Annual report of the Merit Protection Commissioner

Senator the Hon. Joe Ludwig
Cabinet Secretary
Parliament House
CANBERRA ACT 2600

 

Dear Minister

I am pleased to present the Merit Protection Commissioner’s report for the period 1 July 2008 to 30 June 2009 as part of the Australian Public Service Commissioner’s annual report required by section 51 of the Public Service Act 1999.

This report is prepared in accordance with the guidelines approved on behalf of the Parliament by the Joint Committee of Public Accounts and Audit as required by subsection 51(2) of the Public Service Act 1999. In accordance with the provisions of the Public Service Act 1999, it details the administrative arrangements to support the performance of the Merit Protection Commissioner’s functions, some of the required information is published within the Australian Public Service Commissioner’s Annual Report.

In presenting you with the report on the activities of the Merit Protection Commissioner, I take this opportunity to express my thanks to the staff of the Australian Public Service Commission (the Commission) for their assistance. In particular, I would like to thank the staff of the Commission area offices for their contribution to the work of my office in a time of substantial organisational change.

Yours sincerely

 

Annwyn Godwin
Merit Protection Commissione

October 2009

Merit Protection Commissioner’s Review

Purpose and nature of role

The Merit Protection Commissioner is an independent statutory office holder who contributes to maintaining high standards of public administration through:

• ensuring that the Australian Public Service (APS) Values are applied effectively
• improving the quality, efficiency and effectiveness of agency employment- related decisions and the management of merit-based employment
• supporting agencies to maintain fair review procedures
• promoting the highest ethical standards.

In particular, the Merit Protection Commissioner is responsible for:

• overseeing the APS review of employment actions scheme by providing independent review as well as guidance and feedback to agencies on review arrangements and employment decision making
• working with APS agencies to deliver effective, merit-based selection processes including establishing Independent Selection Advisory Committees to assist in agency recruitment programs
• supporting public sector agencies more broadly, and other organisations, with employment-related services on a fee-for-service basis
• inquiring into whistleblowing reports
• conducting inquiries at the request of the Minister responsible for the public service.

The staff who support the Merit Protection Commissioner in the performance of these functions are employed in the Australian Public Service Commission and are made available by the Public Service Commissioner.

Focus this year

In 2008–09, I worked closely with the Public Service Commissioner to support the government’s integrity and ethics agenda by promoting the role of ethical decision making in the APS. In this capacity, I worked with agencies to enhance understanding of the contribution of a fair system of review of employment decisions to a high-performing and ethical APS.

Positive, respectful and professional working relationships, and the effective management of employee disputes, are indicators to employees and the general community of a management culture that is consistent with the APS Values. My role in providing independent review means that decision makers are aware that not only the decision, but how that decision was made, is open to external review; this in turn builds public confidence in the APS.

In particular, I promoted these messages through regular articles in SES notes, a quarterly e-newsletter sent to members of the Senior Executive Service (SES) by the Public Service Commissioner, and addressed over 26 agency conferences and networks of senior employees on ethical employment decision making and related topics. In addition, I spoke at 14 SES and Executive Level training forums on issues ranging from agency health to performance and conformance and the ethics renewal agenda.

The Principal Adviser, Review and Legal, who is my delegate in the majority of review cases, and I met with agencies to discuss issues and potential trends arising from the review casework. These discussions focused on early intervention and taking a preventative approach when managing employment issues in the workplace to avoid protracted formal disputes. Early intervention provides a pathway for both agencies and employees to once again be part of a high-performing public service.

A discussion of issues arising from my office’s review case load is provided at the end of this report.

I assisted the Public Service Commissioner in supporting international public sector reform. This included briefings for international delegations from Indonesia, Hong Kong and Vietnam, which I conducted or were undertaken by review staff on my behalf. I also met with senior public servants from the Netherlands, Canada and China. I also assisted the Public Service Commissioner as an independent member of a number of statutory officer appointment committees for the Social Security Administrative Tribunals and the Migration and Refugee Review Tribunals.

The National Public Sector Appeals Conference, held in Sydney between 22 and 24 October 2008, was attended by the Principal Adviser and the Director, Review Casework and Inquiries. The conference is held annually and provides an opportunity for the exchange of views by senior Commonwealth, state and territory public sector representatives engaged in external review of employment-related decisions.

During the year, I promoted my role and functions in a number of practical ways and published a series of pamphlets on my statutory functions. These included general and specific information on review and employment services. The pamphlets were distributed to APS agencies and published on the Commission’s website.

The workload and performance of the review function are discussed below under Outcomes. While the volume of the review case load was steady, there was a reduction in volume in promotion reviews and employment services. This enabled innovations and improvements which have enhanced review performance against standards and improved the quality of the service provided.

These changes involved enhanced case management and providing greater support to review officers to improve the timeliness of decisions and the quality of the handling of reviews. A guide for reviewers was finalised that provides a framework for case management and decision making and guidance on interpreting legislation.

An internal conference of review officers was held in November 2008 to discuss streamlining the management of reviews. The conference provided legal briefings and facilitated discussions to develop the knowledge and skills of review officers. A particular focus was the practicalities of getting to a ‘right’ decision—that is, identifying a review outcome that is legally and technically correct as well as being practical to implement and sustainable for all parties. This latter aspect is very important in encouraging all parties to move on and improve an employment relationship that has been tested.

The 2008–09 financial year was a year of change. The increased efficiency dividend and global financial crisis had an impact on agency budgets, which in turn affected levels of recruitment activity. This has had a significant impact on the demand for fee-for-service functions provided by the Merit Protection Commissioner, including Independent Selection Advisory Committees.

The Commission has had to manage its budget carefully and has looked for administrative efficiencies. The Public Service Commissioner restructured the Commission in the second quarter of 2009 primarily to align its structure with the needs of client agencies but also to support efficiencies.

In this context, the review of employment actions casework was centralised in a new Ethics Group in Canberra to allow for further improvement in the management of reviews, including improved client service, and to provide economies of scale. The restructure brings together the Ethics Advisory Service and the review function in the one group, enabling operations to inform policy development and advice.

The fee-for-service functions of the Merit Protection Commissioner, including Independent Selection Advisory Committees, moved to the Commission’s National Business Centre which manages the employment fee-for-service work for both Commissioners.

Outcomes

There was a marked improvement in the performance of the review function in 2008–09.

For reviews of employment actions (excluding promotion reviews), this was in the context of a stable workload. The number of applications was similar to the previous year but there was a marked improvement in the timeliness with which review decisions were made. Eighty-six percent of reviews of employment actions were completed within target time frames, compared with 41% in 2007–08.

In almost 9% of cases, it was recommended that the agency’s original decision be varied or set aside. The majority of these recommendations were made in reviews of Code of Conduct decisions. Further discussion of the reasons for these recommendations is provided under ‘Breaches of the Code of Conduct’. In 2008–09 all but two of these   recommendations were accepted by the agency concerned, which is similar to the acceptance rate in previous years.

The work of the Merit Protection Commissioner has been significantly affected by the reduction in recruitment activity in the APS, which led to a substantial reduction in demand for employment services from the previous year. The number of Independent Selection Advisory Committees fell from 73 in 2007–08 to 41 in 2008–09, with far fewer requests from agencies that were previously high users of these committees, in particular the Australian Taxation Office and the Department of Defence.

The demand for other employment services also fell significantly over the year from 213 in 2007–08 to 38 in 2008–09, in large part because of reduced use of the Merit Protection Commissioner’s recruitment services by the Australian Federal Police.

The reduction in recruitment activity has influenced the level of promotion review applications. The number of Promotion Review Committees convened fell from 100 (representing 439 applications) in 2007–08, to 58 (representing 170 applications) in 2008–09—a reduction of 42.

There has also been improved performance with respect to promotion reviews. The average completion time for promotion reviews fell from 6.71 weeks in 2007–08 to 5.98 weeks in 2008–09, with 94% of promotion reviews completed within the target time frame of eight weeks.

Further information on reviews of employment actions, promotion reviews and employment services is provided under ‘Review of performance’.

The number of whistleblower reports considered by the Merit Protection Commissioner in 2008–09 (six) was the same as in the previous year. The outcome of these reports and the matters covered are discussed below under ‘Review of performance’.

Outlook

My external priority for next year is to continue to support the work of the Public Service Commissioner in promoting the role of ethical decision making in a high- performing APS. I will be publishing a monograph on ethical decision making as part of the Commission’s series of publications supporting the Ethics Advisory Service.

I will also ensure that the lessons learned from the review of actions and whistleblowing casework support the policy development and advice work of the Commission and, where appropriate, are used to inform discussions with agencies. In this regard, I am already beginning to see positive results with agencies taking on the trend analysis feedback provided and evidence of changes in people management practices in subsequent cases. For larger agencies this trend analysis has taken the form of variations in the case load by identifying cases that might inform the development or interpretation of an agency’s employment policies and have broader application to the APS. My preventative work in educating agencies about the APS ethics and integrity framework will continue to be a blend of theory and practice and build upon the positive relationships developed with agencies.

I have also commissioned an evaluation of the review of employment actions framework in the APS. This evaluation will be completed in February 2010. Six agencies have agreed to participate, representing large, medium-sized and small agencies, departments and statutory authorities. The evaluation will produce a better practice guide for APS agencies on employee dispute resolution, including review of actions policies and processes.

My internal priorities for the coming year are to maintain the improved performance of the review function. Despite the focus on improved efficiency, it is likely that the proportion of cases completed within target time frames will decrease because of resource constraints driven by budgetary pressures. While time frames are one indicator, the balance of quality and quantity is also important and I will monitor this carefully.

The emphasis on the quality of the review workload will continue. Work will continue to streamline and improve review methodologies with a particular focus on improved information for review applicants and agencies. The intent is to inform review applicants about what they can reasonably expect from making an application to my office, their rights and responsibilities and the types of information the office requires to expedite its decision making. This information should be available on the Commission’s website in 2009–10.

Managing expectations and enhancing the awareness and understanding of the roles of participants is important to optimise the experience and credibility of a review. While not everyone will be happy with the outcome of a review, it is important that everyone feels that they have been given fair opportunity to put forward their case.

The centralisation of the administration of promotion reviews in the Canberra office will be completed in 2009–10. Centralisation will lead to increased efficiency including a greater use of information technology. This includes web-based tools to manage communication with review applicants and other parties to promotion reviews. There will also be improved information for review applicants, APS employees and agencies on the Commission’s website.

I will carefully monitor the centralisation of the review of actions casework and of the administration of promotion reviews, including its effectiveness in leading to improved client service for individual APS employees and agencies.

Role, function and structure

The office of the Merit Protection Commissioner, established under section 49 of the Public Service Act 1999 (the Act), is an independent office located with the Australian Public Service Commission.

Function

The Merit Protection Commissioner’s functions are set out in section 50 of the Act and Parts 2, 4, 5 and 7 of the Public Service Regulations 1999 (the Regulations). They include:

• inquiries into whistleblowing reports made to the Merit Protection Commissioner by APS employees alleging breaches of the APS Code of Conduct
• reviews of employment actions and promotion reviews
• employment services for APS agencies, in particular Independent Selection Advisory Committees
• other reviews, in particular reviews of the entitlements on separation of former APS employees and reviews of the employment-related actions of statutory office holders
• employment services provided to non-APS organisations on request including agencies in other jurisdictions
• other inquiry functions including   inquiries into alleged breaches of the Code of Conduct by the Public Service Commissioner and inquiries into APS actions at the request of the Public Service Minister.

The Merit Protection Commissioner charges a fee for establishing Independent Selection Advisory Committees and for providing employment services.

Organisational structure

The Public Service Commissioner makes available staff to assist the Merit Protection Commissioner in the performance of her functions. The staff involved are members of the Commission’s:

• Ethics Group in Canberra, which provides support with the review function
• National Business Centre in Canberra, which provides employment services to agencies in Canberra
• five area offices, which convene Promotion Review Committees and perform employment services on behalf of the Merit Protection Commissioner.

The delivery of services to clients and the role of area offices are currently under review by the Public Service Commissioner.

The Ethics Group in Canberra also provides coordination and policy support for the Merit Protection Commissioner.

This report and further information about the Merit Protection Commissioner’s role and services are available on the Commission’s website.

Management and accountability

Corporate governance

The Public Service Commissioner, as the head of the Australian Public Service Commission, is responsible for its corporate governance. The Merit Protection Commissioner is a member of the Commission’s Executive—a senior management group chaired by the Public Service Commissioner. The Merit Protection Commissioner also assists in the Commission’s governance arrangements by chairing the Audit Committee and the Information Technology Advisory Committee and providing management oversight to the Ethics and Corporate Groups as appropriate.

The Merit Protection Commissioner and the Public Service Commissioner have a memorandum of understanding for the provision of staff to assist the Merit Protection Commissioner. The Commission’s Principal Adviser, Review and Legal, acts as the main delegate of the Merit Protection Commissioner for review decision making.

Review of performance

Outputs and contribution to outcomes 2008–09

The Commission is included in the Department of the Prime Minister and Cabinet’s Portfolio Budget Statements. The Public Service Commissioner, as head of the Commission, is responsible for the Commission’s financial and human resources and for assessing the level of the Commission’s achievement against its output structure.

The performance indicators and targets relevant to the Merit Protection Commissioner’s functions are provided under ‘Output 1.4—Merit protection and other services’ on page of the Public Service Commissioner’s annual report.

The information on activity and performance provided below in Tables M1 to M9 refers to the Merit Protection Commissioner’s statutory functions.

Review of employment actions

Section 33 of the Act and Part 5 of the Regulations provide a scheme for the review of employment actions affecting individual APS employees. A broad range of employment matters affecting the individual employee in the workplace can be reviewed. The legislation excludes certain employment decisions from the review framework, most notably review of termination of employment.

There are three main categories of reviews of actions conducted by the Merit Protection Commissioner: reviews of promotion decisions; reviews of breaches of the APS Code of Conduct; and reviews of other employment actions.

The information in this section concerns reviews other than promotion reviews. Information on promotion reviews is provided under ‘Review of promotion decisions’.

Table M1 provides information on the number of applications for review received and reviews completed in 2008–09 compared with 2007–08. Table M2 provides information on the timeliness with which these functions were performed in comparison with 2007–08.

The tables make reference to ‘primary’ and ‘secondary’ reviews. Primary reviews are conducted by the Merit Protection Commissioner without first being reviewed by the agency head. They include reviews of decisions that an APS employee has breached the Code of Conduct, and the sanctions imposed as a result of that breach. They also include employment matters where, consistent with the provisions in the Regulations, it would be inappropriate for the review to be conducted within the agency.

Secondary reviews are conducted by the Merit Protection Commissioner where the employee is dissatisfied with the review conducted by the agency head. They also include cases where the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.

In addition, the Merit Protection Commissioner reviews complaints by former APS employees about the entitlements they received upon separation from the APS.

In 2008–09, the Merit Protection Commissioner received 159 applications for review and carried over 41 cases from the previous year. This represents a slight reduction from the 161 applications received in 2007–08.

A total of 157 cases were finalised in 2008–09, of which 88 were reviewed (that is, they were not ruled ineligible or withdrawn before they could be reviewed). The same number of cases was finalised in 2007–08, with 78 reviewed.

The office is carrying over 43 cases to the next financial year, which is consistent with the previous two years.

Table M1: Review of employment actions workload for 2008–09, including a comparison with 2007–08

Cases	Primary reviews—Code of Conduct	Primary reviews—other	Secondary reviews	Complaints by former employees	Total
	2008–09				2007–08	2008–09
On hand at start of year	12	4	25	0	37	41
Received during the period	34	17	105	3	161	159
Reviewed	26	3	58	1	78	88
Not accepted	2	17	27	1	59	47
Lapsed or withdrawn	7	0	14	1	20	22
Total finalised during period	35	20	99	3	157	157
On hand at end of year	11	1	31	0	41	43

Table M2 compares timeliness figures for 2008–09 with those for 2007–08. In 2008–09, there was a significant improvement in the percentage of cases completed within target times. The target time frame for completion of reviews in all these categories is 14 weeks from receipt of application.

Table M2: Comparison of timeliness in handling reviews, 2007–08 and 2008–09

	2007–08		2008–09
Review type	Average time to complete reviews (weeks)	Completed within target time frames (%)	Average time to complete reviews (weeks)	Completed within target time frames (%)
Primary reviews—Code of Conduct	19.58	50	12.12	85
Primary reviews—other	0	-	8.33	100
Secondary reviews	19.80	37	12.31	87
Former employees	0	-	1	100

The reduction in time taken to complete reviews is a result of enhanced case management and streamlining of processes and procedures. A reduction in time frame, without any loss in quality, is an important outcome for both the applicant and the agency as it enables earlier resolution of cases and improves the prospect of returning to a productive working relationship.

Table M3 provides a breakdown of the number of reviews by agency. As has been the case for the last five years, the agencies with the highest number of applications for review were large employers, namely the Department of Defence, Centrelink and the Australian Taxation Office.

Table M3: Reviews completed by agency, 2008–09

Agency	Primary reviews—Code of Conduct	Primary reviews—other	Secondary reviews	Complaints by former employees	Total	Review cases as a percent of total staff
Note: The data on total employment in Table M3 is taken from the APS Employment database. Employment for the Child Support Agency is not separately identified and is included as part of the figures for the Department of Human Services. Percentages have not been provided for agencies that are not separately identified.
Australian Taxation Office	10	0	10	0	20	0.09
Centrelink	4	0	15	0	19	0.07
Department of Defence	5	0	9	0	14	0.07
Child Support	0	0	4	1	5	N/A
Department of Veterans’ Affairs	1	0	3	0	4	0.18
Australian Customs and Border Protection Service	1	0	3	0	4	0.07
Australian Quarantine and Inspection Service	1	0	3	0	4	0.18
Australian Bureau of Statistics	0	0	2	0	2	0.07
Department of Infrastructure, Transport, Regional Development and Local Government	0	1	1	0	2	0.16
Great Barrier Reef Marine Park Authority	0	2	0	0	2	0.85
Medicare Australia	1	0	1	0	2	0.03
Three other agencies (one Code of Conduct review each)	3	0	0	0	3	N/A
Seven other agencies (one secondary review each)	0	0	7	0	7	N/A
Total	26	3	58	1	88	0.07

The types of employment matters for which review is sought are shown in Figure M1. Breaches of the Code of Conduct accounted for 26 reviewed cases (29% of the total), a similar proportion to 2007–08. There was an increase in both the number and proportion of performance management cases (10% in 2007–08 compared with 14% in 2008–09) and a decrease in the number and proportion of harassment cases (21% in 2007–08 compared with 11% in 2008–09).

Breaches of the Code of Conduct

There were 34 applications for review of a decision that an employee had breached the Code of Conduct and/or of the sanction imposed for a breach. Twenty-six cases were reviewed during the year.

Of these 26 cases, eight were primarily concerned with inappropriate use of IT systems, including internet and email. Th ree of these cases concerned browsing of client databases.

Nine cases were primarily concerned with behaviour towards colleagues, including allegations of harassment. Some of these cases also involved sending inappropriate emails to colleagues.

There were two cases in which employees were found to have failed to follow a direction given by their employer. In seven of the cases concerning the misuse of IT systems, the employees were also found to have breached directions given by the employer on the authorised use of IT.

Three cases concerned employees’ failure to record their attendance accurately or false declarations in relation to attendance and duties.

There were three cases in which employees were found to have failed in their duty as public servants. In two cases this involved failing to advise the employer of a court order and criminal conviction, respectively, which was relevant to their employment. In the third matter the employee was accused of failing to disclose information that should have been disclosed as part of a legal discovery process.

There was one case in which an employee was found to have behaved inappropriately outside the workplace while wearing a uniform that identified the employing agency.

The Merit Protection Commissioner confirmed the agency’s decision in 16 of the 26 Code of Conduct decisions reviewed. In the remaining 10 cases, the Merit Protection Commissioner recommended that the agency change its decision.

In nine of the 10 cases, the Merit Protection Commissioner found that the employee had breached the Code of Conduct but took a different view from the agency decision maker about which element of the Code of Conduct had been breached. In five of these cases the Merit Protection Commissioner made no recommendation to vary the sanction. In four cases, the recommendation was to vary both the breach and the sanction.

In one of the 10 cases, the Merit Protection Commissioner recommended that the decision be set aside and redone. This was because of a procedural defect.

The recommendations made to agencies were accepted in all but two cases (both of which involved a recommendation to vary the sanction imposed on the employee). In these two cases, after discussions with the agency and consideration of further information on the business operating environment, the Merit Protection Commissioner concurred with the view put by the agency as to the appropriateness of the sanction.

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 2008–09, three applications were received under this Regulation. One application was withdrawn after the agency concerned recalculated the former employee’s entitlements. One matter was reviewed and the decision confirmed. The final matter was not reviewable as it did not concern entitlements on separation.

Review of promotion decisions

The Merit Protection Commissioner conducts review of promotion decisions made for jobs in APS classification groups 1 to 6. These reviews are conducted by a three- member Promotion Review Committee, which has the power to confirm the decision made by the agency or substitute a different decision.

Table M4: Promotion review case load, 2007–08 and 2008–09

Promotion review cases	2007–08	2008–09
On hand at start of year	13	5
Received during the period	100	58
Reviewed	78	48
Not accepted	4	2
Lapsed or withdrawn	26	12
Total finalised during period	108	62
On hand at end of year	5	1
Target completion time (weeks)	8	8
Average completion time for reviewed cases (weeks)	6.71	5.98
Completed within target time (number)	57	45
Completed within target time (percentage)	73	94

Table M5: Review of promotion decisions by agency, 2008–09

Agency	Total applications received	‘Active’ applications received	‘Protective’ applications received	Promotion decisions considered	Promotion decisions varied
Note: An APS employee may make an application for review of one or more promotion decisions. Not all applications are considered by a Promotion Review Committee. Some applications are withdrawn, held invalid or, in the case of ‘protective’ applications, not activated.
Centrelink	62	10	52	66	3
Australian Taxation Office	27	19	8	21	1
Australian Bureau of Statistics	27	5	22	35	1
Department of Foreign Affairs and Trade	25	7	18	29	0
Workplace Authority	10	3	7	12	0
Eight other agencies	19	16	3	23	0
Total	170	60	110	186	5

In 2008–09, the number of applications for promotion review fell by 61% from the previous year, and the number of Promotion Review Committees convened to consider them fell by just over 40%.

The decrease in 2008–09 is broadly consistent with a decrease in the number of reviewable promotions published in the APS Employment Gazette in 2008–09, compared with 2007–08.

Details of the promotion review case load are in Table M4. In this table, ‘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.

Table M5 provides information on the agencies whose promotions attracted review applications as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Unsuccessful candidates for a promotion may lodge an ‘active’ application seeking review of a promotion decision. Employees who have been promoted and whose promotion may be subject to review may lodge a ‘protective’ application against the promotion of other successful candidates.

During the year, applications for reviews were received in relation to promotion decisions made in 13 agencies. Five agencies with 10 or more applications for review are identified. Eight other agencies with less than 10 applications for review are not separately identified.

Promotion Review Committees varied five (2.7%) of the 186 promotion decisions reviewed. This is lower than the percentage of promotion decisions varied in 2007–08 (4.3%). In recent years the proportion of decisions varied has fluctuated from over 2% to 5%. The low proportion of decisions varied demonstrates that agency recruitment decision making at these classification levels is robust.

The size of cases fell significantly in 2008–09. In previous years, there have been instances of agency selection exercises that have resulted in promotion review applications of 100 or more. This commonly occurs in ‘‘bulk’ recruitment rounds and can significantly delay the capacity of agencies to fill vacant jobs.

This year the largest number of applications for a single exercise was 21. Only four cases had more than 10 review applications, with the majority having five or fewer applications.

The Australian Taxation Office had the largest number of cases (14), but the number of applicants in each case ranged from one to five.

Table M6: Independent Selection Advisory Committees, 2007–08 and 2008–09

	2007–08	2008–09
Note: The number of cases on hand at the end of 2007–08 is reported as 19 in Table M2 on page 107 the 2007–08 annual report. This was a data error and the correct figure is 17.
On hand at start of year	36	17
Received during the period	73	41
Completed	90	50
Lapsed/withdrawn	0	1
Total finalised during the period	90	51
On hand at end of year	17	7

Independent Selection Advisory Committees

Independent Selection Advisory Committees (ISACs) are established by the Merit Protection Commissioner at an agency head’s request, usually on a fee-for-service basis. An ISAC is an independent three- member committee that undertakes a staff selection exercise on behalf of an agency, in particular that part of the process that involves assessing evidence about candidates for a job and making recommendations as to who is most suitable. ISACs may be used for job vacancies in APS classification groups 1 to 6.

Any promotions made following the recommendation of an ISAC are not subject to promotion review.

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.

ISACs work within agency recruitment policies and have the fl exibility to accommodate a range of selection assessment techniques.

Agencies may choose to use ISACs for a variety of reasons. The most common ones are to avoid delays in placing staff resulting from review of promotion decisions and to provide assurance about the fairness and integrity of their recruitment decision making, as the result of the involvement of the Merit Protection Commissioner.

Table M6 provides information on the number of ISACs established, by agency, and the number of candidates considered and recommendations made.

There was a substantial decrease in the number of requests for ISACs in 2008–09 (41 compared to 73 in 2007–08 and 101 in 2006–07). This reflects a reduction in recruitment activity in the APS over the past year and a resulting reduction in demand for the services of ISACs.

Although the number of individual ISACs decreased substantially, ISACs considered more job applications in 2008–09 than in 2007–08 (12,737 compared to 10,811) and made a similar number of recommendations of suitable candidates (2,239 in 2008–09 compared to 2,243 in 2007–08), as detailed in Table M7.

Table M7: Independent Selection Advisory Committees by agency, 2008–09

Agency	Committees established and completed	Candidates considered	Candidates recommended
Child Support Agency	12	974	102
Australian Quarantine and Inspection Service	9	997	315
Department of Defence	9	664	87
Department of Immigration and Citizenship	9	2,248	376
Australian Taxation Office	4	6,916	1,042
Australian Government Land and Coasts	3	172	65
Department of Agriculture, Fisheries and Forestry	2	237	115
Department of Foreign Affairs and Trade	2	529	137
Total	50	12,737	2,239

Employment-related services (fee-for-service)

The Regulations provide that the Merit Protection Commissioner may undertake a range of employment-related functions on behalf of 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 memorandum of understanding.

Fee-for-service work can include staff selection services and training relevant to the Merit Protection Commissioner’s functions, as well as the investigation of grievances, mediation and career advising.

In recent years, a significant proportion of this work has been the provision of members of selection panels for the Australian Federal Police.

There was a substantial reduction in demand for these services in 2008–09, in comparison with the previous year, reflecting in large part a reduced demand by the Australian Federal Police for staff selection services. The number of requests received in 2008–09 was35 compared to 213 in 2007–08 (see Table M8).

Table M8 provides information on the level of fee-for-service activity performed by the Merit Protection Commissioner (excluding Independent Selection Advisory Committees) in 2008-09, in comparison with the previous year.

Table M9 provides information on the nature of the employment related services provided by the Merit Protection Commissioner on a fee-for-service basis in 2008-09, compared with the previous year.

Table M8: Other fee-for-service functions—workload and work completed, 2007–08 and 2008–09

Other fee-for-service functions
	2007–08	2008–09
On hand at start of year	73	9
Received during the period	213	35
Completed	248	39
Lapsed/withdrawn	29	2
Total finalised during the period	277	41
On hand at end	9	3

Table M9: Employment-related services, 2008–09

Nature of service	Number completed
	2007-08	2008-09
Australian Federal Police selection panels	218	31
Training	11	2
Member of Independent Selection Advisory Committee	10	5
Scribing services for Independent Selection Advisory Committees	6	1
Investigation of grievances	2	0
Career advising	1	0
Total	248	39

Whistleblowing

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 handling whistleblowing reports. In the first instance, such reports are expected to be made to, and investigated by, the relevant agency head. Where the employee is not satisfied with the agency’s response to their report, or in other circumstances (for example, 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 Part 2 of the Commissioner’s annual report under Output 1.2.

The Merit Protection Commissioner’s whistleblowing case load in 2008–09 was six cases, the same as in 2007–08. Two of the reports were not accepted. The Merit Protection Commissioner considered in one case that the report could more appropriately be considered by the relevant agency head, at least in the first instance. In the second case, the agency had already conducted a misconduct investigation.

Allegations made included bullying and harassment, irregularities in recruitment processes, attendance fraud and untruthful behaviour during an investigation.

The Merit Protection Commissioner conducted an inquiry into one report concerning bullying and harassment and inappropriate workplace behaviour. The inquiry found that there was insufficient evidence to support recommendations to the agency head that action be commenced under the agency’s procedures for determining breaches of the APS Code of Conduct.

There were three reports 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.

Reviews of employment actions—emerging themes

While the subject matter of review cases has not changed substantially from previous years, there are some trends in agency employment decision making and areas where decision making could be improved.

Code of Conduct

Use of sanctions

Code of Conduct decision making involves assessing evidence about employee behaviour and making a determination about that behaviour. It also involves deciding whether or not to impose a sanction and what level of sanction is appropriate, in light of the proven misconduct.

There has been comment in previous annual reports of the uses that agencies make of sanctions for breaches of the Code of Conduct. In the past year, there have been several cases where, in the view of the Merit Protection Commissioner, the sanctions imposed were influenced by a broader range of management considerations than the seriousness of the proven misbehaviour. These sanctions involved the relocation of line managers or reductions in classification and were imposed, not only to deal with the specific misconduct of an employee, but also as a management response to a poorly functioning team and a longer term failure of leadership in a work area.

An agency may wish to move a line manager from a particular role or from a particular location for a variety of reasons, including improving the functioning of an office. This may be a legitimate action; however, it is not appropriate to rely on the sanction powers if the proven behaviours do not warrant such a sanction. Agencies have available to them the general employment powers under the Act, including section 25, to achieve such objectives. Such decisions need to be open and transparent and procedural fairness needs to be given to the employee affected by the decision. Discussions with agencies have reinforced the role of sanctions in a case of misconduct.

Leadership obligations

Several cases reviewed this year concerned Code of Conduct decisions involving employees at the Executive Level 2 classification who engaged in unprofessional behaviour in the workplace and employees who are IT professionals and were found to have breached agency IT policies.

In these cases, the agencies concerned imposed more severe sanctions than were imposed on other employees for similar behaviour. The agencies held these employees to higher account because of the employees’ leadership roles and/or professional responsibilities.

While the review applicants were concerned about the fairness of these outcomes, these decisions were fair and reasonable. The Commission’s Handling misconduct guidelines note that employees' seniority and the nature of their duties are relevant considerations in setting a sanction, in circumstances where the employee is expected to exercise a greater degree of judgment or where the breach has affected the agency’s confidence in the employee’s ability to perform their current duties. In these cases, the Merit Protection Commissioner has reinforced the expectation of higher levels of professional judgement and behaviour from people in roles requiring leadership or technical expertise.

Procedural concerns

One Code of Conduct decision was set aside for a serious procedural defect, namely an apprehension of bias on the part of the sanction decision maker. In this case, the person who recommended the sanction was a senior business manager who had previously raised concerns about the employee’s behaviour. These concerns had led to an investigation. This person was also senior to the person deciding the sanction. The Merit Protection Commissioner recommended that the decision be set aside and remade because the circumstances created an apprehension of bias on the part of the decision maker.

The Merit Protection Commissioner identified in a number of review cases that investigatory practices could be improved, as could the investigator’s and decision maker’s understanding of the requirements of administrative decision making. Investigators should be aware of the requirement to comply with agency Code of Conduct determination procedures. They also need to be able to assess the relevance of evidence and to ensure that relevant evidence is put to the person under investigation for comment. It is important also that the person who makes the decision about whether or not an employee has breached the Code of Conduct brings an independent view to the evidence and acts to correct any procedural defects in the investigation.

One case revealed an element of confusion about the roles of the person who makes the decision that a breach has occurred (decision delegate) and the person who decides the sanction (sanction delegate). In response to questions raised by the employee under investigation, the sanction delegate sought to revisit evidence that had been decided by the decision delegate. While this action did not affect the sanction decision, it was problematic. Where sanction delegates have concerns about the quality of the evidence relied on to determine that an employee has breached the Code of Conduct, the appropriate action is to refer the matter back to the decision delegate rather than investigate the matter themselves.

This matter was also discussed in an article published in SES notes.

Seeking review of the outcome of a complaint about a breach of the Code of Conduct

Several employees sought review of a Code of Conduct investigation conducted as a result of a complaint made by the review applicant about another employee’s conduct. The Merit Protection Commissioner’s view is that these concerns may be reviewable under the review of actions provisions. The review applicant has standing to the extent that the Code of Conduct investigation concerned actions relating to their employment, for example bullying and harassment directed at them in the workplace. Such matters are usually reviewable in the first instance in the agency as a primary review before coming to the Merit Protection Commissioner as a secondary review.

Other employment actions

Reviews of general employment actions tend to be broader in scope than reviews of Code of Conduct decisions. While procedural fairness and the agency policy framework are important considerations, reviews consider issues more broadly including fairness and consideration of good employment practice. They also consider what outcomes could assist in resolving the employee’s concerns. This is consistent with the general policy on review in the Regulations, which focuses on resolution in the workplace and provision for alternative dispute resolution.

Tackling difficult issues early

Several of the cases that came for review indicated workplace situations where the performance and behavioural issues presented by an employee had not been dealt with in the workplace in a timely, transparent or engaged manner. As a consequence the employee was viewing all subsequent issues, including unrelated and relatively trivial matters, through a prism that ascribed incorrect motives to the actions and inactions of managers.

It is important that line managers are able to identify issues with employees before they become a formal dispute and respond to early warning signs. To do this they need to be sure that they will get the assistance they need to deal with the issue from the management team in the business area and with appropriate case management support from human resources. Early intervention, good communications and open and transparent decision making and working relationships can considerably reduce formal complaints about workplace decisions.

Performance management

Review applicants may dispute the ratings given in a performance assessment and seek a higher rating as the outcome of the review. The person who conducts the primary review within the agency will generally express a view on the rating. However, the Merit Protection Commissioner generally does not do so. In the Merit Protection Commissioner’s view, evidence concerning a person’s performance is more appropriately assessed within the agency by people with knowledge of the business priorities and operational environment of the agency.

In a number of cases that came to review, there was a dispute between the employee and their supervisor about the feedback given on performance, including the validity of informal feedback given outside the formal processes of the agency’s performance management scheme and annual performance cycle.

In reviewing such matters, the Merit Protection Commissioner considers the agency’s performance management policy and whether there was substantial compliance with that policy. Where there is evidence of informal discussions between the employee and their managers on a range of issues including performance, the Merit Protection Commissioner generally takes the view that performance feedback has occurred sufficient for the employee to be aware of the concerns and to have had an opportunity to address them. However, this is made more difficult when such discussions have not been documented.

In several decisions, the Merit Protection Commissioner commented on the responsibilities of more senior employees, including at the Executive Level 2 classification, to receive and act on feedback from their managers, even where they disagree with it and where it was given informally.

Recruitment practices and decisions

While recruitment decisions generally are not subject to review, other than through the promotion review process, in some circumstances the actions of managers and decision makers leading up to the recruitment decision are subject to review.

The Merit Protection Commissioner considered two cases that have broader application. In one case, an employee was seeking a review of decisions about the management of an assessment centre used by an agency to gather evidence about job candidates’ capability in job-relevant situations. This employee was challenging the fairness of a process that assessed candidates who applied for jobs at multiple classification levels at the highest level applied for, with the scores achieved being moderated to determine the score for jobs at lower classification levels.

There was no evidence that the assessment centre process and the methodology used by the agency would not generate sound evidence on candidate capability, and the view of the Merit Protection Commissioner was that the process was therefore consistent with the merit value.

Review applicants also make allegations of serious defects in recruitment processes as part of their request for review. In one case, the Merit Protection Commissioner found that the agency’s recruitment policies were applied inflexibly without regard to the merits of an employee’s case and that this could result in an outcome that was unfair or unreasonable. The Merit Protection Commissioner made no recommendation in relation to the particular circumstances of the review applicant but recommended the agency apply its recruitment policies more flexibly.

Classification level

Two matters concerning classification level came to the Merit Protection Commissioner for review. In one case, a manager created a broadband and moved an employee to a higher classification level in order to pay the employee a competitive salary. Another manager later reversed this decision on the basis that there was no authority to create a broadband under the agency’s workplace agreement. The effect was that although the employee’s salary remained unchanged, their classification level was reduced.

The Merit Protection Commissioner noted that the original decision to create a broadband was not best practice as it was not consistent with policy guidance on the operation of broadbands. This included the requirement that broadbanding should be determined through agency workplace agreements.

However, the Merit Protection Commissioner found that the original decision was technically open to the agency and was not unlawful. The subsequent decision to reduce the classification of the employee without consent was, however, inconsistent with section 23 of the Act and the Merit Protection Commissioner recommended the decision be set aside. The agency accepted the recommendation.

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