Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Magee v State of Queensland (Public Safety Business Agency) - [2021] QIRC 101

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Magee v State of Queensland (Public Safety Business Agency)[2021] QIRC 101

Magee v State of Queensland (Public Safety Business Agency)[2021] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101

PARTIES:

Magee, Nicole Angela

(Appellant)

v

State of Queensland (Public Safety Business Agency)

(Respondent)

CASE NO:

PSA/2021/66

PROCEEDING:

Public Service Appeal – Conversion decision

DELIVERED ON:

25 March 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant was acting in a higher classification level – where role was attached to a project with an end date – consideration of 'genuine operational requirements'

LEGISLATION:

Directive 13/20 Appointing a public service employee

Industrial Relations Act 2016 (Qld), s 562B

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

CASES

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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]
    Ms Nicole Angela Magee appeals a decision not to permanently appoint her to the position in which she has been acting at a higher classification level ("the decision").
  1. [2]
    Since 3 December 2018, and at the time Ms Magee commenced this appeal, Ms Magee has been temporarily acting in the position of an AO7 Principal Program Delivery Officer. This temporary contract is to expire on 30 June 2021.
  1. [3]
    Ms Magee holds a substantive position of AO5 Project Officer, Property and Facilities Management ("PFM"), Asset and Procurement Services, Public Safety Business Agency ("PSBA").
  1. [4]
    By notice of appeal filed in the Industrial Registry on 5 February 2021, Ms Magee, pursuant to Ch. 7 of the Public Service Act 2008 (Qld) ("PS Act"), appealed against the decision. Ms Magee appeals on the grounds that the PSBA appointed two team members who were temporary to permanent positions. Ms Magee argues that the appointment of these two temporary employees to permanent, set a precedent and establishes that there is an ongoing operational requirement for the role even though the PSBA is to be disestablished. This ground of appeal arises in the context of an announcement on 7 September 2020 by the State Government that the PSBA is to be de-established and the established legislation is to be repealed from April 2021.
  1. [5]
    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.
  1. [6]
    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 and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [7]
    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. [8]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [9]
    The decision was contained in a letter to Ms Deb Paterson, Acting General Manager of the Human Resources Division of the PSBA,[4] in the following terms:

…

Decision on request

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.

You have been relieving against temporary position 4-956154 AO7 Principal Program Delivery Officer since 3 December 2018. You have been on higher duties in this role a total of two years. From the time you were appointed to the temporary AO7 role, you have been extended in this position six times. This temporary position currently expires on 30 June 2021 and is not funded beyond this date.

As you are aware, on 7 September 2020, the State Government publicly announced the disestablishment of the Public Safety Business Agency and the repealing of the establishing legislation to ultimately occur from April 2021. All positions and staffing are currently being reviewed for redistribution to the various agencies over the coming months.

Whilst all temporary to permanent and higher classification level conversations remain the ultimate responsibility of the Public Safety Business Agency until the legislation is repealed, these decisions cannot be made in a vacuum and are decided in consultation with each public safety agency as to their individual genuine operating environment.

As a result of this decision not to convert you to the higher classification level, you will continue in the role of Principal Program Delivery Officer until 31 January 2021 when the genuine operational requirements of the agency will be reviewed.

…

Relevant provisions of the PS Act and Directive 13/20

  1. [10]
    Section 149C of the PS Act relevantly provides:

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

  1. (1)
    This section applies in relation to a public service employee if the employee-
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

  1. (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).

…

(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)
    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)
    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. [11]
    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),[5] Merrell DP relevantly stated:[6]

[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. [12]
    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. [13]
    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. [14]
    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
  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.

  1. [15]
    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. [16]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C 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?

  1. [17]
    At the outset it is noted that the PSBA makes the rather peculiar submission that Ms Magee's appeal of the decision contained in the correspondence from the PSBA on 15 January 2021 is misconceived. The PSBA maintains that the decision of the PSBA is a deemed decision under s 149C(6) of the PS Act that occurred on 8 January 2021 (28 days after the submitted request) and that is the decision that should be under appeal.
  1. [18]
    I describe this submission as "peculiar" as the correspondence that was sent on behalf of the Acting General Manager of the Human Resources Division of the PSBA on 15 January 2021, has the form of a written decision. It identifies at the outset that the decision maker has "decided not to appoint you to the higher classification level at this time" and further states that "I have considered your request and my decision response is based on consideration of the requirements of s 149C…". The reasons for the decision are then contained under a heading "Decision on request". Under that heading it is stated that "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."
  1. [19]
    In any event, whether the decision was a deemed decision on 8 January 2021 or as contained in the correspondence of 15 January 2021 (which I consider at least provides notice of the decision), it is clear that the PSBA have determined not to allow Ms Magee's request for appointment to the higher classification level. Further, the correspondence of 15 January 2021 advises that the reason why that determination has been made is due to the operational requirements of the PSBA.

Genuine Operational Requirements of the PSBA

  1. [20]
    As noted above, s 149C(4A)(a) of the PS Act and Clause 6.2(a) of the Directive provides that the decision maker must have regard to the "general operational requirements of the Department".
  1. [21]
    It has been held,[7] that when construed in context, the phrase "genuine operational requirements of the Department" 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…position at the higher classification level.[8]

  1. [22]
    Having regard to this, it was relevant for the decision maker to consider whether Ms Magee should be appointed to the higher classification level position in circumstances where the agency Ms Magee has been working in is due to be de-established in April 2021.
  1. [23]
    I accept the PSBA's submission that it does not have a genuine operational requirement for Ms Magee to continue working for the PSBA in the role. 
  1. [24]
    Ms Magee submits that a precedent has been set by the appointment of two temporary employees to a permanent position in December 2020. I do not know the details with respect to those appointments or why they were made. Further, an appointment of two temporary officers to a permanent position is made under a different provision of the PS Act and I am satisfied, in any event, that it would not establish a precedent with respect to Ms Magee's request.
  1. [25]
    The PSBA refers to the announcement made by the State Government that the PSBA is to be disestablished from April 2021 and that all positions and staffing are currently being reviewed for redistribution to the various agencies over the coming months. In its submissions, the PSBA notes that:

As positions are transitioned into the respective portfolio departments, it will be the individual department requirements that will dictate their resourcing models and classification levels. The Current project work being undertaken by the Appellant will revert to the departments. Whilst capital works programs will be in place for the departments resourcing of those work units will be in the bailiwick of each department.

  1. [26]
    It appears, based on the submissions of PSBA, the structure to be adopted by each relevant department is currently unknown.
  1. [27]
    I am satisfied that the PSBA's reliance on the general operational requirements of the de-establishment of the PSBA was reasonable when it declined to convert Ms Magee to the position in which she is currently employed.
  1. [28]
    For the forgoing reasons, I am satisfied that the decision made by PSBA was fair and reasonable. 

Order

  1. [29]
    I make the following order:
  1. Pursuant to s 562(C)(1)(a) of the Industrial Relations Act 2016 (Qld), 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] Although this is disputed by the PSBA on the basis it contends the decision was a deemed decision.

[5] [2020] QIRC 203.

[6] Ibid [37] – [38].

[7] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell.

[8] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Magee v State of Queensland (Public Safety Business Agency)

  • Shortened Case Name:

    Magee v State of Queensland (Public Safety Business Agency)

  • MNC:

    [2021] QIRC 101

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    25 Mar 2021

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
1 citation
Jump To
Cite 1 - (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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 1872 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.