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  4. McAteer v State of Queensland (Department of Education) - [2022] QIRC 73

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McAteer v State of Queensland (Department of Education)[2022] QIRC 73

McAteer v State of Queensland (Department of Education)[2022] QIRC 73

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McAteer v State of Queensland (Department of Education) [2022] QIRC 73

PARTIES:

McAteer, Corinna

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2021/403

PROCEEDING:

Public Service Appeal – appeal against a decision to take action or not to take action under a directive

DELIVERED ON:

9 March 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a decision to take action or not to take action under a directive – where appellant requested to be permanently appointed to higher classification role – where respondent rejected appellant's request – where jurisdictional objection exists – consideration of 'continuous period' and 'role' – where appellant has not been acting in the role for a continuous period of at least one year at the time the request was made – where appellant was not eligible to request permanent conversion to the higher classification level – where Commission declines to hear appeal

LEGISLATION:

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

Public Service Act 2008 (Qld) ss 149C, 194, 195 and 196

Appointing a Public Service Employee to a Higher Classification Level – Directive 13/20, cls, 6, 7, 8 and 11

Appeals: Directive 07/20, cl 8

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)

Reasons for Decision

Introduction

  1. [1]
    Ms Corinna McAteer is employed by the State of Queensland (Department of Education) ('the Department'), in the substantive position of Administrative Officer AO2 on a permanent basis.
  1. [2]
    Ms McAteer commenced employment with the Department in her substantive position on 11 June 2018. At the time Ms McAteer commenced this appeal, she was acting in the position of Senior Human Resource Service Officer AO4. Ms McAteer was appointed to the higher classification position on 13 September 2021 and ceased performing in the higher classification position on 2 January 2022.
  1. [3]
    Prior to commencing in the Senior Human Resource Service Officer AO4 position, Ms McAteer was engaged in the position of Project Officer AO3 and this engagement was for the period from 8 March 2021 to 8 September 2021.
  1. [4]
    On 2 November 2021, Ms McAteer requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ('PS Act') and Appointing a Public Service Employee to a Higher Classification Level Directive ('Directive 13/20'), to be permanently converted to the higher classification position of Senior Human Resource Service Officer AO4.
  1. [5]
    By letter dated 3 November 2021, the decision maker rejected Ms McAteer's request for conversion ('the decision').
  1. [6]
    On 24 November 2021, Ms McAteer filed an appeal notice in the Industrial Registry in respect of the decision and relies on the following grounds in support of her appeal:

My grounds for appeal is that I have been completing higher duties for a period of over 2 years and I understand that is doesn’t necessarily [sic] require you to be in the same role during that 2 year period to be eligible.

  1. [7]
    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. [8]
    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. [9]
    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. [10]
    The Department raises a jurisdictional objection to the appeal on the basis that:
  1. (a)
    Ms McAteer is precluded from appealing the decision pursuant to cl 8 of Directive 13/20; and
  2. (b)
    the Commission does not have jurisdiction to hear the appeal by operation of ss 194(1)(e)(iii) and s 195(1)(j) of the PS Act as Ms McAteer has not been seconded to or acting in the higher classification level for a continuous period of more than two years.
  1. [11]
    By correspondence sent on 25 February 2022, the Commission wrote to the parties and invited Ms McAteer to file any further submissions addressing whether she had an arguable case for the appeal. No further submissions were filed by Ms McAteer within the time provided.
  1. [12]
    For the reasons contained herein, the Commission declines to hear the appeal.

The decision

  1. [13]
    On 3 November 2021, the Department issued Ms McAteer a letter detailing her eligibility to request an appointment to a higher classification level role. The letter is in the following terms:

…

I have considered your request for appointment to the higher classification role. The application of s. 149C of the PS Act and the Directive is limited to eligible employees only. This correspondence is to advise you of my assessment of your eligibility to request an appointment to the higher classification level role.

Substantive role

Classification level:

A02

Rote:

Administrative Officer

Business Unit:

TRACER

Division:

People and Corporate Services

Status:

Permanent - Full Time (1.00 FTE)

Award:

Queensland Public Service Officers and Other Employees Award - State 2015

Certified Agreement:

Permanency date in

Department of Education Certified Agreement 2019

Dept:

11 June 2018

Higher classification level rote

Classification level:

A04

Role:

Senior Human Resource Service Officer

Business Unit:

Attraction and Talent

Division:

People and Corporate Services

Status:

Full Time (1.00 FTE)

Award:

Queensland Public Service Officers and Other Employees Award - State 2015

Certified Agreement:

Department of Education Certified Agreement 2019

Commencement date:

13 September 2021

Current end date:

2 January 2022

Eligibility Assessment

In accordance with the PS Act and the Directive, to be eligible to request appointment to the higher classification level, an employee must be:

  • seconded to, or acting at, a higher classification level in the department the employee holds an appointment or is employed; and
  • seconded to, or acting at, the higher classification level for a continuous period of at least one year; and
  • eligible for appointment at the higher classification level having regard to the merit principle.

By way of clarification, casual employees, non-industrial instrument employees and employees who are seconded to, or acting in, a position that is ordinarily held by a nonindustrial instrument employee are not eligible to request appointment to the higher classification level.

I have determined that you are not eligible to request appointment to the higher classification level under s. 149C of the PS Act and the Directive.

Reasons for my Eligibility Assessment

The PS Act and the Directive requires that an employee be seconded to, or acting at, the higher classification level for a continuous period of at least one year.

The meaning of continuous period for the purposes of the 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.

Clause 5.3 of the Directive states:

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:

(a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and

(b) each subsequent year where the employee continues their engagement at the higher classification level in the same role.

I note from your service history you commenced in the role of A04, Senior Human Resource Service Officer on 13 September 2021. You have therefore not completed the necessary one year at the higher classification level as outlined in the PS Act and Directive.

Should you remain continuously employed in this role, you would be eligible to re-apply on or after 14 September 2022. Beyond this date, you may make one request for appointment in each one-year period, and may make an additional request if the role becomes a substantive vacancy.

I have had regard to the Human Rights Act 2019 (the HR Act) and other laws, particularly the right to work as embodied in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). I consider that, in observing and applying the matters that must be taken into consideration under the Directive and s. 149C of the PS Act, I am respecting and acting compatibly with this right and others prescribed in the HR Act, and I have done so in making this decision, as required under s.58(1) of the HR Act.

Relevant legislation and Directive

  1. [14]
    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
  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. (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. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section
  2. (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. [15]
    Section 194 of the PS Act identifies the decisions 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. (a)
    a decision to take, or not take, action under a directive;

…

  1. [16]
    Section 196 of the PS Act sets out who may appeal against a decision and relevantly provides:

196 Who may appeal

  1. (1)
    The following persons may appeal against the following decisions—

…

  1. (a)
    for a decision mentioned in section 194(1)(a)—a public service employee aggrieved by the decision if the employee is entitled to appeal under a directive of the commission chief executive;

…

  1. (e)
    for a conversion decision—the employee the subject of the decision;
  1. [17]
    Section 195 of the PS Act sets out the decisions against which appeals can not be made and relevantly states:
  1. Decisions against which appeals can not be made
  1. (1)
    A person can not appeal against any of the following decisions—

…

  1. (j)
    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 less than 2 years;

…

  1. [18]
    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. [19]
    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:
  1. 6.Decision making
  2. 6.1When 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.
  3. 6.2In 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.
  1. 6.3In 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.
  2. 6.4Each 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. [20]
    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:
  1. 7Statement of reasons
  2. 7.1A 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.
  1. 7.2A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3
  1. [21]
    Clause 8 of Directive 13/20 sets out an employee's appeal rights in the following terms:
  1. 8.1An 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.
  2. 8.2In 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.
  1. [22]
    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.
  1. [23]
    The Appeals: Directive 07/20 ('Directive 07/20') commenced operation on 25 September 2020 and provides information on the appeal rights of public service employees under the PS Act.
  1. [24]
    Relevantly, cl 5 of Directive 07/20 sets out who may lodge a public service appeal in the following terms:
  1. 5.1A public service employee who is listed in section 196 of the PS Act (Appendix A) or is eligible to appeal by reason of section 55 of the PS Act, may lodge a public service appeal.
  2. 5.2An appeal may only be lodged by the following persons:
  1. (a)
    for a decision under section 194(1)(a) of the PS Act—a public service employee aggrieved by the decision if the employee is entitled to appeal under a directive of the CCE

…

  1. (g)
    for a conversion decision –the employee the subject of the decision.
  1. [25]
    Relevantly, a 'conversion decision' as stated in cl 5.2(g) of Directive 07/20 includes a decision under s 149C of the PS Act to not appoint an employee to a position at a higher classification level where the employee has been assuming the role and duties of the higher classification level for a continuous period of at least two years.

Consideration

  1. [26]
    Prior to determining whether the decision is fair and reasonable, I must, firstly, be satisfied that the decision is an appealable decision, and/or if Ms McAteer is eligible to seek conversion of the higher classification position pursuant to s 149C of the PS Act.
  1. [27]
    The Department, in its written submissions, contends that Ms McAteer does not have a right to appeal the decision to reject her request for conversion on the basis that
    Ms McAteer had not been acting in the higher classification role for a continuous period of one year.
  1. [28]
    The Department acknowledges that Ms McAteer has been relieving in a number of higher classification roles since approximately 2 September 2019. An extract of Ms McAteer's service history relevantly states, inter alia, the following:

From

To

Title

Organisational Unit

Nbr

Reason

Status

03/01/2022

 

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

13/09/2021

02/01/2022

Senior Human Resource Service Officer

Talent Unit [6259]

2

Relieve-Above level

Performing Duties

11/09/2021

12/09/2021

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

08/03/2021

10/09/2021

Project Officer

Investigations, Performance and Conduct [A665]

2

Relieve-Above level

Performing Duties

06/03/2021

07/03/2021

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

11/09/2020

05/03/2021

Human Resource Service Officer

Human Resources Nundah [9851]

2

 

Performing Duties

07/09/2020

10/09/2020

Human Resource Service Officer

Human Resources Nundah [9851]

2

Relieve-Above level

Performing Duties

05/09/2020

06/09/2020

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

06/05/2020

04/09/2020

Administrative Officer

Claims Management Officer

Human Resources Ipswich [9849]

Human Resources Ipswich [9849]

3

2

Additional Incumbency

Performing Duties

Performing Duties

04/05/2020

05/05/2020

Claims Management Officer

Human Resources Ipswich [9849]

2

Relieve-Above level

Performing Duties

02/05/2020

03/05/2020

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

03/02/2020

01/05/2020

Claims Management Officer

Human Resource Consultant

Human Resources Ipswich [9849]

Human Resources Nundah [9851]

2

3

Relieve-Above level

Relieve-Above level

Performing Duties

Performing Duties

29/01/2020

02/02/2020

Administrative Officer

TRACER [6539]

1

FTE Change

Permanent

25/01/2020

28/01/2020

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

07/10/2019

24/01/2020

Claims Management Officer

Administrative Officer

Human Resources Ipswich [9849]

TRACER [6539]

2

3

Relieve-Above level

Additional Incumbency

Performing Duties

Performing Duties

06/10/2019

06/10/2019

Administrative Officer

TRACER [6539]

1

FTE Change

Permanent

05/10/2019

05/10/2019

Administrative Officer

TRACER [6539]

1

Return Perm Position

Permanent

02/09/2019

04/10/2019

Claims Management Officer

Human Resources Ipswich [9849]

2

Relieve-Above level

Performing Duties

  1. [29]
    The Department contends that the roles Ms McAteer has been performing are different, having regard to the different titles, classification levels and organisational units of the roles.
  1. [30]
    Ms McAteer submits that she started higher duties on 2 September 2019, which is a period of over two years, and is of the understanding that a person is not necessarily required to be in the same role during the two-year period to be eligible for review.
  1. [31]
    Section 149C(1)(a) of the PS Act provides that the section applies in relation to a public service employee who is seconded to or is acting in a higher classification level in the department in which the employee holds an appointment or is employed.
  1. [32]
    Ms McAteer satisfies the requirement in s 149C(1)(a) of the PS Act as she has been acting up in the higher classification role within the Department in the role of Senior Human Resource Service Officer AO4.
  1. [33]
    Section 149C(1)(b) of the PS Act further states that the section applies to a public service employee if the employee has been seconded to or acting up at the higher classification level for a continuous period of one year.
  1. [34]
    The decision concluded that Ms McAteer did not satisfy s 149C(1)(b) of the PS Act as she had been in the position for a period of less than one year.
  1. [35]
    As noted above, the phrase 'continuous period' is defined in cl 11 of Directive 13/20 as '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'.
  1. [36]
    Whilst the extract of Ms McAteer's service history referred to above identifies that she has been acting up in a higher classification level, it does not identify that Ms McAteer was acting in the same role, in the same agency.
  1. [37]
    Relevantly, the role Ms McAteer was performing at the time she made the request was the role of Senior Human Resource Service Officer within the Talent Unit of the Department. Ms McAteer acted in that position for a period of just under four months at the time the request was made. In the period before that, whilst Ms McAteer was acting up, it was in a different role, relevantly, the role of Project Officer, within the Organisations, Investigations and Conduct Unit of the Department.
  1. [38]
    Having regard to these factual matters, together with the definition of 'continuous period', I am satisfied that Ms McAteer was not employed for the requisite continuous period in the same role in the same agency.
  1. [39]
    Consequently, I consider Ms McAteer is not eligible to apply to be permanently appointed to the higher classification level.
  1. [40]
    Consequently, it is my view that the decision correctly determined that Ms McAteer had not completed the necessary one-year period at the higher classification level as outlined in the PS Act and Directive 13/20.

Conclusion

  1. [41]
    For the foregoing reasons, I have determined that Ms McAteer is precluded from appealing the decision. Pursuant to s 562A(3)(b)(ii) of the IR Act, the Commission declines to hear the appeal on the basis that it is misconceived and lacks substance.

Order

  1. [42]
    I make the following order:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.

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).

Close

Editorial Notes

  • Published Case Name:

    McAteer v State of Queensland (Department of Education)

  • Shortened Case Name:

    McAteer v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 73

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Mar 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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