Proposed legislative changes
The Public Service and Other Legislation Amendment Bill 2020 (Bill) was introduced into State Parliament on 16 July 2020. This Bill seeks to progress the priority stage one reforms following completion of the Bridgman Review (Review) in May 2019. The Review identified significant problems in Queensland public sector employment laws and practices, which the Bill seeks to progress in two main areas: job security and “positive performance management”.
If the Bill passes it heralds amendments to the Public Service Act 2008 (Qld) (PSA), the Industrial Relations Act 2016 (Qld) (IR Act), and the Public Interest Disclosure Act 2010 (Qld) (PID Act).
These changes echo recent developments on the mis-classification of casual employment following the Skene and Rossato decisions.
The changes will also likely see an increase in the complexity of and challenges to performance management processes.
Improved job security for public sector employees
The Bill’s stated aim is to improve job security by making permanency the default basis for public sector employment. Fixed term or casual employment or other non-permanent employment is to be restricted to circumstances where ongoing employment is not viable or appropriate, or if the work performed is not the type ordinarily performed by a public service officer.
Factors indicating casual or non-permanent employment
Non-permanent employment will be allowed only if it is:
- to fill a temporary vacancy arising because a person is absent for a known period e.g. secondment or approved leave including parental leave;
- to perform a particular project with a known end date;
- to fill a position where funding is uncertain or unknown;
- to perform work necessary to meet an unexpected short-term increase in workload; or
- the employment is required for any of these purposes on a frequent or regular basis e.g. to backfill multiple absences.
Conversion requests – when and what do you get?
After 12 months of continuous service, casual and fixed term employees can request conversion of their employment to tenured employment.
There is no right to appeal at the 12-month mark, but there is at the two-year conversion review.
Public servants who act in positions at a higher classification, for example secondments, may request appointment at that higher level.
Consequences for public sector managers and employees
The proposed changes will introduce additional management challenges in utilising temporary or casual employment, including increased evidentiary requirements to demonstrate that tenured employment is not viable or appropriate and an increase in employment conversion requests.
Positive performance management principles
The Bill introduces separation of performance management and improvement from discipline. It also introduces an additional requirement for positive performance management action before commencing disciplinary action.
The focus clearly is to encourage alternative processes, such as alternative dispute resolution or informal discussions, as the first port of call.
Performance management of public sector employees must occur within the framework of “positive performance principles” set out in the PSA namely:
- proactively managing the personal and professional development of employees with a view to continuously building expertise within the public sector;
- ensuring regular and constructive communication between managers and employees in relation to performance and conduct;
- recognising strengths, requirements and circumstances of employees and valuing their individual contributions;
- recognising performance that meets or exceeds expectations;
- providing opportunities and support to employees for improving performance;
- continuously improving performance by providing training and development;
- identifying at the earliest possible stage under-performance; and
- integrating the above into management practices and policies.
The Public Service Commission Chief Executive will publish directives about how the positive performance management principles are to be applied.
Raising the bar
The most common discipline grounds utilised currently in the PSA is that the employee has “performed the employee’s duties carelessly, incompetently or inefficiently”, or has breached a relevant standard of conduct.
The Bill proposes that performance-based discipline will only take place when the employee has engaged in repeated unsatisfactory performance or serious under-performance in their duties, including, for example, performing duties carelessly, incompetently or inefficiently. It also proposes that where there is a breach of a standard of conduct, the additional requirement of the breach being sufficiently serious to warrant disciplinary action must be satisfied.
IR coverage, jurisdictional expansion of QIRC and Industrial Court
Public service appeals are currently heard by Queensland Industrial Relations Commission (QIRC) members under the PSA. The Bill proposes that appeals be heard by the QIRC under the IR Act.
There are also proposed changes to the PID Act allowing the QIRC to hear applications by public sector employees seeking to relocate to ward off likely reprisals, should they remain in their usual work location. The Industrial Court’s jurisdiction will expand to include determining PSA appeals.
These changes if passed represent a significant shift in favour of public sector employees in terms of job security and performance management processes.
Public sector agencies are well placed to continue exercising best practice within the prism of “positive performance principles”.
Disciplinary action for one-off, minor or irregular poor performance or code of conduct breaches will require closer consideration and more careful preparatory work.