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  4. Jochheim v State of Queensland (Department of Education) - [2021] QIRC 124

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Jochheim v State of Queensland (Department of Education)[2021] QIRC 124

Jochheim v State of Queensland (Department of Education)[2021] QIRC 124

INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jochheim v State of Queensland (Department of Education) [2021] QIRC 124

PARTIES: 

Jochheim, Veronica

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2020/334

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

13 April 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where substantive employee is on approved parental leave – consideration of "genuine operational requirements"

LEGISLATION:

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

Industrial Relations Act 2016 (Qld), s 562B, s 562C

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

Introduction

  1. [1]
    Ms Veronica Jochheim appeals a decision of the State of Queensland (Department of Education) ("the Department") to not convert her temporary placement in a higher classification level position to a permanent position.
  1. [2]
    Ms Jochheim is permanently employed as an AO4, Senior Human Resource Service Officer with the Department, and since 23 May 2016, has been performing higher classification duties of an AO6, Senior Human Resource Consultant within the South East Region of the Department.
  1. [3]
    Ms Jochheim requested to be appointed to the AO6 position pursuant to s 196 of the Public Service Act 2008 (Qld) ("the PS Act").
  1. [4]
    On 9 November 2020, Ms Jochheim received a decision from Ms Lisa Newbold, Director, Employment Review, Human Resources of the Department who determined that Ms Jochheim's engagement was to continue according to the terms of her existing temporary arrangement ("the decision").
  1. [5]
    Ms Jochheim appeals the decision on the ground that the decision maker did not give due consideration to the genuine operational requirements of the Department as required by s 149C(4A) of the PS Act. Further, Ms Jochheim submits that the decision maker erred in making the decision as they have only considered that the position is not vacant whilst not considering that the substantive owner of the position will not likely return to the role.
  1. [6]
    The Department submits that the decision maker did have regard to the genuine operational requirements of the Department pursuant to s 149C(4A) of the PS Act and that the decision is fair and reasonable.
  1. [7]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), 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. [8]
    Sections 562B(2) and (3) of the IR Act, which commended 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. [9]
    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 be re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]
  1. [10]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [11]
    The decision was contained in a letter addressed to Ms Jochheim from Newbold dated 9 November 2020, and including the following relevant terms:

Decision Outcome

I have decided to refuse your request to be appointed to a higher classification level under s. 149C of the PS Act and the Directive.

In accordance with the PS Act and Directive, while I note that you:

  • are acting at a higher classification level role in the Department, in circumstances where you hold an appointment with, or are employed by, the Department; and
  • have been acting in the higher classification level for a continuous period of at least one year; and
  • are eligible for appointment to the position at the higher classification level role having regard to the merit principle,

genuine operational requirements exist to support the refusal of your request to be appointed to the higher classification level.

In making this decision, I have also had regards to:

  • the Human Rights Act 2019 (the HR Act) and other laws, particularly the right to work as embodied in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). I consider that, in observing and applying the matters that must be taken into consideration under the Directive and s.149C of the PS Act, I am respecting and acting compatibly with this right and others prescribed in the HR Act, and I have done so in making this decision, as required under s.58(1) of the HR Act.

Your current higher classification level engagement will continue according the terms and conditions of the existing arrangement above.

Reasons for Decision

The temporary nature of your higher classification level role at Human Resources Hope Island is the result of a temporary vacancy arising from an existing employee being absent from the role for a known period. The expected return date of permanent employee is 10 December 2021.

s. 148 (2)(a) of the Public Service Act 2008 (Act) provides than an appointment should be on a temporary, rather than permanent basis, to fill a temporary vacancy arising because a person is absent for a known period; this includes approved parental leave.

In addition to the above circumstances provided for under the Act, section 88 of the Industrial Relations Act 2016 provides employees, who return to work after parental leave or maternity leave, have a legal entitlement to be employed in the position they held immediately before starting leave. Your temporary engagement at the higher classification level role only exists because of a specific parental leave absence within the South East Region.

Relevant provisions of the PS Act and Directive 13/20

  1. [12]
    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. (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.
  1. (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),[4] Merrell DP relevantly stated:[5]

Reasons for Decision

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;
  • 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: Appointing a Public Service Employee to a Higher Classification Level ("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
  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. [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 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. [19]
    Clause 4.2 of Directive 13/20 provides that secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate.
  1. [20]
    Relevantly, clause 4.2 of Directive 13/20 further provides examples of circumstances that would support the temporary engagement of an employee at a higher classification level, they include:
  1. (a)
    when an existing employee takes a period of leave such as parental, long service leave, recreation or long term sick leave and needs to be replaced until the date of their expected return;

…

(emphasis added)

  1. [21]
    The relevant issue for my consideration is whether the circumstances of this matter would support the continued temporary engagement of Ms Jochheim whilst she was backfilling for an existing employee who has taken a period of approved parental leave and other special leave and has an expected return date to the position.
  1. [22]
    The Department submits that the position is substantively "owned" by a public service officer (the "incumbent employee") who is currently absent from the role on a period of approved parental leave. The Department submits that in accordance with ss 59(1) and 73(1A) of the IR Act, an employee is entitled to access a period of up to 104 weeks of parental leave from their employer.
  1. [23]
    The Department further submits that s 88 of the IR Act entitles an employee returning from parental leave to be employed in the position the employee held immediately before starting the leave.
  1. [24]
    The Department submits that the incumbent employee commenced the current period of parental leave on 23 September 2019 and is entitled to continue on that leave up to 22 September 2021. It notes that a further period of Special Leave (no pay) has been applied for and approved up to 10 December 2021 (being the last day of the 2021 school year).
  1. [25]
    The Department submits that the incumbent employee has accessed leave entitlements appropriate to their circumstances, and it is these circumstances which have allowed for a temporary backfill arrangement in the role. Ms Jochheim is, and has been, temporarily backfilling the role of the incumbent employee who is currently on a period of parental leave.
  1. [26]
    Ms Jochheim submits that a consideration of the genuine operational requirements of the Department would necessitate an evaluation of whether the incumbent employee is likely to return or not, and in that case, if those operational requirements would be best served by appointing Ms Jochheim to the role.
  1. [27]
    Ms Jochheim submits that in the present case, the incumbent employee has been absent from the role since May 2016, a period of some 4.5 years and is presently accessing a second period of parental leave which was recently extended to 10 December 2021.
  1. [28]
    Further, Ms Jochheim submits that the incumbent employee no longer lives in the area which tends to indicate that there may not be an intention for her to return to the role. Ms Jochheim submits that, to her knowledge, the Department has not made contact with the incumbent employee to ascertain her intention as to whether she wishes to return to the role after her prolonged period of absence.
  1. [29]
    Ms Jochheim further submits that whilst it may be an untenable outcome for an employee to be appointed to a role which the substantive owner then returns, the Department is industrially able to mitigate against this risk, including by asking the long term employee whether she wants to "un-attach" from the position, freeing it up to provide employment security for the backfilling employment whilst still retaining the employment and classification of the incumbent employee if they do return to the Department.
  1. [30]
    As noted above, clause 4.2(a) of the Directive relevantly identifies, by way of example, that when an existing employee takes a period of leave such as parental leave, and needs to be replaced until the date of their expected return, then that is a circumstance that would support the continued temporary engagement of an employee at a higher classification level.
  1. [31]
    Whilst Ms Jochheim points out that the incumbent employee has been absent for a period of 4.5 years, I do not have the information as to what the reason for the absence of that period of time is (except for there being a mention that the current period of parental leave was the incumbent employee's second period of parental leave).
  1. [32]
    However, the information I do have before me is that the incumbent employee is presently on a period of approved parental leave, together with a period of extended special leave, up until 10 December 2021. That absence, together with the reasons for it, and the considerations of the Department's obligations as an employer of an employee who has taken parental leave under the IR Act, are matters that fall within the consideration of genuine operational requirements of the Department.
  1. [33]
    I am satisfied that the fact that the incumbent employee is on a period of approved parental leave and special leave, until the date of their expected return, is an authentic and relevant consideration with respect to how the Department manages itself in a way that promotes the effective, efficient and appropriate management of public resources. There is no doubt, that the Department is obliged, pursuant to the IR Act, to ensure that the position that the incumbent employee is in remains available to them upon their expected return from parental and approved special leave.
  1. [34]
    I do not consider it appropriate nor necessary nor within the bounds of what is required pursuant to s 149C of the PS Act for the Department to intrude on the incumbent employee's period of parental leave to inquire as to what her intention may be at the cessation of her approved leave.
  1. [35]
    Further, as to Ms Jochheim's submission that the Department un-attach the incumbent employee from her substantive position whilst on parental leave does not have regard to the relevant obligations of the employer pursuant to the IR Act with respect to an employee who is on a period of parental leave.
  1. [36]
    Relevantly, the Department's written procedure titled "Unattach from position" states that the purpose of seeking to un-attach an employee from the position is for a permanent employee to agree to be un-attached from their substantive position, whilst still maintaining their permanent employment status with the Department. The effect of this is that whilst the employee maintains their permanent status, they have no funded substantive position to return to at the conclusion of their absence from the Department. In the circumstances of this matter, I consider that such a submission (that the incumbent employee be requested to un-attach from her position) will potentially result in the  Department's non-compliance  with its obligations under the IR Act and will potentially act to the disadvantage of the incumbent employee.  Further it is my view that such a process goes well beyond matters that must be considered by the Department under s 149C of the PS Act.
  1. [37]
    Accordingly, I am persuaded that the Department conducted a reasonable assessment of what amounts to genuine operational requirements and that it was fair and reasonable to deny the permanent appointment of Ms Jochheim to the position in the circumstances. I have determined that the decision was fair and reasonable.

Order

  1. [38]
    I make the following orders:
  1. Pursuant to s 562C(1)(c) 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] [2020] QIRC 203.

[5] Ibid, [37] – [38].

Close

Editorial Notes

  • Published Case Name:

    Jochheim v State of Queensland (Department of Education)

  • Shortened Case Name:

    Jochheim v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 124

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    13 Apr 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
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
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
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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