Background - Part 1 of 3 recent alert on key legislative changes
In a recent publication titled Key employment framework of Queensland’s public sector reforms - Part 1 of 3 Partner, Andrew Tobin outlined key new legislative changes to the Public Service Act 2008 (Qld) (PS Act) and the Industrial Relations Act 2016 (Qld) (IR Act), relating to positive performance management, discipline, suspension, workplace investigations and appointment to a higher classification.
This second part addresses amended areas of change relating to:
The final alert to follow (third alert) addresses recruitment and selection, fixed term temporary employment and casual employment. The final part will also provide food for thought as to how agencies can best prepare and respond to the increased complexities and challenges ahead in the management of their most important resource, their people.
Appeals
Below are the changes to the PS Act relating to the appeal rights of public service employees namely:
- New provisions added to sections 194 and 195 PS Act, previously outlined in our earlier alert.
- Further changes involving the right to appeal made to section 195, as well as amendments to section 196, to be discussed below in the sections on Fixed-Term Temporary Employment and Casual Employment.
- Significant changes made to Chapter 7 PS Act. These divisions have been repealed:
- Division 1A titled ‘Who must hear and decide appeals and requirement to act independently’;
- Division 2 titled ‘Appeal procedures’;
- Division 3 titled ‘Deciding appeals’; and
- Division 4 titled ‘Miscellaneous provisions’.
- The sections under those divisions have been replaced with a new Division 2 titled ‘Appeals’. The changes are:
- Section 197 states the main consequence of the changes, namely that ‘an appeal under this part is to be heard and decided under the Industrial Relations Act 2016, Chapter 11 by the IRC’. Previously, the appeals were heard by the Queensland Industrial Relations Commission (QIRC) under the PS Act.
- Section 211 requires attendance of the public service employee to an appeal proceeding, if the employee is a party to the appeal, or is required by the IRC to attend the proceeding.
- Section 212 entitles the public service employee to travel expenses and allowances to attend an appeal, except if the employee is suspended from duty without pay, unless the employee’s appeal is allowed.
- Section 213 relates to entitlements for expenses of non-public service employees who are required to attend an appeal proceeding.
- Section 214 requires the relevant public service office or department whose decision is appealed against to pay the costs of the appeal including travel expenses and allowances.
- Section 214B requires the Commission Chief Executive (CCE) to issue a directive outlining what decisions can be appealed and who is entitled to appeal against the decisions listed in section 194(1).
The Appeals directive has been updated.
When does it start?
- Applies from the commencement date of the directive, 25 September 2020.
- New section 298 PS Act provides that appeals started prior to these recent PS Act amendments, and not yet decided or withdrawn, must be heard and decided under the previous Chapter 7.
Who does it apply to?
- All public service employees as defined in section 9 PS Act, including public service officers (which includes chief executives and senior executives), general employees, fixed-term temporary employees and casuals, unless a specific clause states otherwise.
Salient points of the directive
- Moves public service appeals to the QIRC under the jurisdiction of the Industrial Relations Act 2016. Previously, QIRC jurisdiction was under the PS Act.
- Highlights new provisions as to the types of appeals that may be lodged (see section 194) namely:
- A decision by the CCE under section 88IA to give a direction about rectifying a defect in procedural aspects of the handling of a work performance matter to the extent the direction affects the employee the subject of that matter - section 194(1)(ba).
- A suspension without pay decision - section 194(1)(bb).
- Appealing a two-year review of higher duties for appointment to higher classification - section 194(1)(e) called a conversion decision).
- Highlights new provisions as to the types of decisions that cannot be appealed - see section 195 namely:
- A CCE decision relating to reviewing a procedural aspect of the handling by a department of a work performance matter at the request of an employee under section 88IA, other than to the extent allowed under section 194(1)(ba) – section 195(1)(h).
- A decision under section 149 not to convert the employment basis of a fixed-term temporary employee or casual employee – section 195(1)(i).
- A decision under section 149C not to appoint an employee to a position at a higher classification level if the employee has been seconded to or acting at the higher classification level for less than two years – section 195(1)(j).
- Certain ‘non-appealable appointments’ – sections 195(1)(k) and 195(5).
- Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019 (HR Act).
Independent medical examinations
There are no changes to the PS Act relating to independent medical examinations for public service employees. Section 179AA provides that a directive of the CCE may provide for how Part 7 on ‘Mental or physical incapacity’ is to be applied.
The Independent medical examination (IME) directive has been extensively updated.
When does it start?
- Applies from the commencement date of the directive, 25 September 2020.
- The superseded directive applies where notice to attend an IME has been signed before the current directive took effect.
Who does it apply to?
- All public service employees as defined in section 9 PS Act, including public service officers (which includes chief executives and senior executives), general employees, fixed-term temporary employees and casuals.
Salient points of the directive
- Explains the procedures a chief executive (CE) must follow when requiring an employee to submit to an IME under sections 175 and 176 PS Act.
- Additional requirements in regard to the decision to require an employee to submit to a medical examination:
- It stipulates that where an employee’s absence is relied upon, the CE must reasonably suspect it is caused by mental or physical illness or disability and not another reason, for example, a suspension unrelated to mental or physical illness or disability.
- It extends the required notice period for an employee to attend an IME from 14 to 28 days.
- In addition to setting out the basis and reasons for the direction under section 174:
- information provided to the doctor must be included; plus
- the direction must also explain the employee’s rights to seek an internal review or appeal the decision and the timeframes.
- Additional requirements in relation to the use of existing medical reports:
- where an employee provides a medical report or consents to the agency being provided with a medical report from a third party (e.g. QSuper), the agency can consider the information provided in determining what actions, if any, are required to manage the impact of the employee’s illness or disability in the workplace; plus
- clear written consent for the use of the report should be obtained from the employee; plus
- workers’ compensation documents, including WorkCover medical reports, cannot be used or paraphrased where action under section 178 PS Act is or will be considered. Section 178 allows the CE to transfer or redeploy the employee or, if that’s not reasonably practicable, retire the employee from the public service.
- New guidelines in regard to internal review:
- Employees have the right to request an internal review of an IME direction. Previously, there was no internal review right - the employee was only able to appeal to the QIRC.
- The procedure is as follows:
- Employees may request from the CE an internal review of the decision requiring them to submit to an IME, within 14 days of receiving the notice to attend an IME.
- Upon receipt of the notice by the CE, the IME should be cancelled and rescheduled subject to the outcome of the review decision.
- The employee must provide reasons for requesting the review explaining why submission to the IME does not meet PS Act conditions. The CE can extend this time.
- The internal review is to be conducted by a different decision maker within the agency.
- A decision, including basis and reasons for the decision, to be provided in writing to employee within 20 working days of employee providing their reasons for review.
- Employee may appeal the review decision.
- Additions in relation to right to appeal a requirement to submit to a medical examination:
- This refers to internal review and appeal rights options, noting that both may not be exercised concurrently. The latter appeal must be made within 21 days of the decision or within the time determined by the QIRC.
- Important new requirements in regard to the independent medical examination report:
- The CE must consider the report and either propose no further action or an appropriate course of action under section 178 PS Act. In proposing a course of action, the CE must provide the employee with procedural fairness and consider all reasonably practicable options for continuing employment. Retirement of the employee should be considered a last resort.
- Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.
Individual employee grievances
Section 218A(1) PS Act requires the CCE to make an ‘individual employee grievances directive’ outlining how agencies must deal with grievances of officers or employees in their department. Section 218A(2) outlines what information the directive must provide for. The only changes to section 218A relate to amending the terminology as follows:
- from ‘complaints by officers and employees’ to ‘individual employee grievances’ in section 218A;
- from ‘employee complaints directive’ to ‘individual employee grievances directive’.
- from ‘complaints’ to ‘grievances’.
The Individual employee grievances (Grievance) directive has been extensively updated.
When does it start?
- Applies from the commencement date of the directive, 25 September 2020.
- The superseded directive applies where an employee complaint currently being managed has not yet finalised before the current directive took effect.
Who does it apply to?
- All public service employees as defined in section 9 PS Act, including public service officers (which includes chief executives and senior executives), general employees, fixed-term temporary employees and casuals.
Salient points of the directive
- Provides a framework that recognises that effective grievance resolution systems can provide the basis in which employees and agencies can work together to create better workplaces. The focus is on agencies responding in a supportive way to resolve concerns raised by employees, including through the use of alternative dispute resolution (ADR) strategies. In the previous directive ADR was not excluded, but importantly, was not an expected procedure.
- New changes in terms of application of the directive, namely:
- The directive is separate from and does not replace any grievance related provisions within the IR Act or any other relevant industrial instrument e.g. a Queensland modern award.
- Section 52 PS Act outlines the relationship between a directive and industrial instrument including how to deal with inconsistencies.
- An addition in regards matters that can be the subject of an individual employee grievance. Previously and still currently an individual employee grievance can be submitted by a current public service employee who has an honest belief, based on reasonable grounds, that:
- An administrative decision, which they’re aggrieved by, is unfair and unreasonable.
- Behaviour towards them is unfair and unreasonable.
- Behaviour towards them constitutes workplace bullying, sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality.
- Behaviour towards them is a breach of the Code of Conduct.
- Additionally: An act or decision is incompatible with human rights or a decision failed to properly consider a relevant human right under the HR Act.
- Two additions and one tweaked part in regard to matters that cannot be the subject of an individual employee grievance.
- Two additions:
- a work performance matter the subject of an existing review of a procedural matter under section 88IA PS Act; and
- an investigation, suspension or discipline process that is the subject of a current internal or external review under the PS Act and relevant directive.
- One tweaked part: an employee can choose to not use their agency’s complaints mechanism to appeal a finding that a disciplinary ground exists under section 187 PS Act. The new section 195(3A)(b) PS Act allows the aggrieved employee to lodge a public service appeal regarding the decision.
- Two additions:
- Individual employee grievance resolution principles remain unchanged (except terminology).
- Procedures for managing and resolving individual employee grievances:
- Stage 1 – local action – remain basically unchanged (except terminology) except that ADR strategies are added in terms of actions to take, in addition to facilitated discussion, mediation, conciliation or negotiation.
- Stage 2 – internal review – remain unchanged except terminology.
- Stage 3 – external review – there are new sections added here in the first part to reflect legislative changes under section 88IA and section 194 (1)(ba) PS Act.
- Grievances submitted to the CCE about a CE of an agency remain unchanged (except terminology).
- Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.
What’s next
Part 1 of the alert outlined key new legislative changes to the PS Act relating to positive performance management, discipline, suspension, workplace investigations and appointment to a higher classification.
Part 3 of the alert addresses further amended changes to the PS Act. Part 3 addresses recruitment and selection, fixed-term temporary employment and casual employment. It also provides some key takeaways.