Chou v State of Queensland (Queensland Health)
[2021] QIRC 153
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- Chou v State of Queensland (Queensland Health)[2021] QIRC 153
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Chou v State of Queensland (Queensland Health)[2021] QIRC 153
Chou v State of Queensland (Queensland Health)[2021] QIRC 153
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Chou v State of Queensland (Queensland Health) [2021] QIRC 153 Chou, Jeremy (Appellant) v State of Queensland (Queensland Health) (Respondent) | |||
CASE NO: | PSA/2020/372 | |||
PROCEEDING: | Public Service Appeal – Appointment to Higher Classification Level | |||
DELIVERED ON: | 11 May 2021 | |||
MEMBER: HEARD AT: | McLennan IC On the papers | |||
ORDER: | That the appeal is dismissed. | |||
CATCHWORDS: LEGISLATION AND DIRECTIVES: CASES: | 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 to be de-established – consideration of 'genuine operational requirement' Acts Interpretation Act 1954 (Qld) s 14A Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6 Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564 Public Service Act 2008 (Qld) s 120, s 149, s 149C, s 194, s 196, s 197 Statutory Instruments Act 1992 (Qld) s 7, s 14 Goodall v State of Queensland (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]Mr Jeremy Chou (the Appellant) has filed an Appeal against a deemed decision not to convert him to a higher classification position (the decision).
- [2]Mr Chou has been substantively employed by the Respondent as a Nurse Grade 6 Transition Clinician within the Forensic and Secure Services since 23 November 2015 (the substantive position).
- [3]However, Mr Chou continuously acted in the Nurse Grade 7 Clinical Coordinator position from 22 October 2018 until 7 March 2021 (the higher classification position). Mr Chou had periodically acted at the higher classification level since 12 August 2017.
- [4]Mr Chou has since returned to the substantive position.
The Decision
- [5]Section 149C(4) of the Public Service Act 2008 (Qld) (PS Act) requires the Respondent's chief executive to decide a conversion request to a higher classification level within the 'required period', defined at sub-s (8) as being:
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the request is made.
- [6]Pursuant to s 149C(6) of the PS Act, in the event the Respondent's chief executive does not make the decision within the 'required period', the chief executive is deemed to have refused the request.
- [7]On 9 October 2020, Mr Chou submitted a conversion request to the Respondent.
- [8]Mr Chou did not receive a written decision by 6 November 2020, being 28 days after his conversion request. Therefore, the decision subject of this Appeal is the chief executive's deemed decision not to permanently convert Mr Chou's employment to the higher classification position (the deemed decision).
- [9]It is acknowledged that a written notice has since been provided to Mr Chou, subsequent to the filing of the Appeal Notice.
Jurisdiction
Decision against which an appeal may be made
- [10]Section 194 of 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."
- [11]Section 197 of the PS Act allows for an appeal to be heard and decided by the Industrial Relations Commission. An appeal is initiated by filing an Appeal Notice stating the details of the decision being appealed against and the reasons for the appeal.
- [12]Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Mr Chou meets that requirement.
- [13]I am satisfied that the deemed decision not to convert Mr Chou to the higher classification position is able to be appealed.
Timeframe for appeal
- [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.
- [15]The deemed decision was given on 6 November 2020.
- [16]The Appeal Notice was filed with the Industrial Registry on 27 November 2020.
- [17]I am satisfied that the Appeal was filed by the Appellant within the required timeframe.
Appeal principles
- [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".
- [19]
- [20]Findings made by the Respondent, 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.[3]
- [21]The issue for my determination is whether the decision not to convert Mr Chou's employment status to the higher classification position was fair and reasonable in the circumstances.[4]
What decisions can the IRC Member make?
- [22]Section 562C of the IR Act prescribes that the commission may determine to either:
- Confirm the decision appealed against;
- 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
- Set the decision aside and substitute another decision.
Submissions
- [23]In accordance with the Directions Order issued on 8 December 2020, the parties filed written submissions.
- [24]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
The deemed decision
- [25]No written reasons were provided to Mr Chou as at 6 November 2020.
- [26]However, in a letter dated 26 November 2020, Mr Matthew Tallis, Chief Operating Officer at West Moreton Hospital and Health Service did convey the following reasons for not permanently converting Mr Chou:
- Due to genuine operational reasons, Mr Chou is to be engaged according to the terms of his secondment/higher duties arrangement.
- The higher classification level position is not permanently vacant and there is not an ongoing requirement for the position.
Appeal Notice & Appellant's submissions
- [27]Mr Chou set out why he believes the deemed decision was unfair and unreasonable in the Appeal Notice and subsequent submissions filed on 14 December 2020. Those reasons are summarised as follows:
- Mr Chou is suitable for conversion under the merit principle set out in s 28 of the PS Act, has been successfully acting in the role since 19 October 2018 and has the "ability, aptitude, skills, qualifications, knowledge, experience and persona qualities relevant to carrying out the duties".
- The chief executive has not provided any reason for refusing the conversion.
- Mr Chou is unaware of any genuine operational reason for refusing the conversion.
- The higher duties position is vacant and there are two permanent vacancies for the position that have existed since approximately 26 July 2020 and 7 September 2020 respectively.
Respondent submissions
- [28]The Respondent's submissions, filed 15 December 2020, can be summarised as follows:
- The genuine operational reasons for not converting Mr Chou are that the higher classification position is not recurrently funded and therefore no vacancy exists to which Mr Chou could be appointed.
- Mr Chou was backfilling a permanent incumbent of the higher classification position.
- In June 2020, the Respondent became aware that it had over established the higher classification roles. This meant there was a mismatch between budgeted FTE and the FTE that had been recruited - resulting in over-budgeting. The Respondent engaged in discussions regarding the development of a plan for "bringing the service back to its establishment and therefore back to its budget" although it was anticipated this would be achieved through natural attrition and/or retirement of employees.
- On 3 July 2020, the Queensland Nurses and Midwives' Union (QNMU) lodged a Stage 3 Workload Grievance due to "workload concerns" - which meant it became pivotal for the Respondent to confirm the budget and establishment of the Prison Mental Health Service (PMHS) "in order to understand how workload concerns could be resolved." During this period, two permanent incumbents vacated their Clinical Co-Ordinator roles on 26 July 2020 and 6 September 2020, creating what Mr Chou considers to be two vacancies.
- Mr Chou's secondment was extended while the grievance was being resolved to maintain status quo. Following resolution of this matter, Mr Chou will return to his substantive position and the higher classification position will be removed from the Respondent's establishment.
- By way of background, in 2017-2018, additional funding was received from Queensland Police Service and placed against the Nurse Grade 7 cohort as a placeholder. In 2018-2019, the service model was decided and some of the budget that had been placed against the Nurse Grade 7 cohort was allocated to the operational and administrative streams, thereby decreasing the nursing budgeted FTE. In 2020, the budgeted FTE for nursing again reduced slightly however further recruitment had occurred. Although it is anticipated that further funding will be received this financial year, the PMHS will still be over budget/establishment.
- The Respondent considers that a failure in communication or understanding resulted in the management of the PMHS continuing to recruit and employ nursing staff based on a misunderstanding of the budgeted FTE.
- The discrepancies with the budget was only properly understood in June 2020, hence the inaccurate references on forms to backfilling of 'permanent' vacancies.
- The Respondent will use the two most recent vacancies, which were filled as permanent positions without a corresponding budget, to bring the PMHS back into operating within the confines of its budgeted FTE/establishment.
- The Respondent does not contest that Mr Chou meets the merit principle.
Appellant's reply submissions
- [29]In response to the Respondent's written materials above, Mr Chou's reply submissions filed 19 January 2021 can be summarised as follows:
- In Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20), the term 'substantive vacancy' is defined as "a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed" and only applies in the context of cl 5.4 (emphasis added):
An employee may make one request for appointment in each one ear period commencing on the employee becoming eligible to request under clause .3(a) or 5.3(b) and may make an additional request if the role becomes a substantive vacancy.
- Directive 13/20 does not require the higher classification position currently being filled by Mr Chou to be recurrently funded, or that vacancy exists to which Mr Chou could be appointed.
- The Respondent has provided no evidence that there is not a continuing need for Mr Chou to be employed in the higher classification position.
- Mr Chou's circumstances do not fall under any of the circumstances listed in cl 4.2 of Directive 13/20 which provides for "Circumstances that would support the temporary engagement of an employee at a higher classification level…"
- With regard to Morison v State of Queensland (Department of Child Safety, Youth and Women):
The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include 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'.[5]
- The Respondent has not provided any evidence that it has considered whether there was an 'authentic need' to appoint Mr Chou permanently to the role.
- The Respondent has provided information to Mr Chou subsequent to his filing of the Appeal Notice that was not previously disclosed in the written decision letter. Further, the Respondent's letter did not comply with the requirements of cl 7.1 of Directive 13/20 regarding provision of reasons for declining an application.
The review
- [30]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 Directive 13/20.
- [31]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—
- (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
(b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
(c) is eligible for appointment to the position at the higher classification level having regard to the merit principle.
(2) However, this section does not apply to the following public services employees—
(a) a casual employee;
(b) a non-industrial instrument employee;
(c) an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
(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—
(a) the end of 1 year of being seconded to or acting at the higher classification level;
and
(b) each 1-year period after the end of the period mentioned in paragraph (a).
(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—
(a) the genuine operational requirements of the department; and
(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.
(5) If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
(a) reasons for the decision; and
(b) the total continuous period for which the person has been acting at the higher classification level in the department; and
(c) how many times the person's engagement at the higher classification level has been extended; and
(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.
(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.
(7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
(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—
(a) the period stated in an industrial instrument within which the decision must be made; or
(b) if paragraph (a) does not apply—28 days after the request is made.
- [32]Further, s 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—
- (e)a decision (each a conversion decision)—
- (iii)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;
- [33]It is noted that Directive 13/20 came into effect on 25 September 2020.
- [34]Directive 13/20 relevantly provides:
3. Application
3.4 The 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
4.1 An 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.
4.2 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. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
(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
(b) 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
(c) to perform work for a particular project or purpose that has a known end date
(d) to perform work necessary to meet an unexpected short-term increase in workload
4.3 Under 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
5.1 Section 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.
5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
(a) have been seconded to or assuming the duties and responsibilities of the higher classification level
(b) for a continuous period of at least one year
(c) be eligible for appointment to the higher classification level having regard to the merit principle.
5.3 Under 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:
(a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
(b) each subsequent year where the employee continues their engagement at the higher classification level in the same role.
5.4 An 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.
5.5 The 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
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:
(a) the genuine operational requirements of the department, and
(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.
7. 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:
(a) set out the findings on material questions of fact, and
(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.
8. Appeals
8.1 An 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.
8.2 In 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.
- [35]Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[6]
- [36]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.
- [37]The stated purpose of Directive 13/20 is:
- Purpose
1.1 The 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.
1.2 This directive:
(a) 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
(b) supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
(c) sets out procedures for requests and decisions.
Findings
- [38]I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable.
- [39]This involves a review of the decision-making process utilised and the conversion decision arrived at.
- [40]In this circumstance, the PS Act and Directive 13/20 provides that, in making a decision regarding a higher classification conversion request, the chief executive must have regard to:
- Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle;
- The genuine operational requirements of the department; and
- The reasons for each decision previously made, or taken to have been made, under s 149C in relation to the person during the person's continuous period of employment at the higher classification level.
Eligibility for review of conversion
- [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 cl 4.1 of Directive 13/20.
- [42]It is not a point of dispute between the parties that Mr Chou is eligible to request conversion to the higher classification level.
Two pathways to deciding an employee's conversion request
- [43]There are two pathways by which a conversion request made under s 149C of the PS Act 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.
- [44]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) when provided within the 28-day timeframe. In the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stipulating relevant criteria as required under cl 7.1 of Directive 13/20.
- [45]While the PS Act and Directive 13/20 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 - a deemed decision. [7]
- [46]Put another way, the act of not making a decision is taken to be a decision in itself. 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.
- [47]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…"[8] 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.
- [48]That the department chose to then provide Mr Chou with a written notice of the decision to refuse his conversion request subsequent to the filing of his Appeal does not amount to their failure to adhere to the mandatory requirements either. The decision subject of Mr Chou's Appeal is the deemed decision. This was made clear in Mr Chou's Appeal Notice. Therefore, the standing of any written notice that the department has later provided to Mr Chou is useful only as other evidence to be taken into account as part of my review of the deemed decision subject of this Appeal. 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 Mr Chou's Appeal.
Purpose
- [49]In deciding this Appeal, I note the significance of the legislative provisions identified and explained above.
- [50]In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of Directive 13/20 is to be preferred to any other interpretation.
- [51]In that regard, I recognise that one of the stated purposes of Directive 13/20 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."[9]
Merit
- [52]There is no dispute with respect to Mr Chou's merit.
What is the position subject of this Appeal?
- [53]The submissions of both Mr Chou and the Respondent concur that the Nurse Grade 7 Clinical Co-ordinator position is the position upon which this matter turns.
- [54]Whilst acknowledging this, Mr Chou has pointed to another two positions with the same job title that he considered to be vacant. That is irrelevant.
- [55]Section 149C(1)(c) of the PS Act 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 Mr Chou is confined to the position into which he 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.
- [56]Section 149C of the PS Act and Directive13/20 create 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.
- [57]It follows that the position the subject of the review was the Nurse Grade 7 Clinical Co-ordinator position occupied by Mr Chou.
- [58]In reviewing the decision, that is indeed the position against which Mr Chou was reviewed. The decision was fair and reasonable in that the review was conducted against the correct position.
- [59]That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works).[10] The words the position must be given effect – other criteria are entirely separate considerations.
Genuine operational requirements
- [60]Clause 4.2 of Directive 13/20 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 Respondent. Mr Chou contends that his circumstances do correspond with those listed in cl 4.2. However, cl 4.2(b) includes backfilling an existing employee who is absent and cl 4.2(d) includes performing "work necessary to meet an unexpected short-term increase in workload" as being circumstances that would support the temporary engagement of an employee at a higher classification level. The Respondent submits that Mr Chou was originally appointed to the higher duties position to backfill a permanent incumbent and was later extended in his higher duties position due to a grievance lodged by the QNMU "regarding workload concerns".
- [61]The engagement may have most recently been of the type contemplated within cl 4.2(d) of Directive 13/20, being a circumstance that would support temporary rather than permanent engagement. However, the Respondent's submission in this respect was rather vague and it is unclear what the workload concerns exactly related to. As such, I will not place substantial weight on this aspect.
- [62]The Respondent's submission also cited the fact of the higher classification level position not being recurrently funded and that it would therefore soon be de-established. The Respondent contended that this constitutes a genuine operational requirement that would prevent Mr Chou's conversion to the higher classification position at this time. Specifically, the effect of this imminent de-establishment is that the PMHS will be able to operate within the confines of its budgeted FTE/establishment where before it had been over.
- [63]The Respondent concedes that in 2020 it became aware it had over established the higher classification roles, thereby resulting in over-budgeting. The Respondent subsequently developed a plan for "bringing the service back to its establishment and therefore back to its budget". It is apparent that there was clearly a failure in either communication or understanding that resulted in this unfortunate circumstance that has hindered Mr Chou's opportunity to be permanently converted. However, I concur with the Respondent that such a significant budgetary issue that requires the de-establishment of a position meets the test for a genuine operational requirement in these very particular circumstances.
- [64]In line with Mr Chou's submissions, I accept that a substantive vacancy is not required for an employee to be permanently converted to a higher classification position. However, the fact the position is not recurrently funded cannot be ignored and in consideration of the budgetary and over-establishment issues conceded by the Respondent, those factors have contributed to genuine operational requirements not to permanently convert Mr Chou.
- [65]Mr Chou submitted that the Respondent has provided no evidence that there is not a continuing need for Mr Chou to be employed in the higher classification position. As in Holcombe v State of Queensland (Department of Housing and Public Works), consideration of whether there is an ongoing role is not relevant to conversion requests made under s 149C of the PS Act.[11] Rather, the matter turns on the question of conversion to the position.
- [66]Having regard to the "effective, efficient and appropriate management of the public resources of the department", I consider that not converting Mr Chou to the higher classification level was fair and reasonable in the circumstances. The Respondent does not have an "authentic need" for the higher classification position that was being performed by Mr Chou at this time.
The effect of any previous decisions
- [67]Directive 13/20 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 6 November 2020.
- [68]Section 149C(4)(b) of the PS Act 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.
- [69]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 Directive 13/20.
- [70]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 Mr Chou. 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.
- [71]It follows that the decision was fair and reasonable in that respect.
Conclusion
- [72]Mr Chou has been acting in the Nurse Grade 7 Clinical Co-Ordinator position. That engagement was to backfill another employee, the incumbent of that position and was subsequently extended due to "workload concerns". Mr Chou has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
- [73]Mr Chou has filed the Appeal against the deemed decision to refuse his conversion request. Mr Chou has objected to the Respondent's failure to provide him with a written notice of the decision in the terms required under the PS Act and Directive 13/20. However, I have explained that there are two pathways to determining a s 149C conversion request and that the Respondent's deemed decision essentially means that different requirements apply.
- [74]In considering whether there were genuine operational requirements to refuse the conversion request, the Department reasoned that because of issues with over-budgeting and over-establishment, the position is not recurrently funded, and its de-establishment would assist to stabilise the PMHS. That presented a genuine operational reason in these very particular circumstances not to appoint Mr Chou 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.
- [75]I order accordingly.
Order:
That the appeal is dismissed.
Footnotes
[1] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[2] Ibid s 562B(2).
[3] Ibid s 567(2).
[4] 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.
[5] [2020] QIRC 203.
[6] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[7] Public Service Act 2008 (Qld) s 149C(6); Directive 13/20 Appointing a public service employee to a higher classification level cl 6.3.
[8] Directive 13/20 Appointing a public service employee to a higher classification level cl 7.2.
[9] Ibid cl 1.2(a)-(b).
[10] [2020] QIRC 195.
[11] [2020] QIRC 195.