Camillos v State of Queensland (Queensland Fire Department) [2025] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Camillos v State of Queensland (Queensland Fire Department) [2025] QIRC 001 PARTIES: Camillos, Adam (Appellant) v State of Queensland (Queensland Fire Department) (Respondent) CASE NO: PSA/2024/160 PROCEEDING: Public Sector Appeal – Appeal against a conversion decision DELIVERED ON: 03 January 2025 MEMBER: HEARD AT: O’Neill IC On the papers ORDERS: The decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against conversion decision - where the appellant submitted a request under s 120 of the Public Sector Act 2022 to be permanently appointed to the higher classification level – where the appellant was not permanently appointed to the higher classification level due to genuine operational requirements of the respondent – whether the decision is fair and reasonable - consideration of meaning of "fair and reasonable" in Industrial Relations Act 2016 -- 1 of 21 -- 2 (Qld) s 562B – consideration of phrase "genuine operational requirements" in Public Sector Act 2022 (Qld) s 120 – where the respondent had a genuine operational requirement to refuse the appellant's conversion request – appeal dismissed LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 120 Acts Interpretation Act 1954 (Qld) s 27B Directive 03/23 Review of acting or secondment at a higher classification level Bell v State of Queensland (Queensland Police Service) [2024] QIRC 110 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Goodall v State of Queensland [2018] QSC 319 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Khan v State of Queensland (Queensland Police Service) [2022] QIRC 55 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 Pope v Lawler [1996] FCA 1446 -- 2 of 21 -- 3 Readman v State of Queensland (Queensland Police Service) [2020] QIRC 222 Reasons for Decision Introduction [1] Mr Adam Camillos ('the Appellant') has been employed by the State of Queensland (Queensland Fire Department) since 12 January 2011. His substantive position classification is a Senior Firefighter ('SFF'). [2] The Appellant has been engaged to act in a higher duties’ classification position as a Staff Development Officer at the Station Officer rank with the Queensland Fire Department ('QFD') School of Fire and Emergency Services Training Academy ('SFEST'). The Appellant commenced the period of higher duties on 29 August 2022. The respondent’s submissions set out the following appointments.1 Date from Date To Movement Job Title Position Number Class 29.08.24 30.09.24 HDA Increment Staff Development Officer (Recruit) 758397 Station Officer 1 03.06.24 28.08.24 Position restructure Staff Development Officer (Recruit) 758397 Station Officer 1 28.05.24 02.06.24 Higher duties/ relieving Staff Development Officer 758397 Station Officer 1 27.11.23 27.05.24 Higher duties/ relieving Staff Development Officer 758400 Station Officer 1 10.10.23 26.11.23 Higher duties/ relieving Staff Development Officer 756771 Station Officer 1 29.08.23 09.10.23 HDA Increment Staff Development Officer 756771 Station Officer 1 10.01.23 28.08.23 Higher duties/ relieving Staff Development Officer 756771 Station Officer 1 29.08.22 09.01.23 Higher duties/ relieving Staff Development Officer 758072 Station Officer 1 1 Respondent’s submissions filed 22 October 2024 – Attachment 1 – Decision letter dated 9 September 2024. -- 3 of 21 -- 4 [3] From 28 May 2024 until 30 September 2024 the Appellant was engaged in a higher duties position of Staff Development Officer at SFEST with a position number of 758397. On 12 August 2024 (during that engagement), the Appellant submitted a request under s 120 of the Public Sector Act 2022 (Qld) ('the PS Act'), to be permanently appointed to the higher classification level of 'Station Officer 1'. [4] On 9 September 2024, A/Assistant Commissioner, Enes Seferovic, wrote to the Appellant advising that he would not be appointed to the higher classification position due to the genuine operational requirements of the entity ('the decision'). The decision cites s 120 of the PS Act and the Queensland Government directive - Directive 03/23 "Review of acting or secondment at higher classification level" ('the Directive'). [5] Regarding the issue of genuine operational requirements, the decision relevantly provides the following reasoning: You have been engaged at the higher classification level for a total of 1.95 years. Your engagement at this higher classification has been extended seven times. A summary of your employment at the higher classification level is attached. At this time, the genuine operational requirements of this entity do not support your permanent employment to the role you are currently performing as the role is a rotational role used to support the dayworker roster. (Emphasis added) You will continue to be engaged according to the terms of your existing higher duties arrangement until 30 September 2024. [6] The decision was received by the Appellant on 12 September 2024. [7] On 3 October 2024, the Appellant filed an appeal challenging the decision. 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. [8] As the decision was received by the Appellant on 12 September 2024 and the Appeal Notice was filed on 3 October 2024, I am satisfied that the appeal has been filed within the required timeframe. [9] Having regard to the submissions made by the parties and the material before me, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision. [10] My reasons follow. -- 4 of 21 -- 5 Grounds of Appeal [11] In the Appeal Notice filed on 3 October 2024, the Appellant records that his ongoing higher classification as an acting Station Officer ('SO') included the following circumstances: 1. The SFEST recruit training positions are all substantive SO positions, and therefore due to my substantive SFF rank, I am provided an authorised acting SO position for the period I am at SFEST. 2. I have worked continuously as a recruit trainer at SFEST for the entire period of acting in a higher classification. 3. Whilst performing the recruit training at SFEST, I am paid as a SO level 1, Pay Point 1 and have progressed to SO 1 pay point 3 (as provided for in the Queensland Fire and Emergency Services Certified Agreement 2022 (CA22)(Schedule 1 -Wages)). 4. CA22 provides at clause 76 (Payment for firefighters instructing training) that as a SFF instructing training, I am to be 'paid higher duties for the time spent preparing, administering and delivering training at the rate of Station Officer 1 pay point 1 (S01 PP1).'2 [12] The Appellant then summarises the grounds upon which he relies to submit that the decision is unfair and unreasonable: 1. The concept of 'day work' in QFD is that employees with sufficient experience are moved from their operational roster at a fire station responding in a fire appliance to a specific role that is not a 24/7/365 role but is usually a Monday to Friday role performing specific tasks. 2. Recruit training is an example of this Monday to Friday day work role, and there are many others that acting SO and substantive SO are rostered to in QFD. 3. I have been acting as an SO continuously in the same recruit training day work role for in excess of two years. 4. I have not rotated out of that role, as the need for trainers means I and many others can work as recruit instructors in an ongoing way. 5. Technically, all day work roles in QFD (with the exception of SO appointed as Building Assessment officers) are rotational, meaning that it is common for a SO to be taken from an operational roster at a fire station and placed into a day work role for a period of 12 to 18 months (being rotated in), and after that time, they are rotated out back to their operational roster, or they are rotated into the same day work role or another day work role. 6. The concept of rotating roles in no way prevents SO appointment, in fact rotating day work roles are not relevant to the circumstances of my conversion request, as all SO are rostered to either operational stations, or to day work roles, as that is what all SO do. 7. My current engagement is to continue acting in the higher SO classification, with a further period commencing after I return from current period of annual leave. My ongoing period of acting as an SO continues from 7 October 2024 and I am moving from my current role from fire fighter officer development unit as a recruit instructor to a staff development officer with the auxiliary development unit and is currently proposed until at least 7 October 2025.3 Jurisdiction Appeal principles 2 Form 89 Appeal Notice filed 3 October 2024, Attachment 1. 3 Ibid. -- 5 of 21 -- 6 [13] As provided in section 562B(2)(3) of the IR Act, the appeal must be decided by reviewing the decision appealed against. The appeal is not conducted by way of re-hearing,4 but rather involves a review of the decision arrived at by the Department and the associated decision-making process.5 [14] The stated purpose of such an appeal is to decide whether the decision was fair and reasonable. The issue for my determination is whether the decision by A/Assistant Commissioner Seferovic to deny conversion of the Appellant's employment to permanent was fair and reasonable in the circumstances.6 What decisions can the QIRC Member make? [15] As provided in section 562C of the IR Act, 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. Decision against which an appeal may be made [16] On 12 August 2024, the Appellant requested appointment to the higher classification level, pursuant to s 120(1) of the PS Act and cl 6 of the Directive. [17] Section 131 of the PS Act identifies the categories of which decisions an appeal can be made against. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision". In this case, that is 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."7 [18] Section 134 of the PS Act allows for public sector appeals to be heard and decided by the Industrial Relations Commission. 4 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1). 5 Industrial Relations Act 2016 (Qld) s 562B(2). 6 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. 7 Public Sector Act 2022 (Qld) s 129(e). -- 6 of 21 -- 7 Can the decision be appealed? [19] In the initial submissions provided by the parties it was not disputed that the Appellant was eligible to request conversion to the higher classification position pursuant to s 120 of the PS Act. [20] In light of the information contained in the table in paragraph [2] above, I held concerns whether the parties’ position was correct because it appeared that the Appellant was in fact fulfilling different roles at SFEST, given that he was provided a number of different position numbers. [21] At the time of making his application for conversion, the Appellant had been relieving in position number 758397 for 77 days which is well short of the twelve-month period required in s 120(1) of the PS Act.8 [22] Following a mention held on 3 December 2024, the parties were invited to provide further submissions addressing whether the Appellant had in fact satisfied the requirement in s 120(1) of the PS Act that he had been acting in a higher classification position for at least one year. [23] In accordance with the Further Directions Order dated 3 December 2024, both parties have provided supplementary submissions which address that issue. [24] The Appellant provided supplementary submissions on 9 December 2024 in which he confirms that arising from information provided by A/Senior Advisor Hateley from the People & Culture Directorate of QFD, that for the entire time of relieving at SFEST he worked in the same role and same position referred to as: (a) Staff Development Officer FFDU (firefighter development unit); (b) Staff Development Officer FFDU (Recruit) FFDU. [25] Attached to the Appellant’s supplementary submissions are two e-mails from Ms Hateley dated 4 December 2024 and a further e-mail from A/Superintendent Corey Dennis, Core Operations Training Command dated 4 December 2024 confirming the accuracy of the information set out in paragraph [24]. [26] The Respondent provided supplementary submissions on 11 December 2024 in which it confirmed that the difference in position numbers held by the Appellant had not resulted in a break of a 'continuous period' of acting in a higher classification level.9 8 See the decisions of Khan v State of Queensland (Queensland Police Service) [2022] QIRC 55; and Bell v State of Queensland (Queensland Police Service) [2024] QIRC 110. 9 Respondent’s submissions filed 12 December 2024, paragraph [2] citing s 120(1) of the PS Act. -- 7 of 21 -- 8 [27] The Respondent further submits that the relevance of the different position numbers correlates to the administrational management of the rotational positions at SFEST and to support QFD’s payroll and personnel management functions due to the Appellant being rotated to different recruit course intakes, whilst acting in a higher duties' capacity.10 [28] The Respondent confirms that at the time the Appellant submitted the application requesting to be employed on a permanent basis in the higher qualification position, the Appellant was acting in a higher duties' capacity in the role of Staff Development Officer and had been doing so continuously for a period of at least one year. [29] In light of the supplementary submissions provided by both parties I am satisfied that the conversion decision made by the Respondent is able to be appealed and that the requirements of s 120(1) of the PS Act have been satisfied. Submissions [30] The Commission issued a Directions Order on 8 October 2024 calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Respondent's submissions [31] The Respondent's submissions11 are summarised as follows – • The QFD have a specialised recruitment process in order for employees to be appointed to the 'rank' of Station Officer ('SO') which is outlined in Procedure PR3123 – Station Officer Recruitment: Assessments and Training Requirements ('the Procedure'). • The Appellant has previously completed two (2) written applications in accordance with the Procedure, the first in July 2022 and the second in June 2023. Both of these applications were unsuccessful. • Despite the applications being unsuccessful, the Respondent continued to provide the Appellant with the opportunity to act at the SO level, to promote and support professional development and assist with potential future applications. The Appellant has had two further opportunities since his last unsuccessful application in June 2023 to apply for a permanent SO appointment. The Appellant has not submitted any further applications. 10 Ibid, [2] and [3]. 11 Respondent’s submissions filed on 22 October 2024. -- 8 of 21 -- 9 • There are genuine operational requirements in place being that the position that the Appellant was acting in at the time the request was made is a 'day work rotational role.' Further, due to the nature of firefighter recruitment, the SO recruitment positions (the actual position the Appellant was relieving in at the time of his conversion application) will continue to be rotating roles. • The Respondent refers to His Honour, Deputy President Merrell’s decision in Morison v State of Queensland (Department of Child Safety, Youth and Women),12 which outlines the definition of 'genuine operational requirements'. • The Respondent submits that the key accountabilities of the rank SO and the primary duties of the higher classification position which the Appellant was acting in are significantly different. • The Respondent concludes that the difference in requirements between the SO rank and the Higher Classification Position were considered when determining the Appellant’s request, and that the genuine operational requirement that the Appellant promotes to 'rank' and not to a specific 'position' was considered before providing the Decision. Appellant's submissions [32] In accordance with the Directions Order dated 8 October 2024 the Appellant filed submissions on 5 November 2024. The Appellant's submissions are summarised as follows – • The higher classification to which permanent appointment was requested was the SO 'rank' rather than the position of Staff Development Officer, which the Appellant was acting in when the request was made. • The role of Staff Development Officer was being performed at the SO rank. The Appellant contends that the classification that should be considered is the rank of Station Officer, and not the role of Staff Development Officer. • QFD operates a rank-based structure,13 whereby employees progress through ranks, with each rank indicating an increase in skill and responsibility. The ranks that employees progress through are the classifications that ought to be considered • The roles that SO's take on can be assigned, or applied for, depending on the circumstances of that role. 12 [2020] QIRC 203. 13The Appellant cites clause 7.4 of the Queensland Fire and Emergency Services Certified Agreement 2022 which provides the definition of 'classification'. -- 9 of 21 -- 10 • The 'higher level' prescribed by section 120 of the PS Act refers to the rank of SO rather than the role of Staff Development Officer. • The duties of a person acting in a SO role and those appointed permanently to a SO role are the same. An employee can be appointed to the SO rank before they have met the requirements to be permanently appointed. • There is a shortage of permanent SO employees at the SO rank referring to the Respondent's comments regarding there being 41 employees acting at the rank of SO within the School of Fire and Emergency Services Training ('SFEST'). This indicates that QFD has fewer permanent SOs than needed to perform all of the roles that employees at that rank are required to perform in addition to the operational duties of a Station Officer. • The Appellant contends that had the Respondent considered the genuine operational requirement for an employee at the rank of Station Officer, they would have concluded that there was a genuine operational need to permanently appoint the Appellant to that rank. • The Appellant submits that the Decision was not fair and reasonable because the Decision only had regard to the role that the Appellant occupied at the time of the request, and not the rank in which he had been acting and could suitably continue to undertake in any role (at that rank) within QFD. Respondent's submissions in reply [33] The Respondent's submissions in reply14 are summarised as follows – • The assertion that the higher classification to which permanent appointment was requested, was the rank of SO is rejected. The focus and consideration of the request for conversion was to the specific position of Staff Development Officer within SFEST. • In determining the Appellant’s request for higher duties conversion, the decision maker’s consideration was the position the Appellant was acting in, as opposed to the associated rank. • What the Appellant states in relation to position and rank being applied equally when interpreting s120 of the PS Act is a contradiction to the Respondent's application of the PS Act and operational requirements to manage positions across the State. The Appellant's position on this topic undermines the Procedure in place to recruit to the SO rank. 14 Respondent’s reply submissions filed on 19 November 2024. -- 10 of 21 -- 11 • The Respondent contends that the Appellant is seeking the Commission to interpret and apply the terms 'rank' and 'position' as equal meaning that when interpreting s 120 of the PS Act, in order to be promoted without meeting the Respondent’s applicable minimum requirements to be permanently appointed to the rank of Station Officer. • Unless operational requirements permit, permanent appointed ranks are not automatically obtained through time served in a position, as employees are required to be assessed through the Procedure. Just because an individual is acting in a higher duties 'position' which has them subsequently acting in a higher 'rank', does not automatically give them the skills and qualifications to perform at that rank. • Senior Firefighters undergo training through the Station Officer Program after being deemed suitable in the Procedure, where they are taught further skills, therefore the Respondent rejects that the duties of a person who is acting as a SO are the same as someone who is a substantive SO. • The Decision is deemed fair and reasonable by the Respondent due to the role of Staff Development Officer at SFEST not being used for permanent appointments, due to the day work nature of the role and ability to rotate employees in and out of the Position based on individually assessed departmental, employee specific and operational requirements. Relevant Provisions [34] 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 Directive 03/23. [35] 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— (a) the end of 1 year of acting at, or being seconded to, the higher classification level; and (b) the end of each subsequent 1-year period. (2) The employee's chief executive must decide the request within the required period. -- 11 of 21 -- 12 (3) The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role. (4) In making the decision, the employee's chief executive must have regard to— (a) the genuine operational requirements of the public sector entity; and (b) 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. (5) If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) 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 (c) how many times the employee's acting arrangement or secondment has been extended; and (d) 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. (6) 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. (7) The commissioner must make a directive about employing an employee at a higher classification level under this section. (8) 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— (a) the period stated in an industrial instrument within which the decision must be made; or (b) 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. [36] Clause 7 of the Directive provides as follows (emphasis added): -- 12 of 21 -- 13 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. [37] Clause 8 of the Directive provides as follows (emphasis added): 8. Meaning of continuous period 8.1 Continuous period, for the purposes of this directive, means a period of unbroken engagement…at the higher classification level in the same role, in the same public sector entity. Consideration [38] To determine this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [39] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)15 ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.16 [40] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.17 His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.18 [41] From the summary of the respective submissions set out above, it is clear that the parties have a fundamental factual disagreement about the nature of the conversion application made by the Appellant. [42] The Appellant submits that his request was for permanent appointment to the rank of Station Officer, a rank at which he had been relieving in for over two years. The Appellant does not accept that his application was one where he sought to be permanently appointed to the role of Staff Development Officer, Fire Development, Core Operational Training, Queensland Fire and Rescue, Training and Development Branch. [43] By contrast, the Respondent contends that the Appellant’s request that he be employed on a permanent basis in the higher classification position can only relate to the position 15 [2022] QIRC 16. 16 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 17 Colebourne (n 15) at [21]-[22] and [25]. 18 Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008. -- 13 of 21 -- 14 of Staff Development Officer at SFEST that he was acting in at the time of his application. [44] It is therefore necessary to determine which of these contradictory positions is correct given the terms of s 120 of the PS Act and the Directive. Rank or Position? [45] 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. (Emphasis added) [46] In my view, the QFD’s power to permanently appoint the Appellant is confined to the position that he was filling at the time that he makes the request for permanent appointment to the higher classification. A review of some of the authorities from the Commission confirms that this is the correct approach to the construction of s 120 of the PS Act. [47] Firstly, Industrial Commissioner McLennan considered the operation of the now repealed s 149C of the Public Service Act 2008 (Qld)19 ('the repealed PS Act') in her decision in Holcombe v State of Queensland (Department of Housing and Public Works).20 The Commission’s observations as to the operation of s 149C appear to equally apply to the current appeal: [53] If 'the position' were merely 'AO4 Finance Officer' as contended, it would require the department to consider Mrs Holcombe against every position with the same title and classification. There would be no inherent restraint to only consider positions within the same workplace. It would require the department to consider every such position, and then consider whether there are operational reasons presented in every position. [54] The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State. [55] By way of contrast, a broader ambit of the type proposed by Mrs Holcombe is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number. 19 The wording of s 149C of the repealed Public Service Act 2008 (Qld) is not materially different to that of s 120 of the PS Act. 20 [2020] QIRC 195. -- 14 of 21 -- 15 [56] The language of s 149C is narrower: the employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time. [57] The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad-ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They did not do so. [58] The Directive, in setting out its purpose at cl 1.2(b), provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of the Directive as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Cl 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for the Directive. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by the Directive. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within the PS Act at s 149C. That same reasoning applies to a number of similar clauses in the Directive, which use terms such as 'role', 'a position' and the like. [59] It is also true that the decision letter does not specify the position number, but rather refers to the 'role' and 'position' as being AO4, Finance Officer within Advisory Services, QSS. No doubt, that is the cause of some understandable confusion on the part of Mrs Holcombe. Yet, it does not change the fundamental construct established in s 149C and supplemented by the Directive, that provides for employees to be reviewed against and appointed to 'the position'. Neither, for reasons further in this decision, does that unfortunate use of terminology undermine the fairness and reasonability of the decision itself. [60] To consider the position as merely AO4 Finance Officer, and afford no relevance to the position number, would be to strip 'the position' of a key identifying and distinguishing feature. Having regard to s 149C and the Directive, that would create an uncontemplated broadening of the ambit of the review. [61] To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review. [62] In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review. That is identified not only by the title and classification, but also by the position number. (Emphasis added) [48] The same approach to the construction of s 149C of the repealed PS Act was adopted by Industrial Commissioner McLennan in Khan v State of Queensland (Department of Housing and Public Works).21 21 [2020] QIRC 227 at [45] to [46] and [49] to [54]. -- 15 of 21 -- 16 [49] In a more recent decision of Bell v State of Queensland (Queensland Police Service)22 ('Bell'), Industrial Commissioner Dwyer considered the proper construction of s 120 of the PS Act. Industrial Commissioner Dwyer confirmed that the elements pursuant to s 120(1) of the PS Act that an applicant seeking appointment at a higher classification level has to establish are: • Acting at a higher classification level; • For a continuous period of at least 1 year; • In the position.23 (Emphasis added) [50] Industrial Commissioner Dwyer went on to confirm that: [37] Put in simple terms, the proper construction of s 120 of the PS Act provides the limited function of conferring a right on a public service employee to request permanent appointment to a position at a higher classification where they have been acting in that position continuously for an unbroken period of at least 12 months, and where there is no other employee who substantively holds that position.24 [51] Given the authorities set out above, and the plain wording of s 120(1) of the Act, the Appellant’s contention that the higher classification to which he was seeking permanent appointment was to the Station Officer rank, and not the position of Staff Development Officer must be rejected because it is premised upon a flawed interpretation of s 120(1) of the PS Act. [52] Pursuant to s 120(1) of the PS Act, the Appellant only had an entitlement to request permanent appointment to the position of Staff Development Officer at SFEST, the only position he was acting in at the time of his application on 12 August 2024. [53] Clearly, the Appellant was not acting in 'the position' of a Station Officer (that is, as a designated Station Officer with a related position number and based at a fire station) at the time of his application on 12 August 2024. This is confirmed by the various position numbers that he was assigned during his tenure as a Staff Development Officer at SFEST.25 [54] I accept the submission of the Respondent that the key accountabilities of the rank of Station Officer and the primary duties of a Staff Development Officer are significantly 22 [2024] QIRC 110. 23 Ibid at [25]. 24 Bell, (n 22) at [37]. 25 Respondent’s initial submissions filed 22 October 2024, Attachment 1 – Decision letter dated 9 September 2024. -- 16 of 21 -- 17 different.26 [55] As a consequence, the only position that the Appellant was able to seek a permanent appointment to at a higher classification was the position of Staff Development Officer at SFEST. Are there genuine operational requirements preventing conversion? [56] The phrase 'genuine operational requirements' is not defined in either the PS Act or in the Directive. [57] Guidance as to the meaning of this phrase has been provided by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women).27 In that decision His Honour observed as follows: (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. … [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 26 Respondent’s initial submission filed on 22 October 2024 at [21]; and Attachment 8 – Role Specification Statement – Staff Development Officer (FFSO) Core Operational Training; and Attachment 9 – Role Description – Station Officer (FFSO) Queensland Fire and Rescue. 27 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203. -- 17 of 21 -- 18 period of time, to '…the position at the higher classification level.'28 [58] The Respondent refused the Appellant’s higher classification conversion on the grounds of 'genuine operational requirements' and in the submissions provided to the Commission relies upon the following matters: • The position that the Appellant has been relieving in is a day work rotational role,29 that is, it is not a permanent position.30 • Day work rotational roles exist with the QFD to facilitate employment conditions such as return to work, fatigue management, and educational, promotional and professional development.31 • Firefighter recruitment (and the training requirements) necessitate the need for the Staff Development Officer roles to be rotating roles due to the operational requirements involved.32 • In its reply submissions, the Respondent further emphasises that the Staff Development Officer position the Appellant was occupying at the time of the request for conversion was not being used for permanent appointments, due to the day work nature of the role. The Respondent also emphasises the flexibility afforded to rotate employees in and out of the position based on individually assessed departmental, employee specific and operational circumstances.33 [59] The Appellant provided the following submissions addressing the issue of 'genuine operational requirements': • The Appellant contends that there is a shortage of employees at the rank of permanent Station Officer within QFD, and that there is a large number of employees temporarily acting at the rank of Station Officer.34 He notes the Respondent’s submission that there are 41 employees acting at the rank of Station Officer within SFEST.35 28 Ibid. 29 Respondent’s initial submissions filed on 22 October 2024, paragraph [16]. 30 Respondent’s reply submissions filed on 19 November 2024, paragraph [14]. 31 Respondent’s initial submissions filed on 22 October 2024, paragraph [17]. 32 Ibid, paragraph [19]. 33 Respondent’s reply submissions filed on 19 November 2024, paragraph 14. 34 Appellant’s submissions filed on 5 November 2024, paragraph 23. 35 Ibid, paragraph [23]. -- 18 of 21 -- 19 • The large number of employees acting at SO level indicates that QFD has fewer permanent Station Officers than needed to perform all of the roles at that rank are required to perform, in addition to the operational duties of that role.36 • Had the Respondent considered the genuine operational requirement for an employee at the rank of Station Officer, they would have concluded that there was a genuine operational need to permanently appoint the Appellant to that rank.37 [60] As a result of the Appellant’s flawed construction of s 120(1) of the PS Act, his submissions regarding whether there were genuine operational requirements preventing his permanent appointment do not address the Staff Development Officer position and do not engage with the submissions of the Respondent regarding why there were genuine operational requirements preventing his permanent appointment. [61] In Readman v State of Queensland (Queensland Police Service)38 ('Readman'), Industrial Commissioner Power in the context of determining an appeal arising from a decision made pursuant to s 149C of the repealed Act, followed and applied the reasoning of Deputy President Merrell in Morrison.39 [62] In addressing the parties’ submissions on the issue of 'genuine operational requirement', Industrial Commissioner Power provided the following observations regarding this requirement: • It was appropriate for the Respondent in considering its 'genuine operational requirements' to consider resourcing as a relevant consideration when having regard to the "effective, efficient and appropriate management of the public resources of the [relevant] department".40 In the context of the present appeal I consider that this would include QFD making determinations on the appropriate skill and experience set of the officers to be appointed to SFEST and the basis of their appointment to the training roles. • It was a matter for a respondent Department, and not the Commission, to determine how particular roles are filled.41 I also consider that this extends to QFD determining whether roles like the Staff Development Officer are better kept as rotational roles as opposed to having officers permanently appointed to the training roles at SFEST to provide greater flexibility. In Readman, Industrial Commissioner Power confirmed that undertaking this type of assessment was "reasonably part of 36 Ibid, paragraph [24]. 37 Ibid, paragraph [26]. 38 [2020] QIRC 222 ('Readman'). 39 Ibid, at [20] citing Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203. 40 Readman (n 38) [21]. 41 Ibid [23]. -- 19 of 21 -- 20 any consideration of genuine operational requirements".42 [63] I am satisfied for the reasons summarised at paragraph [59] that there are genuine and authentic reasons for the QFD to maintain the training roles at SFEST as rotational day work positions rather than permanently appointing officers like the Appellant to the role. [64] I find that the decision-maker has correctly considered and applied the decision criteria in accordance with the PS Act and the Directive and that the decision-maker’s reliance on genuine operational requirements to refuse conversion was fair and reasonable in the factual context of this case. Compliance with requirements of s 120 of the PS Act [65] The Respondent is required to comply with s 120(5) of the PS Act, which provides as follows: (5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) 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 (c) how many times the employee’s acting arrangement or secondment has been extended; and (d) 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. [66] Clause 10.1 of the Directive provides that decisions made to refuse a request pursuant to s 120 of the PS Act must comply with the requirements of s 27B of the Acts Interpretation Act 1954 (Qld). The decision maker's reasons were brief and limited; however, I am satisfied that the decision conforms with this requirement. [67] The Respondent provided a notice outlining the reasons for the decision and confirmed that the Appellant has acted in a higher classification role for 1.95 years following seven extensions. The notice also confirmed that there had been one previous decision on 18 September 2023 declining an application for appointment at a higher classification on the basis of genuine operational requirements. I am satisfied that the Respondent has complied with the obligations with respect to s 120(5) of the PS Act. Conclusion [68] For the reasons I have given above, the decision was fair and reasonable. 42 Ibid [24]. -- 20 of 21 -- 21 [69] On that basis the decision appealed against is confirmed. [70] I order accordingly. Order That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 21 of 21 --