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- Piccolo v State of Queensland (Public Trustee Office)[2021] QIRC 47
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Piccolo v State of Queensland (Public Trustee Office)[2021] QIRC 47
Piccolo v State of Queensland (Public Trustee Office)[2021] QIRC 47
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Piccolo v State of Queensland (Public Trustee Office) [2021] QIRC 047 | |
PARTIES: | Piccolo, Catherine (Appellant) v State of Queensland (Public Trustee Office) (Respondent) | |
CASE NO: | PSA/2020/319 | |
PROCEEDING: | Public Service Appeal – Appointment to Higher Classification Level | |
DELIVERED ON: | 15 February 2021 | |
MEMBER: | Hartigan IC | |
HEARD AT: | On the papers | |
ORDERS: |
| |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – deemed decision – where the outcome of the review was that the appellant was not permanently appointed to a higher classification level – consideration of "the position" – consideration of the scope of a review under s 149C . | |
LEGISLATION: | Appointing a public service employee to a higher classification level - Directive 13/20, cl 5, cl 6, cl 7, cl 11 Industrial Relations Act 2016 (Qld), s 562A, s 562B Public Service Act 2008 (Qld), s 149, s 149C, s 194, s 195, s 197, s 295 | |
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) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199 |
Reasons for Decision
Introduction
- [1]Ms Catherine Piccolo appeals a decision not to permanently appoint her to the position in which she has been acting at a higher classification level.
- [2]At the time Ms Piccolo commenced this appeal, she was acting in the position of Senior Legal Officer (PO4), Customer Legal Services within the State of Queensland (Public Trustee Office) ("PTO"). Ms Piccolo commenced this position on 3 March 2018.
- [3]Ms Piccolo is permanently employed by the PTO in the substantive position of Lawyer at classification level PO3.
- [4]By notice of appeal filed on 16 November 2020, Ms Piccolo, pursuant to Ch. 7 of the Public Service Act 2008 ("the PS Act"), appealed a deemed decision dated 27 October 2020. The chief executive did not make a decision within 28 days of the commencement of the review. Consequently, pursuant to s 149(6) of the PS Act, Ms Piccolo's engagement was deemed to continue in accordance with the terms of the existing higher duties arrangement, which is due to end on 12 March 2021 ("the decision").
- [5]Ms Piccolo appeals the decision on the following grounds:
- (a)Ms Piccolo meets the criteria for conversion to the position at the higher classification level pursuant to s 149C, having acted at the higher classification level for a continuous period of at least one year;
- (b)Ms Piccolo has demonstrated the requisite merit, having been extended 10 times with no discipline or performance issues raised;
- (c)the decision-maker has failed to consider the genuine operational requirements pursuant to s 149C(4A) of the PS Act. The work performed by Ms Piccolo as a PO4 Lawyer is likely to be ongoing within the PTO and therefore remains a genuine operational requirement;
- (d)the intent of the legislation, coupled with Ms Piccolo's demonstration of merit within the higher duties role, constitutes a genuine operational requirement that Ms Piccolo be permanently appointed to the role; and
- (e)it would be inconsistent with the objects and recent amendments to the PS Act and the purpose of Directive 13/20 for the PTO to continue the higher duties arrangement where there is documented need for the role to be performed on tenure at that level.
- [6]The appeal is made pursuant to s 197 of the PS Act, which provides[1] that 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 ("the Commission").
- [7]Sections 562B(2) and (3) of the IR Act replicate the now repealed ss 201(1) and (2) of the PS Act. 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.
- [8]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.[2] An appeal under Ch. 7, Pt. 1, of the PS Act is not by way of rehearing[3] but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
- [9]For the reasons contained herein, I have found that the decision was fair and reasonable.
The relevant provisions of the IR Act and Directive 13/20 - Appointing a public service employee to a higher classification level ("Directive 13/20")
- [10]In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20, including those provisions which I set out below.
- [11]Section 149C of the PS Act relevantly provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee—
- (a)is seconded to, under section 120 (1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
- (2)However, this section does not apply to the following public services employees—
- (a)a casual employee;
- (b)a non-industrial instrument employee;
- (c)an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.
- (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).
- (4)The department's chief executive must decide the request within the required period.
(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.
- (5)If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- (a)reasons for the decision; and
- (b)the total continuous period for which the person has been acting at the higher classification level in the department; and
- (c)how many times the person's engagement at the higher classification level has been extended; and
- (d)each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
- (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.
- (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—
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the request is made.
- [12]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 consideration 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)
- [13]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.
- [14]Clause 5 of Directive 13/20 provides than an employee may request to be appointed to the higher classification level, as follows:
- Employee may request to be appointed at the higher classification level
5.1 Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the,employee to the higher classification level as a general employee on tenure or a public service officer.
5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
- (a)have been seconded to or assuming the duties and responsibilities of the higher classification level
- (b)for a continuous period of at least one year
- (c)be eligible for appointment to the higher classification level having regard to the merit principle.
5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:
- (a)one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
- (b)each subsequent year where the employee continues their engagement at the higher classification level in the same role.
5.4 An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.
5.5 The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.
- [15]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:
- Decision making
6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
- (a)the genuine operational requirements of the department, and
- (b)the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.
6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.
- [16]Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide a statement of reasons, as follows:
- 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.
- [17]In this matter, as the decision was deemed to be made, there was no requirement, pursuant to cl 7.2 of Directive 13/20 for a written notice to have been prepared.
- [18]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.
- [19]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.
- [20]In summary, s 295(3) of the PS Act provides that in applying 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).
Consideration
- [21]The PTO resists the appeal and makes the following submissions:
- (a)the Commission should decline to hear the appeal pursuant to ss 562A(3)(b)(ii) and (iii) of the IR Act on the basis that the decision is not an appealable decision under s 194(1)(e)(iii) of the PS Act because Ms Piccolo has not been acting at the higher classification level for a continuous period of at least two years;
- (b)Ms Piccolo is ineligible to make a conversion request under s 149C of the PS Act because she has not acted in the same position for a continuous period of at least one year, noting Ms Piccolo has acted in position number 0288E for a continuous period only since 1 July 2020; and
- (c)the genuine operational requirements of the PTO support the temporary engagement of Ms Piccolo at the PO4 level pending the outcome of the current recruitment process for position number 0228E and 0289E.
Is Ms Piccolo eligible to seek conversion to the higher classification position pursuant to s 149C of the PS Act?
- [22]The issue for determination is whether Ms Piccolo was acting up at the higher classification level for a continuous period as referred to in s 149C(1)(b) of the PS Act, in order to be eligible to request to have her employment converted to a higher classification.
- [23]As noted above, the phrase "continuous period" is defined in Ch. 11 of Directive 13/20 as 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."
- [24]Ms Piccolo contends that she has been employed for a "continuous period" at the higher classification level, in the same role as a PO4 Senior Lawyer since 3 March 2018, due to the following grounds:
- (a)Ms Piccolo submits that the role titles used in her employment history, being PO4 Senior Legal Officer and PO4 Senior Lawyer, are interchangeable and are in fact the same role, administratively recorded differently due to different people entering the information;
- (b)although the Office of the Official Solicitor was restructured in June 2020, Ms Piccolo continued in the Customer Legal Services unit which did not change her role;
- (c)notwithstanding the change in position numbers, the work that Ms Piccolo undertakes has been unaffected. Ms Piccolo has continued to be responsible for the same work and files, some of which have continued for over 12 months. Additionally, Ms Piccolo's signature block has remained the same; and
- (d)Ms Piccolo has enquired of management with respect to the change in position numbers since commencing in the higher level role and received a response indicating that the position number changes were merely an administrative process and would not affect Ms Piccolo's role.
- [25]The PTO's submissions also set out that, for two years prior to making her request for conversion, Ms Piccolo had been engaged in higher duties performing the role of PO4 Senior Legal Officer attached to several different position numbers.[6]
- [26]Section 149C(1)(a) of the PS Act provides that the section applies in relation to a public service employee who is seconded to or is acting in a higher classification level in the department, in which the employee holds an appointment or is employed.
- [27]Ms Piccolo satisfies s 149(1)(a) of the PS Act as she has been acting up in a higher classification level in the PTO by acting up in the roles of Senior Legal Officer, PO4.
- [28]Section 149C(1)(b) of the PS Act further states that the section applies to a public service employee is the employee has been seconded in or acting at the higher classification level for a continuous period of at least one year.
- [29]As noted above, continuous period is defined in clause 11 of the Directive 13/20. As has been noted in previous decisions of this Commission,[7] the definition for continuous service found in Directive 13/20 refers to length of time in "a role" rather than in "a position". Section 149C refers to "the position" rather than "a role".
- [30]Ms Piccolo was employed in the role of Senior Legal Officer for a period of at least one year, albeit in different positions. Accordingly, I consider Ms Piccolo was eligible to be reviewed, as she is a person who has been acting at a higher classification at the PTO for the time required by s 149C of the PS Act. The PTO does not contend that Ms Piccolo was not eligible, having regard to the merit principle to be appointed to the position she was acting in at the time of the request.
- [31]It is only once the request is made that the PTO, in conducting the review, is required to determine if Ms Piccolo should be permanently appointed to the position which she occupied at the time of making the request.
- [32]Accordingly, I consider that Ms Piccolo was eligible to request to be reviewed.
- [33]The PTO also contends that the decision is not one to which s 194 of the PS Act applies, as pursuant to s 194(1)(e)(iii) of the PS Act, Ms Piccolo was not acting at the higher classification level for a continuous period of at least 2 years.
- [34]For reasons similar to those made in support of my finding that Ms Piccolo was eligible to request a review, I find that the decision was a decision referred to in s 194(1)(e)(iii) of the PS Act.
- [35]That is because, whilst Ms Piccolo was employed in the position for less than one year, she had been acting up in various positions performing the role of Senior Legal Officer at the higher classification level of PO4 for at least two years.
- [36]For these reasons, I find that Ms Piccolo was entitled to commence this appeal.
Genuine operational requirements
- [37]As noted above, s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 provide that, when deciding a request, the chief executive must have regard to the genuine operational requirements of the department.
- [38]
[40] …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.'
- [39]As noted above, the review is to be conducted by the PTO having regard to the position Ms Piccolo was performing at the time she made the request. The position Ms Piccolo was in at the time was position number 0288E.
- [40]The PTO contends that the position in which Ms Piccolo was acting, position number 0288E, is a recurrently funded position and was, at the time of Ms Piccolo's request, the subject of a recruitment process.
- [41]The PTO submits that applications for the recruitment process opened on 22 September 2020 (before Ms Piccolo's conversion request was made) and closed on 6 October 2020. The PTO confirms that 25 applications were received in total including an application from Ms Piccolo.
- [42]The PTO submits that it would not be fair and reasonable to convert Ms Piccolo to the substantive legal officer position (0288E) in which she is acting in circumstances where the position is currently the subject of a recruitment process, particularly in circumstances where Ms Piccolo is a candidate in that process and that there are two other internal applications who have been acting in higher duties at the PO4 level who are also candidates.
- [43]Ms Piccolo responds to the PTO's submissions stating that she was unaware that the position number that she is currently appointed against was a position being advertised for permanent appointment by the PTO. She states that she made the request due to her eligibility for a review given her length of service in the higher level role and her merit for the role. Ms Piccolo contends that it is unfair for her employer to permanently appoint to a position (number 0288E) under a recruitment and selection process, in circumstances where she made a request to be permanently appointed to the role given her eligibility to do so in accordance with her length of service and merit for the role.
- [44]Ms Piccolo does not directly respond to the PTO's submission that Ms Piccolo has also applied for the role with position number 0288E as part of the recruitment process. I accept the PTO's submission that Ms Piccolo is an applicant for the role and will be considered for the role as part of the recruitment process.
- [45]I consider, given that the recruitment process for the position commenced prior to Ms Piccolo making the request for conversion, that it is reasonable, having regard to the general operational requirements of the PTO including having regard to the effective, efficient and appropriate management of public resources, for that recruitment process to be finalised. As already noted by the PTO in its submissions, Ms Piccolo is a candidate in that process and it is expected that Ms Piccolo will properly be considered in the recruitment process to which she has applied.
- [46]For these reasons, I consider that the decision not to appoint Ms Piccolo to her current acting position because that position was subject to a recruitment process, which had commenced prior to Ms Piccolo making the request, to be a genuine operation requirement of the PTO. Accordingly, I find that the decision is fair and reasonable.
Previous reasons for acting at a higher classification level
- [47]Section 149C(4A)(b) of the PSA and clause 6.2 of Directive 13/20 provide that the Department's chief executive in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level.
- [48]Given the commencement date of the relevant provision of the PS Act and Directive 13/20, there are no previous decisions which are relevant to my consideration.
Compliance with requirements of s 149C(5) of the PS Act
- [49]Ms Piccolo does not complain that the decisions does not comply with the requirements of s 149C(5) of the PS Act.
Order
- [50]I make the following order:
- Pursuant to section 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Pursuant to the Public Service and Other Legislation Amendment Act 2020, amendments were made to the Industrial Relations Act 2016 (Qld) and the Public Service Act 2008 (Qld), commencing on 14 September 2020.
[2] Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] See discussion of various legal categories of appeal in Goodall v State of Queensland (Unreported, Supreme Court of Queensland, Dalton J, 10 October 2018) 5.
[4] Ibid.
[5] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [37] – [38].
[6] Ms Piccolo has acted up in the Senior Legal Officer role PO4 since 3 March 2018.
[7] Including; Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 at [47] and [78] – [79] and Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199 at [76].
[8] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [40] (Merrell DP).