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Francis v State of Queensland (Department of Justice and Attorney-General)[2022] QIRC 138

Francis v State of Queensland (Department of Justice and Attorney-General)[2022] QIRC 138

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138

PARTIES:

Francis, Joshua Andrew

(Appellant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NO.:

PSA/2021/410

PROCEEDING:

Public Service Appeal - Conversion to higher classification level

DELIVERED ON:

13 April 2022

HEARING DATE:

22 March 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 5 January 2022, Appellant's written submissions in reply filed on 11 February 2022, Respondent's written submissions filed on 2 February 2022 and Respondent's further written submissions filed on 4 March 2022

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – PUBLIC SERVICE APPEAL – since 13 March 2019 the Appellant has been substantively employed by the Respondent as a Senior Legal Officer, classification PO4 – from 12 August 2019, the Appellant has been acting at a higher classification level, being that of Crown Prosecutor, classification PO5 – Appellant acting at a higher classification across positions with three different position numbers – on 20 October 2021, the Appellant made request pursuant to s 149C(3) of the Public Service Act 2008 to be permanently appointed to the position of Crown Prosecutor, classification PO5 – no decision made by the Respondent within the required period with the consequence that, pursuant to s 149C(6) of the Public Service Act 2008, a decision was taken to have been made that the Appellant's request was refused – Appellant appealed against that decision – whether decision was fair and reasonable within the meaning of s 562B(3) of the Industrial Relations Act 2016 – Appellant's most recent acting at the higher classification level was and is to backfill for an incumbent who has been on approved spousal leave – whether s 149C of the Public Service Act 2008 only permits appointment to the specific position at the higher classification level in which the Appellant was acting at the time of the request or whether the appointment can be to any position of the same title and classification level – Appellant could only be considered to be appointed to the position in which he was acting at the time of the request – genuine operational requirements of the Department against the appointment of the Appellant to that position – decision fair and reasonable – decision appealed against confirmed

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – principles of statutory construction – construction of s 149C of the Public Service Act 2008

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Directive: 12/20 - Recruitment and selection, cl 3.3 and cl 6.3

Directive: 13/20 - Appointing a public service employee to a higher classification level

Industrial Relations Act 2016, s 562B and s 562C

Public Service Act 2008, s 27, s 28, s 29, s 98, s 120, s 148, s 149, s 149A, s 149B, s 149C, s 194 and s 196

Public Service and Other Legislation Amendment Act 2020, s 37

CASES:

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Golder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 020

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v A2 [2019] HCA 35; (2019) 269 CLR 507

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015

Wilson v State of Queensland (Queensland Health) [2021] QIRC 084

APPEARANCES:

The Appellant in person.

Mr M. Brady of Mapien on behalf of the Respondent with Ms J. Glaister, Mr T. Fuller and Mr H. Kentrotis of the State of Queensland (Department of Justice and Attorney-General).

Reasons for Decision

Introduction

  1. [1]
    Mr Joshua Francis is employed by the State of Queensland through the Department of Justice and Attorney-General ('the Department'). On 13 March 2019, Mr Francis was permanently appointed to the position of Senior Legal Officer, classification PO4, within the Office of the Director of Public Prosecutions of the Department.
  1. [2]
    Since 12 August 2019, Mr Francis has acted at a higher classification level, namely, Crown Prosecutor, classification PO5.[1]
  1. [3]
    It is not in dispute that:
  • on 20 October 2021, Mr Francis, pursuant to s 149C(3) of the Public Service Act 2008 ('the PS Act'), made a lawful request to be permanently appointed to the position of Crown Prosecutor, classification PO5;
  • pursuant to the combined effect of s 149C(4) and s 149C(8)(b) of the PS Act, the Chief Executive of the Department had to decide the request within 28 days after the request was made;
  • the Chief Executive did not decide the request within 28 days after the request was made such that, pursuant to s 149C(6) of the PS Act, the Chief Executive was taken to have refused the request ('the decision'); and
  • Mr Francis, pursuant to the combined effect of s 194(1)(e)(iii) and s 196(e) of the PS Act, was able to appeal to this Commission against the decision.
  1. [4]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[2]
  1. [5]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[3]
  1. [6]
    The principal argument pressed by Mr Francis at the hearing of his appeal was that, properly construed, the phrase 'the position' in s 149C(3) of the PS Act should be read broadly, namely, by reference to the position's title and classification level - in his case, Crown Prosecutor, classification PO5 - as opposed to the specific position, identified by a position number, in which he was acting at the time of his request.[4]
  1. [7]
    By this construction, Mr Francis contended that the Department's argument on appeal - that the imminent return from leave of the incumbent of the specific position at the higher classification level in which he has been acting meant the genuine occupational requirements of the Department precluded his appointment to that specific position - was wrong, such that the decision taken to have been made was not fair and reasonable.
  1. [8]
    Mr Francis' alternative arguments as to why the decision was not fair and reasonable were:
  • the decision taken to have been made under s 149C(6) of the PS Act was arbitrary, capricious and unsupported by reasons;[5] and
  • there is no evidence of any genuine operational requirements of the Department against his appointment to the position of Crown Prosecutor, classification PO5.[6]
  1. [9]
    For the reasons that follow, the decision taken to have been made by the Chief Executive was fair and reasonable.

Relevant background

  1. [10]
    It was not disputed by Mr Francis[7] that, as set out in the Department's submissions filed on 2 February 2022, the facts are that:
  • between 12 August 2019 and 10 May 2020, Mr Francis acted in the position of Crown Prosecutor, classification PO5, located in Townsville,[8] position number 750679;
  • between 11 May 2020 and 11 May 2021, Mr Francis acted in the position of Crown Prosecutor, classification PO5, located in Townsville, position number 711676; and
  • from 12 May 2021 to the present, Mr Francis has acted in the position of Crown Prosecutor, classification PO5, located in Townsville, position number 713817, while the incumbent of that position has been on approved spousal leave, with the incumbent due to return to the position.[9]
  1. [11]
    At the hearing of his appeal, Mr Francis confirmed that he has been further directed to act, for a further period of time, in the position of Crown Prosecutor, classification PO5.[10]

Section 149C of the PS Act

  1. [12]
    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.

(4A)  In making the decision, the department’s chief executive must have regard to-

  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (5)
    If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (6)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.

  1. (8)
    In this section-

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means-

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

Mr Francis' submissions and material

  1. [13]
    Mr Francis relevantly submitted that:
  • the phrase 'the position', in s 149C(3) of the PS Act, as it applies to his appeal, means 'Crown Prosecutor';[11]
  • the position of Crown Prosecutor is not limited by a finite number of people that can be appointed to it, which may be contrasted with the position of a member of Parliament, which exists in finite numbers because there are only so many seats in Parliament to which a person may be elected;[12]
  • there is no constitutional or legislative requirement that there only be a limited number of Crown Prosecutors;[13]
  • the phrase 'higher classification level', as it applies to his appeal, means classification PO5, being a classification level which may comprise various positions;[14] and
  • the concept of a position number has no legislative or constitutional basis, and without it there are no means to distinguish the 'position' in which he is acting as Crown Prosecutor from the 'position' in which others are acting or to which they are permanently appointed, or the 'position' of Crown Prosecutor generally.[15]
  1. [14]
    After referring to the decision of Kiefel CJ, Nettle and Gordon JJ in SZTAL v Minister for Immigration and Border Protection ('SZTAL')[16] concerning the contemporary approach to the construction of statutes, Mr Francis submitted that:
  • the phrase 'the position' used in s 149C(3) of the PS Act, does not evince, expressly or impliedly, an intention to narrow the power of the chief executive to appoint an employee only to the precise contract number under which they happen to be employed at the time of the request;
  • such a narrow interpretation is inconsistent with the purpose of s 149C of the PS Act, namely, to maximise employment security in the public sector;
  • so long as the employee is acting at a higher classification level, and has been acting at that higher classification level for a continuous period of at least 1 year, the employee meets the criteria in s 149C(1)(a) and (b) of the PS Act;
  • the reference, in s 149C(l)(c) of the PS Act, to 'the position' is only for the purpose of identifying the relevant position against which the merit principle must be assessed;
  • it follows that, if an employee makes a request under s 149C(3), the power conferred on the chief executive by s 149C(4) to decide the request may be exercised by appointing the employee to the position at the higher classification level as a general employee on tenure or as a public service officer, regardless of whether the position in which the employee has been acting in a higher classification level for at least year is vacant, or capable of being either occupied or vacant; and
  • if the phrase 'the position' in s 149C(l)(c) meant only a particular position that was either occupied or vacant, the criterion in s 149C(l)(c) would not have been met, and he would not have been able to make a request under s 149C(3) of the PS Act.[17]
  1. [15]
    Mr Francis filed an affidavit in which he deposed that he believed the incumbent of the position, in which he had most recently been acting, had permanently moved away from Townsville.
  1. [16]
    In oral submissions, Mr Francis submitted that there were three ways to interpret the noun 'position' in the context of s 149C(3) of the PS Act. These were:
  • by reference to any position at the classification level, in his case, classification PO5, of which there are many;[18]
  • the position he holds, namely, Crown Prosecutor;[19] or
  • by reference to the position number of the position currently occupied by him.[20]
  1. [17]
    Mr Francis then submitted that:
  • section 149C(3) of the PS Act does not restrict 'the position' to a position number;[21] and
  • when appointments to positions are notified in the Queensland Government Gazette, there is no reference to position numbers.[22]
  1. [18]
    Mr Francis further submitted that s 149C of the PS Act is explicitly aimed at maximising employment security and that objective is not met by construing the phrase 'the position' in s 149C(3) by reference to the particular position, identified by position number, because it produces unfairness. The unfairness said to arise was:

[T]hat the employees acting in positions at higher classification levels are in a better position not because of their experience or length of time in the position but only because by pure happenstance their position number is not attached to one that is ordinarily occupied by a substantive permanent incumbent.

And this is a cycle that repeats itself where a permanent employee occupying, for example, a position number, resigns. That position is advertised. There’s an expression of interest. And what ordinarily would occur is that a new person without experience in that role is appointed to that position on the expression of interest as an acting prosecutor in my case. What that follows is purely because that position is vacant and because a person previously resigned, the new actor is placed in a better position than someone who could theoretically have been acting in another position number for many years. And so really, it’s not achieving the introduction of 149C, which has reference to the length of time as one of its criteria for eligibility, and make such requests.[23]

The Department's submissions

  1. [19]
    The Department submits that Mr Francis' submissions about the construction of s 149C of the PS Act are misconceived because:
  • unlike a conversion request made under s 149A of the PS Act, a request for conversion under s 149C is a request for appointment to '… the position at the higher classification level';
  • the phrase in s 149C(3) of the PS Act, namely, '… the position at the higher classification level' is very specific and, having regard to its context and purpose, it is clear that the phrase refers to the specific position in which the employee is temporarily performing higher duties;
  • an appointment under s 149C of the PS Act can only be made to the position in which an employee is acting at the time the request is made, and the Department is not required to consider appointing an employee to comparable positions at level as such an outcome is not available under either s 149C of the PS Act or under the Directive: 13/20 - Appointing a public service employee to a higher classification level;
  • the Commission has, on several occasions, considered that the return of the substantive incumbent to the position represents a genuine operational requirement supporting the temporary employment of an employee at a higher classification level and that the need for the employee to backfill the role would conclude when the substantive employee returned to the position following a period of leave;
  • in Mr Francis' case, '… the position at the higher classification level' as referred to in s 149C(3) of the PS Act, means position number 713817, which is substantially occupied by an employee who is currently on approved spousal leave; and
  • Mr Francis was appointed to his current temporary role in position number 713817 to backfill the temporary vacancy while the substantive occupant of that position was on approved spousal leave (which has now been extended until 29 April 2022), the consequence of which has been a further extension of Mr Francis' temporary appointment to position number 713817.[24]
  1. [20]
    In oral submissions, the Department relevantly submitted that the Public Service Commission, through its publication about this topic, and previous decisions of the Commission, have all supported the narrow interpretation of the phrase 'the position' in s 149C(3) of the PS Act, namely, that it contemplates the position in which the employee was acting at the time of the request.[25]
  1. [21]
    The Department also submitted that the narrow construction had to be correct because the assessment of the genuine operational requirements of the Department in s 149C(4A)(a) of the PS Act, in context, was in respect of the appointment of the employee to the position in which they are relieving and not in respect of a position title.[26]

The decision was fair and reasonable

  1. [22]
    I considered the construction of s 149C of the PS Act in Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) ('Nangit').[27]
  1. [23]
    In Nangit, I stated:
  1. [35]
    Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee:
  • is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and
  • has been acting at the higher classification level for a continuous period of at least one year; and
  • '… is eligible for appointment to the position at the higher classification level having regard to the merit principle.'
  1. [36]
    Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.'
  1. [37]
    The phrase used in s 149C(1)(c) and in s 149C(3), namely '… the position at the higher classification level' is very specific. The purposes of these provisions are, respectively, that:
  • it is the specific position at the higher classification level, in which the employee has been acting, that an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made; and
  • the request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting.

  1. [39]
    If it were otherwise, then the Parliament would have used different words or a different phrase to '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) of the PS Act. [28]
  1. [24]
    The same construction has been applied in public service appeal decisions of the Commission about decisions not to appoint public service employees to the positions at a higher classification level in which they have been acting. The decisions include Holcombe v State of Queensland (Department of Housing and Public Works)[29], Thorne v State of Queensland (Department of Housing and Public Works)[30] and Golder v State of Queensland (Department of Housing and Public Works)[31] and Wilson v State of Queensland (Public Trustee Office) ('Wilson').[32]
  1. [25]
    Mr Francis' submissions do not persuade me that the construction of s 149C of the PS Act by the Members of this Commission in the above cases is wrong.
  1. [26]
    In SZTAL,[33] the plurality, consisting of Kiefel CJ, Nettle J and Gordon J, summarised the modern approach to statutory construction, namely:

14 The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[34]

  1. [27]
    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.[35] The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[36] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[37] Further, the purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of relevant provisions.[38]
  1. [28]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.
  1. [29]
    Mr Francis submitted that there is no constitutional or legislative requirement that there only be a limited number of Crown Prosecutors. That may be so, but that submission ignores the responsibilities of the Chief Executive to determine the number, classification level and designation of roles of Departmental employees[39] and to plan human resources.[40] The reality is that in managing a department in a way that promotes the effective, efficient and appropriate management of public resources,[41] there is, at any one time, a finite number of permanent public service employee positions. It cannot be disputed that the Department is relevantly administered by allocating numbers to positions occupied by public service employees. However, in the absence of any evidence to the contrary, it seems that the use of position numbers is a means by which specific, established positions are identified.
  1. [30]
    Pursuant to s 149C(3) of the PS Act, a public service employee may make a request to be appointed '… to the position at the higher classification level as a general employee on tenure or a public service officer.' Pursuant to s 149C(1)(c) of the PS Act, to be eligible to make such a request, the public service employee must, in addition to meeting the requirements contained in s 149C(1)(a) and (b), be '… eligible for appointment to the position at the higher classification level having regard to the merit principle.'
  1. [31]
    It seems to me that the phrase '… to the position at the higher classification level' as used in both of those provisions, and the precise use of the words 'the position' in the context of both provisions, refer to the specific position at the higher classification level occupied by the public service employee at the time of the request. This has to be the case because, read objectively, s 149C(3) is concerned with the request to be made by an eligible employee, where that request is temporally referable to '… the position at the higher classification level.' That is, the position in respect of which the request is made is the one occupied by the employee at the time of the request. It seems obvious that the assessment of merit required by s 149C(1)(c) is in respect of the same position.
  1. [32]
    Thus, reading s 149C(3) of the PS Act with s 149C(4), the request that must be decided by the chief executive is whether or not to appoint the public service employee to the specific position at the higher classification level occupied by the public service employee at the time of the request and in respect of which the employee is eligible for appointment having regard to the merit principle.
  1. [33]
    Different words would have been used in s 149C(3) if the intention of Parliament was that as contended by Mr Francis. The way Mr Francis contends that s 149C(3) should be read is that the employee could request the chief executive to appoint the employee to '… the position, or another position with the same title, at the higher classification level.'[42] To construe s 149C(3) of the PS Act this way is inconsistent with the text of the provision.
  1. [34]
    The purpose of s 149C is also against the construction contended for by Mr Francis.
  1. [35]
    As Mr Francis submitted, the purpose of s 149C of the PS Act, like that of s 149, s 149A and s 149B of the PS Act,[43] is to maximise employment security. However, in my view, the precise purpose of s 149C of the PS Act, to achieve the broad purpose of maximising employment security, is, relevantly, to confer power on a chief executive to appoint an eligible public service employee, who has been acting at the higher classification level for at least 1 year to '… the position at the higher classification level.'
  1. [36]
    In this regard, s 149C must be considered in its context in the PS Act. Section 149C is located in ch 5, pt 5 of the PS Act which is headed 'General, fixed term temporary and casual employees.' That part was introduced into the PS Act by s 37 of the Public Service and Other Legislation Amendment Act 2020.
  1. [37]
    Contained in ch 5, pt 5 of the PS Act is s 148, which deals with the employment of fixed term temporary employees. Section 148(1) provides that a chief executive may employ a fixed term temporary employee to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if the employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. [38]
    Section 148(2) of the PS Act deals with the circumstances where it may not be viable or appropriate to employ a person on tenure. That sub-section provides:
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes-
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period-

approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples-

employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples-

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example-

an unexpected increase in workload for disaster management and recovery

  1. [39]
    What can be gleaned from s 148(2)(a) is, relevantly to Mr Francis' case, that it may not be viable or appropriate to employ a person on tenure to fill a temporary vacancy arising because a person is absent for a known period. Clearly, such a circumstance may give rise to the appointment of a fixed term temporary employee. Alternatively, as contemplated by s 149C(1)(a), such a circumstance may give rise to a public service employee being seconded to the vacancy or acting in the vacancy at a higher classification level.
  1. [40]
    Having regard to this context, the specific purpose of s 149C is to confer power on a chief executive to appoint a public service employee (who meets the s 149C(1) eligibility requirements) to the particular vacancy at the higher classification level to which they have been seconded or in respect of which they are acting.
  1. [41]
    Viewed in this context, the phrase '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) can only mean the specific position (at the higher classification level) to which the employee has been seconded or in respect of which the employee is acting.
  1. [42]
    Thus, the request to be decided by the chief executive under s 149C(4) is a request to be appointed to that specific position. Similarly, as submitted by the Department, the requirement to consider the genuine operational requirements of the Department, as set out in s 149C(4A)(a), is in respect of the appointment of the employee to the position to which they have been seconded or in respect of which they are acting.
  1. [43]
    The specific purpose of s 149C of the PS Act is not to confer power on the chief executive to appoint an eligible public service employee to another position with the same title and classification as the position in respect of which they have been seconded or in respect of which they are acting.
  1. [44]
    Further support for the narrow construction comes from the fact that, pursuant to s 149C(1)(c) of the PS Act, the public service employee must be eligible for appointment to '… the position at the higher classification level having regard to the merit principle.'
  1. [45]
    The merit principle is contained in s 27 of the PS Act. Section 27(1) of the PS Act relevantly provides that the selection under the PS Act of an eligible person for appointment as a public service employee must be based on merit alone.
  1. [46]
    Section 28 of the PS Act provides:

28 Merit criteria

In applying the merit principle to a person, the following must be taken into account-

  1. (a)
    the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
  1. (b)
    if relevant-
  1. (i)
    the way in which the person carried out any previous employment or occupational duties; and
  1. (ii)
    the extent to which the person has potential for development.
  1. [47]
    In my view, the assessment of merit, required by s 149C(1)(c) of the PS Act, must be in respect of the specific position to which the employee has been seconded or in respect of which the employee is acting at the time of the request. Section 28(a) of the PS Act refers to taking into account the person's abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities '… relevant to the carrying out of the duties in question.' It seems to me that the phrase '… the duties in question' is referrable to the duties of a specific position. It would be an odd result if a requirement, so as to be able to make a request under s 149C(3), is eligibility for appointment to one position at the higher classification level having regard to the merit principle, but the request that could be made under s 149C(3) is to be appointed to a different position, but with the same title and classification. Such a construction would not best achieve the purpose of s 149C of the PS Act.
  1. [48]
    Three more things may be said about the submissions made by Mr Francis.
  1. [49]
    First, while a purpose of s 149C of the PS Act is to maximise employment security, that broad purpose cannot mean that a chief executive can appoint an eligible public service employee to any position so long as it has the same title and classification level as the one in which the employee had been acting at the time of the request. The text and purpose of s 149C, as referred to above, is against such a construction.
  1. [50]
    Secondly, I am not persuaded that Mr Francis' argument as reproduced at paragraph [18] of these reasons is of assistance to him. The argument, as I understand it, seems to be that an employee acting in a higher classified position, where there is no incumbent permanently appointed to the higher classified position, has a better chance, pursuant to s 149C of the PS Act, of being appointed to the position than if they were acting in a higher classified position which is permanently occupied by an (absent) incumbent. That may be so because, in the latter case, there is a genuine operational requirement of the Department against having two persons appointed to the one higher classified position. Such circumstances may arise. That such circumstances may arise cannot mean, by referring to the broad purpose of maximising employment security, the text and specific purpose of s 149C of the PS Act may be ignored in favour of the broad construction contended by Mr Francis.
  1. [51]
    Thirdly, s 29 of the PS Act provides that a directive of the Chief Executive of the Public Service Commission may provide for how selection, under the merit principle, for a stated type of appointment or secondment, must be carried out. Such a directive is Directive: 12/20 - Recruitment and selection. That Directive provides that, subject to some specified exceptions not presently relevant, 'vacancies' must be advertised so as to maximise quality applicant pools.[44] However, in approving a request made under s 149C(3) of the PS Act, the chief executive can directly appoint the public service employee to the position without complying with Directive: 12/20 - Recruitment and selection.[45]
  1. [52]
    If s 149C of the PS Act was broadly construed to confer power on a chief executive to appoint an eligible public service employee to any vacant position that had the same title and classification level as the position in which the employee has been acting at the time the request is made, then that may permit a chief executive to avoid compliance with Directive: 12/20 - Recruitment and selection in respect of that first position.
  1. [53]
    This analysis further supports the narrow construction of s 149C(3) of the PS Act that I have referred to above.
  1. [54]
    For these reasons, I am not persuaded that my decision in Nangit, and the similar decisions of the other Members of this Commission, were wrong.
  1. [55]
    In my opinion, in respect of Mr Francis' appeal against the decision, and in determining whether or not the decision taken to have been made by the Chief Executive was fair and reasonable, consideration must be had to the specific position, at the higher classification level, in which Mr Francis was acting at the time of his request.
  1. [56]
    The position was that of Crown Prosecutor, classification PO5, located in Townsville, position number 713817. The incumbent of that position is on leave and according to the Department, the incumbent is to return to that position at the conclusion of the incumbent's leave on 29 April 2022. The Department submits that at that time there will no longer be a need for Mr Francis to perform higher duties at the higher classification level in that specific position.
  1. [57]
    In my opinion, the Department's submissions are persuasive. Because the incumbent of position number 713817 is scheduled to return to work in the position after that person's leave concludes on 29 April 2022, that is a genuine operational requirement that precludes the appointment of Mr Francis to that position. That genuine operational requirement of the Department is against having two persons appointed to the one position.
  1. [58]
    For that reason, my opinion is that the decision taken to have been made by the Chief Executive pursuant to s 149C(6) of the PS Act was fair and reasonable.
  1. [59]
    Mr Francis alternatively submitted that the decision was not fair and reasonable in that:
  • no decision, with no reasons in response to his request, was made within 28 days as required by s 149C(4) of the PS Act; and
  • no evidence was led by the Department proving the genuine operational reasons relied upon by it to not appoint him to the position of Crown Prosecutor, classification PO5.
  1. [60]
    While the Department could have and should have made a written response to Mr Francis' request within 28 days after receiving his request, that failure to provide the written response does not, on its own, render the decision to be other than fair and reasonable. The relevant facts must also be considered.
  1. [61]
    The State of Queensland is the employer of the incumbent of the position. Its representative has informed me that the incumbent's leave has been extended until 29 April 2022. Mr Francis did not dispute that assertion and it is consistent with the fact that his acting in the position has been extended. Whether or not the incumbent has permanently moved away from Townsville (as asserted in Mr Francis' affidavit filed in this proceeding), there is no evidence that the incumbent has relinquished their position, being the one in which Mr Francis has been, and is, acting.
  1. [62]
    For the reasons I have given above, my view is that the decision taken to have been made was fair and reasonable.

Conclusion

  1. [63]
    The question in this appeal was whether the decision appealed against was fair and reasonable.
  1. [64]
    For the reasons I have given, that decision was fair and reasonable.

Order

  1. [65]
    I make the following order:

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

Footnotes

[1] Mr Francis' submissions filed on 5 January 2022, para. 3. There is no contention or submission by either party that Mr Francis has been seconded, pursuant to s 120(1)(a) of the Public Service Act 2008, to the position of Crown Prosecutor, classification PO5 since 12 August 2019.

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

[3] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[4] T 2-11, ll 4 to 41.

[5] T 2-8, ll 8-13.

[6] T 2-8, ll 13-18.

[7] T 2-12, ll 16-19.

[8] The Department, in its written submissions filed on 4 March 2022 ('the Department's March submissions'), clarified that Mr Francis' acting in position number 750679 as Crown Prosecutor, classification PO5, between 12 August 2019 and 10 May 2020 was in Townsville and not in Cairns as it originally submitted.

[9] As at the date of hearing, the Department had extended the leave of the incumbent until 29 April 2022: T 2-15, ll 8-14.

[10] T 2-13, l 33 to T 2-14, l 9.

[11] Mr Francis' written submissions filed on 11 February 2022 ('Mr Francis' February submissions'), para. 4.

[12] Mr Francis' February submissions, para. 4.

[13] Mr Francis' February submissions, para. 4.

[14] Mr Francis' February submissions, para. 5.

[15] Mr Francis' February submissions, para. 6.

[16] [2017] HCA 34; (2017) 262 CLR 362 ('SZTAL'), [14].

[17] Mr Francis' February submissions, paras. 11-14 and 16.

[18] T 2-5, ll 6-11.

[19] T 2-5, ll 12-14.

[20] T 2-5, ll 14-27.

[21] T 2-5, ll 44-45.

[22] T 2-6, ll 15-17.

[23] T 2-6, l 43 to T 2-7, l 10.

[24] The Department's March submissions, para 6.

[25] T 2-16, l 16 to T 2-18, l 31.

[26] T 2-18, l 44 to T 2-19, l 43.

[27] [2021] QIRC 038.

[28] Citations omitted.

[29] [2020] QIRC 195, [48]-[54] (Industrial Commissioner McLennan).

[30] [2021] QIRC 015, [27] (Industrial Commissioner Power).

[31] [2021] QIRC 020, [18]-[20] (Industrial Commissioner Hartigan).

[32] [2021] QIRC 084 ('Wilson'), [33] (Industrial Commissioner Dwyer).

[33] SZTAL (n 16).

[34] Citations omitted.

[35] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [32]-[33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] agreeing).

[36] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[37] Ibid [70].

[38] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[39] Public Service Act 2008 s 98(1)(c).

[40] Public Service Act 2008 s 98(1)(d).

[41] Public Service Act 2008 s 98(1)(b).

[42] Emphasis added.

[43] Explanatory Notes, Public Service and Other Legislation Amendment Bill 2020 (Qld), 1, 3 and 11-14.

[44] Directive: 12/20 - Recruitment and selection, cl 6.3.

[45] Directive: 12/20 - Recruitment and selection, cl 3.3.

Close

Editorial Notes

  • Published Case Name:

    Francis v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Francis v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2022] QIRC 138

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    13 Apr 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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