Breach of Standard claims

An overview

Legislative framework

The Public Sector Management Act 1994 (PSM Act) establishes the role of the Public Sector Commissioner. The Commissioner’s functions include:

  • establishing public sector standards in human resource management (the Standards)
  • administering and monitoring compliance with the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (the Regulations) to provide relief for a breach of the Standards.

The Standards and Regulations form the legislative framework for breach of Standard claims.

Terms  
Agency The public sector body or employing authority as referred to in the Regulations
Breach claim A claim of a breach of Standard made in accordance with the Regulations
Commission Public Sector Commission
Commissioner Public Sector Commissioner
Conciliation and Review Officer (CRO) A person appointed by the Commissioner to conciliate or review a breach claim. This role can be undertaken by a Commission employee
PSM Act Public Sector Management Act 1994
Standards The public sector standards in human resource management established by the Commissioner under the provisions of the PSM Act
Regulations Public Sector Management (Breaches of Public Sector Standards) Regulations 2005

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The public sector standards in human resource management 

Public sector agencies must comply with the Standards when they make human resource decisions. Currently there are six Standards:

Under the Regulations, breach of Standard claims can only be made for decisions relating to a Standard other than the Discipline Standard, because other legislation applies.

The Standards are based on principles rather than rules. This allows public sector agencies to design human resource practices that are consistent with the relevant Standard and suit their operational requirements.

A copy of the Standards is available on the Commission’s website at www.publicsector.wa.gov.au

Regulations governing breach of Standard claims

The Regulations came into effect on 1 September 2005 and provide a legislative base for the handling of a breach of Standard claim. The Regulations were amended in February 2011 to facilitate changes to the Standards and the release of Commissioner’s Instruction No. 2 – Filling a public sector vacancy. The Regulations were further amended in March 2014 to reflect changes to the regulatory role of the Commissioner. 

The Regulations provide for:

  • people to lodge a breach of Standard 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 where possible and, where resolution does not occur, an independent determination by the Commissioner on whether there has been a breach of a Standard
  • the Commissioner to recommend, and in some circumstances direct, what relief, if any, is to be provided when a breach of a Standard is determined.
A copy of the Regulations is available on the State Law Publisher's website at www.slp.wa.gov.au

Agencies covered by the Regulations

All Western Australian public sector agencies are covered by the Regulations governing breach of Standard claims, except for those agencies named in Schedule 1 of the PSM Act. These organisations are not covered by the Standards or the Code of Ethics. Breach of Standard claims cannot be made about the decisions of Schedule 1 agencies.

Underlying principles of the Regulations

The Regulations are designed to be practical and flexible. They allow for cooperation, in the sense that parties can actively engage in the process when the claim is lodged in the agency, have any issues conciliated or where required, have a claim reviewed by the Commission. 

The key underlying principles are to provide:

Balance

A balance between the agency’s need to manage human resource processes in the context of their operational requirements and the need for people to seek relief where human resource processes covered by the Standards do not comply with the Standards.

Clarification of the issues

Claimants and agencies have the opportunity to clarify the issues related to the claim after the claim is forwarded to the Commissioner.

Choices for both parties

When a claim is lodged, the agency must make reasonable attempts to resolve the claim. A claimant may consider that an explanation or other action resolves their claim and may withdraw their claim in writing.

Opportunity for resolution

If the claimant and agency agree to participate in conciliation, an impartial person will undertake the conciliation process. This may be a Commission employee or an external Conciliation and Review Officer (CRO) appointed by the Commissioner.  The person undertaking conciliation works with the parties to resolve the claim. Conciliation can facilitate a better understanding of the claim by both parties and a fair and prompt resolution.

Procedural fairness

If conciliation is not an option, or an agreement is not reached during conciliation, the claim is reviewed. The review may be undertaken by a Commission employee or an external CRO may be appointed. Both parties have an opportunity during the review process to provide information relevant to the claim.

Impartial and open decisions

The Commissioner makes an independent determination on whether there has been a breach of a Standard and notifies both parties, giving reasons for the decision. This approach helps both parties to understand the decision. 

An independent view of the relief that should be provided

If there has been a breach of a Standard, the Commissioner may recommend relief, or may direct that relief, or no relief, be provided by the agency to the claimant. This approach ensures both the agency and the claimant have someone independent to make the determination about the appropriate relief.  

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Breach of Standard claims

A breach of Standard claim allows a person to seek relief if they believe a decision by an agency has breached a Standard and they have been adversely affected by that breach. A breach of Standard claim can be made once an agency has completed a process and made a ‘reviewable decision’ to which a Standard applies.

An overview of the breach of Standard claim process

Informing employees

The agency must take reasonable steps to inform employees about the Standards and Regulations. Agencies are also to notify relevant persons for some employment decisions and completed grievance processes, in accordance with the Regulations.

Lodging a claim

A person may lodge a breach of Standard claim by writing to the agency concerned, setting out the reasons why they consider the Standard has been breached and how they have been adversely affected by that breach (see template ‘Form for breach claim lodgement’).Timeframes apply. The Commissioner may approve the lodgement of a claim outside these timeframes where the Commissioner is satisfied there are reasonable grounds for making a claim.

Processing and referral

The agency must make reasonable attempts to resolve the claim when it is lodged. If a written withdrawal from the claimant is not received within 15 working days, the agency must forward the claim to the Commissioner.

Declining claims

The Regulations allow the Commissioner to decline to deal with claims for reasons including; the claim is vexatious, frivolous or lacks substance; the claim relates to matters with which the Commissioner cannot deal; or where the claim is solely about competitive merit.

Conciliation and review

If the claim has been accepted and both parties agree, the claim is conciliated to encourage a prompt and mutually agreeable resolution.  

If conciliation is not possible, the claim is reviewed and a report provided to the Commissioner. Further attempts to conciliate may be made at any time (including during the review phase) until the Commissioner makes a determination.

Determination

The Commissioner determines whether there has been a breach of the Standard. The Commissioner advises the agency and the claimant of the determination and gives reasons for that determination. If the Commissioner determines that the agency has breached the Standard the Commissioner may recommend relief (if any), or may direct that relief or no relief be given by the agency to the claimant.  The Commissioner cannot recommend or direct that the relief to be given by the agency is the appointment of the claimant or another person, but may direct that a specified person is not to be appointed. 

Relief

Within 10 working days of the Commissioner’s determination and/or relief recommendations, the agency advises the Commissioner and the claimant of its proposed action. The agency also advises the Commissioner 10 working days after it has implemented relief. 

Where the agency does not follow the recommendation within the period specified in the notice, or proposes action the Commissioner does not consider appropriate, the Commissioner may direct the agency to give the claimant relief specified in the direction. 

Reporting

Under the Regulations, the Commissioner may report to the relevant Minister or to Parliament if the Commissioner determines an agency has not given the claimant the directed relief and/or the agency has not complied with any of the Regulations.

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Possible outcomes of breach of Standard claims

Claims are finalised when one of the following occurs:

  • the claimant withdraws their claim in writing with the agency or the Commissioner
  • the Commissioner declines to deal with a claim or decides to stop dealing with a claim
  • the Commissioner determines a claim is lapsed. This occurs where the Commissioner considers that the claimant is not participating in the process
  • both the claimant and the nominated officer from the agency sign a conciliation agreement
  • the claim is reviewed and the Commissioner determines no breach has occurred
  • the Commissioner determines that a breach has occurred and recommends or directs that relief, or no relief, is to be provided.

Process for withdrawing claims

A claimant may withdraw a claim by giving written notice to the agency with which the claim was lodged, or the Commissioner.  This may happen at any time before the Commissioner makes the final determination. 

If an agency receives a withdrawal after a claim has been referred to the Commissioner, the agency will need to notify the Commissioner in writing that the claim has been withdrawn. If the Commissioner receives a withdrawal from a claimant then the Commissioner will provide written notice to the agency, advising the claimant has withdrawn their claim.

The breach of Standard claim is concluded when the Commissioner receives notice of the withdrawal.

Process for declining claims

If the Commissioner decides not to deal with a claim, the Commissioner will advise the claimant and the agency where the claim was lodged in writing of the decision not to deal with the claim and the reasons for this.

Process for lapsing claims

In some circumstances, the Commissioner may form the view that the claimant is not participating in the process. This may occur if they are not contactable or not responding to requests for information by the Commission employee.

If this happens, the Commissioner will write to the claimant giving them five working days to respond. If there is no response the Commissioner will advise the claimant and the agency that the claim has lapsed and the breach of Standard claim is concluded.

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Page last updated 24 July 2015