Merit Protection Commissioner's review

Introduction

Acting Merit Protection Commissioner Jeff Lamond

The values based management framework of the PS Act 1999 provides for ‘a fair system of review of decisions taken in respect of APS employees’ (APS Value section 10(1)(o)). The review processes available under section 33 of the Act, and associated Regulations, enable non-SES employees to apply for the review of a wide range of actions that may have adversely affected them in their employment. In most cases the review of action is undertaken within the relevant agency, with the Merit Protection Commissioner, as occupant of a statutory office under section 49 of the Act, available for an independent and external review where the applicant is not satisfied with the outcome of the initial review or where the Agency Head was involved in the original action under review.

Generally, the Merit Protection Commissioner does not have determinative powers but has recommendatory and reporting powers. Only in the case of a review of a promotion decision by a Promotion Review Committee is such a recommendation binding on an Agency Head. In all other cases Agency Heads are required to advise the relevant employee and Merit Protection Commissioner of their decision on the recommendations and the reasons for that decision. If the Merit Protection Commissioner is not satisfied with the response to the recommendations he may, after consulting with the Public Service Minister, report to an Agency Minister, the Prime Minister and/or the Parliament.

Agency Heads accepted all but two recommendations arising from reviews during 2002–03. Both of the recommendations not accepted dealt with reviews of action in the Australian Taxation Office. In one case the agency noted that an element of one of the relevant recommendations failed to account for, and was inconsistent with, an established internal policy. The agency also indicated that the policy would be applied in a manner that ensured that the employee was not disadvantaged. The Merit Protection Commissioner considers that the agency’s decision in the first case was reasonable and is still considering the matters raised in the second case.

The Annual Report for 2001-2002 noted that there were two cases where the relevant Agency had determined not to accept recommendations made by the Merit Protection Commissioner. The report noted that the outcome in those cases were under consideration. In the first case, following an exchange of correspondence, the Agency Head effected changes to their final decision although their determination did not exactly accord with the Merit Protection Commissioner’s recommendation. In the second case the Agency maintained their position that a breach of the Code of Conduct had occurred and they confirmed the application of a sanction. The Merit Protection Commissioner considered both cases carefully and reached a view that, in all the circumstances, the actions of the agencies were not unreasonable.

This financial year the following number of reviews of promotion decisions and reviews of action were received:

• Promotion reviews—193 requests for the establishment of promotion review committees were received (111 were received in 2001–02). Of these, 131 promotion review cases were reviewed (76 cases were reviewed in 2001–02).
• Applications concerning breaches of the Code of Conduct—43 applications were received, the same number as 2001–02. Of these, 29 applications were reviewed (25 were reviewed in 2001–02).
• Applications for review other than promotion reviews and those related to the Code of Conduct—128 other applications were received (166 were received in 2001–02). Of these, 54 were reviewed (69 were reviewed in 2001–02).

While the number of applications for review of promotions was higher this financial year than in the previous year, it should be noted that there was a corresponding increase in the number of promotions in those employment categories where existing employees have the capacity to seek a review of the decision. During 2001–02 there were 6884 promotions while in 2002–03 there were 10,248 promotions gazetted, an increase of almost 50%.

Overall, the figures relating to reviews of action suggest that the number of code of conduct reviews has remained static and that there continues to be a downward trend in the number of other applications for review. While it is difficult to be specific about the reasons for the trends some of the contributing factors could be better management practices and the resolution of issues before there is a need for a formal review.

There is further information on the nature of the reviews under Analysis of Performance.

This report also contains case studies on a number of reviews conducted during the year. The use of case studies was introduced in last year’s annual report and provides additional information on the way cases are dealt with and some of the issues that may arise in the conduct of a review. The case studies are based on cases from several regions and illustrate the range of issues dealt with by the Merit Protection Commissioner. It is hoped that the inclusion of case studies will assist agencies and employees who are dealing with similar issues better understand the review process and draw lessons from the way these cases have been resolved.

The Merit Protection Commissioner met with all Regional Group Managers, Regional Directors and Regional Advisers in April 2003 in Canberra. The aim of this year’s meeting was to discuss both legislation and policy related issues, current administrative law cases that may affect the Commissioner’s work, fee-for-service activities, and current and future promotional activities. The meeting included a discussion with a panel of clients from the Department of Defence and Centrelink. Outcomes of the meeting included an increased understanding of the needs of client agencies, agreement on the nature of future promotional activities and closer liaison with the Office of the Australian Government Solicitor on administrative law matters. There was also agreement that the target times for the completion of primary and secondary reviews of action be changed. The existing target times were set over 15 years ago under the previous appeal provisions of the now repealed Public Service Act 1922 and were no longer relevant to the review of action provisions of the Public Service Act 1999. Effective from 1 July 2003, target times for the completion of primary reviews will be 10 weeks from receipt of the application (extended from 8 weeks) and the target time for the completion of secondary reviews will be 8 weeks from receipt of the application (extended from 6 weeks). The target time for the completion of reviews of promotion decisions will remain at 6 weeks.

The Merit Protection Commissioner and the Group Manager of Regional Services (South/West) attended the 9th National Public Sector Appeals Conference. The conference was held in Hobart from 4 to 6 September 2002. The annual conference provides a regular forum for senior representatives who are engaged in the review of employment decisions in Commonwealth, State or Territory public sector employment to share their experiences, ideas and views.

There has been an increasing need for the automation of data collection of all review matters handled by the Merit Protection Commissioner. This financial year the Commissioner has coordinated the development of a national database of all review of action cases. The database is designed so that case managers can enter all relevant data on the review they are conducting. The database will be used to produce monthly and annual statistics and to analyse the types of matters that are being referred to the Merit Protection Commissioner.

Other statutory functions of the Merit Protection Commissioner include the establishment of Independent Selection Advisory Committees (ISACs) and a range of employment related functions undertaken at the request of agencies on a fee-forservice basis.

Agencies are becoming increasingly aware of the benefits of ISACs including their cost effectiveness and independence. More than twice the number of ISACs were established this financial year than in the previous financial year (93 completed in 2002–03 compared to 43 that were completed in 2001–02). Over 12,500 applications were considered by ISACsin recommending nearly 2400 applicants for placement. The increase was largely due to the Australian Taxation Office undertaking a number of major national recruitment exercises. Of the 93 ISACs established this financial year, 69 of these were for the Australian Taxation Office.

Other fee-for-service work undertaken on behalf of the Merit Protection Commissioner included Joint Selection Committees established under a Memorandum of Understanding with the Australian Federal Police (AFP) and some ACT Government agencies. There was an increase in the number of Joint Selection Committees for the AFP from 232 in 2001–02 to 277 in 2002–03. Additionally, training for AFP employees on selection processes was provided to ensure that there was a trained pool of staff available for future selection committees.

Outlook for 2003–04

The Merit Protection Commissioner will continue to promote his role and the range of services to all agencies around Australia. The aim will be to exchange ideas on, and improve an understanding of the review of action arrangements; assist Agency Heads in their obligation to promote and uphold the APS Values; and promote other services such as ISACs to assist in merit based selections.

The Merit Protection Commissioner will continue to engage in activities such as speeches and presentations that describe his statutory functions with the aim of building awareness of his role and to further partnerships with agencies.