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  4. Ahmad v State of Queensland (Queensland Corrective Services) - [2022] QIRC 167

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Ahmad v State of Queensland (Queensland Corrective Services)[2022] QIRC 167

Ahmad v State of Queensland (Queensland Corrective Services)[2022] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ahmad v State of Queensland (Queensland Corrective Services) [2022] QIRC 167

PARTIES:

Ahmad, Waise

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2022/304

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision 

DELIVERED ON:

20 May 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 – appeal against a conversion decision – where appellant is employed in substantive position of Advisor, Re-entry Offender PO3 – where appellant has been acting in higher classification position of Principal, Advisor Re-entry AO7 since 7 October 2019 – where appellant requested to be permanently appointed to higher classification position – where respondent rejected the request on the basis of the genuine operational requirements of the Department – consideration of genuine operational requirements – where incumbent position holder is due to return – where respondent does not require two employees to be permanently appointed to the same role – where decision fair and reasonable – where decision confirmed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Public Service Act 2008 (Qld), s 149C, s 194

Appointing an Employee to a Higher Classification Level: Directive 13/20, cl 4, cl 5, cl 6, cl 7, cl 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)

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Waise Ahmad is employed by the State of Queensland, Queensland Corrective Services ('the Department'), in the substantive position of Advisor, Re-entry Offender PO3, within the Offender Rehab and Management Services.
  1. [2]
    Mr Ahmad commenced employment in the higher classification position of Principal, Advisor Re-entry AO7 within the Offender Rehab and Management Services on 7 October 2019. This appointment is due to cease on 30 June 2022.
  1. [3]
    On 18 January 2022, Mr Ahmad requested that he be permanently appointed to the higher classification position of Principal, Advisor Re-entry AO7 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').
  1. [4]
    On 14 February 2022, the Department advised Mr Ahmad that it had determined to reject his request for conversion due to the genuine operational requirements of the Department, and that he would continue to be engaged according to the terms of the existing higher duties arrangement.
  1. [5]
    By notice of appeal filed in the Industrial Registry on 21 February 2022, Mr Ahmad appeals the decision to reject his request for conversion and relies on the following grounds in support of his appeal:

I seek to appeal the decision made in relation to my application in line with Directive 13/20 relating to appointing a public service employee to a higher classification level.

I am appointed to a PO3 role however I have continuously acted in higher duties since 2012/2013. I strongly feel that I demonstrate the capacity and capability to be appointed to an AO7 role. This is evidenced by my continued acting up since 2013 and most recently temporarily [sic] acting in an AO8 role.

My intent in appealing this decision is to highlight my experience in this process and seek a review of this decision. Further to demonstrate the inherent inequity of this process, given the lack of wholistic consideration given to the length of service of public service employees.  As demonstrated by numerous appointments of those being lucky enough to be sitting against true vacant positions. 

  1. [6]
    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. [7]
    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. [8]
    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. [9]
    For the reasons contained herein, I have determined that the decision was fair and reasonable.

The decision

  1. [10]
    The decision maker relied on the following reasons in support of the decision to reject
    Mr Ahmad's request for conversion:

…

At this time, the genuine operational requirements of the agency do not support your permanent appointment to the role you are currently performing as the position has a substantive incumbent and two people are not required to undertake the same role. The substantive incumbent is currently on secondment and is due to return to the role from 1 July 2022. You will continue to be engaged according to the terms of your existing higher duties arrangement until 3 April 2022, unless further advised.[4]

…

Relevant legislation and Directive

  1. [11]
    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. [12]
    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. [13]
    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)[5] as follows:[6]

…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. [14]
    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. [15]
    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. [16]
    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:

5.1Section 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.

5.2To 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.

5.3Under 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. [17]
    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. [18]
    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. [19]
    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. [20]
    By order of this Commission dated 24 February 2022, the parties were directed to file in the Industrial Registry and serve on each other, written submissions in respect of the appeal. Mr Ahmad did not provide any written submissions in support of his appeal. Accordingly, Mr Ahmad's grounds of appeal are confined to those contained in his appeal notice.
  1. [21]
    The following matters are not in dispute:
  1. (a)
    that Mr Ahmad is eligible to appeal the decision pursuant to s 194(1)(e)(iii) of the PS Act; and
  1. (b)
    that Mr Ahmad is eligible to apply for conversion to the position at a higher classification level in accordance with s 149C(1) of the PS Act.
  1. [22]
    Mr Ahmad's appeal notice provides that he is appealing the decision 'to demonstrate the inherent inequity and unfairness of this process, given the lack of wholistic consideration given to the length of service for public service employee. As demonstrated by numerous appointments of those being lucky enough to be sitting against true vacant positions.'
  1. [23]
    Section 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 set out the considerations a chief executive must have regard to when deciding a request for conversion. Relevantly, those considerations do not include the length of a public service employees' service, nor do they require consideration of positions beyond the position which is the subject of the appeal.
  1. [24]
    The role of the Commission in an appeal of this nature is to determine if the decision is fair and reasonable. I will consider the extent to which the decision maker had regard to the matters that must be considered when making a decision as set out in s 149C of the PS Act and Directive 13/20.

Genuine operational requirements

  1. [25]
    In making the decision, the decision maker is required to consider, inter alia, the genuine operational requirements of the agency.
  1. [26]
    The Department contends that the genuine operational requirements of the Department do not support Mr Ahmad's request for conversion of his employment to the position at the higher classification level. In this regard, the Department relies on the fact that the substantive incumbent for the higher classification position is on a temporary secondment, due to return to the substantive position on 1 July 2022, and the Department does not require two people to undertake the same role.
  1. [27]
    In support of its position, the Department relies on the decision of Nangit v State of Queensland (Department of Communities, Housing and Digital Economy)[7] ('Nangit'), in which a conversion appeal was dismissed on the basis that the incumbent of a higher classification position, in which the appellant was acting up in may have returned to that position, and the relevant department did not require two permanently appointed employees to the position upon the incumbent's return.
  1. [28]
    The Department relies on the reasoning in Nangit and contends that it was open for the decision maker to consider the impending return of the incumbent employee to the substantive position when making a determination in respect of Mr Ahmad's request, and that this consideration was open to make under s 149C(4A)(a) of the PS Act.
  1. [29]
    In his appeal notice, Mr Ahmad refers to other 'numerous appointments' who were 'lucky enough to be sitting against true vacant positions.' Mr Ahmad does not contend that the position he was 'sitting against' was a vacant position in truth.
  1. [30]
    Whilst it appears that Mr Ahmad has been acting in the position for a reasonably lengthy period, he has not sought to disturb the Department's submission that the incumbent to the position is on secondment and due to return on 1 July 2022. The likely return of the incumbent to the position is a relevant consideration in the terms of managing the Department in a way that promotes the effective and appropriate management of public resources.[8]
  1. [31]
    It is clear from the material that Mr Ahmad is a long serving employee who has been appointed to act up in various positions, including the position which is the subject of this appeal. However, the eligibility of Mr Ahmad, in accordance with the merit principle,[9] is not a matter in dispute between the parties. The Department accepts that Mr Ahmad was eligible for appointment to the position having regard to the merit principle.
  1. [32]
    On the facts of this matter, the decision was determined on the basis of the operational requirements of the Department.
  1. [33]
    For the reasons addressed above, I consider that it was open on the evidence before the decision maker to conclude that the genuine operational requirements of the Department do not support Mr Ahmad's request to be permanently appointed to the higher classification position.
  1. [34]
    I consider that the decision is fair and reasonable.

Order

  1. [35]
    For the foregoing reasons, 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] The period of engagement was extended to 30 June 2022.

[5] [2020] QIRC 203.

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

[7] [2021] QIRC 038.

[8] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [40].

[9] Public Service Act 2008 (Qld), s 28.

Close

Editorial Notes

  • Published Case Name:

    Ahmad v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Ahmad v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2022] QIRC 167

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    20 May 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 38
2 citations
Jump To
Cite 1 - [2021] QIRC 38
Cite 2 - [2021] QIRC 38

Cases Citing

Case NameFull CitationFrequency
Cushing v State of Queensland (Department of Education) [2023] QIRC 2522 citations
Deans v State of Queensland (Department of Education) [2025] QIRC 1082 citations
Nash v State of Queensland (Queensland Corrective Services) [2022] QIRC 4342 citations
1

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