17 Aug 2020

Higher threshold for disciplinary action and more permanent employment on the way for Queensland public service

By Christy Miller and Storm Scarlett

The first wave of proposed changes stemming from the Bridgman Review will require greater scrutiny of temporary employment, performance management and discipline decisions by public sector agencies.

The Public Service & Other Legislation Amendment Bill 2020, introduced into State Parliament on 16 July 2020, is intended to address employment security and recognition of quality work in public sector jobs. If passed, the Bill promises to go beyond the notions of job security and work recognition, addressing the nature of public sector engagement and the difficult twin issues of performance management and disciplinary action.


Bridgman Review

The Bill follows the independent Bridgman Review into the effectiveness of Queensland public sector employment laws, which made 99 recommendations in total ranging from:

  • restrictions on temporary employment;
  • tweaks to show cause, performance management and disciplinary processes; and
  • recommendations on the use of external investigators and the need for more guidance and structure around suspension and dismissal.

This Bill is the first stage of the proposed reforms arising from these recommendations of the Bridgman Review and focuses on:

  • employment security in public sector employment; and
  • this concept of "positive performance management" of public sector employees.

If passed, the Bill will implement amendments to the Public Service Act 2008 (Qld) (PSA), the Industrial Relations Act 2016 (Qld) (IRA) and the Public Interest Disclosure Act 2010 (Qld).


Permanent employment to be the default basis for public sector employment

The Bridgman Review recommended that public service employment should generally be ongoing, and that temporary and casual employment should be restricted to temporary circumstances. While not mentioned in the Bridgman Review, this demonstrates an alignment with concerns being raised in the Federal industrial arena over the misclassification of what is true casual or temporary employment and will likely address concerns associated with regular and systematic casuals and accrual of entitlements.

The Bill's stated aim is to improve employment security in the public sector by making permanent employment the default basis of employment. Under the proposed amendments to the PSA, employment on a fixed term or casual basis will only be permitted if:

  • the work to be performed is not a type of work ordinarily performed by a public service officer; or
  • the work to be performed is a type of work ordinarily performed by a public service officer (other than a chief executive or senior executive officer), but employment on tenure is not viable or appropriate.

Factors relevant to determining whether employment on tenure is viable and appropriate include whether the employment:

  • is required on a frequent or regular basis;
  • is to fill a temporary vacancy arising because a person is absent for a known period (eg. secondment, approved leave, including parental leave);
  • is to perform work for a particular project with a known end date;
  • is to fill a position for which funding is uncertain or unknown; or
  • is to perform work necessary to meet an unexpected short-term increase in workload.

Casual and fixed term temporary employees who have completed 12 months of continuous service will have the right to request conversion of their employment to tenured employment. A decision not to appoint an employee to tenured employment cannot be appealed at the 12-month mark, but can be appealed at the mandatory two-year conversion review.

Similarly, if a public service employee is acting in a position at a higher classification level (eg. by secondment), the employee may request to be appointed to the position at the higher classification level. A decision not to appoint an employee to a position at a high classification level cannot be appealed.

The consequence of these changes will likely be:

  • increased difficulty in utilising temporary or casual employment;
  • an enhanced documentary requirement to demonstrate the proposed casual/temporary employment is "not viable or appropriate" as ongoing employment; and/or
  • the management of additional employment conversion requests.

Positive performance management principles

Two further recommendations from the Bridgman Review were the separation of performance management and improvement from discipline, and a requirement for positive performance action as a prerequisite to disciplinary action.

In an effort to address these recommendations, the Bill establishes "positive performance management principles" in the PSA which provide that the management of public service employees must be directed towards:

  1. proactively managing the personal and professional development of employees with a view to continuously build expertise within the public service;
  2. ensuring regular and constructive communication between managers and employees in relation to work performance and personal conduct principles;
  3. recognising the strengths, requirements and circumstances of individual employees and valuing their contributions;
  4. recognising performance that meets or exceeds expectations;
  5. providing opportunities and support to employees for improving performance;
  6. continuously improving performance through the provision of training and development;
  7. identifying at the earliest possible stage performance that does not meet expectations;
  8. integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

A directive is to be published by the Public Service Commission Chief Executive about how the positive performance management principles are to be applied.

The positive performance management principles must also be applied before disciplinary action is taken for a performance matter. This is intended to promote employee-initiated improvements, alternative dispute resolution process or informal management intervention before performance based disciplinary action is taken.

Of course, these principles represent best practice for performance management for both the private and public sectors. The articulation of these principles in legislation, however, is likely to create complications for public sector employers when performance management standards slip below best practice, setting a very high bar to meet, opening up additional challenges to disciplinary action and increasing the complexity to employment management generally.


Higher threshold for disciplinary action

In its current form, the PSA allows for a public service employee to be disciplined where the employee has "performed the employee's duties carelessly, incompetently or inefficiently". This ground for discipline is also set to be amended by the Bill so that performance based discipline will only occur when an employee has engaged in repeated unsatisfactory performance or serious under-performance of their duties. While this will include where duties have been performed carelessly, incompetently, or inefficiently, it must be established that this is repeated behaviour before disciplinary action can be taken.

Similarly, another ground for discipline currently provides for an employee to be disciplined where there is a contravention of a relevant standard of conduct without reasonable excuse. This ground is to be clarified to require that the contravention be "sufficiently serious to warrant disciplinary action".

The words "sufficiently serious" indicate that disciplinary action should not be taken for minor infringements. This distinction has likely been made in order to encourage employers to implement the positive performance management principles for minor instances of poor conduct prior to taking disciplinary action. Further guidance and examples of conduct that is likely to be considered "sufficiently serious to warrant disciplinary action" are to be published in a directive by the Public Service Commission Chief Executive.

Again, while it is slight, it is a raising of what was already a high bar in the Queensland Public Service for disciplinary action.


Expansion of IRA coverage, Queensland Industrial Relations Commission's jurisdiction and Industrial Court of Queensland's jurisdiction

If passed, the Bill will enable public service appeals to be heard under the IRA by the Queensland Industrial Relations Commission. Currently, appeals are heard by members of the Commission performing functions under the PSA, not the IRA. The Bill also amends the Public Interest Disclosure Act to allow the Commission to hear applications for relocation of a public service employee who considers it likely a reprisal will be taken against them if they continue in their existing work location. The jurisdiction of the Industrial Court of Queensland is also set to be expanded to include hearing and deciding appeals under the PSA.


The Bill has been referred to the Education, Employment and Small Business Committee for comment. It is just the first wave of likely changes stemming from the recommendations of the Bridgman Review and public sector agencies will need to prepare for, once passed, greater scrutiny of their use of temporary employment, performance management and discipline decisions.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.