Analysis of performance

The review scheme under section 33 of the PS Act and Part 5 of the PS Regulations provides that an APS employee is entitled to review, in accordance with the PS Regulations, of an action that relates to their employment, except where the PS Regulations specifically exclude that action from review. In most cases, an employee must first apply to their Agency Head for a review of action.

The types of reviews undertaken by the Merit Protection Commissioner under the provisions of the PS Act and Regulations fall into three main categories: review of certain promotion and engagement decisions; reviews in relation to breaches of the APS Code of Conduct; and other reviews of actions.

Applications for review by a PRC can be made in certain circumstances by applicants for employment opportunities included in APS Classification Groups 2—6. Selection decisions are reviewed by a three-member PRC, which reviews the original decision and makes a decision which is binding on the Agency Head. Where an employee wishes to apply for review of a determination that they have breached the APS Code of Conduct or of a sanction imposed for breach of the Code of Conduct, they must apply directly to the Merit Protection Commissioner. Applications for review may also be lodged directly with the Merit Protection Commissioner in some other specified circumstances, including where the relevant Agency Head was directly involved in the action. Where an employee is dissatisfied with the outcome of a primary review conducted by an Agency Head, or has been advised by the Agency Head that an action is not reviewable, the employee may apply to the Merit Protection Commissioner for a secondary review.

Table M1 provides information on the reviews of actions received and completed and the timeliness of these reviews during the period 1 July 2003 to 30 June 2004.

Review of certain promotion and engagement decisions

Amendments to the Public Service Regulations dealing with the mobility arrangements between the Australian Public Service and the Parliamentary Service, which came into effect on 23 December 2003, introduced review rights for ongoing employees of both Services against the promotion of an ongoing APS employee or the engagement of a Parliamentary Service employee in the APS at a higher classification. This means that, in a selection exercise to Classification Groups 2—6 involving promotion of an APS employee or engagement of a Parliamentary Service employee at a higher classification than that employee’s current Parliamentary Service classification, an ongoing APS employee who is an unsuccessful applicant for promotion, and an ongoing Parliamentary Service employee who is an unsuccessful applicant for engagement than to the employee’s classification as a Parliamentary Service employee, may apply to the Merit Protection Commissioner for review of the promotion or engagement decision.

During 2003—04, 443 individual applications for review by a PRC were considered relating to 73 cases reviewed. This compared with 3642 individual applications in 2002—03 relating to 131 cases reviewed. In addition, applications relating to six cases were on hand at the start of the year. In this report, a case means an application by one or more APS employees for a review by a PRC of a decision or decisions arising from a discrete agency selection exercise. No applications for review by a PRC were received this financial year in relation to the engagement in the APS of a Parliamentary Service employee.

The number of PRCs established decreased this financial year compared with 2002—03 (73 established in 2003—04 compared with 131 established in 2002—03, a decrease of 58 or 44%). The number of PRCs established has generally been in decline in recent years. Last financial year, when the number of committees established was particularly high, was an exception to this trend and coincided with the unusually high number of promotions that were gazetted during that financial year in those employment categories where existing employees have the capacity to seek a review of the decision (10,248 promotions gazetted in 2002—03 compared with 6884 promotions in 2001—02). The number of reviewable promotions and engagements gazetted this financial year was 6071, a decrease of 41% when compared with the number of reviewable promotions for 2002—03, but only 12% less than the number for 2001—02. The number of PRCs established this financial year was only three less than the number established in 2001—02, and it may be that the trend toward an overall decline in PRC numbers has reached a plateau. It is, however, to be anticipated that volatility in patterns of recruitment in the future will continue to have an effect on PRC numbers.

Table M3 provides information on the agencies involved in the promotion reviews as well as a breakdown of the number of active and protective applications. 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.

Applications for review by a PRC were received in relation to selection decisions made in 13 agencies. The four agencies that had more than 20 applications for review are identified in Table M3. There were nine other agencies that had less than 20 applications for review that are not separately identified. A total of 24 (or 5.9%) of the 404 promotion decisions reviewed were overturned by a PRC. This compares to 30 or 2.8% of 1071 promotion decisions in 2002—03 and 15 or 5.4% of 277 promotion decisions in 2001—02.

The average time taken to complete reviews by a PRC was 5.5 weeks and 54 reviews or 74% were completed within the target time of six weeks.

TABLE M3: Applications for review of promotion decisions and promotions overturned 1 July 2003 to 30 June 2004 by agency

Agency	Total number of applications for review	Number of active applications	Number of protective applications	Number of promotions considered*	Number of promotions overturned*
Department of Immigration and Multicultural and Indigenous Affairs	161	31	130	169	1
Australian Taxation Office	145	55	90	126	12
Australian Protective Service	76	38	38	43	4
Department of Defence	31	26	5	24	5
9 Other Agencies	30	23	7	42	2
Total	443	173	270	404	24

* 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.

Breaches of the Code of Conduct and other reviews

During 2003—04, 225 applications for review, other than for review of promotion decisions, were received. In addition, 39 applications were carried over from the previous financial year. Of the total applications on hand in 2003—04, 150 applications were reviewed.

The types of matters raised in the applications reviewed are shown in Figure M1. Reviews of actions relating to the Code of Conduct accounted for 46 or 31% of the applications reviewed. Other matters reviewed were matters relating to duties and, in particular, selection processes (51 or 34%); workplace environment and arrangements, including harassment (22 or 15%); conditions of employment, including leave and other entitlements (19 or 13%); performance management, including performance appraisals and performance pay (seven or 5%) and entitlements on separation (five or 3%).

FIGURE M1: Review of action applications reviewed 1 July 2003—30 June 2004

Chart

Table M4 provides a breakdown of the number of reviews by agency. Similar to last year, the Australian Taxation Office and Centrelink accounted for over 50% of these reviews, reflective of the proportion of APS employees in these agencies. However, where in 2002—03 the number of applications reviewed in these two agencies was very similar, the number reviewed in the Australian Taxation Office in 2003—04 was nearly twice the number reviewed in Centrelink. This was due to a bulk selection exercise in the Australian Taxation Office which resulted in a large number of secondary review applications.

TABLE M4: Applications reviewed 1 July 2003—30 June 2004 by agency

Agency*	Primary review-Code of Conduct	Primary review- Other	Secondary review	Complaints by former employees	Total
Australian Taxation Office	9	0	56	1	65
Centrelink	21	0	13	1	35
Defence	1	1	9	2	13
Australian Customs Service	3	0	3	0	6
Child Support Agency	4	0	1	1	6
Immigration and Multicultural and Indigenous Affairs	3	0	1	0	4
Bureau of Meteorology	0	0	3	0	3
Aboriginal Hostels Limited	1	1	0	0	2
Australian Electoral Commission	0	0	2	0	2
Australian Quarantine and Inspection Service	1	1	0	0	2
12 Other Agencies	4	2	6	0	12
Total	46	5	94	5	150

* 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.

Breaches of the Code of Conduct

This year there was an increase in the number of applications received by the Merit Protection Commissioner that related to breaches of the Code of Conduct by APS employees, with 58 applications received in comparison with 43 in the last financial year. In addition to this, there was a carry over of 12 applications from last financial year. The increase in the number of these applications of 35% departs from the trend established over the last few years, which has seen the number of reviews remain static.

While it is difficult to be specific about the reasons for the increase, it is not necessarily a sign that the number of employees who are being found to have breached the Code of Conduct is increasing, or that employees are increasingly dissatisfied with the outcomes of any such investigations. Rather, it may indicate greater awareness among employees of review mechanisms. Raising awareness of such mechanisms, and ensuring that people trust the system, means an inevitable rise in the number of reviews, at least in the short to medium terms. The issue of the awareness of employees of the review regime will continue to be looked at in the State of the Service Report which will provide an indication of whether awareness of review mechanisms is increasing. The Merit Protection Commissioner will also continue to monitor closely the employee survey results in the State of the Service Report relating to employee perceptions about the fairness of agency review processes.

There was also an increase in the number of reviews completed this financial year, with 46 reviews completed during 2003—04 compared to 29 during 2002—03, an increase of 59%. Six of the applications received were not accepted and 12 lapsed or were withdrawn. There were six 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; harassment of other employees; inappropriate use of emails or the internet; disrespect to clients, supervisors and other employees; failure to follow directions; excessive private telephone use; and misuse of resources, including departmental vehicles.

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 each of the 46 completed reviews. Of these 20 recommended confirming the agency decision (compared with 10 in 2002—03), 17 recommended varying the decision (compared with 14 in 2002—03) and nine recommended setting aside the decision (compared with five in 2002—03). A total of 11 reviews included a recommendation to vary the sanction imposed.

The average time taken to complete a review of a breach of the Code of Conduct was just under 15 weeks. In 2002—03 the average time taken was just under 13 weeks. The difference is in part reflective of the complexity of the reviews undertaken this financial year. However, it also reflects the process that is undertaken to conduct a review. As applications for review of a breach of the Code of Conduct do not need to be referred to the Merit Protection Commissioner through the appropriate Agency Head, it is usually necessary for the relevant papers to be sought from the agency after the application is received by the Merit Protection Commissioner. As a review is considered to have commenced once an application is received, the time taken for the agency to supply the relevant papers is included in the time taken to undertake the review. Delays in receiving the relevant papers have at times contributed to review completion times exceeding the target time set by the Merit Protection Commissioner. This situation will be monitored over the next 12 months in the context of whether an amendment to the Regulations in respect of this process aspect should be considered. The need to resolve matters as quickly as possible will continue to be of prime importance.

Other applications for review

This year there were 167 applications received for review other than promotion reviews and those related to the Code of Conduct. This was an increase of 39 applications for review or 30% compared to 2002—03. Twenty-seven cases were carried over from the previous financial year and 104 or 54% of the total cases on hand were reviewed during 2003—04 (during 2002—03, 54 or 39% of the cases on hand were reviewed), 64 cases were not accepted, 12 cases lapsed or were withdrawn and 14 cases were on hand at the end of the financial year.

The increase in the number of applications for review received and the number reviewed can largely be attributed to an increase in the number of applications for secondary review. This is discussed further below. Of the 104 cases reviewed, a response in relation to issues raised during the review was requested from agencies in 28 or 27% of cases.

While the number of applications received that were not accepted increased this year compared with 2002—03, the number of applications not accepted as a proportion of all applications received was broadly comparable with the proportion not accepted last financial year (64 cases or 38% were not accepted in 2003—04 compared with 46 cases or 36% in 2002—03). The most common reasons why applications were not accepted continued to be that the Agency Head had not yet undertaken the primary review, or that no right of review existed. The Merit Protection Commissioner will be giving some priority in 2004—05 to promoting a better understanding among employees of their review rights, including through the review and update of information available about the review function.

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

The Regulations provide that an APS employee may apply directly to the Merit Protection Commissioner for review of action where the Agency Head has been directly involved in the action; it is not appropriate, because of the seriousness or sensitivity of the action, for the Agency Head to deal with the application; or where the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action (regulation 5.24(3)).

The Regulations also provide that an Agency Head may, with the agreement of the Merit Protection Commissioner, refer an application directly to the Merit Protection Commissioner in certain circumstances (regulation 5.25(1)). These include where the Agency Head has been directly involved in the action or it is not appropriate, because of the seriousness or sensitivity of the action, for the Agency Head to deal with the application.

During the year, there were 16 applications made directly to the Merit Protection Commissioner by APS employees under regulation 5.24(3). In addition, five applications were on hand at the start of the year. Of the total cases on hand during the year, 16 were not accepted, one was withdrawn and four were reviewed.

No applications for review under regulation 5.25(1) were received during the year, although two were on hand at the start of the year. Of these, one was not accepted and one was reviewed.

The reviews of the five applications made under regulations 5.24(3) and 5.25(1) took an average of 10.5 weeks each to finalise.

Applications for secondary review

The Regulations also provide for an APS employee, other than an SES employee, to apply to the Merit Protection Commissioner for a secondary review where the employee is dissatisfied with the outcome of the primary review conducted by the Agency Head (regulation 5.29(1)(b)). A secondary review can also be undertaken by the Merit Protection Commissioner where the Agency Head has told the employee that the action is not a reviewable action (regulation 5.29(1)(a)).

During 2003—04, 144 applications for secondary review were received–six under regulation 5.29(1)(a) and 138 under regulation 5.29(1)(b). This is an increase of 43 applications, or 43%, compared with 2002—03. In addition, 19 applications were on hand at the start of the year. Of the total applications on hand in 2003—04, 46 were not accepted and nine lapsed or were withdrawn. A total of 94 cases were reviewed during the period, compared with 48 cases reviewed in 2002—03. The increase in the number of applications received and the number reviewed this financial year is primarily due to a bulk selection exercise in the Australian Taxation Office which resulted in a high number of applications for review. When that group of applications is discounted, the number of applications received and the number reviewed are similar to those for the last financial year.

Of the six applications received under regulation 5.29(1)(a), one had not been made through the relevant Agency Head and was not accepted, and one is still on hand. In relation to two cases the Merit Protection Commissioner agreed that the actions were not reviewable actions. The two remaining applications involved a number of separate matters. The Merit Protection Commissioner reviewed some aspects of these applications.

The average time taken to finalise applications for secondary review was just under 12 weeks.

Investigation of complaints by former employees

Regulation 7.2 provides that the Merit Protection Commissioner may investigate a complaint by a former APS employee that relates to the employee’s entitlements on separation from the APS. Seven applications were received under regulation 7.2 during 2003—04 compared with eight in 2002—03, and one application was carried over from the previous financial year. Of the total applications on hand during 2003—04, five were reviewed, one was not accepted, one lapsed and one was withdrawn.

Independent Selection Advisory Committees

An Independent Selection Advisory Committee (ISAC) is a three member committee that makes recommendations to an Agency Head about the suitability of candidates for engagement at, promotion to, or assignment of duties at classifications in APS Classification Groups 1 to 6. ISACs are established by the Merit Protection Commissioner at the request of an Agency Head, usually on a fee-for-service basis. A promotion decision made by the agency on the recommendation of an ISAC is not subject to review by a PRC.

An ISAC consists of a Convenor and APS employee, both nominated by the Merit Protection Commissioner, and an agency nominee. The committee is independent and impartial. The members of an ISAC must comply with the Merit Protection Commissioner’s binding instructions on procedures but are otherwise not subject to direction in carrying out their duties, except by a Court. There are many advantages to using an ISAC, including their cost effectiveness, flexibility in terms of process and that promotions made on the recommendation of an ISAC are not subject to review. An order of merit established by an ISAC can be used to fill future employment opportunities for twelve months from the date of the original advertisement of the employment opportunity.

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

Table M5 provides information on the number of ISACs established by agency and the number of candidates considered and recommendations made. During 2003—04, 53 committees were established in 15 agencies. While the number of committees established this financial year decreased by 40 from 2002—03, the number of ISACs established last financial year was unusually high, primarily due to the large number of committees used by the Australian Taxation Office (69 of the 93 committees established in 2002—03 were for the Australian Taxation Office). When the number of committees established this financial year is compared with numbers in recent years in which no unusual recruitment patterns occurred to elevate the ISAC numbers, a general upward trend in the use of ISACs is apparent. For example, the number of ISACs established this financial year is an increase of 23% on the number established in 2001—02, when no unusually large recruitment exercises using ISACs were conducted.

The 53 ISACs established in 2003—04 considered 3338 applications and recommended 648 placements. While these numbers are substantially less than the number of applications considered and placements recommended in 2002—03 given the much higher number of committees established last financial year, they represent a substantial increase on the number of applications considered and the number of placements recommended in 2001—02–an increase of 94% and 103% respectively.

The Australian Taxation Office used 16 committees to assess 1203 applicants, from which 183 placements were recommended. The second highest user was the Department of Immigration and Multicultural and Indigenous Affairs, which used eight committees to consider 1043 applicants and recommend 172 placements. The Department of Foreign Affairs and Trade, which employs a strategic approach to recruitment, regularly conducts bulk rounds for a number of classifications and employs ISACs for these processes. Recommendations for 108 placements were made from just two ISACs used by the Department of Foreign Affairs and Trade in 2003—04. The remainder of the agencies which used ISACs in 2003—04 established between one and four committees to consider between six and 160 applications and make between two and 77 recommendations.

TABLE M5: Independent Selection Advisory Committees Convened 1 July 2003—30 June 2004

Agency	Committees established and completed	Candidates considered	Candidates recommended
Australian Taxation Office	16	1203	183
Department of Immigration and Multicultural and Indigenous Affairs	8	1043	172
Defence	4	42	22
IP Australia	4	32	4
Aboriginal and Torres Strait Islander Services	3	31	4
Social Security Appeals Tribunal	3	43	11
Department of Education, Science and Training	3	55	4
Department of Employment and Workplace Relations	3	75	40
Department of Foreign Affairs and Trade	2	493	108
Department of Health and Ageing	2	33	2
Aboriginal and Torres Strait Islander Commission	1	6	2
Australian Electoral Commission	1	51	8
Australian Protective Service	1	51	9
Australian Public Service Commission	1	20	2
Australian Quarantine and Inspection Service	1	160	77
Total	53	3338	648

Whistleblowing

The PS Act and Regulations provide a scheme for the reporting of alleged breaches of the Code of Conduct (known as whistleblowing) by APS employees. The scheme provides that Agency Heads must establish procedures for dealing with whistleblowers reports. It is expected that such reports will be made to, and investigated by, the relevant Agency Head in the first instance. A report may be referred to the Public Service or Merit Protection Commissioner where an APS employee is not satisfied with the outcome of the agency-based investigation or in other specified circumstances, such as where it would be inappropriate for the Agency Head to deal with the report. Information on reports made to the Public Service Commissioner is contained in his Annual Report.

The Merit Protection Commissioner received six whistleblowing reports during 2003—04, four more than he received in 2002—03. One of these reports was withdrawn, two were not accepted, and the remaining three are being considered. Issues raised included management of personnel matters, including leave entitlements and probation, harassment and aspects of recruitment processes.

Other functions

Under the PS Act 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 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)

The Public Service Regulations provide for the Merit Protection Commissioner to carry out a range of employment—related functions for non-APS persons or bodies. The Merit Protection Commissioner may charge a fee for these services. These services can only be provided 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 AFP to provide convenors for Joint Selection Committees (JSCs) for vacancies that arise in that organisation. Related selection training to AFP employees is also provided.

The Merit Protection Commissioner also has agreements in place with the ACT Government, 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 of the number of JSCs established during the same period.

During the financial year there were 170 JSCs conducted, 166 of these for the AFP. While the number of JSCs conducted for the AFP was less than in 2002—03, this work nevertheless continued to provide a substantial amount of the fee-for-service work undertaken on behalf of the Merit Protection Commissioner. Other fee-for-service activities included staff selection training for the AFP; grievance investigations; promotion reviews; disciplinary appeals and other training activities.

TABLE M6: Employment-related services 1 July 2003—30 June 2004

Nature of Service	Number completed
Joint Selection Committees	170
Staff selection training	8
Other Employment-related training	8
Grievance investigations	5
Promotion Review Committees	2
Disciplinary Appeal Committees	2
Mediation	1
Scribing service for Selection Advisory Committee	1

TABLE M7: Joint Selection Committees convened 1 July 2003—30 June 2004

Organisation	Separate Committees established	Applicants	Placements recommended
Australian Federal Police	166	1496	291
ACT Government	4	35	19
Total	170	1531	310

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