Cook v State of Queensland (Department of Housing and Public Works) [2021] QIRC 9

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION : Cook v State of Queensland (Department of Housing and Public Works) [2021] QIRC 009 PARTIES: Cook, Mandi (Appellant) v State of Queensland (Department of Housing and Public Works) (Respondent) CASE NO: PSA/2020/311 PROCEEDING: Public Service Appeal – Conversion to higher classification level DELIVERED ON: 8 January 2021 MEMBER: HEARD AT: Power IC On the papers OUTCOME: CATCHWORDS: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the incumbent of the role was returning – consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’. LEGISLATION: Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 149 and 149C Public Service and Other Legislation Amendment Act 2020 (Qld) -- 1 of 12 -- 2 Public Service and Other Legislation Amendment Bill 2020 (Qld) Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7 Directive 08/17 Temporary Employment 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 Katae v State of Queensland & Anor [2018] QSC 225 Minister for Aboriginal Affairs & Anor v Peko- Wallsend Ltd & Ors (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision [1] Ms Mandi Cook (the Appellant) is permanently employed as a public service officer in the position of AO4, Senior Housing Officer, Moreton Bay Housing Service Centre (Moreton Bay HSC) within Housing and Homelessness (HHS), a division of the State of Queensland (Department of Housing and Public Works) (the Respondent). [2] The Appellant has been acting in a higher duty's role as an AO5, Customer Service Manager within Moreton Bay HSC since 29 May 2017. [3] The Appellant appeals a decision by Ms Tully Stewart, Acting Director, Human Resources of the Respondent, dated 20 October 2020, to refuse the request made by the Appellant to be permanently appointed to the position at the higher classification level in which she had been acting. -- 2 of 12 -- 3 [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 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 Ms Stewart 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 28 September 2020, the Appellant requested that she be permanently appointed to the position of AO5, Customer Service Manager within the Moreton Bay HSC. [9] On 20 October 2020, Ms Stewart informed the Appellant of the decision in response to her request. In doing so, Ms Stewart stated: The Deputy Director-General, Housing, homelessness and Sport (Deputy Director-General) has given consideration to your request and notes the following: • You are substantively employed in the role of AO4, Senior Housing Officer within the Moreton Bay HSC, and that since 29 May 2017 you have been continuously performing the duties of AO5, Customer Service Manager within Moreton Bay HSC. • The purpose of your placement in the role of AO5, Customer Service Manager within Moreton Bay HSC is to backfill the substantive employee while the substantive employee is relieving in an alternative position. • You have been engaged in the position of AO5, Customer Service Manager within Moreton Bay HSC for approximately 40 months, including authorised absences. • Your engagement in the position of AO5, Customer Service Manager within Moreton Bay HSC has been extended 25 times. • Your current engagement in the AO5, Customer Service Manager within Moreton Bay HSC is due to expire on 25 December 2020. After considering your request to be permanently employed in the position of AO5, Customer Service Manager within Moreton Bay HSC, and the circumstances of your temporary placement in 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 that role, the Deputy Director has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Deputy Director-General's decision are as follows: • The purpose of your current placement in the role of AO5, Customer Service Manager within Moreton Bay HSC is to backfill a substantive employee while the substantive employee is relieving in ana alternative position. • Should the substantive employee return to the AO5, Customer Service Manager within Moreton Bay HSC, there will no longer be a continuing need for you to be engaged in the position. Relevant provisions of the PS Act and the Directive [10] 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. … (8) In this section- -- 4 of 12 -- 5 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. [11] The Directive relevantly provides: 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: (a) the genuine operational requirements of the department, and (b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. 6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person's engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement. 6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act. 7. Statement of reasons 7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: (a) set out the findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based. 7.2 A written notice is not required to be prepared 'after the fact' to support a deemed decision made under clause 6.3. Appellant's grounds of appeal [12] In the Appeal Notice, the Appellant outlines the following grounds of appeal: • the decision-maker has erred in not giving due consideration to the genuine operational requirements of the Respondent as required by s 149C(4A) of the PS Act; and • neither the PS Act nor the Directive include a role being substantively vacant as a pre-requisite for conversion. Per clause 4.2 of the Directive, the fact that -- 5 of 12 -- 6 a role is not substantively vacant or that a backfilling arrangement exists may be a consideration as to why appointment should not be made. It is not however a threshold question or a blanket reason to decline an appointment, rather one of a number of considerations involved in assessing the 'genuine operational requirements of the department' as required by clause 6.2(a) of the Directive. Submissions [13] 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. Appellant's Submissions [14] The Appellant filed submissions in support of the appeal. A summary of those submissions are as follows: • the decision-maker has not complied with s 149C(4A) of the PS Act; • as per Minister for Immigration and Multicultural Affairs v Yusuf,5 the failure of a decision-maker to provide adequate reasons and the failure to consider relevant factors, are well-recognised as errors of law; • the factors to be taken into account that make up 'the genuine operational requirements of the department' are not expressly stated and should be implied from the subject matter, scope and purpose of the PS Act, that is, the broader context in which the PS Act and the Directive operate in;6 • the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 (Qld) (the Bill) states that "[a] primary objective of the Bill is to drive more effective and consistent application of the existing commitment to maximise employment security… This includes amendments to definitions and provisions to:- clarify that the only matter a chief executive can have regard to when determining if the conversion review is viable or appropriate is the 'genuine operational requirements' of a department." It is submitted that this is the context within which s 149C(4A) of the PS Act and the Directive ought to be read by the decision maker when making the decision; • the Appellant also refers to statements made in the Explanatory Notes where in making a decision about an appointment to a position at a higher classification level, a department's chief executive must have regard to the genuine operational requirements of the department and that "…this aligns with the considerations that apply to fixed term temporary and casual conversion provisions." The Appellant submitted that because of those statements, the considerations that apply to the conversion of temporary 5 (2001) 206 CLR 323. 6 citing Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 162 CLR 24. -- 6 of 12 -- 7 employees to permanent status apply in respect of determining whether, under s 149C(4A) of the PS Act, an employee should be appointed to '…the position at a higher classification level' within the meaning of s 149C(1)(c) and s 149C(3) of the PS Act; • the Appellant submitted that considerations of Directive 08/17 Temporary Employment were relevant, citing Katae v State of Queensland & Anor,7 and that similar reasoning should be applied with respect to the Directive; • the Appellant further submitted that, contrary to s 27B of the Acts Interpretation Act 1954 (Qld) (the AIA), the decision-maker did not provide the material findings of fact and evidence upon which she relied on in coming to her decision which also rendered the decision unfair and unreasonable; • the Appellant submits that a consideration of the operational requirements of the Respondent should include a consideration of the value of the significant human capital she represents in the Customer Service Manager role; • the Appellant outlines submissions regarding the meritorious aspects of her application detailing initiatives she has brought to the AO5 role; • the Appellant submits that there would be a cost to the Respondent in training incoming employees should employees be forced back to their substantive roles; and • the Appellant acknowledges that if other seconding/relieving arrangements ended it may lead to the Respondent having additional Full-time Employee surplus to requirements. The Appellant submits that there are existing processes available to the Respondent to ensure permanent employees have security in their employment such as allowing employees to detach from their roles but not their substantive classifications. Respondent's Submissions [15] The Respondent filed the following submissions in response to the Appellant's submissions, in summary: • since 29 May 2017, the Appellant's temporary placements in the various AO5, Customer Service Manager positions with the Moreton Bay HSC have been extended on 17 occasions; • section 149C(3) of the PS Act provides that an employee may only ask the Department's chief executive to appoint the employee to the position at the higher classification level. Further, clause 4.1 of the Directive relevantly provides that 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 7 [2018] QSC 225. -- 7 of 12 -- 8 higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive; • the Respondent 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. In the case of the Appellant, the Respondent submits the relevant position is the AO5, Customer Service Manager position, within the Moreton Bay HSC. The Respondent considers this interpretation is confirmed in Holcombe v State of Queensland (Department of Housing and Public Works);8 • the Respondent submits that the Appellant's current temporary placement in an AO5, Customer Service Manager position, within the Moreton Bay HSC, which commenced on 21 March 2020, is to backfill the substantive employee who is relieving in an alternative position; • the Respondent does not contest that the Bill and the ensuing amendments to the PS Act sought to give full effect to the government's commitment to maximising employment security in public sector employment. However, 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. Relevantly, clause 4.2 of the Directive provides that such temporary circumstances include 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; • 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 position, where their skills are only temporarily required prior to the permanent employee returning to their substantive position; • the Respondent submits that, as the Appellant's current temporary placement in the AO5 position is to backfill the substantive employee, who is relieving in an alternative position, there will no longer be a continuing need for the Appellant to be placed in the AO5 position once the substantive employee returns to work in their substantive position; • as the Respondent does not have a genuine operational need to permanently employ, on a full time basis, two employees in the same AO5 position within the Moreton Bay HSC (i.e. the Appellant and the substantive occupant of that position), it is not appropriate or viable for the Respondent to offer to permanently employ the Appellant in that position. To that end, the Respondent submits the decision of the chief executive's delegate, to refuse the Appellants request, is fair and reasonable in the circumstances; 8 [2020] QIRC 195. -- 8 of 12 -- 9 • 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, no such decisions have been made by the chief executive or delegate in relation to the Appellant during their continuous period of employment at the higher classification level; • in relation to the Appellant's submissions that the decision-maker has not provided the material findings of fact and the evidence relied upon in coming to the decision as required by the Directive and s 27B of the AIA, the Respondent submits that in advising the Appellant of the decision, a written notice was provided to the Appellant stating: a) the reasons for the decision; b) the total continuous period for which the person has been employed at the higher classification level with the Respondent; and c) how many times the person's engagement at the higher classification level has been extended; • the Respondent submits that the written notice meets the requirements of the Directive and s 27B of the AIA in that the letter sets out the findings on material questions of facts and referred to the evidence in which those findings were based; and • the written notice provided to the Appellant did not contain details of reasons for decisions previously made, or deemed to have been made, on the s 149C of the PS Act, as no such decisions have been made by the chief executive or delegate about the Appellant during their continuous period of employment at the higher classification level. Consideration [16] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. [17] The decision determined that the Appellant's higher duties engagement was to continue according to the terms of the existing temporary placement. [18] The reasons given for the Respondent's decision, as outlined in the letter dated 20 October 2020, are as follows: • The purpose of your current placement in the role of AO5, Customer Service Manager within Moreton Bay HSC is to backfill a substantive employee while the substantive employee is relieving in ana alternative position. • Should the substantive employee return to the AO5, Customer Service Manager within Moreton Bay HSC, there will no longer be a continuing need for you to be engaged in the position. -- 9 of 12 -- 10 [19] The Appellant believes the Respondent has erred in making the decision as they have considered only that the Appellant has been back filling a role whilst the substantive employee is away and in doing so has failed to have regard to the mandatory considerations under s 149C(4A) of the PS Act. [20] The PS Act requires that in making a decision, the decision-maker must have regard to the following under s 149C(4A): (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. Genuine operational requirements of the Department [21] The paragraph of the Explanatory Note to the Bill referred to by the Appellant in her submissions does not concern the principles developed in relation to the application of Directive 08/17 Temporary Employment in respect of the conversion of temporary employees to permanent status under s 149 of the PS Act prior to its repeal by the Public Service and Other Legislation Amendment Act 2020 (Qld) (the Amendment Act). The phrase 'fixed term temporary' was not a phrase used in s 149 of the PS Act prior to its amendment by the Amendment Act and was not used in Directive 08/17 Temporary Employment. [22] As determined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),9 the words referred to in the Explanatory Note cannot lead to a conclusion that the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act or in clause 6.2(a) of the Directive import a consideration of the principles developed in respect of the application of Directive 08/17 Temporary Employment. [23] I accept the Appellant's submission that neither the PS Act nor the Directive include a role being substantively vacant as a prerequisite for appointment to the higher classification level. However, s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision-maker must have regard to the 'genuine operational requirements of the department'. [24] In respect of the Directive, clause 4.2 outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including: 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. [25] As outlined in Morison, 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, construed in context, 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 9 [2020] QIRC 203. -- 10 of 12 -- 11 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.'10 [26] In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant should be appointed to the higher position when the incumbent was likely to return to that position. I accept the Respondent's submission that it does not have a genuine operational requirement for the Appellant to continue in this role once the substantive employee returns to work in their substantive position. Previous reasons for acting at a higher classification level [27] 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 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 level. [28] On the basis that s 149C of the PS Act commenced operation on 14 September 2020, no previous decisions were made under this section of the PS Act. Compliance with requirements of s 149C of the PS Act [29] 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. [30] The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for 40 months following 25 extensions where the substantive employees have been relieving in alternative positions. 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. [31] 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 fair and reasonable. 10 Ibid [40]. -- 11 of 12 -- 12 Order [32] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 12 of 12 --