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  4. Nizar v State of Queensland (Department of Housing and Public Works) - [2021] QIRC 161

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Nizar v State of Queensland (Department of Housing and Public Works)[2021] QIRC 161

Nizar v State of Queensland (Department of Housing and Public Works)[2021] QIRC 161

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nizar v State of Queensland (Department of Housing and Public Works) [2021] QIRC 161

PARTIES: 

Nizar, Seema

(Appellant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

PSA/2020/357

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

14 May 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where substantive employee is temporarily performing duties in an alternative position – where substantive employee is due to return to role 

LEGISLATION:

Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2 cl 6, c l7

Industrial Relations Act 2016 (Qld), s 562B

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]
    Ms Seema Nizar appeals a decision of the State of Queensland (Department of Housing and Public Works) ("the Department") not to permanently appoint her to a position in which she has been acting at a higher classification level.
  1. [2]
    Ms Nizar is permanently employed in the position of AO2, Administration Officer Level 2, Payroll and Establishment Services within Queensland Share Services (QSS), a business unit of the Queensland Government Chief Digital Group (QGCDG), a division of the Department.
  1. [3]
    Since 10 September 2018, Ms Nizar has performed higher classification duties of various AO3, Service Delivery Officer positions within QSS, that have been extended on 19 occasions.
  1. [4]
    Ms Nizar commenced temporary placement in the AO3, Service Delivery Officer position, position number 76021904, on 13 July 2020. The Department submits that the purpose of Ms Nizar performing this position is to backfill the substantive employee while the substantive employee has been temporarily performing duties in an alternative position.
  1. [5]
    On 9 October 2020, Ms Nizar requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be permanently converted to the higher classification level position.
  1. [6]
    On 5 November 2020, the Department issued a decision refusing Ms Nizar's request to be permanently appointed to the role in which she had been acting.
  1. [7]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides than 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. [8]
    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. [9]
    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. [10]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [11]
    On 5 November 2020, the Department issued a decision in the following terms:

…

After considering your request to be permanently employed in the position of AO3, Service Delivery Officer within Payroll and Establishment Services, Service Delivery, QSS, and the circumstances of your temporary placement in that role, the Deputy Director-General's decision are:

  • the purpose of your current placement in the position of AO3, Service Delivery Officer within Payroll and Establishment Services, Service Delivery, QSS, is to backfill a substantive employee while the substantive employee is relieving in an alternative role
  • on the return of the substantive employee on 1 February 2021, there will no longer be a continuing need for you to be engaged in the position of AO3, Service Delivery Officer within Payroll and Establishment Services, Service Delivery, QSS.

…

Relevant provisions of the PS Act and Directive 13/20

  1. [12]
    In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20: Appointing A Public Service Employee to a Higher Classification Level ("Directive 13/20"), including those provisions which I set out below.
  1. [13]
    Section 149C of the PS Act relevantly provides:

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

  1. (1)
    This section applies in relation to a public service employee 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.
  1. (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. [14]
    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]

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. [15]
    Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level 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. [16]
    Clause 4.2 of Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows:

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:

  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 secondment, 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
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload
  1. [17]
    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:

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:

  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. [18]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows:

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:

  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. [19]
    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).

Genuine operational requirements of the Department

  1. [20]
    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. [21]
    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.

  1. [22]
    The Department submits that Ms Nizar's temporary appointment to the position at the higher classification level is because the employee who is substantively employed in that position has been temporarily performing duties in an alternative position and is planned to return to their substantive position at the same time Ms Nizar's temporary placement is to expire. Ms Nizar submits that Directive 13/20 does not refer to employees who have been working at a higher level as not being eligible for conversion if they are backfilling a substantive employee.
  1. [23]
    Clause 4.2(b) of Directive 13/20 provides examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level to include 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. [24]
    The circumstances of this matter, being that the employee who substantively owns the role has been temporarily performing duties in an alternative position and is intended to return the position, accords with the principles of the PS Act and Directive 13/20 to continue the temporary engagement of Ms Nizar.
  1. [25]
    Whilst I accept that Ms Nizar has been performing higher duties since 2018, that does not necessarily demonstrate that there is a genuine operational need for a permanent appointment to the higher classification role.
  1. [26]
    Section 149C(3) of the PS Act and Clause 4.1 of Directive 13/20 requires consideration of the request for the employee to be appointed to the position at the higher classification level.
  1. [27]
    Accordingly, the decision maker is required to consider the appointment to the position Mr Nizar was acting in at the time of the request. The decision clearly considered the position and the circumstances surrounding the temporary placement, including that the employee who substantively owns the position was due to return to it. Such a consideration is consistent with the Department's obligations to manage the Department in a way that promotes the effective, efficient and appropriate management of public resources.
  1. [28]
    For the forgoing reasons, I consider the decision to be fair and reasonable.

Order

  1. [29]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, 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] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [37] – [38].

[6] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell, [40].

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QIRC 161

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    14 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
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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