Cox v State of Queensland (Queensland Health) [2021] QIRC 99

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cox v State of Queensland (Queensland Health) [2021] QIRC 099 PARTIES: Cox, Julie-Ann (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2021/22 PROCEEDING: Public Service Appeal - Appointment to a higher classification level DELIVERED ON: 25 March 2021 MEMBER: HEARD AT: Merrell DP On the papers DATES OF WRITTEN SUBMISSIONS: Respondent's written submissions filed on 2 February 2021 and Appellant's written submissions in reply filed on 23 February 2021 ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. CATCHWORDS: INDUSTRIAL LAW - public service appeal - appellant requested respondent's chief executive to appoint appellant to the position at a higher classification level in which the appellant had been acting - decision made that appellant not appointed because the position in which the appellant was acting was to backfill position for another employee and due to short-term increase in workload - whether that decision was fair and reasonable having regard to the 'genuine operational requirements of the department' within the meaning of s 149C(4A)(a) of the Public Service Act 2008 - the decision was fair and reasonable - decision appealed against confirmed -- 1 of 9 -- 2 LEGISLATION: Directive 13/20 Appointing a public service employee to a higher classification level, cl 4 and cl 6 Industrial Relations Act 2016, s 451 and s 562C Public Service Act 2008, s 149C CASES: Golder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 20 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 Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038 Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015 Reasons for Decision Introduction [1] Ms Julie-Ann Cox is employed by the State of Queensland through Queensland Health ('the Department') and works in the Central Queensland Hospital and Health Service. Ms Cox's substantive position is that of Quality, Safety and Risk Facilitator, Administration Officer, classification AO4, within the Quality and Safety Unit of the Health Service. [2] Since 16 August 2018, Ms Cox has acted in a number of higher classified positions which have been classified either AO5 or AO6. These positions have existed within different organisational work units within the Health Service. Ms Cox has acted in these positions to backfill for the incumbents who were on leave or had been seconded to other positions. Since 22 July 2019, Ms Cox has been acting in the position of 'QSR Business Unit Partner CQMHAOD Multi D', classification AO6, position number 32029292 ('the position'). The position was located in the Rockhampton Hospital. [3] By letter dated 16 October 2020, Ms Cox, through her trade union, Together Queensland, Industrial Union of Employees, requested that she be '… appointed permanently to an Administration Officer AO6 position.' -- 2 of 9 -- 3 [4] By letter dated 17 December 2020, Ms Kerrie-Anne Frakes, Executive Director, Rockhampton Business Unit of the Health Service, advised Ms Cox of the decision that Ms Cox would not be appointed to the higher classification level at that time and that she would '… continue in the role of QSR Business Unit Partner, MHAODS until 31 December 2020 as the substantive incumbent returns from secondment on the 4 th January 2021' ('the decision'). [5] The question for my determination is whether the decision, and the decision-making process, was fair and reasonable.1 [6] The parties exchanged written submissions in accordance with a Directions Order dated 12 January 2021. Pursuant to s 451(1) of the Industrial Relations Act 2016 ('the IR Act'), no hearing was conducted. [7] In my view, for the reasons that follow, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision. Ms Cox's appeal notice and submissions [8] In her appeal notice, Ms Cox relevantly contends that: • she has been relieving 'above level' in AO5 and AO6 positions for more than four years; • she has acted in these positions in different parts of the Health Service and has demonstrated capability at the higher levels in line with the requirements of the role; • she believes that her merit in the various positions has been clearly demonstrated, and that the many extensions and further opportunities she has received demonstrate that managers within the Health Service have been more than satisfied with her work performance; • her role as part of the Quality and Safety team in the Health Service is that of a Business Unit Partner; • there was more than enough Business Unit Partner work required for her to continue in this role; and • her understanding of the work requirements for Quality and Safety Services and the need for additional AO6 Business Unit Partners in the Health Service is that there was ongoing work. 1 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7] (Deputy President Merrell). -- 3 of 9 -- 4 The Department's submissions [9] The Department submitted that: • it acknowledged Ms Cox's service, that she has undertaken several relieving roles within the Health Service, that she has demonstrated the requirements of the role and that she would be eligible for conversion having regard to the merit principle; • Ms Cox has occupied a number of roles entitled 'Quality, Safety and Risk Business Partner' from 16 August 2018 to the present and that those roles have the same requirements and the necessary skills and abilities but are assigned to different clinical units; • Ms Cox has been undertaking higher duties in line with cl 4.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'); • Ms Cox had been relieving in the position since 22 July 2019 and the incumbent has returned to the position; • Ms Cox was asked to perform necessary work for the Aged and Disability residential facilities while acting in the position in response to an unexpected short-term increase in workload, necessitated by the Accreditation for Nursing Homes and compliance requirements for a residential facility under the National Disability Insurance Scheme;2 and • Ms Cox continued to act in the position for the period 1 January 2021 to 23 February 2021 to ensure the status quo was maintained during the period of which she was eligible to submit an appeal. Ms Cox's submissions in reply [10] In her submissions in reply, Ms Cox relevantly submitted: 10. I have undertaken Business Unit Partner (BUP) role across multiple clinical areas, as other BUPs also do. I have supported Aged Care, Central Highlands and Woorabinda. I have also worked in the SACS area. At one time I was the Aged Care and Disability BUP and another officer swapped in to the SACS BUP role. Recently the SACS BUP role has been split with the Aged Care component being assigned to the substantive incumbent, with the remaining components of the SACS BUP role currently unfilled with the need for ongoing work however there is uncertainty as to who or which position will perform these duties. 11. I believe that there is clearly an ongoing Business Unit Partner (BUP) role. While the HHS makes reference to the Aboriginal and Torres Strait Islander Health and Wellbeing Directorate in paragraph 7 of their response, which is currently undergoing a significant change process, this does not negate the quality and safety work that is currently required. Right now this work is being performed temporarily by another staff member on secondment. 2 From Attachment 1 to the Department's submissions, this position was entitled 'QSR Business Unit Partner SACS Multi D', classification AO6, position number 32029370, which was in the Quality Safety and Risk Central Queensland work unit. Ms Cox acted in this position between 13 July 2020 and 4 October 2020. -- 4 of 9 -- 5 12. The original "SACS" BUP role (including Aged Care and Disability up until October 2020), serviced Aged Care, disability, rehabilitation, public health, offender health, oral health, blood borne & sexual health, community health, transition care and home packages team, CANAS team, new endings men program, Youth program and nurse navigators has now been split. From October 2020, the original SACS BUP role was assigned to Aged Care and Disability, with the remaining services yet to be assigned a BUP. 13. With the SACS BUP role being reassigned [sic] This leaves a huge part of the role and services unattended. I do not believe that the HHS have considered that my position as a BUP and the requirement for the ongoing work. In any of the areas of in [sic] SACS, Mental Health, Aged Care and the Aboriginal and Torres Strait Islander Health and Wellbing [sic] Directorate. I note the wording of the Directive and previous decisions citing "the position" however it is clear that for BUPs in CQHHS the position is that of a BUP. The positions are consistently moved between clinical areas. [11] The relief Ms Cox seeks is that the decision is set aside and a new decision be substituted, namely, that she be appointed to a Business Unit Partner, classification AO6, position. Alternatively, Ms Cox seeks that the decision is set aside and that the Health Service undertake a fresh review given that the decision did not address the issues she raised in her submissions in reply about the ongoing need for Business Unit Partner positions, classification AO6, within the Health Service. The relevant provisions of the Public Service Act 2008 and the Directive [12] Section 149C of the Public Service Act 2008 ('the PS Act') relevantly provides: 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee- (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least 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 of 9 -- 6 (5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating- (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level. (6) If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. … (8) In this section- continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). required period, for making a decision under subsection (4), means- (a) the period stated in an industrial instrument within which the decision must be made; or (b) if paragraph (a) does not apply-28 days after the request is made. [13] The Directive relevantly provides: 4. Principles 4.1 An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive. 4.2 Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: (a) when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return (b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles (c) to perform work for a particular project or purpose that has a known end date (d) to perform work necessary to meet an unexpected short-term increase in workload … 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may 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 of 9 -- 7 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. Was the decision fair and reasonable having regard to the genuine operational requirements of the Department? What is 'the position' under consideration? [14] Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee: • is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and • has been acting at the higher classification level for a continuous period of at least one year; and • '… is eligible for appointment to the position at the higher classification level having regard to the merit principle.' [15] Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.' [16] The phrase used in s 149C(1)(c) and in s 149C(3) of the PS Act, namely, '… the position at the higher classification level' is very specific. The purposes of these provisions are, respectively, that: • it is the specific position at the higher classification level, in which the employee has been acting, that an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made; and • the request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting. [17] If it were otherwise, then Parliament would have used different words or a different phrase to '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) of the PS Act. -- 7 of 9 -- 8 [18] This analysis about s 149C(1)(c) and s 149C(3) of the PS Act is consistent with other decisions of this Commission.3 [19] The Department does not dispute that the position in respect of which Ms Cox's request was considered was the position, namely, QSR Business Unit Partner CQMHAOD Multi D, classification AO6, position number 32029292. What are the genuine operational requirements of the Department to which the chief executive must have regard? [20] The structure of s 149C of the PS Act is that: • s 149C(1) identifies the particular public service employees to whom s 149C applies; • s 149C(2) identifies the public service employees to whom s 149C does not apply; and • s 149C(3) identifies the circumstances in which a public service employee, to whom s 149C applies, may ask the department's chief executive to appoint the employee to the position at the higher classification level to which the employee is seconded or in which the employee is acting. [21] Section 149C(4) of the PS Act, read with s 149C(8), sets out the required period in which the department's chief executive must decide the request. The 'decision', reading s 149C(4A) in context is, in my view, the decision about the eligible public service employee's request to be appointed to the position at the higher classification level to which the employee is seconded or in respect of which the employee is acting. [22] It is in the making of that decision that the Department's chief executive must have regard to the genuine operational requirements of the Department. [23] Clearly, in this case, the incumbent of the position has returned to the position which was the basis upon which Ms Frakes made her decision. Such reason was clearly a genuine operational reason of the Department within the meaning of s 149(4A)(a) of the PS Act.4 [24] The other reasons given by Ms Cox in her submissions as to why the decision was not fair and reasonable, namely, the absence of any consideration of whether the Health Service requires other Business Unit Partner positions, classification AO6, in other work units within the Health Service, in my view, do not render the decision not fair and reasonable. The obligation on a chief executive, in considering a request made by an eligible public service employee made pursuant to s 149C(3) of the PS Act, to be appointed to '… the position at the higher classification level', is to have regard to the genuine operational requirements of the Department concerning that specific position. 3 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, [48] (Industrial Commissioner McLennan), Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015 ('Thorne'), [27] (Industrial Commissioner Power) and Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038 ('Nangit'), [32]-[39] (Deputy President Merrell). 4 Morison (n 1) [32]-[41]. -- 8 of 9 -- 9 [25] In other words, s 149C of the PS Act is not available to an eligible employee, to be appointed to some other position at a higher classification level in respect of which they have not been acting, but which is commensurate with the duties and responsibilities of a higher classification position, in which they have been acting, and in respect of which the employee has made a request under s 149C(3) of the PS Act. Section 149C of the PS Act, properly construed, does not require a chief executive to have regard to the genuine operational requirements of the Department which go beyond those in respect of the position at the higher classification level to which the eligible public service employee requests to be appointed.5 [26] For all these reasons, the decision was fair and reasonable. Conclusion [27] The question in this appeal was whether the decision to refuse to appoint Ms Cox to the position was fair and reasonable. [28] For the reasons given, the decision was fair and reasonable. Order [29] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. 5 Thorne (n 3) [27], Golder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 20, [18]-[20] (Industrial Commissioner Hartigan) and Nangit (n 3), [51]. -- 9 of 9 --