McMillan v State of Queensland (Department of Housing and Public Works)
[2021] QIRC 18
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- Unreported Judgment
- McMillan v State of Queensland (Department of Housing and Public Works)[2021] QIRC 18
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McMillan v State of Queensland (Department of Housing and Public Works)[2021] QIRC 18
McMillan v State of Queensland (Department of Housing and Public Works)[2021] QIRC 18
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | McMillan v State of Queensland (Department of Housing and Public Works) [2021] QIRC 018 McMillan, Eleanor (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) | |||
CASE NO: | PSA/2020/317 | |||
PROCEEDING: | Public Service Appeal – Appointment to Higher Classification Level | |||
DELIVERED ON: | 27 January 2021 | |||
MEMBER: HEARD AT: | McLennan IC On the papers | |||
ORDERS: |
| |||
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was ineligible for review under s 149C of the Public Service Act 2008 – where the appellant was seconded to another department at the time of requesting a review – where the appellant was not permanently appointed – consideration of eligibility to request review under s 149C – consideration of right to appeal – consideration of secondment – consideration of ‘at the agency’ | |||
LEGISLATION AND DIRECTIVES: | Acts Interpretation Act 1954 (Qld) s 14A Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6, 7, 9, 10, 11 Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C Public Service Act 2008 (Qld) s 120, s 149, s 149A, s 149B, s 149C, s 194, s 196, s 197 Statutory Instruments Act 1992 (Qld) s 7, s 14 | |||
CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 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 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 | |||
Reasons for Decision
Introduction
- [1]Ms Eleanor McMillan (the Appellant) has filed an appeal against a conversion decision (the decision) issued by Mr/s Tully Stewart (the decision maker), Acting Director, Human Resources for the State of Queensland, (formerly named) Department of Housing and Public Works (the Department, the DHPW, the Respondent).
- [2]Ms McMillan is substantively employed as Principal Policy Advisor AO7 within the Cabinet, Policy and Intergovernmental Relations Unit with the Department.
- [3]However, she performed the duties of Manager AO8 within the Cabinet, Policy and Intergovernmental Relations Unit with the Department between 19 December 2016 and 14 August 2020.
- [4]Ms McMillan returned to the same AO8 duties in her ‘home’ department in January 2021. This planned resumption followed a short secondment between 15 August 2020 and 31 December 2020 in the (formerly named) Department of Communities, Disability Services and Seniors (DCDSS) to support the Queensland transition to NDIS full scheme operations.
The Decision
- [5]The terms of the decision were contained in correspondence from the decision maker dated 27 October 2020 (the decision letter).
- [6]The decision subject of this appeal is the Department’s determination not to permanently convert Ms McMillan’s employment to the higher classification level – that is, to the AO8 position within the DHPW.
Jurisdiction
Decision against which an appeal may be made
- [7]Section 194 of the Public Service Act 2008 (Qld) (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.”
- [8]Section 197 of the PS Act allows for an appeal to be heard and decided by the IRC. An appeal is initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.
- [9]Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Ms McMillan meets that requirement.
- [10]However, I am not satisfied that the conversion decision made by the Department is able to be appealed by Ms McMillan, for reasons further detailed below.
Timeframe for appeal
- [11]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. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
- [12]The decision was given to Ms McMillan on 27 October 2020 by email.
- [13]The Notice of Appeal was filed with the Industrial Registry on 16 November 2020.
- [14]I am satisfied that the appeal was filed by the Appellant within the required timeframe.
Appeal principles
- [15]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".
- [16]
- [17]Findings made by the Department, 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]
- [18]The issue for my determination is whether the decision not to convert Ms McMillan’s employment status to the higher classification level was fair and reasonable in the circumstances.[4]
What decisions can the IRC Member make?
- [19]Section 562C of the IR Act prescribes that the Commission may determine to either:
- Confirm the decision appealed against; or
- 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
- [20]In accordance with the Directions Order issued on 16 November 2020, the parties filed written submissions.
- [21]Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
The decision of 27 October 2020 (subject to this appeal)
- [22]The decision maker conveyed the following reason for not permanently converting Ms McMillan to the higher classification level:
The reason for the Deputy Director-General’s decision is that you are not eligible to seek permanent conversion to the higher classification level position of AO8, Manager within Cabinet, Policy and Intergovernmental Government Relations, Strategy, Policy and Programs, in accordance with the higher classification conversion directive. This is because the directive only applies to an employee seconded to or assuming the duties and responsibilities of a higher classification level in the same public service agency in which they are substantively employed.
Appeal Notice
- [23]Ms McMillan set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 16 November 2020. Those reasons are summarised as follows:
- Ms McMillan has a substantive AO7 position in the DHPW. She has acted in the AO8 position in the department “…continuously for approximately 4 years, which includes an authorised period of temporary leave / absence.”
- Ms McMillan has been in the AO8 position in the department since 19 December 2016. While her current contract concludes on 31 January 2021, she has been advised it should be extended beyond that date.
- Between 15 August and 31 December 2020, Ms McMillan worked in a different department (the Department of Communities, Disability Services and Seniors, DCDSS) as Manager at level. Ms McMillan referred to this period as “…a short, fixed-term, temporary leave of absence”. She noted that the short, temporary nature of the placement was clear to both departments, including the firm return date to AO8 duties in her ‘home’ department from 1 January 2021.
- Email exchanges between the two departments confirm that the placement was a temporary one, with a fixed return date.
- Email exchanges between Ms McMillan and the ‘home’ department Executive Director regarding her January leave intentions – subsequently approved by DHPW – further confirm that it was understood that she would return from 1 January 2021.
- Ms McMillan objected to the phrase continuously seconded in the decision letter.[5] She pointed to the definite end date of 31 December 2020 for her time with the DCDSS.
- Ms McMillan further noted that her short placement at the DCDSS was agreed to support that department’s resourcing need for an additional Manager at a particularly busy period, that coincided with a reduced workload intensity in her AO8 position at the DHPW due to caretaker mode.
- Ms McMillan contended she has: performed AO8 duties in the DHPW for almost 4 years; met the definition of “continuous period” (which includes periods of authorised leave / absence); no issues with respect to merit; and that there is on an ongoing need for the AO8 duties to be done.
Ms McMillan’s further submissions
- [24]Ms McMillan’s further submissions, filed 23 November 2020, may be summarised as follows:
- Ms McMillan has worked at the AO8 higher classification level with the DHPW for almost 4 years. Her substantive AO7 position is in the same agency. Ms McMillan noted that periods of authorised leave / absence are allowed under the definition of “continuous period.”
The Executive-Director, DHPW approved a period of authorised leave from the AO8 position,[6] with the agreement that Ms McMillan would return to AO8 duties in the DHPW upon that contract conclusion on 1 January 2021.
Ms McMillan’s agreed return to the DHPW is evidenced by her January leave being approved by her ‘home’ department. The colleague who was backfilling the AO8 position in the DHPW during Ms McMillan’s absence was advised that the arrangement was in place only until her return in January.
Ms McMillan did not initiate the temporary secondment to DCDSS but rather was requested by that department to do so, as additional management resources were required and could readily be filled with her experience and skills. She added “Had I known the new higher duties directive was imminent and about to be introduced four to five weeks into my period of authorised leave of absence, I would have built this knowledge into my decision and weighed up whether to assist DCDSS at this time.”
Ms McMillan objects to the decision letter statement that she had been continuously seconded to the other department, on grounds that there was a clear end date to that arrangement and firm understanding as to the terms of her return to DHPW.
The decision letter stated that “the directive only applies to an employee seconded to or assuming the duties and responsibilities of a higher classification level in the same public service agency in which they are substantially employed.” Ms McMillan argued that as she was to resume AO8 duties in the DHPW after her period of authorised leave, she has been continuously in the role for over 3 and a half years, in the same agency in which she is substantively employed.
- She meets the merit principle.
- There is a genuine, ongoing, operational requirement for her role within the unit and department more broadly.
Ms McMillan provided an overview of the scope and complexity of the AO8 position in the DHPW. “…It demonstrates that the AO8 position I am performing is essential to the ongoing operational requirements of the department.”
- Ms McMillan should suffer no disadvantage as a result of taking a short authorised period of absence to support the resourcing needs of another department, in circumstances where she has performed AO8 duties in the DHPW for many years and her substantive position is in the same agency.
In October 2019, Ms McMillan had sought advice as to whether she would qualify for permanent conversion to the AO8 position in DHPW under the “…’temporary to permanent’ directive given I had been in the AO8 position for over 2 years. I was advised that unfortunately the directive did not provide for the conversion of staff on higher duties, only those without a substantive position would be appointed.”
She submitted that “I welcome this new directive and hope it will be equitable and similar in intent to the ‘temporary to permanent’ directive, thereby no longer disadvantaging me by having a substantive position in the department. I have seen many staff members automatically appointed to a position when they apply after two years.”
Respondent submissions
- [25]The Department’s submissions, filed 30 November 2020, can be summarised as follows:
Unable to appeal a decision to refuse conversion request in the circumstances
- Ms McMillan is excluded from appealing the decision under s 195(1)(j) of the PS Act because at the time she submitted the conversion request:
- She was not acting in the higher classification level position of AO8 Manager within Cabinet, Policy and Intergovernmental Relations in the department (DHPW); and
- The higher classification level position she was performing of AO8 Manager, National NDIS Policy was in another department (DCDSS) – not the department in which she is substantively employed.
Therefore, s 194(1)(e) of the PS Act does not apply.
- Since 15 August 2020, Ms McMillan has been continuously seconded to the position of AO8, Manager, National NDIS Policy in the DCDSS. Whilst seconded to that position, Ms McMillan submitted a written request on 26 September 2020 to be appointed to the AO8 position in the DHPW.
Unable to request appointment to a higher classification level position they are not performing at the time they submit their conversion request
- Ms McMillan is unable to request appointment to a higher classification level position she is not performing at the time of submitting the conversion request.
- S 149C(3) of the PS Act enables an employee to request appointment to the position at the higher classification level. Cl 4.1 of the Directive enables an employee to make a conversion request where they are performing a higher classification level in the agency in which they are substantively employed. Consistent with the reasoning in Holcombe,[7] this means that “…an employee can only request and be considered for appointment to the specific higher classification level position the employee in question is performing at the time they submit their conversion request.”
- “To that end, it is noted that the Applicant was not engaged in the higher classification level position of AO8, Manager (position number 745448) within Cabinet, Policy and Intergovernmental Relations, nor on leave from this position, at the time the Applicant submitted their conversion request (i.e. 26 September 2020). Instead, the Applicant was seconded to the position of AO8, Manager, National NDIS Policy, in the then Department of Communities, Disability Services and Seniors.”
- The department stated that Ms McMillan’s secondment to the at level position in the DCDSS was not a period of authorised absence or leave from the AO8 position she had been performing in the DHPW – that position concluded on 14 August 2020.
- This means that Ms McMillan was excluded from being able to request appointment to the position of AO8, Manager within Cabinet, Policy and Intergovernmental Relations. Further, the chief executive was not required to consider appointing her to the position of AO8, Manager (position number 745448) in her ‘home’ department, when assessing her conversion request.
Unable to appeal a decision to refuse conversion request to be appointed to a higher classification level position, which they have been performing for less than two years.
Also unable to request appointment to a higher classification level position in an agency other than that in which they are substantively employed – or appeal a decision not to appoint in such a position
- S 194(1)(e) of the PS Act provides that a conversion decision can be appealed if the person has performed at the higher classification level for a continuous period of at least two years. Continuous period is defined in cl 11 of the directive to mean 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. Further, cl 3.1 of the directive states that it applies to an employee performing at a higher classification level in the agency in which they are substantively employed.
- The combined effect of these provisions is that an employee can appeal a s 149C decision if they have “…been seconded to or acting at the higher classification level in the same role, in the same agency in which the employee is substantively employed, and the employee has been seconded to or acting in the higher classification level position for an unbroken period of at least two years, including periods of authorised leave or absence.” (My emphasis).
- If the employee has been seconded to another agency (other than that in which they are substantively employed), then: the directive does not apply; the employee may not apply for conversion in the agency in which they are not substantively employed; the employee is excluded from appealing any decision not to appoint under s 149C. Therefore, “…if the IRC determine that the Applicant’s secondment to the position of AO8, Manager, National NDIS Policy, in the then Department of Communities, Disability Services and Seniors, constituted an authorised absence from the position of AO8, Manager (position number 745448) within Cabinet, Policy and Intergovernmental Relations, then the department submits that the Applicant is excluded from appealing a decision that their conversion request is refused, on the basis that the Applicant would have been acting in…(position number 745448)…for a period of less than two years.” So Ms McMillan would be precluded from appealing a decision under s 195(1)(j) of the PS Act in that case.
- Further, because Ms McMillan was seconded to an at level position in DCDSS (not her ‘home’ department) at the time that she submitted the conversion request[8]: the directive does not apply to her; she was unable to request conversion to the higher level position she was temporarily seconded to; and she was excluded from appealing the decision.
Appellant’s submissions in reply
- [26]In response to the Department’s written materials above, Ms McMillan’s reply submissions filed 7 December 2020 largely reiterated her previous submissions. Insofar as they differ, they can be summarised as follows:
Right of appeal
- Ms McMillan rejected the department submission that she does not have right of appeal under s 195(1)(j).
She instead asserted that the right to appeal is enabled after two years of continuous engagement at the higher classification level. Ms McMillan stated that she “…worked continuously at the higher classification level for approximately 4 years, including a short period of absence with an agreed and non-negotiable end date.”
Ms McMillan’s submission entreated further consideration of her “…unique personal circumstances and factors…”
Not separated from her ‘home’ department
- The department has a Separation Management Policy in circumstances where an employee proceeds on external secondment / leave for six months or more. This was not enacted, as Ms McMillan’s “formally agreed” period of absence was much less than that.
- Ms McMillan accepts that she was in another agency at the time of making her conversion request (26 September 2020) but that this was temporary. “My higher duties agreement in DCHDE did not conclude on 14 August, rather it was put on hold until my return.”
Returned to exactly the same duties and position title in ‘home’ department; notwithstanding a swap of position number
- On 22 October 2020,[9] a decision was taken by Ms McMillan’s home department to swap the position numbers between the two Managers in Cabinet, Policy and Intergovernmental Relations around. Ms McMillan observed “I have been in the same AO8 position in DCHDE for nearly four years. The position numbers of the two Manager positions were swapped on 22 October 2020, after my initial application in September, however it was agreed that the roles and responsibilities of each of the Managers would not change as a result of the amended position numbers.” “…While I return to position no. 745448, I continue to manage the same work priorities…and staff, in the same team, that I did whilst against position no. 30100773. It is confirmed the change is on paper only.”
Special consideration requested, in light of the agency seconded to, reason and duration
- Ms McMillan stated that the temporary Manager position she was seconded to in DCDSS ceased to exist after 31 December 2020 and this was known at the time her ‘home’ department agreed to release her to fill it in the short term. There was never any intention or agreement for Ms McMillan to be absent from DHPW beyond that end date.
- Ms McMillan has argued that special consideration should be applied to this case given the clear pressing resource need in DCDSS, her skills and experience enabling her to assist at that particular period and the corresponding “…quiet spell in DHPW, due to caretaker and Cabinet ceasing to meet. It was this, coupled with DHPW’s commitment to the NDIS as a key mainstream agency, that led former DHPW authorising for me to assist the former DCDSS for this short, and important, period of time.”
The review of a decision as to whether or not to permanently appoint a public service employee acting in a position at a higher classification level
- [27]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 the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
- [28]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.
- [29]Further, section 194(1)(e)(iii) of the PS Act 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;
- [30]It is noted that Directive came into effect on 25 September 2020.
- [31]The Directive 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.
9. Exemption from advertising
9.1 Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive.
10. Transitional provisions
10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer.
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.
- [32]The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[10]
- [33]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.
- [34]The stated purpose of the Directive is:[11]
- 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
- [35]I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable.
- [36]This involves a review of the decision-making process utilised and the conversion decision arrived at.
Purpose
- [37]In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
- [38]In summary, the Directive’s status as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of the Directive is to be preferred to any other interpretation.
- [39]In that regard, I recognise that one of the stated purposes of the Directive 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.”[12]
Eligibility for review of conversion and right to appeal a decision
- [40]The PS Act and Directive sets out the parameters for an employee’s eligibility to both request conversion to the position at higher classification level and appeal any refusal decision by the department.
- [41]The department has submitted that Ms McMillan’s particular circumstances effectively disqualify her from both the right to request conversion and right to appeal any refusal decision.
- [42]While I have not declined to hear this appeal, it has failed for reasons pertaining to ‘Eligibility for review’.
- [43]Since 15 August 2020, and at the time of requesting the review, Ms McMillan was acting in a higher classification level in a different department, namely the Department of Communities, Disability Services and Seniors.
- [44]There are several important ramifications of that.
- [45]First, Ms McMillan is ineligible to be reviewed against position number 745448, by virtue of s 149C(1)(a).
- [46]The PS Act, at s 149C(1)(a) provides that, for s 149C to apply to an employee, that employee must be seconded to or acting at a higher classification level in the department in which that employee is employed or appointed. The Directive, at cl 3.1, explains that the Directive applies to a public service officer seconded to a higher classification level in which the employee is substantively employed. At the time of requesting her review, Ms McMillan was not working in the department in which she is employed. Rather, she was seconded to a different department. Ms McMillian is thereby ineligible to be reviewed, as s 149C did not apply to her at the relevant time.
- [47]Second, even if s 149C did apply to her, Ms McMillan is ineligible to be reviewed against position number 745448 by virtue of s 149C(3). That section provides that the employee is considered for permanent appointment to the position, being the position occupied by the employee at the time of making the request. In Holcombe, it was explained that “…the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review”.[13] Further, “That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.”[14] At the time of requesting the conversion, Ms McMillan did not occupy position number 745448, but rather was seconded to a different department in a different position. Ms McMillan was therefore not able to be reviewed against position number 745448.
- [48]Third, Ms McMillan is ineligible to be reviewed in her new secondment, by virtue of her substantive employment being with a different department and the length of her secondment being less than 12 months.[15]
- [49]It follows that Ms McMillan was not eligible to be reviewed against position number 745448. I will therefore confirm the decision appealed against.
- [50]Ms McMillan submits that she ought to be given special consideration, by virtue of her secondment to DCDSS occurring as a result of departmental requirements and changes in workflow, and that it was always intended that she would return to her original position. That may well be the case, but it does not obviate the fact that s 149C creates a statutory framework whereby a person is considered for permanent appointment to the position which they occupy at the time of requesting the review. Ms McMillan did not occupy position number 745448 when she requested the review, nor was she working within the same department. Those circumstances mandate that her appeal fail.
- [51]With respect to whether or not Ms McMillan had the right to appeal the refusal decision, the department submitted that there is no right to appeal where an employee is seconded to a higher classification level position in another agency (that is, an agency other than that in which they are substantively employed).
- [52]The department also submitted that there is no right of appeal under s 149C where an employee has been seconded to the higher classification level for less than two years. This is the case where Ms McMillan made her conversion request whilst acting in the at level position with DCDSS.
- [53]I concur with the department’s interpretation of the relevant provisions. Ms McMillian has no right of appeal under the PS Act or Directive in this matter.
Merit
- [54]The PS Act and the Directive provides that, in making the 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.
- [55]There is no dispute with respect to Ms McMillan’s merit.
Decision criteria that must be considered
- [56]Given s 149C does not apply to Ms McMillan by virtue of s 149C(1)(a), it follows that the giving of reasons under s 149C(5) also does not apply.
- [57]In any event, there is nothing within the department’s refusal decision or inherent reasoning which was unfair or unreasonable, when regard is had to the precise wording of s 149C.
Conclusion
- [58]Ms McMillan had been acting in a AO8 Manager position in the DHPW for a significant period.
- [59]She accepted a short term secondment to another department at level, to assist the DCDSS to fulfil a finite resourcing need. I accept that Ms McMillan agreed to the DCDSS secondment only to assist her employer to fill an imminent resourcing need, at a commensurately quieter period in the ‘home’ department position she had been acting in.
- [60]A little more than a month after commencing the secondment to DCDSS, Ms McMillan made the conversion request to her ‘home’ department with respect to the position she had been acting in and she expected to return to.
- [61]However, at the time of making her conversion request Ms McMillan was neither acting in the position that she sought to be permanently appointed to, nor was working in the agency in which she was substantively employed.
- [62]On these grounds, this appeal cannot succeed.
- [63]This consideration is with respect to ‘the position’ occupied by the employee at the time of seeking the review. It is not an unconstrainted review into similar positions or roles. The more broadly ranging review that Ms McMillan expressed hope for is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive.
- [64]I confirm the decision appealed against and dismiss the appeal.
- [65]I order accordingly.
Orders:
- That the appeal is dismissed.
Footnotes
[1] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[2] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).
[3] Industrial Relations Act 2016 (Qld) 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] “Since 15 August 2020, you have been continuously seconded to the position of AO8, Manager NDIS Policy , in DCDSS.”
[6] 15 August – 31 December 2020 inclusive.
[7] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
[8] 26 September 2020.
[9] After Ms McMillan submitted her conversion request on 26 September 2020.
[10] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[11] Directive 13/20 Appointing a public service employee to a higher classification level, cl 1.
[12] Directive, cl 1.2(a)-(b).
[13] Holcombe, paragraph [62].
[14] Holcombe, paragraph [56].
[15] Public Service Act 2008 (Qld) s 149C(1)(b).