Ferri v State of Queensland (Queensland Corrective Services)
[2023] QIRC 86
•20 March 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Ferri v State of Queensland (Queensland Corrective Services) [2023] QIRC 086 |
PARTIES: | Ferri, Jye v State of Queensland (Queensland Corrective Services) |
CASE NO: | PSA/2022/1003 |
PROCEEDING: | Public Sector Appeal – Fair treatment appeal |
DELIVERED ON: | 20 March 2023 |
MEMBER: HEARD AT: | McLennan IC On the papers |
ORDER: | The decisions appealed against are confirmed. |
| CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant made a conflict of interest declaration – where the decision-maker imposed restrictions on the declaration of other employment – where respondent declined request for conference – whether decisions were fair and reasonable |
| LEGISLATION & OTHER INSTRUMENTS: CASES: | Industrial Relations Act 2016 (Qld) Public Sector Act 2022 (Qld) s 131, s 133, Public Sector Ethics Act 1994 (Qld) s 6 Public Service Act 2008 (Qld) s 186, s 194 Correctional Employees Award – State 2015 Queensland Corrective Services – Correctional Employees' Certified Agreement 2021 cl 9 Ferri v State of Queensland (Queensland Corrective Services) [2022] QIRC 239 Gilmour v Waddell & Ors [2019] QSC 170 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 |
Reasons for Decision
Mr Jye Ferri (Appellant) commenced casual employment as a Custodial Correctional Officer (CCO) at the Brisbane Correctional Centre (BCC), with Queensland Corrective Services (QCS), State of Queensland (Respondent) on 30 December 2019.[1]
[1] Appellant's submissions filed 13 Dec 2022, 1 [1].
Mr Ferri is an admitted lawyer and is also currently employed with Sibley Lawyers in a casual capacity.[2]
[2] Ibid Attachment 1, 2.
The original DOOE
Mr Ferri declared his secondary employment with Sibley Lawyers (the firm) on 9 September 2020 (the original DOOE).[3]
[3] DOOE is 'Declaration of Other Employment'.
In that original DOOE, Mr Ferri disclosed that:
Sibley Lawyers offers Employment Law services which I may assist with. The firm does
represent essential service personnel including Ambulance, Police and Correctional Officers.[4]
[4] Respondent's submissions filed 20 December 2022, 1 [3].
…
Ordinary duties of a Junior Solicitor at a Criminal Law Firm. It is proposed I be engaged in a casual capacity. Tasks may include:
- Drafting court documents;
- Managing files;
- Meeting with clients;
- Making court appearances; and
- Assisting in the general operations of running a business.[5]
[5] Ibid Attachment 3, 2.
The original DOOE was approved on 10 September 2020 by Chief Superintendent Bernie Kruhse subject to the condition that:
QCS may withdraw approval of any other employment where it is in the interests of QCS to do so after consulting with myself, and that such advice will be provided in writing.[6]
[6] Ibid.
On 10 March 2022 Superintendent Peter Stacey wrote to Mr Ferri (the interim measure):
[Ethical Standards Group (ESG)] had become aware that, while employed in your role as a CCO, you also currently provide legal representation to other QCS employees, including your colleagues at BCC, in workplace investigations being conducted by ESG.
Superintendent Stacey determined that:
…until such time as your new other employment and/or conflict of interest declaration is submitted and a determination has been made that a conflict of interest does not exist, you will not be approved to appear and provide legal representation to QCS employees during ESG investigations.
I also take this opportunity to bring to your attention the provisions of s 186(1)(b) of the Public Service Act 2008 which provides that 'If a public service employee, other than a chief executive, has an interest that conflicts or may conflict with the discharge of the employee's duties, the employee – must not take action or further action relating to a matter that is, or may be, affected by the conflict unless authorised by the chief executive'. I suggest that any current or proposed representation by you of QCS employees involved in disciplinary processes, be held in abeyance pending determination of your new declaration.
Should you wish to provide support to QCS employees during interview processes, in the role of a support person only, prior approval of the relevant ESG investigator will still be required to ensure a conflict of interest does not exist with the matter under investigation. This is a normal ESG process.
…The first appeal
Mr Ferri filed an appeal against the interim measure issued by Superintendent Stacey on 8 April 2022, asserting that decision was unfair and unreasonable. In doing so, Mr Ferri sought to have the interim measure reversed, such that approval of the original DOOE was reinstated.
In Ferri v State of Queensland (Queensland Corrective Services),[7] Industrial Commissioner Pidgeon determined it was fair and reasonable for Superintendent Stacey to issue the interim measure requesting an updated declaration be submitted by Mr Ferri and that, pending the outcome of that declaration, he not undertake work involving QCS employees in ESG investigations.
[7] [2022] QIRC 239.
Mr Ferri submitted that:
The Respondent makes repeated references to PSA/2022/424.[8] I've made no reference as the appeal origins and decision are immaterial to the current appeal before Industrial Commissioner McLennan.
[8]Ferri v State of Queensland (Queensland Corrective Services) [2022] QIRC 239.
However, to the extent that Mr Ferri has again raised in this appeal matters earlier considered by Industrial Commissioner Pidgeon in the first, her reasoning is relevant to my decision in this matter.
It would appear that Mr Ferri earlier accepted the connection, in his correspondence to Chief Superintendent Henderson:[9]
I appreciate your time in meeting with me on 26 May 2022, to hear your concerns regarding my employment as a casual Solicitor with Sibley Lawyers. Many of the issues raised in your letter are relevant matters to a Public Service Appeal (PSA/2022/424) currently before the Queensland Industrial Relations Commission (QIRC). If you are able to approve my DOOE subject to mutually agreed conditions, I will consider discontinuing my QIRC application.
[9] Dated 16 June 2022; Appellant's submissions filed 13 December 2022, Attachment 2, 1.
The new DOOE
Mr Ferri submitted a new DOOE on 15 March 2022.[10]
[10] Respondent's submissions filed 20 December 2022, Attachment 3, 2.
The new DOOE was considered by Chief Superintendent Peter Henderson, BCC.
After a lengthy period of engagement with Mr Ferri about the matter, Chief Superintendent Henderson confirmed his decision to be final on 3 November 2022.[11]
[11] Ibid 5.
In that decision, nine conditions were imposed on Mr Ferri's other employment with Sibley Lawyers. Three of those conditions were disputed.[12]
[12]Ibid 5.
Dissatisfied with that outcome, Mr Ferri sought a conference with A/Assistant Commissioner Yi Chen, under procedures set out in both the relevant Certified Agreement and Award.
On 23 November 2022, A/Assistant Commissioner Chen declined Mr Ferri's requests for a conference, concluding:
…it remains a matter for you whether you wish to proceed to the QIRC or escalate the matter
pursuant to section 7.2 of the Award.[13]
[13] Ibid Attachment 7.
The second appeal
Mr Ferri filed a second appeal on 24 November 2022.
In the Appeal Notice, Mr Ferri identified the decision being appealed was received on 3 November 2022.[14] That is, Chief Superintendent Henderson's confirmed decision to impose nine conditions (three of those disputed) on Mr Ferri's other employment with Sibley Lawyers.
[14] Appeal Notice filed 24 November 2022, 3.
While Mr Ferri referred to his attempts to conference the matter with A/Assistant Commissioner Chen in the Appeal Notice, the outcome he ultimately sought was that:
I request the Commissioner set aside the three conditions in dispute due (to) their unfair and
unreasonable creation.[15]
[15] Ibid 4.
When Mr Ferri filed his written submissions on 13 December 2022, it appeared both Chief Superintendent Henderson's decision[16] and A/Assistant Commissioner Chen's decision[17] were subject of the second appeal. Mr Ferri stated:
Appeal Jurisdiction
On Part B of my filed Form 89 Appeal Notice, I noted 3 November 2022 as the day I received Chief Superintendent Henderson's decision.
After following the QCS grievance process as per Section 7.2 of the Correctional Employees Award – State 2015, Assistant Commissioner Chee advised me of her decision on 23 November 2022.
Having filed the Appeal Notice on 24 November 2022, both decisions meet the 21-day requirement, I respectfully submit the matter falls within the QIRC's jurisdiction to consider this matter.[18]
[16] 3 November 2022.
[17] 23 November 2022.
[18] Appellant's submissions filed 13 December 2022, 2 [17] - [19].
Is the Appellant entitled to appeal?
On 1 March 2023, the Public Sector Act 2022 (Qld) (the PS Act) came into effect. Pursuant to s 289 of the PS Act, the Public Service Act 2008 (Qld) is repealed. Section 324 of the PS Act relevantly provides:
(1) This section applies if—
(a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
(b) immediately before the commencement, the appeal had not been decided.
(2) From the commencement, the appeal must be heard and decided under chapter 3, part 10.
On 24 November 2022, before the commencement of the PS Act, Mr Ferri filed this appeal in the Industrial Registry. Immediately before the commencement of the PS Act, this appeal had not been decided. Therefore, the appeal must be heard and decided under chp 3, pt 10 of the PS Act.
Section 131 of the PS Act[19] identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable is appealable under s 131(1)(d) of the PS Act.
[19] Equivalent provision in the Public Service Act 2008 (Qld) was s 194.
Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.
Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. Mr Ferri meets that requirement.
I am satisfied that the decision subject of this appeal is able to be appealed.
Appeal filed in time
The Appeal Notice was filed with the Industrial Registry 24 November 2022.
Mr Ferri stated that the decisions appealed were given on 3 November 2022 and 23 November 2022.[20] The Respondent did not contest those nominated dates.
[20] Appellant's submissions filed 13 December 2022, 2 [17] – [19].
I consider Mr Ferri's appeal to have been filed in time, with respect to both decisions.
Appeal principles
Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the two decisions[21] were fair and reasonable.
[21] As set out at [24] above.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) for another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Grounds of Appeal
In the Appeal Notice,[22] Mr Ferri submitted that the decisions were unfair and unreasonable because:
·Chief Superintendent Henderson ought not have imposed three restrictions on Mr Ferri's DOOE;
·Mr Ferri desired to conference further with QCS to settle the matter; and
·Assistant Commissioner Chen was not open to Mr Ferri's attempts to further elevate his grievance.
[22] Appeal Notice filed 24 November 2022.
Questions to be decided in this appeal
The two questions to be decided in this appeal are:
1.Was Chief Superintendent Henderson's decision of 3 November 2022 to impose the three disputed conditions on Mr Ferri's other employment with Sibley Lawyers fair and reasonable?
2.Was A/Assistant Commissioner Chen's decision of 23 November 2022 to decline Mr Ferri's requests for a conference under cl 7.2 of the Correctional Employees Award – State 2015 (the Award) fair and reasonable?
Consideration of 'reasonable'
The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[23]
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.
The pluarity in Li said:
… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …
… there is an area within which a decision-maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision-maker …
… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.
… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.
[23][2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-
Was Chief Superintendent Henderson's decision of 3 November 2022 to impose the three disputed conditions on Mr Ferri's other employment with Sibley Lawyers fair and reasonable?
The decision
Chief Superintendent Henderson's decision included the imposition of three disputed conditions on Mr Ferri's other employment with Sibley Lawyers.
For completeness, Chief Superintendent Henderson approved Mr Ferri's DOOE subject to the following conditions:
The conditions in relation to which we do have agreement, and will be imposed within 22 days of this letter are:
1. That you do not provide legal advice or representation to a person charged with a criminal, traffic or domestic violence offence;
2. That you do not access IOMS for any clients for whom you or Sibley Lawyers have previously acted, or for whom Sibley Lawyers are currently acting, except where you have a genuine operational need to access IOMS for a current prisoner and you advise your General Manager in writing within 4 hours of the access setting out the reasons why you required access and the General Manager approves the access; and
3. That where a prisoner that you have legally represented in your employment at Sibley Lawyers is not currently at BCC, but is transferred to BCC, within 24 hours of that information coming within your knowledge you complete a further DOOE and advise your Manager via email of the further DOOE and take all steps to remove yourself from the area / management of the prisoner, as a matter of urgency.
The conditions in relation to which we do not have agreement, but will be imposed within 22 days of this letter are:
4. That you do not provide legal advice or representation to an employee of QCS in matters against QCS, or the State of Queensland / Crown;
5. That you do not attend ESG interviews in your capacity as lawyer for QCS employees (both current and former);
6. That you do not represent and advise current or former employees of QCS in employment / discipline matters, domestic violence, traffic offences and criminal matters before a court or tribunal and against QCS, or the State of Queensland / Crown.
In relation to points 4 and 6 above and points 1 and 2 of my letter dated 20 May 2022, I confirm
I have determined that you may complete employment / discipline work for an officer of QPS.
This is now reflected in point 4 above. However, in relation to representing / advising an employee of QPS in a criminal matter, I make the following condition:
7. That you do not represent and advise current or former employees of QPS in, domestic violence, traffic offences and criminal matters before a court or tribunal.
Finally, within 22 days of this letter, you are required to:
8. submit a Conflict of Interest Declaration for any prisoner currently accommodated at BCC whom you have represented in the course of your employment with Sibley Lawyers; and
9. confirm in writing that you have complied with (1) above.
Hereafter, the requirements in paragraphs 1 to 9 will be referred to as 'My Decision'.[24]
[24] Appellant's submissions filed 13 December 2022, Attachment 3, 5 – 6.
Chief Superintendent Henderson explained:
Just to be clear, My Decision does not restrain you from performing any secondary employment with Sibley Lawyers. My Decision is to approve your secondary employment with Sibley Lawyers subject to the conditions outlined in paragraphs 1 to 9 above.
I note that in your Response, you say that you 'assist clients from a variety of workplaces and industries, both public and private who seek the services of Sibley Lawyers.' This suggests that your opportunities for work with Sibley Lawyers is broad in scope.[25]
[25] Ibid 6.
Chronology
The chronology of events relating to the second appeal is as follows:
·15 March 2022 Mr Ferri submitted a new DOOE declaration.
·20 May 2022 Chief Superintendent Henderson writes to Mr Ferri,
proposing eight conditions in relation to the new DOOE.
·26 May 2022 Mr Ferri met with Chief Superintendent Henderson to
discuss the 20 May 2022 correspondence.
·17 June 2022 Mr Ferri wrote to Chief Superintendent Henderson,
accepting five of the eight proposed conditions.
·19 July 2022 Mr Ferri and Chief Superintendent Henderson met again.
At that meeting, Mr Ferri was provided with correspondence proposing nine amended conditions.
After receiving Chief Superintendent Henderson's proposal to impose the three disputed conditions on 19 July 2022, Mr Ferri stated the following occurred:[26]
[26] Appeal Notice filed 24 November 2022, 4.
·26 August 2022 In a meeting with Mr Ferri, "Chief Superintendent
Henderson proposed a conference to discuss the matter with relevant stakeholders."[27]
·6 September 2022 Mr Ferri "emailed a letter to Chief Superintendent
Henderson where I addressed his concerns, explained my view of the risk and proposed management strategies."[28]
Mr Ferri also indicated his support for Chief Superintendent Henderson's conference proposal "and indicated Sibley Lawyers would be willing to attend."[29]
·3 November 2022 Mr Ferri "received a final Decision from Chief
Superintendent Henderson regarding my COI, who restated the imposition of three conditions as communicated on 19/7/2022. Disappointingly, Chief Superintendent Henderson reneged on his proposal to conference with relevant stakeholders."[30]
[27] Ibid.
[28] Ibid.
[29] Ibid.
[30] Ibid.
Appellant's submissions
Mr Ferri contends that his "attempts to provide a genuine picture of risk and possible mitigation strategies has gone unheard", contrary to the consultation obligations under the QCS Conflict of Interest Policy.
Mr Ferri submitted the decision to impose three restrictions on his DOOE was unreasonable because:
1. Chief Superintendent Henderson's duty to "actively engage with employees in developing and implementing resolution strategies for any conflict of interest" was not followed through with the spirit of managing my DOOE. Rather a mindset to restrict aspects which are unorthodox and potentially uncomfortable for QCS.[31]
[31] Appellant's submissions filed 13 December 2022, 4 – 5 [31].
2. My correspondence with Chief Superintendent Henderson has included various forms of show cause and invitations to reply. As demonstrated in relation to sensitive and confidential information, the point was raised for discussion, my submissions were treated as lacking persuasion, then in Attachment 5, Chief Superintendent Henderson states he does not consider the conflict "relevant to my decision to curtail some of your duties in your secondary employment." It lacks intelligible justification as to how a conflict can be identified, discussed then dismissed as irrelevant. While simultaneously stating, "My decision has been focused solely on whether aspects of your secondary employment creates an actual, potential or perceived conflict of interest."[32]
[32] Ibid.
3. When presented with evidence that a conflict was different in nature to once thought, Chief Superintendent Henderson was dismissive and unable to craft a mutually beneficial outcome. This is at odds with Leadership Competencies for Queensland (Attachment 9) where an Executive "acts as a skilful negotiator, using compelling arguments and evidence to persuade stakeholders towards mutually beneficial outcomes."[33]
4. At our meeting on 26 August 2022, Chief Superintendent Henderson expressed the possibility of a conference between myself, himself and QCS Legal. In Attachment 4, I expressed the value I saw with this approach, the opportunity to directly engage with my second employer would provide insight and control measures external to QCS. It was disappointing for Chief Superintendent Henderson to reverse his offer and in Attachment 5, take the view "QCS is not prepared to entertain any further conference in relation to this matter."[34]
[33] Ibid.
[34] Ibid.
Mr Ferri stated that "My engagement with Chief Superintendent Henderson has spanned nine months, encompassing several meetings and letters."[35]
[35] Ibid 3 [22].
With respect to the consultation that occurred, Mr Ferri asserted that:
· At all times, I have been willing to conference with QCS. Chief Superintendent Henderson's proposal to conference with my employer was disappointingly reneged on. …Three opportunities to conference have been made available to QCS, which have not been taken up.[36]
…
· Consultation between myself and Chief Superintendent Henderson covered a range of issues of various complexity. Following this, I do not believe it reasonably open for Chief Superintendent Henderson to impose the three restrictions in their current drafting. Rather, with consideration to our dialogue, removing the three restrictions would be a far more balanced approach as the underlying conflict is only perceived and has not been made out to be an actual COI. For context, I have accepted six out of nine conditions in total, demonstrating my willingness to conference and accept the process to settle this matter.[37]
[36] Appeal Notice filed 24 November 2022, 4.
[37] Ibid.
In correspondence to Chief Superintendent Henderson dated 6 September 2022, Mr Ferri asserted that the new DOOE should be approved without the three disputed conditions for the following reasons:
·employment history with QCS;
·role as a Junior Solicitor;
·obligations as a Solicitor; and
·privy to Confidential and Sensitive Information.
Respondent's submissions
In his correspondence of 3 November 2022, Chief Superintendent Henderson referred to "a number of further submissions" advanced by Mr Ferri in an effort to have his DOOE approved without the three disputed conditions, as listed at [40] above.
Chief Superintendent Henderson wrote "I have carefully considered the submission you have made, but am not persuaded by them."[38]
[38] Ibid Attachment 1.
With respect to the QCS Conflict of Interest Policy, the Respondent submitted that Mr Ferri's feedback has not gone unheard, explaining:
There was a substantial exchange of correspondence between the Appellant and QCS leading up to the Secondary Employment Decision, and the Appellant was afforded the opportunity to make submissions in relation to the Secondary Employment Decision prior to it being made. Furthermore, after the Secondary Employment Decision was made, the Appellant and QCS continued to exchange correspondence by letters dated 6 September 2022 and 3 November 2022 about the decision. In addition, the Appellant attended numerous meetings with Chief Superintendent Henderson about the Secondary Employment Decision, both before and after it was made, including on 26 May 2022, 19 July 2022, 26 August 2022 and 3 November 2022.
Just because QCS imposed the Secondary Employment Decision, with the Three Disputed Conditions, does not mean that QCS did not consider the feedback the Appellant provided.[39]
[39] Respondent's submissions filed 20 December 2022, 3 [26] – [27].
With respect to the matter of Mr Ferri's access to sensitive and confidential information, the Respondent submitted that:
…as a CCO, the Appellant has access to IOMS and other internal systems which hold confidential information about events, incidents, employees and prisoners, which creates at the minimum a perceived conflict of interest if, through his secondary employment with Sibley Lawyers, he were to provide legal representation to CCOs who are employed by QCS.
In the Appellant's Submission, he reiterates his view…that 'I do not have any motivation to inappropriately access information, which is complemented by assurance through auditing.' With respect, whether or not the Appellant has motivation to inappropriately access information and auditing is in place is not to the point and demonstrates a fundamental misunderstanding about how the conflict ought to be managed. In our submission, it is naïve and plainly wrong for the Appellant to contend that just because he says he is well intentioned and there are some checks and balances in place, the conflict is resolved.
In the Appellant's Submission, he concedes…that 'I acknowledge my access to confidential information may be a conflict however, as explained there is minimal risk with established control measures in place.' Again, the fact that there is minimal risk is not to the point. A conflict exists and ought to be resolved in the public interest by placing limitations on the Appellant's secondary employment, by not permitting him to provide legal representation to CCOs who are employed by QCS.[40]
[40] Ibid [29] – [31].
With respect to Mr Ferri's contention that Chief Superintendent Henderson's decision was unreasonable because he did not actively engage about the Secondary Employment Decision, the Respondent submitted that:
·QCS has committed a substantial amount of time and resources to work with Mr Ferri over a nine month period; and
·Mr Ferri has been invited to make submissions throughout the process of reaching the decision. Mr Ferri "…received detailed correspondence setting out the basis for the proposed decision and further detailed correspondence about why the decision was made." After the decision was made, Mr Ferri sent further correspondence about the decision that QCS responded to – and Chief Superintendent Henderson has met with Mr Ferri on four separate occasions about the decision (both before and after it was made).[41]
[41] Respondent's submissions filed 20 December 2022, 4 [32](a).
With respect to Mr Ferri's contention that the decision was unreasonable because Chief Superintendent Henderson stated[42] that he did not consider the conflict "relevant to my decision to curtail some of your duties in your secondary employment", the Respondent submitted that what Chief Superintendent Henderson actually stated was instead:[43]
I do not consider that your employment history with QCS, your role as a junior solicitor, your obligations as a solicitor or that you are privy to confidential and sensitive information is relevant to my decision to curtail some of your duties in your secondary employment. My decision has been focused solely on whether aspects of your secondary employment creates an actual, potential or perceived conflict of interest.[44]
[42] In correspondence dated 3 November 2022.
[43] Respondent's submissions filed 20 December 2022, 4 [32](b).
[44] Appeal Notice filed 24 November 2022, 5.
With respect to Mr Ferri's contention that the decision was unreasonable because Chief Superintendent Henderson "was dismissive and unable to craft a mutually beneficial outcome", "when presented with evidence that a conflict was different in nature to once thought", the Respondent submitted that:
…it is denied that Chief Superintendent Henderson has been 'dismissive'. Just because Chief Superintendent Henderson made a decision that did not achieve 'a mutually beneficial outcome' does not mean that the Secondary Employment Decision was not fair and reasonable.[45]
[45] Respondent's submissions filed 20 December 2022, 4 [32](c).
The Respondent further asserted that:
…while no actual conflict has presently been identified, (Mr Ferri's) conduct has not been beyond reproach in that in his employment as a solicitor with Sibley Lawyers, in responding to a show cause notice on behalf of a CCO as part of a discipline process, he made submissions seeking to discredit the evidence of two of his fellow CCOs at BCC. This is a matter that was addressed in Chief Superintendent Henderson's correspondence dated 20 May 2022…Furthermore, the obligations on QCS to manage a conflict of interest exists regardless of whether it is perceived, potential or real.[46]
Consideration
[46] Ibid 5 [35](a).
Ought Chief Superintendent Henderson have declined the further conference?
Chief Superintendent Henderson's correspondence dated 3 November 2022 confirmed his decision of 19 July 2022 to impose conditions on Mr Ferri's other employment with Sibley Lawyers.
Mr Ferri clearly did not accept that 19 July 2022 decision, instead continuing to agitate his position and attempt to persuade Chief Superintendent Henderson to change his mind in a subsequent meeting on 26 August 2022 and in correspondence dated 6 September 2022.
Such entreaties were ultimately unsuccessful. Chief Superintendent Henderson advised Mr Ferri on 3 November 2022 that "My decision, as outlined in my letter dated 19 July 2022 stands."
When Chief Superintendent Henderson communicated his decision to impose conditions on Mr Ferri's other employment with Sibley Lawyers on 19 July 2022, the decision was made. Though I have noted that the Respondent did not raise any jurisdictional objection as to the time of Mr Ferri filing his appeal, and so appeared satisfied for it to be heard on its merits.
That 19 July 2022 correspondence also appropriately explained to Mr Ferri that he had the right to appeal to the QIRC if he believed Chief Superintendent Henderson's decision was unfair and unreasonable. Mr Ferri elected not to do so at that time.
In my view, Chief Superintendent Henderson may well have determined to cease engagement with Mr Ferri about the matter at that point. A decision had been made and Mr Ferri's rights to appeal set out.
It seems to me that Chief Superintendent Henderson chose to invest even more time and resources in the matter thereafter out of an abundance of fairness and goodwill towards Mr Ferri.
While Mr Ferri feels clearly aggrieved by Chief Superintendent Henderson's determination not to "entertain any further conference in relation to this matter", that is neither unfair or unreasonable in my view. A decision had been made on 19 July 2022 - the matter was settled.
While Mr Ferri complained that Chief Superintendent Henderson had "expressed the possibility" of a conference at their meeting on 26 August 2022 "between myself, himself and QCS Legal" - and that Mr Ferri himself had seen value in the opportunity "to directly engage with my second employer" – that any such musings did not eventuate after 19 July 2022, does not render Chief Superintendent Henderson's decision to be unfair or unreasonable.
It cannot be said that QCS was at all stinting in the time and resources expended to consider and engage with Mr Ferri about the matter. I note that Chief Superintendent Henderson met with Mr Ferri several times[47] about the decision (both before and after it was made).[48] In such circumstances, it is not unfair or unreasonable for Chief Superintendent Henderson to have told Mr Ferri on 3 November 2022 that no further conference would be entertained. Mr Ferri had by that time been provided more than ample opportunity to articulate his case.
[47] See [42] – [43] of this Decision.
[48] Respondent's submissions filed 20 December 2022, 4 [32](a).
It seems this is not the first time Mr Ferri has pursued a strategy of trying to 'conference QCS into submission.' Industrial Commissioner Pidgeon earlier observed that:
…It seems that Mr Ferri made his own determination that he 'lacked approval to engage in any alternative employment'. The letter Supt Stacey sent to Mr Ferri made it quite clear that while he was awaiting the outcome of the new COI Declaration, his secondary employment could not involve representation of QCS employees. Mr Ferri appears to have continued to seek consultation or meetings about his understanding of the interim measure and it seems that on 28 March 2022, he received confirmation from Supt Stacey about the intention of the interim measure and that it related to the representation of QCS employees. While I understand that Mr Ferri was aggrieved by the interim measure (and sought to appeal it by way of this matter), there is nothing unclear about the instruction given to him. Mr Ferri has been able to continue working for Sibley Lawyers with regard to employment matters outside of QCS.[49]
[49]Ferri v State of Queensland (Queensland Corrective Services [2022] QIRC 239, [65].
For all those reasons, it was not unfair or unreasonable for Chief Superintendent Henderson to decline Mr Ferri's entreaties for any further conference.
Chief Superintendent Henderson's decision on 3 November 2022 to not engage with Mr Ferri in any further conference about this matter does not render the decision to impose the three disputed conditions to be unfair or unreasonable.
Ought Chief Superintendent Henderson have imposed the three disputed conditions?
Mr Ferri does not agree with Chief Superintendent Henderson's decision to impose the three disputed conditions on his other employment with Sibley Lawyers.
In the letter dated 20 May 2022, Chief Superintendent Henderson proposed "to find that part of (Mr Ferri's) secondary employment, as outlined in your new DOOE, presents as a conflict of interest. Pursuant to the power conferred under s 186(2) of the PS Act to impose limitations to resolve a conflict, (Chief Superintendent Henderson) propose(d) to approve your new DOOE subject to (certain) conditions."
Subsequently, Mr Ferri then met with Chief Superintendent Henderson on 26 May 2022, and responded in writing[50] to these identified concerns:
[50] Correspondence dated 16 June 2022.
·role as a junior solicitor;
·criticism of QCS colleagues;
·criminal representation;
·privy to confidential and sensitive information;
·private benefit from dual role;
·representation of QPS employees;
·threat to centre security; and
·supervised legal practitioner.
By correspondence dated 19 July 2022, Chief Superintendent Henderson considered each of those submissions, advised that he had amended a condition initially proposed, such that Mr Ferri may now "complete employment / discipline work for an officer of QPS". Though "in relation to representing / advising an employee of QPS in a criminal matter", Chief Superintendent Henderson imposed the condition that Mr Ferri "not represent and advise current or former employees of QPS in, domestic violence, traffic offences and criminal matters before a court or tribunal."
Within his reply submissions, Mr Ferri contends "Unreasonableness arises from Chief Superintendent Henderson applying a static mindset to my DOOE… the decision making process was dismissive…"[51] By changing his mind on a condition initially proposed, Chief Superintendent Henderson has demonstrated that he remained open to "actively engage" with Mr Ferri about the disputed conditions. That was eminently fair and reasonable. Mr Ferri's complaint that Chief Superintendent Henderson's mind was made up and that his arguments had thus gone "unheard", is not borne out on the evidence of that 19 July 2022 correspondence.
[51] Appellant's submissions in reply, 3 January 2023, 2 [9].
Mr Ferri further asserted that his "attempts to provide a genuine picture of risk and possible mitigation strategies has gone unheard." Given Mr Ferri had also submitted that his engagement with Chief Superintendent Henderson about this matter "has spanned nine months, encompassing several meetings and letters" – I struggle to reconcile how both statements can be true.
Mr Ferri takes issue with Chief Superintendent Henderson's comment that Mr Ferri's "submission in the Response do not cause me to change the views I expressed in my letter dated 20 May 2022." Mr Ferri argues that it lacks intelligible justification that his five-page letter lacked any persuasive detail which may be relevant in Chief Superintendent Henderson forming his decision.[52] However, in my view, Chief Superintendent Henderson is not deeming the contents of the letter irrelevant – rather, he indicates that he considered the letter but the contents have not persuaded him to change his view. Mr Ferri appears to find that difficult to believe, however for reasons I have already given, I accept Chief Superintendent Henderson's conclusion to be reasonable.
[52] Appellant's submissions in reply, filed 3 January 2023, 2 [7].
The chronology above clearly lists both the number and type of opportunities afforded to Mr Ferri by Chief Superintendent Henderson, to prepare, advocate and advance the relevant arguments. Mr Ferri appeared to concede that he had been afforded "various forms of show cause and invitations to reply" in that period. In light of all that, it is clear to me that QCS has indeed committed a substantial amount of time and resources to work with Mr Ferri over a nine month period. The numerous engagements facilitated demonstrate Chief Superintendent Henderson's careful attention to providing Mr Ferri every fair and reasonable opportunity to be heard.
In my view, Chief Superintendent Henderson has acted fairly and reasonably in meeting consultation obligations under the QCS Conflict of Interest Policy.
Mr Ferri referred to Chief Superintendent Henderson's approach as "dismissive". That was denied by QCS. As I have earlier explained, the fact that Chief Superintendent Henderson changed his mind on a proposed condition - and actively engaged with Mr Ferri over an extensive period of consultation, comprising many meetings and exchanges of correspondence – persuades me that he was not at all "dismissive".
Mr Ferri is also critical of what he perceived to be Chief Superintendent Henderson's inability "to craft a mutually beneficial outcome", going on to cite the Leadership Competencies of an Executive. I commend the Respondent's restraint in its concise submission in reply to that particular contention.
Once again, I cite Industrial Commissioner Pidgeon's earlier observation with approval:
[35] …The final decision rests with the Chief Superintendent and to that extent, following consultation, the decision is the Chief Superintendent's, and not a matter for negotiation. If Mr Ferri is aggrieved by the decision on his new COI Declaration, he will be able to appeal that decision once he receives it.[53]
[53]Ferri v State of Queensland (Queensland Corrective Services [2022] QIRC 239, [35].
In a related sense, Mr Ferri further points out that he has "accepted six out of nine conditions in total, demonstrating my willingness to conference and accept the process to settle this matter." However, the obligation to manage a conflict of interest is not about simply splitting the difference. If that were the case, one might imagine any number of ambits proposed and countered.
It appears to me that Mr Ferri has accepted "six out of nine conditions" because they did not intrude upon his ambition to provide legal advice or representation to (current or former) QCS employees in matters against QCS or the State of Queensland / Crown. Mr Ferri's motivation is made clear in his correspondence dated 6 September 2022, in which he describes his other employment with Sibley Lawyers as "While I practice employment law, I've also assisted the firm with business development activity. Representing QCS employees is a significant part of my workload…" Mr Ferri goes on to relay his discussion with the Queensland Law Society Ethics Centre in these terms "A foreseeable occurrence we discussed was QCS workplace conversations with Sibley clients. It was discussed that while many of these interactions may be innocuous and simply 'locker room chat', this is clearly distinct to providing formal legal advice on a fee-for-service basis. It would be foolish of me to bill clients while simultaneously on duty with QCS. Furthermore, I ensure client conversations remain privileged and I do not participate in workplace gossip."
Thus Mr Ferri made clear that he essentially aspired to drum up business for Sibley Lawyers amongst his QCS colleagues, through workplace conversations. This moves into the space of a 'Private Benefit from Dual Role' – an earlier argument advanced by Mr Ferri and rejected in Chief Superintendent Henderson's correspondence dated 19 July 2022. That position was also considered by Industrial Commissioner Pidgeon, where she astutely observed:
[36] Mr Ferri's reply submissions state that it has been long established that QCS employees can hold dual roles. Mr Ferri makes reference to Together Queensland Industrial Union of Employees (TQ) and says that the delegates of that Union are also QCS employees and that the Agreement encourages union involvement. Mr Ferri points out that the union website states that members may receive the assistance of an Industrial Officer during investigations, administrative action, performance management, disciplinary action or WorkCover processes and that this may include representation in industrial tribunals and courts. Mr Ferri says that the union example provides a precedent of furthering private interests being successfully managed in the workplace. Mr Ferri also says that this was addressed in his original COI Declaration.
[37] The Respondent says that TQ delegates have an obligation to manage any conflict of interest that may present in them performing both roles. The Respondent also points out that the work that Together Queensland delegates perform is ancillary to their work with QCS, is not paid secondary employment and is supported under the Agreement and the Correctional Employees Award – State 2015.
[38] The submissions regarding TQ delegates and the nature of their role as union delegates is of no assistance to Mr Ferri in this matter which specifically relates to his secondary employment and the need to consider whether aspects of his secondary employment give rise to a conflict of interest with his employment as a CCO with QCS.[54]
[54] Ibid [48] – [50].
However, Chief Superintendent Henderson's approach[55] was to simply refer to Mr Ferri's earlier assertion that he "assist clients from a variety of workplaces and industries, both public and private who seek the services of Sibley Lawyers". In doing so, Chief Superintendent Henderson accepted Mr Ferri's representations and noted that "This suggests that your opportunities for work with Sibley Lawyers is broad in scope." Out of an abundance of fairness and reasonableness, Chief Superintendent Henderson also emphasised to Mr Ferri:
Just to be clear, My Decision does not restrain you from performing any secondary employment with Sibley Lawyers. My Decision is to approve your secondary employment with Sibley Lawyers subject to the conditions outlined in paragraphs 1 to 9 above.[56]
[55] Correspondence dated 19 July 2022.
[56] Appellant's submissions filed 13 December 2022, Attachment 3, 6.
Mr Ferri suggested that removing the three disputed conditions "would be a far more balanced approach as the underlying conflict is only perceived…" I concur with the Respondent's submission that "…the obligations on QCS to manage a conflict of interest exists regardless of whether it is perceived, potential or real." While Mr Ferri has bridled at the comment, I believe Chief Superintendent Henderson was correct to point out that "My decision has been focused solely on whether aspects of your secondary employment creates an actual, potential or perceived conflict of interest." There is nothing unfair or unreasonable about that.
By the time of Mr Ferri's correspondence of 6 September 2022, his arguments against Chief Superintendent Henderson's imposition of the three disputed conditions had been distilled to:
·employment history with QCS;
·role as a junior solicitor;
·obligations as a solicitor; and
·privy to confidential and sensitive information.
In Chief Superintendent Henderson's reply dated 3 November 2022, he made unequivocal comment on Mr Ferri's "Employment history with QCS" and "Obligations as a solicitor":
You should not infer from my decision that QCS considers that you have not conducted your prior employment with QCS with integrity or that you have not complied with your obligations as a solicitor – that is not the case.[57]
[57] Appeal Notice filed 24 November 2022, 5.
The remaining arguments had previously been ventilated by Mr Ferri in his earlier correspondence to Chief Superintendent Henderson dated 16 July 2022 and also responded to by Chief Superintendent Henderson in return correspondence dated 19 July 2022.
Industrial Commissioner Pidgeon had considered similar submissions made by the parties on the matter of "Role as a junior solicitor" in the Commission's earlier decision of Ferri v State of Queensland (Queensland Corrective Services).[58] As Pidgeon IC explained (emphasis added):
[58] [2022] QIRC 239.
[38] In his initial COI Declaration, Mr Ferri disclosed that 'Sibley Lawyers offers Employment Law services which I may assist with. The firm does represent essential service personnel including Ambulance, Police and Correctional Officers'. The Respondent says that the only information it had about Mr Ferri's secondary employment was what he included in the COI Declaration and that he had described the work he was to perform with Sibley Lawyers as:
Ordinary duties of a Junior Solicitor at a Criminal Law Firm. It is proposed I be engaged in a casual capacity. Tasks may include:
- Drafting court documents;
- Managing files;
- Meeting with clients;
- Making court appearances;
- Assisting in the general operations of running a business.
[39] The Respondent says that it may have been the case that Mr Ferri was not aware of any conflict of interest at the time he commenced his secondary employment with Sibley Lawyers and points out that the original COI Declaration did not expressly state that Mr Ferri would be representing employees of QCS in disciplinary processes. However, the Respondent says that after he commenced employment and realised that the nature of the work included representing QCS employees in disciplinary processes and attending interviews with QCS employees as part of workplace investigations, it was incumbent upon him to submit a further declaration and that Mr Ferri did not do this until after he received the interim measure.
[40] The letter from Supt Stacey stated:
Ethical Standards Group (ESG) had become aware that, while employed in your role as a CCO, you also currently provide legal representation to other QCS employees, including your colleagues at BCC, in workplace investigations being conducted by ESG.
[41] Mr Ferri's argument…is that he had said that he would be working for Sibley Lawyers who represent correctional centre employees and therefore it was open to the decision maker to conclude that Mr Ferri would be involved in representing QCS employees in employment related matters such as disciplinary processes and ethical standards unit investigations. I note that Mr Ferri's list of duties declared in the COI Declaration does not include attending ESG investigation interviews with QCS employees or preparing their show cause responses, both issues raised by the QCS as being of concern.
[42] The Respondent says that while it accepts that it was aware that there was a prospect that Mr Ferri's employment with Sibley Lawyers may involve Mr Ferri performing some work for QCS employees, the full extent and nature of the work was not known at the time of the original COI Declaration. The Respondent says that it is now evident that Mr Ferri does provide representation to employees of QCS in interviews as part of workplace investigations and disciplinary processes and that this includes drafting responses to show cause notices for employees. The Respondent says that it is aware of at least eight responses to show cause notices that Mr Ferri has authored in his employment with Sibley Lawyers.
[43] The Respondent says that one of the QCS employees Mr Ferri has represented was an employee of BCC and that this was the correctional centre at which Mr Ferri was also employed at the time. The Respondent says that in that case, Mr Ferri prepared a response to a first show cause notice dated 14 September 2021 in which submissions were made seeking to discredit the evidence of two of Mr Ferri's fellow CCOs at BCC.[59]
[44] The Respondent attaches a spreadsheet evidencing what it says is a large number of emails sent to QCS on behalf of QCS employees by Mr Ferri and the attendance of Mr Ferri had a number of ESG interviews.[60] In response, Mr Ferri says that he has sent 50 emails over 53 weeks in his capacity as a Junior Solicitor. He says that it is difficult to reconcile roughly one email a week to ESG as representing a 'large number'. I have considered these submissions and note that depending on the circumstances, the sending of far fewer emails than this could result in a concern regarding a potential conflict of interest.
[59] Redacted version of this document is Attachment 5 to Respondent's submissions filed 27 April 2022.
[60] Respondent's submissions filed 27 April 2022, Attachment 6.
While I have separately considered such matters earlier in this Decision, I concur with Industrial Commissioner Pidgeon's reasoning here.
Within his reply submissions, Mr Ferri notes that s 6(d) of the Public Sector Ethics Act 1994 (Qld) is frequently quoted by Chief Superintendent Henderson.[61] That provision provides that:
In recognition that public office involves a public trust, public service agencies, public sector entities and public officials seek to promote public confident in the integrity of the public sector and-
…
(d)acknowledge the primacy of the public interest and undertake that any conflict of interest issue will be resolved or appropriately managed in favour of the public interest.
[61] Appellant's submissions in reply, filed 3 January 2023, 1 [2]-[4].
Mr Ferri contends that Chief Superintendent Henderson's refusal to genuinely consider possible management strategies indicates he holds the belief his interest and the public interest are one and the same.[62] I do not accept that Chief Superintendent Henderson has relied upon his personal interest. It is clear that allowing an identified conflict of interest to continue without any imposition of reasonable conditions is against the public interest. Chief Superintendent Henderson identified a conflict and associated risk then determined to resolve that conflict by placing limitations of which I have already found to be reasonable.
[62] Ibid [3].
While the parties had also made similar submissions regarding "Privy to confidential and sensitive information" to Industrial Commissioner Pidgeon, in the Commission's earlier decision of Ferri[63] she determined at that time (emphasis added):
[39] The Respondent also notes that in the day-to-day performance of Mr Ferri's work as a CCO, he is privy to confidential and sensitive information that can be used by him in his employment with Sibley Lawyers when acting against QCS in employment matters. As a CCO, Mr Ferri has access to the QCS Integrated Offender Management System (IOMS) and other systems which hold confidential information about events, incidents, employees and prisoners which can be used by Mr Ferri for his client's benefit. Mr Ferri says that he has raised this matter in his original COI Declaration and that it has been previously identified and managed. Mr Ferri further says that there would be no benefit in his misuse of the QCS IT systems as briefs containing relevant information are provided by QCS to Sibley Lawyers. I note that this exchange of submissions is not particularly relevant to this current appeal in circumstances where at this stage there is no decision on the new COI Declaration relying on access to information systems as a reason to not approve the secondary employment.
[63]Ferri v State of Queensland (Queensland Corrective Services [2022] QIRC 239.
With respect to the matter of "Privy to confidential and sensitive information", the respective positions are summarised at [52] above.
Fundamentally, Mr Ferri conceded that his access to confidential information may be a conflict but argued there to be "minimal risk with established control measures in place." In such circumstances, the fair and reasonable approach is that adopted by the Respondent:
…the fact that there is minimal risk is not to the point. A conflict exists and ought to be resolved in the public interest by placing limitations on the Appellant's secondary employment, by not permitting him to provide legal representation to CCOs who are employed by QCS.[64]
[64] Respondent's submissions filed 20 December 2022, 3 [29] – [31].
What is meant by 'the public interest' was also contested. Mr Ferri opined that restriction on his capacity to advise or represent QCS colleagues in matters against QCS or State of Queensland / Crown was not in the public interest because:
All advocacy I undertake on behalf of QCS clients is to ensure their natural justice protections which is the public interest. By representing clients under disciplinary investigation, I am ensuring there is integrity, impartiality, accountability and transparency to how QCS conducts business. It concerns me you seek to create a workplace with fewer checks and balances, less transparency and a restriction on staff accessing suitable representation.[65]
[65] Appellant's submissions filed 13 December 2022, Attachment 2, 2.
While Chief Superintendent Henderson noted that "…it is consistent with the obligation to disclose any conflicts of interest, to acknowledge the primacy of the public interest, and to ensure that any conflict of interest will be resolved or appropriately managed in the public interest."[66]
[66] Ibid Attachment 3, 4.
In my view, it is clearly in Mr Ferri's private interest to advise or represent his QCS colleagues, in his capacity as a casual lawyer - he would earn income in his other employment with Sibley Lawyers by doing so.
While QCS employees are certainly entitled to obtain advice and representation when workplace issues arise, they may do this through a variety of other avenues – union, industrial advocates, law firms (including Sibley Lawyers, just not Mr Ferri himself) – that do not offend the fundamental obligation to resolve any such conflict in the 'public interest'.
For all those reasons, Chief Superintendent Henderson's decision to impose the three disputed conditions on Mr Ferri's other employment with Sibley Lawyers was fair and reasonable.
Was A/Assistant Commissioner Chen's decision of 23 November 2022 to decline Mr Ferri's requests for a conference under s 7.2 of the Award fair and reasonable?
The Decision
On 23 November 2022, A/Assistant Commissioner Chen decided to decline Mr Ferri's requests for a conference in these terms:
I note that you seek to conference pursuant to section 7.2 of the Correctional Employees Award – State 2015 and state that I have the delegation under section 39.2 of the QCS Employment and Workforce Management Delegation Manual (April 2022) to manage the dispute process on behalf of the Commissioner.
In response to your email, I note:
· Section 7.2 of the Award sets out the grievance procedures for industrial matters other than Award matters. Section 7.2 does not provide for a conference to be arranged. The reference to a conference is contained in section 7.1 of the Award which sets out the dispute resolution process for Award matters.
· Section 39.1 of the Delegation manual pertains to section 7.1(d)(iii) of the Award and it does not include section 7.2 of the Award. I therefore do not consider that I have delegation in relation to section 7.2 of the Award.
Noting the above, I am unable to progress a conference under section 7.2 as you have sought
and it remains a matter for you whether you wish to proceed to the QIRC or escalate the matter
pursuant to section 7.2 of the Award.[67]
[67] Appellant's submissions filed 13 December 2022, Attachment 7.
Chronology
After receiving confirmation of Chief Superintendent Henderson's final decision to impose the three disputed conditions on 3 November 2022, Mr Ferri stated that he took the following steps to further progress the matter:[68]
[68] Appeal Notice filed 24 November 2022, 4.
·18 November 2022 Mr Ferri "emailed Assistant Commissioner Cathy Chee
requesting a conference to discuss the matter. This was done in accordance with the dispute process outlined in Part 9 of the Correctional Employees' Certified Agreement 2021."[69]
[69] Ibid.
·22 November 2022 Assistant Commissioner Chee replied "Declarations for
secondary employment are not a matter covered by the Agreement. I therefore do not consider you can invoke clause 9 of the Agreement."[70]
[70] Ibid.
·22 November 2022 Mr Ferri then responded to Assistant Commissioner
Chee by "requesting a conference in accordance with Section 7.2 of the Correctional Employees' Award – State 2015."[71]
·23 November 2022 Assistant Commissioner Chee advised Mr Ferri that "I
am unable to progress a conference under section 7.2 as you have sought and it remains a matter for you whether you wish to proceed to the QIRC or escalate the matter pursuant to section 7.2 of the Award."[72]
[71] Ibid.
[72] Ibid.
Appellant's submissions
Mr Ferri submitted that A/Assistant Commissioner Chen's decision to decline his conference requests were unfair and unreasonable because:
· …Following the Decision, QCS appears unwilling to engage further. Email responses from Assistant Commissioner Chee demonstrate a resistance to conference and settle this matter. Exhausting all internal grievance processes, I have been left no option but to make a Public Service Appeal, drawing upon Commission resources which could have been avoided.
…
· In an effort to resolve this matter, I followed several dispute resolution mechanisms across relevant industrial frameworks. My notifications of industrial dispute were dismissed by Assistant Commissioner Chee, who is an approved decision maker as per the QCS Employment and Workforce Management Delegation Manual. Resistance to engage is a disappointing departure from objectives as stated in Section 7.2(a) of the Correctional Employees Award – State 2015.[73]
[73] Appeal Notice filed 24 November 2022, 4.
Consideration
In his email to Assistant Commissioner Chen dated 18 November 2022, Mr Ferri asserted that Chief Superintendent Henderson's decision to impose the three disputed conditions on his other employment with Sibley Lawyers was "unreasonable" and was "without balanced consideration of the circumstances."
Mr Ferri stated that his complaint was now "escalated for (Assistant Commissioner Chen's) consideration following months of consultation with Chief Superintendent Henderson."
While any opportunity to see Mr Ferri's matter "quickly resolved" had long proved elusive, the outcome he sought was for Assistant Commissioner Chen to intervene and withdraw the three disputed conditions that had been imposed through Chief Superintendent Henderson's decision.
Mr Ferri sought a conference with Assistant Commissioner Chen through the mechanism of cl 9 of the Queensland Corrective Services - Correctional Employees' Certified Agreement 2021.
Assistant Commissioner Chen explained to Mr Ferri[74] that a conference can be organised under that provision[75] "In the event of any disagreement between the parties as to the interpretation or implementation of this Agreement."
[74] In email dated 22 November 2022.
[75] Queensland Corrective Services - Correctional Employees' Certified Agreement 2021 cl 9.1(3)
Assistant Commissioner Chen explained to Mr Ferri that declarations for secondary employment are not matters covered by the Agreement. As such, it was not open for Mr Ferri to obtain a conference about his complaint by invoking cl 9. Assistant Commissioner Chen went on to note though that Mr Ferri had been earlier advised by Chief Superintendent Henderson of his appeal rights to the QIRC.
In Mr Ferri's reply email,[76] he acknowledged his reliance on cl 9 of the Agreement "was misplaced."
[76] Dated 22 November 2022.
In circumstances where Mr Ferri had clearly agreed with Assistant Commissioner Chen's explanation as to why a conference was not available to him under the particular Agreement mechanism that he had sought to invoke, I find that it is not at all unreasonable for her to decline his request.
Having failed to identify the correct industrial instrument provision to deliver the outcome he so sought on the first occasion, Mr Ferri then made a second attempt to secure a conference with Assistant Commissioner Chen.
In his email to Assistant Commissioner Chen dated 22 November 2022, Mr Ferri then sought to conference pursuant to cl 7.2 of the Correctional Employees Award – State 2015, asserting that she had the delegation under s 39.2 of the QCS Employment and Workforce Management Delegation Manual (April 2022) to manage the dispute process on behalf of the Commissioner.
The following day, Assistant Commissioner Chen again wrote to Mr Ferri explaining that cited section of the Award "sets out the grievance procedures for industrial matters other than Award matters" and "does not provide for a conference to be arranged". Assistant Commissioner Chen went on to note that the "reference to a conference is contained in section 7.1 of the Award which sets out the dispute resolution process for Award matters" and that "Section 39.1 of the Delegation manual pertains to section 7.1(d)(iii) of the Award and does not include section 7.2 of the Award. I therefore do not consider that I have delegation in relation to section 7.2 of the Award."
While Assistant Commissioner Chen's conclusion that she was therefore "unable to progress a conference under section 7.2 as (Mr Ferri) have sought" was no doubt disappointing to him, it was nonetheless appropriate for her to follow the prescribed terms of the grievance procedure.
Out of an abundance of fairness to Mr Ferri, Assistant Commissioner Chen then went on to remind him a second time of his appeal rights to the QIRC "or escalate the matter pursuant to section 7.2 of the Award."
In each of Assistant Commissioner Chen's responses to Mr Ferri, she referenced the relevant provisions of the industrial instrument to clearly explain her reasons why the conference outcome he had sought was not available to him under either of the two mechanisms he had proposed. I have also acknowledged that she then directed Mr Ferri to his available appeal right options on both occasions, notwithstanding he may reasonably have been expected to hold that knowledge, given the nature of Mr Ferri's request.
After a nine month period in which various meetings and exchanges of correspondence occurred between either Chief Superintendent Henderson or Assistant Commissioner Chen and Mr Ferri about conditions imposed on his other employment, it is rather a stretch for him to characterise it as "Resistance to engage".
For those reasons, I find that Assistant Commissioner Chen's decision to not acquiesce to Mr Ferri's persistent requests for a conference was fair and reasonable. It was entirely appropriate that Assistant Commissioner Chen instead follow the prescribed terms of the grievance procedure set out in the Award.
Order
1.The decisions appealed against are confirmed.
[76].
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