Reporting suspected breaches of the Code of Conduct

Forty-four per cent of the reports of suspected breaches of the Code identified in the agency survey arise from the observations of managers, supervisors or work colleagues. Agencies, therefore, have a strong interest in ensuring that all employees are educated in all aspects of the Code, including how they can report suspected misconduct and the protections against victimisation or harassment for them should they do so.

Awareness

The employee survey indicates almost all employees are either familiar with or have heard of the Code. However, when those employees who said they were familiar with the Code or had heard of it were asked to rate their level of familiarity on a five point scale from very high to low, only 55% of employees rated their level of familiarity as high or very high with a further 39% rating their familiarity as moderate.

APS employees who had either heard of the Code or were familiar with the Code became aware of the Code in a number of ways. The most common method continues to be the steps taken by the current agency (71%), followed by steps taken by the employees themselves (31%), with a further 27% reporting being made aware of the Code through Commission material (an increase of three percentage points).

Around 97% of APS employees consider the Code to be moderately or highly relevant to their daily work.¹ However, there has been a fall in the proportion of employees who consider the Code to be highly relevant to their daily work from 84% in 2003–04 to 81% in 2004–05.

The agency survey continues to show that all agencies use measures of some kind to make employees aware of the Code. These measures are discussed in Chapter 7, ‘Embedding the APS Values and the Code’.²

The employee survey also sought information from employees about their confidence that they would not be victimised or discriminated against by people in their agency, if they made a report about a suspected serious breach of the Code.

Table 6.1: Employee confidence that they would not be victimised or discriminated against for reporting suspected breaches, 2004–05

Source: Employee survey

As shown in Table 6.1, for the different groups, 70%, 67% and 75% of employees had a high or moderate level of confidence that they would not be victimised or harassed as a consequence of making a report that they suspected that another person had seriously breached the Code. Overall, there was a slight decrease since 2003–04 in levels of confidence in relation to reporting people from each group. Employee comments, when provided, commonly reflected this variability in confidence.

While there was a slight fall in employees’ confidence about not being victimised or harassed, the percentage of employees who reported they had witnessed a serious breach of the Code remained the same at 11%, and there was no change in the proportion of those employees who reported such suspected breaches (50%).

Employee confidence is positively correlated with the operation of the Values—if an employee agrees that managers and other employees in the agency act in accordance with the Values in their everyday work, then their level of confidence that they would not be victimised or harassed if they reported a suspected breach of the Code is also higher.

This is summed up succinctly by one employee.

Similarly, the data shows that if an employee has witnessed another employee engaging in behaviour they see as a serious breach of the Code, the employee is more likely to have low confidence in not being victimised or harassed.

Common concerns raised by employees who chose to comment on victimisation or harassment were a perceived lack of any transparent action on the part of agencies and observations of the prior bad experiences of other employees under similar circumstances—though not always as a result of employer action.

While this year’s results continue to raise concerns about the willingness of many employees to use processes for raising issues relating to misconduct, the APS compares favourably with state and territory jurisdictions.

In 2004, the WA Commissioner for Public Sector Standards⁴ reported on a survey showing that only 50% of respondents in that jurisdiction believed people who reported wrongdoing were protected from victimisation or harassment. In addition, 21% of the WA public sector employees surveyed indicated that they were aware of an occurrence of unethical behaviour but did not report it, compared to 11% of employees in the APS who reported witnessing a suspected breach of the Code and half of whom did not report it.

Following the survey, the WA Commissioner for Public Sector Standards concluded that WA public sector agencies need to build trust and instil confidence in the process for raising ethical issues and to improve the confidence of employees so that they do not fear adverse consequences if they raise an issue. This finding is also applicable to the APS.

Methods of reporting

Relevant agencies indicated that there had been a significant change since last year in the means by which suspected breaches of the Code had been brought to their attention. The most common means is now through an agency’s compliance or monitoring systems such as audit (accounting for 27% of investigations compared to 15% in 2003–04). While conduct identified by supervisors and/or managers (25%) and conduct identified by work colleagues (19%) remain significant, complaints from members of the public or stakeholders have declined as a proportion of investigations from 17% to 12%. Thirteen per cent of investigations arose from other sources, including notification by another agency, state police, external contractors or specialist groups within an agency.

Of the normal methods for reporting suspected breaches, the least-used method continues to be the whistleblowing framework, despite a small increase in such reports from 2% in 2003–04 to 4% this year.

An APS employee who reports a suspected breach of the Code to the Commissioner, the Merit Protection Commissioner or the agency head (or other appropriately authorised persons) through their agency’s whistleblower procedures is considered to be a ‘whistleblower’.

The APS whistleblowing scheme is provided for in the Act and the Regulations. Section 16 of the Act prohibits the victimisation of, or discrimination against, an APS employee who reports a breach or alleged breach of the Code to an authorised person within the agency. The Regulations require agency heads to establish procedures for dealing with such reports.

One conclusion from the Commission’s report, ‘Managing Suspected Breaches of the Code of Conduct’,⁵ is that, while there is a statutory framework for whistleblowing, many APS employees do not necessarily equate reporting misconduct to a supervisor or other manager with making a whistleblower report.

In last year’s State of the Service report, concern was expressed regarding the possible under-reporting of whistleblower complaints because of an inability on the part of both agencies and employees to recognise when a report of an alleged breach of the Code is also a whistleblowing complaint. This may in part result from agencies designating a wide range of ‘authorised persons’ to receive reports of suspected misconduct (see below) who may not then treat many of the reports of suspected misconduct as whistleblowing complaints.

Whistleblowing reports

The agency survey indicated that only three small agencies had no procedures in place for dealing with whistleblower reports made by employees under s.16 of the Act the Australian Broadcasting Authority (ABA) (now part of the Australian Communications and Media Authority (ACMA), the Australian Film Commission (AFC) and AIATSIS). A further eight agencies (5 small agencies, 2 medium agencies and 1 large agency) reported that they were developing procedures.

The percentage of employees indicating they had been made aware by their current agency that they could report a suspected breach of the Code to an authorised person in the agency (69%) is similar to last year’s. Over three quarters of those employees who were made aware had also been made aware that if they report a suspected breach of the Code to an authorised person they are provided with protection from victimisation and discrimination.

In their responses to the last two surveys, agencies indicated that they received very few reports under the whistleblowing framework. In 2004–05, only 34 (4%) out of a total of 865 formal investigations into suspected breaches of the Code which were finalised were instigated as a result of a report under the agency whistleblower procedures. This is a slight increase from the 2% of finalised cases (25 out of 1083) reported in 2003–04. Even when the intent of the whistleblowing provisions is understood (namely, to protect people making reports), employees may not necessarily have sufficient confidence to initiate the process, despite the protection available against victimisation and discrimination. When employees chose to comment, the potential effect on working relationships was a common concern.

The current whistleblowing provisions and their relationship with the Code are to be examined as part of the review of the Act to be conducted by the Commission in 2005–06. The Commission will provide advice to agencies on any changes to the legislative framework that may result from the findings of the review.

People authorised to receive reports

This year’s survey asked agencies to provide information on the person or people authorised by the agency head to receive whistleblower reports.

The results in Table 6.2 confirm that there is a wide variation in who is authorised to receive reports within agencies. Only 16 agencies (11 small and 5 medium) rely on the agency head and have not authorised any other people to receive reports.

Overall, the most commonly nominated authorised people are the head of corporate services (44%) and the human resources manager (41%).

Table 6.2: Person(s) authorised to receive whistleblower reports, 2004–05

Source: Agency survey

Size and location influence the numbers of authorised people. The numbers of authorised people tended to increase with agency size. Larger agencies also made greater use of the SES and authorised more people outside Canberra, with five large agencies specifically mentioning having regional, state or territory managers as authorised people. The only agencies which reported authorised people below the EL2 level were the Australian Agency for International Development (AusAID) (an EL1 manager staffing) and Centrelink (APS6 upper).

Whistleblower referrals to the Public Service Commissioner or the Merit Protection Commissioner

In circumstances where it is not appropriate for an agency head to deal with a particular matter, or where the whistleblower is not satisfied with the outcome of the investigation by the agency, an APS employee may refer the report to the Commissioner or the Merit Protection Commissioner.

Table 6.3: Whistleblower reports received during 2004–05

Source: Merit Protection Commissioner

As Table 6.3 indicates, the Merit Protection Commissioner received four whistleblowing reports during 2004–05, two less than in 2003–04. Three reports were not accepted and the remaining report and a second report which had not been finalised in 2003–04 were investigated and finalised. Issues raised included: the mismanagement of a range of personnel matters, including leave entitlements and probation; the misuse of Commonwealth funds; and harassment.

The Commissioner received 19 reports in 2004–05, seven more than the number received during 2003–04. Ten of these were from current APS employees, two were from former employees and seven were from private citizens. Only three reports met the criteria for investigation by the Commissioner and these were not finalised in 2004–05. These reports all concerned the conduct of the same person and dealt with a range of matters relating to alleged harassment and the probity of a number of administrative actions and decisions.

The other sixteen disclosures did not meet the criteria for investigation by the Commissioner. As the APS whistleblowing scheme does not cover reporting by members of the public or by former APS employees, advice was provided to complainants on the appropriate ways in which their concerns could be addressed, either by referral to the relevant agency head or to other administrative review bodies. The 10 current APS employees were advised that the scheme requires that, in the first instance, they should direct their allegations to the relevant agency head, unless it is not appropriate for the agency head to deal with a particular matter or where the whistleblower is not satisfied with the outcome of the investigation by the agency.

Matters covered in the sixteen reports ranged from concerns about taxation issues and payments administered by Centrelink to actions in relation to selection processes.

During 2004–05, the Commissioner finalised inquiries into three reports received in the previous year. Two of these contained allegations of abuse of employer powers by an agency head and a senior employee. In these cases the Commissioner concluded that, while some processes and decisions could have been improved and better documented, there were no breaches of the Code. The Commissioner also recommended that the senior employee be counselled about their communication style.

The other report contained allegations that a supervisor provided false information in relation to performance management and, in not approving a leave application, failed to comply with the law. In this matter the Commissioner concluded that there was insufficient evidence to support a recommendation to the agency head to commence action under the procedures for determining breaches of the Code.

1 Employees who were not familiar with the Code were provided with a copy to read before answering the question on relevance.

2 The employee survey gave the following examples of a serious breach: fraud, theft, misusing clients’ personal information, sexual harassment and leaking classified documentation.

3 This concern has been observed in previous State of the Service reports. It reveals the tension that exists between the fact that, while APS employees are encouraged to report suspected breaches of the Code, any subsequent investigation of their reports is required to be conducted privately, with the final outcomes being confidential.

4 Office of the Public Sector Standards Commissioner, Annual Compliance Report 2004, November 2004, <http://www.wa.gov.au/opssc>

5 ‘Managing Suspected Breaches of the Code of Conduct’ was discussed in the State of the Service Report 2003–04.

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