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Plant v State of Queensland (Department of Education)[2021] QIRC 139

Plant v State of Queensland (Department of Education)[2021] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Plant v State of Queensland (Department of Education) [2021] QIRC 139

PARTIES:

Plant, Wendy

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/54

PROCEEDING:

Public Service Appeal - Appointment to a higher classification level

DELIVERED ON:

28 April 2021

MEMBER:

Merrell DP

HEARD AT:

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 19 February 2021 and on 29 March 2021, and Appellant's written submissions in reply filed on 12 March 2021

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – public service appeal – appellant requested respondent's chief executive to appoint appellant to a position at a higher classification level in which the appellant had acted – no decision made by the respondent's chief executive within the required period within the meaning of s 149C(4) of the Public Service Act 2008 – pursuant to s 149C(6) of the Public Service Act 2008, decision taken to have been made by the chief executive to refuse the request – whether that decision was fair and reasonable having regard to the 'genuine operational requirements of the department' within the meaning of s 149C(4A)(a) of the Public Service Act 2008 – the decision was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Department of Education State School Teachers' Certified Agreement 2019, cl 3.1 and 3.2

Directive 01/20 Employment Arrangements in the Event of a Health Pandemic, cl 11 and cl 12

Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.2

Industrial Relations Act 2016, s 451, s 562C and s 564

Public Service Act 2008, s 149C

Teaching and State Education Award - State 2016, cl 12.6

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Reasons for Decision

Introduction

  1. [1]
    Ms Wendy Plant is employed by the State of Queensland through the Department of Education ('the Department') as an Experienced Senior Teacher ('EST') of English as a Second Language ('ESL') at the Milpera State High School ('the School').
  1. [2]
    By email dated 30 November 2020, Ms Plant requested, pursuant to s 149C of the Public Service Act 2008 ('the PS Act'), to be appointed on a full-time basis to the higher classification level of Head of Department ('HOD') at the School ('the position'). There is no dispute by the Department that Ms Plant was eligible, pursuant to s 149C(3) of the PS Act, to make the request to be appointed to the position.
  1. [3]
    No decision was made to decide the request within the 'required period' within the meaning of s 149C(4) of the PS Act, the consequence of which was that pursuant to s 149C(6), the chief executive was taken to have refused the request as of 28 December 2020 ('the decision').
  1. [4]
    By notice of appeal filed on 28 January 2021, Ms Plant appealed against the decision. The notice of appeal should have been filed on or before 18 January 2021,[1] namely, within 21 days of 28 December 2020. The Department, in its submissions, acknowledges that its conduct by its email communication to Ms Plant dated 12 January 2021 about the outcome of her request may have led to Ms Plant's confusion about when the period, in which to appeal, began. Having regard to that email, that submission by the Department was properly made. The Department does not otherwise contend that Ms Plant's appeal is incompetent or that it is prejudiced by Ms Plant starting her appeal outside the limitation period. In those circumstances, I exercise my discretion, pursuant to s 564(2) of the Industrial Relations Act 2016 ('the IR Act'), and allow Ms Plant to start her appeal on 28 January 2021.
  1. [5]
    The question is whether the decision was fair and reasonable.[2]
  1. [6]
    The parties exchanged written submissions in accordance with a Directions Order dated 29 January 2021. Ms Plant's submissions, filed and served after the Department's submissions, were not only extensive, but made quite specific allegations about, amongst other things, the funding and enrolment numbers at the School which are material issues. Because of this, on 15 March 2021, I issued a Further Directions Order giving the Department an opportunity to reply to Ms Plant's submissions. The Department took up the opportunity and filed further submissions on 29 March 2021. Pursuant to s 451(1) of the IR Act, no hearing was conducted.
  1. [7]
    For the reasons that follow, the decision was fair and reasonable and, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.

Ms Plant's appeal notice

  1. [8]
    In her appeal notice, Ms Plant contends:
  1. I have performed duties and responsibilities of a higher classification level than my substantive role since 2012, and, on a continuous basis since July 2013. I applied under two separate merit processes, both involving submitting my Curriculum Vitae and addressing Selection Criteria in response to the Principal's Expression of Interest for the HOD Mathematics role. I was successful with both EOI processes. I have also been successful in EOI processes to relieve above level as Deputy Principal as stated below. I have not had any communication with my supervisors with regard to any issue with my performance of the role.
  1. Roles undertaken with duties and responsibilities at a higher classification than substantive role

2012 (8/10/12 - 14/12/12) 0.5 FTE Mathematics HOD

2013 (8/7/13 - 13/12/13) 0.5 FTE Mathematics HOD

2014 0.5 FTE Mathematics HOD (EOI application responding to Selection Criteria as documented in LCC minutes December 2013)

2015 0.5 FTE Mathematics HOD (new EOI process for 2015 appointment in November 2014)

2016 0.5 FTE Mathematics HOD (LCC minutes document Principal decision to continue the role without a new EOI process and to investigate permanency with ARD, John Norfolk Nov 2015)

2017 0.5 FTE Mathematics HOD (role continued)

2018  0.5 FTE Mathematics HOD (role continued)

2018  1.0 FTE Deputy Principal 16/7/18 - 31/7/18 and 22/8/18 - 21/9/18

2019  1.0 FTE Mathematics HOD (Workplace Reform in schools - Application approved)

2019  1.0 FTE Deputy Principal 23/4/19 - 28/6/19 and 8/8/19 - 18/10/19

2020  1.0 FTE Mathematics HOD (Workplace Reform extended - Application approved)

  1. No consultation with stakeholders, either at my school or in the Region, took place in consideration of my application due to school vacation.
  1. My application was submitted on November 30, 2020, and the Department did not make a decision by December 28, 2020. This resulted in the Department having deemed to have made a decision to refuse my request without being able to make an informed decision.
  1. I do not believe that my application to have my higher duties converted to permanent has been considered reasonably and fairly, nor within the Queensland Public Service Code of Conduct with respect to Natural Justice, as outlined in points 1 to 4 above.

The Department's submissions

  1. [9]
    The Department relevantly submitted that:
  • the School is an Intensive English Language school for newly arrived young people of refugee and migrant background and is usually the first school children from nonEnglish speaking backgrounds attend when they arrive in Queensland;
  • students spend between six weeks to two years at the School to improve their English before moving on to another school;
  • the number of students vary between 160 and 300, with the average number, at any one time, being around 200;
  • due to the Australian borders closing during the coronavirus pandemic, international, migrant and refugee student numbers have declined; and
  • the School was 'half empty' and the challenges it faces as a consequence was reported in the media on 13 December 2020.
  1. [10]
    The Department then submits:
  1. It is evident that Milpera SHS faces a high degree of uncertainty due to the anticipated further decline in student numbers and as a result is considering the need to deploy staff to other schools (Attachment C).
  1. The Respondent has since confirmed the current enrolment of 136 students at Milpera SHS, as of day eight (5 February) of Term l, 2021.
  1. However, as students transition out of Milpera SHS, and with limited new arrivals, the predicted head count by Term 3, 2021 is 70 students.
  1. Relevantly, in addition to contributing to the purpose of the HOD position, student enrolments provide financial capacity to support the position.
  1. Thus, when considering the 'genuine operational requirements of the department' in section 149(4A)(a) of the PS Act and in clause 6.2(a) of the Directive, the Respondent would have had to have 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department' and 'planning of human resources' to appoint to the higher classification level position.
  1. It is plainly evident that the Respondent did not have such a need, and that it was not viable or appropriate, to permanently appoint the Appellant to the HOD position in the face of declining student numbers.
  1. In fact, the HOD position was not continued in 2021 and the Appellant returned to her substantive EST ESL position on 9 February 2021.[3]

Ms Plant's submissions

  1. [11]
    Ms Plant relevantly submitted that:
  • the 'deemed decision' was made on 28 December 2020 and at that time the Department did not have sufficient information to make a fully informed decision as was evidenced by the Department's email to Ms Plant sent on 12 January 2021, in which the Department stated that, due to the school vacation and the Department's requirement to undertake consultation with the relevant school or regional office, it did not make a decision on or before 28 December 2020;[4]
  • on 28 December 2020, she was employed at the higher classification level of HOD Mathematics and had held that role continuously for more than seven years;[5]
  • the School's strategic plan 2019-2022 outlines '… my role under Mathematics Strategies as follows 'Workplace Reform of x1 FTE HoD Maths to lead curriculum, linking to Australian Curriculum where appropriate' for each of the 4 years';[6]
  • as at 28 December 2020, the Department had published indicative 'I4S' funding for the School in 2021 of $607,346;
  • the consequence of the matters referred to in the last two dot points meant that:
  • the Department's assertions in paragraphs 22, 23, 24 and 27 of its submissions (set out above) were not known on the date the deemed decision was made; and
  • the Department's conclusions in paragraphs 25 and 26 of its submissions (set out above) were not based on known information at the time of the deemed decision;
  • any consultation between the Acting Principal of the School and the Senior Human Resources Consultant in the relevant Regional Office (as referred to in paragraph 16 of the Department's submissions, namely, that in response to Ms Plant's request, the advice was that due to a loss in student enrolments from refugee and migrant students the School did not have the funding to support the HOD role for 2021) '… would have been based on the significantly underestimated I4S prediction, an underestimation of over $225 000, made by the Acting Principal', and as that was '… patently incorrect information, no fair and reasonable consultation would have been possible. Funding was available to support the HOD position';[7]
  • the purpose of the HOD position '… does not diminish in direct correlation to student enrolments, as asserted in the Respondent's Paragraph 24. The integrity of the Maths Curriculum and Programs must be maintained through the HOD role to ensure that Milpera SHS is able to provide excellent outcomes for current students and be fully prepared for the continuation of pre-pandemic, high-quality numeracy and mathematics education for the students. Leadership and management staff must be provided in an ongoing and consistent way with forward focused planning.';[8]
  • funding was available to support the HOD position (in 2021) because (as contended in paragraph 20 of Ms Plant's submissions):
  • enrolments at the School were not in 'terminal decline' because there have been 42 new enrolments since 27 January 2021, in contrast to 26 enrolments for the entire six months from July 2020;
  • the first time she was advised that her HOD role was to be discontinued was on 20 January 2021, which was seven days after she informed the Acting Principal of the decision;
  • the indicative 2021 I4S amounts for the School were published by the Department in October 2020 as being $607,346, and the Acting Principal shared her 'prediction' in her update on 7 December 2020, stating that she (the Acting Principal) believed the I4S funds would be $382,000, but on 22 February 2021, the School's I4S funds were communicated to staff in the Acting Principal's update as being $607,000, being information that:

the school does have $37 000 funding for my HOD role in 2021. There are, understandably, competing programs and initiatives for these funds. However, Mathematics and Numeracy are core elements of the curriculum and continuance of the HOD role is central to ongoing improvement and success for every student. In the 2021 I4S document, there have been considerable increases in costing in some of the 'Actions' … compared to costings in 2020 I4S … The Respondent's assertions in Paragraphs 16 and 24 regarding funding are not accurate as they are based on incorrect assumptions around funding.;[9]

  • the incorrect assumptions around funding, referred to by her in the immediate paragraph above was an underestimation of more than $225,000;
  • sub-clauses 11.1[10] and 12.1[11] of the Directive 01/20 Employment Arrangements in the Event of a Health Pandemic ('the Health Pandemic Directive') should be considered with respect to maintaining her '… existing employment conditions' as there is '… an indisputable connection between the situation at the Milpera SHS and the pandemic' and the decision to '… discontinue my role was made in contravention of Directive 01/20';
  • the discontinuation of her HOD Mathematics position, effective 9 February 2021, was not subject to any consultation by the School Local Consultative Committee ('LCC') as required by cls 3.1 and 3.2 of the Department of Education State School Teachers' Certified Agreement 2019 ('the certified agreement') including not consulting with her as the HOD Mathematics; and
  • when she returned from long service leave on 9 February 2021:
  • she received an email from the Acting Principal '… offering me the new, unpaid 'Co-ordinator' of Maths role' which included jobs '… that were cut and pasted directly from the Maths HOD column of the 2020 School Leadership Team document'; and
  • in a subsequent discussion with the Acting Principal and Acting Deputy Principal, she (Ms Plant) was informed that eight lessons would be allocated to her to carry out the unpaid role and three to four lessons would be allocated to another teacher to liaise with her as the Co-ordinator, that there were two further '… iterations of allocating roles and responsibilities from the 2020 HOD role', and that the '… result remains that I am paid as a teacher, while my substantive HOD colleagues are paid as HODs for work of the same level.
  1. [12]
    Ms Plant concluded by submitting:
  1. Directive 13/20, 1.2 (b) 'supports the opportunity to appoint an employee to a higher classification level'. In making a fair, reasonable and informed decision, account must be taken of the information available on the date of the deemed decision, 28 December 2020. The respondent has referred to information that was not known until after the date of the deemed decision and therefore is not relevant to my appeal. As outlined in my submission, a genuine need for the HOD Mathematics role is firmly established and continues to be required as documented in the Milpera SHS Strategic Plan 2019-2022 (Attachment F). The importance of mathematics and numeracy cannot be understated and is of particular significance for both the current and future students of Milpera SHS. There is 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department' and 'planning of human resources' to appoint me to the higher classification level position.

The Department's submissions in reply

  1. [13]
    The Department relevantly submitted that:
  • it did not dispute that Ms Plant had been engaged in the position, at 0.5 FTE from 8 July 2013 until 23 January 2019 and at 1.0 FTE from 24 January 2019 until 8 February 2021, however, that was due to the nature of the funding for the position;
  • I4S funding is targeted funding provided to state schools, by the Commonwealth government through the Department, and that all schools must enter into an annual, publicly available, I4S funding agreement between the Principal and the Department, detailing how the funding would be used to improve student outcomes; and
  • the School's 2020 I4S agreement stated that the $546,888 of I4S funding was to be used for the employment of additional staff in focused areas of workforce reform for two Head of Department positions '… at 1 FTE per position Science and Mathematics to lead respective curriculum areas: Costs $70,000' which '… provides an explanation of the source, calculation and purpose of the funding, which gave life to the Appellant's HOD-M position,' with the $35,000 being used to fund Ms Plant's HOD Mathematics position being predicated on not backfilling Ms Plant's substantive classroom teacher position.
  1. [14]
    In this respect, the Department further submitted:
  1. I4S funding includes a base component, that is calculated using student enrolments numbers, and a loading component based on student characteristics (Socio-economic Status, Indigenous, Students with Disability, English as an Additional Language/Dialect and Refugees). Traditionally, amounts are finalised using enrolment data on Day 8 of that year. However, given the nature and circumstances of Milpera SHS, the school is funded based on the average student enrolment numbers from the previous year, and the loading component was calculated based on data from July 2020. This ultimately had a significant effect and resulted in the 2021 I4S funding of $607,345. The effect of the 2021 enrolments will materialise in the 2022 funding.
  1. It must be noted that the proposed Milpera SHS I4S 2021 Agreement, as provided with the Submissions of the Appellant, did not include any allocation for the HOD-M position.
  1. Targeted funding is by its very nature precarious, the I4S funding which underpinned the HOD‑M position - external, variable and discretionary - is particularly so. This is because it is ultimately dependent on the school and the Respondent agreeing to continue to use the funds to meet the same student needs to deliver the same outcomes in the same way each and every year.
  1. [15]
    The Department submitted that the student enrolment numbers at the school are not in terminal decline in that there are currently 18 more students since the Day 8 census on 5 February 2021, bringing the total to 154 students. The Department did submit, that it was considered not viable or appropriate to continue using the I4S funding for the administrative and managerial HOD mathematics position, either at 1.0 FTE or 0.5 FTE '… in the face of the current, and forecasted, student enrolment numbers for 2021' which, according to the attachment to the Department's submissions in reply, is that by the end of Term 2 there will be 123 students, by the end of Term 3 there will be 110 students, and by the end of Term 4 there will be 100 students.
  1. [16]
    As to the relationship between funding and student numbers, the Department further submitted that:
  1. As Industrial Commissioner (IC) Power notes in Readman v State, consideration of the future requirements of the role as part of the current review is consistent with the decision‑maker's obligation to have regard to genuine operational requirements pursuant to the PS Act.
  1. The events of the past twelve months should serve to demonstrate that, to be responsible, departments must not simply follow past practice or maintain the status quo, they must reconsider how public resources are best utilised in consideration of changed circumstances and the operational threats from a volatile external environment. In fact, the requirement to annually rethink how funding is best allocated, and quickly pivot accordingly, is inherent to I4S funding.
  1. It was reasonably open to the Respondent to decide how best to utilise Milpera SHS' 2021 I4S funding. Specifically, the focus on the provision of direct educational services to students and other priorities, in lieu of the HOD-M position is, in the circumstances, compelling. Respectfully, this should not be disturbed on appeal.
  1. This decision resulted, regrettably for the Appellant, in the discontinuance the HOD‑M position. The fact that the position has ended, is the most compelling evidence of the genuine operational requirement. As IC Knight opines in Fowke v State, plainly, for the purposes of section 149C of the PS Act, this constitutes a genuine operational requirement against permanent appointment. IC Dwyer concurs in Hansen v State stating that the fact, in itself, can make a decision fair and reasonable, with respect to genuine operational requirements.
  1. [17]
    By way of conclusion, the Department submitted that:
  • a School Strategic Plan requires periodic review which has occurred in respect of the Milpera State High School's Strategic Plan and has resulted in the determination that the HOD Mathematics position is not needed because as at 28 December 2020, that position was, in fact only going to exist for another six weeks and it would not have been in keeping with the effective, efficient and appropriate management of public resources to permanently appoint Ms Plant in such circumstances;
  • the Health Pandemic Directive is not relevant because the intention of cl 12.1 of that Directive was that existing employment arrangements should continue as far as possible, for example, arrangements such as working from home, flexitime, accumulated days off and rosters;
  • it was not required to consult with Ms Plant, pursuant to cls 3.1 and 3.2 of the certified agreement because, pursuant to sub-cls 3.1.10 and 3.2.1 of the certified agreement, the matters for which consultation is required do not include the early cessation of a temporary higher duties arrangement or a decision under s 149C of the PS Act; and
  • the request to perform co-ordinator duties is in line with the expectation of teachers at or above the Senior Teacher level under the Teaching and State Education Award - State 2016 ('the Award') in that:
  • cl 12.6.1(c)(iv) of the Award provides that a Senior Teacher will sign an undertaking to commit to perform a range of non-exhaustive higher duties, such as to provide leadership in curriculum implementation, be a subject coordinator, develop relationships with the school community and contribute to the professional development of teachers;
  • Ms Plant became a Senior Teacher on 21 January 2011 and signed a Senior Teacher Undertaking to Perform Relevant Higher-Level Duties on 31 January 2011; and
  • in the end, the mathematics subject area co-ordinator duties were distributed between the current leadership team, being the Principal, the Deputy Principal and the existing permanent HOD position.

The decision was fair and reasonable

  1. [18]
    Section 149C of the PS Act relevantly provides:

149C Appointing public service employee acting in position at higher classification level

  1. (1)
     This section applies in relation to a public service employee if the employee-
  1. (a)
     is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and
  1. (b)
     has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  1. (c)
     is eligible for appointment to the position at the higher classification level having regard to the merit principle.

  1. (3)
     The employee may ask the department’s chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after-
  1. (a)
     the end of 1 year of being seconded to or acting at the higher classification level; and
  1. (b)
     each 1-year period after the end of the period mentioned in paragraph (a).
  1. (4)
     The department’s chief executive must decide the request within the required period.

(4A)  In making the decision, the department’s chief executive must have regard to-

  1. (a)
     the genuine operational requirements of the department; and
  1. (b)
     the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (5)
     If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating-
  1. (a)
     reasons for the decision; and
  1. (b)
     the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
     how many times the person’s engagement at the higher classification level has been extended; and
  1. (d)
     each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level.
  1. (6)
     If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.

  1. (8)
     In this section-

continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7).

required period, for making a decision under subsection (4), means-

  1. (a)
     the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
     if paragraph (a) does not apply-28 days after the request is made.
  1. [19]
    The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '… the position at the higher classification level.'[12]
  1. [20]
    In summary, the Department submits that with the current enrolment of 156 students and with a predicted headcount by Term 4, 2021 of 100 students, the School did not have a need for the HOD Mathematics position and that it was not viable or appropriate to permanently appoint Ms Plant to such a position in the face of declining student numbers, such that the HOD position was not continued in 2021 and that Ms Plant returned to her substantive position on 9 February 2021.
  1. [21]
    In summary, Ms Plant submits that:
  • the position of the Department, as expressed in the immediately preceding paragraph, was not based on known information at the time of the deemed decision on 28 December 2020; and
  • the decline in student enrolments at the School is not as severe as submitted by the Department;
  • funding is now available for the Mathematics and Numeracy HOD position in which she has been relieving for a number of years, and because of its importance to the students of the School, the HOD position should be maintained and she should be appointed to that position; and
  • the failure to appoint her to the position is inconsistent with the Health Pandemic Directive.
  1. [22]
    I am not persuaded by Ms Plant's submissions.
  1. [23]
    First, Ms Plant's submissions about what was known to the Department as at the date of the 'deemed decision', being 28 December 2020, misses the point about whether the decision was fair and reasonable. The Department submits that because of the significant reduction in student numbers at the School, brought about by the lack of students due to the health pandemic, there was no need to continue with the position in which Ms Plant has been acting. The Department's initial submissions were that as at the eighth week of Term 1, there were only 136 students enrolled whereas normally the average is about 200. In its submissions in reply, the Department submits that in fact the current number of students enrolled is 154 but that it was predicted that by the end of Term 4, only 100 students would be enrolled. There is no reason for me to disregard the Department's submissions about the number of students predicted to be enrolled by the end of Term 4.
  1. [24]
    Secondly, even assuming that the funding available at the School is as Ms Plant asserts, that does not automatically mean that the position of HOD Mathematics should be funded. The Department has given its reasons as to why the position, at least as at Term 1, 2021, is not required. That decision is directly linked to the declining student numbers and the reassessment by the Department of how best to utilise the School's 2021 I4S funding. The consideration of the future requirement of a position or role is consistent with a decision maker's obligation to have regard to 'the genuine operational requirements of the department' within the meaning of s 149C(4A)(a) of the PS Act.
  1. [25]
    Thirdly, the other issues raised by Ms Plant do not persuade me that the decision was other than fair and reasonable.
  1. [26]
    Sub-clauses 11.1 and 12.1 of the Health Pandemic Directive does not have the effect as asserted by Ms Plant, namely, that she should continue in the position. To the contrary, those provisions in the Health Pandemic Directive concern conditions of employment as opposed to whether or not particular public service positions should be maintained.
  1. [27]
    Clause 3.1 of the certified agreement deals with school based consultation. Subclause 3.1.8 provides that, broadly, the role of the LCC shall include at least, amongst other matters, resolving, at a local level, disputes and the general application of matters contained within the certified agreement. Sub-clause 3.1.9 provides that the LCC will be a key mechanism for managing workload issues at the workplace level. Subclause 3.1.10 provides that the matters requiring consultation with the LCC shall include '… flexible student free days; school staffing proposals; bus and playground duty staffing needs; meal break variations; extensions to spread of school hours and areas as required by Joint Statements between the Department and the QTU.' Having regard to the purpose of cl 3.1 of the certified agreement and the role of the LCC, it was not mandatory for the Department to consult with the LCC at the School about the decision, due to a decline in staffing numbers, to discontinue the HOD Mathematics position.
  1. [28]
    Clause 3.2 of the certified agreement deals with school based consultation regarding staffing flexibility. Having regard to the purpose of that provision, there is not a mandatory obligation to consult with the School's LCC about the decision to discontinue the HOD Mathematics position.
  1. [29]
    Having regard to cl 12.6 of the Award and the fact that Ms Plant is a Senior Teacher, it was reasonable for the Acting Principal to have requested Ms Plant to be the Mathematics Co-ordinator at the School, as such a function is expressly contemplated by subcl 12.6.1(c)(iv)(A) of the Award in respect of a teacher who has given an undertaking in accordance with that provision. On the basis of the submissions of the Department, Ms Plant meets that description. In any event, the fact that Ms Plant, by working as the Mathematics Co-ordinator, is doing some, but not all, of the leadership and management responsibilities of the HOD Mathematics, does not mean that she is not being paid for work of an equal value compared to the work performed by other Heads of Department.
  1. [30]
    While I do not doubt that Ms Plant is a skilled educator who, when she has been acting in the HOD Mathematics position, has made a significant contribution to the School and to the students of the School, the real question is whether her request should have been granted having regard to the genuine operational requirements of the Department, namely, the operational requirements of the School.
  1. [31]
    Ms Plant has not persuaded me that the reasons given by the Department as to why the position is not required, from an operational point of view, were not genuine. Indeed, it seems to me, that due to the reduction in student numbers, there is, at least temporarily, a genuine operational reason for the Department not to require the HOD Mathematics position within the School.
  1. [32]
    For all these reasons, my view is that the decision was fair and reasonable.

Conclusion

  1. [33]
    The question in this appeal was whether the decision to refuse to appoint Ms Plant to the position was fair and reasonable.
  1. [34]
    For the reasons given, the decision was fair and reasonable.

Order

  1. [35]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Footnotes

[1] Industrial Relations Act 2016 s 564(1).

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7] (Deputy President Merrell).

[3] Footnotes omitted.

[4] Ms Plant's submissions in reply filed on 12 March 2021 ('Ms Plant's submissions'), para. 10.

[5] Ms Plant's submissions, para. 10.

[6] Ms Plant's submissions, para. 10.

[7] Ms Plant's submissions, para. 13.

[8] Ms Plant's submissions, para. 17.

[9] Ms Plant's submissions, para. 20.

[10] Sub-clause 11.1 of Directive 01/20 Employment Arrangements in the Event of a Health Pandemic ('the Health Pandemic Directive') provides:

11. Assumptions underpinning the Directive

11.1 This directive is underpinned by the following assumptions regarding agency preparedness:

  1. Agencies have local plans that include action plans for staff deployment during a health pandemic and specific instructions to staff about workplace health and safety precautions required during a health pandemic.
  1. Agencies have business continuity plans in place for maintaining essential services and critical human resource services such as payroll and employee support.
  1. Existing conditions of employment will be applied to employment arrangements during a health pandemic wherever possible including specific hours of work arrangements.

[11] Sub-clause 12.1 of the Health Pandemic Directive provides:

12.Policy

12.1 Government will make every effort to ensure that the employment conditions of its employees are not adversely affected during a health pandemic. Existing conditions of employment as provided for under relevant industrial instruments will continue to apply to employment arrangements during a health pandemic, including specific hours of work arrangements.

[12] Morison (n 2) [40].

Close

Editorial Notes

  • Published Case Name:

    Plant v State of Queensland (Department of Education)

  • Shortened Case Name:

    Plant v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 139

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    28 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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