QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Qalivutu v State of Queensland (Department of Housing and Public Works) [2020] QIRC 229
	
PARTIES:	
	Qalivutu, Jodie 
(Appellant)

v

State of Queensland (Department of Housing and Public Works)
(Respondent)
	
CASE NO:
	PSA/2020/278
	
PROCEEDING:
	Public Service Appeal – Conversion Decision
	
DELIVERED ON:
	23 December 2020	
MEMBER:

HEARD AT:	Hartigan IC

On the papers
	
OUTCOME: 	1.	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 
	
LEGISLATION:	Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2, 6, cl 7, cl 11

Acts Interpretation Act 1954 (Qld), s 27B 

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Public Service Act 2008 (Qld), s 197, s 149C, s 295

Public Service and Other Legislation Amendment Bill 2020 (Qld)
	
CASES:	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)

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

Reasons for Decision

[1]	Ms Jodie Qalivutu 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 Qalivutu commenced this appeal, she was acting in the position of Program Officer (AO4) within Grants Development with the Department of Housing and Public Works ("the Department"). Ms Qalivutu commenced this position on 9 July 2018. 

[3]	Ms Qalivutu is permanently employed by the Department as a Funding Officer (AO3) within Grants Systems and Administration Unit, Business and Operational Support, Sport and Recreation. 

[4]	By notice of appeal filed on 27 November 2020, Ms Qalivutu, pursuant to ch 7 of the Public Service Act 2008 ("the PS Act"), appealed against a decision dated 20 October 2020 determining that Ms Qalivutu's engagement is to continue according to the terms of her existing temporary placement ("the decision").  

[5]	Ms Qalivutu appeals the decision on the grounds that: 

(a)	the current organisational structure identifies that the position has a permanent vacancy and Ms Qalivutu has been engaged in the role of AO4 Program Office since 8 July 2018;   

(b)	the new organisational structure provides that the AO4 position Ms Qalivutu has applied to be converted to sits in an AO5 position and has not been abolished; and 

(c)	the decision should have had regard to the current structure of the organisation rather than a proposed new structure which has not yet been implemented. 

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

[7]	Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, 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. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. 

[8]	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. An appeal under Ch. 7, Pt. 1, of the PS Act is not by way of rehearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.

[9]	For the reasons contained herein, I have found that the decision was fair and reasonable

Decision 

[10]	The decision was included in a written notice provided by the Department. Relevantly, the decision stated that: 

The Assistant Director-General has given consideration to your request and notes the following: 

•	You are substantively employed in the role of AO3, Funding Officer within Grants Systems and Administration Unit, Grants, and since 9 July 2018 you have been continuously performing the duties of AO4, Program Officer within Grants Development. 

•	The purpose of your placement in the role of AO4, Program Officer within Grants Development is to fill a vacancy within Grants Development. 

•	You have been engaged in the position of AO4, Program Officer within Grants Development for 26 months. 

•	Your engagement in the position of AO4, Program Officer within Grants Development is due to expire on 31 December 2020. 

•	On 3 March 2020 the Director-General approved the realignment of Sport and Recreation's structure. This included the abolition of nine substantively vacant positions and the creation of seven required positions. One of the substantively vacant positions approved for abolition is the AO4, Program Officer role you are performing on higher duties. 

•	You were included in the extensive consolation that occurred in Sport and Recreation about the realignment. 

•	The realigned structure will be implemented in the coming months. 

Higher classification conversion decision 

After considering your request to be permanently employed in the position of AO4, Program Officer within Grants Development and the circumstances of your high duties placement in that role, the Assistant Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reasons for the Assistant Director-General's decision are: 

•	The purpose of your current higher duties arrangement is to perform the duties of a position that the Director-General has determined will be abolished in the near future. 

•	On the abolishment of the role, there will no longer be a continuing need for you to be engaged in the position of Program Officer within Grants Development. 

  
Relevant provisions of the PS Act and the Directive 13/20

[11]	Section 149C of the PS Act 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.

[12]	The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of consideration of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203. Merrell DP relevantly stated: 

[37] 	The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must 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 same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38] 	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. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

•	managing the department in a way that promotes the effective, efficient and appropriate management of public resources;

•	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 PS Act. 

(Citations omitted) 

[13]	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. 

[14]	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.

[15]	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.

[16]	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. 

[17]	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. In summary, s 295(3) of the PS Act provides that for 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). 

Was the decision fair and reasonable? 

Genuine operational requirements

[18]	As noted above, s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 provide that, when deciding a request, the chief executive must have regard to the genuine operational requirements of the department. 

[19]	It has been held, that the phrase, when construed in context, would at least include: 

[40] 	…whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

[20]	It is accepted that Ms Qalivutu has been continuously performing higher duties for the period between 9 July 2018 and 14 October 2020. The Department submits that the purpose of her most recent appointment was to fill a vacancy in a position. However, the Department submits that the position is no longer required in accordance with an approved organisational change. 

[21]	Whether the position is ongoing is a relevant consideration for a decision that is to be made pursuant to s 149C(4A). 

[22]	The Department submitted that on 3 March 2020 the Director-General approved the realignment of Sport and Recreation. It was submitted that as part of the realignment, the Director-General decided that nine substantive vacant positions in the current Sport and Recreation structure will be abolished and seven required positions will be created. Relevantly, one of the positions approved to be abolished is the AO4, Program Officer position within Grants Development, which is the position the Ms Qalivutu was performing higher duties in at the time she submitted her request for the conversion of her employment. 

[23]	Ms Qalivutu submits that the restructure of the Sports and Recreation division has not yet occurred and any assessment in relation to the conversion of her employment to permanent should be made at the time of the review having regard to the structure in place at that time. 

[24]	This submission, in my view, does not have regard to the matters that the Department must be mindful of in making a decision, pursuant to s 149C of the PS Act and Directive 13/20. The abolition of the relevant position was a relevant matter for the Department to consider, in terms of its obligation to manage the Department in a way that promoted the effective, efficient and appropriate management of public resources. 

[25]	It was accepted by the Department, that the restructure, although having been approved on 3 March 2020, had not yet been implemented. The explanation provided for this was that delays had arisen out of the response to the current public health pandemic. 

[26]	The Department submitted that the restructure was due to be implemented in early 2021. 

[27]	It was further submitted by Ms Qalivutu, that the AO4 Project Officer role was not being abolished but rather reclassified to an AO5 position under the new structure. 

[28]	In response, the Department submitted that the AO4 Project Officer position has been approved to be abolished and not reclassified. 

[29]	The Department accepted that whilst the attachment to Ms Qalivutu's submissions indicates that the new AO5 position has the same position number as Ms Qalivutu's current higher duties position (AO4), the Department submits that the attachment simply demonstrates how the available full time equivalent from the positions that have approved to be abolished will be utilised in the new structure. It does not demonstrate that the position will not be abolished. 

[30]	Further, it is submitted that s 149C(3) of the PS Act, relevantly provides that an employee may only ask the Department's chief executive to appoint the employee to the position at the higher classification level. 

[31]	Putting aside the Department's submissions that the position is intended to be abolished in any event, I accept the Department's submission that a request can only be made by an employee in relation to the position at the higher classification level that the employee has been acting up in. On Ms Qalivutu's submission, it is acknowledged that the position that she is currently will not remain at the current classification level but that it will be reclassified to an AO5 position. Accordingly, Ms Qalivutu can only make a request for appointment to the specific position she is performing at the time that she makes the request. 

[32]	For these reasons, I consider that the decision was fair and reasonable.  

Previous reasons for acting at a higher classification level

[33]	Section 149C(4A)(b) of the PSA and clause 6.2 of Directive 13/20 provide that the Department's chief executive in making a decision about a relevant request for an employee to be appointed to the position at the higher classification level, must have regard to the reasons for each decision previously made, or taken to have been made, under s 149C of the PS Act in relation to the person during the person's continuous period at the higher classification level. 

[34]	The decision identified that Ms Qalivutu had been, since 9 July 2018, continuously performing the duties of AO4, Program Officer within Grants Development and that Ms Qalivutu's engagement in the position of AO4, Program Officer within Grants Development has been extended 12 times. However, given that s 149C of the PS Act commenced operation on 14 September 2020, no previous decisions could have been made pursuant to s 149C of the PS Act that had any relevant application to Ms Qalivutu's request. 

[35]	For this additional reason, the decision was fair and reasonable. 

Compliance with requirements of s 149C(5) of the PS Act

[36]	Ms Qalivutu does not complain that the decision does not comply with the requirements of s 149C(5) of the PS Act. Relevantly that provision provides, as follows: 
	
(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.

[37]	Clause 7.1 of Directive 13/20 provides that decision made to refuse a request pursuant to s 149C(5) of the PS Act must comply with the requirements of s 27B of the Acts Interpretation Act 1954 (Qld). I am satisfied that the Department, in issuing the decision by written notice, has complied with its obligations with respect to s 149C(5) of the PS Act. 

Conclusion 

[38]	The question in this appeal was whether the decision to refuse to appoint Ms Qalivutu to the position at the higher classification level was fair and reasonable. 

[39]	For the reasons given, the decision was fair and reasonable. 

Order

[40]	I make the following order: 

1.	Pursuant to s 562C(1)(a) of the IR Act, the decision appealed against is confirmed.