The legislative and policy framework

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Information about the legislative and policy framework in practice - reviews in general

What is the legislative and policy framework?

The Public Service Act 1999 and the Public Service Regulations 1999 provide the legislative framework for reviews. Important references are:

  • section 10—the APS Values—impartial, committed to service, accountable, respectful, ethical
  • section 10A—the APS Employment Principles—
    1. The APS is a career-based public service that:
      1. makes fair employment decisions with a fair system of review; and …
      2. makes decisions relating to engagement and promotion that are based on merit; and …
      3. provides flexible, safe and rewarding workplaces where communication, consultation, cooperation and input from employees on matters that affect their workplaces are valued; and
      4. provides workplaces that are free from discrimination, patronage and favouritism; and …
    2. Decisions based on merit.
  • section 13 – the APS Code of Conduct
    1. An APS employee must behave honestly and with integrity in connection with APS employment.
    2. An APS employee must act with care and diligence in connection with APS employment.
    3. An APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment.
    4. An APS employee, when acting in connection with APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:
      1. any Act (including this Act), or any instrument made under an Act; or
      2. any law of a State or Territory, including any instrument made under such a law.
    5. An APS employee must comply with any lawful and reasonable direction given by someone in the employee’s Agency who has authority to give the direction.
    6. An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister’s member of staff.
    7. An APS employee must:
      1. take reasonable steps to avoid any conflict of interest (real or apparent) in connection with the employee’s APS employment; and
      2. disclose details of any material personal interest of the employee in connection with the employee’s APS employment.
    8. An APS employee must use Commonwealth resources in a proper manner and for a proper purpose.
    9. An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee’s APS employment.
    10. An APS employee must not improperly use inside information or the employee’s duties, status, power or authority:
      1. to gain, or seek to gain, a benefit or an advantage for the employee or any other person; or
      2. to cause, or seek to cause, detriment to the employee’s Agency, the Commonwealth or any other person.
    11. An APS employee must at all times behave in a way that upholds:
      1. the APS Values and APS Employment Principles; and
      2. the integrity and good reputation of the employee’s Agency and the APS.
    12. An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.
    13. An APS employee must comply with any other conduct requirement that is prescribed by the regulations.
  • section 33—Review of actions
    • An APS employee is entitled to review … of an APS action that relates to his or her employment.
    • The policy supporting the review framework is in Regulation 5.1. The policy is to achieve   productive and harmonious working environments with review arrangements that deal with employees' concerns quickly, impartially and fairly and are consistent with approaches to alternative dispute resolution.
    • Part 5  of the Regulations sets out the general framework agencies and the Merit Protection Commissioner must follow when conducting reviews.

How do reviews support the legislative and policy framework?

Together, the APS Values and Employment Principles shape the culture of the APS. Individually and collectively they provide assurance to the Parliament, the public, APS agencies and employees on the quality and fairness of an agency's employment decision-making.

Independent reviews of workplace conflict help build trust by providing an impartial environment, managing different perceptions of an issue, addressing mistakes, and improving decisions and outcomes.

How can my agency use reviews strategically?

A healthy organisation is open, transparent and accountable. Employee complaints and concerns raised in reviews give agencies an opportunity to identify and fix mistakes and to improve decision-making, policy and procedures.

Analysing reviews along with other data about employee engagement, such as information obtained through the Australian Public Service Commissioner’s annual State of the Service report,  provides agencies with insights into culture, integrity risks and priorities for intervention. These reports are available on the APSC  website.

The Commonwealth Ombudsman says "They are a free source of strategic advice!" (Canberra Evaluation Forum,10 April 2014 )

What are the benefits of early intervention?

Dealing with matters promptly helps to build trust and accountability, de-escalate conflict and to increase engagement.

How are reviews part of the integrity framework?

Reviews support the integrity of the APS and the future capability and capacity of our Public Service.

The integrity of the APS is enhanced as decision-makers are accountable for decisions and receive feedback from their agency or the Merit Protection Commissioner on review outcomes.Reviews also help to minimise risks of nepotism, cronyism and poor behaviour which can create integrity risks.

Reviews are staff-initiated and target specific workplace issues and concerns on every-day activities of the public service. All reviews addressdifferences in perceptions of fairness or merit and any shortcomings in the original decision. Reviews, when complemented by formal audits and inquiries, can provide insight into ethical behaviour in agencies and the APS.

What is the legislative and policy framework for merit?

What is the legislative and policy framework for merit?

The Public Service Act 1999 provides the legislative framework for merit in the APS. Section 10A—the APS Employment Principles—states:

(1)  The APS is a career-based public service that:
(a)  makes fair employment decisions with a fair system of review; and …
(c)  makes decisions relating to engagement and promotion that are based on merit;

(2) Decisions based on merit.
For the purposes of paragraph (1)(c), a decision relating to engagement or promotion is based on merit if:
(a) all eligible members of the community were given a reasonable opportunity to apply to perform the relevant duties; and
(b) an assessment is made of the relative suitability of the candidates to perform the relevant duties, using a competitive selection process; and
(c) the assessment is based on the relationship between the candidates' work-related qualities and the work-related qualities genuinely required to perform the relevant duties; and
(d) the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the relevant duties; and
(e) the assessment is the primary consideration in making the decision.

What isn’t merit?

Merit is not about:

  • the size or format of reports
  • the number of people on committees
  • the gender of people on committees
  • mandatory referee reports, the status of the referee or the number of reports
  • mandatory interviews or how long they took
  • scores being added up.

These are just some of the myths about merit in APS selection exercises.

What is the merit principle?

The merit principle reinforces quality, open and transparent selection decision-making. It is shorthand for APS recruitment processes where:

  • vacant positions are publicly advertised
  • role-based skills, attributes and requirements are identified
  • role-based assessment criteria are identified and known in advance by candidates
  • decisions are based on relative assessments of candidates against assessment criteria.

A simple approach to check for merit is to seek evidence that suggests:

  • the process is open and people given a reasonable opportunity to apply
  • the recommended candidate is the best person for the role
  • the decision stands up to scrutiny and there are no obvious conflicts of interest or undue influences.

Are there other considerations?

Other considerations include consistency with administrative law principles. Administrative law processes mean decisions are:

  • made without patronage or favouritism
  • involve no unlawful discrimination
  • transparent and documented—applicants are given the opportunity to address any adverse information.

Why is merit important to the APS?

Merit is important in the APS as we must operate without patronage, nepotism or favouritism to sustain public confidence and trust. Our environment expects:

  • apolitical service to the government of the day (APS Values)
  • high ethical standards with low tolerance for fraud and corruption
  • fair and consistent delivery of high quality public services, without discrimination or favouritism
  • open and transparent accountability for expenditure of taxpayer's money
  • regular statements of reasons and explanations for actions and decisions including Senate committees and 24/7 media scrutiny.

The way the APS recruits and promotes people effects our ability to consistently deliver high quality, ethical services.

A former Integrity Commissioner observed 'one of our weakest links is who we bring in and who we reward (promote)'—Phillip Moss, February 2014.

What is the history of merit in the APS?

The following is an extract from 'Merit and its merits: Are we confusing the baby with the bathwater?' Australian Journal of Public Administration, Vol 70, Issue 3, pages 318-326.

The concept of merit adopted in the APS is a direct inheritance from reform movements in 19th century Britain. These reforms had the objective of eliminating nepotism, patronage and enhancing of the efficiency in the British Civil Service.

This was reflected in the Public Service Commissioner's first Annual Report in 1904:

 '…all appointments and promotions shall be based upon a just and equitable system excluding all political or other patronage, throwing all appointments open to rich and poor alike, and establishing merit combined with fitness as the only basis of selection.'

From its beginnings, APS selection was consciously designed for people to compete and be assessed on their ability. Merit, however, was never universally applied in recruitment—for example, there were restrictions on women obtaining ongoing employment, preferential treatment for returned servicemen, age limits on appointments and seniority criteria.

In 1976, the Royal Commission on Australian Government Administration upheld the principle of recruitment by merit. However it was not being consistently applied to women, indigenous people, people with disability, and people from non-English speaking backgrounds.

The 1983 White Paper Reforming the Australian Public Service revised provisions in the 1922 Act and determined merit to be applied by open competition and promotion and on the basis of relative efficiency. It enshrined merit in the legislation.

Since the introduction of the Public Service Act 1902 and its replacement, the Public Service Act 1922 (1922 Act), merit as a principle has been an integral part of the APS.

The 1999 Act simplified the application of merit for staff selection in the modern APS.

How is merit applied in the APS?

The following is based on extracts from 'Merit and its merits: Are we confusing the baby with the bathwater?' Australian Journal of Public Administration, Vol 70, Issue 3, pages 318-326.

In the last few years, observers have commented that merit selection—which is seen as synonymous with an open competitive selection process—is time consuming, resource intensive and not necessarily delivering the right outcome.

These observers have highlighted agency practices which entrench traditions and culture rather than exploring merit-based best practice and new opportunities. Not surprisingly, the default position of some managers is to use known and established processes. These practices continue inefficient and ineffective processes based on outmoded understandings of industrial relations law. This tendency can be exacerbated in agencies where recruitment processes are decentralised and line managers are not aware of best practice or don't consider recruitment as a strategic investment.

Merit as a principle should not be watered down because the processes associated with it have distracted people. It is the process, that is no longer relevant or useful, not the principle.

How can we make merit-based decision-making an investment opportunity?

The following is based on an extract from 'Merit and its merits: Are we confusing the baby with the bathwater?' Australian Journal of Public Administration, Vol 70, Issue 3, pages 318-326. Statistics updated from unpublished APS jobs data.

The focus on reducing red tape must continue. Selection processes can continue to be simplified and, in particular, better planned. Leaders in the APS must insist that staff selection be considered to be an integral and strategic part of a manager or supervisor's job.

Information from APS jobs identifies the average number of days to fill a position (advertisement to notification of the outcome in the Gazette) for all jobs (ongoing and longer term non-ongoing SES and non-SES positions). In 2013–14 the average time to fill was 168 days, last year it was 157 days and to date this year, it is again 157 days. This is the average number of days to complete a selection exercise, not the time for a person to commence in a role.

No other large investment decision—and that is what recruitment is—is treated so lightly and handled at such junior levels without up-to-date support and training. The recruitment of just one junior level officer who remains with the APS is at least a one million dollar investment over a ten year period and should be given the appropriate scrutiny and risk assessment at all levels of an organisation.

Based on this statistics, there is still scope for better project management of recruitment to avoid scenarios where time is not set aside to undertake a selection process or panel members approached until after the application period is closed.

How can we get the merit balance right?

The following is based on extracts from 'Merit and its merits: Are we confusing the baby with the bathwater?' Australian Journal of Public Administration, Vol 70, Issue 3, pages 318-326:

It is important to recognise that merit selection should not be at the cost, by default, of condoning poor decision-making. The APS must work towards simplifying the structure or process of merit while striving towards the ideal of 'absolute' merit.

The problem facing the APS and for that matter, other state and international public services, is finding an acceptable compromise between the two extremes of absolute merit and pragmatic merit—or in other words—a balance between principle and pressures to cut corners to be more responsive. This balance changes over time and reflects prevailing societal views on the value of public service and the role it plays in delivering services and employment.

Agencies need to 'invest' in recruitment, actively project manage it, clearly identify capability requirements and integrate this with workforce plans.

There are many initiatives already available to agencies, including:

  • proactively aligning with workforce plans to address skill, career and succession paths and enhance job design
  • using flexibilities within the current framework and addressing restrictive internal policies
  • training managers on modern selection practices to optimise returns on investment
  • consciously identifying what the job is and what skills and qualities are necessary before beginning recruitment
  • 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 filing evidence (resumes, assessment centre results etc) to support decisions, and reasons for those decisions.

Having open and transparent processes when investing in our people is good decision-making.

What about the subjective element of assessing applicants?

The following is based on extracts from 'Merit and its merits: Are we confusing the baby with the bathwater?' Australian Journal of Public Administration, Vol 70, Issue 3, pages 318-326:

In debating merit, the APS needs to acknowledge that there is a subjective element to assessing applicants. The subjective element has been called 'the personal fit principle' where selection panels looked at how a person would fit within the organisation.

This is not a new perception. In his introduction to a seminar on merit in 1996, the then Public Service Commissioner (Shergold 1996) stated:

 'Too often commitment to merit is seen by selection panels as a clarion call to reproduce their own talents. It is as if merit is to be transmitted by the process of cloning '

However, it is important to acknowledge that in assessing work-related qualities required, agencies can legitimately take into account such considerations as relevant personal qualities (i.e. integrity) and ability to contribute to team performance (i.e. a team player) that are reflected in the selection criteria. It is entirely appropriate, and within the spirit of merit in the APS to determine and select on the basis of what could be called the 'professional' fit as opposed to 'personal' fit.