Merit and its Merits in the Public Service

Since my appointment as the Merit Protection Commissioner I have reflected on what is it I am protecting and why it needs protecting. Merit is a term that most Australian Public Service (APS) employees are likely to have heard of in the course of their employment and may have views on how it applies, or should apply, at work. It is also a concept which has from time to time been the subject of serious debate. Merit as a key tenet of public service employment has most recently come to the fore in the context of proposed Australian government reforms for the APS which include an examination of the APS Values. That merit in the APS is accepted as ‘given’ is in effect an embodiment of Australian ideals (although merit as a societal ideal is clearly not exclusive to Australia). The concept of being treated on your merits is a deeply embedded ethical value for Australians and is viewed as part of the national character. The idea that people should play fair and give everyone a ‘fair go’ is associated in the minds of many Australians as ‘being Australian’. Merit in the APS can be seen as an extension of this prevailing attitude. The problem facing the APS is that everyone defines merit in a different way. In this contribution I want to look at what merit is in its simplest form, why the public service maintains the principle of merit and the current factors influencing the merit debate. I admit to having a vested interest. My statutory role as Merit Protection Commissioner is set out in section 50 of the Public Service Act 1999 (the Act). While ‘merit’ is in the title of the office, two of my key functions are to conduct independent reviews of employment actions and to receive and inquire into whistleblower reports – there is no mention of merit per se. Yet, I see my role as providing assurance through the review function that in the areas of APS employment, the APS Values are being applied. Through reviews and investigation I discover and report on APS agency decisions from minor administrative errors to serious defects in process and policy. I use the insight I gain from performing my statutory role to assist APS agencies and their employees to understand their respective responsibilities within the APS employment framework in order to minimise the potential for recurrence. This role gives me a unique position from which I can make observations on merit and its operation in the APS. Merit is defined in different ways depending on the context in which it is being used. Ordinary dictionaries, such as the Macquarie Dictionary, provide up to eight different meanings. In the APS, when we talk about merit we are really looking at two of the eight concepts – a person's claims of commendation, excellence or worth, and the rights and wrongs of a matter unobscured by the technicalities. If you substitute a few words it becomes clearer – a person's claims of worth in a recruitment context and the rights and wrongs of how APS managers make decisions about their staff. While merit is usually considered in the context of recruitment it is also important not to lose sight of the application of merit in decision-making. What I mean by a meritorious decision is one where the decision-maker has considered the following questions: is it legal? (ie an appropriate exercise of a delegation by a person with authority); is it evidence-based? (ie does it weigh up independent and credible data or information using a variety of decision-making tools); is it timely?; is it transparent? (ie are there records to support a conclusion that is logical and reasonable); is it sustainable? (ie not a short term fix that creates longer term problems); and is it ethical? (ie while being legally correct, it is also the right thing to do.) I have previously provided detail on these concepts and noted that the REFLECT decision-making tool forms an easy-to-remember acronym for meritorious decision-making (Godwin 2009:8). The fundamental issue of how to assess people for employment opportunities has faced all employers, including professional public services, since their inception. It is the attempts to embed the response to this issue that, over time, have led to the current consideration of merit. While equally important, the focus of meritorious decision-making has not been the subject of as much debate although it has been reflected in review systems. The current APS Value of ‘a fair system of review’ is in practice an examination of the rights and wrongs of decision-making. The guiding principle used to staff the Commonwealth public service since its introduction in 1902 has been merit. In this context, it was considered to provide a level playing field for recruitment. The concept of merit adopted into the APS was a direct inheritance of the reform movements of 19th century Britain which had as an objective the elimination of nepotism and patronage and the enhancement of efficiency in the British civil service. These reforms, in particular the use of competitive examinations, had largely been adopted into the state public services prior to federation. Since the introduction of the Public Service Act 1902 and its replacement, the Public Service Act 1922 (1922 Act), merit as a principle has evolved and is now expressed in terms of open access to APS opportunities with competitive selection based on relative efficiency. The other important feature impacting on merit has been the separate considerations of appointment and internal progression through promotion or transfer. This was reflected in the Public Service Commissioner's first Annual Report in 1904: all appointments and promotions shall be based upon a just and equitable system excluding all political or other patronage, throwing all appointments open to rich and poor alike, and establishing merit combined with fitness as the only basis of selection. Thus from its inception, the framework for APS selection was designed to allow people to compete and to be assessed on the basis of their efficiency. Merit, however, was never explicitly defined in the legislation until 1999 and merit was never universally applied in recruitment – for example there were restrictions on women obtaining ongoing employment, preferential treatment for returned servicemen, age limits on appointments and seniority criteria. The other problem faced by any organisation in the absence of a definition of merit is that merit itself is a fluid concept reflecting the values of the society at different points of time – the current exemptions from open competition are to assist the employment of Indigenous people and people with disabilities. In 1976, the Royal Commission on Australian Government Administration upheld the principle of recruitment by merit, but believed that there was cause for concern in the ways in which merit was applied to different groups in society such as women, indigenous people, people with disability, and people from non-English speaking backgrounds. The 1983 White Paper Reforming the Australian Public Service led to revised provisions in the 1922 Act governing entry to the APS and determined that merit be applied by open competition and promotion and on the basis of relative efficiency. By doing so, it thus enshrined merit in the legislation. The introduction of the Act in 1999 provided, for the first time, a definition of a merit-based decision which was common for both engagement and promotion. This simplified the application of merit for staff selection in the modern APS. Around the same time as these merit reforms for promotion and engagement, there were also corresponding changes in how people were managed in administrative law. In broad terms, the APS moved from a centralised ‘rules’ based approach to a model of ‘professional principles and standards’ supplemented by agency-based guidance and policies. Along with the devolution came stronger accountability and responsibility for individual and collective decisions. In a devolved, principle-based environment, the role of meritorious decision-making is more important than ever, as it has a role in providing assurance and confidence as to the gravity of those decisions. The formal review process in the APS (continued in the Act) together with other avenues such as the Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982 (FOI Act), have served to reinforce the importance of good decision-making. The APS is not alone in facing issues regarding merit – debates on merit and its interpretation and implementation have also featured in the public services of Canada, the United Kingdom and the United States.1 There are also similar checks and balances with various review frameworks and auditing requirements. Each public service is addressing the challenges of ensuring the application of merit in an increasingly competitive world through a combination of increasing the flexibility of the principle and ensuring appropriate checks and balances are in place to monitor merit as practiced. I think it is important to focus on why it is fundamental to our system that the APS continues to bother with merit and in particular merit-based recruitment – commonly referred to as ‘getting the best person for the job’ for engagement and promotion decisions. There is an overall expectation that official power be exercised in a manner that is fair, impartial and equitable – and this is particularly so for engagement and recruitment decisions as envisaged under the Act. This is appropriate as they seek to provide additional assurance that key ‘gates’ within the APS are operating effectively and efficiently. As I see it the advantages of merit in recruitment include, in no particular order: promoting public confidence in the APS; supporting the Government's anti-discrimination provisions including, as a positive counter, to those early concepts of nepotism and patronage; enabling the development of a staffing profile within the APS that better reflects the diverse community it serves, making it easier to tap into different approaches and ideas; opening up APS employment opportunities to all eligible citizens and increasing the field of potential employees; the recruitment of the best person for the job promotes efficiency, provides economic benefits to individual agencies and supports the overall organisational effectiveness and productivity of the APS; appropriate staffing that gives value for taxpayers’ dollars; and focussing on the particular requirements of a role and the contribution of an individual to that role. The current Act includes a number of APS Values or other provisions that separately deal with aspects of what have at various times been viewed as elements of the merit principle. These include a prohibition on patronage and favouritism, non-discrimination, equity in employment and providing a reasonable opportunity for the community to have access to APS employment. The Act provides a definition of merit as it relates to the APS Value of merit-based employment decisions. The Act states that a decision relating to promotion and engagement is based on merit if: an assessment is made of the relative suitability of the candidates for the duties using a competitive selection process; the assessment is based on the relationship between the candidates’ work-related qualities and the work-related qualities genuinely required for the duties; the assessment focuses on the relative capacity of the candidates to achieve outcomes related to the duties; and the assessment is the primary consideration in making the decision. While Chapter 2 of the Public Service Commissioner's Directions expands on the minimum requirements entailed in undertaking a competitive selection process for engagement and promotion, it also provides a definition of merit to be applied to other employment-related decisions. That is, all employment decisions (other than engagement or promotion decisions) are to be made on the basis of an assessment of a person's work-related qualities and the work-related qualities required for efficient and effective organisational performance. This applies to movements to ongoing positions at the same classification (within and between agencies) which support and promote mobility, career development and experience of different roles and environments. Such decisions are, however, subject to what I have defined as meritorious decision-making. I believe APS employees are comfortable with the basic concept of trying to ensure the person selected for promotion or for engagement to the APS is the best person available for that job and that they not it on the basis of they are or they In other there is a reasonable opportunity to apply, with selection on the basis of individual worth with no patronage or one that this is not the ideal that is, it is in the than the positive but in an ideal world and the APS needs to an between and that does not the merit value time, in to merit, the APS has what be considered to be a recruitment on the basis of merit. The that have been into recruitment and selection to ensure ‘merit’ have to and time of what you have seen or heard over the be a of be a level the level of the selection reports in of a a of of selection In there is no in the Public Service Commissioner's Directions for reports or that an be The key is that there is and of process and In my the on to or within agencies relationship to the of the Act provisions and only to make it more to compete for provided to the Australian Public Service Commission supports this in recruitment have agency which and than best practice and the position of managers is to use and which to the use of and This can be in agencies where the recruitment process has been and managers for recruitment are not provided with information on best practice and agency or have not considered recruitment as a APS managers have that merit selection – which is seen as with an open competitive selection process – is time and does not the right What is the use of and an selection process the best person for the job is up by other employers, or may be from in the first The for recruitment were in the most of the Service Report an ongoing position the Service it on for the to make the selection decision and for the person to in the The for ongoing opportunities to and be fair to APS the framework which provides promotion review rights for employees at the APS and the of for between agencies does in times not faced by many This may be an for the but no for the There is for better of recruitment to where time is not set for a selection process or are not until the application is In my staff using the merit principle is not the The problem facing the APS for that matter other state and public services, is an between the two of merit and merit – or in other words – a between principle and the to to be more This has over time and reflects prevailing societal views on the value of public service and the role it in services and as a of employment. What is also is a of of merit in the context of recruitment and engagement and the provisions that merit. of APS of merit by the Commission in the that of merit are associated with the level of of the and that assist employees to understand how merit applies in different issue at is the by two aspects of the current of the APS Values as they to merit. These are the that ‘merit’ applies to all employment decisions than just selection for engagement and promotion, and the that opportunity to is a separate As on for the of the century the concept of merit selection was seen to to recruitment and promotion, and reasonable opportunity to was seen as an part of this – not a separate to merit to all employment decisions is The common concept of merit is to the process of the best person for the duties to be that is the of what a of other decisions – that is they are addressing a person's of the to does not to give to an process in to an or to a person's employment for or poor performance. It is the concept of merit-based decision-making that needs to be applied in these as as the principle of The of the for the of Australian Government Administration (the in set out a for the APS first and the needs and requirements of citizens to be at the of service and but also the public service to be more While the not focus on merit, one reform for a of the APS Values to ‘a set of values that are and effective in Since the Commission has on a revised set of values for the APS. by the Commission in proposed a set of values accountability and the of APS It also proposed that the values be by a set of employment principles to employment and in the APS. principles making employment decisions that are with a fair system of making promotion and engagement decisions that are based on and providing a that is from patronage and These principles to be seen in the context of the which has also that the APS best practice for recruitment that the merit principle. It is proposed that merit to be in the Act and to to engagement and promotion decisions. recruitment is just one of the framework within the APS. people an effective which in the to achieve its and the needs of The other concept of merit – good decision-making – all of the reforms and is to the efficient of the APS. While it is to the term ‘merit’ in this context from the it to be up through the review aspects of my role. I not want to see merit as a principle or the associated with it have people and are no longer considered or – the of this While all effective to make meritorious there is a on the APS to to the ideals of merit as a of its unique As the Australians see a level of accountability of public as one of the and not just of the of they but of impartial and ethical public and the community are likely to have that promotion and engagement is on the basis of the best person for the job through open competition for no other than value for their In the employees also see merit selection as being an part of their APS employment – although not they are not selected for a position they are more likely to merit has not been to this is independent decision-making in the application of and principles to ensure all Australians are treated in the of The role of the APS be more in the following the government reforms to the Freedom of Information Act 1982 which in part are designed to public in government and and review of government I not to have the but I think that there are areas the APS needs to debate and I believe that it is important to that merit selection in an open and competitive is for engagement and promotion but the in this should not be at the by of poor decision-making in its more Decisions in other areas to be meritorious and as an part of the In terms of the application of merit, the APS the or process of merit while the ideal of merit. This is not – the Commission and agencies have been in this for many the of public employment changes over time and we to to on the and to that may have been in the The focus on can to be simplified in better in the APS that staff selection be considered to be an and part of a or other decision – and that is what recruitment is – is treated so and can be at such support and The recruitment of just one level with the APS is at a one over a and should be the appropriate and assessment at all of an There is of the importance of effective recruitment and staff as part of the agencies have using the within the current framework and have which their capacity for effective and recruitment. have between the areas and the of recruitment to provide in selection and times are in many agencies and may include the use of which are by a of the Merit Protection I have been with agencies to look at how can more and particularly in that is being is using an to provide over the of particularly those that are than undertaking individual selection. such as these can provide more efficient recruitment while to the principle of merit. areas of consideration are job to promotion or engagement to a and the of employees by making it easier to within agencies and within the APS a competitive While there is no for additional competitive when staff to positions at the same there is a for good decision-making and an open and process when making that decision. These are all that are available now to agencies they to think the of how the principle This be in with designed to and employees have the and to through to the potential for of by other employees and the in this is one where it is that the and of employees good decision-making. There is much to be in ensuring that the APS an open approach to and of of a in it becomes that APS selection not the people from an APS This needs to be with an not just of the job or role as it but how that job may over the short to can look at how individual merit is There is to the changes by the government and other designed to the of the recruitment process and more to for may be appropriate within the APS. In merit, the APS needs to the in the – that is, the of that what on was what the where selection at how a person within the This is not a In introduction to a on merit in the Public Service Commissioner to merit is seen by selection as a to their It is as merit is to be by the process of to such is the of what the job is and what and qualities are considered recruitment That the people for the merit principle are of what the best person may look in an overall is the other It is easier to into a you are of it in the first it is important to that in work-related qualities agencies can into such considerations as qualities (ie and to to (ie a that are reflected in the selection criteria. My is that it is and within the of merit in the APS to and on the basis of what be the as to Merit be a as its application individual and the efficiency of As Merit Protection I believe it is important that the APS community continues to debate merit and the manner in which merit is reflected in the in agency and decision-making. My views are in a from one of the at the merit I believe we never it we at I think we have a reasonable of a fair on the best the of our and and the we in the Service in the can I and the staff of the Australian Public Service Commission for their in the of this

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