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  4. Krinke v State of Queensland (Queensland Fire and Emergency Services) - [2021] QIRC 70

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Krinke v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 70

Krinke v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 70

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Krinke v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 070

PARTIES:

Krinke, Kay

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO:

PSA/2020/435

PROCEEDING:

Public Service Appeal – Conversion to higher classification level

DELIVERED ON:

4 March 2021

MEMBER:

Power IC

HEARD AT:

On the papers

OUTCOME:

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

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 27B

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 149C

Directive 13/20 Appointing a public service employee to a higher classification level, cls 5, 6 and 7

Queensland Public Service Officers and Other Employees Award – State 2015

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)

Khan v State of Queensland (Department of Housing and Public Works) [2020] QIRC 227

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

  1. [1]
    Ms Kay Krinke (the Appellant) is permanently employed in the position of AO6, Senior Advisor Human Resource Services (substantive position) within the State of Queensland (Queensland Fire and Emergency Services) (the Respondent).
  1. [2]
    Since 13 September 2017, the Appellant has acted in the higher classification role as an AO7, Principal Advisor, Human Capital Operations Support and AO8, Executive Manager, Human Capital Operations. The Appellant returned to her substantive position on 4 January 2021.
  1. [3]
    The Appellant appeals a decision by Stephen Smith, Assistant Commissioner, QFES People, dated 9 December 2020, to refuse the request made by the Appellant to be permanently appointed to the position at the higher classification level of AO7 in which she had been acting.

Appeal Principles

  1. [4]
    The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).
  1. [5]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision‑making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Assistant Commissioner Smith to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.

Decision to be reviewed

  1. [8]
    On 9 December 2020, Assistant Commissioner Smith informed the Appellant of the decision in response to her request. In doing so, Assistant Commissioner Smith stated:

…due to the genuine operational requirements of the agency, you are to continue to be engaged in the secondment/higher duties arrangement only until 24 December 2020, because the role of Principal Advisor, Human Capital Operations Support, reporting to Executive Manager Ms Nicole Lee, and which previously dealt with HR initiatives including guidelines for critical incidents and flexible work, ceased to exist upon realignment of the Directorate from Human Capital Management to QFES People.

I acknowledge that you have performed higher duties roles at AO7 and AO8 levels since 13 September 2017 and that whilst you were extended on various occasions during that time, those particular roles ceased upon transition into a new structure approved by the Commissioner of QFES on 29 June 2020.

These changes have been communicated to staff in realignment discussions led by Directors on 20 July 2020, during the Assistant Commissioner’s auditorium briefing of 24 July 2020 and as recapped in the Assistant Commissioner's email sent on the afternoon of 27 July 2020.

Establishment changes reflecting the realignment were effected on 31 August 2020.  I appreciate that you have continued higher duties at AO7 level more recently since that time in a different position, reporting to Ms Janet Richardson, associated with reporting analysis and other strategy, policy and procedure work, however this role within QFES is being discontinued because of genuine operational requirements contingent upon existing Service Level Agreement arrangements between QFES and PSBA.

…

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant provisions of the PS Act and the Directive

  1. [10]
    Section 149C of the PS Act provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    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. (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-
  1. (a)
    the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (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-

  1. (a)
    the genuine operational requirements of the department;

and

  1. (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.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (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.
  1. (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.

…

  1. (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-

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply-28 days after the request is made.
  1. [11]
    The Directive relevantly provides:

5. 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:

  1. (a)
    have been seconded to or assuming the duties and responsibilities of the higher classification level
  1. (b)
    for a continuous period of at least one year
  1. (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:

  1. (a)
    one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  1. (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.

  1. 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:

  1. (a)
    the genuine operational requirements of the department, and
  1. (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.

  1. 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:

  1. (a)
    set out the findings on material questions of fact, and
  1. (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.

Grounds of Appeal

  1. [12]
    The Appellant outlined the following grounds of appeal, in summary:
  • the decision-maker has erred, as a question of fact as the position the Appellant is filling still exists in the organisational structure and will continue to be required; and
  • the realignment that the decision-maker is relying on as a genuine operational requirement that warrants denying the Appellant's appointment has not occurred as described in the outcome letter. The communique sent to all staff regarding the realignment would appear to be in contradiction to those in the letter provided.

Submissions

  1. [13]
    The Commission issued a Directions Order calling for submissions following receipt of the appeal notice. 

Respondent's submissions

  1. [14]
    The Respondent filed the following submissions. In summary:
  • the Respondent relies on the decision of Industrial Commissioner McLennan in Khan v State of Queensland (Department of Housing and Public Works),[5] in particular, the Respondent outlines:
  1. (a)
    that Industrial Commissioner McLennan determined that s 149C of the PS Act provides that an employee may ask to be appointed to the position at the higher classification level, that is, "an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position";[6]
  1. (b)
    that the interpretation of the language used in s 149C of the PS Act is narrower:

In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same. Following the review, the department chief executive may "offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same and any appointment is not inherently tied to a particular position identified by number.

The language of s 149C is narrower: the employee may ask the department’s chief executive to appoint the employee to the position at the higher classification as a general employee on tenure or a public service officer. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position.[7]

  1. (c)
    that "[i]n conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review";[8]
  • the Respondent submits that the position of Principal Advisor, Human Capital Operations Support, in which the Appellant was acting in, ceased upon the realignment of the directorate from Human Capital Management (HCM) to QFES People in June 2020. The Appellant was advised of this action by Ms Lyn Richards, Director People Operations Support, on 20 July 2020;
  • at that stage, the position was restructured to undertake a different role and duties and the Appellant remained in the restructured position until the cessation of her higher duties' arrangement on 3 January 2020;
  • the Respondent is currently undergoing ongoing significant organisational changes within the Respondent. This includes the disestablishment of the Public Safety Business Unit (PSBA) and the integration of PSBA staff into the Respondent during the first quarter of 2021. This has significant implications on the Respondent establishment and action is currently being taken to determine future operational requirements and ongoing staffing needs of corporate service areas such as human resources within the Respondent;
  • the position in which the Appellant was acting in became vacant due to the higher duties’ conversion of the substantive owner of the position on 11 November 2020. However, whilst the position became vacant at that stage, the Respondent determined the assessment of the ongoing roles and responsibilities of the position was required and not fill this position until future operational requirements could be established;
  • given the operational requirements outlined, approval was made by the Establishment Resource and Vacancy Management Committee within the Respondent to redesignate the position to the QFES Resourcing Unit, with the intent of the position being reallocated at a future date to a QFES priority area on 17 December 2020;
  • the Respondent submits that the position was not available due to operational requirements and was therefore not offered to the Appellant for permanent appointment to the higher classification of AO7; and
  • the Respondent acknowledges that the Appellant is a valued member of staff and given her experience at the AO7 and AO8 classifications, encourages her to apply for any future opportunities within the Respondent that may occur at these classification levels.

Appellant's Submissions in reply

  1. [15]
    The Appellant filed the following submissions in response to the Respondent's submissions. In summary:
  • the Appellant submits that Assistant Commissioner Smith did not have full regard to the requirements of the PS Act and the Directive in making his decision dated 9 December 2020;
  • sections 11.1 and 11.2 of the Queensland Public Service Officers and Other Employees Award – State 2015 outlines the employers' duty to consult over change. These sections relevantly provide where:

…an employer decides to introduce changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer shall notify the employees who may be affected by the proposed changes and, where relevant, their union/s…

  • the Appellant outlines that 'significant effects' includes "…major changes in the composition, operation or size of the employer's workforce or in the skills required; the elimination or diminution of job opportunities or job tenure; …..the need for retraining or transfer of employees to other work or locations and the restructuring of jobs…" Further, consultation must occur as soon as practicable after making the decision;
  • the Appellant refers to the email from Assistant Commissioner Smith titled 'Update re HCM' sent to staff on 27 July 2020. The email advised of a number of changes being implemented to ensure HCM is delivering its work in line with the Respondent's strategic priorities and that '…all permanent positions will remain…';
  • this advice contradicts the reasons given in the decision letter and in the Respondent's submission that the role 'ceased'. The email further advises staff that:

…staff feedback from the Working for Queensland surveys and via other avenues indicates…that staff…they wanted job security/temporary roles addressed; and, that staff wellbeing and support to do their job is a concern. The changes being made incorporate this feedback as well as strengthening relationships within our Directorate, across QFES more broadly, and with our partner agencies…

  • the Appellant refutes that Ms Richards advised the Appellant of the restructure or the ceasing of the role. While the Appellant confirms a meeting did take place on 20 July 2020, the purpose of the meeting was to discuss a re-organisation of duties and roles moving into new teams to better support the Respondent. Further, the Appellant submits that there is evidence provided in emails from Mr Callum MacSween, Director Human Resource Strategy and Data where the changes are referred to as a re-organisation of HCM;
  • the Appellant submits that if the Respondent's 'organisational change' has been material in the decision to refuse the Appellant's request to be appointed to the higher classification, then the Respondent would be obligated to consult with affected employees, including the Appellant, in accordance with sections 11.1 and 11.2 of the Award; and
  • prior to the Appellant's conversion request, there was no communication by the Respondent regarding the organisational change at the time of making the decision to undertake an organisational change process, or as soon as practical after making this decision. The first instance the Respondent advised of the organisational change impacting the AO7 Principal Advisor role was in response to the Appellant's appeal of Assistant Commissioner Smith’s decision. There has been no written advice as to the nature of the changes proposed and the expected effects on the role in question as is standard practice, nor has there been any opportunity to be consulted pursuant to sections 11.2(a) and (b) of the Award. 

Consideration

  1. [16]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.  I accept that the Appellant is entitled to appeal the decision made pursuant to s 149C on the basis that she has acted at the higher classification level for a period in excess of two years.
  1. [17]
    The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A):
  1. (a)
    the genuine operational requirements of the department; and
  2. (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.

Genuine operational requirements of the Department

  1. [18]
    As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),[9] the phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, would at least include consideration of the following:

… 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.'[10]

  1. [19]
    The Respondent advised the Appellant that the role in which she had been acting had ceased upon the realignment of the directorate from Human Capital Management to QFES People in June 2020. This position was restructured to undertake different duties, with the Appellant remaining in the restructured position until the cessation of her higher duties' arrangement on 3 January 2021.
  1. [20]
    The Respondent submits that QFES is currently undergoing significant organisational changes. This includes the disestablishment of the PSBA and the integration of PSBA staff into QFES during the first quarter of 2021. I accept that this process has significant implications for the QFES establishment and the future operational requirements of this agency.
  1. [21]
    The Appellant submits that the realignment has not occurred as described in the decision and the position still exists in the organisational structure. This may well be the case, however, the current process of organisational change suggests that even if this realignment had not occurred at the time this appeal was filed, it is intended for this to be the case in the first quarter of 2021. 
  1. [22]
    The decision to 'redesignate' the position with the intention of the position being reallocated at a future date to a QFES priority area is consistent with a consideration of genuine operational requirements of the agency, as is a decision to discontinue the position.
  1. [23]
    I accept that it was fair and reasonable for the Respondent to consider the organisational changes occurring between QFES and PSBA and the subsequent changes to the Appellant's role in determining that there was not an authentic need to appoint the Appellant having regard to the effective, efficient and appropriate management of the public resources of the department.

Previous reasons for acting at a higher classification level

  1. [24]
    Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent 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.
  1. [25]
    The Respondent is not required to demonstrate compliance with s 149C(4A)(b) as no previous decisions were made under s 149C of the PS Act.

Compliance with requirements of s 149C(5) of the PS Act

  1. [26]
    The Respondent has confirmed that the Appellant has been acting in the higher duties roles since 13 September 2017 and have been engaged at the higher classification level for 3.25 years. The Respondent confirms that the Appellant's engagement in higher duties have been extended several times, attaching the Appellant's position history. Although s 149C(5)(c) requires the decision-maker to state the number of times the person's engagement at the higher classification level has been extended, I am satisfied that the attachment of position history is sufficient to satisfy the requirement of s 149C(5)(c) of the PS Act.
  1. [27]
    As mentioned above, no previous decisions have been made under this section of the PS Act and so s 149C(5)(d) was not included in the decision. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act.
  1. [28]
    Clause 7 of the Directive requires that the notice provided pursuant to s 149C(5) must be in accordance with s 27B of the Acts Interpretation Act 1954 (Qld). Whilst the findings outlined by the decision-maker may be considered brief, I am satisfied that they provide a sufficiently clear explanation as to the reasons for the decision. 
  1. [29]
    I note that the Respondent has acknowledged that the Appellant is a valued member of staff and there is no dispute with respect to the Appellant's satisfaction of the merit principle.
  1. [30]
    I also note the Appellant's submissions with respect to the employers' duty to consult over change pursuant to the Queensland Public Service Officers and Other Employees Award – State 2015. The appeal in this matter is to determine if the decision to decline conversion to the higher duties role is fair and reasonable having regard to the requirements of the Directive and the PS Act. It is beyond the scope of the appeal to consider whether the Respondent has complied with obligations imposed by industrial instruments with respect to organisational change consultation. If the requisite consultation has not occurred, the PS Act provides other avenues through which these concerns may be ventilated.
  1. [31]
    In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was fair and reasonable.

Order

  1. [32]
    I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2020] QIRC 227.

[6] Ibid [46].

[7] Ibid [49]-[50].

[8] Ibid [54].

[9] [2020] QIRC 203.

[10] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Krinke v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Krinke v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2021] QIRC 70

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    04 Mar 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
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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Khan v State of Queensland (Department of Housing and Public Works) [2020] QIRC 227
5 citations
Jump To
Cite 1 - [2020] QIRC 227
Cite 2 - [2020] QIRC 227
Cite 3 - [2020] QIRC 227
Cite 4 - [2020] QIRC 227
Cite 5 - [2020] QIRC 227
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 1883 citations
1

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