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Appendices

Appendix A

The Merit Protection Commissioner's Statutory Functions

Function of the Merit Protection Commissioner

Statutory authority—APS

Review of Actions scheme—other employment-related actions.

(This includes Code of Conduct reviews, primary reviews of other matters and secondary reviews.)

Public Service Act 1999

Section 33 and Subsection 50(1)(d)

Subsection 50(1)(d) provides for review functions to be prescribed by regulations

Public Service Regulations

Part 5 Regulations 5.1, 5.2, 5.4, 5.5, 5.22–5.37 Schedule 1 to the Public Service Regulations

Review of Actions scheme—promotion and engagement.

(This involves merit-based review of promotion decisions and engagement decisions of certain Parliamentary Service employees.)

Public Service Act 1999

Section 33 and Subsection 50(1)(d)

Public Service Regulations

Part 5 Regulations 5.1, 5.2, 5.3, 5.5, 5.6–5.21

Review of an agency’s determination that a former employee breached the Code of Conduct for behaviour they engaged in while an employee.

Public Service Act 1999

Section 33 and Subsection 50(1)(ca)

Public Service Regulations Part 7, Division 7.3

Review actions of statutory office holders who are not agency heads that relate to an employee’s APS employment.

Public Service Act 1999

Section 33 and Subsection 50(1)(d)

Public Service Regulations Part 7, Division 7.4

Inquire into:

  • a PID alleging a breach of the Code of Conduct
  • the APS Commissioner for an alleged breach of the Code of Conduct
  • an APS action as requested by the Public Service Minister
  • whether a current or former APS employee has breached the Code of Conduct.

Public Service Act 1999

Subsection 50(1)(a)

Subsection 50(2) – provisions relating to Merit Protection Commissioner’s powers when conducting the inquiry Public Service Regulations Part 7

Division 7.1 (regulations 7.1 and 7.1A) Subsection 50(1)(b)

Subsection 50(1)(c) and Subsection 50(2)

Subsection 50(1)(ca) and Section 50A Public Service Regulations Part 7

Division 7.6 (Merit Protection Commissioner’s procedures)

Investigate complaint by former employee relating to entitlements on separation.

Public Service Act 1999

Subsection 50(1)(e)

Public Service Regulations Part 7, Division 7.2

Establish an Independent Selection Advisory Committee.

Public Service Act 1999

Subsection 50(1)(e)

Public Service Regulations Part 4

Provide recruitment and employment-related services to any (non-APS) person or body on a fee for service basis.

Public Service Act 1999

Subsection 50(1)(e) and Subsection 50(3)

Public Service Regulations Part 7, Regulation 7.4

Appendix B

Data tables for statutory functions

This appendix provides information on the activity and performance of the MPC’s statutory functions. Information on the MPC’s functions can be found on: https://www.meritprotectioncommission.gov.au

Review of promotion decisions

Table 1 shows the status of promotion review cases for 2019–20, as at 30 June 2020, compared with 2018–19.

Table 1: Status of promotion review cases 2019–20, compared with 2018–19

Promotion review cases

2019–20

2018–19

On hand at start of year

13

24

Established during the period

151

112

Total caseload

164

136

Reviewed (by Promotion Review Committee)

108

82

Invalid (for example applicant not an ongoing APS employee)

18

8

Lapsed (for example a protective application where no unsuccessful application received) or withdrawn

29

32

Total finalised during period

155

122

On hand at end of year

9

14

Target completion time (weeks)

8 or 12

8 or 12

Number completed within target time

121

78

Percentage completed within target time

78.06%

95%

Table 2 shows the promotion review caseload by agency for 2019–20.

Table 2: Promotion review caseload, by agency, 2019–20

Agency

Australian Taxation Office

Services Australia

Department of Home Affairs

Department of Defence

Other APS Department and Agencies

Totals

Number of promotion review applications received

988

374

166

12

50

1590

Number of Promotion Review cases registered

(not including cases on hand at the start of the year)

71

43

14

7

16

151

Number of Promotion Review Committees formed and finalised—cases Reviewed

52

31

9

7

9

108

Number of parties to a promotion review where a Promotion Review Committee was formed and finalised

655

156

79

14

36

940

Number of promotion decisions subject to review

565

101

61

7

26

760

Number of promotion decisions varied

3

0

0

1

0

4

Review of general employment actions and complaints casework

Table 3 provides information on the review (other than promotion review) and complaints casework in 2019–20. Table 4 provides information on the timeliness with which we performed our review and complaints functions. Both tables compare results for 2019–20 with results for 2018–19.

Table 3: Review and complaints workload for 2019–20 compared with 2018–19

Cases

Primary reviews: Code of Conduct

Primary reviews: other

Secondary reviews

Former employee Code of Conduct (Regulation 7.2A)

Total reviews

Complaints about final entitlements (Regulation 7.2)

Total cases

2019–20

2019–20

2018–19

On hand at start of the year

21

0

14

0

35

0

35

40

Received during the period

78

14

101

2

195

5

200

171

Total cases

99

14

115

2

230

5

235

211

Reviewed

51

3

41

1

96

0

96

78

Facilitated resolution

0

0

3

0

3

3

6

2

Not Accepted

18

11

52

1

82

1

83

52

Lapsed or withdrawn

14

0

9

0

23

0

23

44

Total finalised during period

83

14

105

2

204

4

208

176

On hand at end of the year

16

0

10

0

26

1

27

35

Note: Primary reviews are reviews conducted by the MPC without first being reviewed by the agency head. Secondary reviews are conducted by the MPC following a review conducted by the agency head or after the agency head decides the matter is not reviewable but the Merit Protection Commissioner considers it is.

Table 4: Timeliness in handling reviews and complaints, 2019–20 compared with 2018–19

Review type

2018–19

2019–20

Average time to complete reviews (weeks)

Completed within target timeframes (%)

Average time to complete reviews (weeks)

Completed within target timeframes (%)

Primary reviews—Code of Conduct

10.9

86.1

11.1

80.4

Former employees – Code of Conduct (Regulation 7.2A)

N/A

N/A

13.3

100

Primary reviews—other

14.1

75

12.9

66.7

Secondary reviews

9.8

81.1

10.7

79.5

Total reviews

N/A

N/A

11

79.7

Complaints about fi entitlements (Regulation 7.2)

N/A

N/A

1.9

100

Note: We have reported separately on reviews of employment actions (primary and secondary reviews) and complaints about entitlements on separation (regulation 7.2) in this annual report. Previous annual reports included complaints about entitlements in the overall review figures. For this reason some of the data calculations are not available for 2018–19.

Table 5 details the number of reviews and complaints about entitlements by agency.

Table 5: Reviews and complaints completed, by agency, 2019–20

Agency

Primary Review — Code of Conduct

Primary Review — Non Code

Secondary Review

Total

Complaints about entitlements — former employees

Department of Human Services/Services Australia

13

0

18

31

0

Department of Defence

11

0

2

13

0

Australian Taxation Office

2

0

10

12

0

Department of Home Affairs

3

0

5

8

1

Department of Agriculture, Water and the Environment

3

0

3

6

1

National Disability Insurance Agency

3

0

3

6

0

The Department of Infrastructure, Transport, Regional Development and Communications

5

0

1

6

0

Twelve agencies with less than six completed matters each

12

3

2

17

1

Total

52

3

44

99

3

Table 6 shows the subject matter for all reviews, other than Code of Conduct, completed in 2019–20.

Table 6: Subject matter of reviewed cases (other than Code of Conduct), 2019–20

Subject matter

Secondary subject matter

Number

Salary allowances and other payments

Allowances/Entitlements

3

Salary

5

Subtotal

8

Flexible working arrangements

Home based work

2

Subtotal

2

Performance management

Unsatisfactory performance, including performance rating

10

Subtotal

10

Duties

Assignment to different duties

1

Relocation

1

Selection process

1

Subtotal

3

Workplace behaviour

Workplace directions or warnings including about attendance

3

Handling of bullying complaints

3

Subtotal

6

Leave

Personal or carers’ leave

6

Unauthorised absence

3

Other

5

Subtotal

14

Other

Outside employment

1

Flextime/Time off in lieu of overtime

2

Direction about attendance

1

Subtotal

4

Total

47

Table 7 shows the subject matter for all Code of Conduct cases reviewed in 2019–20. The number of subject matters by category in Table 7 is greater than the number of reviewed Code of Conduct cases because an employee may have been found to have breached the Code of Conduct, or been sanctioned for more than one behaviour.

Table 7: Subject matter of Code of Conduct reviews completed, 2019–20

Subject matter

Number

Unauthorised disclosure of information

4

Bullying, harassment and discourtesy

13

Unauthorised access agency database

9

Uncooperative/unprofessional behaviour

5

Misuse of Commonwealth resources

7

Misuse of position

4

Failure to record attendance accurately

5

Conflict of interest

8

Other

6

Total number of matters identified

61

Erratum

There was an error in Figure 6 ‘Review of action other (primary and secondary) by agency’ in the MPC’s Annual Report, 2018–19. The figure provided data on the number of primary and secondary applications for review by APS agency. The legend for primary and secondary reviews was transposed for all agencies except the Department of Defence. The data given for primary reviews was in fact data for secondary reviews and vice versa for all agencies except the Department of Defence.

List of figures

Figure 1: Structure of the office of the Merit Protection Commissioner

Figure 2: Trends in number of review applications, 2015–16 to 2019–20

Figure 3: Promotion review applications received by month, 2018–19 to 2019–20

Figure 4: Promotion review applications by applicant type, 2019–20

Figure 5: Trends in promotion review applications from unsuccessful job applicants, 2007–08 to 2019–20

Figure 6: Promotion review workload by agency, 2019–20

Figure 7: Promotion review telephone enquiries by month (January to June 2020)

Figure 8: Number of review applications, 2010–11 to 2019–20

Figure 9: Applications by category of review, 2019–20

Figure 10: Treatment of applications, 2019–20

Figure 11: Reasons why applications for review were not accepted, 2019–20

Figure 12: Finalised reviews by agency, 2019–20

Figure 13: Percentage of agency actions set aside/varied or upheld, 2010–11 to 2019–20

Figure 14: Distribution of finalised review applications by length of time to complete review (minus time on hold), 2019–20

Figure 15: Code of Conduct reviews as a proportion of total reviews, 2012–13 to 2019–20

Figure 16: Code of Conduct cases reviewed by subject, 2019–20

Figure 17: Secondary review cases by subject, 2019–20

List of tables

Table 1: Status of promotion review cases at 30 June, 2019–20 compared with 2018–19

Table 2: Promotion review caseload, by agency, 2019–20

Table 3: Review and complaints workload for 2019–20, compared with 2018–19

Table 4: Timeliness in handling reviews and complaints, 2019–20 compared with 2018–19

Table 5: Reviews and complaints completed, by agency, 2019–20

Table 6: Subject matter of reviewed cases (other than Code of Conduct), 2019–20

Table 7: Subject matter of Code of Conduct reviews completed, 2019–20