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  4. Graves v State of Queensland (Department of Education) - [2020] QIRC 230

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Graves v State of Queensland (Department of Education)[2020] QIRC 230

Graves v State of Queensland (Department of Education)[2020] QIRC 230

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Graves v State of Queensland (Department of Education) [2020] QIRC 230

PARTIES:

Graves, Michael

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2020/371

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

23 December 2020

MEMBER:

Hartigan IC

HEARD AT:

On the papers

OUTCOME:

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

LEGISLATION:

Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2, 6, cl 7, cl 11

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

Public Service Act 2008 (Qld), s 197, s 149C, s 295

Public Service and Other Legislation Amendment Act 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)

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

Reasons for Decision

  1. [1]
    Mr Michael Graves appeals a decision not to permanently appoint him to the position in which he has been acting at a higher classification level.
  1. [2]
    At the time Mr Graves commenced this appeal, he was acting in the position of Senior Guidance Officer, South East Region [AO52] in the Department of Education ("the Department"). Mr Graves commenced this position on 8 May 2018.
  1. [3]
    Mr Graves is permanently employed by the Department as a Guidance Officer (GO), South East Region [6620].
  1. [4]
    By notice of appeal filed on 27 November 2020, Mr Graves, pursuant to ch 7 of the Public Service Act 2008 ("the PS Act"), appealed against a deemed decision dated 18 November 2020 ("the decision").
  1. [5]
    Mr Graves appeals the decision on the grounds that he had an expectation of ongoing employment and that there is a genuine operational requirement for his employment to be converted.
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides, that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission ("the Commission").
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    As an IRC member, I must decide the appeal by reviewing the decision appealed against. The word ''review'' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1, of the PS Act is not by way of rehearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

Decision

  1. [10]
    The Department did not make a decision within 28 days of Mr Graves' application for conversion. Accordingly, and pursuant to s 149C(6) of the PS Act the chief executive is taken to have decided that the terms of Mr Graves' employment continue according to the current terms of the existing secondment or higher duties arrangement. Relevantly, Mr Graves' current arrangement is that he will remain acting up in higher duties until 15 January 2021.
  1. [11]
    A written notice is required in circumstances were the chief executive refuses the request,[4] however, a written notice is not required when, as is the case here, a deemed decision was made.

Relevant provisions of the PS Act and the Directive 13/20

  1. [12]
    Section 149C of the PS Act provides:

149CAppointing 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. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;

  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; 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. (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

  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [13]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, Merrell DP relevantly stated:[5]

[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. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

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

  • 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.

(Citations omitted)

  1. [14]
    Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [15]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  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. [16]
    Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide a statement of reasons, as follows:

  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
  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.

  1. [17]
    Clause 11 of Directive 13/20 defines the following relevant terms:

…

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.

…

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. [18]
    Section 295 of the PS Act provides for the transitional provisions for the application of s149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Was the decision fair and reasonable?

Genuine operational requirements of the Department

  1. [19]
    Mr Graves did not file any written submissions in accordance with Directions Orders issued by the Commission on 27 November 2020.
  1. [20]
    In the notice of appeal filed by Mr Graves, he raised, in summary, the following matters:
  1. (a)
    there is a genuine operational requirement for additional permanent Senior Guidance Officer appointments and to not acknowledge this would be in conflict with the intent of s 149C of the PS Act and cl 5 of Directive 13/20;

  1. (b)
    the South East region is the fastest growing region in the state which will, in 2021, have an anticipated student enrolment of 130,000 students;

  1. (c)
    in 2018, Mr Graves completed a business proposal which he submitted to the Department requesting Full Time Equivalent ("FTE") allocations for permanent Senior Guidance Officers be increased which he submitted was based on the growth of the region;
  1. (d)
    the current FTE fund allocation for permanent Guidance Officers is over 10 years old and does not reflect increased demand from the 152 schools serviced across the region;

  1. (e)
    the Senior Guidance Officer team currently has 15 team members, 3 of which are temporary employees and 6 permanent employees; and

  1. (f)
    for the service delivery continuity, staff retention and effective succession planning, the appointment of temporary Senior Guidance Officers to permanent positions would be good business acumen, regardless of the Senior Guidance Officer FTE funding allocation.
  1. [21]
    The difficulty with Mr Graves' submission, which is, in some respects, acknowledged by him, is that his submissions are made regardless of any consideration of the FTE funding allocation.
  1. [22]
    In response, the Department submits that approving a labour budget in excess of the allocated funding does not represent proper and efficient management of public resources.
  1. [23]
    The Department submits that Mr Graves was engaged on 20 January 2020 to perform the role of Senior Guidance Officer to backfill other staff, as they utilised significant leave balances to enable implementation of the change to paid school holidays. It was submitted that this leave reduction plan was in place for 2020 in anticipation of operationalising and award variation to the relevant Award, and to avoid future absences of Senior Guidance Officers during school terms.
  1. [24]
    It was submitted that Mr Graves' higher classification level engagement complies with the principles contained in Directive 13/20, which includes supporting the temporary engagement at a higher classification level to perform work necessary to back fill employees taking leave and meet an unexpected short term increase in workload caused by this leave.[6]
  1. [25]
    The Department submitted that due to the health pandemic there was an operational impact on the Department and that the Award variation application is now proposed to occur in 2021, which has meant, during 2020, the status quo was maintained for Senior Guidance Officers.
  1. [26]
    Relevantly, it was submitted that during 2020 many of the South East region Senior Guidance Officers have not taken leave during 2020.
  1. [27]
    The Department submitted that on this basis, Mr Graves' higher classification engagement was no longer necessary and it could have ended. However, based on a number of factors, and to maintain the status quo, a decision was made by the Department not to disadvantage Mr Graves and to honour the higher classification engagement until the end date of the school holiday period, 15 January 2021.
  1. [28]
    It was further submitted by the Department that Ms Gene Stevens, Director, Education Services, South East Region, who was responsible for Senior Guidance Officers, confirmed that there is no permanent Senior Guidance Officer vacancy available at present.
  1. [29]
    It does not appear to be contentious that the purpose of Mr Graves' current higher classification level role is to fill a temporary vacancy arising from an operational plan, to manage a team's leave absences ahead of a known change to Senior Guidance Officer workplace entitlements. I consider that there were genuine operational requirements for appointing Mr Graves to a higher classification level role on a temporary basis arising out of the proposed Award variation. I consider the decision not to permanently appoint Mr Graves to the position at the higher classification level was consistent with managing the Department in a way that promotes the effective, efficient and appropriate management of public resources. In this respect, the decision was fair and reasonable.

Previous reasons for acting at a higher classification level

  1. [30]
    Section 149C(4A)(b) of the PS Act and clause 6.2(b) of Directive 13/20, 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 of 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. [31]
    It is not in dispute that Mr Graves has acted as a Senior Guidance Officer on four separate occasions, between 8 May 2018 and 15 January 2021. However, given s 149C of the PSA commenced operation on 14 September 2020, no previous decisions could have been made pursuant to s 149C of the PS Act that had any relevant application to Mr Graves' request.

  1. [32]
    For this additional reason, the decision was fair and reasonable.

Conclusion

  1. [33]
    The question in this appeal was whether the decision to refuse to appoint Mr Graves to the position at the higher classification level was fair and reasonable.

  1. [34]
    For the reasons given herein, the decision was fair and reasonable.

Order

  1. [35]
    I make the following order:

  1. Pursuant to s 562C(1)(a) of the IR Act, the decision appealed against is confirmed.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

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

[4] Public Service Act 2008 (Qld) s 149C(5).

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

[6] Directive 13/20 clauses 4.2(a) and (d).

Close

Editorial Notes

  • Published Case Name:

    Graves v State of Queensland (Department of Education)

  • Shortened Case Name:

    Graves v State of Queensland (Department of Education)

  • MNC:

    [2020] QIRC 230

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    23 Dec 2020

Appeal Status

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

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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Aldiss v State of Queensland (Department of Education) [2022] QIRC 2423 citations
Cushing v State of Queensland (Department of Education) [2023] QIRC 2522 citations
Olesk v State of Queensland (Department of Education) [2022] QIRC 2142 citations
1

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