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Gavel v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 262

Gavel v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 262

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Gavel v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 262

Gavel, Kathryn

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO:

PSA/2020/301

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

30 July 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

  ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  1. The decision that Mrs Gavel not be converted to the higher classification position is set aside and another decision is substituted; and
  1. Mrs Gavel be permanently appointed to the position of PO4 Senior Designer.

CATCHWORDS:

PUBLIC SERVICE – APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the appellant was not permanently appointed – consideration of 'the position' – whether respondent provided adequate statement of reasons – where appellant performing work on 'particular project' – consideration of 'genuine operational requirements'

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, s 27B

Directive 08/17 Temporary employment

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 4, cl 5, cl 6, cl 7, cl 8, cl 11

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 564, s 562B, s 562C, s 567

Public Service Act 2008 (Qld) s 120, s 149, s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

CASES:

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

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Katae v State of Queensland & Anor [2018] QSC 225

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Mrs Kathryn Gavel (the Appellant) has filed an appeal against a higher classification conversion decision dated 20 October 2020 (the decision). 
  1. [2]
    The decision was contained in correspondence from the Regional Director (Central Queensland) for the Department of Transport and Main Roads, State of Queensland (the Department; the Respondent). 
  1. [3]
    Within the Department, Mrs Gavel is substantively employed in the role of PO3 Designer in the Technical Services team of the Program Delivery and Operations Branch, Fitzroy District.[1] 
  1. [4]
    However, Mrs Gavel has been continuously performing the duties of PO4 Senior Designer in the Major Planning Projects team of the Program Delivery and Operations Branch, Fitzroy District since 6 November 2017 (the PO4 Position).[2]

Jurisdiction

Decision against which an appeal may be made

  1. [5]
    On 23 September 2020, Together Queensland made a written request for conversion on behalf of Mrs Gavel. In accordance with s 149C(4) of the Public Service Act 2008 (PS Act), the Department decided the request on 20 October 2020. 
  1. [6]
    The decision subject of this appeal is the Department's decision not to permanently convert Mrs Gavel's employment to the PO4 Position currently held. 
  1. [7]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision "…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years."
  1. [8]
    Section 197 of the PS Act allows for an appeal to be heard and decided by the QIRC.  An appeal is initiated by providing the Industrial Registrar with an Appeal Notice stating the details of the decision being appealed against and the reasons for the appeal.
  1. [9]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Mrs Gavel meets that requirement.
  1. [10]
    I am satisfied that the conversion decision made by the Department is able to be appealed.

Timeframe for appeal

  1. [11]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [12]
    As the decision was given on 20 October 2020 and the Appeal Notice was filed on 10 November 2020, I am satisfied that the appeal was filed by Mrs Gavel within the required timeframe.

Appeal principles

  1. [13]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [14]
    The appeal is not conducted by way of re-hearing,[3] but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[4] 
  1. [15]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[5]
  1. [16]
    The issue for my determination is whether the decision not to convert Mrs Gavel's employment status to the higher classification level was fair and reasonable in the circumstances.[6]

What decisions can the QIRC Member make?

  1. [17]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. Confirm the decision appealed against; or
  1. Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  1. Set the decision aside and substitute another decision.

The decision

  1. [18]
    The decision maker conveyed the following reasons for refusing Mrs Gavel's conversion request:[7]
  • The PO4 Position remains temporary "as it was specifically created for the Rockhampton Ring Road (RRR) Plan and Preserve and will no longer be required at the completion of the current temporary arrangement as the project will move into the construction phase."
  • The PO4 Position is not vacant nor ongoing. It is expected the position will be delimited when the stage of the project finalises.

Appeal Notice

  1. [19]
    In the Appeal Notice filed 10 November 2020, Mrs Gavel contended that the Department has erred in not giving due consideration to its genuine operational requirements. Mrs Gavel argued the Department has determined not to convert her on the basis that the PO4 Position is not vacant or ongoing and there may not be a continuing need for her in that position. That is, despite those factors are not requirements for conversion.

Submissions

  1. [20]
    In accordance with the Directions Order issued on 10 November 2020, the parties filed written submissions.
  1. [21]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Appellant's submissions

  1. [22]
    In further support of her Appeal Notice, Mrs Gavel's submissions filed 17 November 2020 can be summarised as follows:
  • Section 149C(4A) of the PS Act requires the Department to have regard to its genuine operational requirements when making a conversion decision. Failure to do so renders the decision unfair and unreasonable. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.[8]

  • The factors to be taken into account that make up 'the genuine operational requirements of the department' are not expressly stated and should be implied from the subject matter, scope and purpose of the PS Act, that is, the broader context in which the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20) operate in.
  • The decision maker has not provided the material findings of fact and the evidence relied upon in coming to the decision as required under cl 7.1 of Directive 13/20 and s 27B of the Acts Interpretation Act 1954 (Qld).
  • It is well settled from decisions such as Katae v State of Queensland & Anor[9] and other unreported decisions of the QIRC that a conversion should not be denied solely because the role was initially created for a specific project, purpose or another of the circumstances listed in cl 4.2 of Directive 13/20. At its highest, the circumstances listed in cl 4.2 may assist with consideration of the mandatory criteria under s 149C(4A) of the PS Act.
  • Consideration of the operational requirements "would include a consideration of the prompt and efficient project delivery by the Major Planning Projects unit." Mrs Gavel submits that appointing her to the PO4 Position would best serve this consideration.
  • Converting Mrs Gavel to permanent on the basis she will return to her substantive unit in the PO4 Position come 1 July 2023 would still meet the genuine operational requirements for the Department now and into the future. There is a current need for an additional PO4 Senior Designer in Mrs Gavel's substantive unit to assist with the ever-increasing program of works.
  • Converting Mrs Gavel to permanent in the PO4 Position would benefit the Department by providing further resource capability and opportunities for growth within the Department's Designer pool. There are several PO2 and PO3 Designers within Queensland seeking career progression, but no positions are available for them to do so within the Fitzroy District. Over time, this will affect the retention and attraction of quality staff.
  • There are permanent ongoing PO staff employed in Major Planning Projects so if there is a need for their ongoing employment beyond the end of the present project then Mrs Gavel's skills and expertise are equally as transferrable to the next major planning project that the Department undertakes.              

Respondent's submissions

  1. [23]
    In furtherance of the decision letter, the Department's submissions filed 24 November 2020 can be summarised as follows:
  • In Holcombe v State of Queensland (Department of Housing and Public Works), Commissioner McLennan concluded:

The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to ‘the position’ occupied by the employee way of secondment at the time of seeking the review. It is not an unconstrainted review into similar positions, such as positions with the same title and classification. The more broadly ranging review that Mrs Holcombe is seeking is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive.[10]

  • Between November 2018 and January 2019, the Respondent received notice that the Rockhampton Ring Road Plan and Preserve Project was accelerated, and further funding was committed by both the state and federal governments. As a result of this further funding, a new temporary higher duties arrangement was offered to Mrs Gavel for the defined period of 30 June 2020 until 1 July 2023.
  • The PO4 position "was created to only undertake the design process for the Rockhampton Ring Road Plan and Preserve Project to the scope of the project and nature of the specialised skills required at a PO4 level." The business need for a person to perform the PO4 position will cease once the project moves to construction phase in July 2023.
  • The decision does not breach the requirements of s 149C of the PS Act. Rather, the request was reviewed in accordance with s 149C and Directive 13/20.
  • Further to the extract outlined in Mrs Gavel's submissions, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, Mason J said (citations omitted):

It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.[11]

  • Clause 6.2 of Directive 13/20 states:

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.

Clause 6.2 does not define the factors to be considered and therefore the decision maker must then exercise their discretion to determine the genuine operational requirements in exercising their statutory power. Further, when considering Mrs Gavel's request, the decision maker considered and applied cl 4.2(c) of Directive 13/20 which states:

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:

  …

  (c) to perform work for a particular project or purpose that has a known end date

  • The superseded Directive 08/17 Temporary employment (Directive 08/17) to which Mrs Gavel referred to in her submissions is irrelevant to a request for appointment under Directive 13/20.
  • The decision provided the considerations and the reasons for the decision in accordance with cl 7.1 of Directive 13/20.

Appellant's submissions in reply

  1. [24]
    In response to the Department's written materials above, Mrs Gavel's reply submissions filed 1 December 2020, can be summarised as follows:
  • Having regard to the operational requirements of the Department would involve a consideration of whether there is a requirement for the functions and duties and of the position Mrs Gavel occupies to be utilised across the work unit and Department more broadly, as that is the clearly stated language used in the PS Act.
  • It is not Mrs Gavel's submission that she should be considered for appointment to another Senior Designer position, as that outcome is not within the scope of Directive 13/20 or s 149C of the PS Act. However, the Department has erred in failing to consider whether the operational requirements of the Department more broadly would be served by appointing Mrs Gavel to the higher duties roles as there is a need for the identical capabilities she provides to the Department both for future project work and in established permanent work units.
  • A consideration of operational requirements would include an assessment of the fact that two of the three current PO5 Principal Designers and one of the two current PO4 Senior Designers are nearing retirement age and some have notified the Department of their intention to retire in the next five years. The Department should take into consideration future resourcing requirements to fill these roles and be up-skilling current designers to ease the burden if several employees choose to retire around the same time.
  • The fact that there is already a permanent PO5 Principal Engineer employed in Major Planning Projects demonstrates that the Department foresees an ongoing need for Major Planning Projects within the Fitzroy District.

 Respondent's Email

  1. [25]
    In correspondence dated 3 December 2020, the Department responded to Mrs Gavel's reply submissions, relevantly stating, "The decision maker is not required to anticipate possible future changes to the team such as retirements of employees in the next 5 years or other possible future projects that may arise."

Legislation

  1. [26]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level position, in the above circumstances, is contained in the IR Act, PS Act and in Directive 13/20.
  1. [27]
    Section 149C of the PS Act provides (emphasis added):

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

     (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle.

    (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.

   (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

     (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—

  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.

   (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

  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.

   (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.

   (7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.

   (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.

  1. [28]
    Further, section 194(1)(e)(iii) of the PS Act provides (emphasis added):

194 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (e)
    a decision (each a conversion decision)—
  1. (iii)
    under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
  1. [29]
    Directive 13/20 relevantly provides:

 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.

 4.3 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

 5. Employee may request to be appointed at the higher classification level

 5.1 Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.

 5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:

  1. (a)
    have been seconded to or assuming the duties and responsibilities of the higher classification level
  1. (b)
    for a continuous period of at least one year
  1. (c)
    be eligible for appointment to the higher classification level having regard to the merit principle.

 5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:

  1. (a)
    one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  1. (b)
    each subsequent year where the employee continues their engagement at the higher classification level in the same role.

 5.4 An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.

 5.5 The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

 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:

  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 terMrs 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.

 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.

 8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.

  …

 11. Definitions

  Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

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.

Non-industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

  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. [30]
    The Department contended that the superseded Directive 08/17 to which Mrs Gavel referred to is irrelevant. I disagree for the reason that cl 12 of Directive 13/20 states that directives relating to fixed term temporary employment do "not form part of the directive but may assist in the interpretation and application of the directive and should be considered by decision makers."
  1. [31]
    Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[12]
  1. [32]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [33]
    The stated purpose of Directive 13/20 is (emphasis added):
  1. Purpose

 1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.

 1.2 This directive:

  1. (a)
    highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
  1. (b)
    supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
  1. (c)
    sets out procedures for requests and decisions.

Consideration

  1. [34]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [35]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Interpretation

  1. [36]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [37]
    In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of Directive 13/20 is to be preferred to any other interpretation.
  1. [38]
    In that regard, I recognise that one of the stated purposes of Directive 13/20 is to support "…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle."[13]

Decision criteria that must be considered

  1. [39]
    The PS Act and Directive 13/20 provide that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  1. Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle;
  1. The genuine operational requirements of the department; and 
  1. 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.

 Merit

  1. [40]
    There is no dispute between the parties with respect to Mrs Gavel's merit. 

What is 'the position' subject of this appeal?

  1. [41]
    Section 149C(1)(c) of the PS Act provides that s 149 applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level.
  1. [42]
    The power afforded to the Department to permanently appoint Mrs Gavel is confined to the position into which she is performing at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
  1. [43]
    In this particular case, there is no dispute between the parties that Mrs Gavel has been continually performing in the position (that is, the same PO4 Senior Designer position within the same division of the Department) since 6 November 2017.
  1. [44]
    There did appear to be some dispute about whether Mrs Gavel was requesting to be appointed into another PO4 Senior Designer position. In her reply submissions, Mrs Gavel clarified that she accepts she should not be considered for appointment to an alternative PO4 Senior Designer Position, rather that the Department should have considered whether her current PO4 Senior Designer Position could be utilised elsewhere in the Department (i.e., both for future project work and in established permanent work units).
  1. [45]
    I note that on pg 1 of the Description for Senior Designer (Major Planning Projects) annexed to the Department's submissions, it states:

In the role of Senior Designer (Major Planning Projects) you will operate in a multidisciplinary team environment and participate in the management and delivery of planning and design projects as components of transport infrastructure projects and provide expert technical advice and support to the transport infrastructure functional areas in the Region.

  1. [46]
    The scope of the above Description is broad and indicates the PO4 Position held by Mrs Gavel is not confined to the project currently undertaken. Notwithstanding, as reasoned in Holcombe v State of Queensland (Department of Housing and Public Works (emphasis added):

The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.[14]

  1. [47]
    I note that both Mrs Gavel's substantive position and the PO4 Position fall within the Program Delivery and Operations Branch of the Fitzroy District Unit.[15] However, the PO4 Position specifically falls under the Major Planning Projects team.
  1. [48]
    In light of the above, the position subject of the review is that of PO4 Senior Designer within Major Planning Projects of the Program Delivery and Operations Branch, Fitzroy District.

Statement of reasons

  1. [49]
    Mrs Gavel referred to cl 7.1 of Directive 13/20 and s 27B of the Acts Interpretation Act 1954 (Qld) which require that the written notice set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.
  1. [50]
    Mrs Gavel argues the decision maker failed to adhere to such requirements. I disagree with Mrs Gavel's submission as it appears the Department has engaged in the entire review process, notwithstanding the fact it may have neglected to prescribe some considerations that Mrs Gavel contends it should have.
  1. [51]
    The decision refers to the required criteria under Directive 13/20 and there is consideration within that decision of relevant factual matters such as the length of time Mrs Gavel has been engaged at a higher duties level, the potential continuing need for Mrs Gavel to be employed in the PO4 Position and a consideration of genuine operational reasons. The decision takes into consideration the expectation that the PO4 Position will cease upon expiry of the current phase of the project and explains why it considers the position should remain temporary in light of that expectation.
  1. [52]
    Mrs Gavel submits the Department did not have regard to genuine operational requirements when making the decision and referred to the extract of Minister for Aboriginal Affairs v Peko-Wallsend Ltd outlined at [22] above. In doing so, Mrs Gavel contended the scope of genuine operational requirements to be considered is broader than what was considered by the Department.  The Department noted that Mrs Gavel's submissions omitted a relevant statement from that case which is extracted at [23] above. In that regard, I accept the Department's submissions that in the absence of a definition of factors to be taken into consideration with respect to genuine operational requirements, the factors to be considered are largely at the discretion of the Department.
  1. [53]
    I have concluded the Department did have regard to genuine operational requirements. Although the Department's consideration could have been broader in scope, I do not accept the Department failed to set out its findings and refer to the material on which those findings were based. I will now consider whether those findings were fair and reasonable in the circumstances.

'Genuine operational requirements' of the Department

  1. [54]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):

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

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

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

[39] In respect of the Directive, cl 4.2 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.  That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:

  • 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; or
  • 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.

[40] The phrase 'genuine operational requirements of the department' in s 149(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.'[16]

  1. [55]
    The foundational dispute between the parties is whether or not the Department's determination that there were genuine operational requirements that prevented Mrs Gavel's permanent conversion was fair and reasonable in the circumstances. 
  1. [56]
    For the reasons that follow, I find that the Department's decision was not fair and reasonable.
  1. [57]
    Pursuant to cl 4.2(c) of Directive 13/20, if an employee is performing work 'for a particular project or purpose that has a known end date' then that fact may lend itself to support temporary engagement at the higher classification level. The decision letter stated that Mrs Gavel was temporarily employed in the PO4 Position to perform work necessary to complete a phase of a project that has an end date of 1 July 2023 and that on completion of that phase, there will no longer be a continuing need for Mrs Gavel to be engaged in the PO4 Position.
  1. [58]
    I accept the Department's submission that pursuant to cl 4.2(c) of Directive 13/20, the circumstances of Mrs Gavel's employment do support an argument for temporary engagement. However, as rightly pointed out by Mrs Gavel, that is a circumstance that may assist consideration of the mandatory criteria - conversion should not be denied on that basis alone. 
  1. [59]
    Clause 4.2 of Directive 13/20 provides that "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. [60]
    Mrs Gavel has contended that permanent conversion to the PO4 Position would contribute to prompt and efficient project delivery by Major Planning Projects. Mrs Gavel's submissions indicate that although she may not be needed in the current project past the cessation date, there is utility in permanently converting her for required functions and duties within the team. I accept there will be a need for identical capabilities for future project work that would serve the genuine operational requirements of the Department. Further, permanently converting Mrs Gavel will assist her in maintaining her skillset, thereby enhancing resource capability in the future.
  1. [61]
    Mrs Gavel's submission that there are permanent ongoing PO staff employed in Major Planning Projects demonstrates that permanent employment is a viable option despite the temporary nature of an individual project and it is likely that the skillset Mrs Gavel acquires and continues to enhance in the PO4 Position will be transferrable to the next major planning project that the Department undertakes. It appears more viable and appropriate than not that Mrs Gavel continue working in the PO4 Position to continue maintaining and progressing her skillset by undertaking associated responsibilities, rather than return to her substantive position.
  1. [62]
    By the time the phase of the current project ceases, Mrs Gavel would have been working in the PO4 Position for approximately five and a half years. Permanently integrating Mrs Gavel into the Major Planning Projects team now is both viable and appropriate with a view to maintaining and retaining quality staff.  
  1. [63]
    In the alternative, Mrs Gavel submitted she could carry out the PO4 Position upon return to her substantive unit, noting a current need for an additional PO4 Senior Designer to assist with the ever-increasing program of works. As outlined in [44]-[48] above, the position subject of this appeal is the PO4 Position within Major Planning Projects. Therefore, although undertaking a PO4 Senior Designer position in her substantive unit is a possibility, that is not an option the Department is required to consider under s 149C of the PS Act.
  1. [64]
    Mrs Gavel advocated that the Department ought to have considered the career progression aspirations of other colleagues to PO2 and PO3 Designers, as well as the potential future retirement intentions of some current PO4 Senior Designers. It is unclear whether the basis of Mrs Gavel's submissions in this regard have stemmed from particular employee conversations with the Department or simply by virtue of general chat around the office. At this point, the submission appears to be speculative and it is thus not unreasonable for the Department to omit consideration unless they have been specifically made aware of somewhat certain and impending retirements and aspirations for career progression. In that event, it would be appropriate to look ahead with a view to ensuring appropriate management of public resources.
  1. [65]
    In its decision, the Department outlined that the PO4 Position is not vacant nor ongoing. Neither the PS Act nor Directive 13/20 require there to be a substantive vacancy before an employee can be permanently converted into a higher classification position. Further, the submissions made by Mrs Gavel indicate, and I accept, that although there may not be a substantive vacancy available, there is an ongoing need for her to remain working in the PO4 Position.

The effect of any previous decisions

  1. [66]
    Directive 13/20 came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020. The decision was given on 20 October 2020.
  1. [67]
    Section 149C(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
  1. [68]
    An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) of the PS Act and cl 5.4 of Directive 13/20.
  1. [69]
    Given the timing of the legislative instruments coming into effect, the date of the decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Mrs Gavel.

Conclusion

  1. [70]
    Mrs Gavel had been performing the duties of the PO4 Senior Designer Position for about three years at the time of making her conversion request.  That placement was initially to complete a project that is funded until June 2023. Mrs Gavel has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.
  1. [71]
    The Respondent has submitted that Mrs Gavel's involvement in a project with an end date supports her employment at a higher classification level position on a temporary basis. However, I accept that in light of the evolving work within Major Planning Projects and the benefit of employees maintaining their skillsets, it was not fairly and reasonably open to the decision maker to conclude that the genuine operational requirements of the Department supported the higher duties engagement continuing on a temporary basis. Rather, the genuine operational requirements of the Department, particularly those outlined above, support Mrs Gavel's conversion to be the viable and appropriate course in these circumstances.
  1. [72]
    I order accordingly.

Orders:

 That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. (1)
    The appeal is allowed;
  1. (2)
    The decision that Mrs Gavel not be converted to the higher classification position is set aside and another decision is substituted; and
  1. (3)
    Mrs Gavel be permanently appointed to the position of PO4 Senior Designer.

Footnotes

[1] Respondent's Submissions, 24 November 2020, p 1.

[2] Ibid and Annexure: Description for Senior Designer (Major Planning Projects).

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[4] Ibid s 562B(2).

[5] Ibid s 567(2).

[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

[7] Correspondence from Mr Dave Gross to Mrs Gavel dated 20 October 2020.

[8] (1986) 162 CLR 24, [15]. 

[9] [2018] QSC 225.

[10] [2020] QIRC 195, [80].

[11] (1986) 162 CLR 24, [15].

[12] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[13] Directive 13/20 Appointing a public service employee to a higher classification level cl 1.2(a)-(b).

[14] [2020] QIRC 195, 17 [54].

[15] Respondent's Submissions, 24 November 2020, pg 1 and Annexure: Description for Senior Designer (Major Planning Projects).

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

Close

Editorial Notes

  • Published Case Name:

    Gavel v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Gavel v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2021] QIRC 262

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    30 Jul 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
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
3 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Cite 3 - (1986) 162 CLR 24
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Cheema v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 4963 citations
Schiemann v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 352 citations
1

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