Appeals (Directive 04/23)

1. Purpose

1. To provide information on the appeal rights of public sector employees under the Public Sector Act 2022 (Act).

2. Authorising provisions

2. Sections 222 and 143 of the Act.

3. Application

3. This directive applies to:
   1. public sector employees as provided for in section 12 of the Act
   2. public sector entities as provided for in section 8 of the Act
   3. chief executives of public sector entities as provided for in sections 16 and 17 of the Act, in their capacity as the chief executive of a public sector entity, or of public sector employees.
4. Section 229 of the Act outlines the relationship between a directive and industrial instrument, including where an industrial instrument will prevail over a directive to the extent of any inconsistency.
5. CCE Directive 07/20: Appeals, is repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions about public sector employees under the Act.
5. Chief executives are required to act in a way that is compatible with the main purpose of the Act, and how the main purpose is achieved, including fair treatment of public sector employees.
6. Under the Human Rights Act 2019 decision makers have an obligation to:
   1. act and make decisions in a way that is compatible with human rights
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner(Commissioner) directives.
7. Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State Government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.
8. Under chapters 2 and 3 of the Act, chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
9. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

5. Interpretation of directions

5. The Act sets out the public sector appeals framework under chapter 3, part 10.
6. Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016 (IR Act).
7. These directions:
   1. make provision for the following matters, as required under section 143(2)(a) of the Act:
      1. the decisions, if any, against which an appeal can be made
      2. the persons who are entitled to appeal against a decision mentioned in section 131(1) of the Act
      3. the directions, if any, the QIRC may give under the IR Act, section 562C(1)(b)
   2. declare the types of appointment or employment against which an appeal cannot be made in relation to the meaning of ‘non-appealable appointment’ under section 132(5) of the Act, as provided for by section 143(2)(b) of the Act
   3. establish procedural requirements for appeals by public sector employees
   4. should be read in conjunction with the relevant authorising provisions of the Act
8. The requirements set out in these directions are binding and must be followed.

6. Conversion decision appeal

6. Section 131(1)(a) of the Act provides that a conversion decision may be appealed.
7. Section 129 of the Act provides for the definition of conversion decision (noting that the meaning is limited to specific types of decisions made under the relevant sections of the Act).
8. Who may appeal a conversion decision under section 133 of the Act:
   1. the public sector employee the subject of the decision.
9. Decisions that cannot be appealed as a conversion decision, as provided for under section 132 of the Act:
   1. a decision under section 114 not to convert the employment of a public sector employee to a permanent basis
   2. a decision under section 120 not to appoint a public sector employee to a position at a higher classification level, if the employee has been acting at, or seconded to, the higher classification level for less than two years.

7. Directive decision appeal

7. Section 131(1)(b) of the Act provides that a directive decision may be appealed.
8. Section 129 of the Act provides for the definition of directive decision.
9. Who may appeal a directive decision under section 133 of the Act:
   1. a public sector employee aggrieved by the decision, if the employee is entitled to appeal under a directive.
10. Further to clause 7.3 a public sector employee:
    1. is only entitled to appeal a directive decision to the extent that a relevant directive expressly declares a decision under that directive to be appealable under section 131(1)(b) of the Act
    2. must first comply with their entity’s procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless the directive decision was made by the chief executive of that entity.

8. Disciplinary decision appeal

8. Section 131(1)(c) of the Act provides that a disciplinary decision may be appealed.
9. Section 129 of the Act provides for the definition of disciplinary decision (noting that there are specific meanings for current and former public sector employees).
10. Who may appeal a disciplinary decision under section 133 of the Act:
    1. a public sector employee, or former public sector employee, aggrieved by the decision if the employee is entitled to appeal under a directive.

9. Fair treatment decision appeal

9. Section 131(1)(d) of the Act provides that a fair treatment decision may be appealed.
10. Section 129 of the Act provides for the definition of fair treatment decision.
11. Who may appeal a fair treatment decision under section 133 of the Act:
    1. a public sector employee aggrieved by the decision.
12. Further to clause 9.3, a public sector employee must first comply with their entity’s procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless:
    1. the fair treatment decision was made by the chief executive of that entity, or
    2. where the fair treatment decision relates to a finding under section 91 of the Act that a disciplinary ground exists for the person.
13. Despite clause 9.4, section 562A(1)(b) of the IR Act provides that the QIRC may decide it will only hear an appeal against a fair treatment decision if the QIRC is satisfied that it would not be unreasonable to require the appellant to comply with the procedures set out in clause 9.4.
14. Decisions that cannot be appealed as a fair treatment decision under section 132 of the Act:
    1. a decision made under chapter 3, part 8, division 5 of the Act (mental or physical incapacity)
    2. a decision made under chapter 3, part 8, division 3 of the Act (disciplinary action), other than a finding under section 91 that a disciplinary ground exists for the person
    3. a decision relating to the recruitment and selection of a public sector employee
    4. a decision relating to a person’s work performance, other than a decision about the person’s work performance that is recorded in a formal way as part of a periodic performance review
    5. a decision relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of a grievance
    6. a decision relating to the devolvement or performance management of a chief executive or senior executive.
15. Section 131(2) of the Act provides that a decision cannot be appealed as a fair treatment decision if the decision can be appealed under another subsection of 131(1).

10. Promotion decision appeal

10. Section 131(1)(e) of the Act provides that a promotion decision may be appealed.
11. Section 129 of the Act provides for the definition of promotion decision.
12. Who may appeal a promotion decision under section 133 of the Act:
    1. a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive.
13. Further to clause 10.3, a public sector employee is only entitled to appeal a promotion decision:
    1. where the decision relates to a promotion of a permanent public sector employee that has been published in accordance with section 84(2) of the Act, and
    2. where the aggrieved employee submitted an application for the role that is the subject of the promotion decision, and
    3. if the aggrieved employee’s application for the role that is the subject of the promotion decision, was received by the deadline for the receipt of applications, or in the case of continuous applicant pools, the application was received prior to the initial date that applications were distributed to the selection panel, and
    4. the aggrieved employee has sought post-selection feedback in accordance with the relevant provisions of the directive relating to recruitment and selection, and
    5. in the case of a promotion decision resulting from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved employee must have been eligible to apply.
14. Decisions that cannot be appealed as a promotion decision under section 132 of the Act:
    1. a non-appealable appointment (refer to clause 17 for further information)
    2. a decision to promote a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made
    3. a decision to promote a person as a chief executive, a senior executive or a senior officer
    4. a promotion decision if:
       1. the person employed under the promotion decision had been redeployed within one year before the promotion, and
       2. the promotion is to a classification level that is not higher than the classification level of the person employed under the promotion decision immediately before the redeployment.

11. Suspension without pay decision appeal

11. Section 131(1)(f) of the Act provides that a suspension without pay decision may be appealed.
12. Section 129 of the Act provides for the definition of suspension without pay decision.
13. Who may appeal a suspension without pay decision under section 133 of the Act:
    1. the public sector employee the subject of the decision.

12. Transfer decision appeal

12. Section 131(1)(g) of the Act provides that a transfer decision may be appealed.
13. Section 129 of the Act provides for the definition of transfer decision.
14. Who may appeal a transfer decision under section 133 of the Act:
    1. the public service officer or public sector employee the subject of the decision.
15. Further to clause 12.3, a public sector employee must first comply with their entity’s procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless the transfer decision was made by the chief executive of that entity.
16. Decisions that cannot be appealed as a transfer decision under section 132 of the Act:
    1. a decision to transfer a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made
    2. a decision to transfer a person as a chief executive, a senior executive or a senior officer.

13. Work performance direction decision appeal

13. Section 131(1)(h) of the Act provides that a work performance direction decision may be appealed.
14. Section 129 of the Act provides for the definition of work performance direction decision.
15. Who may appeal a work performance direction decision under section 133 of the Act:
    1. the public sector employee the subject of the work performance matter.
16. Matters that cannot be appealed as a work performance direction decision under section 132 of the Act:
    1. a decision of the Commissioner relating to reviewing a procedural aspect of the handling by a public sector entity of a work performance matter at the request of an employee under section 124, other than to the extent allowed under section 131(1)(h).

14. Decisions about a thing which an Act other than the PS Act allows a person to appeal

14. Section 131(1)(i) of the Act provides that a decision about anything else against which another Act allows a person to appeal may be appealed.
15. Who may appeal a decision mentioned in 131(1)(i) under section 133 of the Act:
    1. a person the other Act allows to appeal.

15. Time limit to start an appeal

15. The time limit to start an appeal under section 564 of the IR Act is the period within 21 days after:
    1. the date on which notice of the decision is given to the public sector employee, or
    2. in the case of a promotion decision, the date the decision is publicly notified under the relevant provisions of the PS Act.
16. The time limit under clause 15.1 may be extended by the QIRC upon application by a public sector employee, as provided for in section 564 of the IR Act.

16. Decisions that cannot be appealed

16. Section 132 of the Act provides for the decisions that can not be appealed.

17. Non-appealable appointments

17. In consideration of the definition of ‘non-appealable appointment’ provided for in section 132(5) of the Act, it is declared that an appeal may not be made against the following appointments or employment:
    1. an appointment or employment that is not a promotion
    2. to a role remunerated in excess of:
       1. the maximum salary applicable to the AO8 classification level within the relevant entity (or the full-time equivalent for part-time roles), or
       2. in cases where an entity does not have a remuneration scale that includes an AO8 classification level, the maximum salary applicable to the AO8 classification level provided for in the Queensland Public Service Officers and Other Employees Award- State 2015, or the core State Government Entities certified agreement, whichever is the higher rate (or the full time equivalent for part time roles).
    3. to a role to which a person is directly appointed to or employed in accordance with the directive relating to recruitment and selection, or
    4. to a role which is entry level as defined in the directive relating to recruitment and selection.

18. Directions the QIRC may give in deciding an appeal about a promotion decision

18. Section 143(2)(a) of the Act requires that this directive provide for the directions the QIRC may give under section 562C(1)(b) of the IR Act.
19. In deciding an appeal under section 562C of the IR Act, the QIRC may make any direction they consider necessary, including any of the following:
    1. a direction that, within one month, the chief executive is to set aside the promotion and publish (in accordance the requirements of section 84(2) of the Act) that the appointment is set aside
    2. a direction that the chief executive either recommences the recruitment and selection process from the point of advertising the vacancy, or continues with the process from a particular time or event as identified by the QIRC
    3. a direction that a new selection panel is to be formed and/or a direction regarding the composition of the new panel, where a decision is made that a chief executive is to recommence the recruitment and selection process.

19. Action to be taken where the QIRC decides to set aside a promotion decision

19. If the QIRC decides to set aside a promotion decision, the public sector employee who was promoted and has that promotion set aside:
    1. resumes the role which they held immediately before the appointment, at the same classification, if their previous role is vacant, or
    2. in any other case, continues to be employed in the public sector entity in which they were promoted to, with salary not less than that which they were paid immediately before the promotion.

20. Transitional provisions

20. Section 324 of the Act sets out the transitional arrangements for appeals commenced under the repealed Public Service Act 2008.

CCE directive means a directive issued by the Public Service Commission, Commission Chief Executive under the repealed Public Service Act 2008.

Chief executive in relation to clause 10.5 and 12.5, has the meaning provided for under section 16 of the Act.

Commissioner has the meaning provided for under section 212 of the Act.

Non-appealable appointment has the meaning provided for under section 132(5) of the Act.

Promote has the meaning provided for under schedule 2 of the Act.

Public sector executive has the meaning provided for under schedule 2 of the Act.

PS Act means the Public Sector Act 2022.

Reframing entity has the meaning provided for under section 20 of the Act.

Senior executive has the meaning provided for under schedule 2 of the Act.

Senior officer has the meaning provided for under schedule 2 of the Act.