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Holcombe v State of Queensland (Department of Housing and Public Works)

 

[2020] QIRC 195

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

PARTIES:

Holcombe, Janelle

(Appellant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

PSA/2020/274

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

19 November 2020

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

  1. That the appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the appellant was not permanently appointed – where the incumbent of the role was returning – consideration of ‘the position’ – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’.

Acts Interpretation Act 1954 (Qld) s 14A

LEGISLATION AND

DIRECTIVES:

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6

Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C

Public Service Act 2008 (Qld) s 120, s 149, s 149A, s 149B, s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Katae v State of Queensland & Anor [2018] QSC 225

CASES:

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Mrs Janelle Holcombe (the Appellant) has filed an appeal against a conversion decision (the decision) made by Ms Chhaya Mehta (the decision maker), A/Senior Human Resources Business Partner for the State of Queensland (Department of Housing and Public Works) (the Respondent, the Department). 
  1. [2]
    Mrs Holcombe is currently substantively employed in the role of AO3 Assistant Finance Officer within Advisory Services, Queensland Shared Services (QSS) with the Respondent.
  1. [3]
    However, she has been continuously performing the duties of AO4 Finance Officer within Advisory Services, QSS (the AO4 position) since 20 August 2018.[1]

The Decision

  1. [4]
    The terms of the decision were contained in correspondence from the decision maker dated 20 October 2020 (the decision letter). 
  1. [5]
    Mrs Holcombe stated that she received the correspondence the following day, 21 October 2020.[2]  The Department instead asserted that the correspondence was provided to her on 20 October 2020.[3]
  1. [6]
    The decision subject of this appeal is the Department’s determination not to permanently convert Mrs Holcombe’s employment to the higher classification level – that is, to the AO4 position currently held. 

Jurisdiction

Decision against which an appeal may be made

  1. [7]
    Section 194 of the Public Service Act 2008 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision “…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.”
  1. [8]
    Section 197 of the PS Act allows for an appeal to be heard and decided by the IRC.  An appeal is initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.
  1. [9]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Mrs Holcombe meets that requirement.
  1. [10]
    I am satisfied that the conversion decision made by the Department is able to be appealed.

Timeframe for appeal

  1. [11]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. 
  1. [12]
    The decision was given to Mrs Holcombe on either 20 or 21 October 2020.[4] 
  1. [13]
    The Notice of Appeal was filed with the Industrial Registry on 27 October 2020. 
  1. [14]
    I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [15]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [16]
    The appeal is not conducted by way of re-hearing,[5] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[6] 
  1. [17]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.[7]
  1. [18]
    The issue for my determination is whether the decision not to convert Mrs Holcombe’s employment status to the higher classification level was fair and reasonable in the circumstances.[8]

 What decisions can the IRC Member make?

  1. [19]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against; or
  2. Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  3. Set the decision aside and substitute another decision.

Submissions

  1. [20]
    In accordance with the Directions Order issued on 27 October 2020, the Department filed written submissions.  Mrs Holcombe filed written submissions in reply.
  1. [21]
    Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

The decision of 20 October 2020 (subject to this appeal)

  1. [22]
    The decision maker conveyed the following reasons for not permanently converting Mrs Holcombe to the higher classification level:[9]

The reasons for the Deputy Director-General’s decision are:

  • the purpose of your current placement in the position of AO4, Finance Officer within Advisory

Services, QSS, is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.

  • on the return of the substantive employee on 1 December 2020, there will no longer be a

continuing need for you to be engaged in the position of AO4, Finance Officer within Advisory Services, QSS.

Appeal Notice

  1. [23]
    Mrs Holcombe set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 27 October 2020. Those reasons are summarised as follows:

a) That she meets all the Higher classification conversion checklist.

b) Eligibility for Review: 

Mrs Holcombe is a public service officer assuming the duties and responsibilities of a higher classification role, engaged as same for more than 1 year and within the same agency.  (Date commenced 2 October 2017).

c) Merit:

Mrs Holcombe is not subject to any performance improvement process and not subject of any unresolved performance concerns. 

Within the last 2 years, she has applied for two Expressions of Interest within the unit and has been merit-listed for both.

d) Genuine operational requirements: PS Act s 149C(4A)(a)

There are currently 4 vacancies at Level 4 within QSS Assets.  One of the 3 vacancies is a “permanent operational position” vacancy, whilst the remaining three vacancies have resulted from incumbents’ temporary transfer / secondment arrangements. The work has been performed by four people, including Mrs Holcombe; however, particular people have not been designated in a particular role. The work is consistent, ongoing and not project related.

She has been continuously fulfilling Level 4 roles for the last 3 years. Her Team Leader supports Mrs Holcombe’s application and specifically states that she will be retained in a Level 4 role as it is an operational requirement and is willing to designate Mrs Holcombe to the “permanent operational position” vacancy if required.

 e) Reasons for decision previously made: PS Act, s 149C, (4A)(b)

Whilst the decision letter stated that “on the return of the substantive employee on 1 December 2020 there will no longer be a continuing need for you to be engaged in the position of AO4, Finance Officer within Advisory Service, QSS”, Mrs Holcombe’s Team Leader had already advised that she would be “…continuing in an AO4 role for operational requirements but would be sitting under a different position number.” 

Mrs Holcombe’s application is supported by a letter from her Team Leader.

Respondent submissions

  1. [24]
    The Department’s submissions, filed 3 November 2020, can be summarised as follows:

a) Employment chronology:

 

Start date

End date

Classification

Position

Position No.

Reason

 

1 July 2012

Present

AO3

Assistant Finance Officer, QSS

Substantive position

Permanently employed

1

2 Oct 2017

27 Oct 2017

AO4

Finance Officer, QSS

76020237

Backfill incumbent - on leave

 

28 Oct 2017

26 Nov 2017

AO3

Assistant Finance Officer, QSS

Substantive position

Reverted to her substantive position

2

27 Nov 2017

1 Jan 2018

AO4

Finance Officer, QSS

76019589

Backfill incumbent - on leave

3

2 Jan 2018

27 July 2018

AO4

Finance Officer, QSS

76020237

Backfill incumbent -temporarily acting in another position

 

28 July 2018

14 Aug 2018

AO3

Assistant Finance Officer, QSS

Substantive position

Took a period of annual leave (paid at AO4)

 

15 Aug 2018

19 Aug 2018

AO3

Assistant Finance Officer, QSS

Substantive position

 

4

20 Aug 2018

2 Dec 2018

AO4

Finance Officer, QSS

76019589

Backfill incumbent -temporarily acting in another position

5

3 Dec 2018

19 May 2019

AO4

Finance Officer, QSS

76018929

Backfill incumbent -temporarily acting in another position

6

20 May 2019

8 Dec 2019

AO4

Finance Officer, QSS

76018357

Backfill incumbent -temporarily acting in another position

7

9 Dec 2019

20 Dec 2019

AO5

Senior Finance Officer, QSS

76020166

Backfill incumbent -temporarily acting in another position

8

21 Dec 2019

30 June 2020

AO4

Finance Officer, QSS

76018357

Backfill incumbent -temporarily acting in another position

9

1 July 2020

2 Aug 2020

AO4

Finance Officer, QSS

76019589

Backfill incumbent -temporarily acting in another position

10

3 Aug 2020

17 Aug 2020

AO5

Senior Finance Officer, QSS

76008627

Backfill incumbent – on leave

11

18 Aug 2020

23 Sept 2020

AO4

Finance Officer, QSS

76019589

Backfill incumbent -temporarily acting in another position

 

Mrs Holcombe submits her conversion request

12

24 Sept 2020

4 Oct 2020

AO4

Finance Officer, QSS

76019589

Backfill incumbent -temporarily acting in another position

13

5 Oct 2020

23 Oct 2020

AO5

Senior Finance Officer, QSS

76020570

Backfill incumbent – on leave

14

24 Oct 2020

30 Nov 2020

AO4

Finance Officer, QSS

76019589

Backfill incumbent -temporarily acting in another position

The Department notes that Mrs Holcombe’s temporary placement in various AO4, Finance Officer positions has been extended on 15 occasions.

b) Merit:

The Department agrees that there are no performance concerns.

c) Background:

On 23 September 2020, Mrs Holcombe emailed her request to be permanently appointed as an AO4/4. 

d) By correspondence dated 20 October 2020, Mrs Holcombe was advised that her conversion request was declined.

d) Mrs Holcombe’s current temporary AO4 placement is to backfill the substantive employee, who is relieving in another position.  Such a scenario is contemplated at clause 4.2 of the Directive, where use of temporary engagement is permissible in the circumstances.

e) There will be no continuing need for Mrs Holcombe to continue in the AO4 position (76019589), upon the return of the position incumbent.

f) Genuine operational requirements: PS Act, s 149C, (4A) and Directive, cl 6.2

The Department submits that it does not have a genuine operational need to permanently employ two people in the same position (76019589).  Nor is it appropriate or viable to do so in that specific position.

Mrs Holcombe has asserted that there is a permanently vacant AO4 Finance position within QSS.  The Department has identified two permanently vacant positions within QSS; however the ongoing requirement of these positions is uncertain due to the withdrawal of services by QSS clients.

The Department refers to the wording of the PS Act and Directive, specifically that the employee be appointed “to the position at the higher classification level.”  The significance being that Mrs Holcombe can only request and be considered for the specific position she is currently performing at the time of submitting the conversion request.  The Department contends that an employee cannot request, and the chief executive is not required to consider, “equivalent at level positions within the department when assessing an employee’s conversion request…the presence of two permanently vacant AO4, Finance Officer positions with QSS is irrelevant, as the Appellant is not temporarily performing higher duties in either position.”

g) Reasons for decision previously made: PS Act, s 149C, (4A) and Directive cl 6.2

The Department contends that no previous decisions about Mrs Holcombe have been made by the chief executive or delegate.

h) Written notice:

A written notice was provided to Mrs Holcombe advising of the decision not to convert her to AO4 stating: the reasons for the decision, total continuous period employed at the higher classification level, and how many times her engagement at the higher classification level had been extended. 

The written notice did not “detail the reasons for each decision previously made, or deemed to have been made, under section 149C of the PSA, in relation to the Appellant during their continuous period of employment at the higher classification level” as no such decisions have been made by the chief executive or delegate.

The Department asserts that the delegate has complied with s 149C of the PS Act and Directive in making the decision to refuse the conversion request.

i) The Department states that the decision to refuse Mrs Holcombe’s conversion request is fair and reasonable.  Further, that the decision was made in accordance with s 149C of the PS Act and the Directive.

Appellant’s submissions in reply

  1. [25]
    In response to the Department’s written materials above, Mrs Holcombe’s reply submissions filed 5 November 2020 can be summarised as follows:

 

a) In the Higher classification conversion checklist, one of the “eligibility for review” questions is “1.2 Has the employee been engaged in the same role at the higher classification for a continuous period of at least one year?” 

The Department submission has interpreted this to mean “exactly the same job position at this higher level”. 

Mrs Holcombe’s records her disagreement with this interpretation.  She instead asserted that she has been engaged in an AO4 Finance Officer role within QSS for more than 12 months.  There are a number of individual positions at this level and “each position is identical in its role and responsibilities namely, performing monthly reconciliations, reviews, revaluations, validations and complex data processing for various Government clients as allocated by the Assets Team Leader.”

b) Mrs Holcombe states “I believe that non-eligibility against criterion 1.2 is the basis for my application rejection.”

c) She refutes the Department’s submission that her current placement at AO4 level is temporary and will be discontinued when the incumbent returns from secondment.  “Both my team leader and my line manager have stated that they see me remaining at AO4 level for the foreseeable future for operational reasons and the continuing personnel shortages in my team.”

d) Mrs Holcombe does not accept the Department’s submissions regarding confinement of an ability to appoint to “the position” only, so defined by the particular position number rather than to the role.  Further, she contests the Department’s submissions that no previous decision has been made by the chief executive or delegate.

The review of a decision as to whether or not to permanently appoint a public service employee acting in a position at a higher classification level

  1. [26]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level, in the above circumstances, is contained in the IR Act, PS Act and in the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
  1. [27]
    Section 149C of the PS Act provides (Emphasis added):

149C  Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  2. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  3. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  2. (b)
    a non-industrial instrument employee;
  3. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department’s chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level;
  2. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department’s chief executive must decide the request within the required period.
  1. (4A)
    In making the decision, the department’s chief executive must have regard to
  1. (a)
    the genuine operational requirements of the department; and
  2. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating
  1. (a)
    reasons for the decision; and
  2. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  3. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  4. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (6)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  2. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [28]
    Further, section 194(1)(e)(iii) of the PS Act Act provides (Emphasis added):

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (e)
    a decision (each a conversion decision)—
  1. (iii)
    under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
  1. [29]
    It is noted that Directive came into effect on 25 September 2020. 
  1. [30]
    The Directive relevantly provides:

3. Application

3.4 The requirement to advertise roles in the directive relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive.

4. Principles

4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.

4.2Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

>(a) when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return

>(b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles

>(c) to perform work for a particular project or purpose that has a known end date

>(d) to perform work necessary to meet an unexpected short-term increase in workload

4.3Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

5. Employee may request to be appointed at the higher classification level

5.1Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.

5.2To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:

>(a) have been seconded to or assuming the duties and responsibilities of the higher classification level

>(b) for a continuous period of at least one year

>(c) be eligible for appointment to the higher classification level having regard to the merit principle.

5.3Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:

>(a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and

>(b) each subsequent year where the employee continues their engagement at the higher classification level in the same role.

5.4An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.

5.5The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

6. Decision making

6.1When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

(a) the genuine operational requirements of the department, and

(b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

7. Statement of reasons

7.1A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:

(a) set out the findings on material questions of fact, and

(b) refer to the evidence or other material on which those findings were based.

7.2A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.

8. Appeals

8.1An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.

8.2In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.

9. Exemption from advertising

9.1Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive. 

10. Transitional provisions

10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer.

11. Definitions

Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.

Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.

Non-industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency’s establishment list that does not have an ongoing incumbent appointed.

  1. [31]
    The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[10]
  1. [32]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [33]
    The stated purpose of the Directive is:[11]
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.

1.2 This directive:

>(a) highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level

>(b) supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle

>(c) sets out procedures for requests and decisions.

Findings

  1. [34]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [35]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Eligibility for review of conversion

 

  1. [36]
    Section 149C(1) and (3) of the PS Act provides that an employee is eligible to request permanent appointment at the higher classification level after the end of one year.  This is restated at clause 4.1 of the Directive.
  1. [37]
    It is not a point of dispute between the parties that Mrs Holcombe is eligible to request conversion to the higher classification level.

Purpose

  1. [38]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [39]
    In summary, the Directive’s status as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of the Directive is to be preferred to any other interpretation.
  1. [40]
    In that regard, I recognise that one of the stated purposes of the Directive is to support “…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle.”[12]

Decision criteria that must be considered

  1. [41]
    The PS Act and the Directive provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  1. Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. The genuine operational requirements of the department. 
  1. The reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. [42]
    Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating:

a) The reasons for the decision; and

b) The total continuous period for which the person has been acting at the higher

 classification level in the department; and

c)  How many times the person’s engagement at the higher classification level has

  been extended; and

d)  Each decision previously made, or taken to have been made, under this section in

 relation to the person during the person’s continuous period of employment at the

 higher classification level.

The notice provided to the employee must:

a) Set out the findings on material questions of fact, and

b) Refer to the evidence or other material on which those findings were based.

Merit

  1. [43]
    There is no dispute with respect to Mrs Holcombe’s merit.  This is confirmed in the decision letter, Team Leader’s letter of support and the parties’ written submissions.
  1. [44]
    Mrs Holcombe has been engaged in a series of successive higher classification arrangements over a significant time period.  Combined with the positive comments about her work, I find this presents no impediment to Mrs Holcombe’s conversion.

What is the position subject of this appeal?

  1. [45]
    Before assessing whether there are any genuine operational requirements of the department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.
  1. [46]
    Mrs Holcombe submits:[13]

I have been continuously employed as an AO4 Finance Officer within the QSS Assets team where there are a number of individual positions at this level. Each position is identical in its role and responsibilities namely, performing monthly reconciliations, reviews, revaluations, validations and complex data processing for various Government clients as allocated by the Assets Team Leader. I would thus contend that I meet the required eligibility criterion 1.2 of the eligibility checklist as all the positions in which I have been placed over the last three years are in the AO4 Finance Officer role. I believe that non-eligibility against criterion 1.2 is the basis for my application rejection.

  1. [47]
    Broadly, Mrs Holcombe’s position throughout her material is that there are a variety of positions which are effectively identical within her workplace, some of which are vacant, and that she could be permanently appointed to any one of those.
  1. [48]
    The PS Act, at s 149C(1)(c), provides that s 149 applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the department to permanently appoint Mrs Holcombe is confined to the position into which she has been seconded at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term ‘the position’ is inherently more specific than ‘higher classification level’; many positions could be described as being of a higher classification level.
  1. [49]
    In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
  1. [50]
    Mrs Holcombe’s position is not so broad as to be described as AO4 Finance Officer within a particular team or workplace, or simply AO4 Finance Officer without further constraint. It is more precise than that. That is best exemplified by considering the nature of Mrs Holcombe’s most recent secondment.
  1. [51]
    Mrs Holcombe was engaged to backfill an incumbent position-holder from 24 October 2020 to 30 November 2020, while the incumbent was temporarily acting in another position. The position held by the incumbent was numbered 76019589, which has the title and classification AO4 Finance Officer. That was the position to which Mrs Holcombe was seconded. True enough, she may not have been informed at that stage of that precise aspect of her secondment, but it was clearly the underlying basis for it to occur and appears in the departmental records.
  1. [52]
    Put another way, Mrs Holcombe’s secondment was said to be for the purpose of backfilling the ‘incumbent’ employee. The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position number. When they return, they are returning to that precise position.
  1. [53]
    If ‘the position’ were merely ‘AO4 Finance Officer’ as contended, it would require the department to consider Mrs Holcombe against every position with the same title and classification. There would be no inherent restraint to only consider positions within the same workplace. It would require the department to consider every such position, and then consider whether there are operational reasons presented in every position.
  1. [54]
    The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.
  1. [55]
    By way of contrast, a broader ambit of the type proposed by Mrs Holcombe is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department’s chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same. Following the review, the department chief executive may “offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer”. Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.
  1. [56]
    The language of s 149C is narrower: the employee may ask the department’s chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.
  1. [57]
    The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad-ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They did not do so.  
  1. [58]
    The Directive, in setting out its purpose at cl 1.2(b), provides that it “supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle”. At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of the Directive as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Cl 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for the Directive. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by the Directive. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within the PS Act at s 149C. That same reasoning applies to a number of similar clauses in the Directive, which use terms such as ‘role’, ‘a position’ and the like.
  1. [59]
    It is also true that the decision letter does not specify the position number, but rather refers to the ‘role’ and ‘position’ as being AO4, Finance Officer within Advisory Services, QSS. No doubt, that is the cause of some understandable confusion on the part of Mrs Holcombe. Yet, it does not change the fundamental construct established in s 149C and supplemented by the Directive, that provides for employees to be reviewed against and appointed to ‘the position’. Neither, for reasons further in this decision, does that unfortunate use of terminology undermine the fairness and reasonability of the decision itself.
  1. [60]
    To consider the position as merely AO4 Finance Officer, and afford no relevance to the position number, would be to strip ‘the position’ of a key identifying and distinguishing feature. Having regard to s 149C and the Directive, that would create an uncontemplated broadening of the ambit of the review.
  1. [61]
    To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review.
  1. [62]
    In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review. That is identified not only by the title and classification, but also by the position number.
  1. [63]
    It follows that the position the subject of the review was AO4 Finance Officer, position number 76019589.
  1. [64]
    In reviewing the decision, and despite the unfortunate wording in the decision letter, that is indeed the position against which Mrs Holcombe was reviewed. That is most apparent in the decision maker’s reasoning that the incumbent will be returning imminently to the position which they had previously occupied and to which Mrs Holcombe had been seconded, and so there was no longer a need for her to be seconded. The decision was fair and reasonable in that the review was conducted against the correct position. 

Genuine operational requirements of the department

  1. [65]
    The decision provided:

After considering your request to be permanently employed in the position of AO4, Finance Officer within Advisory Services, QSS, and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement.  The reasons for the Deputy Director-General’s decision are:

>

  • the purpose of your current placement in the position of AO4, Finance Officer within Advisory

Services, QSS, is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.

  • on the return of the substantive employee on 1 December 2020, there will no longer be a

continuing need for you to be engaged in the position of AO4, Finance Officer within Advisory Services, QSS.

  1. [66]
    The Directive, at cl 4.2, provides some circumstances which would support the temporary engagement of an employee at a higher classification level. Those include backfilling for sick leave, specific project work, and the like. The Department submits that the secondment of Mrs Holcombe falls squarely within the confines of cl 4.2(b) of the Directive, which relates to an existing employee being absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those roles.
  1. [67]
    The thrust of Mrs Holcombe’s submissions is that there is a need for her to undertake the work. She argues that the work is ongoing, there are a number of people backfilling in her workplace, and a number of identical or similar positions within that workplace. All of that may well be true. Clearly, Mrs Holcombe is a valued colleague within her workplace.
  1. [68]
    I accept that Mrs Holcombe’s team leader seeks that she remains in that workplace. However, the authority to determine the review lies squarely with the department chief executive or their delegate. It is not a question of merit or whether there is work to be done. The question is only whether the genuine operational requirements relied upon by the department to deny Mrs Holcombe’s request are fair and reasonable. 
  1. [69]
    The review is conducted with respect to the position occupied by Mrs Holcombe. It is not a more broad-ranging consideration of whether she should continue be employed at AO4 level in her present workplace. Only one person may occupy the position numbered 76019589 at any one time. I accept that the person that Mrs Holcombe is backfilling will imminently return to that position. It is not a circumstance where their return is speculative, or there is no incumbent. There does not appear to be any contest that the incumbent of that position is scheduled to imminently return. The secondment is of the type contemplated within cl 4.2(b) of the Directive, being a circumstance that would support temporary rather than permanent engagement.
  1. [70]
    Altogether, that presents a genuine operational requirement for the department, which prevents Mrs Holcombe being permanently appointed to her seconded position. Therefore, that aspect of the decision was fair and reasonable. 

The effect of any previous decisions

  1. [71]
    The Directive came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020. The decision was dated 20 October 2020.
  1. [72]
    S 149C(4)(b) provides that the department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
  1. [73]
    An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of the Directive.
  1. [74]
    Given the timing of the legislative instruments coming into effect, the date of the decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Mrs Holcombe. Further, the term ‘taken to have been made’ relates to s 149C(6), which provides that if the department does not make a decision within the requisite review period, they are taken to have refused the request.
  1. [75]
    It follows that the decision was fair and reasonable in that respect. 

Conclusion

  1. [76]
    Mrs Holcombe has been seconded to the position AO4 Finance Officer, position number 76019589. That secondment was to backfill another employee, the incumbent of that position. Mrs Holcombe has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
  1. [77]
    S 149C of the PS Act applies to an employee seconded to or acting at a higher classification level in the department, for at least 1 year, and who is eligible to be appointed to ‘the position’ at the higher classification level with regard to the merit principle. The employee may ask the department chief executive to appoint them to the position permanently. In determining that review, the department must have regard to the genuine operational requirements of the department and any previous reviews.
  1. [78]
    Mrs Holcombe’s appeal contends that there are a variety of positions in her workplace that are substantially the same, and she should be appointed to any one of those. In effect, she proposes that ‘the position’ be given a very broad meaning, so as to encapsulate those other vacancies within her workplace.
  1. [79]
    If the interpretation proffered by Mrs Holcombe were applied, the words ‘the position’ would be stripped of meaning. That section does not use the term ‘role’, or ‘a position’, and is contrasted with the more general ‘higher classification level’.
  1. [80]
    The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to ‘the position’ occupied by the employee way of secondment at the time of seeking the review. It is not an unconstrainted review into similar positions, such as positions with the same title and classification. The more broadly ranging review that Mrs Holcombe is seeking is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive.
  1. [81]
    I recognise that there is some inconsistent wording applied in the Directive, including terms such as ‘role’, but that is resolved by paying appropriate heed to the context of those terms. In short, the power to grant the request is contained at s 149C of the PS Act, which is supplemented by the Directive. In several instances, the Directive re-phrases or summarises s 149C, particularly when discussing the objects of the Directive, and in doing so uses slightly different terminology. Such instances do not supersede or disturb the precise wording of s 149C.
  1. [82]
    In conducting the review against the appropriate position, the Department reasoned that because the incumbent of the position was imminently returning, that presented a genuine operational reason not to appoint Mrs Holcombe permanently to the seconded position. I have found that decision to be fair and reasonable. As such, I confirm the decision appealed against and dismiss the appeal.
  1. [83]
    I order accordingly.

Orders:

  1. That the appeal is dismissed.

Footnotes

[1] Correspondence from Ms Chhaya Mehta to Mrs Janelle Holcombe, dated 20 October 2020, page 1.

[2] Appeal Notice, filed 27 October 2020, page 3.

[3] Respondent’s submission, filed 3 November 2020, page 4, [32].

[4] The Appeal Notice and Respondent’s Submission have nominated two different dates, although this is not significant as the appeal has been filed in time in either event.

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[6] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[7] Industrial Relations Act 2016 (Qld) s 567(2).

[8] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] - [61]; Industrial Relations Act 2016 (Qld) s 562B.

[9] Correspondence from Ms Chhaya Mehta to Mrs Janelle Holcombe, dated 20 October 2020, page 2.

[10] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[11] Directive 13/20 Appointing a public service employee to a higher classification level, cl 1.

[12] Directive, cl 1.2(a)-(b).

[13] Appellant reply submissions, filed 5 November 2020.

Close

Editorial Notes

  • Published Case Name:

    Holcombe v State of Queensland (Department of Housing and Public Works)

  • Shortened Case Name:

    Holcombe v State of Queensland (Department of Housing and Public Works)

  • MNC:

    [2020] QIRC 195

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    19 Nov 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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