Herbert v State of Queensland (Department of Education)
[2021] QIRC 415
•7 December 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Herbert v State of Queensland (Department of Education) [2021] QIRC 415 |
PARTIES: | Herbert, Carmel v State of Queensland (Department of Education) |
CASE NO: | PSA/2021/240 |
PROCEEDING: | Public Service Appeal – appeal against a conversion decision |
DELIVERED ON: | 7 December 2021 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
| ORDER: | Pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal. |
| CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – conversion decision – where appellant requested to be permanently appointed to higher role – where request was considered in accordance with Directive 13/20 Appointing a public service employee to a higher classification level – where jurisdictional objection exists – consideration of 'continuous period', 'role' and 'position' – where appellant is eligible to be reviewed under s 149C of the Public Service Act 2008 (Qld) – where appellant had been seconded to or acting in the higher classification level for less than two years at the time of the review – where s 195(1)(j) of the Public Service Act 2008 (Qld) operates to exclude the appeal – where Commission declines to hear the appeal |
| LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C |
| CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 |
Reasons for Decision
Ms Carmel Herbert ('Ms Herbert') is employed by the State of Queensland (Department of Education) ('the Department') in the substantive position of Deputy Principal at Gumdale State School.
Ms Herbert commenced employment with the Department in her substantive role as a Deputy Principal at Gumdale State School - Primary [DP1] on 8 October 2012. At the time Ms Herbert commenced this appeal, she was acting in the position of Principal at Corinda State School [PR5]. Ms Herbert was appointed to the higher classification position of Principal at Corinda State School [PR5] on 21 January 2021 and ceased performing in the higher classification position on 17 September 2021.
On 15 July 2019, prior to commencing in the position of Principal at Corinda State School [PR5], Ms Herbert was appointed to the higher classification position of Principal at Runcorn State School [PR5].[1] Ms Herbert states that following the cessation of this contract, she was offered the role of Principal at Corinda State School [PR5] and did not return to her substantive position of Deputy Principal at Gumdale State School Primary [DP1] between the higher classification appointments.
[1] Appellant's submissions filed 12 July 2021.
On 10 June 2021, Ms Herbert requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ('PS Act'), to be permanently converted to the higher classification position of Principal.
By letter dated 14 June 2021, the decision maker determined to reject Ms Herbert's request for conversion.
On 2 July 2021, Ms Herbert filed an appeal in the Industrial Registry and relies on the following grounds in support of her appeal:
5. I have been in same role at the higher classification level for a continuous period of at least one year. This has been a period of unbroken engagement at the higher classification level in the same role, in the same agency. I was contracted on the 15.07.2019 to perform higher duties at the higher classification level Principal Level 5. I am still performing higher duties at this level. My first contract was at Runcorn State School and after 18 months I was informed by Department of Education, Metropolitan Region. Human Resources that I could be eligible to apply to be made permanent. In the last week of the year I was informed the substantive principal had not been successful in the recruitment process for the position she had been acting in and would be returning to Runcorn. I was offered the Principal role at Corinda State School in the last week of the year, at the same higher classification level Principal Level 5. I did not return to my substantive position and the contracts were continuous.
6. In March/April the temporary principal position at Corinda State School was advertised in a state-wide process. After a full merit process including panel interview, I was determined the successful applicant.
7. At the beginning of June, the position at Corinda State School became a substantive vacancy.
8. An application to have my duties at the higher classification level (Principal Level 5), that I had been performing continuously since July 2019, was submitted on 10 June 2021 and was supported by supervising Assistant Regional Director and Acting Regional Director.
9. I note that in Directive 13/20, page 1, point 3.1 it is stated that the directive applies to a public service employee who is assuming the duties and responsibilities of a higher classification level in the public service agency in which the employee is substantively employed. I have been assuming the duties and responsibilities of a higher classification level (Principal Level 5) since July 2019 until present.
10. I note that the role description is exactly the same for all Principal Level 5 positions. I have also been acting in this role in the same region, Metropolitan Region, and therefore have been working under the same managerial reporting line since July 2019.
11. I note that I have not been working in my substantive position for two years but have been working as a Principal Level 5. Further I have been recently (in the last three months) determined the successful applicant in a state-wide merit process for the Corinda State School temporary Principal role which is now a substantive vacancy.
12. I have been acting at a higher classification level continuously for more than one year. My classification level is Principal Level 5 and has been since July 2019. I have been performing the same role as Primary Principal at the same classification level Principal Level 5 for the Department of Education in the Metropolitan Region since July 2019. The roles and responsibilities at the higher classification level that I have undertaken for the past two years have been the same. I am eligible for appointment to this level with regard to the merit principle. I am now in a substantive vacancy and was successful in a full merit process for this temporary position in the last three months.[2]
[2] Appellant's written submissions filed 12 July 2021.
The appeal is made pursuant to s 197 of the PS Act which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission ('the Commission').
Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears..[4] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
The Department raises a jurisdictional objection to the appeal on the basis that:
(a) at the time Ms Herbert made the request for the conversion, she had been seconded to or acting at a higher classification level for less than the prescribed two years; and
(b) the Commission does not have jurisdiction to hear the appeal by operation of ss 194(1)(e)(iii) and/or 195(1)(j) of the PS Act.
For the reasons contained herein, the Commission declines to hear the appeal.
The decision
The reasons for the decision is set out in the decision letter in the following terms:
I have considered your request for appointment to the higher classification role. The application of s.149C of the PS Act and the Directive is limited to eligible employees only. This correspondence is to advise you of my assessment of your eligibility to request an appointment to the higher classification level role.
| Substantive role Classification level: | DP1 |
| Role: | Deputy Principal (Primary) |
| School: | Gumdale State School |
| Region: | Metropolitan |
| Status: | Permanent Full Time (1.00 FTE) |
| Award: | Teaching in State Education Award – State 2016 |
| Certified Agreement: | Department of Education State School Teachers’ Certified Agreement 2019 |
| Commencement date: | 8 October 2012 |
| Higher classification level role Classification level: | PR5 |
| Role: | Principal (Primary) |
| School: | Corinda State School |
| Region: | Metropolitan |
| Status: | Full Time (1.0 FTE) |
| Award: | Teaching in State Education Award – State 2016 |
| Certified Agreement: | Department of Education State School Teachers’ Certified Agreement 2019 |
| Commencement date: | 21 January 2021 |
| Current end date: | 17 September 2021 |
Eligibility Assessment
In accordance with the PS Act and the Directive, to be eligible to request appointment to the higher classification level, an employee must be:
·seconded to, or acting at, a higher classification level in the department the employee holds an appointment or is employed; and
·seconded to, or acting at, the higher classification level for a continuous period of at least one year; and
·eligible for appointment at the higher classification level having regard to the merit principle
I have determined that you are not eligible to request appointment to the higher classification level under s.149C of the PS Act and the Directive.
[citation omitted]Reasons for my Eligibility Assessment
The PS Act and the Directive requires that an employee be seconded to, or acting at, the higher classification level for a continuous period of at least one year.
The meaning of continuous period for the purposes of the Directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.
At the time of making this decision you have not been acting in the higher classification level role (referred to above) for a continuous period of at least one year. Accordingly, you are not eligible to request appointment to the higher classification level under s.149C of the PS Act and the Directive.
I have had regard to the Human Rights Act 2019 (the HR Act) and other laws, particularly the right to work as embodied in Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). I consider that, in observing and applying the matters that must be taken into consideration under the Directive and s.149C of the PS Act, I am respecting and acting compatibly with this right and others prescribed in the HR Act, and I have done so in making this decision, as required under s.58(1) of the HR Act.
Relevant legislation and Directive
Section 149C of the PS Act relevantly provides:
149C Appointing public service employee acting in position at higher classification level
(1)This section applies in relation to a public service employee if the employee—
(a)is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
(b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
(c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
…
(3)The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after—
(a)the end of 1 year of being seconded to or acting at the higher classification level; and
(b)each 1-year period after the end of the period mentioned in paragraph (a).
(4)The department's chief executive must decide the request within the required period.
(4A)In making the decision, the department's chief executive must have regard to—
(a)the genuine operational requirements of the department; and
(b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
(5) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
(a)reasons for the decision; and
(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.
…
(7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section
(8)In this section –
continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).
required period, for making a decision under subsection (4), means—
(a)the period stated in an industrial instrument within which the decision must be made; or
(b)if paragraph (a) does not apply—28 days after the request is made.
Section 194 of the PS Act identifies the decisions which appeals may be made as follows:
194 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions –
…
(e)a decision (each a conversion decision) –
…
(iii)under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
…
Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level ('Directive 13/20') came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act established employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level as follows:
6. Decision making
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:
·the genuine operational requirements of the department, and
·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 continuing 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 decision occurring by operation of s 149(C) of the PS Act.
Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide to the employee a statement of reasons, as follows:
7. Statement of reasons
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
Clause 11 of Directive 13/20 defines the following terms:
· Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.
· Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.
Consideration
Prior to determining whether the decision is fair or reasonable, I must be satisfied that the decision is an appealable decision, and/or if Ms Herbert is eligible to seek conversion of the higher classification position pursuant to s 149C of the PS Act.
The Department contends that Ms Herbert does not have the right to appeal the decision to reject her request for conversion, on the basis that Ms Herbert had not been acting in the higher classification position for a continuous period of at least one year.
The Department resists the appeal on, inter alia, the following basis:
(a) the decision is not an appealable decision under s 194(1)(e)(iii) of the PS Act because Ms Herbert had not been acting at the higher classification level for a continuous period of at least 2 years; and
(b) Ms Herbert is ineligible to make a conversion request under s 149C of the PS Act as she has not acted in the same role for a continuous period of at least one year.
Ms Herbert contends, in summary, as follows:
(a) that she has been in the same role at the higher classification level for a continuous period of at least one year;
(b) her classification level is Principal – Primary Level 5 and has been since July 2019; and
(c) she has been performing the same role as a Principal – Primary at the same classification level Principal, level 5, for the Department in the metropolitan region since July 2019.
As noted above, the phrase 'continuous period' is defined in cl 11 of Directive 13/20 as a 'period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.'
The position that is the subject of Ms Herbert's appointment request is that of Principal - Primary classification level PR5, at Corinda State School.
The Department clarifies that it does not use position numbers for school-based positions.
Ms Herbert commenced in that position on 21 January 2021.
An extract of Ms Herbert's service history relevantly states, inter alia, the following:
From To Title Organisational Unit Nbr Reason Status 18/09/2021 Deputy Principal (Primary Gumdale State School [1608] 1 Return Perm Position Permanent 21/01/2021 17/09/2021 Principal (Primary) Corinda State School [1025] 2 Relieve-Above Level Performing Duties 12/12/2020 20/01/2021 Deputy Principal (Primary) Gumdale State School [1608] 1 Return Perm Position Permanent 15/07/2019 11/12/2020 Principal (Primary) Runcorn State School [0968] 2 Relieve-Above Level Performing Duties 01/07/2019 14/07/2021 Deputy Principal (Primary) Gumdale State School [1608] 1 Return Perm Position Permanent
The Department argues that the Principal - Primary role/position at Corinda State School is distinct from the Principal – Primary role/position at Runcorn State School.
Section 149C(1)(a) of the PS Act provides that the section applies in relation to a public service employee who is seconded to or is acting in a higher classification level in the department in which the employee holds an appointment or is employed.
Ms Herbert satisfies s 149C(1)(a) of the PS Act as she has been acting up in the higher classification within the Department in the role of Principal – Primary.
Section 149C(1)(b) of the PS Act further states that the section applies to a public service employee if the employee has been seconded to or acting up at the higher classification level for a continuous period of one year.
The decision concluded that Ms Herbert did not satisfy s 149C(1)(b) of the PS Act as she had been in the position for a period of less than one year. However, the decision only considered the length of time Ms Herbert had held the position of Principal – Primary at Corinda State School and had not considered Ms Herbert's length of service in the position of Principal – Primary at Runcorn State School. Each of these positions perform the role of Principal – Primary.
As noted above, continuous period is defined in cl 11 of Directive 13/20. As has been noted in previous decisions of this Commission, the definition for 'continuous service' found in Directive 13/20 refers to length of time in 'a role' rather than in 'a position'. Section 149C of the PS Act refers to 'the position' rather than 'a role'.
Ms Herbert was employed in the role of Principal – Primary for a period of at least one year, although in different positions. For these reasons, I consider Ms Herbert was eligible to be reviewed, as she is a person who had been acting at a higher classification within the Department for a continuous period of at least one year.
However, the Department further contends that the Commission does not have jurisdiction to hear the appeal by operation of ss 194(1)(e)(iii) and/or 195(1)(j) of the PS Act. Relevantly, s 195(1)(j) of the PS Act provides that, a person cannot appeal against a decision under s 149C not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for less than two years.
Ms Herbert's service history discloses that she commenced acting up in the higher classification role on 14 July 2019. Ms Herbert requested the review on 10 June 2021 and a decision was made on 14 June 2021. Accordingly, Ms Herbert had been continuously employed in the higher classification role for a period of less than two years at the time she made the request. Pursuant to s 195(1)(j) of the PS Act, Ms Herbert is not entitled to appeal the decision.
Conclusion
For the reasons referred to above, the Commission does not have jurisdiction to hear the appeal as Ms Herbert is not permitted to appeal the decision by operation of s 195(1)(j) of the PS Act.
The Commission notes, as commentary only, that had Ms Herbert made the request following 14 July 2021, she would have been eligible to make the request, and it would have been incumbent upon the Department to determine Ms Herbert's request in accordance with s 149C of the PS Act and Directive 13/20. Further, the Department's comments at paragraph [26] of its submissions[6] are noted and the Commission considers that such comments may be relevant to any future request made by Ms Herbert pursuant to s 149C of the PS Act.
[6] Filed on 19 July 2021.
Order
Pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.
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