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  4. Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships) - [2021] QIRC 33

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Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 33

Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 33

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 033

Schoch, Ashleigh

(Appellant)

v

State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

PSA/2020/340

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

29 January 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

  1. That the appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – 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 ‘continuous period’ – consideration of the scope of a review under s 149C – consideration of ‘the higher classification level’

LEGISLATION AND DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 4, s 14A, s 32C

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6, 7, 9, 10, 11

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

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

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

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651

Goodall v State of Queensland (Unreported decision of the 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

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Reasons for Decision

Introduction

  1. [1]
    Ms Ashleigh Schoch (the Appellant) has filed an appeal against a conversion decision (the decision) made by Ms Kathy Parton (the decision maker), Acting Director-General for the State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships) (the Respondent, the Department). 
  1. [2]
    Ms Schoch is currently substantively employed in the role of AO4 Cabinet Liaison Officer for the Respondent.
  1. [3]
    However, she has been continuously acting as an AO6 Senior Legal Policy Officer (‘the AO6 position’) since 1 February 2020, and various other higher duties positions before that.

The Decision

  1. [4]
    The terms of the decision were contained in correspondence from the decision maker dated 30 October 2020.
  1. [5]
    The decision subject of this appeal is the Department’s determination not to permanently convert Ms Schoch’s employment to the higher classification level – that is, to the AO6 position.

Appeal principles

  1. [6]
    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. [7]
    The appeal is not conducted by way of re-hearing,[1] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[2] 
  1. [8]
    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 IRC member may allow other evidence to be taken into account.[3]

 What decisions can the IRC Member make?

  1. [9]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  1. a)
    Confirm the decision appealed against; or
  1. b)
    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. c)
    Set the decision aside and substitute another decision.

Submissions

  1. [10]
    In accordance with the Directions Order issued on 20 November 2020, and amended on 27 November 2020, the parties filed written submissions.
  1. [11]
    Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

The decision of 30 October 2020 (subject to this appeal)

  1. [12]
    The decision maker conveyed the following reasons for not permanently converting Ms Schoch to the higher classification level:

I have determined that, due to the genuine operational requirements of you agency, your request has not been approved on the basis that the role you are occupying is not permanently funded, and there is not a vacant permanent AO6 Senior Policy Officer role considered substantially similar available to appoint to at this time.

Appeal Notice

  1. [13]
    Ms Schoch set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 20 November 2020. Those reasons are summarised as follows:
  • The decision maker did not give due consideration to the genuine operational requirements of the department, but rather only considered whether the role Ms Schoch is acting in is permanently funded.
  • The decision maker did not provide adequate reasons, in that they have not provided a sufficient outline of Ms Schoch’s previous higher duties engagements, and any previous decisions to that effect.
  • Ms Schoch has demonstrated merit in the role, and the Department has a need for her to continue in that role.

Appellant’s further submissions

  1. [14]
    Insofar as they differ from her previous submissions, Ms Schoch’s further submissions filed 7 December 2021 can be briefly summarised as follows:
  • Ms Schoch is entitled to appeal in accordance with ss 193 and 194(e) of the PS Act.
  • Ms Schoch has been engaged by the Department for several years, and since 16 July 2018 has continuously performed higher classification roles within the Strategic Policy and Legislative unit.
  • The decision erred in that it considered Ms Schoch for different positions, but s 149C only provides for consideration against the position which the employee occupies at the time of requesting the review.
  • By failing to consider the criteria in the Directive, the decision maker has erred in law.
  • The Commission is empowered to grant the orders sought under ss 451 and 562C of the IR Act.
  1. [15]
    Ms Schoch has also attached further details setting out why she believes the genuine operational requirements of the department support her permanent appointment, the nature of the role she is performing, and her opinion as to the priorities of the Department, including several upcoming and ongoing project. However, given the jurisdictional barriers faced by Ms Schoch’s appeal, those materials are of limited relevance.

Respondent submissions

  1. [16]
    The Department’s submissions, filed 11 December 2020, can be briefly summarised as follows:
  • The Decision was fair and reasonable, and made in accordance with s 149C and the Directive. 
  • Ms Schoch is ineligible to appeal, or indeed be reviewed, by virtue of her length of higher duties in the AO6 position being less than one year. In support of that submission, the Department refers to ss 149C, 194(1)(e), and the definition of ‘continuous period’ contained in the Directive.
  • The reasons contained in the Decision may not address all of the relevant criteria, but that should not affect the fairness and reasonability of the Decision as the outcome would not have differed. 
  • The Decision should be confirmed.
  1. [17]
    The Department also addresses the genuine operational requirements in some detail, but those are of limited relevance in circumstances where this appeal turns on the preliminary jurisdictional issues.

Appellant’s submissions in reply

  1. [18]
    Insofar as they differ from her previous submissions, Ms Schoch’s reply submissions filed 21 December 2020 can be briefly summarised as follows:
  • The jurisdictional objections of the Department ought not be accepted.
  • The definition of continuous period in s 149C should not be imported into s 194, and so there is no requirement that the two years’ continuous service for the purposes of eligibility under s 194(1)(e) have to be in the same role, but only at the higher classification level.
  • Words in the singular include the plural, and so ‘the higher classification level’ includes ‘levels’. That should render Ms Schoch able to appeal the decision, and eligible for conversion.
  • The Department’s additional reasons for the decision should not be considered, as they were not within the decision letter and an appeal of this nature is about determining whether the original decision was fair and reasonable.
  • Ms Schoch seeks to be converted to permanent employment in the higher duties position, or alternatively that the decision be sent back and the review re-conducted.
  1. [19]
    Those submissions include further details setting out why Ms Schoch believes the genuine operational requirements of the department support her permanent appointment, and why the decision was not fair and reasonable. Given the jurisdictional issues, those materials are of limited relevance.

Findings

  1. [20]
    Ms Schoch makes several submissions to the effect that she is eligible to appeal the decision under s 194(1)(e), as she believes that the higher duties need not be under the same role in that section. If I accept, for a moment, that such an interpretation is correct, that does not adequately deal with the jurisdictional problems faced by Ms Schoch. That would only resolve whether the appeal can occur at all, rather than whether s 149C actually applies to her.
  1. [21]
    The PS Act, at s 149C(1)(b), provides that s 149C applies to an employee who has, inter alia, “been seconded to or acting at the higher classification level for a continuous period of at least (one) year”.
  1. [22]
    ‘Continuous period’ is defined in the Directive at cl 11 to mean “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.” That definition is directly incorporated into s 149C by way of s 149C(8), which explains that “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).”
  1. [23]
    Ms Schoch commenced in the AO6 role on 1 February 2020. Immediately prior to her AO6 roles, Ms Schoch was engaged in an AO7 role. The review concluded on 30 October 2020. The definition of ‘continuous period’ expressly requires that the employee be engaged in the same role for an unbroken period of 12 months.
  1. [24]
    On that basis, Ms Schoch has not been acting at the higher classification level for a continuous period of at least one year. It follows that s 149C did not, and does not, apply to her. On that basis, the appeal must fail.
  1. [25]
    Even if that were incorrect, I disagree with Ms Schoch’s interpretation of s 194(1)(e). That section provides that an appeal may be made against a decision under s 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 two years.
  1. [26]
    In considering the meaning of ‘continuous period’ in s 194(1)(e)(iii), it is true that s 194 appears in a different part of the PS Act than s 149C. However, it is important to bear in mind the context in which that term appears,[4] as well as the purpose of the PS Act.[5] Section 194(1)(e)(iii) creates a right of appeal against a decision specifically made under s 149C. In making a decision under s 149C, that term is expressly defined to be the meaning given by the Directive, which incorporates the ‘same role’ terminology.
  1. [27]
    The words ‘continuous period’ in s 194(1)(e)(iii) must be afforded meaning. In my view, the correct meaning is that which is used in s 149C, which adopts the definition from the Directive.
  1. [28]
    Ms Schoch proposes that the two years referred to in s 194(1)(e)(iii) need only be in any range of higher classification positions. Her submissions seek to deal with the definition of higher classification level, but do not sufficiently explain the ‘same role’ aspect of the definition of continuous period. Again, even if Ms Schoch’s submissions as to the meaning of ‘the higher classification level’ were correct, in that more than one classification level may be considered, it would still need to be in the same role. On that basis, the decision is not one which is able to be appealed under s 194.
  1. [29]
    Throughout her material, Ms Schoch submits that ‘the higher classification level’ ought to incorporate higher classification levels. In support of that submission, she relies upon s 32C of the Acts Interpretation Act 1954 (Qld),[6] which provides that “words in the singular include the plural” and vice versa. The appeal is unable to succeed on the bases described above, but nonetheless, I will briefly deal with Ms Schoch’s submissions on that point.
  1. [30]
    The AI Act, and interpretation laws similar to it, have been described as a drafting convenience intended to avoid unnecessary repetition, rather than change the character of legislation.[7] Section 32C of the AI Act is subject to s 4 of that act, which provides that the application of the AI Act “may be displaced, wholly or partly, by a contrary intention appearing in any Act”.
  1. [31]
    In Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 it was said that:[8]

. . the mere fact that the reading of words in a section suggests an emphasis on singularity as opposed to plurality, is not enough to exclude plurality. Words in the singular will include the plural unless the contrary intention appears. But in considering whether a contrary intention appears there need be no confinement of intention to any one particular section of an Act. It may be necessary to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole.

  1. [32]
    The question is whether a contrary intention to plurality in the term ‘the higher classification level’ exists within the PS Act. Returning to s 149C, subsection (1) reads:

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. [33]
    It is noteworthy that the terms ‘a higher classification level’ and ‘the higher classification level’ each appear in that section. It is pointed that the terms do not appear to be used interchangeably. Neither do those terms convey the same ordinary meaning. The former, using the term ‘a’, is imprecise, and in that way may connote a range of levels. It is useful then to consider the context in which each of those terms appears.
  1. [34]
    Sub-s 1(a) deals with the requirement for the employee to be performing higher duties within the department in which they hold their substantive position. It appears to me that that subsection is primarily concerned with ensuring that the employee is performing those duties within the same department, rather than with the particulars of the higher duties.
  1. [35]
    In Holcombe, it was found that s 149C and the Directive create a legislative framework whereby a person is considered for permanent appointment to the particular position which they occupy at the time of requesting the review.[9] Bearing that in mind, sub-s 1(b) requires the employee to be performing at the higher classification level for a continuous period of one year. Sub-s 1(c) goes on to provide that the employee must meet merit criteria for appointment to the position at the higher classification level. The merit principle includes the application of merit criteria, such as “the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question”.[10]
  1. [36]
    Those subsections read quite differently if the appellant’s interpretation were applied. It would require the department to consider the appellant’s merit against a range of different classification levels, despite the higher duties review being constrained to permanently appointing the person to one specific position. Naturally, that position would itself be at a single classification level. That is a very odd outcome, and I find it highly unlikely to be the contemplation of the legislature.
  1. [37]
    In my view, there is more than a mere suggestion within the PS Act that ‘the higher classification level’ excludes the plural ‘levels’. A contrary intention is inherent to the review and permanent appointment process established by s 149C, such that ‘the higher classification level’ refers to a single higher classification level, rather than multiple levels. A person must perform at that level for the requisite period, in the same role, in order to meet the requirements of continuous service under s 149C.

Conclusion

  1. [38]
    Ms Schoch did not perform the same role in a higher classification for an unbroken period of 12 months prior to the review. She was engaged in an AO6 role from February 2020 until the review completed on October 2020.
  1. [39]
    It follows that s 149C does not apply to Ms Schoch, and the Department’s decision not to appoint her permanently to those higher duties under that section was fair and reasonable. It also follows that the Department’s reasons are not subject to s 149C(5). I would therefore dismiss the appeal.
  1. [40]
    In the alternative, I would decline to hear the appeal because the decision is not one which is able to be appealed under s 194(1)(e)(iii).
  1. [41]
    I order accordingly.

Orders:

  1. That the appeal is dismissed.

Footnotes

[1] 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 567(1).

[2] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[3] Industrial Relations Act 2016 (Qld) s 567(2).

[4] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261 

[5] Acts Interpretation Act 1954 (Qld) s 14A.

[6] ‘the AI Act’.

[7] Pfeiffer v Stevens (2001) 209 CLR 57, [54]-[58].

[8] Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651, 656.

[9] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, 15 - 21.

[10] Public Service Act 2008 (Qld) s 28.

Close

Editorial Notes

  • Published Case Name:

    Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Schoch v State of Queensland (Department of Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2021] QIRC 33

  • Court:

    QIRC

  • Judge(s):

    Member McLennan 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
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
3 citations
Jump To
Cite 1 - (1969) 117 CLR 651
Cite 2 - (1969) 117 CLR 651
Cite 3 - (1969) 117 CLR 651
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
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Katae v State of Queensland [2018] QSC 225
1 citation
Jump To
Cite 1 - [2018] QSC 225
Page v Thompson [2014] QSC 252
1 citation
Jump To
Cite 1 - [2014] QSC 252
Pfeiffer v Stevens (2001) 209 CLR 57
1 citation
Jump To
Cite 1 - (2001) 209 CLR 57
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
1 citation
Jump To
Cite 1 - (1998) 194 C.L.R 355

Cases Citing

Case NameFull CitationFrequency
Lambinon v TAFE Queensland [2024] QIRC 1292 citations
1

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