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. The Commissioner has jurisdiction over claims alleging breaches of the Employment Standard excluding claims about transfer.

The Industrial Relations Act 1979 provides the Western Australian Industrial Relations Commission (WAIRC) jurisdiction over claims alleging breaches of public sector standards relating to transfer, performance management, grievance resolution, redeployment and termination of employment. 

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 legislation and 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 WAIRC or Public Sector Commissioner on whether there has been a breach of a standard
• the WAIRC to make orders quashing an agency action, ordering an action be recommended from the beginning or from a specific stage, directing the agency to take specific steps or actions
• the Public Sector 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.
• Unsuccessfully applied for transfer in response to a process for transfer.

A person being transferred can make a claim. 

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 Public Sector Management (Redeployment and Redundancy) Regulations 2014 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 agencies must notify a person they can make a claim within a minimum of 4 working days.

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.

When making a decision on a grievance, including deciding to take no action, agencies must notify employees that they have 10 working days to make a claim. 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 can make a claim relating to the Redeployment Standard if they are being redeployed with their position.

Employees who are registered as redeployees under the Public Sector Management (Redeployment and Redundancy) Regulations 2014 cannot lodge claims under the Redeployment Standard because they are not being redeployed with their position. 

Employees being transferred to other positions at their substantive classification level can make a claim relating to the Employment Standard. 

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.

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 for a claim not referred to the Western Australian Industrial Relations Commission, 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.

If a claim relating to transfer has been referred to the WAIRC and the agency is seeking to proceed with the transfer, a written application must be made to the WAIRC seeking an interim order allowing the transfer to be given effect. The WAIRC has discretion to make the interim order. 

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

Under the regulations agencies must make all reasonable efforts to:

• allocate a person (agency employee, employee of another agency or contractor) to deal with the claim who was not involved in the original process that led to the claim
• discuss the claim with the claimant and provide information to support them to understand how the agency will try and resolve their claim including options for resolution
• assess the claim
• discuss the assessment with the claimant as soon as practicable after completing the assessment.

Appoint a person to deal with the claim

In finding someone not involved in the original process or decision to assess and resolve the claim agencies should consider:

• allocating responsibility to a designated team
• setting up a panel of staff who can be drawn from
• establishing arrangements with other agencies to share staff to deal with claims
  using external expertise. 

There may be circumstances, such as to ensure timeliness and availability of expertise, where claim resolution is allocated to someone who was involved in the original process in an administrative capacity. 

Any decision to do so should be documented with conflicts of interest identified and managed. 

Agencies should avoid allocating responsibility for claim resolution to someone who was directly involved in the decision.

Discuss the claim with the claimant

This involves agencies contacting the claimant as soon as possible to:

• provide information on the resolution procedure and options
• ensure the agency fully understands the matters raised, any matters relevant to the claim that were not mentioned in the written claim, and the claimant’s preferred resolution
• request further information (if required to clarify the claim)
• provide an opportunity for the claimant to ask questions about the claim process. 

Discussions about the claim can happen at any stage during the resolution procedure.

Assess the claim

In assessing whether the processes and decisions the claim relates to may breach the relevant standard, the person dealing with the claim:

• gathers and considers relevant records*
• reviews relevant policies and procedures
• requests further information from people involved
• considers any further relevant information provided by the claimant.

* For example, where a claim alleges a breach of the Employment Standard relating to recruitment, records may include the position description, job advertisement, selection report, meeting notes, records of shortlisting and final decisions, emails between panel members and other employees, and approvals.

Discuss the assessment with the claimant

Agencies may discuss their assessment with claimants in writing and/or verbally. If this occurs verbally, written records of conversations should be kept.

Communication should include a summary of what was considered during the assessment.

Agencies may propose actions to resolve claims whether or not they have assessed the standard was met. 

Agencies decide what proposed action, if any, is appropriate based on their assessment.

Examples include:

• recommencing the process (in whole or part) and ensuring alignment with the requirements of the standard and agency policies and procedures
• agreeing to review relevant policies, procedures or practices if any systemic issues were identified including educating employees on applying the standard/s
• issuing an apology to the claimant
• providing the claimant with more information than was originally provided that addresses the concerns raised.

Any proposed actions should be provided to the claimant and their response considered.  

Claims are considered resolved where claimants are satisfied with agency assessments and proposed actions. 

Agencies should seek to confirm with the claimant that their claim has been resolved and keep a record of this. 

A claimant may withdraw their claim at any time during the resolution procedure (even if their claim is not resolved by agreement) by giving written notice to the agency.

If the claim alleges a breach of the Employment Standard (except transfer) the claimant may give written notice of withdrawal to the Public Sector Commissioner.

Resolved and withdrawn claims are not referred to the Public Sector Commission or the WAIRC. 

If claims are unresolved at the end of the 21 calendar day period, agencies must attempt to notify claimants of one of the following: 

• The claimant or their union may refer claims about the Performance Management Standard, Redeployment Standard, Grievance Resolution Standard and Termination Standard and claims about transfer to the Western Australian Industrial Relations Commission.
• Claims about recruitment, selection, appointment, acting or secondment (that is, Employment Standard claims except claims about transfer) will be referred by the agency to the Public Sector Commission.

Attempted notification can be verbal or in writing with records kept. 

Claims referred 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 any actions 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.

Yes. Agencies’ ability to meet each requirement in 21 calendar days depends on factors such as the nature and complexity of the claim, available resources and responsiveness of the claimant. 

There may be circumstances where agencies are making all reasonable efforts and are not able to meet one or more requirements. 

Examples of where agencies may be unable to meet one or more requirements:

• The claimant does not respond to communication from the agency.
• The agency is unable to find a person to deal with the claim who was not involved in the original process or decision.

In each instance, actions to assess and resolve the claim should continue with records kept documenting the attempts made and approach taken.
 

All information relating to the attempted claim resolution such as: 

• the claim including any new matters raised by a claimant during the agency resolution procedure
• documents relating to the original process or decision
• the assessment and outcome
• approvals or decisions made to try and resolve the claim
• discussion of the assessment outcome and any proposed actions with the claimant
• contact with the claimant and the matters discussed
• attempts to contact the claimant (including date, time, file notes, emails, letters, meeting requests and similar).
   

Agencies must take reasonable steps to ensure employees are aware of the 6 standards, regulations and procedures under the Industrial Relations Act 1979.

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 and impact of any public holidays on the 21 calendar day agency resolution period 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. 

The Commission assesses the claim to ensure it has the power to deal with it and that the decision is covered by the Employment Standard. 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.