Australian public service commissioner stephen sedgwick

national engagement

In 2012–13 Ms Godwin supported the work of the Sex Discrimination Commissioner with the promotion of the Male Champions of Change program. This initiative brings together influential and diverse male chief executives and chairpersons to form the Male Champions of Change group. The group aims to use their individual and collective influence and commitment to ensure women’s representation in leadership is elevated on the national business agenda.

The Merit Protection Commissioner regularly meets fellow statutory office holders and agencies to discuss topical issues and to share and learn about different approaches to common problems.

For example, this year Ms Godwin had meetings with the Disability Discrimination Commissioner and with the Office of the Commonwealth Ombudsman.

During the year Ms Godwin participated as a member of the panel considering submissions to the 2013 ACT Public Service Awards for Excellence and attended the award ceremony in May 2013. Participation in such activities develops contacts with other jurisdictions.

outcomes For the year

In 2012–13 there was an increase in the number of applications for review compared with 2011–12, but a fall in total workload reflecting the lower number of cases on hand at the start of the year compared with the start of last year. The number of promotion review applications and requests for fee-for-service activities within the APS continued to decrease. The review function (excluding promotion reviews) came close to meeting its statutory target for timeliness for the first time in three years. All promotion reviews were conducted within target time.

review of action performance

Last year the Merit Protection Commissioner was optimistic that there would be a significant improvement in performance in the timeliness of reviews (excluding promotion reviews). This year’s performance is pleasing as the proportion of reviews of actions completed within 14 weeks was only 0.5% below the target of 70%—in practice this amounts to one case being over the target.

This year’s figure of 69.5% completed within 14 weeks for the 82 finalised reviews compares favourably with 18% and 39.6% in the previous two financial years. At the same time the average time taken to complete reviews has fallen to 20.7 weeks compared to 37 weeks in 2011–12. A large proportion of reviews were completed in less than 17 weeks. The average time taken for the 57 reviews completed in time was 11 weeks.

The improvement in timeliness is attributable to a number of factors, including a decline in the total number of reviews handled. The capability and the confidence of the review team with their role have grown enormously and continue to grow. In addition, work undertaken in recent years to streamline the function and to develop staff has come to fruition, resulting in increased productivity. The work in improving timeliness was acknowledged in January 2013 when staff supporting the Merit Protection Commissioner’s functions in the review and policy teams of the Ethics Group were awarded Australia Day medals.

There were 60 cases carried over from 2011–12 compared with 141 cases carried over from 2010–11. Only one of the 60 cases carried over was not finalised in 2012–13. Of the 52 cases carried over to 2013–14, 96% were still within the target date for completion and 25% were on hand for less than four weeks.

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The time it takes to finalise cases is also influenced by the level and complexity of the applications for review and the time it takes to gather relevant information from agencies and applicants. Of the reviews finalised in 2012–13, on average 30% of the time between the date an application was received and the date of the decision was spent ‘on hold’. Time spent ‘on hold’ is time waiting for some event outside the control of the Merit Protection Commissioner to occur before the case can be finalised and is not counted towards overall time taken to finalise a case. Delays in agencies providing files or additional papers accounted for 62% of the ‘on hold’ time. This is an area where small improvements by agencies could contribute to faster resolution of employment disputes.

There were 41 more applications for review received in 2012–13 than in 2011–12—a 27% increase. Applications for review of determinations of breaches of the APS Code of Conduct and/or sanctions imposed fell again this year (by 16%), while the number of primary reviews other than Code of Conduct matters remained small.

The area where there has been most change is in applications for secondary review with a 55% increase (130 in 2012–13 compared to 84 in 2011–12). The subject matter of these reviews covered a range of issues. However, 43% of finalised secondary reviews concerned decisions about aspects of performance management. It is unclear what is driving the trend in these applications, but it may reflect an increased focus by agencies on actively managing unsatisfactory performance.

During the year, 39 reviews lapsed or were withdrawn, compared to 43 in 2011–12. The main reason for reviews lapsing is the applicant leaving APS employment either through resignation or because their employment was terminated by their agency. On average, in 2012–13, staff spent 11 weeks working on a case before it was withdrawn.

Assessment of review applications to determine reviewability also takes time. Thirty-one per cent of all review applications received and on hand were not accepted—similar to 2011–12.

In 23 cases this year, the Merit Protection Commissioner’s delegates recommended that the agency’s decision be varied or set aside. This represented 28% of the 82 finalised cases, a similar proportion to the previous year. As in previous years, the majority of these recommendations (60%) were made in reviews of determinations of breaches of the Code of Conduct and/or the imposition of a sanction.

In one case (not a Code of Conduct matter) a delegate was able to facilitate a negotiated outcome between the agency and the employee to resolve the complaint. In this instance it was apparent from the application that the agency had not followed its own procedures and had failed to address this in the primary review. While alternative dispute resolution is an option the office of the Merit Protection Commissioner will explore, it can be difficult to put into practice at the secondary review stage because, by that time, the parties to a review often hold entrenched views about the matter. In addition, some reviews are not suitable for mediation by their nature, such as when the facts of the case mean that a decision is not open to compromise.

If the Merit Protection Commissioner is not satisfied with an agency’s response to her delegate’s review recommendations, section 33(6) of the PS Act provides that, after consulting the Public Service Minister, the Merit Protection Commissioner may provide a report to the relevant agency minister and to either or both of the Prime Minister or the Presiding Officers, in the latter cases for presentation to parliament. In 2012–13, agencies accepted the recommendations of the Merit Protection Commissioner’s delegates in all cases except one which related to a variation in a sanction. The Merit Protection Commissioner is discussing the recommendation with the agency. The expectation of the Merit Protection Commissioner is that agencies will accept the recommendations of delegates and that there would need to be exceptional circumstances to explain why a recommendation based on an independent and expert assessment is not accepted.