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The Australian Government Department of Defence
Defending Australia and its National Interests

Complaint Resolution

Complaints by APS Employees

Introduction

The Review of Actions (ROA) process enables all Australian Public Service (APS) employees who are not members of the Senior Executive Service (SES) to seek redress when they believe that an action taken in relation to their employment by the Agency Head of an APS Agency, or another APS employee, was unfair or unreasonable.

Review processes for the APS give effect to the policy of the Australian Government that APS agencies should achieve and maintain workplaces that encourage productive and harmonious working relationships - employees' concerns are intended to be dealt with quickly, impartially and fairly. An application for review may be resolved by conciliation or mediation at any time before the review process is complete.

Who may lodge an application for Review?

The APS Values in the Public Service Act 1999 (the Act) says that the APS is to provide a fair system of review of decisions for APS employees. Under the Act employees are entitled to seek a review, in accordance with the regulations, of any action affecting their employment. ‘Action’ means action by a person in the capacity of an Agency Head or an employee. This entitlement also covers a refusal or failure to act.

The procedures for ROA apply to all non-SES APS employees, whether they are engaged as an ongoing employee, for a specified term or for the duration of a specified task or for duties that are irregular or intermittent.

The procedures for review of actions do not apply to:

  1. SES employees;
  2. Locally engaged employees (formerly locally engaged staff) overseas;
  3. Action that consists of the termination of an APS employee’s employment (these are a matter for the AIRC under the Workplace Relations Act 1996); or
  4. Former employees who have separated from the APS. (Applications from ex-employees may be dealt with by CR on a case-by-case basis in a manner appropriate to the circumstances.)

Under the Public Service Regulations there are two types of ROA:

  1. Applications for review of certain promotion decisions to be made to the Merit Protection Commissioner (MPC) for review by a Promotion Review Committee. (The roles and functions of the MPC are outlined in annex A to the Workplace Relations Manual DRB 19 Chapter 15 Part 4 Section 4);[refer to Further Appeal] and
  2. Review of other ‘APS actions’. This includes any action, or refusal or failure to act, which affect employees in the performance of their duties. This review of action replaces grievances and all matters formerly dealt with by way of appeal, including disciplinary, temporary performance, and redeployment and retirement appeals and reviews of non-appealable promotions.

What can't you complain about?

Public Service Regulation 5.23(2) specifically exempts the following actions from review:

a. General:

  1. Action about policy, strategy, nature, scope, resources or direction of the APS or an Agency;
  2. Action taken, or not taken, in accordance with a direction or reference given by a Minister under the Act or any other Act;
  3. The giving of a direction by the Public Service Commissioner (PSC) under s 11, 15, or 36 of the Act;
  4. Action taken, or not taken, for a special inquiry (by the PSC) under section 43 or an inquiry (by the MPC) under section 50 of the Act;
  5. Action taken, or not taken, under section 72 of the Act (machinery of Government changes);
  6. Action arising under any of the following Acts:
  • Australian Security Intelligence Organization Act 1979
  • Safety, Rehabilitation and Compensation Act 1988
  • Superannuation Act 1976
  • Superannuation Act 1990.

b. Employment and Conditions:

  1. Action relating to the engagement of an APS employee;
  2. Action of a Promotion Review Committee;
  3. Action relating to the promotion of an ongoing employee as an SES employee (whether or not the employee is already an SES employee); or
  4. Action that determines, under section 25 of the Act, duties of an APS employee, or the place or places where they are to be performed, unless the action involves:
    1. a reduction in classification; or
    2. a relocation to another place; or
    3. a promotion that meets the following criteria:
      1. the affected employee was an applicant for the promotion;
      2. the promotion was to employment at a classification mentioned in Group 7 or 8 in Schedule 1 to the Classification Rules;
      3. there were serious defects in the selection process; or
    4. the assignment to an employee of duties that the employee could not reasonably be expected to perform; or
    5. action that the affected person has applied to have reviewed by a Court or Tribunal where the action may be reviewed by that Court or Tribunal.

Actions That Need Not Be Reviewed

Regulation 5.23(3) gives the Secretary (or delegate) the discretion to decide that certain actions should not be reviewed for any of the following reasons:

  1. The application for review of the action is made more than one year after the action happened, or did not happen, and there are no exceptional circumstances explaining why the application was not made within the year;
  2. The application by the affected employee for review of action is frivolous or vexatious;
  3. The affected employee has previously applied for review of the action under the ROA provisions;
  4. The affected employee has applied to have the action reviewed by a Promotion Review Committee;
  5. The affected employee has applied, or could apply, to have the action reviewed by an external review body and review by that body would be more appropriate than review under the ROA provisions;
  6. The affected employee does not have sufficient direct interest in review of the action; or
  7. Review, or further review, of the action is not otherwise justified in all the circumstances.

The Merit Protection Commissioner (MPC) may also decline to review a matter on the above grounds.

Before Lodging an Application

Before lodging an application, think about the outcome you want to achieve. You should consider what evidence exists to support your claims, particularly if you are about to make allegations against another person. You should also consider the implications your allegations may have for that person. While it is important that unfair or improper actions do not go undetected or unchallenged, the reputation of another person should not be put in jeopardy lightly or without any real evidence.

It is also important to remember that an application for ROA may not necessarily result in a change to, or reversal of, a decision or action. Sometimes the only achievable outcome is, for example, an apology or an undertaking that a similar matter would be handled differently in the future.

Initially, you should consider raising your concerns informally with your supervisor or manager. These people may be able to help you resolve the matter quickly without your having to make a formal application for review. Informal resolution of your problem will be more likely if you are clear and positive about what you want to change, and focus on the problem rather than on personalities.

While it is difficult to generalise, in most situations you should lodge a formal application for review only if you have been unsuccessful in attempting to resolve your dissatisfaction through informal means.

Lodging an Application

Applications for ROA must be in writing and must explain what  is causing you concern and why. If a particular outcome is sought, you should clearly state the outcome sought. To assist you in completing your application for review, you may wish to utilise the complaint form. 

The lodgement of an application for review will not necessarily cease (or suspend) the action complained about, while the review is being progressed. In other words, if your application relates to a direction from your supervisor or manager, you must still carry out that direction while your application is being considered, unless directed otherwise.

If your application for review relates to a finding that you have breached the APS Code of Conduct or a sanction imposed for breaching the Code of Conduct, you must lodge your application directly with the MPC. (If, however, your complaint is about the manner in which the Code of Conduct process was handled, you may submit your complaint to CR or appropriate ROA delegate for your region.) Also, you may lodge your application directly with the MPC in the following circumstances:

If you have a dispute pertaining to the Performance Feedback Assessment and Development Scheme (for example, over the outcome of a Performance Exchange or the content of a Performance Agreement) under the current DeCA, you should raise the matter with your first and second-level supervisors in the first instance. If you remain dissatisfied with the outcome, you should then lodge your application with the appropriate ROA contact officer. These contact officers will arrange for your application to be decided by a person to whom the Secretary has delegated his powers relating to ROA. These delegates are listed in the Department of Defence Schedule of Public Service Framework Delegations (DEFWEB only) .

For further advice regarding the lodgement of your application, including the contact details of your regional contact officer, please contact Complaint Resolution (CR) on:

(02) 6127 2971; or (02) 6127 2994

 

Action on receipt of a request for review

ROA must have due regard to procedural fairness, be conducted in private and be finished as quickly, and with as little formality, as a proper consideration of the matter allows.

When the delegate receives an application for review of an action, they may either form a view that the action is not reviewable, or should not be reviewed, having regard to the criteria specified in the legislation; refer the application to the MPC for review (in special circumstances); or conduct a review.

If the application does concern a reviewable action, then the delegate must review the action and make a determination. The delegate may conduct the review in any manner the delegate thinks fit. Where appropriate, the delegate may first suggest resolving your concerns through mediation or conciliation. If the matter cannot be resolved in this way, the delegate may arrange for the matter to be formally reviewed on the basis of your application alone or, if more information is required, for further enquiries to be made. The manner in which reviews are conducted may vary from case to case and, depending on the circumstances, may involve the appointment of someone to conduct interviews and take statements on behalf of the delegate. CR uses a panel of independent consultant investigators for this purpose.

Having conducted the review, the delegate may confirm the action; vary the action; set the action aside and substitute a new action; or take some other appropriate action.  The result of the delegate’s consideration will be sent to you in writing, telling you of any action to be taken as a result of the review, any decision made on your application and the reasons for that decision. You will also be advised of your right to apply to the MPC for secondary review of the action.

Former employees have a limited right to review of certain actions (relating to entitlements on separation) directly by the MPC. However, other applications from ex-employees may be dealt with by CR on a case-by-case basis in a manner appropriate to the circumstances.

Further Review

You may apply to the MPC for a further review of the matter if you have been advised that the action concerned is not reviewebale under the ROA provisions, or should not be reviewed for one of the reasons discussed above, or if you are dissatisfied with the outcome of the delegate’s review of the action. Before applying you should give careful consideration to why you are not satisfied with the delegate’s response to your application. Your application for a further review must be in writing and state briefly why the review is sought. It must be made through the delegate who decided your original application and be addressed to the MPC. Within 14 days of receiving your application for further review, the delegate must forward your application to the Australian Public Service Commission (APSC) together with any relevant documents and give you a copy of any documents given to the MPC.

Further information on the role and responsibilities of the MPC is available from the APSC web site.

Respondents

If you have been named as a respondent in an APS ROA, you are entitled to view, or be informed about, the allegations against you.  Should you feel that you require legal assistance and wish to apply to receive this at Commonwealth expense, you will need to complete form AD268 Application for Indemnity and Legal Assistance at Commonweatlh Expense and submit it to Director of Litigation, The Defence Legal Service, RGC-3-138, Barton ACT 2600.

Further Information

Further details on the legislation can be obtained from the Public Service Act 1999 Section 33, or the Defence Workplace Relations Manual, Chapter 15, Part 4. Alternatively, contact the Directorate of Complaint Resolution or email CR. (It should be noted that privacy cannot be guaranteed when using the email service.)

 

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