Requirements for a direct review for non-code of conduct actions
We can only accept non code of conduct matters for direct review in limited circumstances. If your circumstances do not meet the criteria set out in the legislation, we cannot accept an application for direct MPC review. Instead, you will be advised to seek a primary review by your agency.
Regulation 5.24 of the Public Service Regulations and clause 96 of the Parliamentary Determination, allows employees to seek a direct review only when:
(a) the agency or department head was directly involved in the action; or
(b) it is not appropriate, because of the seriousness or sensitivity of the action, for an agency or department head to deal with the application; or
(c) the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.
Here is what we look for when we assess an application for a direct review.
Agency head directly involved in the action
To be directly involved in a decision, there must be evidence the agency head was present in the decision making process - in the sense they controlled, led it or was actively participating in it.
This is often demonstrated by an email or letter from the agency head, or a briefing note which shows the agency head was directly involved in the decision.
If the decision maker is supervised by or has a line of management which is ultimately lead by the agency head, that is not proof the agency head was directly involved in the decision.
Agencies should have a published set of delegations which set out the agency head’s powers and functions under legislation and industrial instruments such as an Enterprise Agreement.
An agency head may delegate their decision making powers to another person in the agency, such as a manager. The fact of a delegated decision is also not sufficient to meet the threshold for the MPC to accept a review.
Seriousness or sensitivity of the action means it is not appropriate for agency head to review
It all depends on the appropriateness or capacity of an agency head to deal with the application, in light of the seriousness or sensitive nature of the action to be reviewed.
Seriousness means the circumstances are an ‘extreme’ example of its kind in the sense that it is so weighty or important that it is appropriate for the MPC to undertake an independent primary review of the decision. It needs to be a matter that will require deep consideration of a critical issue.
An example is a review of a performance assessment decision where the outcome of that decision under the agency’s performance management policy is termination of the review applicant’s employment.
Sensitivity means the decision may be affected by external influences, be highly likely to result in adverse criticism, cause strong reactions or involves highly confidential information.
For example, an employee is not satisfied with the outcome of their complaint about the inappropriate behaviour of a number of key staff of the agency during an overseas delegation which was mentioned in the Canberra Times and involves consideration of information classified as PROTECTED.
Action is claimed to be victimisation or harassment for having made a previous application for review of action
To apply, there must be a reviewable employment-related action that involves an element of victimisation or harassment against the applicant. There must also be evidence that shows this victimisation or harassment took place because the applicant previously made an application for review.
If possible, include details of the previous action that was reviewed, such as dates, who it was made to and any related reference numbers. If the previous review application was made to the MPC please provide our reference number which can be found at the top of any correspondence or in emails sent to you.
It should include evidence of victimisation or harassment that meets the definition of workplace harassment. This means offensive, belittling or threatening behaviour directed at an individual or group of employees.
For example, the employee’s manager declined their application for a flexible working arrangement. The manager told the employee applications for any other workplace entitlements would also be denied because the employee was not a team player as they had sought a primary review of the manager’s decision six months earlier to remove the employee from a project. Such behaviour is unwelcome, unsolicited, usually un-reciprocated and usually, but not always, repeated.
Have a look at our case studies for examples.
Remember that applications which rely on general assertions not supported by facts or circumstances will not be accepted.
If you have any questions, contact us directly.