Circular 2010/3: Changes to timeframes for lodging Review of Actions

Section 33 of the Public Service Act 1999 (the Act) provides that an APS employee is entitled to review of any APS action relating to his or her employment, subject to exceptions expressed in the Public Service Regulations 1999 (the Regulations). Under the Regulations, an action may not be reviewable if the application for review is made outside the time limit established for review.

Following consultation with agency heads and relevant unions, the Regulations have been amended to change the time limits for applications for review of action by APS employees.

The changed arrangements will impact all non-SES employees who seek a review of an employment action that occurs on or after 2 August 2010. The changed arrangements do not affect action occurring before 2 August 2010.

The changes do not apply to promotion reviews.

Background

A review of action is an application by an APS employee that seeks a reconsideration of action taken that relates to his or her employment. It may relate to a refusal or failure to take action.

Regulation 5.23(3)(a) provides that an action ceases to be a reviewable action if the application for review is made more than one year after an action happened, or did not happen, and there are no exceptional circumstances to explain the delay in making the application.

Public Service Amendment Regulations 2010 (No. 1) (the Amendment Regulations) takes effect from 2 August 2010 and will amend Regulation 5.23(3)(a), and insert a new Regulation 5.23A containing new timeframes, The Amendment Regulations are available on the Commission’s website at http://www.apsc.gov.au/publications/legislation.htm.

The Merit Protection Commissioner believes the changes will better meet the policy objectives that reviews be conducted quickly, fairly and impartially, and that productive and harmonious workplaces be encouraged.

Scope of the Amendments

Part 5 of the Regulations requires an APS employee to apply first to the relevant agency head for review for the majority of employment-related decisions and actions (a primary review). An employee is only able to apply directly to the Merit Protection Commissioner for primary review in the circumstances set out in Regulation 5.24. Under Public Service Regulation 5.29, an employee may apply to the Merit Protection Commissioner for secondary review if he or she:

• is dissatisfied with the outcome of the agency’s review,
• has been advised by the agency that the matter is not reviewable.

The new timeframes outlined below replace the current one year period, but only apply to action taken, or Code of Conduct outcomes determined, from 2 August 2010. Action and Code of Conduct outcomes prior to that date are still subject to the one year period.

Primary reviews

Where an APS employee seeks a review of an action that happened on or after 2 August 2010 the timeframe for an application for primary review to be lodged with an agency will be 120 days from the date of the relevant action.

For a primary review involving a breach of the APS Code of Conduct the timeframe will be 60 days from either the determination of the breach or from the imposition of the sanction.

In a review in any of the following circumstances the timeframe will also be 60 days from the date of the relevant action:

• where the agency head is directly involved in the action
• it is not appropriate for the agency head to deal with the application
• the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.

The longer timeframe for primary review by the agency is to enable informal dispute settlement methods within the agency to be considered and managed.

An application received outside the above timeframes will be considered only if there are exceptional circumstances to explain the delay in making the application.

Secondary reviews

Where an APS employee seeks a review of an action that happened on or after 2 August 2010 the timeframe for an application for secondary review to be lodged with the Merit Protection Commissioner will be 60 days from the date the employee is told either the outcome of the primary review or that the action is not considered reviewable.

An application received outside the above timeframe will be considered only if there are exceptional circumstances to explain the delay in making the application.

Implementation

The new timeframes will be applied to reviews of actions on and from 2 August 2010. The Amendment Regulations are able to be disallowed by Parliament. Further advice will be issued should disallowance occur.

Agencies will need to ensure that their guidance material on review of actions is updated to reflect the new timeframes. It is also recommended that Agencies advise employees of the relevant time period involved when advising them in accordance with the Regulations of their to seek review [see eg Regulation 5.26(c), Regulation 5.27(3)(d)].

Further advice

Advice on the review of actions provisions is available on the Commission’s website at http://www.apsc.gov.au/merit/reviewactions.htm. The Commission is developing questions and answers covering the most common scenarios arising from the new timeframes which will be available on the website shortly.

Further information on the matters raised in this circular can be obtained from the Merit Protection Commissioner’s Helpline - by phone on (02) 6202 3849 or e-mail mpc.canberra@apsc.gov.au.

 

Annwyn Godwin
Merit Protection Commissioner

7 July 2010