3. Engagement, projects and accountability

Stakeholder engagement and resources

In 2019–20, we continued our program of engagement and developing resources and publications for our stakeholders. Our key stakeholders are APS agencies, human resources practitioners, fraud and misconduct investigators, and employees.

One of the objectives of merits review is to improve the quality of agency decision making. To this end, the focus of our work with stakeholders is providing feedback and developing information resources on the lessons learned from reviews to assist in improving overall people management practice in the APS. We also aim to promote awareness and provide information about the functions of the MPC and the Review of Actions scheme.

Engaging with our stakeholders

Our total number of contacts with stakeholders was lower than the previous year as a result of COVID-19—this was largely due to travel restrictions and changes in agency priorities (that is, focusing on dealing with pandemic-related issues). Between March and July 2020 many meetings and presentations that would have routinely occurred were cancelled or delayed.

During 2019–20 we:

had 39 contacts with stakeholders comprising 30 meetings and 9 presentations
had 19 meetings with senior managers in 10 APS agencies
participated as guest speaker in four sessions on Code of Conduct decision making, the Review of Actions scheme and the MPC’s role as part of the APSC’s Senior Executive Service Orientation program
provided written feedback to two APS agencies on key internal policies
provided written feedback to the Australian Public Service Commissioner on APS- wide policy matters on two occasions
held one meeting of the Sydney-based Review of Actions and Code of Conduct Community of Practice for APS practitioners
received 723 telephone enquiries about the Review of Actions scheme and other matters.

Our Community of Practice for APS practitioners meetings were temporarily suspended as a result of COVID-19. We have worked towards conducting these meetings remotely and in way that is accessible to all attendees. We are also considering long-term changes which may allow expansion of the membership of this Community of Practice which is currently Sydney-based. We will report on these changes in next year’s annual report.

Our review function provides an assurance function for the way agencies are applying the APS Values and Employment Principles in managing their employees. One of our focuses is on the management of integrity issues in the APS. The MPC is a member of the Integrity Agencies Group, chaired by the Australian Public Service Commissioner, which met once during the reporting year. The MPC is also an independent member of the Audit Committee for the Office of the Inspector-General of Intelligence and Security.

The MPC meets quarterly with the four largest agencies in the APS to discuss the issues arising from the review casework. In addition, the MPC meets on an ad hoc basis with other agencies. These meetings provide an opportunity to give feedback on people management policies and integrity issues. They also provide an opportunity to work collaboratively with agencies. The MPC is grateful for the cooperation and assistance provided by the ATO in managing the surge in promotion review applications at the end of 2019, and for the valuable feedback on the draft tip sheets on the promotion review process.

“I just wanted to thank you again for your attendance yesterday and presentations to the teams. Both [agencies’ staff] feedback was that the information and discussions were extremely valuable and provide a better insight into your processes.”

Management of APS Code of Conduct matters presentation—August 2019

The MPC was interviewed for an article published in The Mandarin on 17 July 2019— Underperformance in the public sector is difficult and painful: Linda Waugh talks about how to guide and advise a way through it.

Resources and information for our stakeholders

Our key statutory function is to conduct independent reviews of employment-related actions and the majority of office resources is directed toward performing this function. While this important work is focused on individual applications and cases, we also look for systemic issues and trends. We then use this information to develop resources and publications to assist our various stakeholder groups which include APS employees who make review applications, senior managers who take actions and make decisions that are reviewable under the legislation, and the agency practitioners who conduct internal agency reviews as well as Code of Conduct investigations.

During 2019–20, we commenced a project to develop tip sheets on topics and issues we identify through our review casework and from stakeholder feedback. We also continued to publish case summaries to illustrate the types of cases received, how they were reviewed, and any emerging issues in those matters. We also commenced a project to review and update our website.

Tip Sheets

We developed and published seven tip sheets—four concerning promotion reviews and three concerning reviews of other employment-related actions.

We identified the need for the four promotion review tip sheets from incoming phone enquiries and discussions with key stakeholders, particularly during the period when we received a three-fold increase in promotion review applications.

The tip sheets cover:

how to apply for a promotion review
what happens after an employee lodges a promotion review application
‘protective’ promotion review applications—what they are and how they work
a quick guide to promotion review.

The second set of tip sheets arose from observations and issues identified through general review casework. The topics cover:

issues agencies should consider when conducting internal reviews of performance management decisions
the importance of managing conflicts of interest effectively and resources available to agencies to assist
how to frame allegations when conducting a misconduct investigation.

Published case summaries

Each year we identify topics from our review casework that will provide informative and instructive case studies for our stakeholder groups. These may be examples of good- quality decisions made by agencies which we upheld, or examples of errors or incorrectly applied policy resulting in decisions which we have recommended be set aside or varied. We published 12 case summaries during 2019–20 concerning decisions on a range of employment-related issues, including unauthorised absences from work, reviewing performance ratings and Code of Conduct (processes and decisions). The full set of case summaries can be found on our website.

Rewview of our website

Our website is important to our stakeholders, and, in particular, APS employees who wish to lodge an application for review of a promotion decision or an employment- related action. Our website provides information about the Review of Actions scheme, the functions of the office, and how to lodge a review application for an employment related action, including an online application for promotion reviews. During 2019–20, we had 184,151 visitors to our website with the most visited website pages being:

home page — 23,623 views
promotion review notifications — 23,623 views
general information on promotion reviews — 31,923 views of three pages
information on procedural fairness in employment decision making — 8,527 views
review application forms — 4,712 views.

This year we commenced a major review and update of our website. We will be modernising our website and completing a significant restructure of our content to make it easier for our stakeholders to locate and search for information. We expect this work to be completed in 2020–21.

Improving how we work and deliver services

During 2019–20, we focussed on projects to improve the way we work and how we deliver our services. This included induction programs for new staff and formalising our internal procedures manuals to ensure we have the resources available to our staff to allow them to more efficiently and effectively perform their duties.

Induction program for new reviewers

During 2019–20, we formalised and implemented an induction program for new reviewers. The program is conducted over a two-week period, and provides new staff with the tools needed to ensure they can effectively fulfil their statutory roles and responsibilities. The program focuses on familiarising new reviewers with the employment framework in the APS including relevant legislation and APSC policy advice, the APS Values and Code of Conduct. It provides specific induction on

key topics such as Code of Conduct and sanction decision making, performance management, bullying and harassment, workplace entitlements, and flexible work arrangements. The program also provides new reviewers with the fundamentals of privacy, Freedom Of Information, and protected information obligations as well as other governance issues such as the management of conflicts of interest and security briefings.

Participants in the first delivery of the program rated it as excellent and said it was highly relevant to their needs.

Procedures manuals

We completed a comprehensive revision of our internal procedures manuals for reviews of actions, promotion reviews and recruitment activities (Independent Selection Advisory Committees). This was a substantial body of work which we used to review and improve our internal handling practices and to provide further support to staff undertaking these roles so they are able to make decisions and operate independently.

Decision support tools for reviewers

We developed a site on the intranet for staff who conduct reviews. The site provides the resources and decision support tools staff need to manage cases and make decisions in a very diverse and sometimes complex jurisdiction. Staff can access, among other things, procedural manuals, template reports and correspondence, internal procedures, legal advice and case law on the site.

Promotion reviews case management

In last year’s annual report, we reported on the development of a GovTeams community to facilitate the digital exchange of information and documents for Promotion Review Committees. That work continued in 2019–20. Promotion Review Committees handle large volumes of personal information about the parties to the promotion review. We are satisfied that we have in place a secure and private document transmission and access process for promotion reviews that meets our responsibilities and accountabilities under the Privacy Act 1988.

APS agencies now have a simplified, more reliable and efficient mode of transmitting documentation to our office through uploading the relevant recruitment documentation direct to GovTeams. At present not all APS agencies are using GovTeams for this purpose. During 2020–21, we will work to have all APS agencies sending us information by direct upload to GovTeams. Promotion Review Committee members receive the information they need through GovTeams to perform their functions. Feedback from committee members was highly positive and the move to GovTeams has provided efficiency gains for the office through decreased handling time.

Triage of incoming review applications

Our review of other actions cases are now assessed and allocated in accordance with our case prioritisation and triage model. This involves a prima facie assessment of applications for review of actions to determine priority and treatment. This assessment is made on the basis of the information presented in the application and the papers the agency provides to this office.

The assessment under the case prioritisation and triage model weighs all relevant factors that determine the treatment of the review case. It considers and balances a range of factors including the seriousness of the subject matter and the possible consequences for the review applicant, agency and this office.

Governance and accountability

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

During 2019–20, the MPC had managerial responsibility for the work of the APSC employees made available to work in the Office of the MPC.

Financial arrangements and corporate support

The MPC is neither a Commonwealth entity nor an accountable authority for the purposes of the Public Governance, Performance and Accountability Act 2013. Rather, the MPC is a statutory officer appointed by the Governor-General under Section 52 of the Public Service Act. Section 49(2) of the Public Service Act requires that the staff necessary to assist the MPC must be engaged under that Act and made available by the Australian Public Service Commissioner. Consequently the MPC does not have a separate budget allocation and depends on the APSC for its staffing levels and resources more generally to undertake her functions.

For 2019–20, the MPC was allocated an annual budget (excluding corporate costs) of $1.95 million and an average staffing level of 12.2.

The MPC and the Australian Public Service Commissioner have a memorandum of understanding for the provision of staff and corporate services. The current memorandum of understanding took effect in June 2015.

Staffing and office locations

The MPC is based in the APSC’s Sydney office and has staff in the APSC's Sydney and Canberra offices. During 2019–20, the MPC was supported by 12 staff in 11 ongoing positions. A number of staff were on temporary assignment largely backfilling staff on extended leave. Figure 1 shows the organisation chart. The 11 ongoing positions comprise:

three positions at the EL2 level
five positions at the EL1 level
one position at the APS 6 level
one position at the APS 5 level
one position in the APS level 3/4 broadband.

The small number of staff means we are organised along functional lines, with staff performing more than one function and reporting to one or more supervisors. The main functional and team areas are: reviews of actions and promotion review casework; policy and projects; fee for service casework; and MPC inquiries.

The MPC also maintains a register of suitably skilled people who are engaged as casual employees at the Executive Level 1 or 2. These staff may be engaged as required for irregular or intermittent duties (for example, to chair a Promotion Review Committee or undertake fee for service activities). There were 18 employees listed as casual employees during 2019–20. Throughout the year, casual employees undertook work equivalent to approximately one average staffing levels.

Interaction of the roles of the Merit Protection Commissioner and the Australian Public Service Commissioner

The respective responsibilities of the MPC and the Australian Public Service Commissioner are established in the Public Service Act. The roles are complementary, particularly in relation to maintaining confidence in public administration.

The Australian Public Service Commissioner is responsible for upholding high standards of integrity and conduct in the APS. The MPC assists by ensuring consistent standards of decision making and people management practices across the APS, and by providing an important assurance role for the APS. This assurance is provided by reviewing individual actions or decisions for consistency with the APS Values and other administrative law requirements, and by conducting reviews of determinations of breaches of the Code of Conduct and/or sanctions.

Business planning and risk management

During 2019–20, we finalised our two-year business plan which sets out our objectives and priorities to:

engage with our stakeholders
build capacity internally and externally
innovate for better service delivery and discharge of functions
enhance our governance and accountability.

We also completed an internal risk assessment, identifying our key operational and corporate risks and actions to mitigate higher risks. These actions have been incorporated into our business plan as projects to be completed over the next two financial years.

Freedom of information and privacy

We received and finalised six applications under the Freedom of Information Act during 2019–20. Three requests were for papers relating to the applicant’s review of action case file and two requests related to promotion review decisions. The remaining case was for any document containing the applicant’s personal information and was closed as no documents were found.

Two requests were withdrawn after we provided the information to the applicant outside the Freedom of Information Act framework. In three cases, we released the documents sought by the applicant, in one case with some redactions.

There were no privacy breaches notified to the Office of the Australian Privacy Commissioner and no privacy complaints received by the MPC in 2019–20.

Information publication scheme

Information on the MPC and her role and functions is available on the Merit Protection Commission website.

Information is also in the APSC’s plan, which is available here.