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Golder v State of Queensland (Department of Housing and Public Works)[2021] QIRC 20

Golder v State of Queensland (Department of Housing and Public Works)[2021] QIRC 20

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Golder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 20

PARTIES:

Golder, Jayne Louise

(Appellant)

v

State of Queensland (Department of Housing and Public Works) 

(Respondent)

CASE NO:

PSA/2020/294

PROCEEDING:

Public Service Appeal – Conversion to higher classification level

DELIVERED ON:

20 January 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS

LEGISLATION:

CASES:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL  – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where appellant was acting up in a role with a higher classification level – where role was attached to a project with an end date – consideration of 'genuine operational requirements'

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 562B

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

Public Service and Other Legislation Amendment Act 2020 (Qld)

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 Jayne Louise Golder appeals a decision not to permanently appoint her to the position in which she has been acting at a higher classification level. 
  1. [2]
    At the time Ms Golder commenced this appeal, she was acting in the higher classification position of BAO4, Project Contract Administration Officer within QBuild, a business unit of Building Policy and Asset Management ("BPAM"), a division of the Department of Housing and Public Works ("the Department").
  1. [3]
    Ms Golder is permanently employed by the Department as a Public Service Officer in the role of BAO3, Project Contract Administration Officer within QBuild.
  1. [4]
    By notice of appeal filed on 10 November 2020, Ms Golder, pursuant to Chapter 7 of the Public Service Act 2008 (Qld) ("the PS Act"), appealed against a decision dated 20 October 2020 ("the decision").
  1. [5]
    Ms Golder appeals the decision on the grounds that: (a) the decision maker erred in coming to the decision as they did not give due consideration to the general operational requirements of the Department as required by s 149C(4A) of the PS Act[1] and (b) the decision maker erred in failing to give due consideration to the general operational needs of the Department and to provide their explanation about consideration pursuant to clause 7.1 of the Directive in the outcome letter.
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides, that an appeal under Chapter 7, Part 1 of the PS Act is to be heard and determined under Chapter 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[2]  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. [8]
    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.[3] An appeal under Chapter 7, Part 1, of the PS Act is not by way of rehearing, but, rather, involves a review of the decision arrived at and the decision making process associated with it.[4]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [10]
    The decision was contained in a letter from the Acting Senior Human Resources Consultant, Mr Singh, to Ms Golder, in the following terms:

…

The Deputy Director-General, Building Policy and Asset Management (Deputy Director-General) has given consideration to your request and notes the following:

  • you are substantively employed in the role of BAO3, Business Support Officer within QBuild, BPAM, and that since 18 September 2017 you have been continuously performing the duties of BAO4, Project Contract Administration Officer within QBuild, BPAM.
  • The purpose of your placement in the role of BAO4, Project Contract Administration Officer within QBuild, BPAM is to provide quality project administration support services, specifically for the Queensland Correct Services project.
  • you have been engaged in the position of BAO4, Project Contract Administration Officer within QBuild, BPAM, for three years and 1 month.
  • Your engagement in the position of BAO4, Project Contract Administration Officer within QBuild, BPAM has been eight times.
  • Your current engagement in the BAO4, Project Contract Administration Officer within QBuild, BPAM is due to expire on 31 January 2021.
  • There are no performance concerns regarding your placement in the BAO4, Project Contract Administration Officer within QBuild, BPAM, that have been put to you, documented and remain unresolved.

Higher classification conversion decision

After considering your request to be permanently employed in the position BAO4, Project Contract Administration Officer within QBuild, BPAM, and the circumstances of your temporary placement in that role, the Deputy Director-General's has determined that your engagement is to continue according to the terms of your existing temporary placement.

The reasons for the Deputy Director-General's decision are as follows:

  • The purpose of your current temporary placement in the position of BAO4, Project Contract Administration Officer within QBuild, BPAM is to perform work for a project, specifically the Queensland Corrective Services Project, which has an expected an end date of mid-2021.
  • At the conclusion of the project, there will no longer be a continuing need for you to be engaged in the position of BAO4, Project Contract Administration Officer within QBuild, BPAM.

…

  1. [11]
    The review was undertaken pursuant to the Public Service Commission Directive 13/20 – Appointing a public service employee to a higher classification level. Directive 13/20 came into effect on 25 September 2020.

Relevant provisions of the PS Act and Directive 13/20

  1. [1]
    Section 149C of the PS Act 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
  2. (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. [2]
    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) [2020] QIRC 203, Merrell DP relevantly stated:[5]

[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;
  • 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. [3]
    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. [4]
    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.

6.3In 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.

6.4Each 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. [5]
    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
  2. (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. [6]
    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. [7]
    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).

Was the decision fair and reasonable?

  1. [12]
    As noted above the grounds for the appeal attached to the notice of appeal referred to a decision by a Mr Atkins to not appoint Ms Golder on the basis that the role she has been continuously acting is substantively owned by another employee.
  1. [13]
    That information does not accord with any other information contained in either the notice of appeal or the submissions subsequently filed by and on behalf of Ms Golder and/or the Department. Accordingly, I have not considered that ground any further.
  1. [14]
    Ms Golder contends that the decision maker did not have proper regard to the extent of the genuine operational requirements of the Department which must be taken to account when making a decision to refuse a request.
  1. [15]
    Ms Golder submitted that a consideration of the operational requirements of the Department would include considering decisions that would facilitate the prompt and efficient function of building policy and asset management. She submits that permanently appointing her to the higher classification role would best serve this consideration.

Genuine operational requirements of the Department.

  1. [16]
    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 "general operational requirements of the Department".
  1. [17]
    As noted above, 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.[7]

  1. [18]
    Having regard to this, it was relevant for the decision maker to consider whether Ms Golder should be appointed to the higher classification level position in circumstances where the project she was working on is due to end in mid-2021. The decision maker relevantly noted in the body of the decision that at the conclusion of the project, there will be no longer be a continuing need for Ms Golder to be engaged in the position of BAO4, Project Contract Administration Officer within QBuild, BPAM.
  1. [19]
    I accept the Respondent's submission that it does not have a genuine operational requirement for Ms Golder to continue in this role once the project has ended.
  1. [20]
    Ms Golder submits that if her current BAO4 position was converted to permanent this would benefit the work unit by providing additional permanent capability and a greater ability to deal with complex and expanding workloads. She has not submitted however how such a decision would have regard to the effective, efficient and appropriate management of the public resources of the Department particularly having regard to the Department's submissions that the project is due to end in mid-2021. 
  1. [21]
    I accept that Ms Golder has performed meritoriously in the role for a period of time. However, the Directive does not require the Department to overcome the genuine operational requirements in order to facilitate conversion on the basis of merit.

Previous reasons for acting at a higher classification level

  1. [22]
    Section 149C(4A)(b) of the PS Act and Clause 6.2(b) of the Directive provides that the Department must have regard to the reasons for each decision previously made, or taken to have been made, under s 149(C) of the PS Act in relation to the person during the person's continuous period at the higher classification level.
  1. [23]
    No previous decision has been made by the Department about Mr Golder prior to the commencement and pursuant to s 149C of the PS Act. Accordingly, there are no other decisions relevant to my consideration.

Compliance with requirements of s 149C of the PS Act

  1. [24]
    When a decision is made to refuse a request the Department must provide a written notice in accordance with s 149C(5) of the PS Act as follows:             
  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. [25]
    Clause 7.1 of the Directive relevantly further requires the provision of the 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. (c)
    set out the findings on material questions of fact, and
  2. (d)
    refer to the evidence or other material on which those findings were based.
  1. [26]
    Ms Golder contends that the decision maker has not provided the material findings of fact and the evidence relied upon in coming to the decision. Relevantly, Ms Golder submitted that the decision maker's assessment of the operational requirements of the Department were not articulated within the decision and consequently she submitted that the decision is unfair and unreasonable.
  1. [27]
    The decision issued by the decision maker in this matter was provided in writing and identified the reasons for the decisions, the total continuous period Ms Golder had been employed at the higher classification level within the Department and how many times Ms Golder's engagement at the higher classification level has been extended. The written reasons provided by the Department sufficiently set out the findings on material questions of fact.
  1. [28]
    Accordingly, I have determined that the actions of the Department did accord with s 149C of the PS Act and Clause 7.1 of the Directive. For the forgoing reasons I have determined that the decision by the Department was fair and reasonable.

Order

  1. [29]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Attachment A to the notice of appeal filed on 10 November 2020; subparagraph A. This submission appears to contain some factual inaccuracies including that the decision being made by a Mr Atkins who is not the relevant decision maker in this matter.

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

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

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

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

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

[7] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Golder v State of Queensland (Department of Housing and Public Works)

  • Shortened Case Name:

    Golder v State of Queensland (Department of Housing and Public Works)

  • MNC:

    [2021] QIRC 20

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    20 Jan 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
5 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Cite 5 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Cox v State of Queensland (Queensland Health) [2021] QIRC 992 citations
Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 1382 citations
Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 382 citations
1

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