Public Sector (Appeals) Regulation 1991 (Qld)

Queensland Subordinate Legislation 1991 No. 131 Public Sector(Appeals) Amendment Act 1991 Public Sector Management Commission Act 1990 Public Service Management and Employment Act 1988 PUBLIC SECTOR (APPEALS) REGULATION 1991 TABLE OF PROVISIONS Section Page PART 1–PRELIMINARY 1 Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PART 2–AMENDMENT OF REGULATIONS 2 Amended regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 PART 3–TRANSITIONAL ARRANGEMENTS FOR CERTAIN EMPLOYEES 3 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4 Employee appeals that are not finalised before this regulation takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 5 Employee with appeal rights who has not exercised them before this regulation takes effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 6 Employee who has appeal rights in respect of an appointment only because Appeals Act has a retrospective operation . . . . . . . . . . . . . . . . . 3 SCHEDULE . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

2 Public Sector (Appeals) Regulation 1991 PART 1—PRELIMINARY Short title 1. This regulation may be cited as the Public Sector (Appeals) Regulation 1991 . PART 2—AMENDMENT OF REGULATIONS Amended regulations 2. The regulations mentioned in the Schedule are amended as set out in the Schedule. PART 3—TRANSITIONAL ARRANGEMENTS FOR CERTAIN EMPLOYEES Definitions 3. In this Part— “Appeals Act” means the Public Sector (Appeals) Amendment Act 1991 ; “Commission Act” means the PublicSectorManagementCommissionAct 1990 ; “transitional regulation” means the regulation made under the PublicService Management and Employment Act 1988 as it is continued in existence and applied by section 7.13(4)(c) of the Commission Act.

3 Public Sector (Appeals) Regulation 1991 Employee appeals that are not finalised before this regulation takes effect 4.(1) This section applies if, before the day that this regulation is published in the Gazette— (a) a person had appealed under the Commission Act; and (b) the appeal had not been withdrawn, lapsed or otherwise concluded. (2) The appeal must be dealt with under the transitional regulation. (3) For the purposes of dealing with an appeal under the transitional regulation, the regulation is to be taken to continue to exist and apply as if this regulation (other than this section) had not taken effect. Employee with appeal rights who has not exercised them before this regulation takes effect 5.(1) This section applies to a public sector employee who, immediately before this regulation is published in the Gazette— (a) had a right of appeal under the Commission Act; but (b) had not exercised that right. (2) If the employee wants to exercise the right of appeal after this regulation is so published, he or she must do so under the Public SectorManagement Commission Regulation 1991. Employee who has appeal rights in respect of an appointment only because the Appeals Act has a retrospective operation 6.(1) This section applies to a public sector employee who, before 17 October 1991— (a) did not have a right of appeal under the Commission Act; but (b) has a right of appeal under the Commission Act after that day because sections 3, 4 and 6 of the Appeals Act are taken to have commenced on 1 July 1991. (2) If the employee wants to exercise the right of appeal, he or she must do so by giving notice under section 3(2) of the Public Sector Management

4 Public Sector (Appeals) Regulation 1991 Commission Regulation 1991 . (3) The deadline for the actual receipt of the notice of appeal is 5 p.m. on the twenty-first day after the day on which this regulation is published in the Gazette. (4) If— (a) the employee gives his or her notice of appeal before the deadline for the receipt of the notice; and (b) the notice complies with the PublicSectorManagementCommissionRegulation1991 other than section 11(2) of the regulation; the employee is taken to have given a valid notice of appeal for the purposes of the regulation. SCHEDULE A. Public Sector Management Commission Regulations 1991 (made under the Public Sector Management Commission Act 1990 ) 1. Regulation 1 (Short title)— omit, insert— ‘PART 1—PRELIMINARY ‘Short title ‘1. This regulation may be cited as the PublicSectorManagementCommission Regulation 1991.

5 Public Sector (Appeals) Regulation 1991 ‘Definitions ‘1A. In this regulation— “appellant” means a person who has given a notice of appeal to the Commissioner for Public Sector Equity; “appointee” , in relation to an appeal against an appointment, means the person whose appointment is the subject of the appeal; “appointment” means an appointment of the type mentioned in section 5.3(1)(c) of the Act but does not include an appointment under section 16(2); “deficient” , in relation to the process of recruiting or selecting a person for a position, has the meaning given by section 1B; “notice of appeal” means a notice under section 3(2); “notified in the Gazette” includes the meaning given by section 1C; “proceeding” includes a conference; “Selection Standard” means the Public Sector Management Standard for Recruitment and Selection , as amended from time to time. ‘Interpretation—Deficient recruitment or selection process ‘1B. A recruitment or selection process is deficient— (a) if it is used by a unit of the public sector which employs persons under the Public Service Management and Employment Act 1988 —the process is not in accordance with the Act, this regulation, the Selection Standard, the Public Service Management and Employment Act 1988 and the PublicServiceManagementandEmploymentRegulation1988 ; or (b) if it is used by another unit of the public sector—the process is not in accordance with the Act, this regulation, the Selection Standard, the Act establishing or continuing the unit and any regulation made under that Act.

6 Public Sector (Appeals) Regulation 1991 ‘Interpretation—“Gazette” may mean another publication ‘1C. When— (a) a unit of the public sector does not advertise a vacant position or give notice of an appointment in the Gazette but so advertises or gives notice in a publication other than the Gazette; and (b) a reference is made in this regulation to the notification in the Gazette of a vacant position, an appointment or a revocation; the reference must be taken to be to the publication used by the unit. ‘PART 2—PRESCRIBED GUIDELINES FOR PUBLIC SECTOR MANAGEMENT STANDARDS’. 2. Regulation 2(2) (Prescribed guidelines for standards)— omit, insert— ‘(2) Subsection (1) is a prescribed guideline for the purposes of section 4.13(1)(a) and (b) of the Act. ’. 3. Add at the end— ‘PART 3—APPEALS AGAINST CERTAIN ADMINISTRATIVE ACTIONS ‘ Division 1—Appeal matters generally ‘Institution of appeal by giving notice ‘3.(1) This section applies to a person who has a right of appeal under the Act and wants to exercise that right. ‘(2) The person must give to the Commissioner for Public Sector Equity a written notice that sets out all of the following matters— (a) details that identify the thing against which the person is

7 Public Sector (Appeals) Regulation 1991 appealing; (b) the grounds for the appeal; (c) any other details which the person believes supports his or her appeal. ‘(3) The Commissioner must, as soon as possible after the Commissioner has received the notice of appeal, give notice of its receipt to the appellant. ‘Conduct of appeals ‘4.(1) The appeal tribunal dealing with an appeal may determine the way in which the appeal will be conducted including the persons who are the other parties to the appeal. ‘(2) The tribunal may join (wholly or partially)— (a) appeals that relate to the same action mentioned in section 5.3(1)(a) of the Act; or (b) appeals that relate to the same action mentioned in section 5.3(1)(b) of the Act; or (c) appeals that relate to the same appointment; or (d) appeals that relate to the same application of any remuneration standard. ‘(3) The tribunal may also join appeals if the appellant in each appeal is the same person or the appeals arise out of the same or a similar set of circumstances. ‘(4) The tribunal’s determination under subsection (1) is subject to this regulation.

8 Public Sector (Appeals) Regulation 1991 Tribunal may hold conferences ‘5.(1) The appeal tribunal may decide to hold a conference with one or more of the parties to a proceeding for such purpose as the tribunal thinks fit. ‘(2) Without limiting the generality of subsection (1), the tribunal may hold a conference for any of the following purposes— (a) to clarify the facts or issues in dispute; (b) to find out if the parties agree to the tribunal determining the appeal without holding a hearing or to holding a hearing by telephone; (c) to determine if, under section 5.6(6) of the Act, the tribunal must not hear an appeal; (d) to determine if, under section 5.6(6A) of the Act, the tribunal may decline to hear an appeal; (e) to determine the timing of the hearing. ‘(3) A conference may be held by telephone. ‘(4) An appeal tribunal’s decision at a conference is not a determination upon appeal, except— (a) a determination, under section 5.6(6) of the Act, that the tribunal must not hear the appeal; and (b) a determination, under section 5.6(6A) of the Act, to decline to hear the appeal. ‘Attendance at appeal to be part of employee’s performance of duty ‘6.(1) If a public sector employee— (a) is an appellant; or (b) is requested or directed by an appeal tribunal to attend its proceedings; the employee’s attendance at the appeal proceedings is part of his or her duties. ‘(2) The employee must be paid all travelling expenses and allowances to the same extent as if he or she attended the appeal proceedings as part of his or her duties and the amount of the travelling expenses and allowances

9 Public Sector (Appeals) Regulation 1991 is to be taken as a reasonable amount determined by the appeal tribunal. ‘(3) This section does not apply to an employee who is suspended from duty without pay. ‘Determination of appeal tribunal ‘7.(1) When an appeal tribunal dealing with an appeal determines it, the determination— (a) must be in writing; and (b) must specify whether the tribunal allows or dismisses the appeal; and (c) must set out the tribunal’s reasons for its determination. ‘(2) The tribunal must give a copy of the determination to the parties to the appeal as soon as possible after it is available. ‘Withdrawal of appeal ‘8.(1) This section applies when— (a) an appellant has appealed under section 5.3 or 5.4 of the Act; and (b) the appeal tribunal dealing with the appeal has not given its determination to the appellant. ‘(2) The appellant may withdraw the appeal by written notice given to the appeal tribunal. ‘(3) The tribunal must give copies of the notice to the other parties to the appeal and to any other person whom it considers has an interest in the appeal. ‘Lapsing of appeal ‘9. An appeal lapses if the appellant— (a) ceases to be a public sector employee; or (b) no longer satisfies the requirements of the class of appeal in question.

10 Public Sector (Appeals) Regulation 1991 ‘Departments etc. to be liable for costs, other expenses and allowances and sums ‘10.(1) The unit of the public sector whose decision is the subject of an appeal is liable for— (a) the costs of the appeal (including the costs of the appeal tribunal attributable to the appeal or costs incurred by the Commission for the appeal); and (b) any expenses and allowances of an employee under section 6(2) in relation to the appeal; and (c) any sums which, under section 7.5 of the Act, persons are entitled to be paid when they attend before the appeal tribunal to produce any information, record or thing in relation to the appeal. ‘(2) The appeal tribunal dealing with an appeal may determine the amount of the costs, expenses, allowances or sums at the end of the appeal proceedings or at a later time. ‘(3) The chief executive of the unit must ensure prompt payment of all amounts for which the unit is liable. ‘ Division 2—Appeals against appointments by way of promotions ‘Right of appeal ‘11.(1) For the purposes of section 5.3(2)(c) of the Act, an eligible public sector employee must satisfy all of the following requirements— (a) the employee must have applied for a vacant position that was notified in the Gazette and to which another eligible public sector employee was appointed;

11 Public Sector (Appeals) Regulation 1991 (b) the employee’s application for the vacant position must have been received before the deadline for the receipt of applications; (c) the employee’s notice of appeal must be actually received by the Commissioner for Public Sector Equity before the deadline for its receipt; (d) the employee must continue to be appointed within a unit of the public sector to which the Selection Standard applies. ‘(2) Subject to subsection (3), the deadline for the actual receipt of the notice of appeal is 5 p.m. on the twenty-first day after the day on which the appointment of the other eligible public sector employee was notified in the Gazette. ‘(3) The deadline for the actual receipt of a notice of appeal by an appellant— (a) who was appointed, by way of promotion, to an office; but (b) whose appointment was revoked under section 16(2); is 5 p.m. on the twenty-first day after the day on which the revocation is published in the Gazette. ‘Parties of appeal against an appointment ‘12.(1) The parties to an appeal under section 5.3(1)(c) of the Act are— (a) the appellant; and (b) the appointee; and (c) the chief executive of the unit of the public sector in which the appointment was made. ‘(2) The chief executive may appoint, in writing, a person to represent the chief executive for the purposes of the appeal. ‘Conduct of an appeal against an appointment ‘13. When the appellant has given a notice of appeal to the Commissioner for Public Sector Equity, the appellant must give a copy of the notice— (a) to the other parties to the appeal; and

12 Public Sector (Appeals) Regulation 1991 (b) if, immediately before the appointment, the appointee was employed in a unit of the public sector other than the unit to which he or she was appointed— to the chief executive of that unit. ‘Grounds for appeal ‘14. A notice of appeal may contain one or both of the following grounds of appeal— (a) the recruitment or selection process was deficient; (b) the appellant demonstrated the highest level of merit overall. ‘Effect if appeal allowed on the basis of deficient process ‘15.(1) This section applies when— (a) one of the grounds of appeal is that the recruitment or selection process used by a unit of the public sector was deficient; and (b) the Commissioner determines that the recruitment or selection process was deficient and the deficiency was substantial. ‘(2) The Commissioner may— (a) revoke the appointment of the appointee and direct the unit to commence the process again (including advertising the position as vacant) or to continue with the process from a particular time or event; or (b) deal with the appeal by determining if during the appeal— (i) the appointee or the appellant demonstrated the highest level of merit overall; or (ii) the appointee or—when the proceedings consist of appeals joined under section 4—one of the appellants demonstrated the highest level of merit overall. ‘(3) The revocation must be notified in the Gazette by the Commissioner.

13 Public Sector (Appeals) Regulation 1991 ‘Effect if appeal allowed on the basis of merit ‘16.(1) This section applies when the Commissioner for Public Sector Equity allows an appeal because, during the appeal, an appellant demonstrated the highest level of merit overall. ‘(2) The Commissioner, must by notice in the Gazette, revoke the appointment of the appointee and appoint the appellant to the position. ‘(3) The appellant must be paid— (a) the salary for the position on and after the day of his or her appointment, even if he or she does not commence duties in the position until a later day; and (b) any annual salary increment for the office on the anniversary of the day of the appointee’s appointment. ‘(4) The person whose appointment is revoked— (a) if his or her previous position is vacant—resumes the position and classification which he or she held immediately before his or her appointment; and (b) in any other case—continues to be employed in the unit of the public sector in which he or she was appointed immediately before his or her appointment and his or her rate of salary must be not less than he or she was paid immediately before the appointment. ‘Prescription of standard for purposes of definition ‘17. For the purposes of the definition of “eligible public sector employee” in section 5.3(5) of the Act, the prescribed standard is the Selection Standard.

14 Public Sector (Appeals) Regulation 1991 ‘ Division 3—Appeals against disciplinary actions ‘Deadline for beginning appeal against disciplinary action ‘18.(1) A notice of appeal against a disciplinary action must be actually received by the Commissioner for Public Sector Equity before the deadline for its receipt. ‘(2) The deadline for the actual receipt of the notice is 5 p.m. on the twenty-first day after the day on which the employee received written notice of the disciplinary action. ‘ Deferral of disciplinary action until after appeal ‘19.(1) This section applies to a decision to take disciplinary action against an employee, other than dismissal or suspension. ‘(2) The action does not take effect until— (a) if the employee’s notice of appeal is received before the deadline — the appeal tribunal dealing with the appeal allows or dismisses it; or (b) in any other case—the end of the period of 21 days after the employee received the written notice of the decision.’. B. Public Service Management and Employment Regulation 1988 (made under the Public Service Management and Employment Act 1988 ) 1. Part VI (PROMOTION GRIEVANCES)— omit . AND DISCIPLINE APPEALS,

15 Public Sector (Appeals) Regulation 1991 ENDNOTES 1. Made by the Governor in Council on 14 November 1991. 2. Published in the Gazette on 16 November 1991. 3. Laid before the Legislative Assembly on . . . 4. The administering agency is the Public Sector Management Commission. The State of Queensland 1991