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Lee v State of Queensland (Public Safety Business Agency)

[2021] QIRC 13

Lee v State of Queensland (Public Safety Business Agency)[2021] QIRC 13

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013

PARTIES:

Lee, Kelly

(Appellant)

v

State of Queensland (Public Safety Business Agency)

(Respondent)

CASE NO:

PSA/2020/298

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

19 January 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

  1. That the appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the deemed outcome of the review was that the appellant was not permanently appointed – consideration of the scope of a review under s 149C – consideration of ‘the position’ – where the position was ‘not vacant’ – where the Agency was to be de-established – consideration of ‘genuine operational requirement’.

LEGISLATION AND DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 14A

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6

Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C

Public Service Act 2008 (Qld) s 120, s 149, s 149A, s 149B, s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

CASES:

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

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Katae v State of Queensland & Anor [2018] QSC 225

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Ms Kelly Lee (the Appellant) has filed an appeal against a deemed decision not to convert her to a higher classification level (the decision). 
  1. [2]
    While Ms Lee was verbally advised that a decision had been made not to convert her on 20 October 2020,[1] she was not provided with a written notice of that decision within 28 days and so “…the chief executive was taken to have decided that that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.”[2] 
  1. [3]
    Three days after filing this appeal, Ms Lee received email correspondence from Ms Gordon confirming the verbal advice that her conversion request was refused. 
  1. [4]
    Ms Lee is currently substantively employed as an AO6 Senior Business Partner, Human Resources Division within the Public Safety Business Agency (PSBA) with the Respondent. 
  1. [5]
    However, she has been acting in the AO7 Principal HR Business Partner position (the AO7 position) within the PSBA since 27 March 2017.
  1. [6]
    Ms Lee has been extended in that acting position 6 times, with the end date of her current contract being 29 January 2021.

The Decision

  1. [7]
    The decision subject of this appeal is the chief executive’s deemed decision not to permanently convert Ms Lee’s employment to the higher classification level – that is, to the AO7 position currently held. 
  1. [8]
    The chief executive’s failure to make a decision on Ms Lee’s conversion request within 28 days is taken to be a decision to retain the status quo.
  1. [9]
    It is recognised that a written notice has now been provided to Ms Lee, subsequent to the filing of her appeal.

Jurisdiction

Decision against which an appeal may be made

  1. [10]
    Section 194 of the Public Service Act 2008 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision “…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.”
  1. [11]
    Section 197 of the PS Act allows for an appeal to be heard and decided by the IRC.  An appeal is initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.
  1. [12]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Ms Lee meets that requirement.
  1. [13]
    I am satisfied that the deemed decision not to convert Ms Lee to a higher classification level is able to be appealed.

Timeframe for appeal

  1. [14]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. 
  1. [15]
    The deemed decision is taken to have been made on 20 October 2020.[3]  That is, 28 days after Ms Lee made her conversion request under s 149C of the PS Act.[4]
  1. [16]
    The Notice of Appeal was filed with the Industrial Registry on 10 November 2020. 
  1. [17]
    I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [18]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [19]
    The appeal is not conducted by way of re-hearing,[5] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[6] 
  1. [20]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.[7]
  1. [21]
    The issue for my determination is whether the decision not to convert Ms Lee’s employment status to the higher classification level was fair and reasonable in the circumstances.[8]

What decisions can the IRC Member make?

  1. [22]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against; or
  2. Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  3. Set the decision aside and substitute another decision.

Submissions

  1. [23]
    In accordance with the Directions Order issued on 10 November 2020, the Department filed written submissions. 
  1. [24]
    Ms Lee is represented by the Together Union in this matter and written submissions in reply have been filed.
  1. [25]
    Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

The deemed decision of 20 October 2020 (subject to this appeal)

  1. [26]
    The fact of this appeal being made against a deemed decision means that no written reasons were provided to Ms Lee as at 20 October 2020.
  1. [27]
    However, Ms Gordon did convey the following reasons for not permanently converting Ms Lee to the higher classification level in writing to her, subsequent to her filing this appeal:[9]

I have considered your request and have determined that, you are to continue to be engaged according to the terms of your existing higher duties arrangement.

I have determined that you are not currently eligible for appointment because:

  • The position that you have been relieving in is NOT permanently vacant and not available for you to be converted into.

Appeal Notice

  1. [28]
    Ms Lee set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 10 November 2020.  Those reasons are summarised as follows:

a) Eligibility for Review: 

Ms Lee is a public service officer acting in a higher classification role (the AO7 position) for more than 1 year and within the same agency.  (She commenced in the AO7 position on 27 March 2017).

b) Merit:

No discipline or performance issues have been raised with Ms Lee in relation to the AO7 position. 

Her appointment to the AO7 position followed the successful outcome of an Expressions of Interest (EOI) merit process.

c) Deemed decision fails to comply with requirements:

A deemed decision not to convert Ms Lee to the higher classification level was made on 20 October 2020.

Ms Lee contends that the deemed decision was not fair and reasonable because her conversion request was not subject of a written decision containing the required components and delivered within the required timeframe.

d) Genuine operational requirements: PS Act s 149C(4A)

Ms Lee also asserts that the deemed decision was not fair and reasonable because it failed to consider “…the genuine operational requirements of the department as required by s 149C(4A) of the PS Act.   The work I am doing is likely to be ongoing and remains a genuine operational requirement and will continue to be required by the State of Queensland.”[10]

Respondent submissions

  1. [29]
    The Department’s submissions, filed 17 November 2020, can be summarised as follows:

a) Eligibility for Review: 

It is not a matter of dispute between the parties that Ms Lee is eligible for review[11] and has a right of appeal.[12]

b) Merit:

There are no performance concerns relating to Ms Lee and her secondment to the AO7 position was conducted through a merit selection process.

c) Deemed decision fails to comply with requirements:

While Ms Lee has claimed the deemed decision was not fair and reasonable because her conversion request was not subject of a written decision containing the required components and delivered within the required timeframe, the PS Act and Directive envisages this scenario by including capacity for a deemed decision to retain the status quo in such cases.

d) Genuine operational requirements:

The department contends that there are genuine operational requirements that prevent Ms Lee’s conversion to the AO7 position:

  • The position that Ms Lee has been relieving in is not permanently vacant and not available for her to be converted into.[13] The position is owned by another employee, who is herself currently on secondment. 
  • The Directive envisages that secondments to higher classification levels can be made on a temporary basis in such circumstances.[14]
  • The Queensland Government publicly announced the de-establishment of the PSBA.[15] “All positions and staffing are currently being reviewed for transitioning to either Queensland Police Service (QPS) or Queensland Fire and Emergency Services (QFES) over the coming months.”[16]
  • Ms Lee will continue in the AO7 position until 29 January 2021 “…when further clarification of the transitional arrangements to relevant Agencies are known.  It is at this time that the substantive position holder’s secondment will cease and transitional arrangements negotiated for the position and officer to be allocated to either the QPS or QFES.  The position holder will be required to cease the work they are undertaking on the project to ensure that transitional arrangements are in place for that person and the position can be transitioned to one of the main Departments.”[17]
  • “The PSBA has considered ‘the genuine operational requirements’ drawn from the legislation and reiterated in the Directive 13/20.  The de-establishment of the PSBA and that the secondment will cease with the return of the substantive position holder in January 2021 are significant considerations that have been considered in declining the appellant’s request…”[18]

Appellant’s reply submissions

  1. [30]
    In response to the Department’s written materials above, Ms Lee’s reply submissions filed 24 November 2020 can be summarised as follows:

a) The owner of the AO7 position (that Ms Lee is currently acting in) has herself been working on another “…project for two years and will continue to do so for several more years”.  The position owner has not occupied the AO7 position “…for multiple years and is not expected to return for several years, such that the position has been temporarily vacant for an extended period of time and requires someone to continue in the role.”[19]

b) The department’s written decision refusing Ms Lee’s conversion request was provided after she had filed an Appeal of the deemed decision.[20]  That correspondence stated:

  I have considered your request and have determined that, you are to continue to be engaged according to the terms of your existing higher duties arrangement. 

  I have determined that you are not currently eligible for appointment because: the position that you have been relieving in is NOT permanently vacant and not available for you to be converted into.

  Ms Lee has argued that the decision was not fair and reasonable because her conversion request was not subject of a written decision containing the required components and delivered within the required timeframe. 

c) The genuine operational requirements were not properly considered by the Department, with respect to consideration of: the AO7 Principal HR Business Partner permanent vacancy within PSBA and the Queensland; and the long-term secondment of the position owner, meaning that Ms Lee would need “…to continue in the role long term for several more years.”[21]

 Ms Lee contends there is an AO7 Principal HR Business Partner permanent vacancy within the PSBA “which is identical to the role that I am currently performing and has the same role title, such that it is the “same role” at the higher classification level in the same agency for the purposes of Directive 13/20…”  This position was made vacant when that person transferred to another position in July 2020.  As there is a vacant position “which is the same role or position that I am performing, this no longer supports the reasons provided under clause 4.2 of Directive 13/20 for my engagement to continue temporarily at the higher classification level, such that I should be permanently appointed to the role.”[22]

 Further, she asserted that her long term secondment and the fact the substantive position holder is not expected to return for some time supported her claim to be permanently appointed to the higher classification level.  Ms Lee noted that “…Katae provides that permanent appointment should not be denied solely because there was no substantive vacancy…” and what was instead required was an objective analysis of whether the role was likely to be ongoing.  She submitted that the same reasoning should be applied in this appeal.

 Ms Lee stated that “…despite there being MOG changes such that the PSBA is to cease as a Department at the end of this financial year, the AO7 Principal Human Resources Business Partner roles will still be required to be performed at either the QPS or QFES.” 

 Ms Lee also disputed the department’s claim that “…the substantive position holder’s project would cease on 29 January 2021, so that transitional arrangements can be negotiated for the position and officer to be allocated to either QPS or QFES.  However, this is incorrect, as the HR Aurion, as accessed on 18 November 2020, provides that the substantive occupant’s secondment in the project role is currently to end on 30 June 2021.”

The review of a decision as to whether or not to permanently appoint a public service employee acting in a position at a higher classification level

  1. [31]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level, in the above circumstances, is contained in the IR Act, PS Act and in the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
  1. [32]
    Section 149C of the PS Act provides (Emphasis added):

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—
  1. 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
  2. has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  3. is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. However, this section does not apply to the following public services employees—
  1. a casual employee;
  2. a non-industrial instrument employee;
  3. an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. 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. the end of 1 year of being seconded to or acting at the higher classification level; and
  2. each 1-year period after the end of the period mentioned in paragraph (a).
  1. 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. the genuine operational requirements of the department; and
  2. 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. If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating
  1. reasons for the decision; and
  2. the total continuous period for which the person has been acting at the higher classification level in the department; and
  3. how many times the person’s engagement at the higher classification level has been extended; and
  4. 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. 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.
  2. The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  3. 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. the period stated in an industrial instrument within which the decision must be made; or
  2. if paragraph (a) does not apply—28 days after the request is made.
  1. [33]
    Further, section 194(1)(e)(iii) of the PS Act provides (Emphasis added):

194 Decisions against which appeals may be made

  1. An appeal may be made against the following decisions—
  1. a decision (each a conversion decision)—
  1. under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
  1. [34]
    It is noted that Directive came into effect on 25 September 2020. 
  1. [35]
    The Directive relevantly provides:

3. Application

  1. 3.4The requirement to advertise roles in the directive relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive.

4. Principles

  1. 4.1An 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.
  1. 4.2Secondment 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:
  1. when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
  2. when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
  3. to perform work for a particular project or purpose that has a known end date
  4. to perform work necessary to meet an unexpected short-term increase in workload
  1. 4.3Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

5. Employee may request to be appointed at the higher classification level

  1. 5.1Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.
  2. 5.2To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
  1. have been seconded to or assuming the duties and responsibilities of the higher classification level
  2. for a continuous period of at least one year
  3. be eligible for appointment to the higher classification level having regard to the merit principle.
  1. 5.3Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:
  1. one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  2. each subsequent year where the employee continues their engagement at the higher classification level in the same role.
  1. 5.4An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.
  2. 5.5The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

6. Decision making

  1. 6.1When 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.
  2. 6.2In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
  1. the genuine operational requirements of the department, and
  2. 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. 6.3In 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.
  2. 6.4Each 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.

7. Statement of reasons

  1. 7.1A 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. set out the findings on material questions of fact, and
  2. refer to the evidence or other material on which those findings were based.
  1. 7.2A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.

8. Appeals

  1. 8.1An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
  2. 8.2In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.

11. Definitions

Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

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.

Non-industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

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. [36]
    The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[23]
  1. [37]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [38]
    The stated purpose of the Directive is:

1. Purpose

  1. 1.1The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.
  2. 1.2This directive:
  1. highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
  2. 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
  3. sets out procedures for requests and decisions.

Findings

  1. [39]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [40]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Eligibility for review of conversion

  1. [41]
    Section 149C(1) and (3) of the PS Act provides that an employee is eligible to request permanent appointment at the higher classification level after the end of one year.  This is restated at clause 4.1 of the Directive.
  1. [42]
    It is not a point of dispute between the parties that Ms Lee is eligible to request conversion to the higher classification level.

Purpose

  1. [43]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [44]
    In summary, the Directive’s status as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of the Directive is to be preferred to any other interpretation.
  1. [45]
    In that regard, I recognise that one of the stated purposes of the Directive is to support “…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.”[24]

Merit

  1. [46]
    There is no dispute with respect to Ms Lee’s merit. 

Two pathways to deciding an employee’s conversion request

  1. [47]
    There are two pathways by which an employee’s s 149C conversion request may be decided by the department decision maker.  The first pathway is where a decision is made and communicated to the employee in writing within the required 28-day timeframe.  The second pathway is where a decision is deemed to have been made to refuse the conversion request, in circumstances where no such written notice is provided to the employee within the required 28-day timeframe.  Each of these two pathways are envisaged and permitted under the current legislative framework.
  1. [48]
    The first pathway mandates the decision maker’s consideration of specific criteria and the production of a written notice to the employee (that itself includes particular components) within the required 28-day timeframe.
  1. [49]
    In this circumstance, the PS Act and the Directive provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  1. Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  2. The genuine operational requirements of the department. 
  3. 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. [50]
    Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating:
  1. The reasons for the decision; and
  2. The total continuous period for which the person has been acting at the higher classification level in the department; and
  3. How many times the person’s engagement at the higher classification level has been extended; and
  4. 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.

The notice provided to the employee must:

  1. Set out the findings on material questions of fact, and
  2. Refer to the evidence or other material on which those findings were based.
  1. [51]
    While the PS Act and Directive prescribes timeframes and components of written decisions where one is made, a second pathway for responding to a conversion request is also available to the department’s chief executive.  That is, where a decision is not made within the required period, the conversion request is taken to have been refused (the ‘deemed decision’).[25] 
  1. [52]
    Put another way, the act of not making a decision is taken to be a decision in itself - and it also follows that the same requirements do not apply under the second pathway.  Self-evidently, there can be no inclusion of mandatory components evidencing consideration of particular criteria where no written notice is provided to the employee requesting conversion.
  1. [53]
    A deemed decision taken to be made under this second pathway does not provide the explanation or detail that would otherwise assist an employee in understanding the basis for the refusal of their conversion request and thus enable them to consider whether they wish to pursue any appeal rights.  However, it is nonetheless a legitimate and permissible option for departmental decision makers as the legislation currently stands - and establishes the clear parameters within which I am compelled to decide such appeals.
  1. [54]
    With respect to a deemed decision made under the second pathway, it has also been made clear that “A written notice is not required to be prepared ‘after the fact’ to support a deemed decision…”[26]  This further confirms that the mandatory components of any written decision made under the first pathway do not apply to a deemed decision made under the second pathway. 
  1. [55]
    Ms Lee has submitted that the department’s decision was not fair and reasonable because they failed to provide her with a written notice containing the mandatory components and within the required time period.  For the reasons explained above, that is not correct.  There was no requirement to do so under the second pathway for deciding such conversion request.
  1. [56]
    That the department chose to then provide Ms Lee with a written notice of the decision to refuse her conversion request subsequent to the filing of her appeal does not amount to their failure to adhere to the mandatory requirements either.  The decision subject of Ms Lee’s appeal is the deemed decision.  This was made clear in Ms Lee’s Appeal Notice.  Therefore, the standing of any written notice that the department has later provided to Ms Lee is useful only as “…other evidence to be taken into account…” as part of my review of the deemed decision subject of this appealed.  The provision of a written notice outside the 28 day time period, nor the question of whether it adequately or otherwise addresses the mandatory components, does not constitute an error of law that would lead me to find the decision to be unfair and unreasonable in circumstances where it is the deemed decision that is subject of Ms Lee’s appeal.

What is the position subject of this appeal?

  1. [57]
    Before assessing whether there are any genuine operational requirements of the department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.
  1. [58]
    The submissions of both Ms Lee and the department concur that the AO7 position (that Ms Lee is currently acting in) is owned by another employee, who is herself on secondment working on another project.  That is the position upon which this matter turns.
  1. [59]
    Whilst acknowledging this, Ms Lee has pointed to another like position with the same job title – that is effectively identical to the one she is acting in - within her workplace.  Ms Lee argued that, in the alternate, she could be permanently appointed to that vacant position.  I cannot agree.
  1. [60]
    Reminiscent of the appeal arguments advanced in Holcombe,[27] Ms Lee’s submissions essentially dispute that the legislative power to award an appellant permanent conversion to the higher classification level can only be exercised with respect to exactly “the position” she is currently seconded to at the higher level. 
  1. [61]
    Similarly, invoking Katae in entreating the consideration of ongoing role in determining this appeal fails to recognise that the legislative provisions governing conversion appeals for temporary employment are foundationally different to this one.  In short, the words are not the same.
  1. [62]
    This reasoning is further explained below.
  1. [63]
    The PS Act, at s 149C(1)(c), provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the department to permanently appoint Ms Lee is confined to the position into which she has been placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term ‘the position’ is inherently more specific than ‘higher classification level’; many positions could be described as being of a higher classification level.
  1. [64]
    In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
  1. [65]
    Ms Lee’s higher classification engagement was said to be for the purpose of backfilling an ‘incumbent’ employee. The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position name, classification and number. When they return, they are returning to that precise position.
  1. [66]
    The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.
  1. [67]
    By way of contrast, a broader ambit of the type proposed by Ms Lee is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department’s chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same. Following the review, the department chief executive may “offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer”. Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.
  1. [68]
    The language of s 149C is narrower: 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. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.
  1. [69]
    The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad-ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so.  
  1. [70]
    The Directive, in setting out its purpose at cl 1.2(b), provides that it “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”. At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of the Directive as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Cl 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for the Directive. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by the Directive. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within the PS Act at s 149C. That same reasoning applies to a number of similar clauses in the Directive, which use terms such as ‘role’, ‘a position’ and the like. It is relevant to note that the word ‘role’ does not actually appear in section 149C at all.
  1. [71]
    To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review.
  1. [72]
    In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review.
  1. [73]
    It follows that the position the subject of the review was the AO7 position occupied by Ms Lee. The position number is not contained within the materials before me, but that too would specify the precise position occupied by Ms Lee.
  1. [74]
    In reviewing the decision, that is indeed the position against which Ms Lee was reviewed. That is most apparent in the decision maker’s reasoning that the incumbent will be returning imminently to the position which they had previously occupied and to which Ms Lee had been seconded, and so there was no longer a need for her to be seconded. The decision was fair and reasonable in that the review was conducted against the correct position. 
  1. [75]
    That reasoning was followed in Holcombe. The words the position must be given effect – other criteria are entirely separate considerations.

Genuine operational requirements of the department 

  1. [76]
    The Directive, at cl 4.2, sets out the “Circumstances that would support the temporary engagement of an employee”. Slavish concurrence to that clause is not tantamount to considering the genuine operational reasons of the department. However, it is entirely fair and reasonable for the Department to make the point in their submission.
  1. [77]
    The determination is made with respect to the position occupied by Ms Lee. That was the correct approach. It is not a more broad-ranging consideration of whether she should continue be employed at a higher level in her present workplace. Typically, only one person may occupy the position she presently occupies at any one time.
  1. [78]
    Ms Lee submits that the substantive employee will not be returning to their position until 30 June 2021 at the earliest – or foreseeably much later because they have spent a considerable time in a different higher duties position and “…the project that the incumbent is performing at the higher level is continuing and they are projected to do so for several more years.”[28] The Department has provided a precise date upon which “…the substantive position holder’s secondment will cease and transitional arrangements negotiated for the position and officer to be allocated to either the QPS or QFES.”[29] That is a sufficient evidentiary basis for the deemed decision. Even if it were the case that the incumbent of the position extends, and does not return on schedule, it does not obviate the fact that the position belongs to another person and they are to return to it.
  1. [79]
    The engagement is of the type contemplated within cl 4.2(b) of the Directive, being a circumstance that would support temporary rather than permanent engagement.
  1. [80]
    I agree that those circumstances present a genuine operational requirement for the department, which prevented Ms Lee being permanently appointed to her seconded position. There is nothing within that deemed decision or reasoning which was unfair or unreasonable, when regard is had to the precise wording of s 149C. Only one person may occupy the position at any one time in the usual course.
  1. [81]
    Critically too, the department’s submission also cited the fact of the Queensland Government’s public announcement that the PSBA would soon be de-established.[30]  The department contended that this constitutes a genuine operational requirement that would prevent Ms Lee’s conversion to the AO7 position at this time.  Specifically, the effect of this imminent de-establishment is that “All positions and staffing are currently being reviewed for transitioning to either Queensland Police Service (QPS) or Queensland Fire and Emergency Services (QFES) over the coming months.”[31] 
  1. [82]
    Ms Lee will continue in the AO7 position until 29 January 2021 “…when further clarification of the transitional arrangements to relevant Agencies are known.  It is at this time that the substantive position holder’s secondment will cease and transitional arrangements negotiated for the position and officer to be allocated to either the QPS or QFES.  The position holder will be required to cease the work they are undertaking on the project to ensure that transitional arrangements are in place for that person and the position can be transitioned to one of the main Departments.”[32]
  1. [83]
    “The PSBA has considered ‘the genuine operational requirements’ drawn from the legislation and reiterated in the Directive 13/20.  The de-establishment of the PSBA and that the secondment will cease with the return of the substantive position holder in January 2021 are significant considerations that have been considered in declining the appellant’s request…”[33] 
  1. [84]
    I concur with the department that such a significant structural change as the dismantling of the department conclusively meets the test for a genuine operational requirement in these circumstances.
  1. [85]
    Whilst acknowledging “…MOG changes such that the PSBA is to cease as a Department at the end of this financial year…”, Ms Lee stated that “…the AO7 Principal Human Resources Business Partner roles will still be required to be performed at either the QPS or QFES.”  As in Holcombe, and explained above at paragraphs [63] – [75], consideration of whether there is an ongoing role is not relevant to conversion requests made under s 149C of the PS Act.  Rather, the matter turns on the question of conversion to the position.

The effect of any previous decisions

  1. [86]
    The Directive came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020.  The deemed decision was taken to be made on 20 October 2020.
  1. [87]
    S 149C(4)(b) provides that the department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
  1. [88]
    An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of the Directive.
  1. [89]
    Given the timing of the legislative instruments coming into effect, the date of the deemed decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Ms Lee.  Further, the term ‘taken to have been made’ relates to s 149C(6), which provides that if the department does not make a decision within the requisite review period, they are taken to have refused the request - that is, the deemed decision.
  1. [90]
    It follows that the decision was fair and reasonable in that respect. 

Conclusion

  1. [91]
    Ms Lee has been acting in an AO7 Principal HR Business Partner position. That engagement was to backfill another employee, the incumbent of that position. Ms Lee has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
  1. [92]
    S 149C of the PS Act applies to an employee seconded to or acting at a higher classification level in the department, for at least 1 year, and who is eligible to be appointed to ‘the position’ at the higher classification level with regard to the merit principle. The employee may ask the department chief executive to appoint them to the position permanently. In determining that review, the department must have regard to the genuine operational requirements of the department and any previous reviews.
  1. [93]
    The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to ‘the position’ occupied by the employee at the time of seeking the review. It is not an unconstrainted review into similar positions or roles. The more broadly ranging review that Ms Lee appears to seek is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive.
  1. [94]
    I recognise that there is some inconsistent wording applied in the Directive, including terms such as ‘role’, but that is resolved by paying appropriate heed to the context of those terms. In short, the power to grant the request is contained at s 149C of the PS Act, which is supplemented by the Directive. In several instances, the Directive re-phrases or summarises s 149C, particularly when discussing the objects of the Directive, and in doing so uses slightly different terminology. Such instances do not supersede or disturb the precise wording of the empowering provision, namely s 149C, which establishes review against, and potential appointment to, the position. Indeed, nowhere in s 149C is the term ‘role’ used.
  1. [95]
    Ms Lee has filed an appeal against the deemed decision to refuse her conversion request.  She has objected to the department’s failure to provide her with a written notice of the decision in the terms required under the PS Act and Directive and within the 28 day period required.  However, I have explained that there are two pathways to determining a s 149C conversion request under the current legislation and that the department’s deemed decision essentially means that different requirements apply.
  1. [96]
    In considering whether there were genuine operational requirements to refuse the conversion request, the Department reasoned that because the incumbent of the position was imminently returning so that the person and position could be transitioned to either the QPS or QFES as a result of the de-establishment of the PSBA, that presented a genuine operational reason not to appoint Ms Lee permanently to the seconded position. I have found the reasoning for that decision to be fair and reasonable. As such, I confirm the decision appealed against and dismiss the appeal.
  1. [97]
    I order accordingly.

Orders:

  1. That the appeal is dismissed.

Footnotes

[1] Advice received from Ms Beth Gordon, A/Director, HR Services.

[2] Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.3 (‘the Directive’).

[3] Appeal Notice filed 10 November 2020, Schedule 1, page 2.

[4] Ms Lee made her conversion request on 22 September 2020.

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[6] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[7] Industrial Relations Act 2016 (Qld) s 567(2).

[8] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] - [61]; Industrial Relations Act 2016 (Qld) s 562B.

[9] Correspondence from Ms Gordon to Ms Lee, dated 13 November 2020, page 1.

[10] Appeal Notice filed 10 November 2020, Schedule 1, page 3.

[11] PS Act, s 149C(1).

[12] PS Act, s 194(1)(e)(iii).

[13] Correspondence from Ms Gordon to Ms Lee dated 13 November 2020, page 1.

[14] Directive, cl 4.2.

[15] 7 September 2020.

[16] Respondent’s Submissions filed 17 November 2020, page 4.

[17] Respondent’s Submissions filed 17 November 2020, page 5.

[18] Respondent’s Submissions filed 17 November 2020, page 5.

[19] Appellant’s reply submissions, filed 24 November 2020, page 1.

[20] 13 November 2020.

[21] Appellant reply submissions, filed 24 November 2020, page 4.

[22] Appellant reply submissions, filed 24 November 2020, page 4.

[23] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[24] Directive, cl 1.2(a)-(b).

[25] Ps Act, s 149C(6) and Directive, cl 6.3.

[26] Directive, cl 7.2.

[27] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (‘Holcombe’).

[28] Appellant’s rely submissions filed 24 November 2020, page 5.

[29] Ibid.

[30] 7 September 2020.

[31] Respondent’s Submissions filed 17 November 2020, page 4.

[32] Ibid, page 5.

[33] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Lee v State of Queensland (Public Safety Business Agency)

  • Shortened Case Name:

    Lee v State of Queensland (Public Safety Business Agency)

  • MNC:

    [2021] QIRC 13

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    19 Jan 2021

Appeal Status

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