Eligibility and what can and can’t be reviewed

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What can and can’t be reviewed?

What general employment matters are reviewable?

A wide range of decisions or actions are reviewable.

An employment matter is about you as an individual employed in the APS. You must have sufficient personal interest in a matter to have it reviewed.

Note: You can't seek review on behalf of a colleague who is reluctant to apply for review.

You can find de-identified case summaries on a range of employment matters, at the case summaries page.

Some common general employment matters concern:

Specific employment decisions are:

The most important exception is termination of employment. Termination of employment is only reviewable by the Fair Work Commission.

Are all decisions and actions reviewable?

Not all decisions and actions are reviewable (Regulation 5.23 and Schedule 1 of the Public Service Regulations). You can view the exclusions in Schedule 1 of the Public Service Regulations.

The most important exception is termination of employment. Termination of employment is reviewable by the Fair Work Commission.

Matters reviewed by a court or tribunal (for example the Fair Work Commission) are not eligible for review under this scheme.

Most staff selection, staff placement and recruitment decisions are not reviewable. 

However, promotion decisions for  APS 1–6 level jobs are reviewable. They may be reviewed by a promotion review committee. 

Engagement of a Parliamentary Service employee may be reviewable in some circumstances.

Reviewable

  • reduction in classification
  • relocation to another place in certain situations
  • serious defects in an EL 1 or EL 2 promotion process
  • some staff placement decisions.

Not reviewable

  • engagement decisions
  • movement or transfer at level
  • assigning or not assigning duties (ongoing or temporary).

Other non-reviewable actions are:

  • machinery of government decisions
  • decisions made by a promotion review committee or an independent advisory selection committee
  • policy, restructure or resourcing decisions made by your agency
  • decisions made under certain legislation, for example, the Safety, Rehabilitation and Compensation Act 1988.

Can some employment actions cease to be reviewable?

Yes some actions cease to be reviewable, such as (Regulation 5.23):

  • you applied outside of the statutory time limits and there are no exceptional circumstances explaining why you did not make an application within the time limits (Regulation 5.23(4))
  • your application is misconceived or lacking in substance
  • your application is frivolous or vexatious
  • the matter has previously been reviewed
  • you have applied to have a promotion review committee (PRC) or an independent selection advisory committee (ISAC) decision reviewed
  • you have or could have the action reviewed by an external review body which is considered more appropriate to review your concerns

    For example:
    the Human Rights Commission, Privacy Commissioner, Commonwealth Ombudsman
  • you do not have a sufficient personal interest in the matters you are concerned about
  • review or further review is not otherwise justified in all the circumstances.

Some of these decisions are discretionary and we have a policy on how this discretion is exercised.

Information on eligibility

Are there different eligibility requirements for different types of reviews?

All current non-SES employees of the Australian Public Service (APS) (Section 22, Public Service Act) are eligible to apply for most types of review.

Only current APS 1–5 employees can apply for promotion reviews of decisions for APS 1–6 jobs.

Former APS employees only have rights of review concerning only:

  1. a decision made after their APS employment ceased that they breached the Code of Conduct during APS employment
  2. the final entitlements they were paid.

Employees of the Parliamentary Service have a similar review scheme. Parliamentary Service employees can also apply for a review of an APS promotion in some situations.

Who is an ‘APS employee’?

An APS employee entitled to review (Section 33, Public Service Act) Comment

A current, not a former, employee of the APS

Note: there are two exceptions for former employees

If you have a review application but it has not been completed, your application for review lapses if:

  • you resign or
  • your employment is terminated.

This is because you are no longer an APS employee.

Both ongoing and non ongoing employeesYour employment status does not affect your entitlement to seek review (Section 22, Public Service Act).
Employees who are not Senior Executive Service (SES) employees

The right of review is restricted to non-SES employees. That is, employees in the classification levels APS1 to Executive Level 2 (Regulation 5.22).

Employees who are acting in the SES and whose substantive classification is below the SES, are able to apply.

Former employees only eligible for review in 2 situations.

In both situations, the application is made direct to the Merit Protection Commissioner

  1. For review of their entitlements on separation from the Australian Public Service (Regulation 7.2).
  2. For review of a decision made after their APS employment ceased that they had breached the Code of Conduct during APS employment (Division 7.3 Public Service Regulations).

What is an ‘APS action’?

An APS action means … Comment
Things done or said, processes followed and/or decisions that have been made Based on the Macquarie Dictionary.
A refusal or failure to act

An action includes a refusal or failure to act (Section 33(7), Public Service Act).

For example, a failure to act on a complaint made by the employee or delays in making decisions.

Action by (Regulation 5.22):

  • an agency head or
  • an APS employee or

OR
Action by a person in the capacity of Section 33(7), Public Service Act:

  • an agency head or
  • an APS employee

OR
Action by the Australian Public Service Commissioner when exercising the same powers as an agency head (Section 33(7)(b) and Section 41B(7), Public Service Act).

Reviews are restricted to actions taken by an agency head or an APS employee (Regulation 5.22).

APS actions are actions by an agency head or an APS employee that concerns their employment relationship (Section 33(7), Public Service Act).

Direct actions by consultants, contractors and statutory office holders working alongside APS employees are not reviewable.

However, employees' concerns about the actions of consultants, contractors and statutory office holders may still be considered.

For example, if an employee complains to an APS manager about the actions of one of these people, the agency's response to that complaint may be a reviewable action. Non-SES employees may apply directly to the Merit Protection Commissioner for a review of the actions of a statutory office holder that concerns their employment relationship (Regulation 7.3).

What does ‘an action relating to employment’ mean?

 

An action relating to employment means …Comment
Actions relating to the employee's employment and not someone else's employment

The applicant is seeking review of something in which they have a direct personal interest.

An applicant can't apply for a review of an action that affected their colleague.

Sometimes it isn't clear whether an action concerns an applicant as well as a colleague, or only a colleague.

For example, an employee witnessing bullying and harassment of a colleague may be affected by what they saw. They may be able to establish sufficient personal interest to be eligible for review.

Actions relating to employment and not to the employee's status as a client of an APS agency

For example, an employee who applies for a social security benefit is a client of that agency. They are not eligible to apply for a review of interactions as a client.