Crofts v State of Queensland (Department of Housing and Public Works) [2021] QIRC 83

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Crofts v State of Queensland (Department of Housing and Public Works) [2021] QIRC 083 Crofts, Caitlin (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2020/421 PROCEEDING: Public Service Appeal - Higher Duties Conversion Decision DELIVERED ON: 16 March 2021 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: CATCHWORDS: The decision appealed against is confirmed. INDUSTRIAL LAW - Public Service Appeal - where the appellant requests appointment to higher classification level - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable LEGISLATION: CASES: Public Service Act 2008, s 149C Industrial Relations Act 2016, s 562 Directive 13/20 Appointing a public service employee to a higher classification level. Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 -- 1 of 11 -- 2 Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199 Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220 Reasons for Decision Appeal Details [1] Ms Crofts is employed by the State of Queensland (Department of Housing and Public Works) ("the Department"). [2] Ms Crofts' substantive position is as an Executive Assistant within Service Delivery, a business unit of Housing and Homelessness (AO4) however, since 22 October 2018 she has been continuously performing duties of higher classification levels and is currently a Senior Program Officer (AO6) until 31 January 2021. [3] By letter dated 30 November 2020, Acting Director of Human Resources Tully Stewart informed Ms Crofts that her engagement is to continue according to the terms of the existing temporary placement giving the following reasons. • The purpose of your current placement in the role of AO6, Senior Program Officer role within Homelessness Programs, is to backfill a substantive employee while the substantive employee is on leave. • Should the substantive employee return to their position of Senior Program Officer role within Homelessness Programs, there will no longer be a continuing need for you to be engaged in that role. Relevant sections of the Act and Directive [4] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive"). [5] Section 149C of the PS Act relevantly provides 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee- (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least one year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. … -- 2 of 11 -- 3 (2) 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 [6] 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 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 an 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: -- 3 of 11 -- 4 (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? [7] 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. Ms Crofts' reasons for appeal [8] Ms Crofts submits in her appeal notice: I have been through a recruitment process and was determined to be meritorious for this position in October 2019. In addition, I was also found meritorious for a permanent AO6 within Programs in a recruitment process that was conducted in September 2019. I met and continue to meet the merit principles of the role and am not subject to any performance management issues. My continuation in this role is supported by my manager and reflected through the ongoing extensions which have been approved. The work I do is not temporary and the work will continue. The position is permanently funded. Having met the merit principles under a meritorious assessment based process to be placed into the role, and as I continue to meet the merit principles, I ask that the Commission gives full consideration to approve this appeal for permanent appointment to the role which will contribute to my substantive position being freed up to enable other staff opportunities within the department. The Department of Housing has determined that conversions under Directive 13/20 Appointing a public service employee to a higher classification level will only occur when there is a substantive vacancy. This advice was provided to Leadership Team members department-wide after staff members commenced formal applications for conversion. -- 4 of 11 -- 5 Neither the legislation or the Directive requires there to be substantive vacancy to give effect to the legislation. The checklist provided by the Public Service Commission does not "fail" or decline when confirming there is no substantive vacancy. The substantive occupant of the position I am acting in has been working elsewhere outside the Department of Communities, Housing and Digital Economy (the department) for more than three years. During that time, the substantive occupant has made no attempts to return, resign or relinquish the position. The department does not have appropriate workforce management policies in place that would allow, or compel, staff to relinquish positions after a period or 12, 18, 24 months relieving elsewhere (or on long-term leave without pay etc). Without a policy on relinquishment/returns and the treatment of staff who have been absent from the workplace for, in some cases several years, it will make it very difficult for the department of Housing to give any effect whatsoever to this directive as the conversions rely on a substantive vacancy. In addition, those staff who are relieving in other government departments will also not reap the benefit of this Directive whilst they retain a substantive with the department. I believe the department is not applying the Directive in the spirit in which it was intended. Department submissions [9] The Department sets out the background to Ms Crofts' employment. • Ms Crofts is permanently employed as a public service officer in the position of AO4, Executive Assistant within Service Delivery; • since 22 October 2018, Ms Crofts has been continuously performing the duties of a higher classification level positions within the Department, being various AO6 positions in Homelessness Programs; • most recently, the Appellant is performing higher duties in the position of AO6, Senior Program Officer, position number 30100696, for period 1 May 2020 to 31 January 2021, to backfill the substantive employee who is on a period of leave.; • since 1 May 2020 the Appellant's temporary placement in the position of AO6, Senior Program Officer within Homelessness Programs, position number 30100696 has been extended on one occasion; and • there are no performance concerns regarding Ms Crofts' temporary placement in the AO6, Senior Program Officer position that have been put to her and remain unresolved. [10] The Department submits that Ms Crofts' current temporary placement in the position is to backfill the substantive employee who is on a period of leave. [11] The Directive is quite 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. [12] The Department relies on cl 4.2 of the Directive and says 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 position where their skills are only -- 5 of 11 -- 6 temporarily required prior to the permanent employee returning to their substantive position. [13] The Department says that as Ms Crofts' current placement in the role is to backfill the substantive employee who is on a period of leave, there will no longer be a continuing need for Ms Crofts to be placed in the position once the substantive employee returns to work in their substantive position. [14] The Department points to cl 6.2 of the Directive and s 149C(4A) of the PS Act in support of the fact that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO6 Senior Program Officer position within Homelessness Programs. It is not appropriate or viable for the Department to offer to permanently employ Ms Crofts in that position. [15] The Department reviewed Ms Crofts' temporary placement in the role on 20 October 2020. The genuine operational reasons for Ms Crofts' temporary placement did not change over the six-week period between that decision and the decision of 30 November 2020. Due to an administrative oversight, the 20 October 2020 decision was not referred to in the 30 November decision as per s 149C but the Department submits that this omission would not have materially impacted on the decision of the of the chief executive's delegate. Ms Crofts' submissions in reply [16] Ms Crofts says that since 22 October 2018, she has been seconded to the role of AO6 Senior Program Officer. Ms Crofts has been extended in this higher level role nine times and has provided stability and consistency in the role and to the team. [17] Ms Crofts meets the merit principles in accordance with s 27 of the PS Act and her continuation in the higher level role is supported by her manager and reflected through the ongoing extensions which have been approved. [18] The purpose of the Directive is provided in cl 1.1 and states: 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. [19] Ms Crofts points to cl 4.2 of the Directive which states circumstances that would support the temporary engagement of an employee at a higher classification level. [20] Ms Crofts says that the substantive occupant of the higher level role she is currently performing in has been relieving in roles external to the Department for more than three years. During the time she has acted in the position, the substantive position holder has not sought to return to the role or been compelled by the respondent to return to the role. [21] Ms Crofts says that while it may be appropriate to consider a 12-month secondment temporary in nature, she has been working in the role for a period in excess of two years, indicating that this is not a short-term temporary backfill. The role she is in has been continuously extended due to the ongoing need. -- 6 of 11 -- 7 [22] The secondment has not been for a 'known period', demonstrated by the position not being advertised for a set period of two years. It is difficult to argue that this is a temporary secondment when it has been ongoing and continuous for such a significant amount of time. [23] Ms Crofts says that the ongoing and continuous relieving and the frequent and regular extensions she has had in the role suggests this is a circumstance as contemplated by s 148(3) of the PS Act where employment on tenure is appropriate. [24] Ms Crofts submits that she has observed the Department consistently demonstrate its ability and readiness to budget for and appoint dual officers against single positions when it is operationally convenient to do so. Subsequently, the argument that the Department does not have a genuine, operational need for two AO6 Senior Programs Officers is invalid given it has frequently done so in the past. For example, the current organisation chart for Ms Crofts' program area shows multiple appointments against the following positions: a. Principal Program Officer (AO7) 723395 and b. Principal Policy Advisor (AO7) 30101155. [25] The decision maker has not demonstrated they have undertaken an appropriate analysis of the circumstances that might affect the likelihood of her higher level role, and the role that the substantive position holder is seconded to, being ongoing. [26] The Respondent declined Ms Crofts' request on the basis that the purpose of her role is to backfill the substantive employee while the substantive employee is on leave. The decision specifically said, "Should the employee return … there will no longer be a continuing need for her to be engaged in the role". (Ms Crofts' emphasis). [27] Ms Crofts says that her current higher duties end date of 31 January 2021 is consistent with a significant number of staff within the Housing and Homelessness Services. Until she sought conversion under the Directive, Ms Crofts had no reason to think her relieving would not continue into 2021. Prior to seeking permanent appointment to the higher level role, there had been no discussions with her to suggest that her higher duties would end. [28] Ms Crofts submits that what is required by the decision maker when having regard to genuine operational requirements of the Department as required by s 149C(4A) of the PS Act, is an objective analysis of whether there is an ongoing role and not whether there is a substantive vacancy. [29] Ms Crofts submits that there has been no demonstration of engagement with the substantive occupant of the higher level role and their plans for return or otherwise to the position. It is therefore likely that the ongoing need for Ms Crofts to continue in the role continues to exist, as demonstrated by the consistent and repeated higher duties extensions at the AO6 level, due to the need to consistently and regularly backfill the substantive position holder. [30] Ms Crofts recognises that while it is relevant to consider whether the position is substantively vacant when making a decision, the Department has provided no evidence or findings of any analysis conducted by the Department as to whether there will be an -- 7 of 11 -- 8 ongoing need for her to be employed in the role and whether the role is likely to be ongoing. Subsequently, the decision maker has demonstrated that it has not had proper regard to the genuine operational requirements of the Department when making the decision. As such the decision is not fair and reasonable. [31] Ms Crofts submits that there is no strategic workforce management strategy within the Department, including no ability for substantive position holders on secondment to relinquish their substantive roles. The lack of strategic workforce management ensures it is difficult to appropriately operationalise and implement Directive 13/20 effectively and conversions will only occur when a role is substantively vacant. [32] Ms Crofts says that due to Departmental inaction to manage long term absences and secondments, her ability and that of others to be permanently appointed to a higher level role has been hindered by conversion or through a meritorious selection process. Ms Crofts is aware of others being asked to return to positions after a shorter duration, however, not after acting in a role for two years. [33] Ms Crofts submits that fairness should be applied when deciding who may be permanently appointed through the s 149C of the PS Act and the Directive process. Ms Crofts respectfully states that an officer who has relieved in a higher role for two years or more should be permanently appointed to the role, not because they were fortunate enough to be placed against a position number that luckily becomes substantively vacant, but because they meet the eligibility requirements of merit and service. [34] The Directive does not require a position to be substantively vacant and the process put before staff does not invite only employees who are acting in vacant positions to apply. Further, Ms Crofts notes that being permanently appointed to the higher level role will contribute to her substantive position being freed up to enable other staff opportunities within the Department. [35] Ms Crofts wishes to make it clear that she is grateful for the opportunities she has had to date and desires to continue in the role. [36] Ms Crofts requests that she be permanently appointed to the higher level role on the basis that the decision was not fair and reasonable as it indicates that employees are not considered for permanent appointment unless they are relieving in roles that are permanently vacant. Was it fair and reasonable for the respondent to deny appointment to the higher classification level on the basis of genuine operational requirements? [37] There is no dispute that Ms Crofts has been performing higher duties in the AO6 role since 22 October 2018. Relevantly to this appeal, Ms Crofts has been performing higher duties in position number 30100696 from 1 May 2020 with an end date (at the time submissions were made) of 31 January 2021. [38] The decision maker is required to consider the appointment of Ms Crofts to the position she currently occupies, not the AO6 role or classification more generally. -- 8 of 11 -- 9 [39] The letter clearly states that Ms Crofts is currently undertaking a higher duties in a position substantively owned by another employee. The letter also says that should that employee return to the role, there will not be a need for Ms Crofts to undertake the role. This is a scenario contemplated at cl 4.2 of the Directive as a circumstance supporting temporary engagement of an employee at a higher classification level. [40] Ms Crofts submits that the Department has not demonstrated the genuine operational requirements it relies on in deciding not to appoint her to the higher classification. [41] The phrase 'genuine operational requirement' is defined in neither the PS Act nor the Directive, and has been considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 where Merrell DP relevantly stated: [37] The phrase 'genuine operational requirements of the department is not defined in the PS act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context including surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. … [38] The adjective 'genuine' relevantly means '…being truly, such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. [42] In considering the context of s 149C(4A)(a) of the PS Act, it may be noted that the chief executive of a Department is responsible for "planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act".1 [43] The Directive sets out some circumstances that would support the temporary engagement of an employee at a higher classification level. Relevantly to this matter, cl 4.2(a) provides for when an existing employee takes a period of leave and needs to be replaced until the date of their expected return and cl 4.2(b) provides for 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. [44] I am satisfied that the decision letter informs Ms Crofts of the reason she is not being appointed to the higher classification and that the reason is reflective of the circumstances described above at [43]. [45] Ms Crofts submits that there has been no analysis undertaken of whether there is an ongoing need for her to be employed in the position or whether the role will be ongoing. This is not a requirement of the Directive. In any case, the decision explains that upon the return of the substantive owner of the position, there will be no need for Ms Crofts to continue in the position. [46] Ms Crofts submits that there is no evidence of engagement with the substantive owner regarding their return to the role. Further, Ms Crofts says that there is no strategic workforce management strategy within the Department, including no ability for 1 Public Service Act 2008, s 98(d). -- 9 of 11 -- 10 substantive position holders on secondment to relinquish their positions. This, Ms Crofts says, makes it difficult to operationalise and implement the Directive. [47] Ms Crofts may be correct in identifying the difficulty for those acting in higher duties to gain appointment to the position they are occupying when there is a substantive owner in the role who may return. However, the Directive does not require the employer to compel the substantive position holder to return or relinquish their position. In circumstances where there is an expectation that the owner of the role will return from leave at some point and where there is only one person required to undertake the work of the position, it is fair and reasonable for the employer to determine that there are genuine operational requirements preventing appointment to the higher classification. [48] Ms Crofts is correct in pointing out that the higher duties position does not have to be substantively vacant for appointment to the position to occur. However, the Commission has, on several occasions, considered that the return of the substantive incumbent to the position represents a genuine operational requirement supporting the temporary appointment of an employee at a higher classification level.2 [49] The Department notes in its submissions that another decision with regard to Ms Crofts appointment to the higher classification was provided to Ms Crofts on 20 October 2020. The decision subject of this appeal was dated 30 November 2020. The Department says that due to an administrative oversight, the decision of 20 October 2020 was not referred to in the decision dated 30 November 2020. [50] It appears that the first review was undertaken in relation to a written request made by Ms Crofts on 24 September 2020. It appears that the second review was undertaken following a written request made by Ms Crofts on 12 November 2020 following the 24 month anniversary of her acting in higher duties. The 20 October 2020 decision informed Ms Crofts that she would next be eligible for review on 22 October 2021. As Ms Crofts had not been acting in the higher duties role for 24 months at the time of the first decision dated 20 October 2020, she was unable to appeal that decision. The decision of 12 November 2020 also informs Ms Crofts that she would be eligible for review on 22 October 2021. [51] It is unclear to me why two reviews were undertaken within weeks of each other. Clause 5.3 of the Directive provides that an eligible employee may request permanent appointment 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. Clause 5.4 provides that 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. [52] The Department submits that the genuine operational reasons for Ms Crofts temporary appointment in the AO6 Senior Program Officer position (number 30100696) did not 2 Holcombe v State of Queensland (Department of Housing and Public Works)[2020] QIRC 195, 19; Sharma v State of Queensland (Department of Housing and Public Works)[2020] QIRC 199; Clair v State of Queensland (Department of Housing and Public Works)[2020] QIRC 220. -- 10 of 11 -- 11 change over the six week period between the 20 October 2020 decision and the 30 November 2020 decision. Ms Crofts' appeal does not raise the omission of the 20 October 2020 decision being referred to in the 30 November 2020 decision. I do not find that the inclusion of this information would have materially affected the outcome of the decision, nor do I find that the omission renders the decision unfair or unreasonable. [53] The decision not to appoint Ms Crofts to the higher classification level was fair and reasonable in the circumstances. [54] Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed. -- 11 of 11 --