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Unreported Judgment

Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 75Member Merrell DP
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Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 75

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) [2021] QIRC 075
PARTIES:	Honan, Debra (Appellant) v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) (Respondent)
CASE NO.:	PSA/2020/390
PROCEEDING:	Public Service Appeal - Appointment to a higher classification
DELIVERED ON:	10 March 2021
MEMBER:	Merrell DP
HEARD AT:	On the papers
DATES OF WRITTEN SUBMISSIONS:	Appellant's written submissions filed on 10 December 2020 and Respondent's written submissions filed on 18 December 2020
ORDER:	Pursuant to s 562C(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
CATCHWORDS:	INDUSTRIAL LAW – public service appeal – appellant requested respondent's chief executive to appoint appellant to a higher classification level – appellant not appointed because of the temporary nature of the position and because of the restructuring of the appellant's work unit – whether the decision not to appoint the appellant to the position was fair and reasonable – decision was fair and reasonable – decision appealed against confirmed
LEGISLATION:	Directive 13/20 Appointing a public service employee to a higher classification level, cl 6 Industrial Relations Act 2016 s 562C Public Service Act 2008, s 25 and s 149C
CASES:	Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Introduction

[1]
Ms Debra Honan is employed by the State of Queensland in the Department of State Development, Infrastructure, Local Government and Planning and is permanently appointed to the position of Senior Project Officer, classification AO6. Ms Honan has been acting at the higher classification level of AO7 in the position of Principal Project Officer in the Business Support and Asset Management team ('BSAM'), State Development Areas Division ('SDAD') in the Office of the Coordinator-General ('OCG') of the Department ('the position').

[2]
By appeal notice filed on 4 December 2020, Ms Honan, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision of Mr Michael McKee, Deputy Director-General, Corporate, dated 26 November 2020. The decision was to deny an earlier request made by Ms Honan to be appointed to the position ('the decision'). The decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive').

[3]
The Department does not dispute that Ms Honan was eligible to make her request to be appointed to the position.

[4]
The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.^[1]

[5]
In my view, for the reasons that follow, the decision was fair and reasonable.

Background

[6]
Ms Honan commenced employment in the Department in September 2008 and was appointed to her permanent position of Senior Project Officer in September 2009. Ms Honan claims that she has '… been continuously acting in' the position since 1 August 2016.^[2]

[7]
Annexed to the decision was a table setting out the details of the positions in which Ms Honan has worked since 1 August 2016. In her submissions, Ms Honan has not disputed the accuracy of this table.

[8]
The table provides:

Date from	Date to	Days	Type	Movement	Job title	Position	Class	Status
1/07/2020	30/06/2021	261	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7	Current
8/02/2020	30/06/2020	102	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
27/01/2020	7/02/2020	10	Acting	Higher Duties/Relieving	Mngr	721838	AO8
19/08/2019		332	Placement	Full-time to Part-time	Snr Proj Offcr	721822	AO6
17/08/2019	26/01/2020	115	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
5/08/2019	16/08/2019	10	Acting	Higher Duties/Relieving	Mngr	721838	AO8
5/08/2019	18/08/2019	10	Placement	Part-time to Full-time	Snr Proj Offcr	721822	AO6
1/08/2019	4/08/2019	2	Acting	Continuous Relieving > 12 mths	Prncpl Proj Offcr	721306	AO7
11/07/2019	31/07/2019	15	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
11/07/2019	4/08/2019	17	Placement	Full-time to Part-time	Snr Proj Offcr	721822	AO6
24/06/2019	10/07/2019	13	Acting	Higher Duties/Relieving	Mngr	721838	AO8
24/06/2019	10/07/2019	13	Placement	Part-time to Full-time	Snr Proj Offcr	721822	AO6
14/02/2019	23/06/2019	92	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
14/02/2019	23/06/2019	92	Placement	Full-time to Part-time	Snr Proj Offcr	721822	AO6
18/01/2019	13/02/2019	19	Acting	Higher Duties/Relieving	Mngr	721838	AO8
18/01/2019	13/02/2019	19	Placement	Part-time to Full-time	Snr Proj Offcr	721822	AO6
1/08/2018	17/01/2019	122	Acting	Continuous Relieving > 12 mths	Prncpl Proj Offcr	721306	AO7
30/06/2018	31/07/2018	22	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
14/05/2018	29/06/2018	35	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
14/05/2018	17/01/2019	179	Placement	Part-time to Full-time	Snr Proj Offcr	721822	AO6
23/04/2018	13/05/2018	15	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
23/04/2018	13/05/2018	15	Placement	Part-time to Full-time	Snr Proj Offcr	721822	AO6
1/08/2017	22/04/2018	189	Acting	Continuous Relieving > 12 mths	Prncpl Proj Offcr	721306	AO7
3/07/2017	31/07/2017	21	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	721306	AO7
25/05/2017	22/04/2018	239	Placement	Position Restructure	Snr Proj Offcr	721822	AO6
1/08/2016	30/06/2017	240	Acting	Higher Duties/Relieving	Prncpl Proj Offcr	724034	AO7

[9]
Having regard to this table, it is the case that since 1 August 2016, apart from the four times Ms Honan acted in the higher classification of Manager, classification AO8,^[3] Ms Honan has been acting in the position of Principal Project Officer, classification AO7. Furthermore, from the table, since 3 July 2017 up to the date her current acting at the higher classification level of AO7 is to cease on 30 June 2021, Ms Honan has been and will be acting in the position of Principal Project Officer, position number 721306. Between 1 August 2016 and 30 June 2017, Ms Honan was acting in the higher classification level of AO7, in the position of Principal Project Officer, but the position number was 724034. The Department, in its submissions, does not suggest that this position is different to the position due to the different position number.^[4]

[10]
Therefore, it is accepted by the Department that Ms Honan has been acting in a higher classification level of AO7, in the one position of Principal Project Officer, since 1 August 2016.

The decision

[11]
Mr McKee relevantly stated:

Currently, you have been engaged at the higher classification level for a total of 4 years and 3 months in the higher level in the department. Your engagement at this higher classification commenced on 1 August 2016 and the details and period of higher duties is shown at Attachment 1.

Due to the genuine operational requirements of the department, I have decided not to appoint you to the higher classification level at this time. The role in which you are performing higher duties is temporary and for a defined period of time. The role is offset by portions of multiple substantive positions that are temporarily vacant due to part-time arrangements. The conversion cannot be supported as the role will not be ongoing when the substantive return [sic] full-time.

Additionally, the Office of Coordinator-General (OCG) is undertaking a re-alignment of services, where workload and projects are to be spread and aligned across OCG.

You are to continue to be engaged according to the terms of your existing higher duties arrangement, in the role of Principal Project Officer, AO7 which is scheduled to end on 30 June 2021 as previously advised.

As your request has not been approved, and you have more than two years of continuous engagement in the same role at the higher classification level, you are eligible to appeal this decision, as outlined in section 194(1)(e)(iii) of the PS Act.

Ms Honan's grounds of appeal and submissions

[12]
Ms Honan relevantly contends in her appeal notice that as her current contract (to act in the higher classification level of AO7 in the position of Principal Project Officer, position number 721306) will be completed on 30 June 2021, which will be just two months short of five years in the role, that fact demonstrates that '… the role should be considered viable and appropriate, having regard to the genuine operational requirements of SDAD.'^[5]

[13]
Ms Honan, after setting out the tasks she performs in the position,^[6]submitted that:

the actual duties assigned to the temporary role she performed were previously linked to a permanent position, classification AO7, in the BSAM team until that permanent position was reassigned to another team to support their increased work program;

having lost that permanent position, a temporary role was needed to be created;

she commenced acting in the temporary Principal Project Officer, classification AO7, position in the BSAM team following '… an interview process for a (rarely occurring) permanent AO7 Principal Project Officer position in SDAD' and given that her current 'contract' for higher duties at the AO7 level will be completed on 30 June 2021, she will have acted in the role for almost five years; and

the role '… can hardly be considered temporary if it has been and will be required for, at this stage, at least five years.'^[7]

[14]
Ms Honan did acknowledge in her submissions that due to the OCG realignment currently underway, an additional 11 officers have recently been moved to SDAD. However, Ms Honan submitted that she was not aware of how many of those are part‑time employees and that those additional 11 officers will bring their current work responsibilities with them and as a consequence it cannot be assumed that they would have any impact on the role that she has been performing and will continue to perform until 30 June 2021.^[8]

[15]
Ms Honan then speculates that in the unlikely event that all eight employees working part-time returned to full-time work at the same time, the nature of the work that she does could not be spread eight ways. Ms Honan submits that:

the employees' return to full-time work would result in an increase to their statutory planning and/or strategic planning work; and

her temporary position is a 'bespoke role' in that it has unique duties not related to any one State Development Area nor any specific project and that, with the realignment underway, it is more likely that someone with her experience and skills would still be required to improve practice management, provide business support, respond to policy related matters and inform executive level reporting for the SDAD, the OCG and the Department.^[9]

The Department's submissions

[16]
The Department submits that the temporary position in which Ms Honan has been acting, at the higher classification level, since 1 August 2016:

… was created to assume duties from multiple backfill arrangements and was offset against Full Time Equivalents (FTEs) and funding of those unused portions of substantive positions where staff have been on part-time arrangements to an agreed date. This temporary position assisted the business to provide work-life balance opportunities to employees and manage the deliverables effectively. The Appellant was engaged on the basis that the incumbents would return to their substantive roles following a period of part-time working arrangements. Extensions in this role were only made to coincide with the periods of part-time extensions of the substantive occupants.^[10]

[17]
The Department further submitted that:

the OCG is undertaking a realignment of services that commenced early 2020 and was delayed due to the COVID-19 health pandemic and is now effective from 4 January 2021;^[11]

the realignment of services has '… focused on streamlining processes, to reduced [sic] double handling where redistribution of existing workload and projects are aligned across the OCG structure';^[12]

that realignment, combined with '… the new emphasis on focusing on critical priority work, will free up resources across all OCG teams, including Governance and Assets activities, in the now known Planning and Services Division (PAS Division), where this temporary position is currently located. Therefore, there is no ongoing need for the temporary AO7, Principal Project Officer role post‑realignment';^[13] and

despite on the Department's construction of the meaning of 'continuous period' in cl 5.2(b) of the Directive, which, in the Department's submissions means that Ms Honan has only acted in the position of the higher classification level for four years and three months, commencing on 1 August 2016, the '… genuine operational requirements of the Department were considered by the delegate whose decision was not to appoint the Appellant to the higher classification based on the OCG re‑alignment of operations and services and the nature of the position the Appellant is currently engaged'.^[14]

[18]
By way of conclusion, the Department submits that Mr McKee's decision was made in accordance with s 149C(4A) of the PS Act and cl 6.2(a) of the Directive, in that having regard to the genuine operational requirements of the Department, it was not viable or appropriate to appoint Ms Honan to the higher classification.^[15]

The decision was fair and reasonable

[19]
Mr McKee's decision involved the application of s 149C of the PS Act.

[20]
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

…

(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

(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.

…

(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.

[21]
The Directive relevantly provides:

6. 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.

[22]
As I stated in Morison v State of Queensland (Department of Child Safety, Youth and Women):^[16]

[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; and

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.

[39] In respect of the Directive, cl 4.2 provides that secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:

when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return; or

when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles.

[40] The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

[23]
Section 25 of the PS Act sets out the principles of public service management and employment. Public service management is directed towards, relevantly, managing public resources efficiently, responsibly and in a fully accountable way.^[17] Public service employment is to be directed towards, relevantly, promoting best practice human resource management.^[18]

[24]
The Department states that the position in which Ms Honan had been relieving was created to assume duties from multiple backfill arrangements and was offset against full‑time equivalents and funding of those unused portions of substantive positions where staff have been on part-time arrangements to an agreed date. The Department says that the extensions of the position (from 1 August 2016) '… were only made to coincide with the periods of part-time extensions of the substantive occupants.' Such a circumstance may be understandable if it was necessary for a reasonably short period of time.

[25]
However, to allow such a circumstance to continue for a period of five years is poor management and does not meet the management and employment principles referred to above. This is because, in my view, it is not responsible management and is not best practice human resource management to allow such a circumstance to continue for that period of time without decisive management intervention to determine if the position was permanently needed or not. Such a decision, one way or the other, could have been made independently of any part-time arrangements that had been agreed. There is no suggestion that the Department ever took that initiative; rather, it just let the situation roll along.

[26]
Ms Honan has been acting in the position since 1 August 2016. The unfortunate nature of the facts of this case, from Ms Honan's perspective, arise because of the coincidental timing of the commencement of the operation of s 149C of the PS Act, which conferred the right on eligible employees, such as Ms Honan, to request their chief executives to appoint them to the higher classification level as public service officers, and the delayed decision by the Department to undertake a realignment of services in OCG. That realignment has resulted in the decision of the Department that there is no ongoing need for the position in which Ms Honan has been acting since August 2016. That circumstance was referred to in Mr McKee's decision.

[27]
Ms Honan, while accepting that there has been a realignment of the services within OCG, speculates that her position would still be required notwithstanding the organisational change brought about by the realignment and the addition of officers to the SDAD.

[28]
Apart from Ms Honan's speculation, there is no probative evidence that has been placed before me which would tend to indicate that the Department's decision - that the realignment of services within the OCG will have the result that the position is no longer required - is not accurate.

[29]
While I have significant sympathy for Ms Honan's circumstances, the decision that there are genuine operational reasons not to appoint Ms Honan to the position, because the position will no longer be required, is one that is fair and reasonable.

Conclusion

[30]
For the reasons I have given, the decision was fair and reasonable.

Order

[31]
I make the following order:

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

Footnotes

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

[2] Ms Honan's submissions filed on 10 December 2020 ('Ms Honan's submissions'), page 1, second paragraph.

[3] Between 18 January 2019 and 13 February 2019, 24 June 2019 and 10 July 2019, 5 August 2019 and 16 August 2019 and 27 January 2020 and 7 February 2020.

[4] The submissions of the Department of State Development, Infrastructure, Local Government and Planning filed on 18 December 2020 ('the Department's submissions), first page, fourth paragraph.

[5] Ms Honan's appeal notice filed on 4 December 2020, Part C, eighth paragraph.

[6] Including preparing, updating and collating information for executive level reporting processes, preparing and updating internal discussion papers covering business continuity for the SDAD, converting projects into the Daptiv program, preparation of internal discussion papers to instigate change, and updating and building on existing SDAD travel procedures - Ms Honan's submissions, pages 1-2.

[7] Ms Honan's submissions, page 3, third and fourth paragraphs.

[8] Ms Honan's submissions, page 4, first paragraph.

[9] Ms Honan's submissions, page 4, second paragraph.

[10] The Department's submissions, first page, fourth paragraph.

[11] The Department's submissions, first page, fifth paragraph.

[12] The Department's submissions, first page, fifth paragraph.

[13] The Department's submissions, first page, fifth paragraph.

[14] The Department's submissions, fourth page, third paragraph.

[15] The Department's submissions, fourth page, fourth paragraph.

[16] Morison (n 1).

[17] Public Service Act 2008 s 25(1)(e).

[18] Public Service Act 2008 s 25(2)(a).

Editorial Notes

Published Case Name:
Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)
Shortened Case Name:
Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)
MNC:
[2021] QIRC 75
Court:
QIRC
Judge(s):
Member Merrell DP
Date:
10 Mar 2021

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Morison v State of Queensland (Department of Child Safety, Youth and Women)	[2020] QIRC 203	2 citations Jump To Cite 1 - [2020] QIRC 203 Cite 2 - [2020] QIRC 203

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Honan v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 75