Wilson v State of Queensland (Department of Education)
[2024] QIRC 299
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- Unreported Judgment
- Wilson v State of Queensland (Department of Education)[2024] QIRC 299
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Wilson v State of Queensland (Department of Education)[2024] QIRC 299
Wilson v State of Queensland (Department of Education)[2024] QIRC 299
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Wilson v State of Queensland (Department of Education) [2024] QIRC 299 |
PARTIES: | Wilson, Jennifer (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2024/112 |
PROCEEDING: | Public Sector Appeal – Higher Classification |
DELIVERED ON: | 18 December 2024 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDER: | That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant was reviewed under s 120 of the Public Sector Act 2022 – where a decision not to convert the appellant to the higher classification position was made – consideration of 'the position' – consideration of 'genuine operational requirements' – whether the decision was fair and reasonable – decision appealed against confirmed |
LEGISLATION AND OTHER INSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 14A, s 27B Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567 Public Sector Act 2022 (Qld) s 120, s 129, s 131, s 132, s 133, s 134 Public Service Act 2008 (Qld) s 149C Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 03/23 Review of acting or secondment at a higher classification level cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 12 Directive 13/20 Appointing a public service employee to a higher classification level cl 4 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
CASES: | 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 Peterson v State of Queensland (Department of Education) [2024] QIRC 46 |
Reasons for Decision
Introduction
- [1]On 9 July 2024, Miss Jennifer Wilson (the Appellant) filed an appeal against a higher classification conversion decision dated 25 June 2024 (the Decision).
- [2]The Decision was contained in correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition (the decision-maker) for the Department of Education, State of Queensland (the Department; the Respondent).[1]
- [3]The Appellant holds permanent employment with the Department at H01 classification level. The Appellant is substantively employed as a Guidance Officer at QCHS – Adolescent Extended Treatment Centre in the Metropolitan North Region.[2]
- [4]Between 21 January 2022 and 13 December 2024, the Appellant has been continuously engaged at the higher classification level of H02, working as a Senior Guidance Officer in the Metro South Region.[3]
- [5]The Decision stated that "The total continuous period for which you have been acting in the above higher classification level position in the Department is 2 years and 5 months."[4]
- [6]Further to a previous decision dated 17 February 2023 to refuse the Appellant conversion to the higher classification level because "the purpose of your employment was to backfill behind a substantive employee that was absent to perform in another role within the entity", the current refusal Decision also "confirmed the purpose of your employment remains as backfilling behind the substantive employee."[5] That is, the Senior Guidance Officer position that was occupied by Miss Wilson was nonetheless substantively 'owned' by another employee who was absent from it because they were performing another role with the Department.
- [7]Even though that incumbent employee has been away from their substantive permanent position as Senior Guidance Officer for almost two and a half years, they nonetheless continue to 'own' their substantive position and are entitled to return to it. Just as Miss Wilson continues to 'own' her substantive permanent position as Guidance Officer with the Department, even though she too has been acting at a higher classification level as Senior Guidance Officer for almost two and a half years. Presumably someone else has been acting in the Guidance Officer position substantively 'owned' by Miss Wilson, for the almost two and a half year period she has been acting as Senior Guidance Officer.
Jurisdiction
Decision against which an appeal may be made
- [8]On 2 June 2024, the Appellant requested appointment to the higher classification level. In an email dated 3 June 2024, Ms Burgess acknowledged her conversion request was made pursuant to s 120 of the Public Sector Act 2022 (PS Act) and Directive 03/23: Review of acting or secondment at higher classification level (Directive 03/23).
- [9]In accordance with s 120(2) of the PS Act, the request was decided on 25 June 2024 – "within the required period" of "28 days after the request is made".[6]
- [10]The decision subject of this appeal is the Department's refusal to (emphasis added):
… employ the employee in the position at the higher classification level on a permanent basis …"[7]
- [11]Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision", in this case a decision "under section 120 … not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period … of at least 2 years."[8]
- [12]Section 134 of the PS Act allows for public sector appeals to be heard and decided by the Commission. An appeal is initiated by providing the Industrial Registrar with an Appeal Notice stating the details of the decision being appealed against and the reasons for the appeal.
- [13]Section 133 of the PS Act prescribes that the employee the subject of the conversion decision may appeal. The Appellant meets that requirement.
- [14]I am satisfied that the Decision is able to be appealed.
Timeframe for appeal
- [15]Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
- [16]As the decision was given on 25 June 2024 and the Appeal Notice was filed on 9 July 2024, I am satisfied that the appeal was filed by the Appellant within the required timeframe.
Appeal principles
- [17]Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- [18]
- [19]The issue for my determination is whether the Decision was fair and reasonable in the circumstances.[11]
What decisions can the Commission make?
- [20]Section 562C of the IR Act prescribes that the Commission may determine to either:
- confirm the decision appealed against;
- set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- set the decision aside and substitute another decision.
The Decision
- [21]The decision-maker confirmed that the Appellant was both eligible to make the conversion request and met the suitability requirement.
- [22]However, the decision-maker explained the Appellant's conversion request was refused on "genuine operational requirement" grounds:
… it is not appropriate to permanently employ you in the higher classification level position as an existing employee is absent from the position to perform another role within the entity and the Department does not use permanent relief pools for this particular position.
The Commission has generally considered that the return of a substantive employee to the position represents a genuine operational requirement to support the temporary employment of an employee at a higher classification level.
The consequences of appointing you [to] the higher classification position would be that two permanent employees would then occupy the one position of Senior Guidance Officer, Metropolitan South Region upon the substantive employee's return.
In these circumstances, it is reasonable to conclude that the effective, efficient and appropriate management of the department's resources does not require two employees in this position. The genuine operational requirements of the department therefore support the retention of your employment on a temporary basis only, prior to the return of the substantive incumbent to the position.[12]
Submissions
- [23]In accordance with the Directions Order issued on 15 July 2024, the parties filed written submissions.
- [24]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
Appellant's submissions
- [25]The Appellant submits the conversion Decision was not fair and reasonable because:
- "… there have been two instances where a permanent position as a Senior Guidance Officer in my region has opened up and while I have applied for one and was directed not to apply for the other, the role was filled by candidates who have only just completed 12 months of continuous service in that role (compared to my 24 months at the time)."[13]
- "… a Temporary to Permanent conversion was approved for a colleague…who has been a temporary officer in the SGO role less time than I have (12 months to my 26). I believe it is unfair that the Temporary to Permanent position be awarded to the applicant who submitted their application after I would have, when I had specifically expressed an intention to apply… this colleague was backfilling the retired SGO, which means there was not an equitable starting point for applying for temporary to permanent conversion, as the applicant / my colleague could not be refused for the same reason I was."[14]
- When a SGO position with the wellbeing team became available, the Appellant submitted that her line manager emailed the team telling them not to apply for it as she would not release anyone to take up the position. Therefore, the Appellant did not apply for that position. It transpired that the line manager did release "a relieving SGO from our team to take up the wellbeing SGO position in the Metropolitan North region."[15]
- "… I have never had my performance questioned in this role" of Senior Guidance Officer.[16]
- With respect to the Department's reasons for refusing conversion on the grounds of "genuine operational requirements", the Appellant submitted that:
…it is unfair that I was directed not to apply when a position was actually available that I could have filled, which would have meant that two people would not have been holding the one position.[17]
- The Appellant is aware that there are Senior Guidance Officers "in my department that are currently on leave with a strong possibility that they will not be returning to the role", so she could be "appointed permanent with the position risk-managed by the department" or otherwise be first offered the next available Senior Guidance Officer role that becomes vacant.[18]
- Two new SGO positions have been created this year in the Maximising Learning Team, of which one is permanent and the other is "working with Higher Duties. I do not know if this SGO working with higher duties is backfilling another officer or if they too will be able to transition to permanent after 12 months because there is not a substantive person in their role already."[19]
- The relevant Directive and objects of the PS Act and IR Act "suggest that permanency is preferred."[20] Employment on a permanent basis if the default basis of employment in the Queensland public sector.[21]
- The Appellant has worked as a Senior Guidance Officer for a longer period that another employee who was permanently converted to that role.[22]
- The Appellant's line manager discouraged her application for permanent conversion as a Senior Guidance Officer.[23]
- "If there is a need to frequently extend my contract at higher classifications, surely this would suggest that there is a genuine operational requirement to employ me on a permanent basis, as suggested in Petersen[24]."[25]
- The Appellant submitted she fulfils the conversion decision criteria set out in s 114(3) of the PS Act, that pertains to the review of non-permanent employment.[26]
Respondent's submissions
- [26]The Respondent submits the Decision is fair and reasonable because:
- "There is currently a known end date of the acting arrangement in the higher classification position of 13 December 2024. The acting arrangement is in place as the incumbent is absent to perform in another role within the entity."[27]
- "… the relevant Directive for conversion at higher classification is Directive 03/23. The Appellant has incorrectly relied on Directive 02/23: Review of non-permanent employment."[28]
- The Appellant's submission relies on section 114 of the PS Act relating to "temporary to permanent conversion of employment ie the employee's substantive role, and not conversion at a higher classification."[29]
- The Commission's decision in Holcombe v State of Queensland (Department of Housing and Public Works) ('Holcombe')[30] held that the review conducted was with respect to "the position occupied" and "only one person may occupy the position number at any one time."[31]
- The Commission's decision in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison')[32] "supports an incumbent's return to their position and the resulting effect upon the effective, efficient and appropriate management of public resources is a valid consideration with respect to genuine operational requirements."[33]
- With respect to her submission about the objects of the Acts and Directive being to maximise permanent employment, it is relevant that the Appellant already has permanent employment with the Department – she is not a 'fixed term temporary employee'.[34]
- If the Respondent were to convert the Appellant to the higher classification position, "two employees would permanently occupy the one position."[35]
- Whether the line manager discouraged the Appellant from applying for other permanent roles is not relevant to this appeal.[36]
- Whether someone else who had performed the role for less time obtained permanent conversion is not relevant to this appeal.[37]
- Whether there was "not an equitable starting point for applying for temporary to permanent conversion" is not relevant to this appeal.[38]
- "… the effective, efficient and appropriate management of the Department's resources does not require two permanent employees in the one position."[39]
- Length of time acting in the higher classification position does not "represent a genuine operational requirement for the Respondent to employ ger in that role on a permanent basis."[40]
- The Commission's decision in Petersen[41] is not relevant to the present case because "it involved a temporary project role rather than a permanent role to which the incumbent was expected to return."[42]
- "The Appellant was free to apply for the role and [the line manger's email] is not a 'directive' not to apply for the different role."[43] "The Appellant made her own decision not to apply for this role nor to speak to [her line manager] about it."[44]
- "… a different role in a different team … is not relevant to this Appeal as it could not be the subject of a conversion request."[45]
- The conversion request was denied because "there is a permanent incumbent due to return to the position."[46]
- "… the Decision omitted the number of times the Appellant's acting arrangement or secondment was extended as required by … the PS Act [but] … that does not render the decision unfair or unreasonable …"[47]
Relevant provisions
- [27]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.
- [28]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
- 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—
- the end of 1 year of acting at, or being seconded to, the higher classification level; and
- the end of each subsequent 1-year period.
- The employee's chief executive must decide the request within the required period.
- 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.
- In making the decision, the employee's chief executive must have regard to—
- the genuine operational requirements of the public sector entity; 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.
- If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- the reasons for the decision; and
- 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
- how many times the employee's acting arrangement or secondment has been extended; and
- 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.
- 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.
- The commissioner must make a directive about employing an employee at a higher classification level under this section.
- 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—
- the period stated in an industrial instrument within which the decision must be made; or
- 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.
- [29]Further, section 131(1)(a) of the PS Act provides:
131 Decisions against which appeals may be made
- An appeal may be made against the following decisions—
- a conversion decision;
- [30]Section 132(1)(k) of the PS Act provides (emphasis added):
132 Decisions against which appeals can not be made
- 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;
In this case, the Appellant has worked at the higher classification level for more than two years, so is eligible to appeal the decision to refuse conversion.
- [31]Directive 03/23 relevantly provides (emphasis added):
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.
…
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.
…
Definitions
…
Second/secondment has the meaning provided for under section 118 of the Act.
- [32]While it does not appear in Directive 03/23 – nor in Chapter 3, Part 9 'Reviews', Division 2 'Review of acting or secondment at higher classification level' of the PS Act – the repealed Directive 13/20 Appointing a public service employee to a higher classification level had formerly included the 'Principle' that (emphasis added):
4.Principles
…
4.2Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
(a)when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
(b)when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
(c)to perform work for a particular project or purpose that has a known end date
(d)to perform work necessary to meet an unexpected short-term increase in workload.
- [33]Directive 03/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[48]
- [34]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.
- [35]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.
Interpretation
- [36]In deciding this appeal, I acknowledge the significance of the legislative provisions identified and explained above.
- [37]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?
- [38]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.
- [39]The power afforded to the Department to permanently appoint the Appellant is confined to the position which she is performing at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
- [40]In this particular case, there is no dispute between the parties that the Appellant was continuously engaged at the higher classification level (H02) as a Senior Guidance Officer, since 21 January 2022. However, the position subject of the decision-maker's conversion refusal was not simply any 'Senior Guidance Officer role' – it was the particular Senior Guidance Officer position (identified by position number) that Miss Wilson was backfilling, whilst the other employee who was the substantive 'owner' of the particular Senior Guidance Officer position was performing another role within the Department.
- [41]Although my explanation in Holcombe[49] 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.[50]
- [42]In light of the above, the position subject of the review is only the particular Senior Guidance Officer (H02) position that Miss Wilson had been backfilling since 21 January 2022. It was not open to the Department to convert her into any Senior Guidance Officer roles, at the higher classification level H02.
- [43]Miss Wilson's submissions appear to be based on an incorrect assumption that Directive 02/23: Review of non-permanent employment applies to her conversion request.[51] Her submissions elaborate arguments regarding the period of time she had acted in the higher classification role, and her discussion of other roles that may be considered substantially the same that may have been available to her. That line of argument may be relevant to a conversion request made under Part 9, Division 1 Review of non-permanent employment of the PS Act. However, the mandatory decision criteria set out in s 114(3)(4) of the PS Act for the review of non-permanent employment is not the same as the mandatory decision criteria that must be used to determine conversion requests made under Part 9, Division 2 Review of acting or secondment at higher classification level.
- [44]That confusion was not the fault of the Respondent. Miss Wilson's email dated 2 June 2024 formally requested that the Department permanently appoint her to the higher classification level – though with reference to the previous provision (s 149C) of the PS Act and superseded Directive 13/20 Appointing a public service employee to a higher classification level. So at that time, Miss Wilson was aware this was a review concerning her request to convert to a higher classification level – it is not a review of non-permanent employment because Miss Wilson was already a permanent employee of the Department, holding the substantive full time position of Guidance Officer (H01). In the Department's email the following day acknowledging receipt of Miss Wilson's formal request, the first line identified the correct references to the updated section of the PS Act (s 120) and Directive 03/23: Review of acting or secondment at higher classification level. I note also that the Decision letter dated 25 June 2024 referred to the relevant section of the PS Act and correct Directive.
Decision criteria
- [45]The PS Act and Directive 03/23 provide that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
- whether the Appellant is 'suitable' (s 120(3) of the PS Act and cl 9.1 of Directive 03/23);
- the genuine operational requirements of the public sector entity (s 120(4)(a) of the PS Act and cl 7.1 of Directive 03/23); and
- the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of acting at, or secondment to, the higher classification level (s 120(4)(b) of the PS Act and cl 7.1 of Directive 03/23).
Consideration
- [46]I am required to decide this appeal by assessing whether or not the Decision appealed against was fair and reasonable.
- [47]This involves a review of the decision-making process utilised and the conversion decision arrived at.
Suitability
- [48]
Genuine operational requirements
- [49]Deputy President Merrell considered 'genuine operational requirements' in Morison.[53] 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.'[54]
- [50]The foundational dispute between the parties is whether or not the Department's determination that there were genuine operational requirements that prevented the Appellant's permanent conversion to the higher classification position was fair and reasonable in the circumstances.
- [51]A significant aspect of the Appellant's submission is that the Department should have considered whether she might have been, or ought to be, permanently appointed to any Senior Guidance Officer role. However, as outlined above, the power afforded to the Department to permanently appoint the Appellant under s 120(1) of the PS Act is confined to the position which she is performing at the time of the review. That is, the particular position she was brought in to backfill for the absent employee.
- [52]The Department's consideration is therefore confined to the position of that particular Senior Guidance Officer (as designated by its position number). As reasoned in Holcombe[55] (emphasis added):
The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.[56]
- [53]The Appellant made a number of submissions with respect to ongoing need, wisdom of retaining the most experienced staff in such roles, likely future vacancies through natural attrition, the element of luck as to which particular position she was designated to backfill as opposed to the situation of others. The Appellant also submits that she ought to be permanently appointed to the higher classification level regardless of the position being substantively held by another employee because another Senior Guidance Officer role will be available in future. However, none of those arguments expunge the significant fact that the Appellant was employed specifically in the position of Senior Guidance Officer [with a designated position number] for the purpose of backfilling the absent employee, which has a listed end date of 13 December 2024.
- [54]The Respondent refused the Appellant's higher classification conversion request on the grounds of 'genuine operational requirements'. That included that:
- There is already a substantive 'owner' of the particular Senior Guidance Officer position – and that "existing employee is absent from the position to perform another role within the entity and the Department does not use permanent relief pools for this particular position". That is the reason Miss Wilson had the opportunity to act in it, at the higher classification level;
- "the return of a substantive employee to the position represents a genuine operational requirement to support the temporary employment of an employee at a higher classification level";
- Two permanent employees cannot occupy the one particular Senior Guidance Officer position (as designated by position number) upon the substantive employee's return;
- In the above circumstances, the Respondent must have regard to the need for "effective, efficient and appropriate management of public resources".[57]
- [55]The Appellant's submissions cannot overcome the fundamental principle that she can only be converted into the position – not any 'Senior Guidance Officer role'. In the circumstances of this case, the Appellant was in the particular position because she was backfilling for the substantive employee absent performing work in another role. Upon their return, the Department cannot employ two permanent employees under the one position number. I accept the Department's conclusion that it is not viable to appoint the Appellant to the higher classification position.
- [56]The Appellant has referred to her line manager's advice to the team about the lack of vacancies. While I observe that neither the PS Act nor Directive 03/23 require there to be a substantive vacancy before an employee can be permanently converted into the position, I have accepted that there is no authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint the Appellant to the higher classification position.
- [57]The Appellant has made submissions about a colleague's permanent appointment to a Senior Guidance Officer role, in circumstances where they had served less time than her. The Appellant referred to that being a 'temporary to permanent conversion', and if that is the case the decision was made under a different decision-criteria – an entirely different section of the PS Act and different Directive applied to the Department's determination. In response to the Appellant's inclusion of that case as a reason why she should be converted to the higher classification level, I again emphasise that the powers to convert under s 120 of the PS Act are limited to the particular position the Appellant was acting in at the time of the review request – not the same or similar role, with a different designated position number. That is a different position.
- [58]In my view, the Appellant's submissions about the two instances of 'unfair treatment' are not relevant to the decision-criteria for conversion review to a higher classification level. While her line manager may have not encouraged her to apply to be permanently appointed to the Senior Guidance Officer position, ultimately the Appellant recorded she was told "if I wanted to use my one chance for the year to apply, that was my decision." The Appellant made a decision not to apply. Though, even if she had, it would not have altered the course of the review outcome unless the substantive position holder had decided to relinquish their Senior Guidance Officer position in the interim. Similarly, the Appellant complained that she acted on her line manager's advice not to apply for release to perform a wellbeing Senior Guidance Officer role with another team in the Metropolitan North region – but that if she had chosen to do so, she may well have been permanently appointed to the higher classification level by now. That account is certainly one of disappointment with some career decisions, but it is not relevant to the precise mandatory decision criteria set out for determining appointment to the higher classification level position.
- [59]I find that the decision-maker did correctly consider and apply the decision criteria contained in the PS Act and Directive 03/23, and reliance on genuine operational requirements to refuse conversion was fair and reasonable in this case. In the particular circumstances of this case, it would be simply untenable for the Department to employ two permanent Senior Guidance Officers in the same position – that clearly would not demonstrate effective, efficient and appropriate management of public resources. While I appreciate the Appellant's argument that the Department will continue to need experienced Senior Guidance Officers into the future, the legislative power to convert the Appellant is to the position.
Any previous decisions
- [60]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.
- [61]I see that consideration occurred with respect to the 17 February 2023 decision of Mr Boyd Clifford to refuse the Appellant's conversion request because "the purpose of your employment was to backfill behind a substantive employee that was absent to perform in another role within the entity".[58]
Notice
- [62]The Respondent acknowledged in its submissions that the notice provided to the Appellant failed to include all elements required.[59] Specifically, that the notice did not include "how many times the employee's acting arrangement or secondment has been extended".[60] While the Department is reminded of those requirements, that omission is not fatal to the decision to refuse the higher classification conversion request. In that regard, I follow Deputy President Merrell's reasoning in Morison[61] below (citations omitted):
[52] Such delegates must also comply with s 149C(5) of the PS Act. Ms Matebau's written decision did not comply with s 149C(5)(c) in that Ms Matebau did not set out how many times Ms Morison's engagement at the higher classification level had been extended. However, having regard to Ms Matebau's principal reason for her decision, that failure, on its own, does not render Ms Matebau's decision not fair and not reasonable.
Conclusion
- [63]For the reasons I have given above, the Decision was fair and reasonable.
- [64]On that basis, the Decision appealed against is confirmed.
- [65]I order accordingly.
Order:
That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024.
[2] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 1.
[3] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 1.
[4] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 1.
[5] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 2.
[6] Public Sector Act 2022 (Qld) ss 120(2), 120(8).
[7] Ibid s 120(1).
[8] Ibid s 129(e).
[9] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[10] Industrial Relations Act 2016 (Qld) s 562B(2).
[11] 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.
[12] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 1.
[13] Appeal Notice filed 9 July 2024, 6.
[14] Appellant's submissions filed 22 July 2024, [24]-[26].
[15] Ibid [31].
[16] Appeal Notice filed 9 July 2024, 6.
[17] Ibid 7.
[18] Ibid.
[19] Appellant's submissions filed 22 July 2024, [33]-[34].
[20] Ibid [10].
[21] Ibid [18].
[22] Ibid [11].
[23] Ibid [11], [20]-[23].
[24] Peterson v State of Queensland (Department of Education) [2024] QIRC 46.
[25] Appellant's submissions filed 22 July 2024, [17].
[26] Ibid [44]-[46].
[27] Respondent's submissions filed 29 July 2024, [5].
[28] Ibid [7].
[29] Ibid [20].
[30] [2020] QIRC 195 [69].
[31] Respondent's submissions filed 29 July 2024, [21].
[32] [2020] QIRC 203 [41]-[42].
[33] Respondent's submissions filed 29 July 2024, [22].
[34] Ibid [7].
[35] Ibid [14].
[36] Ibid [16].
[37] Ibid.
[38] Ibid.
[39] Ibid [15].
[40] Ibid [17].
[41] Peterson v State of Queensland (Department of Education) [2024] QIRC 46.
[42] Ibid [18].
[43] Ibid [19].
[44] Ibid.
[45] Ibid.
[46] Ibid [10].
[47] Ibid [13]
[48] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[49] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195.
[50] Ibid [80].
[51] Appellant's submissions filed 22 July 2024, [10], [44]-[46]; Respondent's submissions filed 29 July 2024, [7].
[52] Respondent's submissions filed 29 July 2024, [11].
[53] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.
[54] Ibid.
[55] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195.
[56] Ibid [54].
[57] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 3.
[58] Correspondence from Ms Rynell Hastie-Burroughs, Executive Director, Engagement and Talent Acquisition, Department of Education to Miss Jennifer Wilson dated 25 June 2024, 2.
[59] Respondent's submissions filed 29 July 2024, [13].
[60] Public Sector Act 2022 (Qld) s 120(5)(c).
[61] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.