Morison v State of Queensland (Department of Child Safety, Youth and Women)
[2020] QIRC 203
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- Unreported Judgment
- Morison v State of Queensland (Department of Child Safety, Youth and Women)[2020] QIRC 203
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Morison v State of Queensland (Department of Child Safety, Youth and Women)[2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women)[2020] QIRC 203
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
PARTIES: | Morison, April (Appellant) v State of Queensland (Department of Child Safety, Youth and Women) (Respondent) |
CASE NO.: | PSA/2020/297 |
PROCEEDING: | Public Service Appeal - Appeal against a conversion decision - not to appoint to a position at a higher classification level |
DELIVERED ON: | 27 November 2020 |
MEMBER: | Merrell DP |
HEARD AT: | On the papers |
DATES OF WRITTEN SUBMISSIONS: | Respondent's written submissions filed on 17 November 2020 and Appellant's written submissions filed on 23 November 2020 |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
LEGISLATION: | Acts Interpretation Act 1954, s 27B Directive 08/17 Temporary Employment, cl 9 Directive 13/20 Appointing a public service employee to a higher classification level, cl 4, cl 6, cl 7 and cl 11 Industrial Relations Act 2016, s 451, s 562B and s 562C Public Service Act 2008, s 53, s 98, s 148, s 148A, s 149, s 149A, s 149B, s 149C, s 197 and s 201 |
CASES: | Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674 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 Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 23 Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496; (1996) 69 IR 370 Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 Re Minister For Immigration and Multicultural Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Whittaker v Comcare (1998) 86 FCR 532 |
Reasons for Decision
Introduction
- [1]Ms April Morison is currently acting in a position at a higher classified level. The position is that of Senior Team Leader, classification PO5, in the Department of Child Safety, Youth and Women. The position is based in Gladstone in the Child Safety Service Centre ('CSSC'). Ms Morison is employed by the State of Queensland.
- [2]By appeal notice filed on 10 November 2020, Ms Morison, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision made by Ms Charmaine Matebau, Regional Director (South), Child and Family, Central Queensland Region of the Department. The decision was dated 16 October 2020. The decision was to deny the request made by Ms Morison to be appointed to the position, at the higher classification level, in which she had been acting ('the decision'). The decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
- [3]The Public Service and Other Legislation Amendment Act 2020 ('the Amendment Act') commenced operation on 14 September 2020. The Amendment Act, amongst other amendments, amended the Industrial Relations Act 2016 ('the IR Act') and the PS Act in respect of public service appeals referred to in ch 7, pt 1 of the PS Act. Section 197 of the PS Act now provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the IR Act by the Queensland Industrial Relations Commission.
- [4]Section 562B(1) of the IR Act provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
- [5]Sections 562B(2) and (3) of the IR Act replicate ss 201(1) and (2) of the PS Act prior to their deletion by the Amendment Act. This was to ensure that the purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable.[1] For that reason, my view is that the principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions under the IR Act.
- [6]I must decide the appeal by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision‑making process associated therewith.[5]
- [7]
- [8]The parties exchanged written submissions in accordance with a Directions Order dated 11 November 2020. Pursuant to s 451(1) of the IR Act, no hearing was conducted.
- [9]In my view, having regard to the material before me and the submissions made by the parties, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.
- [10]My reasons follow.
Background
- [11]Ms Morison is a permanent employee of the Department and is substantively employed in the position of Senior Child Safety Officer, classification PO4, within the Gladstone CSSC. Ms Morison commenced employment in her substantive position effective 2 January 2018.
- [12]Since 9 August 2018, Ms Morison has been continuously acting in the position of Senior Team Leader, which has a higher classification level of PO5, within the Gladstone CSSC. However, over that period of time, Ms Morison has not been so acting in one position.
- [13]In the Department's submissions, it included the following table, extracted from the Department's payroll system, outlining the higher classification level positions in respect of which Ms Morison has been acting since August 2018.
Classification level | Position title | Position number | Date commenced | Cessation date | Reason |
PO5 | Senior Team Leader | 7021865 | 09/08/2018 | 17/03/2019 | Incumbent on sick leave |
PO5 | Senior Team Leader | 7021864 | 18/03/2019 | 06/06/2019 | Incumbent on higher duties |
PO5 | Senior Team Leader | 7021866 | 07/06/2019 | 30/11/2020 | Incumbent on special leave |
- [14]By email dated 22 September 2020 to her line supervisor, Ms Gina Pengelly, Ms Morison, pursuant to s 149C(3) of the PS Act, requested '… to be appointed to the position of Senior Team Leader.' In making her request, Ms Morison relevantly submitted, amongst other matters:
Over the past two years, in my role as Acting Senior Team Leader for both the IA/ IPA and ongoing intervention teams, I have been able to expand my understanding of the child protection practices. I have a comprehensive understanding of each team and their individual goals, how this impacts service centre objectives, and further contributions in line with overall departmental successes. Having multi-disciplinary work experience across the department has allowed me to gain invaluable knowledge and perspective from each part of the continuum. Having had to manage varying complex caseloads has allowed me to gain skills outside of normal boundaries and I can reach solutions based on professional practice whilst taking a collaborative approach to all situations.
…
I have been acting in this position for excess of 12 months and during that time have demonstrated the skills, knowledge and abilities required to undertake duties of this role. At this time, I am requesting to be permanently appointed to the position of Senior Team Leader in the Gladstone CSSC. I would be happy to discuss this with you further as required.
- [15]By letter dated 16 October 2020, Ms Matebau informed Ms Morison of the decision. In doing so, Ms Matebau stated:
Following your submission to be appointed to the higher classification role you have been relieving in since 9 August 2018, your request has been considered taking into account the requirements of section 149C of the Public Service Act 2008 (PS Act) and the Appointing a public service employee to a higher classification level directive 13/20 (attached).
The information that has been considered is:
- (a)the position you have relieved in - Senior Team Leader, PO5, Gladstone CSSC
- (b)the extensions that have occurred during the period 9 August 2018 through to 30 November 2020; and
- (c)the department's operational requirements.
After considering all the above, I am unable to approve your request as the position you are relieving in has a substantive employee appointed to it and there is a possibility they may return to this role.
The relevant provisions of the PS Act and the Directive
- [16]Section 149C of the PS Act relevantly provides:
149CAppointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee-
- (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
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
- (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-
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (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-
- (a)the genuine operational requirements of the department;
and
- (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-
- (a)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.
- (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.
…
- (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-
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply-28 days after the request is made.
- [17]The Directive relevantly provides:
- 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 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.
6.2 In 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.
6.3 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.
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.
- 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:[8]
- (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.
7.2 A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.
Ms Morison's grounds of appeal and submissions
- [18]In her appeal notice, Ms Morison contends that:
- Ms Matebau erred in coming to her decision as she did not give due consideration to the genuine operational requirements of the Department as required by s 149C(4A) of the PS Act and, instead, Ms Matebau determined not to appoint her (Ms Morison) on the basis that the role in which she has been continuously acting is substantially owned and that the substantive owner may return to it after more than two years of relieving in another role;
- neither the PS Act or the Directive include a role being substantially vacant as a pre-requisite '… for conversion'; and
- having regard to 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; however, it is not a threshold question or a blanket reason to decline an appointment rather, it is one of a number of considerations involved in assessing the 'genuine operational requirements of the department' as required by cl 6.2 (a) of the Directive.
- [19]Ms Morison then contends that:
- In considering whether a decision and the process leading to that decision are fair and reasonable, it is necessary to examine the decision maker's stated reasoning. In this case the decisionmaker has not provided the material findings of fact and the evidence relied upon in coming to that decision. This is required by the Public Service Act and the Acts Interpretation Act 1954, s 27B. The failure to provide adequate reasons, and the failure to consider relevant factors, are well-recognised as errors of law and I respectfully submit make this decision unfair and unreasonable.
- I have performed my role for more than two years now without any adverse finding in respect of my performance or conduct. Therefore, I have demonstrated merit with respect to s 27 of the Act, as required by s 149B(5)(a).
- I seek for the decision to be set aside and a decision to be substituted in accordance with s 562C of the Industrial Relations Act 2016 that my employment status be converted to permanent in the Senior Team Leader role I have been performing within the Gladstone CSSC.
The Department's submissions
- [20]After setting out Ms Morison's employment history, the relevant provisions of the PS Act, the Directive and the Department's policy entitled 'Appointment to a higher classification level' ('the Policy'), the Department submitted that:
- Ms Matebau made the decision to refuse Ms Morison's request based on the genuine operational requirements of the Department at that point in time;
- the genuine operational requirements were:
- –that Ms Morison was engaged to relieve in a higher level role of PO5, Senior Team Leader, due to the existing employee being on special leave; and
- –the existing employee was and is expected to return to the role and, in accordance with 'DCSYW Workforce Guidelines - Managing the financial impacts of COVID-19' ('the Workforce Guidelines'), Ms Matebau was not able to increase the frontline workforce above the approved full-time equivalent cap; and
- in accordance with cl 8.2 of the Policy, Ms Matebau had regard to recurrently funded and substantively vacant Senior Team Leader roles across the Gladstone CSSC and, at the time of the review, there were no substantively vacant Senior Team Leader roles to which Ms Morison could be appointed.
- [21]In response to Ms Morison's contention that neither the PS Act or the Directive provided that a role had to be substantively vacant as a prerequisite for conversion, the Department submitted that a checklist released by the Public Service Commission stated that in making a decision about a request by an employee to a department's chief executive to appoint the employee to a position at the higher classification level, the delegate, having regard to genuine operational requirements, may have regard to whether the role being performed is substantively vacant.
- [22]The Department submitted that Ms Matebau considered that the role in which Ms Morison was acting was not substantively vacant and that the reason Ms Morison was relieving in that role was due to the substantive employee being absent on paid special leave and that there is a possibility that employee would return to the role.
- [23]The Department otherwise submitted that Ms Matebau's decision complied with s 149C(5) of the PS Act.
- [24]By way of conclusion, the Department relevantly submitted:
- [30]In summary, the delegate considered all relevant facets of the Directive when considering Ms Morison's request. Whilst the PS Act and the Directive do not define 'genuine operational requirements', the department's policy provides an example to provide guidance and consistency across the department to the delegate when making a decision. The department's policy supports the principles of the Workforce Guidelines in accordance with the Queensland Government's Savings and Debt Plan. The delegate noted that Ms Morison is relieving in the higher level role due to the substantive employee being on special leave, who at this point in time, will be returning to the department and at such time, there will be no continuing need for Ms Morison to be employed in the role.
Ms Morison's reply submissions
- [25]Ms Morison submitted that:
- Ms Matebau 'erred' because she only considered that the purpose of her (Ms Morison's) current higher classification placement was to backfill another employee and, in doing so, Ms Matebau failed to have regard to the mandatory considerations under s 149C(4A) of the PS Act and, for that reason, the decision was unfair and unreasonable;
- the paucity of detail or reasoning in Ms Matebau's decision tends to indicate that the mandatory criteria were not considered and that the findings of fact and evidence relied upon in coming to the decision have not been articulated;
- the criteria in the Department's internal policy, referred to in its submissions, have no weight in the assessment of whether the decision was fair and reasonable;
- the Policy has no legislative basis to prescribe additional criteria beyond that which is contained in the PS Act, the Directive, the published guidance of the Public Service Commission or decisions of the Commission; and even if reasons were contained in some binding instrument, they were not communicated in the decision received by her; and
- on the authority of Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors,[9] because the factors to be taken into account that 'make up' the genuine operational requirements of a department are not expressly stated (either in the PS Act or in the Directive) those factors should be implied from the subject matter, scope and purpose of the PS Act, being 'the broader context' in which the PS Act and the Directive operate.
- [26]Ms Morison then referred to statements made in the Explanatory Notes to the Public Service and Other Legislation Amendment Bill 2020 ('the Amendment Bill') which introduced s 149C of the PS Act. Those statements were that in making a decision about an appointment to a position at a higher classification level, a department's chief executive must have regard to the genuine operational requirements of the department and that '… this aligns with the considerations that apply to fixed term temporary and casual conversion provisions.' Ms Morison submitted that because of those statements, the considerations that apply to the conversion of temporary employees to permanent status, developed from appeal decisions of the Commission and related decisions of the Supreme Court concerning the Public Service Act 2008 and the now superseded Directive 08/17 Temporary Employment, apply in respect of determining whether, under s 149C(4A) of the PS Act, an employee should be appointed to '… the position at a higher classification level' within the meaning of s 149C(1)(c) and s 149C(3) of the PS Act.
- [27]Ms Morison then developed her submission around the relevance of the considerations under Directive 08/17 Temporary Employment by submitting:
- Katae v State of Queensland & Anor [2018] QSC 225 is the Supreme Court authority on the application of those provisions as they appeared in substantially the same form in the former Directive 08/17 Temporary Employment.
- Notably for the purposes of this appeal it was held in Katae at [35] that the words "unless there are genuine operational reasons not to do so" from clause 9.7 of the Directive 08/17 must be interpreted together with the criteria outlined in clause 9.6 rather than in isolation.
- The Directive 08/17 had a similar structure to the present Directive 13/20, being that clause 9.6 contained the mandatory criteria a decision maker should consider in assessing whether to convert an employee and that clause 4.2, under the heading 'Principles' contained examples of situations that would indicate when temporary employment was appropriate. It is well settled from decisions such as Katae and other unreported decisions of this Commission concerning Directive 08/17 that a conversion should not be denied solely because the role was initially created for a specific project or purpose or another of the circumstances in clause 4.2 existed. Katae and subsequently the Frequently Asked Questions published by the Public Service Commission have affirmed instead that the correct test was a consideration of the clause 9.6 mandatory criteria, and while the clause 4.2 circumstances could inform these, a substantive permanent vacancy was not required.
- I submit that the same reasoning should be applied with respect to Directive 13/20. The decision maker must have regard to the criteria from s 149C(4A) of the Act, being the genuine operational requirements of the Department. As part of that consideration they may consider some of the circumstances that would support only the temporary engagement of an employee as outlined under 'Principles' in clause 4.2. The fact a placement may have originally been to perform work for a particular project or purpose that has an expected end date may be a consideration as to why a permanent appointment should not be made. It is not, however, a threshold question, nor should it be a blanket reason to decline an appointment.
- I submit that at their highest, the circumstances listed in clause 4.2 of Directive 13/20 are a non-exhaustive list of considerations that may assist the decision maker in assessing the mandatory criteria of ' genuine operational requirements of the department'.[10]
- [28]Ms Morison further submitted that, contrary to s 27B of the Acts Interpretation Act 1954, Ms Matebau did not provide the material findings of fact and evidence upon which she relied on in coming to her decision which also rendered the decision unfair and unreasonable.
Was the decision fair and reasonable?
Genuine operational requirements of the Department
- [29]The relevant paragraph of the Explanatory Note to the Amendment Bill ('the Explanatory Note') referred to by Ms Morison in her submissions provides:
Amendment 15 amends clause 37 of the Bill (Replacement of Chapter 5, Part 5 (General and temporary employees)) to require that in making a decision on request from an employee, about an appointment to a position at a higher classification level, the department’s chief executive must have regard to the genuine operational requirements of the department. This aligns with the considerations that apply to fixed term temporary and casual conversion provisions. A chief executive is also required to have regard to the reasons for any decision previously made (or taken to have been made) following an application for appointment to a position at a higher classification level during the person’s continuous period of employment at the higher classification.[11]
- [30]The words I have emphasised in the above paragraph do not deal with or concern the principles developed in appeals and related cases about the application of Directive 08/17 Temporary Employment in respect of the conversion of temporary employees to permanent status under s 149 of the PS Act prior to its repeal by the Amendment Act. The phrase 'fixed term temporary' was not a phrase used in s 149 of the PS Act prior to its amendment by the Amendment Act and was not used in Directive 08/17 Temporary Employment. The clear words I have emphasised concern the considerations that apply to the review of fixed term temporary and casual employees pursuant to s 149, s 149A and s 149B of the PS Act.
- [31]In addition, s 148 of the PS Act sets out the circumstances where the employment of a person on tenure is not or may not be viable or appropriate such that the person may be employed as a fixed term temporary employee. Similarly, s 148A of the PS Act sets out the circumstances where the employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate such that the person may be employed on a casual basis. Section 149A(3) and s 149B(5)(a) require the chief executive to have regard to the genuine operational requirements of the department in reviewing the status of an eligible fixed term temporary or casual employee. In my view, the requirements in s 149A(3) and s 149B(5)(a) are '… the considerations that apply to fixed term temporary and casual conversion provisions' referred to in the emphasised words in the Explanatory Note referred to above.
- [32]For those reasons, the emphasised words cannot lead to a conclusion that the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act or in cl 6.2(a) of the Directive import a consideration of the principles developed in respect of the application of Directive 08/17 Temporary Employment.
- [33]Further, while Crow J in Katae v State of Queensland & Anor ('Katae')[12] held that the words '… unless there are genuine operational reasons not to do so' in cl 9.7 of Directive 08/17 Temporary Employment must be interpreted together with cl 9.6 a) of that Directive,[13] those two clauses were materially different to s 149C(4A) of the PS Act and cl 6.2 of the Directive.
- [34]Clauses 9.6 an 9.7 of Directive 08/17 Temporary Employment provided:
9.6 When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider the following criteria:
a) whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; and
b) the merit of the temporary employee for the role by applying the merit criteria in section 28 of the PS Act.
9.7 A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent.
- [35]Clause 9.7 was in the nature of an exception or 'proviso' to the substantive provision in cl 9.6. Section 149C(4A) of the PS Act and cl 6.2 of the Directive are not in the nature of exceptions or provisos, but are the specified matters to which the chief executive must have regard in deciding a request made by a relevant employee to appoint the employee to '… the position at the higher classification level' as referred to in s 149C(3).
- [36]Ms Morison submits that neither the PS Act or Directive include a role being substantively vacant as a prerequisite for appointment to the higher classification level. However, s 149C(4A)(a) of the PS Act and cl 6.2(a) of the Directive provide that the department's chief executive, in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the 'genuine operational requirements of the department'.
- [37]The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must 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 includes 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.[14] The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.[15]
- [38]The adjective 'genuine' relevantly means '… being truly such; real; authentic.'[16] The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters[17] depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
- managing the department in a way that promotes the effective, efficient and appropriate management of public resources;[18] and
- 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 the PS Act.[19]
- [39]In respect of the Directive, cl 4.2 provides that 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. That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:
- 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; or
- 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.
- [40]The phrase '… genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'
- [41]There can be no dispute that the reason Ms Morison is presently acting in the higher classification level in position number 7021866 is that the incumbent of that position is on special leave. However, the incumbent may return from such leave. That was a relevant matter for Ms Matebau to have considered in deciding the request made by Ms Morison. Put another way, in having regard to genuine operational requirements of the Department, it was relevant for Ms Matebau to consider whether, in terms of managing the Department in a way that promoted the effective, efficient and appropriate management of public resources, Ms Morison should be appointed to position number 7021866 when it was possible the incumbent was likely to return to that position.
- [42]Although her reasons were very brief, read in context, Ms Matebau's decision, in the third paragraph, refers to that reason as being a genuine operational requirement of the Department not to permanently appoint Ms Morison to the position at the higher classification level.
- [43]Ms Morison does contend that requirement was not genuine.
- [44]For the reasons given above, in my view, this aspect of Ms Matebau's decision was fair and reasonable.
Previous reasons for acting at a higher classification level
- [45]Section 149C(4A)(b) of the PS Act and cl 6.2(b) of the Directive provide that the department's chief executive, in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level.
- [46]There can be no dispute that while Ms Morison has acted as a Senior Team Leader, classification PO5 since 9 August 2018, that has been in respect of three separate positions where the incumbents of the higher classification positions have been absent for the reasons referred to in the table set out earlier in these reasons for decision. However, given that s 149C of the PS Act commenced operation on 14 September 2020, no previous decisions could have been made under s 149C of the PS Act that had any relevant application to Ms Morison's request.
- [47]For this additional reason, Ms Matebau's decision was fair and reasonable.
The adequacy of Ms Matebau's reasons
- [48]
- [49]Further, while it is not necessary for the decision maker to deal with every matter which was, or which may have been raised, it is enough that the findings and reasons deal with the substantial issues upon which the decision turned, such that a person aggrieved by the decision can understand why the decision went against him or her.[22] This requires the decision maker to set out his or her understanding of the relevant law, any findings of fact upon which his or her conclusions depend, especially if those facts have been in dispute, and the reasoning processes which led him or her to those conclusions; and this should be done in clear and unambiguous language, not in vague generalities or the formal language of legislation.[23]
- [50]Delegates of chief executives who make decisions under sections such as 149C(4A) of the PS Act must comply with the requirements of s 27B of the Acts Interpretation Act 1954. Further, in my view, such delegates must also comply with the principles of the adequacy of reasons of decisions referred to above.
- [51]Ms Matebau's reasons were very brief. Ms Matebau's decision just barely conforms with s 27B of the Acts Interpretation Act 1954 and the above-mentioned principles.
- [52]Such delegates must also comply with s 149C(5) of the PS Act. Ms Matebau's written decision did not comply with s 149C(5)(c) in that Ms Matebau did not set out how many times Ms Morison's engagement at the higher classification level[24] had been extended. However, having regard to Ms Matebau's principal reason for her decision, that failure, on its own, does not render Ms Matebau's decision not fair and not reasonable.
Conclusion
- [53]The question in this appeal was whether Ms Matebau's decision to refuse to appoint Ms Morison to the position at the higher classification level was fair and reasonable.
- [54]For the reasons given, Ms Matebau's decision was fair and reasonable.
Order
- [55]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
Footnotes
[1] Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld) 6.
[2] Industrial Relations Act 2016 s 562B(2).
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[4] In the sense used in the legal categories of appeals - Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 ('Goodall') as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
[5] Goodall (n 4) 5.
[6] Industrial Relations Act 2016 s 562B (3).
[7] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
[8] Section 27B of the Acts Interpretation Act 1954 provides:
27B Content of statement of reasons for decision
If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also-
(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.
[9] [1986] HCA 40; (1986) 162 CLR 23, 39-40 (Mason J).
[10] Footnote omitted.
[11] Explanatory Notes for Amendments to be moved during consideration in detail by The Honourable Grace Grace MP, Public Service and Other Legislation Amendment Bill 2020 (Qld) 9. Emphasis added.
[12] [2018] QSC 225.
[13] Ibid [35] and [53].
[14] R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, [32]-[33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] agreeing).
[15] The Directive is the statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 because it is made under s 53 and s 149C(7) of the PS Act by the Public Service Commission Chief Executive and because it is an instrument of a public nature by which the Public Service Commission Chief Executive unilaterally affects a right or liability of another entity, namely a department's chief executive who must consider a request of a relevant public service employee, who has acted in a higher classification level for the requisite time, to be appointed to the position at the higher classification level. The construction of a statutory instrument is approached in the same way as interpreting a statute: Whittaker v Comcare (1998) 86 FCR 532, 543 (Drummond, Cooper and Finkelstein JJ).
[16] Macquarie Dictionary (7th ed, 2017) 'genuine' (def 1).
[17] Cf. Nettlefold v Kym Smoker Pty Ltd [1996] IRCA 496; (1996) 69 IR 370, 373 (Lee J) as to the meaning of 'operational requirements' in the context of s 170DE(1) of the Industrial Relations Act 1988 (Cth).
[18] Public Service Act 2000 s 98(1)(b).
[19] Public Service Act 2000 s 98(1)(d).
[20] Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674, [59] (Ashley JA, Hanson AJA at [99] and Emerton AJA at [100] agreeing).
[21] Re Minister For Immigration and Multicultural Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212, [64] (Kirby J).
[22] Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301; (1987) 16 FCR 465, 481 (Wilcox J).
[23] Ibid with Wilcox J referring to Ansett Transport Industries (Operations) Pty Ltd v Wraith [1983] FCA 179; (1983) 48 ALR 500, 507 (Woodward J).
[24] Schedule 4 to the PS Act defines 'higher classification level' to mean '… a classification level that is a higher classification level under a ruling.' Clause 11 of the Directive defines 'higher classification level' to mean:
…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.