Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2021] QIRC 187

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 187

Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 187

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187

PARTIES:

Pallourios, Yiannis (Yianni)

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO:

PSA/2020/446

PROCEEDING:

Public Service Appeal – Appointment to Higher Duties

DELIVERED ON:

1 June 2021

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

The decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested appointment to a higher classification position under s 149C of the Public Service Act 2008 (Qld) – where the request was considered in accordance with Directive 13/20 Appointing a public service employee to a higher classification level – where the request was refused – whether the decision was fair and reasonable – whether genuine operational requirements prevented appointment – where the position is not recurrently funded – decision fair and reasonable

LEGISLATION AND DIRECTIVES:

Directive 13/20 Appointing a public service employee to a higher classification level cls 2, 4, 6

Directive 18/20 Supporting employees affected by workplace change

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 25, 197, 149C

CASES:

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

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

Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102

Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101

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

Reasons for Decision

  1. [1]
    Mr Yiannis (Yianni) Pallourios is employed by the State of Queensland as an AO3 Executive Assistant in the Department of Children, Youth Justice and Multicultural Affairs ('the Department').
  2. [2]
    Since 29 September 2018, he has been acting in a higher duties classification as an AO5 Program Officer within the System Oversight team, Strategy and Delivery Performance (SDP), Strategy ('the AO5 position'). As part of his responsibilities in the higher duties position, Mr Pallourios also acts as the Secretariat to the Department's Child and Family Reform, Stakeholder Advisory Group ('the SAG').
  3. [3]
    Pursuant to s 149C(3) of the Public Service Act 2008 (Qld) ('the PS Act'), on 5 November 2020, Mr Pallourios requested he be permanently appointed to the AO5 position in which he was acting.
  4. [4]
    In a decision letter dated 18 December 2020 and provided to Mr Pallourios on 21 December 2020, Ms Kate Connors, Deputy Director-General Strategy, informed him he would continue to be engaged according to the terms of his existing higher duties arrangement ('the decision').
  5. [5]
    Mr Pallourios' existing higher duties contract for the AO5 position is due to cease on 30 June 2021.
  6. [6]
    By appeal notice filed 24 December 2020, Mr Pallourios appeals the decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld).[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] My role therefore, is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  7. [7]
    In my view, the decision was fair and reasonable.
  8. [8]
    My reasons follow.

The decision

  1. [9]
    The decision relevantly provides:

I have considered your request and my decision and response is based on consideration of the requirements of section 149C of the Public Service Act 2008 (PS Act), Directive 13/20 relating to appointing a public service employee to a higher classification level (the Directive) and your employment history, including any previous review decisions.

I have considered your request and have determined that, while you are eligible to request consideration for appointment under the Directive, you will not be appointed to the higher classification level at this time due to the genuine operational requirements of the agency. You will continue to be engaged according to the terms of your existing higher duties arrangement as there is no recurrently funded and substantively vacant AO5 Program Officer position with S&DP that you can be appointed to under the Directive at this time.

Currently, you have been engaged at the higher classification level for a total of more than 3 years. Your engagement at this higher classification has been extended several times.

As a result of this decision not to convert you to the higher classification level, you will continue in the role of Program Officer until 30 June 2021 when the position is currently scheduled to cease.

...

The Department's submissions

  1. [10]
    The Department submits that appointment is not appropriate having regard to its genuine operational requirements. In assessing those requirements, the Department submits it had regard to the relevant checklist[4] and its "Workplace Guidelines – Managing the financial impacts of COVID-19" ('the Workforce Guidelines').[5]
  2. [11]
    It submits that, in accordance with the Workforce Guidelines, temporary employment is supported where the position is non-ongoing and, further, that appointment to a higher classification should only be made where the position is considered "critical" and the appointment "will not create any additional FTE cost".[6] Relevantly, the Department noted that the AO5 position to which Mr Pallourios seeks appointment, is a temporary, non-recurrently funded position.[7]
  3. [12]
    The Department contends that the System Oversight team within which the AO5 position presently sits, was established to report on and oversee the remaining phases of the Family Support and Child Protection System reforms.[8] Those reforms are a ten-year program of work being undertaken in two five-year phases.[9] The nature of such a reform, it explains, is that different roles are required for different periods of the project.[10] Consequently, the AO5 position was created and funded as a temporary, non-recurrent position to align with the requirements of the project.[11]
  4. [13]
    While it accepts that Mr Pallourios' contract has been extended several times, the Department contends those extensions coincided with temporary extensions to funding and that funding is due to cease on 30 June 2021.[12] Consequently, even if Mr Pallourios were to be converted, the Department argues it is highly likely that he would become a displaced employee requiring placement under the relevant workplace change directive, as there are no other vacant AO5 positions available.[13]

Mr Pallourios' submissions

  1. [14]
    Mr Pallourios contends the System Oversight team was created to support the Family Support and Child Protection System during and beyond the reform program, such that there will be ongoing future work within the team.[14] Additionally, he submits that in late January 2021 he received advice that the SAG (which constitutes approximately 10 percent of his current work responsibilities) would be "continued, re-invigorated and strengthened" resulting in that function constituting a greater share of his responsibilities.[15]
  2. [15]
    In any event, Mr Pallourios argues his position extends beyond the present reform program and that there will be a continuing need for him to be employed in the System Oversight team to assist in its continued overall function.[16]
  3. [16]
    Mr Pallourios also rejects the Department's submission that his appointment would add to the Department's FTE cost, claiming that in May 2020 a review was conducted which identified the AO5 position as one of 3,520 approved FTE positions.[17]
  4. [17]
    Finally, Mr Pallourios claims that his appointment is not precluded by the fact that there is no alternative, substantively vacant position within the System Oversight team to which he could be appointed,[18] contending that a vacant position ought to be sourced from across the Department.[19]

Relevant provisions

  1. [18]
    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)
    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. (3)
    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. [19]
    The relevant directive for the purposes of s 149C of the PS Act is Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').[20] The Directive relevantly provides:

4. Principles

...

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[21]
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload

...

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.

Was the decision fair and reasonable?

  1. [20]
    It is not in dispute that Mr Pallourios was eligible to apply for appointment to the AO5 position, or that he met the merit principle for appointment. Instead, this appeal turns solely on whether there were genuine operational requirements which precluded his appointment.

Genuine operational requirements of the Department

  1. [21]
    As is clear from s 149C(4A)(a) of the PS Act and cl 6.2(a) of the Directive above, the decision-maker must have regard to the "genuine operational requirements of the department" when making their decision.
  2. [22]
    The phrase "genuine operational requirements of the department" is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women)[22] Merrell DP observed:

[37] 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.

[38] 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; and
  • 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.
  1. [23]
    His Honour then found that the phrase would at least include a consideration of whether there was "an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department" to appoint the employee to the higher duties position.[23]
  2. [24]
    This Commission has consistently held that the fact that a position will cease to exist due to either lack of funding[24] or organisational change,[25] is a genuine operational requirement which may be relied upon to refuse appointment. That is so, because there is no "genuine need" for a non-existent position to be filled.
  3. [25]
    Additionally, although the PS Act establishes that employment on tenure should be the default basis of employment in the public service,[26] there are circumstances were such employment is not appropriate. As is made clear by the Directive, this includes where the employee is engaged in higher duties to perform work for a particular project or purpose that has a known end date.[27]
  4. [26]
    Having regard to the above, it was clearly relevant to the Department's consideration of Mr Pallourios' application, that the funding for the AO5 position is due to cease on 30 June 2021.
  5. [27]
    Although Mr Pallourios contends the AO5 position and its responsibilities extend beyond the particular project in which it sits, his submissions are misconceived.
  6. [28]
    That is so because, regardless of the work performed or his personal views about how that work should or could be undertaken in the future, the position, in which Mr Pallourios is currently acting, will not exist beyond 30 June 2021. How the Department manages and funds the workload presently undertaken by Mr Pallourios beyond that date, is largely a matter for the organisation to resolve.
  7. [29]
    For these reasons, I consider the decision by the Department to not appoint Mr Pallourios to the AO5 position, due to genuine operational requirements of the Department, to be fair and reasonable.
  8. [30]
    Finally, I do not accept Mr Pallourios' submission that the Department ought to have considered other roles across the Department.
  9. [31]
    That is so because decisions of this Commission have previously established that the reference to "the position" in s 149C of the PS Act is a reference to a specific position – in this instance, the AO5 position being undertaken by Mr Pallourios at the time of his application.[28] That is, the Department must have regard only to whether it is appropriate to appoint Mr Pallourios to the AO5 position in which he has been acting and in respect of which he has made his request. It is not required to consider whether there are any other positions to which he may be appointed.[29]
  10. [32]
    Although I accept the Department appears to have explored whether other funded and substantively vacant positions at the AO5 level existed, when considering Mr Pallourios' request, this action is not relevant to the issues a decision-maker must have regard to under s 149C(4A) when considering an application to appoint an employee to a higher duties classification.

Conclusion

  1. [33]
    Having reviewed the decision arrived at and the decision-making process undertaken by the Department, I consider the decision appealed against was fair and reasonable in all the circumstances.

Order

  1. [34]
    I make the following order:

The decision appealed against is confirmed.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[3] Industrial Relations Act 2016 (Qld) s 562B(3).

[4] See the "Higher classification conversion checklist" published by the Public Service Commissioner.

[5] Department's submissions filed 25 January 2021, [8]-[9].

[6] Ibid (Attachment 2).

[7] Ibid [14].

[8] Ibid [17].

[9] Ibid.

[10] Ibid [18].

[11] Ibid.

[12] Ibid [12], [19].

[13] Directive 18/20 Supporting employees affected by workplace change; Department's submissions filed 25 January 2021, [31].

[14] Appellant's submissions filed 15 January 2021, 1.

[15] Appellant's submissions in reply filed 2 February 2021, 1 (emphasis omitted).

[16] Ibid 2.

[17] Ibid.

[18] Appellant's submissions filed 15 January 2021, 2.

[19] Appellant's submissions in reply filed 2 February 2021, 2.

[20] Public Service Act 2008 (Qld) s 149C(7); Directive 13/20 Appointing a public service employee to a higher classification level cl 2.

[21] My emphasis.

[22] [2020] QIRC 203.

[23] Ibid [40] (my emphasis).

[24] Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102 (Dwyer IC), [28].

[25] Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101 (Hartigan IC), [27].

[26] Public Service Act 2008 (Qld) s 25(2)(d).

[27] Directive 13/20 Appointing a public service employee to a higher classification level cl 4.2(c).

[28] See e.g. Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (McLennan IC), [56], [59]–[64].

[29] cf. Public Service Act 2008 (Qld) s 149A(2)(i) in respect of fixed term temporary and casual employees which requires the department to consider whether there is a continuing need for the applicant to be employed in the same role, or another role that is substantially the same.

Close

Editorial Notes

  • Published Case Name:

    Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2021] QIRC 187

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    01 Jun 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
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102
2 citations
Jump To
Cite 1 - [2021] QIRC 102
Cite 2 - [2021] QIRC 102
Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101
2 citations
Jump To
Cite 1 - [2021] QIRC 101
Cite 2 - [2021] QIRC 101
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
Olesk v State of Queensland (Department of Education) [2022] QIRC 2142 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.