Toby v State of Queensland

Public Service Act 2008 (Qld), s 148, s 149C, s 197, s 201, s 295

Public Service and Other Legislation Amendment Act 2020 (Qld)

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)

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

• [1] Ms Daphne Toby appeals a decision of the State of Queensland (Queensland Health) ("Queensland Health") not to permanently appoint her to a position in which she has been acting at a higher classification level.

• [2] Ms Toby is permanently employed in the position of OO7, Senior Health Worker, Chronic Conditions Service, West Moreton Hospital and Health Service.

• [3] Since 2016, Ms Toby has been performing full-time higher classification duties of AO6 Indigenous Cultural Practice Coordinator, West Moreton Hospital and Health Service, having previously been employed in the position on a part-time basis from 25 November 2013.

• [4] On 17 February 2021, Ms Toby requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be permanently converted to the higher classification level position. The chief executive's delegate did not make a decision regarding Ms Toby's request within the required 28 days. Accordingly, pursuant to s 149C(6) of the PS Act, a failure to make a decision within the prescribed time is taken to be a refusal of the request ("the deemed decision").

• [5] On 24 March 2021, the Department confirmed, in writing, that a deemed decision was made which refused Ms Toby's request to be permanently appointed to the role in which she had been acting.

• [6] The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides than an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.

• [7] Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.

• [8] As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[3]

• [9] For the reasons contained herein, I have found that the decision was not fair and reasonable.

Relevant provisions of the PS Act and Directive 13/20

• [10] In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20: Appointing A Public Service Employee to a Higher Classification Level ("Directive 13/20"), including those provisions which I set out below.

• [11] Section 148 of the PS Act provides as follows:

1. Employment of fixed term temporary employees

(1) A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).

(2) Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment if for any of the following purposes -

(a) to fill a temporary vacancy arising because a person is absent for a known period;

approved leave (including parental leave), a secondment

(b) to perform work for a particular project or purpose that has a known end date;

employment for a set period as part of a training program or placement program

(c) to fill a position for which funding is unlikely or unknown;

employment relating to performing work for which funding is subject to change or is not expected to be renewed

(d) to fill a short-term vacancy before a person is appointed on tenure;

(e) to perform work necessary to meet an unexpected short-term increase in workload.

an unexpected increase in workload for disaster management and recovery

(3) Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

(5) A person employed under this section does not, only because of the employment, become a public service officer.

(6) The commission chief executive may make a directive about employing fixed term temporary employees under this section.

• [12] 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 1 year; and

(c) is eligible for appointment to the position at the higher classification level having regard to the merit principle.

(2) However, this section does not apply to the following public services employees -

(c) an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.

(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 -

(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.

(7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under 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 phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),[4] Merrell DP relevantly stated:[5]

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 includes 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. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

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. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

• managing the department in a way that promotes the effective, efficient and appropriate management of public resources;

• 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 the PS Act.

• [14] Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.

• [15] Clause 4.2 of Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows:

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

• [16] Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows:

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.

• [17] Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows:

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.

• [18] Clause 11 of Directive 13/20 provides definitions, and relevantly states as follows:

Substantive vacancy means a recurrently funded position identified on an agency's establishment

list that does not have an ongoing incumbent appointed.

• [19] Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

Genuine operational requirements of the Department

• [20] As noted above, 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".

• [21] It has been held,[6] that when construed in context, the phrase "genuine operational requirements of the Department" 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 has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to...position at the higher classification level.

• [22] Clause 4.2 of Directive 13/20 provides that 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.

• [23] Clause 4.2 of Directive 13/20 further provides examples of circumstances that would support the temporary engagement of an employee at a higher classification level, they 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

• [24] The relevant issue for my consideration is whether the circumstances of this matter would support the continued temporary engagement of Ms Toby while she is performing the position in the higher classification.

• [25] Queensland Health submits that there are genuine occupational reasons for refusing Ms Toby's request as the position is not recurrently funded and therefore no substantive vacancy exists to which Ms Toby could be appointed.

• [26] Queensland Health submits that the Queensland Government has provided annual funding to support Making Tracks towards closing the gap in health outcomes for Indigenous Queenslanders by 2033: policy and accountability framework ("Making Tracks"). Queensland Health contends that under the Making Tracks current service agreement, the Cultural Practice Program is funded until June 2021, which is the time Ms Toby's higher duties position is funded until.

• [27] Queensland Health submits that there are genuine operational reasons for not converting Ms Toby's employment status as the position is funded externally and funding is not guaranteed to be recurring. It contends that the Making Tracks service agreement is prescriptive in how funding can be used by the Health Services' prerogative to determine how cultural programs would be supported. Queensland Health submits that the acceptance of funding for a temporary position to implement a program should not be used to oblige Queensland Health to continue this course of action in the absence of the funding.

• [28] Queensland Health submits that a lack of recurrent funding and substantive vacancy, as defined by Directive 13/20, is a genuine operational reason upon which it relies for its decision not to convert Ms Toby to the higher classification position.

• [29] Ms Toby submits that in the Phase One Concept Paper relating to the Structure of the Aboriginal and Torres Strait Island Health Unit, that was approved on 15 December 2020, includes that the position is to be continued in the ambit of the paper. Ms Toby contends that in light of this document, it is expected that the position will be ongoing.

• [30] Ms Toby submits that Making Tracks, which in turn is the fourth triennial plan, has survived several changes of government at both the state and federal level, further supporting the reasonable expectation of the program's continuation. Ms Toby contends that all public service budgets are subject to review each year during the state and federal budget processes. Funding for all positions, including those which are long standing, permanent appointments, can be altered during this process. Ms Toby submits that her higher duties position is not a position for a project with a finite end point. The position is not undertaking a discrete parcel of work, such as a six or 12 month contract to create an organisation plan or assist in the set up or design of a process. It is submitted that Ms Toby's position is an ongoing body of work; a body of work which has been performed, under the Making Tracks program, for more than a decade.

• [31] Ms Toby first commenced acting up in the position in 2013, albeit in a part-time capacity. In 2016, it was recognised that the position should be converted to a full-time position. Ms Toby has continued to perform the role in a full-time capacity since 2016.

• [32] Clause 1.2(b) of Directive 13/20 relevantly states that the Directive supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle.

• [33] Ms Toby has been acting up in the position on a full-time basis for approximately 5 years. This period of time indicates that the engagement is no longer of a temporary nature.

• [34] Further, I do not consider that the reasons Queensland Health rely on are matters contemplated by clause 4.2 of Directive 13/20. Relevantly, Ms Toby does not perform work for a particular project or program that has a known end date.

• [35] Queensland Health's reference to the date 30 June 2021 is referred to only in the context of that being the date on which the current service agreement ends. There is no submissions made, or information before me, that indicates it is unlikely for another service agreement to be entered into to continue the Cultural Practice Program in which Ms Toby performs in the position of Indigenous Cultural Practice Coordinator. Further, there are no submissions made, or information put before me, to suggest that the Cultural Practice Program will end imminently.

• [36] Both parties have referred to Making Tracks which supports a policy and accountability framework until 2033. Queensland Health clearly has ongoing obligations it must continue to meet in accordance with that framework.

• [37] Given that the program has continued in one form or another since at least 2013 (and in the absence of any information to the contrary), I consider it is likely that it will continue beyond 30 June 2021.

• [38] Queensland Health further submits that there is no substantive vacancy to appoint Ms Toby to. Directive 13/20 does not require there to be a substantive vacancy to enable conversion.

• [39] Accordingly, I am not persuaded that a reasonable assessment of what amounts to general operational requirements would deny the permanent appointment of Ms Toby to the position.

• [40] I am of the view that the decision by Queensland Health was not fair and reasonable, nor consistent with the purpose and intent of Directive 13/20 and s 149C of the PS Act.

• [41] On the material before me, I am satisfied that Ms Toby satisfies the eligibility criteria and that there is no impediment to her being appointed to the position at the higher classification level.

• [42] For the forgoing reasons, I consider the decision was not fair and reasonable.

1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision.

1. The Appellant is appointed to the position at the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2020] QIRC 203.

[6] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell, [40].