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Murphy v State of Queensland (Queensland Ambulance Service)[2024] QIRC 211

Murphy v State of Queensland (Queensland Ambulance Service)[2024] QIRC 211

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murphy v State of Queensland (Queensland Ambulance Service) [2024] QIRC 211

PARTIES:

Murphy, Kathleen

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2023/231

PROCEEDING:

Public Sector Appeal – Conversion Decision

DELIVERED ON:

29 August 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant submitted a request under s 120 of the Public Sector Act 2022 to be permanently appointed to the higher classification level – where the appellant was not permanently appointed to the higher classification level due to genuine operational requirements of the respondent – where the appellant submitted a request for an additional review on the basis that the position the appellant was acting in had become vacant – where the position the appellant had been acting in had not become vacant – where the additional request for conversion was unsuccessful as she did not meet the eligibility criteria for an additional review to be undertaken – where the appeal is misconceived

LEGISLATION AND INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 562A

Public Sector Act 2022 (Qld) s 120, s 121, s 129, s 131

Directive 03/23: Review of acting or secondment at higher classification level cl 6, cl 8

CASES:

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

Reasons for Decision

  1. [1]
    Ms Kathleen Murphy (the Appellant) has been employed by the Queensland Ambulance Service (the Respondent) since 25 August 2015. Her substantive position is as an Advanced Care Paramedic.
  2. [2]
    The Appellant has been engaged in numerous separate higher duties arrangements across different periods of time. The Appellant was first engaged in higher duties for two weeks from 18 January 2021 and then periodically either returned to her substantive position or engaged in other higher duties.
  3. [3]
    On 12 May 2023, the Appellant submitted a request under s 120 of the Public Sector Act 2022 (Qld) (the PS Act), to be permanently appointed at the higher classification level.
  4. [4]
    On 28 June 2023, Mr David Hill, A/Executive Director, Workforce of the Respondent, wrote to the Appellant advising that her request for conversion at the higher classification level was unsuccessful due to the genuine operational requirements of the Respondent.
  5. [5]
    On 10 October 2023, the Appellant then made an additional request for review pursuant to s 121(2) of the PS Act.
  6. [6]
    On 15 November 2023, the Appellant was advised by Mr Hill that the additional request for conversion was unsuccessful as she did not meet the eligibility criteria for an additional review to be undertaken under s 121(1)(c) of the PS Act, as the position she had been acting in had not become vacant (the Decision).
  7. [7]
    On 1 December 2023, the Appellant filed an appeal of the Decision.

Background

  1. [8]
    The Appellant initially requested appointment to the higher classification level, pursuant to s 120(1) of the PS Act and cl 6 of Directive 03/23 Review of acting or secondment at higher classification level (the Directive 03/23).
  2. [9]
    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 PS Act and in Directive 03/23.
  3. [10]
    On 28 June 2023, the Appellant was advised that her request for conversion at the higher classification level was unsuccessful. In her submissions, the Appellant advised "I was unable to appeal the initial decision as I was 1 week short of the 2 years acting in higher duties required".[1]
  4. [11]
    The Appellant then made an additional request under s 121(2) of the PS Act. An employee is eligible to make a request under s 121(2) of the PS Act, if (emphasis added):

121 Employee's right to make additional request for review

  1. (1)
    This section applies in relation to a public sector employee mentioned in section 120(1) if—
  1. (a)
    both of the following apply—
  1. (i)
    the employee's chief executive has decided under section 120 not to employ the employee in the position at the higher classification level on a permanent basis because the chief executive considered the employee was not suitable to perform the role;
  1. (ii)
    the employee considers the employee may have become suitable to perform the role; or
  1. (b)
    both of the following apply—
  1. (i)
    the employee's chief executive is taken, under section 120(6), to have refused the employee's request to be employed in the position at the higher classification level on a permanent basis;
  1. (ii)
    the employee has not appealed against the decision under section 130; or
  1. (c)
    the position in which the employee is acting, or to which the employee is seconded, at the higher classification level becomes vacant.
  1. (2)
    The public sector employee may ask the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis.
  1. [12]
    In the Decision, the Appellant was advised that her additional request for review was unsuccessful as she was not eligible for an additional review to be undertaken. This was because:

I note that in your request for an additional review, you have sighted that the position you are acting in has become substantively vacant. However, the QAS records indicate that the position you are acting against is not a genuine or permanent vacancy and continues to be only temporary in nature at this time. This is because an existing employee already has permanent employment to this position and is absent from the role whilst on leave. This employee has the right to return to this position on a permanent basis at the end of their temporary absence and the QAS reasonably expects that this permanent employee will return to this position at the end of their leave.

Jurisdiction

Respondent's submissions

  1. [13]
    The Respondent has submitted that I ought to dismiss the appeal as the Decision is not an appealable decision under s 131 of the PS Act as:
  1. Section 121(1) of the PS Act was not satisfied and as such, the Appellant was not eligible to make a request under s 121(2) of the PS Act. The Respondent submits that s 121(1)(a)-(b) of the PS Act did not apply to the Appellant's circumstances.
  2. Additionally, the Decision is not an appealable conversion under s 131 of the PS Act as defined under s 129(e) of the PS Act, as the Appellant has not acted at the higher classification level for a continuous period of at least 2 years.
  1. [14]
    In relation to the first ground as set out in [13](a), the Appellant submitted an additional request for review under the PS Act and indicated at point 13 of her request that the type of additional request she was making, was one "within 3 months of the position becoming substantively vacant".[2] However, the position the Appellant was filling was still substantively held by an employee who was accessing worker's compensation. As such, the position was not vacant, nor had it at any point been vacated by the incumbent since the Appellant commenced duties in the position in September 2022.
  2. [15]
    The Respondent submits that the Appellant was not eligible to make an additional request under s 121(2) of the PS Act and therefore, the Decision of 15 November 2023 is not an appealable conversion decision.
  3. [16]
    In relation to the second ground set out in [13](b), the Respondent submitted that the Appellant had not been acting in the position for "a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years", as required under s 129(e) of the PS Act. 
  4. [17]
    The Appellant had been undertaking higher duties in "position number 747353" since 12 September 2022.
  5. [18]
    They submit that the Appellant had not been employed in the same role, in the same public sector entity, for the requisite period of two years. In the two year period prior to the Appellant requesting a review and filing her appeal, the Appellant occupied a number of different roles including an Officer in Charge role in addition to the Clinical Support Officer role.
  6. [19]
    The Respondent submits that pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal should not be heard on the basis that it is misconceived.

Appellant's submissions

  1. [20]
    In response to the objection raised at [13](a), the Appellant submitted that she personally knows the officer whose pay number she is covering and that she has knowledge that "he is using his leave as pre-retirement and has no intention of returning".[3]
  2. [21]
    Further, she submits that:

QAS continue to state that because "position number 747353" is not substantively vacant that my request for review should not be allowed. I cover this in my initial submission (point 7) but will revisit it here. This "position number" is not something that I or any other CSO is familiar with, it is not something that defines our role or day to day operational duties. It does not indicate a pay level and does not indicate a clinical or operational level. I can only assume it relates solely to HR requirements, and as such bares no influence on the role of a CSO. QAS have stated in their submission that they differentiate between CSO positions, however, this is not the case. As I mention in my initial submission, the 10 CSO positions in Metro South are INDENTICAL. As a service that operates 365 days a year, they need to be. Every CSO needs to be able to perform the same duties on any given day. There is no differentiation between the 10 positions. They are completely interchangeable, meaning CSO 10 can swap to CSO 1 at any given time with absolutely no disruption to operational duties. Throughout my time acting in the CSO role, neither my role nor responsibilities have changed depending on the "position number" that I was occupying.[4]

  1. [22]
    In response to the Respondent's jurisdictional objection at [13](b), the Appellant submitted that she has been "acting in the same higher classification level since the 25/10/2021."[5] The majority of this time she was in the role of Clinical Support Officer (95 weeks), however, she undertook short secondments to the roles of Officer in Charge (1 week) and Operations Coordinator (9 weeks).[6]
  2. [23]
    The Appellant submitted that cl 8.4 of Directive 03/23 accepts secondments to other roles where the intention is to return to the same role following the secondment, when considering whether the employee has been acting at the higher classification level for a continuous period.

Consideration of jurisdictional objections

Was the Appellant eligible to make a request under s 121(2) of the PS Act?

  1. [24]
    The Decision appealed against is the decision of Mr Hill dated 15 November 2023, which informed the Appellant that she does not meet the minimum eligibility requirements for an additional review to be undertaken under the provisions of the PS Act. This is because an employee may submit a request for an additional review if:
  • The authorised delegate determined the employee was considered not suitable for the role. In this instance, the employee may submit an additional request where they consider they may have become suitable to perform the role.[7]
  • Where a deemed decision is made, in which case the employee may submit an additional request for review if the employee has not submitted an appeal against the deemed decision.[8] 
  • Where the position the employee is acting or is seconded to at the higher classification becomes vacant.[9]
  1. [25]
    The Appellant made her request for an additional review under s 121(1)(c) of the PS Act. This means that she was requesting a review within three months of the position she was acting in at the higher classification level becoming vacant.

What is 'the position'?

  1. [26]
    The Appellant submitted that since her initial request for review under s 120 of the PS Act, "a new position has become vacant within the CSO group. Subsequently, I applied for conversion under 121, 1 (c) of the PSA".[10] The Appellant does not consider the "position number" being vacant to be relevant to the Respondent's considerations as "it is not something that defines our role or day to day operational duties. It does not indicate a pay level and does not indicate a clinical or operational level".[11]
  2. [27]
    Section 120(1) of the PS Act provides that 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 may request conversion to the position at the higher classification level on a permanent basis. Section 120(3) provides that the chief executive may decide to employ the employee in the position at the higher classification level. The power afforded to the Respondent to permanently appoint the Appellant is confined to the position into which she was placed at the time of the review. That can be contrasted with the entitlement to request a review under s 120, which merely requires that, amongst other things, a person be engaged in a higher classification level for a certain 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.
  3. [28]
    I believe my reasoning in Holcombe v State of Queensland (Department of Housing and Public Works)[12] pertaining to the now repealed s 149C of the Public Service Act 2008 (Qld), is apposite here:

[53]If 'the position' were merely 'AO4 Finance Officer' as contended, it would require the department to consider Mrs Holcombe against every position with the same title and classification. There would be no inherent restraint to only consider positions within the same workplace. It would require the department to consider every such position, and then consider whether there are operational reasons presented in every position.

[54]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.

[55]By way of contrast, a broader ambit of the type proposed by Mrs Holcombe is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.

[56]The language of s 149C is narrower: the employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.

[57]The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad-ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They did not do so.

[58]The Directive, in setting out its purpose at cl 1.2(b), provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of the Directive as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Cl 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for the Directive. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by the Directive. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within the PS Act at s 149C. That same reasoning applies to a number of similar clauses in the Directive, which use terms such as 'role', 'a position' and the like.

[59]It is also true that the decision letter does not specify the position number, but rather refers to the 'role' and 'position' as being AO4, Finance Officer within Advisory Services, QSS. No doubt, that is the cause of some understandable confusion on the part of Mrs Holcombe. Yet, it does not change the fundamental construct established in s 149C and supplemented by the Directive, that provides for employees to be reviewed against and appointed to 'the position'. Neither, for reasons further in this decision, does that unfortunate use of terminology undermine the fairness and reasonability of the decision itself.

[60]To consider the position as merely AO4 Finance Officer, and afford no relevance to the position number, would be to strip 'the position' of a key identifying and distinguishing feature. Having regard to s 149C and the Directive, that would create an uncontemplated broadening of the ambit of the review.

[61]To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review.

[62]In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review. That is identified not only by the title and classification, but also by the position number.

[63]It follows that the position the subject of the review was AO4 Finance Officer, position number 76019589.

  1. [29]
    Having regard to the considerations above of the term 'the position' in the context of s 120 of the PS Act, it can be observed that s 121(1)(c) of the PS Act is similarly drafted so that an employee may request an additional review in circumstances where (emphasis added) "the position in which the employee is acting, or to which the employee is seconded, at the higher classification level becomes vacant". It is not relevant if other positions are vacant within the QAS, it must be "the position" that the Appellant is acting in, that is "position number 747353".

Is 'the position' vacant?

  1. [30]
    The Respondent submitted that an employee has permanent employment in the position number the Appellant is acting in, that is "position number 747353". While the Appellant is of the view that the substantive incumbent is not returning to the role, in order to be eligible for an additional review, the PS Act clearly states that such can be requested in circumstances where "the position" in which the employee is acting at the higher classification level "becomes vacant".
  2. [31]
    The position is not vacant because another employee owns that position. If circumstances arose where the position holder requested to return to that position, they could.
  3. [32]
    Therefore, the Appellant did not have a right to request an additional review in the first place. The Decision letter that is subject of the appeal is simply a letter advising the Appellant she is not eligible for an additional review to be undertaken, as the position she is acting in is not vacant. In these circumstances, I have determined that the appeal should not be heard on the basis that it is misconceived.

Had the Appellant acted at the higher classification level for a continuous period of at least 2 years?

  1. [33]
    While I have already determined that the Appeal is misconceived as the Appellant did not have a right to review in the first place, I will briefly address her submissions in relation to her continuous employment.
  2. [34]
    The Appellant submitted that she has been "acting in the same higher classification level since 25/10/2021". She submitted that she has worked for a "variety of job roles including Officer in Charge, Clinical Deployment Supervisor, and Operations Coordinator".[13]
  3. [35]
    The PS Act provides that an appealable conversion decision means a decision:

129 Definitions for part:

In this part—

conversion decision means a decision—

…

  1. (e)
    under section 120 or 121 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 2 years.
  1. [36]
    In accordance with cl 8.1 of Directive 03/23, the continuous period is (emphasis added):

8.  Meaning of continuous period

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. [37]
    A "continuous period" is therefore defined as two years of the employee acting at the higher classification in the same role. The Appellant has had a variety of roles across the Department and had been engaged in a number of separate higher duty arrangements across different periods of time. The Appellant was first engaged in higher duties from 18 January 2021 and then had periodically returned to her substantive position or engaged in other higher duties. The Respondent submitted that the Appellant did not commence in the Clinical Support Officer she was acting in until 12 September 2022.[14] The Appellant submitted that she spent 95 weeks in the Clinical Support Officer role and undertook short secondments to the role of Officer in Charge (1 week) and Operations Coordinator (9 weeks).[15]
  2. [38]
    There seems to be some inconsistency between the Appellant and the Respondent's submissions with respect to the Appellant's start date of the Clinical Support Officer role, but nonetheless, the Appellant had not been acting at the higher classification in the same role for a continuous period of two years.
  3. [39]
    While I appreciate that the Directive 03/23 provides "it is at the discretion of the chief executive to determine what constitutes an authorised absence",[16] I do not believe it is necessary for me to consider that here, in circumstances where I have determined that the Appeal is misconceived.  

Conclusion

  1. [40]
    For the reasons I have given, the Appeal is misconceived and for that reason, I will not hear the Appellant's appeal.
  2. [41]
    I order accordingly.

Orders

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived.

Footnotes

[1] Appellant's submissions filed 20 December 2023, [5].

[2] Respondent's submissions filed 10 January 2024, Attachment 3, 5.

[3] Appellant's submissions filed 20 December 2023, [8].

[4] Appellant's submissions filed 17 January 2024, [5].

[5] Ibid [3].

[6] Ibid.

[7] Public Sector Act 2022 (Qld) s 121(1)(a).

[8] Ibid s 121(1)(b).

[9] Ibid s 121(1)(c).

[10] Appellant's submissions filed 20 December 2023, [5].

[11] Appellant's submissions filed 17 January 2024, [5].

[12] [2020] QIRC 195.

[13] Appellant's submissions filed 20 December 2023, [2].

[14] Respondent's submissions filed 10 January 2024, [14].

[15] Appellant's submissions filed 17 January 2024, [3].

[16] Directive 03/23 Review of acting or secondment at higher classification level, cl 8.4.

Close

Editorial Notes

  • Published Case Name:

    Murphy v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Murphy v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2024] QIRC 211

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    29 Aug 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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