Merit Protection Commissioner
During my nine-and-a-half years as Merit Protection Commissioner I have seen big changes to the Australian Public Service (APS) and the environment in which we operate. My role and my Office (OMPC) have adapted to reflect these changes.
During times of change and uncertainty, there is a greater emphasis on trust and integrity. The APS is a stable institution on which the Australian public can rely, but the legitimacy entrusted to it by the government and the public should not be taken for granted. The APS is fortunate to have a number of mature public institutions—commonly known as the integrity agencies—to oversee its integrity, accountability and probity. In addition to my Office, these institutions include the Auditor-General, the Integrity Commissioner, the Australian Public Service Commissioner, the Privacy Commissioner, the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. In the past decade I have worked closely with all these agencies to share insights and perspectives.
Individually and collectively, integrity agencies and other statutory officers have unique insights into the workings of the APS that may not be obvious to line or central policy agencies. The APS should take note of our observations on trends, issues and learnings and value our contribution when formulating policy or developing better practice. Conversely, statutory office holders have a responsibility to use their roles wisely and to the long-term benefit of good public administration.
Integrity, including merit, is integral to how the APS operates. Promoting and upholding merit, in its widest sense, is where my Office and I provide value.
Balancing efficiency and integrity
Over the past 10 years, there has been an increased emphasis on improving the flexibility of APS operations and the deployment of staff. Major studies—such as the Committee of Audit report in 2014,1 the Belcher report2 and the McPhee report3 in 2015—have referred to unnecessary prescription in the employment framework. At the same time, the workplace relations framework has required APS agencies to negotiate enterprise agreements that enable them to operate more efficiently and flexibly. This includes the removal of restrictive clauses and onerous process requirements. APS agencies are continuing to focus on reviewing core operational priorities, but are increasingly contracting out non-core aspects of their work. The use of technology is also growing.
Increased flexibility and less red tape should lead to a more cost-effective, more streamlined APS. These are admirable aspirations, but there are risks that need to be acknowledged and mitigated.
When considering changes to the law, policy-makers need to consider the original purpose behind particular provisions. In modernising, the APS needs to:
- understand ‘why’ a particular regulation or piece of legislation was originally put in place
- assess if the ‘why’ remains relevant
- identify what tools and techniques are available to update and modernise the APS.
For example, the concept of merit was introduced to counter nepotism and cronyism (the ‘why’). Merit, and what it represents, is the key Employment Principle in the APS. We must operate without patronage, nepotism or favouritism to sustain public confidence and trust by employing and promoting the most capable people. The relevance of the ‘why’ is implicitly understood.
Recruitment and promotion decisions are one of the clearest ways to send organisational and cultural messages about what behaviours are valued and rewarded. I believe promotion reviews are an important and undervalued assurance mechanism. They make managers reflect on the behaviours they are rewarding by their promotion decisions.
Qualitative data confirms that our investment in working with agencies which receive large numbers of promotion reviews has reaped benefits. The overturn rate of 0.5% of promotion decisions is the lowest since the Public Service Act 1999 (the Public Service Act) was introduced. However, the agencies that experienced promotion reviews this year were generally large, geographically dispersed, and involved in service delivery. We have limited line of sight on the application of merit in small to medium, policy or regulatory agencies since they are under-represented in the promotion review caseload.
As promotion reviews are not evenly spread across agencies, I cannot confirm whether merit is consistently applied across the APS. Drawing on my observations and on overseas experience, I believe there is scope to move to an audit assurance model for reviewing recruitment and promotion decisions. In doing so we can extend the fundamental integrity protection against patronage, nepotism and favouritism provided by the existing review process while improving the cost and efficiency of process.
Managers have said to me that just knowing their decision could be subject to my oversight has influenced their decision-making processes.
(Annwyn Godwin, June 2017)
The APS must demonstrate:
- apolitical service to the government of the day
- high ethical standards with no tolerance for fraud and corruption
- fair and consistent delivery of high-quality public services, without discrimination or favouritism
- open and transparent accountability for expenditure of taxpayers’ money
- clear and comprehensive explanations for actions and decisions to Parliament arising from community and media scrutiny.
My Office has responded to these principles through a combination of:
- making doing the right thing easy—reducing compliance costs and improving ease of access and understanding
- bringing stakeholders with us—addressing the immediate issue and providing sustainable solutions
- providing integrity of message and delivery—we are exemplars of what we say.
The Government’s reforms of the Public Service Act and Regulations in 2013 streamlined reviews of employment actions. My Office has applied the legislation flexibly to ensure that concerns are dealt with quickly and fairly and to promote consistency of agency decision-making.
Too often the process of continuous improvement concentrates on policies, practices and technology. It overlooks the continuing need to improve professional understanding, flexibility and judgment. Without these skills and capabilities the best technical systems fail to realise their full potential. It takes time and persistence to build credibility, trust and integrity. In a ‘throw-away’ society, the value of varied life and work experience and the nuances of complex judgement are considered expendable—but not in the OMPC. My Office is an example of what can happen when technical and professional improvements occur at the same time.
In 2008 I recognised that technical improvements were needed. Some policies, procedures and delegations were out of date, our technology needed updating, our decision-making was inconsistent because the function was spread across offices, and standards (time and quality) were not being met. These issues were addressed.
Now in 2017 the OMPC demonstrates flexible work practices that enhance our performance and professionalism. Of our core 12 staff, four job-share, and wherever possible we supplement our work through panels of staff trained and mentored by my Office. Data-based project management of casework and working remotely have quietly revolutionised the Office. Our internal timeframes have continually been met since 2013–14.
We have removed unnecessary administrative steps and have concentrated on sound reasoning and plain English writing. We have revised the website and our correspondence so they are easier to understand. In response to recent feedback we will focus on better managing review expectations and being clearer about review processes. In response to the needs of our clients I now use the internet and social media. We are exemplars of what we say.
Our reputation for quality, credibility and expertise has attracted interest elsewhere. In recent years I have been asked to assist other jurisdictions, including the Norfolk Island Government, and to address many international delegations. I have represented the Australian Public Service Commissioner at the South Pacific Public Service Commissioner Conference and helped the OECD on an integrity review of the Mexican public service. In June 2017 I was invited to attend the China Australia Dialogue on Public Administration Workshop in Hong Kong and to present a paper entitled ‘Public accountability and performance for non-core agencies: lessons learned from Australia’.
Working with agencies to add value
I work with agencies to encourage productive and harmonious working environments. Our reviews help employees understand management decisions and manage expectations about what can reasonably be expected of their managers and their agency. Our intervention can prevent employment disputes from becoming entrenched and help disgruntled employees become engaged and contributing members of the workforce. As I noted in my annual report last year, I want employees and managers to learn from mistakes and to create the type of workplace envisaged by the APS Values.
The way I work with agencies has also changed. In the past few years, I have promoted the review process as a way to support an engaged and productive workplace, and have encouraged agencies to use complaint management to identify systemic deficiencies in policy or practice. At the same time, rather than mainly focusing on the outcome of individual cases, I have placed a greater focus on improving people management practice across the APS. I am a trusted adviser to senior echelons of the APS.
My focus means highlighting issues with policies, and interpretation of agency enterprise agreements that become evident in casework. We work flexibly with agencies, targeting different management levels. For example, in response to agency requests we are examining how we can better use de-identified case summaries to guide agencies and better manage employees’ expectations of the review process.
We are also a source of reliable advice. The staff turnover in corporate areas within agencies means that policies and practices often need explaining—for example, merit in recruitment, effective employee case-management and integrity risks. Managers have acknowledged that our consistency of decision-making and the case studies on our website have given them confidence to take action and better understand their responsibilities and good practice. Employees and agencies have identified the impartiality and expertise of the Merit Protection Commissioner as being important factors in allowing my Office to undertake investigations into breaches of the Code of Conduct where the individual must relinquish their Public Service Act review rights.
I am giving greater focus to presenting at forums and engaging in workshops when working with agencies. Smaller agencies, in particular, struggle to maintain capability and wherever possible, these agencies are a priority. For example, smaller agencies are increasingly requesting assistance with both operational (Code of Conduct inquiries) and strategic (alignment of policies on performance management, bullying and harassment and Code of Conduct) issues. My observations and input, and those of my delegates, are regularly sought on integrity and risks within review and employment frameworks through presentations to agencies, the Australian Government Leadership Network, small agency forums and training programs.
Box M1: Observations on the policy framework
The Merit Protection Commissioner encourages agencies to make principles-based employment decisions in the context of the broader APS policy framework.
Two policies received focus in casework during the reporting period. The first is the As One—APS Disability Employment Strategy, which produced the guide Working together: promoting mental health and wellbeing at work.4 The strategy aims to build an inclusive workplace culture for people with mental illness. Mental illness can feature in both performance management and Code of Conduct matters. There is a single standard of behaviour for APS employees. The usual approach during a Code of Conduct investigation is to consider mental illness as a possible mitigating factor when making a decision on sanction.
However, in keeping with the strategy, agencies are encouraged to consider whether a Code of Conduct investigation is the most effective and appropriate response to inappropriate behaviour resulting from mental illness. In some cases, working with the employee and their treating doctors to assist the employee in managing the impact of their illness on the workplace may be a more effective and appropriate response. These cases might include those where no harm has been done to the agency by the conduct, the behaviour is uncharacteristic and the employee had not, at the time of the behaviour, had a diagnosis of mental illness.
The second policy is the Gender Equality Strategy;5 we need to consider whether longstanding practices may require reconsideration in its light.
Agencies have discretion, in exceptional circumstances, to grant paid maternity leave when an employee is on leave without pay. Agencies generally exercise this discretion only in limited circumstances—for example, where the leave without pay is in the interests of the Commonwealth or the agency was in some way the cause of the employee’s loss of entitlement.
This cautious approach to the exercise of the discretion appears in part to reflect past experience and practice, including concerns about employees structuring their leave arrangements so that they obtain an entitlement to paid leave.
The APS Gender Equality Strategy focuses on supportive cultures and flexible working arrangements. It provides a framework for delegates to look more flexibly at the circumstances of individual employees. Paid maternity leave is available only to women who are working. However, in order to balance work and family commitments, APS employees may both be on leave without pay but be working under other contractual arrangements for the Commonwealth. The changing nature of the workplace raises the question of whether delegates should give greater consideration to the beneficial application of the discretion where women are still engaged in employment for the Commonwealth while they are on leave without pay to meet family commitments.
Box M2: Application of the legislative framework
The following issues have arisen from the casework.
Where there is an express power in the legislation for an agency to do something—for example direct an employee to undertake a fitness for duty assessment (Regulation 3.2)—agencies are not able to use the general employer powers in section 20 of the Public Service Act to achieve the same end.
Handling misconduct advises that agencies should calculate fines, as a sanction for misconduct, for part-time employees based on the salary they receive for the ‘ordinary hours’ in their part-time work agreement. On this basis, the fine imposed on a part-time employee should be calculated as a percentage of the employee’s part-time salary and not on the basis of the full-time salary for the employee’s classification.
1 Towards responsible government: the report of the National Commission of Audit, National Commission of Audit, 2014.
2 Independent review of whole-of-government internal regulation, B Belcher, August 2015.
3 Unlocking potential—APS workforce management contestability review, S McPhee, December 2015.