Alexander v State of Queensland (Queensland Health) [2022] QIRC 80

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Alexander v State of Queensland (Queensland Health) [2022] QIRC 080 Alexander, Troy (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/111 PROCEEDING: Public Service Appeal - Higher Duties Conversion Decision DELIVERED ON: 10 March 2022 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: The decision appealed against is confirmed. CATCHWORDS: LEGISLATION: CASES: INDUSTRIAL LAW - Public Service Appeal - where the appellant requests appointment to higher classification level - where there was a deemed decision - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562C Directive 13/20 Appointing a public service employee to a higher classification level Davies v State of Queensland (Queensland Health) [2022] QIRC 020 -- 1 of 10 -- 2 Huismann v State of Queensland (Queensland Health) [2021] QIRC 176 Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326 Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434 Reasons for Decision Appeal Details [1] Mr Alexander (the Appellant) is employed by the State of Queensland (Queensland Health) substantively in the position of OO2, Operational Services Officer (Porter) at Hervey Bay Hospital, part of the Wide Bay Hospital and Health Service. [2] Over the last two years, Mr Alexander has been performing higher duties in a temporary capacity in the role of Wardsperson, Fire Safety and Security Officer (FSSO) (OO3). The Respondent submits that this role has been temporarily established until an organisational change is finalised. [3] On 9 December 2021 the Appellant made a request through his union pursuant to s 149C of the Public Service Act 2008 (the PS Act) to be permanently converted to the higher duties role. This request was not answered within the 28 day period and therefore it is taken to be a deemed decision not to permanently employ the Appellant in the higher duties role.1 [4] The Appellant submits the deemed decision represents a lack of 'intelligible justification' behind the refusal of the conversion request and therefore renders the decision unfair and unreasonable. [5] Mr Alexander seeks that pursuant to s 555(1) of the Industrial Relations Act 2016, the Commission set aside the decision of the Respondent and grant the Appellant's conversion request in accordance with the conversion principles of Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive"). Relevant sections of the Act and Directive [6] In order to determine the appeal, it is necessary to consider the relevant provisions of the PS Act and the Directive. [7] 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- 1 Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.3. -- 2 of 10 -- 3 (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. … (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 [8] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive. 4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: (a) when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return (b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles (c) to perform work for a particular project or purpose that has a known end date (d) to perform work necessary to meet an unexpected short-term increase in workload. … 6. Decision making -- 3 of 10 -- 4 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documents 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? [9] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Department submissions [10] The Respondent says that it has a legitimate and genuine operational requirement for the use of higher duties arrangements within the operational services unit of the Hervey Bay Hospital. The Respondent says that while it has converted numerous employees who have made application for conversion and have met the criteria under the relevant Directives, on this occasion, the deemed decision to deny the application for conversion to a higher classification has occurred because the role Mr Alexander is engaged in has been identified as one that will be impacted by an organisational change that is currently undergoing consultation with staff and relevant unions. -- 4 of 10 -- 5 [11] The Respondent attaches the consultation document circulated 1 October 2021 to relevant staff and The Australian Workers' Union (AWU) and which is still undergoing consultation prior to implementation. The Respondent says that the negotiations are continuing and the business case presented in October 2021 for consultation is likely to be rewritten. [12] The Respondent agrees with Mr Alexander that the decision is a deemed decision and says that it has had to prioritise workloads and that in this case, Mr Alexander was engaged within a position that is currently undergoing an organisational change process and resources were engaged in managing other organisational priorities. The position [13] The Respondent says that over the two year period examined, Mr Alexander has been engaged in higher duties to cover in roles where the incumbent position holder has been temporarily absent due to leave requirements or has been engaged to meet temporary increases in demand. In each case of leave coverage, a substantive incumbent has returned to their position and Mr Alexander was no longer required. [14] The Respondent says that the position Mr Alexander is currently acting in is one of several additional 'dual role' Wardsperson FSSO (OO3) positions which were agreed by WBHHS and AWU to be put in place until the implementation of a new security model for Hervey Bay Hospital. The Respondent says that the discussions and negotiations regarding the new security model have been occurring for an extended period of time. Organisational Change [15] The Respondent provides detailed submissions regarding the consultation, in summary: • The consultation document proposes to remove and abolish the outdated and inefficient 'hybrid' roster system encompassing 'dual role' Wardsperson FSSOs who act as both wardspersons (normally OO2) and FSSOs (normally OO3). • The roster also includes single role Porters (also known as wardspersons OO2). • The current system is confusing for staff as dual role positions overlap some duties and responsibility with single role positions. • The proposal intends to introduce a new continuous shift roster pattern and abolish the current hybrid 'dual role' positions. • The proposal is to replace the 'dual role' positions with distinct single role FSSO positions and retain the single role porters. • The documents still under consultation provides a Full-Time Equivalent (FTE) equivalent of 9.52 FTE FSSO (OO3) and 20.23 FTE porters (OO2). • The current 'dual role' budgeted FTE is over-established by 2.68 FTE. -- 5 of 10 -- 6 • The proposal allows for a new budgeted establishment of single role FSSO (OO3) of 9.52 FTE. • If the proposal goes ahead, there will be a surplus of permanently employed appointed employees at the OO3 classification. • It is expected that surplus officers will either elect to move to a OO2 Porter roster line with salary maintenance or remain surplus employees until they can be matched to an equivalent OO3 classification and be provided meaningful duties until matching occurs in accordance with HR Policy B36. [16] The Respondent says that until the organisational change process is finalised, it is not yet determined where there will be changes to the current proposal, therefore the determination of future operational requirements and the effect on the establishment is not yet known. [17] The Respondent submits that it is a genuine operational requirement to finalise the consultation process and implement the proposed changes, prior to determining the capacity to appoint Mr Alexander permanently to the higher classification level. Considerations re: Directive [18] The Respondent agrees that Mr Alexander satisfies the merit principle in accordance with cl 5.2(c) of the Directive. [19] Clause 4.2 of the Directive and sections 148(1) and (2) of the Public Service Act 2008 set out circumstances supporting temporary engagement of an employee at the higher classification level. These circumstances 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', 'to perform work necessary to meet an unexpected short-term increase in workload', or 'to perform work for a particular project or purpose that has a known end date'. The Respondent says that Mr Alexander's employment history shows that he has been engaged to backfill the leave of existing staff, to meet temporary increases in demand and most recently in an additional temporarily established position until a new model for security at Hervey Bay Hospital is agreed. [20] With regard to the phrase 'genuine operational requirements' in the Directive, the Respondent says that the phrase is not defined but that it relies on the case of Morison where Merrell DP considered 'genuine' to mean 'authentic' and considered the legislative responsibilities required of chief executives , and 'in considering the context of s 149C(4A)(a) of the PS Act, 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 person on a fixed term temporary or causal basis occurs only if there is a reason for the basis of the employment under the PS Act'. -- 6 of 10 -- 7 'Scowcroft' [21] The Respondent says that in the matter of Scowcroft a conversion appeal was dismissed where the circumstances were essentially the same as the circumstances regarding Mr Alexander. In that case, the Appellant at the time of the conversion review was also engaged within the porter (OO2) role that has been identified as one that will be impacted by the same organisational change that is currently undergoing consultation with staff and the relevant unions. [22] The Respondent submissions address Merrell DP's deliberations in Scowcroft:2 In Scowcroft DP Merrell considered 'The genuine operational requirements cited by the Department against the permanent employment of Mr Scowcroft is the proposed restructure. Yet, it is speculative as to whether the proposed restructure will be implemented, and of course, whether or not permanent employment would be the result for Mr Scowcroft upon whatever restructure was in fact implemented'. DP Merrell also considered that 'It seems to me that the Health Service was and is genuinely considering the structure in which it may employ Operational Services Employees, classification OO2, including Mr Scowcroft, at the Hervey Bay Hospital'. DP Merrell Further considered 'However, in respect of its management of Operational Services at the Hervey Bay Hospital, the Health Service is not presently certain as to the number of permanent Operational Services Employees, classification OO2, it will genuinely require. This is to say, Mr Scowcroft wishes to be employed on a permanent basis at a time when the Health Service is genuinely considering how it will structure its employees and Operational Services, including employees permanently employed in positions classified at OO2'. 'For these reasons, in my view, there was a genuine operational requirement against the permanent appointment of Mr Scowcroft at the date of the decision taken to have been made pursuant to s148B(5) of the PS Act. For these reasons, my opinion is that the deemed decision that it was not viable or appropriate to offer to convert Mr Scowcroft's employment basis to employment as a general employee on tenure or as a public service officer, having regard to the genuine operational requirements of the Department, was fair and reasonable'. (pinpoint references omitted). [23] The Respondent submits that as was the case for Mr Scowcroft, the circumstances are in effect the same for the Mr Alexander in this case, as Mr Alexander wishes to be employed on a permanent basis in the OO3 dual role position that is proposed to be abolished in the same organisational change process and at a time when the WBHHS is genuinely considering how it will structure its employees and Operational Services, including employees permanently employed in positions classified at both OO2 and OO3 levels. [24] The Respondent says that the nature of Mr Alexander's engagements aligns with the current actions being taken by the agency to determine the appropriate workforce mix for current and future needs and that this reflects the principles set out at cl 4.1 of the Directive. [25] The Respondent makes further submissions addressing provisions of the Financial Accountability Act 2009, the Hospital and Health Boards Act 2011 and the PS Act stating that all underpin the requirements of chief executives to manage resources in an 'efficient', 'effective', 'economical' and 'value for money' manner.3 2 Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434. 3 Respondent's submissions filed 14 February 2022, [24]. -- 7 of 10 -- 8 [26] The Respondent concludes its submissions by saying that it has evidenced genuine operational requirements for not converting Mr Alexander. It says that its reasons are authentic, genuine and factual and that the decision should be confirmed. Mr Alexander's submissions [27] The reason for appeal given in the appeal notice is that the Appellant submits that the Respondent's lack of intelligible justification as to why it refused the Appellant's conversion application inherently makes its decision unfair and unreasonable pursuant to the principles set out in Gilmour v Waddell & Ors [2019] QSC 170. [28] Mr Alexander disputes the Respondent's submissions that he has been 'solely backfilling incumbents' and says that the majority of his role has been acting in higher duties without backfilling an incumbent. [29] Mr Alexander says that while the Respondent may initially need to engage personnel on a temporary or casual basis, the question for consideration is more appropriately: whether it is fair and reasonable for those eligible employees to continue to operate on that basis when they meet the requirements for conversion under the Directive. [30] With regard to the submissions of the Respondent regarding the proposed restructure, Mr Alexander says that this proposed restructure 'is taking a considerably long time to implement'. The longer the Respondent is permitted to rely on the new proposed restructuring as a basis to deny conversions, the greater the number of employees who will be placed in a perpetual state of employment limbo unable to progress or develop further in their profession. [31] Mr Alexander says that it is concerning that the Respondent has not complied with its statutory obligation under the PS Act to provide persons with decisions as to their conversion applications. The Commission has recently taken a 'firmer position with regards to the Respondent failing to comply with its obligations' and the Respondent submits that the Commission 'should not allow, support or otherwise endorse the Respondent's failure to provide an intelligible justification as to its reasoning not to convert'.4 Consideration [32] I have looked at the two decisions Mr Alexander's representative says provide the firmer 'position' the Commission has taken with regard to the reasons provided for decisions. One of those decisions relates to the adequacy of a written decision provided to an employee seeking conversion. The other relates to the failure to commence a review of employment and the 'deemed decision' that resulted from the failure to commence the review. The first case addresses a different circumstances to this matter as Mr Alexander was not provided with a written decision. I am not required to consider the adequacy of the reasons provided to him as there are none. The second case determines that the deemed decision was not fair as it resulted from unfairness to the Appellant in the failure to commence the review at all. This case is also of limited assistance to me in 4 Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326, [27]; Davies v State of Queensland (Queensland Health) [2022] QIRC 020, [35]-[39]. -- 8 of 10 -- 9 determining this appeal as it seems uncontroversial that Mr Alexander's representative had requested a review be undertaken and the Respondent's submissions indicate to me that for the reasons outlined in its submissions, the review was not concluded within 28 days and became a deemed decision per s 149C(6) of the PS Act. [33] The Appellant's representatives have argued that the deemed decision is in itself inherently unfair as it fails to provide an intelligible justification or reasons for the decision. With regard to that submission, I note that a deemed decision is provided for under the Act and the Directive. It cannot be that all deemed decisions are unfair simply because the employee did not receive written reasons for the deemed decision. This is supported by cl 7.2 of the Directive which states that 'a written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3. [34] It would certainly be a concern if an agency were routinely relying on deemed decisions rather than making best efforts to conduct and complete reviews within the 28 day review period. There is no evidence before me that that is what occurred in this case and it is only this case that is before me. I note that the Directive specifically states that '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'. It would seem to me that this is a mechanism enabling oversight in the event that many deemed decisions were occurring in a particular agency. [35] The Appellant's representative cites a further case of the Commission, Huismann5 where it says the facts were analogous to this matter in that a major workforce restructuring was occurring, the Appellant's position was directly identified as being impacted by the restructuring and that the restructure was used by the Respondent as a bar to a person's conversion application on the basis of 'genuine operational requirements'. The Appellant says that in that matter, the Commission held that it was not necessary that the role was certain to be ongoing but that it was likely to be ongoing. The Appellant says that it is 'very likely that there will be a continuing need' to engage the Appellant in the future. I have looked at the decision the Appellant's representative draws my attention to and note that it was not a 'higher duties' conversion pursuant to s 149C of the PS Act, but a temporary to permanent conversion decision dealt with under s 149B of the PS Act. The Commissioner was considering the relevant legislation and Directive which addressed relevant criteria including 'continuing need'. No such criteria appears in the Directive 13/20. [36] The relevant section of the legislation and the Directive are listed above. In making the decision, the department's chief executive must have regard to the genuine operational requirements of the department; and the reasons for each decision previously made, or taken to have been made, under the section. [37] While the Appellant's representative agrees that the Scowcroft matter cited by the Respondent is 'quite analogous' to the current matter before the Commission, the Appellant notes that the Respondent 'has made little to no attempt to progress the implementation of its new restructure since that decision'. I note that the Scowcroft decision of Merrell DP was released in early December 2021 and this appeal was filed on 25 January 2022. Given the traditional holiday period and shut down and the impact 5 Huismann v State of Queensland (Queensland Health) [2021] QIRC 176, [72]. -- 9 of 10 -- 10 of the Omicron COVID19 outbreak over the December/January period, it would be unreasonable for me to determine that the Respondent has not attempted to progress the implementation of the restructure or is deliberately stalling the consultation process in order to avoid appointing the Appellant to the higher duties role. [38] It is a concern if the organisational restructure consultation takes a prolonged period and results in uncertainty for the Respondent regarding its actual needs and for employees regarding their employment and requests for review. I agree with the sentiment expressed by the Commissioner in Huismann that there comes a point where it is not fair and reasonable to rely on an organisational restructure not to convert. However, in circumstances where it is not contended by the Appellant that the organisational restructure consultation is not actually genuine, I am unable, on the facts before me, to conclude, as in Huismann, that 'that point has been reached'. [39] I have given consideration to the submissions of the Respondent regarding the current staffing numbers and the uncertainty about what the staffing requirements may be following the proposed restructure. I have reviewed the Business Case for Change and have noted the 'affected positions spreadsheet' and the current and proposed organisational charts in the Business Case for Change. I also note that the Mr Alexander's union is participating in the consultation process. [40] While he has been acting in the higher duties role for a period of time, and this makes him eligible to apply to be appointed to the higher classification, it is unclear at this time whether there will be a need for Mr Alexander to be permanently employed in the higher classification following the implementation of the new structure. The circumstances are reflective of those in Scowcroft, where Merrell DP found that it was fair and reasonable not to convert the employee's employment having regard to the genuine operational requirements of the Respondent. [41] I find that the deemed decision that it was not viable or appropriate to appoint Mr Alexander to the higher classification level, having regard to the genuine operational requirements of the Respondent, was fair and reasonable. [42] The decision appealed against is confirmed. -- 10 of 10 --