Catterall v State of Queensland (Queensland Police Service)
[2021] QIRC 360
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- Unreported Judgment
- Catterall v State of Queensland (Queensland Police Service)[2021] QIRC 360
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Catterall v State of Queensland (Queensland Police Service)[2021] QIRC 360
Catterall v State of Queensland (Queensland Police Service)[2021] QIRC 360
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360 |
PARTIES: | Catterall, William Scott (Appellant) v State of Queensland (Queensland Police Service) (Respondent) |
CASE NO: | PSA/2021/288 |
PROCEEDING: | Public Service Appeal - Higher Duties Conversion Decision |
DELIVERED ON: | 26 October 2021 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
|
CATCHWORDS: | PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable |
LEGISLATION: | Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level. |
Reasons for Decision
Appeal Details
- [1]Mr Catterall is employed by the State of Queensland (Queensland Police Service)(QPS). His substantive position is AO7 Project Manager, ICT Projects. Since 29 June 2019, Mr Catterall has been performing higher duties in the role of AO8 Project Manager, ICT Projects (position number 4-955624) (the position). Mr Catterall has also previously acted in the position for an extended period between November 2017 (when the role was created) and October 2018 when he took long service leave.
- [2]The higher duties arrangement is jointly funded by both QPS and Queensland Fire and Emergency Services (QFES). The position is scheduled to end on 30 June 2022.
- [3]On 9 July 2021, Mr Catterall made a request for conversion to permanent in the higher duties position. Mr Catterall did not receive a decision by 5 August 2021, being 28 days after his request. 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. It is the deemed refusal that is the basis of this appeal.[1]
Relevant sections of the Act and Directive
- [4]In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- [5]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 one 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; and
- (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.
- (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.
The Directive
- [6]The Directive 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.
- [7]While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
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.
…
- 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 documents an 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.
- 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.
- 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]The phrase "genuine operational requirements of the department" is not defined in the PS Act or the Directive. The phrase, as it appears in s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Morison), Merrell DP stated:
[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)
What decisions can the Commission make?
- [9]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)For another 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.
Mr Catterall's reasons for appeal
- [10]Mr Catterall submits the decision not to permanently appoint him to the position is unfair and unreasonable for the following reasons:
- The decision making failed to consider the intention of the Act and the associated Directive 13/20 "Appointing a public service employee to a higher classification level" (the Directive) as it now "establishes employment on tenure is the default basis of employment in the public service; and
- The decision making did not take into consideration the department's general operational requirements.
Intention of the Act and the Directive
- [11]With reference to cl 4.2 of the Directive, Mr Catterall submits that sub-cl (a) and (b) do not apply as there is not a substantive owner of the position by virtue of it being classified as temporary.
- [12]With reference to cl 4.2(c), Mr Catterall says that the position was not created for, and is not currently assigned to a particular project which has a known end date. However, Mr Catterall says that the position does oversee projects and work that may have an end date. The purpose of the position is to manage all the pre and post project activities including the hiring of staff and overseeing multiple projects at any one time which span both calendar and financial years.
- [13]With reference to sub-clause 4.2(d), Mr Catterall says that when the position was created in November 2017, he was advised that the position was created to supplement three other existing permanent full time AO8 Project Manager positions (which currently still exist) to meet the then increasing demand for ICT based projects. Mr Catterall believes he has been told several times since then (by the then management of both the division and the directorate) that making the position permanent was the preferred option, but this was never actioned.
- [14]Mr Catterall says that by the end of his current appointment to the position, it would have been established for approximately four and a half years and his latest term in the position would have been for three years.
Genuine operational requirements
- [15]Mr Catterall submits that if the Department had carried out a suitable review of the genuine operational requirements of the position, it would have found that there are several reviews undertaken by various stakeholders throughout each year to ensure that the position is still required to assist in the delivery of future ICT projects, and these have continued over multiple years. Each review has found that the position is required.
- [16]The review process starts approximately seven to eight months prior to the commencement of the financial year where the director prepares a business case with the purpose to secure funds to continue the position. The business case is then reviewed and endorsed by the divisional executive before being forwarded to the representative of the funding agencies for final approval. This process has occurred five times in the history of the position.
- [17]Once the funds are allocated, the governance overseeing appointment or extension of the position commences. The current process involves written submissions by the directors to the Workplace Planning Committee which reviews such things as the funding source, recruitment processes and operational needs. This process was completed the first time Mr Catterall was appointed and for each of the five extensions to date.
- [18]At the end of Mr Catterall's current engagement, the position would have been in existence for 4.5 years. Mr Catterall submits that as he has continuously performed the role for three of those years, the role can no longer be considered a short-term appointment according to s 149C(1) of the PS Act and that he should be converted to the higher duties position permanently.
Respondent submissions
Initial conversion request November 2020
- [19]This is the second conversion request made by Mr Catterall, the first being lodged with the QPS on 24 November 2020. The written response to the conversion request advised:
- (a)Due to genuine operational requirements of the agency [you] are to continue to be engaged according to the terms of your existing higher duties arrangement, and
- (b)That [the Appellant] has been placed on higher duties continuously against the temporary position of AO8 Project Manager since 29 June 2019. The Appellant has been in the role for 18 months, has been extended in the position three times and the position is temporary.
- [20]Mr Catterall was advised that the genuine operational requirements were associated with the disestablishment of the Public Safety Business Agency and the subsequent redistribution of staff and funding for the roles required by each agency i.e. QFES and the QPS.
The Current Appeal
- [21]Given the decision was refused due to the effluxion of time, there is no requirement upon the CEO to provide written notice. Mr Catterall's employment in the project role continues.
- [22]In response to Mr Catterall's submissions regarding the AO8 position and the alleged funding arrangements, the QPS advises the original letter provided to Mr Catterall in his initial application for conversion provides genuine operational reasons why conversion did not occur.
- [23]The finalisation of most positions to the respective agencies was 1 July 2021, however, funding had already been allocated to positions as part of a funding review earlier in the year.
- [24]The position of the Project Manager ICT Projects is a temporary role that is being reviewed by each of the original portfolio agencies as to the need for continuation of that role while each agency reviews their ICT structure. There is no recurrent funding for the position.
Mr Catterall's further submissions
- [25]Mr Catterall says that as the decision in response to his request for appointment to the higher duties position in November 2020 was provided to him 67 days after his request, it was, in effect, a deemed decision.
- [26]Mr Catterall notes that the Respondent raises no issues concerning merit.
- [27]The Respondent has not considered the fact that the PS Act 'establishes employment on tenure is the default basis of employment in the public service'.
Recurrent funding
- [28]It is not in dispute that there is no recurrent funding attached to the position. All temporary positions, by their very nature, have this attribute. The PS Act and various directives do not specifically call out the requirements for funding (or a funded vacant permanent position). If this were the case, no temporary position could ever be converted.
- [29]Mr Catterall believes that in determining that the position cannot be converted, the QPS has placed undue weight on the fact that the position was created temporarily and has no recurrent funding attached to it, rather than considering the mandatory requirements of the Directive.
The role is being reviewed
- [30]With regard to the submissions of the Respondent that the role is being reviewed, Mr Catterall refers to the information provided to him on 11 January 2021 as feedback relating to his first conversion request. That communication stated 'you will continue in the role of Project Manager until 31 March 2021 when the genuine operational requirements of the agency will be reviewed'.
- [31]Mr Catterall says that he is now a QPS employee and is unaware of any review which may have occurred on or about 31 March 2021. Mr Catterall says that on 31 March 2021, he was extended for another 3 months in the position and on 29 June 2021 was extended for a further 12 months. Mr Catterall says that he is unaware of any review occurring now which would affect his position.
- [32]Mr Catterall says that if the review referred to is a part of an organisational restructure, no further information has been presented to him since the email of 31 March 2021, certainly nothing which will imminently impact the future of his higher duties position.[2]
- [33]As a union member, there has been no communication to Mr Catterall that suggests that there has been a scope or terms of reference for a review which may affect his position presented to the union.[3]
- [34]Mr Catterall contends that the repeated yearly funding process shows that the original portfolio agencies are supportive of his position, including recently funding it for another 12 months. The position has now been funded for four years and the respondent has not provided any evidence of any findings of fact to support the contention that the work currently performed is temporary or may come to an end as a result of the review.[4]
- [35]Mr Catterall says that even if there is uncertainty about the future of the role, it does not necessarily absolve decision makers of their obligations under s 25(2)(d) and s 98(1)(d) of the PS Act.[5]
- [36]While the Respondent spent time in their submission explaining why they didn't have to respond to Mr Catterall's requests, Mr Catterall says that he should not have had to file a public service appeal to receive detailed reasons for a decision not to convert his employment.[6]
- [37]Mr Catterall satisfies the eligibility criteria and submits that he has the support of both the directorate and divisional human resources (HR) delegates to be permanently appointed to the position.[7]
Consideration
- [38]The legislative framework establishes that the failure to make a decision within 28 days means that it is deemed that the request for appointment to the higher duties position is refused and that there is no requirement for the provision of reasons to the employee.
- [39]However, the deemed decision can be appealed. In order to decide the appeal, it is necessary for me to consider whether the circumstances surrounding Mr Catterall's employment support his continued temporary appointment at the higher classification level in the context of the legislation and directive.
- [40]In Morison, it was held that with regard to s 149C(4A)(a) of the PS Act and cl 6.2(a) of the Directive, a consideration of 'genuine operational requirements' would address:
…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…position at the higher classification level.'[8]
- [41]The Respondent submissions largely addressed the legislative framework surrounding the appeal but did briefly address the circumstances surrounding Mr Catterall's higher duties position. The Respondent repeated the reason provided to Mr Catterall in response to his previous request and state that 'the finalisation of most positions to the respective agencies was 1 July 2021 however funding had already been allocated to positions as part of funding review earlier in the year'. The statement above does not give me any specific information about Mr Catterall's position or any reason to believe that his position has been impacted by a 'funding review' earlier in the year or that this review was the one referred to in the advice provided to Mr Catterall (see [30] above) following the previous deemed decision.
- [42]The Respondent submits:
- The position of Project Manager ICT Projects is a temporary role;
- the role is being reviewed by each of the original portfolio agencies as to the need for continuation of that role while each agency reviews their ICT structure;
- there is no recurrent funding for the position; and
- although the request has been deemed to be refused, Mr Caterall will retain his current arrangement.
- [43]The Respondent does not address the submissions made by Mr Catterall in his appeal notice that:
- None of the criteria set out at cl 4.2 of the Directive apply to his role;
- that Mr Catterall has performed the position since it was created in November 2017 (with the exception of a period of leave);
- the outcome of reviews being undertaken by various stakeholders throughout each year is that the higher duties position has be required;
- the budget approval process has now resulted in the position being funded for the following year on five occasions; and
- governance processes involving submission by Mr Catterall's Director to the Workplace Planning Committee were completed when Mr Catterall was first appointed and for each of the five extensions to date.
- [44]While the Respondent points out that the role is temporary, Mr Catterall's uncontested submission is that the role was created in November 2017 and that following an initial period of performing the role before taking a period of long service leave, Mr Catterall has performed the role since 29 June 2019. The ongoing existence of the role and the fact that it does not clearly match the circumstances set out at cl 4.2 of the Directive supporting temporary engagement of an employee at a higher classification level indicate that the role could no longer be considered temporary in nature. There appears to be an 'authentic need' for the position.
- [45]With regard to the brief submission about the 'role being reviewed', there is no information before me to suggest that the review is formal, has any terms of reference or intended date of completion. Certainly no documentation has been provided to me to support the contention that there is an ongoing review which may affect Mr Catterall's position. It seems that the role has been through some form of 'review' each year that it has existed and it has been found to be required in the following year. The fact that the role has continued throughout and beyond the disestablishment of the Public Safety Business Agency is a strong indication that the work Mr Catterall is performing forms part of the genuine operational requirements of the Department.
- [46]The Respondent points to there being a lack of recurrent funding for the role. There has demonstrably been funding available for Mr Catterall's role in an ongoing way. Each time a submission has been made through the internal processes described by Mr Catterall, funding has been provided to enable the position to continue. The Directive does not require there to be recurrent funding or a funded vacant permanent position in order for appointment to the higher classification level to occur.
- [47]I do not think the deemed refusal decision of the QPS was fair and reasonable. The purpose of the legislation and 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'.
- [48]For the reasons given above, I am not persuaded that the operational requirements put forward by the QPS are such that Mr Catterall should be denied permanent appointment to the role he has been performing since June 2019 and is currently engaged to perform until the middle of 2022.
- [49]Mr Catterall satisfies the criteria to be eligible for appointment.
Orders
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
- the decision appealed against is set aside; and
- another decision is substituted that Mr Catterall is appointed to the position at the higher classification level in accordance with s 149C of the Public Service Act 2008.
Footnotes
[1] Public Service Act 2008, s 149C(6).
[2] Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188, 10, [39] – [43] ('Brew').
[3] I assume Mr Catterall is referring to consultation provisions in the relevant industrial instrument.
[4] Purvis v State of Queensland (Department of Housing and Public Works) [2021] QIRC 040, 19 [59] ('Purvis').
[5] Brew (n 1) [42].
[6] Owen v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 0731.
[7] Attachment 1: Screenshot of Request No 568992 HD Conversion to Permanent showing approvals: Manager/OIC Endorsement (Peter Wilde on 9 July 2021) and Delegate Endorsement (Jason Farrow on 16 July 2021).
[8] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [40].