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  4. Schonfelder v State of Queensland (Department of Housing and Public Works) - [2021] QIRC 32

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Schonfelder v State of Queensland (Department of Housing and Public Works)[2021] QIRC 32

Schonfelder v State of Queensland (Department of Housing and Public Works)[2021] QIRC 32

INDUSTRIAL RELATIONS COMMISSION

CITATION:

Schonfelder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 32

PARTIES:

Schonfelder, Gregory Charles

(Appellant)

v

State of Queensland (Department of Housing and Public Works)

(Respondent)

CASE NO:

PSA/2020/318

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

29 January 2021

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

  1. The Appeal is allowed.
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.
  1. The Appellant is appointed to the position at the higher classification level (AO8) in accordance with s 149C of the Public Service Act 2008 (Qld). 

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where appellant was acting up in a role with a higher classification level – where appellant was acting up in a role for a long period of time – consideration of "temporary" employment

LEGISLATION:

Appointing a public service employee to a higher classification level – Directive 13/20, cl 1.2, cl 4.2, cl 6, cl 7, cl 11

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 197, s 149C, s 295, s 201

Public Service and Other Legislation Amendment Act 2020 (Qld)

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)

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

Reasons for Decision

Introduction

  1. [1]
    Mr Gregory Schonfelder appeals a decision of the State of Queensland (Department of Energy and Public Works (previously Department of Housing and Public Works)) ("the Department") to not convert his temporary placement in a higher classification level position to a permanent position.
  1. [2]
    Mr Schonfelder is permanently employed as a public service officer in the position of AO7, Principal Advisor within Building Legislation and Policy, a business unit of Building Policy and Asset Management ("BPAM"), a division of the Department.
  1. [3]
    Since 27 August 2018, Mr Schonfelder has been continuously performing the duties at a higher classification level being, an AO8, Manager within Building Legislation and Policy, BPAM.
  1. [4]
    The Department submits that the purpose of Mr Schonfelder's temporary placement in the AO8, Manger position, has been to backfill the substantive employee who is relieving in an alternative position.
  1. [5]
    Since 27 August 2018, Mr Schonfelder's temporary placement in the AO8, Manager position, has been extended on 18 occasions.[1]
  1. [6]
    The Department submits that Mr Schonfelder's temporary placement in the Manger position expires on 30 January 2021 which coincides with the date that the substantive employee is due to return to their substantive position.
  1. [7]
    Mr Schonfelder appeals the decision on the basis that it is unreasonable because:
  1. (a)
    the employee who Mr Schonfelder is backfilling for, being Mr Michael Essery, has been relieving in an alternative decision for more than 10 years;
  1. (b)
    Mr Essery was unaware he would be returning to the AO8 manager position on 31 January 2021 as claimed in the decision;
  1. (c)
    Mr Schonfelder's Director was also unaware that Mr Essery would be returning to the position on 31 January 2021;
  1. (d)
    Mr Schonfelder's engagement in the AO8 Manager position has been extended 18 times; and
  1. (e)
    Mr Schonfelder has been in the AO8 Manager position for more than 2 years and, prior to 27 August 2018, he has acted in the role for lengthy periods of times on numerous occasions.
  1. [8]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ("the PS Act"), which provides than an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
  1. [9]
    Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [10]
    As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not be re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[4]
  1. [11]
    For the reasons contained herein, I have found that the decision was not fair or reasonable.

The decision

  1. [12]
    The decision was contained in an undated letter by Ms Maeghan Burrowes, HR Consultant, addressed to Mr Schonfelder and received by him on or around 26 October 2020.
  1. [13]
    Relevantly, the decision provided as follows:

…

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

  • You are substantively employed in the role of AO7, Principal Advisor within Building Legislation and Policy, BPAM, and that since 27 August 2018 you have been continuously performing the duties of AO8, Manger within Building Legislation and Policy, BPAM.
  • The purpose of your placement in the role of AO8, Manager within Building Legislation and Policy, BPAM, is backfill a substantive employee while the substantive employee is relieving in an alternative position.
  • You have been engaged in the in the position of AO8, Manger within Building Legislation and Policy, BPAM, for two years and one month.
  • Your engagement in the position of AO8, Manager within Building Legislation and Policy, BPAM, has been extended eighteen times.
  • Your engagement in the position of AO8, Manger within Building Legislation and Policy, BPAM, is due to expire on 30 January 2021.
  • There are no performance concerns regarding your placement in the AO8, Manager within Building Legislation and Policy, BPAM, that have been put to you, documented and remain unresolved.

Higher classification conversion decision

After considering your request to be permanently employed in the position AO8, Manger within Building Legislation and Policy, BPAM, and the circumstances of your secondment to/ temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Deputy Director-General's decision are:

  • The purpose of your current placement in the position of AO8, Manager within Building Legislation and Policy, BPAM, is to backfill a substantive employee while the substantive employee is relieving is an alternative position.
  • On the return of the substantive employee on 31 January 2021, there will no longer be a continuing need for your to be engaged in the position of AO8, Manager within Building Legislation and Policy, BPAM.

I would like to take this opportunity to thank you for your continued commitment to the department. Should you continue your engagement in the position of AO8, Manager within Building Legislation and Policy, you may submit another request for permanent employment in the role on 27 August 2021. In addition, if the position becomes a substantive vacancy during your temporary placement in the role, you may make an earlier request for permanent employment in this role.

…

Relevant provisions of the PS Act and Directive 13/20

  1. [14]
    Section 149C of the PS Act provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (a)
    is seconded to, under section 120 (1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
  1. (3)
    The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.
  1. (4A)
    In making the decision, the department's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (5)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  2. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

"continuous period", in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

"required period", for making a decision under subsection (4), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [15]
    The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, Merrell DP relevantly stated:[5]

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

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

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

(Citations omitted)

  1. [16]
    Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level ("Directive 13/20") came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [17]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:
  1.  Decision making

6.1  When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.

6.2  In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:

  1. (a)
    the genuine operational requirements of the department, and
  1. (b)
    the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3  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.

  1. [18]
    Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide a statement of reasons, as follows:
  1.  Statement of reasons

7.1  A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

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

  1. [19]
    Clause 11 of Directive 13/20 defines the following relevant terms:

…

Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.

Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.

…

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.

  1. [20]
    Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Was the decision fair and reasonable?

  1. [21]
    Clause 4.2 of Directive 13/20 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.
  1. [22]
    Clause 4.2 of Directive 13/20 further provides examples of circumstances that would support the temporary engagement of an employee at a higher classification level, they include:
  1. (a)
    when an existing employee takes a period of leave such as parental, long service leave, recreation or long term sick leave and needs to be replaced until the date of their expected return;
  1. (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 pool for those types of roles;
  1. (c)
    to perform work for a particular project or purpose that has a known end date; and
  1. (d)
    to perform work necessary to meet an unexpected short term increase in work load.
  1. [23]
    The relevant issue for my consideration is whether the circumstances of this matter would support the continued temporary engagement of Mr Schonfelder whilst he was backfilling for an existing employee who was acting up within another position within the Department.
  1. [24]
    The Department submits that as Mr Schonfelder's current temporary placement in the AO8 Manager position is to backfill a substantive employee who is relieving in an alternative position, there will no longer be a continuing need for the appellant to be placed in the AO8 Manager position once the substantive employee returns to work in their substantive position.
  1. [25]
    The Department does not respond to the grounds of appeal and/or Mr Schonfelder's submissions wherein he identifies that:
  1. (a)
    the relevant employee, Mr Essery, has been relieving in the alternative position for more than 10 years;
  1. (b)
    Mr Essery was unaware that he would be returning to the AO8 manager position on 31 January 2021 as claimed in the decision; and
  1. (c)
    that Mr Schonfelder's Director was also unaware that Mr Essery would be returning to the AO8 Manager position on 31 January 2021.
  1. [26]
    The matters raised by Mr Schonfelder are factually relevant matters for my consideration in this matter given that Directive 13/20 identifies that the PS Act establishes employment on tenure as the default basis of employment in the Public Service, and sets out the circumstances where employment on tenure is not viable or appropriate. Clause 1.2(b) of Directive 13/20 relevantly states that this Directive 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. [27]
    The term "temporary" is defined in the Macquarie dictionary to mean "lasting, existing, serving, or effective for a time only".
  1. [28]
    Mr Essery has been acting up in an alternative position in excess of 10 years. Mr Essery's absence from his role does not appear to be temporary. Further, the period in which Mr Schonfelder has been acting up performing the role indicates that the engagement is no longer a temporary engagement.[6]
  1. [29]
    I am not persuaded that a reasonable assessment of what amounts to general operational requirements would deny the permanent appointment of Mr Schonfelder in this matter. This is particularly so given the circumstances Mr Schonfelder has been employed in a temporary higher level position backfilling a position where the substantive employee has been absent in excess of 10 years with no known date to return to the substantive position.
  1. [30]
    I am of the view that the decision by the Department was not fair and reasonable nor consistent with purpose of Directive 13/20 and s 149C of the PS Act.
  1. [31]
    The Department submits that there are no performance concerns regarding the appellant's temporary placement in the AO8 Manger position that have been put to Mr Schonfelder, documented and remain unresolved. Accordingly, I am satisfied that Mr Schonfelder satisfies the eligibility criteria and that there is no impediment to him being appointed to the position in the higher classification level of AO8.
  1. [32]
    I make the following orders:
  1. The Appeal is allowed.
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.
  1. The Appellant is appointed to the position at the higher classification level (AO8) in accordance with s 149C of the Public Service Act 2008 (Qld).

Footnotes

[1] The Commission has received subsequent communication from the Department on 20 January 2021 advising that Mr Schonfelder's "temporary engagement" has been further extended until 30 June 2021.

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

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

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

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

[6] Due to length of absence from the role by Mr Essery.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QIRC 32

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    29 Jan 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

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

Cases Citing

Case NameFull CitationFrequency
Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 3112 citations
Whalley v State of Queensland (Department of Education) [2021] QIRC 3922 citations
1

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