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Hawkins v State of Queensland (Communities, Housing and Digital Economy)

 

[2020] QIRC 226

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hawkins v State of Queensland (Communities, Housing and Digital Economy) [2020] QIRC 226

PARTIES:

Hawkins, Matthew

(Appellant)

v

State of Queensland (Department of Communities, Housing and Digital Economy)

(Respondent)

CASE NO:

PSA/2020/329

PROCEEDING:

Public Service Appeal - Higher Duties Conversion Decision

DELIVERED ON:

23 December 2020

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

The decision appealed against is confirmed.

LEGISLATION:

Public Service Act 2008, s 98, s 149C, s 194r

Industrial Relations Act 2016, s 562, s 562C

Directive 13/20 Appointing a public service employee to a higher classification level.

CASES:

Clair v State of Queensland (Department of Housing and Public Works)[2020] QIRC 220

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

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Sharma v State of Queensland (Department of Housing and Public Works)[2020] QIRC 199

Reasons for Decision

Appeal Details

  1. [1]
    Mr Hawkins is employed by the State of Queensland (Department of Communities, Housing and Digital Economy), ("the Department"), formerly the Department of Housing and Public Works.
  1. [2]
    Mr Hawkins' substantive position is Housing Officer, Housing and Homelessness (AO3) however, since 4 March 2019 he has been continuously seconded to the role of Senior Housing Officer, Housing and Homelessness (AO4).
  1. [3]
    By letter dated 20 October 2020, Acting Director of Human Resources Tully Stewart informed Mr Hawkins that his engagement is to continue according to the terms of the existing temporary placement giving the following reasons:
  • The purpose of your current placement in the position of AO4, Senior Housing Officer within the Bayside HSC is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.
  • On the return of the substantive employee, there will no longer be a continuing need for you to be engaged in the position of AO4, Senior Housing Officer within the Bayside HSC.
  1. [4]
    Mr Hawkins' appeal notice states the reasons for his appeal:

All DPW staff were notified of a recent directive which allows staff who are permanently appointed to a position who have been acting in higher duties for longer than 12 months consecutively to apply for the current position they are backfilling for permanent appointment – I submitted my application for appointment to the DPW HR email address as instructed and received a letter back from HR stating I couldn't be permanently appointed.

Relevant sections of the Act and Directive

  1. [5]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
  1. [6]
    Section 149C of the PS Act relevantly provides

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
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

  1. (2)
    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; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).

(4A)  In making the decision, the department's chief executive must have regard to –

  1. (a)
    the genuine operational requirements of the department; and
  1. (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.

The Directive

  1. [7]
    While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

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.

4.2  Secondment 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:

  1. (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
  1. (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
  1. (c)
    to perform work for a particular project or purpose that has a known end date
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload.

  1. Decision making

6.1  When 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 documents an 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.

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

  1. (a)
    the genuine operational requirements of the department, and
  1. (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.
  1. Statement of reasons

7.1  A 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:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. Appeals

8.1  An 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.

What decisions can the Commission make?

  1. [8]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Department's submissions

  1. [9]
    Mr Hawkins has been performing the higher duties role since 4 March 2019.  In this time, the role has been extended on 14 occasions.
  1. [10]
    At the time of filing his appeal, Mr Hawkins' higher duties role was due to expire on 4 December 2020, which coincides with the date that the substantive employee was due to return to the role.
  1. [11]
    The review criteria at cl 6.2 of the Directive have been considered and the written decision addresses the requirements of s 149C(4A) of the PS Act.
  1. [12]
    The Department says that Mr Hawkins' submissions in support of his conversion were that the substantive incumbent he is backfilling is due to undertake some leave at approximately the same time that his temporary placement in the higher duties role is due to expire.
  1. [13]
    The Department submits that the current higher duties engagement is for the purpose of backfilling the substantive employee.  Clause 4.2 of the Directive provides circumstances which support the temporary engagement of an employee at a higher level. 
  1. [14]
    Clause 6.2 of the Directive provides that when deciding a request, the chief executive must have regard to the genuine operational requirements of the Department. To that end, the Department submits that there will no longer be a need for Mr Hawkins to be placed in the AO4 role once the substantive employee returns to work in their substantive role.
  1. [15]
    The Department says that as it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4 Senior Housing Officer position, it is not appropriate or viable to offer to permanently employ Mr Hawkins in the role.
  1. [16]
    With regard to Mr Hawkins submission that the substantive employee is going to access leave, the Department says it is not appropriate for them to comment on the substantive employee's personal circumstances.
  1. [17]
    However, the Department further submits, that even if the substantive employee were to access a period of leave in the near future, cl 4.2 of the Directive contemplates such a circumstance as one that would support a decision to temporarily engage or place an employee in that position.
  1. [18]
    The Department submits that the written decision provided to Mr Hawkins meets the requirements and that there was not need to consider previous decisions or decisions deemed to have been made under s 149C of the PS Act as no such decisions have been made about Mr Hawkins by the chief executive or delegate.

Was it fair and reasonable for the Department to deny appointment to the higher classification level on the basis of genuine operational requirements?

  1. [19]
    There is no dispute that Mr Hawkins has been performing higher duties in the AO4 role for 19 months and that the engagement in the position has been extended 14 times.
  1. [20]
    Mr Hawkins did not make submissions beyond his initial reasons for appeal.  I have considered the decision letter, the relevant parts of the Directive and the PS Act and the submissions of the Department.
  1. [21]
    The criteria the chief executive must have regard to when deciding the request are provided at s 149C(4A) of the PS Act and at cl 6.2 of the Directive.  As no previous decisions regarding Mr Hawkins' employment have been made under the Directive, the delegate was required to consider the genuine operational requirements of the Department as per s 149C(4A)(a).
  1. [22]
    The phrase 'genuine operational requirements' is defined in neither the PS Act nor the Directive and must therefore:

take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context including surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.

The adjective 'genuine' relevantly means '…being truly, such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.[1]

  1. [23]
    In considering the context of s 149C(4A)(a) of the PS Act, it may be noted that the chief executive of a Department is responsible for "planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act".[2]
  1. [24]
    The Directive sets out some circumstances that would support the temporary engagement of an employee at a higher classification level.  Relevant to this matter, cl 4.2 (b) provides

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' and ' 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.

  1. [25]
    At the time the decision was made, the Department expected the substantive position holder to return to their role.  Even if the substantive position holder commenced a period of leave at around this time, the Department says this still constitutes an appropriate circumstance for temporary engagement in the higher duties role.
  1. [26]
    The Commission has, on several occasions, considered that the return of the substantive incumbent to the position represents a genuine operational requirement supporting the temporary appointment of an employee at a higher classification level.[3]
  1. [27]
    It is clear that Mr Hawkins was backfilling in the higher duties position and that the need for him to backfill in this role will conclude when the substantive employee concludes relieving in the alternative role and returns to the position or alternatively, returns to the position following a period of leave.
  1. [28]
    The decision not to appoint Mr Hawkins to the higher classification level was fair and reasonable in the circumstances.
  1. [29]
    Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [37]-[38].

[2] Public Service Act 2008 s 98(d).

[3] Holcombe v State of Queensland (Department of Housing and Public Works)[2020] QIRC 195 [69]; Sharma v State of Queensland (Department of Housing and Public Works)[2020] QIRC 199 [58], [62]-[65]; Clair v State of Queensland (Department of Housing and Public Works)[2020] QIRC 220.

Close

Editorial Notes

  • Published Case Name:

    Hawkins v State of Queensland (Communities, Housing and Digital Economy)

  • Shortened Case Name:

    Hawkins v State of Queensland (Communities, Housing and Digital Economy)

  • MNC:

    [2020] QIRC 226

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    23 Dec 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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