QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Langford v State of Queensland (Department of Housing and Public Works) [2021] QIRC 122
	
PARTIES:	
	Langford, Justin
(Appellant)

v

State of Queensland (Department of Housing and Public Works)
(Respondent)
	
CASE NO:
	PSA/2020/387
	
PROCEEDING:
	Public Service Appeal – Appointment to position at higher classification

DELIVERED ON:
	9 April 2021	
MEMBER:
	Industrial Commissioner Dwyer
	
HEARD AT:	On the papers
	
ORDER:
	1.	The decision appealed against is confirmed.
	
CATCHWORDS:

LEGISLATION:
	INDUSTRIAL LAW – Public Service Appeal – application for permanent employment at higher classification – appellant in substantive position at time of request

Directive 13/20 Appointing a public service employee to a higher classification level cls 4.2, 6.2

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

Public Service Act 2008 (Qld) ss 148, 149B, 149C, 194, 195	
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

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

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

Reasons for Decision

	Background

[1]	Mr Justin Langford is substantively employed as an Operations Manager BAO6 (position number 702545) within QBuild, by the Department of Housing and Public Works ('the Department').

[2]	From 13 March 2017 to 11 September 2020, Mr Langford performed higher duties in various BAO7 and BAO8 positions in the Department. From 12 to 22 September 2020, he returned to his substantive position. Since 23 September 2020, he has been performing the higher classification position of Delivery Manager BAO7 (position number 702544) while the substantive was on leave and then temporarily seconded. The substantive was due to return to the Delivery Manager BAO7 position on 31 January 2021.

[3]	On 22 September 2020, Mr Langford wrote to the Department requesting that he be permanently appointed to the higher classification position of Delivery Manager BAO7 position within QBuild. At the time he made this request, Mr Langford was acting in his substantive BAO6 position. 

[4]	On 20 October 2020, Mr Langford received correspondence from Ms Maeghan Burrowes, Human Resources Consultant of the Department. The correspondence advised Mr Langford that the Deputy Director-General had conducted a review of his request in accordance with the requirements of Directive 13/20 Appointing a public service employee to a higher classification level ('the Directive'). 

[5]	The correspondence advised Mr Langford that his temporary BAO7 placement will continue in accordance with its current terms as, at the time of his request, he was not eligible to seek to be converted to the higher duties position as he had not been continuously acting in the position for one year ('the decision'). 

[6]	The reasons for the decision were set out as follows:

After considering your request to be permanently employed in the position of BAO7, Delivery Manager within QBuild, BPAM 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 is that you are not eligible to seek permanent conversion to the higher classification level, as you have not been assuming the duties and responsibilities of the BAO7 Delivery Manager Position within QBuild for a continuous period of at least one year.

[7]	Mr Langford filed an Appeal Notice on 3 December 2020. It is noted that he stated he could not lodge the appeal within the 21-day timeframe as "additional information came to hand after the appeal period". In the appeal, he contended that:

•	He has acted in higher duties in the BAO7 position for three years and ten months, and after returning to his substantive position for 10 days, he is now back in the BAO7 position;

•	Another employee (BAO6 substantive position holder) had acted in the same BAO7 position under a different position number. Once their higher duties BAO8 substantive position holder returned, this employee was able to choose to stay in the BAO7 position rather than return to their substantive BAO6 position. Mr Langford questions why this occurred as they both are substantive BAO6 employees and met the merit criteria; and

•	During the 10-day period where Mr Langford returned to his BAO6 position, he was told his duties and responsibilities in the BAO7 position would not change and was requested by his manager to keep working in the position as usual. As such, he has worked in the BAO7 position for a continuous period of three years and ten months.

What decisions can the Industrial Commissioner make?

[8]	In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:

(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 permitted; or

(c)	set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
	
	Nature of appeal

[9]	Under chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against. The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.

[10]	An appeal under chapter 11 of the IR Act is not a rehearing of the matter, but rather, it is a review of the decision and the decision-making process. The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable. 

[11]	The issue for my determination in the matter before me is whether the decision to refuse to permanently appoint Mr Langford to the higher position was fair and reasonable.

[12]	For the reasons set out below I have determined that the decision was fair and reasonable. 

Relevant sections of the PS Act and IR Act  

[13]	The relevant provisions of the PS Act and IR Act for consideration in this appeal are set out below. 
 
[14]	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.

[15]	Section 194 of the PS Act relevantly provides:

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;
	…

[16]	Section 564 of the IR Act relevantly provides:

564	Time limit for appeal

(1)	An appeal against a decision to an industrial tribunal must be started, as required under the rules, within the appeal period.
(2)	However, on an application made during or after the appeal period, the industrial tribunal may allow an appeal to be started within a longer period.
(3)	In this section—
appeal period, for an appeal against a decision to an industrial tribunal, means the period within 21 days after—
(a) 	if the decision is given at a hearing—the announcement of the decision at the hearing; or
(b) 	if the decision is given through the registrar—the release of the decision; or
(c)	if the decision is a promotion decision—the decision is publicly notified under the Public Service Act 2008; or
(d)	if, under another Act, the decision is given in another way—the decision is given in the other way.
Submissions of the parties

[17]	The parties filed written submissions in accordance with a Directions Order dated 3 December 2020 (reissued 15 December 2020 to allow the Appellant more time to file submissions). The parties' submissions primarily concern Mr Langford's eligibility to apply for conversion.

Submissions of Mr Langford

[18]	Mr Langford contends, for reasons set out in his submissions dated 15 December 2020, that he should be appointed to the BAO7 position. In summary, he submits that:

•	He had been acting in a BAO7 position for nearly four years since 13 March 2017 and his manager had advised that it will be extended until 30 June 2021;

•	He was only returned to his substantive BAO6 position for eight days while another employee was moving between acting in various higher duties positions including the BAO7 position while completing a handover;

•	During the eight days, he was directed to continue to carry out the BAO7 position and was told that his responsibilities in relation to this position would not change while the other employee was completing their handover. He contends he can show email correspondence in support of the fact he was still completing tasks in the BAO7 position. Mr Langford was advised that the other employee would not be returning to the BAO7 position, and he would be reappointed to it once they left;

•	He has also recently acted in a BAO8 position on several occasions and was supporting this role during the eight days;

•	The employee acting in Mr Langford's substantive BAO6 position carried out its duties in their entirety during the eight-day period; and

•	The move back to his substantive role was only a 'paper change' and he has been continuously acting in the BAO7 position in excess of one year.

Submissions of the Department

[19]	The Department contends, for reasons set out in their submissions dated 24 December 2020, that he is not eligible to be permanently appointed and is excluded from appealing the decision to refuse the conversion request. In summary, it submits that:

•	Per s 195(1)(j) of the PS Act, Mr Langford had been acting in the BAO7 Delivery Manager position for less than two years (since 23 September 2020) and cannot appeal the decision to refuse the conversion request per s 194(1)(e) of the PS Act;
•	On 22 September 2020 when Mr Langford submitted his request for conversion to the BAO7 position, he was acting in his substantive BAO6 position and had not been acting in the BAO7 position for a continuous period of at least two years as required by s 194(1)(3)(iii) of the PS Act;

•	As required by sections 149C(1) and 149C(3) of the PS Act, he was not acting in the higher level BAO7 position at the time he made his request for conversion on 22 September 2020. Per the decision of Holcombe v State of Queensland (Department of Housing and Public Works), an employee can only request to be converted to a position they were performing at the time they submit their conversion request; and

•	Per s 564(3) of the IR Act, Mr Langford filed his appeal seven days outside the 21-day appeal timeframe, so s 194(1)(e) of the PS Act will not apply. Although Mr Langford submits it should be heard outside this timeframe because "addition information came to hand after the appeal period", he has not identified what the additional information was.

Reply submissions of Mr Langford

[20]	Mr Langford had the opportunity but did not provide submissions in reply to the Department's.

Consideration

Time limitation issue

[21]	I am prepared to waive the time limitation applying to Mr Langford’s appeal. The extent to which Mr Langford’s appeal is out of time is a period slightly more than 3 weeks. 

[22]	I note from the Department’s submissions that even after the decision had been issued, certain machinations were taking place with respect to Mr Langford’s placement. As late as 9 November 2020 decisions were being made about Mr Langford’s position. I can well anticipate that Mr Langford might have been hesitant to formally challenge the decision until such time as he had some certainty around his immediate and longer term  placements. 

[23]	In the circumstances I am prepared to extend the time for filing to 4 December 2020. Consequently I intend to deal with the merits of the appeal.
        
The Directive 	

[24]	The Department has erroneously relied on the Directive in the decision. Mr Langford made his application for permanent appointment at the higher classification on 22 September 2020. The Directive did not commence operation until 25 September 2020. The Directive does not apply to Mr Langford’s application.

[25]	The only regulatory instrument applicable to Mr Langford’s application is the PS Act, in particular, s 149C (which came into operation on 14 September 2020). 

[26]	While the Department has incorrectly applied the Directive, the principles they relied on replicate those of s 149C of the PS Act and as such, I am satisfied that the Department’s error has not resulted in any unfairness to Mr Langford. 
         
 The decision of Holcombe

[27]	It seems that it is entirely uncontroversial that on 22 September 2020, when Mr Langford made his application for permanent appointment to the higher classification, he was occupying his substantive BAO6 position. Plainly, this is not a ‘higher classification’ or a position that he needs to apply for appointment to. 
 
[28]	The Department relied in their submissions on the decision of Holcombe. In Holcombe the Commission found that:

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 Mrs Holcombe is confined to the position into which he has been seconded 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. 

In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.

…

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. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State. 

By way of contrast, a broader ambit of the type proposed by Mrs Holcombe is expressly imparted in other conversion reviews which immediately precede s 149C. In conducting a temporary employment review under ss 149A and 149B, the department’s chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same. Following the review, the department chief executive may “offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer”. Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number. 

The language of s 149C is narrower: 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. That does not empower the department chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.

(Emphasis added)

[29]	In Mr Langford’s case, the position from which he applied for appointment was his substantive position. While Mr Langford met the tenure requirements of s 149C(1)(a) and (b) of the PS Act prior to returning to his substantive role on 12 September 2020, at the time of his application he was not in a higher classification position. In the circumstances he was fundamentally ineligible to apply.
 
[30]	I sympathise with Mr Langford. His application has been made with unfortunate timing. I am also very conscious of the narrow parameters in which this technical point arises.

[31]	Further, I am concerned that Mr Langford became ineligible, after many years of acting in higher classification levels, through a matter of mere administrative ‘role shuffling’. While I cannot identify a deliberate attempt by the Department to manufacture circumstances to prevent Mr Langford’s application succeeding, it would be a matter for close scrutiny if future applications for appointment by Mr Langford failed for similar reasons. 

[32]	Regrettably for Mr Langford, the arguments arising from Holcombe are compelling and ultimately fatal to his appeal.
 
[33]	In all of these circumstances, I consider the decision to be fair and reasonable.      

Order

[34]	In the circumstances I make the following order:

1.	The decision appealed against is confirmed.