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  4. Thorne v State of Queensland (Department of Housing and Public Works) - [2021] QIRC 15

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Thorne v State of Queensland (Department of Housing and Public Works)[2021] QIRC 15

Thorne v State of Queensland (Department of Housing and Public Works)[2021] QIRC 15

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015

PARTIES: 

Thorne, Clea-marie

(Appellant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

PSA/2020/310

PROCEEDING:

Public Service Appeal – Conversion to higher classification level

DELIVERED ON:

18 January 2021

MEMBER:

HEARD AT:

Power IC

On the papers

OUTCOME:

CATCHWORDS:

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

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the incumbent of the role was returning – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’.

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 149 and 149C

Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7

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)

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

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

Reasons for Decision

  1. [1]
    Ms Clea-marie Thorne (the Appellant) is permanently employed as a public service officer in the position of AO7, Principal Policy Advisor within Legislation and Reform, Strategy, Policy and Legislation, a business unit of Housing and Homelessness, a division of the State of Queensland (Department of Housing and Public Works) (the Respondent).
  1. [2]
    The Appellant has been acting in a higher classification role as an AO8, Manager, within Business and Service Support, Strategy, Policy and Programs, Housing and Homelessness (the 'higher classification level position') since 23 October 2017.
  1. [3]
    The Appellant appeals a decision by Ms Tully Stewart, Acting Director, Human Resources of the Respondent, dated 22 October 2020, to refuse the request made by the Appellant to be permanently appointed to the higher classification level position in which she had been acting.
  1. [4]
    The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
  1. [5]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision‑making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Ms Stewart to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.

Decision to be reviewed

  1. [8]
    On 2 October 2020, the Appellant requested that she be permanently appointed to the higher classification level position.
  1. [9]
    On 22 October 2020, Ms Stewart informed the Appellant of the decision in response to her request.  In doing so, Ms Stewart stated:

The Deputy Director-General, Housing, Homelessness and Sport (Deputy Director-General) has given consideration to your request and notes the following:

  • You are substantively employed in the role of AO7, Principal Policy Advisor, within Legislation and Reform, Strategy, Policy and Legislation and since 23 October 2017 you have been performing the duties of AO8, Manager, Business and Service Support.   The purpose of your placement in the role of AO8, Manager, Business and Service Support is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.
  • You have been engaged in the position of AO8, Manager, Business and Service Support for a continuous period of 35 months.
  • Your engagement in the position of AO8, Manager, Business and Service Support has been extended nine times.
  • Your engagement in the AO8, Manager, Business and Service Support is due to expire on 31 January 2021.

…

After considering your request to be permanently employed in the position of AO8, Manager within Business and Service Support and the circumstances of your higher duties placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing higher duties placement. The reasons for the Deputy Director-General's decision are:

  • the purpose of your current placement in the position of AO8, Manager within Business and Service Support is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.
  • should the substantive employee return to their position, there will no longer be a continuing need for you to be engaged in the position of AO8, Manager within Business and Service Support.

Relevant provisions of the PS Act and the Directive

  1. [10]
    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. (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. (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. [11]
    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.

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.  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.

Submissions

  1. [12]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. 

Appellant's submissions

  1. [13]
    The Appellant filed submissions in support of the appeal. A summary of those submissions are as follows:
  • the Appellant submits that she meets the requirements and is eligible to be appointed under the PS Act and the Directive;
  • the Appellant's request for conversion to the higher classification level position was rejected on the grounds that the position the Appellant has been acting in is not substantively vacant;
  • neither the PS Act nor the Directive requires there to be a substantive vacancy to appoint to the higher classification level position;
  • the Respondent did not apply the Directive in a manner that is consistent across the Public Service by only appointing where there is a substantive vacancy, creating inequity, confusion and disparity;
  • staff were made aware of the opportunity to apply for the higher classification level conversion by DG newsletter, but at no time was it made transparent to the Appellant or to other staff that only vacant positions would be considered for conversion;
  • the Directive speaks of being permanently appointed to a higher classification level and does not specify being appointed to the actual position clearly throughout the Directive;
  • the Chief Executive Officer must consider the 'genuine operational requirements of the department' when determining if the appointment should be made;
  • the substantive position holder had been on secondment to another position to fill an operational need prior to the Appellant's commencement in the role on 23 October 2017 and has had subsequent secondment opportunities and has not requested to return specifically to the role the Appellant has been acting in, nor asked to relinquish the position;
  • the Respondent does not have strategic workforce management practices in place to ensure the PS Act and the Directive can be appropriately operationalised. For example, the Respondent does not allow or require staff to relinquish positions following a period of secondment. Further, there are tenured employees of the Respondent who have been seconded from their substantive positions for more than three years and in some cases in excess of five years both within the Respondent and other government and non-government agencies;
  • there is no fairness or consistency in the treatment of positions that the department has deliberately left vacant in comparison to long term higher duties against positions where the substantive officer has not returned;
  • senior leadership has not sought to compel the substantive position holder to return to the role that the Appellant currently occupies and, by all accounts, are satisfied with the Appellant's performance and leadership in the role and are supportive of the Appellant to continue, as is evidenced by the ten extensions to date;
  • these continued extensions demonstrate the genuine operational requirement that the role continue, and in turn, the Appellant's appointment to be supported;
  • the substantive occupant of the position has acted in at least four different roles during the Appellant's stable, long-term commitment to the higher classification level position. This further reflects that the Respondent has had no appropriate strategic workforce management policies and procedures to compel staff to return to or relinquish their position;
  • during this time, the Appellant has accumulated pay increment levels within the role commensurate to her merit-based performance and the length of time the Appellant have been acting in the role;
  • the role is critical to the day-to-day functions of the team and the Appellant has undertaken the role professionally and in a highly capable manner. The Appellant is asking for the Respondent to be fair, responsive and inclusive in assessing this request and those that follow as there remains an ongoing, genuine operational need for the role to continue;
  • decisions of the Respondent are being driven by budget and the reporting against Minimum Obligatory Human Resource Information system, not by the people in which these decisions affect;
  • the Respondent is reluctant to create supernumerary positions, and as such, has given no consideration of appointing the Appellant permanently at the higher classification level position in which the Appellant has performed in over the last 36 months;
  • the Respondent provided no time with the Human Resources representative to discuss the Appellant's request nor the substantive officer or to understand whether either of the Appellant or substantive officer would be happy to be unattached, noting the Respondent is paying both at the AO8 classification level. The Appellant submits that this is not a reasonable approach to assessing the ongoing operational need for a role, where no consideration or consultation has occurred with the substantive position holder;
  • there is an inequity and inconsistency which goes to the fairness of the application of the PS Act and the Directive by the Respondent and it is particularly apparent in relation to conversions being achieved under s 149 of the PS Act. Fixed term temporary employees and casual employees may ask for review of status after one year of continuous employment. These conversions have budget implications, yet the Respondent is actively creating the supernumerary positions, sometimes through appeal, and is managing and reporting on the budget implications that stem from these conversions. Accordingly, conversions under s 149C of the PS Act should be treated in the same manner; and
  • the Public Service Commission has acknowledged that content expertise is critical, and the 'A Fair and Responsive Public Service for All report (the Bridgman Review)' highlights that a fair, responsive and inclusive public sector for all is required. The Appellant submits that the pillar of fairness is especially important in creating fair employment practices and fairness in the employment experience. The Appellant does not believe that she has been treated fairly in relation to employment practices or experience.

Respondent's submissions

  1. [14]
    The Respondent filed the following submissions in response to the Appellant's submissions, in summary:
  • the Appellant is permanently employed in the position of Principle Policy Advisor within Legislation and Reform, Strategy, Policy and Legislation, a business unit of Housing and Homelessness, a division of the Respondent;
  • since 23 October 2017, the Appellant has been continuously performing the duties of a higher classification level position;
  • the purpose of the Appellant's temporary placement in the higher classification level position has been to backfill the substantive employee who is relieving in an alternative position;
  • since 23 October 2017, the Appellant's temporary placement in the higher classification level position has been extended on nine occasions;
  • the Appellant's current temporary placement in the higher classification level position is due to expire on 31 January 2021, which coincides with the date that the substantive employee is due to return to their substantive position;
  • there are no performance concerns regarding the Appellant's placement in the higher classification level position that have been put to the Appellant, documented and remain unresolved;
  • clause 4.2 of the Directive provides that circumstances that would support the temporary engagement of an employee at a higher classification level include:
  1. (a)
    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;
  1. (b)
    when an existing employee is absent to perform another role within their agency or is on to comment, and the agency does not use permanent relief pools for those types of roles;
  1. (c)
    to perform work for a particular project or purpose that has a known end date; and
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload;
  • the Respondent submits that as the Appellant's current temporary placement in the higher classification level position is to backfill the substantive employee, who is relieving in an alternative position, there will no longer be a continuing need for the Appellant to be placed in the higher classification level position once the substantive employee returns to work in their substantive position;
  • as the Respondent does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO8 position (i.e. the Appellant and the substantive occupant of that position), it is not appropriate or viable for the Respondent to offer to permanently employ the Appellant to that position;
  • with respect to the Appellant's submission that the Chief Executive's Delegate determined not to appoint the Appellant on the basis that the position they have been acting is not substantively vacant, the Respondent reiterates that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO8 position within Business and Service Support, Strategy, Policy and Programmes, Housing and Homelessness;
  • 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;
  • the Respondent considers that clause 4.2 of the Directive is relevant for this matter, in that it clearly demonstrates that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level role, where their skills are only temporarily required prior to the permanent employee returning to their substantive position;
  • as confirmed by the decision in Holcombe v State of Queensland (Department of Housing and Public Works),[5] a department is not required to consider at level positions within the department when assessing an employee's conversion request and is only required to consider appointing the Appellant to the specific position the Appellant was performing at the time they submitted their conversion request;
  • in relation to the requirement for the Chief Executive to consider the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act, in relation to the Appellant during their continuous period of employment at the higher classification level position, no such previous decisions have been made or deemed to have been made about the Appellant by the Chief Executive or delegate;
  • the Respondent further submits that in advising the Appellant of the decision of the Chief Executive's Delegate, a written notice was provided to the Appellant stating:
  1. (a)
    the reasons for the decision;
  1. (b)
    the total continuous period for which the person has been employed 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
  • in relation to the requirement for the written notice to detail the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act in relation to the Appellant during their continuous period of employment at the higher classification level, the written notice provided to the Appellant contains no such details as no previous decisions have been made or deemed to have been made about the Appellant by the Chief Executive or delegate.

 Appellant's submissions in reply

  1. [15]
    The Appellant filed submissions in reply to the Respondent's submissions, in summary:
  • since 23 October 2017, the Appellant has been repeatedly extended in the higher classification level position on nine separate occasions and has provided stability, leadership and consistency in the role and to the team;
  • the purpose of the Directive states "[t]he Public Service Act 2008 establishes employment on tenure as 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;"
  • the substantive occupant has been relieving in multiple roles both within and external to the Respondent and at no time has been asked, or compelled, to return to the role during the time the Appellant acted in the position;
  • whilst it may be appropriate to consider a 12 month secondment 'temporary', the Appellant has been in the role for a period of three years. This was not a short-term project position as it has been continuously extended as the need was ongoing. The secondment has not been for a 'known period' as the position was not advertised for a set period of three years. It is difficult to argue that this is a temporary secondment when it has continued for such a significant stretch of time;
  • the Respondent has had no reservations in funding two AO8 officers at times during the last three years. The substantive occupant has been seconded to multiple roles at level and in higher positions within the Respondent, including roles that were not part of the permanent or temporary establishment;
  • the Respondent has consistently demonstrated the ability to budget for and appoint dual officers against single positions when it is operationally convenient to do so but fails to give officers legitimacy after three years of continued successful performance in higher duties;
  • the Appellant states that as acting manager in her current role, she has advocated for and had approved by the appropriate delegates conversions under the Directive 9/20 Fixed Term Temporary Employment (Directive 9/20);
  • the Appellant submits that the argument that the Respondent does not have a genuine operational need for AO8 Managers appears to be invalid, given the wildly inconsistent approaches taken;
  • the Respondent has not undertaken an appropriate analysis of the circumstances that might affect the likelihood of the roles (both the Appellants and that of the substantive occupants) being ongoing;
  • the Appellant's current end date of 31 January 2021 is consistent with a significant number of staff within Housing and Homelessness Services. Until the Appellant sought conversion under the Directive, she submits that she had no reason to think that her relieving would not continue into 2021. Prior to seeking conversion, there had been no discussions with her that would suggest the relieving would end;
  • the Appellant submits that an objective analysis of whether there is an ongoing role and not whether there is a substantive vacancy must be considered when making the decision;
  • there has been no demonstration of engagement with the substantive occupant and their plans for return or otherwise to the position. It is therefore likely that the ongoing need for the Appellant to continue in the role continues to exist, as demonstrated by the consistent and repeated higher duties extensions at the AO8 level, due to the need to consistently backfill the substantive position holder. The decision states "should the employee return…" which is not a definitive confirmation the substantive occupant is returning;
  • the Appellant recognises that whilst this is a relevant consideration when making a decision, the Respondent has provided no evidence of findings of any analysis conducted by the Department as to whether there will be an ongoing need for the Appellant to be employed in the role and whether the role is likely to be ongoing;
  • there is no strategic workforce management strategy within the Respondent, there is no ability to relinquish from roles and there is a significant reluctance by the Respondent to create supernumerary positions due to budgetary constraints. This was particularly highlighted by the slow conversion rate of temporary employees under Directive 9/20;
  • the lack of strategic workforce management makes it almost impossible to appropriately operationalise and implement the Directive successfully. Conversions will only occur where there is a vacant substantive;
  • fairness should be applied to this process, not seemingly through luck of the draw or circumstances. The Appellant respectfully states that an officer who has relieved in a role, whether for a known or unknown duration, and by chance that role becomes substantively vacant and, for any number of reasons the role is not advertised or a delegate chooses not to fill it, the officer who meets the requirements at under the Directive can win the prize of a conversion purely because they were in the right position at the right time;
  • the Appellant has worked in the higher classification level position longer than the incumbent officer has ever undertaken the role and feels compelled to state that departmental inaction to manage long-term absences and secondments has hampered the opportunity for herself and others to fill the role permanently, whether by conversion or through a meritorious selection process. The Appellant is aware of others being asked to return to positions after a specific duration, however, after three years this has not occurred; and
  • the Directive does not require a position to be substantively vacant and the process put before staff does not invite only the employees who are acting in vacant positions to apply. 

Consideration

  1. [16]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. 
  1. [17]
    The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement.
  1. [18]
    The reasons given for the Respondent's decision, as outlined in the letter dated 20 October 2020, are as follows:

…

After considering your request to be permanently employed in the position of AO8, Manager within Business and Service Support and the circumstances of your higher duties placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing higher duties placement. The reasons for the Deputy Director-General's decision are:

  • the purpose of your current placement in the position of AO8, Manager within Business and Service Support is to backfill the substantive employee, while the substantive employee is relieving in an alternative position.
  • should the substantive employee return to their position, there will no longer be a continuing need for you to be engaged in the position of AO8, Manager within Business and Service Support.
  1. [19]
    The Appellant believes the Respondent has erred in making the decision on the basis that the Department has considered only that the Appellant has temporarily occupied a higher duties role whilst the substantive employee is seconded elsewhere, and in doing so has made a decision that is not fair and reasonable.
  1. [20]
    The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A):
  1. (a)
    the genuine operational requirements of the department; and
  2. (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.

Genuine operational requirements of the Department

  1. [21]
    I accept the Appellant's submission that neither the PS Act nor the Directive include a requirement that the role be substantively vacant as a prerequisite for appointment to the higher classification level position. However, 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. [22]
    In respect of the Directive, clause 4.2 outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including:

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.

  1. [23]
    As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),[6] the phrase '…genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, 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 '…the position at the higher classification level.'[7]

  1. [24]
    In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant should be appointed to the higher classification level position when the incumbent was likely to return to that position. I accept the Respondent's submission that it does not have a genuine operational requirement for the Appellant to continue in this role once the substantive employee returns to work in their substantive position.
  1. [25]
    The Appellant submits that the holder of the substantive role has not requested to return to the role in which the Appellant has been acting, nor have they been asked to relinquish the position. It is not incumbent upon the Respondent to conduct such inquiries in order to satisfy the requirement to consider operational requirements of the Department.
  1. [26]
    I note the Appellant's submission that "there is a significant reluctance by the Respondent to create supernumerary positions due to budgetary constraints." The Directive does not require that the Respondent create supernumerary positions to convert a temporary occupant of a higher classification to permanent, rather they are required to consider the operational requirements of the Department. The Respondent has determined that it only requires one AO8 Manager within Business and Service Support, Strategy, Policy and Programmes, Housing and Homelessness, and it currently has a substantive employee attached to this role. If the Appellant were to be appointed permanently to the role and the substantive employee then returned, the Department would have two AO8 Managers which is in excess of their operational requirements.
  1. [27]
    The question to be determined is not whether the role is ongoing, as would be the case in a temporary conversion appeal. The question is whether the Appellant's current temporary appointment should be converted to permanent following consideration of the Department's genuine operational requirements.  As noted in Holcombe v State of Queensland (Department of Housing and Public Works)[8] a Department is only required to consider appointing the Appellant to the specific position the Appellant was performing at the time they submitted their conversion request. The Appellant's submission that consideration should have been given to employing both the temporary and substantive employees at the AO8 level goes beyond the requirements of the Directive.
  1. [28]
    I accept that the Appellant has performed meritoriously in the role for significant amount of time. The Directive, however, does not require the Respondent to overcome the genuine operational requirements in order to facilitate conversion on the basis of merit.

Previous reasons for acting at a higher classification level

  1. [29]
    Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level.
  1. [30]
    On the basis that no previous decision has been made pursuant to s 149C of the PS Act, no other decisions were considered.

Compliance with requirements of s 149C of the PS Act

  1. [31]
    The Respondent is required to comply with s 149C(5) of the PS Act, which provides as follows:
  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. [32]
    The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for 35 months following nine extensions where the substantive employee has been relieving in alternative positions. As mentioned above, no previous decisions were made under this section of the PS Act and so s 149C(5)(d) was not included. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act. 
  1. [33]
    In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was fair and reasonable.

Order

  1. [34]
    I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

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

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2020] QIRC 195.

[6] [2020] QIRC 203.

[7] Ibid [40].

[8] [2020] QIRC 195

Close

Editorial Notes

  • Published Case Name:

    Thorne v State of Queensland (Department of Housing and Public Works)

  • Shortened Case Name:

    Thorne v State of Queensland (Department of Housing and Public Works)

  • MNC:

    [2021] QIRC 15

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    18 Jan 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
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Cox v State of Queensland (Queensland Health) [2021] QIRC 992 citations
Cushing v State of Queensland (Department of Education) [2023] QIRC 2522 citations
Deans v State of Queensland (Department of Education) [2025] QIRC 1082 citations
Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 1382 citations
Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 383 citations
Zullo v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 1562 citations
1

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