Australian public service commissioner stephen sedgwick

review of performance

Contribution to outcomes 2012–13

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

The performance indicators and targets relevant to the Merit Protection Commissioner’s functions are provided under ‘Program component 1.1.1—APS people and organisational performance’ in Part 2 of the Australian Public Service Commissioner’s annual report.

The information on activity and performance provided below in Tables M1 to M9 refers to the Merit Protection Commissioner’s statutory functions.

review of employment actions

Section 33 of the PS Act and Part 5 of the Regulations provide a scheme for the review of a broad range of employment actions affecting individual APS employees and, in limited circumstances, former employees. Certain employment decisions, most notably termination of employment, are excluded from the review framework by the legislation.

The three main categories of reviews conducted by the Merit Protection Commissioner are:

• reviews of breaches of the APS Code of Conduct

• reviews of other employment actions

• reviews of promotion decisions.

The tables refer to ‘primary’ and ‘secondary’ reviews. Primary reviews are reviews conducted by the Merit Protection Commissioner without first being reviewed by the agency head. The majority of primary reviews involve reviews of decisions that an APS employee has breached the Code of Conduct, and/or sanctions imposed as a result of a breach of the Code.

Secondary reviews are conducted by the Merit Protection Commissioner in circumstances where:

• the employee is not satisfied with the review conducted by the agency head

• the agency head has told the employee that the matter is not reviewable, but the Merit Protection Commissioner considers that it is.

Figure M1 shows the trends in review casework over the last six years.

Table M1 provides information on the number of applications for review (other than promotion review) received and reviews completed in 2012–13. Table M2 provides information on the timeliness with which this function was performed. Both tables compare results for 2012–13 with 2011–12.

Table M1: Review of employment actions workload for 2012–13 by type of review, compared with total reviews in 2011–12
Cases	Primary reviews—Code of Conduct	Primary reviews—other	Secondary reviews	Complaints by former employees	Total
	2012–13				2011–12	2012–13
On hand at start of year	29	4	27	0	141	60
Received during the period	47	12	130	3	151	192
Total cases	76	16	157	3	292	252
Reviewed	34	2	46	0	95	82
Not accepted	11	9	56	3	94	79
Lapsed or withdrawn	12	3	24	0	43	39
Total finalised during period	57	14	126	3	232	200
On hand at end of year	19	2	31	0	60	52

In 2012–13, the Merit Protection Commissioner received 192 applications for review and carried over 60 cases from the previous year. This represents a 26% increase in applications compared with 2011–12. Applications for secondary review increased by 55% whereas reviews of Code of Conduct decisions decreased by 16%. However, the total review workload fell by 14% owing to the smaller number of cases carried over from 2011–12 compared with the previous year.

A total of 200 cases were finalised in 2012–13, of which 82 were reviewed (that is, they were not ruled ineligible or withdrawn before the review was finalised). Of the 60 cases carried over from 2011–12, 59 were finalised in 2012–13. The one case not reviewed by the end of the year was particularly complex and was finalised in August 2013.

In 2012–13, 31% of applications received, or carried over from 2011–12, were not accepted for review. This is a similar proportion to 2011–12.

Eleven applications for a review of a Code of Conduct decision were not accepted in 2012–13 as they were out of time.

Employees are able to apply to the Merit Protection Commissioner for a primary review of 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 it; or the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action. Nine applications of this type were not accepted for review in 2012–13, generally because the delegate considered that the matters were appropriate for the agency head to review.

The proportion of applications for secondary review not accepted (36%) was lower than in 2011–12 (41%), but higher than in 2010–11 (17%). Of the 79 applications not accepted for review in 2012–13, the applicant was advised in 25% of cases to lodge an application with their agency as no primary review had been conducted. A further 24% of cases were out of time, and in 26% of cases a review was not justified in all the circumstances—for example, the agency had already addressed the employee’s concerns and nothing could be achieved by reviewing the matter further. The remaining 25% of cases were not accepted for a variety of reasons, including that the application was outside of jurisdiction or that the application was about a matter that fell into one of the categories of non-reviewable actions set out in Schedule 1 to the Regulations.

The policy approach publicly released in April 2012 about the way the Merit Protection Commissioner would exercise discretion not to undertake a review when it is considered one is not justified ‘in all the circumstances’ is being monitored carefully. The indications are that the policy is effective in terms of balancing fairness to the applicant, the efficient handling of reviews and good employment decisions.

The target timeframe for completion of primary and secondary reviews is 14 weeks from receipt of application. The Merit Protection Commissioner aims for timely review without any loss in the quality of the review. Timely resolution of cases is beneficial for both the employee and employer as it improves the prospect of achieving a positive workplace culture and minimises the impact on the individual, colleagues and the agency.

Table M2: Timeliness in handling reviews, 2012–13 compared to 2011–12

Review type	2011–12		2012–13
	Average time to complete reviews (weeks)	Completed within target time frames (%)	Average time to complete reviews (weeks)	Completed within target time frames (%)
Primary reviews—Code of Conduct	32.8	27	21.85	67.6
Primary reviews—other	25.7*	0	25.5	0
Secondary reviews	40.4	10	19.57	73.9
Former employees	0	0	0	0
Total	36.8	18	20.66	69.5

* Only one primary review other than a Code of Conduct review was finalised in 2011–12; therefore; this is the actual time taken.

There has been a significant increase in the percentage of cases completed within target times in 2012–13 (69.5%) compared to 2011–12 (18%) and 2010–11 (39.6%). This improvement may be attributed to a combination of a smaller number of cases carried over from 2011–12, the greater experience and confidence of the review team and work undertaken to streamline handling of review cases.

The average time for Code of Conduct and secondary reviews fell correspondingly in 2012–13. The overall average time taken to finalise a case was just under 21 weeks compared to 37 weeks in 2011–12. Seven reviews were highly complex and took more than a year to finalise.

The length of time between the receipt of an application and finalising a review is influenced by a range of factors, including those that mean a case cannot be actively worked on by the review team. Reviews are placed ‘on hold’ while the reviewer is waiting for an action to occur that is outside of their control, such as waiting for papers, or a response from either the agency or an applicant. The average time on hold for a finalised review is nine weeks. Agency delays in providing information accounted for 62% of the time on hold and delays in providing information or unavailability of the applicant accounted for a further 27%. The remaining 11% was mainly due to public holidays.

Withdrawn, lapsed or not accepted cases may also take time. This is largely because inquiries to reach a conclusion that an application will not be accepted can take time, or work may have been undertaken to progress the review before it is withdrawn or it becomes clear that the application has lapsed. The average time taken to deal with a withdrawn or lapsed review was just over 14 weeks in 2012–13 and nearly 11 weeks for a review not accepted.

Table M3 breaks down the number of reviews by agency.

Table M3: Reviews completed, by agency, 2012–13
Agency	Primary reviews—Code of Conduct	Primary reviews—other	Secondary reviews	Complaints by former employees	Total
Department of Human Services	6	0	20	0	26
Department of Defence	5	0	10	0	15
Australian Taxation Office	10	0	4	0	14
Department of Immigration and Citizenship	4	0	2	0	6
Australian Customs and Border Protection Service	2	0	2	0	4
Department of Health and Ageing	1	0	1	0	2
Department of Agriculture, Fisheries and Forestry	1	0	1	0	2
Bureau of Meteorology	0	0	2	0	2
CrimTrac Agency	0	2	0	0	2
Nine other agencies (one review each)	5	0	4	0	9
Total	34	2	46	0	82

As would be expected, the agencies with the highest number of applications for review were the larger employers, namely the Department of Human Services, the Department of Defence and the Australian Taxation Office. These three agencies accounted for two-thirds of the completed reviews—a similar result to 2011–12.

The types of employment matters for which review is sought are shown in Figure M2.

Figure M2: Cases reviewed by subject, 2012–13

Determinations of breaches of the Code of Conduct accounted for 34 of the reviewed cases, compared with 44 in 2011–12. Code of Conduct cases fell as a proportion of the number of cases reviewed (41% in 2012–13 compared with 46% in 2011–12).

There were increases in the proportion of performance management cases reviewed (26% compared with 14% in 2011–12), disputes around duties (9% compared with 4% in 2011–12), and conditions of employment (20% compared with 16% in 2011–12). All other categories showed a decrease. Cases relating to the workplace environment fell to 1% (from 5% in 2011–12) and harassment cases fell to 2% (from 7% in 2011–12).

The Merit Protection Commissioner may recommend to an agency head that a decision be set aside, varied or upheld. There were differences in the outcomes by the type of review.


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In 2012–13, nearly 70% of the finalised reviews (82) resulted in a recommendation to the agency head to uphold the original agency decision. However, a much higher proportion of secondary reviews were upheld (80%) compared with review of Code of Conduct decisions (56% upheld). There was variation also in the proportion of decisions upheld by type of Code review¹ with 71% of sanction only decisions upheld compared to 50% of determination only decisions and 43% of cases involving both breach and sanction decisions. One non-Code case was resolved through follow-up discussion with the agency.