Brew v State of Queensland (Office of the Public Guardian)
[2021] QIRC 188
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- Unreported Judgment
- Brew v State of Queensland (Office of the Public Guardian)[2021] QIRC 188
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Brew v State of Queensland (Office of the Public Guardian)[2021] QIRC 188
Brew v State of Queensland (Office of the Public Guardian)[2021] QIRC 188
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188 |
PARTIES: | Brew, Tracy (Appellant) v State of Queensland (Office of the Public Guardian) (Respondent) |
CASE NO: | PSA/2021/104 |
PROCEEDING: | Public Service Appeal – Appointment to Higher Duties |
DELIVERED ON: | 1 June 2021 |
MEMBER: HEARD AT: | Knight IC On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested to be appointed to higher duties – whether there were genuine operational requirements which precluded appointment – whether a review is a genuine operational requirement – whether the decision was fair and reasonable |
LEGISLATION AND INSTRUMENTS: | Directive 13/20 Appointing a public service employee to a higher classification level cls 2, 4, 6 Industrial Relations Act 2016 (Qld) s 562B Public Service Act 2008 (Qld) ss 25, 27, 98, 148, 149C |
CASES: | Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Krinke v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 070 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Thompson v State of Queensland (Queensland Police Service) [2021] QIRC 57 Ward v State of Queensland (Department of Housing and Public Works) [2021] QIRC 111 |
Reasons for Decision
- [2]Ms Tracy Brew is substantively employed by the State of Queensland as a Guardian (AO4) in the Office of the Public Guardian, Guardianship Unit ('the OPG'). Since 30 November 2018, Ms Brew has been acting in higher duties as an AO6 Principal Guardian, Positive Behaviour Support ('the AO6 position'), albeit across several position numbers.
- [3]Pursuant to s 149C(3) of the Public Service Act 2008 (Qld) ('the PS Act'), on 15 December 2020 Ms Brew requested that she be permanently appointed to the AO6 position.
- [4]In a decision letter dated 24 February 2021, Ms Shayna Smith, Acting Public Guardian, informed Ms Brew she would continue to be engaged according to the terms of her existing higher duties arrangement ('the decision').
- [5]Ms Brew's engagement in the AO6 position is due to expire on 30 June 2021.
- [6]By appeal notice filed 17 March 2021, Ms Brew 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]In my view, the decision was not fair and reasonable.
- [8]My reasons follow.
The decision
- [9]In correspondence dated 24 February 2021, Ms Smith, having declined to convert Ms Brew to the AO6 position, outlined the factors she considered relevant in making the decision:
Factors I considered in making this decision under the Directive include:
- You are a permanent OPG employee who is assuming the duties and responsibilities of a higher classification level in the OPG (clauses 3.1, 4.1 and 5.2(a)).
- You have advised that you are requesting a review of the consideration for permanent appointment as you have reached your two-year anniversary date as of 30 November 2020, as a permanent employee acting in the higher duties position of Principal Guardian, Positive Behaviour Support.
- You have been in the same higher duties' role for a continuous period of over two years.
- Under clause 6.2(b) I am to consider the genuine operational requirements of the agency in making this decision.
- I consider there to be genuine operational requirements preventing your permanent appointment to this role. Relevant factors I considered in relation to these criteria include that:
a. OPG decided not to advertise or fill the role you are currently acting in permanently due to genuine operational requirements.
b. Queensland has commenced a review of the functions and powers under the Disability Services Act 2006, Guardianship and Administration Act 2000 and Public Guardian Act 2014 in relation to the authorisation regime for restrictive practices, to move towards greater national consistency of authorisation processes and greater alignment with the National Disability Insurance Scheme (Restricted Practices and Behaviour Support) Rules 2018.
c. Operationally, all Positive Behaviour Support positions in OPG are subject to the outcomes of the government review, including transitional arrangements associated with different role responsibilities, or the movement of officers to other areas of the OPG, other locations, or another government agency.
Ground of appeal
- [10]Ms Brew appeals on the ground that Ms Smith erred by finding that the review of the functions and powers under the Disability Services Act 2006 (Qld), Guardianship and Administration Act 2000 (Qld) and Public Guardian Act 2014 (Qld) ('the Government review') constituted a genuine operational requirement which precluded her appointment.
- [11]She seeks that the decision be set aside and a decision be substituted in lieu thereof that she be permanently appointed to the AO6 position.
Submissions
Obligations under the PS Act
- [12]Ms Brew submits there is no reason why her appointment should be denied. She contends that any general uncertainty with respect to the Principal Guardian role does not absolve the OPG of its obligations under ss 25(2)(d) and 98(1)(d) of the PS Act.[4]
- [13]Moreover, Ms Brew argues her employment does not fall within the identified circumstances where temporary employment is appropriate and notes the default basis for employment in the public service is on tenure.[5]
- [14]The OPG submits Ms Brew's current higher duties acting role in the AO6 position is consistent with the management and employment principles as set out in s 25 of the PS Act.[6]
- [15]The OPG decided not to advertise or permanently fill the AO6 position currently being undertaken by Ms Brew in late 2017, in circumstances where it is undertaking a broader internal review of Positive Behaviour Support ('PBS') positions.[7] It submits, for example, that consideration is currently being given to whether the PBS role should be centralised or regionalised and whether the positions should remain as PBS positions or more generic guardianship roles.[8]
- [16]The internal review, it contends, is a relevant consideration with respect to Ms Smith's responsibility to manage the OPG in a way that promotes the effective, efficient, and appropriate management of public resources.[9]
- [17]Further, the OPG rejects Ms Brew's submission that her employment should be on tenure on the basis that her circumstances do not fall within any of the events listed in s 148(2) of the PS Act. That list, it submits, is not exhaustive, nor does it limit the chief executive's power to employ a person on a fixed term basis under s 148(1) of the PS Act.[10]
Genuine operational requirements
- [18]Ms Brew contends the Government review is not a genuine operational requirement which precludes her appointment. Although Ms Brew concedes that uncertainty about the future of a role, its responsibilities or location is not an irrelevant consideration when determining whether to appoint an applicant to a higher level classification,[11] she argues the OPG operates within a regulatory framework frequently subject to political and legislative change and contends the Government review is "business as usual".[12]
- [19]In support of this submission, Ms Brew refers to the National Disability Insurance Scheme and Quality and Safeguards Commission, both of which she says the OPG has previously relied on as a reason not to permanently appoint to Principal Guardian roles.[13]
- [20]Ms Brew questions the prediction that the Government review may result in significant changes to the OPG contending instead that it is not a process which will imminently impact the AO6 position.[14] Rather, she submits speculation regarding its outcome must be weighed against the Principal Guardian role's history of uncertainty without substantial change.[15]
- [21]Moreover, Ms Brew highlights there is no timeframe for the present review to be completed, with employees and their relevant union yet to be provided with a scope or terms of reference for any review.[16]
- [22]Despite this, Ms Brew contends the OPG continue to predict the Government review will result in significant changes to the range of positions and functions of the OPG, whereas she argues that, in reality, there is no guarantee if and when the Government review will be finalised, or that the government of the day will act on any recommendations, if they are made.
- [23]Finally, Ms Brew notes the AO6 position has been substantively vacant for more than two years and her appointment could not be barred on that basis.[17]
- [24]
- the outcome of the Government review is unknown and may have significant implications for the future operational requirements of the OPG;
- it is possible the Principal Guardian role may be substantially changed, either in responsibilities, agency or location such that permanent appointment is not appropriate; and
- any speculation regarding the uncertainty of its conclusion does not constitute grounds to permanently appoint Ms Brew to the AO6 position and doing so would have ignored potential consequences if the role is substantially changed.[20]
- [25]
- [26]Similarly, the OPG submits the internal review referred to at [15] above is also a relevant operational requirement which does not support appointment.[23]
- [27]In her reply submissions, Ms Brew resists the OPG's reliance on previous decisions of this Commission, submitting that in both instances cited, the reviews had eventuated such that they were distinguishable from the present case.[24]
Relevant Principles
- [28]The PS Act relevantly provides:
25 The management and employment principles
...
(2) Public service employment is to be directed towards promoting—
...
(d) employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.
...
98 Responsibilities
(1) A chief executive is responsible for all of the following matters in relation to the chief executive's department—
...
(b) managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
...
(d) 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 this Act;
...
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.
...
- (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.
...
- [29]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').[25] 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:
- (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[26]
- (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:
- (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.
Was the decision fair and reasonable?
- [30]It is not in dispute that Ms Brew was eligible to make her request, or that she met the merit principle under s 27 of the PS Act.[27]
- [31]This appeal therefore turns solely on whether there were genuine operational requirements which precluded Ms Brew's appointment.
Does the proposed Government review or an internal review of guardian positions constitute a genuine operational requirement which precludes appointment?
- [32]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.
- [33]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)[28] 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.
- [34]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 convert the employee's employment.[29]
- [35]In circumstances where there is clear uncertainty about a role, having regard to an actual or imminent decision arising out of an organisational or external review, I accept that a decision not to appoint under s 149C of the PS Act may well be the appropriate course of action having regard to the operational requirements of a Department or, in this case, the OPG.
- [36]Here, the OPG relies on the outcome in Thompson v State of Queensland (Queensland Police Service)[30] ('Thompson') and Krinke v State of Queensland (Queensland Fire and Emergency Services)[31] ('Krinke') in support of its determination that there was "not an authentic need to appoint Ms Brew, particularly having regard to Ms Smith's responsibilities at 98(1)(b) and 98(1)(d) of the PS Act".[32]
- [37]In my view, the circumstances in Thompson and Krinke can be distinguished from the present case.
- [38]For example, in Thompson, although the review was on going, it had progressed sufficiently such that there was in-principle support for the reclassification of the relevant position. Likewise, in Krinke, the review had been finalised to the extent there was an awareness the position would be reclassified by a certain date.
- [39]In the case of Ms Brew, the OPG has relied on broad statements that a review is being undertaken by the Queensland Government, whereby the Principal Guardian role may be affected, in the absence of any supporting materials or timelines within which it is claimed any changes will or may occur.
- [40]Within its submissions to the Commission, I have been unable to identify a report, recommendation or commitment to act on any current external or internal review, nor is there any imminent indication the role currently being performed by Ms Brew will be directly impacted by either review.
- [41]There appears to have been a history of reviews, and proposed changes advanced by the OPG since 2017, as reasons why the AO6 position, in which Ms Brew is acting, cannot be filled on a permanent basis.
- [42]In my view, the general uncertainty that may have arisen as a result of these processes, does not necessarily absolve decision makers of their obligations under s 25(2)(d) and s 98(1(d) of the PS Act.
- [43]In the absence of any materials, reports or decisions suggesting a different outcome, I accept Ms Brew's submissions that the present external review relied on by the OPG as a barrier to appointing her to the AO6 position is, in all probability, not a process which will imminently impact the future of the higher classification role in which she is currently acting.
- [44]For similar reasons, I am not persuaded there exists a meaningful intention, at this point in time, to alter the future of the AO6 position, its scope, responsibilities or location, such that it would preclude Ms Brew from being permanently appointed to the AO6 position.
Conclusion
- [45]In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the OPG was not fair and reasonable.
Order
- [46]I make the following orders:
- The appeal is allowed.
- Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and another decision is substituted in lieu thereof.
- Ms Tracy Brew is appointed to the position of AO6 Principal Guardian, Positive Behaviour Support.
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] Ms Brew's reply submissions filed 4 May 2021, [5].
[5] Ms Brew's submissions filed 6 April 2021, [23] citing Public Service Act 2008 (Qld) ss 148(2), 27.
[6] OPG's submissions filed 19 April 2021, [25].
[7] Ibid [19].
[8] Ibid.
[9] Ibid [22], citing Public Service Act 2008 (Qld) ss 98(1)(b) and (d).
[10] Ibid [23]-[24].
[11] Ms Brew's reply submissions filed 4 May 2021, [3].
[12] Ms Brew's submissions filed 6 April 2021, [19].
[13] Ibid [16]-[17].
[14] Ms Brew's reply submissions filed 4 May 2021, [4].
[15] Ibid [9].
[16] Ms Brew's submissions filed 6 April 2021, [20].
[17] Ms Brew's submissions filed 6 April 2021, [23], [19].
[18] OPG's submissions filed 19 April 2021, [6].
[19] Ibid [20].
[20] Relying on Ward v State of Queensland (Department of Housing and Public Works) [2021] QIRC 111 (Dwyer IC), [30].
[21] Relying on Thompson v State of Queensland (Queensland Police Service) [2021] QIRC 57 (Power IC), [29], [31]-[32]; Krinke v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 070 (Power IC), [23].
[22] OPG's submissions filed 19 April 2021, [22].
[23] Ibid [19].
[24] Ms Brew's reply submissions filed 4 May 2021, [7]-[8].
[25] Public Service Act 2008 (Qld) s 149C(7); Directive 13/20 Appointing a public service employee to a higher classification level cl 2.
[26] My emphasis.
[27] OPG's submissions filed 19 April 2021, [13].
[28] [2020] QIRC 203.
[29] Ibid [40] (my emphasis).
[30] [2021] QIRC 57 (Power IC).
[31] [2021] QIRC 070 (Power IC).
[32] OPG's submissions filed 19 April 2021, [22].