Jacks v State of Queensland (Department of Environment and Science)
[2021] QIRC 102
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- Unreported Judgment
- Jacks v State of Queensland (Department of Environment and Science)[2021] QIRC 102
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Jacks v State of Queensland (Department of Environment and Science)[2021] QIRC 102
Jacks v State of Queensland (Department of Environment and Science)[2021] QIRC 102
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102 |
PARTIES: | Jacks, Ryan (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) |
CASE NO: | PSA/2020/401 |
PROCEEDING: | Public Service Appeal – Appointment to position at higher classification |
DELIVERED ON: | 25 March 2021 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – application for permanent employment at higher classification – genuine operational requirements |
LEGISLATION: | Directive 13/20 Appointing a public service employee to a higher classification level cls 4, 6 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) s 149C |
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 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
Background
- [1]Mr Ryan Jacks is substantively employed as an Administration Officer (AO2) with the Department of Environment and Science ('the Department').
- [2]Since 1 February 2019, Mr Jacks had been acting as a Senior Project Officer (AO6) (position number 725763) within Conservation Policy and Planning, Environmental Policy and Planning in the Department. This higher classification level position has temporary funding and has an end date of 30 June 2021.
- [3]On 29 October 2020, Mr Jacks wrote to the Department requesting that he be permanently appointed to the higher classification level within the Department in accordance with s 149C of the Public Service Act 2008 (Qld) ('the PS Act').
- [4]On 16 November 2020, Mr Jacks received correspondence (‘the decision’) from Dr Karen Hussey, Deputy Director-General of the Department. The correspondence advised Mr Jacks that a review of his employment status had been conducted in accordance with the requirements s 149C of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
- [5]The decision advised Mr Jacks that he could not be appointed to the AO6 role due to the genuine operational requirements of the Department.
- [6]The reasons for the decision were set out as follows:
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 genuine operational requirements relate to the division and department's obligation to manage its program of work within the approved financial and FTE allocation
- Funding for this role (and the Offsets program) is determined through an annual application for resourcing from the Offsets Management Fund, which has a provision for administrative management.
- The Queensland Environment Offsets Framework – Consultation and Response Report indicated that a multisector reference group will be established in 2021 to guide potential reforms to the environmental offsets framework. The report shows that fund delivery required reform.
- While funding envelope for this role may continue, the FTE allocated is also temporary and the function was required to be absorbed within the EPP FTE cap for 2020/2021.
- EPP is in the process of preparing a resource plan to manage a reducing FTE cap and the reallocation of existing resources to support its ongoing program of work.
- [7]In response to the decision, Mr Jacks filed an Appeal Notice on 8 December 2020. In his appeal, he contended that:
- Since the Environmental offset framework came into effect, the Department has received a significant amount of payments which continue to be received;
- The Offsets Fund Management Team which Mr Jacks supports is responsible for the administration and management of the offsets account. Mr Jacks contends this project is not a 'limited life project' and positions are funded from both base funding and external funding received from the financial settlement of offset payments;
- Offset payments received have been steadily increasing and the delivery of projects will continue in line with the Environmental offset framework;
- Ongoing management for offsets contracts is required for up to 20 years and Mr Jacks' experience, skills and knowledge specifically relate to this management;
- In response to the Department establishing a multisector reference group in 2021, Mr Jacks notes that a timeframe for this has not yet been released and the current work's priorities do not have end dates; and
- The Department has not addressed the adequate resourcing of the team to ensure the delivery of statutory requirements and keeping Mr Jacks in the role supports 'desired departmental outcomes'.
What decisions can the Industrial Commissioner make?
- [8]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
- (c)set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Nature of appeal
- [9]
- [10]
- [11]The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Mr Jacks to the higher position was fair and reasonable.[6]
- [12]For the reasons set out below I have determined that the decision was fair and reasonable.
Relevant sections of the PS Act and Directive
- [13]The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
- [14]Section 149C of the PS Act relevantly provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee –
- (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.
- [15]Clause 4 of the Directive provides as follows:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
…
(c) to perform work for a particular project or purpose that has a known end date
(d) to perform work necessary to meet an unexpected short-term increase in workload
…
- [16]Clause 6 of the Directive provides as follows:
6. 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.
Submissions of the parties
Submissions of Mr Jacks
- [17]Mr Jacks’ Appeal Notice was accompanied by a written submission. The essence of his appeal is that he disputes the limited nature of the funding of his role. He asserts that his team is responsible for administration and ongoing management of the offset account. He contends that this program is not a ‘limited life project’.[7]
- [18]A Directions Order dated 8 December 2020 was issued requiring the provision of submissions from both parties. In an email exchange with the Registry, Mr Jacks indicated on 17 December 2020, that he had elected not to provide further submissions. He also did not provide submissions in reply to the submissions received from the Department on 13 January 2021.
- [19]It should be noted that Mr Jacks did enquire about making a further submission in an email dated 5 February 2021. In the email Mr Jacks said:
There have been decisions and communications from within the Environmental Policy & Programs division since this submission that contradict the Department’s response. Is there an opportunity to present these in this process or does the department’s response close submissions for this matter?
- [20]As a consequence of receiving Mr Jacks’ email, the matter was listed for mention on 12 February 2021 so that further particulars of Mr Jacks’ request could be obtained. At the mention it became apparent that Mr Jacks sought to introduce comparisons with other employees and also decisions made after the submissions of the Department had been filed in this matter.
- [21]In the circumstances, given the matters Mr Jacks sought to raise all post-dated the decision, and given the limits of my jurisdiction i.e. to review the decision, I declined to allow Mr Jacks to formally tender any further submissions.
- [22]For completeness, I add that the possibility of the matter being conducted by way of a hearing was canvassed with the parties at the mention. On further reflection I have elected to deal with the matter on the papers as originally proposed.
Submissions of the Department
- [23]The Department contends, for reasons set out in their submissions dated 13 January 2020, that genuine operational requirements preclude Mr Jacks' permanent appointment at the higher level. In summary, it submits that:
- There were no issues as to Mr Jacks' eligibility to be appointed;
- In accordance with s 149C(4A) of the PS Act, the Department assessed its genuine operational requirements in the circumstances of Mr Jacks' higher duties arrangement, temporary funding and the FTE allocation for the position;
- Mr Jacks' position is a temporary position for a program which will end on 30 June 2021 with no anticipation of an extension. The position is temporarily funded with an allocation which is only approved until 30 June 2021. The FTE allocation for the role will cease on this date as part of a reduction in FTE allocations;
- Although the funding has been ongoing since November 2016, the Queensland Environment Offsets Framework – Consultation and Response Report recommended establishing a multisector reference group in early 2021. This meant there was no certainty in funding or the ongoing need of the AO6 position in the program due to potential reforms in the framework; and
- The Department is required to manage staff within its approved fiscal and FTE allocation. The Treasury Forward Estimate FTE allocation will be reduced by 30 June 2021. Even if the funding is provided for the program, it will still need to operate within the reduced FTE allocation.
Consideration
- [24]The reasons for the decision are clearly set out. The singular reason for declining Mr Jacks’ application for permanent appointment is the lack of certainty that the position would continue to receive funding. This position is reiterated in the Department’s submissions where the Department notes that the funding for Mr Jack’s position only extends to 30 June 2021 and further, there is a reference to contemplation of reforms to the Environmental Offsets Framework.
- [25]The Department relies on these facts and characterises them as ‘genuine operational requirements’ taken into account in considering the application by Mr Jacks.
- [26]In Morison v State of Queensland (Department of Child Safety, Youth and Women) (‘Morison’) Deputy President Merrell observed:[8]
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.
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; 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.
…
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.'
(Emphasis added)
- [27]While I accept that historic patterns of funding might give rise to expectations of future patterns, it remains an inevitable conclusion that a fixed end date for funding removes certainty for both the future of funding and the roles that are funded.
- [28]I have no doubt that short, fixed terms for funding will have multiple fiscal, logistical and practical benefits. However, it seems a (presumably unintended) aspect of fixed term funding arrangements for employees like Mr Jacks is that the uncertainty they create will almost always produce a genuine operational requirement capable of defeating an application for appointment pursuant to s 149C of the PS Act.
- [29]While I consider this scenario to be broadly unsatisfactory, it does not alter the fact that at the time of making the decision, the decision maker in this instance could not predict with complete certainty that the funding and the role filled by Mr Jacks would continue.
- [30]Speculation about future funding, regardless how confidently it might be predicted, could never be a sound basis for decision making of this type. For the decision maker to accede to Mr Jacks’ request on the basis that there was an historic pattern of funding being renewed would ignore the potentially dire consequences of appointing Mr Jacks permanently to a role that was liable to disappear if or when funding arrangements ceased.
- [31]In all of these circumstances, I consider the decision to be fair and reasonable.
Order
- [32]In the circumstances I make the following order:
- The decision appealed against is confirmed.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Ibid.
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.
[7] Appeal Notice dated 8 December 2020, Schedule A.
[8] [2020] QIRC 203 at [37]-[38].