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

Scott v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 126

Scott v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 126

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126

PARTIES:

Scott, Tanya

(Appellant)

v

State of Queensland (Department of Communities, Housing and Digital Economy)

(Respondent)

CASE NO.:

PSA/2020/291

PROCEEDING:

Public Service Appeal - Conversion to higher classification level

DELIVERED ON:

14 April 2021

MEMBER:

HEARD AT:

Merrell DP

Conferences on 17 December 2020 and on 26 February 2020 and on the papers

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on: 16 November 2020;

2 December 2020;

25 January 2021;

19 March 2021; and

26 March 2021

Respondent's written submissions filed on:

23 November 2020;

24 December 2020;

19 March 2021; and

26 March 2021

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision is set aside; and
  1. (b)
    another decision is substituted, namely, that Ms Scott is appointed to the position of Payroll Officer, Payroll and Establishment Services, Queensland Shared Services, classification AO4, position number 76020144, as from 14 April 2021.

CATCHWORDS:

PUBLIC SERVICE – Appointment under Public Service and Similar Acts – public service appeal – appellant requested respondent's chief executive to appoint appellant to higher classified position pursuant to s 149C(3) of the Public Service Act 2008 – appellant not appointed because another person was appointed to the position following the appellant's request – whether, having regard to the timing of the appellant's request, the appointment of the other person was permitted under the Public Service Act 2008 – whether decision not to appoint appellant to position, in those circumstances, was fair and reasonable – decision not fair and reasonable - decision set aside

STATUTES – interpretation – interpretation of the Public Service Act 2008 having regard to the conflict between the general power of the chief executive to appoint public service officers on tenure pursuant to s 119 and s 121 and the specific power under s 149C(4) of the Public Service Act 2008 to appoint an eligible public service employee who requests to be appointed to a position at the higher classification level – specific power prevails

LEGISLATION:

Acts Interpretation Act 1954, s 14A and s 27B

Directive 12/20 Recruitment and Selection, cl 6

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

Directive 15/13 Commission Chief Executive Directive Recruitment and Selection

Industrial Relations Act 2016, s 451 and s 562C

Public Service Act 2008, s 9, s 27, s 98, s 119, s 121, s 149C, s 194 and s 196

Workers' Compensation and Rehabilitation Act 2003, s 545

CASES:

Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268

Capuano v Q-Comp [2004] QSC 333; [2005] 1 Qd R 242

Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106

Khan v State of Queensland (Department of Housing and Public Works) [2020] QIRC 227

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

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

Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038

Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 59 ALJR 689

Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation [1980] FCA 38; (1980) 29 ALR 333

Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282

Smith v R [1994] HCA 60; (1994) 181 CLR 338

The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114

White v Mason [1958] VR 79

Reasons for Decision

Introduction

  1. [1]
    Ms Tanya Scott is employed by the State of Queensland. Ms Scott has acted in the higher classification level position of Payroll Officer, Payroll and Establishment Services, Queensland Shared Services ('QSS'), classification AO4, position number 76020144 ('the position'). The QSS is a business unit of the Queensland Government Customer and Digital Group which is a division of the Department of Communities, Housing and Digital Economy.
  1. [2]
    By appeal notice filed on 9 November 2020, Ms Scott, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision dated 20 October 2020 conveyed by Ms Chhaya Mehta, Acting Senior Human Resources Business Partner, Human Resources. The decision was one made by the Deputy DirectorGeneral, Services Delivery and Operations ('the Deputy DirectorGeneral') to deny the earlier request made by Ms Scott to be appointed to the position ('the decision'). The decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').
  1. [3]
    The parties initially exchanged written submissions in accordance with a Directions Order dated 9 November 2020. Upon my perusal of the Department's submissions filed on 23 November 2020, it became apparent that following Ms Scott's request made pursuant to s 149C(3) of the PS Act to be appointed to the position, the position was permanently filled by a different employee (referred to as 'Employee X' in the Department's submissions) '… via the use of an order of merit established during a limited advertising process undertaken within QSS in the 12 months prior.' It was on that basis that the decision was made. Having regard to that submission, I called a conference of the parties on 17 December 2020 for the purposes of being able to understand all of the facts that gave rise to the decision.
  1. [4]
    As a consequence of that conference, I gave the Department the opportunity to file and serve further written submissions, plus any relevant attachments, in relation to its submissions filed on 23 November 2020. I also gave Ms Scott the opportunity to file and serve any further submissions, plus any relevant attachments, in reply. Both parties filed and served such submissions. In its submissions filed on 24 December 2020, the Department, in respect of the appointment of Employee X, referred to the authority for a chief executive of a department to appoint a public service officer on tenure in the chief executive's department pursuant to the combined effect of s 119 and s 121 of the PS Act.
  1. [5]
    Upon perusing those further submissions, I mentioned the matter on 26 February 2021 during which I referred the parties to the fact that neither party had given consideration to the principle of statutory construction, referred to in cases such as Refrigerated Express Lines (A/Asia) Pty Ltd v Australian Meat and Live-Stock Corporation[1] ('Refrigerated Express') and inSmith v R[2] ('Smith'), that where there is a conflict in the same Act between a general provision and a specific provision on the same topic, the specific provision may prevail based on the presumed intention of Parliament not to deprive the specific provision of effect.
  1. [6]
    Subsequently, I gave the parties the further opportunity to make submissions about three questions, namely:
  • whether the specific power of a chief executive conferred in s 149C(4) of the PS Act, to appoint a public service employee, who is eligible to ask and does ask the chief executive to appoint the employee to the position at a higher classification in which he or she has been acting, prevails over the general power conferred on the chief executive, pursuant to s 119 and s 121 of the PS Act, to appoint public service officers on tenure?
  • if the Chief Executive of the Department did not, pursuant to s 119 and s 121 of the PS Act, have the power to appoint Employee X to the position, did that render the decision not fair and reasonable? and
  • if the decision under appeal was not fair and reasonable, having regard to the power conferred on the Commission by s 562C of the Industrial Relations Act 2016 ('IR Act'), what decision should be made?
  1. [7]
    Both parties filed further submissions in relation to these issues.
  1. [8]
    Pursuant to s 451(1) of the IR Act, I decided the appeal on the papers.
  1. [9]
    The question for my determination is whether the decision, and the decisionmaking process, was fair and reasonable.[3]
  1. [10]
    For the reasons that follow, the decision was not fair and reasonable.

Background

  1. [11]
    Ms Scott is an employee of the Department, permanently appointed to the position of Service Delivery Officer, classification AO3, within Payroll and Establishment Services, QSS.
  1. [12]
    Between 3 April 2018 and 9 July 2020, Ms Scott acted in the position to backfill the substantive employee who was relieving in an alternative position. On 10 July 2020, the position became permanently vacant when that employee retired.
  1. [13]
    Between 11 July 2020 and 28 September 2020, Ms Scott continued to act in the position.
  1. [14]
    By email dated 22 September 2020, Ms Scott submitted a written request, pursuant to s 149C(3) of the PS Act, to be appointed to the position. The Department does not dispute that Ms Scott was eligible to make that request.
  1. [15]
    The Department, on 23 November 2020, submitted:
  1. On 29 September 2020, the vacant AO4, Payroll Officer position within QSS, position number 76020144, that the Appellant was temporarily performing higher duties in at the time, was permanently filled by an employee, other than the Appellant, via the use of an order of merit established during a limited advertising process undertaken within QSS in the 12 months prior. Note - Herein the other employee will be referred to as Employee X.
  1. While Employee X was permanently appointed to the AO4, Payroll Officer position within QSS, position number 76020144, Employee X continued to temporarily perform duties in an alternative AO4, Payroll Officer position within QSS. As a consequence, the Appellant continued to perform higher duties in the AO4, Payroll Officer position in question, position number 76020144.
  1. At the time an assessment of the Appellant's conversion request was undertaken, Employee X was due to continue performing duties in an alternative AO4, Payroll Officer position until 23 October 2020. Consequently, the Appellant's temporary higher duties in the AO4, Payroll Officer position within QSS, position number 76020144, was to expire on 23 October 2020, which was to coincide with the date Employee X was due to return to their substantive AO4, Payroll Officer position within QSS, position number 76020144.
  1. Since 24 October 2020, the Appellant has been continuously performing higher duties in a different AO4, Payroll Officer position within QSS, position number 76008134. The purpose of the Appellant's temporary higher duties in that alternative AO4, Payroll Officer position, has been to backfill the substantive employee, while the substantive employee has been relieving in an alternative position within QSS. The Appellant's current temporary placement in this AO4, Payroll Officer position, is due to expire on 31 January 2021.
  1. Between 3 April 2018 and 23 October 2020, the Appellant's temporary placement in the AO4, Payroll Officer position within QSS, position number 76020144, was extended on 23 occasions.
  1. There are no performance concerns regarding the Appellant's temporary placement in the AO4, Payroll Officer position within QSS, position number 76020144, that have been put to the Appellant, documented and remain unresolved.
  1. On 21 October 2020, via letter dated 20 October 2020, the Appellant was advised that the chief executive's delegate had made a decision to continue the Appellant's temporary placement in the higher classification level position, in accordance with the terms of that temporary placement (and accordingly, refuse the Appellant's request) (refer to Attachment 3).
  1. [16]
    Those facts are not disputed by Ms Scott.

The decision

  1. [17]
    In the decision, Ms Mehta relevantly stated:

The Deputy Director-General, Services Delivery and Operations (Deputy Director-General) has given consideration to your request and notes the following:

  • You are substantively employed in the role of AO3, Service Delivery Officer within Payroll Establishment Services, QSS and that since 3 April 2018 you have been continuously performing the duties of AO4, Payroll Officer within Payroll and Establishment Services, QSS.
  • The purpose of your placement in the role of AO4, Payroll Officer within Payroll and Establishment Services, QSS is to backfill a substantively vacant role.
  • You have been engaged in the position of AO4, Payroll Officer within Payroll and Establishment Services, QSS for 2 years and 6 months.
  • Your engagement in the position of AO4, Payroll Officer within Payroll and Establishment Services, QSS has been extended 23 times.
  • Your current engagement in the AO4, Payroll Officer within Payroll and Establishment Services, QSS is due to expire on 31 January 2021.
  • There are no performance concerns regarding your placement in the AO4, Payroll Officer within Payroll and Establishment Services, QSS, that have been put to you, documented and remain unresolved.

Higher classification conversion decision

After considering your request to be permanently employed in the position of AO4, Payroll Officer within Payroll and Establishment Services, QSS, and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement.

The reasons for the Deputy Director-General's decision are:

  • The role against which you are currently temporarily placed recently had a permanent appointment made to the position.
  • As such, the AO4, Payroll Officer role within Payroll and Establishment Services, QSS against which you are temporarily placed is not available for permanent appointment.

Ms Scott's grounds of appeal and submissions

  1. [18]
    In her appeal notice, Ms Scott contended that:
  • the Deputy DirectorGeneral erred in coming to the decision as he or she did not give due consideration to the genuine operational requirements of the Department as required by s 149C(4A) of the PS Act and, instead, Ms Mehta '… has asserted I am ineligible for conversion on the basis that the role I have been continuously acting in is not substantively vacant and on that basis is not available for permanent appointment';
  • the PS Act and the Directive did not include a role being substantively vacant as a prerequisite for conversion; and
  • having regard to cl 4.2 of the Directive, the fact that a role is not substantively vacant or that a backfilling arrangement exists may be a consideration as to why appointment should not be made; however, it is not a threshold question or a blanket reason to decline an appointment; rather, it is one of a number of considerations involved in assessing the 'genuine operational requirements of the department' as required by cl 6.2(a) of the Directive.

Ms Scott's initial submissions about the construction of s 149C(4A) of the PS Act

  1. [19]
    In paragraphs 8 to 20 of her submissions filed on 16 November 2020, Ms Scott made submissions about the construction of s 149C(4A) of the PS Act that were almost identical to the submissions made to this Commission by the appellant in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison').[4]
  1. [20]
    I reject those submissions made by Ms Scott, about the construction of s 149C(4A) of the PS Act, for the same reasons given in Morison.[5]

Ms Scott's other submissions and the Department's response

  1. [21]
    Ms Scott further submitted that:
  • proper regard was not given to the genuine operational requirements of the Department which must be taken into account when making a decision to refuse her request; and
  • contrary to s 27B of the Acts Interpretation Act 1954, the decision did not contain the material findings of fact and evidence relied upon in coming to the decision which also rendered the decision unfair and unreasonable.

The genuine operational requirements of the Department

  1. [22]
    Ms Scott contended that genuine operational requirements supported her appointment and, in summary, submitted that:
  • a consideration of the operational requirements of the Department would include a consideration of both getting the best value of expenditure on public service salaries and also the prompt and efficient delivery of services by her work unit; and that appointing her to the role would have ensured both of these considerations were best served;
  • because of her acting in the position, she has become essential in the smooth running of her team which involved her supervising up to 10 staff;
  • she has developed a system to ensure a fair distribution of workload to her staff;
  • her experience acting in the position has ensured she is fully conversant with all relevant Departmental policies and procedures;
  • her service has allowed her to develop significant relationships with relevant client contacts;
  • she is responsible for processing and liaising with SES/SO level employees to ensure their appointments, terminations and contracts are processed correctly and accurately;
  • she has the support of her subordinates, direct supervisors, managers and key contacts; and
  • she can perform the functions of her team when needed and trains and leads her staff to foster a safe, happy and productive work environment.
  1. [23]
    In conclusion, Ms Scott submitted:
  1. In contrast, the substantive owner of the role that I am acting up in has not worked in the position for over two years and has no current working experience in the role of the breadth of relationships I have worked to develop with key stakeholders.
  1. The corporate knowledge I have obtained during my time acting in the role is of substantial value to the Department. Were the relieving arrangements to end, forcing employees back to their respective substantive roles, the impact to the public purse would be quantifiable given the cost in paying public servant salaries for the necessary time to train incoming employees and the associated additional cost of inefficiencies in workplace disruptions.
  1. I understand that there is a converse risk that in certain circumstances if other seconding/relieving arrangements ended it may lead to a situation of the Department having additional FTE on their books which is surplus to requirements or is over establishment. There are existing processes however available to the Department to ensure permanent employees have security in their employment such as allowing employees to detach from or relinquish their roles but not their substantive classifications.
  1. I contend that if the decisionmaker had considered my request to be permanently appointed to the Payroll Officer role in light of the operational requirements of the department, noting the value that I bring to the roles, then they would have reached a different decision.
  1. [24]
    After referring to the relevant background, the relevant legislative provisions and Ms Scott's submissions, the Department submitted that:
  • because, at the time of the assessment of Ms Scott's conversion request, her temporary placement in the position was to backfill the substantive employee of the position, there was no longer a continuing need for Ms Scott to be placed in the position once the substantive employee returned to work in the position;
  • it does not have a genuine operational need to permanently employ, on a fulltime basis, two employees in the same position and it is not appropriate or viable for the Department to offer to permanently employ Ms Scott in the position; and
  • clause 4.2 of the Directive is quite clear that 'temporary circumstances still exist' and therefore there is a place, where appropriate, to temporarily engage or place employees at a higher classification level, including where an existing employee is absent to perform another role within the agency or is on secondment, and the agency does not use permanent relief pools for those types of roles.
  1. [25]
    Ms Scott's submissions are premised on the contention that a chief executive of a department should take into account operational requirements not directly connected with the position in which she had been acting, but should take into account broader considerations including her experience and skills and what that experience and skill brings by way of substantial value to the department.
  1. [26]
    Similar arguments have been made in public service appeals made to this Commission by appellants aggrieved by decisions made under s 149C(4) of the PS Act. I considered such arguments in the case of Nangit v State of Queensland (Department of Communities, Housing and Digital Economy).[6] For the same reasons I gave in that case,[7] submissions about the value an employee undoubtedly brings to a department, when they have acted in the position at a higher classification level - while obviously relevant in respect of a consideration of the merit principle as required by s 149C(1)(c) of the PS Act - go a step too far in respect of the genuine operational requirements of the Department of which the chief executive must have regard in making a decision.
  1. [27]
    The submissions made by Ms Scott about the genuine operational requirements of the Department supporting her appointment do not render the decision not fair and reasonable.

The adequacy of the reasons for decision

  1. [28]
    Ms Scott submitted that the decision did not set out the findings on material questions of fact and did not refer to the evidence or other material upon which the findings were based such that there was no compliance with s 27B of the Acts Interpretation Act 1954.
  1. [29]
    The Department submitted that it met the requirements of the Directive and s 27B of the Acts Interpretation Act 1954 because, in advising Ms Scott of the decision, a written notice was provided to her stating, the reasons for the decision, the total continuous period for which she had been employed at the higher classification level in the Department and how many times Ms Scott's engagement at the higher classification level had been extended. The Department further submitted that because there had been no previous decisions made under s 149C of the PS Act, it could not comply with s 149C(5)(d) of the PS Act.
  1. [30]
    Delegates of chief executives who make decisions under sections such as s 149C(4A) of the PS Act must comply with the requirements of s 27B of the Acts Interpretation Act 1954 and, in my view, must also comply with the principles of the adequacy of reasons for decisions I referred to in Morison.[8] They must also comply with s 149C(5)(d) of the PS Act.
  1. [31]
    In the present case, the reasons for the decision, reproduced in paragraph [17] of these reasons, generally conformed with s 27B of the Acts Interpretation Act 1954 and the above-mentioned principles.

Following Ms Scott's request to the Chief Executive to be appointed to the position, did the delegate of the Chief Executive have the power to appoint Employee X to the position?

The parties' initial submissions

  1. [32]
    In her submissions filed on 2 December 2020, Ms Scott submitted that:
  • the direct, permanent appointment of a person to the position involved an exercise of the Chief Executive's discretionary power to exempt a vacancy from advertising under cl 6.9 of Directive 12/20 Recruitment and Selection ('the Recruitment Directive');
  • that decision, made after her request to be appointed to the position under s 149C of the PS Act '… is unfair and unreasonable as the decisionmaker has taken an irrelevant consideration into account, being the consideration of whether another employee could be appointed to the vacant role' which is not a consideration required by s 149C(4A) or the Directive;
  • as of 23 September 2020, when the Department received her request to be appointed, it was obligated to consider the genuine operational requirements of the Department and other criteria contained in the Directive, and then assess her request; and
  • instead, the Chief Executive took discretionary action inconsistent with those obligations '… which has adversely impacted my ability to be appointed under the s 149C process' which Ms Scott submits was a procedural deficiency that renders the decision unreasonable.
  1. [33]
    Ms Scott then submitted:
  1. As the Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 the construction of its provisions is approached in the same way as interpreting a statute. Accordingly the requirement to have regard to genuine operational requirements of the Department is to be interpreted in light of the stated purpose of the Directive 13/20 at 1.2(b) [sic] that the directive:

(b) supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle.

  1. Further the Directive 13/20 in clause 3.4 specifically contemplates the interaction between appointments made under the s 149C process and appointments made where an employee is not eligible under the s 149C and they are instead permanently appointed under the Directive 12/20. Clause 3.4 makes it clear that the requirement to advertise roles under the Directive 12/20 is only waived where the appointment is made under s 149C and that in all other cases the requirements of Directive 12/20 must be complied with.
  1. I submit that the decision to directly appoint the other employee is unfair and unreasonable as it is circumventing the stated purpose of the Directive 13/20 and the intention of the recent amendments to the Public Service Act. The clear stated intent of the Directive 13/20 and s 149C process is for employees to be supported in the opportunity to be appointed permanently where they are eligible. In the present case the Department has expressly acted contrary to the intention of the Act and Directive by instead choosing to exercise a discretionary power under the Directive 12/20. This has meant that despite meeting the eligibility requirements for appointment and being relieving in a substantively vacant role the actions of the chief executive during the period of review have circumvented my ability to be appointed.
  1. Given the role I was acting in had sat vacant for some 10 weeks since early July yet was filled one week after I made my request to be appointed to it, I submit that the timeline of that decision supports my submissions that it was unfair during the consideration of my request to make a discretionary appointment under the Directive 12/20. To allow such an appointment as an operational requirement of the department is an interpretation of that term which does not support the stated purpose of the Directive 13/20.
  1. [34]
    The Department, in its further submissions filed on 24 December 2020, after referring to the Recruitment Directive, the exemptions to advertising and limited advertising and merit assessments for non-advertised vacancies and recurring vacancies, made specific submissions about the permanent appointment made to the position on 29 September 2020.
  1. [35]
    The Department submitted that while the Recruitment Directive specified the requirements applying to the recruitment and selection of public service employees, s 119 of the PS Act read in conjunction with s 121 of the PS Act, '… provide the authority for a chief executive of a department to appoint a public service officer on tenure in the chief executive's department.'
  1. [36]
    The Department then submitted that:
  • on 25 October 2019, the Chief Executive of the Department approved, in accordance with former Directive 15/13 Commission Chief Executive Directive: Recruitment and Selection, '… the limited advertising of a number of positions within QSS, including, but not limited to, permanent AO4, Payroll Officer positions within QSS';
  • the respective advertisements closed on 28 November 2019, and from the ensuing recruitment and selection activities conducted, order of merit lists were established to fill '… future recurring vacancies, including in relation to the AO4, Payroll Officer positions';
  • on 5 May 2020, QSS management submitted a request for advice to Human Resources to utilise the established order of merit lists to fill vacancies within QSS;
  • between May 2020 and September 2020, '… deliberations occurred internally within the department regarding the request from QSS. These deliberations were prolonged as the department was, at the time, also establishing internal processes to effectively manage the full-time equivalent growth in the Queensland public service, to support its economic recovery following COVID-19';
  • on 29 September 2020, the chief executive approved the request from QSS to fill a number of recurring vacancies within QSS, utilising the order of merit lists established from the limited advertising process approved by the Chief Executive on 25 October 2019; and while this was seven days after Ms Scott submitted her written request to be appointed to the higher classification level position of AO4, Payroll Officer within QSS, position number 76020144, '… the chief executive's authorised delegate had not, at that time, given consideration to the Appellant's conversion request';
  • on the same day, and following the approval of the Chief Executive to utilise the established order of merit lists, the relevant authorised delegate of the Chief Executive '… determined to appoint, in accordance with section 119 and 121 of the PSA, a number of public service officers on tenure, to recurring vacant positions within QSS. One of the recurring vacancies in question was the AO4, Payroll Officer position, position number 76020144, which the Appellant was performing higher duties in at the time';
  • the authorised delegate of the Chief Executive determined to appoint Employee X on tenure to that position; and
  • that employee was '… the meritorious individual on the order of merit list established for the AO4, Payroll Officer position during the limited advertising process undertaken within QSS in the 12 months prior.'
  1. [37]
    The Department then submitted:
  1. The department submits that the chief executive (or authorised delegate) has, in accordance with section 149C(4) of the PSA, read in conjunction with section 149C(8), a period of 28 days, from receipt of a conversion request submitted by an eligible employee under section 149C, to decide the request.
  1. From time to time, the genuine operational requirements of the department within that 28day period will change, and the department submits that it is open to the chief executive (or authorised delegate) to take account of those changed circumstances in giving consideration to an employee's conversion request.
  1. In the case of the Appellant, during the 28-day period in which their conversion request was being considered, the genuine operational requirements of the department, as it related to [sic] Appellant's request, changed. Specifically, on 29 September 2020, Employee X was permanently appointed to the AO4, Payroll Officer within QSS, position number 76020144, that the Appellant had been performing higher duties in.
  1. As a result, the department did not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4, Payroll Officer [sic] within QSS, position number 76020144 (i.e. the Appellant and the substantive employee of that position, Employee X). Accordingly, the authorised delegate of the chief executive formed the view that it was not appropriate or viable for the department to offer to permanently employ the Appellant in that position.
  1. The department is not aware of any provision contained in the PSA, Directive 12/20 and its predecessor, Directive 15/13, or Directive 13/20 Appointing a public service employee to a higher classification level, which explicitly provides that the chief executive is required to decide a conversion request, prior to determining to permanently appoint an employee to a position in accordance with Directive 12/20 and the PSA.
  1. [38]
    In further submissions filed on 25 January 2021, Ms Scott maintained that the decision to exercise discretion under the Recruitment Directive, when a s 149C request had been made, had the effect of circumventing the clear intent of the Directive and, for that reason, the decision was unfair and unreasonable.

The parties' further submissions

  1. [39]
    The submissions filed by the parties following the mention of the appeal on 26 February 2021 concerned the three questions I posed to the parties set out in paragraph [6] of these reasons.

Ms Scott's further submissions

  1. [40]
    Ms Scott submitted that:
  • the principle described in Refrigerated Express[9] applies as between the general provision of s 119 of the PS Act and the specific provision of s 149C of the PS Act;
  • the specific provision must prevail so as to avoid a situation where a general power to appoint public service officers under s 119 of the PS Act completely negates the intended effect of s 149C to impose obligations on the chief executive where a request for appointment has validly been made under that section;
  • section 119 of the PS Act, in particular the power granted by s 119(1) for a chief executive to appoint public service officers in the chief executive's department is a general enactment and the use of the word 'may' in s 119(1) provides for a discretionary power to appoint public service officers, subject to s 121 of the PS Act and the various directives which govern recruitment processes and decisions in the public sector;
  • section 149C of the PS Act was a later provision than s 119 and s 149C was introduced in September 2020 by the Public Service and Other Legislation Amendment Act 2020 and alongside other amendments to the existing conversion review provisions, was, having regard to the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020, introduced for the purpose of enhancing the fairness and transparency provisions which relate to the decisionmaking of a chief executive in conversion reviews;
  • section 149C of the PS Act is an enactment intended to exhaustively govern the circumstances where a request has been made to a chief executive to appoint an employee eligible to be appointed under that provision and to allow a discretionary appointment under the power afforded by s 119(1), as the Department has done in appointing Employee X, would be a departure from the intention of the enactment of s 149C and in such situation s 149C would override s 119(1);
  • given that the power to directly appoint Employee X was not available to the decision maker in the present case, there was no lawful basis for the chief executive to appoint Employee X '… and such an appointment was ultra vires' and, as such, the decision not to appoint Ms Scott to the position was not fair and reasonable; and
  • if there was no power by the authorised delegate of the Chief Executive to appoint Employee X to the position, then there can be no appointment and there is no impediment for the Commission to appoint Ms Scott to the position or, in the alternative, if the matter is returned to the decision maker, there is no barrier to the decision maker making a decision to convert Ms Scott '… to permanent employment in the higher position'.

The Department's further submissions

  1. [41]
    The Department submitted that:
  • it was clear from the judgments in Refrigerated Express and in Smith, that the principle of construction applied in both cases is only applicable where there is inconsistency between the general and the specific provisions, in the sense that the two inconsistent provisions cannot be reconciled as a matter of ordinary interpretation;[10] and
  • no inconsistency of the kind referred to in Refrigerated Express or in Smith arises in relation to s 119 and s 121, and s 149C of the PS Act because:

 in contrast to the position in Refrigerated Express, there is nothing to suggest that s 149C of the PS Act is intended to be an 'exhaustive code';

 unlike the position in Smith, s 119 and s 121 do not deprive s 149C of the PS Act of effect as can be seen from the facts of the present case in that Employee X's '… appointment left s 149C with work to do, as the chief executive remained subject to a duty to deal with Ms Scott's request in accordance with s 149C;

 section 119 and s 121, and s 149C confer on the chief executive powers of appointment, and there is no inconsistency in the face of the legislation such '… that the relevant presumption here is that Parliament generally "does not intend to contradict itself"';[11]

 having regard to the above:

  • it was open to the Chief Executive to make the decision appointing Employee X to the position by an established order of merit in that the power to appoint public service officers is a discretionary power conferred on the Chief Executive pursuant to s 119 of the PS Act which may be exercised subject to the statutory conditions imposed on the power under the PS Act such as the 'merit principle' prescribed by s 27 of the PS Act;
  • the decision not to approve Ms Scott's request was fair and reasonable in the circumstances, having regard to the general operational requirements of the Department; and
  • if, contrary to the Department's submissions, and the Chief Executive did not have power under s 119 and s 121 to appoint Employee X, which would have rendered the decision not fair and not reasonable,[12] it would not be open to the Commission to set the decision aside and appoint Ms Scott to the position because to do so would encroach on the discretionary power of the Chief Executive to appoint Employee X; and would breach the rules of procedural fairness in respect of Employee X who has not been given an opportunity to be heard on the issue.
  1. [42]
    In further written submissions filed on 26 March 2021, the Department relevantly contended:
  1. [8]
    Further, there is nothing in s 149C, or elsewhere in the Public Service and Other Legislation Amendment Act 2020, to suggest that Parliament intended s 149C to have an operation that would adversely affect the rights of applicants (including [name of Employee X deleted]) whose names were placed on the order of merit that was established pursuant to a valid recruitment process. Section 149C does not operate to 'stay' a recruitment process commenced prior to a request under s 149C having been dealt with. In making a decision under s 149C the chief executive must have regard to the 'genuine operational requirements of the department'. Those requirements are subject to change and are not fixed in time. There is no requirement in the PS Act that the status quo existing before a request is made under s 149C must continue whilst a request is being considered by the chief executive during the 'required period' (s 149C(4)).
  1. [9]
    This view is reinforced by application of the presumption that the legislature does not intend its enactment to be interpreted in a manner that would lead to absurd, extraordinary or irrational consequences, and that an alternative interpretation is to be preferred.In this regard, a consequence of the Appellant's interpretation is that the chief executive would effectively be prevented from undertaking a recruitment process under s 119(1) in case, at some later point in time, there happened to be a person acting in the position who was eligible to make a request under s 149C.
  1. [10]
    It follows that there is no valid justification for the Commission to hold that the decision refusing Ms Scott's request under s 149C was unfair and unreasonable in the circumstances. If Ms Scott was aggrieved by the decision to appoint [name of Employee X deleted] under s 119, it would have been open to her to lodge an appeal in respect of that decision. It is not within the Commission's power in these proceedings to make an order that would affect the exercise of the chief executive's discretion under s 119, including an order directing the chief executive to interfere with the decision to appoint [name of Employee X deleted]. Accordingly, the Respondent respectfully submits that the only order open to the Commission to make is one confirming the decision appealed against.[13]

Which power of the Chief Executive was applicable on the facts of the present case?

The power of a chief executive to appoint public service officers on tenure

  1. [43]
    Chapter 5 of the PS Act deals with staffing generally. Part 2 of that chapter deals with appointment matters and div 1 is headed 'General provisions' in which s 119 and s 121 are contained.
  1. [44]
    Section 119(1) of the PS Act provides that a chief executive may, by signed notice, appoint public service officers in the chief executive's department.
  1. [45]
    Section 121(2) of the PS Act relevantly provides that appointment as a public service officer is on tenure unless the officer's chief executive decides the appointment may be on contract for a fixed term and the chief executive declares the officer's position to be available on contract for a fixed term. Section 121(3) provides that in making the decision, the chief executive must comply with any relevant directive.

The power of a chief executive to appoint an eligible public service employee to the position at the higher classification level

  1. [46]
    Part 5 of ch 5 of the PS Act deals with general, fixed term temporary and casual employees. Section 149C is contained in pt 5 and 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[14] 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. (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. [47]
    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.
  1. [48]
    It is a principle of statutory construction that where there is a conflict in the same Act between a general provision and a specific provision, the specific provision prevails. The principle is based on the presumed intention of Parliament so as not to deprive the specific provision of effect.[15] In Refrigerated Express, Deane J stated that the repugnancy or conflict is present where it appears, as a matter of construction, that special provisions were intended exhaustively to govern their particular subject matter and where general provisions, if held to be applicable to the particular subject matter, would constitute a departure from that intention by encroaching on that subject matter.[16]
  1. [49]
    True it is that the principle only applies where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.[17] However, when inconsistency is said to arise in the one statute (as opposed to inconsistency between different statutes) it is more likely that the drafter will have relied on the principle.[18] The underlying principle is that where a legislature, which has created a detailed regime for regulating a particular matter, intends that regime to operate in accordance with its complete terms. Further, where any conflict arises with the general words of another provision, the very generality of the words of which indicates that the legislature is not able to identify or even anticipate every circumstance in which it may apply, the legislature is taken not to have intended to impinge upon its own comprehensive regime of a specific character.[19]
  1. [50]
    To determine the legal meaning of the relevant provisions, in a case such as this, it is necessary to adopt a purposive interpretation.[20]
  1. [51]
    The purpose of the discretion of a chief executive, to appoint public service officers on tenure pursuant to the combined effect of s 119(1) and s 121(2) of the PS Act, is to confer on a chief executive the power to meet the chief executive's general responsibilities as set out in s 98(1) of the PS Act, including managing the department in a way that promotes the effective, efficient and appropriate management of public resources.[21]
  1. [52]
    Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee:
  • is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and
  • has been acting at the higher classification level for a continuous period of at least one year; and
  • '… is eligible for appointment to the position at the higher classification level having regard to the merit principle.'
  1. [53]
    Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.'
  1. [54]
    The phrase used in s 149C(1)(c) and in s 149C(3) of the PS Act, namely '… the position at the higher classification level' is very specific. The purpose of that phrase in those provisions are, respectively, that:
  • an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made to the specific position at the higher classification level in which the employee has been acting; and
  • the relevant request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting.
  1. [55]
    Relevantly to the present case, the purpose of s 149C(4) of the PS Act is to confer on the chief executive, where an eligible employee requests to be appointed to the position in which he or she has been acting, power to appoint that person to the position by considering the employee's request, within the required period, having regard to the genuine operational requirements of the Department.
  1. [56]
    In giving meaning to the language used by Parliament in succeeding statutory provisions, a court will not look to hypothetical or possible conflicts, but whether an irreconcilable conflict of duties really arises.[22]
  1. [57]
    In my view, the facts of this case clearly demonstrate an irreconcilable conflict of duties between the general provisions of s 119(1) and s 121(2) of the PS Act and the very specific provision of s 149C(4). The conflict is resolved by the specific power of a chief executive in s 149C(4) of the PS Act, where it has been enlivened by a request made by an eligible employee pursuant to s 149C(3) to appoint that employee to 'the position', prevailing over the general power of a chief executive to appoint a public service officer on tenure pursuant to the combined effect of s 119(1) and s 121(2) of the PS Act.
  1. [58]
    The Department submitted that no inconsistency arises because s 119 and s 121 of the PS Act do not deprive s 149C of effect because there was still work for that section to do, namely, on the facts of the present case, the duty of the chief executive to deal with Ms Scott's request made under s 149C. That submission is not meritorious. If the Department was correct, then where an eligible employee made a request pursuant to s 149C(3) of the PS Act to be appointed to the position at the higher classification level, and a chief executive subsequently appointed another person to that position pursuant to s 119 and s 121 of the PS Act, the eligible employee's request will always be denied because of the genuine operational requirements of the Department, namely, the appointment of the other person to 'the position.'[23] A chief executive, or his or her properly authorised delegate, could avoid the mandatory obligation, contained in s 149C(4), to decide the request (within the required period) by subsequently appointing another person to the position. In such a case, s 149C(4) would be deprived of its specific purpose.
  1. [59]
    The Department also submitted that a consequence of Ms Scott's interpretation is that the Chief Executive would effectively be prevented from undertaking a recruitment process under s 119(1) of the PS Act, in case, at some later point in time, there happened to be a person acting in the position who was eligible to make a request under s 149C of the PS Act. This submission also lacks merit. Having regard to the purpose of s 149C of the PS Act and the principle of construction I have referred to above, the specific provision contained in s 149C(4) of the PS Act only prevails over the general power of the chief executive to appoint public service officers on tenure where an eligible employee has, pursuant to s 149C(3) of the PS Act, made a request to the chief executive to appoint the employee to the position at the higher classification level.
  1. [60]
    I do not accept the Department's other submission that no inconsistency arises because of the presumption that Parliament generally does not intend to contradict itself. That is a presumption applied in resolving conflicts between different statutes from the same source as opposed to conflicts within one statute.[24] In any event, in the present case, it is clear that Parliament has intended that where an eligible employee has made a request pursuant to s 149C(3) of the PS Act, the chief executive must decide that request within the required period, subject to the matters to which the chief executive must have regard as set out in s 149C(4A). The contrary intention of Parliament, in respect of the chief executive's general power in s 119 and s 121, is clear. After such a request has been made, that specific obligation of a chief executive must give way to the more general power of a chief executive to appoint a public service officer on tenure to 'the position.'

The decision was not fair and reasonable

  1. [61]
    As at 22 September 2020, Ms Scott was eligible to be appointed to the position under the PS Act and under the Directive. On that date, Ms Scott, pursuant to s 149C(3) of the PS Act, made her request to be appointed to the position.
  1. [62]
    On 23 September 2020, Ms Donna Jones, on behalf of Ms Liza Carroll, DirectorGeneral and Chief Executive of the Department, advised Ms Scott by way of email that her request would be considered in accordance with s 149C of the PS Act and that a member of Human Resources would be in contact with Ms Scott regarding her request.
  1. [63]
    The submissions made by the Department expressly stated that on 29 September 2020, the Chief Executive approved the request from QSS to fill a number of recurring vacancies within QSS utilising the order of merit lists as established from the October 2019 recruitment and selection process. That approval postdated Ms Scott's request. Then, the decision to appoint Employee X was made, by the unidentified delegate of the Chief Executive, on 29 September 2020.
  1. [64]
    For the reasons given above, the Chief Executive's delegate did not have the power to appoint Employee X to the position on 29 September 2020. This is because, at the time of the decision to appoint Employee X, Ms Scott was an employee who had previously and lawfully made the request to the Chief Executive of the Department to be appointed to the position pursuant to s 149C(3) of the PS Act. Ms Scott's request had to be determined in the absence of any other appointment to the position.
  1. [65]
    The genuine operational requirements of the Department, relied upon by the Department not to appoint Ms Scott to the position, arose out of the circumstances referred to in paragraphs [61] to [63] of these reasons. In its submissions filed on 19 March 2021, the Department conceded that if it was not open to the delegate of the Chief Executive to make an appointment under s 119 and s 121 of the PS Act, it would follow that the genuine operational requirements of the Department would not necessarily provide a sufficient basis for not approving Ms Scott's appointment to the position under s 149C. This concession was properly made.
  1. [66]
    Because the Chief Executive's delegate did not have the power to appoint Employee X to the position on 29 September 2020, then it was not fair and reasonable for the Deputy Director-General to refuse the request on the basis of a genuine operational requirement of the Department, when the appointment of Employee X was the reason causing the genuine operational requirement.
  1. [67]
    For these reasons, the decision was not fair and reasonable.

What decision should be made pursuant to s 562C of the IR Act?

  1. [68]
    Ms Scott could appeal against the decision because:
  • it was a conversion decision, as defined in s 194(1)(e)(iii) of the PS Act, namely, a decision under s 149C not to appoint an employee to a position at a higher classification level where the employee had been seconded to or acting at the higher classification level for a continuous period of at least 2 years; and
  • Ms Scott was the employee the subject of the decision.[25]
  1. [69]
    Section 562C of the IR Act relevantly provides:

562C Public service appeals-decision on appeal

  1. (1)
    In deciding a public service appeal, the commission may-
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision-set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (c)
    for another appeal-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.
  1. [70]
    Properly construed, 'the decision' in s 562(1)(c) of the IR Act is the decision of the Deputy Director-General, as conveyed by Ms Mehta in her letter to Ms Scott dated 20 October 2020, that Ms Scott's engagement is to continue according to the terms of her existing temporary placement. The decision made by the delegate of the Chief Executive of the Department to appoint Employee X to the position is not 'the decision.'
  1. [71]
    Section 562C of the IR Act is found in ch 11, pt 6, div 4 which deals with appeals to the Commission. The section which precedes it relevantly provides:

562B  Public service appeal to commission is by way of review

  1. (1)
    This section applies to a public service appeal made to the commission.
  1. (2)
    The commission must decide the appeal by reviewing the decision appealed against.
  1. (3)
    The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [72]
    Given that the purpose of this appeal is to decide whether the decision appealed against was fair and reasonable, it seems to me that in exercising discretion pursuant to s 562C(1)(c) of the IR Act, so as to give an interpretation to that section that best achieves its purpose,[26] I should make a decision that is fair and reasonable.
  1. [73]
    The facts of this case are unique. I am not aware of another appeal where, pursuant to s 149C(3) of the PS Act, an eligible employee has made a request to be appointed to 'the position' and a delegate of a chief executive, after that request, has appointed another person to the position using the general powers contained in s 119 and s 121 of the PS Act.[27]
  1. [74]
    In my view, the authorised delegate of the Chief Executive of the Department did not have the power to appoint Employee X to the position at the time that appointment was made. The Department, in its submissions, apart from the appointment of Employee X to the position, does not give any other reason as to why Ms Scott would not have been appointed to the position.
  1. [75]
    I have power to set the decision aside, and return the matter to the Deputy DirectorGeneral with a copy of the decision on appeal and make any directions I consider appropriate. Such a direction may be that the Deputy Director-General reconsider Ms Scott's request according to s 149C of the PS Act. However, that would not be a fair and reasonable decision because the Deputy Director-General would, again, be compelled to refuse Ms Scott's request on the basis of the genuine operational requirements of the Department, namely, that Employee X has been appointed to the position. Yet, the reason why Employee X is in the position was due to the delegate of the Chief Executive using a power to appoint Employee X which was not available at the time of that appointment.
  1. [76]
    In its submissions, the Department referred to the decision of Industrial Commissioner McLennan in Khan v State of Queensland (Department of Housing and Public Works)[28] as authority for the proposition that I could not order that Ms Scott be appointed to the position. That case does not assist the Department. The facts of that case are different in that the incumbent of 'the position' in which the appellant had acted was appointed to the position well before the request was made by the appellant. Indeed, in that case, Industrial Commissioner McLennan held that '… only one person may occupy the position at any one time in typical circumstances.'[29] The present case does not give rise to typical circumstances.
  1. [77]
    I am charged with reviewing the Deputy Director-General's decision, determining if it was fair and reasonable and, in deciding the appeal, making a decision that is fair and reasonable.
  1. [78]
    The phrase 'substitute another decision' in s 562C(1)(c) of the IR Act is to be interpreted so that the substituted decision concerns the same decision as that under appeal.[30] Having regard to Ms Scott's request, namely, that she be appointed to the position, and having regard to the reasons I have given as to why the Deputy DirectorGeneral's decision was not fair and not reasonable, and in light of the absence of any other reason not to appoint Ms Scott to the position, the only fair and reasonable decision is that:
  • the decision is set aside; and
  • another decision is substituted, namely, that Ms Scott be appointed to the position.
  1. [79]
    To do otherwise would render Ms Scott's meritorious appeal nugatory. It will be a matter for the Department as to how it deals with the earlier decision to appoint Employee X to the position.

Conclusion

  1. [80]
    For the reasons I have given, the decision was not fair and reasonable.

Order

  1. [81]
    I make the following Order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision is set aside; and
  1. (b)
    another decision is substituted, namely, that Ms Scott is appointed to the position of Payroll Officer, Payroll and Establishment Services, Queensland Shared Services, classification AO4, position number 76020144, as from 14 April 2021.

Footnotes

[1] [1980] FCA 38; (1980) 29 ALR 333 ('Refrigerated Express'), 347 (Deane J).

[2] [1994] HCA 60; (1994) 181 CLR 338 ('Smith'), 348 (Mason CJ, Dawson, Gaudron and McHugh JJ).

[3] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [3]-[7].

[4] Morison (n 3).

[5] Ibid, [29]-[40].

[6] [2021] QIRC 038, [41]-[42].

[7] Ibid, [44]-[52].

[8] Morison (n 3), [48]-[49].

[9] Refrigerated Express (n 1).

[10] Citing Purcell v Electricity Commission of New South Wales [1985] HCA 54; (1985) 59 ALJR 689 ('Purcell'), 692 (Mason ACJ, Wilson, Brennan and Dawson JJ).

[11] Citing Butler v Attorney-General (Vic) [1961] HCA 32; (1961) 106 CLR 268 ('Butler'), 276 (Fullagar J) and Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 ('Masson'), [42] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[12] Because the genuine operational requirements of the Department would not necessarily provide a sufficient basis for not approving Ms Scott's appointment to the position under s 149C of the PS Act.

[13] Citations omitted.

[14] Which includes a public service officer: Public Service Act 2008 s 9(a).

[15] Smith (n 2).

[16] Refrigerated Express (n 1).

[17] Purcell (n 10).

[18] White v Mason [1958] VR 79, 81 (Herring CJ).

[19] The Ombudsman v Laughton [2005] NSWCA 339; (2005) 64 NSWLR 114 ('Laughton'), [19] (Spigelman CJ, Handley JA at [28] and Basten JA at [39] agreeing).

[20] Ibid, [25].

[21] Public Service Act 2008 s 98(1)(b).

[22] Royal Automobile Club of Australia, Incorporating Imperial Service Club v Sydney City Council (1992) 27 NSWLR 282, 294 (Kirby P).

[23] Morison (n 3), [37]-[40].

[24] Butler (n 11) 276 (Fullagar J) and Masson (n 11) [42] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).

[25] Public Service Act 2008 s 196(e).

[26] Acts Interpretation Act 1954 s 14A(1).

[27] The closest of which I am aware is Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106. In that case, Industrial Commissioner Knight set aside a higher classification conversion decision and substituted another decision that the Appellant be appointed to the position the subject of the appeal. The pertinent facts were that a decision had been made by the Respondent to commence a recruitment process to permanently fill positions, including the position the subject of the appeal, after the relevant request was made by the Appellant but before recruitment process had been completed.

[28] [2020] QIRC 227.

[29] Ibid, [70].

[30] Capuano v Q-Comp [2004] QSC 333; [2005] 1 Qd R 242 [20] (Philippides J) in respect of a provision analogous to s 562C(1)(c) of the IR Act being s 545(1)(c) of the Workers' Compensation and Rehabilitation Act 2003.

Close

Editorial Notes

  • Published Case Name:

    Scott v State of Queensland (Department of Communities, Housing and Digital Economy)

  • Shortened Case Name:

    Scott v State of Queensland (Department of Communities, Housing and Digital Economy)

  • MNC:

    [2021] QIRC 126

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    14 Apr 2021

Appeal Status

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

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.