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Merit Protection Commissioner's report : Transmittal letter : Merit Protection Commissioner's review : Role, function and structure : Management accountability : Review of performance : Analysis of performance
Case studies
Analysis of performance
This part of the report provides information on reviews of action the Merit Protection Commissioner undertook during the period 1 July 2006 to 30 June 2007. The review scheme under section 33 of the Public Service Act 1999 (the Act) and Part 5 of the Public Service Regulations provides that an APS employee is entitled to review, in accordance with the Regulations, of an action that relates to their employment. Most matters that affect employees personally in the course of their employment can be dealt with in this way, except where specifically excluded by the Regulations.
There are three main categories of reviews of actions conducted by the Merit Protection Commissioner: review of certain promotion decisions; review of breaches of the APS Code of Conduct; and other reviews. Table M1 provides information on the reviews of actions received and completed and the timeliness of these reviews during the year.
Applications for review of promotion decisions up to and including APS Classification Group 6 jobs can be made by APS employees who were applicants for promotion to those jobs. After assessing the relative merits of the person or persons promoted and of the applicant or applicants for review, a three-member Promotion Review Committee will either confirm or vary the original promotion decision. The Committee’s decision is binding but may be subject to judicial review (see Promotion Review Committees in Table M1).
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 may be made directly to the Merit Protection Commissioner (see Primary reviews – Code of Conduct in Table M1).
Certain other applications for review may also be lodged directly with the Merit Protection Commissioner, for example where the relevant agency head was directly involved in the action (see Primary reviews—other in Table M1).
Other applications for review of an action that may be lodged with the Merit Protection Commissioner are where the applicant has been advised by the agency head that the action is not reviewable or where the applicant is dissatisfied with the outcome of the primary review conducted by the agency head (seeSecondary reviews in Table M1).
Former APS employees can apply to the Merit Protection Commissioner for review of their entitlements on separation from the APS (see Complaints by former employees in Table M1).
This part of the report also provides information about the Merit Protection Commissioner’s other functions including: inquiring into whistleblowing reports; establishing Independent Selection Advisory Committees (ISACs); and performing certain other employment-related functions on a fee-for-service basis.
Review of certain promotion and engagement decisions
Compared with last financial year, there was a significant reduction in the number of both applications for promotion review and of the cases completed this year. In 2006–07, there were 303 individual applications for promotion review (783 in 2005–06) and 45 cases were completed during the year (105 in 2005–06). In this report, a case means an application by one or more APS employees for review of a promotion decision or decisions arising from a discrete agency selection exercise. This decrease went against the general trend of the last few financial years. There was a slight decrease of 1.6 per cent in the number of reviewable promotions and engagements gazetted in 2006–07 compared with 2005–06.
The lower number of applications for promotion reviews during the period is likely to be due to several large national staff selection exercises where ISACs were used. In particular, the Australian Taxation Office and the Department of Defence have completed or are currently undertaking ISACs to fill vacancies in a number of their offices across Australia, involving significant numbers of employment opportunities.
Table M3 provides information on the agencies involved in promotion reviews as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Unsuccessful candidates for a promotion may lodge an ‘active’ application in which they are applying for review of the promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a ‘protective’ application.
During the year, applications for reviews were received in relation to promotion decisions made in 13 agencies. Four agencies with ten or more applications for review are identified in Table M3. Nine other agencies that had less than ten applications for review are not separately identified.
Promotion Review Committees (PRCs) varied 8 (2.6%) of the 307 promotion decisions reviewed. This compares to variation rates of about 5 per cent of decisions reviewed in previous years. The largest PRCs were those involving promotion decisions in the Department of Immigration and Citizenship, two with over 30 applications and two with over 20 applications. Most other PRCs involved fewer than 10 applications each.
| Agency | Total applications received | ‘Active’ applications received | ‘Protective’ applications received | Promotion decisions considered | Promotion decisions varied* |
|---|---|---|---|---|---|
| Department of Immigration and Citizenship | 196 | 48 | 148 | 202 | 3 |
| Centrelink | 41 | 9 | 32 | 51 | 0 |
| Australian Customs Service | 35 | 17 | 18 | 21 | 1 |
| Department of Defence | 14 | 14 | 0 | 14 | 2 |
| 9 other agencies | 17 | 13 | 4 | 19 | 2 |
| Total | 303 | 101 | 202 | 307 | 8 |
| Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications 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 2006–07, 132 applications for review, other than for review of promotion decisions, were received. In addition, 31 applications were carried over from the previous reporting period. During the year, the Merit Protection Commissioner completed 76 reviews in this category (one more than in 2005–06).
The types of issues raised in the applications are shown in Figure M1 below. Breaches of the Code of Conduct accounted for 28 (37%) of the total. This was a slightly lower percentage than in 2005–06 (40%). Other matters reviewed related to conditions of employment, including salary, allowances, leave and other entitlements 18 (24%); workplace environment, including bullying and harassment, management practices and training and development 14 (18%); performance management, including performance appraisal and pay 4 (5%); issues about duties, including assignment of duties, selection processes and job reclassification 4 (5%); entitlements on separation 6 (8%) and misconduct procedures 2 (3%).
About Figure M1
Figure M1 shows the breakdown of issues that have been raised in reviews by their subject.
Table M4 provides a breakdown of the number of reviews by agency. As has been the case for the last three years, the agencies with the highest number of applications for review were Centrelink, the Australian Taxation Office and the Department of Defence.
| Agency | Primary reviews - Code of Conduct | Primary reviews - other | Secondary reviews | Complaints by former employees | Total |
|---|---|---|---|---|---|
| Centrelink | 7 | 1 | 11 | 0 | 19 |
| Australian Taxation Office | 5 | 0 | 9 | 2 | 16 |
| Department of Defence | 7 | 0 | 4 | 1 | 12 |
| Department of Health and Ageing | 1 | 0 | 2 | 1 | 4 |
| Australian Customs Service | 2 | 0 | 1 | 1 | 4 |
| Department of Immigration and Citizenship | 0 | 1 | 1 | 0 | 2 |
| Department of Tourism and Resources | 1 | 0 | 1 | 0 | 2 |
| Department of Veterans’ Affairs | 1 | 0 | 1 | 0 | 2 |
| CRS Australia | 0 | 0 | 2 | 0 | 2 |
| Australian Bureau of Statistics | 1 | 0 | 1 | 0 | 2 |
| 11 other agencies | 3 | 3 | 3 | 2 | 11 |
| Total | 28 | 5 | 36 | 7 | 76 |
| Note: 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 a decrease in the number of applications received that related to breaches of the Code of Conduct, 35 in 2006–07 compared with 42 in 2005–06 (and 41 in 2004–05).
During the year, 28 reviews were completed. They included: inappropriate use of email or internet; failure to comply with lawful and reasonable directions; unauthorised accessing of client information (‘browsing’); failure to show courtesy and respect; misuse of travel card; incorrect time keeping; unauthorised use of Commonwealth vehicles and mishandling of classified material.
Of these reviews, 19 involved review of both the determination that the applicant breached the Code of Conduct and the sanction imposed for the breach. Eight applicants sought review only of the sanctions that were imposed on them and one applicant sought review only of the determination that they breached the Code of Conduct.
In each of the 28 completed reviews, the Merit Protection Commissioner made a formal recommendation to the relevant agency that the decision under review be either confirmed (15), varied (10) or set aside (3).
As noted earlier, the Federal Magistrates Court decision in Walworth v Merit Protection Commissioner & Anor [2007] FMCA 24 (23 February 2007) impacted on the way in which the Merit Protection Commissioner conducts reviews of action in Code of Conduct cases. Previously, where there was a breach of the agency procedures in dealing with such cases, the Merit Protection Commissioner sought to alleviate the breach by, for example, providing additional opportunity for the applicant to be heard where this might not have been adequately provided by the agency. Now, if the relevant agency procedures have not been substantially complied with, the Merit Protection Commissioner is required to recommend that the decision under review be set aside and that consideration be given to the process being redone by a different decision maker.
For this reason, when reviewing a Code of Conduct decision, the Merit Protection Commissioner will be able to consider the merits of the case only after any compliance issues have been addressed by the agency, including if necessary a fresh consideration.
Other reviews
This year, 97 applications for review involving matters other than promotion decisions or breaches of the Code of Conduct were received. Of the 48 cases reviewed, the Merit Protection Commissioner made recommendations to set aside or vary the decision in 14 (29%) cases. In all other cases the original actions of the agencies were confirmed.
Other applications for primary review made directly to the Merit Protection Commissioner
In certain circumstances, the Regulations provide for applications for primary review to be made directly to the Merit Protection Commissioner.
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; or 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. Also, regulation 5.25(1) allows the agency head, with the agreement of the Merit Protection Commissioner, to refer an application to the Merit Protection Commissioner in similar circumstances.
During the year, 18 employees made direct application to the Merit Protection Commissioner under regulation 5.24(3) and four applications were made under regulation 5.25(1). Only 5 cases met the specified criteria and were reviewed under these provisions during the year.
Matters covered in the review of these applications included: changes to conditions of employment including changes to the private use of a work vehicle and not granting extension of leave without pay arrangements; and management practices including financial assistance for legal advice sought in other reviews of action.
Secondary reviews
Regulation 5.29(1)(a) enables the Merit Protection Commissioner to undertake a secondary review where the agency head has told the employee an action is not a reviewable action. Also, regulation 5.29(1)(b) enables an APS 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.
During 2006–07, 68 applications for secondary review were received. Compared with 2005–06, this was a decrease of 11 per cent. Thirty-six cases were completed during the period.
Matters covered in the review of these applications included: issues relating to: conditions of employment such as leave arrangements, salary and allowances; bullying and harassment; performance management and performance pay; attendance on training and development courses; and the way duties were assigned and reclassifications were managed.
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. During 2006-07, seven complaints were investigated. Matters covered in the review of these applications included recognition of and payment in lieu for long service leave and other leave, recovery by the agency of Higher Education Contribution payments made and non-payment of performance pay.
Independent Selection Advisory Committees
An Independent Selection Advisory Committee (ISAC) is an independent three-member committee that makes recommendations to an agency head about the suitability of candidates for employment opportunities at classifications in APS Classification Groups 1 to 6.
At an agency head’s request, the Merit Protection Commissioner may establish an ISAC, usually on a fee-for-service basis. An ISAC consists of a convenor nominated by the Merit Protection Commissioner and two members, one nominated by the Merit Protection Commissioner and one nominated by the agency head. While the Merit Protection Commissioner has issued binding instructions about the procedures to be followed by ISACs, they are otherwise not subject to direction in carrying out their duties except by a Court.
The ISACs process is a streamlined, cost-effective, merit-based selection process which offers flexibility to accommodate a range of selection assessment techniques. While ISACs can be used for selection exercises of any size, given that a promotion decision made on the recommendation of an ISAC is not subject to promotion review and that ISACs are independent and impartial, they are particularly suitable for large or sensitive selection processes. An order of merit established by an ISAC can be used to fill future similar vacancies for 12 months from the initial notification of the employment opportunity.
Table M5 provides information on the number of ISACs established, by agency and the number of candidates considered and recommendations made. The number of ISACs that were established and that completed their selection exercises during 2006–07 was 84 (compared to 99 in 2005–06). However, in 2006-07 there were 101 requests for new ISACs (87 in 2005–06). This continues the trend over the last few years of increased use and acceptability of ISACs. During the year, ISACs considered 6756 job applications and made recommendations in respect of 1265 candidates.
The Department of Defence and the Australian Taxation Office were the highest users of ISACs during the year. The Department of Immigration and Citizenship also used ISACs to consider a large number of candidates.
| Agency | Committees established | Candidates considered | Candidates recommended |
|---|---|---|---|
| Department of Defence | 38 | 458 | 93 |
| Australian Taxation Office | 14 | 3958 | 551 |
| Department of Immigration and Citizenship | 7 | 941 | 190 |
| Department of Education, Science and Training | 7 | 119 | 42 |
| Australian Customs Service | 6 | 345 | 63 |
| Australian Quarantine & Inspection Service | 4 | 167 | 15 |
| Department of Agriculture, Fisheries and Forestry | 3 | 176 | 93 |
| Department of Foreign Affairs & Trade | 2 | 441 | 177 |
| Department of Families, Community Services and Indigenous Affairs | 1 | 51 | 6 |
| Centrelink | 1 | 73 | 22 |
| Australian Communications and Media Authority | 1 | 27 | 13 |
| Total | 84 | 6756 | 1265 |
Whistleblowing
The Public Service Act 1999 (the Act) and Regulations provide a scheme for APS employees to report alleged breaches of the Code of Conduct (such reports are known as whistleblowing reports). Agency heads are responsible for establishing procedures for dealing with whistleblower reports. In the first instance, such reports are expected to be made to and investigated by, the relevant agency head. 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, a whistleblowing report may be referred to the Public Service Commissioner or the Merit Protection Commissioner. Information on whistleblowing reports made to the Public Service Commissioner is contained in her annual report.
At the start of 2006-07, there were two whistleblowing reports on hand. During the year, ten reports were received, five more than in 2005-06. Six of those reports were out of jurisdiction, four were not accepted as the Merit Protection Commissioner considered that the relevant matters could more appropriately be considered by the relevant agency head, at least in the first instance and one did not provide evidence in support of the allegations made to justify an inquiry. Issues raised included alleged conflict of interest and bullying and harassment. There was one report on hand at the end of the reporting period.
Other functions
Under the Act, the Public Service Minister can ask the Merit Protection Commissioner to inquire into an APS action and report to the Minister on the results of the inquiry. No such requests were received during the reporting period.
The Act also provides for the Merit Protection Commissioner to inquire into alleged breaches of the Code of Conduct by the Public Service Commissioner and to report to the Presiding Officers on the results of such inquiries. No such allegations were received during the reporting period.
Employment-related services (fee-for-service)
The Regulations provide that the Merit Protection Commissioner may, but is not required to carry out a range of employment-related functions on behalf of various non-APS bodies such as Commonwealth authorities to which the Act does not apply. The Merit Protection Commissioner may charge a fee for such services.
Some of the services are provided on an ongoing basis under a standing memorandum of understanding. For example, the Merit Protection Commissioner has had for some time an arrangement with the Australian Federal Police (AFP) to provide convenors for selection panels for vacancies that arise in that organisation. These are known as Independent Selection Advisory Panels (ISAPs). The Merit Protection Commissioner also provides selection training to AFP employees.
Table M6 reports on the employment-related services provided during 2006–07. Table M7 provides details in relation to the AFP Independent Selection Advisory Panels established during the same period.
Other fee-for-service work undertaken on behalf of the Merit Protection Commissioner included various training and staff selection services for a number of non-APS agencies.
| Nature of service | Number completed |
|---|---|
| AFP Independent Selection Advisory Panels | 257 |
| Training | 7 |
| Scribing services for Selection Advisory Committees | 5 |
| Convenor of Selection Advisory Committee | 1 |
| Member of Selection Advisory Committee | 1 |
| Total | 271 |
| Organisation | Number of panels established | Candidates considered | Candidates recommended |
|---|---|---|---|
| Australian Federal Police | 257 | 4421 | 1129 |
