Western Australia
Public Sector Management (Examination and Review Procedures) Regulations 2001
Western Australia
Public Sector Management (Examination and Review Procedures) Regulations 2001
CONTENTS
Part 1 — Preliminary
1.Citation1
2.Commencement1
3.Definitions1
Part 2 — Lodging claims of breaches of public sector standards
4.Notice to be given of decisions about appointments and selections3
5.Lodging claims of breaches of public sector standards relating to recruitment, selection and appointment4
6.Limitations on lodging claims under regulation 55
7.Lodging claims of breaches of other public sector standards6
8.Limitations on claims under regulation 77
9.Public sector body to ensure that certain information is given7
10.Effect of lodging a claim8
Part 3 — Procedures for examination and review of claims
Division 1 — Examination of claims
11.Public sector body to consider claim and seek resolution10
12.If claim not resolved Commissioner to be asked to appoint examiner10
13.Appointment of examiners and their terms and conditions of appointment10
14.Examiners to be provided with certain materials11
15.Functions of examiner11
16.Consideration by Commissioner of examiner’s report12
Division 2 — Review of claims
17.Appointment of reviewers and their terms and conditions of appointment13
18.Reviewers to be provided with certain materials13
19.Functions of reviewer14
20.Representation during review15
Division 3 — Reports and notices after review
21.Definition15
22.Consideration by Commissioner of reviewer’s report15
23.Commissioner to give notice to public sector body of determination16
24.Public sector body to respond to Commissioner’s determination16
Division 4 — General
25.Withdrawal of claim18
26.Suspension of examination or review because of section 24 investigation18
27.Commissioner may report to Minister and Parliament19
Part 4 — Repeal and transitional
28.Repeal20
29.Transitional20
Notes
Compilation table21
Western Australia
Public Sector Management Act 1994
Public Sector Management (Examination and Review Procedures) Regulations 2001
These regulations may be cited as the Public Sector Management (Examination and Review Procedures) Regulations 2001.
These regulations come into operation on 1 July 2001.
In these regulations —
“appointment pool” means a number of persons selected by a public sector body as suitable to be considered by the public sector body for appointment to fill a future vacancy or a particular class of future vacancies;
“claim” means a claim lodged under regulation 5
“claim documents” means the claim and statement given to an examiner under regulation 14;
“claimant” means a person who lodges a claim;
“day” does not include a Saturday, Sunday, public service holiday or public holiday;
“examiner” means a person appointed by the Commissioner under section 97(1)(b) of the Act on whom functions are conferred by regulation 15;
“notified applicant” means a person given notice by a public sector body under regulation 4(1);
“reviewer” means a person appointed by the Commissioner under section 97(1)(b) of the Act on whom functions are conferred by regulation 19;
“vacancy” means a vacant office, post or position.
Part 2 — Lodging claims of breaches of public sector standards
4.Notice to be given of decisions about appointments and selections
(b)who applies to the public sector body for selection to form part of an appointment pool.
(a)in a case to which subregulation (1)(a) applies — the name of the person (if any) the public sector body proposes to appoint to fill the vacancy;
(b)that these regulations provide for a claim to be lodged by a person if —
(i)the person considers that a public sector body has breached a public sector standard in relation to a decision made or action taken by the public sector body in relation to an appointment or selection; and
(ii)the person is adversely affected by the decision or action;
(c)that information is available on request from the public sector body about how a claim may be lodged;
(e)that, before lodging a claim, a notified applicant is to ask for information about the process that took place in the assessment of his or her application from the person referred to in paragraph (d); and
(1)In this regulation —
“public sector standard” means a public sector standard established in respect of the recruitment, selection or appointment of employees.
(a)the person considers that a public sector body has breached a public sector standard in relation to a decision made or action taken by the public sector body —
(i)to appoint or not appoint a person to fill a vacancy; or
(ii)to select or not select a person to form part of an appointment pool;
and
(b)the person is adversely affected by the decision or action.
(4)A claim —
(a)is to be made in writing and lodged with the employing authority of the public sector body;
(b)is to set out the grounds on which the claim is based; and
(c)if the claim is made by a notified applicant —
(i)is to give details of any request made under subregulation (3) and any information given in response to the request under regulation 9(1)
(ii)if any of that information was given in the form of a document — is to include a copy of the document.
(1)A person cannot lodge a claim under regulation 5
(2)A person cannot lodge a claim under regulation 5
(a)the appointment is made from an appointment pool; and
(b)the appointment pool was formed for the purpose of filling —
(i)that vacancy; or
(ii)a particular class of vacancies to which that vacancy belongs.
(3)A person cannot lodge a claim under regulation 5
(a)in relation to an appointment to fill a vacancy for a period of not more than 6 months;
(c)after the date referred to in regulation 4(2)(f).
(1)In this regulation —
“employee” includes a former employee who was an employee at the time the relevant breach of a public sector standard is claimed to have taken place;
“public sector standard” does not include a public sector standard established in respect of the recruitment, selection or appointment of employees or in respect of substandard performance or disciplinary matters.
(a)the employee considers that the public sector body has breached a public sector standard in relation to a decision made or action taken by the public sector body; and
(b)the employee is adversely affected by the decision or action.
(4)A claim —
(a)is to be made in writing and lodged with the employing authority of the public sector body;
(b)is to set out the grounds on which the claim is based; and
(c)is —
(i)to give details of any request made under subregulation (3) and any information given in response to the request under regulation 9(2)
(ii)if any of that information was given in the form of a document — to include a copy of the document.
(1)An employee cannot lodge a claim under regulation 7
(2)An employee cannot lodge a claim under regulation 7 more than —
(a)8 days after the employee first became aware of the decision or action in relation to which the employee claims there has been a breach of a public sector standard; or
(b)6 months after that decision was made or that action was taken,
whichever is the earlier.
9.Public sector body to ensure that certain information is given
(a)under regulation 5(3)
(b)from a public sector body about how a claim may be lodged,
the public sector body is to ensure that the information needed to understand that process or how to lodge a claim is given to the person not more than 3 days after the request is made.
(1)In this regulation —
“entry‑level appointment” means an appointment of a person at the lowest level of classification at which appointments of a particular class are made to the Public Sector;
“promotional appointment” means an appointment of a person that is not an entry‑level appointment.
(2)If a public sector body proposes to make an entry‑level appointment, the public sector body may make the appointment despite a claim being lodged under regulation 5
(a)to make a promotional appointment and a claim is lodged under regulation 5 in relation to that appointment; or
(b)to transfer an employee and a claim is lodged under regulation 7 in relation to that transfer,
the public sector body cannot make the appointment or give effect to the transfer unless subregulation (4) applies.
(a)the claim is dismissed by the Commissioner under regulation 16(3);
(b)the Commissioner gives notice to the public sector body under regulation 23(1) that the Commissioner has not been satisfied that the public sector body has breached a public sector standard;
(c)the public sector body gives notice to the claimant under regulation 24(2); or
(d)the claimant withdraws the claim under regulation 25(1).
(5)If the proposed promotional appointment or transfer of a person cannot be made or given effect because of the operation of subregulation (3), the public sector body is to give written notice to the person accordingly.
Part 3 — Procedures for examination and review of claims
Division 1 — Examination of claims
11.Public sector body to consider claim and seek resolution
(a)consider the claim;
(b)take all appropriate steps to resolve the claim with the claimant;
(c)make a written record of the steps taken under paragraph (b); and
(d)give notice to the claimant of the response it proposes to make to the claim under regulation 14(1)(b) if the claim is not resolved.
(2)Subregulation (1) does not operate to prevent the public sector body from taking steps to resolve a claim with the claimant at any time.
If a public sector body does not resolve a claim with the claimant within the period referred to in regulation 11(1), the public sector body is to ask the Commissioner to appoint an examiner to examine the claim.
13.Appointment of examiners and their terms and conditions of appointment
(1)When a request is made to the Commissioner under regulation 12
(2)The appointment of an examiner may be revoked at any time.
(3)Subject to section 98(c) of the Act, the remuneration and the terms and conditions of appointment of an examiner are as determined from time to time by the Commissioner.
(a)the claim; and
(2)The public sector body is to keep a copy of the claim and statement given to the examiner under subregulation (1).
(1)The examiner is to examine a claim by considering the claim documents and forming an opinion on whether —
(a)the claim is vexatious or frivolous;
(b)the claimant has shown that he or she has a claim that has substance; and
(c)the public sector body has complied with these regulations.
(2)If the examiner considers that a statement in the claim documents needs to be explained to the examiner before he or she is able to form an opinion under subregulation (1), the examiner may interview by telephone the claimant or an appropriate officer of the public sector body, as the case requires, to seek an explanation of the statement.
(a)details of the claim; and
(b)the examiner’s opinion on whether —
(i)the claim is vexatious or frivolous;
(ii)the claimant has shown that he or she has a claim that has substance; and
(iii)the public sector body has complied with these regulations and, if the examiner’s opinion is that the public sector body has not complied with any of these regulations, the reasons for that opinion.
(a)the claim is vexatious or frivolous;
(b)the claimant has not shown that he or she has a claim that has substance; or
(c)the claim was lodged contrary to regulation 6(3)(b).
(5)The examiner is to include in the report a recommendation that the claim should be reviewed by a reviewer if the examiner does not form an opinion referred to in subregulation (4).
16.Consideration by Commissioner of examiner’s report
(1)When the Commissioner is given the claim documents and examiner’s report under regulation 15(3), the Commissioner is to —
(a)consider the claim documents and the report and have regard to the examiner’s recommendation in the report; and
(b)determine whether, on the basis of the claim documents and the report, the claimant has or has not shown that he or she has a claim that has substance.
(a)determination under subregulation (2); or
(b)dismissal of the claim under subregulation (3).
(5)The public sector body is to give written notice to the claimant of the determination or dismissal referred to in subregulation (4).
(1)If this regulation applies to a claim, the Commissioner is to appoint a reviewer under section 97(1)(b) of the Act to review the claim.
(2)The appointment of a reviewer may be revoked at any time.
(3)Subject to section 98(c) of the Act, the remuneration and the terms and conditions of appointment of a reviewer are as determined from time to time by the Commissioner.
(1)Within 3 days after a reviewer is appointed to review a claim, the public sector body concerned is to give to the reviewer a copy of the claim documents.
(2)The public sector body is also to give to the reviewer a copy of any other document —
(a)that is in the possession or control of the public sector body; and
(b)that the reviewer considers relevant to the claim and asks the public sector body to provide.
(3)The Commissioner is to give to the reviewer a copy of the report given by the examiner to the Commissioner under regulation 15(3).
(4)The claimant is to give to the reviewer a copy of any document —
(a)that is in the possession or control of the claimant; and
(b)that the reviewer considers relevant to the claim and asks the claimant to provide.
(5)This regulation does not limit the documents that the reviewer may obtain and have regard to for the purposes of reviewing a claim.
(1)The reviewer is to review a claim by —
(a)considering —
(i)the claim documents and other documents given to the reviewer under regulation 18
(ii)any other document obtained by the reviewer that the reviewer considers relevant to the claim;
(b)interviewing the claimant —
(i)if the claimant lives in the Perth metropolitan area — in person; or
(ii)if the claimant lives outside the Perth metropolitan area — by telephone;
(c)interviewing in person or by telephone, as the reviewer thinks fit, an appropriate officer of the public sector body; and
(d)interviewing in person or by telephone, as the reviewer thinks fit, any other person who the reviewer considers may have information relevant to the claim.
(2)On the completion of the review, the reviewer is to give to the Commissioner a written report that sets out a detailed description of the facts and circumstances that gave rise to the claim.
20.Representation during review
Neither the claimant, nor any other person interviewed by a reviewer in a review, may be represented by another person during the interview unless the reviewer otherwise determines on the ground that the interview cannot proceed effectively without that representation.
Division 3 — Reports and notices after review
In this Division —
“notified breach” means a breach of a public sector standard notice of which has been given to a claimant under regulation 23(3)(a).
22.Consideration by Commissioner of reviewer’s report
When the Commissioner is given the reviewer’s report under regulation 19(2), the Commissioner is to —
(a)consider —
(i)the claim documents and the facts and circumstances described in the report; and
(ii)any other document or information that the Commissioner considers relevant to the claim;
and
(b)determine whether, on the basis of the material considered under paragraph (a) —
(i)the public sector body concerned has breached a public sector standard; or
(ii)the Commissioner has not been satisfied that the public sector body has breached a public sector standard.
23.Commissioner to give notice to public sector body of determination
(b)has not been satisfied that the public sector body has breached a public sector standard.
(2)If the Commissioner determines that the public sector body has breached a public sector standard, the notice under subregulation (1) is to specify each public sector standard determined to have been breached and is to set out the facts and circumstances on the basis of which the Commissioner has made that determination.
(3)When the public sector body is given notice under subregulation (1), the public sector body is to give written notice to the claimant that the Commissioner —
(a)has determined that the public sector body has breached a public sector standard, specifying each public sector standard determined to have been breached; or
(b)has not been satisfied that the public sector body has breached a public sector standard.
24.Public sector body to respond to Commissioner’s determination
(1)Within 15 days after a public sector body is given a notice under regulation 23(1)(a)
(a)consider —
(i)the facts and circumstances on the basis of which the Commissioner has determined that the public sector body has breached a public sector standard; and
(ii)whether any action is proposed to be taken by the public sector body in response to that determination;
and
(i)the action proposed to be taken by the public sector body and an explanation of how that proposed action would remedy the notified breach; or
(ii)the reasons why no action is proposed to be taken by the public sector body.
(a)determine whether any action is to be taken in response to the notified breach; and
(i)the action to be taken by the public sector body and an explanation of how that action will remedy the notified breach; or
(ii)the reasons why no action is to be taken by the public sector body.
(3)The public sector body is to give a copy of the notice given to the claimant under subregulation (2)(b)
(4)In subregulation (2) —
“the prescribed period” means 15 days after notice is given to the Commissioner under subregulation (1)(b).
(2)If a claimant withdraws a claim while an examination or a review of the claim is being conducted, the public sector body is immediately to inform the Commissioner, and the examiner or reviewer, accordingly.
26.Suspension of examination or review because of section 24 investigation
If the Commissioner —
(a)is conducting, or proposes to conduct, an investigation under section 24 of the Act; and
(b)considers that the matters being, or to be, investigated are or include the matters in relation to which a claim has been lodged,
the Commissioner may cause any examination or review of the claim to be suspended for any period the Commissioner thinks fit.
27.Commissioner may report to Minister and Parliament
If the Commissioner determines that a public sector body has not complied with any of these regulations, the Commissioner may give to —
(a)the public sector body; and
(b)the Minister responsible for the public sector body,
a written report setting out the details of that determination and may cause a copy of the report to be laid before each House of Parliament.
Part 4 — Repeal and transitional
The Public Sector Management (Review Procedures) Regulations 1995 are repealed.
If a claim has been lodged under the regulations repealed by regulation 28
(a)the claim has not been rejected or withdrawn; and
(b)the review of the claim, or any report relating to that review, has not been completed,
the claim or the report, as the case requires, is to be dealt with as if those repealed regulations had not been repealed.
1This is a compilation of the Public Sector Management (Examination and Review Procedures) Regulations 2001 and includes the amendments made by the other written laws referred to in the following table 1a.
Citation |
Gazettal |
Commencement |
Public Sector Management (Examination and Review Procedures) Regulations 2001 |
20 Apr 2001 p. 2165-88 |
1 Jul 2001 (see r. 2) |
2On the date as at which this compilation was prepared, the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 Pt. 5 had not come into operation. It reads as follows:
“
Part 5 — Repeal and transitional
(1)If —
(a)a claim has been lodged under Part 2 of the former regulations; and
(b)immediately before the commencement of these regulations, the claim has not been completely dealt with under those regulations or withdrawn by the claimant,
then, despite regulation 31, the former regulations continue to have effect for the purposes of dealing with the claim.
(2)In subregulation (1) —
“former regulations” means the regulations repealed by regulation 31.
”.