Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2021] QIRC 187

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187
PARTIES:	Pallourios, Yiannis (Yianni) (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent)
CASE NO:	PSA/2020/446
PROCEEDING:	Public Service Appeal – Appointment to Higher Duties
DELIVERED ON:	1 June 2021
MEMBER: HEARD AT:	Knight IC On the papers
ORDERS:	The decision appealed against is confirmed.
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested appointment to a higher classification position under s 149C of the Public Service Act 2008 (Qld) – where the request was considered in accordance with Directive 13/20 Appointing a public service employee to a higher classification level – where the request was refused – whether the decision was fair and reasonable – whether genuine operational requirements prevented appointment – where the position is not recurrently funded – decision fair and reasonable
LEGISLATION AND DIRECTIVES:	Directive 13/20 Appointing a public service employee to a higher classification level cls 2, 4, 6 Directive 18/20 Supporting employees affected by workplace change Industrial Relations Act 2016 (Qld) s 562B Public Service Act 2008 (Qld) ss 25, 197, 149C
CASES:	Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Jacks v State of Queensland (Department of Environment and Science) [2021] QIRC 102 Magee v State of Queensland (Public Safety Business Agency) [2021] QIRC 101 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Mr Yiannis (Yianni) Pallourios is employed by the State of Queensland as an AO3 Executive Assistant in the Department of Children, Youth Justice and Multicultural Affairs ('the Department').
Since 29 September 2018, he has been acting in a higher duties classification as an AO5 Program Officer within the System Oversight team, Strategy and Delivery Performance (SDP), Strategy ('the AO5 position'). As part of his responsibilities in the higher duties position, Mr Pallourios also acts as the Secretariat to the Department's Child and Family Reform, Stakeholder Advisory Group ('the SAG').
Pursuant to s 149C(3) of the Public Service Act 2008 (Qld) ('the PS Act'), on 5 November 2020, Mr Pallourios requested he be permanently appointed to the AO5 position in which he was acting.
In a decision letter dated 18 December 2020 and provided to Mr Pallourios on 21 December 2020, Ms Kate Connors, Deputy Director-General Strategy, informed him he would continue to be engaged according to the terms of his existing higher duties arrangement ('the decision').
Mr Pallourios' existing higher duties contract for the AO5 position is due to cease on 30 June 2021.
By appeal notice filed 24 December 2020, Mr Pallourios appeals the decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld).[1] It is not by way of rehearing, but…

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.

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Details

AGLC: Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187
Case: [2021] QIRC 187
Decision Date: 1 June 2021

CaseChat Overview and Summary

In the case of Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs), the Queensland Civil and Administrative Tribunal was tasked with reviewing the decision by the Department of Children, Youth Justice and Multicultural Affairs to not appoint the appellant, Mr Pallourios, to a higher classification position. The Tribunal considered whether the decision was fair and reasonable, taking into account the operational requirements of the department and the terms of the relevant legislation and directives.

The primary legal issues revolved around the interpretation and application of section 149C of the Public Service Act 2008 (Qld) and Directive 13/20, which govern the appointment of public service employees to higher classification levels. The Tribunal examined whether the department's decision to refuse Mr Pallourios' request was justified under these provisions, particularly in light of the genuine operational requirements of the department and the non-recurrent funding of the position in question.

The Tribunal determined that the department's decision was fair and reasonable. It found that the department had appropriately considered the relevant guidelines and checklist in making its decision. The Tribunal accepted the department's argument that the AO5 Program Officer position was temporary and non-recurrently funded, created to align with the requirements of the Family Support and Child Protection System reforms. Given the nature of the project and the impending cessation of funding, the Tribunal concluded that appointing Mr Pallourios to the higher classification would not be appropriate, as it would likely result in his displacement when the position ceased.

As a result, the Tribunal confirmed the decision appealed against, upholding the department's refusal to appoint Mr Pallourios to the higher classification position.

Orders

Orders of the court

The decision appealed against is confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

My reasons follow.The decision The decision relevantly provides:I have considered your request and my decision and response is based on consideration of the requirements of section 149C of the Public Service Act 2008 (PS Act), Directive 13/20 relating to appointing a public service employee to a higher classification level (the Directive) and your employment history, including any previous review decisions.I have considered your request and have determined that, while you are eligible to request consideration for appointment under the Directive, you will not be appointed to the higher classification level at this time due to the genuine operational requirements of the agency. You will continue to be engaged according to the terms of your existing higher duties arrangement as there is no recurrently funded and substantively vacant AO5 Program Officer position with S&DP that you can be appointed to under the Directive at this time.Currently, you have been engaged at the higher classification level for a total of more than 3 years. Your engagement at this higher classification has been extended several times.As a result of this decision not to convert you to the higher classification level, you will continue in the role of Program Officer until 30 June 2021 when the position is currently scheduled to cease....The Department's submissions The Department submits that appointment is not appropriate having regard to its genuine operational requirements. In assessing those requirements, the Department submits it had regard to the relevant checklist[4] and its "Workplace Guidelines – Managing the financial impacts of COVID-19" ('the Workforce Guidelines').[5][4] See the "Higher classification conversion checklist" published by the Public Service Commissioner.[5] Department's submissions filed 25 January 2021, [8]-[9]. It submits that, in accordance with the Workforce Guidelines, temporary employment is supported where the position is non-ongoing and, further, that appointment to a higher classification should only be made where the position is considered "critical" and the appointment "will not create any additional FTE cost".[6] Relevantly, the Department noted that the AO5 position to which Mr Pallourios seeks appointment, is a temporary, non-recurrently funded position.[7][6] Ibid (Attachment 2).[7] Ibid [14]. The Department contends that the System Oversight team within which the AO5 position presently sits, was established to report on and oversee the remaining phases of the Family Support and Child Protection System reforms.[8] Those reforms are a ten-year program of work being undertaken in two five-year phases.[9] The nature of such a reform, it explains, is that different roles are required for different periods of the project.[10] Consequently, the AO5 position was created and funded as a temporary, non-recurrent position to align with the requirements of the project.[11][8] Ibid [17].[9] Ibid.[10] Ibid [18].[11] Ibid. While it accepts that Mr Pallourios' contract has been extended several times, the Department contends those extensions coincided with temporary extensions to funding and that funding is due to cease on 30 June 2021.[12] Consequently, even if Mr Pallourios were to be converted, the Department argues it is highly likely that he would become a displaced employee requiring placement under the relevant workplace change directive, as there are no other vacant AO5 positions available.[13][12] Ibid [12], [19].[13] Directive 18/20 Supporting employees affected by workplace change; Department's submissions filed 25 January 2021, [31].Mr Pallourios' submissions

Ratio Decidendi

Legal Principle Established

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