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Readman v State of Queensland (Queensland Police Service)[2020] QIRC 222

Readman v State of Queensland (Queensland Police Service)[2020] QIRC 222

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Readman v State of Queensland (Queensland Police Service) [2020] QIRC 222

PARTIES:

Readman, Teresa

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO:

PSA/2020/337

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

17 December 2020

MEMBER:

Power IC

HEARD AT:

On the papers

OUTCOME:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 53, 98, 149B and 149C

Acts Interpretation Act 1954 (Qld), ss 14B and 27B

Statutory Instruments Act 1992 (Qld), ss 7, 14 and schedule 1

Police Service Administration Act 1990 (Qld), s 4.8

Police Service Administration Regulation 2016 (Qld), s 7

Public Service and Other Legislation Amendment Bill 2020 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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 Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

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

Reasons for Decision

  1. [1]
    Teresa Readman (the Appellant) is employed in the position of AO4 Vehicle Impoundment Coordinator, Far North District, Road Policing Command within the State of Queensland (Queensland Police Service) (the Respondent).
  1. [2]
    The Appellant is currently acting in higher duties as an AO6 Senior Project Officer, High Risk Team (HRT), Far North District, State Domestic, Family Violence and Vulnerable Persons Unit, Road Policing Command (the higher level role) and has done so since 23 October 2017.
  1. [3]
    The Appellant appeals a decision by Ms Beth Gordon, Acting Director, HR Services, Public Safety Business Agency, dated 1 October 2020, to refuse the request made by the Appellant to be permanently appointed to the position at the higher classification level in which she had been acting.
  1. [4]
    The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
  1. [5]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (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.
  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision‑making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Ms Gordon to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.

Decision to be reviewed

  1. [8]
    On 1 October 2020, the Appellant sent an email to Senior Sergeant Michael O'Rourke, HRT Coordinator, requesting that she be appointed to the higher level role in accordance with s 149C(3) of the PS Act. 
  1. [9]
    On 1 October 2020, Ms Gordon informed the Appellant of the decision in response to her request.  In doing so, Ms Gordon stated:

I have considered your request and have determined that, due to the genuine operational requirements of the agency, you are to continue to be engaged according to the terms of your existing higher duties arrangement.

The current structure of the State Domestic, Family Violence and Vulnerable Persons Unit, Road Policing and Regional Support Command has not yet been finalised or approved by the Executive of the Queensland Police Service.

Currently, you have been engaged at the higher classification level continuously since 23 October 2017. Your engagement at this higher classification has been extended on 7 occasions.

Relevant provisions of the PS Act and the Directive

  1. [10]
    Section 149C of the PS Act 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 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after-
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department’s chief executive must decide the request within the required period.

(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.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (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. (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
  1. (b)
    if paragraph (a) does not apply-28 days after the request is made.
  1. [11]
    The Directive relevantly provides:
  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 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:

  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.

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.

  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.

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

Appellant's grounds of appeal

  1. [12]
    In the Appeal Notice, the Appellant outlines the following grounds of appeal:
  • the decision-maker has not complied with s 149C(4A) of the PS Act and clause 6.2 of the Directive and failed to:
  1. (a)
    consider the mandatory criteria in the PS Act for such a decision, that is, the genuine operational requirements of the department in relation to whether the role is continuing;
  1. (b)
    include the findings based on material questions of fact in the written reasons for the decision; and
  1. (c)
    refer to the evidence or other material on which those findings should be set aside;
  • the decision-maker did not consider the genuine operational requirements of the department as required by s 149C(4A)(a) of the PS Act, that is, that the role is likely to be ongoing and there is a continuing need for the person to be employed in the role;[5]
  • the decision-maker has merely focussed on the structure of the unit having not been finalised and not on the genuine operational requirements that there is a need for the role to continue on an ongoing and permanent basis, as required by the mandatory criteria under s 149C(4A)(a) of the PS Act. The decision-maker has also not based its findings on material questions of fact, as required by s 27B of the Acts Interpretation Act 1954 (Qld) (the AIA), as to why the role is not continuing and ongoing; and
  • the work performed by the Appellant continues to be required to be performed on a permanent and ongoing basis within the Respondent, as evidenced by the AO6 Senior Project Officer, HRT role having been fully funded by the Queensland Government since June 2018.

Submissions

  1. [13]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.  In summary, the submissions of both parties are as follows.

Appellant's Submissions

  1. [14]
    The Appellant filed submissions in support of the appeal. A summary of those submissions are as follows:
  • the Appellant commenced acting in higher duties as an AO6 Senior Project Officer, High Risk Team, Far North District, State Domestic, family Violence and Vulnerable Persons Unit, Road Policing command on 23 October 2017 after being deemed successful through an Expression of Interest process. In this acting role, there have been no discipline or performance issues raised, the higher duties arrangement has been extended seven times, and the current acting end date is 31 December 2020;
  • the Appellant meets the eligibility criteria in s 149C(1) of the PS Act to be appointed;
  • the decision maker has not complied with s 149C(4A) of the PS Act and clauses 6.1 and 6.2 of the Directive;
  • the failure of a decision maker to provide adequate reasons and the failure to consider relevant factors, are well-recognised as errors of law;[6]
  • the decision-maker has not considered the genuine operational requirements of the department as required by s 149C(4A)(a) of the PS Act, that is, that the role is likely to be ongoing and there is a continuing need for the person to be employed in the role. The decision-maker has merely focussed on the structure of the unit having not been finalised and not on the genuine operational requirements that there is a need for the role to continue in an ongoing permanent basis. The decision-maker has also not based their findings on material questions of fact, as required by s 27B of the AIA, as to why the role is not continuing and ongoing;
  • the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 (Qld) state that "[a] primary objective of the Bill is to drive more effective and consistent application of the existing commitment to maximise employment security…" It is submitted that this is the context within which s 149C(4A) of the PS Act and the Directive ought to be read by the decision maker when making the decision;
  • the work the Appellant is performing continues to be required to be performed on a permanent and ongoing basis within the Respondent as evidenced by the higher level role which the Appellant is currently acting in having been fully funded by the Queensland Government since June 2018. The Respondent has identified the need to make this position permanent;
  • the higher level role is integral to the functioning of the High Risk Team. The HRT is essential to the strategic plan of tackling domestic and family violence within the Respondent, as is the higher duties role;
  • the Respondent commissioned an Evaluation Report in 2020 which found that the Respondent HRT model should be based on "…a mixed model that incorporates the skills and expertise of sworn officers and non-sworn." This is facilitated by legislative amendments enabling civilian or non-sworn officers to share information. However, on 12 November 2020, Inspector Ben Martain advised that the Respondent have decided to convert the permanent AO6 Senior Project officer, HRT position into a sworn officer's position;
  • by changing the eligibility requirements for the higher level role which the Appellant has acted competently and diligently in for the past 3 years, the Appellant's ability to be appointed to the role is invalidated. This is despite the Appellant's merit and demonstrated skills, knowledge and experience in the role, which is in breach of the purpose and spirit of the Directive, which is to appoint long-term acting and meritorious employees to the higher level role permanently when there is a genuine operational need to do so;
  • further, all other agencies who are participating in this whole of Government program to address domestic and family violence have appointed their civilian staff permanently to their administrative roles. This is supported by the Respondent's own independent review, providing that the preferred model was the AO6 role within the HRT to be supported by a sworn member in the Evaluation Report;
  • the reason the Appellant is ineligible to be appointed to the higher level role is due to the decision by the Respondent that the role must be filled by a sworn officer (as communicated to the Appellant on 12 November 2020) and not because the structure of the unit has not been finalised;
  • it is a genuine operational requirement of the Respondent that the duties the Appellant has been undertaking at the higher classification level are undertaken on a permanent basis. Further, the decision which focusses on that structure of the unit having not been finalised does not consider the genuine operational requirements for the role to be ongoing on a permanent basis and is therefore unfair and unreasonable;
  • there has been no performance or discipline matters raised in relation to the way the Appellant has carried out the higher level role or substantive role, meeting the merit provisions under s 27 of the PS Act; and
  • the Appellant has more than 20 years of experience and accumulated local knowledge from working with the Respondent. Of the three years working within the higher level role, the Appellant has been responsible for managing the HRT office and staff, including sworn officers. The Appellant has authored and presented intelligence and analysis training forming correlations between domestic and family violence offenders with property crime within the Greater Cairns region. The Appellant has identified a risk to the Respondent with regards to potential unauthorised information sharing and developed a process to manage this, including authoring an 'Information Request Form', which was adopted by all High Risk Teams across Queensland in May 2020.

Respondent's Submissions

  1. [15]
    The Respondent filed the following submissions in response to the Appellant's submissions, in summary:
  • in accordance with ss 53 and 149C of the PS Act the Commission Chief Executive has issued the Directive;
  • any decision made under s 149C(4) of the PS Act is made with regard to matters  identified under s 149C(4A) and those particularised under clause 6 of the Directive with regard to the principles enunciated in the Directive at clause 4:

cl. 4.2 Secondment to or assuming the duties and responsibilities of a 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;

…

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

…

cl. 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.

[emphasis added]

  • section 149C(4A) of the PS Act and clause 6.2 of the Directive mirror the term 'genuine operational requirements' which a department's chief executive must have regard to when making the decision whether to appoint a public service employee acting in a higher position to the higher classification level;
  • the Commissioner of the Police Service's (the Commissioner) responsibilities are drawn from the Police Service Administration Act 1990 (Qld) (the PSAA), in particular:
  1. (a)
    section 4.8 provides that 'the commissioner is responsible for the efficient and proper administration, management and functioning of the police service …' and matters as prescribed under s 7 of the Police Service Administration Regulation 2016 (Qld), in particular s 7(e), providing for the Commissioner to '[decide] the number and deployment of officers or staff members', and s 7(b), providing for the Commissioner to '[decide] the appropriate organisational structure of the service';
  1. (b)
    the Commissioner also has responsibility under the PS Act at s 98(1)(b) to '[manage] the department in a way that promotes the effective, efficient and appropriate management of public resources' and s 98(1)(d) to '[plan] 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';
  • these statutory responsibilities mandate what the Commissioner must consider having regard to 'genuine operational requirements' pursuant to s 149C(4A);
  • the Appellant has raised a number of issues in the appeal submission. The first is the suggestion that criteria associated with s 149B of the PS Act, relating to the conversion of temporary and casual employees, which is articulated in Directive 08/17 Temporary Employment (Directive 08/17), at clause 9.6, should be applied when considering aspects of 'genuine operational requirements' under s 149C(4A)(a) of the PS Act. As identified in Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),[7] clauses 9.6 and 9.7 of Directive 08/17 cannot be imputed to the interpretation of 'genuine operational requirement' applied at s 149C(4A) of the PS Act;
  • the Appellant has identified the HRT profile established in the QPS and associated with the Government's policy commitment in stopping Domestic and Family Violence associated with the Special Task Force report,[8] and the Respondent having identified the need to make this position permanent as rationale for conversion to permanent appointment at the AO6 project level;
  • the establishment of the HRT has been funded in part by the Cabinet Budget Review Committee Treasury and the Respondent. The HRT was established as a project with the final composition of the unit to be subsumed into the Respondent in the most efficient and effective way that would meet the broad Government commitment of the Not Now Not Ever report. A report on High Risk Teams (HRT) – Strengthening Their Contribution to the QPS, a Rapid Evaluation (HRT Report), in May 2020 identified, 'findings in this evaluation strongly demonstrate that the existing HRT model based on civilians only, creates limitations in the overall integration of the HRT with the QPS'. The Respondent is reviewing HRT and their ongoing optimum effectiveness with a realignment of services in Respondent that meets the legislative responsibilities of the Commissioner while ensuring appropriate resourcing of Government commitments;
  • the pilot program which commenced in 2017 was in response to the Not Now Not Ever report released to Government in 2015. The pilot program has evolved over the preceding three years with evaluations being undertaken on the performance of the models and their effectiveness in assisting communities, the interaction with other Government agencies, the effectiveness of the models as to the commitment in ending domestic violence and in the appropriate resourcing mix. Due to this ongoing evaluation of the program, seconded employees acting in the higher project positions have been extended to maintain constancy with the level of functions involved in developing the models. In the decision-making process under s 149C(4A)(b) of the PS Act the rationale as to the Appellant's continued extension was in line with the necessity to maintain stability in the program for a true evaluation of the outputs of the model within the communities;
  • the HRT report has outlined that there is:
  1. (a)
    the need to improve integration of high-risk teams within the Respondent (these teams are Domestic Violence Units and Vulnerable Persons Units);
  1. (b)
    standardising approaches to tasks/activities; and
  1. (c)
    streamlining communication between the Office of the Information Commissioner of specialist units;
  • this has prompted the Respondent to review the models and the resourcing requirements of those models;
  • the Commissioner, in considering the 'genuine operational requirements' of the Respondent under s 149C(4A) of the PS Act, is in the review of the current resourcing of the HRT models to meet the legislative responsibilities under the PSAA and the PS Act. The review of the resourcing of the HRT models will be ongoing until February 2021 at the current end date for the project work being undertaken by the Appellant;
  • the service realignment program currently underway in the Respondent takes into account all operational units and the most efficient and effective resourcing models that can be established that will meet the strategic commitments of the Respondent and Government priorities. Currently, there is in principle support from the Executive within the Respondent for the conversion of a number of HRT resources at the AO5 and AO6 classification level to positions of sworn police officers to better fulfil policy obligations. There is as yet no definitive information as to how many positions may be required, whether those positions will be sworn and where the administration support is to be situated, regional, and how many in each region, or whether the administration is to be centralised; and
  • the Appellant's project position has been extended until February 2021 while the evaluation of the resourcing model has been completed.

Appellant's submissions in reply

  1. [16]
    The Appellant filed the following submissions in reply, in summary:
  • the Appellant concedes that 'genuine operational requirements' cannot be determined with reference to clause 9.6 of Directive 08/17, noting that the decision of Morison had not been determined at the time of the original submission in this matter;
  • in Morison, which is submitted to be the appropriate test as to whether there is a genuine operational requirement, Deputy President Merrell determined:

The phrase '… genuine operational requirements of the department' in s 149C(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.'

  • regarding the Respondent's contention that the Respondent are still reviewing the position locations and whether they are to be sworn, it is submitted that this decision has already been made, as provided in the Appellant's original submissions:

… on 12 November 2020, Inspector Ben Martain advised that the QPS have decided to convert the permanent AO6 Senior Project Officer, High Risk Team position into a sworn officer's position.

  • the Respondent's own independent review,[9] stated that the preferred model was the AO6 supported by a sworn member, as provided by the Summary of findings model which recommends the AO6 working alongside a dedicated police officer, with Domestic and Family Violence knowledge;[10]
  • it is submitted that putting a civilian in this role is an effective and efficient use of the Respondent's resources due to background knowledge base, skillset and ability to respond to the request, as an unsworn officer selected for the role will have a broader range of skill in information analysis, research, legislation and policy matters. Whereas a sworn police officer comes into the role with an operational mindset as a police officer only, with a narrowed view on Domestic Family Violence in an integrated service model;
  • the current proposal goes against this review and also against the current QPS Service Alignment Program (SAP) to improve the delivery of the Respondent's frontline services.[11] Part of the Program's aim is to remove sworn officers from non-frontline positions and redeploy them into frontline policing. This is evidenced by the recent decision from the SAP committee to increase civilian prosecutors, civilian watchhouse keeper position and the recent AO6 office manager trial replacing the Staff officer positions (sworn) within District officers. However, the position within Domestic Violence HRT is not frontline, and with the legislative amendments, there is no legal requirement for a sworn member to be in the role;
  • it is contended that from the Appellant having worked in the higher level role in excess of 3 years, having 20 years of local knowledge and a commitment to the area, as well as previously having worked as a sworn officer from 1991 to 1994, qualifies her as the best candidate to perform the higher level role on an ongoing and permanent basis; and
  • appointing the Appellant permanently to the higher level role, as opposed to a sworn officer, will ensure the most effective, efficient and appropriate management of public resources of the department and is a genuine operational requirement. Further, the higher level role is required to be performed on an ongoing basis, as determined by the QPS independent review.

Consideration

  1. [17]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. 
  1. [18]
    The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing higher duties placement on the basis that the current structure of the unit has not yet been finalised or approved by the Respondent.
  1. [19]
    The PS Act requires that in making the decision, the decision-maker must have regard to the following pursuant to s 149C(4A):
  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.

Genuine operational requirements

  1. [20]
    As outlined by Deputy President Merrell in Morison, the phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, would at least include consideration of the following:

… 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.'

  1. [21]
    In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider the current review of the resourcing of HRT models as part of having regard to 'the effective, efficient and appropriate management of the public resources of the department'. As I understand the submissions, this review will be ongoing until February 2021.
  1. [22]
    Both parties referred to the HRT Report. The Appellant relied upon a reference in the report that the Respondent's HRT model should be based on "a mixed model that incorporates the skills and expertise of sworn officers and non-sworn." The Respondent referred to findings in the report that "strongly demonstrate that the existing HRT model based on civilians only, creates limitations in the overall integration of the HRT with the QPS."
  1. [23]
    Regardless of which model is ultimately adopted, the preferred structure is not a matter for the Commission to consider as part of this appeal. Decisions as to whether particular roles are to be filled by sworn officers or public service employees are a matter for the Respondent. The relevant consideration for the Commission is whether the Respondent's consideration of genuine operational requirements is fair and reasonable.
  1. [24]
    As I understand the submissions, the review by the Respondent of HRT resourcing will consider the requirements with respect to the higher level role currently occupied by the Appellant. With respect to this role, considerations as to whether this position will be a sworn position, along with matters such as the geographical placement of the role will be determined by the Respondent. These considerations are reasonably part of any consideration of genuine operational requirements.
  1. [25]
    The Appellant disputed that a decision was to be made pending the outcome of the review, submitting that the decision regarding the position's locality and whether the position is to be sworn has already been made, stating:

… on 12 November 2020, Inspector Ben Martain advised that the QPS have decided to convert the permanent AO6 Senior Project Officer, High Risk Team position into a sworn officer's position.

  1. [26]
    It is unclear how this decision was communicated to the Appellant, however, to my knowledge there is no written evidence provided as part of this appeal. Regardless, as noted above the decision as to whether the role is to be occupied by a sworn officer is one for the Respondent and not one for determination as part of this appeal. I accept that consideration of the future requirements of the role as part of the current review is consistent with the decision-maker's obligation to have regard to genuine operational requirements pursuant to s 149C(4A)(a) of the PS Act.

Previous reasons for acting at a higher classification level

  1. [27]
    Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent 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.
  1. [28]
    On the basis that s 149C of the PS Act commenced operation on 14 September 2020, no previous decisions were made under this section of the PS Act hence no reference to previous reasons is required.

Compliance with requirements of s 149C of the PS Act

  1. [29]
    The Respondent is required to comply with s 149C(5) of the PS Act, which provides as follows:
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (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. [30]
    Clause 7.1 of the Directive provides that decisions made to refuse a request pursuant to s 149C(5) of the PS Act must comply with the requirements of s 27B of the AIA. The decision maker's reasons were limited however I am satisfied that the decision conforms with this requirement.
  1. [31]
    The Respondent provided a notice outlining the reasons for the decision and confirmed that the Appellant has acted in a higher classification role since 23 October 2017 following seven extensions. As mentioned above, no previous decisions could have been made under this section of the PS Act and consequently s 149C(5)(d) was not included. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act. 
  1. [32]
    In consideration of the material before me and the submissions made by the parties, I am of the view that the decision made by the Respondent was fair and reasonable.

Order

  1. [33]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] cf Katae v State of Queensland & Anor [2018] QSC 225 (Katae).

[6] Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323.

[7] [2020] QIRC 203.

[8] See Special Taskforce on Domestic and Family Violence in Queensland, 28 February 2015.

[9] The High Risk Teams (HRT) – Strengthening Their Contribution to the QPS, a Rapid Evaluation, dated May 2020.

[10] It is to be noted, the AO5 role in the model is in reference to Cherbourg HRT.

[11] See 2019/20 QPS Annual Report.

Close

Editorial Notes

  • Published Case Name:

    Readman v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Readman v State of Queensland (Queensland Police Service)

  • MNC:

    [2020] QIRC 222

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    17 Dec 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
2 citations
Jump To
Cite 1 - (2001) 206 CLR 323
Cite 2 - (2001) 206 CLR 323
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Camillos v State of Queensland (Queensland Fire Department) [2025] QIRC 12 citations
Employee B v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 1432 citations
Petersen v State of Queensland (Department of Education) [2024] QIRC 462 citations
Rackley v State of Queensland (Queensland Police Service) [2024] QIRC 802 citations
1

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