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Merit Protection Commissioner’s foreword

I am pleased to present my second annual report as the Merit Protection Commissioner.

The Merit Protection Commissioner is a role established under the Public Service Act 1999 (the Act) which performs a range of statutory functions for the Australian Public Service (APS). Those functions are concerned with the implementation of, and compliance with, the APS employment framework and principles, as well as the operation of the broader integrity framework.

The key way my office does this is through the review of action scheme articulated in the Act and the Public Service Regulations 1999. The scheme allows an APS employee to seek review of almost any APS action taken that relates to his or her employment. This maybe an unreasonable refusal of a leave or flexible work application, a performance rating which the employee disagrees with, or a finding they have breached the code of conduct which the APS employee believes not warranted or was arrived at through an unfair process. Review can also be sought for certain promotion decisions.

Within that scheme, the Merit Protection Commissioner provides an impartial avenue of review to APS employees which is independent of their department or agency. This is an important if not critical element of an accountable and fair APS employment framework. As noted in a recent decision of the High Court of Australia, review by the Merit Protection Commissioner of an administrative determination and sanctioning of a breach of the APS Code of Conduct forms part of the comprehensive system of merits review available to APS employees.[1]

During 2018–19 we received 171 applications for review of employment actions from APS employees across 18 different departments or agencies. The single largest category of employment action APS employees sought independent review on were Code of Conduct breach determinations or sanction decisions. This was followed by reviews of actions relating to performance management, workplace behaviour and access to flexible working arrangements respectively.

While the majority of agency actions or decisions were upheld, recommendations to set aside or vary a decision were made in 26 per cent of cases. There are many different reasons why we recommend an action or decision be varied or set aside—these include procedural problems, insufficient grounds for a finding of fact, or misapplication of an element of the Code of Conduct, a policy or an enterprise agreement, as well as a decision simply being unfair on its merits. The importance of our work in these matters is twofold—the employee is not subject of an adverse consequence resulting from an unfair or defective process or decision, and the department or agency receives feedback about its processes and practices and the capacity of its decision-makers to meet their obligations to the Employment Principles and Values and to handle the discretionary judgements allowed by the delegations they exercise.

We additionally received 1,089 applications for review of promotion decisions up to APS 6, and formed 82 promotion review committees which considered 392 promotion decisions. Only two promotion decisions were varied indicating that agency and department selection processes, at least in those promotion decisions reviewed by my office, result in the most meritorious candidate being appointed. The importance of the promotion review scheme is not in the number of promotion decisions varied, but in the limited assurance it gives to agency and department recruitment and selection processes that the principle of merit has been adhered to. Additionally, the fact that a promotion decision can be subject of independent merits review continually reinforces to departments and agencies to have ongoing fair and effective selection procedures and practices.

Our work is not limited to considering individual employment-related actions and decisions—we can also conduct direct inquiries and have an important role in working with stakeholders to improve employment-related decision-making and the management of misconduct matters more generally within the APS. I consider it a strategic priority to ensure that observations from our case work is translated into better practice advice and guidance that is communicated to APS departments and agencies.

We are small office of 12 employees, so it can at times, be challenging to meet this strategic priority when we have high caseload or when staffing numbers fall below 12 due to leave or attrition. Nevertheless, this year we had 70 contacts with stakeholders, held three Community of Practice sessions, and delivered a number of presentations. I met with senior executives and practitioners through-out the year to discuss specific case outcomes and the broader practice implications of those matters. We also worked with agencies to help them better manage promotion review processes and to provide feedback on the effectiveness of their selection processes.

We continued this year to improve our internal governance and business processes. We updated our website content, commenced a review of our procedures manual, and trained 82 new nominees for Promotion Review Committees. We also implemented a triage and risk management approach to our case management to improve efficiency and timeliness.

While I am very pleased with our achievements for 2018–19 there is still much to do. We will continue to focus on delivering high quality reviews and offering expert advice that supports the integrity and performance of the APS. We will also aim to further promote the review of action scheme to all APS employees, departments and agencies and to work collaboratively with our stakeholders.

Finally, I would like to thank and acknowledge the staff of the Australian Public Service Commission who assisted me in discharging my statutory functions—they are a dedicated group who are committed to the importance of the work of the Merit Protection Commissioner. They have worked diligently through-out the year, ensuring that reviews are completed to the highest standard and offering sound and judicious advice when needed.

I would also like to thank the other staff of the Australian Public Service Commission who provide support for the operation of my office—this includes but is not limited to the corporate and legal areas, as well as the communications and IT areas.

Linda Waugh

Merit Protection Commissioner

[1] Compare v Banerji [2019] HCA 23, [106]