Classification of duties - Revisiting a classification allocated following a machinery of government change

An employee asked his department to review a decision to allocate him a classification of Executive Level 1 rather than Executive Level 2. The classification decision was made as a result of a 'machinery of government' change which moved the agency for which the employee worked, into an APS department.

As part of the move, some individuals in the employee's cohort were classified at the Executive Level 2 and some at the Executive Level 1. The employee was advised that the classification decision was made on the basis of the 'work value' of the work he was undertaking and not on the basis of performance. The employee was concerned that he was not given sufficient reasons for the decision about his classification.

As the decisions on employee classification were made by the Secretary, the department asked the Merit Protection Commissioner to conduct a primary review. The Merit Protection Commissioner was concerned that the actions for which review was sought may not be reviewable under Schedule 1 of the Public Service Regulations. The decision about which classification should be assigned to an employee on engagement could be considered non-reviewable under Item 7 of Schedule 1 of the Public Service Regulations—action relating to the engagement of an APS employee. The Merit Protection Commissioner also thought there was insufficient information upon which to make a recommendation. The Merit Protection Commissioner did not review the matter and, with the agreement of the department, referred it back to the department for reconsideration.

Decisions about the classification of APS employees are made in accordance with section 24 of the Public Service Act 1999. The department was concerned that it may not have legal authority, without a recommendation from the Merit Protection Commissioner, to change the employee's classification level following reconsideration of their original decision. The Merit Protection Commissioner was of the view that, if the agency decided to change the classification in a way that was beneficial to the employee, it could do so on the basis that the previous decision was incorrect and therefore of no effect. In the Merit Protection Commissioner's opinion, if the department corrected the original classification decision, the correct decision must stand from the date the employee commenced in the role following the machinery of government change.