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CITE

Unreported Judgment

Alvayero v State of Queensland (Public Safety Business Agency)[2021] QIRC 34Member Merrell DP
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Alvayero v State of Queensland (Public Safety Business Agency)[2021] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Alvayero v State of Queensland (Public Safety Business Agency) [2021] QIRC 034
PARTIES:	Alvayero, Nuria (Appellant) v State of Queensland (Public Safety Business Agency) (Respondent)
CASE NO.:	PSA/2020/391
PROCEEDING:	Public Service Appeal - Appointment to a Higher Classification Level
DELIVERED ON:	1 February 2021
MEMBER: HEARD AT:	Merrell DP On the papers
DATES OF WRITTEN SUBMISSIONS:	Appellant's written submissions filed on 18 December 2020 and Respondent's written submissions filed on 15 January 2021
ORDER:	Pursuant to s 562C(1)(a) of the **Industrial Relations Act 2016, the decision appealed against is confirmed**
CATCHWORDS:	INDUSTRIAL LAW - public service appeal - closed merit selection process undertaken for higher classified positions of the kind in which the appellant had been acting - appellant not successful in being appointed to position at higher classification level in closed merit selection process - appellant requested respondent's chief executive to appoint appellant to the higher classified position in which appellant was acting - appellant not appointed because the position in which appellant was acting was not permanently vacant and was not a position to which the appellant could be appointed - consideration of whether that decision was fair and reasonable having regard to the genuine operational requirements of the respondent within the meaning of s 149C(4A) of the Public Service Act 2008 - having regard to all the circumstances, decision was fair and reasonable - decision appealed against confirmed
LEGISLATION:	Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.2 Industrial Relations Act 2016, s 562C Public Service Act 2008, s 149C
CASES:	Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Introduction

[1]
Ms Nuria Alvayero is currently acting in a position at a higher classification level being Senior HR Business Partner, classification AO6, within the Public Safety Business Agency ('the PSBA').

[2]
By email sent on 25 September 2020, Ms Alvayero requested to be appointed to the position of '… Senior HR Business Partner AO6' ('Ms Alvayero's request') pursuant to s 149C of the Public Service Act 2008 ('the PS Act').

[3]
In making her request, Ms Alvayero stated that she had '… been performing higher duties in the Senior HR Business Partner AO6 position continuously since 27/04/2016.' Ms Alvayero's substantive position is that of HR officer, classification AO4.

[4]
By email sent on 13 November 2020, Ms Beth Gordon, Director, HR Services of the PSBA, informed Ms Alvayero that:

she (Ms Alvayero) was to continue to be engaged according to the terms of her existing higher duties arrangement; and

she (Ms Gordon) determined that Ms Alvayero was not currently eligible for appointment because the position in which she had been relieving '… is NOT permanently vacant and not available for you to be converted into' ('the decision').

[5]
By appeal notice filed on 4 December 2020, Ms Alvayero, pursuant to ch 7 of the PS Act, appealed against the decision. There is no dispute that the decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').

[6]
The PSBA does not dispute that Ms Alvayero can appeal the decision.

[7]
The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.^[1]

[8]
For the reasons that follow, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, I confirm the decision.

Ms Alvayero's submissions

[9]
Ms Alvayero submits that:

she has been assuming the duties and responsibilities of the Senior HR Business Partner position, classification AO6;

she has been performing higher duties for a continuous period since 27 April 2016;

she has been '… extended in this role 15 times' and for '… establishment management reasons, I've been placed against various position numbers but performing the same role during this time';

she had been placed on the merit list in two different recruitment processes for the role including a closed merit process which closed on 25 May 2020;

the PSBA finalised the May 2020 closed merit process in September 2020;

on 16 October 2020, she was informed that:

—
she had been placed on a merit list; and

—
there was no vacant position in which to appoint her because, due to the recent announcement to disestablish the PSBA, only three out of the four vacant Senior HR Business Partner, classification AO6, positions were being filled, with the fourth position being left vacant as it was identified for transition to the Queensland Fire and Emergency Services ('QFES');

because she had not been informed of the outcome of the May 2020 closed merit process by the time of the operative date of the Directive, she made her request to be appointed to '… the higher classification position'; and

she understood that as the closed merit process started before the operative date of the Directive, no consideration was going to be given to higher duties conversion requests, and appointments would be from the recruitment process.

[10]
Ms Alvayero then relevantly submits:

It was clear before this recruitment process was finalised that staff within PSBA HR Consultancy would very soon be eligible for higher duties conversion, however the decision was made to fill three of the four positions via the closed merit recruitment exercise.

In response to a request for advice, on 2 November 2020 the PSC wrote: "neither the fixed term temporary employment directive nor the directive relating to appointment to a higher classification level allow for an agency to use a closed merit process where there are multiple employees who may be eligible to apply for review under those directives". (Attachment 2)

The reason stated in the decline advice received on 13 November 2020 was "The position that you have been relieving in is NOT permanently vacant and not available for you to be converted into" (Attachment 3). The position that I am currently placed against is a vacant position (Senior HR Business Partner - 1-957010).

There are 30 Senior HR Business Partner A06 permanent positions in PSBA across the State (20 in Brisbane and 10 Regional). All these positions have only one Role Description (Attachment 4), the difference is the portfolio assigned. I have been performing higher duties in eight (8) different position numbers but performing the same role across the Queensland Fire and Emergency Services (QFES), Queensland Police Service (QPS) and PSBA portfolio as per my employment history (Attachment 5).

PSBA HR Consultancy do sometimes ask their HR staff to change position number but remain in the same role. In my case, I was placed against a vacant position (1-957009) from 25 May 2020 and then I was asked on 9 November 2020 that as a result of the recent appointments, to vary my higher duties and change the position number to my current placement (1-957010) (Attachment 6), however I remained in exactly the same role. This is concerning as Directive 13/20 relies upon the applicant being in the position number they wish to convert into.

The PSBA's submissions

[11]
The PSBA submits that:

pursuant to s 149C(4A) of the PS Act, it had regard to the genuine operational requirements of the Department in its decision;

the genuine operational requirements were associated with the:

—
closed merit process to fill the vacant Senior HR Business Partner positions referred to by Ms Alvayero in her submissions; and

—
the disestablishment of the PSBA and the transitional arrangements associated with the movement of officers and positions to the Queensland Police Service and the QFES;

the closed merit process that commenced in May 2020 was utilised by the PSBA in the selection of four employees to fill Senior HR Business Partner positions and invitations to apply were extended to all staff who were currently performing higher duties in a Senior HR Business Partner role and further to all staff who had previously performed higher duties in those roles;

nine applications were received, including one from Ms Alvayero, and at the conclusion of the closed merit process, seven applicants were merit listed with Ms Alvayero identified as sixth on the merit list;

three applicants were appointed on 15 September 2020 and because of the disestablishment of the PSBA, with positions and employees being transition to other agencies, the position numbers and employees to be transitioned to each respective agency was not made until 9 November 2020; and

Ms Alvayero had been relieving in a position of Senior HR Business Partner from 25 May 2020 to 15 September 2020, being the date of appointment of the third applicant from the closed merit process.

[12]
The PSBA attached to its submissions the following table which set out the positions in which Ms Alvayero has acted at a higher classification level since 2014:

NURIA ALVAYERO
Date From	Date To	Days	Type	Movement	Job Title	Position	Reason for backfill
04-Jan-21	31-Mar-21	63	Acting	HIGHER DUTIES	SNR HR BUSINESS PARTNER	1-957010	Vacant -transition
21-Dec-20	03-Jan-21	10	Acting	HIGHER DUTIES	PRINC HR BUSINE	1-911609	Leave
15-Sep-20	20-Dec-20	69	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957010	Vacant
25-May-20	14-Sep-20	81	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957009	Vacant up to 15 September 2020
10-Dec-19	24-May-20	119	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-924470	Vacant
04-Sep-19	09-Dec-19	69	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957013	Relieving as A07
25-May-19	03-Sep-19	72	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957014	Secondment
04-May-19	24-May-19	15	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957014	Secondment
10-Dec-18	03-May-19	105	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-957014	Secondment
01-Jul-18	09-Dec-18	115	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-954079
14-Jun-18	30-Jun-18	12	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-954077	Leave
30-Apr-18	13-Jun-18	33	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-954108	Leave
27-Apr-18	29-Apr-18	1	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-954077	Leave
04-May-17	26-Apr-18	256	Acting	HIGHER DUTIES	SNR HR BUSINESS	1-954077	Leave
27-Apr-17	03-May-17	5	Acting	REDESIGNATION	SNR HR BUSINESS	1-954077	Leave
30-Jan-17	26-Apr-17	63	Acting	REDESIGNATION	SNR HR BUSINESS	1-954077	Leave
28-May-16	29-Jan-17	175	Acting	HIGHER DUTIES	SNR HR CONSLT	1-954077	Leave
27-Apr-16	27-May-16	23	Acting	HIGHER DUTIES	SNR HR CONSLT	1-954077	Leave
10-Mar-16	31-Mar-16	16	Acting	HIGHER DUTIES	SNR HR CONSLT	1-954077	Leave
10-Jan-15	23-Jan-15	10	Acting	HIGHER DUTIES	SNR ADVISOR	1-954079	Leave
22-Dec-14	09-Jan-15	15	Acting	HIGHER DUTIES	PRINC CONSLT	1-954082
28-Jul-14	21-Dec-14	105	Acting	HIGHER DUTIES	SNR ADVISOR	1-954079	Leave
28-Jul-14	19-Oct-14	60	Placement	MACHINERY OF GOVERNM	HR OFFCR	1-954076

[13]
The PSBA then submitted:

The amendments to the legislation associated with the conversion arrangements under s.149C were assented to on 14 September 2020 and the corresponding Directive 13/20 had a commencement date of the 25 September 2020. The closed merit process was in train and although officers who were successful did not receive notification until 15 September 2020 the recruitment process was not and could not be used to frustrate the intent of the legislation which commenced after the closed merit process. Courts have ruled that amendments to the original act does not mean that the words inserted had always been included.

As a consequence the Appellant had been acting in the position 1-957009 SHRBP from 25 May to 15 September 2020 being the date that the third applicant was appointed to that position. The Appellant then acted in the position 1-957010 SHRBP from 16 September to 20 December 2020 and from 21 December 2020 to 3 January 2021 the Appellant has acted in the position Principal HR Business Partner (PHRBP) 1-911609.

By virtue of s.149C(1) and confirmed in Morison [2020]an Appellant is only eligible to be appointed to the position they have been acting in for at least 1 year. The Appellant does not meet the criteria for appointment to the higher classification level. The position number 1-957009 in which the Appellant held from May 2020 to September 2020 was filled permanently from the closed merit list and the position that the Appellant is currently held against, 1-957010 is nominated for transition to QFES.

The current position that the Appellant is acting in is the position SHRBP 1-957010 and this period of relieving has occurred from 4 January 2021. The Appellant was moved to this new position i.e. 1-957010 after completing the secondment in the A07 level position PHRBP position number 1-911609 from 21 December 2020 to 3 January 2020. The vacant position i.e. 1-957009 SHRBP in which the Appellant had been acting in 25 May to 15 September 2020 had been filled from the closed merit exercise.

The Appellant is listed as number six (6) on the closed merit list for vacant positions from the closed merit list.

The positions of SHRBP provide a range of services, the level and degree of service provision and support whether tactical or strategic relate to the requirements needed in each of the portfolio agencies, QPS and QFES and the respective regions in which the position works within. Each SHRBP is subject to the needs of the Assistant Commissioners in each region which can be significantly varied and different due to the nature of the work undertaken in the region and in the agency.

As a component of the 'genuine operational requirements of a department' the PSBA is aware that the position the Appellant is currently held against is to be transitioned to the QFES and, as a consequence the QFES has the right, as a department, to make a decision in respect of the position. It is not for the PSBA to limit the arrangements that the QFES may have for their position which may, as part of the Government commitment for more operational firefighters, convert that position to an operational role.^[2]

The decision was fair and reasonable

[14]
Having regard to Ms Alvayero's submissions and the submissions of the PSBA, I can understand how Ms Alvayero feels aggrieved about the decision not to appoint her to a position entitled Senior HR Business Partner.

[15]
Ms Alvayero was not high enough in the order of merit, in the closed merit process undertaken between May 2020 and September 2020, for the vacant positions of Senior HR Business Partner. As a consequence, she was not appointed to one of the three positions that were being filled at that time.

[16]
Because of the disestablishment of the PSBA and the transition of functions and positions within that agency to other relevant agencies such as the Queensland Police Service and the QFES, a fourth vacant Senior HR Business Partner was not filled as part of that closed merit process because that position is to be transitioned to the QFES.

[17]
The consequence of these events was that:

the vacant Senior HR Business Partner position, classification AO6, in which Ms Alvayero had acted from 25 May 2020 to 14 September 2020, position number 1‑957009, was filled by the closed merit process as from 15 September 2020; and

at the time Ms Alvayero made her request on 25 September 2020, Ms Alvayero was acting^[3] in a different position of Senior HR Business Partner, being position number 1-957010, which is vacant because it is to transition to the QFES.

[18]
Ms Gordon does not say, in her decision, whether her reasons, that Ms Alvayero was not eligible for appointment, are referrable to position number 1-957009 or position number 1-957010. To that extent, Ms Gordon's decision is not clear. The circumstances surrounding the closed merit appointment process, referred to in the PSBA's submissions, and the date of Ms Alvayero's request, may have contributed to this lack of clarity.

[19]
However, the facts above confirm that either way, whether Ms Gordon's decision concerned position number 1-957009 or position number 1-957010, both positions were not permanently vacant and were not available for her appointment. Position number 1‑957009 was filled from the closed merit process. Position number 1‑957010 is not permanently vacant because it is to transition to the QFES.

[20]
In Morison v State of Queensland (Department of Child Safety, Youth and Women),^[4] I held:

[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 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.'

[21]
For the reasons given in paragraphs [14] to [19] of these reasons, it seems to me that Ms Gordon, whether her decision is referrable to position number 1-957009 or position number 1-957010, properly took into account the genuine operational requirements of the Department having regard to Ms Alvayero's request to be appointed to '… the position at the higher classification level.'^[5]

[22]
If Ms Gordon's decision concerned position number 1-957009, then that position was permanently filled, the consequence of which was that there was a genuine operational requirement that prevented Ms Alvayero from being appointed to that position.

[23]
If Ms Gordon's decision concerned position number 1-957010, then because that position is to be transitioned to the QFES, there was a genuine operational requirement as to why the PSBA would not appoint Ms Alvayero to that position.

[24]
Ms Alvayero, in her submissions, seems to make the case that the change in the position number of the Senior HR Business Partner position in which she has been acting since September 2020 is inconsistent with the Directive. However, on the basis of the submissions made by Ms Alvayero and the PSBA, it seems to me that this has been a consequence of the closed merit process for the selection of employees to the three vacant Senior HR Business Partner, classification AO6, positions.

Conclusion

[25]
The question in this appeal was whether the decision to refuse to appoint Ms Alvayero to the higher classified position was fair and reasonable.

[26]
For the reasons given, the decision was fair and reasonable.

Order

[27]
I make the following order:

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

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7].

[2] Footnotes omitted.

[3] From 15 September 2020 until 20 December 2020, and then from 4 January 2021 with such acting to end on 31 March 2021.

[4] Morison (n 1).

[5] Public Service Act 2008 s 149C(3).

Editorial Notes

Published Case Name:
Alvayero v State of Queensland (Public Safety Business Agency)
Shortened Case Name:
Alvayero v State of Queensland (Public Safety Business Agency)
MNC:
[2021] QIRC 34
Court:
QIRC
Judge(s):
Member Merrell DP
Date:
01 Feb 2021

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
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

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Alvayero v State of Queensland (Public Safety Business Agency)[2021] QIRC 34