Parliamentary Service Merit Protection Commissioner’s (PRC Procedures) Instructions 2021

Background to Instructions

1. Under clause 87, the Merit Protection Commissioner must issue Instructions about the procedures to be followed by a Promotion Review Committee (PRC) in performing its functions under Part 9 Division 2 of the Determination. The Instructions must not be inconsistent with the Parliamentary Service Act 1999 (the Act), or the Parliamentary Service Determination 2013.
2. Under clause 87(3), a PRC must comply with these Instructions.
3. Under clause 86, the procedures used by a PRC in conducting a review under Part 9 Division 2 of the Determination must meet the following minimum requirements:

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

Definitions

In these Instructions:

Act means the Parliamentary Service Act 1999

Applicant means an applicant for review of a promotion or engagement decision under Part 9 Division 2 of the Determination

Application means an application for review of a promotion or engagement decision under Part 9 Division 2 of the Determination

APS means the Australian Public Service

Convenor means the person nominated by the Merit Protection Commissioner under clause 83(1)(a).

Department means a Department of the Parliament that is established under the Act

Engagement decision means a decision made by a Secretary to engage an Ongoing APS Employee.

Merit Protection Commissioner means the Parliamentary Service Merit Protection Commissioner appointed under section 50 of the Act and includes any person acting under a relevant delegation by the Merit Protection Commissioner

Ongoing APS Employee means a person engaged as an ongoing APS employee, as mentioned in paragraph 22(2)(a) of the Act.

Ongoing Parliamentary Service Employee means a person engaged as an ongoing Parliamentary Service employee, as mentioned in subsection 22(2)(a) of the Parliamentary Service Act 1999.

Parliamentary Service means the Australian Parliamentary Service established by subsection 9(1) of the Act.

Parliamentary Service Employee means a person engaged as an employee under section 22 of the Act or a person determined under paragraph 72(1)(b) of the Public Service Act 1999 to have become engaged as a Parliamentary Service Employee in a Department.

Parliamentary Service Code of Conduct  means the rules in section 13 of the Act and any rules and orders made by the Senate or the House of Representatives under section 50 of the Constitution that apply to Parliamentary Service Employees.

Parliamentary Service Employment Principles means the principles in section 10A of the Act.

Parliamentary Service Values means the values in section 10 of the Act.

Parties to the review means persons who have submitted an application for review of a promotion or engagement decision and persons whose promotions or engagements have received an application for review

PRC means a Promotion Review Committee appointed under Part 2 Division 2 of the Determination. In these Instructions there are individual obligations on the members of the PRC and on the PRC acting collectively.

Privacy Act means the Privacy Act 1988

Promotion means the ongoing assignment of duties to an Ongoing Parliamentary Service Employee at a higher classification than the employee’s current classification as defined in Schedule 2 to the Determination

Secretary means the Secretary of a Department and includes the Clerk of the Senate, the Clerk of the House of Representatives and the Parliamentary Budget Officer.

Secretary’s Nominee means the Parliamentary Service Employee nominated by the relevant Secretary under clause 83(1)(b).

Note 1: In these Instructions, a reference to a promotion decision is also a reference to an engagement decision with respect to Ongoing APS Employees as described in clause 77.

Note 2: Clause references in these Instructions are references to clauses of the Determination

Instructions

1. Obligations on PRC members

Each person nominated to be a member of a PRC must inform himself or herself about the legislation, principles and guidelines relevant to employment decision-making in the APS including:

1. the Parliamentary Service Act 1999;
2. the Determination
3. the Australian Public Service Commissioner’s Directions;
4. these Merit Protection Commissioner’s Instructions on procedures to be followed by PRCs;
5. the principles of lawful administrative decision making, including procedural fairness;
6. the Privacy Act 1988;
7. Commonwealth anti-discrimination legislation.

Note: See, for example, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992.

2. Responsibilities of PRC members

A member of a PRC must:

1. make all PRC-related decisions in accordance with the principles of lawful administrative decision-making;
2. behave in a way which upholds the Parliamentary Service Values and the Parliamentary Service Employment Principles and which is consistent with the Parliamentary Service Code of Conduct in undertaking their duties as a PRC member;
3. behave with impartiality and without unlawful discrimination towards the parties to the review;
4. maintain the confidentiality of personal information consistent with the Privacy Act and not disclose information about the parties to the review except as necessary for the purposes of undertaking the functions of the review.

3. Obligations with respect to impartiality

1. Before a PRC begins to deal with an application for review of a promotion decision each member of the PRC must sign a declaration of impartiality.
2. Where a PRC member forms a belief that he or she would not be able to undertake his or her duties impartially, or refuses to sign a declaration of impartiality, he or she must decline to continue as a member of the PRC.
3. Where a PRC member declines to continue as a member of a PRC, he or she must advise the Merit Protection Commissioner or delegate in writing of the declination and the reasons for his or her withdrawal.
4. Where the Convenor forms a belief that a member of the PRC would not be able to undertake his or her duties impartially, the Convenor must consult with the Merit Protection Commissioner or delegate. If the Merit Protection Commissioner or delegate is not satisfied that the PRC member would be able to undertake his or her duties impartially, then either

• the relevant Secretary must be consulted and asked to nominate a new Parliamentary Service employee in accordance with paragraph 83(1)(b) Of the Determination; or
• a new Parliamentary Service employee must be nominated in accordance with paragraph 83(1)(c) of the Determination.

4. PRC member as a referee

      1. A PRC member must not provide a reference for any party to the review.

      2. A PRC member must declare to the PRC if he or she has been:

• a referee for a party to the review, in support of their original application for the promotion; and/or asked to be a referee for the purposes of the promotion review.
• In the circumstances described in subparagraph 4(b), the PRC must decide whether the member should continue his or her membership of the PRC and must consult with the Merit Protection Commissioner or delegate.

      5. Obligations with respect to use and non-disclosure

Prior to considering information submitted by the parties to the review, each member of the PRC must acknowledge in writing the obligation not to, directly or indirectly, make a record of, disclose or otherwise use any information that was acquired while he or she was performing the duties as a PRC member, except for the purposes of completing the review or as otherwise authorised by law.

      Note: This obligation is contained in section 65AB of the Act and applies during the life of the PRC and after the member ceases to perform his or her duties as a PRC member.

6. Objections to PRC composition

1. A PRC must make a written record of the receipt of any objection to the composition of the Committee.
2. The written record must specify:
   • the date when the objection was made;
   • the name of the person who made the objection; and
   • the reasons for the objection.
3. The PRC must consult with the Merit Protection Commissioner or delegate before the PRC decides on action to resolve the objection.

7. Selection documentation

1. A PRC must satisfy itself that the work-related qualities identified by the agency head as part of the original promotion decision are genuinely required to perform the duties of the relevant employment.
2. If a PRC considers that the work-related qualities genuinely required to perform the duties are different from those used by the agency head in arriving at the promotion decision the PRC must consult with the maker of the promotion decision.
3. Where a PRC considers that the work-related qualities genuinely required to perform the duties are different from those identified in the promotion decision under review the PRC must advise the parties to the review of the nature of the differences and give them a reasonable opportunity to:
   • comment; and
   • submit additional information on their claims to promotion.

8. Representation before PRC

1. Where a person appearing before a PRC seeks to have representation, the PRC must refer the request to the Merit Protection Commissioner or delegate.
2. The PRC must advise the affected employee of the decision in relation to their application for representation.

Note: Under clause 86(2) a person appearing before a PRC must do so without representation unless the Merit Protection Commissioner or delegate decides that, in all the circumstances, it would be reasonable to allow the person to be represented.

9. Handling adverse information

1. Where, in its deliberations, the PRC proposes to take into account in deliberations any adverse information of which a party to the review is, or is likely to be, unaware, the substance of that information must be conveyed to the relevant party. The information may be conveyed in writing or orally.
2. The PRC must give the relevant party a reasonable opportunity to provide comment on the information, orally or in writing, to the PRC. Both the opportunity to provide comment and any response must be documented.
3. Where the PRC:
   • receives information in relation to a party to the review which it is reasonable to expect would be highly prejudicial to the interests of the person concerned; and
   • proposes not to take that information into account in its deliberations concerning the application for review of the promotion decision; then

      the PRC must document the information and:

• advise the party of the nature of the information it has received; and
• provide the party with an assurance, orally or in writing, that the information will not be taken into account in its decision; and
• provide an opportunity for the party to comment on the information.

     Note: For the purposes of this Instruction the relevant party is the person about whom the information has been supplied.

10.  Unavailability of PRC member

1. If a member of the PRC becomes unavailable, the PRC must advise the Merit Protection Commissioner or delegate and the PRC is to be reconstituted following a nomination of a new member in accordance with clause 83 of the Determination.
2. The PRC must inform the Merit Protection Commissioner or delegate if the unavailability is likely to cause significant delay in finalising the review of the promotion decision.

11. Unavailability of party to the review

1. Where an application for review is received, and a party to the review is unavailable to participate in the review, for example to attend an interview, the PRC must consider whether reasonable arrangements can be made for the party to participate in the review.
2. The PRC may proceed to finalise its deliberations on the evidence to hand if the needs of the party in question cannot be accommodated within a reasonable timeframe.

      Note: Reasonable arrangements are arrangements that are cost effective and allow the review to be finished as quickly and with as little formality as proper consideration of the matter allows.

12. Considerations other than relative merit

1. Prior to commencing its assessment, the PRC must seek written advice from the maker of the promotion decision of any factors other than the assessment of the relative merits that were taken into account in making the promotion decision.
2. Where:
   • the PRC is advised that a consideration other than relative merit was taken into account in making the promotion decision; and
   • the PRC decides to take that consideration into account in making its decision; and
   • the information is adverse to the interests of a party to the review;

      the PRC must advise the relevant party to the review and give him or her an opportunity to comment on the relevance and substance of the information before making its decision.

      Note: For the purposes of this Instruction the relevant party is the person whose interests are adversely affected.

13.  Promotion review committee outcome notice

1. A PRC is not required by the Act or Determination to provide reasons for its decision.
2. However at the completion of its deliberations the PRC must complete the Promotion Review Committee Outcome Notice.
3. The Promotion Review Committee Outcome Notice records the PRC’s reasons for its decision for the purposes of the Convenor and the Secretary’s Nominee to provide feedback to the unsuccessful party/ies to the review and to understand the PRC’s decision.
4. All members of the PRC must sign the Promotion Review Committee Outcome Notice declaring:
   • Unanimous compliance with the Part A checklist and have answered the questions accordingly in relation to this review matter
   • Confirm the PRC’s decision as recorded in Part B.
5. The Convenor and the Secretary’s Nominee must provide feedback to the unsuccessful party/ies to the review on the date of the decision of the PRC or where not practicable to do so on another day.
6. The Convenor and the Secretary’s must record the feedback provided in and sign Part C of the Promotion Review Committee Outcome Notice confirming that feedback to the unsuccessful party/ies to the review has been provided.
7. Where an unsuccessful party to the review declines the offer of feedback this must be confirmed in and by the Convenor and Secretary’s Nominee signing Part C of the Promotion Review Committee Outcome Notice.