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QIRC decisions affecting appointment and employment conversion

Read a summary of the principles behind recent Queensland Industrial Relations Commission (QIRC) decisions. These will help you when you’re considering your own agency’s permanent employment conversion and higher duties appointment decisions.

Brief reasons for a decision may not meet the requirements of the Public Service Act 2008 for advising an employee of the outcome of a conversion or higher duties appointment review. Merrell DP summarised the following elements to consider when providing reasons for a decision 1:

The adequacy of reasons of an administrative decision maker is to be tested by reference to the nature of the task which the decision maker had to undertake. The more significant the decision, the clearer the reasons should be.

It is not necessary for the decision maker to deal with every matter which was, or which may have been raised. It is enough that the findings and reasons deal with the substantial issues upon which the decision turned, such that a person aggrieved by the decision can understand why the decision went against him or her.

The decision maker is required to set out:

  • his or her understanding of the relevant law
  • any findings of fact upon which his or her  conclusions depend, especially if those facts have been in dispute, and
  • the reasoning processes which led him or her  to those conclusions.

This should be done in clear and unambiguous language, not in vague generalities or the formal language of legislation.

References - QIRC case numbers

  1. PSA/2020/297

Eligibility

When a substantive employee returns and recommences fulfilling the duties of the role, the need for the fixed term temporary employee to fulfill the duties of the role will cease. There is no continuing need for the fixed term temporary employee to be employed in that role 1.

The lack of a substantive vacancy will not produce a conclusion that a role is not 'ongoing' within the meaning of cl 9.6(a). But, in the context of a permanent employee returning to the role being performed, and the absence of availability of another role that is substantially the same, genuine operational reason will exist that allow a decision maker to validly decline conversion 2.

Genuine operational requirements

The potential return of a substantive employee to a role indicates there is no continuing need for a fixed term temporary employee to be employed in that role 3.

The question is whether or not it is viable or appropriate to offer to convert a fixed term temporary employee with consideration of, for example, authentic requirements for the effective, efficient and appropriate management of the public resources of the department or the authentic planning of the human resources of the department 4.

References - QIRC case numbers

  1. PSA/2020/312
  2. PSA/2020/343
  3. PSA/2020/312
  4. PSA/2020/327

Process and eligibility

In conducting a review, the agency is only required to determine whether a person should be permanently appointed to the position held at the time of requesting the review as identified by the title and classification and the position number 1.

An employee may have performed the same role but have been allocated against different position numbers prior to requesting appointment to the higher classification level 1.

Reclassification of a higher duties role to an even higher classification level is not an authorised absence from the original higher duties role and is not included when determining the continuous period of higher duties for section 149C(1)(b) 6.

Appeal right arises after two years continuous relieving at the higher classification level even if only relieved in the same higher classification position for one year 4.

Merit

The authority to determine the review lies squarely with the department chief executive or their delegate. It is not a question of merit or whether there is work to be done. The question is only whether the genuine operational requirements relied upon by the department to deny the request are fair and reasonable 1.

Genuine operational requirements

Genuine operational requirements of the department would at least include consideration of 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 to the position at the higher classification level 2.

Genuine operational requirements can include consideration of allocated funding, consistent with managing in a way that promotes the effective, efficient and appropriate management of public resources 7.

Genuine operational requirements do not require slavish concurrence to clause 4.2 of the directive. However it is entirely fair and reasonable for an agency to consider those factors in arriving at a conclusion of whether to permanently appoint an employee to the position 5.

The abolishment of a role or the impending return of the substantive occupant of a position are genuine operational requirements supporting a decision not to permanently appoint an employee to the higher classification level 1.

In the context of reviewing a pilot work unit for effective integration within the organisation, consideration of the future requirements of the role as part of the review is consistent with the decision-maker's obligation to have regard to genuine operational requirements pursuant to s 149C(4A)(a) of the PS Act 3.

Appeal scope—the authority to determine the review lies squarely with the department chief executive or their delegate. It is not a question of merit or whether there is work to be done. The question is only whether the genuine operational requirements relied upon by the department to deny the request are fair and reasonable 1.

References - QIRC case numbers

  1. PSA/2020/274PSA/2020/351
  2. PSA/2020/297
  3. PSA/2020/337
  4. PSA/2020/268
  5. PSA/2020/305
  6. PSA/2020/309
  7. PSA/2020/371