Public Service Act 1999 Advice No. 13: Review of actions

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Please note: This document is for reference purposes only and is no longer considered by the APS Commission to be current. It may contain good practice advice and/or advice on the transitional arrangements between the 1922 and 1999 Public Service Acts.

Introduction

1. This advice is one of a series of advices to be issued by the Public Service and Merit Protection Commission (PSMPC) concerning the Public Service Act 1999 (the new PS Act) and the Public Employment (Consequential and Transitional) Amendment Act 1999 (the PECTA Act). The new legislation came into operation on 5 December 1999.

2. The purpose of this advice is to provide information on the current intentions in relation to regulations for review of actions under the new Act and Division 5.3 of the Public Service Regulations made under it.

3. This advice is complemented by Advice Number 14 which deals specifically with applications for review of promotion decisions.

Background

4. Under the Public Service Act 1922 (the old Act), officers of the Australian Public Service were entitled to apply for the review of a wide range of actions which affected them in the course of their employment. These reviews took a variety of forms, including:

reviews of specific decisions under old Public Service regulations 75 to 81;
investigation of general employment grievances lodged under old Public Service Regulations 82 to 86;
procedural reviews of non-appellable promotions under section 50DAA of the old Act;
appeals against promotions or directions to temporarily perform duties of a higher classification;
appeals made under section 63D of the old Act against findings of misconduct and consequent penalties; and
appeals made under section 76Z of the old Act in relation to certain decisions to redeploy officers.

5. These provisions enabled review of these actions either by the employing authority, the Merit Protection and Review Agency (MPRA), which had the power to conduct a review and make appropriate recommendations to the employing authority, or by an independent committee constituted by the MPRA to determine the particular issue referred to it. In some cases, typically those matters dealing with a grievance lodged under the Public Service Regulations, review of an action by the MPRA followed a mandatory internal review of the action by the employing authority.

Changes under the new legislation

6. Apart from the review of certain promotion decisions (dealt with in Advice Number 14), with the implementation of the new Act it is intended that APS employees will have access to a streamlined framework which will provide a single process for review of actions. This review can be conducted by the relevant Agency Head or, in certain circumstances, by the Merit Protection Commissioner (MPC), a new statutory office created by the new Act. Although the regulations retain a two tier review process with applicants able to approach the MPC to seek independent external review of an action, it is the Government's intention that, wherever possible, applications for review will be resolved within the Agency by the Agency Head.

General principles

7. The APS Values note that the APS is to provide a "fair system of review of decisions taken in respect of APS employees" (section 10(1)(o) of the new Act). Further, it is the policy of the Australian Government that APS Agencies should achieve and maintain workplaces that encourage productive and harmonious working environments.

8. Within this context, it is expected that employees' concerns should be dealt with quickly, impartially, and fairly.

9. The review processes developed and implemented within Agencies should also be consistent with the use of alternative dispute resolution methods to reach satisfactory outcomes where appropriate. Nothing in the new framework for review described in this advice is intended to prevent an application for review from being resolved by conciliation or other means at any time before the review process is completed. Rather, the new system provides significant flexibility to Agencies to deal with individual situations as they arise.

Actions which may be reviewed under these arrangements

10. Subject to certain exceptions, under the review provisions (section 33) of the new Act a non-SES APS employee is entitled to apply for review of any action, including a failure or refusal to act, that relates to his or her APS employment.

Some actions are not reviewable

11. Some actions, however, are specifically exempted by the Public Service Regulations from review including:

the termination of the employee's employment;
actions which have led to a valid application for review to a Court or Tribunal;
action relating to the engagement of an APS employee; action taken as part of a machinery of government change under section 72 of the Act;
action arising under any of the following Acts:
- Australian Security Intelligence Organization Act 1979
- Safety, Rehabilitation and Compensation Act 1988
- Superannuation Act 1976
- Superannuation Act 1990
action taken by a Promotion Review Committee (see Advice Number 14) or an Independent Selection Advisory Committee (see Advice Number 15) or a decision by an Agency Head made in accordance with the recommendation of an Independent Selection Advisory Committee;
action relating to the promotion of an APS employee as an SES employee (whether or not the employee is already an SES employee); action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:
- a reduction in classification; or
- relocation to another place; or
- a promotion that meets all of the following criteria:
  - the affected employee was an applicant for the promotion;
  - the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules;
  - there were serious defects in the selection process; or
- the assignment or reassignment of an employee to duties that the employee could not be reasonably expected to perform.

Some actions need not be reviewed

12. Unlike the provisions which applied under the old Act, Agency Heads have a discretion to decide that certain actions should not be reviewed. The grounds for such a decision are set out in the Public Service Regulations and include:

the application for review of the action was made more than 1 year after the action complained of, and there are no exceptional circumstances explaining this delay;
the application for review of the action is frivolous or vexatious;
the affected employee has previously applied for review of the action under the review of actions provisions;
the affected employee has applied to have the action reviewed by a Promotion Review Committee;
the affected employee has applied, or could apply, to have the action reviewed by an external review body and review by the review body would be more appropriate than review under these provisions;
the affected employee does not have sufficient direct personal interest in review of the action;
review, or further review, of the action is not otherwise justified in all the circumstances.

13. The Merit Protection Commissioner may also decline to review a matter on these grounds.

Applications for reviews

Making applications for review

14. In most cases applications for review of actions should be made to the relevant Agency Head in the first instance.

Circumstances under which an employee may seek initial review by the MPC

15. An application for review must be made to the Merit Protection Commissioner if the application is for review of:

a determination that the affected employee has breached the Code of Conduct; or
a sanction imposed for breach of the Code of Conduct.

16. Also, the employee may apply in writing to the Merit Protection Commissioner for review of the action if:

the Agency Head was 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
the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.

Form of the application

17. Applications for review of actions must be in writing, may be addressed to the relevant Agency Head and must state briefly: why the review is sought; and any specific outcome which the employee is hoping to achieve by having the action reviewed.

Action on receipt of a request for review

18. When an Agency Head receives an application for review of an action they may

form a view that the action is not reviewable, or should not be reviewed, having regard to the criteria specified in the legislation and discussed earlier in this advice; or
seek to refer the review request to the Merit Protection Commissioner for independent review; or
conduct a review.

19. Where an Agency Head forms a view that an action is not reviewable under these provisions, or should not be reviewed, they must return the application to the employee and advise them, in writing

of their view that the action is not reviewable;
of the reasons why they have formed that view; and
of the employee's right to apply to the Merit Protection Commissioner for review of the original action.

20. An Agency Head may, with the agreement of the Merit Protection Commissioner, refer an application for review of action directly to the Merit Protection Commissioner for consideration. Usually, this will occur when either:

the Agency Head was directly involved in the action; or
the Agency Head thinks that it is not appropriate for them to deal with the application because of the seriousness or sensitivity of the action.

If the Agency Head refers the application to the Merit Protection Commissioner, the Agency Head must advise the employee in writing that that has occurred.

21. If an Agency Head comes to the view that an application does concern a reviewable action, and that a review should be conducted within the Agency, then the Agency Head must review the action and attempt to resolve the employee's concerns. It is open to the Agency Head to decide on an appropriate method for reviewing the action within the principles outlined at paragraphs 7 to 9 above.

22. It is expected that, having conducted the review, the Agency Head will:

confirm the action; or vary the action; or
set the action aside and substitute a new action.

23. The Agency Head must tell the employee in writing of:

any decision made on the application; and
the reasons for the decision; and
any action to be taken as a result of the review; and
the applicant's right to apply to the Merit Protection Commissioner for any further review of the action.

Reviews requested by former employees

24. Applications for review of actions under these provisions are limited to non-SES employees. Former employees who have separated from the APS do not have the same formal rights to reviews of actions as are contained within the regulations. It is, however, open to Agencies to deal with applications from ex-employees on a case-by-case basis in a manner they believe appropriate to the circumstances.

25. Former employees have a limited right to review of certain actions (relating to entitlements on separation) directly by the Merit Protection Commissioner.

Further advice

26. Further advice in relation to review of promotion decisions is contained within Advice Number 14, Promotion Reviews.

27. PSMPC contact is ph: 02 6202 3859.

Boris Budak
Acting Merit Protection Commissioner

16 December 1999