Rose v State of Queensland (Department of Housing and Public Works)

[2020] QIRC 217

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Rose v State of Queensland (Department of Housing and Public Works) [2020] QIRC 217

Rose, Deborah Ann
(Appellant)

v

State of Queensland (Department of Housing and Public Works)
(Respondent)

CASE NO:

PSA/2020/292

PROCEEDING:

Public Service Appeal – Appointment to Higher Classification Level

DELIVERED ON:

9 December 2020

MEMBER:

HEARD AT:

Knight IC

On the Papers

  ORDER:

1.     The decision appealed against is confirmed.

CATCHWORDS:

LEGISLATION AND
INSTRUMENTS:

CASES:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where appellant requested appointment to higher classification level under s 149C of the Public Service Act 2008 – where request denied due to genuine operational requirements of the agency – whether the decision was fair and reasonable.  

Acts Interpretation Act 1954  

Directive 13/20 Appointing a public service employee to a higher classification level

Industrial Relations Act 2016

Public Service Act 2008

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199

Reasons for Decision

1. Ms Deborah Ann Rose ('the appellant') appeals a decision not to permanently appoint her to the position in which she has being acting at a higher classification level.

2. Determination of the appeal turns on whether it was fair and reasonable for the Department of Housing and Public Works ('the respondent') to deny permanency as it did on the basis of genuine operational requirements.

   Consideration

3. While the appellant is substantively employed in an AO5 position, she has continuously performed the duties of an A06 position since 30 June 2015 – over five years – and been extended on 22 occasions.

4. The appellant requested to be appointed to the higher classification A06 position by email on 22 September 2020  This was refused by the chief executive's delegate on 20 October 2020, who reasoned:

   ·        The purpose of your current placement in the role of AO6, Senior Program Performance Officer within Asset Management is to backfill a substantive employee, while the substantive employee is relieving in an alternative position.

   ·        On the return of the substantive employee on 30 June 2021, there will no longer be a continuing need for you to be engaged in the position AO6, Senior Program Performance Officer within Asset Management.

5. The Public Service Act 2008 ('the Act') relevantly provides:[1]

   [1] my emphasis.

   149C Appointing public service employee acting in position at higher classification level

   ...

   (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.

6. The phase 'genuine operational requirements' is defined in neither the Act nor the Directive and must, therefore:

   take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.

   ...

   The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.[2]

   [2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, 12 [37]-[38] ('Morison') (footnotes omitted).

7. In considering the context of s 149C(4A)(a) of the Act, it may be noted that the chief executive of a department is responsible for, among other things:

   ·        managing the department in a way that promotes the effective, efficient and appropriate management of public resources;[3] and

   · planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the Act.[4]

   [3] Public Service Act 2008 s 98(1)(b).

   [4] Ibid s 98(1)(d).

8. Directive 13/20: Appointing a public service employee to a higher classification level ('the Directive') sets out circumstances that would support the temporary engagement of an employee at a higher classification level, relevantly:

   (a)     when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return

   (b)     when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles

   ...

1. The nature of the appellant's AO6 placement clearly falls within the contemplation of such circumstances.

2. That the return of the substantive incumbent to the position constitutes a genuine operational requirement militating against permanent appointment has been affirmed by the Commission on several occasions.[5]

   [5] Morison (n 2) 13 [41]; Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, 19 [69] ('Holcombe'); Sharma v State of Queensland (Department of Housing and Public Works) [2020] QIRC 199, 15 [58], 16 [62]-[65].

3. The appellant argues that there is a need for her to be appointed. She attests to the importance of her work and the aptitude of her knowledge and skills. For example, she argues the knowledge and experience she has gained in asset management and 'specifically the SPPO role' has enabled her to develop programs and administer budgets for the respondent. She further contends that her ongoing support is critical to public works. This may well be true. But as McLennan IC has held:

   Clearly, Mrs Holcombe is a valued colleague within her workplace.

   ... However, the authority to determine the review lies squarely with the department chief executive or their delegate. It is not a question of merit or whether there is work to be done. The question is only whether the genuine operational requirements relied upon by the department to deny Mrs Holcombe's request are fair and reasonable.[6]

   [6] Holcombe (n 5) 19 [67]-[68] (my emphasis).

   Adequacy of Reasons

4. It is also argued that respondent did not provide the material findings of fact and evidence relied upon in respect of the operational requirements of the department, as obliged by the Acts Interpretation Act 1954 and the Directive.

5. The decision letter, which is not brief, incorporated a history of the appellant's employment history at higher duties and the number of times the appointment has been extended.  Its reasoning was, in my view, sufficiently elaborate and in conformance with the abovementioned obligations.

   Disposition

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

7. I order accordingly.