Underwood v State of Queensland

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 149 and 149C

Directive 13/20 Appointing a public service employee to a higher classification level, cls 4, 6 and 7

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] Mr Adam Underwood (the Appellant) is permanently employed as a public service officer in the position of BAO6, Operations Manager within QBuild, Building Policy and Asset Management (BPAM) division of the State of Queensland (Department of Housing and Public Works) (the Respondent).

• [2] The Appellant has been acting in a higher classification role as a BAO7, Delivery Manager within QBuild, BPAM (the 'higher level position') since 20 March 2017.

• [3] The Appellant appeals a decision by the Deputy Director-General, BPAM 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 he had been acting.

• [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 the Deputy Director-General to deny the request to appoint the Appellant at the higher classification level was fair and reasonable in all of the circumstances.

• [8] On 16 October 2020, the Appellant requested that he be permanently appointed to the higher level position.

• [9] On 20 October 2020, Ms Simone Pirie, Human Resources Consultant, Human Resources, on behalf of the Deputy Director-General, informed the Appellant of the decision in response to his request. In doing so, Ms Pirie stated:

The Deputy Director-General, Building Policy and Asset Management (Deputy Director-General) has given consideration to your request and notes the following:

• You are substantively employed in the role of BAO6, Operations Manager within QBuild, BPAM, and that since 20 March 2017 you have been continuously performing the duties of BAO7, Delivery Manager within QBuild, BPAM.
• The purpose of your placement in the role of BAO7, Delivery Manager within QBuild, BPAM, is for a project with a specified date.
• You have been engaged in the position of BAO7, Delivery Manager within QBuild, BPAM, for three years and seven months.
• Your engagement in the position of BAO7, Delivery Manager within QBuild, BPAM, has been extended ten times.
• Your current engagement in BAO7, Delivery Manager within QBuild, BPAM, is due to expire on 29 January 2021.
• There are no performance concerns regarding your placement in the BAO7, Delivery Manager within QBuild, BPAM, that have been put to you, documented and remain unresolved.

After considering your request to be permanently employed in the position of BAO7, Delivery Manager within QBuild, BPAM, and the circumstances of your temporary placement in that role, the Deputy Director-General 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 position of BAO7, Delivery Manager within QBuild, BPAM is to perform work for a particular project specifically, the Additional Capacity Detention Centre, and New Youth Detention Centre projects, which has an expected end date of 29 January 2021.
• On the completion of these projects on 29 January 2021, there will no longer be a continuing need for you to be engaged in the position of BAO7, Delivery Manager within QBuild, BPAM.

Relevant provisions of the PS Act and the Directive

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;

(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.

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.

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.

7.1 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.

• [12] 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.

• [13] The Appellant filed submissions in support of the appeal. A summary of those submissions are as follows:

• the Appellant has been employed in a temporary capacity in the higher duties role for a continuous period of three years and seven months; and

• within this timeframe, the Appellant's employment has included the delivery of the following works:

(a) between 31 January 2017 to 15 July 2018, at the Brisbane Youth Detention Centre - New Accommodation Block, totalling one year and six months continually;

(b) between 27 March 2017 to 28 July 2020, at the Brisbane Youth Detention Centre - Electronic Security Service, totalling two years and four months continually;

(c) between 13 May 2019 to 5 October 2020, at the Brisbane Youth Detention Centre - Additional Capacity Detention Centre, totalling one year and five months continually;

(d) between 30 August 2019 to 20 November 2020, at the Brisbane Youth Detention Centre - Fire Detection Upgrade, totalling one year and three months continually; and

(e) between 1 July 2020 to 1 July 2021, at the Brisbane Youth Detention Centre - Major Construction Works (Stage 1). The body of works is part of a four year program of Major Construction Works.

• [14] The Respondent filed the following submissions, in summary:

• by letter provided to the Appellant on 20 October 2020 (outcome letter), the Appellant was advised that the chief executive's delegate had made a decision to continue the Appellant's temporary placement in the higher level position, in accordance with the terms of that temporary placement;

• in relation to the Appellant's submissions that the outcome letter provided to the Appellant erroneously stated that the Additional Capacity Detention Centre project and the New Youth Detention Centre project have an expected completion date of 29 January 2021, the Respondent submits that the Additional Capacity Detention Centre project was completed in May 2020 and the Brisbane Youth Detention Centre project has an expected end date of July 2021;

• while the outcome letter provided to the Appellant stated that the Appellant was engaged to work on the Additional Capacity Detention Centre and New Youth Detention Centre projects, the Respondent submits that this was also an administrative error. The Appellant was actually engaged to work on the Additional Capacity Detention Centre project, which has now been completed and the Brisbane Youth Detention Centre project;

• notwithstanding the administrative errors in the outcome letter provided to the Appellant, the Respondent submits that the Appellant's current temporary placement in the higher level position has been to perform work for specific project, specifically the Brisbane Youth Detention Centre project, which has an expected end date of July 2021;

• 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;

• clause 4.2 of the Directive provides that circumstances that would support the temporary engagement of an employee at a higher classification level. This 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 position 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; and

(d) to perform work necessary to meet an unexpected short-term increase in workload;

• the Respondent considers that clause 4.2 of the Directive is relevant in that it clearly demonstrates that an employee temporarily placed in a higher level position, does not need to be appointed permanently to that higher level position, where their skills are only temporarily required to perform work for a particular project or purpose that has a known end date;

• the Respondent submits that, the Appellant's current temporary placement in the higher level position is to perform work for a particular project, being the Brisbane Youth Detention Centre project, which has a known end date of July 2021. Accordingly, there will no longer be a continuing need for the Appellant to be placed in the higher level position once this project is completed;

• clause 6.2 of the Directive and s 149C(4A) of the PS Act provides that, when deciding a 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 s 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level;

• the Respondent submits that it does not have a genuine operational need to permanently employ the Appellant in the higher level position, once the Brisbane Youth Detention Centre project is completed. Accordingly, the Respondent considers that it is not appropriate or viable for the Respondent to offer to permanently employ the Appellant in that position;

• 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, in relation to the Appellant during their continuous period of employment at the higher classification level, no such previous decisions have been made or deemed to have been made about the Appellant, by the chief executive or delegate;

• the Respondent submits that the decision of the chief executive's delegate to refuse the Appellant's request is fair and reasonable;

• the Respondent further submits that in advising the Appellant of the decision of the chief executive's delegate, a written notice was provided to the Appellant stating:

(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;

• regarding the requirement for the written notice to detail the reasons for each decision previously made, or deemed to have been made, under s 149C of the PS Act, in relation to the Applicant during their continuous period of employment at the higher classification level, the written notice provided to the Appellant contains no such details as no previous decisions have been made or deemed to have been made about the Appellant by the chief executive or delegate; and

• the Respondent submits that the chief executive's delegate has complied with s 149C of the PS Act and the Directive in making the decision to refuse the Appellant's request.

• [15] The Appellant filed submissions in reply to the Respondent's submissions, in summary:

• the Respondent has erroneously misinformed the Commission of the correct dates as the expected completion date of the Additional Capacity Detention Centre was May 2020. The commencement of the project was the 13 May 2019 with an anticipated completion date of the 28 May 2020, however, the final Practical Completion Certificate awarded was documented as the 13 August 2020;

• the higher duties engagement was for the undertaking of the Additional Capacity Detention Centre and New Youth Detention Centre. The higher duties documents signed dated 1 May 2017 was because the Appellant was "[r]equired for operational purposes at the DJAG Perimeter Security System Upgrade and Accommodation Program;"

• the Appellant submits that there is a requirement of the higher level position to ensure the continual delivery of projects for the customer. The Appellant submits that an additional extension of his tenure has been lodged to extend from the 29 January 2021 until the 30 June 2021;

• the date as nominated for works within the Brisbane Youth Detention Centre relates to Stage 1 of a 4 year program. The date of July 2021 coincides with the completion of the financial year;

• in relation to the genuine operational requirements of the Respondent, the Appellant submits that his tenure for the past three years and seven months has established a genuine operational requirement to service the Respondent's customer and demonstrates compliance with s 149C(1)(a)-(c) of the PS Act which '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', in accordance with clause 1.2 of the Directive; and

• the Appellant's tenure has been continuous for the past three years and seven months and the projects delivered individually spanning in excess of the 12 months as requested within the Directive.

• [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, declining the Appellant's request for permanent appointment to the higher classification level.

• [18] I note the Respondent concedes in their submissions that the decision contained a number of errors, including the date of completion of the Additional Capacity Detention Centre and the Brisbane Youth Detention Centre projects and the project in which the Appellant is currently working. It is unclear whether these errors impacted on the Respondent's consideration when determining that genuine operational requirements existed to deny appointment to the higher level position.

• [19] Section 149C(1) provides that a public service employee is eligible for appointment to the permanent appointment if they have been acting at a higher classification level in the department in which the employee is employed and has been acting at this level for a continuous period of at least 1 year. The Appellant satisfies both of these requirements, holding a substantive role in the Department of Housing and Public Works and acting in the higher level classification for over 3 years. The third requirement is that the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle. The decision confirmed that there are no performance concerns that have been put to the Appellant, documented and remain unresolved, confirming that the Appellant satisfies the merit criteria.

• [20] Section 149C(4A) of the Act requires that in making a decision, the decision-maker must have regard to the following:

(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.

Compliance with requirements of s 149C of the PS Act

• [21] 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 -

(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.

• [22] The Respondent provided a notice including the reasons for the decision, confirmation that the Appellant has acted in a higher classification role for three years and seven months following ten extensions. 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.

Previous reasons for acting at a higher classification level

• [23] 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.

• [24] On the basis that no previous decisions were made pursuant to s 149C of the PS Act the decision maker was not required to demonstrate compliance with this section.

Genuine operational requirements of the Department

• [25] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women) (Morison),[5] 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 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.'[6]

• [26] The question in this matter is whether there was an authentic need to appoint the Appellant to the BAO7 Delivery Manager role, having regard to the appropriate management of the pubic resources of the Department of Housing and Public Works.

• [27] Clause 4.2 of the Directive outlines circumstances that would support the temporary engagement of an employee at a higher classification level as including:

To perform work for a particular project or purpose that has a known end date.

• [28] In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider whether the Appellant was required to be temporarily engaged at a higher classification to perform work for particular project or purpose that has a known end date.

• [29] It appears that the nature of the role in which the Appellant has been acting is project-based with the project timelines overlapping resulting in continuous employment at the higher duties level. This is confirmed by the decision which states "since 20 March 2017 you have been continuously performing the duties of BAO7, Delivery Manager within QBuild, BPAM." Organising employment duties around ongoing project-based work, with known or estimated end dates, is not unusual in building, maintenance and construction roles.

• [30] An examination of the Appellant's employment history confirms that his skills were required in the higher level role from March 2017 over a series of projects at the Brisbane Youth Detention Centre. These projects included work at the New Accommodation Block for one year six months, Electronic Security Service for two years four months, Additional Capacity Detention Centre for one year five months, Fire Detection Upgrade for one year three months and Major Construction Works which the Appellant submits is a four year program commencing from 1 July 2020. Although these projects could all be considered 'particular projects' with a 'known end date', the culmination of this ongoing work suggests that the Department has a genuine requirement for this work to continue on an ongoing basis.

• [31] The decision by the legislature to nominate one year as the appropriate period at which temporary higher duties may be reviewed provides a general indication of the time period that may, in ordinary circumstances, be considered reasonable for a temporary appointment. There are clearly circumstances in which temporary higher duties may be extended beyond twelve months and the direction to consider genuine operational requirements allows for these circumstances to be considered. I am not, however, persuaded that a consideration of operational requirements would reasonably result in the Appellant's request for conversion to the higher level position to be denied in this matter following over three years acting in the temporary role.

• [32] I am not persuaded that a reasonable assessment of genuine operational requirements would deny permanent appointment in this matter. This is particularly given the circumstances in which the Appellant has been employed in a temporary higher level position within a project-based working environment, having served three years and seven months in the position after being extended ten times, with evidence of the current project extending for another three years.

• [33] To deny an employee conversion because the inherent nature of their work is project based, rather than continuous, would be to unfairly deny employees working in project-based work access to the benefit of the Directive. There may well be circumstances in which permanent appointment of employees acting in a higher classification level position for a particular project would not be consistent with operational requirements. Clause 4.2 of the Directive clearly contemplates that temporary engagement may be appropriate in circumstances in which a project or purpose has a known end date. However, if the history of the employee's temporary engagement relates to continued projects, appointment to the higher level position should not be denied simply on the basis that a known end date exists in isolation from the broader circumstances of the Appellant's employment.

• [34] I note that the purpose of 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." The clauses within the Directive should be interpreted in a manner consistent with the purposes of the Directive where possible.

• [35] For this Directive to have any meaningful application, it is necessary to examine whether the 'genuine operational requirements' relied upon to deny permanent appointment to the higher classification level are reasonable in the circumstances. The simple reference to a project end date alone in this matter does not confirm that genuine operational requirements prevent appointment to the higher level position on a permanent basis. 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 not fair and reasonable nor consistent with the purpose of the Directive and s 149C of the PS Act.

• [36] On the basis that the Appellant has satisfied the eligibility criteria, there is no impediment to the Appellant being appointed to the higher level position of BAO7.

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 be appointed to the higher classification level in accordance with s 149C of the Public Service Act 2008 (Qld).

[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.

[5] [2020] QIRC 203.