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  4. Aldiss v State of Queensland (Department of Education) - [2022] QIRC 242

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Aldiss v State of Queensland (Department of Education)[2022] QIRC 242

Aldiss v State of Queensland (Department of Education)[2022] QIRC 242

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Aldiss v State of Queensland (Department of Education) [2022] QIRC 242

PARTIES:

Aldiss, Natalie

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/402

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

22 June 2022

MEMBER:

Hartigan IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. (a)the deemed decision of the Respondent which is the subject of this appeal is set aside; and
  2. (b)in lieu thereof, it is ordered that Natalie Aldiss be appointed to the position at the higher classification, namely, the position of Guidance Officer HO1/O2, Metropolitan Region

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where appellant has been acting in the higher classification position since 2018 – where appellant applied pursuant to s 149C of the Public Service Act 2008 (Qld) to be permanently appointed to the position – where respondent refused the request by deemed decision – where respondent refused request on the basis of genuine operational requirements of the department – consideration of genuine operational requirements – where department has failed to establish that the genuine operational requirements form a reasonable basis to refuse the request – where deemed decision not fair and reasonable – where appeal allowed – decision appealed against set aside and another decision is substituted

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Public Service Act 2008 (Qld), s 149, s149C, s 194

Appointing an Employee to a Higher Classification Level: Directive 13/20, cl 4, cl 5, cl 6, cl 7, cl 11

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Graves v State of Queensland (Department of Education [2020] QIRC 230

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

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

Reasons for Decision

Introduction

  1. [1]
    Ms Natalie Aldiss is employed by the State of Queensland (Department of Education) ('the Department'), in the substantive position of Classroom Teacher AO3/O4.
  1. [2]
    Ms Aldiss commenced employment in the higher classification position of Guidance Officer HO1/O2, Metropolitan Region on 18 January 2018 ('the position'). This appointment is due to cease on 9 December 2022. 
  1. [3]
    On 14 February 2022, Ms Aldiss requested that she be permanently appointed to the position pursuant to s 149C of the Public Service Act 2008 (Qld) ('the PS Act') and Appointing an Employee to a Higher Classification Level: Directive 13/20 ('Directive 13/20').
  1. [4]
    Ms Aldiss did not receive a response to her request within 28 days and accordingly, a decision was deemed to have been made on 14 March 2022 to refuse Ms Aldiss' request to be permanently appointed to the position.
  1. [5]
    By notice of appeal filed in the Industrial Registry on 30 March 2022, Ms Aldiss appealed the decision to refuse her request for conversion and relies on the following grounds in support of the appeal:
  1. On 14/2/22 I requested pursuant to s 149C of the PS Act and s5 of the PSC Directive 13/20—Appointing a public service employee to a higher classification level, to have my higher duties converted to permanent'. On 14/2/22 I received email from the department acknowledging my application and stating that if I didn't hear by 14/3/22 I could lodge this appeal.
  2. The Department has not provided a reason for refusing my application. I believe that their refusal is unfair and unreasonable.
  3. I hold a permanent position as a Classroom Teacher classification A03/04 within the Department of Education. I believe I am eligible for conversion to permanency in my current relieving above level position as Guidance Officer (H01/02) — Metropolitan Region — due to the following:
  1. –I hold the required qualification (Masters in Guidance and Counselling) for this position.
  2. –As per the Directive 13, I have been a Guidance Officer performing the same role, for the same agency (Department of Education — Metropolitan Region) for a continuous period of well over 12 months. I have been a Guidance Officer in Metro Region continuously since 18/1/18 so a period of 4 years, 3 months.
  3. –On 31/10/18, while working as Guidance Officer, I was interviewed for the position of GO — Metropolitan Region and was successful. Based on merit I have continued to be employed as a Guidance Officer — Metropolitan Region since that time.
  4. –Guidance Officers are part of a regional pool of staff who are allocated to schools based on the school's guidance allocation which may change each year. While I remain part of the Metropolitan Region's Guidance Pool, my roster is varied depending on the schools I service. - I have serviced numerous schools since being given my higher duties position in 2018 but at all times was part of the Metropolitan Region for supervision, ongoing training and professional development. I have had the same immediate supervisor since January 2021 and all roster/school allocations each year are determined through the same Regional Manager — Guidance Services.
  5. –Since starting as a Guidance Officer I have been rostered on to service the following schools: 2018 - Camira State School - (0.8) & Junction Park (0.2); 2019 - Camira State School (0.8); 2020 - Augusta State School (0.8); - 2021 - Mt Gravatt East SS (0.6) and East Brisbane SS (0.2); 2022 - Seville Rd (0.4), Salisbury (0.4).
  1. I believe that there in a clear, ongoing, genuine operational requirement that my higher duties position is undertaken on a permanent basis. I am aware that there is in fact a shortage of Guidance Officers and that the Department has recently advertised to find staff.
  2. I believe that I have demonstrated I meet criteria to have my position converted to permanent due to my continuous length of employment as a Guidance Officer, merit and the ongoing requirements of the Metro Guidance Pool.
  3. I respectfully submit the Department's refusal was not fair or reasonable.
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [9]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The decision

  1. [10]
    The Department did not make a decision within 28 days of Ms Aldiss' request for conversion. Accordingly, pursuant to s 149C(6) of the PS Act, the chief executive is taken to have decided that the terms of Ms Aldiss' employment will continue according to the current terms of the higher duties arrangement. Relevantly, Ms Aldiss' current arrangement is that she will continue acting up in the position until 9 December 2022.

Relevant legislation and Directive

  1. [11]
    Section 149C of the PS Act provides for the appointment of a public service employee to a higher classification level in the following terms:

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
  2. (b)
    has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and
  3. (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
  2. (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.
  2. (4A)
    In making the decision, the department's chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the department; and
  2. (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
  2. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  3. (c)
    how many times the person’s engagement at the higher classification level has been extended; and
  4. (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.
  2. (7)
    The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section
  3. (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
  2. (b)
    if paragraph (a) does not apply—28 days after the request is made.
  1. [12]
    Section 194 of the PS Act identifies the decisions against which appeals may be made as follows:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –

…

  1. (e)
    a decision (each a conversion decision) –

…

  1. (iii)
    under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;

…

  1. [13]
    The phrase 'genuine operational requirements of the department' in the context of s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[4] as follows:[5]

…that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. (footnotes omitted)
  1. [14]
    Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act established employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate.
  1. [15]
    Clause 4.2 of Directive 13/20 sets out the circumstances which would support the temporary engagement of an employee at the higher classification level and includes:
  1. (a)
    when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return
  2. (b)
    when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles
  3. (c)
    to perform work for a particular project or purpose that has a known end date
  4. (d)
    to perform work necessary to meet an unexpected short-term increase in workload
  1. [16]
    Clause 5 of Directive 13/20 sets out the requirements that must be met by an employee prior to requesting a conversion under s 149C of the PS Act and the considerations a chief executive must take into account as follows:
  1. 5.1Section 149C of the PS Act provides that an employee seconded or engaged in higher duties may submit a written request to the chief executive to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer.
  2. 5.2To be eligible to request consideration for appointment at the higher classification level under clause 5.1 the employee must:
  1. (a)
    have been seconded to or assuming the duties and responsibilities of the higher classification level
  2. (b)
    for a continuous period of at least one year
  3. (c)
    be eligible for appointment to the higher classification level having regard to the merit principle.
  1. 5.3Under section 149C(3) of the PS Act, an eligible employee may request the chief executive to permanently appoint the employee to the higher classification level:
  1. (a)
    one year after being seconded to or assuming the duties and responsibilities of the higher classification level, and
  2. (b)
    each subsequent year where the employee continues their engagement at the higher classification level in the same role.
  1. 5.4An employee may make one request for appointment in each one year period commencing on the employee becoming eligible to request under clause 5.3(a) or 5.3(b), and may make an additional request if the role becomes a substantive vacancy.
  2. 5.5The chief executive must consider permanently appointing the employee to the higher classification level where a written request has been made under this clause.
  1. [17]
    Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level as follows:
  1. 6.1When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle.
  2. 6.2In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
  • the genuine operational requirements of the department, and
  • the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level.
  1. 6.3In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continuing according to the terms of the existing secondment or higher duties arrangement.
  2. 6.4Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decision occurring by operation of s 149(C) of the PS Act.
  1. [18]
    Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide to the employee a statement of reasons as follows:
  1. 7.1A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954:
  1. (a)
    set out the findings on material questions of fact, and
  2. (b)
    refer to the evidence or other material on which those findings were based.
  1. 7.2A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3
  1. [19]
    Clause 11 of Directive 13/20 defines the following terms:
  • Continuous period for the purposes of this directive, means a period of unbroken engagement, including periods of authorised leave or absence, at the higher classification level in the same role, in the same agency.
  • Higher classification level means a classification level which has a higher maximum salary than the maximum salary of the classification level actually held by the employee. An employee who has assumed less than the full duties and responsibilities of the higher classification level and as a result receives remuneration at a relevant percentage of less than 100 per cent is not considered to be performing at the higher classification level.

Whether the decision was fair and reasonable

  1. [20]
    By order of this Commission dated 1 April 2022, the parties were directed to file in the Industrial Registry and serve on each other, written submissions in support of their position with respect to the appeal.
  1. [21]
    Both parties complied with the directions.
  1. [22]
    The following matters are not in dispute:
  1. (a)
    that Ms Aldiss is eligible to appeal the decision pursuant to s 194(1)(e)(iii) of the PS Act; and
  2. (b)
    that Ms Aldiss is eligible to apply for conversion to the position at the higher classification level in accordance with s 149C(1) of the PS Act.
  1. [23]
    The role of the Commission in an appeal of this nature is to determine if the decision is fair and reasonable. I will consider the extent to which the decision maker had regard to the matters that must be considered when making a decision as set out in s 149C of the PS Act and Directive 13/20.

Genuine operational requirements

  1. [24]
    In making the decision, the decision maker is required to consider, inter alia, the genuine operational requirements of the agency.
  1. [25]
    Ms Aldiss, in her written submissions, raised the following matters, as relevantly summarised:
  1. (a)
    Ms Aldiss has been continually working in the position since January 2018 and holds the required qualification for the position;
  2. (b)
    Ms Aldiss has interviewed for the position on two occasions and on both occasions has been deemed suitable to continue working in the position. Ms Aldiss attaches to her written submissions two emails from the Department[6] advising she has been recommended as a suitable applicant for the position in this regard;
  3. (c)
    the position is part of a regional pool of staff who are allocated to schools based on the school's guidance allocation which can vary each year and Ms Aldiss' roster has varied each year depending on the school she was allocated to;
  4. (d)
    Ms Aldiss has serviced numerous schools since 2018;
  5. (e)
    Ms Aldiss has had the same immediate supervisor since January 2021 and all roster determinations are determined through the same regional manager;
  6. (f)
    Ms Aldiss worked full time during her first year in the position in 2018 and has since worked four days a week (0.8 full-time equivalent); and
  7. (g)
    Ms Aldiss is not engaged for a particular project with an end date and believes there is a clear, ongoing and genuine operational requirement that the duties she undertakes in the position are undertaken on a permanent basis and that there is an operational need for her to fulfil the role of the position and service schools within the Metropolitan Region.
  1. [26]
    In response, the Department submits that approving a labour budget in excess of the allocated funding would not represent the proper and efficient management of public resources in the shadow of a surplus workforce.
  1. [27]
    In this regard, the Department submits that Ms Aldiss has been performing the position as part of group roles known as the Metropolitan Region Guidance Officer Pool ('the MRGO pool'). In accordance with the Department's 'human resource plan' established under s 98(1)(d) of the PS Act, the Department submits that the MRGO pool has a total allocation of 141 planned Full Time Equivalent ('FTE') Guidance Officer roles. The Department submits that, as at 11 March 2022, a total of 228 FTE Guidance Officers were engaged in various forms of employment within the Department's MRGO pool, far exceeding the Department's allocation.
  1. [28]
    The Department relies on the findings that were made by this Commission, as presently constituted, in Graves v State of Queensland (Department of Education) [7] ('Graves') in support of its submissions in relation to the proper and efficient management of public resources.
  1. [29]
    In Graves, it was held that:[8]

It does not appear to be contentious that the purpose of Mr Graves' current higher classification level role is to fill a temporary vacancy arising from an operational plan, to manage a team's leave absences ahead of a known change to Senior Guidance Officer workplace entitlements. I consider that there were genuine operational requirements for appointing Mr Graves to a higher classification level role on a temporary basis arising out of the proposed Award variation. I consider the decision not to permanently appoint Mr Graves to the position at the higher classification level was consistent with managing the Department in a way that promotes the effective, efficient and appropriate management of public resources. In this respect, the decision was fair and reasonable.

  1. [30]
    However, I consider that the circumstances of this matter are different from the matter of Graves, on the basis that it does not appear that Ms Aldiss' role is to fill a temporary vacancy arising from an operational plan to manage workplace absences. Ms Aldiss was interviewed for the Guidance Officer role in October 2018 and has continued to be engaged as a Guidance Officer since that time.
  1. [31]
    The Department has not made any meaningful submissions with respect to its genuine operational requirements and how, in the circumstances, those operational requirements preclude Ms Aldiss from being permanently appointed to the higher classification.
  1. [32]
    Relevantly, the Department, in its written submission, states that the allocation of the FTE Guidance Officer role in the MGRO pool currently exceeds its target allocation of 141, as 228 FTE Guidance Officers have been engaged in various roles. The fact that the Department has for some reason, not nominated by the Department in its submissions, exceeded its own allocation target by almost double, should not, without further explanation, be relied on as an impediment to convert Ms Aldiss' employment.
  1. [33]
    I consider that the Department has failed to establish, on the material before the Commission, that the operational requirements of the Department form a reasonable basis to not convert Ms Aldiss to the position at the higher classification.
  1. [34]
    Accordingly, I consider that the decision was not fair and reasonable.

Order

  1. [35]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. (a)
    the deemed decision of the Respondent which is the subject of this appeal is set aside; and
  2. (b)
    in lieu thereof, it is ordered that Natalie Aldiss be appointed to the position at the higher classification, namely, the position of Guidance Officer HO1/O2, Metropolitan Region.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [2020] QIRC 203.

[5] Ibid, [37] - [38].

[6] The date of the emails has not been provided, however from their contents, they appear to have been received in 2018 and 2020.

[7] [2020] QIRC 230.

[8] Ibid, [29].

Close

Editorial Notes

  • Published Case Name:

    Aldiss v State of Queensland (Department of Education)

  • Shortened Case Name:

    Aldiss v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 242

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    22 Jun 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
1 citation
Jump To
Cite 1 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Graves v State of Queensland (Department of Education) [2020] QIRC 230
3 citations
Jump To
Cite 1 - [2020] QIRC 230
Cite 2 - [2020] QIRC 230
Cite 3 - [2020] QIRC 230
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Cushing v State of Queensland (Department of Education) [2023] QIRC 2522 citations
1

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