Davies v State of Queensland (Department of Housing and Public Works) [2020] QIRC 221

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Davies v State of Queensland (Department of Housing and Public Works) [2020] QIRC 221 PARTIES: Davies, Bernadette (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2020/284 PROCEEDING: Public Service Appeal – Conversion Decision DELIVERED ON: 11 December 2020 MEMBER: HEARD AT: Power IC On the papers OUTCOME: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. LEGISLATION: Industrial Relations Act 2016 (Qld), ss 451, 562B and 562C Public Service Act 2008 (Qld), ss 148, 148A, 149, 149A, 149B, 149C and 197 Acts Interpretation Act 1954 (Qld), s 27B Public Service and Other Legislation Amendment Bill 2020 (Qld) Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6, 7 and 11 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 -- 1 of 12 -- 2 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Katae v State of Queensland & Anor [2018] QSC 225 Minister for Aboriginal Affairs & Anor v Peko- Wallsend Ltd & Ors (1986) 162 CLR 24 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision Introduction [1] Ms Bernadette Davies (the Appellant) is currently backfilling the position of Senior Property Registration Officer (SPRO) at the State of Queensland (Department of Housing and Public Works) (the Respondent). [2] The Appellant appeals a decision by Ms Tully Stewart, Acting Director, Human Resources, dated 20 October 2020, to deny the request made by the Appellant to be permanently appointed to the position at the higher classification level in which she had been acting. [3] The decision was made pursuant to s 149C(4A) of the Public Service Act 2008 (Qld) (the PS Act) and clause 6.2 of the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive). [4] Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. [5] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,3 but involves a review of the decision arrived at and the decision-making process associated therewith. 1 IR Act s 562B(2). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 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 PS Act. -- 2 of 12 -- 3 [6] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for my determination is whether the decision by Ms Steward to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances. Background [7] The Appellant is a permanent employee of the Respondent and is substantively employed in the position of Property Registration Officer, classification AO3, within Asset Management at the Department of Housing and Public Works. [8] Since 26 October 2018, the Appellant has been acting in the position of SPRO at the higher classification level of AO4. [9] By email dated 24 September 2020 to Mr Denzil Stevenson, HR Consultant, Department of Housing and Public Works, the Appellant queried if she qualified to be appointed to her acting role. Mr Stevenson responded on 25 September 2020, advising that the internal processes were being finalised and that further contact will be made soon. [10] By letter dated 20 October 2020, Ms Stewart informed the Appellant of the decision. In doing so, Ms Stewart stated: After considering your request to be permanently employed in the position of AO4, Senior Property Registration Officer within Asset Management, and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Deputy Director- General's decision are as follows: • The purpose of your current placement in the role of AO4, Senior Property Registration Officer within Asset Management, is to backfill the substantive employee while the substantive employee is relieving in an alternative position. • Should the substantive employee return to their position of AO4, Senior Property Registration Officer within Asset Management, there will no longer be a continuing need for you to be engaged in that role. Relevant provisions of the Act and the Directive [11] Section 149C of the PS Act 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 1 year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … (3) 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- 4 IR Act s 562B(3). -- 3 of 12 -- 4 (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). (4) The department’s chief executive must decide the request within the required period. (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. (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 person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) 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. (6) If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. … (8) In this section- continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). required period, for making a decision under subsection (4), 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. [12] The Directive relevantly provides: 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 documented and 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. 6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement. -- 4 of 12 -- 5 6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act. 7. Statement of reasons 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. 7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3. Appellant's grounds of appeal [13] In her appeal notice, the Appellant contends that: • The Senior Property Registration Officer position's substantive occupant has been seconded to a higher duties role for over 2 years and this has been extended to the 30 March 2021, with the expectation of being extended further; • Ms Davies expects to be extended as she has not been advised otherwise; • The absence of the substantive occupant for well over 2 years indicates there is little risk in appointing the Appellant to the position permanently; • The substantive Senior Property Registration Officer is back filling a position where the substantive occupant has been on higher duties elsewhere for over 5 years with the expectation that arrangement will also continue . Submissions [14] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. In summary, the submissions of both parties are as follows. Appellant's Submissions [15] The Appellant filed submissions in support of the appeal. A summary of those submissions are as follows: • there is no dispute between the parties as to the Appellant's eligibility to request to be permanently appointed to the SPRO role under s 149C of the PS Act; • neither the PS Act or the Directive define 'genuine operational requirements' within the context of s 149C(4A)(a), so that term must be given its ordinary meaning; -- 5 of 12 -- 6 • the Appellant relies upon Minister for Aboriginal Affairs & Anor v Peko- Wallsend Ltd & Ors,5 to submit that 'genuine operational requirements' should be implied from the subject matter, scope and purpose of the PS Act, being 'the broader context' in which the PS Act and the Directive operate; • relevant to the interpretation of s 149C(4A)(a) of the PS Act are the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 (the Bill), which states at page 3: A primary objective of the Bill is to drive more effective and consistent application of the existing commitment to maximise employment security… This includes amendment to definitions and provision to: o Clarify that the only matter a chief executive can have regard to when determining if the conversion review is viable or appropriate is the 'genuine operational requirements' of a department; • further, the Explanatory Notes provide an insight into the Parliamentary intent of how 'genuine operational requirements' are to be considered, as below (emphasis added): Amendment 15 amends clause 37 of the Bill (Replacement of Chapter 5, Part 5 (General and temporary employees) to require that in making a decision on request from an employee, about an appointment to a position at a higher classification level, the department's chief executive must have regard to the genuine operational requirements of the department. This aligns with the considerations that apply to a fixed term temporary and casual conversion provisions. • the considerations that apply to fixed term temporary conversion are whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same and conversion to permanent employment must be offered unless it is not viable or appropriate having regard to the genuine operational requirements of the agency; • Katae v State of Queensland & Anor (Katae),6 is the Supreme Court authority on the application of those provisions as they appeared in substantially the same form in the former Directive 08/17 Temporary Employment. It was held in Katae at [35] that the words "unless there are genuine operational reasons not to do so" from clause 9.7 of the Directive 08/17 must be interpreted together with the criteria outlined in clause 9.6 rather than in isolation; • the Appellant submitted that the relevance of the considerations in Katae under Directive 08/17 Temporary Employment were applicable in consideration of the Directive; • the Appellant submits that the decision maker must have regard to the criteria from s 149C(4A) of the PS Act, being the genuine operational requirements of the Department. As part of that consideration they may consider some of the circumstances that would support only the temporary engagement of an 5 (1986) 162 CLR 24. 6 [2018] QSC 225. -- 6 of 12 -- 7 employee as outlined under 'Principles' in clause 4.2. The fact a role is not substantively vacant or that backfilling arrangement exists may be a consideration as to why a permanent appointment should not be made. It is not, however, a threshold questions, nor should it be a blanket reason to decline an appointment; • at their highest, the circumstances listed in clause 4.2 of the Directive are a non-exhaustive list of considerations that may assist the decision maker in assessing the mandatory criteria of 'genuine operational requirements of the Department'; • the Respondent has not had proper regard to the genuine operational requirements of the Department which must be taken into account when making a decision to refuse her request; • the Respondent has not provided the material findings of fact and the evidence relied upon in coming to the decision as required by the Directive and s 27B of the Acts Interpretation Act 1954 (Qld); • these findings of material questions of fact and references to the evidence relied on have not been articulated in regard to the Respondent's assessment of the operational requirements of the Department; • the Appellant has been acting in her current higher duties role to backfill her AO4 colleague who is also relieving at a higher classification to backfill an AO5 who is again acting up in higher duties in an AO6 role. This cascading long-term relieving arrangement has been in effect for over five years as the substantive owner of the AO6 role has been absent from the role since 2015; • the employee who holds the substantive AO6 role has been extended in her higher duties role until 30 June 2021 and a submission is being prepared for the substantive AO6 employee to be extended for a further 12 months to 30 June 2022. The Appellant has no reason to believe the cascading acting up arrangements will be changed for the period up to 30 June 2022, such that correspondingly the Appellant also expects to be extended in her acting role for this further period; • the Appellant has been working within Property Management since 29 January 2018. Whilst in the SPRO role, she has overseen the implementation of a new property management system and subsequently led her team through the complementary tenancy system implementations; • these system implementations have seen the Appellant leading process improvement, designing training for her team for property management and has put her in the position of holding all the supervisory subject matter expertise of the systems and processes for property registration. Further, the Appellant has built excellent relationships with stakeholders both within the Department and externally with community and local government organisations; -- 7 of 12 -- 8 • in contrast, the substantive owner of the role that the Appellant is acting up in has not worked in the position for over two years and has no working knowledge of the new systems, processes or how these effect the property registration team; • the corporate knowledge obtained by the Appellant during her time acting in the role is of substantial value to the Department. Were the cascading relieving arrangements to end, forcing each employee back to their respective substantive roles, the impact to the public purse would be quantifiable given the cost in pay public servant salaries for the necessary time to train incoming employees and the associated additional cost of inefficiencies in workplace disruptions; and • the Appellant understands that there is a converse risk that in certain circumstances if other seconding/relieving arrangements ended it may lead to a situation of the Department having additional Full Time Employees on their books which is surplus to requirements or is over establishment. There are existing processes however, available to the Department to ensure permanent employees have security in their employment such as allowing employees to detach from or relinquish their roles but not their substantive classifications. Respondent's Submissions [16] The Respondent filed the following submissions in response to the appeal, in summary: • by letter provided to the Appellant, the Appellant was advised that the Respondent had made a decision to continue the Appellant's temporary placement in the higher classification level position, in accordance with the terms of that temporary placement; • the Respondent does not contest that the Bill and the ensuing amendments to the PS Act sought to give full effect to the Government's commitment to maximising employment security in public sector employment; • however, clause 4.2 of the Directive provides that 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 type of roles; (c) to perform work for a particular project or purpose that has a known end date; or (d) to perform work necessary to meet an unexpected short-term increase in workload; -- 8 of 12 -- 9 • further, clause 6.2 of the Directive and s 149C(4A) of the PS Act provides that, when deciding a 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 s 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level; • to that end, the Respondent submits that, as the Appellant's current temporary placement in the AO4, SPRO position, is to backfill the substantive employee, who is relieving in an alternative position, there will no longer be a continuing need for the Appellant to be placed in the AO4, SPRO position once the substantive employee returns to work in their substantive position; • as the Department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4 SPRO position within Strategy, Policy and Programs, HHS, it is not appropriate or viable for the Department to offer to permanently employ the Appellant in that position; • in relation to the requirement to the chief executive to consider the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act, in relation to the Appellant during their continuous period of employment at the higher classification level, no such previous decision have been made or deemed to have been made about the Appellant by the chief executive or delegate; • with respect to the Appellant's submission that their higher duties placement is as a consequence of cascading relieving arrangements, the Respondent notes that: (a) the Appellant's temporary placement in the AO4 SPRO position is to backfill the substantive employee, while the substantive employee has been relieving in an alternative position; (b) the substantive employee of the AO4 SPRO position is temporarily performing an AO5 Program Officer position within HHS, while the substantive employee of that position has been relieving in an alternative position; and (c) the substantive employee of the AO5 Program Officer position is temporarily performing in an AO6 Senior Program Performance Officer position within HHS, while the substantive employee of that position has been relieving in an alternative at level position within the Department; • notwithstanding that the Directive is quite clear that temporary circumstances still exist and therefore there is a place, where appropriate, to temporarily engage or place employees at a higher classification level. Relevantly, clause 4.2 of the Directive provides that such temporary circumstances include -- 9 of 12 -- 10 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; • the Respondent considers that clause 4.2 of the Directive is relevant for this matter, in that it clearly demonstrates that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level position, where their skills are only temporarily required prior to the permanent employee returning to their substantive position; • the Respondent submits this is the case with respect to the Appellant, and the decision of the Respondent to refuse the Appellant's request is fair and reasonable; • the Respondent submits that in advising the Appellant of the decision, a written notice was provided to the Appellant stating: (a) the reason for the decision; (b) the total continuous period for which the person has been employed at the higher classification level in the Department; and (c) how many times the person's engagement at the higher classification level has been extended; • this meets the requirements of the Directive and s 27B of the Acts Interpretation Act 1954 (Qld), in that the letter sets out the findings on material questions of facts, and referred to the evidence on which those findings were based; • in relation to the requirement for the written notice to detail the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act, in relation to the Appellant during their continuous period of employment at the higher classification level, the written notice provided to the Appellant contains no such details as no previous decisions have been made or deemed to have been made about the Appellant by the chief executive or delegate; and • the Respondent submits that the decision maker complied with s 149C of the PS Act and the Directive in making the decision to refuse the Appellant's request. Consideration [17] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [18] The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement. -- 10 of 12 -- 11 [19] The reasons given for the Respondent's decision are as follows: a. The purpose of your current placement in the role of AO4, Senior Property Registration Officer within Asset Management, is to backfill the substantive employee while the substantive employee is relieving in the alternative position. b. Should the substantive employee return to their position of AO4, Senior Property Registration Officer within Asset Management, there will no longer be a continuing need for you to be engaged in the role. [20] The Appellant believes the Respondent has erred in making the decision as they have considered only that the role the Appellant has been acting in is substantively owned and in doing so have failed to have regard to the mandatory considerations under s 149C(4A) of the PS Act. [21] The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A): (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. Genuine operational requirements [22] The Appellant submits that neither the PS Act nor the Directive include a role being substantively vacant as a prerequisite for appointment to the higher classification level. This is correct, however s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision-maker must have regard to the 'genuine operational requirements of the department'. [23] In respect of the Directive, clause 4.2 outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including: • 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. [24] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),7 the phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, construed in context, would at least include consideration of the following: … whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.' [25] In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant should be appointed to the higher position when it was possible the incumbent was likely to return to that position. As submitted by the Respondent, the Department does not have a genuine operational 7 [2020] QIRC 203. -- 11 of 12 -- 12 requirement for the Appellant to continue in this role once the substantive employee returns to work in their substantive position. Previous reasons for acting at a higher classification level [26] Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level. [27] On the basis that s 149C of the PS Act commenced operation on 14 September 2020, no previous decisions were made under this section of the PS Act. Compliance with requirements of s 149C [28] The Respondent is required to comply with s 149C(4A) 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 person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) 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. [29] The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for two years following nine extensions where the substantive employee has been relieving in an alternative position. As mentioned above, no previous decisions could have been made under this section of the PS Act and so s 149C(5)(d) was not included. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act. [30] In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was fair and reasonable. Order [31] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 12 of 12 --