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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Riddiford v State of Queensland (Department of Education)  QIRC 064
State of Queensland (Department of Education)
Public Service Appeal - Appointment to a higher classification
24 February 2021
On the papers
DATES OF WRITTEN SUBMISSIONS:
Appellant's written submissions filed on 3 December 2020 and 24 December 2020 and Respondent's written submissions filed on 10 December 2020
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
INDUSTRIAL LAW – public service appeal – appellant acting in position at a higher classification level – appellant requested to be appointed to the position pursuant to s 149C(3) of the Public Service Act 2008 – no decision made by the chief executive of the request within the required period – chief executive taken to have refused request – whether decision taken to have refused request was fair and reasonable – decision taken to have refused the request was fair and reasonable because the position was a genuine, temporary project position
Directive 13/20 Appointing a public service employee to a higher classification level, cl 4 and cl 6
Industrial Relations Act 2016, s 562C
Public Service Act 2008, s 148, s 149B and s 149C
King-Koi v State of Queensland (Department of Education  QIRC 209
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203
Reasons for Decision
- Ms Maura Riddiford is employed by the State of Queensland in the Department of Education and is permanently appointed to the position of Senior Human Resources Consultant, classification AO6, in the North Queensland Region of the Department. Since 19 March 2018, Ms Riddiford has been acting at the higher classification level of AO7 in the position of Principal Project Officer within the Workforce Planning Unit ('the position').
- By email dated 11 October 2020, pursuant to s 149C(3) of the of the Public Service Act 2008 ('the PS Act'), Ms Riddiford made a request to be appointed to the position. No decision was made by the chief executive of the Department, in response to that request, within the required period within the meaning of s 149C(4) of the PS Act. The consequence was that, pursuant to s 149C(6) of the PS Act, the chief executive was taken to have refused the request ('the decision').
- By appeal notice filed on 26 November 2020, Ms Riddiford, pursuant to ch 7 of the PS Act, appealed against the decision.
- The Department does not dispute that Ms Riddiford was eligible to make her request to be appointed to the position and that the decision was taken to have been made pursuant to s 149C(6) of the PS Act.
- The question for my determination is whether the decision was fair and reasonable.
- Pursuant to a Directions Order dated 26 November 2020, the parties filed and served written submissions. Ms Riddiford made submissions as to why it was a genuine operational requirement of the Department, that the duties she has been performing in the position, are undertaken on a permanent basis. The Department then made detailed submissions as to why Ms Riddiford's request should expressly have been denied having regard to its genuine operational requirements. Ms Riddiford had the opportunity to file and serve submissions in reply to the Department's submissions. Ms Riddiford took up that opportunity.
- In my view, for the reasons that follow, the decision was fair and reasonable.
Ms Riddiford's grounds of appeal and submissions
- Ms Riddiford contends that:
- the chief executive's failure to make a decision was not fair and reasonable; and
- she has performed her role in the position for over two years without any adverse finding in respect of her performance, the consequence of which is that she is eligible for appointment to the position at the higher classification level having regard to the merit principle.
- In Ms Riddiford's appeal notice, the relief sought by Ms Riddiford is that the decision is set aside and that her employment status should be converted to permanent.
- In her principal submissions, Ms Riddiford submitted that:
- any decision that fails to consider any relevant consideration is not fair and reasonable;
- a decision without reasons is also unfair and unreasonable; and
- because the decision taken to have been made under s 149C(6) of the PS Act has no reasons and has not considered the mandatory criteria in cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'), and because of those facts, the decision is unfair and unreasonable.
- Ms Riddiford then, having regard to the purpose of the Directive and to my decision in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison') made submissions about why the genuine operational requirements of the Department supported her appointment to the position at the higher classification level.
- In this regard, Ms Riddiford submitted:
- The role I perform in the Strategic Workforce Planning unit within the Department of Education is a high priority function as a result of recommendations by the Coaldrake review into Queensland public sector workforce reporting and is now a mandated requirement. All departments must develop a strategic workforce plan which is updated annually to coincide with the strategic planning process. My relieving role within the Workforce Planning team is aligned to achieving this requirement and is therefore an ongoing genuine operational requirement of my employer.
- Therefore, it is a genuine operational requirement of the Department that the duties I have been undertaking at the higher classification level are undertaken on a permanent basis. I am not backfilling another employee, nor am I engaged to perform work for a particular project or purpose that has a known end date or to perform work necessary to meet an unexpected short-term increase in workload, nor are there other circumstances as envisioned by the directive for me to continue as an employee performing higher duties.
- I am aware that a number of my previously temporary colleagues in the Workforce Planning Unit have been successful in gaining permanency through conversion in accordance with s 149 of the PS Act.
- I believe I continue to demonstrate considerable merit in my role by applying the merit criteria in section 28 of the PS Act. I have had no performance or disciplinary issues and I have received positive performance feedback to date. Accordingly, I believe that I meet the criteria for appointment.
- Permanent employment in the role is viable and appropriate because the work I am doing is a continuing and ongoing requirement of the Department. None of the circumstances set out in cl 4.2 of the Directive apply to my employment.
- For me to stay as an employee on higher duties rather than a permanent employee would be inconsistent with the words of the Directive and the relevant provisions of the Act and also the legislative purpose in which these provisions must be interpreted and applied, including:
The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.
- Ms Riddiford concluded her submissions by submitting that:
- the purpose of the PS Act and the Directive include that 'employment on tenure is the default basis of employment in the public service' and that an employee should have the opportunity to be appointed to a higher classification level where the employee meets the relevant eligibility criteria and having regard to the merit principle; and
- the Commission should exercise its discretion pursuant to s 562C of the Industrial Relations Act 2016 by setting aside the decision and substituting another decision (which I understand to be) that she is appointed to the position.
The Department's submissions
- The Department submitted that:
- the position is a temporary position within the Department, created to perform work for a particular project or purpose that has a known end date, as contemplated by s 148(2)(b) of the PS Act;
- at the conclusion of the project, the position will be abolished;
- the particular project is the Teaching Queensland's Future ('TQF') project which has a specified end date of 30 June 2021 as noted in the TQF Stage Plan (which was attached to the Department's submissions);
- the temporary engagement of Ms Riddiford in the position is consistent with the parameters outlined in cl 4.2(c) of the Directive, which supports the temporary engagement of an employee at a higher duties classification level to perform work for a particular project or purpose that has a known end date;
- the TQF project was created to execute a five-year strategy to ensure the sustainable supply of capable and confident teachers in Queensland state schools and has been funded and resourced according to a scheduled completion of 30 June 2021; and
- the TQF project was tasked with developing teacher-specific workforce planning tools which would ultimately transition to the Regional HR teams as part of business as usual operations.
- The Department then submitted:
- The TQF project has always been scheduled for completion in the fourth year of the five‑year TQF Strategy.
- The remaining year of the TQF Strategy will be achieved by the current Regional HR teams utilising the workforce planning tools in their business as usual activities.
- The department confirms the scope of the TQF project includes the transition of the workforce planning tools to the Regional HR Business Partnering teams, of which the Appellant's substantive permanent position forms part of.
- In the final stages of the TQF project scheduled for 2021, the team members are tasked to assist the Regional HR Business Partners to integrate and implement the workforce planning tools into the business as usual activities.
- The project scope does not include the transition of the temporary project positions, and/or the employees engaged in those positions, to the Regional HR teams.
- The Appellant is temporarily engaged in the higher classification level position to 30 June 2021, representing the remaining life of the TQF project consistent with clause 4.2(c) of the Directive.
- The Appellant, upon each engagement during the project period, has known the purpose of the TQF project, that it was finite, and contains a set schedule by which her tasks are allocated including defined completion dates.
- While the Respondent acknowledges current consideration is being given to an extension of the project for a further six month period (following the challenges presents [sic] during the health pandemic to complete the required project tasks), any extension of the project is subject to executive approval and will not necessarily result in an extension of the Principal Project Officer position. The Respondent submits that even if (a) the project was extended and (b) the Principal Project Officer position was also extended, the employment of the Appellant in this temporary role would, and should, remain temporary in accordance with the PS Act and Directive 13/20 as it remains that the purpose of the role is for a particular project with a known end date.
- The TQF project has a finite scope, funding and schedule concluding on 30 June 2021, therefore presenting genuine operational requirements for the department to refuse the Appellant' s request to be appointed to the higher classification level position, which as stated is a genuine temporary position.
Ms Riddiford's submissions in reply
- Despite being given the opportunity to do so, Ms Riddiford did not deal directly with the submissions made by the Department about the TQF project and Ms Riddiford's placement in the position for the purposes of the TQF project.
- Instead, Ms Riddiford made submissions about:
- the unfair and unreasonable nature of the deemed decision by way of the failure of the chief executive of the Department to give express consideration to her request; and
- the unfair nature of the fact that the Department has now made submissions on appeal to supplant any reasons for the decision of the chief executive which should have been given in response to her request.
- In this later regard, Ms Riddiford submits:
- Submissions on an appeal should not supplant the decision, nor can they be said to constitute the requirement to provide reasons. It was only by lodging this appeal that these reasons were put to me. Even if it were accepted that the submissions were valid considerations to deny my conversion, they are not the delegated decision maker's reasons; they are the retroactive reasons provided by the Department. While these may have been valid considerations for the decision maker to take into account during the review process, I submit however it is insufficient to raise them now.
The decision was fair and reasonable
- For the reasons I gave in King-Koi v State of Queensland (Department of Education), albeit in relation to an appeal concerning the application of s 149B the PS Act, the decision taken to have been made by the chief executive of the Department pursuant to s 149C(6) of the PS Act is a decision against which Ms Riddiford can appeal. Both Ms Riddiford and the Department made submissions in relation to the appeal, including in relation to the material question of whether the genuine operational requirements of the Department supported the appointment of Ms Riddiford to the position.
- Despite the fact that the decision which allowed Ms Riddiford to appeal was one taken to have been made pursuant to s 149C(6) of the PS Act in respect of which no reasons were given, the Department has, in responding to Ms Riddiford's appeal, provided clear reasons as to why it says the genuine operational requirements of the Department are contrary to the appointment of Ms Riddiford to the position. Ms Riddiford has had every opportunity to respond to those submissions.
- As I stated in Morison:
 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.'
- Ms Riddiford, in her submissions in reply, does not dispute the Department's submissions about the TQF project, including:
- the purpose of the TQF project;
- that the position in which Ms Riddiford has been acting at a higher classification level is a temporary position in the TQF project;
- that the TQF project has a specified end date of 30 June 2021; and
- that in the final stages of the TQF project, scheduled for 2021, team members will be asked to assist the Regional HR Business Partners to integrate and implement the workforce planning tools into the business as usual activities and that the project scope does not include the transition of the temporary project positions and/or the employee's engaged in those positions, into the Regional HR teams.
- In my view, this is a clear case where the facts do not compel the conclusion that there is an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint Ms Riddiford to the position. This is because the position is, in truth, a genuine, temporary project position in respect of which there will be no need to employ any person in the position at the conclusion of the project on its projected end date or whatever reasonable and appropriate project extension end date is decided by the Department.
- For these reasons I have given, the decision of the chief executive was fair and reasonable.
- I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
- Published Case Name:
Riddiford v State of Queensland (Department of Education)
- Shortened Case Name:
Riddiford v State of Queensland (Department of Education)
 QIRC 64
Member Merrell DP
24 Feb 2021