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Wilcox v State of Queensland (Queensland Health)[2024] QIRC 27

Wilcox v State of Queensland (Queensland Health)[2024] QIRC 27

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wilcox v State of Queensland (Queensland Health) [2024] QIRC 027

PARTIES:

Wilcox, Robert

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/66

PROCEEDING:

Public Sector Appeal – Higher Classification

DELIVERED ON:

12 February 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Order:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed.
  1. The decision that Mr Wilcox not be converted to the higher classification position is set aside and another decision is substituted.
  1. Mr Wilcox be permanently appointed to the higher classification level of AO5.4, as a Data Manager and Analyst within the Rhematic Heart Disease Program (RHD Program).

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 whether a deemed decision is inherently unfair and unreasonable – consideration of 'genuine operational requirements' – whether the decision was fair and reasonable – where the decision was not fair and reasonable

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, s 319

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

CASES:

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

Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434

Reasons for Decision

Introduction

  1. [1]
    On 11 April 2023, Mr Robert Wilcox (the Appellant) filed an appeal against a 'deemed' decision of the Cairns and Hinterland Hospital and Health Service (CHHHS; the Department) not to appoint him to the higher classification level of AO5.4, as a Data Manager and Analyst (the higher classification position) within the Rhematic Heart Disease Program (RHD Program). 
  1. [2]
    Mr Wilcox was first engaged as a Data Officer with the RHD Program on 1 September 2011.  His substantive role is permanent full-time, at AO4 classification level.[1]
  1. [3]
    On 14 January 2019, Mr Wilcox commenced in the higher classification position.  Mr Wilcox submitted that his temporary contract has been extended 13 times[2] since then - and at time of filing this appeal, he had been working in the higher classification position for more than 4 years. 
  1. [4]
    The Public Service Act 2008 (Qld)[3] provisions enabled Mr Wilcox to request to be appointed to the higher classification role - and he did so on 23 February 2023.  In an email from CHHHS that same day, Mr Wilcox's conversion request was acknowledged.  It was explained to him that a decision needs be made within 28 days of such request - and "if we don't, a decision will be taken to have been made that you will not be permanently appointed to the role."
  1. [5]
    The 28 day period ended on 23 March 2023.  As CHHHS had not made a decision about Mr Wilcox's conversion request by that time, a decision not to permanently appoint Mr Wilcox to the higher classification was 'deemed' to have been made.  That deemed decision is the subject of this appeal.
  1. [6]
    On 28 March 2023, CHHHS emailed Mr Wilcox advising him of the fact of deemed decision to refuse his conversion request and setting out his appeal rights.

Jurisdiction

Decision against which an appeal may be made

  1. [7]
    On 23 February 2023, the Appellant requested to be permanently appointed to the higher classification level, pursuant to s 149C of the Public Service Act 2008 (Qld).
  1. [8]
    On 1 March 2023, the Public Service Act 2008 (Qld) was replaced with the Public Sector Act 2022 (the PS Act).
  1. [9]
    Under s 319 of the PS Act, as the request had not been decided under the Public Service Act 2008 (Qld), the request is taken to have been made under s 120(1) of the PS Act and the chief executive must decide the request under s 120 of the PS Act.  A new Directive was also issued, with respect to the provisions of the PS Act - Directive 03/23 Review of acting or secondment at higher classification level (Directive 03/23).
  1. [10]
    The chief executive did not make a decision about Mr Wilcox's request within 28 days, so s 120(6) of the PS Act applied.  A 'deemed' decision was taken to have been made to refuse the conversion request.
  1. [11]
    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. [12]
    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. [13]
    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. [14]
    Section 133 of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  The Appellant meets that requirement.
  1. [15]
    I am satisfied that the decision is able to be appealed.

Timeframe for appeal

  1. [16]
    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. [17]
    As the decision was given on 23 March 2023 and the Appeal Notice was filed on 11 April 2023, I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [18]
    Section 562B(2)(3) of the Industrial Relations Act 2016 (Qld) (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. [19]
    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. [20]
    The issue for my determination is whether the decision was fair and reasonable in the circumstances.[8]

What decisions can the Commission make?

  1. [21]
    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.

Submissions

  1. [22]
    In accordance with the Directions Order issued on 17 April 2023, the parties filed written submissions.
  1. [23]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Respondent's submissions

  1. [24]
    A deemed decision is taken to have been made, if there is 'no decision' on the conversion request within the required period.  It follows then that no reasons for refusing Mr Wilcox's conversion request were given to him at that time. 
  1. [25]
    In the course of this Appeal, the Respondent submitted that there are genuine operational requirements that prevented Mr Wilcox's permanent appointment to the higher classification position due to a proposed workplace restructure.
  1. [26]
    Further, the Respondent also stated that there is uncertainty around the scope and effect of the proposed restructure.[9]

Appellant's submissions

  1. [27]
    Mr Wilcox submitted the refusal of his conversion request was not fair and reasonable because:
  1. Chief executives are required to act in a way that is compatible with the main purpose of the PS Act and how the main purpose is achieved, including maximising employment security and permanency of employment: Clause 4.2 of the Directive.
  1. I am eligible for appointment having regard to the requirement of suitability under Clause 9 of the Directive, and
  1. I have completed four years in a position at the higher classification level and there are no genuine operational reasons to prevent employment at the higher classification level.[10]

Relevant provisions

  1. [28]
    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. [29]
    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.  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.  the end of 1 year of acting at, or being seconded to, the higher classification level; and
  1.  the end of each subsequent 1-year period.
  1.  The employee's chief executive must decide the request within the required period.
  1.  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.
  1.  In making the decision, the employee's chief executive must have regard to—
  1.  the genuine operational requirements of the public sector entity; and
  1.  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.  If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1.  the reasons for the decision; and
  1.  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
  1.  how many times the employee's acting arrangement or secondment has been extended; and
  1.  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.  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.
  1.  The commissioner must make a directive about employing an employee at a higher classification level under this section.
  1.  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.  the period stated in an industrial instrument within which the decision must               be made; or
  1.  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. [30]
    Further, s 131(1)(a) of the PS Act provides:

131 Decisions against which appeals may be made

  1.  An appeal may be made against the following decisions—
  1. a conversion decision;
  1. [31]
    Section 132(1)(k) of the PS Act provides (emphasis added):

132 Decisions against which appeals can not be made

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

…

(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;

  1. [32]
    In this case, the Appellant has worked in the higher classification position for more than 4 years, so is eligible to appeal the decision to refuse conversion.
  1. [33]
    Directive 03/23 relevantly provides:

4. Principles

4.1 Chief executives are responsible for making decisions under the provisions of chapter 3, part 9, division 2 of the Act.

4.2  Chief 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.

4.3 Under the Human Rights Act 2019, decision makers have an obligation to:

a. act and make decisions in a way that is compatible with human rights

b. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

4.4 Under 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.

4.5 Under 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.

4.6 In 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.

5. Interpretation of directions

5.1 The Act sets out employee entitlements and entity responsibilities under chapter 3 part 9, division 2 of the Act.

5.2 The Appendix identifies and summarises the relevant sections of the Act to assist public sector employees and decision makers in understanding the legislative framework.

5.3 A 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.

5.4 The directions:

a.  provide for the meaning of 'continuous period', as required under section 120(8) of the Act

b. provide for the meaning of 'suitable', as required under section 120(8) of the Act

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

d. should be read in conjunction with the relevant authorising provision/s of the Act.

5.5 The requirements set out in these directions are binding and must be followed.

6.Requests to employ a public sector employee at a higher classification level on a permanent basis

6.1 A 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.

6.2 Where a reasonable adjustment is required, the employee must make it clear in the request that they are making the request under these provisions.

6.3 An 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.

6.4 The 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. Decision-making

7.1  When 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.

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.

8.3  Authorised 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.

8.4  It 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.

9. Meaning of suitable

9.1 A public sector employee is to be considered suitable to perform the role where:

a. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and

b. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and

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.

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

10.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:

a. set out the findings on material questions of fact

b. refer to the evidence or other material on which those findings were based.

10.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

10.3 Where 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.

10.4 Where 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.

11. Deemed decisions

11.1 A 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.

11.2 A written notice is not required to be prepared to support a deemed decision.

11.3 However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

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

b. any relevant appeal right available to the employee.

11.4 Unless 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.

11.5 Chief 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.

12. Appeals

12.1 Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act.

…

14.  Transitional arrangements

14.1  Section 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. [34]
    Directive 03/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[11]
  1. [35]
    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.
  2. [36]
    The stated purpose of Directive 03/23 is (emphasis added):

1. Purpose

1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.

1.2 This 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.

1.3 This 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.

  1. [37]
    In deciding this appeal, I note the significance of the legislative provisions identified above.
  1. [38]
    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. [39]
    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. [40]
    The power afforded to the Department to permanently appoint the Appellant is confined to the position which he is performing at the time. 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. [41]
    In this particular case, there is no dispute between the parties that the Appellant was continuously engaged as an AO5.4 Data Manager and Analyst, RHD Program within CHHHS since 14 January 2019.  The position subject of the deemed decision to refuse Mr Wilcox's conversion request was 'Position number 32052443'.
  1. [42]
    Although my explanation in Holcombe v State of Queensland (Department of Housing and Public Works)[12] 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.[13]

  1. [43]
    In light of the above, the position subject of the review is that of AO5.4 Data Manager and Analyst, RHD Program (Position number 32052443),[14] within the Department.

Is a deemed decision inherently unfair and unreasonable?

  1. [44]
    Mr Wilcox argued that "The fact of a deemed decision in this case demonstrates that the Chief Executive did not adequately give consideration to the genuine operational requirements under s 120(4) of the PS Act."[15]
  1. [45]
    The Respondent submitted that "… the fact that no reasons were given in the deemed decision, does not, on its own,  mean that the decision was not fair and reasonable".[16] 
  1. [46]
    In my view, a 'deemed' decision is not inherently unfair and unreasonable because the PS Act and Directive contemplate a scenario in which the chief executive does not make the decision within the required period and makes alternative provision in those circumstances. 
  1. [47]
    Where a decision is made under a review pursuant to s 120(1)-(4) of the PS Act, the Department is required to comply with s 120(5), which provides that the employee be provided with a notice stating the reasons for the decision (amongst other matters).
  1. [48]
    However, s 120(6) of the PS Act and cl 11 of Directive 03/23 provides for a decision not to have been made with respect to a conversion.  That is, the employment continues according to the terms of the existing arrangement.
  1. [49]
    Section 120(6) of the PS Act provides:
  1.  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.
  1. [50]
    Clause 11 of Directive 03/23 provides:

11. Deemed decisions

11.1  A 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.

11.2 A written notice is not required to be prepared to support a deemed decision.

11.3 However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

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

b. any relevant appeal right available to the employee.

11.4 Unless 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.

11.5 Chief 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.

  1. [51]
    So while a 'decision' to refuse the request for conversion triggers the requirement for a notice pursuant to s 120(5), those requirements do not apply to a deemed decision. 
  1. [52]
    While there is no statutory requirement that reasons be furnished if the decision is deemed in accordance with s 120(6) of the PS Act, the Department has nonetheless been required to elaborate the extent to which the mandatory criteria was considered in taking the deemed decision, with respect to the higher classification position, through this Appeal process.
  1. [53]
    While I appreciate the earlier revelation of those considerations may well have assisted Mr Wilcox to decide whether he wished to embark on his Appeal in the first place, and the grounds on which to do so, he has now been provided with the opportunity to examine the Department's submissions with respect to the nature and extent of the express 'genuine operational requirement' considerations undertaken.
  1. [54]
    For those reasons, a deemed decision is not inherently unfair and unreasonable.

Decision criteria

  1. [55]
    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';[17]
  • the genuine operational requirements of the public sector entity;[18] 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.[19]

Consideration

  1. [56]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [57]
    This involves a review of the decision-making process utilised and the conversion decision arrived at. 

Suitability

  1. [58]
    There is no dispute between the parties with respect to the Appellant's suitability.  That poses no barrier to Mr Wilcox's conversion.

Genuine operational requirements

  1. [59]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).[20] His Honour's explanation is also useful here (emphasis added):

[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.

[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.

[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.

[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.'

  1. [60]
    This case turns on whether or not there were genuine operational requirements of the public sector entity that prevented the Appellant's permanent conversion to the higher classification position at the time. 
  1. [61]
    In this type of matter, the Commission must decide the appeal by reviewing the decision appealed against.[21] 

Respondent's position

  1. [62]
    In its submissions filed 16 May 2023, the Respondent stated Mr Wilcox should not be permanently appointed to the higher classification position because "… there are genuine operational requirements that prevent an appointment at this time due to a proposed workplace restructure"[22] as follows: 
  • A new division of the Department of Health now has responsibility for the RHD Program (Queensland Public Health and Scientific Services, QPHaSS).[23]
  • In principle support was given to transfer the RHD Program to QPHaSS on 21 March 2023, "subject to consultation".[24]
  • "Consideration of the transfer of the program is included in a soon-to-be-released business case …" that proposes to establish a number of permanent roles within QPHaSS to support transition of the RHD Program from CHHHS.[25] 
  • The change process follows an independent review of public health in Queensland.[26]
  • QPHaSS is considering the employee structure within the RHD Program, so it is not viable to convert the Appellant at this time to a position that is likely to be affected by any such decision made.[27]
  1. [63]
    The Respondent also stated that there is uncertainty around the scope and effect of the proposed restructure given:

i.  In principle support, subject to consultation, was given by the RHD Strategy, Executive Management Committee to transfer the program to QPHaSS on 21 March 2023.

ii.   the business case for change documentation has not yet been released for consultation.

iii.   the transfer is significant in that it involves the negotiation, management, and planning to remove a significant public health function, being the RHD program, from the operation and control of three Health Services to the Department of Health (QPHaSS division).[28]

Appellant's position

  1. [64]
    The Appellant stated that:
  • His current engagement in the higher classification position had an end date of 30 June 2023.[29]
  • The higher classification position "… is funded through state funding and has no substantive employee against it".[30]
  • "A strong commitment to continue the program exists with Federal funding being confirmed for the program through to June 2025 as per the Australian Federal Government Rhematic Fever Strategy …".[31] 
  1. [65]
    In response to the 'genuine operational requirements' arguments raised by the Respondent, Mr Wilcox made these comments about the Business Case for Change document referred to:
  • "… at the time of the deemed decision, the Public Health review had been released, however the Business Case for Change relied on by the Respondent had not been released for consultation.  The Business Case for Change in its incomplete form could not be considered a genuine operational reason to refuse conversion …"[32]
  • "… the Queensland Public Health Review … is a high-level set of recommendations for the future of Public Health in Queensland … (it) does not address the question of changes to the Appellant's work unit nor their specific role going forward."[33]
  • The "… (RDH) Program is still funded through … (CHHHS) and the Appellant continues to be employed through (CHHHS) …"[34]
  • "Where the Business Case for Change establishes roles and functions within QPHaSS that were performed by CHHS … should that include the work the Appellant is performing, then it would be open to Queensland Health to transfer the Appellant to QPHaSS at that time."[35]
  • "… no argument has been raised that the work the Appellant is performing will not continue, either through CHHHS or QPHaSS."[36]

Other material

  1. [66]
    In early May 2023, the Industrial Registry and the parties engaged in emails regarding the Respondent's request for a further extension of time for filing its submissions.
  1. [67]
    On 9 May 2023, Mr James Reith[37] of CHHHS stated in an email to Mr Wilcox that:

At this stage I have been advised that:

  • the business case for change documentation will be released shortly for consultation.
  • the proposed transfer also affects Torres and Cape (HHS), North West (HHS), and Townsville (HHS).
  • the current proposed transfer includes a AO6 Data Manager and Analyst role to be located in Cairns, along with other proposed permanent RHD Register roles.
  • in-principle support, subject to consultation, was given by the RHD Strategy, Executive Management Committee, chaired by the Chief Operating Officer, in late March 2023.
  • the business case proposes to establish a number of permanent roles within QPHaSS to support the transition of the RHD Program…from Cairns (HHHS) to QPHaSS.
  • the proposed transition of the RHD Program will be included as part of a broader business case to realign QPHaSS' public health functions, subject to a formal consultation process being undertaken.[38]
  1. [68]
    Shortly thereafter, Mr Wilcox's reply to Mr Reith included that (emphasis added):

The Applicant is of the understanding that the review for the purpose of a conversion decision is a point in time consideration.

In the response of 9 May, the Respondent states that the proposed business case for change has apparently not been finalised, and consultation with relevant Unions has not occurred.

To use this document would mean that a proposed business case for change is a genuine operational reason, as outlined in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, to refuse conversion.  As the proposed business case has not been subject to consultation or finalised, it could not be considered a relevant consideration about "whether or not there was an authentic need" at the point in time the conversion decision was required to be made.[39]

  1. [69]
    As at 23 March 2023, when the deemed decision subject of this appeal was taken to have been made:
  • The Queensland Public Health Review, Final Report, March 2023 authored by Dr Tarun Weeramanthri, had been released.  The Appellant submitted that report to be "… a high-level set of recommendations for the future of Public Health in Queensland … (it) does not address the question of changes to the Appellant's work unit nor their specific role going forward."[40]
  • Just two days prior, "In principle support, subject to consultation, was given by the RHD Strategy, Executive Management Committee to transfer the program to QPHaSS on 21 March 2023".[41] 
  • Consultation had not occurred.
  • The proposed business case for change had not been finalised.[42]
  • Mr Wilcox's current contract for the higher classification position had an end date of 30 June 2023. 
  • The higher classification position performed by Mr Wilcox had no substantive employee against it.[43]
  • The RHD Program was funded through state funding,[44] in addition to federal funding confirmed to 30 June 2025.[45]
  1. [70]
    As at 19 May 2023, the Appellant noted that the RHD Program is still funded through CHHHS, his work with the RHD Program is ongoing, should the role and function performed by the Appellant move from CHHHS to QPHaSS at some point in the future then Queensland Health could transfer Mr Wilcox.
  1. [71]
    The above assertions were not refuted by the Respondent. 
  1. [72]
    I am satisfied that there is clearly an ongoing requirement for Mr Wilcox to continue to perform the responsibilities of the position at the higher classification level, past the expiry of his 30 June 2023 contract and indeed beyond.
  1. [73]
    It cannot be relied upon that the higher classification position contract has an end date of 30 June 2023.  The filed material shows that Mr Wilcox has been extended in the position 13 times since 14 January 2019.  Indeed, Mr Wilcox was told by CHHHS in its 9 May 2023 email that "the current proposed transfer includes a AO6 Data Manager and Analyst role to be located in Cairns, along with other proposed permanent RHD Register roles."  Clearly ongoing. 
  1. [74]
    After serving in the position for more than 4 years, it can certainly not be said to be short term either.
  1. [75]
    The default remains then to establish employment on a permanent basis in the Queensland public sector. 
  1. [76]
    I have disturbed the Respondent's argument that there are 'genuine operational requirements' that would justify refusing to convert Mr Wilcox permanently to the higher classification position.  It appears to me that there is instead need for Mr Wilcox to continue to perform the broad responsibilities of the position, so his permanent conversion to the higher classification level is both viable and appropriate in such circumstances.
  1. [77]
    While there is no requirement in the PS Act or Directive 03/23 that these conditions exist for conversion to occur, I also note that the RHD Program has both state and federal funding - and that no other employee 'owned' the position.
  1. [78]
    The Respondent has raised the matter of "in-principle support" for the PHD Program to move from CHHHS to QPHaSS, as a reason why conversion ought not occur (though it would appear that progress is far from concluded).  I agree that circumstance imposes no impediment to conversion because:

Where the Business Case for Change establishes roles and functions within QPHaSS that were performed by CHHS … should that include the work the Appellant is performing, then it would be open to Queensland Health to transfer the Appellant to QPHaSS at that time.[46]

  1. [79]
    The above conditions do not prevent conversion.  Where work is required to be performed, public sector workers will need to be paid to do it, regardless of whether they are employed on a permanent or temporary basis.  Whether the RHD Program falls ultimately under CHHHS or QPHaSS is not significant, as it remains with the State of Queensland, Queensland Health (I note that QPHaSS is "a new division of the Department of Health").[47]  Uncertainty as to the particular part of the public sector entity under which the program may fall in the future does not prevent Mr Wilcox's permanent conversion to the higher classification position.
  1. [80]
    I concur with the Appellant's submission that "As the proposed business case has not been subject to consultation or finalised, it could not be considered a relevant consideration about "whether or not there was an authentic need" at the point in time the conversion decision was required to be made."[48]  If any unfinished proposal about 'how a department might do things differently' were to be accepted as a genuine operational requirement sufficient to refuse a conversion request, the government's commitment to establish employment on a permanent basis as the default basis of employment in the Queensland public sector would surely be defeated.  It cannot be the case.
  1. [81]
    In the particular circumstances then of Mr Wilcox's case, the higher classification position is ongoing (as the RHD Program will be continue to be conducted by Queensland Health, notwithstanding perhaps by a different division), federal funding is secured until 30 June 2025 (at least) with the remaining funding coming from the State - and therefore there is an 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.

Purpose of the PS Act and Directive

  1. [82]
    Mr Wilcox submitted the refusal of his conversion request was not fair and reasonable because:

Chief executives are required to act in a way that is compatible with the main purpose of the PS Act and how the main purpose is achieved, including maximising employment security and permanency of employment: Clause 4.2 of the Directive.[49]

  1. [83]
    Mr Wilcox concluded that:

… where there are no genuine operational reasons provided to prevent employment at higher classification, and where the requirements on the question of being found suitable to perform the role under s 120(8) have been met, the purpose of the PS Act and principles of the Directive are best met by providing employment at higher classification for the requesting employee.[50]

  1. [84]
    In my view, that is the correct course and I have adopted that approach here.

Commission's decision in Scowcroft

  1. [85]
    In its submissions filed 16 May 2023, the Respondent stated the relevant question for the Commission is as provided in Scowcroft v State of Queensland (Queensland Health)[51] that:

… the material question for my determination is whether the decision is fair and reasonable in respect of whether it was or was not viable or appropriate to appoint Mr Scowcroft as a general employee on tenure or as a public service officer, due to the operational requirements of the Department, namely, the proposed restructure."[52]

  1. [86]
    Mr Wilcox submitted that his case can be differentiated from that in Scowcroft v State of Queensland (Queensland Health)[53] because, in that previous Commission decision:
  • Wide Bay HHS "… had consulted with the union prior to the proposed change and prior to the conversion decision.  The consultative documents for the change were provided to that union on 1 October 2021 and WBHHS issued the conversion decision on 21 October 2021."[54]
  • Whereas in Mr Wilcox's circumstances, "At the time the Appellant's conversion decision was required to be made, no proposed Business Case for Change had been issued.  On 11 May 2023, a business case for change was released for consultation."[55]
  1. [87]
    In my view, the circumstances of Mr Wilcox's case are not analogous to that in Scowcroft v State of Queensland (Queensland Health).[56]
  1. [88]
    I find that the deemed decision to refuse Mr Wilcox's conversion to the higher classification position - due to the Department's reliance on 'genuine operational requirements of the public sector entity', which I have now disturbed - was not fair and reasonable.

Any previous decisions

  1. [89]
    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. [90]
    The Respondent submitted that no previous conversion decision had been made in relation to Mr Wilcox's continuous period of acting at the higher classification level in accordance with s 120(4)(b) of the PS Act.[57]

Conclusion

  1. [91]
    For the reasons I have given above, the deemed decision was not fair and reasonable.
  1. [92]
    I will set aside the decision appealed against and substitute another decision.
  1. [93]
    I order accordingly.

Order:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed.
  1. The decision that Mr Wilcox not be converted to the higher classification position is set aside and another decision is substituted.
  1. Mr Wilcox be permanently appointed to the higher classification level of AO5.4, as a Data Manager and Analyst within the Rhematic Heart Disease Program (RHD Program).

Footnotes

[1] Mr Wilcox submitted that "The substantive role I currently hold has another employee permanently substantively in the role as they were successful with the Temp to Perm conversion process having been in the position for a number of years"; Appellant's submissions filed 24 April 2023, [17].

[2] Appellant's submissions filed 24 April 2023, [16].

[3] Now repealed.

[4] Public Sector Act 2022 (Qld) 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] Respondent's submissions filed 16 May 2023, [12].

[10] Appellant's submissions filed 24 April 2023, [11].

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

[12] [2020] QIRC 195.

[13] Ibid [80].

[14] Appellant's submissions filed 24 April 2023, Attachment 2, 1.

[15] Ibid [19].

[16] Respondent's submissions filed 16 May 2023, [11], citing McAllister v State of Queensland (Queensland Health) [2021] QIRC 435, [26].

[17] Public Sector Act 2022 (Qld) s 120(3); Directive 03/23 Review of acting or secondment at higher classification level cl 9.1.

[18] Public Sector Act 2022 (Qld) s 120(4)(a); Directive 03/23 Review of acting or secondment at higher classification level cl 7.1.

[19] Public Sector Act 2022 (Qld) s 120(4)(b); Directive 03/23 Review of acting or secondment at higher classification level cl 7.1.

[20] [2020] QIRC 203.

[21] Industrial Relations Act 2016 (Qld) s 562B(4) provides that the Commission "may allow other evidence to be taken into account if the commission considers it appropriate", for appeals against "a promotion decision or a disciplinary decision". 

[22] Respondent's submissions filed 16 May 2023, [3].

[23] Ibid [5].

[24] Ibid [6].

[25] Ibid [7].

[26] Ibid [8].

[27] Ibid [9]; Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434, [35].

[28] Respondent's submissions filed 16 May 2023, [12].

[29] Appellant's submissions filed 24 April 2023, [4].

[30] Ibid [15].

[31] Ibid [18]. A copy of the Rheumatic Fever Strategy, Federation Funding Agreement - Health was attached to the Appellant's submissions, that supported the 'expected' end date of "30 June 2025". I note that the ‘Purpose' of the Rheumatic Fever Strategy includes: "… support the delivery of improved detection, monitoring, and management of acute rheumatic fever (ARF) and rheumatic heart disease (RHD) in Aboriginal and Torres Strait Islander Australians through coordinated disease register and control programs.  This Agreement will support a collaborative effort between the Commonwealth and States for delivery of the Rheumatic Fever Strategy (RFS) …"; Appellant's submissions filed 24 April 2023, Attachment 5.

[32] Appellant's reply submissions filed 19 May 2023, [2].

[33] Ibid [3].

[34] Ibid [4].

[35] Ibid [5].

[36] Ibid [6].

[37] A/Senior Industrial Relations Officer, People and Culture, Cairns and Hinterland Hospital and Health Service

[38] Email from Mr J. Reith (CHHHS) to Mr R. Wilcox, Industrial Registry, Mr D. Hamwood (Together Union) dated 9 May 2023.

[39] Email from Mr R. Wilcox to Mr J. Reith (CHHHS), Industrial Registry, Mr D. Hamwood (Together Union) dated 9 May 2023.

[40] Appellant's reply submissions filed 19 May 2023, [3].

[41] Respondent's submissions filed 16 May 2023, [12].

[42] The Appellant submitted that a business case for change was released for consultation on 11 May 2023.

[43] Appellant's submissions filed 24 April 2023, [15].

[44] Ibid.

[45] I note that the ‘Purpose' of the Rheumatic Fever Strategy includes: "… support the delivery of improved detection, monitoring, and management of acute rheumatic fever (ARF) and rheumatic heart disease (RHD) in Aboriginal and Torres Strait Islander Australians through coordinated disease register and control programs.  This Agreement will support a collaborative effort between the Commonwealth and States for delivery of the Rheumatic Fever Strategy (RFS) …"; Appellant's submissions filed 24 April 2023, Attachment 5.

[46] Appellant's reply submissions filed 19 May 2023, [5].

[47] Respondent's submissions filed 16 May 2023, [5].

[48] Email from Mr R. Wilcox to Mr J. Reith (CHHHS), Industrial Registry, Mr D. Hamwood (Together Union) dated 9 May 2023.

[49] Appellant's submissions filed 24 April 2023, [11].

[50] Ibid [14].

[51] [2021] QIRC 434.

[52] Ibid [14].

[53] [2021] QIRC 434.

[54] Appellant's reply submissions filed 19 May 2023, [8].

[55] Ibid [9].

[56] [2021] QIRC 434.

[57] Respondent's submissions filed 16 May 2023, [13].

Close

Editorial Notes

  • Published Case Name:

    Wilcox v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Wilcox v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 27

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    12 Feb 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
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
McAllister v State of Queensland (Queensland Health) [2021] QIRC 435
1 citation
Jump To
Cite 1 - [2021] QIRC 435
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434
5 citations
Jump To
Cite 1 - [2021] QIRC 434
Cite 2 - [2021] QIRC 434
Cite 3 - [2021] QIRC 434
Cite 4 - [2021] QIRC 434
Cite 5 - [2021] QIRC 434

Cases Citing

Case NameFull CitationFrequency
Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1903 citations
1

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