This fact sheet outlines your rights when it comes to avoiding and resolving disputes about the interpretation of the agreement and reviewing an adverse decision relating to your employment. Your conditions on these matters are outlined in clause 136 of the ATO (General Employees) Agreement 2009 and Section 33 of the Public Service Act 1999.
What is a dispute?
Disputes arise when.you do not agree with a decision that relates to your
employment. Some disputes relate to matters that are covered by the GEA, such as
your leave entitlements or rate of pay. A dispute can also relate to other
employment related matters, such as an unsuccessful application for a promotion.
What is the DASP?
The Dispute Avoidance and Settlement Procedure (DASP) is the formal process
used to avoid and settle a dispute over most matters covered by the Agreement.
The exceptions are:
Clause 1 (aim of the agreement),
Clause 84.37 (additional paid personal leave),
Clause 114.1 (complying with the APS code of conduct),
Clauses 115-117 (anti-discrimination, workplace diversity, and
Occupational Health and Safety)
Any other matters not contained in the GEA are not disputable.
The measures used to avoid and resolve disputes are based on the provision of
information and explanation, consultation, cooperation and negotiation.
The three steps involved in the DASP are:
You and your representative (e.g. CPSU delegate) meet with management to
try to resolve the matter
If not resolved, another meeting takes place with a representative of
the FAC ATOPP (or the Commissioner, if appropriate)
If still not resolved, the matter can be referred to FairWork Australia
for resolution
While this is all taking place, if there is no imminent risk to the health
and safety of employees, employees will continue to work according to their
employment contract or to the established custom and practice, while the dispute
is being resolved.
If there is an imminent risk to health and safety, employees will be moved to
alternative safe and appropriate work.
What is a Review of Employment Actions?
Under Section 33 of the PS Act, APS employees are entitled to request a
review of any action or decision that relates to their employment with the
exception of termination of employment. This includes matters which are covered
by the GEA and DASP provisions above.
For the majority of reviewable actions,
the employee must first request a primary review from their agency head. If the
employee is dissatisfied with the outcome they can make a secondary review to
the Merit Protection Commissioner. The Merit Protection Commissioner will
consider the review in light of procedural fairness and whether the employment
decision was reasonable and appropriate.
After conducting the review, the Merit Protection Commissioner can make a
recommendation to your agency head about the matter being reviewed. The Merit
Protection Commissioner cannot make a different decision, nor can they impose an
outcome on your agency.
Your agency cannot be forced to do what the commissioner recommends. However,
agencies usually act on the recommendations received and are required to give
reasons for their decisions.
Other features of a review of employment action include:
Requesting a review does not prevent the agency from proceeding with the
action or implementing the decision.
A request for a review must be within 12 months of the action.
You are entitled to a support person (you are required to make a formal
request in writing to the Merit Protection Commissioner stating your
reasons).
The Review of Employment Action cannot be requested by a group of
affected employees and where a decision impacts more than one employee each
employee must request a review individually
What’s the difference and which procedure is better?
It depends on the circumstances and matters in dispute.
The Disputes Avoidance and Settlement Procedures ultimately allow for an
independent body – FairWork Australia – to hand down a decision which all
parties must abide by. They also allow for individual and collective disputes
where more than one person has been adversely affected by the same decision.
Your union can initiate and progress the dispute on your behalf. The DASP
however can only be used for matters that are included in the GEA.
Where the issue is not covered by the GEA, a Review of Employment Action may
be the more appropriate way to progress the matter. A Review of Employment
Action may also be used for matters that are covered by the GEA, however, the
matter is dealt with the employee individually. If you do access the Review of
Employment Action, you will not be able to access the DASP to resolve the same
issue unless the Commissioner of Taxation has not agreed with the
recommendations of the Merit Protection Commissioner.
For help and advice if you disagree with a decision that affects you, CPSU
recommends that you immediately talk to your CPSU delegate or call the CPSU
Membership Service Centre on 1300 137 636.
Join CPSU
CPSU exists to make a positive difference to members’ lives. Collective
strength gives us the power to defend your rights at work. To join CPSU, see
your workplace delegate for an application form, join securely online at
www.cpsu.org.au, or call 1300 137 636.
