QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Nangit v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 038
	
PARTIES:
	Nangit, Janet 
(Appellant)

v

State of Queensland (Department of Communities, Housing and Digital Economy) 
(Respondent)
	
CASE NO.:
	PSA/2020/293 
	
PROCEEDING:
	Public Service Appeal - Appointment to a higher classification level
	
DELIVERED ON:
	2 February 2021
	
MEMBER:

HEARD AT:	Merrell DP

On the papers
	
DATES OF WRITTEN SUBMISSIONS:	Respondent's written submissions filed on 17 November 2020 and 23 December 2020 and Appellant's written submissions in reply filed on 24 November 2020 and 24 December 2020
	
ORDER: 	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed
	
CATCHWORDS:	INDUSTRIAL LAW - public service appeal - appellant requested respondent's chief executive to appoint appellant to the higher classified position in which the appellant had been acting - appellant not appointed because the position in which the appellant was acting was to backfill an employee who was relieving in an alternative position - consideration of whether that decision was fair and reasonable having regard to the 'genuine operational requirements of the department' within the meaning of s 149C(4A)(a) of the Public Service Act 2008 - construction of s 149C(4A)(a) of the Public Service Act 2008 - whether reasons given by decision maker complied with s 27B of the Acts Interpretation Act 1954 and were otherwise adequate - the decision was fair and reasonable - decision appealed against confirmed 
	
LEGISLATION:	Acts Interpretation Act 1954, s 27B 

Directive 08/17 Temporary Employment, cl 9

Directive 13/20 Appointing a public service employee to a higher classification level, cl 4, cl 6, and cl 7 

Industrial Relations Act 2016, s 451 and s 562C

Public Service Act 2008, s 148 and s 149C
	
CASES:
	Golder v State of Queensland (Department of Housing and Public Works) [2021] QIRC 20 

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

Katae v State of Queensland & Anor [2018] QSC 225

Minister for Aboriginal Affairs & Anor v Peko‑Wallsend Ltd & Ors [1986] HCA 40; (1986) 162 CLR 23 

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

SZTAL v Minister for Immigration [2017] HCA 34; (2017) 262 CLR 362

Thorne v State of Queensland (Department of Housing and Public Works) [2021] QIRC 015	

Reasons for Decision

Introduction

[1]	Ms Janet Nangit is an employee of the State of Queensland in, what is now, the Department of Communities, Housing and Digital Economy. Ms Nangit is currently acting in a position at a higher classification level being that of Senior Housing Officer, classification AO4, position number 30100171, within the Cairns Housing Service Centre ('the position').

[2]	By appeal notice filed on 10 November 2020, Ms Nangit, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision dated 20 October 2020 made by the Deputy Director-General, Housing, Homelessness and Sport ('the DDG') as conveyed by Ms Tully Stewart, Acting Director, Human Resources. That decision was to deny the request made by Ms Nangit to be appointed to the position ('the decision').

[3]	There is no dispute that the decision involved the application of s 149C(4A) of the PS Act and cl 6.2 of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). The Department does not dispute that Ms Nangit can appeal the decision.

[4]	The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.

[5]	The parties exchanged written submissions in accordance with a Directions Order dated 10 November 2020. Pursuant to s 451(1) of the Industrial Relations Act 2016 ('the IR Act'), no hearing was conducted.  Ms Nangit filed submissions on 24 November 2020. Paragraphs 24 to 28 of those submissions dealt with the reasons why Ms Nangit claimed the genuine operational requirements of the Department supported her appointment.  Paragraphs 29 to 31 dealt with whether she could be appointed to a position other than the position in which she had been acting.  I was not satisfied that the Department had a proper opportunity to respond to those submissions.  As a consequence, I issued a Further Directions Order dated 14 December 2020 and gave the Department the opportunity to file and serve further written submissions in response to Ms Nangit's submissions.  The Department filed further submissions on 23 December 2020.  Ms Nangit then filed further submissions in response on 24 December 2020.

[6]	Having regard to the importance of the matter for Ms Nangit and for the Department, I have considered all submissions made by the parties.

[7]	In my view, for the reasons that follow, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.

Background

[8]	Ms Nangit is permanently appointed to the position of Housing Officer, classification AO3, within the Cairns Housing Service Centre ('the CHSC').

[9]	As I understand the Department's submissions, since 3 April 2017:

•	Ms Nangit has acted in the role of Senior Housing Officer, classification AO4, albeit in respect of three different position numbers, to backfill the employees, permanently appointed to those positions, who have been relieving in alternative positions; and

•	Ms Nangit's temporary placement in the positions has been extended on 29 occasions.

[10]	Ms Nangit's present placement is due to expire on 28 March 2021 which coincides with the date the permanently appointed employee to position number 30100171 is to return to that position.

[11]	By email dated 22 September 2020, Ms Nangit submitted a written request, pursuant to s 149C(3) of the PS Act, to be appointed to the position. The Department does not dispute that Ms Nangit was entitled to make that request.

[12]	In the decision, Ms Stewart relevantly stated:

The Deputy Director-General, Housing, Homelessness and Sport (Deputy Director-General) has given consideration to your request and notes the following:

•	You are substantively employed in the role of AO3, Housing Officer within the Cairns HSC, and that since 3 April 2017, you have been continuously performing the duties of AO4 Senior Housing Officer within the Cairns HSC.

•	The purpose of your placement in the role of AO4, Senior Housing Officer within the Cairns HSC is to backfill a substantive employee while the substantive employee is relieving in an alternative position.

•	You have been engaged in the position AO4, Senior Housing Officer within the Cairns HSC for approximately 42 months including authorised absences.

•	Your engagement in the position of AO4, Senior Housing Officer within the Cairns HSC has been extended 29 times.

•	Your current engagement in the position of AO4, Senior Housing Officer within the Cairns HSC is due to expire on 31 January 2021

Higher classification conversion decision

After considering your request to be permanently employed in the position of AO4, Senior Housing Officer within the Cairns HSC, and the circumstances of your temporary placement in that role, the Deputy Director-General has determined that your engagement is to continue according to the terms of your existing temporary placement. The reason for the Deputy Director-General's decision area (sic) as follows: 

•	The purpose of your placement in the role of AO4, Senior Housing Officer within the Cairns HSC is to backfill a substantive employee while the substantive employee is relieving in an alternative position.

•	Should the substantive employee return to the role, there will no longer be a continuing need for you to be engaged in the position of AO4, Senior Housing Officer within the Cairns HSC.

The relevant provisions of the PS Act and the Directive

[13]	Section 149C of the PS Act relevantly 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.
…

(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.
…

(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.

[14]	The Directive relevantly provides:

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.

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.

Ms Nangit's initial submissions about the construction of s 149C(4A) of the PS Act

[15]	Ms Nangit made submissions about the construction of s 149C(4A) of the PS Act that were almost identical to the submissions made the appellant in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison').

[16]	Ms Nangit submitted that:

•	s 149C(4A) of the PS Act requires that in making a decision, the decision maker must have regard to the genuine operational requirements of the Department and the reasons for each decision previously made, or taken to have been made, under s 149C in relation to the person during the person's continuous period of employment at the higher classification level;

•	a decision maker who fails to take mandatory relevant considerations into account has not properly applied the law and such an error makes the decision unfair and unreasonable; and

•	on the authority of Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors, because the factors to be taken into account that 'make up' the genuine operational requirements of a department are not expressly stated (either in the PS Act or in the Directive) those factors should be implied from the subject matter, scope and purpose of the PS Act, being 'the broader context' in which the PS Act and the Directive operate.

[17]	Ms Nangit then referred to statements made in the Explanatory Notes to the Public Service and Other Legislation Amendment Bill 2020 ('the Amendment Bill') which introduced s 149C of the PS Act. Those statements were that in making a decision about an appointment to a position at a higher classification level, a department's chief executive must have regard to the genuine operational requirements of the department and that '… This aligns with the considerations that apply to fixed term temporary and casual conversion provisions.'

[18]	Ms Nangit further submitted that:

•	because of those statements, the considerations that apply to the conversion of temporary employees to permanent status, developed from appeal decisions of the Commission and related decisions of the Supreme Court concerning the PS Act and the now superseded Directive 08/17 Temporary Employment ('the 2017 Directive'), apply in respect of determining whether, under s 149C(4A) of the PS Act, an employee should be appointed to '… the position at a higher classification level' within the meaning of s 149C(1)(c) and s 149C(3) of the PS Act;

•	Katae v State of Queensland & Anor ('Katae') is the Supreme Court authority on the application of those provisions as they appeared in substantially the same form in the 2017 Directive and, notably, for the purposes of her (Ms Nangit's) appeal, it was held in Katae at [35] that the words '… unless there are genuine operational reasons not to do so' from cl 9.7 of the 2017 Directive, must be interpreted together with the criteria outlined in cl 9.6 rather than in isolation;

•	the 2017 Directive had a similar structure to the Directive, being that cl 9.6 contained the mandatory criteria a decision maker should consider in assessing whether to convert an employee and that cl 4.2 of the Directive, under the heading 'Principles,' contained examples of situations that would indicate when temporary employment was appropriate;

•	it was well settled from decisions such as Katae and other unreported decisions of this Commission concerning the 2017 Directive that a conversion should not be denied solely because the role was initially created for a specific project or purpose or that another of the circumstances in cl 4.2 existed;

•	Katae and the Frequently Asked Questions published by the Public Service Commission have affirmed instead that the correct test was a consideration of the cl 9.6 mandatory criteria, and while the cl 4.2 circumstances could inform these, a substantive permanent vacancy was not required; and

•	the same reasoning should be applied with respect to the Directive in that:

•	a decision maker must have regard to the criteria from s 149C(4A) of the PS Act, being the genuine operational requirements of the department;

•	as part of that consideration, a decision maker may consider some of the circumstances that would support only the temporary engagement of an employee as outlined under 'Principles' in cl 4.2 of the Directive; and

•	the fact that a placement may have originally been to perform work for a particular project or purpose that has an expected end date may be consideration as to why a permanent appointment should not be made, however, it is not a threshold question, nor should it be a blanket reason to decline an appointment.

[19]	I reject Ms Nangit's submissions about the construction of s 149C(4A) of the PS Act, that I have summarised in paragraphs [16]-[18] of these reasons, for the same reasons I gave in Morison.

Ms Nangit's other submissions

[20]	Ms Nangit further submitted that:

•	the genuine operational requirements of the Department supported her appointment; and

•	contrary to s 27B of the Acts Interpretation Act 1954, the decision maker did not provide the material findings of fact and evidence relied upon in coming to the decision which also rendered the decision unfair and unreasonable.

[21]	The Department contends that Ms Nangit's submissions about the genuine operational requirements of the Department do not compel the conclusion that the decision was not fair and not reasonable. The Department further contends that the reasons for the decision met the applicable legislative requirements.

Was the decision fair and reasonable having regard to the genuine operational requirements of the Department?

[22]	In her submissions filed on 24 November 2020, Ms Nangit contended that the genuine operational requirements of the Department supported her appointment.

[23]	Ms Nangit submitted that:

•	a consideration of the operational requirements of the Department would include considering decisions that would facilitate the prompt and efficient service delivery by the CHSC in that permanently appointing her to the higher classification role would best serve that consideration;

•	she is an experienced Senior Housing Officer who has in-depth knowledge of her role and she is regularly tasked with training and assisting new staff including supervisors; and

•	the operational requirements of the Department would be served by ensuring it had the additional capability she offers on a permanent basis because:

•	there is a need for additional Senior Housing Officers in the CHSC which arises because the Intake and Assessment Team do not have the staff available to complete the job in a timely manner; and

•	she has recently been involved in negotiating with the Central Processing Team in Brisbane to assist the team in completing almost 200 applications that have been backlogged since the beginning of September.

[24]	In conclusion, Ms Nangit submitted:

27.	In my time in the SHO role I have developed close and effective working relationships with Community Providers, Support Services, and staff from other HSC's, many of whom also contact me for advice outside my area of expertise. I have created documents that have been forwarded to the CPT to assist in the training of staff to complete applications in a similar way to CHSC and have assisted in training Project Officers. These negotiations took place because of my networking and work relationships.

28.	I contend that if the decision maker had considered my request to be permanently appointed to the SHO role in light of the broader operational requirements of the Department, noting what I offer this work unit, then they would have reached a different decision.

[25]	The Department submitted that:

•	because at the time of the assessment of Ms Nangit's conversion request her temporary placement in the position was to backfill the substantive employee of the position, there will no longer be a continuing need for Ms Nangit to be placed in the position once the substantive employee returns to work in the position;

•	it does not have a genuine operational need to permanently employ, on a full‑time basis, two employees in the same position and it is not appropriate or viable for the Department to offer to permanently employ Ms Nangit '… in that role;' and
•	no previous decisions or deemed decisions have been made about Ms Nangit under s 149C of the PS Act.

[26]	In conclusion, the Department submitted:

28.	With respect to the Appellant's submission that the chief executive's delegate erred in failing to give due consideration to the genuine operational requirements of the department and determined not to appoint the Appellant on the basis that the role she has been acting is not substantively vacant, the department reiterates that it does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4, Senior Housing Officer position within the Cairns Housing Service Centre.

29.	Further, the directive is quite clear that temporary circumstances still exist and therefore there is a place, where appropriate, to temporarily engage or place employees at a higher classification level. Relevantly, clause 4.2 of the directive provides that such temporary circumstances include 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.

30.	The department considers that clause 4.2 is relevant for this matter, in that it clearly demonstrates that an employee temporarily placed in a higher classification level position, does not need to be appointed permanently to that higher level role, where their skills are only temporarily required prior to the permanent employee returning to their substantive position.

31. 	The department submits this is the case with respect to the Appellant, and the decision of the chief executive's delegate to refuse the Appellant's request is fair and reasonable.

[27]	Ms Nangit also made submissions about an allegation that the Department regularly changes position numbers of employees without their consultation or knowledge. Ms Nangit submitted:

29.	The SHO positions within the CHSC have different position numbers despite the roles being identical and those employees within them being moved around interchangeably for the past three years. The Department regularly changes the position numbers that we SHO's are sitting against without our consultation or knowledge.

30.	As a result after 3.5 years of my relieving in the SHO role against a number of position numbers in the team a position recently became vacant due to a substantive AO4 SHO being appointed to their higher duties role. That vacancy went to the employee notionally sitting against that position number despite having barely 12 months experience in the role.

31.	In circumstances like this where there are pools of employees working in identical roles and the Department unilaterally changes the position numbers employees sit against, it is not fair to consider only the position the employee sits against based on position number to be the 'position' they can be appointed to for the purposes of s 149C(3) of the Act.

[28]	In its submissions filed on 23 December 2020, the Department submitted that s 149C(3) of the PS Act relevantly provides that an employee may only ask the Department's chief executive officer to appoint the employee to 'the position' at a higher classification level.

[29]	The Department also pointed to cl 4.1 of the Directive which provides that an employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed, can be appointed to 'the position' at the higher classification level as a general employee on tenure or a public service officer following a written request to the Chief Executive.  Consequently, the Department submitted that a requesting employee can only request and be considered for appointment to the specific position the employee is performing at the time they submit the conversion request and that the Department is not required to consider at level positions within the Department when assessing an employee's conversion request.

[30]	In support of this proposition, the Department referred to Holcombe v State of Queensland (Department of Housing and Public Works).

[31]	The Department then submitted:

9.	In the case of the Appellant, the relevant position is the AO4, Senior Housing Officer position (position number 30100171) within the Cairns HSC, being the specific position the Appellant was performing at the time they submitted their conversion request.

10.	Accordingly, the department submits that any considerations regarding the genuine operational requirements of the department as it relates to the Appellant's conversion request, is contained to the AO4, Senior Housing Officer position (position number 30100171) within the Cairns HSC. This is supported by section 195(2) of the PSA, which provides that a person cannot appeal against, or in an appeal, call into question in any way, a decision that decides the resourcing of the public service or a department. The department submits that this reference to 'resourcing' includes decisions regarding the creation or otherwise, of additional positions to appoint of (sic) public service employees to.

11.	To that end, as the Appellant's current temporary placement in the AO4, Senior Housing Officer position (position number 30100171) is to backfill the substantive employee, who is relieving in an alternative position, there will no longer be a continuing need for the Appellant to be placed in the AO4, Senior Housing Officer position, once the substantive employee returns to work in their substantive position.

12.	As the department does not have a genuine operational need to permanently employ, on a full-time basis, two employees in the same AO4, Senior Housing Officer position within the Cairns HSC (i.e. the position being the AO4, Senior Housing Officer position (position number 30100171), and the two employee (sic) being the Appellant and the substantive employee of that position), it is not appropriate or viable for the department to offer to permanently employ the Appellant in that position.

What is the position to which an eligible employee can be appointed under s 149C of the PS Act?

[32]	In her further submissions filed on 24 December 2020, Ms Nangit conceded that an appointment under s 149C of the PS Act can only be made to the position in which an employee is acting at the time the request is made and that the Department is not required to consider appointing an employee to comparable positions at level as such an outcome is not available under either s 149C of the PS Act or under the Directive.

[33]	Such a concession was properly made.

[34]	In SZTAL v Minister for Immigration, Kiefel CJ, Nettle and Gordon JJ stated:

[14]	The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

[35]	Section 149C(1) of the PS Act provides that the section applies in relation to a public service employee if, relevantly, the employee:

•	is acting at a higher classification level in the department in which the employee holds an appointment or is employed; and

•	has been acting at the higher classification level for a continuous period of at least one year; and

•	'… is eligible for appointment to the position at the higher classification level having regard to the merit principle.'

[36]	Section 149C(3) of the PS Act provides that after the end of one year of acting at the higher classification level, 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.'

[37]	The phrase used in s 149C(1)(c) and in s 149C(3), namely '… the position at the higher classification level' is very specific. The purposes of these provisions are, respectively, that:

•	it is the specific position at the higher classification level, in which the employee has been acting, that an assessment of the employee's eligibility for appointment, having regard to the merit principle, must be made; and

•	the request made by an eligible employee is to be appointed, as a general employee on tenure or a public service officer, to the position at the higher classification level in which the employee is acting.

[38]	The views I have expressed about s 149C(1)(c) and s 149C(3) of the PS Act are consistent with decisions made by members of this Commission in other public service appeals.

[39]	If it were otherwise, then the Parliament would have used different words or a different phrase to '… the position at the higher classification level' in s 149C(1)(c) and in s 149C(3) of the PS Act.

What are the genuine operational requirements of the department to which the chief executive must have regard?

[40]	In her further submissions filed on 24 December 2020, Ms Nangit took issue with the Department's submission that any considerations regarding the genuine operational requirements of the Department, as it relates to her conversion request, '… is contained to the AO4, Senior Housing Officer position (position number 30100171) within the Cairns HSC.'

[41]	Ms Nangit submitted that:

•	this assertion by the Department is unsupportable as there is no criteria for or definition of 'genuine operational requirements of the department' in the PS Act or in the Directive;

•	to constrain the consideration of the '… operational requirements of the department' to consideration of the particular position number occupied by the requesting employee would be inconsistent with my decision in Morison about what is meant by that phrase and also amounts to an artificial narrowing on a plain English reading of the term;

•	while she accepts that her position number has changed a number of times over the last three years, what has not changed has been the position in which she has acted and, barring brief periods where she has acted in a position classified AO5, the entirety of her higher classification acting has been in the role of Senior Housing Officer, Intake and Assessment, classification AO4; and

•	even for the periods the Department has submitted she had been acting against a different position number within the CHSC, such as Senior Housing Officer, Tenancy and Property, classification AO4, she continued to perform only the duties and functions of the Intake and Assessment position.

[42]	Ms Nangit concluded by submitting that:

•	the continual shuffling of employees against position numbers is only for administrative and funding convenience and, in contrast to the situation in Holcombe v State of Queensland (Department of Housing and Public Works), the position numbers employees are notionally sitting against have no bearing on the duties that they are performing or the position within the CHSC in which they are acting;

•	accordingly, a '… more holistic consideration of the requirement for AO4 Senior Housing Officers, regardless of position number, across the HSC, a (sic) including workloads, is a genuine operational requirement of the department that a decisionmaker (sic) must have regard to'; and

•	as over the last three years, she has had eight different engagements backfilling four different position numbers and that this is a situation where employment tenure may be viable and appropriate as contemplated in s 148(3) of the PS Act, as her backfilling has been on a frequent and regular basis.

[43]	I cannot accept these submissions having regard to the construction of s 149C(4A) of the PS Act.

[44]	Section 149C(4A) of the PS Act must be read in the context of s 149C as a whole.

[45]	The structure of s 149C of the PS Act is that:

•	s 149C(1) identifies the particular public service employees to whom s 149C applies;

•	s 149C(2) identifies the public service employees to whom s 149C does not apply; and

•	s 149C(3) identifies the circumstances in which a public service employee, to whom s 149C applies, may ask the department's chief executive to appoint the employee to the position at the higher classification level to which the employee is seconded or in which the employee is acting.

[46]	Section 149C(4), read with s 149C(8), sets out the required period in which the department's chief executive must decide the request.

[47]	Importantly, the opening phrase to s 149C(4A) is: 'In making the decision …'.  The 'decision', reading s 149C(4A) in context is, in my view, the decision about the eligible public service employee's request to be appointed to the position at the higher classification level to which the employee is seconded or in respect of which the employee is acting.

[48]	It is in the making of that decision that the department's chief executive must have regard to the genuine operational requirements of the department.

[49]	The reason Ms Nangit is presently acting at the higher classification level in the position (position number 30100171) is that the incumbent of that position is relieving in another position.  However, the incumbent may return from such relieving. For the reasons I gave in Morison, that was a relevant matter for the decision maker to have considered in deciding the request made by Ms Nangit. That is, in having regard to the genuine operational requirements of the Department, it was relevant for the decision maker to consider whether, in terms of managing the Department in a way that promoted the effective, efficient and appropriate management of public resources, Ms Nangit should be appointed to the position when it is possible the incumbent is likely to return to that position.

[50]	Accordingly, in my view, Ms Nangit's submission that a '… holistic consideration of the requirement for AO4 Senior Housing Officers, regardless of position number, across the HSC, including workloads' should be undertaken when having regard to the genuine operational requirements of the Department, is a step too far.

[51]	Section 149C of the PS Act, properly construed, does not require a chief executive to have regard to the genuine operational requirements of the Department which go beyond those in respect of the position at the higher classification level to which the public service employee requests to be appointed.  My view, in this regard, is consistent with other decisions in public service appeal decisions made by members of this Commission.

[52]	No doubt, Ms Nangit is a skilled employee who makes a significant contribution to the CHSC when acting in the position of Senior Housing Officer, classification AO4.  If she did not, it would be unlikely that Ms Nangit would be directed to act in the position.  Certainly, her experience, skill and competence is directly relevant to Ms Nangit's eligibility for appointment to the position, having regard to the merit principle, which is a mandatory requirement for s 149C of the PS Act to apply to Ms Nangit in the first place. However, the question I am required to determine, in reviewing the decision, is whether the decision was fair and reasonable.  The decision was based on the facts that the incumbent of the higher classified position, in which Ms Nangit is acting, may return to that position and that the Department does not require two permanently appointed AO4 Senior Housing Officers upon the incumbent's return.

[53]	The decision, based on those considerations, was fair and reasonable.  The fact that the Department did not appoint Ms Nangit to the position having regard to an alleged lack of permanent staff and the obvious worth Ms Nangit brings to the CHSC, does not negate what was otherwise the fairness and reasonableness of the decision.

[54]	Ms Nangit submitted that after three and a half years of her relieving in the Senior Housing Officer role against a number of position numbers in the team, a position recently became vacant due to the substantive employee being appointed to their higher duties role, but the vacancy went to an employee notionally sitting against the position number despite having barely 12 months experience in the role.

[55]	The fact that such an appointment occurred does not mean that the decision concerning Ms Nangit was not fair and not reasonable.  The relevant enquiry, in Ms Nangit's case, was whether or not, having regard to the genuine operational requirements of the Department, an offer should have been made by the chief executive officer to appoint Ms Nangit to the position in which she had been acting when she made her request.

[56]	Any manipulation by a department, by changing the position number of a position at a higher classification level in which an employee is acting and in respect of which the employee requests to be appointed, so as to avoid appointing the employee may, if proven, result in a determination on appeal that the decision not to appoint the employee to the position was not fair and reasonable.  However, there is no claim or evidence that has occurred in Ms Nangit's case. 

[57]	On the evidence before me, Ms Nangit acted in the position of Senior Housing Officer, classification AO4, position number 30100309, between 16 September 2019 and 31 July 2020. The unchallenged reason given by the Department for that was: 'To temporarily perform the duties of the position while a transfer into the position, involving another employee, was finalised.'  It is reasonable to infer that the transfer occurred because from 1 August 2020, Ms Nangit has acted in the position of Senior Housing Officer, classification AO4, position number 30100171, because the permanent occupant of that position was (and is) acting in an alternative position. It is that position in which Ms Nangit was acting when she made her request.

Was the decision fair and reasonable having regard to the adequacy of the reasons given?

[58]	Ms Nangit submitted that the decision was unfair and unreasonable because the decision maker did not set out the findings of material questions of fact and references to the evidence in the decision maker's assessment of the operational requirements of the Department, the consequence of which was that there was no compliance with s 27B of the Acts interpretation Act 1954.

[59]	The Department relevantly submitted:

32.	Further, the department submits that in advising the Appellant of the decision of the chief executive's delegate, a written notice was provided to the Appellant stating:
•	the reasons for the decision
•	the total continuous period for which the person has been employed at the higher classification level in the department
•	how many times the person's engagement at the higher classification level has been extended.

33.	In relation to the requirement for the written notice to detail the reasons for each decision previously made, or deemed to have been made, under section 149C of the PSA, in relation to the Appellant during their continuous period of employment at the higher classification level, the written notice provided to the Appellant contains no such details as no previous decisions have been made or deemed to have been made about the Appellant by the chief executive or delegate.

[60]	Delegates of chief executives who make decisions under sections such as s 149C(4A) of the PS Act must comply with the requirements of s 27B of the Acts Interpretation Act 1954 and, in my view, should also comply with the principles of the adequacy of reasons of decisions I referred to in Morison.  They must also comply with s 149C(5) of the PS Act where decisions have previously been made in relation to the person under s 149C.

[61]	In the present case, the reasons of the DDG, as conveyed by Ms Stewart, were brief but conformed with s 27B of the Acts Interpretation Act 1954 and the above‑mentioned principles.

Conclusion

[62]	The question in this appeal was whether the decision to refuse to appoint Ms Nangit to the position was fair and reasonable.

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

Order

[64]	I make the following order:

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