Gomez v State of Queensland (Department of Agriculture and Fisheries)
[2024] QIRC 190
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- Unreported Judgment
- Gomez v State of Queensland (Department of Agriculture and Fisheries)[2024] QIRC 190
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Gomez v State of Queensland (Department of Agriculture and Fisheries)[2024] QIRC 190
Gomez v State of Queensland (Department of Agriculture and Fisheries)[2024] QIRC 190
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 190 |
PARTIES: | Gomez, Vivian Sandoval (Appellant) v State of Queensland (Department of Agriculture and Fisheries) (Respondent) |
CASE NO: | PSA/2024/87 |
PROCEEDING: | Public Service Appeal – Appeal against a conversion decision |
DELIVERED ON: | 5 August 2024 |
DATE OF WRITTEN SUBMISSIONS: | Appellant's submissions filed 31 May 2024 Respondent's submissions filed 19 June 2024 |
MEMBER: | Butler IC |
HEARD AT: | On the papers |
ORDERS: | It is ordered that:
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a conversion decision – where decision taken to have been made – where purported decision issued subsequent to deemed decision taking effect – whether the appeal was filed within the limitation period – where extension of the appeal period is by way of discretion – where discretion exercised – where employee was undertaking higher duties and requested appointment at a higher classification – where higher duties work not attributed to a particular position at the higher classification at the time of the request being made – appeal dismissed. |
LEGISLATION: | Acts Interpretation Act 1954 (Qld) sch 1 Directive 03/23 Review of acting or secondment at higher classification level cls 7, 8 Electrical Safety and Other Legislation Amendment Act 2011 (Qld) s 42 Industrial Relations Act 2016 (Qld) ss 539, 562, 564 Public Sector Act 2022 (Qld) ss 8, 9, 114, 120, 121, 129, 131, 132, 133, 143,149, 177, 221, 228 Public Service & Other Legislation Amendment Act 2020 (Qld) s 12 Public Service Act 2008 (Qld) ss 149C, 197 |
CASES: | Abyss Demolition Pty Ltd v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 13 Bode v State of Queensland (Queensland Health) [2022] QIRC 450 Breust v Qantas Airways Ltd [1995] 149 QGIG 777 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Chiotakis v Queensland Museum Network [2023] QIRC 34 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Hansen v State of Queensland (Department of Education) [2021] QIRC 72 Hegazy v State of Queensland (Department of Education) [2023] QIRC 16 Hubbard v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 152 Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344 Lindores Construction Logistics Pty Ltd v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 8 Maroochydore Surf Life Saving Club v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 20 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Murphy v State of Queensland (Queensland Health) [2021] QIRC 213 Murray v State of Queensland (Queensland Health) [2023] QIRC 194 Plant v State of Queensland (Department of Education) [2021] QIRC 139 (Merrell DP) Rackley v State of Queensland (Queensland Police Service) [2024] QIRC 80 Wilcox v State of Queensland (Queensland Health) [2024] QIRC 027 |
Reasons for Decision
Introduction
- [1]Dr Vivian Sandoval Gomez is employed by the State of Queensland in its Department of Agriculture and Fisheries ('the Department') in the role of Technical Officer, TO3.
- [2]She has brought this appeal against a decision not to appoint her at a higher classification, PO3, on a permanent basis. The Respondent opposes the appeal.
- [3]For the reasons that follow I have decided to dismiss the appeal and order that the decision appealed against be confirmed.
Background
- [4]Dr Sandoval joined the Market Access Team in the Department's Horticulture and Forestry Science division as a Technical Officer (classification TO3) in February 2020.[1]
- [5]After submitting an expression of interest for a role as an Entomologist in May 2021, Dr Sandoval obtained a higher duties engagement as a PO3.[2] Her higher duties engagement was extended eight times.[3] She undertook higher duties at PO3 classification, continuously for two years and nine months.[4]
- [6]
- [7]The employee whose role Dr Sandoval was backfilling returned on a part-time basis on 5 September 2022.
- [8]Dr Sandoval made a higher duties classification review request in late 2022. The Respondent says that on 22 December 2022 the decision, in relation to that request, was communicated to Dr Sandoval, declining her conversion due to the substantive holder of the position returning to work on a part time basis.[7]
- [9]The incumbent for the role that Dr Sandoval was backfilling gradually increased their hours until returning to full time work from 3 July 2023.[8]
- [10]Dr Sandoval's "higher duties position" was extended until 29 December 2023 "to meet urgent increases in workload." Despite the incumbent having resumed full time work from July 2023, the Respondent attributes this higher duties period to the same position number, PN76006605.[9]
- [11]Dr Sandoval then continued undertaking higher duties at the PO3 classification from January 2024 to 31 March 2024 while the Department conducted a review of its ongoing business requirements for a project in relation to "the Fresh and Secure Trade Alliance."[10] The Department says that during this period Dr Sandoval had returned to her substantive role but was relieving at PO3 level.[11] For this period, it does not appear that Dr Sandoval's higher duties relief work was attached to any identified PO3 position number. The Respondent cites Dr Sandoval's substantive TO3 role position number, 76020528, for this period of relieving,[12] and describes the period as follows:[13]
Position title: Technical Officer, continued to relieve as Plant Pathologist.
Comments: Appellant returned to substantive TO3 role, but continued to relieve at the PO3 level, to finalise project activities.
- [12]
- [13]On 22 March 2024 she requested to be permanently employed at the higher classification level ('the conversion request'). She made this request pursuant to section 120 of the Public Sector Act 2022 (Qld).
- [14]
- [15]
- [16]Dr Sandoval received the purported decision letter on 26 April 2024.[20]
- [17]Dr Sandoval filed her Appeal Notice on 17 May 2024.
- [18]Before turning to the content of that Appeal Notice and the submissions made by the parties, I will deal with two preliminary issues, regarding:
- which decision is the decision under appeal; and
- the limitation period.
Preliminary issues
The deemed decision is the decision under appeal
- [19]Dr Sandoval's Appeal Notice annexes the purported decision letter of 22 April 2024.
- [20]After the deemed decision had been taken to have been made on 19 April 2024 , Mr Hall did not have the power to decide the request. His purported decision of 22 April 2024 was of no effect.
- [21]The consequences of the Department's error should not be visited upon Dr Sandoval.
- [22]Accordingly, to the extent it is necessary for me to do so I waive any defect that would otherwise prevent me from proceeding on the basis that the decision appealed against is the deemed decision.
The limitation period
- [23]I now turn to considering whether the Appeal Notice was filed in time and if not whether time should be extended.
- [24]Section 564 of the Industrial Relations Act 2016 (Qld) provides for the period in which an appeal must be filed, as follows:
564 Time limit for appeal
(1) An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
(2) However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
(3) In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
(a) if the decision is given at a hearing—the announcement of the decision at the hearing; or
(b) if the decision is given through the registrar—the release of the decision; or
(c) if the decision is a promotion decision—the decision is publicly notified under the Public Sector Act 2022; or
(d) if, under another Act, the decision is given in another way—the decision is given in the other way.
(Emphasis added.)
- [25]As required by section 143 of the Public Sector Act, the Public Service Commission has made a directive in relation to appeals, Directive 4 of 2023 ("the Appeals Directive"), which was in force at all material times. Pursuant to section 221 of the Public Sector Act, a directive binds each person to whom it applies. The Appeals Directive relevantly provides:
15. Time limit to start an appeal
15.1 The time limit to start an appeal under section 564 of the IR Act is the period within 21 days after:
(a) the date on which notice of the decision is given to the public sector employee, or
(b) in the case of a promotion decision, the date the decision is publicly notified under the relevant provisions of the PS Act.
15.2 The time limit under clause 15.1 may be extended by the QIRC upon application by a public sector employee, as provided for in section 564 of the IR Act.
- [26]Also relevant is the Public Service Commission's Directive 3 of 2023, entitled "Review of acting or secondment at higher classification level" ('Directive 03/23'). It explicitly provides that a "written notice is not required to be prepared to support a deemed decision."[21] However, within fourteen days of the decision being taken to have been made a chief executive must inform the employee in writing of their right to make an additional request (in certain circumstances and any relevant appeal right available to them.[22]
- [27]The paragraph that is now paragraph (d) of sub-section 564(3) of the Industrial Relations Act was inserted into the then Industrial Relations Act 1999 (Qld) in April 2011 by operation of the Electrical Safety and Other Legislation Amendment Act 2011 (Qld) ('ESOLA').[23] The explanatory notes reveal that the amendment was aimed at clarifying the operation of appeals under workers' compensation legislation,[24] and that parliament anticipated specific provisions in other legislation would override this general provision.[25]
- [28]In 2020, certain public service reforms, including in relation to appeals ('the 2020 public service reforms'), were effected by the Public Service & Other Legislation Amendment Act 2020 (Qld) ('the PSOLA') following the Bridgman Review.[26] Those reforms included providing for public service appeals which were heard under the then Public Service Act 2008 (Qld) by the Commission to instead be heard under the Industrial Relations Act, "to ensure transparency and increase consistency in appeal decisions."[27]
- [29]In the period between the passage of the ESOLA in 2011 and the transfer of the public service appeals jurisdiction by the PSOLA in 2020, section 564 of the Industrial Relations Act does not appear to have applied to any appeals of deemed decisions that have not had their own appeal period provisions in the legislation under which they have been taken to have been made.[28] It has only been since the passage of the PSOLA in 2020 that the issue of the application of section 564 of the Industrial Relations Act to appeals of deemed decisions has become significant. In that context, other decisions of this Commission have found that the limitation period, for an appeal in relation to a deemed decision, runs from the day on which a deemed decision is taken to have been made.[29] I agree, for the following reasons.
- [30]Prior to the transfer of the public service appeals jurisdiction in 2020, the then Public Service Act provided for time periods for appeals relevantly as follows:
197 Starting an appeal
…
(2) An appeal notice must be given and actually received by the industrial registrar before 5:00p.m. on the day that is 21 days after—
(a) for a promotion decision—the day the decision is publicly notified; or
(b) otherwise—the day the appellant received notice of the decision appealed against.
…
- [31]The PSOLA added the current paragraph (c) of section 564(3) of the Industrial Relations Act, relating to promotion decisions, but otherwise left section 564 materially unchanged.[30] As can be seen the language in section 564(3)(d) is slightly different to the language in former section 197(2)(b) of the Public Service Act, which is more akin to the language in the Appeals Directive.
- [32]How is a deemed decision "given" for the purposes of section 564(3)(d) of the Industrial Relations Act? When the decision is taken to have been made, knowledge of the decision must be imputed to the person who made the request that led to the decision. Similarly, how is "notice" of a deemed decision given as contemplated in the Appeals Directive? Again, the requestor must be taken to be on notice of the deemed decision when it is taken to have been made.
- [33]Accordingly, despite the different language as between the Industrial Relations Act and the Appeals Directive, the effect of the two is the same insofar as they relate to deemed decisions. For that reason, it is unnecessary for me to consider whether there is any inconsistency between the two more broadly, and, if so, what effect sections 143 (relating to the Appeals Directive) and 228 (relating to inconsistency between directives and Acts or subordinate legislation) of the Public Sector Act might have.
- [34]For the foregoing reasons I find the limitation period commenced on the day the decision was taken to have been made, 19 April 2024, and expired 21 days after that day, on 10 May 2024.
- [35]As indicated above the Appeal Notice was filed on 17 May 2024. Therefore, it was filed 7 days out of time.
Extension of time
- [36]I have decided to extend time for commencing the appeal by filing the Appeal Notice for the following reasons. In doing so I have had regard to principles commonly considered in relation to the exercise of the discretion to extend time.[31]
- [37]The Department:
- has properly, in the circumstances, not objected to the appeal being commenced out of time;[32]
- has proceeded on the basis that the appeal will be determined, by making submissions on the merits, and there is no prejudice to it in defending the proceedings;[33]
- has all of the resources of the state and has been able to comply with the directions issued in this appeal;
- by erroneously issuing the purported decision letter after a deemed decision had already been taken to have been made, engaged in conduct that had a tendency to confuse the Applicant in relation to the appeal process;
- by including in the purported decision letter, received by Dr Sandoval on 26 April, advice that Dr Sandoval was " eligible to appeal this decision within 21 days,"[34] provided incorrect information that had a tendency to confuse.
- [38]I make no finding that Mr Hall or the Department in any way intended to mislead or deliberately misled Dr Sandoval.
- [39]The delay in filing was short and there was a reasonable explanation for it. Dr Sandoval filed the Appeal Notice on 17 May 2024, which was within 21 days of receiving the purported decision letter. It is clear from the Appeal Notice that she believed the purported decision letter was the relevant decision for the purposes of the appeal. Given the fact and content of the purported decision letter this is unsurprising and understandable.
- [40]The prospects of success of the matter do not favour extension. However, given the submissions have already been filed and this matter is being decided on the papers, and given the considerations set out in the preceding paragraphs, I consider that as a matter of fairness an extension should be granted.
- [41]Accordingly, I exercise the discretion to allow the appeal to be started within a longer time; specifically, I allow the appeal to have been started by the Appeal Notice filed on 17 May 2024.
- [42]Having dealt with those preliminary issues I now turn to the substantive matter.
The Appeal
- [43]The Appeal Notice sets out the grounds for the appeal in Schedule 1. Those grounds go to:[35]
- Dr Sandoval's suitability for the role of PO3 professional officer, and her skills and expertise in Entomology;
- the need for such skills in the Market Access Team;
- the existing external funding for a PO3 Entomologist, running until 30 November 2023;
- a previous attempt to have Dr Sandoval's substantive role reclassified from TO3 to PO3;
- the length of time undertaking higher duties at PO3 and the significant number of extensions (eight) in that regard;
- whether Dr Sandoval, notwithstanding she is now back in her substantive TO3 role, nonetheless has the same roles and responsibilities as a PO3, such as being responsible for planning and conducting components of research projects and designing the experimental methods;
- the benefits the Department has derived from Dr Sandoval's contributions to research;
- Dr Sandoval's publication history, receipt of requests to give talks, and repute as an Entomologist working in the Department; and
- fairness and benefit to both parties.
- [44]Pursuant to directions made on 17 May 2024 and 5 June 2024, the parties filed submissions. Dr Sandoval did not file submissions in reply.
- [45]Neither party filed any application for leave to make oral submissions or further written submissions as contemplated by the Further Directions Order of 5 June 2024, and accordingly this matter has been determined on the papers.[36]
Legislative framework
Request to be employed at higher classification level
- [46]A public sector employee who has been acting at, or seconded to, a higher classification level for a continuous period of at least a year may ask to be employed in the position at the higher classification level on a permanent basis.[37] The term "continuous period" is as defined in a directive.[38]
- [47]
- [48]
- [49]If the requirement for suitability is met, the chief executive can then decide the request, and in doing so must have regard to:[44]
- the genuine operational requirements of the relevant public sector entity, in this case the Department;[45] and
- the reasons for each decision previously made "or taken to have been made"[46] under section 120 of the Act in relation to the employee, during the continuous period of acting at or secondment to the higher classification level.
- [50]Pursuant to Directive 03/23, when making a decision in consideration of these factors, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.[47]
- [51]As stated above, if the chief executive fails to make the decision in the required time a decision is taken to have been made.[48]
Public Sector Act appeal rights
- [52]An appeal may be brought against a conversion decision.[49] A conversion decision includes a decision under section 120 of the Public Sector Act 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, as defined for the employee in a directive made under section 120(7), of at least two years.[50] An appeal does not lie in relation to such a decision if the employee has been acting at, or seconded to, the higher classification level for less than two years.[51]
- [53]Dr Sandoval's standing to bring this appeal is not in dispute as between the parties in this matter. The public sector employee who is the subject of a conversion decision has standing to appeal it.[52]
Industrial Relations Act
- [54]In proceedings under Chapter 11 of the Industrial Relations Act, the Commission is not bound by the rules of evidence, may inform itself in the way it considers appropriate, and is to be guided by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately concerned and the community as a whole.
- [55]Section 562B of the Industrial Relations Act provides that the Commission must decide a public service appeal by reviewing the decision appealed against. The Commission is not undertaking a fresh hearing on the merits. In determining this appeal, the Commission is to decide whether the decision appealed against was fair and reasonable.
- [56]Section 562C of the Industrial Relations Act prescribes the types of orders that the Commission can make. In deciding this appeal, the Commission may either confirm the decision appealed against, return it to the original decision maker, or substitute another decision.
Submissions
- [57]Dr Sandoval's submissions go to the higher duties she has undertaken, her suitability, and genuine operational requirements. She says there is a continuing need for another PO3 Professional Officer within the Market Access Team and provides submissions in that regard.
- [58]The Department's submissions also go to the higher duties, acknowledge the error in sending the purported decision letter, canvass the review requirements under the Public Sector Act, and confirm Dr Sandoval was eligible to request a review under section 120 and met the suitability requirement in that section. They refer to a previous higher duties classification review decision of 22 December 2022. The Department submits that having regard to the Department's genuine operational requirements the appeal should not be allowed.
Consideration
- [59]
- [60]Deemed decisions are not inherently unfair or unreasonable.[55]
Eligibility to have made the request
- [61]As stated above Dr Sandoval's standing to bring this appeal is not in dispute between the parties. However, before turning to issue of whether the deemed decision the subject of this appeal was fair and reasonable it is useful say something about her eligibility to have made the request that gave rise to the deemed the decision.
- [62]By operation of section 120(1) of the Public Sector Act:
- a public sector employee who "has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year" is eligible to make a request under that section; and
- such a person can ask to be employed "in the position at the higher classification level on a permanent basis."[56]
- [63]It is immediately apparent that while the eligibility requirement turns on whether someone has been, relevantly, acting at a higher classification, the request itself is for employment in a particular position – "the position" – at the higher classification.
- [64]As required by sub-section 120(8) of the Public Sector Act, Directive 03/23 defines "continuous period" section 120 relevantly as follows:[57]
8. Meaning of continuous period
8.1 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 public sector entity.
8.2 Additionally, 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.
…
(emphasis added)
- [65]Some insight into the Public Sector Commission's approach to this language may be useful though not, of course, binding. Such insight can be gleaned from the guidance material the Public Sector Commission has published in support of Directive 03/23, including its Frequently Asked Questions document[58] which relevantly provides:
What is the same role? Does it mean the same position number? Can it be the same role at different classification levels?
Same role is not defined in the directive, and it is intended that the ordinary meaning of the term applies.
Determining an employee’s eligibility to make a request to be employed in the position at the higher classification level based only on their position number should be treated with caution. For example, an employee may have performed the same role but have been allocated against different position numbers.
However, in conducting a review, the public sector entity is only required to determine whether a person should be permanently employed at the higher classification level in the position held at the time of requesting the review (as identified by the title and classification and the position number). There is no requirement or expectation for a public sector entity to identify similar positions to the role the employee is engaged in at the time of the review.
(emphasis added)
- [66]Taking into account the Public Sector Act and Directive 03/23, higher duties can count towards the eligibility requirement in section 120(1):
- whether or not higher duties is attached to a specific position at the higher classification; and
- whether or not the higher duties period has been attached to the same specific position consistently, provided the higher duties are undertaken in the same role.
- [67]Examples where higher duties might not be attached to a specific position could include higher duties for urgent increases in workload, or higher duties for specific projects, as was the case at the time Dr Sandoval made her request.
- [68]In this case the higher duties work was undertaken consistently in the same role, Plant Pathologist, but Dr Sandoval undertook that role while in two different positions – initially the one she was backfilling, PN 76006605, and then her substantive position from which she was effectively acting upwards, PN 76020528.
- [69]The use of the present perfect tense, in the formulation "has been acting at, or seconded to" together with the reference to "for at least 1 year" likely means that the eligibility requirement refers to a situation that began in the past and continues to the moment of making the request contemplated in section 120 of the Public Service Act.[59]
- [70]It is common ground that Dr Sandoval was undertaking higher duties at the time of her request. The Respondent says Dr Sandoval was:
- [71]Because it was working in the same role, not a particular position, at the higher classification that was required for the purposes of eligibility to make the request, Dr Sandoval was eligible to make it. However, a person in her situation runs into immediate difficulty if they are undertaking higher duties without that higher duties being attributed to a specific position (with a title, classification, and position number) at the higher classification level.
"The position"
- [72]Section 120 allows an employee to request to be appointed to "the position" after a period of higher duties. It relevantly provides:
120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment
(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, …
…
(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.
- [73]What is "the position" in this matter? The Respondent makes the following submission:[63]
The power afforded to the Department and the Commission to permanently appoint the appellant is confined to the precise position into which she had been placed at the time of review. At the time of the Appellant's review, the Appellant was in her substantive position – TO3 PN 6020528 – which is already held by the Appellant.
(references omitted)
- [74]The use of the definite article "the" in relation to "the position" in subsection 120(1) of the Public Sector Act indicates that that provision does not contemplate appointment to an equivalent position, or the creation of a new position.
- [75]What is meant by "position"? Neither "role" nor "position" is defined in the Public Sector Act or in the Acts Interpretation Act 1954 (Qld).[64] The terms "position" and "role" are both used in sections 120 and 121 of the Public Sector Act. Section 114, which is in the previous division of the same part, Chapter 3, Part 9, refers to conversion from temporary to permanent where, relevantly, "there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same as the employee’s role." Section 177 of the Public Sector Act, which is in a different Chapter,[65] draws a clear distinction between "position" and "role."
- [76]As part of the 2020 public sector reforms the PSOLA amended the former Public Service Act to add a new section 149C, which was the predecessor provision of the current section 120 of the Public Sector Act. Section 149C allowed an employee to "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."[66] As can be appreciated there was a change in language as between the now-repealed section 149C of the Public Service Act and section 120 of the Public Sector Act.
- [77]Why did the language change and what is the significance? The explanatory notes for the Public Sector Bill 2022 state:[67]
The chief executive may only decide to employ the employee in the position at the higher classification level on a permanent basis if they consider the employee is suitable to perform the role. It is intended that the chief executive only consider the employee for permanent employment in the role in which the employee is acting in or seconded to at the time the request is made. It is not intended that the chief executive be required to consider other similar roles.
The meaning of “suitable”, in relation to an employee performing a role, has the meaning given under a directive. It is anticipated that the directive may include considerations relating to unresolved work issues when determining whether a person is suitable to perform a role.
The purpose of this clause is to encourage employment on a permanent basis where it is viable and appropriate and to facilitate a chief executive permanently employing an employee in the higher classification level role they are acting in or seconded to, without the advertising requirements referred to in the directive relating to recruitment and selection.
(emphasis added)
- [78]Having regard to the guidance material excerpted above,[68] is clear that the Public Service Commission considers the concepts of 'position' and 'role' to be distinct from each other. It also considers the question under review to be whether the person should be appointed to the position (identified by title, classification, and position number) they hold when they make the request.
- [79]What conclusions can be made about this language having considered the foregoing and the usual approach to statutory construction?
- [80]In the absence of definitions these words should take their meaning from the context in which they appear.
- [81]In context the reference to "the position" is a reference to the position, as identified by the title, classification, and position number, in which the employee was acting or to which they were seconded.
- [82]On the material provided by the Respondent it is clear the Appellant was working in the same role, however described,[69] from June 2021 to the end of March 2024. For most of that period her work in that role was attributed to a particular position number, PN 76006605, even when the substantive holder of that position number was working in it full time; for the last three months of the period, though she was continuing to relieve in the role, there was no specific PO3 position number provided to her.
- [83]Though higher duties work that is not attributed to a specific position at the higher classification level may be able to be recognised as part of the "continuous period" referred to in section 120,[70] it would ordinarily be the case that there is no position to which a person undertaking such higher duties can be appointed pursuant to that section.
- [84]It is possible, without deciding, to conceive of exceptions, for example where some administrative error prevents the proper attribution of higher duties to a particular position, or possibly where the Department has already decided to create a new position that is, for all intents and purposes, really a formalisation of the job that the employee has been undertaking on an ad hoc basis through the performance of higher duties. But in the preponderance of cases where the higher duties work lacks attribution to any particular position at the higher classification, eligibility to make the request will be of little practical utility to the requestor.
- [85]In this case the Respondent has correctly pointed out the difficulty that Dr Sandoval faces, which is that there is no position which can be identified as "the position" for the purposes of section 120. At the time of her request, in March 2024, she was no longer acting in the specific PO3 position she had backfilled from June 2021; that position's substantive incumbent had returned. The higher duties, as at March 2024, was not, on the material before me, attached to a particular PO3 position.
- [86]On that basis the deemed decision was fair and reasonable, and the appeal must be dismissed.
A broader reading?
- [87]If I am wrong in that regard, and "the position" for the purposes of section 120 has a broader meaning, then the question arises as to whether the Department should have appointed Dr Sandoval at the higher classification.
- [88]In that case I would nonetheless find the deemed decision to have been fair and reasonable. I will state my reasons briefly.
Suitability
- [89]It is common ground as between the parties that Dr Sandoval meets the requirement of suitability.
Previous decisions
- [90]The Respondent refers to a "higher duties classification review decision" of December 2022. I have taken this as meaning that was a decision made under section 120 of the Public Sector Act. This decision favours refusal of the request because on the material there is no indication of any change in the relevant circumstances, namely the resumption of full-time work by the incumbent for whom Dr Sandoval was previously backfilling.
Genuine operational requirements
- [91]As to genuine operational requirements, the decision of His Honour Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[71] remains apposite notwithstanding the enactment of the Public Sector Act,[72] as the Department's chief executive is responsible for "managing the department in a way that promotes the effective, efficient and appropriate management of public resources while ensuring appropriate accountability for ethical standards and effective management and leadership of human resources."[73] Accordingly consideration of 'genuine operational requirements:'[74]
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.'
- [92]The Respondent relying on Hansen v State of Queensland (Department of Education),[75] submits the cessation of the relieving arrangement at the end of March 2024 supports the proposition that there was no ongoing requirement for Dr Sandoval to be employed at the higher level.
- [93]Dr Sandoval submits the role of Entomologist (PO3) has been fully externally funded for the next eight years. There is nothing on the material to indicate the Department has decided to create a position in reliance on that funding, and/or that such position is vacant.
- [94]Dr Sandoval's most recent period of relieving related to a specific project, and the preceding period related to urgent increases in workload. Neither circumstance indicates a genuine occupational requirement for an ongoing PO3 Plant Pathologist.
- [95]Dr Sandoval considers a new PO3 Entomologist position should be created to which she should be appointed, or that her existing TO3 position should be reclassified having regard to the duties she is undertaking. Whatever might be the arguments for, and merits of, these propositions, they fall outside the scope of this appeal.
Conclusion
- [96]The deemed decision was fair and reasonable and will be confirmed accordingly.
Order
- [97]I order as follows.
It is ordered that:
1. Pursuant to section 564(2) of the Industrial Relations Act 2016 (Qld) the period for starting the appeal is extended to 17 May 2024.
2. Pursuant to section 562C(1)(a) of the Industrial Relations Act 2016 (Qld) the decision appealed against is confirmed.
Footnotes
[1] Appeal Notice, Schedule 1, [3].
[2] Appeal Notice, Schedule 1, [3].
[3] Appeal Notice, Annexure, p 1, [4].
[4] Ibid.
[5] Respondent's submissions filed 19 June 2024, [4]. See also Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements," in which the position is referred to as "Entomologist/Plant Pathologist."
[6] Respondent's submissions filed 19 June 2024, [4].
[7] Respondent's submissions filed 19 June 2024, [8].
[8] Respondent's submissions filed 19 June 2024, [5].
[9] Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements."
[10] Respondent's submissions filed 19 June 2024, [6].
[11] Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements."
[12] Ibid.
[13] Ibid.
[14] Appeal Notice, section 3; Appeal notice, Schedule 1, [3] (though Schedule 1 refers to "May" in place of "March," context indicates the latter); Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements."
[15] Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements" (though the submission refers to 1 April 2022, context indicates 2024).
[16] Respondent's submissions filed 19 June 2024, [7].
[17] Public Sector Act 2022 s 120.
[18] Respondent's submissions filed 19 June 2024, [9].
[19] Appeal Notice, Annexure.
[20] Appeal Notice, section 5.
[21] Directive 03/23, cl 11.2.
[22] Directive 03/23, cl 11.3(b).
[23] Electrical Safety and Other Legislation Amendment Act 2011 (Qld) s 42.
[24] Explanatory Notes, Electrical Safety and Other Legislation Amendment Bill 2011 (Qld) p 4.
[25] Ibid, pp 30-31.
[26] Bridgman, P. (2019). "A fair and responsive public service for all: Independent review of Queensland's state employment laws." Report to the Honourable Annastacia Palaszczuk MP, Premier of Queensland.
[27] Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld) p 2.
[28] Though certain deemed decisions made by operation of the Work Health and Safety Act 2011 (Qld) could be reviewed by the Commission, that Act made its own provision for the limitation period for such reviews in s 229B.
[29] Plant v State of Queensland (Department of Education) [2021] QIRC 139 (Merrell DP) [4]; Hegazy v State of Queensland (Department of Education) [2023] QIRC 16 (Dwyer IC) [52]; Chiotakis v Queensland Museum Network [2023] QIRC 34 (McLennan IC) [27]; Murray v State of Queensland (Queensland Health) [2023] QIRC 194 (McLennan IC) [38]; Wilcox v State of Queensland (Queensland Health) [2024] QIRC 27 (McLennan IC) [17]; Rackley v State of Queensland (Queensland Police Service) [2024] QIRC 80 (Pratt IC) [3].
[30] Public Service & Other Legislation Amendment Act 2020 s 12.
[31] See for example Hubbard v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 152 per Pidgeon C at [15]-[16] citing Hunter Valley Developments Pty Ltd v Cohen (1994) 3 FCR 344 (Wilcox J), Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 299-300 (Marshall J), Breust v Qantas Airways Ltd [1995] 149 QGIG 777 (Chief Commissioner Hall as His Honour then was), and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 (McHugh J).
[32] Plant v State of Queensland (Department of Education) [2021] QIRC 139 (Merrell DP) [4].
[33] Murphy v State of Queensland (Queensland Health) [2021] QIRC 213 (Merrell DP) [5].
[34] Appeal Notice, Annexure, p 3.
[35] Appeal Notice, Schedule 1.
[36] Industrial Relations Act 2016 s 539(c).
[37] Public Sector Act 2022 s 120(1).
[38] Public Sector Act 2022 s 120(8).
[39] Public Sector Act 2022 Chapter 6, Part 5; s 120(7).
[40] Public Sector Act 2022 s 221.
[41] Public Sector Act 2022 s 120.
[42] Public Sector Act 2022 s 120(3).
[43] Public Sector Act 2022 s 120(8).
[44] Public Sector Act 2022 s 120(4).
[45] Public Sector Act 2022 ss 8 and 9.
[46] To the extent this second consideration applies to deemed decisions there may be practical difficulties with it, because reasons are not required for deemed decisions. However, that issue does not arise in this matter.
[47] Directive 03/23, cl 7.
[48] Public Sector Act 2022 s 120(6).
[49] Public Sector Act 2022 s 131(1)(a).
[50] Public Sector Act 2022 s 129.
[51] Public Sector Act 2022 s 132(1)(k).
[52] Public Sector Act 2022 s 133(a).
[53] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 (Merrell DP) [25].
[54] Ibid.
[55] Wilcox v State of Queensland (Queensland Health) [2024] QIRC 027 (McLennan IC) [54].
[56] Public Sector Act 2022 s 120(1).
[57] Directive 03/23, cl 8.
[58] Public Sector Commission, "FAQs – review of acting or secondment at higher classification level," effective 1 March 2023, p 2.
[59] Oxford Dictionary of English Grammar (2nd ed, 2014) 'present perfect'. This construction is consistent with the Public Service Commission's position that an employee is not eligible for review if they are not currently acting in, or seconded to, a higher classification level, stated in the Public Service Commission's "Acting or secondment at a higher classification – conversion checklist" p. 2.
[60] Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements."
[61] Respondent's submissions filed 19 June 2024, [14].
[62] Ibid.
[63] Respondent's submissions of 19 June 2024, [15], relying on Bode v State of Queensland (Queensland Health) [2022] QIRC 450 (McLennan IC).
[64] Though the Acts Interpretation Act 1954 defines "office" to include "position."
[65] Public Sector Act 2022 Chapter 5, Part 2.
[66] Public Service Act 2008 s 149C(3).
[67] Explanatory Notes, Public Sector Bill 2022 (Qld) p 48.
[68] Public Sector Commission, "FAQs – review of acting or secondment at higher classification level," effective 1 March 2023, p 2.
[69] Referred to as "Entomologist/Plant Pathologist" in Respondent's submissions filed 19 June 2024, Annexed table "Summary of Relieving Arrangements." Referred to as "Entomologist (Plant Pathologist)" in Respondent's submissions of 19 June 2024, [4]. Referred to as "Entomologist" in Appellant's submissions filed 31 May 2024, [3]. Referred to as "Plant Pathologist" in Appeal Notice, Annexure, p 1.
[70] Public Sector Act 2022 s 120; Directive 03/23, cl 8.
[71] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Merrell DP).
[72] and has been applied in relation to appeals of decisions under that Act, see for example Murray v State of Queensland (Queensland Health) [2023] QIRC 194 (McLennan IC) [129].
[73] Public Sector Act 2022 s 177(1)(b).
[74] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Merrell DP) [40].
[75] Hansen v State of Queensland (Department of Education) [2021] QIRC 72 (Dwyer IC).