Review of actions
Merit Protection Commissioner
The Merit Protection Commissioner is an independent
statutory office holder1 whose functions include
conducting reviews of employment decisions and other
actions affecting individual Australian Public Service
(APS) employees.
The Merit Protection Commissioner is assisted by staff of
the Australian Public Service Commission (the
Commission).
Independent review by the Merit Protection Commissioner
is a cost-effective way of resolving employment disputes
and reduces the risk, and costs, of legal challenge. It also
assists agencies by encouraging accountability and
promoting better employment decision-making across the
APS in the context of a devolved and principles-based
employment framework.
The types of employment matters that are reviewable are
not significantly limited by legislation. 3 A decision to
terminate APS employment is reviewable by the Fair Work
Commission not the Merit Protection Commissioner.
Making an application for review does not prevent an
agency from proceeding with the action, or implementing a
decision.
Two tiers of review
The legislation requires that an APS employee applies to
his or her agency head for review in the first instance for
the majority of employment-related decisions and actions.
This first tier of review is called the primary review.
When an agency receives a valid review application it is
required to:
The reasons the Merit Protection Commissioner provides
for review decisions provide an independent and
authoritative view of a workplace situation, assist
employees to understand and accept outcomes and
encourage the restoration of productive workplaces.

review the action and attempt to resolve the
employee’s concern

advise the employee in writing of the outcome; the
reason for the decision; and any action the agency
intends to take
What actions or decisions are
reviewable?

advise the employee of their right of review by the
Merit Protection Commissioner.
APS employees are entitled to apply for review of actions
or decisions that relate to their APS employment.2 These
review rights are available to all APS employees with the
exception of the Senior Executive Service.
If an employee is not satisfied with the outcome of the
agency’s review, or the agency has advised that the matter
is not reviewable, the employee may apply to the Merit
Protection Commissioner for secondary review.
For information on reviews of Code of Conduct decisions
see the brochure Review of Breaches of the APS Code of
Conduct.
Applications for primary review can be made directly to
the Merit Protection Commissioner in the following
circumstances:

1
The office of the Merit Protection Commissioner is established under
section 49 of the Public Service Act 1999 (the Act).
2
Under section 33 of the Act and Part 5, Division 5.3, of the Public
Service Regulations (the Regulations).
3
for review of a decision that an employee has breached
the APS Code of Conduct and/or of the resulting
sanction (see the brochure Review of Breaches of the
APS Code of Conduct)
For further information on the limits on review see
section 33(1) of the Act and Regulation 5.23 and
Schedule 1 to the Regulations.
Review of actions
Merit Protection Commissioner

where it is not appropriate, because of the seriousness
or sensitivity of the action, for the agency head to deal
with the review application
the employee wants the matter reviewed by the Merit
Protection Commissioner. The agency will forward the
application and relevant papers to the Review Team.

if the agency head was directly involved in the
relevant action or decision
All review applications must:

be made in writing
where the employee claims that the relevant action or
decision is victimisation or harassment because of
having made a previous application for review. Time
limits for review applications4

state why the review is sought

Applications for primary review by the agency must be
made within 120 days of the date of the action the
employee is concerned about.
Applications for primary review by the Merit Protection
Commissioner must be made within 60 days of the agency
decision or action that the employee wishes to have
reviewed. Applications for secondary review by the Merit
Protection Commissioner must be made within 60 days of
the employee being advised of the agency’s primary
review decision or advice that the matter is not reviewable.
An application received outside the legislative timeframe
will only be reviewed if the relevant decision-maker
considers there are exceptional circumstances to explain
why the employee failed to make the application for
review within time.
How to make an application?
An employee should contact their agency’s human
resources area, or check their intranet, for advice on how to
make a review application to their agency head.
Applications made directly to the Merit Protection
Commissioner should be addressed to the Review Team
(see Further information).
An application for secondary review by the Merit
Protection Commissioner must be made through the
relevant agency head. The application should indicate that
4
Regulation 5.23(4)
If a particular outcome is sought, state the outcome sought.
How will an application for review be
handled?
Reviews conducted by the Merit Protection Commissioner
are required to 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. The Merit Protection Commissioner’s Privacy
Policy is available at <www.apsc.gov.au/privacy>.
Staff assisting the Merit Protection Commissioner will
acknowledge an application and advise the employee
whether it has been accepted. Then, if all the papers have
not already been received from the agency, the reviewer
will ask for copies of all relevant papers. A review may be
conducted solely by an examination of the papers. Where
necessary, the reviewer may make further enquiries by
seeking additional information from the agency and by
interviewing the employee and/or other persons. Interviews
with a reviewer are conducted over the telephone.
While an employee is welcome to have a person
supporting them throughout the review, they are not able to
be represented by another person. If an employee wishes to
have a representative, they must make a formal request to
the Merit Protection Commissioner stating the reasons.
In most cases, a review by the Merit Protection
Commissioner will consider whether, having regard to the
relevant procedures or policies, the action or decision
under review was appropriate, fair and reasonable in the
circumstances of the case.
Review of actions
Merit Protection Commissioner
Where appropriate, and with employee’s agreement, the
reviewer may suggest alternative dispute resolution as a
means of resolving concerns.
If the Merit Protection Commissioner is not satisfied with
the response to one of the recommendations, the
Commissioner may report the matter to the relevant
Minister, the Prime Minister or the Parliament.
Outcome of the review
The Merit Protection Commissioner can make
recommendations to the agency head about the matters
under review. The Merit Protection Commissioner cannot
impose an outcome or decision on the agency.
When the review is finished the employee will be advised
of the conclusions drawn and the recommendation the
Merit Protection Commissioner has made to the agency.
The Merit Protection Commissioner provides reasons in
writing for review conclusions and recommendations.
These conclusions and recommendations are made as a
result of a balanced and fair consideration of the evidence
provided to the Merit Protection Commissioner by both the
agency and the employee.
If the Merit Protection Commissioner is satisfied that the
decision under review was in some way unreasonable, the
recommendation to the agency may be to:

set aside the decision and consider whether the
relevant process should be re-done with a different
decision-maker

vary the decision

take some other appropriate action.
The Merit Protection Commissioner expects agencies to
accept the recommendation. Recommendations to vary or
set aside an agency decision are not made lightly. Such
recommendations usually reflect either substantial
procedural flaws, which means the outcome was likely to
have been unfair to the employee, or a fuller consideration
of the evidence and the employee’s concerns, informed by
an understanding of the APS employment framework and
good people management practice.
What if the employee is still not
satisfied?
An employee has no further right of administrative review
under the Act or the Regulations. To take the matter
further, they would need to apply to a court for judicial
review, under the general law or the Administrative
Decisions (Judicial Review) Act 1977. In such cases, it
would be prudent to seek independent legal advice.
Further information
Further information is available from the Commission’s
website at <www.apsc.gov.au>.
The email address for the review team is
review@apsc.gov.au. Contact details for the review team
can be found at <www.apsc.gov.au/contact/>.