Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 224

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Barker v State of Queensland (Department of Housing and Public Works) [2020] QIRC 224 Barker, Brian (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2020/345 PROCEEDING: Public Service Appeal - Higher Duties Conversion Decision DELIVERED ON: 22 December 2020 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: The decision appealed against is confirmed. LEGISLATION: CASES: Public Service Act 2008, s 27, s 149B, s 149C, s 194 Industrial Relations Act 2016, s 562 Directive 13/20 Appointing a public service employee to a higher classification level. Holcombe v State of Queensland (Department of Housing and Public Works)[2020] QIRC 195 Sharma v State of Queensland (Department of Housing and Public Works)[2020] QIRC 199 Clair v State of Queensland (Department of Housing and Public Works)[2020] QIRC 220 -- 1 of 8 -- 2 Reasons for Decision Appeal Details [1] Mr Barker is employed by the State of Queensland (Department of Housing and Public Works) ("the Department"). [2] Mr Barker's substantive position is Housing Officer within Tenancy Services, Aboriginal and Torres Strait Islander Housing Unit (AO3) however, he has been continuously performing the duties of AO5, Client Service Manager within the same unit for 34 months. This temporary engagement has been extended 11 times. [3] By letter dated 20 October 2020, Acting Director of Human Resources Tully Stewart informed Mr Barker that his engagement is to continue according to the terms of the existing temporary placement giving the following reasons. • The purpose of your current placement in the role of AO5, Client Service Manager within Tenancy Services, Aboriginal and Torres Strait Islander Housing Unit, is to backfill a substantive employee while the substantive employee is relieving in an alternative position. • Should the substantive employee return to their position of AO5, Client Service Manager within Tenancy Services, Aboriginal and Torres Strait Islander Housing Unit, there will no longer be a continuing need for you to be engaged in that role. Relevant sections of the Act and Directive [4] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive"). [5] Section 149C of the PS Act relevantly provides 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee- (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least one year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … (2) 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, after - (a) the end of 1 year of being seconded to or acting at the higher classification level; and (b) each 1-year period after the end of the period mentioned in paragraph (a). -- 2 of 8 -- 3 … (4A) In making the decision, the department's chief executive must have regard to – (a) the genuine operational requirements of the department; 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 employment at the higher classification level. The Directive [6] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive. 4.2 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. 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. … 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents an remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: (a) the genuine operational requirements of the department, and (b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. 7. Statement of reasons -- 3 of 8 -- 4 7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: (a) set out the findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based. 8. Appeals 8.1 An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level. … What decisions can the Commission make? [7] In deciding this appeal, s 562C of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Mr Barker's reasons for appeal [8] Mr Barker provides some background to his employment and the decision of the delegate. His grounds for appeal are set out from paragraphs 4 – 8 of Attachment A to his Appeal Notice. [9] Mr Barker submits that in determining that he not be appointed to the higher classification as the role he has been acting in is substantively owned and there may not be a continuing need for him to perform the role if the substantive owner of the role returns, the delegate has not given due consideration to the genuine operational requirements of the Department as required by s 149C (4A). [10] Neither the PS Act or Directive include a role being substantively vacant as a pre- requisite for conversion. Mr Barker says that cl 4.2 provides that the fact a backfilling arrangement exists may be a consideration as to why appointment should not be made but it is not a threshold question or a blanket reason to decline an appointment. Rather, this is one of a number of considerations involved in assessing the 'genuine operational requirements of the department' as required by cl 6.2(a). [11] Mr Barker says that the explanation provided in the outcome letter he received did not reflect cl 7.1 of the Directive. -- 4 of 8 -- 5 [12] Mr Barker says that he has performed the role for more than two years now without any adverse finding in respect of his performance or conduct. Therefore he has demonstrated merit with respect to s 27 of the PS Act, as required by s 149B(5)(a). Department submissions [13] The Department sets out the background to Mr Barker's employment. • Mr Barker is permanently employed as a public service officer in the position of AO3, Housing Officer. • Since 27 November 2017, Mr Barker has been continuously performing the duties of a higher classification, being an AO5, Client Service Manager. • The purpose of Mr Barker's temporary placement in the AO5, Client Service Manager position has been to backfill the substantive employee while the substantive employee has been relieving in an alternative position. • Since 27 November 2017, Mr Barker's temporary placement in the AO5, Client Service Manager position has been extended on 11 occasions. • Mr Barker's current temporary placement in the AO5 Client Service Manager position is due to expire on 1 January 2021. • There are no performance concerns regarding Mr Barker. [14] The Department submits that Mr Barker's current temporary placement in the AO5 position is to backfill the substantive employee who is relieving in an alternative position. [15] The Department submits that it has had regard to cl 6.2 of the Directive and s 149C(4A) of the PS Act and that as Mr Barker's temporary placement is to backfill the substantive owner of the role, there will no longer be a continuing need for Mr Barker to be placed in the AO5 role once the substantive employee returns to work in their substantive position. [16] As the Department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO5 Client Service Manager position it is not appropriate or viable for the department to offer to permanently employee Mr Barker in that position. [17] The Department points to cl 4.2 and says that the Directive is quite clear that temporary circumstances still exist and there is a place, where appropriate, to temporarily engage or place employees at a higher classification level. [18] Clause 4.2 makes it clear that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level role where their skills are only temporarily required prior to the permanent employee returning to their substantive position. [19] The Department submits that the written decision provided to Mr Barker complies with the requirements of s 149C of the PS Act and the Directive and that it did not need to consider the reasons for each decision previously made, or deemed to have been made under the s 149C as no such previous decisions have been made under this Directive. -- 5 of 8 -- 6 [20] The Department submits that the decision of the delegate to refuse Mr Baker's request that he be permanently appointed to the AO5 position was fair and reasonable in the circumstances and was made in accordance with section 149C of the PS Act and the Directive. Mr Barker's submissions in reply [21] Mr Barker says that the only consideration in making the decision was that the role he is occupying is not substantively vacant. [22] Mr Barker submits that the role he has been acting in has been substantively vacant and but for the recent transfer at level of another employee against that position, he would have been appointed in line with the Directive. Mr Barker says that the interpretation of 'genuine operational reasons' adopted by the Department frustrates the stated purpose of the Directive. [23] Mr Barker says that the mandatory criteria for consideration in this case are the genuine operational requirements of the department and the reasons for each decision previously made. He submits that a decision maker who fails to take mandatory relevant considerations into account has not properly applied the law.1 [24] Mr Barker makes submissions regarding the approach to be taken in interpreting the Directive and says that as it is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 the construction of its provisions should be approached in the same way as interpreting a statute.2 Accordingly, he says that requirement to have regard to genuine operational requirements of the Department is to be interpreted in light of the stated purpose of the Directive at cl 1.2(b) "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". [25] Mr Barker says that the decision must have regard to genuine operational requirements of the Department and that as a part of that consideration, they may consider some of the circumstances that would support only the temporary engagement of an employee as outlined under 'Principles' in cl 4.2. The fact a higher duties employee may be acting against a role which is no longer vacant may be a consideration as to why a permanent appointment should not be made but it is not a threshold question, nor does it negate the requirement to adequately consider the operational requirements of the Department, including the circumstances of that role in full detail. [26] Mr Barker says that the existence of a substantive occupant in the role he is currently performing is a relatively new development and that he acted against this role while it was vacant for some 15 months. [27] By way of background, Mr Barker says that he was merit listed for the AO5 role after an interview process in 2017 and on the basis of that merit selection process he was appointed to backfill an AO5 Client Service Manager position on 27 November 2017. 1 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR at 348. 2 Mr Baker cites R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, [32]-[33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] agreeing). -- 6 of 8 -- 7 The substantive owner of that role vacated the position in April 2019 and he acted against the vacant position until July 2020 when another employee was transferred at level in to the role he was filling. [28] Mr Barker says that unfortunately, the transfer of the other employee into the role he was filling occurred shortly before the introduction of the Directive and the amendments to insert s 149C in the PS Act which provided for him to request to be appointed to that higher duties position he had been acting in for more than 12 months. [29] Mr Barker also states that he meets the criteria for appointment under s 149C of the PS Act in that he has acted continuously in the higher duties role for over 34 months and he has consistently demonstrated merit throughout that time. [30] Mr Barker submits that his circumstances, which at the conclusion of his current period of relieving in January 2021 will be approaching 38 months of continuous long-term higher duties engagement, is exactly the kind of 'mischief' that the Directive and the amendments to s 149C of the PS Act were intended to prevent.3 [31] Mr Barker says that an interpretation of the 'genuine operational requirements of the Department' that best gives effect to the stated purpose of the Act and Directive and the mischief they were intended to prevent should be preferred. Was it fair and reasonable for the respondent to deny appointment to the higher classification level on the basis of genuine operational requirements? [32] There is no dispute that Mr Barker has been performing higher duties in the AO5 role for 34 months. [33] I note Mr Barker's submission that the decision letter did not comply with cl 7.1 of the Directive. I have considered the letter and I have determined that the delegate set out the background of Mr Barker's higher duties role in detail. Further, the letter clearly explained that the reason the decision not to convert had been made is that there is an employee substantively placed in the role and that when the substantive employee returns to the role, there will no longer be a need for Mr Barker to be engaged in the role. [34] Mr Barker's submissions state that while the role he was backfilling was substantively vacant for a period of time, a permanent employee was transferred at level to the role in July 2020. [35] The criteria the chief executive must have regard to when deciding the request are provided at s 149C(4A) and at cl 6.2 of the Directive. As no previous decisions regarding Mr Barker's employment have been made under the Directive, the delegate was required to consider the genuine operational requirements of the department as per s 149C(4A)(a) of the PS Act. [36] The phrase 'genuine operational requirements' is defined in neither the PS Act nor the Directive and must therefore 3 Mr Baker cites R v A2 [2019] HCA 35; (2019) 93 ALJR 1106, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] agreeing). -- 7 of 8 -- 8 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 including 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 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.4 [37] In considering the context of s 149C(4A)(a) of the PS Act, it may be noted that the chief executive of a Department is responsible for "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 this Act".5 [38] The Directive sets out some circumstances that would support the temporary engagement of an employee at a higher classification level. Relevantly to this matter, cl 4.2(b) provides, 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 [39] The employee who was transferred to the role Mr Barker is currently performing is relieving in an alternative position. When that employee returns to the role, there will be no need for Mr Barker to continue performing higher duties. [40] It may be the case that the role was substantively vacant until July 2020. Mr Barker is correct to point out that had the higher duties role he is currently performing not been substantively occupied, the outcome of his request for appointment at the higher classification may have had a different outcome. However, at the time of Mr Barker's request for review, an employee had been transferred at level to the role. The nature of Mr Barker's AO5 placement is clearly contemplated by the Directive. [41] The Commission has, on several occasions, considered that the return of the substantive incumbent to the position represents a genuine operational requirement supporting the temporary appointment of an employee at a higher classification level.6 [42] It is clear that Mr Barker is backfilling in the AO5 position and that the need for him to backfill in this role will conclude when the substantive employee concludes relieving in the alternative role and returns to the position. [43] The decision not to appoint Mr Barker to the higher classification level was fair and reasonable in the circumstances. [44] Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed. 4 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, 12 [37]- [38]. 5 Public Service Act 2008, s 98(d). 6 Holcombe v State of Queensland (Department of Housing and Public Works)[2020] QIRC 195, 19; Sharma v State of Queensland (Department of Housing and Public Works)[2020] QIRC 199; Clair v State of Queensland (Department of Housing and Public Works)[2020] QIRC 220. -- 8 of 8 --