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Windred v State of Queensland (Department of Communities, Disability Services and Seniors)[2021] QIRC 196

Windred v State of Queensland (Department of Communities, Disability Services and Seniors)[2021] QIRC 196

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Windred vState of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 196

PARTIES:

Windred, Myra Elizabeth

(Appellant)

v

State of Queensland (Department of Communities, Disability Services and Seniors)

(Respondent)

CASE NO:

PSA/2020/403

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

4 June 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where substantive employee is on approved parental leave – consideration of "genuine operational requirements"

LEGISLATION:

Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2, cl 6, cl 7, cl 11

Industrial Relations Act 2016 (Qld), s 58, s 59, s 73, s 562B, s 562C

Public Service Act 2008 (Qld), s 149C, s 197, s 295

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Myra Elizabeth Windred appeals a decision of the State of Queensland (Department of Communities, Disability Services and Seniors) ("the Department") not to permanently appoint her to a position in which she has been acting at a higher classification level.
  1. [2]
    Ms Windred is permanently employed in the position of AO3, Administration Officer in Redcliffe Accommodation Support and Respite Services, Northern Service Area.
  1. [3]
    Since 16 June 2014, Ms Windred was acting in a higher duties role of AO4, Senior Administrative Officer, until it was reclassified to AO5 Business Officer role in August 2015. Ms Windred has since remained performing the AO5 role.
  1. [4]
    On 29 September 2020, Ms Windred requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be permanently converted to the higher classification level position.
  1. [5]
    On 23 November 2020, the Department issued a decision refusing Ms Windred's request to be permanently appointed to the role in which he had been acting ("the decision") on the basis that the substantive employee is expected to return to the position.
  1. [6]
    The employee who is substantively attached to the position that Ms Windred has requested to be appointed to, is on a period of parental and other leave and is not due to return to the position until October 2021.
  1. [7]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
  1. [8]
    Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [9]
    As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not be re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]
  1. [10]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [11]
    On 23 November 2020, the Department issued the decision in the following terms:

Your request has been assessed in accordance with the requirements in the directive with specific consideration to operational requirements of the department. Additionally, the principle of merit has been applied and your performance history in the role has been considered.

Having completed the assessment I can advise that I have not approved your request for direct appointment to a higher classification role. The reason for this decision is that your higher duties appointment is genuinely temporary in nature as the role is not vacant and the substantive occupant of the role is expected to return to the position.

We are maintaining ongoing contact with the substantive office holder and will advise if her circumstances change, in which case you can reapply. Alternatively, if you continue to act in this role for another year, you are eligible to apply again.

Relevant provisions of the PS Act and Directive 13/20

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

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

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.

(4A)  In making the decision, the department's chief executive must have regard to—

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (5)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [14]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),[4] Merrell DP relevantly stated:[5]

Reasons for Decision

The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

(Citations omitted)

  1. [15]
    Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [16]
    Clause 4.2 of Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows:

4.2.  Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

  1. (a)
    when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
  1. (b)
    when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
  1. (c)
    to perform work for a particular project or purpose that has a known end date
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload
  1. [17]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  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 documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2  In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

  1. (a)
    the genuine operational requirements of the department, and
  1. (b)
    the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3  In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4  Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

  1. [18]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows:
  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.

7.2  A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3.

  1. [19]
    Clause 11 of Directive 13/20 defines the following relevant terms:

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.

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.

  1. [20]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Genuine operational requirements of the Department

  1. [21]
    As noted above, s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision maker must have regard to the "genuine operational requirements of the Department".
  1. [22]
    It has been held,[6] that when construed in context, the phrase "genuine operational requirements of the Department" would, at least, include consideration of the following:

Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to…position at the higher classification level.

  1. [23]
    Clause 4.2 of Directive 13/20 provides that 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.
  1. [24]
    Relevantly, clause 4.2 of Directive 13/20 further provides examples of circumstances that would support the temporary engagement of an employee at a higher classification level, they 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

(emphasis added)

  1. [25]
    The relevant issue for my consideration is whether the circumstances of this matter would support the continued temporary engagement of Ms Windred whilst she was backfilling for an existing employee who has taken a period of approved parental and other leave and is expected to return to her position in October 2021.
  1. [26]
    The Department submits that it considered the genuine operational requirements of the Department, in a way that promoted the effective, efficient and appropriate management of public resources, as the substantive employee "could return and the Department does not have the need nor resources to employ two people in the same role".
  1. [27]
    Ms Windred submits that the substantive employee has not acted in the role since the position had been reclassified from an AO4 role to an AO5 role.
  1. [28]
    Further, Ms Windred submits that the substantive employee returned from a period of maternity leave in January 2019 and upon that return, acted in project roles and backfilling arrangements in order to work less than 1.0 FTE. Ms Windred further submits after the substantive employee performed project roles, the substantive employee has been approved to take a second period of maternity leave that is expected to last until at least October 2021.
  1. [29]
    The Departments submits that the "substantive position holder's return may not be imminent, however, any indication they may not return is purely speculative, given the parameters of the officer's parental leave entitlements."
  1. [30]
    The Department has obligations under the IR Act with respect to employees who are on a period of approved parental leave. Relevantly, s 59(1) of the IR Act provides for an entitlement for a pregnant employee to take up to 52 weeks of unpaid maternity leave, and, s 73(1)(a) of the IR Act permits an employee to apply for an extension of their parental leave for a period up to 104 weeks.
  1. [31]
    Section 58 of the IR Act entitles an employee returning from parental leave to be employed in the position the employee held immediately before starting the leave.
  1. [32]
    Ms Windred submits that whilst it may be an untenable outcome for an employee to be appointed to a role which the substantive owner then returns, the Department is industrially able to mitigate against this risk, including by asking the long term employee whether she wants to "un-attach" from the position, freeing it up to provide employment security for the backfilling employment whilst still retaining the employment and classification of the incumbent employee if they do return to the Department.
  1. [33]
    As noted above, clause 4.2(a) of the Directive relevantly identifies, by way of example, that when an existing employee takes a period of leave such as parental leave, and needs to be replaced until the date of their expected return, then that is a circumstance that would support the continued temporary engagement of an employee at a higher classification level.
  1. [34]
    Ms Windred points out that the incumbent employee has been absent from the position since April 2014. It is troubling that Ms Windred has been acting up in the position for a period in excess of six years. Had the incumbent employee not been absent on a period of approved parental and other leave, I consider there may have been a basis, given the length of time Ms Windred has acted in the position, to set aside the decision.
  1. [35]
    However, ultimately, I have concluded that on the information before me, the incumbent employee is presently on a period of approved parental and other leave until October 2021. That absence, together with the reasons for it, and the considerations of the Department's obligations as an employer of an employee who has taken parental leave under the IR Act, are matters that fall within the consideration of genuine operational requirements of the Department.
  1. [36]
    I am satisfied that the fact that the incumbent employee is on a period of approved parental leave and other leave, until the date of their expected return, is an authentic and relevant consideration with respect to how the Department manages itself in a way that promotes the effective, efficient and appropriate management of public resources. There is no doubt, that the Department is obliged, pursuant to the IR Act, to ensure that the position that the incumbent employee is in remains available to them upon their expected return from parental and approved special leave.

Order

  1. [37]
    I make the following orders:
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2020] QIRC 203.

[5] Ibid, [37] – [38].

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

Close

Editorial Notes

  • Published Case Name:

    Windred v State of Queensland (Department of Communities, Disability Services and Seniors)

  • Shortened Case Name:

    Windred v State of Queensland (Department of Communities, Disability Services and Seniors)

  • MNC:

    [2021] QIRC 196

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    04 Jun 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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