Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220 Clair, Daniel St (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2020/268 PROCEEDING: Public Service Appeal – Appointment to Higher Classification Level DELIVERED ON: 11 December 2020 MEMBER: HEARD AT: Knight IC On the Papers ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: LEGISLATION AND INSTRUMENTS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where appellant requested appointment to higher classification level under s 149C of the Public Service Act 2008 – jurisdictional objection – where request denied due to genuine operational requirements of the agency – whether decision fair and reasonable. Directive 13/20 Appointing a public service employee to a higher classification level Industrial Relations Act 2016 Public Service Act 2008 -- 1 of 7 -- 2 CASES: Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199 Reasons for Decision [1] Mr Daniel St Clair ('the appellant') appeals a decision not to permanently appoint him to the position in which he has being acting at a higher classification level. [2] The Department of Housing and Public Works ('the respondent') submits the decision to refuse the appellant's conversion request was fair and reasonable in circumstances where his current placement in the higher classification position is to backfill for an employee who is relieving in another role. [3] Separately, the respondent contends that, pursuant to s 195(1)(j) of the Public Service Act 2008 ('the Act'), the appellant is excluded from appealing the decision in circumstances where he has been seconded or acting at the higher level position of AO6 Senior Project Officer for less than two years. [4] The issues for determination in this appeal therefore are: • is the appellant prevented from appealing the respondent's decision on the basis that he has been acting in an AO6 Senior Project Officer position for less than two years; and • was it fair and reasonable for the respondent to deny permanency as it did on the basis of genuine operational requirements? Jurisdictional Objection [5] The respondent argues s 194(1)(e)(c) of the Act, when read in conjunction with ss 149C(8) and 149C(7) and cl 11 of the Directive: 13/20 Appointing a public service employee to a higher classification level ('the Directive'), requires the appellant to have been seconded to or acting at the higher classification level for an unbroken period (including periods of authorised leave or absence), at the higher classification level in the same role, in the same agency, for at least two years – in order to be able to appeal the decision. [6] Here, although it is acknowledged the appellant has been working at a higher classification level for more than two years, the respondent maintains he has been working in a different AO6 role for less than two years. As a result, it is argued he is prevented from appealing the decision to the Commission. -- 2 of 7 -- 3 [7] Having considered the appellant's submissions, there does not appear to be any dispute he has worked in his current higher duties AO6 Senior Project Officer role for less than two years. Prior to working in the AO6 Senior Project Officer role, the appellant was temporarily appointed to an AO6 higher duties classification, but in a different role as a Client Services Manager, within the same organisation. [8] Although there is no disagreement about the period the appellant has been working in his current higher duties A06 position, he takes issue with respondent's reliance in its submissions on the definition within the Directive of the words 'continuous period' . [9] Continuous period is defined at cl 11 of the Directive as: … a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.1 [10] The thrust of his argument is that the term 'continuous period', as defined in the Directive, is only relevant for the purposes of determining whether an employee is eligible to make a request to be appointed to higher duties. He submits the definition of continuous period contained in the Directive is not relevant when determining decisions against which appeals may be made. Consideration [11] Section 194(1)(e) of the Act provides that an employee can appeal a decision under s 149C not to appoint that employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least two years. [12] The difficulty I have with the respondent's argument is that the definition of continuous period as provided for at s 149C(8) is, in my view, only relevant for the purposes of determining who is eligible for making a request to be appointed to a higher classification under s 149C. [13] In s 149C(8) of the Act, continuous period, insofar as it relates to an employee being eligible to request a conversion to a higher classification level, has the meaning given for the employee under a Directive made under sub-s (7). [14] Section 149C(8) of the Act provides that the Public Service Commission chief executive must make a directive about appointing an employee to a position at a higher classification level. [15] The Directive, which took effect on 25 September 2020, sets out procedures for requests and decisions associated with appointing a public service employee such as the appellant to a higher classification under s 149(C) of the Act. [16] The requirement that an employee be engaged at a higher classification level in the same role as provided for in the Directive is only applicable insofar as it relates to s 149C of the Act, and the application of cls 5.2 and 5.3 of the Directive which sets out who is eligible to make a request and when the request may be made. 1 my underlining. -- 3 of 7 -- 4 [17] By contrast, the approach adopted at s 194(e)(iii), which is located in a different chapter of the Act dealing with appeals and reviews, provides that a decision not to appoint an employee to a position at a higher classification level can be appealed if the employee has been seconded to or acting at the higher classification level for a continuous period for at least two years. [18] Although the appellant has not been acting in the same role for more than two years, there is no question that he has been acting in a higher classification for a continuous period of at least two years. [19] Unlike s 149C of the Act, s 194 does not contain a definition of continuous service, nor can one be located elsewhere in the chapter or within the Act's dictionary at sch 4. [20] On the basis the appellant has been acting at the AO6 higher duties classification for more than two years, albeit in different roles, I have concluded, having regard to s194(e)(iii), that the appellant does have a right of appeal in respect of the decision not to permanently appoint him to the AO6 classification. Was it fair and reasonable for the respondent to deny permanency based on genuine operational requirements? [21] While the appellant is substantively employed in an AO3 position, he has been continuously performing duties of an A06 Senior Project Officer position since 8 April 2019 – a period of 18 months, and has been extended at least once, and, according to the appellant, possibly twice. [22] The appellant requested to be appointed to the higher classification A06 position by email on 25 September 2020 This was refused by the chief executive's delegate on 20 October 2020, who reasoned: • The purpose of your current placement in the role of AO6, Senior Project Officer within Data and Information Services is to backfill a substantive employee, while the substantive employee is relieving in an alternative position. • On the return of the substantive employee on 1 January 2021, there will no longer be a continuing need for you to be engaged in the position AO6, Senior Project Officer within Data and Information Services. [23] The Act relevantly provides:2 149C Appointing public service employee acting in position at higher classification level ... (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. 2 my emphasis. -- 4 of 7 -- 5 [24] The phase 'genuine operational requirements' is defined in neither the Act nor the Directive and must, therefore: 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 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.3 [25] In considering the context of s 149C(4A)(a) of the Act, it may be noted that the chief executive of a department is responsible for, among other things: • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;4 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 Act.5 [26] Directive 13/20: Appointing a public service employee to a higher classification level ('the Directive') sets out circumstances that would support the temporary engagement of an employee at a higher classification level, relevantly: (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 ... [27] The nature of the appellant's AO6 placement clearly falls within the contemplation of such circumstances. [28] That the return of the substantive incumbent to the position constitutes a genuine operational requirement militating against permanent appointment has been affirmed by the Commission on several occasions.6 [29] The appellant points to failings on the part of the respondent to permanently appoint temporary employees to permanent roles in the area in a timely manner and raises concerns about poor workplace planning and human resource management. 3 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, 12 [37]- [38] ('Morison') (footnotes omitted). 4 Public Service Act 2008 s 98(1)(b). 5 Ibid s 98(1)(d). 6 Morison (n 2) 13 [41]; Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, 19 [69] ('Holcombe'); Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199, 15 [58], 16 [62]-[65]. -- 5 of 7 -- 6 [30] He also expresses his disappointment about having not been appointed to a higher-level role on a permanent basis, despite working for many years in temporary or higher-level classification roles. [31] The appellant argues that there is a genuine need for him to be appointed to an AO6 position. He relies not only on his own views but those of more senior directors associated with the Open Data team, is support of the position that there is a need for at least two permanent AO6 positions to be created within his area, having regard to the work that is being undertaken. This may well be true. But as McLennan IC has recently held: Clearly, [the appellant] is a valued colleague within her workplace. ... However, the authority to determine the review lies squarely with the department chief executive or their delegate. It is not a question of merit or whether there is work to be done. The question is only whether the genuine operational requirements relied upon by the department to deny [the appellant's] request are fair and reasonable.7 [32] In this matter, the decision maker was obliged to determine whether the appellant should be permanently appointed to the position in which he was acting, have regard, among other factors, to the genuine operational requirements of the department. [33] Although I have sympathy for the appellant's plight, there seems to be no question he is undertaking higher duties in an AO6 position where the substantive holder of the role is absent while performing another role within the agency. [34] According to the respondent, at the time an assessment of the appellant's conversion to higher duties request was undertaken, it was determined the substantive holder of the role would continue to perform temporary higher duties in an AO8 position of manager until 31 December 2020. [35] As a result, the appellant's current temporary higher duties in the AO6 Senior Project Officer position is due to expire on 31 December 2020 which purportedly coincides with the date the substantive holder of the role is to return to that position. Disposition [36] It may well the case that there is a need to create several further permanent higher-level roles within the Open Data Office team. [37] In this appeal, however, I am required to determine whether to decision not to appoint the appellant to his existing higher duties AO6 Senior Project Officer role was fair in reasonable. [38] In conducting the review against the relevant position, the respondent determined that the eventual return of the substantive position holder to the AO6 Senior Project position, presented a genuine operational reason not to appoint the appellant the higher duties position on a permanent basis. 7 Holcombe (n 5) 19 [67]-[68] (my emphasis). -- 6 of 7 -- 7 [39] Although no doubt disappointing for the appellant, I consider it a fair and reasonable decision, in circumstances where only one person can occupy the position at any one time. [40] Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. [41] I order accordingly. -- 7 of 7 --