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  4. Hansen v State of Queensland (Department of Environment and Science) - [2021] QIRC 162

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Hansen v State of Queensland (Department of Environment and Science)[2021] QIRC 162

Hansen v State of Queensland (Department of Environment and Science)[2021] QIRC 162

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Hansen v State of Queensland (Department of Environment and Science) [2021] QIRC 162

Hansen, Christopher

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO:

PSA/2020/367

PROCEEDING:

Public Service Appeal - Higher Duties Conversion Decision

DELIVERED ON:

14 May 2021

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

OUTCOME:

CATCHWORDS:

The decision appealed against is confirmed.

INDUSTRIAL LAW - Public Service Appeal - where the appellant request appointment to higher classification level - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable

LEGISLATION:

Public Service Act 2008, s 149C, s 194

Industrial Relations Act 2016, s 562

Directive 13/20 Appointing a public service employee to a higher classification level.

CASES:

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

Reasons for Decision

Appeal Details

  1. [1]
    Mr Hansen is employed by the State of Queensland (Department Environment and Science) ("the Department").
  1. [2]
    Mr Hansen holds a substantive position as a Program Officer (AO4) however, since 21 November 2016 he has been continuously performing duties of a higher classification level, namely Principal Conservation Officer (PO4)
  1. [3]
    By letter dated 6 November 2020, Deputy Director-General Karen Hussey informed Mr Hansen that his engagement is to continue according to the terms of the existing higher duties arrangement giving the following reasons in relation to the genuine operational requirements of the division and Department's obligation to manage its program of work within the approved financial and full time equivalent (FTE) allocation:
  • Funding for this role (and the Offsets program) is determined through an annual application for resourcing from the Offsets Management Fund, which has a provision for administrative management;
  • the Queensland Environment Offsets Framework - Consultation and Response Report indicated that a multisector reference group will be established in 2021 to guide potential reforms to the environmental offsets framework. The report shows that fund delivery requires reform;
  • while funding envelope for this role may continue, the FTE allocated is also temporary and the function was required to be absorbed within the EPP FTE cap for 2020/2021; and
  • EPP is in the process of preparing a resource plan to manage a reducing FTE cap and the reallocation of existing resources to support its ongoing program of work.

Relevant sections of the Act and Directive

  1. [4]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
  1. [5]
    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 one year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.

…

  1. (2)
    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).

…

(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.

The Directive

  1. [6]
    While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

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:

  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. 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 documents 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.
  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.
  1. 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.

…

What decisions can the Commission make?

  1. [7]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Mr Hansen's reasons for appeal

  1. [8]
    Mr Hansen's appeal notice was accompanied by a statement outlining the following:
  • Despite the decision of the Respondent being based on the temporary status of his job and the Division's present allocation of FTEs, the Department has recently extended him to continue in his position until July 2021.  He says that he has been extended 5 times over the 4 years he has been in the role;
  • while it is true that the position is not currently base funded by Treasury, this does not mean that the role is not permanent in nature;
  • the funds which currently pay for his role has been increasing exponentially since the Offsets Framework and financial settlement payments came into effect in Queensland on 1 July 2014;
  • financial settlement offsets have been growing steadily and there is no clear indication that this will change in the immediate future.  He does not believe Government will change the financial settlement offset in the present economic circumstances.; and
  • because of the ongoing statutory requirements, length of time the fund has operated, and growth in number of payments, the role cannot be regarded as temporary.
  1. [9]
    Mr Hansen acknowledges that the Offsets Framework has recently undergone a review and that financial settlement offsets may be subject to some changes through the establishment of a multi-sector reference group in 2021, but he does not believe that these changes will be significant or negate the need for his position in the future.
  1. [10]
    Mr Hansen says that his current manager who has a base funded position, was moved into her current position on a permanent basis from the Offsets Policy Unit in recognition of an increasing workload in the space.
  1. [11]
    A further recognition of the number of projects the Offsets Fund Management Unit (OFMU) is currently administering is demonstrated by the appointment of Chief Scientist Hugh Possignham to oversee the independent offsets fund advisory committee.
  1. [12]
    Mr Hansen says that most members of the OFMU have also been accumulating large amounts of accrued leave over the past year in order to meet required deadlines.
  1. [13]
    Mr Hansen does not accept the Department's reason that it has to operate within an FTE cap as a valid argument for not making the position permanent.
  1. [14]
    Mr Hansen says that he has been 'acting' in higher level positions in the field of environmental offsets for over 10 years now. He has successfully completed two open merit SmartJob processes in this time.
  1. [15]
    Mr Hansen says that despite this, no additional FTEs have been allocated to account for what is clearly a permanent resourcing need in this field.  Mr Hansen says that a number of FTEs were lost from offsets in a Departmental restructure last year and that is also contributing to the issue at hand.
  1. [16]
    Mr Hansen says that the decision letter tells him that he will return to his substantive role on 1 July 2021.  He says that this cannot be considered fair and equitable after such a substantially long period of time during which the Department has continually promoted him to higher levels in recognition of his expertise in the field of environmental offsets.
  1. [17]
    If Mr Hansen returns to his other role, the Department will continue to draw upon and utilise his expertise in what is a substantially similar area but for considerably less pay.
  1. [18]
    Returning to his AO4 pay level after 10 years of higher duties will have a significant and detrimental impact on Mr Hansen's life and livelihood. He says that he is one of the most experienced officers in the field of environmental offsets in the entire state and he will effectively be going back to a graduate level position and will be one of the lowest paid members of the team concerned.
  1. [19]
    Mr Hansen says that a comment was made to him that the Department always supports staff looking for positions elsewhere. He says that he does not find this supportive after he has invested so much time and effort to advance his career in this particular field.
  1. [20]
    Mr Hansen says that at age 48 he does not want to start his career over.  He also says that he has an acute chronic auto-immune condition which is a recognised disability. Mr Hansen needs to receive regular infusions and other treatments to remain healthy. It is not easy for him to get another job as many environmental jobs are regional.
  1. [21]
    Mr Hansen submits that his substantive AO4 role has been vacant for approximately one year and that consideration should be given to using this as a mechanism to upgrade him into the PO4 position.
  1. [22]
    On 2 December 2020, Mr Hansen filed supplementary information in support of his appeal.   A large part of this supplementary information relates to Mr Hansen's efforts to have his substantive position upgraded to a higher level and his observation of other employees being permanently appointed to higher roles.   Mr Hansen also made submissions that his role should be moved to the professional stream as the work he does is not of an administrative nature. Mr Hansen went on to discuss other recruitment processes and his desire to appeal this process or seek an internal review. Mr Hansen says that he supplied this information as part of his appeal because it is relevant to a decision which sees him returned to his AO4 position without any recourse after being continually placed in higher level temporary roles over 10 years.  At a conference of this matter on 12 March 2021, I explained to Mr Hansen that this appeal is not an opportunity to appeal previous recruitment and resourcing decisions of the Department and that I would not be having regard to submissions made that are not directly relevant to the decision not to convert him on this occasion.
  1. [23]
    Mr Hansen submits that the decision that he will return to his substantive position on 1 July 2021 has caused him a great deal of stress and has had an impact on both his mental and physical health.  Mr Hansen says that the decision is, in effect, a demotion. 
  1. [24]
    Mr Hansen says that he is a highly skilled environmental practitioner who has extensive experience in a range of work areas including over a decade working in environmental offsets.  He has achieved highly in everything he has done to date and has received positive feedback from supervisors and managers along the way.  Mr Hansen has been the recipient of a Premiers Award.
  1. [25]
    Mr Hansen says that given his skills, years of experience, career achievements and overcoming challenges along the way, he deserves to be promoted to his current PO4 position on a permanent basis.
  1. [26]
    Mr Hansen points to the Department's Diversity and Inclusion Strategy 2017-22 Making a Difference and says that the Department has made commitments to people with a disability and that the decision to effectively demote him after 10 years of building his career in the field would not be seen by any independent party as conforming to that ethos.

Department submissions

  1. [27]
    The Department sets out the background to Mr Hansen's employment and acknowledges that he was eligible to apply for appointment to a higher classification level.
  1. [28]
    The Department says that in assessing the application, the Deputy Director-General considered the circumstances of Mr Hansen's higher duties arrangement, in particular the temporary funding and FTE allocated for the role.
  1. [29]
    The position Mr Hansen is currently acting in is temporarily funded with funding allocated through the Queensland Environment Offsets Framework.  Funding for the position is currently approved to 30 June 2021. 
  1. [30]
    While the Department acknowledges that funding has been approved since November 2016, the Queensland Environment Offsets Framework – Consultation and Response Report recommended the establishment of a multisector reference group in 2021 to guide potential reforms to the environmental offsets framework.
  1. [31]
    As part of a number of FTE reductions over the forward estimates period, the FTE allocated to the temporary role Mr Hanson is relieving in is due to cease.
  1. [32]
    The Department is required to operate within its approved fiscal and FTE envelope.
  1. [33]
    As a result of the above, Dr Karen Hussey decided that Mr Hansen's application for appointment to the higher classification level was declined due to genuine operational reasons, specifically as there was no certainty in funding due to potential reforms in the environmental offsets framework and the need to manage within the approved FTE allocation (which may require the reallocation of existing permanent staff to ongoing programs of work).
  1. [34]
    In response to Mr Hansen's submissions the Department says:
  • The decision was appropriate taking into account the genuine operational requirements of the Department;
  • the Queensland Environment Offsets Framework – Consultation and Response Report shows that the delivery of the offsets funding program requires reform;
  • it is unclear how the reform will affect staff within the division and if there will be provision for the required funding and/or FTE to undertake this work.;
  • even if a decision is made that funding will continue to be provided for the program of work, the Department is required to operate within its approved FTE cap. This may include reallocating existing permanent staff to alternative programs of work;
  • this obligation applies notwithstanding Mr Hansen's personal views that additional FTE should be allocated;
  • the Department is preparing a resource plan for EPP to manage the reduction in FTE allocated over the forward estimates period and the reallocation of exiting resources to support its ongoing programs of work;
  • while the Department acknowledges that this is disappointing for Mr Hansen, the Department submits that its approach is consistent with its obligations under the savings and debt plan;
  • contrary to Mr Hansen's submission, the Department is unable to use his substantive position to enable his appointment at the higher level, as the position has been backfilled for the majority of Mr Hansen's absence and is required to be filled on an ongoing basis; and
  • the Department also acknowledges that Mr Hansen's application refers to his skills, length  of service in higher duty roles and his personal circumstances. Respectfully, and acknowledging the impact of such decisions on staff, the Department is required to take into account genuine operational requirements in making this decision, not the personal circumstances of the individual concerned.
  1. [35]
    The Department submits that the delegate applied the provisions of the Directive correctly.  If Mr Hansen were to remain acting in the position, Principal Conservation Officer PO4, he will be eligible for a further review on 21 November 2021.

Mr Hansen's submissions in reply

  1. [36]
    Mr Hansen filed a document on 17 December 2020.  It was the Department's submissions but with his responses to these submissions inserted in blue font at the end of each paragraph he was responding to.
  1. [37]
    With regard to the Queensland Environment Offsets Framework – Consultation and Response Report, Mr Hansen says:
  • While I acknowledge the offsets framework is under review and that some change and reforms may occur to the offsets funding program in the future, I do not believe there is any evidence at this juncture to indicate that the current allocation of staff in relation to the administration of the fund will be reduced or that the positions will become redundant at any time in the coming few years;
  • I also do not believe the role of the Fund Management Unit will be outsourced either as this was effectively done in the past in the form of 'Ecofund' but this was also later disbanded with the commencement of the new framework;
  • any program run by the Department could effectively be changed or made obsolete with successive governments at any time too, but the fact remains that the offsets framework and the fund have been in operation for several consecutive terms of government to date, including both Liberal and several iterations of the current Labor Government as well; and
  • the Labor Government recently commenced a four year term and have not indicated that they will abandon this program during this term.
  1. [38]
    With regard to the Respondent's statement that existing permanent staff may be reallocated to alternative programs of work, Mr Hansen says:
  • Environmental offsets is a highly specialised field that requires an equally high degree of knowledge and expertise that cannot be readily gained overnight;
  • it takes years to build up the knowledge and proficiency for the role that he is currently undertaking;
  • if permanent staff were to be relocated from other work units within the division, the most logical choice would be to choose people with expertise in the field of environmental offsets;
  • this in turn could result in Mr Hansen effectively being made to do the same job he is now at an AO4 level instead of a PO4 level;
  • Mr Hansen is one of the most experienced staff members in both offsets policy and offsets fund delivery in the entire state; and
  • for the Department to use someone without prior knowledge and expertise in the field would be unreasonable and illogical.
  1. [39]
    With regard to the Respondent's submission that it is preparing a resource plan for EPP to manage the reduction in FTE allocated over the forward estimates period and the reallocation of existing resources to support ongoing programs of work, Mr Hansen says:
  • The Department has a permanent FTE that it could use if it wanted to in this instance in the form of his substantive AO4 position in the Offsets Policy Unit; and
  • Mr Hansen could work across both teams if needed as he often provides advice to the policy unit in his current PO4 role as well.
  1. [40]
    With regard to the Respondent's submission that it acknowledges the decision is disappointing for Mr Hansen but that its approach is consistent with its obligations under the savings and debt plan, Mr Hansen says:
  • The Government's savings and debt plan is not his concern;
  • his concern is being treated fairly relative to the treatment afforded to other staff members and in accordance with the Human Rights Act 2019;
  • this includes being remunerated at a level that reflects his years of demonstrated experience and knowledge in the field of environmental offsets, where both his current PO4 and his substantive AO4 positions sit; and
  • his current position is funded externally and there is no evidence at this juncture to say that the program will not continue into the future, even if it is subject to some reform.
  1. [41]
    Mr Hansen maintains that he should be 'upgraded' from his current substantive AO4 position to a PO4 position.   He said that he does not believe the Delegate was aware of this as an option or of any of the history and particulars pertaining to his unique case and situation in this instance.
  1. [42]
    With regard to the Respondent's submission that it has to take in to account the genuine operational requirements of the Department in making the decision, not the personal circumstances of the individual concerned, Mr Hansen says:
  • If the Department based its decision on genuine operational requirements it should have appointed people to permanent positions within the division based purely on merit.  As far as he is aware, this has not occurred;
  • it seems the Department has favoured temporary staff in its decision making over staff with permanent substantive positions who often have more experience, such as himself;
  • he has been distinctly disadvantaged in the process;
  • he is unable to provide statistical details to support this notion as the process has been secretive to this point;
  • favouring temporary staff is also a clear example of the Department including personal circumstances in its decision making process, so to argue that it does not take personal circumstances into account is not completely true; and
  • he does not want special treatment, just a fair and even playing field.
  1. [43]
    Mr Hansen repeats his submission that the decision not to convert him and that he will return to his substantive position in July is effectively a demotion.

Conference held Friday 12 March, 2021

  1. [44]
    After reading the submissions, I formed a view that many of Mr Hansen's submissions were in regard to matters which are not the subject of the decision I am required to make in this appeal.
  1. [45]
    This appeal requires me to consider whether the decision not to appoint Mr Hansen to the higher duties role he is currently undertaking was fair and reasonable.
  1. [46]
    I am not able to consider whether Mr Hansen's substantive role should be 'upgraded' or used to fund his appointment to the higher duties role on a permanent basis.
  1. [47]
    I am also not able to consider whether the conversion of temporary employees to permanent roles is fair and reasonable and how these conversions interact with Mr Hansen's employment and capacity to be permanently appointed to the higher duties role.
  1. [48]
    In the interests of enabling an open conversation where Mr Hansen could put questions to the Department, not with the aim of resolving this appeal, but to seek to understand the position of the Department with regard to the issues he raised in his appeal notice and submissions, I held a conference of the matter.
  1. [49]
    I did not go into private session with either party in this conference, although I did express some preliminary views on the matter and sought to clarify my own understanding of the position of the parties to best enable me to decide the appeal.
  1. [50]
    Mr Hansen joined the conference by Zoom and his union representative, Mr Hamwood attended in person. Two representatives of the Department were present, Mr Swain and Ms Thompson.
  1. [51]
    At the conference, I stated that the four years that Mr Hansen had been in the higher classification role was significant.  I noted that his submissions showed that he was suffering some distress at the idea of being returned to his substantive role on 1 July 2021 as per the decision letter.  I asked Mr Swain about the length of time in the role and whether the 1 July 2021 date was still in place.  Mr Swain replied that at the point in time that the decision was made, there was no extension beyond 1 July 2021 and that was still the case at the time of the conference.  Mr Swain indicated that Mr Hansen's position had been extended on a number of occasions when the Department received funding.  Mr Swain referred to the decision letter and submissions of the Department and said 'the funding model is being reviewed by the external body, for want of a better term. So the Department is not in a position to guarantee or even project what may or may not occur'.  Mr Swain said that in July, the Department will have a much better idea of the outcome of the review. At the time of writing the decision on Mr Hansen's application, the report had only recently been released and 'all we had was that there would be a review of the funding model'.
  1. [52]
    Mr Hansen indicated that his Director had told him that the Department's intention is to try and extend the position beyond the current date but that they had to put the 1 July 2021 date in the letter because of the formal process.
  1. [53]
    Mr Hansen said that effectively, his substantive position is 'just in another offset team'.  He said that there was a policy team that essentially got split in two when there was enough money for the program to be delivered. Mr Hansen said that he was in the policy team and helped write the policy.  Mr Hansen reiterated that it seemed unfair that if he returns to his substantive role, the policy team will continue to draw on his knowledge and expertise at the high level (including writing 'ministerials' and making important decisions) but he will be at graduate pay level.
  1. [54]
    In response, Mr Swain said that the teams are different. The Department understand Mr Hansen's concerns but that at the point in the time the decision was made on 6 November 2020, a report had just come out which said there would be potential changes in the funding model.  Mr Swain referred to forward estimates provided by Treasury which say that the whole division will be down by 35 head count.
  1. [55]
    Mr Swain reiterated that Mr Hansen's substantive position cannot simply be upgraded to his current higher duties acting position as the substantive position is still needed.
  1. [56]
    Mr Hansen's union representative, Mr Hamwood referred to the consideration by Deputy President Merrell of 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Morison) and said that the situation in this matter is different to Morison as in Mr Hansen's case his is not backfilling a substantive employee.  Mr Hamwood said that there is no dispute from the Department that environmental offsets work will be continuing.  The 2019 paper which led to the report, said specifically that environmental offsets are here to stay.  Mr Hansen's experience in that area would be vital to the continuing work that he does for the Department.  These are all indicia that there is an ongoing requirement for his role.
  1. [57]
    In his final remarks at the conference, Mr Swain said that Mr Hansen has a compelling case based on his knowledge and experience, but that unfortunately in Mr Hansen's circumstance, his review occurred just after the report had come in and was just after Treasury had said that the division would be dropping 35 staff and the Deputy Director-General made the decision with regard to information available on 6 November 2020, not what might be available on 30 June 2021.

Was it fair and reasonable for the respondent to deny appointment to the higher classification level on the basis of genuine operational requirements?

  1. [58]
    There is no dispute that at the time of the review Mr Hansen has been performing higher duties in the PO4 role for almost four years.  It became clear to me in the conference that Mr Hansen has extensive skills and knowledge of the Queensland Environment Offsets Framework. 
  1. [59]
    After many years in a higher duties role developing specific skills and knowledge, it would seem to me unfair if, as a result of changes made to the way the Offsets program is delivered, Mr Hansen ends up being returned to his substantive position.  This would represent a significant pay drop and would not be a position recognising his experience in the field. However, I also note that if he returns to the his substantive AO4 role, he should not be asked to perform duties other than those required of the role.
  1. [60]
    I understand Mr Hansen's submission that positions in a higher classification to his substantive position have become vacant over the time he has been undertaking higher duties but that he has not had the opportunity to apply for these positions to secure a higher classification permanent position, in part due to the temporary to permanent conversion process.
  1. [61]
    However, my role in this appeal is to determine whether the decision of 6 November 2020 was fair and reasonable. I accept the Department's submission that the decision was made soon after the release of a report signalling a reduction in FTE.
  1. [62]
    It seems that successive governments, including the current Queensland Government, have committed to the Offsets Fund.  Mr Hansen's submission made reference to the appointment of Chief Scientist Hugh Possingham to oversee the Offsets Projects Management Committee and the permanent appointment of a manager of the team Mr Hansen currently works in.
  1. [63]
    The Directive sets out some circumstances that would support the temporary engagement of an employee at a higher classification level. The only one of the examples provided at cl 4.2 which may apply to Mr Hansen's higher duties position is (c) to perform work for a particular project or purpose that has a known end date.  The problem I would have with characterising Mr Hansen's employment in this way, is that the program itself is clearly continuing.  The review document does not talk about ending the program.  It talks about reforming the program.
  1. [64]
    Mr Hansen's union representative submits Mr Hansen's case is different to that described in Morison. While that may be, the discussion surrounding 'genuine operational requirements' is still relevant. Deputy President Merrell states that the phrase is defined in neither the PS Act nor the Directive and must therefore 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 including 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 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.[1]

  1. [65]
    In consideration of the genuine operational requirements of the Department.  It is my view that when the decision was made on 6 November 2020, given the release of the report and the advice from Treasury regarding the reduction in the FTE cap, the Department had a genuine operational requirement at that particular time to maintain Mr Hansen in the higher duties role on a temporary basis.
  1. [66]
    The decision not to appoint Mr Hansen to the higher classification level was fair and reasonable in the circumstances.
  1. [67]
    Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, 12 [37]-[38].

Close

Editorial Notes

  • Published Case Name:

    Hansen v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Hansen v State of Queensland (Department of Environment and Science)

  • MNC:

    [2021] QIRC 162

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon 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
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
Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 3812 citations
1

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