014–15 were conducted within the target timeframe of either eight or 12 weeks. All reviews carried forward into 2015–16 were within the target timeframe for completion.
The number of promotion review cases received (47) was similar to the last two years (43 and 44, respectively). However, the number of cases reviewed was significantly lower as the bulk of cases were received late in the year and are still to be finalised.
Applications for review were received in relation to promotion decisions made in eight agencies. The two agencies with three or more applications for review are identified in Table M6 in the appendix. Six other agencies with one application for review are not separately identified.
PRCs varied only one of the 41 promotions reviewed—a rate of 2.4%. The rate of variation in recent years has ranged between 0.6% and 5%. While the number of decisions varied is low, promotion reviews provide an assurance mechanism that merit is being applied to promotion decisions, as required by the APS Employment Principles. This is a cost-effective way to audit recruitment activity and protect against patronage and favouritism. Merit-based recruitment is essential to good quality outcomes, productivity and employee engagement. The agency representative on the committee also gains feedback on the quality of agency selection processes.
In 2014–15, the number of applications for promotion review considered by individual PRCs was lower than in previous years, reflecting smaller selection processes. The maximum number of promotions considered by a PRC in 2014–15 was nine, compared with 88 in 2013–14.
Independent Selection Advisory Committees and fee-for-service activity
The major fee-for-service activity is the establishment of Independent Selection Advisory Committees (ISACs). Agencies may choose to use ISACs for a variety of reasons. The most common ones are to provide assurance about the fairness and integrity of their recruitment decisions and to avoid delays in placing staff resulting from review of promotion decisions.
Agency demand for ISACs decreased in 2014–15. This reflected the downward pressure on agency budgets and the overall downturn in APS recruitment.
Table M7 in the appendix provides information on ISAC activity for 2014–15 compared with 2013–14. The two requests on hand were received at the end of the year.
Other fee-for-service work
Other fee-for-service conducted by my office can include staff selection services and investigating grievances for non-APS agencies. In recent years, this work has consisted of providing members of selection panels for the Australian Federal Police. In 2014–15 these services were provided through the memorandum of understanding with the Australian Public Service Commissioner.
Investigation of complaints by former employees
Regulation 7.2 provides that the Merit Protection Commissioner may investigate a complaint by a former APS employee that relates to the employee's final entitlements on separation from the APS.
In 2014–15, one investigation was undertaken and the agency decision upheld. Two requests were not accepted as the matters related to issues that arose during the review applicant's employment.
Inquiries into breaches of the Code of Conduct
Section 50A of the PS Act provides that the Merit Protection Commissioner may inquire into and determine whether an APS employee or former employee has breached the Code of Conduct. The request is made by the agency head and must have the written agreement of the APS employee or former employee. This work is done on a fee-for-service basis. No requests were received during the reporting period.