Muir v State of Queensland (Department of Education)

[2020] QIRC 231

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Muir v State of Queensland (Department of Education) [2020] QIRC 231

Muir, Catherine
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)

CASE NO:

PSA/2020/309

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

23 December 2020

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

LEGISLATION:

CASES:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – deemed decision – where the outcome of the review was that the appellant was not permanently appointed to a higher classification level –consideration of "the position" – consideration of the scope of a review under s 149C.

Appointing a public service employee to a higher classification level - Directive 13/20, cl 6, cl 7, cl 11

Industrial Relations Act 2016 (Qld), s 562A

Public Service Act 2008 (Qld), s 149, s 149C, s 194, s 195

Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

[1]Ms Catherine Muir appeals a decision not to permanently appoint her to the position in which she has been acting at a higher classification level.

[2]At the time Ms Muir commenced this appeal, she was acting in the position of Business Manager, Woongoolba State School [0039], classification AO3 in the Department of Education ("the Department). Ms Muir commenced this position on 20 April 2020.

[3]Ms Muir is permanently employed by the Department as an Administrative Officer, Wellington Point State School [0273], at classification level AO2.[1]

[1] Ms Muir commenced this role in 24 January 2002.

[4]By notice of appeal filed on 12 November 2020, Ms Muir, pursuant to ch 7 of the Public Service Act 2008 ("the PS Act"), appealed against a deemed decision dated 11 November 2020. The chief executive did not make a decision within 28 days of the commencement of the review. Consequently, pursuant to s 149(6) of the PS Act, Ms Muir's engagement was deemed to continue in accordance with the terms of the existing higher duties arrangement ("the decision").

[5]On 13 November 2020, the Department issued a written notice providing reasons for its decision. Relevantly, the notice stated as follows:

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. You have been acting in the higher classification level role as Business Manager, Woongoolba State School, South East Region for a period of six months and three weeks, from 20 April 2020 to present. Accordingly, you are not eligible to request appointment to the higher classification level under s 149C of the PS Act and Directive.

…

[6]Ms Muir appeals the decision on the grounds that she meets the criteria for conversion to the position at the higher classification level pursuant to s 149C, having acted at the higher classification level for a continuous period of at least one year and having demonstrated merit.

[7]The appeal is made pursuant to s 197 of the PS Act, which provides[2] 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").

[2] Pursuant to the Public Service and Other Legislation Amendment Act 2020, amendments were made to the Industrial Relations Act 2016 (Qld) and the Public Service Act 2008 (Qld), commencing on 14 September 2020.

[8]Sections 562B(2) and (3) of the IR Act replicate the now repealed ss 201(1) and (2) of the PS Act. 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.

[9]As an IRC member, 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.[3] An appeal under Ch. 7, Pt. 1, of the PS Act is not by way of rehearing[4] but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]

[3] Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[4] See discussion of various legal categories of appeal in Goodall v State of Queensland (Unreported, Supreme Court of Queensland, Dalton J, 10 October 2018) 5.

[5] Ibid.

[10]The Department contends that the decision is one which an appeal can not be made against. Relevantly, the Department contends that, pursuant to s 195(1)(j) of the PS Act, Ms Muir cannot appeal against the decision because it is a decision under s 149C of the PS Act 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.

[11]In forming a view as to Ms Muir appealing the decision, I will consider whether Ms Muir has been employed for a "continuous period".

The relevant provisions of the IR Act and Directive 13/20 - Appointing a public service employee to a higher classification level ("Directive 13/20")

[12]In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20, including those provisions which I set out below.

[13]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.

(2)  However, this section does not apply to the following public services employees—

(a)   a casual employee;

(b)   a non-industrial instrument employee;

(c)an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.

(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.

(6)    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.

(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.

[14]Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes 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.

[15]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:

(a)the genuine operational requirements of the department, and

(b)the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.

6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement.

6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act.

[16]Clause 7 of Directive 13/20 provides that a decision-maker who refuses a request must provide 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.

[17]In this matter, as the decision was deemed to be made, there was no requirement, pursuant to cl 7.2 of Directive 13/20 for a written notice to have been prepared. However, despite this, the Department provided Ms Muir with a written notice on 13 November 2020.

[18]Clause 11 of Directive 13/20 defines the following relevant 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.

…

Secondment has the meaning given under section 120(1)(a) of the PS Act.

Substantive vacancy means a recurrently funded position identified on an agency's establishment list that does not have an ongoing incumbent appointed.

[19]Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act.

[20]In summary, s 295(3) of the PS Act provides that in applying s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b).

The Respondent's submissions

[21]The Department's primary contention is that the Commission should decline to hear the appeal pursuant to ss 194(1)(e)(iii) and 195(1)(j) of the PS Act, as Ms Muir has not been acting at the higher classification level for a continuous period of at least two years. Further, it submits that Ms Muir commenced the higher classification position as Business Manager (AO3) in Woongoolba State School [0039] on 20 April 2020 and is not eligible to be reviewed, pursuant to s 149C(1)(b).

[22]The Department, in summary, relies on the following grounds:

(a)having commenced on 20 April 2020 as a Business Manager (AO3) at Woongoolba State School, Ms Muir has not acted in the higher classification level for a continuous period of at least one year, pursuant to s 149C(1)(b) of the PS Act; and

(b)the Department accepts that since August 2014, Ms Muir has been relieving above her substantive position however, it contends that it has been in different roles. The Department included a table in its submissions (see Appendix I), outlining the higher classification level positions in respect of which Ms Muir has been acting since 2014, including:

(i) Business Manager (AO3) at Springwood Central State School [1869] from 12 August 2014 to 20 January 2017;   

(ii)Business Manager (AO4) at Springwood Central State School [1869] from 23 January 2017 to 17 April 2020; and

(iii)Business Manager (AO3) at Woongoolba State School [0039] from 20 April 2020.  

(c)Ms Muir has not completed the required "continuous period" of at least one year in [0039]. The Department states that although Directive 13/20 includes an "authorised absence" within a continuous period, which can include the performance of alternative higher duties, it is not intended that Ms Muir will return to the [0039] position but rather the substantive AO2 [0273] position; and

(d)Ms Muir is therefore not eligible to be reviewed, pursuant to s 149C of the PS Act and is not eligible to appeal the decision not to convert her to the higher classification [0039] position, pursuant to ss 194(1)(e)(iii) and 195(1)(j) of the PS Act.

[23]The Department submitted that Ms Muir discontinue the appeal, or in the alternative, that the Commission ought not hear the appeal pursuant to s 562A(3)(b) of the IR Act.

The Appellant's submissions in reply

[24]Ms Muir was invited to respond to the Department's submission that the Commission ought not hear the appeal, pursuant to s 562A(3)(b) of the IR Act, on the basis that the appeal was misconceived. In response, Ms Muir contends that she has been acting in a higher classification performing in the role of "Business Manager" since 2014 and that the PS Act does not require the higher classification or position to be at the same physical location, but rather, be the same role, within the same agency.

[25]After referring to the definition of "continuous period", Ms Muir contended that she had been continuously employed in the higher classification level in that she had been in higher duties at an AO3, then an AO4, then back to an AO3 higher duties.

Consideration

Is Ms Muir eligible to seek conversion to the higher classification position pursuant to s 149C of the PS Act?

[26]The issue for determination is whether Ms Muir was acting up at the higher classification level for a continuous period as referred to in s 149C(1)(b) of the PS Act, in order to be eligible to request to have her employment converted to a higher classification.

[27]As noted above, 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."

[28]Ms Muir contends that she has been employed in for a "continuous period" as she has been acting in a higher classification level performing the role of Business Manager for the Department for a continuous period of more than one year. Ms Muir's contention can only be accepted if it is found that the period in which Ms Muir worked the Business Manager AO4 role can be counted towards the calculation of the period.

[29]Appendix 1 to this decision attaches a table that outlines that Ms Muir has performed or acted up in, the role of Business Manager at several schools since 12 August 2014. Ms Muir commenced acting up in the role of Business Manager at Springwood Central State School from 12 August 2014 to 17 April 2020. This role was originally classified as an AO3 role. On or about 23 January 2017, Ms Muir remained in the role of Business Manager, however, it was increased to an AO4 level position. Ms Muir remained in the position at an AO4 classification level until she commenced in the Business Manager role, classification level AO3, at Wellington Point State School on 20 April 2020. Ms Muir remained performing that role at the time the decision was made.

[30]Consideration of the language used in the provision is relevant to my determination of this matter.

[31]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.

[32]Ms Muir satisfies s 149C(1)(a) as she has been acting up at a higher classification level in the Department by acting in the roles of Business Manager (AO3) and (AO4) at several schools within the Department.

[33]Section 149C(1)(b) further states that the section applies to a public service employee if the employee has been seconded in or acting at the higher classification level for a continuous period of at least one year.

[34]It is accepted between the parties that Ms Muir had been employed for a period of less than one year in the Business Manager (AO3) role at Woongoolba State School at the time she made the request pursuant to s 149C(3) of the PS Act.

[35]Ms Muir states that the period of time that she was employed in the Business Manager (AO4) role at Springwood State School should be taken into account in calculating the one year for the purpose of s 149C(1)(b) of the PS Act.

[36]The Department contends that whilst "continuous periods of … authorised absence" – which includes the performance of alternative higher duties – this would only be considered where it was intended that the employee would return to the higher duties role, following the absence. The Department submitted that this was not the case in this matter, as it was always intended that Ms Muir return to her substantive AO2 role at Wellington Point State School on 10 December 2020.

[37]The Public Service Commission has published a guideline with respect to what is meant by "authorised absence". Relevantly, it provides that periods of absence (including the performance of alternative duties) where it was always intended that the employee would return to the higher duties role, may be considered an authorised leave or absence and will not break the continuous period. The following two relevant examples are provided:

Examples:

1.       A substantive AO3 employee is appointed to perform higher duties for a period of 13 months at the AO5 classification level. At 10 months, the employee is appointed to perform higher duties at AO6 for 3 weeks. At the end of the 3-week period, the employee returns to their AO5 higher duties for the remainder of the 13-month period.

The 3-week period may be considered an authorised absence because it was always intended for the employee to return to the higher duties role following the absence.

2.       A substantive AO7 employee is appointed to perform higher duties in an AO8 role (role 1) for a period of 6 months. At 6 months, the employee is appointed to perform another AO8 role (role 2) for a period of 3 months. At 9 months, a new appointment is made to return to perform higher duties in role 1 for a period of 6 months.

The 3-month period in role 2 is not considered an ‘authorised absence’ for the purpose of the continuous period, as role 2 was not the same as and did not intersect role 1, rather there were 3 separate appointments.

[38]These examples provide a helpful guide as to the approach to be taken when determining whether a period of authorised leave or absence will break a continuous period.

[39]Ms Muir commenced acting up in the AO3 role on 12 August 2014. The role had the position number of [1869]. Ms Muir remained in the role at the AO3 classification level until 20 January 2017. Ms Muir's employee records indicate that from 23 January 2017 to 17 April 2020, she commenced at an AO4 classification but relevantly, in the same position of [1869].

[40]It appears that on and from 23 January 2017, the classification level of the [1869] position was reclassified as Ms Muir remained in the position [1869] but at an AO4 classification level.

[41]Accordingly, I cannot accept Ms Muir's submission that the period of time she was in position [1869] at classification AO4 was an authorised absence for the purpose of determining a "continuous period." That is because she was not absent from the AO3 higher duties role but, rather, that role was reclassified to an AO4 level. In those circumstances, there could not have been an intention to return Ms Muir to the AO3 role after it was reclassified as an AO4 role.  

[42]Clause 5.2 of Directive 13/20 relevantly states:

5.2.   To be eligible to request consideration for appointment at the higher classification level under clause 5.1, the employee must:

(a)have been seconded to or assuming the duties and responsibilities of the higher classification level

(b)for a continuous period of at least one year

(c)be eligible for appointment to the higher classification level having regard to the merit principle.

[43]Ms Muir was not assuming the duties and responsibilities of the AO3 classification level for a continuous period of at least one year.

[44]Accordingly, I consider that Ms Muir was not eligible to request consideration for appointment to the position at the higher classification level.

[45]Further, as Ms Muir had been seconded to or acting in the classification level (of the relevant position) for less than two years, the decision is not a decision which can be appealed.

Conclusion

[46]For the forgoing reasons, I have concluded that pursuant to s 195(1)(j) of the PS Act, that the decision can not be appealed.

[47]On this basis, I have decided not to hear the appeal as it is misconceived and lacks substance.

Order

[48]I make the following order:

1. The appeal is dismissed pursuant to s 562A(3)(b)(ii) of the IR Act.

APPENDIX I

From	To	Title	Organisational Unit	Nbr	Reason	Status	1st Pref	Award/			Hours		Calendar Days
								Hrs	FTE	Class/Level	Awd	Total
10/12/2020	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50
20/04/2020	09/12/2020	Business Manager	Woongoolba State School [0039]	2	Relieve-Above Level	Performing Duties	72.50	1.00	PSA/AO3/04	72.50	72.50	234
18/04/2020	19/04/2020	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50	2
23/01/2020	17/04/2020	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO4/04	72.50	72.50	86
23/01/2019	22/01/2020	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO4/03	72.50	72.50	365
19/01/2019	22/01/2019	Business Manager	Springwood Central State School [1869]	2	Change of Duties	Performing Duties	72.50	1.00	PSA/AO4/02	72.50	72.50	4
23/01/2018	18/01/2019	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO4/02	72.50	72.50	361
23/01/2017	22/01/2018	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO4/01	72.50	72.50	365
22/01/2017	22/01/2017	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50	2
21/07/2016	20/01/2017	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO3/03	72.50	72.50	184
21/07/2015	20/07/2016	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO3/02	72.50	72.50	366
12/08/2014	20/07/2015	Business Manager	Springwood Central State School [1869]	2	Performing Duties	72.50	1.00	PSA/AO3/01	72.50	72.50	343
31/03/2014	11/08/2014	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50	134
17/03/2014	30/03/2014	Business Manager	Wellington Point State School [0273]	2	Relieve-Above Level	Performing Duties	72.50	1.00	PSA/AO3/01	72.50	72.50	14
11/02/2014	16/02/2014	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50	34
28/10/2013	10/02/2014	Administrative Officer (AAEP)	Wellington Point State School [0273]	2	Relieve- At Level	Performing Duties	72.50	1.00	PSA/AO2/08	72.50	72.50	106
26/10/2013	27/10/2013	Administrative Officer	Wellington Point State School [0273]	1	Return Perm Position	Permanent	72.50	1.00	PSA/AO2/08	72.50	72.50	2
18/10/2013	25/10/2013	Business Manager	Wellington Point State School [0273]	2	Relieve-Above Level	Performing Duties	72.50	1.00	PSA/AO3/01	72.50	72.50	8
08/07/2013	17/10/2013	Administrative Officer (AAEP)	Wellington Point State School [0273]	2	Relieve- At Level	Performing Duties	72.50	1.00	PSA/AO2/08	72.50	72.50	102