Lundie v State of Queensland (Queensland Health)
[2025] QIRC 11
•20 January 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Lundie v State of Queensland (Queensland Health) [2025] QIRC 011 |
PARTIES: | Lundie, Benjamin v State of Queensland (Queensland Health) |
CASE NO.: | PSA/2024/27 |
PROCEEDING: | Public Service Appeal – Promotion decision |
DELIVERED ON: | 20 January 2025 |
MEMBER: | McLennan IC |
| HEARD AT: | On the papers |
| ORDER: | The appeal is dismissed for want of jurisdiction. |
| CATCHWORDS: | PUBLIC SECTOR – CLASSIFICATION, PROMOTION OR TRANSFER – public sector appeal – appeal against a promotion decision – where the appellant unsuccessfully applied for a position – where the promotional position is a non-appealable appointment – applicability to Health Practitioners Stream – Human Rights Act 2019 – conduct of the Respondent – appeal dismissed |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) s 451, s 562A, s 562B, s 562C Public Sector Act 2022 (Qld) s 9, s 44, s 131, s 132, s 133, s 143, s 222 Directive 04/23: Appeals cl 10, cl 17 Directive 07/23: Recruitment and selection Hospital and Health Service General Employees (Queensland Health) Award – State 2015 Queensland Public Health Sector Certified Agreement (No. 11) 2022 Queensland Public Service Officers and Other Employees Award – State 2015 |
| CASES: | Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
Mr Benjamin Lundie ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Supervising Scientist Molecular Genetics, Pathology Queensland, Queensland Public Health and Scientific Services, Royal Brisbane and Women's Hospital (HP6 classification).
The Appellant applied for the position of Principal Chief Scientist Genomics, Pathology Queensland (HP7 classification). Though he was shortlisted for interview, the Appellant was unsuccessful in obtaining the promotional position.
By appeal notice filed on 20 February 2024, the Appellant appeals the promotion decision of the Respondent, pursuant to ch 3 of the Public Sector Act 2022 (Qld) ('the PS Act').
Appeal principles
The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the associated decision making process.
[1] Industrial Relations Act 2016 (Qld) s 562B(2).
[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
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 promotion decision of the Respondent was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
[4] Industrial Relations Act 2016 (Qld) s 562B(3).
What decisions can the Industrial Commissioner make?
In deciding this type of appeal, s 562C(1)(a)-(b) of the IR Act provides that the Industrial Commissioner may:
·confirm the decision appealed against; or
·set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate.
Relevant legislative provisions and directives
Section 562C(2) of the IR Act provides (emphasis added):
In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.
Section 131(1)(e) of the PS Act relevantly provides that a promotion decision may be appealed against:
131 Decisions against which appeals may be made
(1)An appeal may be made against the following decisions—
…
(e)a promotion decision;
…
Section 133(e) of the PS Act describes who may appeal against a particular decision (emphasis added):
133 Who may appeal
(e)for a promotion decision – a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive.
However, s 132(1)(l) of the PS Act provides that a person cannot appeal against a decision about "a non-appealable appointment." Further, s 132(5) of the PS Act defines a "non-appealable appointment" to mean (emphasis added):
… an appointment or employment –
(a)for which the commissioner is satisfied the principles mentioned in section 44 are sufficiently protected by ways other than an appeal under this part; and
(b)that the commissioner has declared by gazette notice, or a directive, to be an appointment or employment against which an appeal may not be made.
Section 143 of the PS Act states that the "commissioner must make a directive about appeals by public sector employees". The directive (emphasis added):
(a) must make provision for –
(i) the decisions, if any, against which an appeal may be made; and
(ii)the persons who are entitled to appeal against a decision mentioned in section 131(1); and
(iii)the directions, if any, the IRC may give under the Industrial Relations Act 2016, section
562C(1)(b); and
(b) may, for section 132(5), definition non-appealable appointment, declare an appointment or employment to be an appointment or employment against which an appeal may not be made.
Directive 04/23: Appeals ('Appeals Directive') fulfils the requirement that the commissioner must make such directive under s 143 of the PS Act. The particular significance of the Appeals Directive to this Decision is explained below.
Sections 42-46 of the PS Act set out the relevant provisions for recruitment and selection. Section 44(3) of the PS Act expressly states:
44 Principles underpinning recruitment and selection
…
(3)The principles are –
(a)recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and
(b)recruitment and selection processes must be fair and transparent; and
(c)recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.
The Appeals Directive and Directive 07/23: Recruitment and Selection ('Recruitment and Selection Directive') are relevant to the determination of the appeal.
Clause 10.4 of the Appeals Directive provides that "a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive"[5] is only entitled to appeal against a promotion decision if particular conditions are satisfied (emphasis added):
10.4 … a public sector employee is only entitled to appeal a promotional decision:
…
a.where the decision relates to a promotion of a permanent public sector employee that has been published in accordance with section 84(2) of the Act; and
b.where the aggrieved employee submitted an application for the role that is the subject of the promotion decision; and
c.if the aggrieved employee's application for the role that is the subject of the promotion decision, was received by the deadline for the receipt of applications, or in the case of continuous applicant pools, the application was received prior to the initial date that applications were distributed to the selection panel; and
d.the aggrieved employee has sought post-selection feedback in accordance with the relevant provisions of the directive relating to recruitment and selection; and
e.in the case of a promotion decision resulting from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved employee must have been eligible to apply.
[5] Directive 04/23: Appeals cl 10.3.
There is no dispute between the parties that the Appellant meets the above criteria, set out at cl 10.4 of the Appeals Directive.
However, s 132(1)(l) of the PS Act provides that a person cannot appeal against a decision about "a non-appealable appointment." Clause 10.5(a) of the Appeals Directive further states that "a non-appealable appointment" decision cannot be appealed as a promotion decision under s 132 of the PS Act. The Appeals Directive defines "non-appealable appointments" at cl 17, as follows (emphasis added):
17. Non-appealable appointments
17.1 In consideration of the definition of 'non-appealable appointment' provided for in section 132(5) of the Act, it is declared that an appeal may not be made against the following appointments or employment:
a. an appointment or employment that is not a promotion
b. to a role remunerated in excess of:
i. the maximum salary applicable to the AO8 classification level within the relevant entity (or the full-time equivalent for part-time roles), or
ii. in cases where an entity does not have a remuneration scale that includes an AO8 classification level, the maximum salary applicable to the AO8 classification level provided for in the Queensland Public Service Officers and Other Employees Award- State 2015, or the core State Government Entities certified agreement, whichever is the higher rate (or the full time equivalent for part time roles).
c. to a role to which a person is directly appointed to or employed in accordance with the directive relating to recruitment and selection, or
d. to a role which is entry level as defined in the directive relating to recruitment and selection.
Submissions
The appeal was filed on 20 February 2024.
The parties then filed submissions, further to the Directions Order issued on 21 February 2024.
The Appellant's submissions were filed on 28 February 2024.
Subsequently, the Respondent's submissions were filed 6 March 2024. In those submissions, the Department asserted the Commission had no jurisdiction to hear this appeal on the grounds it was a "non-appealable appointment".
The Appellant responded to that jurisdictional objection in submissions filed on 11 March 2024.
Neither party sought leave to make oral submissions or any further written submissions, so the matter was decided on the papers pursuant to s 451(1) of the IR Act.
Where a jurisdictional objection is raised, that must be first determined.
Jurisdictional objection
The Respondent submitted that the Commission had no jurisdiction to hear this appeal because:
Non-appealable appointment
·Section 132(1)(l) of the PS Act states a person cannot appeal against a non-appealable appointment.[6]
[6] Respondent's submissions filed 6 March 2024, [4].
·Clause 17.1(b)(1) of the Appeals Directive states:[7]
[7] Ibid [5].
In consideration of the definition of 'non-appealable appointment' provided for in section 132(5) of the Act, it is declared that an appeal may not be made against the following appointments or employment:
…
b. to a role remunerated in excess of:
i. the maximum salary applicable to the AO8 classification level within the relevant entity (or the full-time equivalent for part-time roles)
…
·"The Queensland Public Health Sector Certified Agreement (No. 11) 2022 incorporates both the administration stream wage rates for employees covered by the Hospital and Health Service General Employees (Queensland Health) Award – State 2015, and the Queensland Public Service Officers and Other Employees Award – State 2015.
The classification level AO8 is currently remunerated on a scale of between $146,510 - $155,025 for Hospital and Health Service general employees … The classification level AO8 is currently remunerated on a scale of between $143,418 - $151,657 for Queensland Public Service officers and other employees …
The Appellant has lodged a promotion decision appeal against a role that is incorporated within the Health Practitioners and Dental officers (Queensland Health) Certified Agreement (No. 4) 2022 wage rates and is classified at the level of HP7. A HP7 role is currently remunerated on a scale between $178,659 - $191,461 …
Because the promotion decision relates to a position that is remunerated in excess of the maximum salary applicable to the AO8 classification level, the Respondent submits that the provisions at clause 17.1 of the Directive prevents the Queensland Industrial Relations Commission from hearing the appeal."[8]
[8] Respondent's submissions filed 6 March 2024, [6]-[9].
·The Respondent attached the role description for the promotional position subject of this appeal, that showed the salary range to be "$178,659 - $191,461 per annum plus superannuation and Government Benefits."[9]
·The Respondent attached the wages table headed "EB11 – Administration stream, Hospital and Health Service general employees" to its submissions. That supported the Respondent's assertion that the classification level AO8 was remunerated in the range of $146,510 - $155,025 for Hospital and Health Service general employees, in the relevant period (when the Appellant filed this appeal).[10]
·The Respondent attached the wages table headed "EB11 – Administration stream, Queensland Public Service officers and other employees" to its submissions. That supported the Respondent's assertion that the classification level AO8 was remunerated in the range of between $143,418 - $151,657 for Queensland Public Service officers and other employees, in the relevant period.[11]
·The Respondent attached the wages table headed "HPDO4 – Health Practitioners stream" to its submissions. That supported the Respondent's assertion that the classification level HP7 role (subject of this appeal) was remunerated in the range of $178,659 - $191,461, in the relevant period."[12]
[9] Ibid Attachment 1.
[10] Ibid Attachment 2.
[11] Ibid Attachment 3.
[12] Ibid Attachment 4.
The Appellant made the following reply to the jurisdictional objection:
Historical Context and Health Practitioners Stream
·"The restriction on appeals based on remuneration thresholds, as found in Directive 07/23, traces back to Directive 06/03 from 2 June 2003. This predates the establishment of the Health Practitioners stream, suggesting that the directives might not fully account for the distinct nature and remuneration structures within this stream. The applicability of an administrative remuneration threshold to a distinctly separate stream raises significant concerns about the fairness and relevance of such a criterion in determining the right to appeal."[13]
[13] Appellant's reply submissions filed 11 March 2024.
Direct Contradiction in Advice
·"The position taken by Queensland Health in their response directly contradicts advice previously given to me by Senior HR Advisor Ms Sullivan who submitted this response. Following a query regarding the remuneration applicability between streams, Ms Sullivan's response on 19th February 2024 (Attachment 1) affirmed that the role being appealed "is remunerated at a level no greater than the equivalent of an AO8 salary." This affirmation directly influenced my decision to proceed with the appeal, under the belief that it was indeed permissible within the defined parameters."[14]
[14] Ibid.
Right to a Fair Hearing
·"Beyond procedural and jurisdictional arguments, there lies a fundamental issue of fairness and human rights. The attempt to dismiss my appeal on remuneration grounds undermines my right to a fair hearing as enshrined in the Human Rights Act 2019 (Qld):
This right affirms the right of all individuals to procedural fairness when coming before a court or tribunal. It applies to both criminal and civil proceedings, and guarantees that such matters must be heard and decided by a competent, impartial and independent court or tribunal."
With reference to the "Guide: Nature and scope of the human rights protected in the Human Rights Act 2019", the Appellant further noted that the term "civil proceeding" included matters of an "administrative character" dealt with in proceedings before "tribunals and administrative decision-makers."[15]
The Appellant asserted therefore that the Human Rights Act 2019 "unequivocally affirms that every individual is guaranteed procedural fairness in all proceedings, both criminal and civil, inclusive of appeals such as the one presented. Rejecting this appeal purely on the basis of remuneration contravenes not only the foundational principles of natural justice but also diverges from the Act's mandate for unbiased, autonomous examination of actions. The Act's stipulation of a right to a fair hearing prevails over any specific criteria for appeal eligibility detailed in the directive."[16]
Summary
·The Appellant concluded that the Commission ought to "recognise the unique circumstances of this case, including the historical context of the appeal restrictions, the conflicting advice provided by Queensland Health, and the overarching requirement to uphold my human rights to procedural fairness. Disregarding the appeal on a technicality that bears little relevance to the substantive issues at hand would set a concerning precedent for equity, diversity and inclusion within the public sector…I strongly believe that this Commission not only has the jurisdiction to hear this appeal but also a moral and legal imperative to do so."[17]
[15] Ibid.
[16] Ibid.
[17] Ibid.
Consideration of jurisdictional objection
Having carefully considered the parties' submissions, I have decided that the Commission has no jurisdiction to hear the appeal.
My reasons follow.
The promotional position subject of this appeal is a "non-appealable appointment"
The making of the Appeals Directive is authorised under ss 143 and 222 of the PS Act. The PS Act provides that the commissioner "must make a directive about appeals" and that the directive "must make provision for" what decisions can be appealed and who can appeal them – and "may" declare an appointment to be non-appealable, so defined.[18]
[18] Public Sector Act 2022 (Qld) s 143.
As authorised then by s 143(2)(b) of the PS Act, and following from s 132(5)(b), the Appeals Directive does prescribe that "an appeal may not be made" against a non-appealable appointment decision. Clause 17.1 of the Appeals Directive details four separate circumstances that constitute a "non-appealable appointment", including that relied upon the Respondent in this case – where the promotion decision pertains to appointment to a role "remunerated in excess of: the maximum salary applicable to the AO8 classification level within the relevant entity ..."
The Respondent has submitted evidence of the wages table extracts and the role description for the promotional position. The Appellant does not dispute that the promotional position remuneration ($178,659 - $191,461 per annum) is more than the maximum salary applicable to the AO8 classification level within the relevant entity. (Section 9 of the PS Act defines 'entity' to be a 'department', in this case Queensland Health).
It follows then, that cl 17.1(b)(i) of the Appeals Directive expressly prevents the Appellant from appealing against the promotional decision. On that basis, I will dismiss the appeal for want of jurisdiction.
I also draw the parties' attention to s 562A(2) of the IR Act. As the circumstances of this case clearly fall under the definition of a non-appealable appointment, I am not satisfied that the appellant has an arguable case on the basis of written submissions.
562A Commission may decide not to hear particular public service appeals
…(2)The commission may decide it will only hear an appeal against a promotion decision under the Public Sector Act 2022 if the commission is satisfied, by oral or written submissions, that the appellant has an arguable case for the appeal.
…
Consideration of other arguments raised by the Appellant
1.Historical Context and Health Practitioners Stream
With respect to matters of "Historical Context and Health Practitioners Stream", the Appellant submitted that as the "restriction on appeals based on remuneration thresholds … predates the establishment of the Health Practitioners stream", "the directives might not fully account for the distinct nature and remuneration structures within this stream" and "the applicability of an administrative remuneration threshold to a distinctly separate stream raises significant concerns about the fairness and relevance of such a criterion in determining the right to appeal."
I note that the current Appeals Directive took effect on 1 March 2023, by which time the Health Practitioners stream was in place. The existence of the HP stream was 'known' at the point where the latest iteration of the Appeals Directive was made. It follows then that the HP stream is not 'new information' that could not have been considered in the making of the Appeals Directive.
Further, the Appeals Directive definition of non-appealable appointment expressly envisages the possibility that an entity does not have a remuneration scale that includes an AO8 classification level – and provides for an alternative remuneration threshold comparator in that case. (That is cl 17.1(b)(ii) of the Appeals Directive). I further note that the current version of the Appeals Directive has "expands meaning of non-appealable appointments to public sector".
Therefore, I do not agree that "the applicability of an administrative remuneration threshold to a distinctly separate stream" is problematic, in circumstances where the possibility has been considered and provided for.
2. Human Rights Act 2019 (Qld)
With respect to the Appellant's argument that "the attempt to dismiss my appeal on remuneration grounds undermines my right to a fair hearing as enshrined in the Human Rights Act 2019 (Qld)", I do not agree that means the Appellant has an unfettered right for his appeal to be heard in circumstances where the decision appealed against is a non-appealable appointment.
Under the heading 'Interpretation of directions', the Appeals Directive expressly states that 'The requirements set out in these directions are binding and must be followed." Directives are not mere 'guidance' or 'advice'. The Appeals Directive expressly prohibits appeals against "non-appealable appointments".
I have earlier referenced the relevant provisions contained in the PS Act, IR Act and Appeals Directive that: sets out the definition of a non-appealable appointment; prevents an appeal being made against a non-appealable appointment (and various other categories of matters, as well); and enables the commission to decide not to hear an appeal against a promotion decision where satisfied the appellant does not have an arguable case. I have explained why I do not believe the Appellant has an arguable case for appeal – that is, he is prevented from appealing the decision on 'remuneration threshold' grounds. The IR Act also enables the Commission to decline to hear public sector appeals for other reasons (s 562A). It is not correct that all appeals made must be heard. The legislative provisions referred to above expressly provide limits to appeal rights.
The Appellant correctly notes his right to "procedural fairness" in matters before this commission. The concept is defined in the Directive 05/23: Discipline as:
Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements–the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).
In this case, the Appellant has been afforded procedural fairness because: he has been provided with the reasons for the jurisdictional objection, as contained in the Respondent's submission; he had the right to respond to those reasons, and has done so in the Appellant's reply submissions; both parties were offered the chance to make any further written or oral submissions if desired and chose not to do so; the matter is determined by the QIRC, as an independent decision-maker.
Procedural fairness has been afforded to the Appellant in my consideration of the jurisdictional objection. That is necessarily the first question to be decided, before progressing to the substantive appeal grounds. For the reasons outlined, the appeal has failed at the first hurdle of the jurisdictional objection. It is not correct to assert that the Appellant has been denied procedural fairness because I have determined the jurisdictional objection in the Respondent's favour. Both parties have been heard.
3. Direct Contradiction in Advice
I have enormous sympathy for the Appellant's complaint that "The position taken by Queensland Health in their response directly contradicts advice previously given to me by Senior HR Advisor Ms Sullivan who submitted this response. Following a query regarding the remuneration applicability between streams, Ms Sullivan's response on 19th February 2024 … affirmed that the role being appealed is remunerated at a level no greater than the equivalent of an AO8 salary." The Appellant went on to explain that Ms Sullivan's email response to him on 19 February 2024 "directly influenced my decision to proceed with the appeal, under the belief that it was indeed permissible within the defined parameters."[19]
[19] Appellant's reply submissions filed 11 March 2024.
It is apparent from that submission that if the Department's response to the Appellant's very reasonable email inquiry on 19 February 2024 was carefully considered, the Appellant would not have invested the significant time required to file this appeal, and produce two further detailed written submissions to the Commission in support of it.
I have read the email exchange between the Appellant and Ms Sullivan on 19 February 2024. The Appellant correctly noted that in response to his request for clarification about the condition of "the role is remunerated at a level no greater than maximum salary applicable to the AO8 classification level within the relevant entity", Ms Sullivan told him that "The role being appealed is remunerated at a level no greater than the equivalent of an AO8 salary – I have attached both the Health Practitioner stream wage rates and the Administrative Stream wage rates for comparison."[20]
[20] Ibid Attachment 1.
While the attachment of the wage rates tables to Ms Sullivan's email reply enabled the Appellant to check the veracity of her advice for himself, it was nonetheless reasonable for the Appellant to rely on the answer provided to him by the human resources unit in response to his direct question. It is clearly regrettable that the advice was not correct. The result has been that the Appellant has now been placed in the invidious position of filing an appeal against a promotional decision, for which he is unable to obtain any remedy.
Conclusion
In circumstances where the relevant provisions of the PS Act and Appeals Directive have not been met, this matter cannot proceed to appeal.
For the reasons above, I will dismiss this appeal for want of jurisdiction.
Order
I make the following order:
1.The appeal is dismissed for want of jurisdiction.
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