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CITE

Unreported Judgment

Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 26Power IC
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Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 26

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 026
PARTIES:	Schloss, Janelle (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent)
FILE NO:	PSA/2020/411
PROCEEDING:	Public Service Appeal – Conversion to higher classification level
DELIVERED ON:	27 January 2021
MEMBER:	Power IC
HEARD AT:	On the papers
OUTCOME:	Pursuant to s 562C(1)(a) of the *Industrial Relations Act 2016* (Qld), the decision appealed against is confirmed.
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the incumbent of the role was returning – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’
LEGISLATION:	Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 27 and 149C Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7
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) Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

[1]
Ms Janelle Schloss (the Appellant) is permanently employed as an AO2, Administrative Officer, within the Beaudesert Child Safety Service Centre (CSSC), a division of the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (the Respondent).

[2]
The Appellant has been acting in a higher classification role as an AO3, Administration Officer within the Beaudesert CSSC (the 'higher classification level position') since 15 October 2018.

[3]
The Appellant appeals a decision by Ms Erin Earle, Regional Director, Logan/Beaudesert District of the Respondent, dated 4 November 2020, to deny the request made by the Appellant to be permanently appointed to the higher classification level position in which she had been acting.

[4]
The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).

Appeal Principles

[5]
Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

[6]
The appeal must be decided by reviewing the decision appealed against.^[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.^[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,^[3] but involves a review of the decision arrived at and the decision‑making process associated therewith.

[7]
The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.^[4] The issue for determination is whether the decision by Ms Earle to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.

What decisions can the Industrial Commissioner make?

[8]
In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(a)
confirm the decision appealed against; or

(b)
set the decision aside and substitute another decision; or

(c)
set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

[9]
In the appeal notice, the Appellant contends that:

(a)
the decision-maker has provided no rationale regarding the operational requirements relevant to the decision;

(b)
neither the PS Act nor the Directive require a position to be vacant for the conversion to proceed; and

(c)
the substantive employee of the position in which the Appellant is currently backfilling may also meet the requirements for a conversion into the position in which they are seconded thus creating a vacancy at AO3 level.

Decision to be reviewed

[10]
On 4 November 2020, Ms Earle informed the Appellant of the decision in response to her request for a review. In doing so, Ms Earle stated:

I have considered your request and have determined that, due to the genuine operational requirements of the agency, you are to continue to be engaged according to the terms of your existing higher duties arrangement. Upon review of your higher duties arrangement I established the substantive appointee of the position you are backfilling is due to return to the position in February 2021.

Currently you have been engaged at the higher classification level for a total of 24 months. Your engagement at this higher classification has been extended 10 times.

As a result of this decision not to convert you to the higher classification level, you will continue in the role of Administration Officer until 31 January 2021 when the substantive incumbent officer is scheduled to return from their relieving.

…

Relevant provisions of the PS Act and the Directive

[11]
Section 149C of the PS Act provides:

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

…

(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.

(5)
If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-

(a)
reasons for the decision; and

(b)
the total continuous period for which the person has been acting at the higher classification level in the department; and

(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.

(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.

…

(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-

(a)
the period stated in an industrial instrument within which the decision must be made; or

(b)
if paragraph (a) does not apply-28 days after the request is made.

[12]
The Directive relevantly provides:

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.

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.

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.

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

Submissions

[13]
The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.

Respondent's submissions

[14]
The Respondent filed the following submissions in response to the Appellant's appeal notice, in summary:

the Appellant is a permanent employee of the Respondent and is substantively employed in the role of AO2 Administrative Officer, within the Beaudesert CSSC, as of 7 August 2017;

in accordance with clause 4.2 of the Directive, the Appellant is currently assuming the duties and responsibilities of a higher classification level role, that being the AO3 Administration Officer, due to the substantive employee performing another role within the Respondent;

the substantive employee has been performing another role within the Respondent since 15 October 2018 and the Appellant has subsequently been backfilling in this role since 15 October 2018;

the Appellant has been extended ten times in the role to coincide with the substantive employee's movements;

the Appellant's relieving arrangements in the AO3 Administration Officer role is considered appropriate as the temporary engagement of the Appellant at the higher classification level relates to backfilling an existing employee performing another role. In these circumstances, permanent appointment to the role was not a viable option and as such, the Appellant has been engaged in a temporary capacity in accordance with clause 4.2 of the Directive;

the Respondent has developed DYSYW Workforce Guidelines – Managing the financial impacts of COVID-19 (Workforce Guidelines). The Respondent refers to section C of these guidelines which provide that increases to the frontline workforce above the approved full time equivalent (FTE) cap (3,520 FTE) are only to be considered where an existing vacant funded FTE or a non-frontline offset has been identified;

the delegate determined to refuse the conversion request based on the genuine operational requirements of the Respondent at that point in time. The Appellant was engaged to relieve in a higher level role of AO3 Administration Officer due to the existing employee performing another role within the Respondent. At the time of the decision, the existing employee was and still is expected to return to the role. In accordance with s 98(1)(b) and (d) of the PS Act, it was relevant for the delegate to consider whether, in terms of managing the Respondent in a way that promoted the effective, efficient and appropriate management of public resources, the Appellant should not be appointed to the higher classification level position when it is anticipated that the incumbent is likely to return to that position. Further, in accordance with the Respondent's Workforce Guidelines, the delegate has no authority to increase the frontline workforce above the approved FTE allocation to facilitate an increase in the establishment footprint and convert the Appellant to the higher level role;

in accordance with s 149C(5) of the PS Act, the delegate provided the Appellant with a notice stating:

(a)
the reasons for the decision, specifically, that the request could not be approved because the position the Appellant was relieving in was not substantively vacant and the incumbent is expected to return to their role on 1 February 2021;

(b)
the total continuous period and number of extensions, specifically, the delegate noted that the Appellant had been engaged in the higher classification level position for a total of 24 months and that she had been extended ten times; and

the delegate does not dispute that the Appellant is eligible for appointment to the higher classification level position having regard to the merit principle.

Appellant's submissions in reply

[15]
The Appellant filed submissions in response to the Respondent's submissions. A summary of those submissions are as follows:

the decision-maker has erred in making the decision as she has erroneously applied an irrelevant criterion for eligibility, that is, a role must be substantively vacant in order to be eligible for appointment. In doing so, she has failed to have regard to the mandatory considerations under s 149C(4A) of the PS Act;

the decision-maker erred in determining that the Appellant was not eligible to be appointed to the AO3 role as it is substantively owned. There is no such requirement in the PS Act or the Directive that speaks to the need for a role to be substantively vacant for an employee to be eligible to be appointed following a s 149C request;

the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 (Qld) evince a clear intention that the only matters to be considered are the genuine operational requirements of the Respondent. Accordingly, if it was intended that any other eligibility or threshold requirements existed, they would have been stated in the same way that the eligibility provisions and exclusionary provisions are listed;

in contrast to the clear codification of mandatory criteria into the PS Act, the circumstances that inform when it may be viable or appropriate for the temporary engagement of an employee are only outlined in the Directive under 'Principles' in clause 4.2;

the inclusion of these circumstances is indicative that these are the type of considerations a decision-maker should take into account when assessing the genuine operational requirements in a s 149C request. They are not the stated factors that a decision-maker must have regard to in the same way that they must have regard to the criteria in s 149C(4A) and nor are they an eligibility requirement;

the fact that a role is not substantively vacant may be a consideration as to why a permanent appointment should not be made. It is not, however, a threshold question, nor should it be a blanket reason to decline an appointment without also a holistic consideration of the operational requirements of the Respondent;

it has been a matter of discussion amongst the Respondent's service staff, in particular, the administration teams, that AO2s frequently undertake AO3 responsibilities alongside AO3 colleagues on a regular basis;

this operational requirement is evident and pervasive, and the establishment of a baseline classification of AO3 at a service centre level is one of the subject matters set down for an upcoming arbitration in February 2021;

as per the reasoning in Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors,^[5] where the factors to be taken into account are not expressly stated, they must be implied from the subject matter, scope and purpose of the Act. Accordingly, the term 'genuine operational requirements of the department' should be implied from the subject matter, scope and purpose of the PS Act and the Directive. The decision-maker has not had proper regard to the extent of the genuine operational requirements of the Respondent which must be taken into account;

the decision-maker has not provided the material findings of fact and the evidence relied upon in coming to the decision. This is required by clause 7.1 of the Directive and s 27B of the Acts Interpretation Act 1954 (Qld); and

a consideration of the operational requirements of the Respondent would include a consideration of maximising the prompt, efficient and effective delivery of services by the Beaudesert CSSC Business Support Team, which will be best served by appointing the Appellant to the AO3 level.

[16]
The Appellant outlined the skills and knowledge she brings to the role and demonstrated commitment to departmental policies along with the capacity to deal with a challenging work environment. The Appellant also notes that no performance concerns have been raised and as such, satisfying the merit principle pursuant to s 27 of the PS Act.

Consideration

[17]
To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.

[18]
The decision-maker determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement. The reason provided for not appointing the Appellant to the higher classification level position on a permanent basis was based on genuine operational requirements with the substantive employee returning to the role.

[19]
The Appellant believes the Respondent has erred in making the decision on the basis that the Respondent has failed to have regard to the mandatory considerations under s 149C(4A) of the PS Act.

[20]
The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A):

(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.

Genuine operational requirements of the Department

[21]
I accept the Appellant's submission that neither the PS Act nor the Directive include a requirement that the role be substantively vacant as a prerequisite for appointment to the higher classification level position. However, 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'.

[22]
Clause 4.2 of the Directive outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including:

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.

[23]
The circumstances outlined in clause 4.2 do not replace the requirement for the decision-maker to have regard to the genuine operational requirements of the Respondent. They do, however, provide some guidance as to the circumstances in which it may be appropriate to utilise a temporary engagement rather than a permanent appointment. The circumstances noted above are similar to this matter, with the existing permanent employee absent to perform another role within the Respondent.

[24]
As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),^[6] the phrase '…genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, 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 '…the position at the higher classification level.'^[7]

[25]
In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant should be appointed to the higher classification level position when the incumbent was due to return to that position. I accept that the Respondent will not have a genuine operational requirement for the Appellant to continue in this role once the substantive employee returns to work in their substantive position.
[26]
The Appellant submitted that the substantive employee of the position in which the Appellant is currently backfilling may also meet the requirements for a conversion into the position in which they are seconded, thus creating a vacancy at AO3 level. This is speculative and no evidence has been submitted confirming that the there is an impending vacancy in the relevant position.

[27]
I accept that the Appellant has performed meritoriously in the AO3 role and satisfies the merit principle pursuant to s 27 of the PS Act. The Directive, however, does not require the Respondent 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

[28]
Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level.

[29]
On the basis that no previous decisions have been made pursuant to s 149C of the PS Act, it was not necessary to demonstrate that such regard had been given in this matter.

Compliance with requirements of s 149C of the PS Act

[30]
The Respondent is required to comply with s 149C(5) of the PS Act, which provides as follows:

(5)
If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—

(a)
reasons for the decision; and

(b)
the total continuous period for which the person has been acting at the higher classification level in the department; and

(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.

[31]
The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for 24 months following ten extensions where the substantive employee has been relieving in alternative positions. As mentioned above, no previous decisions have been made under this section of the PS Act and so s 149C(5)(d) was not included in the decision. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act.

[32]
In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was fair and reasonable.

Order

[33]
I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

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

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] (1986) 162 CLR 24.

[6] [2020] QIRC 203.

[7] Ibid [40].

Editorial Notes

Published Case Name:
Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
Shortened Case Name:
Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)
MNC:
[2021] QIRC 26
Court:
QIRC
Judge(s):
Power IC
Date:
27 Jan 2021

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Brandy v Human Rights & Equal Opportunity Commission	View on:JADE(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	View on:JADE[1995] HCA 10	2 citations Jump To Cite 1 - [1995] HCA 10 Cite 2 - [1995] HCA 10
Minister for Aboriginal Affairs v Peko Wallsend Ltd	View on:JADE(1986) 162 CLR 24	2 citations Jump To Cite 1 - (1986) 162 CLR 24 Cite 2 - (1986) 162 CLR 24
Morison v State of Queensland (Department of Child Safety, Youth and Women)	[2020] QIRC 203	3 citations Jump To Cite 1 - [2020] QIRC 203 Cite 2 - [2020] QIRC 203 Cite 3 - [2020] QIRC 203

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Schloss v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 26