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Queensland Government Bulletin

13 July 2021

#Government, #Workplace Relations & Safety

Published by:

Joseph Sherman

Queensland Government Bulletin

Appointing employees to higher classifications – key issues and tips for the public sector

In September 2020, the Public Service Act 2008 (Act) was amended by the Public Service and Other Legislation Amendment Act 2020 to place a greater emphasis on the positive and proactive management of public service employees and their performance. 

To support this change, the Public Service Commission released five new directives and amended six existing directives.

One new directive released at this time was Directive 13/20: Appointing a Public Service Employee to a Higher Classification Level (Directive). The Directive was made according to and in support of sections 53 and 149C of the Act.

The Directive applies to:

  • a public service officer who is seconded to; or
  • a public service employee (including a fixed term temporary employee) who is assuming the duties and responsibilities of,

a higher classification level in the public service agency (agency) in which the employee is substantively employed.

The Directive does not apply to:

  • a casual employee;
  • a non-industrial instrument employee; and
  • an employee who is seconded to or acting in a position that is ordinarily held by a non-industrial instrument employee.

The Directive applies to the following entities and their employees:

  • departments;
  • public service offices listed in Schedule 1 of the Act; and
  • an entity declared to be a public service office under a regulation and where the regulation applies this directive to the entity (sections 22-23 Act).

What has changed?

The Directive provides that an eligible employee 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.

To request consideration for appointment at the higher classification level, the employee must:

  • have been seconded to or assuming the duties and responsibilities of the higher classification level for a continuous period of at least one year; and
  • be eligible for appointment to the higher classification level with regards to the merit principle.

The ‘merit principle’, which is set out in section 27 of the Act, requires the selection of an eligible person for an appointment or secondment as a public service employee to be based on merit alone.

In addition, an eligible employee may:

  • request permanent appointment at the higher level at the end of 12 months, and then annually; and
  • make an additional request for permanent appointment after 12 months if the role becomes substantively vacant.

Although there was no previous entitlement in the Act or corresponding directive or framework, the Directive closely relates to Directive 09/20: Fixed Term Temporary Employment (which supersedes Directive 08/17: Temporary Employment).

Considerations

When deciding whether to appoint an employee to the higher classification level permanently, the chief executive must have regard to:

  • the genuine operational requirements of the department; and
  • the reasons for each decision previously made under section 149C during the employee’s continuous period of employment at the higher classification level.

The chief executive must make a decision in response to the request within 28 days. If no decision is made within this period, the chief executive is deemed to have refused the request (deemed decision).

If a request is refused, the chief executive must provide a statement of reasons to the employee that sets out the findings on material questions of fact and refers to the evidence or other material on which those findings were made. However, a written notice is not required to support a deemed decision.

Appeals

The appointment of an eligible employee to higher classification levels has become a fertile area for litigation in the Queensland Industrial Relations Commission (QIRC).

One key question that the QIRC regularly considers is whether the department’s genuine operational requirements to deny the request is fair and reasonable.

The phrase, ‘genuine operational requirements’, is not defined in the Act or the Directive. However, the phrase has been interpreted as including 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 … at the higher classification level”.1

The Public Service Appeal Guide is a valuable resource that clearly sets out the procedure underpinning appeals in the QIRC.

Tips for agencies

Conversion review

When reviewing a request from an eligible employee to be permanently appointed to a higher classification role, agencies should refer to the Government’s checklist.

When considering a request, we recommend that agencies read and incorporate the principles derived from past QIRC decisions.

Refusing a request

If an employee’s request for higher classification conversion is refused, agencies must give the employee a notice stating:

  • reasons for the decision;
  • the total continuous period for which the person has been acting at the higher classification level in the department or public service office;
  • how many times the person’s engagement at the higher classification level has been extended; and
  • 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.

Agencies may refer to the Government’s template letter when notifying employees.

Appeal rights

If an employee has been seconded to or has acted at a higher classification level for a continuous period of at least two years, and their request to be appointed to the higher classification level is refused, the employee has a right to appeal the decision.

As discussed above, the most common reason for refusing a request is on the ‘genuine operational requirements’ ground. Therefore, employees who are appealing decisions for this reason must clearly establish that an ‘authentic need’ existed to appoint the employee to the higher classification level.

Meaning of ‘continuous period’

‘Continuous period’ is defined in the Directive as 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”.

Employees should be mindful of the type of leave that is considered ‘authorised’ when determining whether they have been acting at a higher classification level for the required continuous period.

Relevantly, authorised leave includes any period of leave approved by the agency, including parental leave and leave without pay. In addition, periods of absence, including the performance of alternative higher duties, where it was always intended the employee would return to the higher duties role, may also be considered authorised leave or absence and does not break the continuous period.

If you are seeking advice or guidance around the Directive, please get in touch with us.

Authors: Jackie Hamilton & Joseph Sherman

[1]Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell, [40].

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Cases

Mosaic Brands Ltd v Australian Communications and Media Authority [2021] FCA 669
ADMINISTRATIVE LAW – validity of notice issued under s 522 of the Telecommunications Act 1997 (Cth) to provide certain information and produce specified documents – whether there was an implied condition that the notice disclose that the Authority was entitled to require the recipient to furnish the specified information and documents – whether notice complied with implied condition. Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Yoong v The Chief Executive of Medicare [2021] FCA 701
ADMINISTRATIVE LAW – Health Insurance Act 1973 (Cth) – application for judicial review of exercise of power by Chief Executive’s delegate under s 86(1) and by Director under s 88A(2) – whether decisions reviewable under Administrative Decisions Judicial Review Act 1977 (Cth) s 5 and Judiciary Act 1903 (Cth) s 39B – whether certiorari available – whether procedural fairness requirement applied to exercises of power – whether delegate failed to provide procedural fairness – materiality of failure – whether decision-makers failed to take account of mandatory relevant considerations – whether decision-makers took account of irrelevant considerations – whether exercise of power legally unreasonable – grounds of application dismissed – applicant to pay costs
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 3, 5 and 6.

Matson v Australian Information Commissioner (No 2) [2021] FCA 690
PRACTICE AND PROCEDURE – application for extension of time to file originating application for judicial review – Freedom of Information Act 1982 (Cth) – whether the applicant showed an acceptable explanation for the delay in filing the substantive application – where applicant held on remand in custody in correctional facility – where delay resulting in part from systemic effect of COVID-19 – where applicant informed of “review rights” by decision maker – whether the respondent would suffer prejudice as a result of the grant of an extension of time to file the substantive application – whether the substantive application had reasonable prospects of success – absence of particularisation. Administrative Decisions (Judicial Review) Act 1977 (Cth); Freedom of Information Act 1982 (Cth) ss 3, 9A, 24A, 54W, 93A.

King Educational Service Pty Ltd v Chief Executive Officer of the Australian Skills Quality Authority (No 3) [2021] FCA 692
STATUTORY INTERPRETATION – appeal from a decision of the Administrative Appeals Tribunal which affirmed a decision of the Australian Skills Quality Authority to refuse to renew the applicant’s registration under the Education Services for Overseas Students Act 2000 (Cth) (ESOS Act) – where power to renew registration under s 10E(1) of the Act required the decision-maker’s satisfaction that the applicant “is complying, or will comply” with statutory requirements under s 11(b) of the Act – where the Tribunal refused to renew the applicant’s registration following a conclusion that it was not satisfied that the applicant “will comply” – whether the Tribunal, by asking whether the applicant “will comply” instead of “is complying”, asked the wrong question and thereby erred – whether the phrase “is complying, or will comply” is to be construed conjunctively, disjunctively, or otherwise – in the context of the ESOS Act, phrase to be construed “is complying, or will comply” as appropriate – the Tribunal did not ask the wrong question and so did not err.
ADMINISTRATIVE LAW – whether the Tribunal erred in failing to consider the applicant’s submission as to the possible imposition of a condition under s 10B of the ESOS Act upon renewal of registration – whether the Tribunal acted unreasonably in failing to consider the imposition of conditions under the ESOS Act analogous to those imposed on the applicant under the National Vocational Education and Training Regulator Act 2011 (Cth) – the Tribunal did consider the applicant’s submission – in the circumstances the Tribunal was not required to consider the imposition of analogous conditions – the Tribunal did not err and did not act unreasonably.
Acts Interpretation Act 1901 (Cth) ss 2(2), 15AA, 15AC, 15AC(b) and 33(2A)
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 39(1), 43(1), 43(2) and (2B), 44 and 44(1).

Karen Hutchinson and Comcare (Freedom of information) [2021] AICmr 25
Freedom of Information — whether documents subject to legal professional privilege – (CTH) Freedom of Information Act 1982 s 42 Comcare identified one document within scope of the request and refused the applicant access to the document in full. In making its decision, Comcare relied on the legal professional privilege exemption (s 42) of the FOI Act. The document that Comcare found to be exempt under s 42 of the FOI Act is protected by legal professional privilege which has not been waived and is therefore exempt.

Karen Hutchinson and Comcare (Freedom of information) [2021] AICmr 24
Freedom of Information — whether documents subject to legal professional privilege – (CTH) Freedom of Information Act 1982 s 42 Comcare must now provide the applicant with a copy of the document within 28 days of this decision. 

'XG' and Services Australia (Freedom of information) [2021] AICmr 22
Freedom of Information — whether disclosure of personal information unreasonable — whether contrary to the public interest to release conditionally exempt documents — (CTH) Freedom of Information Act 1982, ss 11A(5), 26(2) and 47F.

TX Australia Limited v Australian Competition and Consumer Commission [2021] FCAFC 113
COMMUNICATIONS LAW – administrative law – dispute between owner and operator of transmission infrastructure and a licensed broadcaster access seeker – access sought by third party on behalf of access seeker – where third party is an owner and operator of different transmission infrastructure – whether third party acting as agent for the access seeker – whether there was a failure to agree on terms and conditions of access – whether Australian Competition and Consumer Commission had jurisdiction to arbitrate dispute
STATUTORY INTERPRETATION – whether cl 47 of Pt 5 of Sch 4 to the Broadcasting Services Act 1992 (Cth) excludes the law of agency – whether competitors are permitted to act as agents for an access seeker in seeking to negotiate terms and conditions of access to transmission infrastructure.

Paracella Pty Ltd ATF The Kelvin Flintoff Family Trust and Comptroller-General of Customs [2021] AATA 1988
CUSTOMS – decision to reject the Applicant’s application for a refund of duty paid in respect of steel pallet racking – whether steel pallet racking constitutes ‘like goods’ for the purposes of the Act – statutory interpretation of ‘dimensions that can be adjusted as required’ – Project Blue Sky principles and s 15AA Acts Interpretation Act 1901 (Cth) applied – pallet racking in question falls within the scope of Australian Standard 4084-2012 – reviewable decision affirmed Administrative Appeals Tribunal Act 1975 – s 37(1)(a).

Adani Mining Pty Ltd & anor v Pennings [2021] QSC 162
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – GENERALLY – where the plaintiffs apply for a confidentiality regime to be imposed in relation to disclosure of material said to be confidential – where the plaintiffs apply for limitations on the amount of disclosure and the particulars required to be provided – where the plaintiffs claim that the defendant has sought to obtain confidential information for the purposes of frustrating the development of a mine and rail network – where the plaintiff claims the information has the necessary quality of confidence and was received by the defendant in breach of an obligation of confidence – whether there are exceptional circumstances justifying additional protection to an implied obligation of confidentiality – where any regime imposed must strike a fair balance between the competing interests of the parties – whether disclosure should be limited
Uniform Civil Procedure Rules 1999 Qld r 161(2), r 224.

Cement Australia (Exploration) Pty Ltd & Anor v East End Mine Action Group Inc & Anor (No 4) [2021] QLC 22
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – application to extend the mine – application for mining lease – application to amend environmental authority – where there were objections to applications – where objections raised issues regarding geology, groundwater, surface water impacts, groundwater to surface water interactions, flooding, noxious weeds and subsoil moisture
ENERGY AND RESOURCES – MINERALS – COURTS OR TRIBUNALS EXERCISING JURISDICTION IN MINING MATTERS – QUEENSLAND – where the Court considered the standard criteria in s 269(4) of the Mineral Resources Act 1989 – where the criteria have been met
HUMAN RIGHTS – JURISDICTION AND PROCEDURE – QUEENSLAND – whether the Court has jurisdiction to consider the Human Rights Act 2019 in the absence of objections – where the Land Court has jurisdiction and a duty to consider human rights in the absence of submissions – where s 24(2) of the Human Rights Act 2019 was considered – where the human right to property would not be prejudiced – where the proposed expansion is proportionate to the public interest Acts Interpretation Act 1954 Qld sch 1.

Green Pitch Pty Ltd v Brisbane City Football Club Ltd [2021] QCAT 222
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – minor civil dispute – claim for debt or liquidated demand of money – whether a coaching contract was terminated or frustrated – whether cancellation of a sporting competition during COVID-19 was a frustrating event.

Electrical Licensing Committee v Whatalec Pty Ltd & Brindley [2021] QSC 159
ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICULAR DECISIONS – where the applicant made a decision, pursuant to s 121(1)(a) of the Electrical Safety Act 2002 (“the Act”), that a ground existed for taking disciplinary action against each of the respondents – where the applicant made a further decision, pursuant to s 121(1)(b) of the Act, to take disciplinary action against each of the respondents – where the respondents sought review of the applicant’s decision in each case – where the applicant now applies under s 13 and/or s 48 of the Judicial Review Act 1991 for the dismissal of the respondents’ applications for statutory orders of review – where s 172 of the Act provides for external review by the Queensland Civil and Administrative Tribunal (“QCAT review”) of a “disciplinary decision” as defined in s 167 of the Act – where the applicant contends that the QCAT review process would encompass, as well as review of the decision to take disciplinary action, consideration of the grounds on which it was made, so that the applications for statutory orders of review should be dismissed – where the respondents contend that the right of review under s 172 of the Act is confined to the decisions as to whether, and what, disciplinary action should be taken and excludes the decision as to whether grounds existed for taking that action – whether QCAT review is available for both the s121(a) decisions that grounds exist and the s 121(b) decisions as to whether and what action should be taken, so that the respondents’ applications for statutory orders of review should be dismissed
STATUTE – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – Queensland Civil and Administrative Tribunal Act 2009 Qld ss 6, 19(c), 20.

Ahwang v Torres Strait Island Regional Council [2021] QSC 147
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – FAILURE TO OBSERVE STATUTORY PROCEDURE – where the respondent is the trustee of a grant of land in fee simple at St Pauls on Moa Island – where as trustee the respondent is obliged to hold the land on trust for the benefit of the Islander inhabitants – where the applicant and another person submitted to the respondent expressions of interest in leasing the property – where the respondent granted the lease to the other person and not the applicant – where the applicant sought a statutory order of review of this decision – whether the decision to grant the lease was a decision as per s 4 Judicial Review Act 1991 (Qld) – whether the respondent’s decision making process had to be in compliance with s 135 Torres Strait Islander Land Act 1991 (Qld) – whether the decision was made in compliance with the requirements of s 135 Torres Strait Islander Land Act – whether the decision was actually made in compliance with the respondents adopted decision making process
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME, EXTENSION AND ABRIDGMENT – where the application was filed over seven months out of time – whether an extension of time in which to apply should be granted. Judicial Review Act 1991 Qld ss 4, 5(d), 20, 26.

Legislation

Commonwealth

Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021
Finally passed both Houses 22 June 2021 - Introduced with the Online Safety Bill 2021, the bill: Repeals the Enhancing Online Safety Act 2015; makes consequential amendments to 10 Acts; amends the Crimes Act 1914, Export Market Development Grants Act 1997 and Online Safety Act 2021, when enacted, to make amendments contingent on the commencement of certain other Acts; and contains transitional and application provisions.

Online Safety Bill 2021
Finally passed both Houses 23 June 2021 - Introduced with the Online Safety (Transitional Provisions and Consequential Amendments) Bill 2021, the bill: Retains and replicates certain provisions in the Enhancing Online Safety Act 2015, including the non-consensual sharing of intimate images scheme; specifies basic online safety expectations; establishes an online content scheme for the removal of certain material; creates a complaints-based removal notice scheme for cyber-abuse being perpetrated against an Australian adult; broadens the cyber-bullying scheme to capture harms occurring on services other than social media; reduces the timeframe for service providers to respond to a removal notice from the eSafety Commissioner; brings providers of app distribution services and internet search engine services into the remit of the new online content scheme; and establishes a power for the eSafety Commissioner to request or require internet service providers to disable access to material depicting, promoting, inciting or instructing in abhorrent violent conduct for time-limited periods in crisis situations. 

Telecommunications Legislation Amendment (International Production Orders) Bill 2020
Finally Passed both houses 24 June 2021 - Amends the Telecommunications (Interception and Access) Act 1979 to: provide a framework for Australian agencies to obtain independently-authorised international production orders for interception, stored communications and telecommunications data directly to designated communications providers in foreign countries with which Australia has a designated international agreement; make amendments contingent on the commencement of the proposed Federal Circuit and Family Court of Australia Act 2020; and remove the ability for nominated Administrative Appeals Tribunal members to issue certain warrants.

Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 2021
Assent Act no: 73 Year: 2021 30 June 2021 - Amends the: Hazardous Waste (Regulation of Exports and Imports) Act 1989 to: implement Australia's obligations under the Basel Convention on the Control or Transboundary Movements of Hazardous Wastes and their Disposal; apply the standard provisions of the Regulatory Powers (Standard Provisions) Act 2014 and insert new audit powers; update existing criminal offences and introduce new strict liability offences and civil penalties to cover non-compliance.

Biosecurity Amendment (Strengthening Penalties) Bill 2021
Assent Act no: 58 Year: 2021 29 June 2021
Amends the Biosecurity Act 2015 to increase the civil and criminal penalty amounts for contraventions of certain key requirements relating to the assessment and management of biosecurity risks of goods that are brought or imported into Australian territory, and the carrying out of biosecurity activities in accordance with an approved arrangement.

Repatriation of Defence Data Bill 2021
HR 21 June 2021 - A Bill for an Act to require the repatriation of Defence data to sovereign Australian storage facilities, and for related purposes. If a sensitive data store is held in a high-risk storage facility, the Secretary must cause the sensitive data store to be transferred, before 25 April 2022, to a sovereign Australian storage facility.

Ransomware Payments Bill 2021
HR 21 June 2021 - This is a stand-alone Bill to establish a mandatory reporting requirement for Commonwealth entities, State or Territory agencies, corporations, and partnerships who make ransomware payments in response to a ransomware attack. The Bill will require entities who make a ransomware payment to notify the ACSC of key details of the attack, the attacker, and the payment. This information will be held by the ACSC.

No Domestic COVID Vaccine Passports Bill 2021
HR 21 June 2021 - The bill prohibits the Commonwealth, States and Territories and other non-government entities from issuing domestic vaccine passports or certification and also prohibits discrimination on the basis of whether a person has had a COVID vaccination in the provision of goods, services and facilities and also in employment, education, accommodation and sport

Regulations

Public Governance, Performance and Accountability Amendment (Digital Transformation Agency) Rules 2021
29/06/2021 - This instrument amends the Public Governance, Performance and Accountability Rule 2014 to amend and expand the purposes of the Digital Transformation Agency (DTA) as a listed in clause 10 for finance law, and repeal the sunset provision at subclause 10(2) to allow the DTA to continue as a listed entity under the Public Governance, Performance and Accountability Act 2013.

Remuneration Tribunal (Members of Parliament) Determination 2021 
21/06/2021 - This determination deals with the remuneration of members of Parliament, the rates of travel allowance payable to such members, and the allowances and expenses to be paid to former members. The remuneration, allowances and expenses are to be paid out of the public money of the Commonwealth.

Queensland

Acts
No 13 Defamation (Model Provisions) and Other Legislation Amendment Act 2021
24 June 2021 – Limitation of Actions Act

Bills
Defamation (Model Provisions) and Other Legislation Amendment Bill 2021
Introduced by: Hon S Fentiman MP on 20/04/2021
Stage reached: Passed on 16/06/2021

Subordinate legislation as made – 30 June 2021
No 84 Justice Legislation (Fees, Allowances and Other Amounts) Amendment Regulation 2021

Reminders:
No 40 Proclamation—Criminal Code (Child Sexual Offences Reform) and Other Legislation Amendment Act 2020 (commencing remaining provisions)
The date of 5 July 2021 is fixed for the commencement of the provisions of the Act that are not in force.

No 41 Evidence (Intermediaries) Amendment Regulation 2021
This regulation commences on 5 July 2021. The purpose of the Amendment Regulation 2021 is to prescribe, commencing on 5 July 2021, Brisbane and Cairns as places for the operation of the Queensland Intermediary Scheme pilot. The aim of the pilot is to assist prosecution witnesses with communication needs to give their best evidence in child sexual offence prosecutions.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Joseph Sherman

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