4
[Extract from Queensland Government Industrial Gazette,
dated 2 October, 2009, Vol. 192, No. 5, pages 75-79]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 - s. 278 - power to recover unpaid wages and superannuation contributions etc.
Perry Keith Langley AND Queensland Police Service
(B/2008/97)
DEPUTY PRESIDENT BLOOMFIELD / 18 September 2009DECISION
Mr Perry Langley is a Senior Information Officer within the Records Management branch of the Queensland Police Service (QPS). His position was reclassified at an AO6 level (from AO5) on 30 May 2008 and he was subsequently directly appointed to that position on or around 20 August 2008 pursuant to the provisions of clause 7.12 - Direct appointment to roles at a higher level of Directive 04/06 Recruitment and Selection.
The reclassification of his role, and direct appointment to the higher level position, was the culmination of a long and tortuous process undertaken by Mr Langley to have his (previous) position upgraded. The present application to the Commission, under s. 278 - Power to recover unpaid wages and superannuation contributions, is a continuation of Mr Langley's attempts to achieve proper recognition and reward for performing a role he believes has been underclassified for a considerable period of time.
Documentation filed by Mr Langley establishes he was unsatisfied with his classification from at least late 2003. In that respect, he points to his nomination by QPS in early 2004 to a whole-of-government document and records management solution working party, participation on which was confined to Officers at levels AO6 and above. During the time he participated on this working party all other participants were paid at their substantive levels (AO6 or above) while Mr Langley continued to be paid, by QPS, at his normal level of AO5.
After a number of (unsuccessful) informal attempts to have his position reclassified, Mr Langley lodged a formal request for a review of his position description to be undertaken according to the provisions of section 2.5(6) of the QPS HRM Manual on 10 March 2006. Despite this being a formal request Mr Langley was informed by the then Manager, Administration Branch that his request would not be processed at that time because there was to be a complete review of the Administration Division. After it was established that the review was not to be as far reaching as had been put to him, Mr Langley sought to progress his review in or around late October 2006. However, his original request for a review could not be found. As a result he formally re-submitted his request on 5 December 2006.
However, instead of giving this fresh request for a review some priority, the responsible Officers in QPS let the matter languish and drift, as shown by the following chronology.
· 5 December 2006 - Mr Langley submitted his request for a classification review to the Acting Manager, Administration Branch.
· 15 January 2007 - Mr Langley emailed the Acting Manager requesting an urgent response to his request for an upgrade of positions in his Department, including his own.
· 5 February 2007 - Mr Langley's direct manager, Manager (Corporate Records), requested a review of 4 positions within the section (including Mr Langley's).
· 12 February 2007 - The Acting Manager, Administration Branch submitted this request to the Director, Administration Division.
· 15 February 2007 - The Director, Administration Division forwarded the request to the HR Manager, Corporate Services for necessary action.
· 12 March 2007 - Mr Langley emailed his direct supervisor, Manager (Corporate Records), requesting an update on his request for review dated 5 December 2006.
· 13 March 2007 - The Manager (Corporate Records), requested an update from the Acting Manager, Administration Branch as to the status of the review of the 4 positions.
· 18 April 2007 - The Manager (Corporate Records) informed Mr Langley she had met with the then Personnel Officer (Corporate Services) on the previous day. This person indicated she would progress the request for the positions to be reviewed when she had finalised expressions of interest for another Senior Information Officer's (vacant) position.
· 2 July 2007 - Mr Langley emailed the Acting Manager (Corporate Records) requesting a status report on his 5 December 2006 request. This person forwarded the request to the Acting Manager, Administration Branch on the same day.
· 17 July 2007 - Mr Langley lodged a grievance in relation to the unfair and unreasonable delay in performing a review of his position description.
· 18 July 2007 - The Acting Director, Administration Division, wrote to the HR Manager, Corporate Services seeking his advice in relation to the action taken to date and the time frames envisaged to conduct a review of the 4 positions submitted on 5 February 2007. On the same day the Manager (Corporate Records) informed Mr Langley she had held a meeting with the Acting Manager, Administration Branch and the then Personnel Officer (Corporate Services) in order to resolve Mr Langley's grievance of the previous day. The Personnel Officer (Corporate Services) was unable to give timeframes for the review and indicated it would be done "when they can get to it".
· 1 August 2007 - Mr Langley submitted a Stage 3 grievance to the Deputy Commissioner (Operations) protesting the delay in undertaking the evaluation process.
· 7 August 2007 - The Stage 3 grievance was received by the Director, Human Resources Division who delegated the grievance to a Review Officer to investigate and prepare a report to him in accordance with Directive 4/03 Grievance Resolution.
· 29 August 2007 - The Grievance Review Officer submitted her report to the Director, Human Resources Division and the Deputy Commissioner (Operations). The Review Officer established there were a number of unjustifiable delays in the handling and processing of Mr Langley's request for a review of his position. She also found that he had not been forwarded certain material which had to be completed before the review could be undertaken. As a consequence, she recommended that this material be forwarded to him as a matter of urgency and that, once it was returned, the formal evaluation process of his position be undertaken as a priority.
In the ultimate, a JEMS review of Mr Langley's position description was completed on 8 October 2007. This examination established that his position should be classified at the AO6 level.
Despite this finding, Mr Langley was subjected to still further delay in having his position formally classified because of the various layers of bureaucracy (5 in total) which had to be gone through within QPS before the position upgrade could be confirmed. These involved a JEMS moderation process, formal approval by an Assistant Commissioner, formal approval by a Staffing Advisory Committee, formal approval by the Finance Committee and, finally, approval by what is described as the "Board of Management".
As a result, it was not until 30 May 2008 that the Board of Management formally approved reclassification of the role undertaken by Mr Langley from AO5 to AO6. Later, after considering a number of internal submissions supporting the step, Mr Langley was directly appointed to the newly classified AO6 position in accordance with Clause 7.12 of Directive 04/06 on the basis he had performed the role in question for not less than 2 of the proceeding 3 years. This direct appointment was formally approved on 20 August 2008 and Gazetted on 19 September 2008.
Despite his position being upgraded on 30 May 2008, and being formally confirmed into that role on 19 September 2008, Mr Langley seeks payment for work he claims to have performed at the AO6 level from 1 July 2002. This position is opposed by QPS which argues there is no basis to Mr Langley's claim and, even if there was, it would not be able to pay Mr Langley at a higher rate prior to 30 May 2008 because of the combined effects of the Public Service Act 1996 and Directive 04/06 - Recruitment and Selection, neither of which provide for retrospectivity in the case of reclassification.
Mr Langley's primary arguments in support of reclassification from 1 July 2002 are that, whilst he has been working at a higher level for many years, the provisions of the Industrial Relations Act 1999 limit retrospectivity to 6 years, and because that was the date the Public Records Act 2002 came into effect. Mr Langley argued this new Act considerably altered and affected the duties being performed by records management staff in QPS, particularly himself.
Mr Langley said the new Act placed more responsibility on public authorities to create records and manage them in a compliant manner. Whereas the Records Branch only had a unit focus prior to the introduction of this Act, the responsibilities of the Branch became much more significant, to a corporate level focus, after its introduction. The changes in the role and responsibilities of persons in the Records Management Branch, according to Mr Langley and Ms Mitchell, the Manager (Corporate Records), who also gave evidence, were essentially the same between 2002 and the time when the relevant positions were evaluated at a higher level in October 2007.
This evidence was supported by a memorandum from the Director, Administration Division, Ms Jennifer Reilly, to the Director, Human Resources Division, dated 2 July 2008. In her memorandum Ms Reilly indicated "both Ms Mitchell and Mr Langley have been incumbent in their respective positions since before 1 July 2002 and have been continuously performing the duties which resulted in the reclassifications for over 6 years.".
Ms Reilly also stated "based on the above information, Ms Mitchell and Mr Langley satisfy the requirements of section 7.12 of Recruitment and Selection Directive 04/06 for direct appointment to the positions of Manager (Corporate Records) (AO7) and Senior Information Officer (Records) (AO6), respectfully. I therefore recommend their appointment to the positions.".
However, in an affidavit filed in these proceedings, Ms Reilly resiled from the position mentioned immediately above. She recollected "feeling uncomfortable" about the direct appointment process in 2008 and consulted with the (then) Director, Human Resources, on more than one occasion. She also explained that the memorandum which she had forwarded to the Director, Human Resources, had been drafted by Mr Langley and claimed this document might have been developed to suit "his own self serving agenda.".
She also asserted that her comment in the memorandum, to the effect that the incumbents had held their positions since before 1 July 2002 and had been continuously performing the duties which resulted in the reclassification for over 6 years, was a reference to "the continuation of Mr Langley in the position for the purpose of gaining experience to such an extent that I could support the option of direct appointment and meet the Directive's requirements.".
In addition, Ms Reilly asserted that it would not be tenable to infer that Mr Langley had automatically assumed or exercised responsibilities from the 1 July 2002 introduction of the legislation "having regard to the direction the QPS continues to consider under the legislation in 2009". In addition, she said she was aware of "much change in the area over the previous 2 years with 16 staff transferred to the Shared Services Agency in 2006".
In the end result, I have decided not to accept the tenor of Ms Reilly's evidence in these proceedings. This is for 2 reasons. Firstly, by her own admission, Ms Reilly has little knowledge of the work performed by Mr Langley (and by Ms Mitchell) prior to her coming into the role of Director, Administration Division on 5 November 2007. As such, she is unlikely to have much knowledge (if any) of the nature of the work performed by Mr Langley prior to her appointment. Whatever might be her view now about the direct appointment of Mr Langley and Ms Mitchell to their respective roles in 2008 it is also clear that she consulted with, and was guided by, the (then) Director, Human Resources, Mr Jim Hardie, about the appropriateness of the direct appointment process. Based upon the comfort he provided, Ms Reilly felt it appropriate in July 2008 to support the direct appointment process.
Secondly, I did not think that Ms Reilly's "caveats" on the contents of her July 2008 memorandum can be supported by the actual words in the memorandum itself. It seemed to me that, for whatever reason, Ms Reilly was attempting to withdraw from the clear statements and sentiments she expressed some 12 months earlier despite what she wrote at the time being both clear and on the record. Judging from the other documentation tendered in these proceedings it also seems to have been an accurate reflection of the situation at the time, a position which was supported and/or accepted by many other executive level personnel within QPS - especially Mr Hardie, who is well known to the Commission as presently constituted from a number of other proceedings as a very competent albeit conservative individual.
Ms K. O'Brien, who appeared for QPS, said s. 66(1) of the Public Service Act 1996 provided for the Chief Executive of a government department to fix the classification levels of employees within a department. In accordance with this provision, the QPS Board of Management approved the reclassification of Mr Langley's position on 30 May 2008. Because of the limitations imposed by s. 66(1) Mr Langley could not be reclassified from an earlier date. Further, the provisions of Directive 04/06, which allowed direct appointment to a role at a higher level, did not provide for any retrospectivity.