Part four
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Analysis of performance
This Section provides information on reviews of actions the Merit Protection Commissioner undertook during the period 1 July 2004 to 30 June 2005. The review scheme, established by section 33 of the Public Service Act and Part 5 of the Public Service Regulations, enables all APS employees who are not members of the Senior Executive Service to seek redress when they believe an action taken or a decision made about their employment was unfair or unreasonable. Most matters that affect employees personally in the course of their employment can be dealt with in this way, except where the Public Service Regulations specifically exclude that action from review.
The types of reviews the Merit Protection Commissioner undertakes fall into three main categories: review of certain promotion and engagement decisions; review of breaches of the APS Code of Conduct; and other reviews of actions.
Applications for a PRC review are made directly to the Merit Protection Commissioner. PRC reviews are available in certain circumstances for applicants for levels up to and including APS Classification Group 6. A three-member PRC reviews the original decision and makes a decision that is binding on the agency head.
Applications for review of a determination that an employee has breached the Code of Conduct or of a sanction imposed for a breach of the Code of Conduct must be made directly to the Merit Protection Commissioner. An employee may lodge an application directly with the Merit Protection Commissioner in some other specified circumstances, including where the relevant agency head was directly involved in the action. An application may also be lodged with the Merit Protection Commissioner for a secondary review of an 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.
Table M1 provides information on the reviews of actions received and completed and the timeliness of these reviews during the period 1 July 2004 to 30 June 2005.
This Section also provides information on the Merit Protection Commissioner’s other responsibilities including that of inquiring into whistleblowing reports, establishing ISACs, and performing other employment-related functions on a fee-for-service basis.
Review of certain promotion and engagement decisions
During 2004–05, 658 individual applications for PRC review were considered relating to 99 cases reviewed. This compared with 443 individual applications in 2003–04 relating to 73 cases reviewed. In this report, a case means an application by one or more APS employee for a PRC review of a decision or decisions arising from a discrete agency selection exercise. No applications for PRC review of engagement in the APS of a Parliamentary Service employee were received this year.
The number of PRCs established increased in 2004–05 compared with 2003–04: 99 in 2004–05, 73 in 2003–04, an increase of 26 (36%). The number of PRCs has fluctuated over recent years; this appears, to some extent, to be a reflection of volatility in recruitment patterns. For example, an increase in the number of PRCs in 2004–05 coincides with an increase of about 25% in the number of reviewable promotions and engagements gazetted, compared with 2003–04.
Table M3 provides information on the agencies involved in promotion reviews as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Employees who were not promoted in a selection process would make an active application in which they are applying for review of the decision not to promote them. Employees who have been promoted and may be subject to review or be part of the active applicant promotion review process would make a protective application.
Applications for a PRC review were received in relation to selection decisions made in 13 agencies. Bulk recruitment exercises in the Australian Customs Service and the Australian Taxation Office that resulted in high numbers of promotions to reviewable classifications contributed significantly to the number of applications for review lodged during this reporting period. Those agencies, along with the three other agencies that had 20 or more applications for review, are identified in Table M3. Eight other agencies had less than 20 applications for review that are not separately identified. PRC reviews overturned 42 (5%) of the 840 promotion decisions reviewed. This compares to 24 (5.9%) of 404 promotion decisions in 2003–04, 30 (2.8%) of 1071 promotion decisions in 2002–03, and 15 (5.4%) of 277 promotion decisions in 2001–02.
The average time taken to complete PRC reviews was 6.9 weeks; 51 reviews (52%) were completed within the target time of six weeks. The large number of applications lodged relating to the promotions made as a result of the bulk selection rounds in the Australian Taxation Office and Customs, and the complexity of determining those applications, given the numbers involved, had a major impact on timeliness outcomes for 2004–05. For example, three of the PRC cases for Australian Taxation Office positions each involved more than 80 parties while another case involved more than 50 parties. Three of the PRC cases for Customs each involved between 38 and 74 parties.
Table M3: Applications for review of promotion decisions and promotions overturned between 1 July 2004 and 30 June 2005, by agency
| Agency | Total no. of applications for review | No. of active applications | No. of protective applications | No. of promotions considered* | No. of promotions overturned* |
| Australian Taxation Office | 334 | 213 | 121 | 416 | 25 |
| Australian Customs Service | 157 | 61 | 96 | 166 | 7 |
| Department of Immigration and Multicultural and Indigenous Affairs | 87 | 20 | 67 | 145 | 5 |
| Centrelink | 30 | 14 | 16 | 54 | 1 |
| Australian Bureau of Statistics | 20 | 5 | 15 | 28 | 2 |
| 8 other agencies | 30 | 23 | 7 | 31 | 2 |
| Total | 658 | 336 | 322 | 840 | 42 |
* 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 2004–05, 160 applications for review, other than for review of promotions decisions, were received. In addition, 20 applications were carried over from the previous reporting period. Of the total applications on hand in 2004–05, 84 were reviewed.
The types of matters raised in the applications are shown in Figure M1. Reviews of actions relating to the Code of Conduct accounted for 26 (31%) of the applications reviewed, the same percentage of total applications reviewed in 2003–04. Other matters reviewed related to conditions of employment, including leave and other entitlements, 17 (20%); the workplace environment and arrangements, including harassment, 16 (19%); duties, including selection processes, 9 (11%); performance management, including performance appraisal, 8 (10%); separation, 6 (7%); failure to act on review of action request, 1 (1%); and misconduct procedures, 1 or (1%).
Figure M1: Cases reviewed by subject, 2004–05
Table M4 provides a breakdown of the number of reviews by agency. As has been the case for the last two years, the agency with the highest number of reviews was the Australian Taxation Office, followed by Centrelink and the Department of Defence. It is not surprising that these three agencies consistently have the highest number of reviews in view of the fact that, between them, they comprise around 50% of total APS staff.
Table M4: Applications reviewed 1 July 2004 to 30 June 2005 by agency
| Agency* | Primary review – Code of Conduct | Primary review – Other | Secondary Review | Complaints by former employees | Total |
| Australian Taxation Office | 7 | 1 | 11 | 1 | 20 |
| Centrelink | 3 | 0 | 11 | 0 | 14 |
| Defence | 1 | 0 | 11 | 2 | 14 |
| Immigration and Multicultural and Indigenous Affairs | 9 | 0 | 2 | 0 | 11 |
| Australian Customs Service | 1 | 0 | 2 | 1 | 4 |
| Australian Bureau of Statistics | 2 | 0 | 1 | 0 | 3 |
| Finance and Administration | 0 | 3 | 0 | 0 | 3 |
| Australian Electoral Commission | 1 | 1 | 0 | 0 | 2 |
| Health and Ageing | 0 | 0 | 1 | 1 | 2 |
| National Native Title Tribunal | 0 | 0 | 2 | 0 | 2 |
| Director of Public Prosecutions | 1 | 0 | 1 | 0 | 2 |
| 7 other agencies | 1 | 2 | 3 | 1 | 7 |
| Total | 26 | 7 | 45 | 6 | 84 |
* 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 saw a decrease in the number of applications the Merit Protection Commissioner received that related to breaches of the Code of Conduct by APS employees, with 41 applications received in comparison with 58 in 2003–04. In addition, we carried over six applications from 2003–04. The number of applications we received this year is more consistent with the number of applications we received in previous years (43 applications were received in both 2001–02 and 2002–03).
The number of reviews we completed decreased this year: we completed 26 compared with 46 in 2003–04. However, this number is similar to the number completed in previous years: 25 were completed in 2001–02, 29 were completed in 2002–03. Of the applications on hand this year, two were not accepted, seven lapsed or were withdrawn, and 12 were carried over to 2005–06.
Matters considered in reviews of breaches of the Code of Conduct during 2004–05 included: inappropriate browsing of information on clients; sexual harassment; inappropriate use of emails or the Internet; use of inappropriate language; disrespect to clients and work colleagues; use of another employee’s identification to enter the workplace after hours; misuse of Australian Government Credit Card and Cabcharge Card; incorrect time keeping; and misuse of resources.
Of the 26 applications we reviewed, 19 were for review of both a determination of a breach of the Code of Conduct, and the sanction imposed for the breach. Four applications sought review of the determination of a breach of the Code of Conduct only, and three were for review of the sanction imposed. 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 26 completed reviews. Of these, 12 recommended confirming the agency decision (compared with 20 in 2003–04 and 10 in 2002–03), 12 recommended varying the decision (compared with 17 in 2003–04 and 14 in 2002–03) and two recommended setting aside the decision (compared with nine in 2003–04 and five in 2002–03). Three reviews included a recommendation to vary the sanction imposed.
The average time we took to complete a review of a breach of the Code of Conduct was just under 19 weeks. In 2003–04 the average time we took was just under 15 weeks. The increase is in part reflective of the complexity of the reviews we undertook this year. Two of the more complex reviews were particularly time consuming, each taking close to a year to finalise. It should also be noted that the time taken includes the total time to complete a review including, for example, the time taken for an agency to provide information and the time that elapses due to unavailability of applicants and other employees.
Other applications for review
This year we received 119 applications for reviews other than promotion reviews and those related to the Code of Conduct. This was a decrease of 48 (29%) applications for review compared to 2003–04. Fourteen cases were carried over from 2003–04 and 58 (44%) of the total cases on hand were reviewed during 2004–05: during 2003–04, 104 (54%) of the total cases on hand were reviewed; 50 cases were not accepted, seven lapsed or were withdrawn and 18 were on hand at the end of 2004–05.
There has been a downward trend in the number of applications we received and reviewed in recent years. Last financial year, when the numbers were particularly high, was an exception to this trend and was largely due to a bulk recruitment exercise in the Australian Taxation Office that resulted in a high number of applications for review. The figures for applications received and reviewed 2004–05 are similar to those for 2002–03, when we received 128 applications for review , and we reviewed 54 applications.
Of the 58 cases we reviewed, a response about issues raised during the review was requested from agencies in 12 (21%) cases. The number of applications received in 2004–05 that were not accepted, as a proportion of all applications received, was the same as for 2003–04, and similar to 2002–03 (38% in both 2004–05 and 2003–04 and 36% in 2002–03). The most common reasons for the Commission not accepting applications continued to be that the agency head had not yet undertaken the primary review, or that no right of review existed.
Other applications for primary review made directly to the Merit Protection Commissioner
The Regulations provide for primary review by the Merit Protection Commissioner in certain circumstances.
Regulation 5.24(3) allows employees to apply directly to the Merit Protection Commissioner 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 5.25 allows the agency head, with the agreement of the Merit Protection Commissioner, to refer an application directly to the Merit Protection Commissioner. Examples of situations where this might occur 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, 18 APS employees made direct application to the Merit Protection Commissioner under regulation 5.24(3). No applications were on hand at the start of the year. Four cases were not accepted, four lapsed or were withdrawn, and six were reviewed. Four cases were on hand at the end of 2004–05.
The Merit Protection Commissioner received two applications for review under regulation 5.25(1) during the year. No applications were on hand at the start of the year. One case was not accepted and one was reviewed.
Review of the seven cases under regulations 5.24(3) and 5.25(1) took an average of 9.98 weeks to finalise.
Applications for secondary review
The Regulations also provide for an APS employee, other than a Senior Executive Service 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)). The Merit Protection Commissioner may also undertake a secondary review where the agency head has told the employee the action is not a reviewable action (regulation 5.29(1)(a)).
During 2004–05, we received 87 applications for secondary review: eight under regulation 5.29(1)(a) and 79 under regulation 5.29(1)(b). This is a decrease of 57 (40%) applications compared with 2003–04. In addition, 14 applications were on hand at the start of the year: one received under regulation 5.29(1)(a) and 13 received under regulation 5.29(1)(b). Of the total applications on hand in 2004–05, 43 were not accepted and two lapsed or were withdrawn. Forty-five cases were reviewed during the period, compared with 94 in 2003–04. This difference in cases reviewed over the two reporting periods is primarily due to the unusually high number of cases in 2003–04 as a result of a bulk selection exercise in the Australian Taxation Office that resulted in a high number of applications for review. The number reviewed in 2004–05 is similar to the number reviewed in 2002–03, when 48 cases were reviewed.
Of the nine applications on hand in 2004–05 under regulation 5.29(1)(a), five were not accepted since the Merit Protection Commissioner concurred with the views of the agency heads that the actions were not reviewable actions. One was on hand at the end of the reporting period. We reviewed three cases to determine whether the action was a reviewable action. In each case, the Merit Protection Commissioner determined that the actions were not reviewable actions.
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. We received 11 applications under regulation 7.2 during 2004–05, and carried no applications over from 2003–04. We reviewed six applications, one was not accepted, one was withdrawn, and three were on hand at the end of the reporting period.
Independent Selection Advisory Committees
The Merit Protection Commissioner may establish an ISAC at an agency head’s request. An ISAC is an independent three-member committee that considers applications for employment opportunities at classifications in APS Classification Groups 1 to 6, and makes recommendations to the agency head on the suitability of the applicants. The Merit Protection Commissioner will usually establish an ISAC on a fee-for-service basis.
An ISAC consists of a convenor and APS employee, both nominated by the Merit Protection Commissioner, and an agency nominee. The Merit Protection Commissioner has issued binding instructions on the procedures and functions of an ISAC, but the members of an ISAC are otherwise not subject to direction in carrying out their duties, except by a Court.
Use of an ISAC facilitates and supports good practice in strategic people management and organisational performance. Such good practice is due to the professionalism, independence and impartiality of the committee, the flexibility of the process which can accommodate a range of selection assessment techniques, the fact that promotions made on the recommendation of an ISAC 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 Commission’s web site.
Table M5 provides information on the number of ISACs established by agency, the number of candidates considered, and the number of recommendations made. During 2004–05, 58 committees were established in 11 agencies. In 2003–04, 53 committees were established in 15 agencies. Fewer candidates were considered and recommended this year compared with last year, with 2210 candidates considered and 559 candidates recommended in 2004–05, compared with 3338 candidates considered and 648 candidates recommended in 2003–04. The number of committees established and recommendations made has tended to fluctuate from year to year, reflecting volatility in agency recruitment patterns. Overall, however, use of ISACs continues to be steady and indicates that many agencies recognise the numerous benefits the committees offer.
During 2004–05, the Australian Taxation Office was once again the highest user of ISACs, using 22 committees to assess 997 candidates, from which 183 placements were recommended. The second highest user was the Department of Health and Ageing, which used eight committees to assess 166 candidates, from which 51 were recommended. A number of agencies, including the Australian Quarantine and Inspection Service, the Department of Immigration and Multicultural and Indigenous Affairs and the Department of Foreign Affairs and Trade, employed strategic approaches towards using ISACs, with high numbers of candidates recommended from small numbers of ISACs.
Table M5: Independent Selection Advisory Committees Convened 1 July 2004 to 30 June 2005
| Agency | Committees established and completed | Candidates considered | Candidates recommended |
| Australian Taxation Office | 22 | 997 | 183 |
| Department of Health and Ageing | 8 | 166 | 51 |
| Department of Defence | 6 | 51 | 16 |
| Australian Quarantine and Inspection Service | 4 | 237 | 98 |
| Centrelink | 4 | 153 | 57 |
| Department of Education, Science and Training | 4 | 70 | 20 |
| Department of Immigration and Multicultural and Indigenous Affairs | 3 | 229 | 77 |
| Social Security Appeals Tribunal | 2 | 23 | 2 |
| Department of Foreign Affairs and Trade | 2 | 234 | 48 |
| Insolvency and Trustee Service Australia | 2 | 37 | 3 |
| Australian Public Service Commission | 1 | 13 | 4 |
| Total | 58 | 2210 | 559 |
Whistleblowing
The Public Service Act and regulations provide a scheme for APS employees to report alleged breaches of the Code of Conduct (known as whistleblowing). Agency heads are responsible for establishing procedures for dealing with whistleblower reports. In the first instance, it is expected that such reports will be made to, and investigated by, the relevant agency head. A report may be referred to the Public Service Commissioner or the Merit Protection Commissioner where the APS employee is not satisfied with the findings of the 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 reports made to the Public Service Commissioner is contained in her annual report.
The Merit Protection Commissioner received four reports during 2004–05, two less than he received in 2003–04. In addition, three reports were on hand at the start of the year. Of the seven reports on hand during the year, five did not meet the criteria for investigation by the Merit Protection Commissioner, the most common reason being that the agency head had not yet conducted an initial investigation. The Merit Protection Commissioner investigated two reports. Issues raised included mismanagement of a range of personnel matters, including leave entitlements and probation; misuse of Commonwealth funds; and harassment.
Other functions
Under the Public Service Act, the Public Service Minister can ask 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 Public Service 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 were no allegations of breaches during the reporting period.
Employment-related services (fee-for-service)
The Regulations provide for the Merit Protection Commissioner to carry out a range of employment-related functions for non-APS people or bodies where the Merit Protection Commissioner is not required by a law of the Commonwealth to perform the function. The Merit Protection Commissioner may charge a fee for carrying out the function.
Some of the services are provided under a standing memorandum of understanding on an ongoing basis. For example, the Merit Protection Commissioner currently has arrangements in place with the Australian Federal Police to provide convenors for Joint Selection Committees for vacancies that arise in that organisation. We also provide related selection training to Australian Federal Police employees. The Merit Protection Commissioner also has agreements in place with other non-APS bodies to provide a range of selection, appeal and review functions.
Table M6 reports on the services we provided during 2004–05. Table M7 provides details of the number of Joint Selection Committees established during the same period.
During 2004–05, 243 Joint Selection Committees were conducted, 239 were for the Australian Federal Police. The number of Australian Federal Police Joint Selection Committees increased in 2004–05 in comparison with 2003–04, when only 166 were conducted. Other fee-for-service work undertaken on behalf of the Merit Protection Commissioner included staff selection training for the Australian Federal Police; grievance investigations; and participation as a convenor or panel member on selection advisory committees.
Table M6: Employment-related services, 1 July 2004 to 30 June 2005
| Nature of service | Number completed |
| Joint Selection Committees | 243 |
| Training | 27 |
| Scribing Service for Selection Advisory Committees | 7 |
| Grievance Investigations | 4 |
| Other | 3 |
| Panel Member on Selection Advisory Committees | 3 |
| Convenor on Selection Advisory Committees | 2 |
| Total | 289 |
Table M7: Joint Selection Committees convened, 1 July 2004 to 30 June 2005
| Organisation | Separate Committees established | Applicants | Placements recommended |
| Australian Federal Police | 239 | 2730 | 775 |
| Non-APS governing bodies | 4 | 128 | 81 |
| Total | 243 | 2858 | 856 |
