Singh v State of Queensland

Public Sector Act 2022 (Qld) ss 39, 81, 119, 120, 130, 133, 134.

Directive 03/23: Review of Acting or Secondment at a Higher Classification Level.

Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360.

Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16.

Gatla v State of Queensland (Queensland Police Service) [2022] QIRC 436.

Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106.

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.

Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 311.

• [1] Ms Ajanta Singh has been continuously employed by the Queensland Police Service in project roles since June 2017. Ms Singh is currently a permanent AO5 Project Officer, however, has been performing the higher duties position of AO6 Senior Project Coordinator in the Frontline and Digital Division ('FDD') ICT Project Delivery Team since at least March 2022.

• [2] Ms Singh formally requested to be converted to the AO6 Senior Project Coordinator position on 4 April 2024. The application was made in the correct way. Under the Review of Acting or Secondment at a Higher Classification Level (Directive 03/23), QPS had 28 days within which to decide the request. This period lapsed on 2 May 2024, resulting in a deemed decision not to convert.

• [3] The chief executive did not inform Ms Singh within 14 days of the deemed decision of her right to make an additional request for review or of any relevant appeal right.

• [4] Ms Singh filed an in-time appeal notice on 20 May 2024 seeking permanent conversion to the higher-level position.

• [5] There is no substantive owner of the position who is expected to return. This position was created on a temporary basis on 8 July 2021 and is funded annually. Ms Singh was placed in the role on 28 March 2022[1] through to 6 November 2022. She was then extended to 30 June 2023 and again to 30 June 2024.[2]

• [6] Ms Singh's suitability to perform the position as it is currently constituted is not in question. However, QPS contends future projects may require different skill sets or the funding may be redirected elsewhere with position requirements Ms Singh does not have or currently need.

• [7] Ms Singh is entitled to appeal. This matter concerns a deemed higher classification conversion decision which is appealable.[3] Ms Singh has met the service requirements and has standing as the public sector employee subject to the decision.[4] Her appeal was lodged within time.[5]

• [8] The IR Act provides that the appeal is to be decided by reviewing the decision appealed against[6] and "the purpose of the appeal is to decide whether the decision was fair and reasonable."[7] It involves a review of the decision arrived at by QPS and the associated decision-making process.[8] These Appeals are not by way of re-hearing.

• [9] The issue for my determination is whether the deemed decision to refuse to convert Ms Singh to the higher-level position was fair and reasonable.[9]

• [10] I may either confirm the decision appealed against, set the decision aside and substitute another decision, or set the decision aside and return the issue to the decision-maker.[10]

• [11] For the reasons that follow, I will set the deemed decision aside and substitute a decision to appoint Ms Singh to the AO6 Senior Project Coordinator position on a permanent basis.

Relevant provisions of the PS Act and the Directive

• [12] The PS Act and the Directive[11] set out the following requirements relevant to the matters to be decided in this Appeal.

• [13] Section 120 of the PS Act sets out the matters that must be considered by a chief executive when making the higher classification conversion decision.

120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment

(3) The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role.

(4) In making the decision, the employee's chief executive must have regard to -

(a) the genuine operational requirements of the public sector entity; and

(6) If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

• [14] Building on the provisions in the Act, the Directive relevantly provides:

7.1 When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.

9.1 A public sector employee is to be considered suitable to perform the role where:

a. the employee has provided evidence of possessing any relevant mandatory qualification/s as reflected in the role description), and

b. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and

c. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and where required, managed in accordance with the requirements of a relevant directive, such as the directives relating to positive performance management and discipline.

11.1 A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to employ the person at the higher classification on a permanent basis.

11.2 A written notice is not required to be prepared to support a deemed decision.

11.3 However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

a. the employee's right to make an additional request for employment at the higher classification level on a permanent basis under section 121 of the Act, if the initial request was made under section 120 of the Act, and

b. any relevant appeal right available to the employee.

11.4 Unless otherwise advised by the chief executive, where a deemed decision occurs, a person's engagement in the public sector entity is to continue according to the terms of the existing secondment or acting arrangement.

• [15] Ms Singh sets out the reasons for her appeal as:

• She previously successfully appealed a deemed decision relating to a temporary to permanent conversion request.[12]

• Section 39(3)(a) of the PS Act establishes employment on a permanent basis as the default basis of employment, and she believes she is suitable for, and there is an ongoing need, for the role.

• Her case is similar to Catterall v State of Queensland[13] and Gatla v State of Queensland.[14] Ms Singh submits each case involves the announcement of the disestablishment of Public Safety Business Agency ('PSBA') and the resultant ongoing organisational changes to QPS.

• A deemed decision with no feedback was not fair and reasonable.

QPS relies on genuine operational requirements to decline conversion

• [16] QPS indicates the conversion to the higher-level position is rejected due to genuine operational requirements. The position is a non-recurrently funded temporary position, which is a "deliberate business decision when looking more broadly across the QPS business operations."

• [17] It is explained that non-recurrent funding is pulled from a central pool of 'discretionary funding' that is allocated from Treasury to QPS on an annual basis. The Executive undertakes a process to allocate this funding across QPS based on business needs and priorities. The QPS is in a time of significant workforce reform due to several major Inquiries.

• [18] The QPS manages its finances and resources by intentionally creating temporary roles should the funding for those roles be urgently needed elsewhere. If this in-built flexibility was not allowed, QPS would not be able to meet its operational requirements or community need. The reorganisation of temporary positions may mean existing skillsets are no longer required. The higher-level role Ms Singh occupies is one of the designated temporary roles.

• [19] QPS explains that within Ms Singh's work unit there are three AO6 positions. One is permanent and the other two are temporary positions. The second temporary position has been allocated out to a different unit. Decisions about ICT projects are adjusted annually to be implemented in the following financial year. While the higher-level position occupied by Ms Singh is currently needed within FDD, that may not be the case in future.[15]

• [20] QPS has a responsibility to take measures to promote the effectiveness and efficiency of public sector entities under the PS Act but also the Financial Accountability Act 2009 and associated Standard.

• [21] Ms Singh is already a permanent employee at the AO5 level. QPS submits her permanent appointment to the higher-level temporary role may decrease her employment security if the role changes or the funding is shifted, and Ms Singh is displaced. QPS is not willing to jeopardise Ms Singh's current employment security albeit at a lower classification level.

• [22] The chief executive is required to consider operational requirements across the entity and not just specific to the position holder.

Ms Singh submits the QPS' reasons are not genuine or fair

• [23] Ms Singh cites other Commission decisions where the lack of recurrent funding is not considered to be a genuine operational reason preventing higher classification conversion.[16] She also argues that creating ongoing temporary positions is inconsistent with QPS and government commitments which provide that permanent employment is the default. She further argues that workforce and human resource planning principles ensure temporary employment only happens where there is a genuine reason consistent with the Act.

• [24] Ms Singh highlights that no suitability issues were raised by QPS and no evidence provided that her position would not be required now or in the future. While QPS points to broad pressures on the agency and a desire to maintain absolute flexibility, no definitive evidence has been provided that the work being performed by Ms Singh is temporary in nature.

• [25] Ms Singh confirms she did not receive the required information regarding her rights within 14 days of the deemed decision. In her reasons for appeal Ms Singh states the deemed decision with no feedback to her was not fair or reasonable.

• [26] Deemed decisions are provided for by the PS Act. Whilst not encouraged or considered optimal, they are not of themselves unfair or unreasonable. There is no requirement in a deemed decision for a written notice to be provided setting out findings on material facts and evidence on which those findings were made. This exclusion is contained in the PS Act and the Directive.[17] The omission of this notice when a decision is deemed does not render the process unfair or unreasonable.

• [27] There is a requirement however, that within 14 days of the deemed decision the employee must be provided information about their review and appeal rights. That did not happen in this case. This is a procedural failing that may have led to serious practical injustice if Ms Singh had been unaware of her appeal rights and statutory timeframes. Due to her previous experience of appealing a deemed decision, she was able to lodge an in-time appeal.

Are there genuine operational requirements preventing conversion?

• [28] I agree with Ms Singh that the operational requirements relied upon by QPS do not sufficiently justify the deemed outcome to maintain her temporary appointment to the higher-level position.

• [29] Merrell DP considered the phrase "genuine operational requirements" in Morison v State of Queensland, [18] stating (citations omitted):

[40] The phrase '... genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '...the position at the higher classification level.

• [30] QPS' main argument against permanent appointment is the temporary status of the position. It is an operational choice of QPS to create designated temporary positions across the service to retain absolute flexibility to deploy the position or any funding allocated to it into other areas at speed as priorities change. These positions are not recurrently funded and there is no incumbency.

• [31] The benefit to QPS of this flexibility is obvious. The benefit to those employees acting in or seconded to the positions over several years being effectively 'locked out' of permanent appointment at the higher level is less obvious. Quarantining temporary positions seems inconsistent with the permanent employment principle contained in the PS Act,[19] the requirements and guidance contained in s 81 of the PS Act regarding circumstances under which non-permanent employment may be appropriate, and the review requirements established in the Directive.[20]

• [32] The Act concedes it may not always be viable or appropriate to permanently employ someone, but only in limited circumstances.[21] It sets out that fixed term temporary employment may be viable or appropriate if the employment is:

• to fill a temporary vacancy for a known period; or

• for a particular project that has a known end date; or

• to fill a position for which funding is unlikely or unknown; or

• to fill a short-term vacancy while a person is being employed permanently; or

• to meet an unexpected short-term increase in workload.

• [33] Even then, if one of these kinds of employment circumstance occurs on a frequent or regular basis, it may warrant permanent employment as contemplated by s 81(2). The arbitrary designation of a role as temporary in the absence of any of the circumstances contemplated by the Act above would not constitute an authentic need or appropriate management of resources.

• [34] The QPS argues the non-recurrent funding arrangements justify not appointing Ms Singh permanently. I do not agree. There is no requirement under the Act or Directive for a position to be recurrently funded or for a permanent funded vacancy to exist as a pre‑condition to permanent appointment.[22]

• [35] There may be justification for fixed term temporary employment if the funding is unlikely or unknown. That is not the case here. The funding source is identified as a pool of discretionary funding provided by the Treasury to QPS each year. Agency level decisions are then made about how that funding is allocated - hence it is discretionary. The funding source is known.

• [36] In relation to the likelihood of funding, the position was created in June 2021 and has been funded each year until 30 June 2024 (at the time of the deemed decision) and is now confirmed until 30 June 2025. Determining that this role should not be available for permanent appointment in case something changes in the future is not fair or reasonable and does not constitute a genuine operational requirement.

Will permanent appointment at the higher-level perversely create employment insecurity?

• [37] The QPS argues Ms Singh's employment security will be jeopardised if she is permanently appointed to the temporary position at the higher classification level. I do not accept this.

• [38] Ms Singh will continue to be a permanent employee, but she will have been appointed on a permanent basis to the AO6 position of Senior Project Coordinator. Should the QPS in the future determine it no longer requires Senior Project Coordination skills within the FDD or elsewhere across the Service, Ms Singh will have the same rights as any other permanent employee in those circumstances. Given the relatively recent advertising of a Senior Project Coordinator Role at the AO6 level in FDD,[23] it seems there is a need.

• [39] Linked to this concern over employment security is the suggestion that the requirements for the role could change at any time. While Ms Singh is currently suitable for the position, that may not always be the case, and she may be displaced.

• [40] The suitability assessment for the purpose of eligibility to be permanently appointed to the higher classification position is based on an assessment of whether a person (at the time of the decision) meets those requirements.[24] There is no question raised about Ms Singh's current suitability including for the extended time period to 30 June 2025. As stated above, excluding Ms Singh on the basis that something might happen in the future - which has not happened over the last several years - is not fair or reasonable.

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld)

1. The decision appealed against is set aside.

1. Another decision is substituted that Ms Singh is appointed to the position at the higher classification level.

[1]Ms Singh was acting in another AO6 position from 8 February 2022. It is not clear if that was the same position. Irrespective, that difference is not material for the purpose of this decision.

[2] Attached to Ms Singh's submissions filed 13 June 2024 is confirmation of the extension of her temporary appointment at the higher-level until 30 June 2025.

[3] Public Sector Act 2022 (Qld) ('PS Act')s 131(a).

[4] Ibid s 133(a).

[5] Industrial Relations Act 2016 (Qld) ('IR Act') s 564.

[6] Ibid s 562B(2).

[7] Ibid s 562B(3).

[8] Ibid s 562B(2).

[9] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [25].

[11] Directive 03/23: Review of acting or secondment at higher classification level ('Directive').

[12] Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 311.

[13] Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360 ('Catterall').

[14] Gatla v State of Queensland (Queensland Police Service) [2022] QIRC 436 ('Gatla').

[15] It is again noted that Ms Singh's temporary appointment at the higher-level has been further extended until 30 June 2025.

[16] Catterall (n 13); Gatla (n 14).

[17] PS Act (n 3) s 120(6); Directive (n 11) cl 11.

[18] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.

[22] See e.g. Catterall (n 13) at [41] and [46].

[23] Job Ad Reference: QLD/592138/24 with a closing date of 3 October 2024.

[24] Hood v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 106, [30].