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The Merit Protection Commissioner is established under section 49 of the Public Service Act. Ms Linda Waugh was appointed to the role on 25 June 2018. Mr Bruce Barbour acted in the role of Merit Protection Commissioner from 28 June to 20 July 2018.
Ms Waugh is also the Parliamentary Service Merit Protection Commissioner. The duties and functions of this role mirror those of the Merit Protection Commissioner under the Public Service Act, and are the subject of a separate annual report.
The Merit Protection Commissioner is co-located with the Australian Public Service Commission. The Merit Protection Commissioner’s functions are set out in sections 50 and 50A of the Public Service Act and Parts 2, 4, 5 and 7 of the Public Service Regulations. The following sections outline each function in detail.
Review of actions scheme
Section 33 of the Public Service Act provides an APS employee an entitlement to review, in accordance with the regulations, of any APS action that relates to his or her APS employment (excluding termination). Agencies are responsible for internal reviews, and the Merit Protection Commissioner provides independent and external merit-based reviews.
The Australian Government general policy (Public Service Regulation 5.1) about the review of actions scheme is that:
- APS agencies should achieve and maintain workplaces that encourage productive and harmonious working environments
- there should be a fair system of review of APS actions
- APS employee’s concerns should be dealt with quickly, impartially and fairly
- the review process should be consistent with the use of alternative dispute resolution methods to reach satisfactory outcomes where appropriate
- nothing in the operation of the scheme should prevent an application for review from being resolved by conciliation or other means at any time before the review process is completed.
The Merit Protection Commissioner can review three broad categories of employment-related actions within the scheme:
- Review of Promotion decisions—an ongoing APS employee who applies for promotion to APS levels 1 to 6 and is unsuccessful, and where the person recommended for promotion is another APS employee, may apply for a full merits review of the promotion decision. A Merit Protection Commissioner promotion review decision is binding on the relevant agency head.
- Primary review of a determination that an APS employee has breached the Code of Conduct, a sanction decision, or where it is not appropriate for the agency to do an internal agency review (for example, if the agency head was directly involved in the action, it is not appropriate due to the seriousness or sensitivity of the action, or the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action). This is called a primary review because the APS employee does not have to seek an internal agency review. Rather, they can apply directly to the Merit Protection Commissioner for review. Any APS employee at classifications below Senior Executive Service level can seek a primary review. The Merit Protection Commissioner can recommend the agency decision be upheld, varied or set aside.
- Secondary review of any other employment-related action. This is called a secondary review because the APS employee must seek an internal review by their agency before applying to the Merit Protection Commissioner. An application can also be made when an agency head has rejected the APS employee’s application for internal/primary review on the ground that it is not a reviewable action. Examples include performance review ratings, applications for flexible working arrangements and disputes over the type of leave applied for. Any APS employee at classifications below Senior Executive Service level can seek a secondary review. The Merit Protection Commissioner can recommend the agency decision be upheld, varied or set aside.
The Merit Protection Commissioner can conduct inquiries into:
- public interest disclosures that relate to alleged breaches of the Code of Conduct
- alleged breaches of the Code of Conduct by the Australian Public Service Commissioner
- an APS action at the request of the Public Service Minister
- alleged breaches of the Code of Conduct by an APS employee, or a former APS employee.
The Merit Protection Commissioner may also investigate a complaint by a former APS employee related to their entitlements on separation from the APS.
Statutory functions provided on fee for service basis
Under section 50A of the Public Service Act, the Merit Protection Commissioner may inquire into and determine, on a fee for service basis, whether an APS employee or a former employee has breached the Code of Conduct, if a request is made by the
agency head. The inquiry must have the written agreement of the employee or former employee. A finding or any action undertaken during an inquiry by the Merit Protection Commissioner cannot be subject of review under the review of actions scheme.
If requested, the Merit Protection Commissioner may establish Independent Selection Advisory Committees to help with agencies’ recruitment processes. These committees are independent, three-member bodies that perform a staff selection exercise on behalf of an agency, and make recommendations about the relative suitability of candidates for jobs at the APS 1 to 6 classifications. The convenors are employees working for the Merit Protection Commissioner. A promotion decision by an Independent Selection Advisory Committee cannot be subject of promotion review under the review of actions scheme.
Non-APS fee for service work
Under section 50(1)(e) of the Public Service Act, the Merit Protection Commissioner can perform other such functions as prescribed by the regulations, and charge fees on behalf of the Commonwealth for those other functions (s. 50(3)). Regulation 7.4 lists those functions as:
- reviewing action that relates to the employment of a person by the person or body
- investigating action that relates to the employment of a person by the person or body
- providing advice that relates to the employment of a person by the person or body
- providing services in connection with selection committees used by the person or body for the selection or employment of a person
- providing other services that relate to the employment of a person.
These can be for any non-APS entity including:
- Commonwealth authorities to which the Public Service Act does not apply
- state and territory departments and authorities
- local government bodies
- private corporations and bodies.
The structure of the Merit Protection Commissioner’s office is shown in the diagram below.
Figure 1: Structure of the office of the Merit Protection Commissioner
We also engage a small number of casual staff on an as-needed basis (usually for a specific activity such as convening a Promotion Review Committee or conducting a Code of Conduct investigation).