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Merit Protection (Australian Government Employees) Amendment Bill 1994



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House: Senate

Portfolio: The Prime Minister

Commencement: As drafted, the Bill provides for some provisions to come into effect after the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 is proclaimed. As that Act was proclaimed on 1 July 1994, the entire Bill will now operate from Royal Assent.

Purpose

The Bill makes a number of streamlining and technical amendments to the Merit Protection (Australian Government Employees) Act 1984 ('the Principal Act').

Greater scope is to be provided for the use of Joint Selection Committees (JSCs) established by the Merit Protection and Review Agency (MPRA). MPRA is also, with the consent of the affected agency and the relevant principal union, to be allowed to become part of the primary decision-making process on a broader range of employment related matters.

Background

MPRA is a statutory authority established to provide independent review of decisions and actions affecting Commonwealth employees in relation to their employment. It has a key role in human resource management in the Australian Public Service (APS) 'because of the major impact that many of its decisions have on staff management practices including management time and agency performance'. 1

Legislation creating MPRA absorbed existing mechanisms for reviewing employment related decisions and actions in the APS and formed part of the Hawke Government's APS reform package of 1984. To quote from the then Minister for Finance's Second Reading Speech outlining the functions of MPRA:

The Bill will not provide further avenues of appeal and grievance for staff, but it will allow for appeals and grievances to be considered independent of departmental management and the Public Service Board. The current powers of the statutory tribunals under the Public Service Act and the Commonwealth Employees (Redeployment and Retirement) Act will be retained but the Merit Protection and Review Agency will take over responsibility for the operation of these tribunals. The Agency will have an additional determination power in relation to discipline appeal matters involving dismissals where the final decision is now made by the Public Service Board. The Agency will also be responsible for review and investigation of personnel decisions and actions which are the subject of grievances. The Agency will be empowered to review certain specified decisions where appeals may now be made against departmental decisions to the Public Service Board, for example, in relation to the deferral of increments or decisions not to grant certain types of leave. 2

MPRA commenced operations on 1 July 1985.

Recognising continuing concerns over costs and delays associated with review procedures and the large number of appeals, 3 further changes were introduced through the Public Service (Legislation) Streamlining Act 1986 which abolished appeals against promotions to middle management, senior research and equivalent positions. (Promotions appeals for the most senior grades had been abolished with the creation of the Senior Executive Service in 1984).

For the Labor Party and the APS unions, these changes although apparently justified by later experience ' . . . represented something of reversal of an innovation made under the Labor Government which introduced promotion appeals committees in 1945, [in an initiative] described as reflecting more than any other feature of the Service . . . a political and social climate which places heavy emphasis upon the rights and welfare of the employee'. 4

The bulk of MPRA's work, and the work of its Review committees, is in hearing appeals from unsuccessful applicants for promotion within the APS and in hearing 'grievance' appeals where decisions or actions which affect an officer's employment are thought to be either unfair or incorrect. 'Grievances' may arise in cases involving improper discrimination, harassment, refusal to pay an increment, or a range of other matters which may affect the employee personally. 5

The Principal Act also provides for the review of certain non-appealable promotions (NAPS). The Principal Act allows unsuccessful applicants for Senior Officer 6 positions to seek a review of aspects of a selection process but not the selection panel's substantive recommendation. The ground for review of NAPs is that it would be unreasonable for the promotion to stand because of either:

* a serious defect in the selection process; or

* a breach of section 33 of the Public Service Act 1922 (PSA) (which precludes, among other things, favouritism and any unjustified discrimination in the promotion process) in connection with the making of a promotion.

In 1992-93, 32 determinations were made in relation to NAPs, four resulted in recommendations that the relevant provisional promotion be cancelled. 7

The other functions of MPRA, and of Review Committees established by it, are:

* disciplinary appeals

* redeployment and retirement appeals

* re-appointment reviews

* re-integration assessments 8

As at 30 June 1993, MPRA had a staff of 65 and, in the financial year that ended on that date, incurred total operating expenses of $5.4 million of which $0.76 million was met by revenue from independent sources. 9

MPRA's jurisdiction extends to those parts of the Commonwealth public sector brought within its ambit by Acts, regulations, awards and related instruments and agreements. For example, amendments to the Principal Act made by the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 allow MPRA to provide services to the recently created ACT Public Service. 10

The Principal Act conferring power on MPRA is the PSA. However, in addition to the 150 000 Commonwealth public servants 'roped in' by the PSA, a further 13 000 ACT public servants are covered, as are 14 000 non APS employees of participating Commonwealth authorities. 11

In the APS in 1992-93, there were 2 138 appeals determined by MPRA's promotional appeals committees, of these 11 percent were upheld. 12 The average time taken to complete each promotion appeal review was 7 weeks. 13 In the same year, 132 grievance appeals were investigated, with just over 50 percent being either partly or wholly sustained. 14

Although the cost of MPRA's operations is not insignificant, it performs the necessary task of ensuring that employment practices are subject to independent scrutiny and that preferment is on the basis of merit and not patronage. Moreover, MPRA reviews cases on their merits as well as examining whether correct procedures have been followed. Judicial review, where available, generally only extends to procedural issues. Given that some form of independent/external review is inescapable, any assessment of the cost effectiveness of MPRA would have to account for the full range of services it provides and the likely cost of obtaining those services elsewhere, for example, through the courts.

Main Provisions

Commencement

Clause 2 notwithstanding, the Australian Capital Territory Government Service (Consequential Provisions) Act 1994 having been proclaimed on 1 July 1994, the entire Bill is to commence on Royal Assent.

Joint Selection Committees

Joint Selection Committees (JSCs) are provided for under the Public Service Act 1922 (PSA).

JSCs are job selection panels chaired by a nominee of MPRA with two other members, one nominated by the relevant Commonwealth employing agency, and the other by the principal staff association (union) covering workers in the enterprise where the job is located.

JSCs are independent statutory committees (presently established under sections 50DB or 50DA of the PSA) and equivalent legislation in some statutory authorities. The principles underlying JSC operations are defined in section 50DC of the PSA although, as independent committees, JSCs can devise their own procedures having regard to general principles promulgated by the Public Service Commission.

For some years, the Government has sought to encourage the use of JSCs as a means of streamlining staff selection processes in the Commonwealth public sector. In its 1992-93 Annual Report, MPRA observed:

The key benefit of JSCs is that they provide a streamlined merit selection process without an appeal process at the end, instead of several selection exercises for individual vacancies each potentially with an appeal process. The end result is that JSCs provide:

. an overall saving in time;

. cost savings;

. improved moral; and

. higher levels of staff confidence in the selection process. 15

The use of JSCs has, however, been patchy, partly because of union and staff ambivalence. 16 In 1991-92 only seven JSCs were established by MPRA and these dealt with 738 transfers and promotions; less than five percent of all such staff movements in that year. 17

In December 1992, as part of the service-wide enterprise bargaining process, the Government and the relevant unions agreed to extend the use of JSCs as a means of improving the efficiency of selection exercises. 18 The present Bill, to some extent, stems from the impetus provided by 1992 agreement. Usage of JSCs increased significantly in 1992-93. 19

Clause 3 defines Joint Selection Committees (JSCs) for the purposes of the Principal Act. Subclause 4(c) amends the Principal Act to make it plain that it is a function of MPRA to provide heads of government agencies with services in connection with the establishment, constitution and operation of JSCs. These amendments should facilitate the wider use of JSCs and appear to provide a statutory basis for the use of JSCs in all agencies which come within MPRA's jurisdiction.

The decision to promote the use of JSCs has necessitated a number of consequential changes to the Principal Act. Clause 4 provides the legislative basis for MPRA to charge agencies for services provided by it in connection with the use of JSCs. Clause 6 amends the Principal Act to allow MPRA to issue procedural guidelines to JSCs. Clause 8 amends section 36 of the Principal Act to make it plain that JSCs, like other MPRA committees, are not subject to external direction. Clause 9 amends section 37 of the Principal Act to place JSC procedures on the same footing as other Review committees established by MPRA.

Clause 14 amends section 84 of the Principal Act to impose secrecy obligations on members of JSCs.

New Functions

Clause 10 will insert new provisions allowing MPRA, where requested by an agency and the principal staff association, to perform specified tasks affecting the employment of Commonwealth officers by a Department or authority. Clause 7 provides for the creation of MPRA committees which may engage in dispute mediation,

staff selection for transfer, and in establishing orders of merit where a number of positions have been subjected to a 'spill'.

These proposals cast MPRA in something of new role, as an original participant in the relevant process. Like MPRA's direct involvement in staff selection through JSCs, these new tasks may expose it to a range of new pressures and work practices not commonly faced by a reviewing authority. However, whilst such concerns may prove real enough, they may all too easily be overstated; perhaps amounting to no more than a 'blurring' of the MPRA's place in the wider network of administrative review arrangements. Any body involved in merits review, for example the Administrative Appeals Tribunal, will frequently find itself 'in the shoes of' the primary decision-maker. Where arms-length involvement is maintained a conflict of interest is unlikely to arise.

New section 35A seeks to further protect MPRA from becoming a participant in staff/management disputes by providing that it may only exercise this new jurisdiction where it has been asked to do so by both the employing authority and the relevant principal union. It will be understood, however, that this limitation may not always be an effective means of saving MPRA or its committees from being drawn into a dispute where it is a party principal to a primary decision.

Minor and technical amendments

Clause 11 provides for purported appeals against NAPS to be treated by MPRA as requests for review. This is purely an administrative measure and is to assist in situations where an officer, with an otherwise valid entitlement, mistakenly couches their request for relief in the wrong terms.

Clause 12 makes it clear that neither MPRA (nor any member of that Agency) whilst acting in an official capacity may be subject to direction by another person. This provision extends a protection already available under section 36 of the Principal Act and is made necessary by the broadening of MPRA's functions by the present Bill (see clause 7).

Clause 13 makes it an offence to hinder or obstruct the work of any Review Committee or the member of a Review Committee, or to disrupt a Review Committee hearing. (The Principal Act already extends protection from disruptive conduct to MPRA. The present amendment, perhaps with an abundance of caution, recognises that MPRA acts largely through its committees and that these also require protection from outside interference.)

Endnotes

1 APS Task Force on Management Improvement, The Australian Public Service Reformed:An Evaluation of a Decade of Management Reform, December 1992, p 499.

2 Hon John Dawkins MP, House of Representatives, Parliamentary Debates (Hansard), 9 May 1984, page 2156.

3 John Halligan, 'The Australian Public Service Reform Program' in Hawke's Second Government, Roger Wettenhall and J R Nethercote (editors), pp 27-84, esp at p 75 where the author notes statistics showing that in 1984 approximately 1 in 7 promotions were appealed but only 1 in 50 were overturned.

4 Halligan op cit, citing Howard Scarrow, The Higher Public Service of the Commonwealth of Australia, 1957, p 57.

5 The grievance provisions for the APS are contained in Public Service Regulations 82-86.

6 These are the three grades immediately below the Senior Executive Service.

7 Merit Protection and Review Agency, Annual Report 1992-93, pp 91-92.

8 'Re-integration' is the name given to the process whereby APS officers who wish to return to the Service after working for a period for a Member of the Federal Parliament (frequently a Minister) under the Members of Parliament (Staff) Act 1984, are re-engaged at an appropriate salary point in the APS.

9 MPRA, op cit, pp 109 and 166.

10 Section 6(h) of the Principal Act.

11 Whether MPRA is to have jurisdiction in relation to a particular statutory authority is for the management of the Authority to determine.

12 MPRA, op cit, p 42.

13 ibid, p 40.

14 ibid, pp 84-86.

15 ibid, p 27.

16 There are only limited appeal rights from JSC decision (usually to the Federal Court) and such committees may place a significant drain on union time and resources.

17 MPRA, op cit, p 27.

18 See the Service-wide Productivity Bargaining Agreement of December 1992, Improving Productivity, Jobs and Pay in the Australian Public Service 1992-1994, p 13.

19 MPRA, op cit, p 28. In 1992-93, 61 JSCs were established. These handled 1578 transfers and promotions.

Bob Bennett (Ph. 06 2772430)

Bills Digest Service 16 August 1994

Parliamentary Research Service

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1994.

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Published by the Department of the Parliamentary Library, 1994.