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Review eligibility

This topic is to assist agencies in assessing the eligibility of applications for review.

Section 33 of the Public Service Act provides a broad entitlement to review.  Sub–section 33(1) provides: An APS employee is entitled to review, in accordance with the regulations, of any APS action that relates to his or her APS employment (highlight added).

This topic discusses the meaning of the following terms in the context of the entitlement to review:

  • What is APS employee?
  • What is an APS Action?
  • The action must relate to APS employment

Sub–section 33(2) provides for the Regulations to prescribe exceptions to the entitlement to review.  This topic discusses the following

  • Regulation 5.23 exceptions
  • Timeframe for making review applications
  • Other grounds for not reviewing an action

Notwithstanding the review of action provisions, agencies generally have an administrative discretion to re-consider or investigate any employment matter they wish even if the matter is not reviewable under the Public Service Act.  However, if the agency reconsiders a matter that is not reviewable under the review of actions scheme, the Merit Protection Commissioner will have no power to conduct a secondary review.

What is APS employee?

An "APS employee" is entitled to review under section 33.

An APS employee means… Comment
A current not a former employee of the APS If an APS employee resigns, or their employment is terminated, where a review application has been lodged but the review has not been completed, their review application lapses as they are no longer a person entitled to review. The Regulations make separate provision for former employees.  Former employees may apply for review of one matter only – their entitlements on separation from the Australian Public Service.  These applications must be made directly to the Merit Protection Commissioner under Regulation 7.2.
Both ongoing and non ongoing employees A person's employment status under section 22 of the Act does not affect their entitlement to seek review.
Employees who are not Senior Executive Service (SES) employees Regulation 5.22 restricts the right of review to non SES employees, ie employees in the classification levels APS1 to Executive Level 2. Employees who are acting in the SES and whose substantive classification is below the SES are able to apply for review.

What is an APS Action?

An employee is entitled to review of an "APS action".  One significant exception is termination of employment which is excluded from the review of actions scheme by sub–section 33(1) of the Act.  A decision to terminate an employee's employment is reviewable under the Fair Work Act 2009.

An APS action means… Comment
Things done or said, processes followed and/or decisions that have been made According to the Macquarie Dictionary an action is "something done; an act; a deed; conduct".
A refusal or failure to act An action includes a refusal or failure to act (sub-section 33(7) of the Act). This includes, for example, a failure to act on a complaint made by the employee or delays in making decisions. 
Action by an agency head or APS employee Regulation 5.22 restricts the entitlement to review to actions by an agency head or APS employee. This means that actions by consultants, contractors and statutory office holders working alongside APS employees are not reviewable under the review of actions scheme. However, employee's concerns about the actions of consultant, contractors and statutory office holders may still be considered in a review context.  For example, if an employee complains to an APS manager about the actions of a consultant, contractor or statutory office holder, the agency's response to that complaint may be a reviewable action. In addition, under Regulation 7.3, non SES employees may apply directly to the Merit Protection Commissioner for a review of the actions of a statutory office holder.
Action by a person in the capacity of an agency head or an APS employee See sub–section 33(7) of the Act.
This means that APS actions are actions by an agency head or APS employee as it concerns their relationship with the employee in the context of employment.

The action must relate to APS employment

An employee is entitled to review of an action that "relates to his or her APS employment", subject to any exceptions in the Regulations.

An action relating to employment means… Comment
Actions relating to the employee's employment and not someone else's employment This means that the review applicant needs to be seeking review of something in which they have a direct personal interest.  This would exclude seeking a review of actions affecting a colleague for example seeking review of an agency's handling of allegations that a colleague was harassed. However, establishing whether an employee has a direct personal interest in a matter is not always clear.  If an employee has witnessed and been affected by the bullying and harassment of a colleague, they may be able to establish sufficient direct personal interest to be eligible for review.
Actions relating to employment and not to the employee's status as a client of an APS agency For example, an APS employee who applies to Centrelink for payment of a sickness allowance is a client of that agency and not able to seek a review of actions taken by Centrelink in relation to their handling of the employee as a client.

Regulation 5.23 exceptions

Although there is a broad entitlement to review, the Act provides for the Regulations to prescribe exceptions to the entitlement to review.  Regulation 5.23 provides a number of grounds for refusing to review an action.

These are:

  • Where the review applicant has applied to have the action reviewed by
  • a Court or Tribunal which has jurisdiction to consider the review application (Regulation 5.23(2)(b).  This would include for example applications to Fair Work Australia or the Federal Court.
  • Where the action is a non-reviewable action in accordance with Schedule 1 of the Regulations (Regulation 5.23(2)(a))

[For more information see: Other grounds for not reviewing an action]

  • In the circumstances prescribed in Regulation 5.23(3), the decision maker may decide not to review.  These circumstances include when the application for review is made outside the timeframes in Regulation 5.23A

[See: Timeframe for making review applications]

Timeframe for making review applications

There are timeframes for review applications specified in Regulation 5.23A.  Where an employee makes an application for review outside these timeframes, and there are no exceptional circumstances that explain why the application was not made in time,   the decision maker may decide the action is not reviewable.

Timeframes for review applications are necessary because it becomes more difficult to review a matter and implement a satisfactory outcome as time passes.  This is because people's recollections fade or become influenced by subsequent events and circumstances move on. 

On 2 August 2010, new timeframes for making review applications were introduced.  For a year, from 2 August 2010 to 2 August 2011, two timeframes will apply to review applications.  If the action occurred prior to 2 August 2010, the timeframe is one year from the date of the action to make an application for review.  If the action occurred on or after 2 August 2010, the timeframes in Regulation 5.23A apply.

Timeframe for seeking review of actions that occurred before 2 August 2010

The timeframe is one year from the date of the action to submit an application for review.

Timeframes for seeking review of actions that occurred on or after 2 August 2010 (Regulation 5.23A)

The timeframes are:

  • 120 days (from the date of the action the employee wishes to have reviewed) to make an application for primary review to the agency
  • 60 days (from the date of the action the employee wishes to have reviewed) to make an application for primary review to the Merit Protection Commissioner
  • 60 days (from the decision date) to make an application for primary review to the Merit Protection Commissioner of a determination that an employee has breached the Code of Conduct, or of a sanction imposed for a breach
  • 60 days (from the primary review decision date) to make an application to the Merit Protection Commissioner for a secondary review.

The following are of key importance in deciding what timeframe applies to a review application and whether to review if the application is made outside the timeframes.

  • Date of action
  • Exceptional circumstances

Date of action

It can be difficult to establish clearly the date on which an action occurred for the purpose of calculating the timeframe.  An employee may identify a series of actions for which they are seeking review ranging over a period of time, only some of which are within the timeframe when the employee makes the review application.

It is important not to take too prescriptive approach to timeframes in this context.  If the last action in a chain of events is within time, it may be necessary to consider the process that led to the last action to ensure that any review meaningfully addresses the employee's concerns about that action.  This does not mean that an agency needs to go back and review events and processes that occurred some years ago because the review applicant considers them relevant to their concerns about the current action.

Example:
An employee may be concerned about the fairness of a performance management process where the final rating on their performance is in time but actions taken to improve performance during that performance management cycle were done outside the timeframe for review.

In considering whether "exceptional circumstances" exist, it is appropriate for the decision-maker to consider whether only looking at the rating decision but not the process leading up to it would enable the action to be effectively reviewed and to determine whether the outcome was fair and reasonable in the circumstances.

However, it is not likely to be necessary in this context also to review actions taken in performance management processes that were finalised prior to the most recent process, none of which are within the timeframe for review.

Exceptional circumstances

Whether "exceptional circumstances" exist is a matter which will turn on the particular facts of each case.  'Exceptional circumstances' may include:

Cases where extended sick leave significantly hinders an employee's ability to consider making a review application
Where the significance or main effects of the action only became known some time after the action.

An exceptional circumstance would not usually include:

An employee arguing that they were not aware that they had a right to review (APS employees have an obligation under Regulation 3.16 to inform themselves of the Act, Regulations and the Public Service Commissioner's Directions). 
a circumstance that was ordinary or usual for example moving to a new job or taking recreation or long service leave.

Other Grounds for not reviewing an action

This table discusses discretionary grounds for refusing to review an action under Regulation 5.23(3) and lists actions in Schedule 1 that are not reviewable and provides examples.

For a discussion of the timeframes for making a review application [See: Timeframes for making a review application]

Discretionary grounds in Regulation 5.23(3)
An action is not reviewable where the person conducting the review considers that the action should not be reviewable for any of the following reasons…
No. Type of action Legislative provision Comment
1. Where the application for review is frivolous or vexatious Regulation 5.23(3)(b) "Frivolous" is generally taken to mean that the case is "obviously unsustainable".  "Vexatious" means an application made "for a collateral purpose, as a means of obtaining some advantage for which the proceedings were not designed".  In other words this mean an application made for some other purpose (eg as a bargaining chip).  Agencies are encouraged to follow the lead of the Courts, who are generally very hesitant to dismiss a case on the grounds that it is frivolous or vexatious.
2. Where the applicant has previously applied to have the matter reviewed under the review of actions provisions. Regulation 5.23(3)(c) Self explanatory
3. Where the applicant has applied for a promotion review  by a Promotion Review Committee under Division 5.2 of the Regulations.  Regulation 5.23(3)(d) For a discussion of the review arrangements for promotion decisions, see No. 16 in this table.
4. Where review by an external review body would be more appropriate. Regulation 5.23(3)(e) Expert bodies exist to consider complaints about privacy (the Privacy Commissioner) and discrimination on a number of grounds including sex, race and disability (the Australian Human Rights Commission). The Merit Protection Commissioner would generally be reluctant to review allegations of breaches of privacy or discrimination that falls within the expertise of specialist review bodies.  However, agencies may wish to look at how they handled matters subject to privacy or discrimination complaints to satisfy themselves that they were not in breach of legislative obligations.
5. Where the employee does not have sufficient direct interest. Regulation 5.23(3)(f) This includes for example complaints about an action or decision taken in relation to another APS employee that has marginal or no effect on the APS employee who has made the complaint.
6. Where, review or further review is not justified in all the circumstances. Regulation 5.23(3)(g) Circumstances in which this provision could apply include:
  • The matter has already been reviewed but the review applicant is dissatisfied and has re-phrased their old complaint as if it were a new and different complaint
  • The applicant does not respond to a request for further information about why the review is sought


Paragraph (g) should not be interpreted as an open discretion not to review matters.  The presumption in the legislation is that actions that meet the eligibility criteria should be reviewed unless there is a good reason not to do so. It is generally not appropriate to exercise this discretion for the following reasons: The delegate has formed a preliminary view, without reviewing the action, that the merits of the review applicant's case are weak The outcomes the employee is seeking are not achievable – this may be the case but other outcomes may emerge during the review that are achievable The decision for which review is being sought was consistent with the agency's policy (for example a manager's discretion to refuse a leave without pay application) – this is an argument about the merits of the review applicant's case without doing a review

  • The delegate does not consider they have the technical competence to assess the merits of the employee's case – this possibly represents a refusal to make a decision on something that the delegate is required to decide (the exception is matters more appropriately reviewed by an external review body see No 4.).
Actions that are not reviewable Schedule 1
7. Action about the policy, strategy, nature, scope, resources or direction of the APS or an agency Item 1
Schedule 1
For example, employees are not able to seek a review of the agency's employment policies or government policies that affect the level of resourcing for an agency. Employees are able to seek review of the application of an employment policy to their individual circumstances.  In addition, while the amount of resources an agency commits to a function is not reviewable, it may be relevant when considering the merits of the employee's case, for example if the employee is arguing that he or she is unable to meet performance targets because of inadequate resourcing.
8. Action taken, or not taken, in accordance with a direction or reference given by a Minister under the Public Service Act or another Act.  Item 2
Schedule 1
Ministers are not able to direct agency heads about individual staffing matters (section 19 of the Public Service Act).  However, they may have powers to give directions to the agencies for which they are responsible that affect the way the agency conducts its business.
  • APS employees are not able to seek review of actions taken in accordance with these directions.
9. The giving of a direction by the Public Service Commissioner under s11, s15 or s36 of the Public Service Act. Item 3
Schedule 1
The Public Service Act empowers the Public Service Commissioner to issue Directions concerning the APS Values, the Code of Conduct and SES employment.
10. Action taken, or not taken, for a special inquiry under s43 or s50 of the Public Service Act. Item 4
Schedule 1
The Public Service Commissioner has a number of inquiry functions under section 41 of the Act (for example whistleblowing inquiries and inquiries into allegations that an agency head has breached the Code of Conduct) which are special inquiries for the purposes of section 43.  Section 43 gives the Public Service Commissioner specific powers when conducting those inquiries. Likewise the Merit Protection Commissioner's function under sub-section 50(1)(c) to inquire into a matter referred to her by the Public Service Minister is a special inquiry.
11. Action taken, or not taken, under s72 of the Public Service Act. Item 5
Schedule 1
Section 72 of the Act concerns machinery of government changes.  Employees have no right of review with respect to actions affecting their employment as a result of machinery of government changes.
12. Action arising under the:
  • Australian Security Intelligence Organisation Act
  • Safety, Rehabilitation and Compensation Act 1988
  • Superannuation Act 1976
  • Superannuation Act 1990
Item 6
Schedule 1
  1. Actions taken by an agency in relation to an employee's security clearance are reviewable under the review of actions.  However, if the security clearance involved an assessment by ASIO, the ASIO assessment is not reviewable under review of actions.
    Certain adverse decisions relating to security clearances conducted by ASIO are reviewable by the Administrative Appeals Tribunal.
  2. Actions taken by an agency in response to an application for workers' compensation, including whether or not the agency supports the application, are not reviewable under review of actions.


Separate review arrangements are available under the Safety, Rehabilitation and Compensation Act 1988 including access to the Administrative Appeals Tribunal.

  1. The actions taken by agencies in administering superannuation contributions to the CSS and PSS are not reviewable as these are decisions made under the relevant regulations including for example the calculation of salary for superannuation purposes, and whether employees are able to contribute during periods of leave.

13.

Action relating to the engagement of an APS employee. Item 7
Schedule 1
Engagement refers to the employment of a person from outside the APS. "Action relating to engagement" is to be interpreted broadly.  All aspects of the selection process leading to the engagement are non–reviewable including concerns about the merits of candidates and the process followed in selecting them.
14. Action of a Promotion Review Committee Item 8
Schedule 1
This includes both complaints about the way a Promotion Review Committee conducted its review or the outcome of that review. While not reviewable, the Merit Protection Commissioner will, in the interests of transparency, look into complaints made about the conduct of a promotion review process for the purpose of improving the administration of promotion reviews.
15. Action relating to the promotion of an ongoing APS employee as an Senior Executive Service employee (whether or not the employee is already an SES employee). Item 9
Schedule 1
This item refers to complaints about the promotion of a person to the SES and within the SES.  Again, consistent with the discussion above under No 13, "action relating to promotion" is to be interpreted broadly.
16. Action that determines, under section 25 of the Public Service Act, the duties of an APS employee, or the place(s) where they are to be performed, unless the action involves:
  • (a) a reduction in classification; or
  • (b) a relocation to another place; or
  • (c) a promotion that meets the following criteria:
    • (i)  the affected employee was an applicant for the promotion
    • (ii)  the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules
    • (iii)  there were serious defects in the selection process
  • (d)  the assignment to an employee of duties that the employee could not reasonably be expected to perform.
Item 10
Schedule 1
A decision to assign duties to an employee under section 25 of the Act is not reviewable. Section 25 provides that an agency head may from time to time determine the duties of an employee and the place or places at which the duties are to be performed.  A range of employment decisions come within the assignment of duties power.  These include:
  • Moving employees to jobs at the same classification level in the same or different locations
  • Assigning employees higher duties temporarily for business and/or career development purposes
  • Reducing an employee's classification level
  • Promoting an employee.

"Determines" should be interpreted narrowly as referring to a decision.  This means that employees may seek a review, not of the decision, but of the process that has lead to the assignment of duties. In addition, Item 10 contains a list of exceptions, ie actions that are reviewable although they are assignments of duty.

 
  • (a)  a reduction in classification
Item 10 Schedule 1 (a) A reduction in classification without an employee's consent can only occur in the circumstances described in section 23(4) of the Public Service Act, including:
  • a sanction for a breach of the Code of Conduct
  • if the employee is excess
  • if the employee has lost an essential qualification
  • for unsatisfactory performance of duties
  • an inability to perform duties at the higher level due to a physical or mental incapacity.
  • (b)  a relocation to another place
Item 10 Schedule 1 (b) The presumption underlying this exception is that employees have a review right with respect to relocation to another place.  There is no definition of "another place" and it is possible that a geographic relocation (including to another suburb in the same city) could cause an employee substantial hardship, in relation to their commitments out of work.  The Merit Protection Commissioner has observed situations were a reasonable person might conclude that the relocation of an employee has had no adverse effect on the employee (for example a relocation to a building in close proximity to the employee's original workplace).  In such circumstances, an agency may take the view that the matter is not reviewable under Regulation 5.23(3), for example because review is not justified in the circumstances.
  • (c)  a promotion that meets the following criteria:
    • (i)  the affected employee was an applicant for the promotion
    • (ii)  the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules
    • (iii)  there were serious defects in the selection process
Item 10 Schedule 1 (c) Promotion decisions made for classification levels from APS 2 to 6 are subject to merits review by Promotion Review Committees established by the Merit Protection Commissioner under Division 5.2 of the Regulations.  These Committees review the merits of review applicants and promotees and determine who should have been promoted.  They do not review the process by which the original promotion decision was made.  A Promotion Review Committee may uphold the original promotion decision or overturn it and promote a review applicant to the position. Promotion decisions to the Executive Level 1 and 2 classification levels are not reviewable on the grounds of merit.  An employee can apply for review of the process conducted to promote a person to the Executive Level 1 or 2 only on the grounds that there were substantial defects in the selection process.  This is a high standard.  Serious defects need to be such as would compel the selection process to be done again. An application for review of an Executive Level promotion on the grounds of a substantial defect in the process cannot undo the promotion decision.  If the promotion has already taken effect, the promotion decision stands.  If a review found substantial defects in the promotion decision, the agency may take the lessons learned from the review to improve its selection processes or (in cases suggesting misconduct) may take misconduct action with respect to the individuals involved in the selection process.
  • (d)  the assignment to an employee of duties that the employee could not reasonably be expected to perform
Schedule 1 Item 10 (d) Self–explanatory

Footnotes

3. Second Life Décor v Comptroller-General of Customs (1994) 53 FCR 78.

4. Goodson v Grierson [1908] 1 KB 761.