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

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

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

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

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

PARTIES:

Sharma, Sangeeta

(Appellant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

PSA/2020/305

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

27 November 2020

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

  1. 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’.

LEGISLATION AND DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 14A

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6, 7, 9, 10, 11

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

CASES:

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

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Reasons for Decision

Introduction

  1. [1]
    Mrs Sangeeta Sharma (the Appellant) has filed an appeal against a conversion decision (the decision) made by Ms Chhaya Mehta (the decision maker), Senior Human Resources Business Partner for the State of Queensland (Department of Housing and Public Works) (the Respondent, the Department).  
  1. [2]
    Mrs Sharma is currently substantively employed in the role of AO3 Assistant Finance Officer within Advisory Services, Service Delivery, Queensland Shared Services (QSS) for the Respondent. 
  1. [3]
    However, she has been continuously performing the duties of AO4 Finance Officer within Advisory Services, QSS (the AO4 position) since 25 June 2018.[1]

The Decision

  1. [4]
    The terms of the decision were contained in correspondence from the decision maker dated 22 October 2020 (the decision letter).  
  1. [5]
    The decision subject of this appeal is the Department’s determination not to permanently convert Mrs Sharma’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. [6]
    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. [7]
    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. [8]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Mrs Sharma meets that requirement.
  1. [9]
    I am satisfied that the conversion decision made by the Department is able to be appealed.

Timeframe for appeal

  1. [10]
    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. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received. 
  1. [11]
    The decision was given to Mrs Sharma on 22 October 2020 by email. 
  1. [12]
    The Notice of Appeal was filed with the Industrial Registry on 11 November 2020.  
  1. [13]
    I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [14]
    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. [15]
    The appeal is not conducted by way of re-hearing,[2] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[3]  
  1. [16]
    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.[4]
  1. [17]
    The issue for my determination is whether the decision not to convert Mrs Sharma’s employment status to the higher classification level was fair and reasonable in the circumstances.[5]

  What decisions can the IRC Member make?

  1. [18]
    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. [19]
    In accordance with the Directions Order issued on 11 November 2020, the Department filed written submissions.  Mrs Sharma filed written submissions in reply. 
  1. [20]
    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 22 October 2020 (subject to this appeal) 

[21] The decision maker conveyed the following reasons for not permanently converting Mrs Sharma to the higher classification level:[6]

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

  • The purpose of your current placement in the role of AO4, Finance Officer within Advisory Services, Service Delivery, QSS is to backfill the substantive occupant, while the substantive occupant is relieving in an alternative role.
  • 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, Finance Officer within Advisory Services, QSS.

Appeal Notice

[22] Mrs Sharma set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 11 November 2020. Those reasons are summarised as follows:

  • The decision maker has erred, as they have not given due consideration to the genuine operational requirements of the Department as required by s 149C(4A). Instead, the decision maker has determined not to appoint Mrs Sharma on the basis that the role is substantively owned and there may not be a continuing need for her in the role if the substantive role owner returns after two years of relieving in another role.
  • Neither the PS Act nor the Directive include a role being substantively vacant as a pre-requisite for conversion. Per cl 4.2 of the Directive, the fact that a role is not substantively vacant or that a backfilling arrangement exists may be a consideration as to why appointment should not be made. It is however not a threshold question or a blanket reason to decline an appointment, rather one of a number of considerations involved in assessing the ‘genuine operational requirements of the department’ as required by cl 6.2(a). 
  • The decision maker has failed to give due consideration to the genuine operational needs of the Department and provide their explanation of that consideration per cl 7.1 of the Directive in the outcome letter received. 
  • Mrs Sharma has performed the role for more than two years now without any adverse finding in respect of performance or conduct. Therefore, she has demonstrated merit within the meaning of s 27 of the PS Act.
  • The Decision should be set aside, and substituted with a decision that Mrs Sharma’s employment status be converted to permanent “in a role similar to the role I have been performing within Advisory Services, QSS”. 

Respondent submissions

[23] The Department’s submissions, filed 17 November 2020, can be summarised as follows:

  • The Decision was fair and reasonable, and made in accordance with s 149C and the Directive. 
  • Mrs Sharma’s current temporary higher classification placement is due to expire on 30 November 2020, when the substantive employee is due to return.
  • There are no issues as to merit regarding Mrs Sharma. 
  • Mrs Sharma’s current temporary placement in the AO4, Finance Officer position is to backfill the substantive employee relieving in an alternative position. There will no longer be a continuing need for Mrs Sharma to be placed in that position once the substantive employee returns. 
  • There have been no previous decisions made under s 149C with respect to Mrs Sharma. 
  • With respect to the submission that the decision maker erred in failing to give due consideration to the genuine operational requirements of the department and determined not to appoint the Appellant on the basis that the role she has been acting in is not substantively vacant, the Department reiterates that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same position. 
  • The Directive recognises that there are circumstances where temporary higher classification engagement is warranted. That is set out in cl 4.2, insofar as it relates to an existing employee being absent to perform another role within their agency, and the agency does not use permanent relief pools for those types of roles. 
  • The reasons contained in the Decision addressed the relevant criteria. 
  • The Decision should be confirmed. 

Appellant’s submissions in reply

[24] In response to the Department’s written materials above, Mrs Sharma’s reply submissions filed 19 November 2020 can be summarised as follows:

  • The decision maker erred “as they have considered only that the role I am acting in is substantively owned and in doing so has failed to have regard to the mandatory considerations under s 149C(4A) of the (PS Act).”
  • A decision maker who fails to take mandatory considerations into account has not properly applied the law. 
  • The term ‘genuine operational requirements’ are not defined within the PS Act or the Directive, so the term ought be given its ordinary meaning. The factors are not expressly stated and should be implied from the subject matter, scope and purpose of the Act.
  • The Explanatory Notes evince a clear intention that the only matters to be considered are the genuine operational requirements. Accordingly, any other eligibility or threshold requirements would have been stated in the same way that the eligibility provisions of s 149C(1)(a)-(c) and the exclusionary provisions of s 149C(2)(a)-(c) are explicitly listed. 
  • In contrast to the mandatory criteria in the Act, the circumstances that inform “when it may be viable or appropriate for the temporary engagement of an employee” are outlined in cl 4.2 of the Directive.
  • The inclusion of these circumstances is indicative that they are the type of considerations a decision maker should consider when assessing a s 149C request. They are not the factors a decision maker ‘must’ have regard to in the same way that they must have regard to the criteria in s 149C(4A).
  • The decision maker erroneously treated the lack of a substantive vacancy as a mandatory criteria or threshold question and on that basis alone determined not to approve the request. That approach is a misapplication of the law as a substantive vacancy is not a requirement of the Act or Directive. 
  • The circumstances listed in cl 4.2 are non-exhaustive considerations that may assist in considering the mandatory criteria, they should not displace the requirement to have regard to the genuine operational requirements of the department. 
  • The genuine operational requirements of the department support Mrs Sharma’s permanent appointment in the higher classification. 
  • That conversion should be the outcome of this appeal.

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. [25]
    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. [26]
    Section 149C of the PS Act provides (Emphasis added): 

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

 (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.

         (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.

(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;

               and

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

       (4)  The department’s chief executive must decide the request within the required period.

     (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.

(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. [27]
    Further, section 194(1)(e)(iii) of the PS Act Act provides (Emphasis added): 

 194  Decisions against which appeals may be made

 (1)  An appeal may be made against the following decisions—

 (e)  a decision (each a conversion decision)—

(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. [28]
    It is noted that Directive came into effect on 25 September 2020.  
  1. [29]
    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

  1. 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.
  1. 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
  2. (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
  3. (c)
    to perform work for a particular project or purpose that has a known end date
  4. (d)
    to perform work necessary to meet an unexpected short-term increase in workload

4.3 Under 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

  1. 5.1 Section 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.
  1. 5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
  1. (a)
    have been seconded to or assuming the duties and responsibilities of the higher classification level
  1. (b)
    for a continuous period of at least one year
  2. (c)
    be eligible for appointment to the higher classification level having regard to the merit principle.

  5.3  Under 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:

  1. (a)
    one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  2. (b)
    each subsequent year where the employee continues their engagement at the higher classification level in the same role.
  1. 5.4 An 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.
  1. 5.5 The 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

  1. 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 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.
  1. 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
  2. (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. 6.3 In 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. 
  1. 6.4 Each 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

7.1 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
  2. (b)
    refer to the evidence or other material on which those findings were based.

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

   8.  Appeals

  1. 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. 
  1. 8.2 In 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

9.1 Any 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. [30]
    The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[7] 
  1. [31]
    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. [32]
    The stated purpose of the Directive is:[8]

 1.  Purpose

  1. 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. 1.2 This directive: 
  1. (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
  2. (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
  3. (c)
    sets out procedures for requests and decisions.

Findings

  1. [33]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable.  
  1. [34]
    This involves a review of the decision-making process utilised and the conversion decision arrived at.  

Eligibility for review of conversion

  1. [35]
    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. [36]
    It is not a point of dispute between the parties that Mrs Sharma is eligible to request conversion to the higher classification level.

Purpose

  1. [37]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [38]
    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. [39]
    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.”[9]

Decision criteria that must be considered

  1. [40]
    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. [41]
    Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating:
  1. The reasons for the decision; and
  1. The total continuous period for which the person has been acting at the higher classification level in the department; and
  1. How many times the person’s engagement at the higher classification level has been extended; and
  1. 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:

  1. Set out the findings on material questions of fact, and
  1. Refer to the evidence or other material on which those findings were based.

  Merit  

  1. [42]
    There is no dispute with respect to Mrs Sharma’s merit.  This is confirmed in the decision letter, Team Leader’s letter of support and the parties’ written submissions. 
  1. [43]
    Mrs Sharma has been engaged in a series of successive higher classification arrangements over the relevant time period. Merit is no impediment to Mrs Sharma’s conversion.

What is the position subject of this appeal?

  1. [44]
    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. [45]
    Both parties, in their submissions, do not adequately address the relevance of the term ‘the position’ in s 149C. It is incumbent upon me to interpret the legislation appropriately, as Brennan CJ explained in Project Blue Sky Inc v Australian Broadcasting Authority (citations removed):[10]

However, the interests of persons concerned in the litigation and the assumptions made in the rival submissions cannot divert the Court from its duty to construe the statute. “Judges are more than mere selectors between rival views”, said Lord Wilberforce in Saif Ali v Sydney Mitchell & Co, “they are entitled to and do think for themselves”.

  1. [46]
    In her appeal notice, Mrs Sharma provides that she is seeking to be permanently appointed “in a role similar to the role I have been performing within Advisory Services, QSS”. That is not an outcome that s 149C provides for.
  1. [47]
    The PS Act, at s 149C(1)(c), provides that s 149C 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 Sharma is confined to the position into which she has been placed 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. [48]
    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. [49]
    Mrs Sharma’s higher classification engagement was said to be for the purpose of backfilling an ‘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 name, classification and number. When they return, they are returning to that precise position.
  1. [50]
    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. [51]
    By way of contrast, a broader ambit of the type proposed by Mrs Sharma 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. [52]
    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. [53]
    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 pointedly did not do so.   
  1. [54]
    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. It is relevant to note that the word ‘role’ does not actually appear in section 149C at all.
  1. [55]
    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. [56]
    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.
  1. [57]
    It follows that the position the subject of the review was the AO4 Finance Officer position occupied by Mrs Sharma. The position number is not contained within the materials before me, but that too would specify the precise position occupied by Mrs Sharma.
  1. [58]
    In reviewing the decision, and despite the unfortunate wording in the decision letter, that is indeed the position against which Mrs Sharma 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 Sharma 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. [59]
    The decision provided:

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

  • The purpose of your current placement in the role of AO4, Finance Officer within Advisory Services, Service Delivery, QSS is to backfill the substantive occupant, while the substantive occupant is relieving in an alternative role.
  • 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, Finance Officer within Advisory Services, QSS.
  1. [60]
    Mrs Sharma’s submissions suggest that there is a distinction between the genuine operational requirements of the department and the notions expressed in cl 4.2. She submits that the department has incorrectly established a threshold which is not contemplated within the legislative materials, namely satisfaction of a cl 4.2 element, rather than meaningfully considering the genuine operational requirements of the department. Mrs Sharma submits that, if it were the intention of the legislature to impose such a threshold, it would have been clearly articulated in the PS Act.
  1. [61]
    The Directive, at cl 4.2, sets out the “Circumstances that would support the temporary engagement of an employee”. It is true that slavish concurrence to that clause is not tantamount to considering the genuine operational reasons of the department. However, it is entirely fair and reasonable for the Department to consider those factors in arriving at a conclusion of whether to permanently appoint Mrs Sharma to the position.
  1. [62]
    It is not correct to say the decision maker has allowed those cl 4.2 criteria to usurp their consideration of genuine operational requirements. Neither has the decision maker engaged in what is said to be the artificial imposition of a threshold. If there is a threshold imposed by the words the position, then it is not incorrectly imputed by the decision maker; it is expressly established in s 149C. The very nature of appointment to the position under s 149C requires that the decision maker consider whether someone else will be returning to that position. Only one person may occupy the position at any one time. That is the reasoning relied upon in the decision. In justifying and explaining that position, it was said that Mrs Sharma’s engagement falls within the circumstances of when temporary engagement should occur, as set out in cl 4.2. 
  1. [63]
    The review is conducted with respect to the position occupied by Mrs Sharma. 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 she presently occupies at any one time. That is reasoned in the Decision, and in the Respondent’s submissions. I accept that the person that Mrs Sharma is backfilling will imminently return to that position. It is not a circumstance where their return is speculative, or there is no incumbent. The engagement 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. [64]
    Mrs Sharma makes several submissions about how she believes there is a continuing need for her to perform the work. However, the decision maker’s reasoning was that the work would be done by the incumbent upon their return. In their submissions on appeal, the Department said:[11]

With respect to the Appellant’s submission that the (decision maker) erred in failing to give due consideration to the genuine operational requirements of the department and determined not to appoint the Appellant on the basis that the role she has been acting in is not substantively vacant, the department reiterates that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4, Finance Officer position within Advisory Services.

  1. [65]
    Altogether, those circumstances were said to present a genuine operational requirement for the department, which prevented Mrs Sharma being permanently appointed to her seconded position. There is nothing within that decision or reasoning which was unfair or unreasonable, when regard is had to the precise wording of s 149C. Only one person may occupy the position at any one time. 

Adequate reasoning

  1. [66]
    The reasoning contained within the decision was sufficient. It established the material facts and evidence, including Mrs Sharma’s history of engagements and the reason for her present engagement. The decision also contained the reasoning as to why the request was rejected. 
  1. [67]
    True enough, the decision was unfortunately worded in parts. It appears to me that the somewhat haphazard use of ‘role’ and ‘position’ within the decision reflects the inconsistent placement of those terms in the Directive. However, as I have set out above, there is no confusion within the empowering provision, namely s 149C. The word ‘role’ does not actually appear in that section at all. Further, and crucially, Mrs Sharma was afforded an opportunity to understand why the decision was made. She has advanced an alternative interpretation of the Directive and the PS Act than that contained in the decision, but that is not tantamount to inadequate reasoning. The reasons for the decision were succinctly expressed; another person is returning to that position and therefore there is no continuing need for you to remain in it. 

The effect of any previous decisions

  1. [68]
    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 22 October 2020. 
  1. [69]
    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. [70]
    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. [71]
    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 Sharma. 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. [72]
    It follows that the decision was fair and reasonable in that respect.  

Conclusion

  1. [73]
    Mrs Sharma has been acting in an AO4 Finance Officer position. That engagement was to backfill another employee, the incumbent of that position. Mrs Sharma has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
  1. [74]
    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. [75]
    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 at the time of seeking the review. It is not an unconstrainted review into similar positions or roles. The more broadly ranging review that Mrs Sharma appears to seek 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. [76]
    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 the empowering provision, namely s 149C, which establishes review against, and potential appointment to, the position. Indeed, nowhere in s 149C is the term ‘role’ used.
  1. [77]
    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 Sharma permanently to the seconded position. I have found that decision to be fair and reasonable. Only one person may occupy the position at any one time. As such, I confirm the decision appealed against and dismiss the appeal. 
  1. [78]
    I order accordingly. 

Orders:

1. That the appeal is dismissed.

Footnotes

[1] Correspondence from the decision maker to Mrs Sharma, dated 22 October 2020, page 1.

[2] 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).

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

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

[5] 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.

[6] Correspondence from decision maker to Mrs Sharma, dated 22 October 2020, page 2.

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

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

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

[10] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [13].

[11] Respondent Submissions, filed 17 November 2020, [28].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2020] QIRC 199

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    27 Nov 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355

Cases Citing

Case NameFull CitationFrequency
Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 2242 citations
Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 2202 citations
Crofts v State of Queensland (Department of Housing and Public Works) [2021] QIRC 832 citations
Hawkins v State of Queensland (Communities, Housing and Digital Economy) [2020] QIRC 2262 citations
Jafri v State of Queensland (Queensland Treasury) [2021] QIRC 392 citations
Piccolo v State of Queensland (Public Trustee Office) [2021] QIRC 472 citations
Rose v State of Queensland (Department of Housing and Public Works) [2020] QIRC 2172 citations
Stuart v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 502 citations
1

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