Cheema v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 496

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Cheema v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 496 Cheema, Arif Nazir (Appellant) v State of Queensland (Department of Transport and Main Roads) (Respondent) CASE NO: PSA/2022/964 PROCEEDING: Public Service Appeal – Appeal against a conversion decision DELIVERED ON: 23 December 2022 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appeal against a conversion decision – where the Appellant requests appointment to the higher classification level – where the Appellant was not appointed due to genuine operational requirements of the Department – whether the decision was fair and reasonable – decision appealed against confirmed LEGISLATION AND OTHERINSTRUMENTS: Directive 13/20 Appointing a public service employee to a higher classification level cls 4, 6, 7, 8 Industrial Relations Act 2016 ss 562C Public Service Act 2008 s 149C -- 1 of 13 -- 2 Transport and Main Roads Enterprise Bargaining Agreement (2019) cl 4 CASES: Gavel v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 262 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Riddiford v State of Queensland (Department of Education) [2021] QIRC 64 Reasons for Decision Appeal details [1] Mr Arif Nazir Cheema (the Appellant) is substantively employed by the State of Queensland (Department of Transport and Main Roads) in Maroochydore as a Principal Engineer (Civil), Program Delivery and Operations Branch, classification PO5. [2] Since 20 August 2020, the Appellant has undertaken higher duties as an AO8 Temporary Manager as part of the Bruce Highway Upgrade – Caboolture – Bribie Island Road to Steve Irwin Way Project ('the Bruce Highway Upgrade'). He was the successful candidate of an open merit recruitment process for the higher duties position and his contract ends 30 June 2023, the expected project completion date. [3] On 14 September 2022, Mr Cheema wrote to the Respondent requesting appointment to the higher classification level. [4] Mr Scott Whitaker, Regional Director (North Coast), subsequently responded to the Appellant on 12 October 2022 to advise the following: I have considered your employment status and determined, due to the genuine operational requirements of the agency, you are to continue to be engaged according to the terms and conditions of your existing higher duties arrangement. [5] Page 2 of the decision addresses the genuine operational requirements of the Department: The position in which you have been performing your higher duties is neither vacant nor ongoing. Position number 16031445 Temp Manager (C2SIW) (AO8) was created for the sole purpose of the -- 2 of 13 -- 3 delivery of the Caboolture to Steve Irwin Way (C2SIW) infrastructure project, with the role being delimited upon completion of the project. Under a previous outcome of a decision in the Queensland Industrial Relations Commission, Riddiford v State of Queensland,1 the Commissioner found: [23] In my view, this is a clear case where the facts do not compel the conclusion that there is an authentic need having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint Ms Riddiford to the position. This is because the position is, in truth, a genuine, temporary project position in respect of which there will be no need to employ any person in the position at the conclusion of the project on its projected end date or whatever reasonable and appropriate project extension end date is decided by the Department. [6] The decision included information suggesting that Mr Cheema did not have an appeal right as he had not been undertaking the higher duties position for two years. Mr Cheema's appeal notice stated that this was incorrect and that he had been in the position for two years. The Respondent's submissions filed on 16 November 2022 confirm that Mr Cheema does have appeal rights. [7] Mr Cheema filed his appeal against this decision on 1 November 2022 and I am satisfied the appeal has been filed within the 21-day appeal period and that Mr Cheema is a person who may appeal. Relevant sections of the Act and Directive [8] 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). [9] 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. … 1 Riddiford v State of Queensland (Department of Education) [2021] QIRC 64. -- 3 of 13 -- 4 (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 – (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). … (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 [10] While all of 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 -- 4 of 13 -- 5 consider whether the employee has any performance concerns that have been put to the employee and documents 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. 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. 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? [11] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (the 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. Grounds of appeal [12] Mr Cheema sets out his reasons for appeal in Part C of the appeal notice: … The Decision dated 12 October 2022 is neither fair, nor reasonable: -- 5 of 13 -- 6 • The decision maker failed to fully consider all mandatory elements for a conversion decision • He specifically failed to take into account relevant considerations regarding the genuine operational requirements of the Department of Main Roads (the Department) as required under section 149(4A)(a). • The decision maker failed to consider the purpose of the relevant section of the Public Service Act 2008 (the Act), the Directive 09/20 Fixed term temporary Employment and the Directive 13/20 Appointing a Public Service Employee to a Higher Classification Level • The decision maker failed to consider genuine operational requirements beyond the current project, such as the efficient and appropriate management of the public resources • The decision maker failed to consider relevant QLD Government policies such as the Employment Security Policy • The decision maker fails to apply the relevant QLD Government Directive 09/20 Fixed term temporary employment c 1.1, [cl] 8.2 • The decision maker failed to consider requirements the Transport and Main Roads Enterprise Bargaining Agreement 2019 [cl] 4.1.2 • The decision maker used a precedence case not relevant to my situation, to justify his decision, while relevant decisions were not considered • The decision maker erred in his opinion that a vacant and ongoing position is required for conversion. • The decision maker failed to provide material findings of fact and the evidence relied up on in coming to the decision as required under cl 7.1 of Directive 13/20 and instead provided a generic declining response Submissions of the parties [13] The Respondent filed its submissions on 16 November 2022. The Respondent sets out its response to each of the grounds of appeal listed by Mr Cheema in his appeal notice. Ground of Appeal: The decision-maker has not provided material findings of fact to support the decision [14] The Respondent notes that cl 7.1 of the Directive requires that where the chief executive decides to refuse a request, the written notice provided to the employee must set out the findings on material questions of fact and refer to the evidence or other material upon which those findings were based. The Respondent submits that the written notice provided to Mr Cheema was provided within the required timeframe and that the considerations and reasons for decision were provided in accordance with cl 7.1. -- 6 of 13 -- 7 [15] Mr Cheema says that similar to the decision in Gavel v State of Queensland (Department of Transport and Main Roads),2 the decision notice fails 'to consider key facts and to provide material findings of fact and the evidence relied upon in coming to the decision, specifically why conversion is possible for some doing project work, but not for others, as required under cl 7.1 of Directive 13/20.' [16] I have reviewed the letter provided to Mr Cheema. The letter addresses the relevant matters required by the Directive and the decision-maker provides the reason upon which he determined not to appoint Mr Cheema to the higher duties classification. Mr Cheema may not agree with those reasons and he may be of the view that other matters should have been taken into account, however it is clear from reading the letter that the decision- maker has determined that as the role was created to work on a particular project with a fixed end date, there is no ongoing need for the role beyond that end date. This is a finding and explains on what grounds the finding was made. [17] The ground of appeal that the decision has not provided material findings of fact to support the decision is not made out. Ground of Appeal: The genuine operational reasons of the Department were not considered and the decision-maker provided a 'generic declining response' [18] The Respondent says that in making the decision, the decision-maker must have regard to the genuine operational reasons of the Department and the reasons for each decision previously made.3 [19] Deputy President Merrell considered the meaning of the words 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).4 His Honour noted that the phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive and said: [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, 2 [2021] QIRC 262. 3 Public Service Act 2008 s 149C(4A). 4 [2020] QIRC 203. -- 7 of 13 -- 8 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. [39] In respect of the Directive, cl 4.2 provides that 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. That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include: • 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; or • 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. [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 period of time, to '…the position at the higher classification level.'5 [20] The Respondent points to the decision of Holcombe,6 where McLennan IC considered the relevant parts of the Act and the Directive and concluded that: The consideration of whether the employee meets the merit principle, and whether there are any genuine operational requirements which prevent the conversion, are with respect to 'the position' occupied by the employee by way of secondment at the time of seeking the review. It is not an unconstrained review into similar positions, such as positions with the same title and classification. The more broadly ranging view that Mrs Holcombe is seeking is to some extent provided for in ss 149A and 149B, but the language of s 149C is pointedly distinguishable. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C, and the practical limitations which are inherent to s 149C and the Directive. I recognise that there is some inconsistent wording applied in the Directive, including terms such as 'role', but that is resolved by paying appropriate heed to the context of those terms. In short, the power to grant the request is contained at s 149C of the PS Act, which is supplemented by the Directive. In several instances, the Directive re-phrases or summarises s 149C, particularly when 5 Emphasis added. 6 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] 195, [80] ('Holcombe'). -- 8 of 13 -- 9 discussing the objects of the Directive, and in doing so uses slightly different terminology. Such instances do not supersede or disturb the precise wording of s 149C. [21] The Respondent also points to cl 4.2(c) which relevantly states that a circumstance which would support the temporary engagement of an employee at the higher classification level includes 'to perform work for a particular project or purpose that has a known end date' and s 148(2)(b) which states that employment on tenure may not be viable or appropriate if the employment is to perform work for 'a particular project or purpose that has a known end'. The Respondent contends that Mr Cheema's employment in the higher duties role is for a particular project or purpose that has a known end date. The Respondent says that the reasoning in Riddiford is applicable to this matter and that the cases cited in Riddiford further support the Department's decision. [22] The Respondent states that the decision-maker reviewed the request in accordance with s 149C of the Act and Directive 13/20. The Respondent asserts that the position was created specifically for the delivery of the Bruce Highway Upgrade. [23] The Respondent contends that the business need for a person to perform the work of an AO8 Temporary Manager will cease upon the anticipated project end date of 30 June 2023. At that time, the Respondent says that the Appellant will return to his substantive PO5 Principal Engineer (Civil) role where meaningful and ongoing work exists. Continuation of the AO8 Temporary Manager position beyond 30 June 2023 does not demonstrate effective, efficient and appropriate management of the public resources of the Department. [24] The Respondent says that the decision-maker determined that the Appellant was performing the work (the position of AO8 Temporary Manager (C2SIW)) for a particular project that has a known end date (30 June 2023) and decided that all three sub-criteria of cl 4.2(c) were met. [25] Mr Cheema says that the Department is incorrect in stating that the expected project completion date for C2SIW is 30 June 2023. Mr Cheema says that the project is constructed in sections using two separate construction contracts. Mr Cheema says that the practical completion dates at the time of his submission for Contract 1 is 12 June 2023 (with 26 days of outstanding extension of time requests under review), and for Contract 2 is 22 January 2024. Mr Cheema says that considering another wet season is still to come, Contract 1 is expected for completion by August 2023 and Contract 2 by April 2024. Mr Cheema says that there will be a continuing need for his role on the project until financial completion of the project, which is expected in late 2024. [26] Mr Cheema submits that the consideration of genuine operational requirements should 'also include consideration for the effective and appropriate management of public -- 9 of 13 -- 10 resources especially considering the ongoing operational need for a Manager (Project Delivery) with in the SP Unit of the North Coast Region'.7 [27] Mr Cheema says that the Respondent relied solely on the 'premise that current position is delimited and erred in his opinion that a vacant and ongoing position is required for conversion'. Mr Cheema says that neither the PS Act nor Directive 09/20 require there to be a permanent vacancy before an employee can be permanently converted in their current role. [28] Mr Cheema's submits that a range of matters point to a genuine operational need for his appointment to the higher duties position. In summary, the Appellant says: • The current position sits with the Significant Projects Organisational Unit. • The SP Unit was specifically created to ensure the delivery of the upcoming program of works expected for the region. • There are multiple significant projects expected to commence delivery phases in the near future. • There are multiple other significant projects within the region that are in the process of transitioning from the region's Planning Unit to the SP Unit for delivery with confirmed funding outlined in QTRIP 2022-23 to 2025-26. • The latest budget allocates funds for projects which are expected to be delivered by the SP Unit. • The region is expected to deliver other significant projects to facilitate a part of the 2032 Olympics being held in the region and this will also be delivered by the SP Unit. • North Coast Region QTRIP Workforce Plan also acknowledge the future growth and states in section 8.1.2, 'the new high-profile projects set to commence in the coming years' and the consequences of the 'lack of qualified resources' to be able to deliver these projects. • The region is currently creating 'temporary roles' and acknowledges that there is an ongoing stream of significant projects. • Growth in the region and corresponding infrastructure need is also supported by the Sunshine Coast Council's growth models. 7 'SP Unit' refers to the Significant Projects Unit. -- 10 of 13 -- 11 [29] Mr Cheema says that the Department's approach of creating temporary positions contradicts the intent of the Directive 'where it is desired to fulfil the ongoing demand for the roles with permanent positions'. [30] Mr Cheema says that the Department has acknowledged the ongoing need for the SP Unit by converting the Temporary Manager (Delivery Support) role to a permanent position. Mr Cheema says that the Position Description used for the recruitment of that role 'was generic to be able to be used on multiple projects or even for Delivery Support manager in the Significant projects Unit'. [31] Mr Cheema submits that he is likely to be tasked with a role substantially the same in another project once the current temporary assignment comes to an end. Mr Cheema says that the position description used for the recruitment of the role was generic and stated that applications for the role may be used to appoint to similar vacancies. Mr Cheema says that the role is for Temporary Manager and is not specific to the C2SIW project. [32] In reply, the Respondent states that consideration and decision-making must include the 'rise and fall' of the Queensland Transport Roads and Investment Program and how finding contributions (sometimes varied) from both Federal and State Governments impact on the planning and facilitation, including resource allocation. [33] The Respondent notes Mr Cheema's submissions regarding current high demand but says that there is no firm commitment from either the Federal or State Governments as to how long this demand may continue or when priorities may vary including links to specific project funding. [34] The Respondent says that 'in an extremely low number of cases' it relies on temporary fixed-term positions that are tied to specific funding arrangements for specific projects for a specific and finite length of time. [35] The Respondent says that in the overwhelming majority of higher duties conversions, it supports conversion to occur, however it says that it cannot a request for conversion against a project with finite funding for a finite period of time in circumstances where this would 'inadvertently solidify employees in higher classifications' where there may not be a need or demand for such a position. [36] Mr Cheema says, 'the position subject of the review is that of Manager (AO8) (Project Delivery) within SP Unit'. Mr Cheema says that the Respondent has incorrectly restricted its review to the specific position of Manager (C2SIW) and has ignored any broader ongoing program commitments and resource requirements in his consideration while arriving at his decision. Mr Cheema again points to the decision in Gavel.8 8 [2021] QIRC 262 ('Gavel'). -- 11 of 13 -- 12 [37] I have considered these submissions and I find that while the role description may have been the same for the three positions and to that extent is generic, it is clear that the position to which Mr Cheema was appointed is not a 'generic' Manager AO8 Project Delivery role. I accept that Mr Cheema's skills and knowledge are transferable and would enable him to work on any number of projects, however the higher duties role to which he was appointed is not generic: it is described as Temporary Manager (CBIR2SIW) and has a listed end date. [38] While there are some similarities in Mr Cheema's situation as there were in Gavel, my reading of Gavel identifies that while the Respondent argued that Ms Gavel was working on a particular project, the role she was undertaking was that of PO4 Senior Designer and that she had been undertaking that role for about three years at the time of the request and the project was funded until June 2023. I do not have enough information available to me to identify how that role was advertised or what the detailed position description of the role entailed, but it does not appear from the decision in Gavel that the specific name of the project Ms Gavel was working on was included in or attached to the name of the position Ms Gavel was undertaking. [39] My view is that if I were to determine to appoint Mr Cheema to 'the position at the higher classification level', I would effectively create a 'Permanent Manager CBIR2SIW' for a project that is due to conclude as soon as 2023. In this case, I find that the appropriate approach, is that adopted by Merrell DP in Riddiford and quoted in the decision provided to Mr Cheema. The position is for a specific project with a specified end date and therefore it is a genuine, temporary project position. The project completion date appears likely to be extended, but it is still the case that the need for the Temporary Manager CBIR2SIW will cease upon completion of the project. [40] There may well be many projects on the horizon and I accept that there may be a need for managers to be appointed to those future projects. Mr Cheema's point is that he is likely to be offered continuing work at the higher classification level in those further projects. This may be the case, but I am unwilling, on the material before me, to insert myself into decision-making about the leadership needs of those projects or to create a new permanent AO8 position on the basis of high-level strategic documents or predictions about the infrastructure projects to be undertaken in the region in the future. [41] I find that the genuine operational requirements of the Department were considered and that the decision-maker determined that there is no permanent need for a manager for the Caboolture – Bribie Island Road to Steve Irwin Way project. -- 12 of 13 -- 13 Ground of Appeal: The decision-maker failed to consider the relevant Queensland Government policies and directives including the Employment Security Policy and Directive 09/20. Ground of Appeal: The decision-maker failed to consider the requirements of the Transport and Main Roads Enterprise Bargaining Agreement (2019) cl 4.1.2 [42] Given the overlap between these grounds of appeal, I have determined to consider them together. [43] Clause 4.1.2 of the Enterprise Bargaining Agreement relates to maximising permanent employment. Mr Cheema has permanent tenure in the position of PO5 Principal Engineer (Civil) and has provided no evidence that the decision-maker was required to consider this clause of the Agreement or how, if this was required, the decision-maker has failed to do so. [44] Likewise, there is no evidence before me that the decision-maker failed to consider the Employment Security Policy or Directive 09/20. Mr Cheema is a permanent employee of the Department and therefore the Directive regarding conversion to permanent is not the applicable Directive in this case. Likewise, the Employment Security Policy is about maximising permanent employment and as Mr Cheema is permanently employed, that policy has no application to this appeal. [45] As has been discussed above, the relevant Directive is 13/20. Clearly that Directive 'supports the opportunity to appoint an employee to a higher classification level'. However the Directive goes on to provide for circumstances that would support the temporary engagement of the employee at the higher classification level. For the reasons given above, I have determined that the decision maker has given regard to the genuine operational requirements of the Department in making the decision. Conclusion and Order [46] For the reasons I have given above, the decision appealed against is confirmed. -- 13 of 13 --