Application to refer breach of public sector standards claim

Breach of public sector standards claim

A breach of public sector standards claim is a claim made by a person to a public sector body (meaning an agency, employing authority, ministerial office or non-SES organisation as per the meaning given in the Public Sector Management Act 1994 section 3(1)) on the ground that the public sector body breached a particular public sector standard in taking action to which the standard applies. 'Taking action' by a public sector body includes making a decision, and failing to take, or delaying taking, action.

Public sector standards are set by the Public Sector Commissioner, and a breach of public sector standards claim can be made for five areas of human resources activity: Employment; Grievance Resolution; Performance Management; Redeployment; and Termination.

A breach of public sector standards claim must be made in writing to the relevant public sector body in accordance with the Public Sector Management (Breaches of Public Sector Standards) Regulations 2005 (BPSS Regulations). The public sector body then has 21 calendar days to make reasonable attempts to resolve the claim (the agency resolution period).

Public Sector Commission guidance on how to make a breach of public sector standards claim to a public sector body can be found here.

Application to refer breach of public sector standards claim

From 1 July 2025 an application to refer breach of public sector standards claim to the Commission may be made by a person when:

A breach of public sector standards claim has been made (see above) in relation to one of the following specified public sector standards:
- the Employment Standard regarding a transfer decision only
- the Grievance Resolution Standard
- the Performance Management Standard
- the Redeployment Standard
- the Termination Standard
- any other specified public sector standard that has been prescribed by regulations
The claim has not been resolved by agreement or withdrawn
The agency resolution period has passed (21 days)
It has not been more than 28 days since the agency resolution period has passed
- In accordance with section 29(3) of the Industrial Relations Act 1979 the Commission may accept a referral that is made outside of the 28-day time limitation if it considers that it would be unfair not to do so. For example, it may be that the parties continued to attempt to resolve the claim after the 21-day agency resolution period concluded.
The claimant is seeking the Commission's assistance with resolving the claim by conciliation and/or arbitration

If an application to the Commission is made to refer a breach of a public sector standards claim that relates to a transfer decision that has not yet been given effect in accordance with the BPSS Regulations, the decision to transfer is automatically stayed pending the Commission's decision on the claim, unless otherwise ordered by the Commission or the claim is withdrawn. This means the decision to transfer is temporarily suspended. From 1 July 2025 transfer means the permanent movement of an employee from an office, post or position in a public sector body to another office, post or position with the same level of classification in a public sector body; It does not include movement of an employee from an office, post or position in a public sector body because of an appointment of the employee to another office, post or position made following completion of a recruitment, selection and appointment process to fill a vacancy. See regulation 3 of the BPSS Regulations.

Breach of public sector standards claims regarding recruitment, selection, secondment and temporary deployment (acting) decisions cannot be referred to the Commission. These claims can only be referred to the Public Sector Commissioner by the public sector body.

The Commission's powers

If the Commission decides that a public sector body breached a specified public sector standard in taking action to which the standard applied, it may:

order that the action taken by the public sector body in breach of a standard be quashed (made void)
order that the process for taking the action be recommenced from the beginning or from a specific stage
direct the public sector body to take specific steps in the recommenced process
order the public sector body to take specified action

The Commission cannot award compensation even if it is determined that a standard has been breached.

The Commission may dismiss a referral of a breach of public sector standards claim that relates to a decision to transfer if the Commission is satisfied that the claim is about only that person's competitive merit as an employee.

Transitional arrangements

A breach of public sector standards claim referred to the Public Sector Commission before 1 July 2025 cannot be referred to the Commission.
An unresolved breach of public sector standards claim lodged before 1 July 2025, of the kind eligible to be referred to the Commission from 1 July 2025, that has not been referred to the Public Sector Commission can only be referred to the Commission.
If an unresolved breach of public sector standards claim lodged before 1 July 2025 about the Employment Standard regarding a transfer decision only is referred to the Commission, the following pre-1 July 2025 definition of transfer will apply: transfer means the permanent movement of an employee from an office, post or position in a public sector body to another office, post or position with the same level of classification in a public sector body.

Critical information

You can make an application to refer a breach of public sector standards claim by filing a Form 24 - Application to Refer Breach of Public Sector Standards Claim.
This form is not to be used for an unfair dismissal application or challenging disciplinary action. A Form 5 – Application to Refer Public Sector Matter is to be used by state public sector employees when initiating any of the public sector matters detailed in the Public Sector Matters table.
Information on support for your health and wellbeing can be found here.
Parties have a right to legal representation. Information on representation can be found here.

Please refer to the Commission's Fact Sheets for further guidance on proceedings at the Commission.

Helpful quicklinks

Fact sheets

Applications and forms

Coverage and jurisdiction

Step-by-step guidance on the referral of breach of public sector standards claim process

Determining eligibility

Who can make an Application?

You can make an application to refer breach of public sector standards claim to the Commission if you have:

made a breach of public sector standards claim to a public sector body in writing and in accordance with the public sector body's procedures for breach of public sector standards claims and the BPSS Regulations
The claim alleges a breach of one of the following public sector standards:
- the Employment Standard regarding a transfer decision only
- the Grievance Resolution Standard
- the Performance Management Standard
- the Redeployment Standard
- the Termination Standard
- any other specified public sector standard that has been prescribed by regulations
not resolved the claim by agreement or withdrawn the claim
waited until the agency resolution period has passed (21 days since you made the claim)

Who cannot make an Application?

If you have not yet lodged a breach of public sector standards claim to the relevant public sector body in accordance with the BPSS Regulations, you are not eligible to make an application using the Form 24. More information on lodging a breach of public sector standards claim can be found on the Public Sector Commission’s webpage How to lodge a claim.

If it has not yet been 21 days since you lodged your breach of public sector standards claim with the public sector body, you cannot refer your claim to the Commission until after this period has passed. This period is referred to as the agency resolution period and during this time, you should make reasonable attempts to resolve your claim directly with the public sector body.

If your breach of public sector standards claim relates to the Employment Standard regarding recruitment, selection and appointment; acting; or secondment, and remains unresolved after 21 days of being lodged with the public sector body, the public sector body must refer your claim to the Public Sector Commission. Only the Public Sector Commission can assist with resolving unresolved breach of public sector standards claims relating to alleged breaches of the Employment Standard for recruitment, selection and appointment; acting; or secondment matters. More information on the Public Sector Commission’s resolution procedures can be found on the Public Sector Commission’s webpage Conciliation, review and determination.

Submitting an application

How do I submit an Application?

To start an application, you must fill in a Form 24 - Application to Refer Breach of Public Sector Standards Claim, which may be lodged in the Registry of the Commission using the online lodgment system, by email, in person or by post. You need to attach a copy of the breach of public sector standards claim made to the public sector body to the Form 24.
You are not required to have a representative and can represent yourself. For information on representation and representing yourself, please click here.

Who is the respondent?

The respondent will be the public sector body that you made the breach of public sector standards claim to.

What happens next?

After you have submitted your Form 24, the Commission’s Registry will:

check the form to make sure that it is complete and contains all the required information;
if the form is complete, send a copy of it to you for your records; and
serve a copy of it on the respondent(s).

We will provide a copy of this form and any attachments to the respondent. We may also provide this to any representative/s.

If the Form 24 is incomplete, it may cause delays.

A public sector body that is served with a Form 24 and wants to respond to the application must file a response using a Form 4 – Response (General) within 21 days after being served. Pursuant to regulation 62G(6) of the Industrial Relations Commission Regulations 2005, a response must, in summary form, specify the facts on which the public sector body relies and specifically admit or dispute, either with or without qualification, each part of the application.

The Commission will provide you with a copy of any response that is filed.

The referral will be allocated to a Commissioner and then generally listed for a conciliation conference.

Conciliation conference

What is a conciliation conference?

A conciliation conference is a conference conducted by a Commissioner who can help the parties to resolve their employment dispute. The purpose of the conciliation is to explore whether an agreement can be reached between the parties, not to decide who is right or wrong.

Conciliation conferences are private, confidential and are conducted on a 'without prejudice' basis. This means that what is discussed at a conciliation conference cannot be repeated outside the conciliation conference or used against a party later, except in some limited circumstances required by law. This allows the parties to explore possible settlement options without fear of the other side using any offers or concessions made at the conference as an admission to various aspects of a claim.

The conference is not recorded, and no transcript is produced. Any visual or audio recording is strictly prohibited.

Conciliation can occur over one or more conferences on one or more dates.

An agreement may be reached during or after the conference, allowing the parties to have control over the outcome before the matter reaches the hearing stage. In contrast, if the matter goes to hearing, the Commission will decide the outcome of the matter.

For more information please read the Commission’s conciliation conference fact sheet by clicking here.

For more information please see the Commission’s conciliation conference video by clicking here.

Possible outcomes of conciliation

Agreement may be reached during or after the conference. If the parties do reach an agreement, it is common to put the agreement in writing. Usually, the claim is then discontinued or withdrawn.
If agreement is not reached, the Commission may hold further conferences depending on the circumstances, or list the matter for hearing.

Hearing

What is a hearing?

If the parties do not reach an agreement at the conciliation conference, then a hearing is held. A hearing is where the Commission receives arguments and evidence from both parties and makes a binding decision on a matter. It usually takes place in a court room. There are two types of hearings: interlocutory or preliminary hearings and substantive hearings.

Interlocutory or preliminary hearings

There may be issues that have to be determined by the Commission before the merits or substance of an application can be dealt with. These preliminary (or interlocutory) hearings may relate to an issue with the employee’s claim that needs to be resolved before the rest of the matter can proceed, such as an application for discovery of documents or whether the Commission has jurisdiction to deal with the application.

There may be one or more interlocutory hearings before the substantive hearing to deal with preliminary or procedural issues.

Directions hearings are similar to preliminary hearings and are designed to allow the parties and the Commission to work out:

what the issues are that the Commission will need to decide at a final hearing;
what steps can be taken to make sure those issues are decided in a fair and efficient way; and
when those steps will happen.

This can include setting out a timeline for when things should occur such as discovery, or when documents are to be filed with the Commission, such as outlines of submissions or witness statements.

Substantive hearing

A substantive hearing is where the Commission hears and determines the substance or merits of the employment or industrial issues in dispute. This is where you or your representative can present evidence to support your application.

For more information, please read the Commission's hearing fact sheet by clicking here.

For information on evidence, please read the Commission's evidence fact sheet by clicking here.

For information on representation and representing yourself, please read the Commission's representation fact sheet by clicking here.

Possible outcomes of a hearing

The Commissioner who hears the evidence and arguments might make a decision about the claim:

at the hearing, after all evidence and arguments are presented; or
after the hearing, by “reserving” the decision.

If the Commissioner “reserves” the decision, this means the Commissioner needs time to review everything that has been presented and consider the issues before making any orders or giving a decision.

If your claim is unsuccessful, the Commission will usually dismiss the claim.

If your claim is successful, the Commission may:

order that the action taken by the public sector body in breach of a standard be quashed (made void);
order that the process for taking the action be recommenced from the beginning or from a specific stage;
direct the public sector body to take specific steps in the recommenced process; or
order the public sector body to take specified action.

The Commission cannot make an order for compensation for loss or injury caused by the breach of a public sector standard.

The Commission may dismiss an application to refer breach of public sector standards claim that relates to a decision to transfer you if the Commission is satisfied that the claim is about only your competitive merit as an employee.

The Commission’s orders are binding and enforceable. If anyone does not comply with the Commission’s orders, an enforcement application can be made to the Industrial Magistrates Court. That Court can make orders for penalties.