Legislation update

Part 1 of 3 - Key employment framework of Queensland’s public sector reforms

By Andrew Tobin and Fran Keyes / 27 October 2020
25 min.
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Recent alert on proposed legislative changes

In a recent alert titled Stage 1 reforms for Queensland public sector encourage job security and positive performance management Andrew Tobin and Fran Keyes from our Workplace and Employment team outlined key proposed legislative changes to the Public Service Act 2008 (Qld) (PS Act), the Industrial Relations Act 2016 (Qld) (IR Act), and the Public Interest Disclosure Act 2010 (Qld) (PID Act).

The alert outlined the key amendments to the PS Act proposed by the Public Service and Other Legislation Amendment Bill 2020 (the Bill), aimed at improving job security for public sector employees, restricting non-permanent employment and implementing better dispute resolution processes through the application of ‘positive performance management’ principles. The alert also emphasised the need for public sector managers and HR professionals to undertake more careful preparatory work and exercise greater care when managing employee performance issues.

We understand what you face and we can help

A lot of thought went into preparing the material that follows. We saw the value in providing  our agency clients a one-stop shop of these recent changes.

We do understand what it is like to manage the complex issues that public sector managers and HR professionals face every day, during periods of uncertainty and transition like this. Fran worked until recently in senior management legal roles within the Queensland public sector.

Reforms now law

The Bill was passed by the Queensland Legislative Assembly and took effect on 14 September 2020. 

In a three-part publication, we unpack in detail the changes to the PS Act for agency clients. We point to what was there before, what has changed, and the 11 directives recently issued by the Public Service Commission Chief Executive (CCE) that support these changes. Five new directives and amendments to six existing directives were published on 25 September 2020. 

A summary of the legislative changes and the full text of each directive can be found on the Queensland Government website linked here.

In this first of three publications we address the most topical areas of change, namely:

In the second part we address the important changes in the following areas:

  • appeals;
  • independent medical examinations; and
  • individual employee grievances.

In the third part we address the final areas of change, namely:

  • recruitment and selection;
  • fixed-term temporary employment; and
  • casual employment.

Positive performance management (PPM)

There are three significant changes to section 25 PS Act relating to the management and employment of public service employees.

  1. Positive performance management principles must now be applied in addition to best practice human resource management in the management and employment of public service employees. See new section 25(2)(a) PS Act.
  2. Employment on tenure is the default basis of employment. See new section 25(2)(d) PS Act.
  3. PPM principles are outlined in the new section 25A PS Act to ensure best practice human resource management, recognising that public service employees are selected on merit under the merit principle. These principles are as listed in our recent alert. New section 25A(3) requires the CCE to make a directive about how the PPM principles are to be applied.

The positive performance management directive is new. There’s no corresponding directive or framework.

When does it start?

  • It applies to management action, performance development agreements and ‘performance improvement plans’ (PIPs) initiated after the commencement date of the directive, 25 September 2020.

What does the directive do?

Outlines the principles of PPM in section 25A of the PS Act.

  • Details the processes for managing employee work performance, including during induction and probation.
  • Describes the use of performance and development agreements.
  • Requires managers (which includes any employee whose duties involve or include managing other public service employees in the carrying out of their duties) to take proactive and appropriate action in response to unacceptable work performance.
  • Requires managers to incorporate PPM into their agency’s practices and policies, as well as their induction processes.
  • Details the process of managing unacceptable work performance in a supportive way – it provides the form and describes the implementation of a PIP – but requires compliance with PPM prior to the taking of performance-based disciplinary action.
  • Outlines the right to appeal decisions taken or not taken under the directive as per section 194(1) of the PS Act.
  • Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

Who does it apply to?

Public service employees, including public service officers (other than chief executives, senior executives and senior executive equivalents), general employees, fixed-term temporary employees and casuals (the last two reflect broader policy changes in how temporary employees are categorised: section 9). 

Salient points

  • Stipulates that the process for managing unacceptable work performance must be supportive and take into account work and non-work related matters that may be affecting the employee such as:
    • Non-work: includes personal circumstances that may be impacting their work performance (e.g. domestic violence, family caring responsibilities, or a medical condition).
    • Work-related: includes workload issues, workplace conflict or poor communication.
  • Requires agency chief executives (including persons to whom the chief executive has delegated the decision making power) to take PPM action prior to initiating a PIP, and allows agency chief executives to initiate a PIP as a structured process to address unacceptable work performance but only in circumstances where the agency chief executive (CE) considers it fair and reasonable to do so, which involves these conditions having been met:
    • The expected level of work performance for the role has been documented and provided to the employee who has had a reasonable opportunity to demonstrate the expected level of work performance.
    • The expected level of work performance was relevant and appropriate for the role.
    • The unacceptable work performance or gap between actual and expected performance has been previously raised, documented and discussed with the employee.
    • Appropriate support was offered, and a reasonable period of time allowed to self-correct.

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Discipline

Changes to the PS Act carve out the suspension provisions (from the repealed section 189) and rationalise them into the new section 137 and make a clearer distinction between poor work performance and personal conduct on one hand (in which case disciplinary action is a last resort unless the conduct is repeated or sufficiently serious), and misconduct on the other (likely to warrant disciplinary action in the first instance):

  1. Suspension is now separated out from the disciplinary provisions and rationalised in a new section 137. Former section 189 (suspension in disciplinary cases) has been repealed. See also amended sections 190 and 192 PS Act.
  2. Amended section 192 deals only with termination. The CE must give notice to the employee of the termination and state the day the termination takes effect, which is what was there before.
  3. In disciplining a public service employee or former public service employee, a CE must comply with the PS Act plus any relevant directive, and the principles of natural justice. Natural justice was an existing requirement, and the directive requirement is new.
  4. An agency chief executive must not take disciplinary action against a public service employee for poor performance until the CE has complied with the PPM principles stipulated under the new PPM directive (as explained above). See new section 186C PS Act.
  5. The amended section 187 sets out the grounds for discipline with the following changes:
    • A CE may only discipline an employee if reasonably satisfied the employee has engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties (note the type of performance is also expressly stated) including for example, by performing duties carelessly, incompetently or inefficiently. See new section 187(1)(a). Note the old section 187(1)(a) simply required the CE to be reasonably satisfied that the employee performed his/her duties carelessly, incompetently or inefficiently. This appears to pick up a wider class of conduct, albeit that action may be taken only for repeated breaches. 
    • A CE may discipline an employee if reasonably satisfied the employee has contravened, without reasonable excuse, a provision of the Act only. See new section 187(1)(f). Note it is no longer sufficient to rely on a contravention of a standard of conduct or standard of practice under the Public Sector Ethics Act 1994 unless it meets the new section 187 (1)(g) below (our emphasis).
    • A contravention of a relevant standard of conduct may only become a basis for discipline in the following circumstances:  A CE may discipline an employee if reasonably satisfied the employee has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action (our emphasis). See new section 187(1)(g). Note new section 187(4) defines ‘relevant standard of conduct’ to mean a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
  6. The CCE must make directives about managing disciplinary action and procedures for investigating grievances or allegations relating to a public service employee’s work performance or personal conduct. See new section 192A(1) PS Act.
  7. Such directives must make provision for periodic review of disciplinary action being considered or undertaken; how natural justice requirements may be met, and; the circumstances in which a contravention of the relevant standard of conduct under section 187(1)(g) is to be considered sufficiently serious to warrant disciplinary action. See new section 192A(2) PS Act.

The discipline directive is new. Guideline 01/17 relating to ‘Discipline’ is obsolete due to the important differences.

When does it start?

  • Applies to disciplinary action initiated after the commencement date of the directive, 25 September 2020, including against former public service employees.

What does the directive do?

  • Outlines the process for managing disciplinary action under the PS Act, including how natural justice requirements may be met. There are detailed guidelines outlining the show cause process for disciplinary finding. 
  • Provides for periodic reviews of disciplinary action being considered or undertaken, including the period within which reviews must be conducted, to ensure timely resolution of disciplinary matters.
  • Subject to certain conditions, provides the ability for an employee to request a review by the CCE of a procedural aspect of an agency’s handling of a discipline process.
  • Separates discipline pathways for matters relating to performance and conduct. 
    • Specifically, discipline for performance:
      • A CE must not take disciplinary action against an employee for a matter relating to the employee’s performance until the CE has complied with the directive about positive performance management – see section 186C PS Act.
    • Specifically, discipline for conduct:
      • A CE may discipline an employee if they are reasonably satisfied a ground for discipline arises – see section 187 PS Act.
      • States the circumstances in which a contravention of section 187(1)(g) of the PS Act (contravention of a ‘relevant standard of conduct’) is likely to be considered sufficiently serious to warrant disciplinary action – that is where the CE forms a view that management action is not likely to address and/or resolve the work performance matter. In forming this view, the CE must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the CE must consider other matters (set out under ’salient points’ below).
  • Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

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

  • Stipulates that disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct.
  • Discipline is not appropriate for matters which may be dealt with through management action including ADR, use of warnings or PPM, or matters that are Public Interest Disclosures under the Public Interest Disclosure Act 2010 or must first be referred to the CCC, QPS or other agency for assessment.
  • Promotion of integrity is the purpose of discipline. It’s as much about maintaining a ‘disciplined workforce’ as implementing supportive and corrective actions for an employee subject to discipline.
  • Discipline must be timely, fair, appropriate and proportionate to the seriousness of the work performance matter and comply with natural justice principles.
  • In forming a view about the seriousness of the conduct, the CE should consider:
    • Whether there are recent previous and/or repeated instances of inappropriate conduct, and management action has recently been taken for similar conduct.
    • The impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector.
    • Whether the alleged conduct is reasonably suspected to have caused actual harm or a risk to health and safety.
    • The nature of the alleged conduct.
    • If it is of a more serious nature but is a single and/or isolated incident of poor conduct (not a pattern of unreasonable behaviours), whether to provide the opportunity and support for the employee to demonstrate sustained correction of their conduct.

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Suspension

These are the changes to the PS Act relating to the suspension of public service employees, specifically:

  1. Section 189 (Suspension of public service employee liable to discipline) has been repealed. The old section 189 provided for a chief executive to suspend an employee if the CE reasonably believed the employee was liable to discipline under a disciplinary law, but only after they considered any alternative duties suitable for them. It also stated that a CE could cancel the suspension at any time.
  2. Section 191 (Effect of suspension from duty) has been repealed.
  3. Section 137 (Suspension other than as disciplinary action) has been repealed. It has been replaced with a new section 137 that combines aspects of the superseded version of new section 137 and the former section 189.
  4. A CE may only suspend an employee if reasonably satisfied (a) for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or (b) for a public service employee—the employee is liable to discipline under a disciplinary law. See new section 137(1) PS Act.
  5. The suspension notice must state (a) when the suspension starts and ends, and (b) whether the person is entitled to remuneration for the suspension period, and (c) the effect that alternative employment may have on remuneration. See new section 137(2) PS Act. Suspension does not break continuity of service (see new section 137(7) PS Act).
  6. Prior to suspension the CE must consider all reasonable alternatives, including alternative duties, a temporary transfer or alternative working arrangements, that are available. See new section 137(3) PS Act.
  7. The public service employee is entitled to normal remuneration during suspension unless the employee is liable to discipline under a disciplinary law and the CE considers it not appropriate for the employee to be entitled to normal remuneration having regard to the nature of the potential discipline. See new section 137(4) PS Act. In cases where normal remuneration continues, deductions must generally be made for remuneration earned from alternative employment. See new sections 137(5) and (6).
  8. A CE may cancel the suspension at any time. See new section 137(8) PS Act.
  9. A CE must comply with the principles of natural justice (except where the person is entitled to normal remuneration while suspended), the PS Act, and the suspension directive made under section 137A. See new sections 137(9) and (10) PS Act.
  10. The CCE must make a directive about the procedures for suspension. See section 137A(1) and (2) PS Act.
  11. An appeal can be made against a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision). See new section 194(1)(bb) PS Act.

The suspension directive is new. There’s no previous corresponding directive.

When does it start?

  • Applies to suspensions initiated after the commencement date of the directive, 25 September 2020.

What does the directive do?

  • Outlines the procedures relating to suspension.
  • Details the periodic reviews of suspension matters.
  • Establishes natural justice considerations, including requirements about providing reasons for decisions about suspensions.
  • Describes the circumstances in which a CE may decide a public service employee is not entitled to normal remuneration during their suspension.
  • Details the circumstances where an employee suspended without remuneration may be reimbursed for remuneration they do not receive during suspension after a determination on discipline penalty is made.
  • Supports the PSA requirements relating to suspension, namely that suspension is an administrative action, taken for administrative necessity. It is not disciplinary action and is not to be used as a form of punishment. It should be used as a last resort after a decision maker considers all alternative duties prior to making the decision to suspend an employee.
  • Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

Who does it apply to?

  • Where indicated, to 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. 
  • In some respects, where indicated, applies only to public service officers as defined in section 9.

Salient points

  • Suspension considerations including stating an actual end date not by reference to events, requiring the CE to consider all reasonable alternatives before suspension including outside usual place of work, and importantly documenting and providing to employee duties and other options identified and considered including why the employee could not undertake those options. Also includes asking the employee if they wish to access accrued recreation and/or long service leave – access is at the discretion of the employee.
  • Agencies need to have ongoing and clear communication with suspended employee throughout the suspension process and immediately before returning to work, including to reintegrate into the workplace. An appropriate contact person may be assigned to perform this function. 
  • The employee to also be offered support on an ongoing basis whilst on suspension e.g. referral to an employee assistance program, participation in a mentoring process with a third party.
  • Suspensions may be extended by the CE.
  • Suspended employee may ask CCE for review of a suspension procedural aspect of the agency’s handling of a work performance matter (but not a corrupt conduct matter) if believes the CE has not complied with the directive. In addition, the suspended employee must have utilised internal review procedures amongst other matters.
  • Employee may appeal a decision to suspend without remuneration to the Queensland Industrial Relations Commission (QIRC).

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Workplace investigations

These are the changes to the PS Act relating to workplace investigations for public service employees:

  1. A public service employee’s work performance and personal conduct must be directed towards continuous improvement in relation to the employee’s work performance, including through training and development. See new section 26(1)(f) PS Act. Note the old section 26(1)(f) stated such conduct be directed towards improvement in all aspects of the employee’s work performance – that has been repealed. The new section places emphasis first and foremost on supporting the employee through training and development.
  2. Employees may request an internal review of the procedural aspects of the relevant department’s workplace investigation of an employee’s work performance matter by the CCE. See new section 88IA PS Act.
  3. There is a further new appeal right available to employees. The new section 194(1)(ba) provides an appeal against a CCE decision under new section 88IA PS Act to give a direction about rectifying a defect in the procedural aspects of the handling of a work performance matter.
  4. The CCE must make directives about (disciplinary action and) investigating grounds for discipline and grievances. See new section 192A PS Act.

The workplace investigations directive is new. There’s no corresponding directive or framework.

When does it start?

  • Applies to workplace investigations initiated after the commencement date of the directive, 25 September 2020.

What does the directive do?

  • Outlines the procedures for investigating the substance of a grievance or allegation relating to a public service employee’s work performance or personal conduct.
  • Outlines how natural justice requirements may be met in relation to a workplace investigation.
  • Provides for periodic reviews of a workplace investigation, including the period within which reviews must be conducted, to ensure timely finalisation of the investigation.
  • Provides mandatory internal and external timeframe review periods built in for investigation processes, and the ability for an employee to request an external review by the CCE.
  • Sets out requirements for the conduct of investigations and the use of external investigators to conduct investigations.
  • Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

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

  • A workplace investigation, whether internal or external, is not a disciplinary step. It is a separate process to any formal disciplinary process as provided for under chapter 6 of the PS Act. A formal investigation must be conducted in an appropriate, fair, timely and resource-effective manner.
  • When determining whether to conduct a workplace investigation, a CE must consider:
    • the seriousness of the alleged conduct;
    • whether or not there is a sufficient amount of evidence already available (and whether a workplace investigation in these circumstances is an appropriate use of agency resources);
    • how natural justice requirements will be met, and
    • whether there is a more appropriate option to resolve the matter through management action, alternative dispute resolution, or implementation of positive performance management strategies including a PIP.
  • A workplace investigation must (in accordance with section 192A(2) PS Act):
    • be free from conflict of interest or bias, with separation of the role of investigator and decision maker;
    • have clear terms of reference that ensure transparency of process;
    • be conducted in accordance with the principles of natural justice;
    • make allowance for the involvement of support persons and/or industrial representatives;
    • be conducted in a way that ensures confidentiality is maintained, as far as possible and to the extent it is essential for a fair investigation;
    • be conducted ethically and lawfully;
    • be conducted in a timely way that is proportionate to the allegations or concerns;
    • involve regular and transparent communication;
    • be conducted by an employee of the agency wherever possible. External investigations are the exception
  • Consistent with natural justice principles, an investigation must be conducted in a fair and balanced manner with no predetermined views, and an investigator must:
    • act fairly and without bias, ensuring they do not make findings for which they have a conflict of interest;
    • inform a subject employee of the substance of any allegations against them, or grounds for adverse comment about them;
    • give participants in an investigation a reasonable opportunity to put their case, whether in writing or at an interview, or otherwise hear all relevant parties and consider submissions from them;
    • make reasonable enquiries before finalising an investigation;
    • conduct the investigation in a timely way.
  • Note, however, that natural justice does not require the employee be given access to every document seen by, or information given to an investigator. The subject employee must be made aware of what they are accused of and by whom, with sufficient particularity to be able to answer the allegations, and be given the opportunity to answer the allegations.

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Appointment to a higher classification

New processes are set out in new provisions of the PS Act relating to the appointment of public service employees acting at a higher classification level:

  1. The new section 149C sets out this process. It is as follows:
    • With some exceptions, a public service employee seconded under section 120(1) PS Act or acting at a higher classification level in the agency, for a period of continuous service over a year, is eligible for appointment to the higher classification level having regard to the merit principle – see new sections 149C(1), (2) and (3) PS Act.  
    • The employee may then ask the CE to appoint him/her to the higher position as a general employee on tenure or a public service officer after the end of a year and each one year period after that – see new section 149C(3) – and the CE must decide the request – see new section 149C(4) PS Act.
    • In making the decision, the CE must have regard to (section 149C(4A)):    
      • the genuine operational requirements of the agency, and
      • the reasons for each decision previously made under the section in relation to the person’s continuous period of employment at the higher classification level.
    • If the CE refuses the request, the CE must notify the employee stating (section 149C(5)):
      • reasons for the decision, and
      • the total continuous period the person has been acting at the higher level, and
      • how many times the person’s engagement at higher classification has been extended, and
      • each previous decision in relation to the person.
    • If no decision is made by the CE, that constitutes a refusal – see new section 149C(6).
  2. Section 194 introduces a new right to appeal a decision pursuant to section 149C, via a new provision in section 194(1). Section 194(1)(e)(iii) states that employees have the right to appeal a decision under section 149C not to appoint to a higher classification level position, where they have been seconded to or acting in that role for a continuous period of two years. 
  3. Section 195 introduces new provisions relating to decisions against which appeals cannot be made. For example section 195(1)(j) provides that employees cannot appeal against a decision under section 149C not to appoint them 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. 
  4. The CCE must make a directive about appointing an employee to a position at a higher classification level under section 149C – see section 149C(7).

The appointment of a public service employee to a higher classification level directive is new. There’s no corresponding directive or framework.

When does it start?

  • Applies from the commencement date of this directive, namely 25 September 2020. 
  • Under the transitional arrangements employees who, by 13 December 2020, had been seconded to or on higher duties for at least one year, may request appointment at the higher level by that date. Service in a higher appointment before 14 September 2020 otherwise counts for relevant purposes in any event (see section 295 PS Act).

What does the directive do?

  • Highlights key sections in the PS Act relating to appointment of a public service employee assuming the duties and responsibilities of a position at a higher classification level.
  • Supports the opportunity to appoint an employee to a higher classification level where that employee has performed the role for over a year and is eligible for appointment having regard to the merit principle.
  • Sets out procedures for requests and decisions.
  • Provides for a 28-day decision period, otherwise deemed refusal. 
  • Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

Who does it apply to?

  • Public service officers 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 agency in which the employee is substantively employed.
  • Does not apply to a casual employee, non-industrial instrument employee, or an employee who is seconded to or acting in a position ordinarily held by a non-industrial instrument employee.

Salient points

  • The requirement to advertise roles does not apply when permanently appointing an employee under this directive – this directive provides an exemption.
  • Compliance with a recruitment and selection directive still applies to an agency seeking to permanently appoint an employee to a higher classification level prior to the employee becoming eligible to request an appointment under section 149C PS Act.

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What’s next

Part 2 of the alert addresses further changes to the PS Act. It is coming to you shortly.

Public sector agency managers and HR professional who understand the nuances of these legislative changes will transition more smoothly, with less risk, than those that don’t.

The challenge for agencies will be balancing competing and increasingly complex priorities. Coinciding with the amendments are expectations on agencies to maintain (preferably reduce) agency spend while numbers of tenured staff increase. Agencies also face heightened accountability around managing staffing issues. COVID-19 is  also still very much in the mix.

Dealing with performance, conduct and upcoming tenure issues at the earliest possible stage is key. Prevention is better than finding a cure. 

Our Workplace and Employment team can help you successfully navigate this new employment framework, within your agencies. In November we will offer agency clients practical insights into these changes to the PS Act via webinar. Details to be provided soon.

Please contact Partner, Andrew Tobin or Special Counsel, Fran Keyes for further information.

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Authors
Andrew Tobin
Partner
Andrew is a Partner and the head of HopgoodGanim Lawyers’ Workplace and Employment practice.
Fran Keyes
Special Counsel
Fran is a Special Counsel in our Workplace and Employment practice.

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