Review of acting or secondment at higher classification level (Directive 03/23)

1. Purpose

1. The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
2. This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level.
3. This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level.

2. Authorising provisions

2. Sections 222, 120 and 121 of the Act.

3. Application

3. This directive applies to:
   1. public sector employees as provided for in section 119(1) 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. This directive does not apply to public sector employees as provided for in section 119(2) of the Act.
5. Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply when permanently employing an employee under this directive.
6. 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.
7. Commission Chief Executive (CCE) Directive 13/20: Appointing a public service employee to a higher classification level is repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions under the provisions of chapter 3, part 9, division 2 of 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 and maximising employment security and permanency of employment.
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 public sector 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 employee entitlements and entity responsibilities under chapter 3, part 9, division 2 of the Act.
6. The Appendix identifies and summarises the relevant sections of the Act to assist public sector employees and decision makers in understanding the legislative framework.
7. A decision maker, when considering a review of an employee’s acting or secondment at the higher classification level, must make a decision by applying the relevant sections of the Act.
8. The directions:
   1. provide for the meaning of ‘continuous period’, as required under section 120(8) of the Act
   2. provide for the meaning of ‘suitable’, as required under section 120(8) of the Act
   3. establish procedural requirements for conducting a review and employing an employee at a higher classification level under sections 120 and 121 of the Act
   4. should be read in conjunction with the relevant authorising provision/s of the Act.
9. The requirements set out in these directions are binding and must be followed.

6.Requests to employ a public sector employee at a higher classification level on a permanent basis

6. A request made under sections 120 or 121 of the Act must be made to the chief executive in writing, unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
7. Where a reasonable adjustment is required, the employee must make it clear in the request that they are making the request under these provisions.
8. An entity must set out information on its intranet, or in another way that is accessible to employees, about how to request a review under sections 120 or 121 of the Act.
9. The request rights provided for in section 121 of the Act are in addition to, and separate from, the request rights provided for in section 120 of the Act. A request made under section 121 of the Act does not affect when an eligible public sector employee is able to make a request under section 120(1)(b) of the Act.

7. Decision-making

7. When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.

8. Meaning of continuous period

8. 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 public sector entity.
9. Additionally, a public sector employee has been acting at, or seconded to, the higher classification level, where they have been remunerated at the full rate of the higher classification level during the period of unbroken engagement mentioned in clause 8.1.
10. Authorised leave, as provided for in clause 8.1, includes any period of leave that has been approved by the chief executive, including leave without pay for any period, where it is intended that the employee will return to the position at the higher classification level following the period of leave.
11. It is at the discretion of a chief executive to determine what constitutes an authorised absence, as provided for in clause 8.1. For example, a chief executive may determine an authorised absence to include acting at, or being seconded to, an alternative position at a higher classification level, where it was always intended that the employee would return to the position at the higher classification level following the period of absence.

9. Meaning of suitable

9. A public sector employee is to be considered suitable to perform the role where:
   1. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
   2. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
   3. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and where required, managed in accordance with the requirements of a relevant directive, such as the directives relating to positive performance management and discipline.

10. Obligations when a decision is made to refuse a request to employ a public sector employee at a higher classification level on a permanent basis

10. Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:
    1. set out the findings on material questions of fact
    2. refer to the evidence or other material on which those findings were based.
11. Any notice provided to the employee must include information about any relevant appeal rights available to the employee.
12. Where the chief executive decides to refuse a request made under section 120 of the Act because the person was not suitable to perform the role, any notice provided to the employee must include information about an employee’s right to request an additional review under section 121 of the Act, in the event the employee considers they become suitable to perform the role.
13. Where the chief executive decides to refuse a request made under sections 120 or 121 of the Act, unless otherwise advised in the written notice, a person’s engagement in the public sector entity is taken to continue according to the terms of the existing secondment or acting arrangement.

11. Deemed decisions

11. A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to employ the person at the higher classification on a permanent basis.
12. A written notice is not required to be prepared to support a deemed decision.
13. However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:
    1. the employee’s right to make an additional request for employment at the higher classification level on a permanent basis under section 121 of the Act, if the initial request was made under section 120 of the Act, and
    2. any relevant appeal right available to the employee.
14. Unless otherwise advised by the chief executive, where a deemed decision occurs, a person’s engagement in the public sector entity is to continue according to the terms of the existing secondment or acting arrangement.
15. Chief executives of public sector entities are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.

12. Appeals

12. Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act.

13. Records and reporting (where applicable)

13. Each public sector entity must, upon request, give the Commissioner a report about the number of requests and decisions made under sections 120 and 121 of the Act.
14. Each public sector entity must, upon request, give the Commissioner a report about the number of deemed decisions occurring by operation of section 120(6) of the Act.
15. Public sector entities must record, communicate and store requests and decisions made under sections 120 and 121 of the Act in accordance with any applicable legislative obligations, in addition to any obligations provided for under the Act.

14. Transitional arrangements

14. Section 319 of the Act sets out the transitional arrangements for persons who asked a chief executive to appoint the person to a position at a higher classification level as a general employee on tenure or as a public service officer under section 149C of the repealed Act.

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

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

Mandatory qualification/s has the meaning provided for under the directive relating to Recruitment and Selection.

Mandatory condition/s has the meaning provided for in the directive relating to Recruitment and Selection.

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

Repealed Act means the repealed Public Service Act 2008.

Second/secondment has the meaning provided for under section 118 of the Act.

Summary of PS Act framework

The following identifies and summarises the relevant sections of the Act, to assist public sector employees and decision makers in understanding the legislative framework.

Requests to employ a public sector employee at a higher classification level on a permanent basis

• A public sector employee may ask their chief executive to employ the employee in the position at the higher classification level on a permanent basis where they meet the eligibility requirements provided for under section 120(1) of the Act.
• An eligible employee may make a request under these provisions in the circumstances provided for in section 120(1) of the Act.
• There are three circumstances where a public sector employee may make an additional request for the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis, provided for in section 121 of the Act, as summarised in table 1 below:

• The number of additional requests an employee can make under section 121 of the Act is provided for in section 121(7) of the Act.

Decision making

• Where an employee makes a request under section 120 of the Act, the following conditions are applicable to the employee’s chief executive in their decision making:
  1. Section 120(2) of the Act provides that the employee’s chief executive must decide the request in the required period
  2. Section 120(3) of the Act provides that the employee’s chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers that the employee is suitable to perform the role
  3. Section 120(4) of the Act provides for the factors that a chief executive must have regard to in making the decision about a request made under section 120(1) of the Act.

• Where an employee makes an additional request under section 121 of the Act, the following conditions are applicable to the employee’s chief executive in their decision making:
  1. Section 121(4) provides for the timeframe in which the employee’s chief executive must decide the request
  2. Section 121(5) provides for the decision making and notification requirements that apply to the employee’s chief executive in deciding a request make under section 121.

Meaning of continuous period

• The meaning of continuous period must be provided for in the directive, as required under section 120(8) of the Act.

Meaning of suitable

• The meaning of suitable must be provided for in the directive, as required under section 120(8) of the Act.

Obligations when a decision is made to refuse a request to employ a public sector employee at a higher classification level on a permanent basis

• Where the chief executive decides to refuse a request made under section 120 of the Act they must give the employee a written notice which complies with section 120(5) of the Act.
• Where the chief executive decides to refuse request made under section 121 of the Act they must comply with the notification requirements set out in section 121(5) of the Act.

Deemed decisions

• Where a chief executive does not make a decision about a request made under section 120 of the Act within the required period, section 120(6) of the Act provides that the chief executive is taken to have refused the request to employ the person at the higher classification on a permanent basis.
• Where a chief executive does not make a decision about a request made under section 121 of the Act within the period required under section 121(4), section 121(6) of the Act provides that the chief executive is taken to have refused the request to employ the person at the higher classification on a permanent basis.

Appeals

• A public sector employee who is the subject of a decision under section 120 or section 121 of the Act to not employ the person at the higher classification level on a permanent basis, has a right of appeal provided for in section 131(1)(a) of the Act, if the employee has been acting at or seconded to the higher classification level for a continuous period of two years.
• An employee does not have a right of appeal in relation to a decision made under section 120 or 121 of the Act not to employ the employee at the higher classification level on a permanent basis, if the employee has been seconded to or acting at the higher classification level for less than two years, as provided for in section 132(1)(k).