Quick v State of Queensland (Queensland Police Service)
[2025] QIRC 286
•24 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Quick v State of Queensland (Queensland Police Service) [2025] QIRC 286 |
| PARTIES: | Quick, John William v State of Queensland (Queensland Police Service) |
| CASE NO: | PSA/2024/60 |
| PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
| DELIVERED ON: | 24 October 2025 |
| MEMBER: | Gazenbeek IC |
| HEARD AT: | On the papers |
| ORDER: | Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard |
| CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where appellant seeks to be appointed to a higher classification position at a higher paypoint – where respondent raises two jurisdictional objections to appeal against decision to appoint appellant at the first paypoint of the classification level – consideration of cl 12.2(g) of the General Employees (Queensland Government Departments) and Other Employees Award - State 2015 – consideration of whether a decision about paypoint level prior to engagement is distinct from a decision about classification level of employment – where the appeal is against a decision about the classification level of employment – where the appeal relates to the recruitment or selection of a public sector employee – where appeal is misconceived – where decision cannot be appealed |
| LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 451, 562A Public Sector Act 2022 (Qld) ss 43, 44, 129, 131, 132 General Employees (Queensland Government Departments) and Other Employees Award – State 2015, cls 3, 12 Appeals (Directive 04/23), cls 9, 17 Recruitment and Selective (Directive 07/23), cl 4, 7, 8, 13 |
| CASES: | Parmar v State of Queensland (Queensland Health) [2023] QIRC 150 Parmar v State of Queensland (Queensland Health) [2024] ICQ 014 |
Reasons for Decision
Introduction
Mr John Quick (‘the Appellant’) has been employed by the Queensland Police Service (‘the Respondent’) since 13 November 2000, when he commenced as an AO2 Armoury Administration Officer. In recognition of his prior service with the Australian Army, the Appellant commenced this position at the top paypoint of the AO2 classification, namely AO2(8).[1]
[1] As clarified in the parties’ further submissions, the Appellant did not originally commence at this top paypoint in November 2000, but later received backpay as if he had commenced at this paypoint.
In July 2018, the Respondent created two new OPOT4 Weapons Maintenance Officer positions at the Armoury. Upon the Appellant’s request, and in recognition of his experience and length of service in the incumbent AO2 position, the Appellant was promoted to one of the new OPOT4 positions at the top paypoint within that classification level, OPOT4(4).
On 12 September 2022, the Respondent reclassified the OPOT4 position held by the Appellant to a higher OPOT5 classification.
On 4 April 2023, the Appellant requested that he be directly appointed to the OPOT5 position and commence in that higher classification level at paypoint 5, in light of his skills, knowledge and abilities.[2]
[2] Email from Mr D. Goldman (Director, Industrial Policy, Together Queensland, Industrial Union of Employees) to Superintendent D. Harland, dated 4 April 2023 (Attachment 1 to Appeal Notice, filed 28 March 2024, 1).
In correspondence dated 12 June 2023, the Appellant was advised by Superintendent Garrath Channells (Operational Equipment and Capability Management, Organisational Capability Command) of his decision to directly appoint the Appellant to the higher classification level of OPOT5 position at paypoint 1.
On 2 March 2024, following several attempts at locally escalating and resolving this matter, the Appellant’s union representative sent correspondence to the Respondent (extracted below) in respect of the 12 June 2023 decision to directly appoint the Appellant to the higher classification level on paypoint 1:
This correspondence is to provide a final opportunity for the Service to resolve this issue without the assistance of the industrial commission and a likely arbitration of the issue.
What we are seeking is for the Service to provide to Mr Quick with a written decision including appropriately detailed written reasons which include sufficient detail for him to be able to understand the decision and if it is not in his favour, why it has gone against him and to set out his rights to lodge a public sector appeal or a dispute if he is aggrieved by it. If the decisionmaker requires more information from Mr Quick, then please advise ASAP.
We seek for the Service to provide to the Union, by 5pm the coming Friday (8 March), a written commitment that this decision and reasons will be provided to Mr Quick by 5pm on 22 March.
If this commitment is not received by the Union by 8 March, the Union intends to lodge an industrial dispute in the Queensland Industrial Relations Commission on Monday 11 March 2024.
…
Mr Quick formally sought to be direct appointed to the role and a higher starting increment on 4 April 2023 through his Union (see attached). Mr Quick provided a summary of his skills, knowledge and abilities including relevant experience and qualifications and addressed the considerations in the Recruitment and Selection Directive and the position description.
On 12 June, 2 months later Mr Quick received a decision which provided he be direct appointed to the role but start at pay point 1. The decision contained no reasons or information about the decision or Mr Qicks review or appeal rights.
Mr Quick requested information through his chain of command about any appeal or review rights and received a response that advice was being sought from HR. That was approximately 8 months ago.
I emailed Gary among others on 10 August 2023, 18 August 2023 and received no response.
On 30 August Mr Quick was advised to contact Chief Superintendent Ray Rohweder. I notified the Chief Superintendent of Mr Quick's intention to seek an internal review or to lodge a dispute and advised that the primary issue was a lack of written reasons. The Chief Super offered to discuss the disputed matter with me, however, has been unable to do so due to waiting for advice from the IR team since November 2023.
I have since emailed several times seeking a way forward on this matter and have had no substantive response.
…
Mr Quick has been provided with a decision with no reasons. This is, on its face, unfair and unreasonable and a breach of the employer's obligations. The Service has conceded this on transcript in the Industrial Commission in a related dispute about Comms Room and Policelink requests under the same award provision. The wording of the decision is almost identical to the ones in that dispute which were conceded to be deficient …
In response to the request for sufficiently detailed written reasons for the decision of the Respondent, Mr Gary Patterson (Director, Employee Relations) issued the following correspondence to the Appellant on 8 March 2024:
I refer to the decision to upgrade your substantive position of Weapons Maintenance Officer from the 004 to 005 classification and your request that consideration of the level of your skills, knowledge and abilities be factors for determining your pay point on promotion via direct appointment in accordance with Clause 12.2 (g) of the General Employees (Queensland Government Departments) and Other Employees Award - State 2015 (The Award).
…
Employee Relations have reviewed your request in accordance with 12.2 (g) and have taken into consideration the following:
• your previous employment with the ADF prior to commencement with the QPS as an Administrative Officer AO2 classification on 13 November 2000
• your service history and experience at the 004 classification as from 28 August 2018
• your promotion via direct appointment to the 005 classification as from 9 June 2023
• your higher duties history in accordance section 16 of the Higher Duties Directive 04/20
• your reference to completion of relevant weapons maintenance training courses and training courses
• the supporting email from SSGT Scott Raven of 26 October 2022
• the position description of the Weapons Maintenance Officer position
As outlined in 12.2 (g), prior to engagement, the offering of a paypoint, other than pay point one of the classification level may be made at the discretion of the employer. In addition, clause 12.9(c) outlines that subject to 12.2 (g), as an employee being promoted via direct appointment to a position at a higher classification level within the same stream, unless the employer exercises discretion, you shall be employed at paypoint one of that higher classification level.
Following consideration of your request under 12.2 (g), I advise the following:
• Your service undertaken with the ADF was considered at the time of commencement with the OPS at the AO2 classification on 13 November 2000 resulting in commencement at AO2 level 8. Service with the ADF prior to 2000 does not justify additional pay points following promotion via direct appointment in 2023.
• Your service at the 004 level has been taken into consideration in the decision to promote you via direct appointment to the 005 classification level however service undertaken at the 004 level does not justify additional paypoints on appointment to a higher classification following promotion to the higher 005 level.
• Your reference to completed training courses, whilst acknowledged, does not provide sufficient justification to approve additional pay points.
• the supporting email from SSGT Raven, whilst acknowledged, does not provide sufficient justification to approve additional pay points.
Accordingly, I am unable to support your request for appointment to 005 paypoint 4 and I have made a recommendation to the Director Human Resources as the delegate to confirm that you are approved to commence on paypoint 1 of the higher 005 classification level following your promotion on 9 June 2023 via direct appointment.
It is the decision conveyed in this correspondence of 8 March 2024, reiterating and providing sufficient written reasons for the initial decision of 12 June 2023, against which the Appellant now appeals.[3]
[3] Appeal Notice, filed 28 March 2024.
Proceedings before the Commission
On 9 April 2024, the Commission issued a Directions Order requiring the parties to file written submissions in relation to the substantive appeal. In accordance with these directions, the submissions were filed by the Respondent on 3 May 2024, and by the Appellant on 29 May 2024.
On 3 June 2024, the Appellant sought leave to file an addendum to its submissions of
29 May 2024, after having obtained additional material not available to the Appellant at the time of its initial submissions. A Further Directions Order issued by the Commission on 4 June 2024 accepted the Appellant’s addendum submissions of 3 June 2024 for filing, and granted the Respondent leave to file submissions in reply.
Submissions in reply were accordingly filed by the Respondent on 13 June 2024, in which the Respondent raised two jurisdictional objections to the appeal, as follows:
31. As a model litigant we are obliged to advise the Commission there is a jurisdictional argument to make in relation to this matter. The following section of the Public Sector Act 2022 (PS Act) Section 132(l)(f) states:
Decisions against which appeals cannot be made
(1)A person can not appeal against any of the following decisions –
…
(f) A decision about the classification level of employment, unless the decision is declared under a directive to be a decision against which an appeal may be made; ...
32. Clause 3 of the General Employees (Queensland Government Departments) and Other Employees Award -State 2015 (the Award) provides for a definition of 'classification level' as follows:
Classification level comprises a minimum salary rate plus a number of increments in a particular stream through which employees will be eligible to progress.
33. It is therefore evident the current appeal is against a decision about the classification level of appointment, which is statutorily barred unless a directive expressly authorises the appeal.
34. Neither the Recruitment and Selection Directive 07/23 nor the Appeals Directive 04/23 declare that an appeal can be made about the classification level of employment.
35. Relevantly, Clause 13.3 of the Recruitment and Selection Directive 07/23 provides:
A person may not appeal against a fair treatment decision under section 132(4)(c) of the Act relating to the recruitment or selection of a public sector employee.
And Clause 17.1 of the Appeals Directive 04/23 provides:
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:
...
(c) to a role to which a person is directly appointed to or employed in accordance with the directive relating to recruitment and selection.
36. This correlates with Section 132(4)(c) of the PS Act which provides:
A person can not appeal against a fair treatment decision-
..... (c) relating to the recruitment or selection of a public sector employee.
37. In Parmar v State of Queensland (Queensland Health) [2023] QIRC 150 [40] it was held:
"Section 132(4)(c) does not only prohibit an appeal against the actual decision to select a public sector employee, but it also prohibits an appeal against any decision relating to the recruitment or selection of a public sector employee .... ".
38. It follows then, the direct appointment of the Appellant to the position was their 'selection' and both this and the determination of the relevant classification level and paypoint are decisions 'relating to the recruitment or selection of a public sector employee' and are, therefore, not appealable.
39. The Respondent submits it is open for the Commission to determine this appeal should be jurisdictionally barred under both Section 132(l)(f) and 132(4)(c) of the PS Act.
(emphasis added)
As these jurisdictional objections had not been previously put to the Appellant, the Appellant was granted leave to file written submissions in relation to these jurisdictional objections, by way of a Further Directions Order (No. 2) issued on 24 June 2024.
Having reviewed all filed submissions filed and material before the Commission, I have determined it necessary to first consider the jurisdictional objections raised by the Respondent, before proceeding to consider the substantive appeal. In doing so, I have elected not to summarise the entirety of the parties’ submissions and attachments addressing these objections. Rather, I have extracted the relevant parts of such submissions where necessary, and have referred to the parties’ key positions on pertinent issues throughout my consideration.
Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld), this matter has been determined on the papers.
Legislation and instruments relevant to jurisdictional objections raised
Fair treatment decisions[4] are appealable pursuant to s 131(1)(d) of the Public Sector Act 2022 (Qld) (‘PS Act’). This is subject to s 132 of the PS Act,[5] which relevantly provides:
[4] It is uncontroversial between the parties that the decision appealed against is indeed a fair treatment decision. With reference to the definition of such decisions in s 129 of the PS Act, I have similarly treated the Appellant’s Appeal Notice as being an appeal of a fair treatment decision.
[5] Public Sector Act 2022 (Qld) s 131(3).
132 Decisions against which appeals can not be made
(1) A person can not appeal against any of the following decisions—
…
(f) a decision about the classification level of employment, unless the decision is declared under a directive to be a decision against which an appeal may be made;
…
(l) a non-appealable appointment.
…
(4) A person can not appeal against a fair treatment decision—
…
(c) relating to the recruitment or selection of a public sector employee;
…
(5) In this section –
non-appealable appointment means 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.
The industrial instrument agreed between the parties to be applicable to the Appellant’s employment, the General Employees (Queensland Government Departments) and Other Employees Award – State 2015 (‘Award’), provides the following relevant definitions:[6]
[6] General Employees (Queensland Government Departments) and Other Employees Award – State 2015, cl 3.
3. Definitions and interpretation
Unless the context otherwise requires, in this Award:
…
classification level comprises a minimum salary rate plus a range of increments in a particular stream through which employees will be eligible to progress
…
increment means for all employees an increase in salary from one paypoint to the next highest paypoint within a classification level
…
paypoint means the specific rate of remuneration payable to employees within a classification level
Further, the Award relevantly provides the following:
12. Classifications and minimum salary levels
12.1 Classification structure
Employees covered by this Award are to be classified into one of seven streams as follows:
…
(b) Operational stream
The Operational stream comprises those roles, the duties of which apply to various functional areas, the incumbents of which are required to possess a range of skills appropriate to this stream.
…
12.2 Allocation to stream and classification levels
(a)Subject to clause 12.1(a)(ii) allocation of employees to the Administrative or Operational streams and to classification levels within those streams shall be in accordance with the generic level statements contained in Schedules 1 and 2. These statements reflect the degree of complexity and responsibility of duties, skills and knowledge proceeding from the lowest to the highest classification levels. Their purpose is to provide an indication as to the classification level appropriate to any packaging of duties.
(b)An employee employed pursuant to s 149 of the Public Sector Act 2022 shall have their previous service as a public service employee counted for the purpose of determining their commencing paypoint and calculation of their salary increment, provided that the employee is reemployed within 12 months of cessation of employment and the employee's previous employment was terminated other than by way of disciplinary action.
(c)Allocation of employees engaged by Public Safety Business Agency within the Aircrew stream shall be in accordance with the generic level statements contained in Schedule 3.
(d)Allocation of employees engaged by Agriculture within the Forestry stream to classification levels within that stream shall be in accordance with the generic level statements contained in Schedule 4.
(e)Allocation of employees within the Hospitality stream to classification levels within that stream shall be in accordance with the generic level statements contained in Schedule 5.
(f)Where a new position is created and its allocation cannot be determined the matter may be discussed with the relevant employee/s and, where requested, their representative, and/or referred to the Commission for resolution.
(g)Notwithstanding anything contained elsewhere in this Award, prior to engagement, an applicant who is employed in a position may, at the discretion of the relevant employer, be offered and employed at any paypoint within a level based on recognition of skills, knowledge and abilities.
…
12.9 Movement between classification levels - other than Aircrew, Hospitality, South Bank and Rabbit Board streams
(a)Except as provided below and in Schedule 4 of this Award, movement between classification levels will be based on employment on merit to vacancies.
(b)Annual increments will continue to apply in accordance with the relevant provisions of clause 12.11 to employees moving between classification level 1 and classification level 2 of the Administrative stream.
(c)Subject to clause 12.2(g) an employee promoted to a position at a higher classification level within the same stream shall be employed at paypoint one of that higher classification level.
…
12.11Movement within classification levels (increments) – Administrative Aircrew and Operational Streams
Movement within classification levels is to be based on meeting the following requirements:
(a)Except in the case of an employee who is paid the prescribed basic salary on attaining the age of 21 years or in the case of a promotion, or transfer and promotion, from one classification level to another, an increase is not to be made to the salary of any employee until:
(i)In the case of a full-time or a part-time employee: the employee has received a salary at a particular classification and paypoint for a period of 12 months.
(ii)In the case of a casual employee with 12 months' continuous service with the same employer:
(A)the employee has received a salary at a particular classification and paypoint for a period of at least 12 months; and
(B)the employee has worked 1,200 ordinary hours in such classification.
…
(b)Notwithstanding anything contained elsewhere in this Award, an employee is not entitled to move to the next salary increment level by virtue of the Award unless:
(i) In the case of employees:
(A) in levels 1 and 2 of the Administrative stream; and
(B) in levels 1, 2 and 3 of the Operational stream,
The conduct, diligence and efficiency of the employee has been certified by the chief executive to have been and to be satisfactory.
(ii)In the case of employees in all other classification levels, performance objectives have been achieved as certified by the chief executive.
(emphasis added)
The Recruitment and selection (Directive 07/23) (‘Recruitment Directive’) outlines the way in which recruitment and selection in public sector entities must be carried out, and relevantly provides the following:
4.6 Section 44 of the Act requires that recruitment and selection processes must be undertaken in accordance with the following three principles:
(a) recruitment and selection processes must be directed to the selection of the eligible person best suited to the position
(b) recruitment and selection processes must be fair and transparent
(c) recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.
…
8.4 Recruitment and selection processes must be undertaken in accordance with the principles underpinning recruitment and selection, as provided for in section 44 of the Act and clause 4.6, including where advertising is limited, or a person is directly appointed under clause 8.16.
Clause 8.16 of the Recruitment Directive allows for a chief executive to decide to directly employ a person without advertising a vacancy, with clauses 8.17 and 8.18 further stipulating that:
8.17 In determining whether to exercise their discretion under clause 8.16, a chief executive must consider:
(a) their obligations under the Act, including:
(i) maximising employment security and permanency of employment, consistent with the main purpose of the Act and how the main purpose is primarily achieved (section 3 and 4)
(ii) the effective, efficient and appropriate management of public resources (section 177 – for chief executives of departments)
(iii) adherence to the public sector principles (section 39)
(iv) the attraction of a diverse workforce (section 24)
(v) the duty to promote equity and diversity in relation to employment matters (section 27)
(vi) adherence to the principles underpinning recruitment and selection (section 44)
(b) whether a similar vacancy was advertised previously
(c) whether the position classification or nature (for example, fixed-term temporary to permanent) has changed, including as part of a progression scheme, or where a position classification is upgraded, and the decision maker determines that the incumbent has demonstrated that they can perform the duties to the required standard or level
(d) the implications of any workplace change, including whether exemption from or limited advertising will prevent the displacement of existing permanent public sector employee/s
(e) whether the incumbent has been seconded to or has been acting in the position for a period of 12 months or more, but is unable to be converted to that position permanently under the relevant directive, for example because they are not substantively employed in the public sector entity
(f) the impact, if any, on the achievement of the entity’s service delivery outcomes.
8.18 A chief executive must document the reasons for exercising discretion under clause 8.17, the factors considered in making the decision, and how the decision is consistent with the principles underpinning recruitment and selection under section 44 of the Act.
The Recruitment Directive also outlines the following in respect of appeals:
13.1 A person may appeal against a promotion decision under section 131(1)(e) of the Act and in accordance with the relevant provisions of the directive relating to appeals.
13.2 An appeal may not be made against a directive decision under section 131(1)(b) of the Act where it is in relation to a decision:
(a) to fill a vacancy as an identified role, the process for assessment and the decision about whether the mandatory attribute is held or not held
(b) about recruitment and selection, unless it is a decision not to:
(i) employ an employee requiring placement because they are assessed as unsuitable
(ii) employ a public service employee because of their disciplinary history.
13.3 A person may not appeal against a fair treatment decision under section 132(4)(c) of the Act relating to the recruitment or selection of a public sector employee.
The Appeals (Directive 04/23) (‘Appeals Directive’) provides information on the appeal rights of public sector employees under the PS Act, and is also of relevance to the present appeal. In respect of fair treatment decisions, it provides that:
9.1 Section 131(1)(d) of the Act provides that a fair treatment decision may be appealed.
9.2 Section 129 of the Act provides for the definition of fair treatment decision.
9.3 Who may appeal a fair treatment decision under section 133 of the Act:
(a) a public sector employee aggrieved by the decision.
9.4 Further to clause 9.3, a public sector employee must first comply with their entity’s procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless:
(a) the fair treatment decision was made by the chief executive of that entity, or
(b) where the fair treatment decision relates to a finding under section 91 of the Act that a disciplinary ground exists for the person.
9.5 Despite clause 9.4, section 562A(1)(b) of the IR Act provides that the QIRC may decide it will only hear an appeal against a fair treatment decision if the QIRC is satisfied that it would not be unreasonable to require the appellant to comply with the procedures set out in clause 9.4.
9.6 Decisions that cannot be appealed as a fair treatment decision under section 132 of the Act:
(a) a decision made under chapter 3, part 8, division 5 of the Act (mental or physical incapacity)
(b) a decision made under chapter 3, part 8, division 3 of the Act (disciplinary action), other than a finding under section 91 that a disciplinary ground exists for the person
(c) a decision relating to the recruitment and selection of a public sector employee
…
(emphasis added)
Clause 17 of the Appeals Directive stipulates the following:
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 on jurisdictional objections
Appellant’s submissions on jurisdictional objections
In response to the Respondent’s first jurisdictional objection regarding s 132(1)(f) of the PS Act, the Appellant relevantly submitted that:
·the PS Act prevents a person from appealing a decision about the classification level of employment;
·the decision about the classification level of employment in relation to the Appellant’s position, “is the decision that the position be classified at the OPOT5 (OO5) classification rather than staying at the OO4 classification level or being reclassified to the OO6 classification level”, which was made long before the Appellant’s paypoint request was made;
·the paypoint request is a separate decision, as the Award’s definitions and structure suggest in separately defining ‘classification level’, ‘increment’ and ‘paypoint’;
·a decision to employ a person at a higher paypoint under clause 12.1(g) of the Award does not impact or decide the classification level of the employment;
·the inclusion of ‘reduction of classification level and a consequential change of duties’ and ‘forfeiture or deferment of a renumeration increment or increase’ as different disciplinary actions under s 92(1) of the PS Act further supports that these are separate and distinct matters;
·the decision subject of this appeal did not decide or impact, and is therefore not about, the classification level of the Appellant’s position, but rather is about the paypoint within that level; and
·the fair treatment decision is not excluded by section 132(1)(f) of the PS Act, and can therefore be appealed.
In respect of the second jurisdictional objection raised by the Respondent concerning
s 132(4)(c) of the PS Act, the Appellant relevantly submitted that:
·the contention that the decision about paypoint under 12.2 of the Award, is a decision relating to recruitment and selection is also misconceived;
·the Respondent’s submissions are not consistent with anyone involved in this process having ever considered the decision now appealed against to be a recruitment decision;
·the decision appealed against is about the paypoint to which the Appellant, already recruited and selected for the position, is to be employed at; and
·the decision of Industrial Commissioner Power cited by the Respondent in support of their objection, Parmar v State of Queensland (Queensland Health) (‘Parmar’), is not apposite to the current appeal.[7]
[7] [2023] QIRC 150.
Respondent’s submissions in reply
Further to their submission that Mr Quick’s appeal is one “against a decision about the classification level of appointment” and thus “statutorily barred unless a directive expressly authorises the appeal”,[8] the Respondent refers to clause 3 of the Award. That clause provides a definition of ‘classification level’ as “compris[ing] a minimum salary rate plus a range of increments in a particular stream through which employees will be eligible to progress”, and further defines ‘increment’ as meaning “for all employees an increase in salary from one paypoint to the next highest paypoint within a classification level”.
[8] Submissions of the Respondent, filed 13 June 2024, [33].
The Respondent submits, in light of those definitions and when put into context, that:[9]
[9] Submissions of the Respondent, filed 1 August 2024, [4].
… the terminology ‘increment’ is the verb used when an employee moves within a classification level from one pay-point to the next highest pay-point. The terms ‘classification level’, ‘increment’ and ‘pay-point’ cannot be separated; they are inextricably linked. Given these definitions, the Respondent submits the subsequent definitions noted by the Applicant are irrelevant to the present consideration. The disciplinary considerations under Section 91 of the Public Sector Act 2022 (the Act) are also irrelevant, as the ‘classification level’ must include ‘incrementing through pay-point’s’ by its very definition. Further, the Respondent respectfully submits the ‘pay-point request’ is not a separate decision, as given the above definitions, the discretion under Clause 12.2(e) of the Award to offer employment at any pay-point within a classification level is inherently a decision about the classification level of employment. The Respondent also submits the authority to appoint the applicant at the higher pay-point under both the Award, and the Recruitment and Selection Directive 07/23 (the Directive) is founded by the direct appointment of the Applicant to the position, and as such, it is not a separate decision.
(emphasis added)
The Respondent further submits that the Appellant’s argument that the paypoint decision is distinct from any decision about classification level is fundamentally flawed, stating:
Clause 12.2(e) of the Award upon which the Applicant relies provides the following:
“(e) Notwithstanding anything contained elsewhere in the Award, prior to engagement, an applicant who is employed in a position may, at the discretion of the relevant employer, be offered and employed at any paypoint within a level based on recognition of skills, knowledge and abilities”.
A plain reading of this provision reveals the ability to offer employment at a particular pay-point is inherently contingent upon the Applicant being engaged and employed in the position. The Act in s132(4)(c) then provides:
“(4) A person cannot appeal against a fair treatment decision-
……(c) relating to the recruitment or selection of a public sector employee”
It is clear from the wording of this provision there is a jurisdictional bar from bringing both proceedings about the actual decision to recruit or select a public sector employee, and also proceedings ‘relating to the recruitment or selection of a public sector employee’.
The Respondent additionally submits that Parmar is “authority for the fact (already obvious from the wording of the provision itself) that an appeal is jurisdictionally barred if it relates to the recruitment or selection of a public sector employee, and the bar is not just for the actual decision to select the public sector employee.” Accordingly, it is contended that a decision of which paypoint to appoint an employee at is inherently a decision related to recruitment or selection of an employee.[10]
Consideration of jurisdictional objections
[10] Submissions of the Respondent, filed 1 August 2024, [8].
Is the decision appealed against one about the classification level of employment?
As acknowledged by both parties, s 132(1)(f) of the PS Act, the Recruitment Directive, and the Appeals Directive prevent a decision about the classification level of employment from being appealed. However, there is significant disagreement between the parties as to whether the 8 March 2024 decision was indeed a decision within the meaning of
s 132(1)(f).
One instance of contention arises from the Appellant’s submission that the decision of
8 March 2024 was not about the Appellant’s classification level, but about the Appellant’s paypoint within that classification level. The Appellant submits that drawing this distinction is necessary, with reference to the Award’s separate definitions for ‘classification level’ and ‘paypoint’, because “the decision about the classification level of employment in relation to the Appellant's position, is the decision that the position is to be classified at the OPOT5 (005) classification level rather than staying at the 004 classification level or being reclassified to the 006 classification level”. The Appellant submits that the decision to classify the position accordingly was a decision made long before the Appellant’s paypoint request, and thus must viewed as distinct decisions.
This submission is erroneous in its failure to distinguish the Respondent’s decision to reclassify the Weapons Maintenance Officer position from the OPOT4 level to the OPOT5 level, from the Respondent’s later decision to employ the Appellant at a higher classification level by directly appointing the Appellant to the reclassified OPOT5 position. Section 132(1)(f) of the PS Act is not concerned with how the Respondent has decided to describe or classify a position prior to an employee being appointed to such a position; any such decision would be better characterised as a role evaluation undertaken for the purpose of determining the work value and applicable classification level and/or remuneration under, e.g., clause 7.10 of the Recruitment Directive. Rather, s 132(1)(f) is specifically directed towards decisions about how an employee’s employment has been classified, i.e., what classification level they are employed at.
The Appellant further submits that a decision under cl 12.2(g) of the Award to employ a person at a higher paypoint is not a decision about the classification level of employment. Essentially, the Appellant distinguishes between movement within a classification level, and movement between classification levels. In doing so, the Appellant submits the decision appealed against was concerned only with the Appellant’s request to move to a higher paypoint within a classification level it had already been determined they would be appointed to, and thus it was not a decision about the classification level at which the Appellant was employed.
I am persuaded by the Respondent’s submission in this regard that “when put into context, the terminology ‘increment’ is the verb used when an employee moves within a classification level from one pay-point to the next highest pay-point”, and thus “the terms ‘classification level’, ‘increment’ and ‘pay-point’ cannot be separated; they are inextricably linked.”[11] However, the true difficulty in the Appellant’s submission is that the circumstances in which an employee can move between classification levels, and within a classification level, under the Award are limited.
[11] Submissions of the Respondent, filed 1 August 2025, [4].
The general position of the Award is that movement between classification levels will be based on employment on merit to vacancies.[12] Clause 12.9(c) of the Award then provides that an employee promoted to a position at a higher classification level within the same stream shall be employed at paypoint one of that higher classification level, subject to clause 12.2(g). This captures the Appellant’s circumstances, given he was an existing employee appointed to a higher classification level position within the same Operational stream. Unless clause 12.2(g) applies, the Award clearly stipulates that, in such circumstances, the Appellant is to begin at paypoint one upon his appointment to the OPOT5 position.
[12] General Employees (Queensland Government Departments) and Other Employees Award – State 2015, cl 12.9(a).
Clause 12.2(g) of the Award provides that “prior to engagement, an applicant who is employed in a position may, at the discretion of the relevant employer, be offered and employed at any paypoint within a level based on recognition of skills, knowledge and abilities.” An employer’s ability to employ a person at a higher paypoint under clause 12.2(g) is therefore contingent on the employer having concurrently decided to offer that person employment at a certain classification level.
Movement within a classification level (i.e., between increments) in the Operational stream after their engagement at the classification level, is addressed by clause 12.11 of the Award. That clause stipulates that the salary of a full-time or part-time employee employed in level 4 or above of the Operational stream (such as the Appellant) will not be increased until that employee has received a salary at a particular classification and paypoint for a period of 12 months,[13] and where the chief executive has certified that the employee has achieved their performance objectives.[14] The Award otherwise provides no other mechanism for an employee’s movement within a classification level, reflective of an apparent intention to allow for a structured pathway for employees to increase their earnings over time within their classification level.
[13] Ibid, cl 12.11(a)(i).
[14] Ibid, cl 12.11(b)(ii).
The decision appealed against is plainly not one in which the Respondent is considering whether the Appellant, having received a salary at the same classification and paypoint for a period of 12 months, is eligible to receive a salary increase under clause 12.9(c). Rather, the Respondent’s decision (as originally communicated on 12 June 2023, written reasons for which were provided on 8 March 2024) was one determining the Appellant’s application for, in their representative’s own words, “appointment to the reclassified position at any pay point within the classification.”[15] A decision to appoint an employee to a position at a classification level is part and parcel of any decision regarding that employee’s paypoint within that classification level.
[15] Email of Mr D. Goldman (Director, Industrial Policy, Together Queensland, Industrial Union of Employees) to Superintendent D. Harland, dated 4 April 2023 (Annexure 1 to Appeal Notice, filed on 28 March 2024, 1).
While ‘classification level’ and ‘paypoint’ may well be separately defined by the Award, they are terms that are often inextricably linked, as they are in a decision made under cl 12.2(g) of the Award. A decision regarding an employee’s request to be employed at a higher paypoint is made within the context of a decision to appoint that employee to a classification level. Further, the Appellant has not identified any provision in the Award to the contrary that would allow the employer to consider a request made under clause 12.2(g) in circumstances where the Appellant’s request for appointment to the higher classification level was not simultaneously being considered.
Is the decision appealed against a fair treatment decision relating to the recruitment or selection of a public sector employee?
Even if I am incorrect in concluding that a decision under cl 12.2(g) inherently involves a decision about the classification level of the Appellant’s employment such that it is jurisdictionally barred, I consider that the appeal of the 8 March 2024 decision is an appeal of a fair treatment decision relating to the recruitment or selection of the Appellant within the meaning of s 132(4)(c) of the PS Act.
The Respondent submits in relation to this second jurisdictional objection that the direct appointment of the Appellant to the higher classification level position, and the determination of their paypoint upon that appointment, amounts to a fair treatment decision relating to the recruitment or selection of a public sector employee, and is thus not included within the appellate processes under the PS Act. In support of this submission, the Respondent cites the observation of Industrial Commissioner Power in Parmar that an appeal is jurisdictionally barred not just if it is against the actual decision to select a public sector employee, but also if the decision relates to the recruitment or selection of a public sector employee. I agree with the Respondent’s submission that, although the decision in Parmar addressed different circumstances to that of the Appellant, this finding remains relevant to the present appeal.
In Parmar v State of Queensland (Queensland Health), her Honour, Deputy President Hartigan considered (and ultimately dismissed) an appeal of the decision in Parmar, and outlined the following in relation to interpreting s 132(4)(c) of the PS Act:[16]
[16] [2024] ICQ 014 [67]-[87].
[67] Mr Parmar’s appeal of the ESU decision is an appeal of a fair treatment decision. Section 132(4)(c) provides that a person cannot appeal against a fair treatment decision “relating to the recruitment and selection of a public service employee.”
[68] Whether the ESU decision was a decision “relating to the recruitment or selection of a public sector employee” will require consideration of the phrase “relating to”.
[69] I accept the Respondent’s submissions that the words “relating to” have a wide import.
[70] In Oceanic Life Ltd v Chief Cmr of Stamp Duties it was held that:
The width of the phrase “relating to” is undoubted. Lord Macnaghten stated that ‘[t]here is no expression more general or far reaching” … The difficulties of construction presented by such language have also been noted. Taylor J observed that “… the expression ‘relating to’ … is … vague and indefinite …” and “… leaves unspecified the plane upon which the relationship is [to be] sought and identified” … One area of debate has been whether, in particular legislation, a relationship need or need not be “direct” or “direct and immediate” … Overall, the position judicially adopted has been that the operation of the phrase “relating to” is determined by the statutory context and purpose…”
[71] Accordingly, the construction given to the phrase “relating to” will be determined by the statutory context and purpose.
[72] In this matter, the words “relating to the recruitment or selection of a public sector employee” appear in the context of s 132 of the PS Act. The purpose of s 132 of the PS Act is to identify a decision against which an appeal cannot be made.
[73] Specifically, s 132(4)(c) of the PS Act provides that a person can not appeal a fair treatment decision relating to the recruitment and selection of a public sector employee.
[74] In the context of the PS Act, this would include a decision relating to the recruitment and selection process set out in Chapter 3, Part 3 of the PS Act.
…
[83] On this appeal, Mr Parmar continues to contend that the ESU decision is an unfair decision as the decision to “not investigate the recruitment and selection process based on the selection report prepared by the committee, is not fair treatment to the appellant, as per s 44(3)(b) of the PS Act, recruitment and selection processes must be fair and transparent; and s 44(3)(c) of the PS Act, recruitment and selection processes must reflect the obligations under chapter 2 to relating to equity, diversity, respect and inclusion.“
[84] It is apparent that Mr Parmar contends that the recruitment and selection process did not accord with the PS Act including the principles referred to in s 44(3)(c) and the matters that may be considered in the process as set out in s 45(2)(b) of the PS Act.
[85] As relevantly noted by the Commission, the “practical reality is that the grievance to the ESU solely related to the appointment of a candidate to the relevant position, which is a decision about the recruitment and selection of a public sector employee”, and further that “[t]o consider this appeal would require an assessment of the Appellant’s claims regarding the process of selecting the successful candidate.“
[86] It is apparent on the terms of the concerns raised by Mr Parmar and the ESU’s subsequent decision that they each related to the recruitment and selection of a public sector employee.
[87] Consequently, Mr Parmar seeks to appeal a decision relating to the recruitment and selection of a public sector employee.
(emphasis added)
It is uncontroversial that the Respondent promoted the Appellant to the OPOT5 position at paypoint 1 via direct appointment. Part 3 of the PS Act, concerning recruitment and selection, applies to the “employment of an eligible person in or to a public sector entity”.[17] Section 46 of the PS Act allows for the public service commissioner to make a directive about recruitment and selection under Part 3 that stipulates, e.g., the way in which recruitment or selection processes in public sector entities must be carried out. The resulting directive, the Recruitment Directive, relevantly provides at cl 8.16 that a chief executive may decide to directly employ a person without advertising a vacancy, a discretion exercised when it was decided to directly appoint the Appellant to the higher classification position at paypoint 1.
[17] Public Sector Act 2022 s 43.
Even if I was willing to accept the Appellant’s submission that no decision about the Appellant’s classification level of employment was made in the decision appealed against, I regardless consider that a decision about the Appellant’s starting salary upon their direct appointment to and commencement in the OPOT5 position, is one that directly relates to their selection for promotion to (and thus, employment in) the OPOT5 position. By appealing the Respondent’s decision to directly appoint the Appellant to the higher classification position at the first paypoint of that level, the Appellant is essentially seeking to contest the terms of employment (namely, the remuneration) offered by the Respondent to the successful applicant deemed to be best suited for selection to the OPOT5 position.
Is the decision against a non-appealable appointment?
While not raised by either party in their submissions, I further note that s 132(1)(l) of the PS Act provides that a person cannot appeal a decision of a non-appealable appointment. Section 132(5)(b) provides that a non-appealable appointment includes an appointment or employment that the public service commissioner has declared by directive to be an appointment or employment against which an appeal may not be made.
In consideration of s 132(5) of the PS Act, cl 17.1 of the Appeals Directive declares that an appeal may not be made against appointment or employment to a role “which a person is directly appointed to or employed in accordance with the directive relating to recruitment and selection”.[18] Where, as found above, the decision appealed against is one to directly appoint the Appellant to the OPOT5 position at the first paypoint, I find that the decision is one that falls within the meaning of ‘non-appealable appointment’, and thus cannot be appealed.
[18] Appeals (Directive 04/23) cl 17.1(c).
Conclusion
In light of the jurisdictional objections raised by the Respondent, I provided the Appellant the opportunity to make submissions in support of their appeal, and the Respondent the opportunity to file submissions in support of their objections raised.[19] Having carefully considered these submissions in their entirety, I am satisfied that the decision appealed against is a decision about the classification level of employment within the meaning of s 132(1)(f) of the PS Act, and alternatively is a fair treatment decision relating to the recruitment or selection of the Appellant within the meaning of s 132(4)(c) of the PS Act.
[19] Industrial Relations Act 2016 (Qld) s 562A(3)(b).
On the basis that I consider both s 132(1)(f) and s 132(4)(c) of the PS Act to be insurmountable jurisdictional obstacles for the Appellant, I have determined that the appeal will not be heard, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld).
I order accordingly.
Order
Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard
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