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  4. Whatman v State of Queensland (Queensland Health) - [2022] QIRC 101

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Whatman v State of Queensland (Queensland Health)[2022] QIRC 101

Whatman v State of Queensland (Queensland Health)[2022] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Whatman v State of Queensland (Queensland Health) [2022] QIRC 101

PARTIES:

Whatman, Richard

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/63

PROCEEDING:

Public Service Appeal – conversion decision

DELIVERED ON:

24 March 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where appellant requested to be permanently appointed to higher classification position – where request rejected by respondent due to genuine operational requirements of the department – consideration of genuine operational requirements – where consultation process for organisational change is currently on foot – where organisational change process is lengthy – where there is no evidence that the organisational change process is not genuine – where it is proposed that the relevant higher classification position be abolished as part of the organisational restructure – where decision to reject request for conversion is fair and reasonable – decision confirmed

LEGISLATION:

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

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

Appointing a Public Service Employee to a Higher Classification Level Directive 13/20, cls 4, 5, 6, 7 and 11 

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Huismann v State of Queensland (Queensland Health) [2021] QIRC 176

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

Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434

Reasons for Decision

Introduction

  1. [1]
    Mr Richard Whatman is employed by the State of Queensland (Queensland Health) ('the Department'), in the substantive position of Operational Services Officer (002) on a permanent part time basis at the Hervey Bay Hospital within the Wide Bay Hospital and Health Service ('WBHHS').
  1. [2]
    Mr Whatman commenced employment with the Department in his substantive position in approximately January 2020. Since 10 February 2020, Mr Whatman has been continuously acting in the higher classification position of Fire, Safety and Security Officer (003).
  1. [3]
    On 9 December 2021, Mr Whatman, through his union representative, The Australian Workers' Union of Employees, Queensland ('the AWU'), requested that he be permanently converted to the higher classification level of Fire, Safety and Security Officer (003) pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act') and Appointing an Employee to a Higher Classification Level: Directive 13/20 ('Directive 13/20'). Mr Whatman did not receive a response to the request within 28 days and accordingly, on 6 January 2022, a decision was deemed to have been made by the Department to reject the request for permanent conversion to the higher classification level ('the decision').
  1. [4]
    On 20 January 2022, the AWU, on behalf of Mr Whatman filed an appeal notice in the Industrial Registry in respect of the decision.
  1. [5]
    The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission ('the Commission').
  1. [6]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
  1. [7]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [8]
    For the reasons contained herein, I have determined that the decision was fair and reasonable.

Relevant legislation and Directive

  1. [9]
    Section 149C of the PS Act provides for the appointment of a public service employee to a higher classification level in the following terms:

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
  2. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  3. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  4. (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. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section
  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
  2. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [10]
    Section 194 of the PS Act identifies the decisions against which appeals may be made as follows:

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. [11]
    The phrase 'genuine operational requirements of the department' in the context of s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[4] as follows:[5]

…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.

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;
  • 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. (footnotes omitted)
  1. [12]
    Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act established employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [13]
    Clause 4.2 of Directive 13/20 sets out the circumstances which would support the temporary engagement of an employee at the higher classification level and includes:
  1. (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
  1. (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
  1. (c)
    to perform work for a particular project or purpose that has a known end date
  1. (d)
    to perform work necessary to meet an unexpected short-term increase in workload
  1. [14]
    Clause 5 of Directive 13/20 sets out the requirements that must be met by an employee prior to requesting a conversion under s 149C of the PS Act and the considerations a chief executive must take into account as follows:

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
  2. (b)
    for a continuous period of at least one year
  3. (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
  2. (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. [15]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level as follows:

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:

  • the genuine operational requirements of the department, and
  • 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 continuing 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 decision occurring by operation of s 149(C) of the PS Act.

  1. [16]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide to the employee a statement of reasons, as follows:

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
  2. (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

  1. [17]
    Clause 11 of Directive 13/20 defines the following terms:
  • Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.
  • Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.

Whether the decision was fair and reasonable

  1. [18]
    Mr Whatman contends that the deemed decision to not grant his request to be appointed to higher duties was unfair and unreasonable.
  1. [19]
    Mr Whatman argues that he satisfies the eligibility criteria pursuant to cl 5.2 of Directive 13/20 and that the Department has not provided any reasoning or 'genuine operational requirements' barring the conversion.
  1. [20]
    The Department resists the appeal and raises the following matters, in summary, in support of its position:
  1. (a)
    the position which Mr Whatman is currently acting is one of several additional dual role Wardsperson, Fire Safety and Security Officer (003) positions which were agreed to by the Department and the AWU to be put in place until the implementation of a new security model for Hervey Bay Hospital;
  1. (b)
    the discussions and negotiations regarding the new security model for the Hervey Bay Hospital have been occurring for an extended period of time and the additional positions were put in place until a new model could be agreed and are currently funded for that purpose;
  1. (c)
    that there is significant organisational change underway, relevantly, it is proposed to remove and abolish the 'outdated and inefficient hybrid roster systems' which encompasses dual role Wardsperson, Fire Safety and Security Officers and whom act as both Wardsperson and Fire Safety and Security Officers;
  1. (d)
    the proposal is intended to introduce a continuous shift roster pattern and replace the dual role position with distinct single roles, providing greater role clarity between the two roles and new role descriptions outlining distinct responsibilities and functions; and
  1. (e)
    the Department submits that there are genuine operational requirements of the Department to finalise the consultation process and implement the proposed changes prior to determining its capacity to appoint Mr Whatman permanently to the higher classification level.
  1. [21]
    In support of its position, the Department relies on the decision of Scowcroft v State of Queensland (Queensland Health)[6] ('Scowcroft') in which a conversion appeal was dismissed on the basis that at the time of the conversion review, the relevant role had been identified as one that would be impacted by organisational change.
  1. [22]
    The Department relies on the reasoning in Scowcroft and says that the circumstances in this matter are in effect the same and that Mr Whatman seeks to be employed on a permanent basis in a dual role position that is proposed to be abolished in the same organisational process as that referred to in Scowcroft, and at a time when the Department is genuinely considering how it will structure its employees in operational services, including, employees permanently employed in positions classified at both 002 and 003 levels.
  1. [23]
    In reply, Mr Whatman, inter alia¸ states:
  1. (a)
    that it is not the case that if he was to be converted to the higher classification position that there would be two people performing the same role;
  1. (b)
    whilst he accepts that the Department may need to engage personnel on a temporary or casual basis, that it is not appropriate to continue in such a manner once the employee meets the requirements for conversion;
  1. (c)
    the proposed restructure is taking a considerably longer time to implement and should not result in employees being placed in a 'perpetual state of employment limbo';
  1. (d)
    the Department's classification of Mr Whatman's position as temporary is not evidence of it in fact being temporary;
  1. (e)
    he accepts that the decision in Scowcroft is analogous to this matter, however the Department has made little to no attempt to progress the implementation of the restructure; and
  1. (f)
    the circumstances of his matter are more akin to those in Huismann v State of Queensland (Queensland Health)[7] ('Huismann'), where it was determined that there comes a point in time where it is no longer fair and reasonable to rely on organisational structure and the associated uncertainties not to convert the relevant employee.
  1. [24]
    The relevant consideration for me with respect to this matter is whether there is a genuine operational requirement which prevents the Department from converting Mr Whatman to the higher classification position.
  1. [25]
    I accept the reasoning in the decision of Huismann that there may indeed come a point in time where an organisational change process can not be used as an impediment to the conversion of an employee in perpetuity. However, such a view can be formed having regard to, amongst other things, the length of the restructure process and what steps have been taken in relation to it.
  1. [26]
    Whilst it appears on the material before me that the organisational change process has taken some time, there is no suggestion and certainly no direct submission made by Mr Whatman that the process has not been genuine. Indeed, it appears that the Department, together with the relevant unions have been in consultation with respect to the organisational change and, perhaps as a result of that consultation process, further steps are being taken in relation to the process.
  1. [27]
    On the material before me, I am satisfied that the organisational change process referred to by the Department is genuine and presents as an operational barrier to Mr Whatman being converted to the position. Relevantly, I have had regard to the submissions, which are accepted by Mr Whatman, that it is proposed that the position has been identified as one which is to be abolished.
  1. [28]
    For these reasons I consider that the refusal of Mr Whatman's request on the basis of genuine operational requirements was fair and reasonable.

Order

  1. [29]
    Accordingly, 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] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

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

[4] [2020] QIRC 203.

[5] Ibid, [37] - [38].

[6] [2021] QIRC 434.

[7] [2021] QIRC 176.

Close

Editorial Notes

  • Published Case Name:

    Whatman v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Whatman v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 101

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    24 Mar 2022

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
1 citation
Jump To
Cite 1 - [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
Huismann v State of Queensland (Queensland Health) [2021] QIRC 176
2 citations
Jump To
Cite 1 - [2021] QIRC 176
Cite 2 - [2021] QIRC 176
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
Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434
2 citations
Jump To
Cite 1 - [2021] QIRC 434
Cite 2 - [2021] QIRC 434

Cases Citing

Case NameFull CitationFrequency
Kattenberg v State of Queensland (Queensland Health) [2022] QIRC 1022 citations
1

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