Magee v State of Queensland (Public Safety Business Agency) - [2021] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION_:	Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101
PARTIES:	Magee, Nicole Angela (Appellant) v State of Queensland (Public Safety Business Agency) (Respondent)
CASE NO:	PSA/2021/66
PROCEEDING:	Public Service Appeal – Conversion decision
DELIVERED ON:	25 March 2021
MEMBER: HEARD AT:	Hartigan IC On the papers
ORDER:	*1. Pursuant to s 562(C)(1)(a) of the Industrial Relations Act 2016* (Qld), the decision appealed against is confirmed.**
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant was acting in a higher classification level – where role was attached to a project with an end date – consideration of 'genuine operational requirements'
LEGISLATION: CASES	Directive 13/20 Appointing a public service employee Industrial Relations Act 2016 (Qld), s 562B Public Service Act 2008 (Qld), s 149C, s 197 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Ms Nicole Angela Magee appeals a decision not to permanently appoint her to the position in which she has been acting at a higher classification level ("the decision").
Since 3 December 2018, and at the time Ms Magee commenced this appeal, Ms Magee has been temporarily acting in the position of an AO7 Principal Program Delivery Officer. This temporary contract is to expire on 30 June 2021.
Ms Magee holds a substantive position of AO5 Project Officer, Property and Facilities Management ("PFM"), Asset and Procurement Services, Public Safety Business Agency ("PSBA").
By notice of appeal filed in the Industrial Registry on 5 February 2021, Ms Magee, pursuant to Ch. 7 of the Public Service Act 2008 (Qld) ("PS Act"), appealed against the decision. Ms Magee appeals on the grounds that the PSBA appointed two team members who were temporary to permanent positions. Ms Magee argues that the appointment of these two temporary employees to permanent, set a precedent and establishes that there is an ongoing operational requirement for the role even though the PSBA is to be disestablished. This ground of appeal arises in the context of an announcement on 7 September 2020 by the State Government that the PSBA is to be de-established and the established legislation is to be repealed from April 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.
Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Magee v State of Queensland (Public Safety Business Agency)

Details

AGLC: Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101
Case: [2021] QIRC 101
Decision Date: 25 March 2021

CaseChat Overview and Summary

The case of Magee v State of Queensland (Public Safety Business Agency) involved the appellant, Ms Magee, appealing a decision by the Public Safety Business Agency (PSBA) not to convert her acting position at a higher classification level to a permanent position. The dispute centred on whether the PSBA's decision was fair and reasonable, considering the statutory provisions that require the decision-maker to take into account the "genuine operational requirements of the department" when making such a decision.

The legal issues before the court were whether the PSBA's decision was in accordance with the relevant provisions of the Public Service Act 2008 (Qld) and the Public Service Directive 13/20. Specifically, the court needed to determine if the PSBA properly considered the genuine operational requirements of the department in declining Ms Magee's request for permanent appointment. The court also examined whether the PSBA's decision was influenced by any factors beyond the scope of the relevant statutory provisions.

The court found that the PSBA's decision was fair and reasonable. The PSBA had considered the genuine operational requirements of the department, which included the impending de-establishment of the agency and the review of positions and staffing redistribution to other agencies. The court accepted that the PSBA did not have a genuine operational requirement for Ms Magee to continue in her acting position after April 2021. The court was not persuaded by the argument that a precedent had been set by the appointment of other temporary employees to permanent positions, as these appointments were made under different provisions of the PS Act.

Consequently, the court confirmed the decision of the PSBA, finding it to be within the bounds of the relevant statutory and directive provisions. The appeal was dismissed, and the original decision was upheld.

Orders

Orders of the court

1. Pursuant to s 562(C)(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

For the reasons contained herein, I have found that the decision was fair and reasonable. The decision The decision was contained in a letter to Ms Deb Paterson, Acting General Manager of the Human Resources Division of the PSBA,[4] in the following terms:[4] Although this is disputed by the PSBA on the basis it contends the decision was a deemed decision. 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 one 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).…(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. The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),[5] Merrell DP relevantly stated:[6] [37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.[38] The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:•managing the department in a way that promotes the effective, efficient and appropriate management of public resources;•planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. (Citations omitted) [5] [2020] QIRC 203.[6] Ibid [37] – [38].

Ratio Decidendi

Legal Principle Established

In any event, whether the decision was a deemed decision on 8 January 2021 or as contained in the correspondence of 15 January 2021 (which I consider at least provides notice of the decision), it is clear that the PSBA have determined not to allow Ms Magee's request for appointment to the higher classification level. Further, the correspondence of 15 January 2021 advises that the reason why that determination has been made is due to the operational requirements of the PSBA. Genuine Operational Requirements of the PSBA As noted above, s 149C(4A)(a) of the PS Act and Clause 6.2(a) of the Directive provides that the decision maker must have regard to the "general operational requirements of the Department". It has been held,[7] that when construed in context, the phrase "genuine operational requirements of the Department" would, at least, include consideration of the following:…Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to…position at the higher classification level.[8] [7] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell. [8] Ibid [40]. Having regard to this, it was relevant for the decision maker to consider whether Ms Magee should be appointed to the higher classification level position in circumstances where the agency Ms Magee has been working in is due to be de-established in April 2021. I accept the PSBA's submission that it does not have a genuine operational requirement for Ms Magee to continue working for the PSBA in the role. Ms Magee submits that a precedent has been set by the appointment of two temporary employees to a permanent position in December 2020. I do not know the details with respect to those appointments or why they were made. Further, an appointment of two temporary officers to a permanent position is made under a different provision of the PS Act and I am satisfied, in any event, that it would not establish a precedent with respect to Ms Magee's request. The PSBA refers to the announcement made by the State Government that the PSBA is to be disestablished from April 2021 and that all positions and staffing are currently being reviewed for redistribution to the various agencies over the coming months. In its submissions, the PSBA notes that: It appears, based on the submissions of PSBA, the structure to be adopted by each relevant department is currently unknown. I am satisfied that the PSBA's reliance on the general operational requirements of the de-establishment of the PSBA was reasonable when it declined to convert Ms Magee to the position in which she is currently employed. For the forgoing reasons, I am satisfied that the decision made by PSBA was fair and reasonable. Order I make the following order: 1. Pursuant to s 562(C)(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.