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This Newsletter is to provide APS HR Professionals and other interested people insights and advice from the work of the Merit Protection Commissioner. It provides quick links, practical tips and information on where to get expert support on making good employment decisions.

Recent changes to Promotion Reviews

The Merit Protection Commissioner, Annwyn Godwin, announced a further change to streamline the promotion review process.

From 7 April 2016, agencies no longer need to give all employees in a promotion review access to the selection documentation relating to the original promotion decision.

Ms Godwin said "As well as saving agencies time and resources, this reform is designed to remove the only remaining adversarial element in the promotion review process. It is the promotion review committee's job to assess the relative merits of the parties and make a decision. Employees are not disadvantaged
by this change. They still need to convince the PRC that they are the most meritorious person for the job. To do this, they need to put forward their case and do not need to comment on the selection documents relating to other employees."

If they have not already sought feedback, employees can still request information on their performance in the selection process. Any such requests should be handled in accordance with agency policies on providing feedback to applicants. If you require further information please contact the Review Team
on 02 8239 5330 or review@apsc.gov.au .

Tips and traps for Code of Conduct Investigations

Tip 1: Section 13(11)(a) of the Act - Identify the value(s) or Employment Principle(s)

Where it is alleged an employee has breached section 13(11)(a) of the Act, by not acting in a way that upholds the APS Values and/or APS Employment Principles, it is good practice to identify the relevant Value(s) or Employment Principle(s) and why the employee's behaviour may have been inconsistent
with it. In line with the requirements of procedural fairness, this helps to ensure the employee has enough information to respond fully to the allegations.

Trap 1: breach and sanction - two separate timeframes to lodge applications.

A determination that an employee has breached the Code of Conduct and the decision to impose a sanction are separate decisions. Depending on the timing of the decisions, an employee may need to make an initial application for review of the breach determination and a separate application for review
of the sanction decision. An application for review of a breach determination must be made within 60 days of the date of the determination, even if the sanction decision is pending. Once a sanction is imposed, the employee has 60 days to seek review of the sanction decision. Employees who wait for a
sanction decision before seeking review of a breach determination may risk losing the opportunity to have the breach determination reviewed.

Merit in the APS

There are lots of myths about merit, so what isn't it? Merit isn't about:

  • The size of the report
  • The number and gender of people on a committee
  • Mandatory interviews (or the time they take)
  • Adding up 'scores'…

The merit principle is shorthand for a recruitment process that results in the best person available for that job being promoted or engaged and they did not get the job on the basis of who they are or, who they know. The idea of being treated on your merits, that people should play fair and everyone is given a 'fair go', is deeply embedded in the

The Office of the Merit Protection Commissioner (OMPC) provides an independent assessment of promotion decisions for employees below the Executive Level. The APS must operate without patronage, nepotism or favouritism to sustain public confidence and trust. An independent assessment of the way the
APS recruits and promotes people reinforces our accountability for taxpayer money and ethical standards.

For more information on how this works in practice go to:

Observations from Promotion Review (PRC) and Independent Selection (ISAC) Committees

Agencies need to 'invest' in recruitment, actively project manage it, clearly identify capability requirements and integrate this with workforce plans. There are many ways to rethink selection without compromising the quality of the outcome. The OMPC has observed exercises where processes were: considerably
delayed as panel members were on approved leave (including approved parental leave and extended overseas holidays); designed using inflexible and arbitrary selection tools that screened out quality candidates; and missing or incomplete records management. Recent overturn rates in some agencies have been
very high. This is unfortunate for all parties.

There are many antidotes to such behaviour, including:

  • consciously identifying what the job is and what skills and qualities are necessary before recruitment begins.
  • pre-planning logistics prior to advertising – including timelines, panel availability (planned leave, job movements, other priorities), updating delegations and booking rooms and technology.
  • getting the basics right such as records management – including, placing evidence (resumes, assessment centre results etc) to support decisions, and reasons for those decisions, on file.
  • training managers on modern selection practices to optimise returns on investment.
  • using flexibilities within the current framework and addressing restrictive policies.
  • developing partnerships between line areas and human resource areas, including ISACs where appropriate.
  • enhancing job design to enable promotion or engagement to a level.
  • supporting mobility of employees across the APS.
  • proactively aligning with workforce plans to address skill, career and succession paths.
  • linking with talent management programs to identify and nurture future managers and leaders.

These are all initiatives that are available now. Talk to the MPC Business manager before you recruit, we can partner with you to deliver a quality outcome. Having open and transparent processes when investing in our people supports good decision-making.

Code of Conduct inquiries

The OMPC now does Code of Conduct inquiries and breach determinations on a fee-for-service basis, with the consent of the employee.

There are many reasons why an agency head may ask the Merit Protection Commissioner to conduct an inquiry, including:

  • The Merit Protection Commissioner and her staff (the Office) have expert knowledge of the APS and the Act
  • We provide an impartial and credible inquiry and make procedurally fair decisions, and
  • Agency workload issues or sensitive, complex or contentious cases.

Cases involving employees with a complex and conflicted employment history benefit from engaging an impartial decision maker with the credibility of a statutory office.

Who conducts the inquiry?

The Merit Protection Commissioner appoints an inquiry officer to conduct a fair and impartial inquiry. The Merit Protection Commissioner then considers the evidence gathered in the inquiry and makes a decision about whether or not the employee has breached the Code of Conduct.

How can the agency be sure about the standard of the decision?

The Merit Protection Commissioner is assisted by experienced and expert inquiry officers with a thorough knowledge of the relevant law and procedures. The inquiry officers have been thoroughly assessed by the Merit Protection Commissioner for their demonstrated track record as administrative decision
makers and / or their senior management experience. Many inquiry officers have previously held senior decision making and management roles in the Administrative Appeals, Native Title, Migration and Refugee Review Tribunals. Others have held Senior Executive Service positions in agencies. All receive
support and mentoring by the Office.

What is the procurement process to use this service?

The inquiry is a statutory function of the Merit Protection Commissioner conducted in accordance with s50A of the Public Service Act 1999. As such, the Department of Finance has confirmed that exemption 2 from Division 2 of the Commonwealth Procurement Rules applies. This enables entities to direct source such services from the Merit Protection Commissioner.

Information & workshops

Would you like to have a representative from the Office of the Merit Protection Commissioner (OMPC) present an information session or workshop on a particular topic?

The OMPC can tailor sessions for inclusion in induction, new supervisor and middle manager training. Call (02) 6202 3505 or email Melinda.Kopilow@apsc.gov.au

The MPC Business Manager can put together a package of information on specific services offered on a fee for service basis.

This includes Independent Selection Advisory Committees (ISACs) and the new service for Code of Conduct Inquiries. Call the MPC Business team on (02) 8239 5317 or email mpcbusiness@apsc.gov.au

Row of books

Resources of interest: 'Fairness' as a business driver