Information for agencies

Under the Public Sector Management Act 1994 (PSM Act) the Public Sector Commissioner is responsible for establishing the Public Sector Standards in Human Resource Management, and administering and monitoring compliance with the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005.

These instruments form the legislative framework for breach of standards claims.

The standards are based on principles rather than rules. This allows agencies to embed human resource practices that are consistent with the relevant standard and suit their operational requirements.

The regulations allow for:

• people to lodge a claim if they believe a standard has been breached and they have been adversely affected by that breach
• the impartial handling of the claim
• resolution by conciliation where possible and, where resolution does not occur, an independent decision by the Commissioner on whether there has been a breach of a standard
• the Commissioner to recommend, and in some circumstances direct, what remedy, if any, is to be provided when a breach is found.

Employment Standard

The Employment Standard applies when an agency fills a vacancy by recruiting, selecting, appointing, seconding, transferring and temporarily deploying (acting). It covers fixed term, casual and permanent positions. A claim cannot be lodged for all vacancies.

If a person is an unsuccessful applicant they can make a claim in the following circumstances:

• Appointment to fill a vacancy (not from an appointment pool, acting movement or transfer) for a period more than 6 months or if the advertisement for the role indicated there was a possibility of permanency or an extension beyond 6 months
• Appointment to fill a temporary vacancy by way of acting if the vacancy was advertised on the basis that the person appointed could later become a permanent staff member
• Selection to form part of an appointment pool.

A claim cannot be made in the following circumstances:

• A temporary deployment to a specific project in the same employing authority at the same level; employees can use the agency’s internal grievance resolution process for any concerns about this type of matter
• A registered employee (redeployee) referred to a vacancy as the regulations apply, however the Employment Standard applies when a registered employee applies for a vacancy outside the redeployment process.

For notifiable employment decisions under the Employment Standard a minimum of 4 working days is required.

Grievance Resolution Standard

While the standard does not define ‘grievance’ it generally refers to a complaint or concern about a workplace matter, often involving interpersonal conflict, which the employee wants resolved.

An agency policy or procedure cannot override the Grievance Resolution Standard that may apply regardless of how an agency manages a matter.

If an agency undertakes additional processes because of the grievance, these processes are subject to applicable standards (for example, Discipline Standard or Performance Management Standard).

Where an agency has procedures for moving from an informal to a formal grievance process, the decision that ends the formal grievance process is the decision to which the standard applies.

The lodgement period for grievances is 10 working days.

An agency must notify employees at the completion of the grievance process including when it decides to take no action. Those to be notified include the employee who made the grievance and any employee who was the subject of the grievance.

Other standards

While there is no requirement to notify employees about decisions covered by the other standards, it is good practice for agencies to communicate the reasons for a decision to the relevant parties. This may help those affected to understand the process and how the agency made the decision.

Redeployment Standard

Employees who are registered as redeployees under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 cannot lodge claims under the Redeployment Standard. However, employees can lodge claims before they are registered as redeployees or transferred to other positions.

Discipline Standard

Claims cannot be made against the Discipline Standard as other legislation applies.

Agencies must:

• decide if the claimant is eligible to lodge a claim and, if unsure, email the Public Sector Commission for advice
• decide if the claim has been lodged in the required timeframe
• ensure the necessary information has been submitted including the grounds on which it is claimed the standard has been breached, and seek further information from the claimant if required.

There is more information about making a claim.

An agency must make reasonable attempts to resolve the claim by:

• reviewing the process the claim relates to and ensuring it meets the principles of the relevant standard
• explaining to the claimant why and how the decision was made
• proposing action to resolve the claim.

If the claimant is satisfied that the proposed remedy resolves their claim, they can withdraw the claim in writing to the agency or Commissioner. Claims withdrawn within 15 working days after lodgement do not need to be referred to the Commissioner.

If an agency receives the withdrawal after the claim has been referred to the Commission, the agency must notify the Commissioner.

If the Commissioner receives a withdrawal notice from the claimant, the Commissioner advises the agency.

Either of these 3 outcomes conclude the matter.

If the claim is eligible, the appointment or transfer cannot proceed until the claim is finalised.

If a claim concerns an appointment pool, the agency may make the selections but can only appoint someone from the pool if:

• the claim is finalised
• another vacancy is available (if a breach is found resulting in the claimant being reconsidered and found suitable and recommended for appointment, a position needs to be available for them to be appointed too)
• the Commissioner approves a request from the agency.

As the Commissioner can direct that a person is not appointed, agencies should consult the Commission before selecting from the appointment pool.

If the agency is seeking to proceed with an appointment or transfer, a written submission must be made to the Commissioner that sets out the reasons why the proposed appointment or transfer should be approved. Approval is at the Commissioner’s discretion.

For other standards, the agency can choose to proceed with the relevant actions despite the lodgement of a claim.

If the agency cannot resolve the claim within 15 working days after lodgement, it must forward it to the Commission.

The agency should provide the Commission with:

• its written notice to the claimant informing them of their right to make a claim
• the claim and any documentation provided by the claimant
• the date the claim was lodged
• contact details of the claimant and the staff member nominated to represent the agency for the claim
• an outline of the agency’s view of the claim and the attempts made to resolve it  including the remedy proposed to resolve the claim
• any information the agency considers relevant to the claim including a copy of the full selection report
• relevant selection panel contact details
• contact details of the agency’s chief human resource officer
• contact details of all people involved in the claim.

Agencies can use a form when forwarding a claim to the Commission.

Once the claim is forwarded to the Commission, the agency must notify the claimant in writing.

The Commission assesses the claim to ensure it has the power to deal with it and that the decision is covered by one of the standards. The claim does not progress if it is not within the Commissioner’s powers.

The Commissioner can also stop dealing with a claim if:

• they believe it is vexatious, frivolous or lacking substance, or does not warrant further action
• they believe the claimant is not participating (the Commissioner must give the claimant notice of their intention to stop dealing with the claim and they then have 5 days to respond)
• it is solely about the competitive merit of the claimant
• the subject matter of the claim is being dealt, or has already been, dealt with adequately by the Commission or another entity.

The Commissioner informs the claimant and agency in writing of the decision and the reasons for that decisions.

If the claimant and agency agree to take part in conciliation, a Commission staff member coordinates this process.

Where either party does not wish to participate in conciliation, or conciliation is not possible, the Commission staff member reviews the claim.

What must an agency do to prepare for conciliation?

An agency must:

• nominate a representative who:
  • has the authority to make decisions during the conciliation process about how the claim may be resolved
  • understands and can talk about the claim and, where possible, genuinely considers options for agreement
• ensure its representative has all the relevant documents and information about the claim
• identify and allocate any supports its representative may need to fully participate in the conciliation process.

Read more information on the conciliation process.

If agreement is not achieved through conciliation, the matter proceeds to review by the Commission.

What can an agency do to prepare for a review?

An agency should ensure its representative and other employees:

• are aware the claim has been referred to the Commission
• respond to requests for information
• are available to discuss the claim with the Commission staff member
• have relevant documents available during any discussion or interview.

Read more information on the review process.

After completing the review the Commissioner writes to the agency’s principal officer and the claimant to inform them of their decision and any remedy.

How must an agency respond to the Commissioner’s recommendation or direction?

The agency must provide written notice to the Commissioner within 10 working days advising of its intention to:

• give the recommended remedy to the claimant
• give the claimant another remedy including what that remedy is and the reasons for giving it
• not give any remedy and the reasons why.

The Commissioner may direct the agency to provide the claimant with a remedy if it does not follow a recommendation in the specified period, or if the agency proposes or gives a remedy that the Commissioner does not consider appropriate.

Read more information on the decision and remedy process.

What are an agency’s reporting requirements?

Agencies must maintain appropriate records of claims lodged. This includes claims that are subsequently withdrawn within 15 working days after lodgement and not forwarded to the Commission.

These records inform the agency’s annual reporting requirements to the Commission.
 

Agencies must take reasonable steps to ensure employees are aware of the 6 standards and regulations.

Examples of how this can be achieved include providing information:

• on the agency’s intranet including a link to WA.gov.au
• in agency inductions
• in training
• in internal policies and procedures.

Job advertisements should include a link to WA.gov.au so information on breach claims is available to all applicants. Agencies should consider reasonable postal delivery times when setting the lodgement date for all breach claims.

Agencies can:

• provide information about policies and practices to employees and job applicants
• keep all parties informed at key stages of a process even if the decision is to take no action
• inform relevant parties if there are unavoidable delays or changes to a process
• provide sufficient, objective and constructive feedback on their human resources processes and reasons for decisions
• provide contact details of a person who is available during the specified breach period to explain the process and decision
• keep clear and concise records about a process and reasons for decisions to allow an independent person to understand:
  • how and why a decision was made
  • the nature of any conflicts of interest (perceived, potential or actual) and what strategies were taken to manage them
  • if the requirements of the relevant standard have been met
  • the reason for any delays or deviation from usual practices.
• ensure that selection panel members understand their roles and responsibilities including the importance of keeping clear and concise records about a process, particularly in relation to identifying, assessing, managing and documenting all conflicts of interest
• ensure that when a claim is lodged, they carefully review the process and, if flaws are identified, address them.