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  4. McKenzie v State of Queensland (Department of Energy and Public Works) - [2021] QIRC 147

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McKenzie v State of Queensland (Department of Energy and Public Works)[2021] QIRC 147

McKenzie v State of Queensland (Department of Energy and Public Works)[2021] QIRC 147

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McKenzie v State of Queensland (Department of Energy and Public Works) [2021] QIRC 147

PARTIES: 

McKenzie, Jack Henry

(Appellant)

v

State of Queensland (Department of Energy and Public Works)

(Respondent)

CASE NO:

PSA/2021/98

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

4 May 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where appellant applied for a position – where role redesignated – where position no longer exists – where appellant was acting in a higher classification level – consideration of 'genuine operational requirements'

LEGISLATION:

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

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

Public Service Act 2008 (Qld), s 149C, s 197, s 201, s 295

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Jack McKenzie appeals a decision of the State of Queensland (Department of Energy and Public Works) ("the Department") to not convert his temporary placement in a higher classification level position to a permanent position.
  1. [2]
    Mr McKenzie is permanently employed as a BAO4, Maintenance Support Coordinator with the Department. Between 31 October 2016 and 29 January 2021, Mr McKenzie performed higher classification duties of BAO6, Service Manager within the Maintenance and Response Centre of QBuild.
  1. [3]
    On 14 January 2021, Mr McKenzie requested, pursuant to s 149 of the Public Service Act 2008 (Qld) ("the PS Act") to be appointed permanently to a higher classification position. The chief executive's delegate did not make a decision regarding Mr McKenzie's request within the required 28 days. Accordingly, pursuant to s 149C(6) of the PS Act, a failure to make a decision within the prescribed time is taken to be a refusal of the request ("the deemed decision").
  1. [4]
    By notice of appeal filed on 15 March 2021, Mr McKenzie appealed the deemed decision and says that it was not fair or reasonable for grounds including that:
  1. two weeks after he made the request to be converted to permanent, the permanent role was re-designed to an AO6 classification and open to an expression of interest process;
  1. Mr McKenzie was not consulted in relation to the proposed re-designation of the BAO6 role to an AO6 role and that the re-designation did not correlate to an efficiency realisation as part of QBuild's Transformation Program;
  1. Mr McKenzie applied to temporarily perform the re-designated AO6 Senior Client Service Officer position but was unsuccessful; and
  1. the capability requirements of the BAO6, Service Manager position and the re-designated AO6 Senior Client Service's Officer position are the same.
  1. [5]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
  1. [6]
    Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [7]
    As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]
  1. [8]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

Relevant provisions of the PS Act and Directive 13/20

  1. [9]
    Section 149C of the PS Act provides:

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

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.

(4A) In making the decision, the department's chief executive must have regard to—

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (5)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [10]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),[4] Merrell DP relevantly stated:[5]

Reasons for Decision

The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

(Citations omitted)

  1. [11]
    Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level ("Directive 13/20") came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [12]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  1. Decision making

6.1  When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2  In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

  1. (a)
    the genuine operational requirements of the department, and
  1. (b)
    the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3  In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4  Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

  1. [13]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows:
  1. Statement of reasons

7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

7.2  A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.

  1. [14]
    Clause 11 of Directive 13/20 defines the following relevant terms:

…

Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.

Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.

…

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.

  1. [15]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Was the decision fair and reasonable?

  1. [16]
    Clause 4.2 of Directive 13/20 provides that secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate.
  1. [17]
    At the time Mr McKenzie made the request, he had been acting in higher duties for an extended period of time in excess of 4 years. That is a lengthy period to be acting in a temporary appointment. The Department refused Mr McKenzie's request to be appointed to the higher classification level on the basis of genuine operational requirements, being that the role Mr McKenzie applied for has been re-classified as part of the QBuild's Transformation Program.

Genuine operational requirements of the Department

  1. [18]
    Mr McKenzie contends that the Department has not properly considered the matters that must be considered pursuant to the PS Act including the genuine operational requirements of the Department. Mr McKenzie submits that the role that he made the request with respect to, being BAO6, Service Manger position, is the same role as the re-designated position being AO6, Senior Client Service's Officer.
  1. [19]
    As noted above, s 149C(4A)(a) of the PS Act and Clause 6.2(a) of the Directive provides that the decision maker must have regard to the "genuine operational requirements of the Department".
  1. [20]
    It has been held,[6] that when construed in context, the phrase "genuine operational requirements of the Department" would, at least, include consideration of the following:

…

Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to…position at the higher classification level.[7]

  1. [21]
    The Department submits that it is not appropriate or viable for the Department to offer to permanently employ Mr McKenzie in a position that no longer exists.
  1. [22]
    In determining whether this decision is fair and reasonable it is necessary to have regard to some of the chronology with respect to the matter and the re-designation of the position. This history is included in the Department's submissions and it may be summarised as follows:
  1. on 2 November 2020, the Director, Business Operation Support, QBuild, identified, as part of QBuild's Transformation Program, that the position BAO6, Service Manager position (position number 707081) was no longer required;
  1. it was proposed that BAO6, Service Manager position (position number 707081) be re-designated as an AO6 Senior Client Service Officer position, responsible for leading a remote, state-wide, client support team to deliver successful un-planned trained service requirements to QBuild's partners and members of the public through centralised QBuild client contact centres;
  1. on 18 January 2021, and 28 January 2021, Mr McKenzie was consulted on the proposed re-designation of the BAO6, Service Manager position within the maintenance response centre of QBuild;
  1. the Director, Business Operation Support, QBuild, subsequently determined that the position of BAO6, Service Manager (position number 707081) be re-designated as an AO6 Senior Client Service Officer position effective at the conclusion of Mr McKenzie's higher duties placement on 29 January 2021; and
  1. On 29 January 2021, Mr McKenzie's higher duties arrangement in the BAO6, Service Manager position concluded and as at 30 January 2021, Mr McKenzie commenced performing higher duties in the position of BAO5, Maintenance Support Consultation (position number 707524) within the Maintenance Response Centre of QBuild. 
  1. [23]
    Whilst Mr McKenzie, in his written submissions agrees that he was briefly consulted with respect to the changes, he contends that he was not provided fulsome details of the change nor was he informed that the higher duties he was performing would cease as he was led to believe he would continue to relieve in the AO6 role.
  1. [24]
    In addition to complaining that he was not afforded proper consultation in relation to the proposed changes to the position, Mr McKenzie also contends that when he sought feedback about his unsuccessful application in the expression of interest process for the AO6 position, he was informed that he needed to provide more in-depth analysis when providing reports to the management team. He states that he never received any negative feedback on his performance in the role and no issues were ever raised with him in any other forum.
  1. [25]
    Whilst Mr McKenzie may have legitimate complaints with respect to the fulsomeness of the consultation process and/or the recruitment process, I do not have the necessary information before me to make a determination with respect to these matters. Further, I am bound by the terms of the appeal that has been filed by Mr McKenzie. Relevantly, this is an appeal of a decision to refuse Mr McKenzie's request to be permanently appointed to a higher classification position being BAO6, Service Manager. The matters Mr McKenzie raise in relation to the consultation process and a separate process with respect to the appointment process for the new position are separate to the matters I must determine in this appeal.
  1. [26]
    Relevantly, at the end of the day, it is clear that the position Mr McKenzie applied for no longer exists. Whilst that position was in existence at the time he made the request, four days after making the request he was advised, through a consultation process, that the position would be re-designated. I am satisfied, on the material produced during the course of this appeal that the decision to consider whether that position should be re-designated was made as part of a broader consideration of the operation of the Department in a process described as the Transformation Program.
  1. [27]
    Accordingly, I have concluded that there was no authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint Mr McKenzie to the role that he has been performing at a higher classification level in the Department on the basis that, from 29 January 2021, that position no longer exists.

Conclusion

  1. [28]
    For the forgoing reasons, I have determined that the Department's decision to refuse to appoint Mr McKenzie to the position at the higher classification to be fair and reasonable.

Order

  1. [29]
    I make the following orders:
  1. Pursuant to s 562(C)(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

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

[4] [2020] QIRC 203.

[5] Ibid, [37] – [38].

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

[7] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    McKenzie v State of Queensland (Department of Energy and Public Works)

  • Shortened Case Name:

    McKenzie v State of Queensland (Department of Energy and Public Works)

  • MNC:

    [2021] QIRC 147

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    04 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
5 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Cite 5 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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