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Wilson v State of Queensland (Public Trust Office)[2021] QIRC 84

Wilson v State of Queensland (Public Trust Office)[2021] QIRC 84

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wilson v State of Queensland (Public Trust Office) [2021] QIRC 084

PARTIES: 

Wilson, Yvonne Julie

(Appellant)

v

State of Queensland (Public Trust Office)

(Respondent)

CASE NO:

PSA/2020/287

PROCEEDING:

Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:

16 March 2021

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDER:

  1. The appeal is dismissed for want of jurisdiction.

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal – application for permanent employment at higher classification – application of directive – limits of consideration for appointment to ‘the position’ – eligibility to apply for permanent appointment

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 27B

Directive 13/20 Appointing a public service employee to a higher classification level cls 4.2, 11

Human Rights Act 2019 (Qld)

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

Public Service Act 2008 (Qld) ss 149C, 194, 195

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

Katae v State of Queensland & Anor [2018] QSC 225

Kefer v Tattersall's Holdings Pty Ltd [2012] FWA 2375

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey [2016] ICQ 010

Reasons for Decision

Background

  1. [1]
    Ms Yvonne Julie Wilson is substantively employed as a Senior Lawyer (PO4) at the Public Trust Office ('the PT Office').
  1. [2]
    Since 24 September 2018, Ms Wilson has been intermittently acting in the various roles of Principle Legal Officer (PO5), Principle Lawyer (PO5) and Managing Lawyer (PO6) within the PT Office and the Department of Justice and Attorney General ('DJAG'), interspersed with her substantive role.
  1. [3]
    On 22 September 2020, Ms Wilson wrote to Mr Tony Hung, Acting Senior Director Human Resource Services at the PT Office requesting that she be permanently employed in "the PO5 position of Principle Lawyer" in accordance with section 149C of the Public Service Act 2008 (Qld) ('PS Act').
  1. [4]
    In her email to Mr Hung, Ms Wilson noted that she had been acting at the higher classification level for longer than one year and had demonstrated the skills, knowledge and abilities required to undertake the role. Ms Wilson did not receive a reply to her request in the 28 days prescribed by s 149C(8) of the PS Act.
  1. [5]
    On 23 October 2020, Ms Wilson received correspondence from Mr Hung. Ms Wilson notes in her submissions attached to her Appeal Notice that this correspondence was received on 25 October 2020.
  1. [6]
    The correspondence advised Ms Wilson that a review of her employment status had been conducted by the delegate, Ms Jeanette Miller the Chief Operating Officer, in accordance with the requirements in s 149C of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). It advised that she was not eligible for appointment as she had not been employed in the same role for a continuous period of one year ('the decision'). The decision noted that if she remains continuously in the role, she could again submit a request for permanency on 20 July 2021.
  1. [7]
    The reasons for the decision were set out as follows:

 In considering your request, the delegate determined that you are not currently eligible for appointment because you have not been employed in the same role for a continuous period of at least one year. However, if you remain continuously employed in this role, you may be eligible to make another request on or after 20 July 2021.

 Currently you have been engaged in at the higher classification level since 20 July 2020 (total of approx. 14 weeks) and have received 4 extensions since this date.

 As a result of this decision not to convert you to the higher classification level, you will continue in the role of Principle Legal Officer until 31 December 2020 when the substantive position holder returns from higher duties.

 As your request has not been approved, and you have less than two years continuous engagement in the same role at the higher classification level, section 195(1)(i) of the PS Act provides there is no appeal for this decision.             

  1. [8]
    Ms Wilson filed an Appeal Notice on 6 November 2020. In her appeal, she contended that:
  • She should be appointed to the position of Principle Lawyer (PO5) as she had acted in the position in excess of 12 months in accordance with s 149C of the PS Act, and demonstrated the skills, knowledge and abilities required for the role;
  • The Department failed to respond to her request within 28 days and a deemed refusal had occurred;
  • The decision has no effect under the PS Act as: it was not signed by the delegate but Mr Hung who does not have authority, incorrectly applied the Directive which commenced after her request for appointment, incorrectly concluded she was ineligible under the PS Act and the decision was not  provided within 28 days; and
  • Contrary to the Department's assertion, she is eligible as she has been acting in the Legal Officer (PO5) position since 26 July 2016, without a break of longer than three months.

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
  1. (c)
    for another appeal – set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [10]
    Further, an appeal may be dismissed where it can be demonstrated on the facts that the Commission does not have jurisdiction to deal with the matter.

Nature of appeal

  1. [11]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]
  1. [12]
    An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[5]
  1. [13]
    The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Ms Wilson to the higher position was fair and reasonable.[6] Additionally, in this matter the Department has raised jurisdictional objections to the appeal.
  1. [14]
    For the reasons set out below I have determined that the appeal must fail for want of jurisdiction.

Relevant sections of the PS Act

  1. [15]
    The relevant provisions of the PS Act for consideration in this appeal are set out below.
  1. [16]
    Section 149C of the PS Act relevantly 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.

…

  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. [17]
    Section 194 of the PS Act relevantly provides:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

  1. (e)
    a decision (each a conversion decision) –

…

  1. (iii)
    under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;

…

  1. [18]
    Section 195 of the PS Act relevantly provides:

195 Decisions against which appeals can not be made

  1. (1)
    A person can not appeal against any of the following decisions –

…

  1. (j)
    a decision under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for less than 2 years;

…

  1. [19]
    Importantly, I note that the Directive referred to by the Department in their correspondence to Ms Wilson dated 23 October 2020 did not come into effect until 25 September 2020, i.e. three days after Ms Wilson requested a review.
  1. [20]
    There is no provision in the Directive for retrospective application. It cannot be validly applied to Ms Wilson's application. In the circumstances, the only statutory instrument applicable to Ms Wilson’s application was the PS Act.

Submissions of the parties

  1. [21]
    The parties filed written submissions in accordance with a Directions Order dated 6 November 2020. The parties' submissions are largely directed at Ms Wilson's eligibility to request a review of her employment. 

Submissions of Ms Wilson

  1. [22]
    Ms Wilson contends, for reasons set out in her submissions dated 12 November 2020, that she should be appointed "to the position of PO5 Principal Lawyer". In summary she submits that:
  • The Department's failure to provide a response within 28 days is unfair as it is unclear whether it considered the requirements in s 149C(6) of the PS Act and the Human Rights Act 2019 (Qld);
  • The decision was invalid as it was not signed by the authorised decision maker;
  • The Directive relied on by the Department does not apply as it was not in effect at the time she made the request on 22 September 2020;
  • The decision does not comply with s 27B of the Acts Interpretation Act 1954 (Qld);
  • Citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[7] the Department erred in their decision as it failed to have regard to the mandatory considerations in section 149C of the PS Act;
  • She has been acting at the higher classification of PO5 for a continuous period of at least one year;
  • The Department has not raised any operational requirements precluding her permanent appointment to the position and there is an ongoing need for work at this classification level which is likely to continue;
  • According to a plain and ordinary interpretation of s 149C of the PS Act, Ms Wilson's periods of returning to her substantive role and secondment do not break the continuous period of employment at the higher classification as they were not longer than three months;
  • Citing Katae v State of Queensland & Anor and Kefer v Tattersall's Holdings Pty Ltd,[8] the role is ongoing and she has been continuously employed in the role as she has not had any unauthorised absences; and
  • There are no genuine operational reasons to deny her appointment to the higher classification level.

Submissions of the Department

  1. [23]
    The Department contends, for reasons set out in its submissions dated 20 November 2020, that Ms Wilson is ineligible to apply for permanency at the higher level and the Commission should decline to hear the appeal. In summary it submits that:
  • At the time of her request on 22 September 2020, Ms Wilson was not acting in the position of Principle Legal Officer (PO5), rather in the position of Managing Lawyer (PO6);
  • The Directive applied to Ms Wilson's request from the date it came into force on 25 September 2020, and thus applied to the decision on 23 October 2020;
  • According to the definition in the Directive and the Higher classification conversion checklist,[9] Ms Wilson has not acted in the position of Principle Legal Officer (PO5) for a continuous period of one year, as she has acted in various higher duties roles and between different government agencies;[10]
  • The Commission should decline to hear the appeal as the decision is not appealable,[11] and Ms Wilson has not been acting at the higher classification level for a continuous period of at least two years;[12]
  • Alternatively, Ms Wilson is not eligible for conversion as she was not acting in the PO5 role at the time of the request and has not acted at the PO5 level for a continuous period of at least one year;[13] and
  • Ms Wilson is acting at the PO5 classification level while the substantive occupant is acting in higher duties, therefore genuine operational reasons support her temporary engagement at the higher level.[14]

Reply submissions of Ms Wilson

  1. [24]
    Ms Wilson contends, for reasons set out in her reply submissions dated 27 November 2020, that the she is eligible to be converted. In summary she submits that:
  • She is appealing the deemed decision of the Department;
  • She has been acting continuously as a Legal Officer (PO5) from 26 July 2018 to 22 September 2020;
  • She has not been employed by another agency since 7 November 2016;
  • The Department seeks to "unfairly disadvantage" Ms Wilson by adopting a definition of "continuous employment" which is unsupported by the PS Act;
  • She has not been acting in the same "position", rather the same PO5 "role" of a legal officer acting within the public service, and there is no requirement in s 149C of the PS Act for the "role" to be in the same agency;
  • The Department has "mischievously" substituted the term "role" for "position" when referring to the checklist annexed to its submissions;[15]
  • The test for conversion is not whether there is a substantive vacancy but rather, if there is a continuing and ongoing need for the work to be performed;[16]
  • The Department did not warn Ms Wilson that a five-day secondment to DJAG would constitute a break in her continuous period of employment as a PO5;
  • The interpretation of s 149C of the PS Act is ambiguous and according to Simon Blackwood (Workers’ Compensation Regulator) v Mahaffey,[17] where two constructions of an act is possible, a liberal construction of s 149C should be preferred to favour job security and career development which allows for secondments; and
  • Based on her submissions, the Commission has jurisdiction to determine the appeal.

Consideration

  1. [25]
    Section 149C(6) of the PS Act provides that if the chief executive does not make a decision for such application within the prescribed time, then the chief executive is taken to have refused the request. The prescribed time is 28 days after the request is made.[18]
  1. [26]
    Ms Wilson did not receive a decision within the prescribed time and as such, her application for permanent appointment pursuant to s 149C was a deemed refusal.
  1. [27]
    The correspondence provided to Ms Wilson by the Department on 25 October 2020 (but dated 23 October 2020) is of no effect, other than perhaps to provide some insight into the mindset of the Department with respect to the application for review.
  1. [28]
    Having regard to the submissions of both parties, it is apparent that each has largely overlooked the critically important language found in s 149C of the PS Act limiting the scope of such applications and the circumstances in which they can be granted.
  1. [29]
    In fairness to the parties, their submissions were tendered to the Commission at or around the time when the Commission released the decision in Holcombe v State of Queensland (Department of Housing and Public Works) ('Holcombe').[19]
  1. [30]
    In Holcombe, Commissioner McLennan made the following finding:[20]

The PS Act, at s 149C(1)(c), provides that s 149 applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the department to permanently appoint Mrs Holcombe is confined to the position into which she has been seconded at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term ‘the position’ is inherently more specific than ‘higher classification level’; many positions could be described as being of a higher classification level.

In that way, it can be said that 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.

…

The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.

By way of contrast, a broader ambit of the type proposed by Mrs Holcombe is expressly imparted in other conversion reviews which immediately precede s 149C. 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 a 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 level 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. The power is expressly confined to the position occupied by the employee at that time.

  1. [31]
    The parties, particularly Ms Wilson, have expended significant effort in their submissions addressing the question of the 'continuous period' or 'continuous service'. A main point of disagreement is whether Ms Wilson’s secondment to DJAG interrupted the relevant continuous period.
  1. [32]
    Leaving aside the suggested effect of Ms Wilson's brief secondments to DJAG, it would seem that Ms Wilson has filled a number of different positions at the AO5 level since at least July 2016. The difficulty for Ms Wilson is that consideration for appointment requires the review to be conducted in respect of a position.
  1. [33]
    Consistent with the findings in Holcombe, I consider that there is a distinction between the eligibility arising from acting at a higher classification for a specified period across a number of positions, and being eligible for permanent appointment to a position. There is no question that Ms Wilson has acted consistently (with short exceptions) in PO5 positions. But the application contemplated by s 149C is to 'the position'. I agree with the conclusion in Holcombe that this can only be a reference to the position filled by the employee at the time of their application. Section 149C does not oblige or empower the chief executive to consider such an application against e.g. all available PO5 positions.
  1. [34]
    It is uncontroversial that Ms Wilson was acting as a PO6 Legal Officer with the Department from 21 September 2020 to 25 September 2020. Ms Wilson made her application on 22 September 2020. Regardless of her brief tenure as an AO6, it was that position against which her review must be conducted.
  1. [35]
    In those circumstances, Ms Wilson has no eligibility for consideration under s 149C of the PS Act because she clearly lacks the requisite tenure of a continuous period of at least 1 year at the PO6 level.
  1. [36]
    Not only does the limited tenure at AO6 make Ms Wilson ineligible to apply for a review pursuant to s 149C, but it also impacts on her right to appeal the decision. Section 195(1)(j) of the PS Act expressly excludes jurisdiction of the Commission to hear an appeal of a decision not to appoint an employee to a position at  a higher classification level if the employee had been seconded or acting at that level for a period of less than 2 years.
  1. [37]
    I pause to add that it is more than obvious that Ms Wilson has the skills to perform at the higher classification level. More importantly, it seems she has the trust and confidence of the Department to do so over a number of years. This decision ought not to be regarded as a conclusion that Ms Wilson is not suitable for permanent appointment. Ms Wilson is plainly eminently qualified to perform work at the AO5 level, and I would expect that as soon as she meets the eligibility requirements, she should be successful in achieving appointment at that level. 

Order

  1. [38]
    In the circumstances I make the following order:
  1. The appeal is dismissed for want of jurisdiction.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B.

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[4] Ibid.

[5]  Industrial Relations Act 2016 (Qld) s 562B(3).

[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[7] (1986) 162 CLR 24, 39-40.

[8] [2018] QSC 225, 50; [2012] FWA 2375.

[9] Directive 13/20: Appointing a public service employee to a higher classification level cl 11; Public Service Commission, Higher classification conversion checklist.

[10] Submissions of the Respondent dated 20 November 2020, page 1-2 and annexure A.

[11] Industrial Relations Act 2016 (Qld) ss 562A(3)(b)(ii)-(iii).

[12] Public Service Act 2008 (Qld) ss 194(1)(e)(iii), 195(1)(j).

[13] Ibid s 149C.

[14] Directive 13/20: Appointing a public service employee to a higher classification level cl 4.2(b).

[15] Submissions of the Respondent dated 20 November 2020.

[16] Katae v State of Queensland & Anor [2018] QSC 225.

[17] [2016] ICQ 010, 13-14 [41]-[43].

[18] Public Service Act 2008 (Qld) s 149C(8).

[19] [2020] QIRC 195.

[20] Ibid, [48]-[49], [54]-[56].

Close

Editorial Notes

  • Published Case Name:

    Wilson v State of Queensland (Public Trust Office)

  • Shortened Case Name:

    Wilson v State of Queensland (Public Trust Office)

  • MNC:

    [2021] QIRC 84

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    16 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 and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Kefer v Tattersall's Holdings Pty Ltd [2012] FWA 2375
2 citations
Jump To
Cite 1 - [2012] FWA 2375
Cite 2 - [2012] FWA 2375
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
2 citations
Jump To
Cite 1 - (1986) 162 CLR 24
Cite 2 - (1986) 162 CLR 24
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Workers' Compensation Regulator v Mahaffey [2016] ICQ 10
2 citations
Jump To
Cite 1 - [2016] ICQ 10
Cite 2 - [2016] ICQ 10

Cases Citing

Case NameFull CitationFrequency
Bell v State of Queensland (Queensland Police Service) [2024] QIRC 1102 citations
Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 1382 citations
1

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