Travers v State of Queensland (Queensland Treasury)
[2021] QIRC 240
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- Travers v State of Queensland (Queensland Treasury)[2021] QIRC 240
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Travers v State of Queensland (Queensland Treasury)[2021] QIRC 240
Travers v State of Queensland (Queensland Treasury)[2021] QIRC 240
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Travers v State of Queensland (Queensland Treasury) [2021] QIRC 240 |
PARTIES: | Travers, Lisa (Appellant) v State of Queensland (Queensland Treasury) (Respondent) |
CASE NO: | PSA/2021/217 |
PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
DELIVERED ON: | 13 July 2021 |
MEMBER: HEARD AT | Pidgeon IC On the papers |
OUTCOME: | The decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE OR SIMILAR ACTS – Whether appointed permanently or temporarily – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable |
LEGISLATION: | Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level. |
CASES: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
Reasons for Decision
Appeal Details
- [1]Ms Travers is employed by the State of Queensland (Queensland Treasury). Since 27 March 2017, Ms Travers has been performing higher duties in the role of Senior Project Officer (AO6), the arrangement was scheduled to end on 31 December 2020.
- [2]This is the second public service appeal for Ms Travers. After considering her initial appeal I ordered that the Department conduct a fresh review by 1 June 2021. This is an appeal of that fresh review.
- [3]At the time the review subject of this appeal was undertaken, Ms Travers had been engaged at the higher classification level for a total of 4 years and 2 months and her engagement at this higher classification had been extended seven times.
- [4]The decision letter of 1 June 2021 stated that due to the genuine operational requirements of the Department, Ms Travers was to continue to be engaged according to the terms of the existing higher duties arrangement. Specifically:
The role of Senior Project Officer AO6, Investment Incentives, is not able to be appointed to because it is a temporary position for a specified period and purpose which is to support the delivery of industry attraction strategies and programs.
When Mr McKee made the previous decision to decline your appointment to the higher classification level because the position was for a specified period and purpose, it was uncertain whether funding for the industry attraction programs would be extended. However, as you are aware the government made a decision on 20 January 2021 that the program will close to new applications and delivery activity associated with the programs will be largely completed by 30 June 2021.
In deciding on this matter, I have also considered the availability of vacant AO6 positions within Investment Facilitation and Partnerships (IFP) and restrictions associated with an FTE [Full-Time Equivalent] cap that has been implemented across all government agencies. This means that IFP do not have the FTE available for the position you are acting in after 30 June 2021.
As a result of the decision not to convert you to the higher classification level, you will continue in the role of Senior Project Officer until 30 June 2021, following which you will return to your substantive position with the Department of Tourism, Innovation and Sport.
Relevant sections of the Act and Directive
- [5]In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- [6]Section 149C of the PS Act relevantly provides
- 149CAppointing 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 one 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).
…
(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.
The Directive
- [7]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
- (a)when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
- (b)when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
- (c)to perform work for a particular project or purpose that has a known end date
- (d)to perform work necessary to meet an unexpected short-term increase in workload.
…
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 documents an 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.
7. Statement of reasons
7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
8. Appeals
8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
…
What decisions can the Commission make?
- [8]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Ms Travers' reasons for appeal
- [9]Ms Travers submits the decision not to convert her is unfair and unreasonable for the following reasons:
- The decision maker has failed to properly consider the mandatory criteria under s 149C of the PS Act for such a decision, that is the genuine operational requirements of the department in relation to whether the role is continuing;
- The decision maker has failed to take into account relevant considerations, as the Decision does not acknowledge that funding has been approved to create an additional two funding schemes including resourcing for the programs for a further three-four years, and that the existing pipeline of projects still requires ongoing management and aftercare.
- As I have now been acting in higher duties in the AO6 Senior Project Officer role in the Investment Incentives Teams for more than 4 years, with the additional funding my role will be required for an additional 3-4 years, justifying that my role is a genuine operational requirement of the Department.
- The decision maker has taken into account an irrelevant consideration by taking account of the "FTE cap that has been implemented across government agencies" to conclude that the Investment Facilitation and Partnerships unit do not have the available FTE to appoint me to the position. However, I contend that how the Department apply their FTE caps across units, divisions and departments is not a relevant consideration as to whether my position is a genuine operational requirement of the Department and cannot be used to displace the principle that employment on higher duties should only be used when permanent appointment to the position is not viable or appropriate, given that employment on tenure is the default basis of employment.
- The decision maker has failed to take into account a relevant consideration in that many parts of my role are not directly related to the grants program and are, in fact, ongoing and important pieces of work of the Government. As evidenced in the [position description] for the role.[1]
Ms Travers' submissions
- [10]Ms Travers made a number of submissions in support of her reasons for appeal:
- The role is part of a larger Queensland Government's Economic Recovery Plan;
- she enjoys the role, and it has enabled her to grow and develop both professionally and personally and her contribution is supported and valued;
- on 14 June 2021, the vacant AO7 role within investment support has been advertised for three months to help with the shortfall of resources. The loss of that resource coupled with her impending return to her substantive role reflects the genuine ongoing operational requirement for her role;
- she believes she is being returned to her substantive role because she has been recalled to it by her line manager, not because her work is ending;
- the temporary positions currently allocated in the Investment Incentives Team are currently being readvertised following the approval of certain funding. Ms Travers submits she has had her Executive Director and Deputy Under Treasurer encourage her to apply;
- as the positions being advertised are temporary, Ms Travers is precluded from applying as her substantive Department will not endorse any further secondments at this point. Other temporary employees have been extended until the outcome of the recruitment process but this was not possible for Ms Travers as she has been recalled to her substantive position; and
- she should be permanently appointed to the higher level position as she has demonstrated the merit principle, permanent employment is the default basis of employment in the public service and there are no genuine operational requirements of the Department to prevent her permanent appointment to the position.
Department submissions
- [11]The Department submits that the review of Ms Travers' employment in the position she has been acting in was undertaken consistent with the requirements of the PS Act, Directive and my decision of 11 March 2021.
- [12]Ms Travers meets merit for the position with regard to the merit principle.
- [13]The Respondent's submissions in reply to Ms Travers' reasons for appeal as set out at [9] above are set out below.
- [14]With regard to genuine operational reasons, Ms Travers has been advised that the role is not continuing because a decision was made by the Cabinet Budget Review Committee (CBRC) on 20 January 2021 that the programs the role has been supporting will close to new applications. Close out procedures for the programs are being implemented and all applications are required to be finalised by the end of July 2021.
- [15]With regard to the funding which has been approved for an additional two schemes, Ms Travers has been advised that this funding has been approved, however no additional FTE for these programs were approved and therefore the programs are expected to delivered with existing resources that the group has available at the time of the program.
- [16]In response to Ms Travers' contention that her role will be required for an additional three to four years, the Respondent says that while funding has been approved, no decision has been made to date on what resourcing will be required within the Investment Group for the delivery of the new programs. The Investment Group is currently considering its internal structure to ensure they can deliver the new programs.
- [17]With regard to Ms Travers' contention that the FTE cap is an irrelevant consideration, the Department refers to a direction from government that there be no increase in FTE numbers across the sector. This is a genuine operational reason that is considered for all resourcing requests. The Department requires all recruitment to be reviewed centrally before approvals to ensure FTE numbers are managed appropriately. Where no FTE is available or approval is given, any increase in FTE numbers on a submission must be approved by CBRC. The FTE for Ms Travers' position has been removed from 1 July 2021 because the funding and FTE for the previous investment incentive programs has finished.
- [18]In response to Ms Travers' submission that many parts of her role are not directly related to the funding programs and are ongoing, the Department says that the primary focus of her role is attracting and facilitating investment, involving the assessment of funding applications to deliver industry attraction incentives. Ms Travers' current extension until 30 June 2021 was approved to resource the finalisation of the previous investment incentive programs. Any remaining tasks at the end of the program will be undertaken by other positions in the investment group.
- [19]The Respondent says that Ms Travers' role of Senior Project Officer is a temporary position that was created to assist with the delivery of the previous investment programs and will be abolished now that the programs have closed.
- [20]Further, the Respondent says that Ms Travers has been aware that the continuation of programs has always been dependent on whether or not an extension of the funding is approved for each new financial year. While there was no specified end date for the program, it was known that the end date of the program would be in line with the funding, which was considered to be 30 June of each year until advised otherwise in each respective year. On 20 January of the 2020/21 financial year the decision was made that the programs would close and therefore funding would not continue into the next financial year.
- [21]The position description Ms Travers refers to in her appeal is a generic Senior Project Officer position description which outlines broad key accountabilities. Position descriptions are a recruitment tool and not a task list of everything required to be undertaken in each position.
- [22]With regard to Ms Travers' submission that her role continues to be closely aligned with the Queensland Government's Economic Recovery Plan, the Department says that the plan is linked to the two new funded programs that are to be implemented from the 2021/22 financial year and have a different target audience. A decision was made by the CBRC that the previous funding programs are closed.
- [23]The Department acknowledges and has thanked Ms Travers for the contribution she has made while working in the role, however, Ms Travers has always known that the role was for a limited time and dependent on the approval of extension of the program by CBRC. The decision on 20 January 2021 was that the programs would be closed.
- [24]The AO7 role Ms Travers refers to has been advertised for a temporary period of three months to support the finalisation of the investment incentive programs. Ms Travers' role will not continue to have an ongoing operational requirement once the funding applications have been finalised.
- [25]While Ms Travers' substantive department provided advice to Treasury that if there was no ongoing role for her to be appointed to, she would be required to return to her substantive position, this information was not included as part of the decision-making process for whether or not Ms Travers could be appointed to the higher duties position she had been acting in.
- [26]The delegate made time to have an in-person discussion with Ms Travers to explain the reason for the decision and to give her the opportunity to ask questions. While the delegate encouraged Ms Travers to apply for any Investment Group positions advertised in the future, at the time of the conversation, no decision had been made about what, if any, positions would be advertised in relation to the newly funded programs. It is common practice for an employee who has been a well-respected and productive employee to be encouraged to apply for future positions advertised.
- [27]At the time of the decision being made on 31 May 2021 (communicated via letter dated 1 June 2021), the FTE position of the Investment Group was that they would not be able to engage any additional resources.
- [28]Further, at the time of the decision being made, further advice was sought from Treasury's Chief Financial Advisor about the Investment Group's FTE position and whether there were any FTE likely to be made available to the group for the new funding. At that time, the Chief Financial Officer advised that the Investment Group would be losing 4 FTE from 1 July 2021, and that they would have to manage staffing levels within their reduced FTE allocation.
- [29]With regard to Ms Travers' submission that she has been advised that other temporary roles will be extended until the outcome of the recruitment process is known, the Respondent says that one fixed term temporary public sector employee had their employment extended for a short period so that they still had employment. A further external agency temporary contract employee had their employment extended for the same period. Ms Travers employment is not in jeopardy as she is a permanent public sector employee who would have been returning to her substantive role at the end of the program.
- [30]The Department says that Ms Travers may have been extended for a short period until a decision was made on what, if any, advertising will occur for the newly funded programs, however, that option was not available because Ms Travers' substantive department had already advised that it would not agree to further extensions. The Respondent notes that it is open to Ms Travers to submit a fair treatment appeal about the decision of the substantive department not to agree to further extensions.
- [31]With regard to the delegate's decision making, the Department says:
- The delegate takes a holistic view of the Department when making decisions, accounting for the entire range of workforce planning and operational considerations;
- when making a decision under the Directive, the delegate must consider the Department's budget, FTE cap and FTE levels, and the requirement to effectively manage human resources;
- section 149(4A)(a) of the PS Act states that in in making their decision the chief executive must have regard to the genuine operational requirements of the Department;
- the investment incentives programs funding and FTE ceasing are genuine operational considerations for appropriate management of the department's budget and FTE cap;
- as the agency accountable for Government finances, Treasury is required to ensure they do not exceed their budget of FTE allocations;
- the decision of the Commission was also considered as part of the decision-making process for the review, however the highest weight for making the decision was given to the program funding and FTE ceasing;
- with the information available to the delegate at the time he made the decision, there were no alternative decisions that could have been made that would also ensure he met the requirements of s 25(1)(e) of the PS Act in that he is required to "manage public resources efficiently, responsibly and in a fully accountable way";
- consideration was given to Ms Travers' length of time in the position; however, it was a Government decision that the programs close;
- the primary focus of Ms Travers' role will cease and there is no ongoing requirement for the position to be undertaken.
Ms Travers' submissions
- [32]Ms Travers filed submissions in reply to the Respondent on 28 June 2021.
- [33]Ms Travers repeats her reasons for appeal including that the decision maker did not take into account that CBRC funding was granted to two new funding schemes and that these schemes are the successors of the former funding programs which Ms Travers was working on and which Ms Travers' team will be administering. The Department were required to consider the CBRC funding in accordance with paragraph [19] of the decision of the Commission leading to the decision subject of the appeal.
- [34]Further, Ms Travers again submits that the decision maker takes no account that many parts of her role are not directly related to the grant programs. Further, the decision maker relies on there not being any vacant AO6 positions within Investment Facilitation and Partnerships, and FTE caps implemented, to determine that the higher level position will not have the FTE available after 30 June 2021.
- [35]The Respondent says that it took into account the previous decision of the Commission which stated that the purpose of the delay was to determine if CBRC funding would be granted in relation to projects that the appellant would be working on.
- [36]Ms Travers says that on 20 May 2021 the team was advised that the CBRC submission had been approved and the full funding amount had been granted to administer the two new schemes. The team were also advised that the funding amount included support for resourcing and administering the schemes.
- [37]The two new schemes are the successors of the former Advance Queensland Industry Attraction Fund and Jobs and Regional Growth Fund programs and are expected to be delivered for four years or until all funds are considered fully allocated.
- [38]Ms Travers says that her role within the investment support team would be to deliver these schemes as part of her existing suite of duties, indicating that her AO6 Senior Project Officer position would continue for a further three or four years on top of the four years she has already served, but for her being recalled to her substantive role.
- [39]Ms Travers contends that she is a Senior Project Officer and it is not unusual that some projects will end and others will begin, but that these projects exist within the same ambit or intent of work, that is, within her role and the role of her team of attracting new investment and jobs to Queensland, such that her role is continuing.
- [40]Ms Travers says that the Respondent's submission that the funding for the two new schemes will be delivered from existing resources is inconsistent with her being told that it was the intention of Treasury to advertise all temporary positions currently allocated in the Investment Incentives team including her role.
- [41]With regard to the Respondent's submission that the two schemes have different target markets, Ms Travers contends that this is irrelevant as the key component of her role is to attract and create investment for Queensland. Both the former and the new schemes have been designed to diversify and strengthen the economy. It is irrelevant what the target market is, as it is directly relevant to her role and team.
- [42]Ms Travers' team, the Investment Group, is tasked to deliver on the work which has commenced for the two new schemes, and Ms Travers contends it is part of her role.
- [43]Ms Travers says that a review of the internal structure cannot be relied upon by the Respondent as there has been no consultation with staff or the Unions with respect to the Investment Group or who will be administering the two programs.
- [44]With regard to the Respondent's submission that the FTE for Ms Travers' position has been removed from 1 July 2021 because the funding and FTE for the previous investment incentive programs has finished, Ms Travers says that she is not aware of this and the previous funding programs are still being worked on and have not officially been closed down.
- [45]Ms Travers says that at no time was she advised that her position would be abolished due to the former programs ending. She understands that there has been a temporary recruitment process but she is not being extended in her role as she is due to return to her substantive role.
- [46]Ms Travers says that to say her role has been abolished when two new funding schemes have been announced is a misrepresentation of the facts. Given that Ms Travers has already undertaken the role for four years and there has been funding granted for an estimated three to four years, Ms Travers' role would be required to do this work. The Respondent has decided to abolish the position because Ms Travers has been recalled to her substantive position.
- [47]Ms Travers says that the temporary AO7 role which has been advertised is not to support finalising the program but due to ongoing work and the need to put someone on to complete this work. This is further evidence that the programs are not being delivered within existing resources and FTE numbers.
- [48]Ms Travers says that she was given the impression that there will be a recruitment process undertaken for her role and that for the Department to state that at no time has any decision been made about what positions, if any, would actually be advertised is very conflicting information.
- [49]Ms Travers says that her matter can be distinguished from other matters of this kind in relation to FTE funding caps being used as a genuine operational reason to not permanently convert or appoint an employee. Ms Travers says that in this case, she is a a project officer undertaking project work, in which new projects have been approved for funding and that the project nature of the work cannot be a genuine operational requirement that the role is not ongoing.
- [50]Ms Travers makes reference to the consideration of genuine operational requirement by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203:
The phrase '…genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include 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 '…the position at the higher classification level.'[2]
- [51]Ms Travers contends that there is an authentic need for the AO6 Senior Project Officer position to continue by having regard to the effective, efficient and appropriate management of the public resources of the department, given her years of experience, contacts and corporate knowledge is invaluable to the role. To not appoint Ms Travers and instead appoint another employee on a temporary basis given the work will still be there to be done in the two new projects, is a misuse of government resources, in the context that employment on tenure is the default basis of employment in the public sector.
- [52]Ms Travers contends that the role is being kept temporary to avoid the funding cap.
- [53]Ms Travers says that it would be inconsistent with the objects of the Act and the purpose of the Directive, for the Department to continue the higher duties arrangement in circumstances where there is a documented need for the role to be performed by a public service officer on tenure at that level.
Consideration
- [54]Ms Travers was seconded to a temporary higher duties position for the purpose of implementing two industry attraction programs. As is outlined to Ms Travers in the decision letter of 1 June 2021, in January 2021 a decision was made to close the programs to new applications and as such, the activity associated with the programs will largely be completed by 30 June 2021. Ms Travers' employment was extended until 30 June 2021, the end date of the programs. At cl 4.2(c) of the Directive, performing work for a particular project or purpose that has a known end date is a circumstance supporting temporary engagement to a role.
- [55]From what I can ascertain from the submissions, a temporary AO7 role has been advertised and the purpose of this role will be to finalise any work related to the closure of these two programs. Final applications for the previous program must be finalised by the end of July 2021. It seems that even if there was ongoing work associated with the programs due to close it is of a short term nature only.
- [56]The letter to Ms Travers indicates that the Respondent also considered the availability of vacant AO6 positions within Investment Facilitation and Partnerships and the restrictions associated with the FTE cap. The FTE cap and the lack of vacant positions are given as reasons that there is no FTE available for the position Ms Travers is acting in after 30 June. I assume this also means that the Respondent, beyond what was required by the Directive, gave consideration to the creation or identification of a different permanent position for Ms Travers to be appointed to and determined that this was not viable.
- [57]The decision provided to Ms Travers is consistent with the submission of the Respondent that the AO6 position she has been acting in is being abolished.
- [58]Ms Travers contends that while the programs she was working on are closing, the programs are being succeeded by two new programs that will continue to be delivered by her team. The Respondent's position is that when the decision was made not to convert Ms Travers' employment, the advice of the Chief Financial Officer was that the Investment Group would be losing four FTE from 1 July 2021. Further to this, the submissions of the Department are that a decision had not yet been made as to what, if any, advertising will occur for positions to support the newly funded programs.
- [59]While decisions about resourcing for the new programs are made, the employment of two temporary employees has been extended as their employment is in jeopardy. I accept the submissions of the Respondent that Ms Travers has a substantive permanent role to return to and that there was no need for it to consider the hypothetical option of extending her temporary employment to provide some employment security. I also accept that the Department may have considered a short extension of Ms Travers' temporary appointment to the higher classification position pending a decision being made about what roles might be advertised, however, this was not an option as Ms Travers has been recalled to her substantive position.
- [60]Ms Travers clearly enjoys the higher classification position and there is no question regarding the contribution she has made and her merit for the role. I accept that it is frustrating for Ms Travers to not have an option to continue acting in a higher classification position and that she has been recalled to her substantive role, however this is not an appeal about the decision to not allow Ms Travers to access a further acting opportunity on secondment and to recall her to her substantive role.
- [61]The submission of the Department is that the higher duties classification position Ms Travers has been undertaking is being abolished. It may be that a decision is made to create a new AO6 temporary position to support the new programs, however, even if it is based on the same role description, it will be a different higher duties classification position, created for the purpose of delivering the new programs. Decisions of the Commission have made it clear that the Act and Directive provide an opportunity for the employee to be appointed to the higher duties position that they are acting in, not another position at the classification level.
- [62]In my previous decision with regard to Ms Travers' employment, I asked that a review be undertaken when there was more clarity with regard to the programs being implemented and whether there was a need for Ms Travers' to undertake the position. While Ms Travers believes there will continue to be work for her to do in relation to the new programs, at the time of the decision and of writing submissions, no decisions had been made about ongoing roles.
- [63]Ms Travers submissions that she has developed corporate knowledge and skills and has developed a wide network of contacts are noted. I also note the Ms Travers says that it is not an efficient use of resources for the Department to appoint another temporary officer without her experience to the role. However, the performance of Ms Travers in the role is known to the Respondent who has determined at this stage, that it has no genuine operational requirement to employee her in the higher classification role beyond 30 June 2021.
- [64]It is open to Ms Travers to apply for other temporary roles, either those which may be advertised associated with the new programs or elsewhere. If a decision is made not to release Ms Travers from her substantive role, she is able to appeal that decision under the PS Act.
- [65]In the absence of the AO6 position Ms Travers has acted in for the past four years existing after 30 June 2021, there is no higher duties position to appoint her to. This means that permanent appointment to the position is not viable or appropriate.
- [66]For the decision maker to appoint Ms Travers to the higher classification position in the absence of any decision about what resources would be available to support the program would not meet the requirement to manage public resources in an efficient, responsible and fully accountable way as required by s 25(1)(e) of the PS Act.
- [67]There is no doubt that there will be a need for work related to the implementation of the newly funded programs to be undertaken. However, the purpose of this appeal is to decide if the decision communicated on 1 June 2021 was fair and reasonable, and without any knowledge of the decisions to be made regarding staffing of the program I am unable to determine that Ms Travers should have been permanently appointed to the higher duties position which it had been determined would conclude on 30 June 2021.
- [68]As no decision has been made regarding what positions will be required to support the new programs, and on the advice of the Department at the time of the decision that it would be losing four FTE, it was reasonable for the delegate to decide that the genuine operational requirements of the department precluded Ms Travers from being appointed to the position at the higher classification level.
- [69]The decision appealed against is upheld and the appeal is dismissed.