Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 91Member Pidgeon IC
Add to List

Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 91

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) [2021] QIRC 091 Newton, James (Appellant) v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) (Respondent)
CASE NO:	PSA/2020/443
PROCEEDING:	Public Service Appeal - Higher Duties Conversion Decision
DELIVERED ON:	22 March 2021
MEMBER: HEARD AT:	Pidgeon IC On the papers
OUTCOME:	The decision appealed against is confirmed.
CATCHWORDS:	INDUSTRIAL LAW – Public Service Appeal – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable
LEGISLATION:	Public Service Act 2008 s 27, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level.
CASES:	Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Appeal Details

[1]
Mr Newton is employed by the State of Queensland (Department of State Development, Infrastructure, Local Government and Planning). Since 24 July 2017, Mr Newton has been performing higher duties in the role of Principal Project Officer (AO7), the arrangement is set to end 30 June 2021.

[2]
On 25 November 2020, Michael McKee, the Deputy Director-General (the decision maker) wrote to Mr Newton in response to his request of 25 September 2020 to be appointed to the higher classification level.

[3]
The decision letter stated that due to the genuine operational requirements of the Department, Mr Newton was to continue to be engaged according to the terms of the existing higher duties arrangement. Specifically:

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 full-time.

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

Relevant sections of the Act and Directive

[4]
In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").

[5]
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 one 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).

…

(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.

The Directive

[6]
While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

4. Principles

4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.

4.2 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. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

(a)
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

(b)
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

(d)
to perform work necessary to meet an unexpected short-term increase in workload.

…

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 documents an 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.

Statement of reasons

7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:

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

(b)
refer to the evidence or other material on which those findings were based.

Appeals

8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.

…

What decisions can the Commission make?

[7]
In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:

(a)
confirm the decision appealed against; or

…

(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.

Mr Newton's reasons for appeal

[8]
Mr Newton submits the decision not to convert him is unfair and unreasonable for the following reasons:

The decision fails to set out the findings of fact and refer to the evidence or material on which those findings were based;

noting the default basis for employment in the public sector is on tenure the decision has failed to articulate the genuine operational requirements of the Department which would displace that default position. This applies to both the ‘offsetting’ of other roles and the realignment of services across OCG;

without any of the evidence or material referred to above which is not information available to me as an employee I am unable to confirm whether in fact my role is to ‘offset’ multiple other substantive positions. I submit that this is not the case and no such circumstances exist where the role I perform will not be required moving forwards; and

in the event my role for the past three years has actually been to fill vacancies created by substantive employees temporarily accessing part time arrangements as asserted then this is a circumstance contemplated in s 148(3) of the PS Act where employment on tenure is in fact appropriate. Accordingly I submit the decision maker has erred in applying the law.

[9]
Mr Newton submits that he meets the eligibility criteria to be appointed as he has been acting at the higher classification level for three years without any adverse finding in respect of his performance or conduct and has therefore demonstrated merit.

Mr Newton submissions

[10]
In addition to his reasons for appeal filed with his appeal notice on 23 December 2020, Mr Newton filed submissions on 18 January 2021.

[11]
Mr Newton believes that decision is unfair and unreasonable as the outcome letter he received has not complied with the legislative requirements and because no reasoning has been advanced as to why the requirement for his offsetting role will not continue to be required.

Mandatory criteria for consideration

[12]
With reference to s 149C(6)(a) of the PS Act, cl 7 of the Directive, the analysis of the meaning of 'genuine operational requirements' provided in Morision^[1] and s 27B of the Acts Interpretation Act 1954, Mr Newton says that findings of material questions of fact and references to the evidence relied on have not been articulated.

[13]
Mr Newton submits that the decision implies that the substantive one full time equivalent (FTE) holders will resume full time work in their roles yet there is no indication what evidence this is based upon. Nor are there any reasons or grounds advanced as to why the realignment of services in OCG would prevent his appointment.

[14]
Mr Newton believes the decision has failed to articulate the genuine operational requirements of the Department which would displace that default position. This applies to both the 'offsetting' of other roles and the realignment of services across OCG.

Likelihood of substantive FTE owners returning/ongoing need for regular relieving

[15]
With reference to s 25(2)(d) of the PS Act which provides that employment on tenure is the default basis of employment in the public service and s 148(3) which states that employment on tenure may be viable and appropriate if a person is required to be employed for a purpose mentioned in subsection s 148(2) on a frequent or regular basis, Mr Newton says

he is offsetting or backfilling temporary vacancies for a known period, he has been doing that continuously for more than three years and his role has been to offset multiple absences;

these relieving circumstances are as contemplated in s 148(3) and permanent appointment would be appropriate;

consideration of genuine operational requirements of the Department necessarily involves having regard to the circumstances that have given rise to the requirement to create and fill his current role;

his understanding of the offsetting arrangement is that the Department is using the funding freed up by the occupants of several substantive permanent one FTE roles reducing their hours to fund his position;

the employees he is offsetting have voluntarily chosen to reduce their full-time hours as part of annual flexible work arrangements, some of which have been ongoing for a number of years;

the Department has not indicated that any of these employees have expressed an intention to resume full time work or that the work he is performing will be subsumed back into the substantive employee's workloads;

he accepts that a backfilling arrangement for a known period of leave of absence is a situation contemplated as one warranting a temporary arrangement however, in a situation like this where there is an apparent need for his role and that it is offsetting against a number of different roles consideration should be given to permanent appointment;

it may be an untenable outcome for an employee to be appointed to a role or a portion of FTE which a substantive owner may seek to resume but the Department has industrially viable ways to mitigate against this risk;

the Department could ask employees undertaking long term reduced FTE arrangements if they want to permanently release the FTE, freeing it up to provide employment security for the backfilling or offsetting employees;

the return of the incumbents to their full time FTE is not imminent and the return to their 1.0 FTE roles would be considered speculative at best.

The Department in reply

[16]
The Department filed a reply to Mr Newton's appeal on 25 January 2021. The Department submits that the delegate provided appropriate reasoning for the decision to reject Mr Newton's application for appointment to the higher classification, on the grounds of genuine operational requirements in accordance with cl 6.2(b) of the Directive.

[17]
The Department submits that in making the decision, the delegate applied factual operational considerations to both the human resource and financial requirements of the business area including backfilling arrangements, workforce planning and re-alignment of OCG's business operations.

Background to Mr Newton's higher duties

[18]
Mr Newton was placed on higher duties against a temporary position as an AO7, Principal Project Officer, State Development Areas, Office of Coordinator-General from 24 July 2017 to 30 June 2021.

[19]
This temporary position:

was created in response to addressing the reduced capacity and resourcing in the team caused by other substantive position owners converting to part-time employment arrangements for an agreed period and end-date;

assisted the OCG to provide work-life balance opportunities to employees and manager the deliverables effectively;

was created with the understanding that the incumbents have a right to return to their substantive roles on a full-time basis at the conclusion of their approved part-time employment arrangements; and

was extended on occasion to coincide with the periods of part-time extensions of the other substantive employees.

[20]
During his period of relieving, Mr Newton has relieved in two different positions. The first role, from July 2017 to November 2020 was due to an existing employee being absent and performing another role within the agency. The second role extends from November 2020 to June 2021 and is due to other substantive position owners converting to part-time employment arrangements for an agreed period and end date.

OCG re-alignment of services

[21]
The OCG undertook a re-alignment of services that commenced in early 2020 and was delayed due to the COVID-19 pandemic. Mr Newton as an existing permanent employee of OCG was informed of the re-alignment of business operations as part of the communication and consultation process to impacted employees. The realignment has:

now progressed and is effective from 4 January 2021;

focused on streamlining processes, reduced double handling where redistribution of existing workload and projects are aligned across the OCG structure; and

freed up resources across all OCG teams, including activities, in the now known Planning and Services Division where Mr Newton's temporary position is currently located.

[22]
Post re-alignment, there is no need for the temporary AO7 Principal Project Officer role.

Reasons provided in the decision

[23]
The Department submits that the reasons for the decision are based on material questions of fact and reference evidence or other material on which those findings were based. The outcome letter refers to "the OCG undertaking a re-alignment of services" and the role being:

Temporary and for a defined period…offset by portions of multiple substantive positions that are temporarily vacant due to part time arrangements; and

Not ongoing when the substantives return full-time.

[24]
The reason given was concise and clear in that the role, and therefore any work tasks and activities associated with the role, would not be ongoing when the substantive officers return to work on a full time basis.

[25]
The statement in the decision regarding OCG conveys that work currently allocated to the temporary role occupied by Mr Newton will be distributed across the OCG including to substantives who will be returning on a full-time basis.

[26]
With regard to Mr Newton's submissions regarding the part-time employees, the Department says it has an obligation to consider requests received from employees for flexible work arrangements and that it is obligated to protect the privacy of all employees and therefore is not at liberty to share detailed information about the employment arrangements of substantive officers who have elected to work part time for agreed periods.

[27]
With regard to Mr Newton's submissions regarding permanency and tenure of employment, the Department says that Mr Newton does in fact have tenure of employment in the public sector as a Senior Project Officer, AO6.

[28]
The decision maker has included a review and an understanding of the broader workforce planning requirements and budget considerations.

[29]
The interpretation of s 149C(3) of the PS Act should be applied narrowly and does not empower the delegate to review the employee against other positions that may be substantially the same or appoint them to an alternate position.

[30]
The decision was confined to the position occupied by Mr Newton at the time. The position number, title and classification about which the decision was made, was provided to Mr Newton as an attachment to the outcome decision letter.

[31]
The position Mr Newton's review was conducted on was the temporary position of Principal Project Officer AO7 #733399 established for a fixed term from 19 November to 30 June 2021.

The likelihood of substantive FTE owners returning/ongoing need for regular relieving

[32]
The Department can only respond to the material facts at hand, being the agreed end date of the part time employment arrangement, when determining when an employee approved to work part time will return to full-time hours.

[33]
All employees under part-time arrangements have an agreed end date recorded in the Aurion Human Resource Information system. The agreed end dates are material facts the Department uses to inform genuine operational decision making and workforce planning.

[34]
With regard to Mr Newton's submission that his backfilling is ongoing and therefore indicates that he should be appointed to the higher classification, the Department says that the temporary role he is currently performing was created to backfill arrangements for a known period of part time leave or absence of substantive occupants of roles.

Consideration

[35]
Having reviewed the decision letter and all of the submissions I have determined that the decision not to appoint Mr Newton to the higher classification was fair and reasonable.

[36]
The decision letter adequately articulates to Mr Newton that the role he is engaged in is one of a temporary nature as it is funded by and designed to 'backfill' a number of employees who have accessed part time work for a range of reasons.

[37]
It is clear that when those part-time workers return to full-time work, Mr Newton will no longer be required to undertake work in the higher classification position as it will be undertaken by the substantive employees.

[38]
I am satisfied that the higher classification position Mr Newton is currently occupying is temporary in nature and reflects reasons indicating that tenure may not be viable or appropriate set out at s 148(2) of the PS Act.

[39]
If Mr Newton was going to be required to backfill employees in an ongoing way, appointment may be viable per s 148(3), however, as is explained in the letter and expanded on in the submissions of the Department, due to the restructure of the work in the OCG, Mr Newton will not be required to do this work following the completion of his current engagement in June 2021.

[40]
I am further satisfied that the delegate made the decision with regard to the genuine operational requirements of the Department as required by s 149C(4A) of the PS Act and communicated in both the decision letter and the submissions above.

[41]
The decision complied with s 149C(5) in that it stated the reasons for the decision and the total period Mr Newton has been acting at the higher classification level. I understand more detail about Mr Newton's engagement at the higher classification level and details and period of higher duties was provided as Attachment 1 of the decision letter.

[42]
There is nothing before me that serves to displace the delegate's decision not to appoint Mr Newton to the higher classification position.

[43]
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.

Footnotes

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

Editorial Notes

Published Case Name:
Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)
Shortened Case Name:
Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)
MNC:
[2021] QIRC 91
Court:
QIRC
Judge(s):
Member Pidgeon IC
Date:
22 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 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

Cases Citing List of cases on Queensland Judgments citing this Judgment

No judgments on Queensland Judgments cite this judgment.

Exit Distraction Free Reading Mode

Change Font and Font Size

Newton v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning)[2021] QIRC 91