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1. Overview

About the Merit Protection Commissioner

The Merit Protection Commissioner (MPC) is an independent statutory office holder established under Part 6 of the Public Service Act who performs a range of statutory functions for the 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. This is done principally through independent reviews of employment-related actions and decisions affecting APS employees. The MPC also has a range of other complaint and inquiry functions and can provide recruitment and employment-related services.

Ms Linda Waugh is the current MPC and was appointed on 25 June 2018. Ms Waugh is also the Parliamentary Service Merit Protection Commissioner. The duties and functions of this role mirror those of the MPC under the Public Service Act, and are the subject of a separate annual report.

The staff of the Office of the Merit Protection Commissioner (OMPC) are employees of the APSC. Under Section 49(2) of the Public Service Act the staff necessary to assist the MPC must be engaged under that Act and made available by the Public Service Commissioner. The APSC provides all corporate support and services to the MPC. The MPC is co-located with the APSC.

The MPC strives to perform all statutory functions independently, efficiently and professionally. Our objectives and priorities when discharging our statutory functions are to:

  • engage effectively with our stakeholders
  • build our internal capacity and expertise
  • innovate for better delivery of services
  • enhance our governance and accountability.

Statutory functions and responsibilities

The statutory functions of the MPC are set out under Part 6 of the Public Service Act and parts 4, 5 and 7 of the Public Service Regulations 1999 (the regulations). The statutory authority for each of the MPC’s functions are set out in Appendix A. The following sections explain the operation of each function.

Reviews of employment-related actions and decisions

Section 33 of the Public Service Act provides an APS employee an entitlement to seek review, in accordance with the regulations, of any APS action that relates to their APS employment (excluding termination). The details of the scheme are in parts 5 and 7 of the regulations.

There are two tiers of review, with agencies conducting internal reviews for most types of matters. The MPC provides independent and external merit-based reviews.

The Australian Government general policy (Public Service Regulation 5.1) about the Reviews of Actions scheme is that:

  • APS agencies should achieve and maintain workplaces that encourage productive and harmonious working environments
  • there should be a fair system of review of APS actions
  • APS employee’s concerns should be dealt with quickly, impartially and fairly
  • the review process should be consistent with the use of alternative dispute resolution methods to reach satisfactory outcomes where appropriate
  • nothing in the operation of the scheme should prevent an application for review from being resolved by conciliation or other means at any time before the review process is completed.

There are three broad categories of employment-related actions within the scheme that can be reviewed by the MPC:

1. Review of a promotion decision

An APS employee who applies for promotion to APS levels 1 to 6 and is unsuccessful, and where the person promoted is another APS employee, may apply for a full merits review of the promotion decision. An APS employee who has been promoted can also apply for promotion review. Employees do this to ‘protect’ their promotion where they anticipate someone might seek review of their promotion. The review eligibility criteria are the same regardless of the reasons the employee submits a promotion review application. An MPC promotion review decision is binding on the relevant agency head. The promotion review scheme is outlined in Division 5.2 of the regulations.

2. MPC direct review of an action (primary review)

There are three types of employment-related actions or decisions for which an APS employee can apply directly to the MPC for review.1

  1. Review of a determination that an APS employee (and in certain circumstances a former employee) has breached the Code of Conduct and/or the resulting sanction decision. The employee makes the application directly to the MPC without first seeking internal review by their agency. The entitlement to review for a current employee is outlined in Division 5.3 of the regulations and is called a primary review. The entitlement for a former employee is in Division 7.3 of the regulations.
  2. Review of an action or decision where it is not appropriate for the agency to conduct an internal agency review. This applies if:
    • the agency head was directly involved in the action
    • it is not appropriate due to the seriousness or sensitivity of the action
    • the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of an action.

The employee can apply directly to the MPC without first seeking review in the agency for any of the above reasons. Agencies are able to refer matters requesting that the MPC conduct a primary review if:

  • the agency head was directly involved in the action
  • it is not appropriate due to the seriousness or sensitivity of the action

The provisions outlining the circumstances in which the MPC is able to conduct a primary review of a matter which would ordinarily be reviewed first in the agency are outlined in Division 5.3 of the regulations.

  1. Review of an action or decision taken by a statutory officer. APS employees are able to seek review by the MPC of the actions of a statutory officer holder

who is supervising or managing the APS employee. Employees are able to make applications directly to the MPC without first seeking a review in the agency. This entitlement is outlined in Division 7.4 of the regulations.

3. MPC review of an action following internal agency review or consideration (secondary review)

This is called a secondary review because the APS employee must seek an internal review of the employment-related action or decision by their agency before seeking review by the MPC. Disputes concerning leave applications, performance reviews and flexible working arrangements fall within this category. An APS employee will seek secondary review by the MPC because they disagree with the agency action or decision and are not satisfied with the outcome of the internal agency review of that action or decision. An APS employee can also make a secondary review application when an agency head has rejected the APS employee’s application for an internal review on the grounds that it is not a reviewable action. The provisions relating to secondary reviews are in Division 5.3 of the regulations.

Only employees at classifications below Senior Executive Service level can seek a primary or secondary by the MPC. The MPC’s powers for these reviews are recommendatory, that is the MPC can recommend the agency or statutory office holder decision or action be upheld, varied or set aside.

Complaints about entitlement calculations on separation

Former employees are able to ask the MPC to investigate a complaint about the entitlements they received when leaving APS employment. This usually relates to payments made for leave accrued but not taken. This entitlement is outlined in subsection 50(1)(e) of the Public Service Act and Division 7.2 of the regulations.

Inquiry functions

The MPC can conduct inquiries into:

  • public interest disclosures that relate to alleged breaches of the Code of Conduct (Subsection 50(1)(a) and 50(2) of the Public Service Act and Division 7.1 of the regulations)
  • alleged breaches of the Code of Conduct by the Australian Public Service Commissioner (Subsection 50(1)(b) of the Public Service Act)
  • an APS action at the request of the Public Service Minister (Subsection 50(1)(c) of the Public Service Act )
  • an APS employee, or a former APS employee, alleged to have breached the Code of Conduct (Subsection 50(1)(ca) and Section 50A of the Act and Division 7.6 of the regulations).

Statutory services for APS Agencies

The MPC may inquire into and determine whether an APS employee or a former employee has breached the Code of Conduct, if a request is made by the agency head. The inquiry must have the written agreement of the employee or former employee. A finding or any action undertaken during an inquiry by the MPC is not subject to review under the Review of Actions scheme. The arrangements for conducting inquiries are outlined in Subsection 50(1)(ca) and Section 50A of the Public Service Act and Division 7.6 of the regulations.

If requested, the MPC may establish Independent Selection Advisory Committees to help with agencies’ recruitment processes. These committees are independent three-member bodies that perform a staff selection exercise on behalf of an agency, and make recommendations about the relative suitability of candidates for jobs at the APS 1 to 6 classifications. The convenors are employees working for the MPC. A promotion decision resulting from an Independent Selection Advisory Committee recommendation is not subject to promotion review under the Review of Actions scheme. The arrangements for Independent Selection Advisory Committees are outlined
in part 4 of the regulations.

The MPC would usually charge a fee for these services

Recruitment and employment services for non-APS entities

The MPC is able to provide review, investigation and recruitment services to non-APS Commonwealth entities, entities in other jurisdictions and private corporations and bodies and charge a fee for these services.

This is provided for under subsection 50(1)(e) and 50(3) of the Public Service Act. The details of these arrangements are provided for in Regulation 7.4.

Organisational structure

The Office of the MPC has 11 positions occupied by 12 employees (as at 30 June 2020) and is structured as shown in Figure 1.

Figure 1 Structure of the Office of the Merit Protection Commissioner Figure 1 Structure of the Office of the Merit Protection Commissioner

We also engage staff from the MPC pool of casual employees on an as-needed basis (usually for a specific activity such as convening a Promotion Review Committee or conducting a Code of Conduct investigation).

Footnotes

  1. For ease of reporting we include applications for review under Division 7 of the regulations as ‘primary reviews’ when referenced in this annual report (noting they are not termed primary reviews under the regulations).