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Jensen v State of Queensland (Queensland Health) QIRC 314
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Jensen v State of Queensland (Queensland Health)  QIRC 314
State of Queensland (Queensland Health)
Public Service Appeal – Appointment to position at higher classification
10 September 2021
On the papers
PUBLIC SERVICE – APPEAL – application for permanent employment at higher classification – genuine operational requirements – decision not to convert – decision fair and reasonable
Directive 13/20 Appointing a public service employee to a higher classification level position cl 6
Industrial Relations Act 2016 (Qld) ss 562B, 562C
Public Service Act 2008 (Qld) ss 98, 149C
Brandy v Human Rights and Equal Opportunity Commission  HCA 10
Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)
Jones v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, McLennan IC, 15 October 2020)
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203
Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252
Reasons for Decision
- Since 28 August 2017, Ms Emily Jensen has been continuously employed as a part-time fixed term temporary employee in the position of AO6 Senior Planning Analyst (position number 32037866) ('the position').
- She was originally engaged to backfill the substantive employee, however that employee separated from the Health Service on 17 December 2020. Subsequently, Ms Jensen continued temporarily in the substantively vacant position which had an end date of 30 June 2021.
- The position is within Health Service Planning ('HSP') at Nambour General Hospital, Sunshine Coast Hospital and Health Service ('SCHHS'). She is employed by the State of Queensland through Queensland Health ('the Department').
- She is otherwise substantively employed with HSP as a AO5 Planning Officer (position number 32037874).
- On 1 April 2021, Ms Jensen requested to be permanently appointed to the higher classification level position in accordance with Directive 13/20 Appointing a public service employee to a higher classification level position ('the Directive').
- On 4 May 2021, Ms Jensen received correspondence (dated 29 April 2021) from Mr Colin Anderson, Executive Director People and Culture at SCHHS stating that a review of her employment status had been conducted in accordance with the Directive and section 149C of the Public Service Act 2008 (Qld) ('PS Act'). She was advised that she would continue as a temporary employee with SCHHS ('the decision').
- The reasons for the decision were set out as follows:
I have considered your request and have determined that, due to the genuine operational requirements of the agency, you will not be appointed to the higher classification level as a permanent employee at this time and will continue in the higher duties arrangement until 27 June 2021.
The Health Service Planning Team has moved directorates and a review of the structure and roles within the broader Planning and Capacity service is being progressed.
There are genuine operational reasons being the Queensland Audit Office submitted a report to parliament on the Planning for Sustainable health services (Report 16: 2020-2021).
Of the seven recommendations made to Queensland Health to improve integrated planning, one of these was around the capacity and capability of staff. Recommendation 4 is for Queensland Health to work with Hospital and Health Services employees to strengthen the capability and capacity of the staff who support the planning process across the state.
Currently, you have been engaged at the higher classification level for a total of 32 months. Your engagement at this higher classification has been extended seven (13) (sic) times.
- In response to the decision, Ms Jensen filed an Appeal Notice on 10 May 2021. In her appeal, she contended that:
- At the time of her appeal, she had been engaged in the position for a total of 45 months and had been extended 14 times, which demonstrates an ongoing need for the role;
- She was originally engaged in the position to backfill the substantive employee who has now left the Health Service, leaving the position substantively vacant;
- Performance and development plan discussions indicated that there was an intention to permanently hire Ms Jensen based on merit, experience and knowledge;
- There is a genuine operational need for the role due to planning activities and its vital function, which align with the SCHHS strategic direction and priorities;
- She has not been consulted regarding the review of the structure referred to in the decision, and there was no evidence or supporting documentation provided with the decision nor evidence showing that the position will no longer be required; and
- If she were to return to her substantive Planning Officer position, rather than stay in the Senior Planning Analyst role, she will be out of the scope of her current work portfolio which will impact stakeholders and scheduled output delivery.
What decisions can the Industrial Commissioner make?
- In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)for a promotion decision – set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
- (c)for any other 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.
Nature of appeal
- The issue for my determination in the matter before me is whether the decision to refuse to convert Ms Jensen's temporary employment was fair and reasonable.
- For the reasons set out below, I have determined that the decision was fair and reasonable.
Relevant sections of the PS Act and Directive
- The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
- Section 149C of the PS Act relevantly 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
- (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;
- (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
- (c)how many times the person’s engagement at the higher classification level has been extended; 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.
- Clause 6 of the Directive provides as follows:
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.
Submissions of the parties
- The parties filed written submissions in accordance with a Directions Order dated 7 June 2021. The parties' submissions primarily concern the genuine operational requirements of the Department.
Submissions of the Department
- The Department contends, for reasons set out in their submissions dated 11 June 2021, that in accordance with s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive, genuine operational requirements preclude Ms Jensen's permanent appointment to the position. In summary, it submits that:
- A Concept Brief submitted to the CFO on 25 August 2020 has proposed various HSP structures for consideration for future service delivery. This included proposed abolishment of the Senior Planning Analyst AO6 position (32037866) in which Ms Jensen works, to create a new Principle Planning Analysist AO7 position. Informal consultative discussions occurred within the HSP team, including Ms Jensen. The Concept Brief was never endorsed, and the process did not occur due to the employees separating from the Department;
- In February 2021, the HSP team moved from one directorate to another. In March 2021, discussions recommenced regarding the structure and roles of the HSP team. Ms Jensen's Senior Planning Analyst AO6 position remained in the scope of the recommenced review, and it has been identified that the position may no longer be required;
- The formal organisational change process has not yet occurred, however SCHHS intends to undertake the organisational change and its consultation in accordance with clause 4.1 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019; and
- In accordance with s 98(1)(b) of the PS Act, it is in the interest of employees to review the position while it is substantively vacant to prevent an employee's displacement from a permanent position and ensure correct workplace composition and optimal service delivery to the public.
Submissions of Ms Jensen
- Ms Jensen contends, for reasons set out in her reply submissions dated 8 July 2021, that she should be permanently appointed to the position. In summary, she submits that:
- Her current higher duties position is as Senior Planning Analyst AO6, however her skill set is better aligned to the Senior Planning Officer AO6 position. This is currently held by a substantive employee who is undertaking higher duties in the Principle Planning Analyst AO7 position. There was an intention to swap the two AO6 positions to better align the employees with their appropriate skillset;
- A review of the HSP structure and upgrading of various positions will enable the Senior Planning Officer AO6 position to become vacant for Ms Jensen;
- The key evidence in the Concept Brief attached to the Respondent's submissions were redacted and does not show the true context of the consultation. There was a recommendation outlined in the Concept Brief to permanently appoint Ms Jensen to the Senior Planning Officer AO6 role, and disestablish her substantive AO5 position which has not been backfilled since December 2019;
- There has been no further consultation with Ms Jensen since the original Concept Brief was written in August 2020 which indicates the Senior Planning Officer AO6 position may still be required;
- Appointing her to the higher classification level position supports the genuine operational requirements of the HSP team to deliver ongoing programs of work;
- SCHHS has not demonstrated an intent to undertake its organisational consultation requirements in accordance with clause 4.1of the Certified Agreement; and
- As the Senior Planning Analyst AO6 position is substantively vacant, it is in Ms Jensen's best interests to extend her temporary placement in it while the team structure is reviewed. The decision to cease her contract on 30 June 2021 is unfair and unjustified given the lack of certainty and consultation. Further the role has been required for the last four years and continues to play a vital function.
Submissions of the Department
- The Department filed reply submissions on 23 July 2021. In summary, it submits that:
- A review of the HSP structure and roles has recommenced to consider the current workforce and operational requirements. Until this has concluded, it is uncertain what the HSP structure will encompass. This circumstance is identified under the Directive to be a genuine operational requirement of the Department not to appoint Ms Jensen;
- It is not the intention of the Health Service to support the previous Concept Brief from August 2020, due to organisational changes within management which have occurred in the meantime. Informal discussions with staff have begun with the new management team regarding a new Concept Brief;
- The current review indicates that the Senior Planning Analyst AO6 position in which Ms Jensen was acting is no longer required, which has been indicated to the HSP team on several occasions since February 2021. A new Concept Brief has been submitted for Executive endorsement and will be consulted on in accordance with clause 4.1 of the Certified Agreement;
- It would be irresponsible to appoint an employee to the position as it is currently under review to determine its ongoing requirement. Should it be abolished, Ms Jensen would be an employee requiring placement; and
- Ms Jensen returned to her substantive position on 30 June 2021.
- There is no dispute about the fact that, at the time of the decision, the HSP was in the process of planning for a major restructure. Included in that would be consideration of the need for or placement of the role in which Ms Jensen was acting.
- Deputy President Merrell held in Morison v State of Queensland (Department of Child Safety, Youth and Women):
The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
The adjective 'genuine' relevantly means '... being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
- managing the department in a way that promotes the effective, efficient and appropriate management of public resources; 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.
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.'
- I am satisfied that the structural review of the HSP is a genuine operational requirement within the meaning of s 149C and the Directive. Both s 149C of the PS Act and the Directive compel the Department to give consideration to genuine operational requirements. Further, genuine operational requirements can be a legitimate basis for refusing to permanently appoint an aspirant to a higher classification position even when they meet all of the other qualifying criteria.
- At the time of the decision, the review of the HSP structure was still at a fairly adumbral phase. Much was unknown about the future of Ms Jensen's role.
- While I understand and sympathise with Ms Jensen's frustration at the less than ideal progress of the review, I accept entirely the submission of the Department that it would be irresponsible to permanently appoint Ms Jensen to a role that is under review.
- I would hasten to add that it is apparent from her work history that Ms Jensen appears more than capable of fulfilling the role. I would trust that once the review is completed, and the fate of the role is settled, the Department will ensure that Ms Jensen's obvious diligence and enthusiasm will be recognised with permanent appointment in the near future.
- In all of these circumstances, I must conclude the decision to be fair and reasonable.
- In the circumstances I make the following order:
- The decision appealed against is confirmed.
 Industrial Relations Act 2016 (Qld) s 562B.
 Brandy v Human Rights and Equal Opportunity Commission  HCA 10.
 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
 Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252, 60-61.
  QIRC 203, 12 -.
- Published Case Name:
Jensen v State of Queensland (Queensland Health)
- Shortened Case Name:
Jensen v State of Queensland (Queensland Health)
 QIRC 314
10 Sep 2021