Chinniah v State of Queensland (Queensland Police Service) [2022] QIRC 186

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Chinniah v State of Queensland (Queensland Police Service) [2022] QIRC 186 Chinniah, Anitha (Appellant) v State of Queensland (Queensland Police Service) (Respondent) CASE NO: PSA/2022/499 PROCEEDING: Public Service Appeal – Appointment to Higher Classification Level DELIVERED ON: 30 May 2022 MEMBER: HEARD AT: McLennan IC On the papers ORDER: That the appeal is dismissed. CATCHWORDS: LEGISLATION AND DIRECTIVES: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the Appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the Appellant was not permanently appointed – where the incumbent of the position is returning – consideration of 'the position' – consideration of 'genuine operational requirement' – where there is a vacant position - where decision was fair and reasonable Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564, s 567 -- 1 of 17 -- 2 CASES: Public Service Act 2008 (Qld) s 149C, s 194, s 196, s 197 Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 13/20 Appointing a public service employee to a higher classification level cl 1, cl 3, cl 4, cl 5, cl 6, cl 7, cl 8, cl 9, cl 10, cl 11 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Katae v State of Queensland & Anor [2018] QSC 225 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Reasons for Decision Introduction [1] Mrs Anitha Chinniah (the Appellant) is substantively employed as an AO5 Deployment Officer, ICT Delivery by Queensland Police Service (QPS; the Department), State of Queensland (the Respondent). [2] Mrs Chinniah has been acting at a higher classification level as a AO6 Senior Deployment Officer, ICT Delivery since 22 August 2018. She has been extended in that position until 30 June 2022.1 [3] As a result of her conversion request submitted on 15 March 2022, the Department considered whether to appoint Mrs Chinniah to the higher classification position pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20). [4] On 31 March 2022, the Department advised Mrs Chinniah via email correspondence that her request had been refused and her employment would continue according to the terms of the existing higher duties arrangement (the decision).2 1 Respondent's Submissions, 10 May 2022, 3 [14]; Appeal Notice filed 20 April 2022, 3 – 4. 2 Email from Mr G. Patterson, Acting Executive Director, Human Resources Division, Queensland Police Service to Mrs A. Chinniah, 31 March 2022. -- 2 of 17 -- 3 [5] On 20 April 2022, Mrs Chinniah filed an appeal against the decision. Jurisdiction Decision against which an appeal may be made [6] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision "…under section 149C not to appoint an 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 2 years." [7] Section 197 of the PS Act allows for the appeal to be heard and decided by the Industrial Relations Commission. [8] Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. Mrs Chinniah meets that requirement. [9] It is not a point of dispute between the parties that Mrs Chinniah was eligible to request conversion to the higher classification position. I am satisfied that the conversion decision made by the Department is able to be appealed. Timeframe for appeal [10] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [11] The decision was given on 31 March 2022. [12] The Notice of Appeal was filed with the Industrial Registry on 20 April 2022. [13] I am satisfied that Mrs Chinniah filed the appeal within the required timeframe. Appeal principles [14] Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [15] The appeal is not conducted by way of re–hearing,3 but rather involves a review of the decision arrived at by the Department and the associated decision–making process.4 [16] Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.5 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1). 4 Ibid s 562B(2). 5 Ibid s 567(2). -- 3 of 17 -- 4 [17] The issue for my determination is whether the decision not to convert Mrs Chinniah's employment status to the higher classification position was fair and reasonable in the circumstances.6 What decisions can the IRC Member make? [18] Section 562C of the IR Act prescribes that the Commission may determine to either: • confirm the decision appealed against; • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or • set the decision aside and substitute another decision. Relevant provisions of the PS Act and Directive 13/20 [19] The legislative scheme for the review of a decision to convert an employee to a higher classification level is contained in the IR Act, PS Act and in Directive 13/20. [20] Section 149C of the PS Act provides (emphasis added): 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. (2) However, this section does not apply to the following public services employees— (a) a casual employee; (b) a non–industrial instrument employee; (c) an employee who is seconded to or acting in a position that is ordinarily held by a non–industrial instrument employee. (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). (4) The department's chief executive must decide the request within the required period. 6 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B. -- 4 of 17 -- 5 (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. (7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section. (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. [21] Further, s 194(1)(e)(iii) of the PS Act provides (emphasis added): 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (e) a decision (each a conversion decision)— … (iii) under section 149C not to appoint an 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 2 years; [22] Directive 13/20 relevantly provides: 3. Application 3.4 The requirement to advertise roles in Directive 13/20 relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a -- 5 of 17 -- 6 higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive. 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 4.3 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. 5. Employee may request to be appointed at the higher classification level 5.1 Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer. 5.2 To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must: (a) have been seconded to or assuming the duties and responsibilities of the higher classification level (b) for a continuous period of at least one year (c) be eligible for appointment to the higher classification level having regard to the merit principle. 5.3 Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level: (a) one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and (b) each subsequent year where the employee continues their engagement at the higher classification level in the same role. 5.4 An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy. 5.5 The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause. -- 6 of 17 -- 7 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. 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. 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. 8.2 In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years. 9. Exemption from advertising 9.1 Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive. -- 7 of 17 -- 8 10. Transitional provisions 10.1 Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer. 11. Definitions Agency has the meaning provided in clause 3.3 of this directive. Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power. Continuous period for the purposes of this directive, means 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. Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level. Non–industrial instrument employee has the meaning given under the Industrial Relations Act 2016. Public service agency means a department or public service office as provided for in section 49A of the PS Act. Secondment has the meaning given under section 120(1)(a) of the PS Act. Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed. [23] Directive 13/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).7 [24] Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective. [25] The stated purpose of Directive 13/20 is: 1. Purpose 1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non–industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. 1.2 This directive: 7 Katae v State of Queensland & Anor [2018] QSC 225, [26]. -- 8 of 17 -- 9 (a) highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level (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 (c) sets out procedures for requests and decisions.8 Submissions [26] In accordance with the Directions Order issued on 26 April 2022, the parties filed written submissions. [27] Mrs Chinniah filed her written submissions on 3 May 2022. [28] The Department filed its written submissions on 10 May 2022. [29] Mrs Chinniah filed no further submissions in reply. [30] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers. [31] I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided. Consideration [32] I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. [33] This involves a review of the decision–making process utilised and the conversion decision arrived at. Purpose [34] In deciding this Appeal, I note the significance of the legislative provisions identified and explained above. [35] In summary, the status of Directive 13/20 as a statutory instrument provides that the interpretation that will best achieve the purpose and/or policy objective of Directive 13/20 is to be preferred to any other interpretation. [36] In that regard, I recognise that one of the stated purposes of Directive 13/20 is to support "…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."9 8 Directive 13/20 Appointing a public service employee to a higher classification level cl 1. 9 Ibid cl 1.2(a)-(b). -- 9 of 17 -- 10 Two pathways to deciding an employee's conversion request [37] There are two pathways by which an employee's s149C conversion request may be decided by the department decision maker. The first pathway is where a decision is made and communicated to the employee in writing within the required 28-day timeframe. The second pathway is where a decision is deemed to have been made to refuse the conversion request, in circumstances where no such written notice is provided to the employee within the required 28-day timeframe. Each of these two pathways are envisaged and permitted under the current legislative framework. [38] The first pathway mandates the decision maker's consideration of specific criteria and the production of a written notice to the employee (that itself includes particular components) within the required 28-day timeframe. That is the relevant consideration in this appeal. Decision criteria [39] The PS Act and the Directive provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to: • whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle; • the genuine operational requirements of the department; and • 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. [40] Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating: • the reasons for the decision; • the total continuous period for which the person has been acting at the higher classification level in the department; • how many times the person's engagement at the higher classification level has been extended; and • 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 notice provided to the employee must: • set out the findings on material questions of fact, and • refer to the evidence or other material on which those findings were based. -- 10 of 17 -- 11 Merit [41] There is no dispute between the parties with respect to Mrs Chinniah's merit. What is 'the position' subject of this appeal? [42] Before assessing whether there are any genuine operational requirements of the Department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled. [43] Section 149C(1)(c) of the PS Act provides that s 149C applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the Department to permanently appoint Mrs Chinniah is confined to the position into which she has been placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level. [44] In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position. [45] Mrs Chinniah's current higher classification engagement is said to be for the purpose of backfilling an incumbent employee "who has been undertaking project work for Frontline Digital Services."10 The Department submitted that: The Appellant is backfilling in the position of Senior Deployment Officer which is owned by an officer undertaking IT project work reviewing and refreshing IT equipment that is at the end-of its- life cycle. This project work is specifically focussed on delivering activities for all previous portfolio agencies, i.e., QPS, QAS and QFES. Although the Appellant is undertaking BAU work in the Senior Deployment Officer role the position is permanently owned.11 [46] The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position name, classification and number. When they return, they are returning to that precise position. [47] Mrs Chinniah has submitted that the AO6 position she is currently acting in is Position 1-953982.12 The outcome Mrs Chinniah seeks through the filing of her appeal is a permanent appointment to "The current vacant permanent position (1-953978)…the same as my current acting position."13 That means Mrs Chinniah seeks to be permanently appointed to a different position – the one that is currently vacant. [48] Section 149C of the PS Act, in concert with Directive 13/20, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those 10 Respondent's submissions, 10 May 2022, 3 [16]. 11 Ibid 4 [24]. 12 Appellant's submissions, 3 May 2022, 1 [2]. 13 Ibid [4] – [5]. -- 11 of 17 -- 12 materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State. [49] By way of contrast, a broader ambit is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same. Following the review, the department's chief executive may "offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer". Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number. [50] The language of s 149C is narrower: the employee may ask the Department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer. That does not empower the Department's chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time. [51] The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 149C. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad–ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so. [52] Clause 1.2(b) of Directive 13/20 provides that it "supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle". At first blush, there is some inconsistency between that clause, and the terminology used in s 149C and indeed other parts of Directive 13/20 as set out above. However, any inconsistency is resolved by having appropriate regard for where those words appear. Clause 1.2 is not the source of power to make the permanent appointment. Instead, it is part of a succinct summary of the reason for Directive 13/20. The precise power by which the Department may permanently appoint a person to a higher classification level is contained within s 149C of the PS Act, which is supplemented by Directive 13/20. In that sense, there is no inconsistency between the terms. If there were, then it would be resolved in favour of the precise empowering provisions within s 149C of the PS Act. That same reasoning applies to a number of similar clauses in Directive 13/20, which use terms such as 'role', 'a position' and the like. It is relevant to note that the word 'role' does not actually appear in s 149C at all. [53] To be eligible to be reviewed, a person needs to have been seconded or acted at a higher classification level in the department for the requisite period. They must also be eligible, having regard to the merit principle, to be appointed to the position which they occupy at the time of requesting the review. -- 12 of 17 -- 13 [54] In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review. [55] It follows that the position the subject of the review was the precise AO6 position currently occupied by Mrs Chinniah – that is, Position 1-953982. I accept there may be more than one at–level position in the team, including the vacant Position 1-953978. However, Mrs Chinniah is only able to be appointed to the position she occupied when requesting the review. [56] In reviewing the decision, it is apparent that Position 1-953982 is indeed the position against which Mrs Chinniah was reviewed. That is most apparent in the Department's submission that the AO6 position that Mrs Chinniah is acting in (Position 1-953982) is: …owned by another officer and is a position that is part of the review by each of the original portfolio agencies as to the need for continuation of these roles in their ICT structure. This includes the QPS as well as the QFES and the QAS. Each of the agencies is progressing through phase two (2) of the transition as to which positions and services to integrate into their agency.14 [57] The Department submitted that Mrs Chinniah is "…backfilling a position that is owned, with the project position of the substantive owner of the position reliant upon QAS and QFES funding currently allocated only until 30 June 2022."15 [58] The Department further explained that "The progress of the transition will impact on the project position of the substantive owner who would be required to revert to their substantive role."16 In short, the incumbent will be returning to the position which they had previously occupied (Position 1-953982) and in which Mrs Chinniah has been acting, and so there will no longer be a need for her to act in the position. The decision was fair and reasonable in that the review was conducted against the correct position. [59] That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works).17 The words 'the position' must be given effect. Genuine operational requirements [60] The Department reasoned that the following genuine operational requirements justify a refusal of Mrs Chinniah's conversion request: a) Backfill substantive occupant The purpose of the higher duties arrangement is to backfill the substantive occupant, who has been seconded to undertake IT project work. That project position is currently funded only until 30 June 2022. b) Transition in progress, resultant from PSBA disestablishment 14 Respondent's submissions, 10 May 2022, 5 [27]. 15 Ibid [26]. 16 Ibid [27]. 17 [2020] QIRC 195. -- 13 of 17 -- 14 The disestablishment of the Public Safety Business Agency (PSBA) had specific impact upon the Frontline and Digital Division. The transition of positions, functions and resources to each of the agencies is in progress. c) Another vacant AO6 position is confirmed While the Department confirmed Mrs Chinniah's assertion that there was also a vacant AO6 Senior Deployment Officer position, it submitted that others who have acted in that position could also lay claim to it and that vacant position is also "being reviewed for potential transition to the respective ex-portfolio agencies".18 Backfill substantive occupant [61] With respect to paragraph [60](a) above, the Directive, at cl 4.2, sets out the "Circumstances that would support the temporary engagement of an employee". Slavish concurrence to that clause is not tantamount to considering the genuine operational reasons of the department. However, it is entirely fair and reasonable to include that as a consideration. [62] The determination is made with respect to the position occupied by Mrs Chinniah. That was the correct approach. It is not a more broad-ranging consideration of whether she should continue to be employed at a higher level in her present workplace. Typically, only one person may occupy the position she presently occupies at any one time. [63] Although I appreciate the unpleasantness of uncertainty, Mrs Chinniah has a secure substantive position to return to. In my view, these particular circumstances do present a genuine operational requirement which prevented the Department appointing Mrs Chinniah to the position she is acting in. There is nothing within the decision which was unfair or unreasonable when regard is had to the precise wording of s 149C of the PS Act. Only one person may occupy the position permanently at any one time in the usual course. [64] In this case, Position 1-953982 (that Mrs Chinniah is currently acting in) is owned by another employee who is seconded to another position that is funded until 30 June 2022. [65] Even if it were the case that the incumbent of the position extends, and does not return on schedule, it does not obviate the fact that the position belongs to another person and they are to return to it. [66] The engagement is of the type contemplated within cl 4.2 of the Directive, being a circumstance that would support temporary rather than permanent engagement. [67] I agree that those circumstances present a genuine operational requirement for the Department, which prevented Mrs Chinniah being permanently appointed to the position she is acting in. There is nothing within the Department's decision which was unfair or unreasonable, when regard is had to the precise wording of s 149C. Only one person may occupy the position at any one time in the usual course. 18 Respondent's submissions, 10 May 2022. -- 14 of 17 -- 15 Transition in progress, resultant from PSBA disestablishment [68] With respect to paragraph [60](b) above, the Department's submission also cited the fact of the Queensland Government's public announcement that the PSBA would be de- established.19 The Department contended that this constitutes a genuine operational requirement that would prevent Mrs Chinniah's conversion to the AO6 position at this time. Specifically, the effect of the de-establishment of the PSBA in June 2021 is that: The position of Senior Deployment Officer, ICT Delivery if a permanent role, owned by another officer and is a position that is part of the review by each of the original portfolio agencies as to the need for continuation of these roles in their ICT structure. This includes the QPS as well as the QFES and the QAS. Each of the agencies is progressing through phase two (2) of the transition as to which positions and services to integrate into their agency. The progress of the transition will impact on the project position of the substantive owner who would be required to revert to their substantive role. While officers in their permanent roles at the current classification will not be adversely affected, temporary project roles are not likely to continue or if to continue then there is no guarantee that current classification levels would be required in the new agency or retained in the QPS as the strategic complexity of the roles will be condensed and result in a lower classification.20 [69] It is clear that the de-establishment of the PSBA and the transition in progress, together with the reality that the need for Mrs Chinniah to act in the position will cease with the return of the substantive position holder, are significant considerations in the Department's decision to decline Mrs Chinniah's conversion request. [70] I concur with the Department that such a significant structural change as the dismantling of the PSBA conclusively meets the test for a genuine operational requirement in these circumstances. Another vacant AO6 Senior Deployment Officer position currently available [71] With respect to paragraph [60](c) above, as explained above, consideration of whether there is any other available AO6 position is not relevant to conversion requests made under s 149C of the PS Act. Rather, the matter turns on the question of conversion to the position. [72] As in Holcombe, Mrs Chinniah can only be converted into the position that she was reviewed against. If the Department were to choose to create a position for Mrs Chinniah or appoint her to the other vacant position, that is a separate matter to the review process undertaken pursuant to s 149C of the PS Act. The effect of any previous decisions [73] Directive 13/20 came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020. 19 7 September 2020. 20 Respondent's submissions, 10 May 2022, 5 [27] – [28]. -- 15 of 17 -- 16 [74] Section 149C(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level. [75] An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of Directive 13/20. [76] The attachment to the email correspondence dated 31 March 2022 (the decision subject of this appeal) indicated there were "Nil" previous review decisions. Adequate reasons for the decision [77] Mrs Chinniah submitted that "The decision notice I received does not appear to comply with s 149C (5) of the PS Act." She does not specify which part of s 149C(5) is asserted to be inadequate or omitted. [78] Section 149C(5) prescribes that in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating: • the reasons for the decision; • the total continuous period for which the person has been acting at the higher classification level in the department; • how many times the person's engagement at the higher classification level has been extended; and • 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. [79] I accept that the reasoning contained within the decision email was very brief, but sufficient. [80] Attached to the decision email was a 'Placements' table, showing Mrs Chinniah's history of higher classification level engagements as required by s 149C(5)(b) and (c). [81] It was also noted that there were no previous review decisions "made, or taken to have been made" in relation to Mrs Chinniah during her continuous period of employment at the higher classification level. [82] The decision outlined the material facts including, albeit briefly, reasoning as to why Mrs Chinniah's request was rejected: the substantive incumbent is to return to the position after a period relieving elsewhere. (Though I do note it was only within the Respondent's submissions that the Department elaborated the connection between the return of the incumbent and the impact of the transition progress upon the Frontline and Digital Division, resultant from the disestablishment of the PSBA some 10 months previous. It would have been perhaps helpful to Mrs Chinniah if that further information had been provided initially to her, as it would have better contextualised the "genuine operational -- 16 of 17 -- 17 requirements of the agency" asserted by the Department as grounds for refusal of the conversion request). [83] Despite the brevity of the decision, in my view the reason for the decision is adequately expressed such that each party has had opportunity to address that reasoning through submissions in this appeal. Conclusion [84] Mrs Chinniah has been acting in a higher duties position. That present engagement is to backfill another employee, the incumbent of that position. The disestablishment of the PSBA resulted in a period of transition to determine the mix of positions and services to be returned to the original agencies. Mrs Chinniah has sought, pursuant to s 149C of the PS Act, to be made permanent in the higher duties position. It has been confirmed that there is also a vacant position at the Senior Deployment Officer level, though that vacancy holds a different position number to the one Mrs Chinniah is currently acting in. [85] 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 at the time of seeking the review. It is not an unconstrainted review into similar positions or roles, despite the current vacancy of same. The interpretation which I am compelled to adopt is that which gives effect to the wording of s 149C of the PS Act, and the practical limitations which are inherent to s 149C and Directive 13/20. [86] In conducting the review against the appropriate position number, and in their submissions in this appeal, the Department reasoned there is an incumbent of the position, that person is to return to the position, and the Department has no need for two persons permanently appointed to the same position. The impact of the transition progress upon the Frontline and Digital Division, resultant from the disestablishment of the PSBA has provided additional context to the circumstances of the return of the incumbent position owner. That was said to present a genuine operational reason not to appoint Mrs Chinniah permanently to the higher duties position. I have found that decision to be fair and reasonable. As such, I confirm the decision appealed against and dismiss the appeal. [87] I order accordingly. Order: 1. That the appeal is dismissed. -- 17 of 17 --