Together Queensland v State of Queensland
[2013] QSC 112
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- Unreported Judgment
- Together Queensland v State of Queensland[2013] QSC 112
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Together Queensland v State of Queensland[2013] QSC 112
Together Queensland v State of Queensland[2013] QSC 112
SUPREME COURT OF QUEENSLAND
CITATION: | Together Queensland and Ors v State of Queensland [2013] QSC 112 |
PARTIES: | TOGETHER QUEENSLAND, INDUSTRIAL UNION OF EMPLOYEES (first applicant) ALEXANDER PATRICK SCOTT (second applicant) GRAEME HYLAND (third applicant) JOHN MONICO (fourth applicant) v STATE OF QUEENSLAND (respondent) |
FILE NO/S: | BS 8941 of 2012 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland |
DELIVERED ON: | 2 May 2013 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 January 2013 |
JUDGE: | Philip McMurdo J |
ORDER: | The originating application is dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where directive made by Chief Executive of Public Service Commission pursuant to s 53 of the Public Service Act 2008 – whether directive beyond powers of Commission Chief Executive Public Service Act 2008 (Qld), s 3, 25, 46, 47, 48, 51, 52, 53, 56, 58, 138 Judicial Review Act 1991 (Qld) Swan Hill Corporation v Bradbury (1937) 56 CLR 746, applied |
COUNSEL: | M P Amerena with P Bridgman for the applicants R P Devlin SC with S A McLeod for the respondent |
SOLICITORS: | Slater & Gordon for the applicants Crown Solicitor for the respondent |
- The first applicant is an industrial union with more than half of its membership being employed under the Public Service Act 2008 (Qld) (“the Act”). The second applicant is its Secretary and the third and fourth applicants are members of the union and public service employees.
- The applicants are concerned by a ruling, or a purported ruling, by the Chief Executive of the Public Service Commission made last year, being Directive No 5 of 2012 (“Directive No 5”). They apprehend that this ruling will be used as a basis for implementing what they say is the policy of the Queensland Government to substantially reduce the numbers of Queensland public servants by means which are not permitted by relevant laws. They apply for declarations that Directive No 5 was made beyond the powers of the Chief Executive and is of no effect and that all “determinations, directions and obligations purportedly made or arising under Directive No 5” would be invalid and of no force and effect. Their application is made under Part 5 of the Judicial Review Act 1991 (Qld).
- To understand the applicants’ interest in this question and their arguments, the ruling which they challenge was made in the context of published statements by the Government of a perceived need to reduce its expenditure by, amongst other things, reducing the number of its public servants by as many as 20,000. For example, in April 2012 there was a publication on the website of the Public Service Commission as follows:
“… The Government intends to address the fiscal status of the State, and to deliver a program of reform … The reprioritisation of services is central to this task. In terms of staffing profiles, it is intended that savings be realised through an Establishment Management Program (EMP).
The EMP was implemented on 27 March 2012 and incorporates a vacancy review process. The program is designed to ensure recruitment decisions regarding non-frontline vacancies are aligned with Government priorities. …
The EMP applies broadly across the Queensland Public Service, including departments, public service offices and agencies. …”[1]
- In essence, the applicants contend that it is not within the power of the Public Service Commission, or its Chief Executive, to determine whether the size of the Queensland Public Service should be reduced and if so, to what extent. They say that the ruling in question, Directive No 5, is an action by which the Chief Executive has purported to confer upon himself such a power.
The Act
- Section 3(1) sets out the main purposes of the Act. They include the promotion of “the effectiveness and efficiency of Government entities” and making provision for “the administration of the Public Service and the employment and management of Public Service employees”. Section 3(2) then provides:
“(2)To help achieve the main purposes, this Act –
(a)fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and
(b)establishes a Public Service Commission to –
(i)enhance the public service’s human resource management and capability; and
(ii)review and improve the overall effectiveness and efficiency of government entities; and
(c)establishes a chief executive service and a senior executive service to provide the public service with high performing leaders who will actively promote the purposes and the principles.”
- Part 2 of Chapter 3 of the Act establishes the Public Service Commission and defines its main functions. The Commission consists of the Commission Chief Executive, the Chief Executives of certain departments and other persons appointed as Commissioners. The Commission’s main functions are set out in s 46(1), which it is necessary to set out in full:
“(1)The commission’s main functions are to do the following –
(a)enhance the public service’s human resource management and capability;
(b)promote the management and employment principles;
(c)enhance and promote an ethical culture and ethical decision-making across the public service;
(d)enhance the public service’s leadership and management capabilities in relation to disciplinary matters;
(e)conduct commission reviews;
(f)develop and implement public service-wide workforce management strategies;
(g)together with the departments responsible for public sector industrial relations and public sector financial policy, consider improvements in the performance of departments through remuneration and conditions of employment;
(h)facilitate the purposes of the chief executive and senior executive services and the position of senior officer;
(i)report, at least annually, to the Minister on the application of the management and employment principles within the public service, including reporting on the following –
(i)the application of the principles, as a whole, within the public service as a whole;
(ii)the application of only 1 or more of the principles within the public service as a whole or a part of the public service;
(iii)the application of 1 or more of the principles for a specific purpose or to a specific group of persons;
(j)monitor, and report to the Minister about, the workforce profile of the public service;
(k)advise the Minister about the need for commission reviews about particular matters;
(l)promote a culture of continuous improvement and organisational performance management across all public service offices;
(m)provide a best practice advisory role on public service management, organisational performance management and workforce practices.”
- By s 56 the Governor-in-Council must appoint a Chief Executive of the Commission. By s 58(1) the Chief Executive is responsible for the performance of the Commission’s functions. Section 58(2) provides:
“(2)The commission chief executive’s other main functions are to do the following –
(a)approve final reports for commission reviews;
(b)make rulings;
(c)appoint and second senior executives;
(d)facilitate the development of senior executives and senior officers;
(e)perform other duties as directed by the Minister.”
- Part 3 of Chapter 3 deals with rulings by the Commission Chief Executive and the Industrial Relations Minister. As s 47 provides, there are two types of ruling which may be made, namely directives and guidelines. Section 47 is as follows:
“47Types of ruling
(1)Division 2 and particular other provisions of this Act authorise the making of instruments about persons who are, or who wish to become, or were, public service employees or other employees in public service offices.
Example of another provision —
chapter 5, part 6 (Assessing suitability of persons to be engaged in particular employment)
(2)A directive is an instrument of a type mentioned in subsection (1) that the instrument states is a directive.
(3)A directive binds the persons to whom it applies.
(4)A guideline is an instrument of a type mentioned in subsection (1) that the instrument states is a guideline.
(5)A guideline is for the guidance only of the persons to whom it applies.
(6)A ruling is a directive or a guideline.”
- Section 48 provides for the means by which a ruling may be made and for its publication, as follows:
“48 Making of and access to rulings
(1)A directive may be made only by gazette notice.
(2)A guideline may be made in the way the person making it considers appropriate.
(3)After a person makes a ruling, the person must ensure it is published on the following website as soon as practicable—
(a)if the person is the commission chief executive—the commission’s website;
(b)if the person is the industrial relations Minister—the website of the department in which the Industrial Relations Act 1999 is administered.
(4)A failure to comply with subsection (3) does not invalidate or otherwise affect the ruling.”
- The legal effect of a ruling is further defined by ss 51 and 52 as follows:
“51 Relationship with legislation
If a ruling is inconsistent with an Act or subordinate legislation, the Act or subordinate legislation prevails to the extent of the inconsistency.
52 Relationship between directives and industrial instruments
(1)This section applies if a directive deals with a matter all or part of which is dealt with under an industrial instrument of the IRC.
(2)A directive of the commission chief executive prevails over an industrial instrument, unless a regulation provides otherwise.
Note—
See however, the Industrial Relations Act 1999, section 687 (Conflict
between industrial instruments etc. and statutory decision).
(3)An industrial instrument prevails over a directive of the industrial relations Minister, unless the directive provides otherwise.
(4)In this section—
directive includes a decision made in the exercise of a discretion under a directive.”
- At the time, s 53 defined the power of the Commission Chief Executive to make a ruling, as follows:
“53 Rulings by commission chief executive
The commission chief executive may make a ruling about—
(a)a matter relating to any of the commission’s or the commission chief executive’s functions; or
Examples of what a ruling by the commission chief executive may be about—
• recruitment and selection, deployment, training and development of public service employees
• the transfer or redeployment of public service employees surplus to the needs of a department
• overall performance management standards for the public service
(b)the overall employment conditions for persons employed or to be employed as—
(i)chief executives or senior executives; or
(ii)public service officers on contract whose remuneration is equal to, or higher than, the remuneration payable to a senior executive; or
(ba)a matter relating to the application of chapter 6 or 7 to a former public service employee; or
(c)other specific matters that, under this Act, the commission chief executive may make a ruling about.”
- In the present case, it is said to be s 53(a) which provided the power to make the ruling in question. The subject matter of the ruling therefore had to be a matter relating to one or more of the functions of the Commission or the Commission Chief Executive. The respondent’s argument relied upon the function of the Commission in s 46(1)(b), namely the promotion of “the management and employment principles”, a term which takes its meaning from s 25 which, in subsections (1) and (2), sets out those principles. The respondent refers to s 25(1)(e) which provides:
“25(1)Public service management is to be directed towards –
…
(e)managing public resources efficiently, responsibility and in a fully accountable way.”
- The respondent’s argument also relies upon s 46(1)(f), which prescribed the function of developing and implementing “public service-wide workforce management strategies”.
Directive No 5
- On 29 June 2012, the Acting Commission Chief Executive made or Directive No 5, which it is necessary to set out in full:
“Commission Chief Executive Directive No.05/12: Workforce Establishment Management Framework
1Purpose:
1.1To provide for establishment management frameworks that support service wide workforce management strategies.
2Commencement date:
2.12 July 2012
3Legislative provisions:
3.1Public Service Act 2008 – sections 25, 46 and 53.
4Application:
4.1This directive applies to all chief executives and employees under the Public Service Act 2008.
5Related information:
5.1Sections 51 and 52 of the Public Service Act 2008 and section 687 of the Industrial Relations Act 1999 apply.
6Directive:
6.1Principle
(a)Service wide workforce management strategies align with government priorities, supporting the Government’s commitment to a public service that delivers effective, efficient, and responsive services to the community.
6.2Establishment Management Frameworks
(a)The Commission Chief Executive may determine establishment frameworks and controls for roles in departments.
(b)Chief executives are responsible for managing their workforce establishment within the establishment frameworks set by the Commission Chief Executive and in accordance with their approved budget.
(c)The Commission Chief Executive may direct chief executives to undertake a review of role types including roles by basis of employment, results of which may include the restructure and/or rationalisation of roles and/or functions.
7Evaluation and reporting:
7.1Chief executives must report on the implementation of this Directive as required by the Commission Chief Executive.
AUTHORITY:
This directive is made pursuant to section 53, Public Service Act 2008.”
- Clause 5 of the Directive refered to ss 51 and 52 of the Act, to which I have referred, and also to s 687 of the Industrial Relations Act 1999 (Qld). Section 687 provides for the resolution of a conflict between directives under the Act (and other directives) and an award, industrial agreement, certified agreement or decision of the Commission under that Act. Its effect mirrors that of s 51 and s 52 of the Act. Therefore, this Directive had the express purpose of operating in a way which would prevail over any inconsistent industrial instrument.
- Going first to the stated purpose of the Directive, it can be seen that the purpose was not to set out the content of any “establishment management framework”, but simply to “provide for” such a framework. Consistently with that purpose, clause 6.2(a) stated that the Commission Chief Executive “may determine establishment frameworks” as well as “controls for roles in departments”. This part of the Directive does not, of itself, direct anyone to do anything. On one view, it appears to be the Commission Chief Executive granting himself a power to determine such frameworks and controls. On another view, it is simply referring to the possibility that such frameworks or controls will be determined by him, which would then engage the instruction or direction within clause 6.2(b).
- The purported effect of clause 6.2(b) is to require chief executives (for which there is to be one for each department[2]) to manage “their workforce establishment within the establishment frameworks set by the Commission Chief Executive and in accordance with their approved budget”. There are two types of requirements which would then bind chief executives: that in relation to any so called framework determined by the Commission Chief Executive and the requirement to act within their approved budgets.
- The imposition of a requirement upon a chief executive to not exceed his or her approved budget, and to manage the workforce of the department accordingly, seems unremarkable. Yet, it was apparently submitted by the applicants that it would be the chief executive’s obligation to have the department employ the workforce which he or she considered was reasonably required for the efficient performance of the department’s functions, regardless of whether that could be afforded within the approved budget. The applicants referred to s 138 of the Act, which provides:
“138Action because of surplus
(1)This section applies if the chief executive of a department believes a public service employee is surplus to the department’s needs because –
(a)more employees are employed in the department than it needs for the effective, efficient and appropriate performance of its functions; or
(b)the duties performed by the employee are no longer required.
(2)The chief executive must take the action required under a directive.”
- The applicants say this indicates the limitations upon a chief executive’s power to redeploy or dismiss an employee of his or her department, so that there is no power to do so, absent circumstances under s 138, purely for budgetary reasons. In my view, s 138 does not operate to limit the power of the chief executive in that way. Rather, its effect is to compel a chief executive to take action required under a directive in a circumstance which engages the section.
- Clause 6.2(c) of the Directive contemplates a direction to chief executives to undertake a certain review. It is not in terms of direction that the chief executives do undertake that review. Again, the applicants submit that this involves the Commission Chief Executive seeking to enlarge its own powers. If that is how clause 6.2(c) should be understood, it would be invalid, because the Commission Chief Executive’s powers are defined by the Act and could not be affected by his own action in a purported ruling. The alternative view is that clause 6.2(c) is merely stating a possible or probable future act of the Commission Chief Executive. As such, it would have no legal consequence. Therefore clause 6.2(c), of itself, is ineffective as a directive.
- Clause 6.2(a) should be read as a reference to the possibility of the determination of valid frameworks or controls for roles, thereby providing the context for clause 6.2(b). The validity or otherwise of Directive No 5 depends upon the scope of the instruction to chief executives which is within clause 6.2(b).
- The ultimate effect of Directive No 5 cannot be assessed on the evidence here. This is because it is in prospective and conditional terms. It had no immediate effect, because its operation was dependent upon the determination of the so called establishment frameworks and controls for roles in departments. It would have an impact only once such a thing was determined by the Commission Chief Executive and only when the content of that framework (or control) was known would the particular effect of Directive No 5 be known.
- But the applicants say that the effect can be discerned from the factual context in which this instrument was issued. I have mentioned already the statements of the Government’s policy in relation to reducing the number of public servants. I should also mention another ruling which was issued by the Commission Chief Executive on the same day as the subject ruling was issued. This was Directive No 6, the stated purpose of which was “[t]o establish a framework for the management of employees who require placement as a result of workplace change in a manner that supports Government workforce management priorities”. This directive instructed chief executives on the procedures to be adopted in relation to existing employees who required “placement”, having declined a voluntary redundancy. There is no challenge to the validity of Directive No 6. The applicants say that this is a directive of the kind which is anticipated by s 138(2). But they say that Directive No 6 adds to the body of evidence from which it should be inferred that Directive No 5 was issued for a particular purpose, which was to give effect to the Government’s policy of effecting an overall reduction in the size of the public service.
- By a detailed reference to the respective functions of the Commission Chief Executive, the chief executives of departments and the Minister responsible for the administration of the Act (the Premier), the applicants submitted that the Commission Chief Executive has no power to make a determination as to the number of persons who should be employed in the public service, or in any particular department or, more particularly, the number who should be regarded a surplus to the needs of the Government or any department.
- The respondent argued otherwise: it contended that it would be within the functions of the Commission, and thereby the Commission Chief Executive, under s 46(1)(f) for it to be determined by him that the size of the public service be decreased by, say, a certain percentage across each department.[3]
- The existence or otherwise of such a power in the Commission and the Commission Chief Executive is a substantial and important question between the parties. If the respondent is correct in saying it is within the power of the Commission Chief Executive, then it would be open to him to issue a directive for the implementation of a service wide reduction in the number of employees. That directive could have a particular impact upon the interests of employees and those who represent them, because a valid ruling by the Commission Chief Executive would prevail over any industrial instrument (unless regulation provided otherwise).
- The applicants argued that this question of the scope of the powers of the Commission Chief Executive does arise in relation to Directive No 5, because of the interpretation which their argument places upon it. They say that “the true scope of the measure in Directive No 5 is that the [Commission Chief Executive] purports, by his own administrative decision, to confer upon himself and his successors in that office a right to authoritatively determine the number and roles of employees needed in particular departments and public service offices and to take action in respect of those roles and employees thereby found to be ‘surplus’”.[4]
- Now it may have been the intention of the Acting Commission Chief Executive to do just that, but I cannot accept that this is the “true scope” of Directive No 5. It makes no reference to any “surplus” or potential determination of the number or roles of employees which would be appropriate. It is expressed in very general terms, requiring chief executives of departments to manage their workforce according to the content of a framework or control which is unidentified and which, according to this instrument, is yet to be formulated. Directive No 5 cannot be interpreted in the way in which the applicants suggest, and that interpretation is an essential premise of their argument for its invalidity.
- The applicants do not argue that there is some invalidity from the conditional or prospective nature of the Directive, that is to say from its operation being dependent upon the determination by the Commission Chief Executive of the frameworks or controls to which it refers. It is at least conceivable that frameworks could be determined validly by the Commission Chief Executive, even assuming that the applicants are correct upon the issue of the scope of his powers. Section 46(1)(f) provides that one of the Commission’s main functions is to develop and implement public service-wide workforce management strategies. There could be frameworks developed by the Commission for its Chief Executive to implement (or “support”) such strategies. Whether there has been a framework which has been purportedly developed according to Directive No 5 does not appear from the evidence.
- The applicants’ submissions cited the statement by Sir Owen Dixon in Swan Hill Corporation v Bradbury that:
“In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce”.[5]
Clearly that statement applies in the present context, although the arguments here agreed that the making of Directive No 5 was an exercise of administrative power. The “decisive step” in this case, in my conclusion, is the rejection of the applicants’ argument as to the true scope and effect of Directive No 5. The result is that a substantial and important issue between the parties, namely the existence and extent of a power in the Commission to decide to reduce the size of the public service or the workforce of one or more departments, will not be decided here. The applicants’ submissions in that respect have some apparent force, but that is a question to be decided in the context of any other action by the Commission or its Chief Executive.
- Accordingly, the originating application must be dismissed.