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  4. Jones v State of Queensland (Queensland Health) - [2022] QIRC 317

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Jones v State of Queensland (Queensland Health)[2022] QIRC 317

Jones v State of Queensland (Queensland Health)[2022] QIRC 317

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jones v State of Queensland (Queensland Health) [2022] QIRC 317

PARTIES:

Jones, Andrew John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/583

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

12 August 2022

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. 1.The appeal is allowed;
  2. 2.The decision that Mr Jones not be converted to the higher classification position is set aside and another decision is substituted; and
  3. 3.Mr Jones be permanently appointed to the position of Team Leader Environmental Health, HP5.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the Appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the Appellant was not permanently appointed – consideration of 'the position' – consideration of 'genuine operational requirement' – where Respondent argues position is temporarily funded and not permanently vacant – whether Appellant is performing work for a particular project or purpose that has a known end date – whether Appellant is performing work necessary to meet an unexpected short-term increase in workload – where decision was not fair and reasonable

LEGISLATION AND

DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 14A

Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11

CASES:

Beves v State of Queensland (Department of State Development, Tourism and Innovation) (Queensland Industrial Relations Commission, Hartigan IC, 22 December 2020)

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

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

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

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

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

Reasons for Decision

Introduction

  1. [1]
    Since 2009, Mr Andrew Jones (the Appellant) has been substantively employed as a Senior Environmental Health Officer HP4 at the Mackay Hospital and Health Service (MHHS), Queensland Health (the Department), State of Queensland (the Respondent). 
  1. [2]
    Mr Jones has been acting at a higher classification level as a Team Leader Environmental Health HP5, Contact Tracing Unit (COVID-19), since 6 April 2020.  He has been extended in that position until 30 September 2022.
  1. [3]
    As a result of his conversion request submitted on 1 April 2022, MHHS considered whether to appoint Mr Jones to the higher classification position pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20).
  1. [4]
    On 29 April 2022, MHHS advised Mr Jones that his request had been refused and his employment would continue according to the terms of the existing higher duties arrangement (the conversion decision).[1]
  1. [5]
    On 19 May 2022, Mr Jones filed an appeal against the conversion decision.

Jurisdiction

Decision against which an appeal may be made

  1. [6]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision "…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years."
  1. [7]
    Section 197 of the PS Act allows for the appeal to be heard and decided by the Industrial Relations Commission. 
  1. [8]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Mr Jones meets that requirement.
  1. [9]
    It is not a point of dispute between the parties that Mr Jones was eligible to request conversion to the higher classification position. I am satisfied that the conversion decision made by the Respondent is able to be appealed.

Timeframe for appeal

  1. [10]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [11]
    The decision was given on 4 May 2022.
  1. [12]
    The Notice of Appeal was filed with the Industrial Registry on 19 May 2022. 
  1. [13]
    I am satisfied that Mr Jones filed the appeal within the required timeframe.

Appeal principles

  1. [14]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [15]
    The appeal is not conducted by way of re–hearing,[2] but rather involves a review of the decision arrived at by the Department and the associated decision–making process.[3] 
  1. [16]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[4]
  1. [17]
    The issue for my determination is whether the decision not to convert Mr Jones' employment status to the higher classification position was fair and reasonable in the circumstances.[5]

What decisions can the QIRC Member make?

  1. [18]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Relevant provisions of the PS Act and Directive 13/20

  1. [19]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level is contained in the IR Act, PS Act and in Directive 13/20.
  1. [20]
    Section 149C of the PS Act provides (emphasis added):

149CAppointing 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
  2. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  3. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  2. (b)
    a non–industrial instrument employee;
  3. (c)
    an employee who is seconded to or acting in a position that is ordinarily held by a non–industrial instrument employee.
  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
  2. (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.
  2. (4A)
    In making the decision, the department's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the department; and
  2. (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.
  2. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  3. (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. [21]
    Further, s 194(1)(e)(iii) of the PS Act provides (emphasis added):

194Decisions 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 oracting at the higher classification level for a continuous period of at least 2 years;
  1. [22]
    Directive 13/20 relevantly provides:

3.Application

  1. 3.4
    The requirement to advertise roles in Directive 13/20 relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive.

4. Principles

  1. 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.
  1. 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:
  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. 4.3
    Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

5. Employee may request to be appointed at the higher classification level

  1. 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.
  1. 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
  1. (b)
    for a continuous period of at least one year
  1. (c)
    be eligible for appointment to the higher classification level having regard to the merit principle.
  1. 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
  1. (b)
    each subsequent year where the employee continues their engagement at the higher classification level in the same role.
  1. 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.
  1. 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.

6. Decision making

  1. 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.
  1. 6.2
    In accordance with section 149C(4A) of the PS Act, when deciding the request, the 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 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.
  1. 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 continue according to the terms of the existing secondment or higher duties arrangement.
  1. 6.4
    Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

7. Statement of reasons

  1. 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.

  1. 7.2
    A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3.

8. Appeals

  1. 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.
  1. 8.2
    In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years.

9. Exemption from advertising

  1. 9.1
    Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive.

10. Transitional provisions

  1. 10.1
    Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer.

11. Definitions

Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

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.

Non–industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.

  1. [23]
    Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[6]
  1. [24]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that 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. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [25]
    The stated purpose of Directive 13/20 is:
  1. 1.
    Purpose
  1. 1.1
    The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non–industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. 1.2
    This directive:
  1. (a)
    highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
  1. (b)
    supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
  1. (c)
    sets out procedures for requests and decisions.[7]

Submissions

  1. [26]
    In accordance with the Directions Order issued on 24 May 2022, the parties filed written submissions.
  1. [27]
    Mr Jones filed his written submissions on 31 May 2022.
  1. [28]
    The Respondent filed its written submissions on 8 June 2022.
  1. [29]
    Mr Jones filed further submissions in reply on 17 June 2022.
  1. [30]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Consideration

  1. [31]
    I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [32]
    This involves a review of the decision–making process utilised and the conversion decision arrived at. 
  1. [33]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions.

Purpose

  1. [34]
    In deciding this Appeal, I note the significance of the legislative provisions identified and explained above.
  1. [35]
    In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and/or policy objective of Directive 13/20 is to be preferred to any other interpretation.
  1. [36]
    In that regard, I recognise that one of the stated purposes of Directive 13/20 is to support "…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle."[8]  The other is to "set out the circumstances where employment on tenure is not viable or appropriate."

Two pathways to deciding an employee's conversion request

  1. [37]
    There are two pathways by which an employee's s 149C conversion request may be decided by the Department decision maker.  The first pathway is where a decision is made within the required 28-day timeframe.  The second pathway is where a decision is deemed to have been made to refuse the conversion request, in circumstances where no such written notice is provided.  Each of these two pathways are envisaged and permitted under the current legislative framework.
  1. [38]
    The first pathway mandates the decision maker's consideration of specific criteria and the production of a written notice to the employee (that itself includes particular components) within the required timeframe.  That is the relevant consideration in this appeal.

Decision criteria

  1. [39]
    The PS Act and the Directive provide that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  • whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle;
  • the genuine operational requirements of the department; and
  • 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. [40]
    Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating:
  • the reasons for the decision;
  • the total continuous period for which the person has been acting at the higher classification level in the department;
  • how many times the person's engagement at the higher classification level has been extended; and
  • 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. [41]
    The notice provided to the employee must:
  • set out the findings on material questions of fact, and
  • refer to the evidence or other material on which those findings were based.

Merit

  1. [42]
    There is no dispute between the parties with respect to Mr Jones' merit. 

'The position' subject of this appeal

  1. [43]
    Before assessing whether there are any genuine operational requirements of the HHS that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.
  1. [44]
    Section 149C(1)(c) of the PS Act provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the Respondent to permanently appoint Mr Jones is confined to the position into which he has been placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
  1. [45]
    In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
  1. [46]
    The question is then: what is the position that Mr Jones seeks to be permanently appointed to?  
  1. [47]
    The Employee Application Form completed on 1 April 2022 described the higher classification position Mr Jones sought to be permanently converted to as:

Position title:Team Leader Environmental Health

Position Number:32068108

Organisation unit:Contact Tracing Unit COVID19

Organisation unit number:72024836

Location:Mackay

Classification:HP5

  1. [48]
    Team Leader Environmental Health, Position Number 32068108 is the position that is the subject of this appeal.

The reasons for each decision previously made, or taken to have been made

  1. [49]
    Directive 13/20 came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020.
  1. [50]
    Section 149C(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
  1. [51]
    An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of Directive 13/20.
  1. [52]
    Mr Jones had not made a previous request for appointment to a higher classification until he achieved two years in the position.

Genuine operational requirements

  1. [53]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).[9]  His Honour's explanation is also useful here (emphasis added):

[37]The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive.  As a consequence, 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.

[38]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; and
  • 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.

[39]In respect of the Directive, cl 4.2 provides that 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.  That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:

  • 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; or
  • 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.

[40]The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[10]

Respondent's position

  1. [54]
    The HHS described Mr Jones' current higher classification engagement as follows:

This role is currently temporarily funded until the 30 June 2022 as part of the COVID-19 service delivery arrangements. As such I have decided that you will not be converted to the higher classification at this time due to these specific and genuine operational requirements of the Health Service that the role is only currently temporarily funded.[11]

  1. [55]
    The Respondent submitted that the conversion decision correspondence dated 29 April 2022 conveyed the following reasons for not permanently appointing Mr Jones to the higher classification position:

a) Due to genuine operational reasons, Mr Jones is to be engaged according to the terms of his secondment / higher duties arrangement; and

b) The higher classification level position is only temporarily funded until the 30 June 2022 and is not permanently vacant and there is not an ongoing requirement for the position.[12]

  1. [56]
    The Respondent further stated that:

The genuine operational reasons for not converting Mr Jones are that the higher classification position is not recurrently funded and therefore no vacancy exists to which Mr Jones could be appointed.

The role is temporarily funded to the 30 June 2022 in line with the COVID-19 Service delivery arrangements and the Health Service is currently considering the budget arrangements for the service.  The Health Service notes that this has been extended to the 30 September 2022 whilst the current budget are under consideration.[13]

Appellant's position

  1. [57]
    Mr Jones submitted that "The higher duties position I hold is that of Team Leader Environmental Health HP5, also at the Mackay Hospital and Health Service, and I have been in this position since 6 April 2020 with a current end date of 30 September 2022."[14]
  1. [58]
    Mr Jones went on to state:

My duties as a Team Leader Environmental Health have never been associated with a Contact Tracing Unit.  I have never led a team of contact tracers.  I have always been part of, led, and continue to lead a team of permanently employed Environmental Health Officers within the Mackay Public Health Unit.[15]

From what I can ascertain, it was cleaner and more convenient for the Health Service to create a temporary position as part of a new Unit, that being of the Contact Tracing Unit (COVID-19).  Again, my duties have never been associated with such a Unit.[16]

  1. [59]
    Mr Jones further asserted:

…I do not contest that I was appointed to undertake a role associated with the COVID-19 response, however…it has always been expected of me during this time as Team Leader Environmental Health HP5 to also pick up the operational lead for normal service delivery.[17]

…

…I was advised…my duties would be to lead the team of permanently employed HP3 and HP4 Environmental Health Officers in undertaking routine service delivery and ensure the Health Service meets its commitments to the Department of Health's public health legislation compliance schedule for 2022 – 2024.[18]

Summary of factors

  1. [60]
    The Respondent argued that the following factors are the 'genuine operational requirements' preventing Mr Jones' appointment to the higher classification position:
  • temporarily funded;
  • no vacancy;
  • no ongoing requirement for the position; and
  • falls within the set of circumstances that would support the temporary engagement.

Consideration

  1. [61]
    The foundational dispute between the parties is whether or not the Respondent's determination that there were genuine operational requirements that prevented Mr Jones' permanent conversion to the higher classification position was fair and reasonable in the circumstances. 
  1. [62]
    For the reasons that follow, I find that the Respondent's decision was not fair and reasonable.
  1. [63]
    Clause 4.2 of Directive 13/20 provides some circumstances which would support the temporary engagement of an employee at a higher classification level:[19]

4.2Secondment 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

(c)to perform work for a particular project or purpose that has a known end date

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

  1. [64]
    Mr Jones has held the higher level position of Team Leader Environmental Health HP5 since 6 April 2020, with a current end date of 30 September 2022.  While it was explained that "This role is currently temporarily funded until the 30 June 2022 as part of the COVID-19 service delivery arrangements," the Respondent advised that "…this has been extended to the 30 September 2022 whilst the current budget are under consideration."
  1. [65]
    The Respondent contended that Mr Jones' current higher classification engagement falls within the set of circumstances that would support the temporary engagement of an employee, envisaged under Clause 4.2 of Directive 13/20:

… this includes cl 4.2(c) to perform work necessary to meet an unexpected short-term increase in workload for a particular project or purpose that has a known end date and cl 4.2(d) to perform work necessary to meet an unexpected short-term increase in workload.

Mr Jones was temporarily appointed to the higher duties position to undertake a role for a defined period associated with the COVID-19 response, an engagement of the type contemplated within cl 4.2(c and d) of Directive 13/20, being a circumstance that would support temporary rather than permanent employment.

  1. [66]
    However, Mr Jones' very different perspective is that:

…I have never been engaged to solely perform work for a particular project or purpose with a known end date, but to jointly perform work in both the areas of Public Health and Environmental Health CVOID-19 response, and when required, normal business-as-usual environmental health scope of practice during the higher duties' movement.  Again, I have never lead a COVID-19 Contact Tracing Unit.[20]

…

…I am not performing work for a particular project or purpose that has a known end date.  Nor am I performing work necessary to meet an unexpected short-term increase in workload only, bearing in mind that, by 30 September 2022, I would have completed nearly 30 months in this position (start date 6 April 2020).[21]

…

Throughout the declared COVID-19 disaster, the position I have held has needed to manage emergent non-COVID business within the Environmental Health Team so as to ensure more traditional Public Health matters are managed alongside all COVID duties also delegated to Public Health Units to monitor, oversee, advise on and enforce.  This BAU component of the position of Team Leader Environmental Health will continue to be required on going.  It cannot therefore be reasonably argued that the creation of the position was just to manage COVID-19 related work as it has always been expected of me to manage both COVID and BAU components.[22]

  1. [67]
    Mr Jones surmised that the allocation of the precise position to the Organisation unit of 'Contact Tracing Unit COVID19' must simply have been a matter of organisational convenience.  He most emphatically stated that:

My duties as a Team Leader Environmental Health have never been associated with a Contact Tracing Unit.  I have never led a team of contact tracers.  I have always been part of, led, and continue to lead a team of permanently employed Environmental Health Officers within the Mackay Public Health Unit.[23]

  1. [68]
    I am not persuaded that Mr Jones was appointed to the higher classification position "to perform work for a particular project or purpose that has a known end date".  That does not appear to have been the intention, even back in April 2020.  Mr Jones has sensibly conceded that "…I do not contest that I was appointed to undertake a role associated with the COVID-19 response, however…it has always been expected of me during this time as Team Leader Environmental Health HP5 to also pick up the operational lead for normal service delivery."  Mr Jones further insisted that "it cannot therefore be reasonably argued that the creation of the position was just to manage COVID-19 related work as it has always been expected of me to manage both COVID and BAU components."  Whilst it is certainly the case that the position was established under the "COVID Tracing Unit COVID-19" Organisation Unit, Mr Jones emphatically denies his duties have ever been associated with a contact tracing unit and he has never led a team of contact tracers.  The Respondent had opportunity to rebut that claim in its subsequent submission, but did not.  I believe Mr Jones' uncontested description of what the position actually entailed.
  1. [69]
    Mr Jones has described his scope of work as encompassing a broad range of responsibilities, falling outside the scope of COVID-19 related tasks, and within those he submits are likely to be ongoing.  He asserted "I have always been part of, led and continue to lead a team of permanently employed Environmental Health Officers within the Mackay Public Health Unit."  Mr Jones has explained to my satisfaction that, in his current position, he managed "…emergent non-COVID business within the Environmental Health Team so as to ensure more traditional Public Health matters are managed alongside all COVID duties also delegated to Public Health Units to monitor, oversee, advise on and enforce.  This BAU component of the position of Team Leader Environmental Health will continue to be required on going."  Mr Jones' submissions about the continuing focus of the position further illustrated that point. 
  1. [70]
    The Respondent has not submitted that the various contract extensions were linked to the completion of any particular phase of work tasks or project, as Mr Jones' duties were varied in scope and performed concurrently.  I consider that further strengthened his claim that the nature of his work in the position was continuing, rather than short term.
  1. [71]
    I am satisfied that there is clearly an ongoing requirement for Mr Jones to continue to perform the broad responsibilities of the position at the higher classification level, as described, past the expiry of his latest contract on 30 September 2022 and indeed beyond.
  1. [72]
    Neither can it be said that the position has "a known end date".  The Employment History material submitted by the parties show that Mr Jones has been extended in the position many times since 6 April 2020.  Even still, the (latest) expected end date of 30 June 2022 was again extended until 30 September 2022.  There was certainly good reason for the HHS to have done so, that is not the point.  Rather, it underscores the reality that there was no "known end date".
  1. [73]
    For the above reasons, I do not accept that Mr Jones' placement in the position falls within the circumstances of clause 4.2(c) of Directive 13/20 which would support the temporary engagement of an employee at a higher classification level. 
  1. [74]
    Turning next to the matter of whether Mr Jones' placement in the position could be said to be filling "an unexpected short-term increase in workload". 
  1. [75]
    I have earlier accepted Mr Jones' account of the broader responsibilities inherent in the position at [68] above.  He stated that the BAU component of the position from commencement was "also to pick up the operational lead for normal service delivery", at least.  That component of the position is not "unexpected", but can be planned for.
  1. [76]
    After almost 30 months in the position, it can certainly not be said to be "short term" either.
  1. [77]
    If I am wrong on that point and were to accept the Respondent's argument as to Mr Jones' placement in the Contact Tracing Unit COVID-19 position at its highest, whilst the global health pandemic was certainly "unexpected" it cannot also be considered "short term". 
  1. [78]
    For the above reasons, I do not accept that Mr Jones' placement in the position falls within the circumstances of cl 4.2(d) of Directive 13/20 which would support the temporary engagement of an employee at a higher classification level. 
  1. [79]
    I have found that neither of the circumstances relied on by the Respondent "would support the temporary engagement of an employee at a higher classification level." 
  1. [80]
    The default remains then that "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." 
  1. [81]
    I have disturbed the Respondent's assertion that there is no ongoing requirement for the position.  It appears to me that there is instead need for Mr Jones to continue to perform the broad responsibilities of the position, so his permanent conversion to the higher classification level is both viable and appropriate in such circumstances.
  1. [82]
    Finally, the Respondent has also submitted that permanent appointment to the higher classification position was refused because it was "not recurrently funded and therefore no vacancy exists to which Mr Jones could be appointed."
  1. [83]
    The Respondent stated that "The role is temporarily funded to the 30 June 2022 in line with the COVID-19 Service delivery arrangements and the Health Service is currently considering the budget arrangements for the service.  The Health Service notes that this has been extended to the 30 September 2022 whilst the current budget are under consideration."
  1. [84]
    Mr Jones submitted that "The higher duties position I hold is that of Team Leader Environmental Health HP5…I have been in this position since 6 April 2020 with a current end date of 30 September 2022."
  1. [85]
    The Respondent has stated that a factor in its decision to refuse Mr Jones' conversion request is that the HP5 position he currently occupies is a temporarily funded position – not recurrently funded.  Respectfully, where funding is drawn for the position is not a decision criteria.
  1. [86]
    Mr Jones has referred me to the Commission's decision in Beves v State of Queensland (Department of State Development, Tourism and Innovation).[24]  Whilst that matter relates to the determination of a temporary conversion appeal under a different section of the PS Act, I have given consideration to it.  In that case, Industrial Commissioner Hartigan provided:

…consideration of whether there is a vacant AO6 role within the Department is also of limited relevance.  The absence of a vacant role into which Ms Beves could be placed is not a matter which the decision-maker is required to consider.

The decision-maker also nominates that the role is temporary, on the basis that it is subject to funding.  Whilst it is accepted that the funding for a role may be a factor that is relevant to the consideration of whether the role is likely to be ongoing, it should not be looked at in isolation from other relevant factors.

Additionally, just because a position is subject to funding and the future funding of that matter is uncertain does not necessarily mean, given the nature and context of the role, that the State would not require the role to continue, should the funding cease.[25]

  1. [87]
    I would observe that the objectives of establishing 'employment on tenure as the default basis of employment in the public service' and 'having regard to the effective, efficient and appropriate management of public resources' need not be at odds.  Where work is required to be performed, public sector workers will need to be paid to do it, regardless of whether they are employed on a permanent or temporary basis.  The funding source of the position does not determine whether or not Mr Jones ought have been permanently converted to the higher classification.
  1. [88]
    The Respondent has gone on to submit that the current funding status of the position means that no vacancy exists.  That matter of a vacancy is relevant in these types of matters - where there is an incumbent position holder.  As I explained in Holcombe v State of Queensland (Department of Housing and Public Works):[26]

The review is conducted with respect to the position occupied by Mrs Holcombe. It is not a more broad-ranging consideration of whether she should continue be employed at AO4 level in her present workplace. Only one person may occupy the position numbered 76019589 at any one time. I accept that the person that Mrs Holcombe is backfilling will imminently return to that position. It is not a circumstance where their return is speculative, or there is no incumbent. There does not appear to be any contest that the incumbent of that position is scheduled to imminently return. The secondment is of the type contemplated within cl 4.2(b) of the Directive, being a circumstance that would support temporary rather than permanent engagement.

Altogether, that presents a genuine operational requirement for the department, which prevents Mrs Holcombe being permanently appointed to her seconded position. Therefore, that aspect of the decision was fair and reasonable.

  1. [89]
    However, the circumstances of Mr Jones' appeal are very different.  Mr Jones is not suggesting that two people occupy the position numbered 32068108.  He alone occupies that position. 
  1. [90]
    Essentially, here the Respondent has conflated the position 'funding' with 'vacancy'.  As explained, that is a flawed argument. 
  1. [91]
    I find that it was not fair and reasonable for the HHS to refuse to convert Mr Jones to the higher classification position on the grounds that it was not recurrently funded.

Conclusion

  1. [92]
    Mr Jones has been acting at a higher classification level in the position of Team Leader Environmental Health HP5 since 6 April 2020.  His latest extension in the position is until 30 September 2022.
  1. [93]
    The Respondent submitted that Mr Jones' appointment to the position on a temporary basis was consistent with the circumstances contained in cl 4.2(c) and (d) of Directive 13/20.  I have disturbed that view.  I have explained why Mr Jones was not appointed to the position either to: perform work for a particular project or purpose that has a known end date; or perform work necessary to meet an unexpected short-term increase in workload.
  1. [94]
    The Respondent's argument that temporary funding for the position, and therefore lack of a vacancy, was also rejected.  In this case, there is no absent incumbent position holder.  The HHS is not being imposed upon to employ two people in the position.  Only Mr Jones occupies the position that I have determined to be ongoing.
  1. [95]
    Having carefully considered the parties' submissions, I have found that there was no genuine operational requirement that prevented Mr Jones' permanent appointment to the higher classification position.
  1. [96]
    Therefore, the Respondent's decision to refuse conversion in this case was not fair and reasonable.
  1. [97]
    I order accordingly.

Order:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  1. The decision that Mr Jones not be converted to the higher classification position is set aside and another decision is substituted; and
  1. Mr Jones be permanently appointed to the position of Team Leader Environmental Health HP5.

Footnotes

[1]Correspondence from Mr D. Turner, Executive Director People, MHHS to Mr A. Jones, 29 April 2022.

[2]Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[3] Ibid s 562B(2).

[4]Ibid s 567(2).

[5]Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

[6]Katae v State of Queensland & Anor [2018] QSC 225, [26].

[7]Directive 13/20 Appointing a public service employee to a higher classification level cl 1.

[8]Ibid cl 1.2(a)-(b).

[9][2020] QIRC 203.

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

[11]Correspondence from Mr D. Turner, Executive Director People, MHHS to Mr A. Jones, 29 April 2022.

[12]Respondent's submissions, 8 June 2022, 1 [6].

[13]Ibid 2 [7] – [8].

[14]Appellant's submissions, 31 May 2022, 1 [2].

[15]Ibid [6].

[16]Ibid 2 [7].

[17]Appellant's reply submissions, 17 June 2022, 1 [5].

[18]Ibid [4].

[19]Directive 13/20 Appointing a public service employee to a higher classification level cl 4.2.

[20]Appellant's reply submissions, 17 June 2022, 2 [10].

[21]Ibid [11].

[22]Appellant's submissions, 31 May 2022, 2 [12].

[23]Ibid 1 [6].

[24](Queensland Industrial Relations Commission, Hartigan IC, 22 December 2020).

[25]Ibid 13, [37]-[41].

[26][2020] QIRC 195.

Close

Editorial Notes

  • Published Case Name:

    Jones v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Jones v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 317

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    12 Aug 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
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
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
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Burnside v State of Queensland (Queensland Health) [2023] QIRC 3442 citations
Pullen v State of Queensland (Queensland Health) [2024] QIRC 2542 citations
1

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