In 2012–13 there was an increase in the number of applications for review compared with 2011–12, but a fall in total workload reflecting the lower number of cases on hand at the start of the year compared with the start of last year. The number of promotion review applications and requests for fee-for-service activities within the APS continued to decrease. The review function (excluding promotion reviews) came close to meeting its statutory target for timeliness for the first time in three years. All promotion reviews were conducted within target time.
Review of action performance
Last year the Merit Protection Commissioner was optimistic that there would be a significant improvement in performance in the timeliness of reviews (excluding promotion reviews). This year’s performance is pleasing as the proportion of reviews of actions completed within 14 weeks was only 0.5% below the target of 70%—in practice this amounts to one case being over the target.
This year’s figure of 69.5% completed within 14 weeks for the 82 finalised reviews compares favourably with 18% and 39.6% in the previous two financial years. At the same time the average time taken to complete reviews has fallen to 20.7 weeks compared to 37 weeks in 2011–12. A large proportion of reviews were completed in less than 17 weeks. The average time taken for the 57 reviews completed in time was 11 weeks.
The improvement in timeliness is attributable to a number of factors, including a decline in the total number of reviews handled. The capability and the confidence of the review team with their role have grown enormously and continue to grow. In addition, work undertaken in recent years to streamline the function and to develop staff has come to fruition, resulting in increased productivity. The work in improving timeliness was acknowledged in January 2013 when staff supporting the Merit Protection Commissioner’s functions in the review and policy teams of the Ethics Group were awarded Australia Day medals.
There were 60 cases carried over from 2011–12 compared with 141 cases carried over from 2010–11. Only one of the 60 cases carried over was not finalised in 2012–13. Of the 52 cases carried over to 2013–14, 96% were still within the target date for completion and 25% were on hand for less than four weeks.
The time it takes to finalise cases is also influenced by the level and complexity of the applications for review and the time it takes to gather relevant information from agencies and applicants. Of the reviews finalised in 2012–13, on average 30% of the time between the date an application was received and the date of the decision was spent ‘on hold’. Time spent ‘on hold’ is time waiting for some event outside the control of the Merit Protection Commissioner to occur before the case can be finalised and is not counted towards overall time taken to finalise a case. Delays in agencies providing files or additional papers accounted for 62% of the ‘on hold’ time. This is an area where small improvements by agencies could contribute to faster resolution of employment disputes.
There were 41 more applications for review received in 2012–13 than in 2011–12—a 27% increase. Applications for review of determinations of breaches of the APS Code of Conduct
and/or sanctions imposed fell again this year (by 16%), while the number of primary reviews other than Code of Conduct matters remained small.
The area where there has been most change is in applications for secondary review with a 55% increase (130 in 2012–13 compared to 84 in 2011–12). The subject matter of these reviews covered a range of issues. However, 43% of finalised secondary reviews concerned decisions about aspects of performance management. It is unclear what is driving the trend in these applications, but it may reflect an increased focus by agencies on actively managing unsatisfactory performance.
During the year, 39 reviews lapsed or were withdrawn, compared to 43 in 2011–12. The main reason for reviews lapsing is the applicant leaving APS employment either through resignation or because their employment was terminated by their agency. On average, in 2012–13, staff spent
11 weeks working on a case before it was withdrawn.
Assessment of review applications to determine reviewability also takes time. Thirty-one per cent of all review applications received and on hand were not accepted—similar to 2011–12.
In 23 cases this year, the Merit Protection Commissioner’s delegates recommended that the agency’s decision be varied or set aside. This represented 28% of the 82 finalised cases, a similar proportion to the previous year. As in previous years, the majority of these recommendations (60%) were made in reviews of determinations of breaches of the Code of Conduct and/or the imposition of a sanction.
In one case (not a Code of Conduct matter) a delegate was able to facilitate a negotiated outcome between the agency and the employee to resolve the complaint. In this instance it was apparent from the application that the agency had not followed its own procedures and had failed to address this in the primary review. While alternative dispute resolution is an option the office of the Merit Protection Commissioner will explore, it can be difficult to put into practice at the secondary review stage because, by that time, the parties to a review often hold entrenched views about the matter. In addition, some reviews are not suitable for mediation by their nature, such as when the facts of the case mean that a decision is not open to compromise.
If the Merit Protection Commissioner is not satisfied with an agency’s response to her delegate’s review recommendations, section 33(6) of the PS Act provides that, after consulting the Public Service Minister, the Merit Protection Commissioner may provide a report to the relevant agency minister and to either or both of the Prime Minister or the Presiding Officers, in the latter cases for presentation to parliament. In 2012–13, agencies accepted the recommendations of the Merit Protection Commissioner’s delegates in all cases except one which related to a variation in a sanction. The Merit Protection Commissioner is discussing the recommendation with the agency. The expectation of the Merit Protection Commissioner is that agencies will accept the recommendations of 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.
Box M4: Review case—complaint about racial harassment
An APS employee sought review of the agency’s response to allegations that a colleague had bullied and harassed the employee, including racial harassment. The employee was concerned about the colleague’s use of language including referring to African Americans as ‘the blacks’ and using the term ‘Sambo’ during social conversations at work.
The Merit Protection Commissioner observed that the employee was offended by the use of this language but found that none of this language was directed at the employee or intended to hurt or insult the employee.
The employee argued that even though there was no intent to hurt or insult, the use of this language was nevertheless inappropriate in the workplace and constituted racial harassment. The Merit Protection Commissioner took the view that use of the term ‘the blacks’ as a descriptor of African Americans or other racial groups was not necessarily offensive. However, the use of the term ‘Sambo’ was more problematic because of its association with a racial caricature.
Following the guidance in the Commissioner’s publication Respect: Promoting a culture free from harassment and bullying in the APS, the Merit Protection Commissioner noted that whether language is offensive is not an entirely subjective matter. The context in which language is used is relevant to establishing whether a reasonable person would find it offensive. In this case, the colleague’s use of the term ‘Sambo’ was done in a neutral, factual manner, in reporting something that had occurred when the colleague was a child. In this circumstance, the Merit Protection Commissioner found that the colleague had not engaged in racial harassment of the employee.
The Merit Protection Commissioner continues to be concerned at the number of primary and secondary review cases where the recommendation of her delegate is that part, or all, of a decision be set aside because agency decision-makers have failed to allow the employee an opportunity to be heard or to adhere to agency procedures. Having a good understanding of the principles of administrative decision-making when taking employment decisions, including those that have a substantial impact on an employee, such as determinations of breaches of the Code of Conduct or a decision to reduce an employee’s classification because of unsatisfactory performance, is crucial. Some case examples have been highlighted in this report and the Merit Protection Commissioner intends to draw upon such cases in discussions with agencies to promote better decision-making.
Promotion review performance
In 2012–13 all promotion reviews were completed within the target timeframe of either 8 or 12 weeks (compared to 95% in 2011–12 and 86% in 2010–11). One case was on hand at 30 June 2013 and was subsequently completed within eight weeks. This is the first time in recent years that this result has been achieved and reflects the professionalism of the staff of the Merit Protection Commissioner and the cooperation of agencies and review applicants. Although the result occurred in a year when fewer promotion reviews were conducted, this does not detract from the achievement.
The number of promotion review cases received (44) and the number of cases reviewed (30) fell by 46% and 50% respectively, when compared with 2011–12. While the number of reviews fell, the average size of a promotion review (5.3 parties) was similar to the previous year (5.4 parties).
In 2012–13, the number of promotion decisions varied fell to one from seven in 2011–12. This represents 0.6% of the 174 promotion decisions considered and is well outside the range of 2–5% of varied decisions over the last seven years.
In 2012–13, the Merit Protection Commissioner received six whistleblower reports compared to nine in 2011–12. The Merit Protection Commissioner finalised four cases during the year, including the two cases carried over from the previous year. One inquiry was conducted which largely concerned a dispute about the handling of an employee’s health issues and found that there was no evidence to support the employee’s allegations of improper treatment. There were four cases on hand at 30 June 2013 that were lodged between April and June 2013. The target of 70% of reports responded to within six weeks and with any further investigations conducted promptly was largely met. All reports were acknowledged within six weeks.
Independent Selection Advisory Committees and fee-for-service activity
Agency demand for fee-for-service functions decreased again in 2012–13. This is likely to reflect the downward pressure on agency budgets and the overall downturn in APS recruitment.
The number of requests for Independent Selection Advisory Committee (ISACs) fell by 62% to 14 in 2012–13, with six agencies using ISACs (the same number as last year). While most ISACs were convened in two agencies—the Department of Agriculture, Fisheries and Forestry and the Department of Defence—the largest recruitment exercises were in the Australian Taxation Office, which averaged over 800 candidates per ISAC.
Other fee-for-service work—mainly independent selection panels for the Australian Federal Police—showed a small increase in 2012–13 compared to the previous year (9%).