The "review of actions" scheme gives APS staff a statutory right to have reviewed APS actions that relate to their employment. The scheme's intention is to deal with staff concerns "quickly, impartially and fairly", with a view to encouraging "productive and harmonious working environments".

Some decisions are excluded from the scheme, such as a decision to end a staff member's employment, as well as higher-order policy decisions of the agency or government more generally. The scheme expressly provides for other decisions, such as a review by the merit protection commissioner of a determination that an employee breached the code, or of a sanction imposed for a breach.

However, it also remains open for an APS employee to seek a review of the decision to begin code of conduct proceedings against them in the first place. An employee may go down that path when it's arguable that the relevant conduct should not properly be dealt with under the code – for example, when the conduct is trivial (and should more appropriately be dealt with informally) or happened out of hours without sufficient connection with the employment (and therefore lies beyond the scope of the Commonwealth's legitimate control).

To seek a review of a decision to begin code proceedings, the employee can simply apply to their agency head, in the manner prescribed by the agency, within the statutory time limit of 120 days of the decision. The employee must state briefly why the review is sought and what outcome they seek.

If the agency head (or their delegate) proceeds to carry out the primary review, they may conduct it in any manner they think fit, though it must:

If an agency has begun code proceedings against a staff member who then applies for a primary review of that decision, the agency is under no obligation to stay the proceedings pending the review's outcome.

However, because the primary review is looking at a narrower question – namely, whether it was lawful and appropriate to begin proceedings under the code, rather than whether the employee breached the code – it's likely to be completed relatively quickly. In those circumstances, and depending on the seriousness of the alleged conduct, it may be prudent to hold off from completing the code investigation, or making a final decision on the breach, to avoid work that would be redundant if the primary review finds in favour of the employee.

Even if the primary review finds that the code proceedings should continue, the employee can then seek "secondary review" of that decision by the merit protection commissioner. To avoid this eventuality, it is actually open for the agency head to refer the primary review directly to the commissioner. This would effectively roll the primary and secondary review processes into one. It would clearly be quicker and possibly more cost-effective – noting, however, that the commissioner may charge the agency a fee for the service.

Nevertheless, directly referring to the commissioner any primary review of the decision to begin code proceedings could save the agency time and money compared with carrying out the primary review itself (which could then be appealed by the employee to the commissioner anyway). If the agency stays the code proceedings pending the review's outcome, and the review is then upheld, it could save the resources it would have otherwise spent in taking the proceedings all the way to its (ultimately unlawful) conclusion.

On that note, the commissioner's express priority for 2015-16 is to promote its fee-for-service for code breach decision-making (including the investigation), on referral from agencies and with the consent of both parties, with a view to handling code proceedings more efficiently. The commissioner could be a very useful resource for agencies in this respect, giving them first-hand guidance on how to draft code decisions with minimal (reviewable) flaws.

The merit protection commissioner (Annwyn Godwin has held the office since 2008) sits within the Australian Public Service Commission, with the overall stated goal to "be efficient" and "add value". Godwin's latest annual report contains important information and data that should be considered when deciding whether to use the commissioner's services.

In 2014-15, Godwin received 161 applications for review (either primary or secondary), in addition to the 42 carried over from the previous year. Nearly half of all applications related to the code of conduct (breaches, sanctions or both), which translates to about 7 to 10 per cent of all code decisions being the subject of merit review.

Most code reviews relate to one of the code's more contentious provisions, subsection (3), which says "an APS employee, when acting in connection with APS employment, must treat everyone with respect and courtesy, and without harassment".

The average time the commissioner takes to finalise a case is 15 weeks, but this excludes time "on hold" for reasons including delay by the agency in providing information. It even takes nine weeks on average to decline to accept an ineligible application. In code matters, the commissioner upheld the agency's decision in 68 per cent of cases regarding breach, and 81 per cent regarding sanction.

Agencies should not begin code proceedings lightly: they are costly and time-consuming. If the conduct is trivial or happened out of hours, and the employee seeks a primary review of the decision to begin the code proceedings in the first place, it may be worthwhile to stay the proceedings (if appropriate) and refer the review directly to the merit protection commissioner. Her decision would also guide the agency on how to make such decisions correctly in the future.

If the review fails and the code proceedings continue, and the employee is found to have breached the code and/or is unhappy with the sanction imposed, the employee may then seek a review of either or both decisions by the commissioner. In an environment where, at that stage, the commissioner strikes down about a third of all breach decisions and a fifth of all sanction decisions, it is imperative that code decisions are as robust and defensible as possible. The most straightforward way for an agency to learn how to do that? The commissioner herself is willing to teach.

John Wilson is the managing legal director at Bradley Allen Love Lawyers and an accredited specialist in industrial relations and employment law. john.wilson@bradleyallenlove.com.au