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Olesk v State of Queensland (Department of Education)[2024] QIRC 14

Olesk v State of Queensland (Department of Education)[2024] QIRC 14

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Olesk v State of Queensland (Department of Education) [2024] QIRC 14

PARTIES:

Olesk, Angela

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/140

PROCEEDING:

Public Sector Appeal – Higher Classification

DELIVERED ON:

25 January 2024

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 SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant was reviewed under s 120 of the Public Sector Act 2022 – where a deemed decision not to convert the appellant to the higher classification position was made – consideration of 'the position' – where appellant performing work on 'particular project' – consideration of 'genuine operational requirements' – 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 Sector Act 2022 (Qld) s 81, s 120, s 129, s 131, s 132, s 133, s 134

Public Service Act 2008 (Qld) s 149C

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

Directive 03/23 Review of acting or secondment at a higher classification level cl 1, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11, cl 12, cl 14

Directive 13/20 Appointing a public service employee to a higher classification level cl 4

CASES:

Benson v State of Queensland (Department of Education) [2021] QIRC 152

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

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

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

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

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

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

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

Stievano v State of Queensland (Queensland Health) [2022] QIRC 404

Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 22

Reasons for Decision

Introduction

  1. [1]
    On 20 July 2023, Ms Angela Olesk (the Appellant) filed an appeal against a higher classification conversion decision dated 29 June 2023 (the Decision). 
  1. [2]
    The Decision was contained in correspondence from Mr Jeff Shelden, Director, Recruitment and Employment Review, Engagement and Talent Acquisition, People Branch (the decision-maker) for the Department of Education, State of Queensland (the Department; the Respondent). 
  1. [3]
    Within the Department, the Appellant is substantively employed at AO6 classification level, as a permanent Senior Health and Safety Consultant, Safety Wellbeing and Capability (SWC), People Branch.
  1. [4]
    However, between 18 February 2019 and 2 July 2023, the Appellant was continuously engaged in various project roles, at the higher classification level of AO8. 
  1. [5]
    The Decision noted that the Higher classification position held at the time was 'AO8 Project Manager, Safety Framework Review, Safety, Wellbeing and Capability, People Branch.
  1. [6]
    The correspondence[1] then stated that "The total continuous period for which you have been acting in the above higher classification level position in the Department is 5 years, 2 months and 16 days." 
  1. [7]
    That is somewhat misleading because although the Appellant had worked in various positions at the AO8 higher classification level since 18 February 2019 - she had worked in the position held at the time of the review request since 15 August 2022.[2] 

Jurisdiction

Decision against which an appeal may be made

  1. [8]
    On 5 June 2023, the Appellant requested appointment to the higher classification level, pursuant to s 120(1) of the Public Sector Act 2022 (PS Act) and cl 6 of Directive 03/23 Review of acting or secondment at higher classification level (Directive 03/23).
  1. [9]
    In accordance with s 120(2) of the PS Act, the request was decided on 29 June 2023 - "within the required period" of "28 days after the request is made".[3] 
  1. [10]
    The decision subject of this appeal is the Department's refusal to (emphasis added):

… employ the employee in the position at the higher classification level on a permanent basis …"[4]

  1. [11]
    Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision", in this case a decision "under section 120 … not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period … of at least 2 years."[5]
  1. [12]
    Section 134 of the PS Act allows for public sector appeals 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. [13]
    Section 133 of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  The Appellant meets that requirement.
  1. [14]
    I am satisfied that the Decision is able to be appealed.

Timeframe for appeal

  1. [15]
    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.
  1. [16]
    As the decision was given on 29 June 2023 and the Appeal Notice was filed on 20 July 2023, I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [17]
    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. [18]
    The appeal is not conducted by way of re-hearing,[6] but rather involves a review of the Decision arrived at by the Department and the associated decision-making process.[7]  Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. 
  1. [19]
    The issue for my determination is whether the Decision was fair and reasonable in the circumstances.[8]

What decisions can the Commission make?

  1. [20]
    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. [21]
    The decision-maker conveyed the following reasons for refusing the Appellant's conversion request:
  • genuine operational requirements, "having regard to the context of the operation and service delivery needs" of the entity;[9]
  • the purpose of the Appellant's employment "is to perform work for a particular project or purpose that has a known end date";[10]
  • while the Appellant has "continuity of service at the AO8 level, the position you are currently in is a different and distinct position to the position you were performing …"[11] in previous AO8 Project Manager positions with the Department;
  • the Appellant's current AO8 Project Manager position is with the Safety Framework Review (SFR) project.  "The SFR project and the funding that supports the project concludes on 30 June 2023 along with the need for the Project Manager (AO8) role and all other positions that support the SFR project";[12]
  • Having considered "the effective, efficient and appropriate management of the public resources and human resource planning with the department", "… there is no continuing need for the Project Manager (AO8) role beyond 30 June 2023".[13]

Work at the higher classification level AO8

  1. [22]
    The Appellant submitted the below "snapshot of how I have transitioned from project-to-project over a continuous, unbroken 52-month period":[14]

18/2/2019 - 17/2/2020

12 months

AO8 Project Manager for State of the Schools project

(People Branch – formerly Human Resources)

18/2/2020 - 30/6/2022

28 months

AO8 Project Manager for Occupational Violence and Aggression project

(Working within Organisational Safety and Wellbeing, People Branch – formerly Human Resources)

1/7/2022 - 30/6/2023

13 months

AO8 Project Manager for Safety Framework Review

(Working within Organisational Safety and Wellbeing, People Branch – formerly Human Resources)

  1. [23]
    The Respondent submitted that "the Appellant has been engaged in the higher classification AO8 level in a variety of distinctly different project roles since 18 February 2019."[15]  Those submissions outlined the Appellant's work history at the AO8 higher classification level to be:[16]

18/2/2019 - 31/3/2019

AO8 Project Manager

(Within the Workforce Analytics and Reporting team)

Position number 9952

1/4/2019 - 29/6/2020

AO8 Project Manager

(Within the Engagement and Talent Acquisition team)

Position number 6100

1/7/2020 - 12/8/2022

AO8 Project Manager

(For the Occupational Violence and Aggression Prevention Strategy, SWC, People Branch)

"On 12 August 2022, the Project Manager role ceased with the completion of the OVA Project."

Position number 6555

15/8/2022 - 2/7/2023

AO8 Project Manager

(For the Safety Framework Review project, SWC, People Branch)

"On 2 July 2023 (with the last working day being Friday 30 June 2023), the SFR Project Manager role ceased with the completion of the SFR Project and the Appellant returned to her substantive position."

Position number B051

(the Higher Classification Position)

  1. [24]
    The Respondent submitted that "for the purpose of the Decision, the same role is limited to consideration of the Project Manager (AO8) roles occupied since 18 February 2019; albeit in different positions."[17]  Here, the phrase 'same role' has a particular relevance to the meaning of 'continuous period (in the PS Act and Directive 03/23) - that is necessary to establish in order to determine an employee's eligibility to make a conversion request under s 120(1) of the PS Act. 

Submissions

  1. [25]
    In accordance with the Directions Order issued on 28 July 2023, the parties filed written submissions.
  1. [26]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Appellant's submissions

  1. [27]
    The Appellant submits the conversion Decision was not fair and reasonable because:
  1. a)
    there is a continuing genuine operational need for someone to be employed in the AO8 Project Manager role;
  2. b)
    I meet s 120(3) PS Act suitability criteria; and
  3. c)
    The decision is inconsistent with the requirements of Review of acting or secondment at higher classification level (Directive 03/23) and section 120 of the PS Act.[18]
  1. [28]
    The Appellant's submissions elaborated that:
  • She was "continually employed for 5.2 years with the Department of Education as a Project Manager (AO8) ..."[19]
  • A proposed structure for the Organisational Safety and Wellbeing (OSW) team (part of the People Branch) was provided to the management team "and included an unfilled / vacant AO8 Project Manager role which I understand has been approved by the Executive Leadership Team for 12 months.  Whilst this role continues to be 'temporary' it strongly demonstrates an ongoing need for a Project Manager within People Branch to deliver on project commitments, foreseeably related to the outputs of the Safety Framework Review (SFR) project."[20]
  • In relation to operational requirements, "the Department has identified via the ongoing structure planning for OSW that there is an ongoing need for a Project Manager."[21] 
  • The Appellant has "competently delivered 3 x high profile projects across the Department over a 5+ year period"[22] - each funded via different funding sources."[23]
  • As the Department "has an ongoing need for skilled project managers, it could be viewed as inefficient use of public resources to continually advertise, recruit and retain temporary Project Managers on a daily/weekly/monthly basis.  My conversion request should be considered in relation to the Department as a whole and not limited to a team, branch or division."[24] 
  • "While the funding for the AO8 Project Manager roles ceased with the closing of the Safety Framework Review project, I continue to undertake the same duties which previously would have been undertaken as a requirement of the Project Manager (Occupational Violence and Aggression) and/or Project Manager (Organisational Safety and Wellbeing) roles albeit my classification has changed to AO6 to meet establishment requirements/FTE cap."[25]
  • The Appellant's "acting/secondment arrangements have been extended 14 times since 28 August 2017."[26] 
  • Section 81 of the PS Act provides that employment on tenure is the default basis of employment.  That section goes on to provide that "employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection 3(a) on a frequent or regular basis."[27] 
  • In the Commission's earlier decision in Benson v State of Queensland (Department of Education)[28] I held that "an employer could not rely indefinitely on their reasons for initially engaging an employee on a temporary basis … in that case where Ms Benson had been repeatedly extended in the role and was backfilling another employee in circumstances where the return of the incumbent was uncertain, this did demonstrate a continuing need for Ms Benson to be employed in that role …"[29]  The Appellant submitted that as she was performing higher duties in Project Manager roles with the Department since 2017 and extended 14 times "this erodes the Department's position that it is not viable to continue to employ me as a AO8 Project Manager, as I have been performing a purpose mentioned in subsection (3)(a) of the PS Act on a frequent or regular basis during that time."[30]
  • "… the fact that I have been engaged to perform higher duties in the Project Manager roles for a now extended period of time (over 5 years and 10 months at the time of the conversion decision) indicates that there is indeed a genuine operational need for my appointment at the higher classification level in order to maintain the operational requirements of the Department."[31]
  • It is the Appellant's "understanding that the Department has secured funding for the AO8 Project Manager role."[32]
  • In the Commission's earlier decision in Stievano v State of Queensland (Queensland Health)[33] it was held that conversion processes are remedial in character and should be given a fair, large and liberal interpretation rather than one which is literal or technical.[34] 
  • With respect to Deputy President Merrell's decision in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison')[35] the Appellant submitted that "there is an authentic need for someone to perform the role for the foreseeable future, and the Respondent is effectively utilising a fixed term temporary employment arrangement to populate a role which could be carried out by a permanent employee."[36]
  • In the Commission's earlier decision in Underwood v State of Queensland (Department of Housing and Public Works)[37] Industrial Commissioner Power held that "… if the history of the employee's temporary engagement relates to continued projects, appointment to the higher level position should not be denied simply on the basis that a known end date exists in isolation from the broader circumstances of the Appellant's employment."  The Appellant submitted that "given the 5 years and 10 months I have been acting as a Project Manager, it should no longer be considered temporary and … there is a genuine operational need for someone to be employed in the role beyond the current end date …"[38]
  • A deemed decision not to convert the Appellant to the higher classification position was made on 14 April 2022, under s 149C(6) of the repealed Public Service Act 2008 (Qld).[39]  The Appellant submitted that even if there were genuine operational reasons not to convert her to the higher classification position at that time, she continued to be employed in "an AO8 Project Manager role at the same classification level for a further 12+ month period …" and so she has been employed on a frequent or regular basis during that time.[40]

Respondent's submissions

  1. [29]
    The Respondent submits the Decision is fair and reasonable because:
  • Since 18 February 2019, the Appellant has been engaged in the higher classification AO8 level in "a variety of distinctly different project roles".[41]
  • Citing the Commission's decision in Holcombe v State of Queensland (Department of Housing and Public Works) ('Holcombe')[42] the position subject of this appeal is the 'Higher Classification Position'.  That is, AO8 Project Manager, Position number B051.
  • The decision-maker refused the Appellant's higher classification conversion request on the grounds of 'genuine operational requirements', pursuant to s 120(4)(a) of the PS Act.[43]
  • During the Appellant's continuous period of employment at the higher classification level, a deemed decision to refuse conversion was made on 14 April 2022 (under s 149C(6) of the repealed Public Service Act 2008 (Qld)).  The Respondent submitted it had regard to the reasons for the previously made decision, as required under s 120(4)(b) of the PS Act.[44]
  • In refusing the Appellant's conversion request, the decision-maker provided her with "a notice in compliance with section 120(5) of the PS Act and clause 10 of Directive 03/23, with the exception of section 120(5)(c), which requires the notice to include how many times the employee's acting arrangement or secondment had been extended."[45]  The Respondent submitted that the absence of that information "does not render the decision unfair and unreasonable on the basis it is not a significant omission and does not prejudice the Appellant."[46]
  • The decision states the reason for refusing the conversion request was because "the purpose of your employment is to perform work for a particular project or purpose that has a known end date."[47]  The Respondent submitted that "the Higher Classification Position was a temporary position for the specified purpose of undertaking specialist work for the defined SFR Project.  The SFR Project was supported by two years of funding … It is acknowledged that the end date varied due to delays associated with COVID and therefore approved to extend until 30 June 2023."[48]
  • The particular circumstances of this case are similar to those in Riddiford v State of Queensland (Department of Education) ('Riddiford')[49] where Deputy President Merrell held:

… 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.[50]

  • The Higher Classification Position was "a genuine, temporary project position, which represents a genuine operational requirement for refusing the Request; further having regard to the need for effective, efficient and appropriate management of public resources in circumstances where there is no ongoing need for the Higher Classification Position."[51]
  • "The Appellant is no longer employed in the Higher Classification Position, with the arrangement coming to an end in accordance with its terms, as the need no longer existed due to the SFR Project ceasing.  There is no longer a need for anyone to be employed in the Higher Classification Position."[52]
  • "… there is no ongoing need for someone to be employed in the Higher Classification Position.  The SFR Project, the position and the responsibilities have ceased."[53]
  • The Respondent is currently consulting the workforce on a proposed organisational structure - but that is subject to consultation and FTE approval.  "There is no ongoing (permanent) AO8 Project Manager role proposed.  The final structure, and the respective roles and associated classification levels are yet to be finalised and approved.  Further, the Appeal is limited to consideration of appointment with respect to the Higher Classification Position, not another position at the classification level that may become available at a future time."[54]
  • "In response to the Appellant's contention … that since returning to her substantive AO6 position she is undertaking the same duties, the Respondent submits that the recommendations from the SFR Project are now implementation activities in the ordinary course of business-as-usual duties and are appropriately in the scope of the AO6 work value and role."[55]
  • Pursuant to s 120(1) of the PS Act, the Respondent submitted that "… consideration of the Appeal is confined to employment on a permanent basis in 'the position at the higher classification level'.  The position was a temporary position for a specific project with a known end date, that has now ceased … it was fair and reasonable … to refuse the request of the Appellant to be permanently employed in the Higher Classification Position taking into consideration genuine operational requirements."[56]

Relevant provisions

  1. [30]
    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 03/23.
  1. [31]
    Section 120 of the PS Act provides (emphasis added):

120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment

  1. (1)
    If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after—
  1. (a)
    the end of 1 year of acting at, or being seconded to, the higher classification level; and
  2. (b)
    the end of each subsequent 1-year period.
  1. (2)
    The employee's chief executive must decide the request within the required period.
  2. (3)
    The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role.
  3. (4)
    In making the decision, the employee's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the public sector entity; 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 acting at, or secondment to, the higher classification level.
  1. (5)
    If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  2. (b)
    the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and
  3. (c)
    how many times the employee's acting arrangement or secondment has been extended; and
  4. (d)
    each decision previously made, or taken to have been made, under this section in relation to the employee during the employee's continuous period of acting at, or secondment to, the higher classification level.
  1. (6)
    If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  2. (7)
    The commissioner must make a directive about employing an employee at a higher classification level under this section.
  3. (8)
    In this section—

continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive.

required period, for making a decision under subsection (2), 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.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

  1. [32]
    Further, section 131(1)(a) of the PS Act provides:

131 Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (a)
    a conversion decision;
  1. [33]
    Section 132(1)(k) of the PS Act provides (emphasis added):

132 Decisions against which appeals can not be made

  1. (1)
    A person can not appeal against any the following decisions—

  1. (k)
    a decision under section 120 not to appoint a public employee to a position at a higher classification level, if the employee has been acting at, or seconded to, the higher classification level for less than 2 years;

In this case, the Appellant has worked in positions at AO8 level for more than 5 years, so is eligible to appeal the decision to refuse conversion.

  1. [34]
    Directive 03/23 relevantly provides (emphasis added):
  1. 4.Principles
  2. 4.1Chief executives are responsible for making decisions under the provisions of chapter 3, part 9, division 2 of the Act.
  3. 4.2Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.
  4. 4.3Under the Human Rights Act 2019, decision makers have an obligation to:
  1. a.act and make decisions in a way that is compatible with human rights
  2. b.give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
  1. 4.4Under chapter 1, part 3 of the Act public sector reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.
  2. 4.5Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
  3. 4.6In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.
  1. 5.Interpretation of directions
  2. 5.1The Act sets out employee entitlements and entity responsibilities under chapter 3 part 9, division 2 of the Act.
  3. 5.2The Appendix identifies and summarises the relevant sections of the Act to assist public sector employees and decision makers in understanding the legislative framework.
  4. 5.3A decision maker, when considering a review of an employee's acting or secondment at the higher classification level, must make a decision by applying the relevant sections of the Act.
  5. 5.4The directions:
  1. a.provide for the meaning of 'continuous period', as required under section 120(8) of the Act
  2. b.provide for the meaning of 'suitable', as required under section 120(8) of the Act
  3. c.establish procedural requirements for conducting a review and employing an employee at a higher classification level under sections 120 and 121 of the Act
  4. d.should be read in conjunction with the relevant authorising provision/s of the Act.
  1. 5.5The requirements set out in these directions are binding and must be followed.
  2. 6.Requests to employ a public sector employee at a higher classification level on a permanent basis
  3. 6.1A request made under sections 120 or 121 of the Act must be made to the chief executive in writing, unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
  4. 6.2Where a reasonable adjustment is required, the employee must make it clear in the request that they are making the request under these provisions.
  5. 6.3An entity must set out information on its intranet, or in another way that is accessible to employees, about how to request a review under sections 120 or 121 of the Act.
  6. 6.4The request rights provided for in section 121 of the Act are in addition to, and separate from, the request rights provided for in section 120 of the Act. A request made under section 121 of the Act does not affect when an eligible public sector employee is able to make a request under section 120(1)(b) of the Act.
  7. 7.Decision-making
  8. 7.1When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.
  9. 8.Meaning of continuous period
  10. 8.1Continuous 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 public sector entity.

  1. 8.2Additionally, a public sector employee has been acting at, or seconded to, the higher classification level, where they have been remunerated at the full rate of the higher classification level during the period of unbroken engagement mentioned in clause 8.1.
  2. 8.3Authorised leave, as provided for in clause 8.1, includes any period of leave that has been approved by the chief executive, including leave without pay for any period, where it is intended that the employee will return to the position at the higher classification level following the period of leave.
  3. 8.4It is at the discretion of a chief executive to determine what constitutes an authorised absence, as provided for in clause 8.1. For example, a chief executive may determine an authorised absence to include acting at, or being seconded to, an alternative position at a higher classification level, where it was always intended that the employee would return to the position at the higher classification level following the period of absence.
  4. 9.Meaning of suitable
  5. 9.1A public sector employee is to be considered suitable to perform the role where:
  1. a.the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
  2. b.the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
  3. c.the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and where required, managed in accordance with the requirements of a relevant directive, such as the directives relating to positive performance management and discipline.
  1. 10.Obligations when a decision is made to refuse a request to employ a public sector employee at a higher classification level on a permanent basis
  2. 10.1Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:
  1. a.set out the findings on material questions of fact
  2. b.refer to the evidence or other material on which those findings were based.
  1. 10.2Any notice provided to the employee must include information about any relevant appeal rights available to the employee.
  2. 10.3Where the chief executive decides to refuse a request made under section 120 of the Act because the person was not suitable to perform the role, any notice provided to the employee must include information about an employee's right to request an additional review under section 121 of the Act, in the event the employee considers they become suitable to perform the role.
  3. 10.4Where the chief executive decides to refuse a request made under sections 120 or 121of the Act, unless otherwise advised in the written notice, a person's engagement in the public sector entity is taken to continue according to the terms of the existing secondment or acting arrangement.
  4. 11.Deemed decisions
  5. 11.1A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to employ the person at the higher classification on a permanent basis.
  6. 11.2A written notice is not required to be prepared to support a deemed decision.
  7. 11.3However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:
  1. a.the employee's right to make an additional request for employment at the higher classification level on a permanent basis under section 121 of the Act, if the initial request was made under section 120 of the Act, and
  2. b.any relevant appeal right available to the employee.
  1. 11.4Unless otherwise advised by the chief executive, where a deemed decision occurs, a person's engagement in the public sector entity is to continue according to the terms of the existing secondment or acting arrangement.
  2. 11.5Chief executives of public sector entities are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.
  3. 12.Appeals
  4. 12.1Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act.

  1. 14.Transitional arrangements
  2. 14.1Section 319 of the Act sets out the transitional arrangements for persons who asked a chief executive to appoint the person to a position at a higher classification level as a general employee on tenure or as a public service officer under section 149C of the repealed Act.

Definitions

Second/secondment has the meaning provided for under section 118 of the Act.

  1. [35]
    While it does not appear in Directive 03/23 - nor in Chapter 3, Part 9 'Reviews', Division 2 'Review of acting or secondment at higher classification level' of the PS Act - the repealed Directive 13/20 Appointing a public service employee to a higher classification level had formerly included the 'Principle' that (emphasis added):
  1. 4.Principles

  1. 4.2Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
  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
  2. (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
  3. (c)
    to perform work for a particular project or purpose that has a known end date
  4. (c)
    to perform work necessary to meet an unexpected short-term increase in workload.

Where the parties' submissions refer to 'a particular project or purpose that has a known end date', I have considered those to arguments concerning the "genuine operational requirements of the public sector entity".[57]

  1. [36]
    Directive 03/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[58]
  1. [37]
    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 of the Acts Interpretation Act 1954 (Qld), 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. [38]
    The stated purpose of Directive 03/23 is (emphasis added):
  1. 1.Purpose
  2. 1.1The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
  3. 1.2This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level.
  4. 1.3This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level.

Interpretation

  1. [39]
    In deciding this appeal, I acknowledge the significance of the legislative provisions identified and explained above.
  1. [40]
    In summary, the status of Directive 03/23 as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of Directive 03/23 is to be preferred to any other interpretation.

What is 'the position' subject of this appeal?

  1. [41]
    Section 120(1) of the PS Act applies to a public sector employee's eligibility to request permanent appointment to the position at the higher classification level.
  1. [42]
    The power afforded to the Department to permanently appoint the Appellant is confined to the position which she 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. [43]
    In this particular case, there is no dispute between the parties that the Appellant was continuously engaged as an AO8 Project Manager within the Department, from 18 February 2019 to 2 July 2023.  However, the position subject of the decision-maker's conversion refusal was 'Position number B051' (the Higher Classification Position).  Not simply any 'AO8 Project Manager role'.
  1. [44]
    Although my explanation in Holcombe[59] pertained to the now repealed s 149C of the Public Service Act 2008 (Qld), it remains apposite here:

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.[60]

  1. [45]
    In light of the above, the position subject of the review is that of AO8 Project Manager Safety Framework Review project (Position number B051), Safety Wellbeing and Capability, People Branch within the Department.

Decision criteria

  1. [46]
    The PS Act and Directive 03/23 provide that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
  • whether the Appellant is 'suitable' (s 120(3) of the PS Act and cl 9.1 of Directive 03/23);
  • the genuine operational requirements of the public sector entity (s 120(4)(a) of the PS Act and cl 7.1 of Directive 03/23); 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 acting at, or secondment to, the higher classification level (s 120(4)(b) of the PS Act and cl 7.1 of Directive 03/23).

Consideration

  1. [47]
    I am required to decide this appeal by assessing whether or not the Decision appealed against was fair and reasonable. 
  1. [48]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Suitability

  1. [49]
    There is no dispute between the parties with respect to the Appellant's suitability. 

Genuine operational requirements

  1. [50]
    Deputy President Merrell considered 'genuine operational requirements' in Morison.[61] 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.
  2. [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.'[62]
  1. [51]
    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. [52]
    A significant aspect of the Appellant's submission is that the Department should have considered whether the Appellant's AO8 Project Manager SFR position could be utilised elsewhere in the Department (i.e., for future project work beyond the SFR project). The Appellant submitted that as the Department "has an ongoing need for skilled project managers, it could be viewed as inefficient use of public resources to continually advertise, recruit and retain temporary Project Managers on a daily/weekly/monthly basis.  My conversion request should be considered in relation to the Department as a whole and not limited to a team, branch or division."[63]  However, as outlined above, the power afforded to the Department to permanently appoint the Appellant under s 120(1) of the PS Act is confined to the position which she is performing at the time of the review.
  1. [53]
    The Department's consideration is therefore confined to the position of AO8 Project Manager Safety Framework Review project (Position number B051), Safety Wellbeing and Capability, People Branch.  As reasoned in Holcombe[64] (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.[65]

  1. [54]
    The Appellant made a number of submissions with respect to ongoing need, efficiency to retain experienced staff, likely future demand, transitions from project to project. The Appellant also submits that permanent employment is a viable option despite the temporary nature of the individual projects because the Department will always have projects that need to be managed.  That may be true; however does not expunge the significant fact that the Appellant was employed specifically in the position of AO8 Project Manager, Safety Framework Review [Position number B051] which has a listed end date of 2 July 2023. 
  1. [55]
    The Respondent refused the Appellant's higher classification conversion request on the grounds of 'genuine operational requirements'.  That included that:
  • The position was for a specified purpose with a known end date;
  • The project was supported by two years funding, which has now ceased;
  • The position was a "genuine, temporary project position";
  • There is no ongoing need for the position as "the SFR Project, the position and the responsibilities have ceased";
  • In the above circumstances, the Respondent must have regard to the "need for effective, efficient and appropriate management of public resources".
  1. [56]
    Here the project did in fact conclude as at 2 July 2023, funding ceased, and the Appellant went back to her substantive permanent position within the Department.  As the Respondent explained "… the Appellant is no longer employed in the Higher Classification Position, with the arrangement coming to an end in accordance with its terms, as the need no longer existed due to the SFR Project ceasing.  There is no longer a need for anyone to be employed in the Higher Classification Position."[66]
  1. [57]
    As the decision maker explained, the purpose of the Appellant's employment with the SFR project team was to "deliver the recommendations of the SFR project which is funded for a finite period of time … The SFR project and the funding that supports the project concludes on 30 June 2023 along with the need for the Project Manager (AO8) role and all other positions that support the SFR project."  In my view, the AO8 position was directly tied to the SFR project that has now ended - and the conclusion reached in the Decision is fair and reasonable.
  1. [58]
    Relevantly to this matter, in the decision of Cheema v State of Queensland (Department of Transport and Main Roads),[67] 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.
  2. [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.
  3. [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. [59]
    Further, Deputy President Merrell previously found in Riddiford:[68]
  1. [25]
    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.
  1. [60]
    I adopt the reasoning of Deputy President Merrell and Industrial Commissioner Pidgeon in this matter.
  1. [61]
    Although the Appellant raised a number of valid points, those submissions do not detract from the fundamental principle that she can only be converted into the position and the fact that the AO8 position is tied to a specific project. In the circumstances of this case, the project has ended and the Appellant has returned to her substantive permanent AO6 position in the Department.  I accept the Department's conclusion that it is not viable to appoint the Appellant to the higher classification position.
  1. [62]
    The decision maker explained that the AO8 position "will not be ongoing beyond 30 June 2023 …" In the Respondent's submissions, it clarifies that while a proposed organisational structure is currently subject of consultation, a permanent AO8 Project Manager position is not proposed and it all still subject to approval.  While I observe that neither the PS Act nor Directive 03/23 require there to be a substantive vacancy before an employee can be permanently converted into the position. I have accepted 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.
  1. [63]
    I find that the decision-maker did correctly consider and apply the decision criteria contained in the PS Act and Directive 03/23, and reliance on genuine operational requirements to refuse conversion was fair and reasonable in this case. The decision-maker stated, and indeed it has now occurred, that the need for the position will cease upon the project end date of 2 July 2023.  In the particular circumstances of this case, the continuation of the AO8 position beyond 2 July 2023 does not demonstrate effective, efficient and appropriate management of the public resources of the Department.  While I appreciate the Appellant's argument that the Department will need skilled and experienced Project Managers into the future, the legislative power to convert the Appellant is to the position.

Any previous decisions

  1. [64]
    Section 120(4) 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. [65]
    The only such decision was a 'deemed' decision dated 14 April 2022, made under the section 149C(6) of the repealed Public Service Act 2008 (Qld). 

Notice

  1. [66]
    The Respondent acknowledged in its submissions that the notice provided to the Appellant failed to include all elements required.  Specifically, that the notice did not include "how many times the employee's acting arrangement or secondment has been extended".[69]  While the Department is reminded of those requirements, that omission is not fatal to the decision to refuse the higher classification conversion request. In that regard, I follow Deputy President Merrell's reasoning in Morison[70] below (citations omitted):
  1. [52]
    Such delegates must also comply with s 149C(5) of the PS Act. Ms Matebau's written decision did not comply with s 149C(5)(c) in that Ms Matebau did not set out how many times Ms Morison's engagement at the higher classification level24 had been extended. However, having regard to Ms Matebau's principal reason for her decision, that failure, on its own, does not render Ms Matebau's decision not fair and not reasonable.

Conclusion

  1. [67]
    For the reasons I have given above, the Decision was fair and reasonable.
  1. [68]
    On that basis, the Decision appealed against is confirmed.
  1. [69]
    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] Correspondence from Mr J Shelden, Director, Recruitment and Employment Review, Engagement and Talent Acquisition, People Branch, Department of Education to Ms A Olesk dated 29 June 2023.

[2] See 'Service History' attached to the Appellant's submissions, filed 4 August 2023.

[3] Public Sector Act 2022 (Qld) ss 120(2), 120(8).

[4] Ibid s 120(1).

[5] Ibid s 129(e).

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

[7] Industrial Relations Act 2016 (Qld) s 562B(2).

[8] 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.

[9] Correspondence from Mr J Shelden to Ms A Olesk dated 29 June 2023 (the Decision Letter), 2–3.

[10] Ibid 3.

[11] Ibid.

[12] Ibid 4.

[13] Correspondence from Mr J Shelden to Ms A Olesk dated 29 June 2023 (the Decision Letter), 4.

[14] Appellant's submissions filed 4 August 2023, [5].

[15] Respondent's submissions filed 11 August 2023, [7].

[16] Ibid [8]–[13].

[17] Respondent's submissions filed 11 August 2023, [13].

[18] Appellant's submissions filed 4 August 2023, [10].

[19] Appeal Notice filed 20 July 2023, 4.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Appellant's submissions filed 4 August 2023, [4]; Attachment 1 'Service History' report [Some positions held since 28 August 2017 were at AO7 classification level]

[27] Public Sector Act 2022 (Qld) s 81(4).

[28] [2021] QIRC 152, [120]–[121].

[29] Appellant's submissions filed 4 August 2023, [15].

[30] Ibid [16]; Relevantly, the Commission's decision in Benson v State of Queensland (Department of Education) [2021] QIRC 152 was about a fixed-term temporary conversion decision, this matter is a higher classification conversion decision.

[31] Appellant's submissions filed 4 August 2023, [17].

[32] Ibid [19].

[33] [2022] QIRC 404, [70].

[34] Appellant's submissions filed 4 August 2023, [22]–[23].

[35] [2020] QIRC 203.

[36] Appellant's submissions filed 4 August 2023, [24]–[25].

[37] [2021] QIRC 22.

[38] Appellant's submissions filed 4 August 2023, [26]–[27].

[39] Correspondence from Mr J Shelden to Ms A Olesk dated 29 June 2023 (the Decision Letter), 1.

[40] Appellant's submissions filed 4 August 2023, [30].

[41] Respondent's submissions filed 11 August 2023, [5]–[7].

[42] [2020] QIRC 195.

[43] Respondent's submissions filed 11 August 2023, [19].

[44] Ibid; Correspondence from Mr J Shelden to Ms A Olesk dated 29 June 2023 (the Decision Letter), 2.

[45] Respondent's submissions filed 11 August 2023, [19].

[46] Ibid [20].

[47] Correspondence from Mr J Shelden to Ms A Olesk dated 29 June 2023 (the Decision Letter), 3.

[48] Respondent's submissions filed 11 August 2023, [22].

[49] [2021] QIRC 064

[50] Ibid [23].

[51] Respondent's submissions filed 11 August 2023, [25].

[52] Ibid [26].

[53] Ibid [27].

[54] Ibid [28].

[55] Ibid [29].

[56] Ibid [30].

[57] Public Sector Act 2022 (Qld) s 120(4)(a).

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

[59] [2020] QIRC 195.

[60] Ibid [80].

[61] [2020] QIRC 203.

[62] Ibid.

[63] Appeal Notice filed 20 July 2023, 4.

[64] [2020] QIRC 195, 17.

[65] Ibid [54].

[66] Respondent's submissions filed 11 August 2023, [26].

[67] [2022] QIRC 496.

[68] [2021] QIRC 064.

[69] Public Sector Act 2022 (Qld) s 120(5)(c).

[70] [2020] QIRC 203.

Close

Editorial Notes

  • Published Case Name:

    Olesk v State of Queensland (Department of Education)

  • Shortened Case Name:

    Olesk v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 14

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    25 Jan 2024

Appeal Status

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

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