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Merit Protection Commissioner’s foreword

Over the last year my office has continued to deliver to Australian Public Service (APS) employees a fair and independent process of review of decisions that affect their employment. We have continued to provide support to APS managers and decision makers to make high-quality employment decisions that contribute to the continual improvement of integrity and performance of the APS. This has been in the context of the global COVID-19 pandemic which has impacted all aspects of life and presented a range of challenges to the APS.

Like many APS agencies, I deployed my staff to their homes for an extended period of remote working early in the year as the number of COVID-19 cases increased and following the Prime Minister’s announcement of a nation-wide lock- down in March 2020. The transition to working from home full-time required some adjustments for my staff, however our Information Technology capability was remote-working ready and the nature of our work is amenable to these arrangements. This meant we were able to maintain business continuity and provide uninterrupted services to our stakeholders during this period.

The APS has had to deal with significant challenges this year—redeployment, mobilisation and striving to operate as a united enterprise supporting the response to and recovery from COVID-19. This was combined with ongoing priorities such as data and digital transformation and capacity building. At the centre of all this are our APS employees staying focused on delivering outcomes and achieving the best results for Australians. In such uncertainty and change in the workplace, it is increasingly important that APS agencies and employees have access to our services which assist to maintain harmonious workplaces and uphold our APS Values and Employment Principles as set out in the Public Service Act 1999 (Public Service Act).

During 2019–20, we received 1,785 applications for review of employment actions from APS employees in 27 APS agencies. Of these, 1,590 were applications for a promotion review which was an increase over the 1,089 applications we received the previous financial year. What made this increase so significant for my office was that it came in the form of an unexpected surge in late 2019 and in early 2020. In November and December 2019 we had a 293 per cent increase in applications compared to the same period in 2018. The period from January to April 2020 saw a 38 per cent increase in applications compared to the same period in 2019.

This surge in our casework presented significant challenges for our small team of two full-time officers who are responsible for the processing and administration of our promotion review function. We were able to resolve the temporary delays and clear the backlog from the November to January period. We did this through reassigning duties for other staff in the office and increasing the number of casuals able to convene Promotion Review Committees. With welcome funding from the Australian Taxation Office (ATO), from where the bulk of the promotion review applications came, we were also able to engage a temporary administration officer to assist with the surge.

Of the 760 promotion decisions we reviewed, we set aside four decisions. It is very pleasing to see such a volume of high quality and merit-based promotion decisions being made across the APS. The possibility of merits review of a promotion decision continues to reinforce and uphold the Employment Principle that the APS is a career-based public service that makes promotion decisions based on merit.

Although we receive a large number of promotion review applications, the bulk of our resources are dedicated to reviews of other employment actions. Reviews of these types of actions are resource intensive. They are full merits review and are often complex matters requiring analysis of large volumes of material. Reviewers generally need to consider relevant legislation, enterprise agreements and agency policies when dealing with these matters. The majority of my ongoing staff perform this aspect of our work and the most senior and experienced staff operate independently in these cases as my delegates.

We received 195 applications for reviews of other employment actions, of which 41 per cent were for reviews of misconduct breach or sanction decisions. As with previous years, this category of review saw the highest rate of recommendations to vary or set aside an agency decision, at 48 per cent of cases. In my view the rate at which we recommend variations to these decisions reflects their gravity and the challenges agency decision makers face in weighing evidence, dealing with employees’ submissions and articulating clear reasons. It is critically important that agencies manage conduct matters appropriately, proportionately and in accordance with procedural fairness as it is these matters which often have the biggest impact on, and are most adverse to, an employee. We continue to make this a priority area when engaging with our stakeholders and developing resources to assist them.

A large number of the remaining applications related to leave and performance management decisions. Perhaps due to the impact of COVID-19 changing the way we work across the APS, we saw a decrease in applications for review of flexible work applications. It may well be the case we see different trends in the next financial year. At the close of this year we are still in the midst of COVID-19 with many temporary working arrangements still in place. The APS, like many workplaces, is contemplating what the future of work may look like – particularly in relation to remote, flexible and agile ways of working while continuing to deliver government priorities, achieving outcomes and meeting productivity and efficiency targets.

As part of our ongoing stakeholder engagement work, we published summaries of our case work and tip sheets on other issues arising from our review casework, including on managing conflicts of interest and conducting internal reviews of performance management decisions. I have already referred to the challenges agencies face in making Code of Conduct decisions. To assist agency decision makers, we published a tip sheet containing advice and guidance on the importance of getting the basics correct when drafting allegations of misconduct and on managing conflicts of interest.

Due to restrictions on travel and the APS’s focus on delivering essential services to the Australian community, our focus in the second half of 2019–20 was more internal than external, with key priority areas of improving our internal governance, focusing on staff development and setting clear objectives and project goals for the coming two financial years.

Finally, I would like to thank and acknowledge the staff of the Australian Public Service Commission (APSC) who assisted me in discharging my statutory functions and those that assisted me by providing corporate support for the operation of my office.

Linda Waugh

Merit Protection Commissioner