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  4. Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2022] QIRC 381

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Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2022] QIRC 381

Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2022] QIRC 381

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 381

PARTIES:

Peacey, Matthew

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO:

PSA/2022/693

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

6 October 2022

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

OUTCOME:

  1. The decision of 22 July 2022 is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where the appellant requests appointment to higher classification level – where the appellant was not appointed due to genuine operational requirements of the department – whether the decision was fair and reasonable

LEGISLATION:

Directive 13/20 Appointing a public service employee to a higher classification level cls 4, 6, 7, 8

Industrial Relations Act 2016 cl 562C

Public Service Act 2008 ss 25, 98, 149C, 194

CASES:

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

Hansen v State of Queensland (Department of Environment and Science) [2021] QIRC 162

Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102

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

Reasons for Decision

Appeal details

  1. [1]
    Mr Peacey (the Appellant) has been employed by the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) as a permanent AO6 Program Coordinator within the Toowoomba Youth Justice Service Centre since 11 May 2015.[1]
  1. [2]
    The Appellant has been performing higher duties in the role of an AO7 Principal Community Services Officer (PSCO) within the Office of the Youth Justice Regional Director in the South West Region of the Department since 15 July 2019, with his contract set to expire on 30 June 2023. During this time, the Appellant has taken several authorised absences to perform another role of a higher classification, namely an AO8 Manager position in the Office of the Regional Director.
  1. [3]
    On 15 July 2022, Mr Peacey wrote to the Department by email requesting appointment at the higher classification level of a PCSO. Mr Peacey's request stated:

Hi Kiara,

Thanks for the chat earlier.

Could I please ask you to progress on my behalf this written request to the Chief Executive for conversion to permanent tenure in my current role at the Office of the Regional Director under Public service Commission Directive 13/20 (referencing section 149C of the Public Service Act and associated sections).

I commenced acting in the role on 15/07/2019 and was the selected candidate in a formal recruitment and selection process in October 2019. I have since occupied the position in between acting in higher duties within the same office. Please let me know if you require anything further in this matter. Thanks.

…

  1. [4]
    On 26 July 2022, Ms Kiara Malley, A/Manager, Office of the Regional Director, South West Region, responded to the Appellant's email advising that his request for conversion had been declined. Her email attached formal correspondence from the authorised delegate, Ms Nima Pulou, Regional Director, Youth Justice, South West Region, dated 22 July 2022.
  1. [5]
    In this correspondence, the delegate said that due to the genuine operational requirements of the agency, Mr Peacey would not be permanently appointed to the role of PCSO following the conclusion of his existing higher duties arrangement ending on 30 June 2023.
  1. [6]
    Mr Peacey filed his appeal against this decision on 29 July 2022 and I am satisfied that the appeal has been filed within the 21-day appeal period.

Relevant sections of the Act and Directive

  1. [7]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
  1. [8]
    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 one 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).

…

(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.

The Directive

  1. [9]
    While all of the provisions of the Directive have been considered, particular attention is paid to the following provisions:

4. Principles

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

4.2  Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:

  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.

…

6.  Decision making

6.1  When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents 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:

  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.

7.  Statement of reasons

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

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.  Appeals

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

What decisions can the Commission make?

  1. [10]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 ("the IR Act") provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [11]
    On 26 August 2022, Mr Peacey advised the Industrial Registry that he did not wish to make any further submissions in support of his appeal.[2]
  1. [12]
    By reference to the appeal notice filed on 29 July 2022, I summarise Mr Peacey's reasons for appeal below:
  • The Appellant believes that the decision made by the Chief Executive was not fair or reasonable because his work is of a critical and genuine operational requirement to the business unit and the Department more broadly.
  • There is currently a substantively vacant, permanently funded AO7 role available within his specific office establishment and unattached to any operational imperatives.
  • While his current contract is attached to the Community Youth and Diversion Response program (CYRD), a non-recurrently funded initiative, the nature of his work over the past two years and into 2023 expands beyond the scope of that role.
  • Further, Mr Peacey says that he took carriage of developing and leading the state-wide Specialised Multi Agency Response Teams (SMART) initiative on behalf of his region in late 2019.
  • The Appellant says that he has carried this additional responsibility in tandem with his original contracted role in the interests of the efficient use of public resources.
  • Further, Mr Peacey contends that he has been asked to perform this additional responsibility while performing at the higher classification of Manager throughout various periods across 2020 and 2021.
  • The Appellant points to the expansion of the SMART initiative in 2022 and notes that his office has received a position number and salary funding for the specific purpose of delivering the initiative. He says that the role is occupied by another staff member who is acting in the role and says that he and this colleague share responsibility for expanding SMART across five locations in the region as part of the Multiagency Collaborative Panels banner which is in response to the Youth Justice Taskforce Action Plan.
  • He says that the long-term operational significance of this work is evidenced by state-wide operational policy and procedure.
  • Mr Peacey contends that if he no longer performs his current duties once his contract at the higher classification ends in June 2023, the performance of the business unit may be compromised. Otherwise, he says that the work will be absorbed by other existing frontline public servants on top of their core duties.
  • In light of this, Mr Peacey contends that there is a genuine, long-term operational need for his conversion to the higher classification. Further, he says that this would be an efficient use of public resources and he believes that 'the workforce establishment capacity is available to meet this operational need without restriction'.[3]

Respondent's submissions

Background

  1. [13]
    The Respondent filed a response to Mr Peacey's appeal on 15 August 2022.
  1. [14]
    The Respondent says that it does not dispute Mr Peacey's merit for appointment to the PCSO role but submits that the delegate rightfully considered the genuine operational requirements of the Department under s 149C(4A) of the PS Act in considering the viability of permanently appointing Mr Peacey to the higher classification.
  1. [15]
    The Respondent says that in accordance with s 98(1)(b) and (d) of the PS Act, the department is responsible for:
  1. (a)
    managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  1. (b)
    planning human resources, including ensuring the employment in the department of persons on a fixed term temporary basis occurs only if there is a reason for the basis of employment under the PS Act.[4]
  1. [16]
    The Respondent says that under s 25(1)(e) of the PS Act, the Department is also responsible for managing public resources efficiently, responsibly and in a fully accountable way.
  1. [17]
    The Respondent provides a table outlining the employment history in the higher classification and I note that this table was also attached to the decision letter.  The table records that Mr Peacey has been employed in the higher classification level at either AO7 or AO8 since 15 July 2019.  
  1. [18]
    By way of background, the Respondent says that in 2019, the Queensland Government announced several new initiatives to be trialled by the Department, including Specialised Multi-Agency Response Teams (SMART) and the Community, Youth and Diversion Response (CYDR).  The government committed the following funding for the initiatives: temporary outsourced delivery funding for coordination of the SMART initiative in eight locations across Queensland; and temporary funding for three internal AO7 PCSO roles to coordinator the CYDR initiative in three locations within the state.[5]
  1. [19]
    The Respondent says that the funding for the SMART and CYDR initiatives was provided on a time limited basis until 30 June 2023, at which time the government will determine whether additional funding would be granted for the initiatives or whether the initiatives would cease.[6]
  1. [20]
    When Mr Peacey applied for the fixed term temporary role AO7 PCSO role, the advertised period of the vacancy was July 2019 to 30 June 2023 which aligned with the period of the funding committed to the trail of the initiative.
  1. [21]
    The Respondent provides an extensive description of the work Mr Peacey is undertaking and how the role has changed over time.[7]  The Respondent also describes the ongoing work occurring under the initiatives and an additional temporary position which has been created utilising regional savings resulting from a staff member's temporary absence.

 The decision

  1. [22]
    It is not disputed that Mr Peacey holds the requisite merit to be appointed to the PCSO role.  As noted in the decision letter dated 26 July 2022, no previous decisions have been made under s 149C of the PS Act.
  1. [23]
    The Respondent refutes Mr Peacey's appeal ground that the business unit could make available a vacant and recurrently funded AO7 role to appoint him to on a permanent basis.  But the Respondent says that in any case, s 149C(3) requires the Department to consider the viability of appointing Mr Peacey to the specific position he is acting in at the time of his request, rather than any other AO7 position within the Department or the business unit.[8]
  1. [24]
    The Respondent says that the decision to not appoint Mr Peacey to the higher classification was fair and reasonable and points to the following genuine operational requirements:
  • The CYDR initiative, to which Mr Peacey's position is attached, is currently being evaluated by an external consultancy agency named Nous. The evaluation involves assessing the ongoing need for an AO7 PSCO role, as it has been recognised that oversight of the CYDR initiative is unlikely to require an FTE to coordinate.
  • Depending on the findings of the evaluation, the AO7 PCSO role allocated to the CYDR initiative may be redundant and no longer required.
  • The continuation of the CYDR initiative more broadly is contingent upon the granting of further funding beyond 30 June 2023.
  • The CYDR initiative does not currently require significant coordination and is functioning with limited oversight.
  • Mr Peacey and his supervisor had discussions in July where Mr Peacey indicated that his work is predominantly focused on coordination of the multi-agency panels for both the SMART and Youth Justice Taskforce initiatives in Ipswich and Toowoomba.
  • The SMART initiative is funded on a temporary basis until 30 June 2023 and there is no indication as to whether further funding will be available beyond this date.
  • Negotiations with the Outsourced Service Delivery are ongoing and will inform the future of the SMART initiative.
  • The lack of ongoing funding for SMART and CYDR initiatives creates uncertainty regarding the future of the PSCO role. The Commission has previously found that such circumstances produce a genuine operational requirement to not appoint the employee to the higher classification.[9]
  • The Department acknowledges that there is a body of work associated with the establishment of the multi-agency panels for the Youth Justice Taskforce and that it is possible that these multi-agency panels may go on to be a permanent feature of Youth Justice. However, once the multi-agency panels are established and embedded into business as usual, which the Respondent says is likely to occur before 30 June 2023, it is anticipated that they will be self-sufficient and autonomous.
  • It is not anticipated that the work associated with maintaining the panels on an ongoing basis would necessitate an entire FTE or even a partial FTE.
  • Whilst the initial establishment of the multi-agency panels constitutes a 'project' which results in an additional temporary influx of work, many roles within the Department take on additional project work from time to time.
  • In other parts of the state where the Youth Justice Taskforce is being established, the work is being fully undertaken by existing staff without any additional dedicated FTEs.
  • Mr Peacey took on the additional work in Ipswich because he was already completing similar work as part of the SMART initiative, and he had recently gained extra capacity due to a reduction in workload associated with the CYDR initiative.
  • The Respondent agrees that Mr Peacey has, at times, completed his CYDR, SMART and Youth Justice Taskforce work whilst he was acting as an AO8 Manager and says that the fact that he could do this work concurrent with AO8 higher duties work is a testament to the fact that the CYDR and SMART work has drastically reduced in quantity.
  1. [25]
    The Respondent says that Mr Peacey's relieving arrangements in the PCSO role are aligned with a particular project or purpose that has a known end date, namely the CYDR and SMART projects with an end date of 30 June 2023. The unexpected short-term increased in work associated with establishment of the multi-agency panels as required under the Youth Justice Taskforce action plan will be finalised prior to 30 June 2023.
  1. [26]
    In circumstances where the panels will be self-sufficient with no ongoing assistance required from Mr Peacey, the Respondent says that the permanent appointment of Mr Peacey to the PCSO role is neither viable nor appropriate and as such, Mr Peacey has been engaged in a temporary capacity in accordance with cl 4.2 of the Directive.

Consideration

  1. [27]
    It seems clear to me that Mr Peacey has been temporarily appointed to the higher classification position in circumstances set out in cl 4.2 (c) and (d).
  1. [28]
    Mr Peacey did not seek to make any submissions in reply to the extensive submissions of the Respondent set out above.
  1. [29]
    Regarding Mr Peacey's appeal ground that his work is critical, I find that there is no doubt that the work that Mr Peacey has been undertaking is of significance and it is clear that he has performed in the role with the requisite merit, to the extent that at times, he has been acting in the even more senior classification of AO8.  However, it is necessary for the decision-maker to consider if there are genuine operational requirements preventing appointment to the higher classification position.
  1. [30]
    I note Mr Peacey's submission that there is a substantively vacant AO7 position within his specific office establishment, however, the decision subject of the appeal relates to Mr Peacey's request to be appointed to the higher classification role he is currently employed in.
  1. [31]
    I understand that Mr Peacey has taken on additional tasks beyond the scope of the project work that he was initially employed to undertake. However, I accept the Respondent's submissions that the role has changed over time due to Mr Peacey having capacity to take on additional tasks as projects become established.
  1. [32]
    Mr Peacey submits that the work is of long-term operational significance. I do not disagree with that submission, however, the Respondent submits that the while the work is likely to continue, it will be undertaken by existing staff and there will not necessarily be a need for a dedicated AO7 to support the initiatives.  As I stated above, this appears to be a matter to be examined in the external review of the initiatives.
  1. [33]
    I accept the Respondent's decision that it was not viable or appropriate to appoint Mr Peacey at the higher level classification position on the basis that: the project has a known end date; while some of the work established by the project will continue, it is expected that it will be undertaken by existing employees; the initiatives are currently being evaluated by an external agency and the review involves an assessment of the ongoing need for an AO7 PCSO role; ongoing funding for the project is not assured beyond June 2023; and the work involved in establishing the initiatives has reduced.
  1. [34]
    The decision of 22 July 2022 is confirmed.

Footnotes

[1] Respondent's submissions filed 15 August 2022 [8].

[2] Appellant's email dated 26 August 2022.

[3] Appeal notice filed 29 July 2022, 4.

[4] Respondent's submissions filed 15 August 2022 [6].

[5] Respondent's submissions [11].

[6] Ibid [12].

[7] Ibid [14]-[18].

[8] Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038; Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138.

[9] Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102; Hansen v State of Queensland (Department of Environment and Science) [2021] QIRC 162.

Close

Editorial Notes

  • Published Case Name:

    Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Peacey v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2022] QIRC 381

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    06 Oct 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
Francis v State of Queensland (Department of Justice and Attorney-General) [2022] QIRC 138
2 citations
Jump To
Cite 1 - [2022] QIRC 138
Cite 2 - [2022] QIRC 138
Hansen v State of Queensland (Department of Environment and Science) [2021] QIRC 162
2 citations
Jump To
Cite 1 - [2021] QIRC 162
Cite 2 - [2021] QIRC 162
Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102
2 citations
Jump To
Cite 1 - [2021] QIRC 102
Cite 2 - [2021] QIRC 102
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

No judgments on Queensland Judgments cite this judgment.

1

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