QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	Purvis v State of Queensland (Department of Housing and Public Works) [2021] QIRC 040

Purvis, Anthony
(Appellant)

v

State of Queensland (Department of Housing and Public Works) 
(Respondent)
	
CASE NO:
	PSA/2020/315
	
PROCEEDING:
	Public Service Appeal – Appointment to Higher Classification Level
	
DELIVERED ON:
	4 February 2021	
MEMBER:

HEARD AT:
	McLennan IC

On the papers	
  ORDERS:	1.	That the appeal is allowed.

2.	Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with another decision to permanently appoint Mr Anthony Purvis to the AO6 Senior Advisor position in the Department.	

CATCHWORDS:

LEGISLATION AND DIRECTIVES:

CASES:
	
INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed under s 149C of the Public Service Act 2008 – where the outcome of the review was that the appellant was not permanently appointed –consideration of ‘particular project’ –consideration of ‘unexpected short-term increase in workload’ - consideration of the scope of a review under s 149C – consideration of ‘genuine operational requirement’.

Acts Interpretation Act 1954 (Qld) s 14A

Directive 13/20 Appointing a public service employee to a higher classification level cl 1, 3, 4, 5, 6

Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C

Public Service Act 2008 (Qld) s 120, s 149, s 149A, s 149B, s 149C, s 194, s 196, s 197

Statutory Instruments Act 1992 (Qld) s 7, s 14

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252
	
Reasons for Decision

Introduction

[1]	Mr Anthony Purvis (the Appellant) has filed an appeal against a conversion decision (the decision) contained in correspondence from the Assistant Director-General, Corporate Services for the State of Queensland (the decision maker), (formerly named) Department of Housing and Public Works (the Respondent, the Department, DHPW).  

[2]	Mr Purvis is currently substantively employed in the role of AO4 Human Resource Consultant within Human Resources with the Department. 

[3]	However, he has been continuously performing the duties of AO6 Senior Adviser WHS within Human Resources with the Department (the AO6 position) since 8 October 2018.

[4]	The Department has described the purpose of his placement in the AO6 position as to:

•	Implement the Housing employee support program;
•	Provide project support to the WHS and ER teams due to an unexpected short-term 
	increase in workload.

[5]	At the time Mr Purvis requested permanent conversion, he had been engaged in the AO6 position for 24 months.

The Decision

[6]	The terms of the decision were contained in correspondence from the decision maker dated 22 October 2020 (the decision letter).  

[7]	Mr Purvis stated that he received the correspondence the following day, 23 October 2020.  This is not disputed by the Department.
 
[8]	The decision subject of this appeal is the Department’s determination not to permanently convert Mr Purvis’s employment to the higher classification level – that is, to the AO6 position currently held.  

Jurisdiction

Decision against which an appeal may be made

[9]	Section 194 of the Public Service Act 2008 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e)(iii) of the PS Act provides that an appeal may be made against a decision “…under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years.”  

[10]	Section 197 of the PS Act allows for an appeal to be heard and decided by the IRC.  An appeal is initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.

[11]	Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal.  Mr Purvis meets that requirement.

[12]	I am satisfied that the conversion decision made by the Department is able to be appealed.

Timeframe for appeal

[13]	Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.  

[14]	The decision was given to Mr Purvis on 23 October 2020.  

[15]	The Notice of Appeal was filed with the Industrial Registry on 13 November 2020.  

[16]	I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

[17]	Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". 

[18]	The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.  

[19]	Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.

[20]	The issue for my determination is whether the decision not to convert Mr Purvis’s employment status to the higher classification level was fair and reasonable in the circumstances.

	What decisions can the IRC Member make?

[21]	Section 562C of the IR Act prescribes that the Commission may determine to either:

a)	Confirm the decision appealed against; or
b)	Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
c)	Set the decision aside and substitute another decision.

Submissions

[22]	In accordance with the Directions Order issued on 13 November 2020, the Department filed written submissions.  Mr Purvis has filed written submissions in reply. 

[23]	Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

The decision dated 22 October 2020 (subject to this appeal) 

[24]	The decision maker conveyed the following reasons for not permanently converting Mr Purvis to the higher classification level:

The reasons for the Assistant Director-General’s decision are as follows: 

•	The purpose of your current engagement was to undertake a project that has now concluded and to perform work in WHS and ER necessary to meet an unexpected short-term increase in workload
•	At the end of December 2020 there will no longer be the continuing need for this position. 

Appeal Notice

[25]	Mr Purvis set out why he believes the decision was unfair and unreasonable in the Appeal Notice filed on 13 November 2020. Those reasons are summarised as follows:

a)	Eligibility for Review:  

Mr Purvis is a public service officer continuously performing the duties of a higher classification level position (the AO6 position) within the Department since 8 October 2018 – a period of 24 months at the time his conversion request was made.

b)	Merit:

Mr Purvis is not subject to any performance concerns.  

	c)	Work performed in the AO6 position:

Since 8 October 2018, Mr Purvis has continuously performed the duties of the AO6 position within the Department.

Initially, Mr Purvis worked on the implementation of an employee support and resilience program in the Housing and Homelessness Service (HHS) division of the Department.  His involvement in the program concluded around May 2020.

Mr Purvis stated that during the time he was undertaking this project work, and after May 2020, he was also required to support the WHS team with tasks such as case management, advice provision, employee support coordination, policy and procedure work).

Since September 2020, Mr Purvis stated that he has been supporting the Employee Relations (ER) team.

	d)	Contract extensions:

From 8 October 2018 until 8 October 2020, Mr Purvis’s placement in the AO6 position had been extended on five occasions.  “These extensions have not been explicitly aligned with my stints working in the WHS and ER teams (e.g. in July 2020, while working in the WHS team and following cessation of my role responsibility to support the employee support & resilience program, my placement in the AO6 role was extended to October 2020).”

At the time Mr Purvis made his conversion request, his current contract in the AO6 position was due to conclude on 31 December 2020.  Whilst the decision letter reasoned that the request was refused because Mr Purvis’s placement in the AO6 position was to fulfil a short term need that would not be continuing beyond the end of his current contract, that was not in fact the case.  Mr Purvis’s contract was subsequently again extended until 1 March 2021.  This sixth contract extension is to continue to support the ER team.

	d)	Genuine operational requirements: PS Act s 149C(4A)(a)

The decision maker has not paid proper regard to the genuine operational requirements of the Department.

Mr Purvis submitted that there is a continuing need to perform the duties he is currently undertaking in the AO6 position (case management, advice provision, employee support coordination and policy and procedure work).  

It is not an unexpected short term increase in workload, under cl 4.2(d) of the Directive.  He stated:

Notwithstanding the project work to implement an employee support & resilience program within HHS, the work I have performed, and continue to perform, across the WHS and ER teams has been consistent in nature and workload and varied in scope, and accordingly objectively would not be considered as project work or a short-term increase in workload.

Since the decision letter, Mr Purvis’s contract was again extended in the AO6 position until 1 March 2021.  This rather contradicts the Department’s assertion that there is no continuing need for the position after 31 December 2020 – and instead supports Mr Purvis’s claim that “…there is an ongoing need for the position to be filled, in accordance with the genuine operational requirements of the department.”

Respondent submissions

[26]	The Department’s submissions, filed 27 November 2020, can be summarised as follows:

a)	Eligibility for Review:  

	The department concurs that Mr Purvis is eligible for review.

b)	Merit: 

	The Department agrees that there are no performance concerns.

	c)	Work performed in the AO6 position:

The Department stated that the purpose of Mr Purvis’s temporary placement in the AO6 position includes the following:

Between 8 October 2018 and May 2020, to implement an employee resilience program.

Between May 2020 and August 2020, to support the Department’s COVID-19 response.

Since September 2020, to assist with addressing the high workload within the Employee Relations team in Human Resources.  

	d)	Contract extensions:

	It is agreed that Mr Purvis’s current contract in the AO6 position was due to conclude on 31 December 2020.  The Department submitted that his temporary placement in the AO6 position was recently again extended until 1 March 2021, in light of the high workload in the ER team.  

This is Mr Purvis’s sixth contract extension in the AO6 position.

e)	Background:

	On 8 October 2020, Mr Purvis emailed his request to be permanently appointed to the AO6 position.  

	By correspondence provided on 23 October 2020, Mr Purvis was advised that his conversion request was declined for reasons reproduced at paragraph [24] above.

f)	Genuine operational requirements: PS Act, s 149C, (4A) and Directive, cl 6.2

		The Department submits that Mr Purvis’s placement in the AO6 position was to implement an employee resilience program, provide temporary support to the WHS team, and to provide support to the ER team “to assist with the management of a short term increase in workload.”

	Cl 4.2 of the Directive describes the circumstances that would support temporary engagement at a higher classification level includes “to perform work for a particular project or purpose that has a known end date” and “to perform work necessary to meet an unexpected short-term increase in workload.”  The Department asserts that although the particular project Mr Purvis was engaged in did not have an end date, his involvement with it had nonetheless concluded.  He then assisted the WHS team with their COVID response, also now concluded.  Mr Purvis now supports the ER team “…to assist with the management of a high workload (that) is temporary nature and uncertain as to its duration.  As such, the department cannot guarantee that there will be a continuing need for the Appellant to be placed in the AO6, Senior Advisor position.”

	“Notwithstanding the Appellant’s recent extension in the AO6 Senior Advisor role until March 2021, the department submits that the purpose of this engagement continues to be temporary in nature to manage a short-term increase in workload.”  

	“…clause 4.2 of the directive 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.”

	The Department submits that it does not have a genuine operational need to permanently employ Mr Purvis in the AO6 position.  Nor is it appropriate or viable to do so, in circumstances where their skills are only temporarily required.

	There is no dispute between the parties that Mr Purvis has performed these tasks while engaged in the position (that is, the same AO6 position).

g)	Reasons for decision previously made: PS Act, s 149C, (4A) and Directive cl 6.2

	No previous decisions about Mr Purvis have been made by the chief executive or delegate.

h)	Written notice:

	A written notice was provided to Mr Purvis advising of the decision not to convert him to the AO6 position stating: the reasons for the decision, total continuous period employed at the higher classification level, and how many times his engagement at the higher classification level had been extended.  

	The written notice did not “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” as no such decisions have been made by the chief executive or delegate.

	The Department asserts that the delegate has complied with s 149C of the PS Act and Directive in making the decision to refuse the conversion request.

i)	Outcome:

	The Department states that the decision to refuse Mr Purvis’s conversion request is fair and reasonable.  Further, that the decision was made in accordance with s 149C of the PS Act and the Directive.

Appellant’s submissions in reply

[27]	In response to the Department’s written materials above, Mr Purvis’s reply submissions filed 4 December 2020 can be summarised as follows:

a)	Continuing need:

	Mr Purvis agreed that his primary involvement in the employee resilience program concluded around May 2020; but asserted that his work with the WHS team and their COVID-19 response commenced in March 2020.  

	Mr Purvis stated that “…the concurrent nature of this work, and lack of clearly defined engagements, is supportive of a continuing requirement for me to be placed in the AO6, Senior Advisor position, both at that time and ongoing.”  He argued that the continuing need is further supported by “…the timing of my extensions in the position have not been aligned with the specific tasks I have been required to perform in the position…”

	It was suggested Notable case 91/19 can be applied to this matter:

		Genuine operational reasons for not converting an employee can exist where there is a short-term ongoing need for a temporary employee in a role.  This needs to be considered on the particular facts and be supported by clear evidence of changing longer term circumstances related to the particular role.  For example, if the role is required for a finite period and plans are in place for staff reductions after that time.

	Mr Purvis submitted that the decision maker did not provide the material findings of fact and evidence as required by s 27B of the AIA “…nor has demonstrated reliance on any evidence of changing longer term circumstances related to the position of AO6, Senior Advisor that I currently occupy… the work I have performed, and continue to perform, across the WHS and ER teams has been consistent in nature and workload and varied in scope, and accordingly objectively would not be considered as a short-term need or short-term increase in workload.”

	Mr Purvis stated that “…my recent temporary extension in the position, in conjunction with the department’s admission of the high workload in the Employee Relations team, reinforces an objective assessment that the work I perform in the position of AO6, Senior Advisor is not to address a short-term increase in workload.”

	Further, Mr Purvis argued that the Department’s failure to guarantee a continuing need is an insufficient basis to conclude that there is not a continuing, ongoing need for the AO6 position he currently occupies.

b)	Substantive vacancy

	Mr Purvis believed a determining factor in the Department’s decision to refuse his conversion request is that the AO6 position he currently occupies is a temporary position – not a permanent, funded position.  He acknowledges that is not argued by the Department.  He stated “…the intent of the directive is to operate in such a manner that it is not whether a position is a permanent, funded position or not, but rather if there is a continuing, ongoing need for someone to continue performing the work that the employee has been performing in that position.”

	It was suggested Notable case 174/18 can be applied to this matter:

		External funding does not automatically mean a role is not ongoing.  Where the nature of the role and the operational context means that the duties would need to continue irrespective of the source of the funding, it is likely to be considered that the state would fund the role on an ongoing basis.

	Mr Purvis argued that there is such continuing, ongoing need for him to remain in the AO6 position - and that the nature of duties performed and the lack of capacity for other employees to absorb these duties reflects the operational context.

The review of a decision as to whether or not to permanently appoint a public service employee acting in a position at a higher classification level 

[28]	The legislative scheme for the review of a decision to convert an employee to a higher classification level, in the above circumstances, is contained in the IR Act, PS Act and in the Directive 13/20 Appointing a public service employee to a higher classification level (the Directive).

[29]	Section 149C of the PS Act provides (Emphasis added): 

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.

[30]	Further, section 194(1)(e)(iii) of the PS Act provides (Emphasis added): 

194	Decisions against which appeals may be made

(1)	An appeal may be made against the following decisions—

(e)	a decision (each a conversion decision)—

(iii)	under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;

[31]	It is noted that Directive came into effect on 25 September 2020.  

[32]	The Directive relevantly provides:

	3.	Application

	3.4		The requirement to advertise roles in the directive relating to recruitment and selection does not apply to the appointment of an employee to a higher classification level under this directive. However, if an agency is seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C of the PS Act, the appointment must comply with the recruitment and selection directive. 

	4.	Principles

	4.1		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. 

	4.2	Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: 

		(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
		(c)	to perform work for a particular project or purpose that has a known end date
		(d)	to perform work necessary to meet an unexpected short-term increase in workload

	4.3	Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

	5.	Employee may request to be appointed at the higher classification level

	5.1	Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.

	5.2	To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:

		(a)	have been seconded to or assuming the duties and responsibilities of the higher classification level
		(b)	for a continuous period of at least one year
		(c)	be eligible for appointment to the higher classification level having regard to the merit principle.

	5.3	Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:

		(a)	one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
		(b)	each subsequent year where the employee continues their engagement at the higher classification level in the same role.

	5.4	An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.

	5.5	The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.

	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.

	8.	Appeals 

	8.1	An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level. 

	8.2	In accordance with section 195(1)(j) of the PS Act, an employee does not have a right of appeal in relation to a decision not to permanently appoint the employee to the higher classification level in response to an application made under clause 149C(3)(a), that is if the employee has been seconded to or acting at the higher classification level for less than two years. 

	9.	Exemption from advertising

	9.1	Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently appointing an employee under this directive.  

	10.	Transitional provisions

	10.1	Section 295 of the PS Act sets out the transitional arrangements for employees seconded to or assuming the duties and responsibilities of a higher classification level who may now be eligible to request appointment at the higher classification level as a general employee on tenure or a public service officer. 

	11.	Definitions

		Agency has the meaning provided in clause 3.3 of this directive.

Chief executive, in the context of exercising a decision making power, includes a person to whom the chief executive has delegated the decision making power.

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.

Non-industrial instrument employee has the meaning given under the Industrial Relations Act 2016.

Public service agency means a department or public service office as provided for in section 49A of the PS Act.

		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.

[33]	The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld). 

[34]	Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.

[35]	The stated purpose of the Directive is:

1.	Purpose 

	1.1		The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.

	1.2	This directive: 

		(a)	highlights key sections in the PS Act dealing with appointing a public service employee assuming the duties and responsibilities of a position at a higher classification level
		(b)	supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle
		(c)	sets out procedures for requests and decisions.

Consideration

[36]	I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable.  

[37]	This involves a review of the decision-making process utilised and the conversion decision arrived at.  

Eligibility for review of conversion

[38]	Section 149C(1) and (3) of the PS Act provides that an employee is eligible to request permanent appointment at the higher classification level after the end of one year.  This is restated at clause 4.1 of the Directive. 

[39]	It is not a point of dispute between the parties that Mr Purvis is eligible to request conversion to the higher classification level.

Purpose 

[40]	In deciding this appeal, I note the significance of the legislative provisions identified and explained above.

[41]	In summary, the Directive’s status as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of the Directive is to be preferred to any other interpretation.

[42]	In that regard, I recognise that one of the stated purposes of the Directive is to support “…the opportunity to appoint an employee to a higher classification level where that employee has performed the role for one year and is eligible for appointment having regard to the merit principle.”

Decision criteria that must be considered 

[43]	The PS Act and the Directive provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:

a)	Whether the employee is eligible for appointment to the position at the higher classification level having regard to the merit principle.

b)	The genuine operational requirements of the department.  

c)	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.

[44]	Further, in the event that the higher classification conversion request is refused, the chief executive must give the employee a notice stating:

a)	The 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.

The notice provided to the employee must:

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.

	Merit 

[45]	There is no dispute between the parties with respect to Mr Purvis’s merit.  This is confirmed in the filed materials. 

What is ‘the position’ subject of this appeal?

[46]	Before assessing whether there are any genuine operational requirements of the department that may prevent the conversion request, the question of the actual position that is subject of this appeal must be settled.

[47]	The PS Act at s 149C, in concert with the Directive, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy at the time of requesting the review. 

[48]	The PS Act, at s 149C(1)(c), provides that s 149 applies to a public service employee if they are eligible for appointment to the position. Further, s 149C(3) provides that the employee may ask to be appointed to the position at the higher classification level. The power afforded to the department to permanently appoint Mr Purvis is confined to the position into which he is performing at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term ‘the position’ is inherently more specific than ‘higher classification level’; many positions could be described as being of a higher classification level. 

[49]	In this particular case, there is no dispute between the parties that Mr Purvis has been continually performing various duties in the position (that is, the same AO6 Senior Advisor position within the same Department) since 8 October 2018.

‘Genuine operational requirements’ of the Department 

[50]	Deputy President Merrell considered ‘genuine operational requirements’ in Morison.  His Honour’s explanation is also useful here: (My emphasis)

[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; 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 PS Act.

[39]	In respect of the Directive, cl 4.2 provides that secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate.  That clause goes on to provide that circumstances that would support the temporary engagement of an employee at a higher classification level include:

•	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; or

•	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.

[40]	The phrase ‘genuine operational requirements of the department’ in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include 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.’

[51]	The foundational dispute between the parties is whether or not the Department’s determination that there were genuine operational requirements that prevented Mr Purvis’s permanent conversion to the position was fair and reasonable in the circumstances.  

[52]	For the reasons that follow, I find that the Department’s decision was not fair and reasonable. 

[53]	The decision letter provided:

	The reasons for the Assistant Director-General’s decision are as follows: 

•	The purpose of your current engagement was to undertake a project that has now concluded and to perform work in WHS and ER necessary to meet an unexpected short-term increase in workload
•	At the end of December 2020 there will no longer be the continuing need for this position. 

[54]	The Directive provides some circumstances which would support the temporary engagement of an employee at a higher classification level. Those include backfilling for sick leave, specific project work, and the like. (My emphasis).

	4.2	Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: 

		(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
		(c)	to perform work for a particular project or purpose that has a known end date
		(d)	to perform work necessary to meet an unexpected short-term increase in workload

[55]	The Department submitted that Mr Purvis’s engagement in higher duties falls within the confines of cl 4.2(c) and (d) of the Directive, which relates to work on a particular project and work necessary to meet an unexpected short-term increase in workload.  

[56]	However, despite the precise words used in the decision letter, I note that the particular project that was the catalyst for Mr Purvis to commence duties at the higher classification level both did not have a known end date and is apparently still ongoing.  The Department’s qualification was that Mr Purvis’s involvement with the project had nonetheless concluded.  Presumably then, while the ‘project’ may not have had a known end date, the ‘purpose’ of Mr Purvis’s work on it did – although it is not clear whether or not that end date was known at the time of his initial engagement in the position.

[57]	With respect to cl 4.2(d), there is no dispute between the parties that the workload has increased.  However, their positions differ as to whether or not the increase in workload is short-term or continuing.  

[58]	The decision letter stated that Mr Purvis was also temporarily employed at the higher classification level “…to perform work in WHS and ER necessary to meet an unexpected short-term increase in workload” and that “At the end of December 2020 there will no longer be the continuing need for this position”.  Yet subsequent to Mr Purvis filing his appeal, the Department once again extended him in the position, until 1 March 2021.  This sixth extension was due to “…the high workload in the Employee Relations team…”  The Department explained that “…the Appellant’s placement in the Employee Relations team to assist with the management of a high workload is temporary in nature and uncertain as to its duration.  As such, the department cannot guarantee that there will be a continuing need for the Appellant to be placed in to AO6, Senior Advisor position.”  Mr Purvis has observed that the Department is not required to ‘guarantee’ continuing work.  He contended that is too high a test - and one that is not required by these legislative provisions.  

[59]	In my view, the consideration of any genuine operational requirements would necessarily include the question of whether or not the accepted increase in workload is short-term in nature.  The Department has not provided evidence of any findings of fact to support the contention that the work currently performed by Mr Purvis is ‘short-term’.  

[60]	Mr Purvis stated that the various extensions were not linked to the completion of any particular phase of work tasks or project, as his duties were varied in scope and performed concurrently.  It was argued that further strengthened his claim that the nature of his work duties was continuing, rather than short-term.

[61]	Mr Purvis describes his current work tasks as:

This work includes, but is not limited to, case management, advice provision, employee support coordination and policy and procedure work.

The Department describes Mr Purvis’s current work tasks as: 

Since September 2020, to assist with addressing a high workload within the Employee Relations team in Human Resources.  To date, this has included:

-	managing discipline cases
-	providing complex employee relations advice to other staff within Human Resources
-	assisting with the implementation within the department of recent PSA amendments
-	managing independent medical matters
-	assisting with the implementation of certified agreements
-	managing public service appeals.

Clearly, that work has a broad scope.

[62]	While the submissions have understandably focused on whether or not the increased workload is short-term or continuing, there is also the matter of whether or not such circumstances could be fairly described as ‘unexpected’.  Certainly, increased workload in the Employee Relations team may well have been predicted, as a result of amendments to the PS Act and new Directive issued in September 2020.  Prior to that, the impact of the COVID-19 health pandemic created increased workload in both WHS and ER spaces from about March 2020 and continues to do so.  While not predicted prior to that, the resultant workload impact was also well understood at the time of the Department’s decision to extend Mr Purvis’ engagement in to the higher classification position, again on a temporary basis. 

The effect of any previous decisions

[63]	The Directive came into effect on 25 September 2020, while s 149C of the PS Act became effective (subject to transitional arrangements) on 14 September 2020. The decision was dated 22 October 2020. 

[64]	S 149C(4)(b) provides that the department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level. 

[65]	An employee is only entitled to make one request for review every 12 months, in accordance with s 149C(3) and cl 5.4 of the Directive. 

[66]	Given the timing of the legislative instruments coming into effect, the date of the decision, and the time restrictions on requesting reviews, there cannot have been any previous decisions made under that section with respect to Mr Purvis. Further, the term ‘taken to have been made’ relates to s 149C(6), which provides that if the department does not make a decision within the requisite review period, they are taken to have refused the request.

Findings

[67]	In brief, I have found that:

•	There is no meaningful causation or correlation between the higher duties extensions and any precise project or purpose engaged by Mr Purvis; 

•	The increase in workload cannot fairly and reasonably be described as ‘unexpected’ in accordance with cl 4.2 of the Directive; 

•	The increase in workload is not fairly and reasonably able to be described as ‘short-term’, with reference to cl 4.2 of the Directive, given the previous extensions both previously and recently, and the nature of the work performed.

[68]	Collectively, those findings lead to the conclusion that it was not fairly and reasonably open to the decision maker to conclude that the genuine operational requirements of the Department supported the higher duties engagement continuing on a temporary basis. Rather, the genuine operational requirements of the Department, particularly those outlined above, support Mr Purvis being permanently appointed to the higher classification position.

Conclusion

[69]	Mr Purvis had been performing the duties of the AO6 Senior Advisor position for two years at the time of making his conversion request.  That placement was initially to complete a project of undefined duration and then to support the WHS and ER teams to manage increased workload.  Mr Purvis has sought, pursuant to s 149C of the PS Act, to be made permanent in that position.

[70]	S 149C of the PS Act applies to an employee seconded to or acting at a higher classification level in the department, for at least 1 year, and who is eligible to be appointed to ‘the position’ at the higher classification level with regard to the merit principle. The employee may ask the department chief executive to appoint them to the position permanently. In determining that review, the department must have regard to the genuine operational requirements of the department and any previous reviews. 

[71]	For the reasons above, I find that the genuine operational requirements of the Department support Mr Purvis being permanently appointed to the higher classification position. The original decision to the contrary was not fair and reasonable. 

[72]	I order accordingly. 
Orders:

1.	That the appeal is allowed.

2.	Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with another decision to permanently appoint Mr Anthony Purvis to the AO6 Senior Advisor position in the Department.