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Queensland Government Bulletin

13 July 2021

36 min read

#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).


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.


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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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


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.


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

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

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.

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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