s.739 - Dispute resolution

Chief Minister, Treasury and Economic Development Directorate t/as Access Canberra

Alleged dispute about matters arising under the enterprise agreement - request for review of recruitment process - whether review of recruitment process was invalid - consequences for successful candidate - order made to resolve the dispute

• [1] This decision is about a recruitment process conducted by the Chief Minister, Treasury and Economic Development Directorate t/as Access Canberra (Access Canberra) in May and June 2024. On 17 May 2024, the role of Senior Professional Officer Grade B, Technical Legislation Officer (Full-time, Permanent) (Position no. 57239) was advertised as vacant and published in the Australian Capital Territory (ACT) Government Gazette. Ms Sachie Terasaki applied for the role and was the successful candidate for the position.

• [2] Due to asserted 'administrative errors' when the position number was created, Ms Terasaki was not promoted as a permanent officer to the position. Instead, Access Canberra advised Ms Terasaki that she would be offered a 3-year temporary transfer to the role while steps were taken to fix the administrative error and facilitate her permanent appointment. The offer crystallised on 27 June 2024. Ms Terasaki accepted the offer on the understanding that an administrative fix was pending. She commenced work in the role on 8 July 2024. Consistent with her understanding, no promotion or transfer was published in the ACT Government Gazette in relation to the position.

• [3] On 3 July 2024, an unsuccessful candidate for the position requested a review of the recruitment process and asked that the process be redone because of concerns about the selection panel. The review request is not in evidence. On the materials, the request was initiated by the unsuccessful candidate under Section I of the ACT Public Sector Administrative and Related Classifications Enterprise Agreement 2023-2025 (the Agreement) (specifically, subclause I3.3) and the matter was referred for review by the relevant Head of Service delegate under subclause I3.5. A reviewer was appointed and undertook a procedural review on the papers. The outcome of the review was a report: "Review of Decision - Senior Professional Officer Grade B (SPOB) recruitment PN 57239". The report recommended that the appointment of Ms Terasaki be set aside, and the recruitment process be redone. Access Canberra accepted the recommendations. It subsequently decided to readvertise the position as a different, less specialised classification.

• [1] On 4 February 2025, Ms Terasaki applied under section 739 of the Fair Work Act 2009 (FW Act) for the Commission to deal with a dispute about the internal review process under the Agreement. The substance of her claim is that the process was invalid and unfair. Ms Terasaki seeks to be returned to the position she should have been in but for errors in the recruitment process and subsequent review. That is, she seeks appointment to the position that she successfully applied for on a permanent basis, or to be compensated for the loss of the position. The dispute is brought under section F6 of the Agreement, which contains procedures for the prevention and resolution of disputes about matters arising in the workplace, including disputes about the interpretation or implementation of the Agreement.

• [2] On 16 June 2025, I gave an opinion on the merits of the dispute and the powers given to Access Canberra under subclause I4.9 of the Agreement. The opinion did not resolve the dispute. The parties agree that the Commission now has jurisdiction to deal with the matter by arbitration, although they have not agreed on the questions for determination. Ms Terasaki provided a summary of the questions to be resolved as:

1. Whether the internal review conducted under Section I of the Agreement was invalid,
2. Whether the decision to not appoint Ms Terasaki to the advertised role was invalid, and
3. Whether Ms Terasaki should be appointed to the position on a permanent basis.

• [3] The first question is no longer in dispute. Access Canberra concedes that the internal review conducted under Section I of the Agreement was invalid. It was not open to the affected employee to request a review of the recruitment process, or for Access Canberra to undertake that review, under Section I of the Agreement.

• [4] This decision deals with the second and third questions, which I consider fairly characterise what remains of the dispute. For the reasons that follow, the answer to each question is 'Yes'.

• [5] This case is about the implementation of relevant enterprise agreement terms, rather than any dispute over their meaning. It is about how the Agreement, which is a comprehensive single enterprise agreement with a nominal expiry date of 31 March 2026, should have been applied in the circumstances in dispute.

• [6] Relevantly, the Agreement covers the ACT Government, persons engaged under the Public Sector Management Act 1994 (ACT) (PSM Act), and a range of unions with coverage of employees in the ACT. It operates to the exclusion of modern awards. Although clause A5.5 of the Agreement provides for the Agreement to prevail over the PSM Act to the extent of inconsistency, the provision is of no effect. Section 40 of the FW Act provides that public sector employment laws prevail over fair work instruments to the extent of inconsistency (subject to prescribed exceptions that are not relevant in this case). The PSM Act is a public sector employment law because it is a Territory law that deals with public sector employment.[1] This means the PSM Act prevails over the Agreement (but only to the extent of any inconsistency).[2]

• [7] Sections I and K of the Agreement contain the terms at issue in this proceeding. In the reasons supporting my opinion in the matter, I summarised the relevant effect of the Agreement in relation to a request for review of the subject recruitment process:

1. Section I establishes procedures for employees to seek a review of management actions that affect their employment.
2. Decisions and actions excluded from internal review under Section I include:
   1. Any action to which the employee has an appeal or review right under Section K of the Agreement, and
   2. Decisions to appoint or not appoint a person as an officer to a vacant position.
3. Section K of the Agreement establishes procedures for officers to seek a review of recruitment processes or appeal certain recruitment decisions.
4. Clause K2 of the Agreement provides for appeals about promotion or temporary transfer to a higher office or role affecting the officer seeking review, where the officer was an applicant for the position. However, it does not apply here because the role in dispute attracts a rate of pay that is more than the minimum pay of a Senior Officer Grade C and is a position above Administrative Services Officer Class 6 or equivalent. For such positions, a process review can be sought under clause K3.
5. Clause K3 of the Agreement permits an officer to seek a review of the process leading up to a decision about matters including "decisions to promote or not promote an officer", and "decisions to appoint or not appoint an employee, or to engage or not engage an employee, on a temporary contract".
6. The findings of a review under clause K3 of the Agreement "do not alter the outcome of the original decision but may be used to inform similar processes conducted in the future or address any failings on the part of employees involved in the process under review".

Was the decision to not appoint Ms Terasaki to the advertised role invalid?

• [8] In this case, there was no right of review of the recruitment process under Section I of the Agreement available to the employee who requested it, because the process was excluded from internal review under that section. The process was however amenable to review under Section K3 of the Agreement. This is because the process led to a decision to not promote Ms Terasaki and instead to transfer her to vacant Position 57239 on a temporary basis.

• [9] A review under Section K3 could not have altered the outcome of the original decision but could have led to recommendations informing similar processes in future or address any failings on the part of employees involved in the process under review. However, no review request was made under Section K3 of the Agreement and the time for seeking a review under that section has now lapsed.

• [10] The effect of submissions made by Access Canberra is that it cannot turn a blind eye to concerns brought to its attention through the review about the recruitment process being inconsistent with the 'merit and equity' principle. It seeks to be able to continue along the path set out in the review report to ensure a compliant recruitment process for the position.

• [11] The submission is rejected. The internal review was not permitted under the Agreement and was for that reason invalid. It follows that any findings of, or recommendations made in, the resulting review report are also invalid. Continuing with the process would be to disregard the provisions of the Agreement by treating the review as having substance where it had none. This would be inconsistent with the agreed processes, and limits on those processes, in Section I of the Agreement. Rather than giving effect to principles of merit or equity, it would deliver an outcome that was both lacking in merit (because it did not comply with the Agreement) and unfair (because this failure had adverse consequences for Ms Terasaki).

• [12] A review requested under Section I of the Agreement cannot be retrospectively recharacterized as a request for review under Section K3 of the Agreement. Further, and as noted above, the time for seeking such a review under Section K3 has now passed. If the request for review was not specifically made under Section I of the Agreement, it was treated as such by Access Canberra and actioned accordingly. In the absence of any evidence to the contrary, I have proceeded on the basis that it should be treated in the same way for the purpose of dealing with this dispute.

• [13] The consequence of these findings is that the recruitment process was not amenable to review under either Section I or K of the Agreement. Any decision made in reliance on that process must fall away, including the decision not to promote Ms Terasaki to the advertised position.

Should Ms Terasaki be appointed to the position on a permanent basis?

• [14] Equity, good conscience and the merits of the matter require that Ms Terasaki be restored to the position that she was in, or should have been in, had the errors made by Access Canberra not occurred in relation to the recruitment process. Two categories of error affected Ms Terasaki's position. Firstly, the decision to not promote Ms Terasaki to the advertised position and instead to transfer her to temporary 'higher duties' for a term of 3 years. Secondly, the actions taken by Access Canberra in response to the recommendations of the review report.

• [15] It is not in dispute that the position for which Ms Terasaki applied was vacant at the time it was advertised. This is confirmed by inclusion of the position in the 'Vacancies' section of the ACT Government Gazette and the separate advertisement of the position as 'Full time, Permanent'.

• [16] Having successfully applied for the position as advertised, Ms Terasaki had a reasonable expectation that she would be promoted to the position. The resulting temporary transfer was a short-term fix for an internal administrative error. It was never intended to be the final outcome of the recruitment process. If the error had been corrected as originally contemplated, Ms Terasaki would have been appointed to the advertised position on a permanent basis, and because correction of the error was not a reason to alter the substantive outcome of the recruitment process, it should have been resolved with retrospective effect from 8 July 2024.

• [17] The second category of error was acting on the recommendations of the review report. This included pausing any further steps to promote Ms Terasaki to the position on a permanent basis and reclassifying (and proposing to readvertise) Position no. 57239 as a non‑technical role covered by a different enterprise agreement.

• [18] The decision to not promote Ms Terasaki to the advertised position in reliance on findings of the invalid review process was not a decision made on reasonable grounds. The same can be said for the proposed reclassification of the position as a non-technical role. The purpose of reclassification was to address concerns about application of the merit and equity principle identified in the review report. This was not however permitted by the Agreement, both because it was responsive to the review report and because it would result in a change to the substantive outcome of the recruitment process.

• [19] On the materials, I do not find that it would be relevantly inconsistent with the Public Sector Management Act 1994 (ACT) (PSM Act) to restore Ms Terasaki to the position she would have been in had Access Canberra acted consistently and within the limits of the Agreement. Although it remains to the relevant head of service to appoint or promote persons to vacant offices within the ACT public service, and to make decisions about the temporary transfer of officers, the decisions made in relation to Ms Terasaki could not reasonably have been affected by concerns expressed in the review report for the reasons described above. This includes the purported reclassification of the position for which she applied.

• [20] Access Canberra's submission is that the reclassification, was 'in line with the conclusions of the internal review and the report prepared for the head of service on issues associated with the relevant recruitment process'. But if the terms of the Agreement had been applied correctly, the review would never have occurred, and the review report would never have been issued. Allowing for the possibility that a review may have instead been conducted under Section K3 of the Agreement and that this may have given rise to similar concerns to those expressed in the review report, the Agreement operated to prevent any such concerns from altering the outcome of the original decision.

• [21] It follows that as the successful candidate in the recruitment process for the advertised position, Ms Terasaki should be promoted to the position on a permanent basis.

• [22] I find that from 8 July 2024, Ms Terasaki should have been promoted to the position of Senior Professional Officer Grade B, Technical Legislation Officer (Full-time, Permanent) (Position no. 57239) under the PSM Act in the category of permanent employment described in clause B2.1 of the Agreement.

• [23] Access Canberra is to restore Ms Terasaki to the position described in the paragraph above as soon as practicable and no later than 28 days from the date of this decision.

• [24] The dispute is determined accordingly.

Mr M Quincy O'Neill of the ACT Government Solicitors on behalf of the respondent.

[1] Fair Work Act 2009, s.40(3)

[2] See Scurr v Commissioner for Public Employment (Northern Territory) [2022] FWCFB 45

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