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  4. Schiemann v State of Queensland (Department of Transport and Main Roads) - [2023] QIRC 35

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Schiemann v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 35

Schiemann v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Schiemann v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 035

PARTIES:

Schiemann, Joerg

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO:

PSA/2022/933

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

7 February 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

  ORDER:

That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the Decision appealed against is confirmed. 

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – 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' – where appellant performing work on 'particular project' – consideration of 'genuine operational requirements' – whether respondent provided adequate statement of reasons – whether the decision was fair and reasonable – decision appealed against confirmed

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, s 27B

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 120, s 149, 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 4, cl 5, cl 6, cl 7, cl 8, cl 11

Transport and Main Roads Enterprise Bargaining Certified Agreement 2019 cl 4

CASES:

Cheema v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 496

Gavel v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 262

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

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

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

Riddiford v State of Queensland (Department of Education) [2021] QIRC 064

Reasons for Decision

Introduction

  1. [1]
    On 10 October 2022, Mr Joerg Schiemann (the Appellant) filed an appeal against a higher classification conversion decision dated 19 September 2022 (the Decision). 
  1. [2]
    The Decision was contained in correspondence from Mr Scott Whitaker, Regional Director (North Coast) (the decision-maker) for the Department of Transport and Main Roads, State of Queensland (the Department; the Respondent). 
  1. [3]
    Within the Department, the Appellant is substantively employed in the role of PO5 Principal Engineer (Civil) of the Program Delivery and Operations Branch, Infrastructure and Delivery Division, North Coast Region.
  1. [4]
    However, since 29 April 2019, the Appellant has been continuously performing the duties of AO8 Temporary Manager (Bruce Highway Maroochydore Road Interchange Project) (BHMIP) in the Program Delivery and Operations Branch, Infrastructure and Delivery Division, North Coast Region (the AO8 Position).
  1. [5]
    The Appellant was offered the temporary higher duties arrangement in the AO8 Position for the period 29 April 2019 to 19 June 2019 as a result of a merit process. That arrangement was subsequently extended from 20 June 2019 to 19 June 2020. Then, as a result of a further merit process, the Appellant accepted a temporary higher duties arrangement in the AO8 Position from 20 June 2020 to 30 June 2023.

Jurisdiction

Decision against which an appeal may be made

  1. [6]
    On 22 August 2022, the Appellant made a written request for appointment to the higher classification level. In accordance with s 149C(4) of the Public Service Act 2008 (PS Act), the Department decided the request on 19 September 2022. 
  1. [7]
    The decision subject of this appeal is the Department's decision not to permanently convert the Appellant's employment to the AO8 Position currently held. 
  1. [8]
    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. [9]
    Section 197 of the PS Act allows for an appeal to be heard and decided by the Commission.  An appeal is initiated by providing the Industrial Registrar with an Appeal Notice stating the details of the decision being appealed against and the reasons for the appeal.
  1. [10]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  The Appellant meets that requirement.
  1. [11]
    I am satisfied that the Decision is able to be appealed.

Timeframe for appeal

  1. [12]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [13]
    As the decision was given on 19 September 2022 and the Appeal Notice was filed on 10 October 2022, I am satisfied that the appeal was filed by the Appellant 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,[1] but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[2] 
  1. [16]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.[3]
  1. [17]
    The issue for my determination is whether the Decision was fair and reasonable in the circumstances.[4]

What decisions can the Commission 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.

The Decision

  1. [19]
    The decision-maker conveyed the following reasons for refusing the Appellant's conversion request:
  • the AO8 Position is not vacant;
  • the AO8 Position is not ongoing;
  • the AO8 Position was created for the sole purpose of the delivery of the BHMIP infrastructure project, with the role being delimited upon completion of the project; and
  • Deputy President Merrell previously found in Riddiford v State of Queensland (Department of Education):

In my view, this is a clear case where the facts do not compel the conclusion that there is an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint Ms Riddiford to the position. This is because the position is, in truth, a genuine, temporary project position in respect of which there will be no need to employ any person in the position at the conclusion of the project on its projected end date or whatever reasonable and appropriate project extension end date is decided by the Department.[5]

Submissions

  1. [20]
    In accordance with the Directions Order issued on 17 October 2022, the parties filed written submissions.
  1. [21]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.
  1. [22]
    I have carefully considered all submissions and 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 in my consideration of each question to be decided.

Appellant's submissions

  1. [23]
    The Appellant submits the Decision is not fair and reasonable because:
  • the decision-maker failed to take into account relevant considerations regarding the genuine operational requirements of the Department as required under s 149C(4A)(a) of the PS Act;
  • while the management of individual projects is inherently temporary, it is the very nature of any roadwork that it is conducted in projects;
  • secondment or assuming the duties of a higher classification level should be an exception and not the rule;
  • there is an ongoing demand for further Significant Project Management in the foreseeable future with the QRTIP 2022-23 to 2025-26 growing for this four-year period to over three billion dollars, including significant projects like the Bruce Highway Dohles Rock Rd Interchange and Sunshine Motorway Mooloolah River Interchange Upgrade or further infrastructure demands from Olympic Games;
  • while projects are limited by time, that does not require the position of Project Manager for Significant Projects to be temporary in nature;
  • considering the amount of Significant Construction Projects to be completed before the Olympics, and the Appellant's personal experience in delivering significant infrastructure projects, it is unlikely the Department will have no demand for the Appellant on this classification level once the present project is completed;
  • relying solely on the current project the Appellant conducts instead of considering wide operational requirements of the Department as a whole, would mean project managers with the Department could never be appointed to a higher classification level or even permanently employed, independent of the individual merit of a case and independent of other operational requirements;
  • it is the general nature of the Appellant's employment to constantly conduct projects for Main Roads;
  • the Appellant has managed construction projects for the Department as a permanent employee for the last 16 years; 
  • the Respondent failed to consider cl 4.1 of the Employment Security Policy which states that "Fixed term temporary forms of employment should only be utilised where permanent employment is not viable or appropriate;"
  • appointment of the Appellant into a permanent position would allow a seamless transition from project to project without needing to continuously apply for the position with every new project;
  • the Respondent failed to consider cl 4.1.2 of the Transport and Main Roads Enterprise Bargaining Certified Agreement 2019 which provides that, "The parties are committed to maximising permanent employment where possible";
  • the Appellant's role has been identified by the Infrastructure and Delivery Division (IMD) to be one of 23 roles critical to support IMD's future vision;
  • it is contrary to the intentions of the PS Act and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20) to exempt employees who conduct ongoing project work from the employment on tenure;
  • while the current temporary position was created for a specific project, there is an ongoing demand for experienced Project Managers for Significant Projects Management in the foreseeable future;
  • an authentic need exists, having regard to the effective, efficient and appropriate management of the public resources of the Department to appoint the Appellant to the AO8 Position;
  • the Appellant has proved suitability for the role over an extended time frame;
  • the role description for the AO8 Position is quite generic, the scope of the description is broad and the Department has noted it could have used the application to fill a similar vacancy;
  • the Department should have considered whether the current AO8 Position could be utilised elsewhere in the Department, i.e., for any of the upcoming projects in the Queensland Transport and Roads Investment Program 2022-23 to 2025-26;
  • repeated application processes (often outsourced) are costly and inefficient and create social and economic insecurity for employees;
  • as all roles for Significant Projects are originally designed as temporary higher duties roles, the Appellant will continue to find himself in an unsecure situation with no prospect of change;
  • reapplying for an alternative vacancy as suggested by the Department impacts the social and economic wellbeing of the Appellant and is contrary to the purpose of the PS Act and Directive 13/20;
  • the Respondent failed to address individual circumstances of the Appellant and failed to provide material findings of fact;
  • the process as to who in the Significant Projects Team is offered a permanent position is biased;
  • projects are always individually funded and there is always insecurity for projects beyond a certain time frame;
  • consideration of organisational requirements should have included whether based on current planning, there is a requirement for the AO8 Position (as listed in the broader role description) and the functions and duties of Project Manager the Appellant performs, to be utilised across Significant Projects in other projects and which could be seamlessly transferred, as the role description is broad and generically used for most projects;
  • multiple significant projects are currently in the project development phase and expected to go into the delivery phase in the next year or two;
  • there are three permanent staff employed in Significant Projects which demonstrates that permanent employment is a viable option despite the temporary nature of individual projects and that the Department foresees an ongoing need for Significant Projects in the North Coast District;
  • Significant Projects does nothing but project work – it is the very definition of every project to have an end date and every job in the Department has specific funding allocated;
  • most employees act in higher duties positions over extended time frames, as this process starts anew with every new project; and
  • permanent employees can be moved from project to project, especially in times of infrastructure growth.
  1. [24]
    The Appellant makes submissions with respect to Directive 09/20 Fixed term temporary employment (Directive 09/20) and s 149 of the PS Act which pertains to fixed term temporary and casual employees. At times in his submissions, the Appellant has referred to the tests under Directive 09/20 and s 149 but for reasons that follow, those submissions are not relevant to my consideration of a decision made under s 149C of the PS Act.

Respondent's submissions

  1. [25]
    The Respondent submits the Decision is fair and reasonable because:
  • the role of Temporary Manager (BHMIP) was created specifically for the delivery of the BHMIP infrastructure project;
  • the Appellant may be tasked with a role substantially the same in another project where the Appellant applies for an alternative vacancy through a selection process – otherwise he will be returned to his substantive position;
  • with reference to a webpage on the Fair Work Commission Website:

The Fair Work Act does not define the term 'operational requirements'. It is a broad term that permits consideration of many matters including:

  • the past and present performance of the business
  • the state of the market in which the business operates
  • steps that may be taken to improve efficiency by installing new processes, equipment or skills, or by arranging labour to be used more productively, and
  • the application of good management to the business.

Some examples of changes in operational requirements are:

  • a machine is now available to do the job performed by the employee
  • a downturn in trade has reduced the number of employees required
  • the employer restructures their business to improve efficiency and redistributes the tasks done by a particular person between several other employees, therefore the person's job no longer exists
  • a site or business closure
  • the completion of a project, or
  • outsourcing.
  • in Holcombe v State of Queensland (Department of Housing and Public Works), Commissioner McLennan concluded:

The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to ‘the position’ occupied by the employee way of secondment at the time of seeking the review. It is not an unconstrainted review into similar positions, such as positions with the same title and classification. The more broadly ranging review that Mrs Holcombe is seeking is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive.[6]

  • the decision-maker considered and applied cl 4.2 of Directive 13/20 noting the Appellant was engaged "to perform work for a particular project or purpose that has a known end date";
  • the business need for a person to perform the work of an AO8 Temporary Manager will cease upon the anticipated project end date of 30 June 2023;
  • continuation of the AO8 Position beyond 30 June 2023 does not demonstrate effective, efficient and appropriate management of the public resources of the Department;
  • the provisions of the Employment Security Policy will continue to be met upon the Appellant returning to his substantive position;
  • the decision-maker must be fully aware of, and effectively manage, any amendments to funding arrangements for current or planned projects and also consider the impacts on workforce planning to meet known or adjusted delivery requirements;
  • consideration must include the "rise and fall" of the Queensland Transport Roads and Investment Program (QTRIP), how funding contributions from both Federal and State Governments impact on the planning and facilitation, including resources allocation of QTRIP;
  • although the current time is one of high demand, there is no firm commitment from either Federal or State Government as to how long this demand may continue or when priorities may vary including links to specific project funding; and
  • the Respondent cannot predict funding shifts and as such some of the time needs to rely on temporary fixed term positions that are tied to specific funding arrangements for specific projects for a specific and finite length of time.

Relevant provisions

  1. [26]
    The legislative scheme for the review of a decision to convert an employee to a higher classification level position, in the above circumstances, is contained in the IR Act, PS Act and in Directive 13/20.
  1. [27]
    Section 149C of the PS Act provides (emphasis added):

149C Appointing public service employee acting in position at higher classification level

  1. (1)
    This section applies in relation to a public service employee if the employee—
  1. (a)
    is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
    is eligible for appointment to the position at the higher classification level having regard to the merit principle.
  1. (2)
    However, this section does not apply to the following public services employees—
  1. (a)
    a casual employee;
  1. (b)
    a non-industrial instrument employee;
  1. (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
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
    The department's chief executive must decide the request within the required period.
  1. (4A)
    In making the decision, the department's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the department; and
  1. (b)
    the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (5)
    If the department's chief executive decides to refuse the request, the chief executive  must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. (6)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section.
  1. (8)
    In this section—

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

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

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [28]
    Further, section 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 or acting at the higher classification level for a continuous period of at least 2 years;
  1. [29]
    Directive 13/20 relevantly provides:

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.
  1. 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.
  1. 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 terMrs 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.
  1. 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:
  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.
  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.
  1. 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.

…

  1. 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. [30]
    Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[7]
  1. [31]
    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. [32]
    The stated purpose of Directive 13/20 is (emphasis added):
  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.

Interpretation

  1. [33]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [34]
    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. [35]
    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]

What is 'the position' subject of this appeal?

  1. [36]
    Section 149C(1)(c) of the PS Act provides that s 149 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.
  1. [37]
    The power afforded to the Department to permanently appoint the Appellant is confined to the position which he is performing 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. [38]
    In this particular case, there is no dispute between the parties that the Appellant has been continually performing in the position - that is, the same AO8 Temporary Manager (Bruce Highway Maroochydore Road Interchange Project) (BHMIP) position within the Program Delivery and Operations Branch, Infrastructure Management since 29 April 2019.
  1. [39]
    In light of the above, the position subject of the review is that of AO8 Temporary Manager (BHMIP) within the Program Delivery and Operations Branch, North Coast Region.

Decision criteria that must be considered

  1. [40]
    The PS Act and Directive 13/20 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.

Consideration

  1. [41]
    I am required to decide this appeal by assessing whether or not the Decision appealed against was fair and reasonable. 
  1. [42]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Merit

  1. [43]
    There is no dispute between the parties with respect to the Appellant's merit. 

'Genuine operational requirements' of the Department

  1. [44]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):
  1. [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.
  1. [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.
  1. [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.
  1. [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.'[9]
  1. [45]
    The foundational dispute between the parties is whether or not the Department's determination that there were genuine operational requirements that prevented the Appellant's permanent conversion was fair and reasonable in the circumstances. 
  1. [46]
    A significant aspect of the Appellant's submission is that the Department should have considered whether the Appellant's current AO8 Position could be utilised elsewhere in the Department (i.e., for future project work beyond the BHMIP). However, as outlined above, the power afforded to the Department to permanently appoint the Appellant under s 149C of the PS Act is confined to the position which he is performing at the time of the review. The Department's consideration is therefore confined to the position of AO8 Temporary Manager (BHMIP).
  1. [47]
    Relevantly, the role description for the AO8 Position provides:

There are 3 Temporary Manager positions available:

  • Manager (Bruce Highway Maroochydore Road Interchange Project) until 30/06/2023
  • Manager (Bruce Highway Caboolture-Bribie Island Road to Steve Irwin Way Project) until 30/06/2023
  • Manager (Delivery Support) until 31/12/2024

These are temporary positions commencing as soon as possible until the dates specified above (unless otherwise determined)

…

In the role of Temporary Manager, you will plan, coordinate and manage the development and implementation phases of the nominated road infrastructure project/s to ensure completion in accordance with required timeframes, costs, quality and service standards.

…

The Maroochydore Road Interchange Project team are responsible for the delivery of the Bruce Highway Upgrade – Maroochydore Road to Mons Road Interchanges (BHMIP) project.

The project will deliver upgrades to the Maroochydore Road and Mons Road interchanges, provide two-way service roads on the western and eastern side of the Bruce Highway, extend Owen Creek Road to Sunshine Coast Grammar School and install new drainage structures to maintain and improve flood immunity.

  1. [48]
    Significantly, the role description refers specifically to the BHMIP and although the accountabilities are generic in nature, it is clear the position description pertains specifically to the BHMIP. As reasoned in Holcombe v State of Queensland (Department of Housing and Public Works) (emphasis added):

The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.[10]

  1. [49]
    The Appellant refers to my decision in Gavel v State of Queensland (Department of Transport and Main Roads).[11] The distinguishing factor between that matter and the Appellant's is that the role description of Mrs Gavel's position was far more generic and not tied to a specific project, unlike the Appellant's AO8 Temporary Manager (BHMIP) position. With respect to Mrs Gavel's position of Senior Designer (Major Planning Projects), the description given stated:

In the role of Senior Designer (Major Planning Projects) you will operate in a multidisciplinary team environment and participate in the management and delivery of planning and design projects as components of transport infrastructure projects and provide expert technical advice and support to the transport infrastructure functional areas in the Region.

  1. [50]
    I concluded that the scope of that description is broad and indicates the position held by Mrs Gavel is not confined to the project she was undertaking at the time. I consider the Appellant's circumstances in this matter are markedly different as the role description for the AO8 Position is clearly linked to the BHMIP and that is made clear throughout the role description such that there should not be any confusion.
  1. [51]
    The Appellant made a number of submissions with respect to efficiency, future demand, personal experience, seamless transitions from project to project, as well as social and economic insecurity. The Appellant also submits that the permanent status of three staff members employed in Significant Projects demonstrates that permanent employment is a viable option despite the temporary nature of the individual projects and that the Department foresees an ongoing need for Significant Projects in the North Coast District. Although those submissions may be accurate – that does not take away from the significant fact that the Appellant is employed specifically in the position of AO8 Temporary Manager (BHMIP) which has a listed end date.
  1. [52]
    Pursuant to cl 4.2(c) of Directive 13/20, if an employee is performing work "for a particular project or purpose that has a known end date" then that fact may lend itself to support temporary engagement at the higher classification level. The Decision states that the Appellant was temporarily employed in the AO8 Position "for the sole purpose of the delivery of the BHMIP infrastructure project, with the role being delimited upon completion of the project."  I accept the Department's submission that pursuant to cl 4.2(c) of Directive 13/20, the circumstances of the Appellant's employment do support an argument for temporary engagement. The role description effectively put the Appellant on notice that the AO8 Position was directly tied to the BHMIP and the conclusion reached in the Decision is fair and reasonable in my view.
  1. [53]
    In the analogous decision of Cheema v State of Queensland (Department of Transport and Main Roads),[12] Industrial Commissioner Pidgeon found:
  1. [39]
    My view is that if I were to determine to appoint Mr Cheema to 'the position at the higher classification level', I would effectively create a 'Permanent Manager CBIR2SIW' for a project that is due to conclude as soon as 2023. In this case, I find that the appropriate approach, is that adopted by Merrell DP in Riddiford and quoted in the decision provided to Mr Cheema. The position is for a specific project with a specified end date and therefore it is a genuine, temporary project position.  The project completion date appears likely to be extended, but it is still the case that the need for the Temporary Manager CBIR2SIW will cease upon completion of the project.
  1. [40]
    There may well be many projects on the horizon and I accept that there may be a need for managers to be appointed to those future projects. Mr Cheema's point is that he is likely to be offered continuing work at the higher classification level in those further projects. This may be the case, but I am unwilling, on the material before me, to insert myself into decision-making about the leadership needs of those projects or to create a new permanent AO8 position on the basis of high-level strategic documents or predictions about the infrastructure projects to be undertaken in the region in the future.
  1. [41]
    I find that the genuine operational requirements of the Department were considered and that the decision-maker determined that there is no permanent need for a manager for the Caboolture – Bribie Island Road to Steve Irwin Way project.
  1. [54]
    I adopt Industrial Commissioner Pidgeon's reasoning here.
  1. [55]
    Clause 4.2 of Directive 13/20 provides that "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." Although the Appellant raised a number of valid points, those submissions do not detract from the fundamental principle that he can only be converted into the position and the fact that the AO8 Position is tied to a specific project with a listed end date. For those reasons, I accept the Department's conclusion that it is not viable or appropriate to appoint the Appellant to the higher classification position.
  1. [56]
    In its decision, the Department outlined that the AO8 Position is not vacant nor ongoing. Neither the PS Act nor Directive 13/20 require there to be a substantive vacancy before an employee can be permanently converted into a higher classification position. However, I do accept that the AO8 Position is not ongoing as it is tied to a specific project and therefore there is no authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint the Appellant to the higher classification position.

The effect of any previous decisions

  1. [57]
    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. [58]
    The Decision is the first made with respect to the Appellant.

Statement of reasons

  1. [59]
    Clause 7.1 of Directive 13/20 and s 27B of the Acts Interpretation Act 1954 (Qld) require that the written notice set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based. The Appellant argues the decision maker failed to adhere to such requirements.
  1. [60]
    I disagree with the Appellant's submission as it appears the Department has engaged in the entire review process, notwithstanding the fact it may have neglected to prescribe some considerations that the Appellant contends it should have.
  1. [61]
    The Decision refers to the required criteria under Directive 13/20 and there is consideration within that decision of relevant factual matters such as the length of time the Appellant has been engaged at the higher duties level, demonstration of necessary capabilities required to perform at the higher level, no outstanding performance concerns and a consideration of genuine operational requirements of the Department. The Decision takes into consideration the expectation that the AO8 Position will cease upon completion of the project and explains why it considers the position should remain temporary in light of that expectation.
  1. [62]
    I have concluded the Department did have regard to genuine operational requirements. I do not accept the Department failed to set out its findings and refer to the material on which those findings were based.

Failure to consider various instruments

  1. [63]
    The Appellant made similar submissions with respect to the Department's failure to consider various instruments as were summarised in Cheema v State of Queensland (Department of Transport and Main Roads).[13] In that regard, I adopt Industrial Commissioner Pidgeon's conclusions below:
  1. [43]
    Clause 4.1.2 of the Enterprise Bargaining Agreement relates to maximising permanent employment. Mr Cheema has permanent tenure in the position of PO5 Principal Engineer (Civil) and has provided no evidence that the decision-maker was required to consider this clause of the Agreement or how, if this was required, the decision-maker has failed to do so.
  1. [44]
    Likewise, there is no evidence before me that the decision-maker failed to consider the Employment Security Policy or Directive 09/20.  Mr Cheema is a permanent employee of the Department and therefore the Directive regarding conversion to permanent is not the applicable Directive in this case. Likewise, the Employment Security Policy is about maximising permanent employment and as Mr Cheema is permanently employed, that policy has no application to this appeal. 
  1. [45]
    As has been discussed above, the relevant Directive is 13/20. Clearly that Directive 'supports the opportunity to appoint an employee to a higher classification level'.  However the Directive goes on to provide for circumstances that would support the temporary engagement of the employee at the higher classification level. For the reasons given above, I have determined that the decision maker has given regard to the genuine operational requirements of the Department in making the decision.

Conclusion

  1. [64]
    For the reasons I have given above, the Decision was fair and reasonable. On that basis, the Decision appealed against is confirmed.
  1. [65]
    I order accordingly.

Order:

That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the Decision appealed against is confirmed. 

Footnotes

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

[2]Ibid s 562B(2).

[3]Ibid s 567(2).

[4]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.

[5][2021] QIRC 064, [23].

[6][2020] QIRC 195, [80].

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

[8]Directive 13/20 Appointing a public service employee to a higher classification level cl 1.2(a)-(b).

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

[10][2020] QIRC 195, 17 [54].

[11][2021] QIRC 262.

[12][2022] QIRC 496.

[13][2022] QIRC 496.

Close

Editorial Notes

  • Published Case Name:

    Schiemann v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Schiemann v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2023] QIRC 35

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    07 Feb 2023

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
Cheema v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 496
3 citations
Jump To
Cite 1 - [2022] QIRC 496
Cite 2 - [2022] QIRC 496
Cite 3 - [2022] QIRC 496
Gavel v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 262
2 citations
Jump To
Cite 1 - [2021] QIRC 262
Cite 2 - [2021] QIRC 262
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
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [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
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
1 citation
Jump To
Cite 1 - (1986) 162 CLR 24
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Riddiford v State of Queensland (Department of Education) [2021] QIRC 64
2 citations
Jump To
Cite 1 - [2021] QIRC 64
Cite 2 - [2021] QIRC 64

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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