Analysis of performance

Review of actions

Part 5 of the PS Regulations outlines the policy of the Australian Government that APS agencies should achieve and maintain workplaces that encourage productive and harmonious working relationships. It is expected that employees’ concerns about their workplace and conditions should be dealt with quickly, impartially and fairly. The review process, provided for under section 33 of the PS Act 1999, entitles APS employees to a review of any APS action that relates to their employment, other than action that consists of a termination of employment. The PS Regulations prescribe a range of other actions that are excluded from review under the review process. In most cases, an employee must first apply to their Agency Head for a review of action.

The review process provides agencies with significant flexibility to deal with individual situations as they arise. The PS regulations provide for the use of alternative dispute resolution methods by agencies in dealing with the concerns of employees. The Merit Protection Commissioner’s Instructions advise that ‘a person or committee conducting a review must consider which method for resolution of the employee’s concerns, including methods of alternative dispute resolution such as counselling, conciliation and mediation, is most appropriate to achieve a productive and harmonious working environment.’

There are basically three types of reviews performed by the Merit Protection Commissioner under the provisions of the PS Act 1999 and regulations: review of promotion decisions; reviews in relation to breaches of the APS Code of Conduct; and other reviews of actions.

Reviews of promotion decisions are available for all levels up to and including APS Classification Group 6. Employees apply directly to the Merit Protection Commissioner for a review to be undertaken. The Commissioner appoints a three member Promotion Review Committee (PRC) to review the original decision and make a recommendation to the Agency Head. Unlike recommendations on other review matters, a PRC’s recommendation is binding.

The Merit Protection Commissioner may undertake a primary review where an employee applies for a review of a determination that they have breached the Code of Conduct and/or the sanction imposed for a breach. In such cases the employee must apply directly to the Merit Protection Commissioner for review.

An employee may also apply to the Merit Protection Commissioner for a secondary review of an action where an Agency Head has conducted a primary review and the employee is dissatisfied with the outcome of that review. In certain circumstances, an employee may also apply for a review where their Agency Head has decided an action is not reviewable.

Table M1 provides information on the reviews of actions received and completed and the timeliness of these reviews during the period 1 July 2002 to 30 June 2003.

The number of promotion review committees established increased this financial year compared with 2001–02 (131 established in 2002–03, 76 established in 2001–02 an increase of 55 or 72%). The increase in the number of promotion review committees established goes against the previous trend of a reduction in the number of similar committees. However, when comparing figures it should be noted that there was an increase of about 50% in the number of promotions that were gazetted during 2002–03 (10,248 promotions gazetted in 2002–03 compared with 6884 in 2001–02).

The number of reviews received that related to breaches of the Code of Conduct did not increase this year compared with 2001–02 (43 were received in both periods), although the number of reviews completed increased slightly this year (29 were finalised during 2002–03, 25 were finalised during 2001–02).

This year there was a decrease in the number of other reviews received, that is other than promotion reviews and those related to the Code of Conduct (a decrease of 38 applications for review or 23% compared to 2001–02). There continues to be a large number of applications received that are not able to be reviewed by the Merit Protection Commissioner. There were 46 applications received that were not able to be accepted as reviews and 10 that lapsed or were withdrawn. During 2001–02, 97 applications were not reviewed because the application was not accepted as it related to a matter for which there is no right of review, or, where the Merit Protection Commissioner considered the application should first have been lodged with the relevant Agency Head. As with previous years, the main reason for not undertaking reviews continues to be that the Agency Head had not yet undertaken the primary review, reflecting a lack of understanding by a number of employees of the review processes. The Merit Protection Commissioner is putting in place strategies to address this issue with changes to the web pages in each region, the introduction of simplified pamphlets on the review process, and by offering further training to agencies and employees generally. The Merit Protection Commissioner also regularly provides advice on review provisions contained in Agency Certified Agreements.

The types of matters raised in the applications for review received, other than reviews of promotion decisions, are shown in Figure M1. As with previous years, reviews are continuing to raise complex workplace relationship issues arising from interpersonal conflicts. Reviews of actions relating to the Code of Conduct accounted for 43 or 25% of the applications received. Issues relating to the workplace environment, including harassment in the workplace, were the next most frequent reasons for applications for review being 39 or 23% of all reviews received. Duties (including relocation, assignment of duties and general issues relating to selection processes) accounted for 31 or 18% of reviews received and conditions of employment (salaries, other entitlements and leave) accounted for 29 or 17% of all reviews received. Other issues raised in reviews included performance management and performance appraisals (15 or 9%), entitlements on separation or termination of employment (7 or 4%) and miscellaneous issues such as an outcome of a management review, a decision relating to a work related injury and issues relating to an administrative matter (7 or 4%).

Figure M1: Review of action applications received July 2002–June 2003

Table M3 provides a breakdown of the number of reviews by agency. Similar to last year, the Australian Taxation Office and Centrelink account for over 50% of these reviews, reflective of the proportion of APS employees in these agencies. There was an increase in the number of reviews undertaken for former employee. These reviews dealt mainly with issues relating to the payment of severance benefits and entitlements.

Breaches of the APS Code of Conduct

The Merit Protection Commissioner received 43 applications for review that related to breaches of the Code of Conduct by APS employees. This was the same number as received in the financial year 2001–02. In addition to the 43 received this financial year there was a carry over of 11 from last financial year.

Twenty-nine of the applications for review were completed during 2002–03, 4 were not accepted, 8 lapsed or were withdrawn. There were 12 reviews carried over to the next financial year.

Matters considered in reviews of breaches of the Code of Conduct during this financial year included: inappropriate browsing of information on clients; inappropriate use of resources including departmental vehicles; behaviour outside work hours at social functions; sexual harassment of other employees; inappropriate use of emails or the internet; disrespect to clients, other employees, supervisors and others; and drug taking during work hours.

The Merit Protection Commissioner made a formal recommendation to confirm, vary or set aside an agency decision to the relevant Agency Head in relation to the 29 completed reviews. Of these 10 recommended confirming the agency decision, 14 recommended varying the decision and 5 recommended setting aside the decision.

The average time taken to complete a review of a breach of the Code of Conduct was just under 13 weeks. In 2001–02 the average time taken was just under 10 weeks. The difference is reflective of the complexity of the reviews undertaken this financial year.

Other applications for review

There were 128 other applications for review received from employees. A total of 54 or 42% of the cases on hand were reviewed during 2002–03 (during 2001–02, 69 or 42% of the 166 applications received were reviewed), 46 cases were not accepted and 10 cases lapsed or were withdrawn.

While there were fewer cases reviewed by the Merit Protection Commissioner this year than during 2001–02, the same percent of total applications received were reviewed. The reduction in the total number of reviews for employment related matters is consistent with trends of years prior to last year. There was an increase in the number of applications received during 2001–02 compared to previous years but since 1995–96 there has been a downward trend in the number of applications received.

The number of cases not accepted this financial year (46) was far fewer than last year where 97 applications were not accepted. This reduction may be due to a better understanding by employees of what actions are reviewable.

Table M3: Applications reviewed 1 July 2002–30 June 2003 by agency

Agency*	Primary-review Code of Conduct	Primary review- other	Secondary review	Complaints by former employees	Total
Australian Taxation Office	6	0	17	0	23
Centrelink	13	0	8	0	21
Defence	1	0	5	1	7
Australian Customs Service	3	0	3	0	6
Immigration and Multicultural and Indigenous Affairs	1	0	2	0	3
Australian Electoral Commission	0	0	2	1	3
Health and Ageing	0	1	1	0	2
ABS	0	0	2	0	2
BOM	0	0	1	1	2
14 Other Agencies	5	1	7	1	14
Total	29	2	48	4	83

*The agency taking the action or, if the action is action by an APS employee, the agency in which the employee was employed at the time of the action.

Other applications for primary review made directly to the Merit Protection Commissioner

The Regulations provide for primary reviews by the Merit Protection Commissioner in certain circumstances.

Regulation 5.24(3) allows employees to apply directly to the Commissioner if the Agency Head was directly involved in the action, or because of the seriousness or sensitivity of the action, or because the action is related to victimisation or harassment of the employee for having made a previous application for review.

Regulation 5.25 allows the Agency Head, with the agreement of the Merit Protection Commission, to refer an application to the Merit Protection Commissioner for review. Examples of situations where this may occur include where the Agency Head has been directly involved in the action or because of the seriousness or sensitivity of the action.

There were 15 applications made under regulation 5.24(3). Of these, 11 were not accepted, lapsed or were withdrawn and 1 was reviewed.

Under regulation 5.25(1), 4 applications for review were received. Of these, 2 were not accepted, lapsed or were withdrawn and 1 was reviewed.

The reviews of the two applications made under regulation 5.24(3) and 5.25(1) took an average of 10 weeks to resolve.

Applications for secondary review

The regulations also provide for a secondary review to be undertaken by the Merit Protection Commissioner where an APS employee, other than an SES employee, is dissatisfied with the outcome of the primary review conducted by the Agency Head (Regulation 5.29(1)(b)). The Merit Protection Commissioner may also undertake a secondary review where the Agency Head did not accept the application because they formed the view that the action was not reviewable under the reasons set out in the legislation (Regulation 5.29(1)(a)).

During 2002–03, 101 applications for secondary review were received. This is comparable with the 100 cases received in 2001–02. Of the cases received in 2002–03, 34 were not accepted and 6 lapsed or were withdrawn. A total of 48 cases were reviewed during the period.

The average time taken to resolve the cases was just over 11 weeks.

In two cases the Agency Head did not accept the recommendations made by the Merit Protection Commissioner’s delegate. Both cases were in the Australian Taxation Office. In one case the Agency Head accepted the principal recommendations but declined to accept a recommendation suggesting, for consideration, a phased approach by which outstanding monies might be recovered from an employee. Following further consideration of the Agency’s response–regarding the existence and application of a long established internal policy for debt recovery and how that was to be applied—the Merit Protection Commissioner was satisfied that the action taken by the agency was reasonable. The second case remains under consideration.

Review of promotion decisions

APS employees who are applicants for promotion, in a selection exercise involving promotion to Classification Groups 2-6, are entitled to apply to the Merit Protection Commissioner for review of a promotion decision by a Promotion Review Committee.

During 2002–03, 193 promotion review committees were astablished. Table M4 provides information on the agencies involved in the promotion review as well as a breakdown of the nature of the applications for review.

Active applications are made by employees who were not promoted in the selection exercise and are applying for a review of the decision. Protective applications are made by employees who have been promoted and may be subject to review or be a part of the promotion review process that has active applications for review.

The Australian Taxation Office (ATO) undertook a large number of selection exercises during the financial year 2002–03. During the last financial year, the ATO had a freeze in recruitment from May 2001 to February 2002. The agency began advancing employees and recruiting additional employees to meet organisational requirements. The MPC assisted the ATO with this by establishing Independent Selection Advisory Committees, as reported below. However, not all employment opportunities were filled using Independent Selection Advisory Committees and some of these selection exercises attracted active and protective reviews.

In addition to the ATO, review of promotion applications came from 21 other agencies.

Those agencies that had more than 20 applications for review are identified in Table M4. There were 15 other agencies that had less than 20 applications for review that are not separately identified. A total of 30 of the 1071 promotion decisions reviewed were overturned by a PRC (or 2.8%). In relation to the review of promotions arising from the ATO selection exercises, 20 of the 680 promotion decisions made by the ATO were overturned or 2.9%. During the 2001–02 financial year 5.4% of the promotion decisions reviewed by PRCs were overturned.

The average time taken to complete the review of promotion decisions was 6.6 weeks and 75 or 57% were completed within the target time of 6 weeks.

Independent Selection Advisory Committees

An agency may request the Merit Protection Commissioner to establish an Independent Selection Advisory Committee (ISAC) to consider applications for current and future employment opportunities at the APS Classification Groups 1 to 6. The Committee will make recommendations to the agency on the suitability of the applicants. A promotion decision made by the agency on the recommendation of an ISAC is not subject to review by a PRC. The Merit Protection Commissioner will usually establish an ISAC on a fee-for-service basis.

The Merit Protection Commissioner has issued instructions outlining the procedures and functions of an ISAC. The ISAC consists of a Convenor and APS employee both nominated by the Merit Protection Commissioner and an agency nominee. Where an order of merit is accepted by the agency, that order of merit can be used to fill relevant employment opportunities for twelve months from the date of the original advertising of the vacancies. Agencies generally use ISACs because of the impartiality of the committees, their cost effectiveness, the fact that promotions made on the recommendations of a committee are not subject to review, and the ability to use the order of merit to fill future vacancies.

There is further information on ISACs on the APSC web page at www.apsc.gov.au/merit/isac.htm.

Table M4 Applications for review of promotions overturned 1 July 2002–30 June 2003 by agency

Agency*	Total numberof applications for review	Numberof active applications	Number of protective applications	Number of promotions considered*	Number of promotions overturned*
Australian Taxation Office	3121	441	2680	680	20
Immigration and Multicultural and Indigenous Affairs	200	60	140	178	3
Australian Bureau of Statistics	110	21	89	81	0
Centrelink	78	16	62	51	2
Defence	32	22	10	20	1
Australian Customs Service	27	10	17	19	0
Veterans’ Affairs	26	21	5	6	0
15 Other Agencies	48	24	24	36	4
Total	3642	615	3027	1071	30

* An APS employee may make an application for review of one or more promotion decisions. Not all applications made are considered by a PRC. Some applications are withdrawn, invalid or, in the case of protective applications, may not be activated.

Table M5 provides information on the number of ISACs established by agency and the number of candidates considered and recommendations made. During 2002–03, 93 committees were established in 9 agencies. There were more than twice as many ISACs compared to 2001–02 (43 established last financial year). This is primarily due to a large number of ISACs used by the Australian Taxation Office across Australia. There were also a number of new agencies using ISACs this year (Australian Quarantine and Inspection Service, the Australian Radiation Protection and Nuclear Safety Agency and the Insolvency and Trustee Services Australia).

The 93 ISACs established considered 12,755 applications and made recommendations to fill 2429 employment opportunities. Of these, 69 ISACs were established in the Australian Taxation Office and considered 10,305 applications, making 1759 recommendations. The size of the selection exercises varied between the remaining agencies. The Australian Quarantine and Inspection Service had 8 ISACs that considered 1779 applicants and made 438 recommendations. The Department of Defence used 5 committees to consider 188 applications and made 51 recommendations. The remainder of the agencies established 1 to 3 committees to consider between 9 and 127 applications and make between 1 and 45 recommendations.

It is expected that the number of ISACs for 2003–04 will decrease, as the large exercises undertaken in ATO are almost all completed. The Merit Protection Commissioner will continue to promote the value of ISACs to agencies.

Table M5: Independent Selection Advisory Committees Convened 1 July 2002–30 June 2003 by agency 2002–03

Agency	Committees established	Candidates considered	Candidates recommended
Australian Taxation Office	69	10,305	1759
Australian Quarantine and Inspection Service	8	1779	438
Department of Immigration and Multicultural and Indigenous Affairs	2	182	60
Defence	5	188	51
IP Australia	3	127	20
Australian Radiation Service and Nuclear Safety Agency	2	12	8
Department of Health and Ageing (OATSIH)	2	32	2
Department of Foreign Affairs and Trade	1	121	45
Insolvency and Trustee Services Australia	1	9	1
Total	93	12,755	2429

Whistleblowing

The Public Service Act 1999 and regulations provide a scheme for the reporting of alleged breaches of the Code of Conduct (known as whistleblowing).

Agency Heads are responsible for establishing procedures for dealing with a report made by an APS employee under whistleblowing provisions of the PS Act 1999. In the first instance, it is expected that disclosures be made to, and investigated by, the relevant Agency Head. A disclosure may be referred to the Public Service Commissioner or Merit Protection Commissioner where the APS employee is not satisfied with the findings of an agency based investigation, or in other specified circumstances, such as where it is not appropriate for the Agency Head to deal with the matter. Information on cases sent to the Public Service Commissioner is contained in his Annual Report.

The Merit Protection Commissioner received two whistleblowing reports during 2002–03, the same as for 2001–02. He also received a letter from an employee requesting information on how to raise issues that related to an employee’s conduct and that may constitute a breach of the Code of Conduct.

The two whistleblowing reports were investigated by the Merit Protection Commissioner. Issues raised included inappropriate use of taxpayers’ money, lack of probity in selections and inequities in access to training and development opportunities. The Commissioner concluded in both cases that there was insufficient evidence to substantiate the claims.

Other functions

Under the PS Act 1999 the Public Service Minister can request the Merit Protection Commissioner to inquire into an APS action and report to the Public Service Minister on the results of the inquiry. No requests were received during the reporting period. The PS Act 1999 also provides for the Merit Protection Commissioner to inquire into alleged breaches of the Code of Conduct by the Public Service Commissioner and report to the Presiding Officers on the results of such enquiries. There have been no allegations of breaches during the reporting period.

Employment-related services (fee-for-service)

Non-APS agencies may request the Merit Protection Commissioner to perform employment-related services that are provided on a fee-for-service basis. The Merit Protection Commissioner can only provide these services in circumstances where the Commissioner is not required by a law of the Commonwealth to perform the function. Some of these services are provided under a standing Memorandum of Understanding and are provided on an ongoing basis. For example, the Merit Protection Commissioner successfully negotiated arrangements with the Australian Federal Police to provide convenors for Joint Selection Committees for vacancies that arise in that organisation. Related selection training to AFP employees is also provided.

The Merit Protection Commissioner also has agreements with the ACT Government Service, the Civil Aviation Safety Authority and the Health Insurance Commission to provide a range of selection, appeal and review functions.

Table M6 reports on the services that were provided during the financial year. Table M7 provides details on the number of JSCs established during the same period.

During the financial year there were 277 JSCs conducted, 276 of these for the Australian Federal Police. As in previous years, the Joint Selection Committee work provided a substantial amount of the fee-for-service work undertaken on behalf of the Merit Protection Commissioner. Other fee-forservice activities consisted of: training in staff selection issues for the Australian Federal Police, the Health Insurance Commission and the Civil Aviation Safety Authority; provision of panel members for staff selections; grievance investigations; promotion reviews; and a few one off activities such as scribing and facilitating on people management issues.

Table M6 Employment-related services, 1 July 2002–30 June 2003

Nature of service	Number completed
Joint Selection Committees	277
Staff Selection Training	11
Panel Member—staff selection	4
Promotion Review Committees	2
Grievance Investigations	2
Scribing Service for Selection Advisory Committee	1
Internal Appeal Process	1
Facilitation—people management issue	1

Table M7 Joint Selection Committees convened, 1 July 2002—30 June 2003

Organisation	Separate Committees Established	Applicants	Placements recommended
Australian Federal Police	276	3803	629
ACT Government Service	1	55	15
Total	277	3858	644