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Last updated: 18 October 2006

Analysis of performance

This section provides information on reviews of action the Merit Protection Commissioner undertook during the period 1 July 2005 to 30 June 2006. The review scheme under section 33 of the Act and Part 5 of the Public Service Regulations provides that an APS employee is entitled to review, in accordance with the Public Service Regulations, of an action that relates to their employment. Most matters that affect employees personally in the course of their employment can be dealt with in this way, except where the Public Service Regulations specifically exclude that action from review.

The types of reviews the Merit Protection Commissioner undertakes fall into three main categories: review of certain promotion and engagement decisions; review of breaches of the APS Code of Conduct; and other reviews of actions.

Applications for a promotion review can be made to the Merit Protection Commissioner in certain circumstances by applicants for levels up to and including APS Classification Group 6. A three-member PRC reviews the original selection decision and makes a decision that is binding on the agency head.

Applications for review of a determination that an employee has breached the Code of Conduct or of a sanction imposed for a breach of the Code of Conduct must also be made directly to the Merit Protection Commissioner. An employee may lodge an application directly with the Merit Protection Commissioner in some other specified circumstances, including where the relevant agency head was directly involved in the action. An application for secondary review of an action can be lodged with the Merit Protection Commissioner where the employee is dissatisfied with the outcome of a primary review conducted by an agency head, or has been advised by the agency head that an action is not reviewable.

Table M1 provides information on the reviews of action received and completed and the timeliness of these reviews during the period 1 July 2005 to 30 June 2006.

This section also provides information on the Merit Protection Commissioner’s other responsibilities including that of inquiring into whistleblowing reports, establishing ISACs, and performing other employment-related functions on a fee-for-service basis.

Review of certain promotion and engagement decisions

During 2005–06, 783 individual applications for promotion review were considered relating to 105 cases reviewed. In this report, a case means an application by one or more APS employees for a promotion review of a decision or decisions arising from a discrete agency selection exercise. No applications for review by a PRC of engagement in the APS of a Parliamentary Service employee were received this year.

The numbers of individual applications for promotion review, and PRCs established, increased in 2005–06 compared with 2004–05: 783 individual applications relating to 105 cases reviewed in 2005–06, 658 individual applications relating to 99 cases reviewed in 2004–05, an increase of 125 applications (19%) and 6 cases reviewed (6%). These figures are not inconsistent with an increase of about 13% in the number of reviewable promotions and engagements gazetted in 2005–06 compared with 2004–05.

Table M3 provides information on the agencies involved in promotion reviews as well as a breakdown of the number of ‘active’ and ‘protective’ applications. Employees who were not promoted in a selection process would make an active application in which they are applying for review of the promotion decision. Employees who have been promoted and may be subject to review or be part of the active applicant promotion review process would make a protective application.

Applications for a promotion review were received in relation to selection decisions made in 20 agencies. The number of agencies in which promotion decisions attracted applications for review is higher this year than in the last two years: 20 in 2005–06, 13 in both 2003–04 and 2004–05. Bulk recruitment exercises in the ATO and the Department of Immigration and Multicultural Affairs (DIMA) that resulted in high numbers of promotions to reviewable classifications contributed to the number of applications for review lodged during this reporting period. Those agencies, along with two other agencies that had ten or more applications for review, are identified in Table M3. Sixteen other agencies that had less than ten applications for review are not separately identified.

PRCs overturned 48 (5.4%) of the 889 promotion decisions reviewed. This compares to 42 (5%) of 840 promotion decisions in 2004–05,24 (5.9%) of 404 promotion decisions in 2003–04, 30 (2.8%) of 1071 promotion decisions in 2002–03, and 15 (5.4%) of 277 promotion decisions in 2001–02.

The average time taken to complete promotion reviews was 8.1 weeks; 37 reviews (35.2%) were completed within the target time of 6 weeks. The large number of applications lodged relating to the promotions made as a result of the bulk selection rounds in the ATO and DIMA, and the complexity of determining those applications, given the numbers involved, impacted on the timeliness outcomes for 2005–06. For example, three of these cases each involved more than 100 parties, while ten each involved between 31 and 77 parties.

Table M3: Applications for review of promotion decisions and promotions overturned 1 July 2005 to 30 June 2006 by agency
Agency	Total number of applications for review	Number of active applications	Number of protective applications	Number of promotions considered*	Number of promotions overturned*
Australian Taxation Office	526	413	113	559	43
Department of Immigration and Multicultural Affairs	162	22	140	194	2
Australian Customs Service	49	33	16	65	1
Department of Defence	12	12	0	21	0
16 other agencies	34	27	7	50	2
Total	783	507	276	889	48
* An APS employee may make an application for review of one or more promotion decisions. Not all applications made are considered by a PRC. Some applications are withdrawn, invalid or, in the case of protective applications, may not be activated.

Breaches of the Code of Conduct and other reviews

During 2005–06, 143 applications for review, other than for review of promotions decisions, were received. In addition, 30 applications were carried over from the previous reporting period. Of the total applications on hand in 2005–06, 75 were reviewed.

The types of matters raised in the applications are shown in Figure M1. Reviews of actions relating to the Code of Conduct accounted for 30 (40%) of the applications reviewed, a higher percentage of total applications reviewed than for 2004–05 (31%). Other matters reviewed related to conditions of employment, including allowances, salary and leave, 13 (17%); the workplace environment and arrangements, including harassment, management practices and workplace direction, 11 (15%); performance management, including performance appraisal and pay, seven (9%); duties, including selection processes, six (8%); separation entitlements, three (4%), misconduct procedures, two (3%); reimbursement of legal costs, one (1%); and alleged false comment, one (1%).

Figure M1: Cases reviewed by subject

Table M4 provides a breakdown of the number of reviews by agency. As has been the case for the last three years, the agency with the highest number of reviews was the ATO, followed by Centrelink and the Department of Defence.

Breaches of the Code of Conduct

2005–06 saw a slight increase in the number of applications the Merit Protection Commissioner received that related to breaches of the Code of Conduct by APS employees, with 42 applications received in comparison with 41 in 2004–05. In addition, we carried over 12 applications from 2004–05. While the number of applications received this year was lower than the number received in 2003–04 (58 applications), the number received this year is consistent with the number of applications received in both 2001–02 and 2002–03 (43 applications in both years).

The number of reviews completed increased this year to 30, compared with 26 in 2004–05. While the number completed this year is less than the number completed in 2003–04 (46 completed), it is similar to the number completed in 2001–02 (25 completed) and 2002–03 (29 completed). Of the total applications on hand this year, five were not accepted, seven lapsed or were withdrawn, and twelve were carried over to 2006–07.

Matters considered in reviews of breaches of the Code of Conduct during 2005–06 included: unacceptable behaviour towards employees, clients and managers; excessive or inappropriate use of emails, telephones or the Internet; failure to comply with lawful and reasonable directions; inappropriate browsing of information on clients; failure to act with honesty and integrity, including during the course of a Code of Conduct investigation; incorrect time keeping; failure to disclose or appropriately manage conflicts of interest; failure to report a suspected conflict of interest on the part of another employee; use of Commonwealth vehicle without approval; unapproved absenteeism; misuse of resources; failing to act in accordance with the Privacy Act 1988; engaging in physical altercations and name calling; incorrectly filling out forms for official purposes; and failing to complete leave applications in a timely manner.

Table M4: Applications reviewed 1 July 2005 to 30 June 2006 by agency
Agency *	Primary review-Code of Conduct	Primary review- Other	Secondary review	Complaints by former employees	Total
Australian Taxation Office	13	0	6	1	20
Centrelink	4	1	13	0	18
Department of Defence	3	0	4	1	8
Department of Immigration and Multicultural Affairs	0	0	3	1	4
Department of Industry Tourism and Resources	1	1	1	0	3
Geoscience Australia	2	0	0	0	2
Department of Veterans’ Affairs	1	0	1	0	2
Comcare	0	0	2	0	2
Department of Education, Science and Training	0	0	2	0	2
14 other agencies	6	2	5	1	14
Total	30	4	37	4	75
* The agency taking the action or, if the action is action by an APS employee, the agency in which the employee was employed at the time of the action.

Of the 30 applications reviewed, 14 were for review of both a determination of a breach of the Code of Conduct, and the sanction imposed for the breach. Seven applications sought review of the determination of a breach of the Code of Conduct only, and nine were for review of the sanction imposed. The Merit Protection Commissioner made a formal recommendation to confirm, vary or set aside an agency decision to the relevant agency head in relation to each of the 30 completed reviews. Of these, 23 recommended confirming the agency decision (compared with 12 in 2004–05, 20 in 2003–04 and 10 in 2002–03) and seven recommended varying the decision (compared with 12 in 2004–05, 17 in 2003–04 and 14 in 2002–03). There were no recommendations that the decision be set aside. This compared with two such recommendations in 2004–05, nine in 2003–04 and five in 2002–03. Three reviews included a recommendation to vary the sanction imposed, which was the same number of reviews in which such a recommendation was made in 2004–05.

The average time taken to complete a review of a breach of the Code of Conduct was just under 21 weeks. In 2004–05 the average time taken was just under 19 weeks. As noted in the Merit Protection Commissioner’s review, an analysis of the factors which are impacting on achievement of timeliness targets has been commenced and will be completed in 2006–07.

Other applications for review

This year we received 101 applications for reviews other than promotion reviews and those related to the Code of Conduct. This was a decrease of 18 (15%) applications for review compared to 2004–05. Eighteen cases were carried over from 2004–05 and 45 (38%) of the total cases on hand were reviewed during 2005–06 (compared with review of 58 (44%) of the total cases on hand in 2004–05), 50 cases were not accepted, five lapsed or were withdrawn and 19 were on hand at the end of 2005–06. The number of applications received and reviewed this year has continued a downward trend that has been evident in recent years.

Of the 45 cases reviewed, a response about issues raised during the review was requested from agencies in 8 (18%) cases. The number of applications received in 2005–06 that were not accepted, as a proportion of all applications received, was higher than for previous years: 42% in 2005–06 compared with 38% in both 2004–05 and 2003–04, and 36% in 2002–03. The most common reasons for not accepting applications were that the agency head had not yet undertaken the primary review, or that no right of review existed.

Other applications for primary review made directly to the Merit Protection Commissioner

The Regulations provide for primary review by the Merit Protection Commissioner in certain circumstances.

Regulation 5.24(3) allows employees to apply directly to the Merit Protection Commissioner where the agency head has been directly involved in the action; it is not appropriate, because of the seriousness or sensitivity of the action, for the agency head to deal with the application; or where the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.

Regulation 5.25 allows the agency head, with the agreement of the Merit Protection Commissioner, to refer an application directly to the Merit Protection Commissioner. Examples of situations where this might occur include where the agency head has been 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.

During 2005–06, 16 employees made direct application to the Merit Protection Commissioner under regulation 5.24(3). Four applications were on hand at the start of the year. Fourteen cases were not accepted, one lapsed, and three were reviewed. Two cases were on hand at the end of 2005–06.

The Merit Protection Commissioner received five applications for review under regulation 5.25(1) during the year. No applications were on hand at the start of the year. Two cases were not accepted and one was reviewed. Two cases were on hand at the end of 2005–06.

Review of the cases under regulations 5.24(3) and 5.25(1) took an average of 11.6 weeks to finalise.

Applications for secondary review

The Regulations also enable an APS employee, other than an SES employee, to apply to the Merit Protection Commissioner for a secondary review where the employee is dissatisfied with the outcome of the primary review conducted by the agency head (regulation 5.29(1)(b)). The Merit Protection Commissioner may also undertake a secondary review where the agency head has told the employee the action is not a reviewable action (regulation 5.29(1)(a)).

During 2005–06, 76 applications for secondary review were received: six under regulation 5.29(1)(a) and 70 under regulation 5.29(1)(b). This is a decrease of 11 (13%) applications compared with 2004–05. In addition, 11 applications were on hand at the start of the year: one received under regulation 5.29(1)(a) and ten received under regulation 5.29(1)(b).

Of the 80 applications on hand in 2005–06 under regulation 5.29(1)(b), 30 were not accepted and 4 lapsed or were withdrawn. Thirty-four cases were reviewed during the period, compared with 42 in 2004–05. Twelve cases were on hand at the end of 2005–06.

Of the seven applications on hand in 2005–06 under regulation 5.29(1)(a), three were not accepted. In relation to two of the cases not accepted, the Merit Protection Commissioner agreed that the actions were not reviewable actions. The third case was not accepted as the application had not been made through the relevant agency head. The Commission considered three cases to determine whether the actions were reviewable actions. In each case, the Merit Protection Commissioner determined that the actions were not reviewable actions. One case was on hand at the end of 2005–06.

Review of the applications for secondary review took an average of 17 weeks to finalise.

Investigation of complaints by former employees

Regulation 7.2 provides that the Merit Protection Commissioner may investigate a complaint by a former APS employee that relates to the employee’s entitlements on separation from the APS. Four applications under regulation 7.2 were received during 2005–06, and three applications were carried over from 2004–05. Four applications were reviewed, one was not accepted, and two were on hand at the end of the reporting period.

Independent Selection Advisory Committees

The Merit Protection Commissioner may establish an ISAC at an agency head’s request, usually on a fee-for-service basis. An ISAC is an independent three-member committee that makes recommendations to an agency head about the suitability of candidates for employment opportunities at classifications in APS Classification Groups 1 to 6.

An ISAC consists of a convenor and APS employee, both nominated by the Merit Protection Commissioner, and an agency nominee. The Merit Protection Commissioner has issued binding instructions on the procedures and functions of ISACs, but the members of an ISAC are otherwise not subject to direction in carrying out their duties, except by a Court.

ISACs provide streamlined, cost-effective, merit- based selection processes which offer flexibility to accommodate a range of selection assessment techniques. While they can be used for selection processes of any size, they are particularly appropriate for large or sensitive selection processes given that an ISAC is independent and impartial, and that a promotion decision made on the recommendation of an ISAC is not subject to promotion review. An order of merit established by an ISAC can be used to fill future vacancies for 12 months from the initial notification of the employment opportunity.

There is further information on ISACs on the Commission’s web site at www.apsc.gov.au/merit/isac.htm.

Table M5 provides information on the number of ISACs established by agency and the number of candidates considered and recommendations made. The number of committees established during 2005–06 was substantially higher than the number established in recent years: 99 committees established in 12 agencies in 2005–06, compared with 58 committees established in 11 agencies in 2004–05, and 53 committees established in 15 agencies in 2003–04. The number of candidates considered and recommended this year was also much higher compared with the last two years, with 7331 candidates considered and 1639 candidates recommended in 2005–06, compared with 2210 candidates considered and 559 candidates recommended in 2004–05, and 3338 candidates considered and 648 candidates recommended in 2003–04.

Table M5: Independent Selection Advisory Committees Convened 1 July 2005 to 30 June 2006
Agency	Committees established and completed	Candidates considered	Candidates recommended
Department of Defence	27	1248	189
Australian Taxation Office	24	1338	203
Department of Immigration and Multicultural Affairs	18	2820	667
Australian Customs Service	12	976	235
Department of Veterans’ Affairs	4	101	14
Department of Foreign Affairs and Trade	3	388	127
Australian Quarantine and Inspection Service	3	348	177
Social Security Appeals Tribunal	2	38	8
Centrelink	2	23	10
Department of Education, Science and Training	2	7	3
Department of Health and Ageing	1	33	5
Australian Public Service Commission	1	11	1
Total	99	7331	1639

While the number of ISACs established continues to vary year to year in line with agency recruitment patterns, the increased use this year demonstrates that a number of agencies continue to recognise the many benefits the committees offer. The number of committees established, and candidates considered and recommended, was particularly high this year largely due to increased use of such committees by Defence, DIMA, and the Australian Customs Service. While both Defence and DIMA have regularly used ISACs in the past, their use in 2005–06 was much higher than in recent years: Defence, which established 27 committees in 2005–06, established 15 committees between 2002–03 and 2004–05; and DIMA, which established 18 committees in 2005–06, established 13 committees between 2002–03 and 2004–05. The use of 12 ISACs by the Australian Customs Service in 2005–06 was that agency’s first use of ISACs in several years. The ATO continued to be a high user of ISACs, using 24 committees to assess 1338 candidates, from which 203 placements were recommended. The Department of Foreign Affairs and Trade and the Australian Quarantine and Inspection Service continued the employment of strategic approaches towards using ISACs, with high numbers of candidates recommended from small numbers of ISACs.

Whistleblowing

The Act and Regulations provide a scheme for APS employees to report alleged breaches of the Code of Conduct (known as whistleblowing). Agency heads are responsible for establishing procedures for dealing with whistleblower reports. In the first instance, it is expected that such reports will be made to, and investigated by, the relevant agency head. A report may be referred to the Public Service Commissioner or Merit Protection Commissioner where the APS employee is not satisfied with the findings of the agency-based investigation, or in other specified circumstances, such as where it is not appropriate for the agency head to deal with the matter. Information on reports made to the Public Service Commissioner is contained in her annual report.

The Merit Protection Commissioner received five reports during 2005–06, one more than he received in 2004–05. No reports were on hand at the start of the year. One of the reports received was withdrawn, two reports did not provide evidence in support of the allegations made to justify an inquiry, and two reports were on hand at the end of the reporting period. Issues raised included falsifying information, performance management issues and bullying and harassment.

Other functions

Under the Act, the Public Service Minister can ask the Merit Protection Commissioner to inquire into an APS action and report to the Public Service Minister on the results of the inquiry. No requests were received during the reporting period. The Act also provides for the Merit Protection Commissioner to inquire into alleged breaches of the Code of Conduct by the Public Service Commissioner and report to the Presiding Officers on the results of such inquiries. There were no allegations of breaches during the reporting period.

Employment-related services (fee-for-service)

The Regulations provide for the Merit Protection Commissioner to carry out a range of employment-related functions for non-APS people or bodies where the Merit Protection Commissioner is not required by a law of the Commonwealth to perform the function. The Merit Protection Commissioner may charge a fee for these services.

Some of the services are provided under a standing memorandum of understanding on an ongoing basis. For example, the Merit Protection Commissioner has had for some time an arrangement in place with the AFP to provide convenors for selection panels for vacancies that arise in that organisation. In 2005–06, the AFP reviewed the arrangements that apply to their selection processes with a view to streamlining those processes, and incorporating additional flexibility wherever possible. While that review resulted in some changes to those processes, the AFP confirmed their commitment to the continuation of the existing arrangements, outlined in the memorandum of understanding, for the Merit Protection Commissioner to provide convenors for what are now called Independent Selection Advisory Panels, rather than Joint Selection Committees. The Merit Protection Commissioner also provides related selection training to AFP employees.

Table M6 reports on the services provided during 2005–06. Table M7 provides details of the number of Joint Selection Committees/Independent Selection Advisory Panels established during the same period.

During 2005–06, 227 Joint Selection Committees/Independent Selection Advisory Panels were conducted for the AFP. This number is slightly lower than the number for 2004–05, when 239 such committees were conducted, but higher than the number for 2003–04, when 166 committees were conducted, and reflects that the number of committees established fluctuates each year according to AFP needs. Other fee-for-service work undertaken on behalf of the Merit Protection Commissioner included staff selection training for the AFP; career counselling; and participation as a convenor on selection advisory committees for other non-APS agencies.

Table M6: Employment-related services 1 July 2005 to 30 June 2006
Nature of Service	Number completed
Joint Selection Committees/Independent Selection Advisory Panels	227
Training	12
Scribing Service for Selection Advisory Committees	4
Career Counselling	2
Convenor on Selection Advisory Committees	3
Other	1
Total	249

Table M7: Joint Selection Committees/Independent Selection Advisory Panels convened 1 July 2005 to 30 June 2006
Organisation	Separate Committees established	Applicants	Placements recommended
Australian Federal Police	227	2608	758