Dodds v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 100

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Dodds v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 100 PARTIES: Dodds, Glenn (Appellant) v State of Queensland (Department of Communities, Housing and Digital Economy) (Respondent) CASE NO: PSA/2021/38 PROCEEDING: Public Service Appeal – Appointment to a higher classification level DELIVERED ON: 25 March 2021 MEMBER: HEARD AT: Power IC On the papers OUTCOME: CATCHWORDS: 1. The appeal is allowed. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision. 3. The Appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld). INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – consideration of the scope of a review under s 149C – consideration of 'genuine operational requirement' LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C -- 1 of 12 -- 2 Public Service Act 2008 (Qld), ss 148 and 149C Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 022 Reasons for Decision [1] Mr Glenn Dodds (the Appellant) is permanently employed as a public service officer in the position of AO6, Senior Consultant within Queensland Government Customer and Digital Group, a division of the State of Queensland (Department of Communities, Housing and Digital Economy) (the Respondent). [2] At the time the appeal notice was filed, the Appellant had been acting in a higher classification role as an AO7, Principal Project Officer within Strategic Initiatives (formerly Priority Projects), Corporate Services (the 'higher classification level position') since 3 December 2018. [3] The Appellant appeals a decision by the Assistant Director-General, Corporate Services of the Respondent, dated 24 December 2020, to refuse the request made by the Appellant to be permanently appointed to the higher classification level in which he had been acting. Appeal Principles [4] The decision was made pursuant to s 149C of the Public Service Act 2008 (Qld) (the PS Act) and the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive). [5] Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed -- 2 of 12 -- 3 against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. [6] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,3 but involves a review of the decision arrived at and the decision-making process associated therewith. [7] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision by the Assistant Director-General to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances. Decision to be reviewed [8] On 4 December 2020, the Appellant requested that he be permanently appointed to the higher classification level. [9] On 24 December 2020, Mr Peter Borserini, Human Resource Manager, Corporate Services, on behalf of the Assistant Director-General, informed the Appellant of the decision in response to his request. In doing so, Mr Borserini stated: Higher classification conversion decision After considering your request to be permanently employed in the position of AO7, Principal Project Officer… within Priority Projects, Corporate Services, and the circumstances of your temporary placement in that position, the Assistant Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Assistant Director-General's decision are as follows: • The purpose of your current engagement is to perform work necessary to meet a short-term increase in workload. • At the conclusion of your current engagement on 29 January 2021, there will no longer be a continuing need for you to be engaged in the position of AO7, Principal Project Officer… within Priority Projects, Corporate Services. I would like to take this opportunity to thank you for your continued commitment to the department. Should you continue your engagement in the position of AO7, Principal Project Officer… within Priority Projects, Corporate Services, you may submit another request for permanent employment in this position on 3 December 2021. In addition, if the position becomes a substantive vacancy during your temporary placement in the position, you may make an earlier request for permanent employment in this position. 1 IR Act s 562B(2). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 12 -- 4 What decisions can the Industrial Commissioner make? [10] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. Relevant provisions of the PS Act and the Directive [11] Section 149C of the PS Act provides: 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee- (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … (3) The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after- (a) the end of 1 year of being seconded to or acting at the higher classification level; and (b) each 1-year period after the end of the period mentioned in paragraph (a). (4) The department’s chief executive must decide the request within the required period. (4A) In making the decision, the department’s chief executive must have regard to- (a) the genuine operational requirements of the department; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level. (5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating- (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level. (6) If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. … -- 4 of 12 -- 5 (8) In this section- continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). required period, for making a decision under subsection (4), means- (a) the period stated in an industrial instrument within which the decision must be made; or (b) if paragraph (a) does not apply-28 days after the request is made. [12] The Directive relevantly provides: 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. 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 -- 5 of 12 -- 6 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. Grounds of Appeal [13] The Appellant outlined the following grounds of appeal, in summary: • the decision-maker has failed to give adequate consideration to the genuine operational requirements of the Respondent, specifically the ongoing need for the functions that the Appellant's role performs; • the decision-maker has erred by considering that the purpose of the Appellant's current engagement is to perform work necessary to meet a short-term increase in workload when the work that the Appellant performs in is ongoing and not of a temporary nature; and • the decision-maker has erred as a question of fact in their determination that there will no longer be a continuing need for the Appellant to be engaged in the higher classification position beyond 29 January 2021. Submissions [14] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. In summary, the submissions of both parties are as follows. Respondent's submissions [15] The Respondent filed the following submissions in response to the Appellant's appeal notice. In summary: • the Respondent submits that the Appellant's current temporary placement in the higher classification position, is to perform work necessary to meet a short-term increase in workload, specifically to work as part of a project team to undertake whole-of-department strategy, communication, executive services and Ministerial liaison which has an expected end date of 31 January 2021. The Strategic Initiatives team was created as a temporary team required to undertake project work necessary to respond to corporate priorities; -- 6 of 12 -- 7 • the Respondent relies on Holcombe v State of Queensland (Department of Housing and Public Works),5 and submits that a requesting employee can only request and be considered for appointment to the specific position the employee is performing at the time they submit their conversion request; • the Respondent submits that, as the Appellant's current temporary placement in the higher classification position has been to perform work necessary to meet a short- term increase in workload, specifically to work as part of a project team to undertake whole-of-department strategy, communication, executive services and Ministerial liaison which has an expected end date of 31 January 2021, there will no longer be a continuing need for the Appellant to be placed in the higher classification position, once this work is completed; • the Respondent does not have a genuine operational need to permanently employ the Appellant in the higher classification position once the project work is completed. The Respondent submits that it is not appropriate or viable to offer to permanently employ the Appellant in that role; • the Respondent submits that the Directive is clear that temporary circumstances still exist and therefore there is a place, where appropriate, to temporarily engage or place employees at a higher classification level. Relevantly, clause 4.2 of the Directive provides that circumstances that would support the temporary engagement of an employee at a higher classification level include to perform work necessary to meet a short-term increase in workload; • the Respondent considers that clause 4.2 of the Directive is relevant for this matter, in that it clearly demonstrates that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level role, where their skills are only temporarily required to perform work necessary to meet a short-term increase in workload that has a known end date; • the Respondent submits this is the case with respect to the Appellant, and the decision of the chief executive's delegate to refuse the Appellant's request is fair and reasonable; • in relation to the requirement for the chief executive to consider the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act, in relation to the Appellant during their continuous period of employment at the higher classification position, the Respondent submits that on 4 December 2020, the Appellant submitted a written request to be permanently appointed to the higher classification position. The outcome of the review conducted at that time was that the Appellant's engagement continues according to the terms of their temporary placement, as the purpose of their engagement at the time of review was to perform work necessary to meet a short-term increase in workload. The Respondent submits that the purpose of the Appellant's engagement in the higher classification position, remains the same; and 5 [2020] QIRC 195. -- 7 of 12 -- 8 • the Respondent submits that the chief executive's delegate has complied with s 149C of the PS Act and the Directive in making the decision to refuse the Appellant's request. Appellant's submissions in reply [16] The Appellant filed submissions in reply to the Respondent's submissions. In summary: • the Appellant submits that the work the Appellant in Strategic Initiatives deliver and the work that is anticipated for the Appellant to continue to deliver in the future is not a true temporary engagement in the sense that is contemplated by s 148(2) of the PS Act; • the Appellant submits that this is the case because of the nature of the projects and initiatives that the Appellant has been undertaking and their ongoing deliverables into the future, and that the Respondent has recognised that the functions the Appellant performs were not temporary and took steps in early 2020 to make the Strategic Initiatives unit permanent; • the Strategic Coordination business unit created three new teams being Strategic Facilitation, Strategic Analysis and Strategic Initiatives in July 2018. The Strategic Facilitation and Strategic Analysis teams were made permanent and the same was intended for the Appellant's unit, however, this was placed on hold as the Covid- 19 pandemic began to escalate around March 2020; • it is also apparent from the work being performed that there will be an ongoing need for the functions in which Strategic Initiatives provides. A number of the projects that the Appellant has been delivering will have workloads that will continue into 2021 and in some cases, indefinitely; • the Appellant refers to an email from Mr Paul Hauenschild, Director, Strategic Initiatives in response to queries from Together Queensland, Industrial Union of Employees (Together) about the temporary roles in Strategic Initiatives. The Appellant submits that it is clear from Mr Hauenschild's responses to Together that the Strategic Initiatives team had ongoing strategy and policy functions beyond merely project implementation; • the Appellant further submits that Mr Hauenschild details a number of initiatives that the Appellant is responsible for that have ongoing deliverables, milestones and reporting obligations that extend into 2021 and beyond and that: The majority of the work outlined above could not be completed by the two relevant EPW divisions (Queensland Government Procurement or Building Policy and Asset Management) due to either insufficient capacity, or key skills or expertise not being available, or stakeholder relationships not in place as they are for Strategic Initiatives staff. • the Appellant submits that this is evidence of an ongoing genuine operational requirement for the higher classification position that the Appellant has been performing; -- 8 of 12 -- 9 • the Appellant submits that, given the Mr Hauenschild's comments about the inability of the work that the Appellant and two temporary colleagues perform to be absorbed into one of the other business as usual work units, the efficient and appropriate management of public resources would support the appointment of the existing staff on a permanent basis to continue to manage the initiatives which they have become subject matter experts in over the last two years; • the Appellant refutes the Respondent's suggestion that the Strategic Initiatives team was created as a temporary team. The Appellant refer in this regard to the fact that the Director, two AO8 Managers and a number of other staff are existing permanent employees of the team; • while the Respondent has submitted that the Appellant's engagement is to meet temporary circumstances per clause 4.2 of the Directive, the Appellant submits that his engagement is better characterised as contemplated by s 148(3) of the PS Act, as the role involves continuous work on a number of different overlapping projects and initiatives; and • the Appellant submits that this is a situation analogous to that of the Appellant in Underwood v State of Queensland (Department of Housing and Public Works),6 where it was found that overlapping project-based work can amount to continuous employment and a circumstance where the genuine operational requirements of the Department warrant appointment under s 149C of the PS Act. Consideration [17] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [18] The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement, declining the Appellant's request for permanent appointment to the higher classification position. [19] Section 149C(4A) of the PS Act requires that in making a decision, the decision-maker must have regard to the following: (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. Previous reasons for acting at a higher classification level [20] Section 149C(4A)(b) of the PS Act and clause 6.2(b) of the Directive provides that the Respondent must have regard to the reasons for each decision previously made, or taken 6 [2021] QIRC 022. -- 9 of 12 -- 10 to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification position. [21] On the basis that no previous decisions were made pursuant to s 149C of the PS Act, the decision-maker was not required to demonstrate compliance with this section. Compliance with requirements of s 149C of the PS Act [22] The Respondent is required to comply with s 149C(5) of the PS Act, which provides as follows: (5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level. [23] The Respondent provided a notice including the reasons for the decision and confirmation that the Appellant has acted in a higher classification position since 3 December 2018 following nine extensions. As mentioned above, no previous decisions could have been made under this section of the PS Act and so s 149C(5)(d) was not included. I am satisfied that the Respondent has complied with the obligations with respect to s 149C(5) of the PS Act. Genuine operational requirements of the Department [24] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),7 the phrase '…genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, would at least include consideration of the following: … whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'8 [25] The question in this matter is whether there was an authentic need for the Appellant to be appointed to the higher classification position on tenure, having regard to the appropriate management of the public resources of the Respondent. [26] Clause 4.2 of the Directive outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including: To perform work necessary to meet an unexpected short-term increase in workload. 7 [2020] QIRC 203. 8 Ibid [40]. -- 10 of 12 -- 11 [27] In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant was required to be temporarily engaged only at a higher classification to perform work necessary to meet an unexpected short-term increase in the workload of the Department. [28] The Respondent's submission that the Strategic Initiatives team in which the Appellant was placed was created as a temporary team required to undertake project work may be accurate, however, it seems that this team has evolved into a permanent unit. It appears that the team has permanently appointed a Director, two AO8 Managers and a number of other staff which suggests that the team is no longer temporary in nature. [29] The Appellant submits that a number of the projects in which he had workloads will continue into 2021 and in some cases, indefinitely. This submission is supported by an email from Mr Hauenschild in response to queries from Together regarding the temporary roles in the Strategic Initiatives unit. [30] The response from Mr Hauenschild indicates that the Strategic Initiatives unit has ongoing functions and outlines a number of initiatives that the Appellant has responsibility for undertaking with milestones extending well beyond the date of his temporary appointment. Mr Hauenschild concludes that the majority of the work outlined could not be undertaken by other staff within the Respondent due to insufficient capacity, key skills or expertise not being available, or stakeholder relationships not in place as there are for Strategic Initiatives staff. I note Mr Hauenschild's statement that 'temporary positions remain in the team as approvals have not previously been granted for permanent appointment, not because of the temporary nature of work'. [31] The information in Mr Hauenschild's email indicates that the Appellant's role is no longer to address short-term increases in workload and is therefore not temporary in nature. [32] The purpose of the Directive includes supporting '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'. For the Directive to have any meaningful application, it is necessary to examine whether the 'genuine operational requirements' relied upon to deny permanent appointment to the higher classification level are reasonable in the circumstances. [33] On balance, it appears that the nature of the Appellant's role is no longer to meet an unexpected short-term increase in workload and consequently, a consideration of the genuine operational requirements of the Respondent would not reasonably result in the Appellant's application for appointment to the higher classification level being denied. [34] The decision confirms that there are no performance concerns regarding the Appellant's placement in the higher classification level that have been put to him, documented and remain unresolved. The Appellant therefore satisfies the merit principle. [35] In consideration of the material before me and the submissions made by the parties, I am of the view that the decision by the Respondent was not fair and reasonable nor consistent with the purpose of the Directive and s 149C of the PS Act. -- 11 of 12 -- 12 [36] On the basis that the Appellant has satisfied the eligibility criteria, there is in my view no impediment to the Appellant being appointed to the higher classification level. Order [37] I make the following orders: 1. The appeal is allowed. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision. 3. The Appellant be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld). -- 12 of 12 --