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Peyer v State of Queensland (Department of Education) QIRC 287
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Peyer v State of Queensland (Department of Education)  QIRC 287
State of Queensland, Department of Education
Public Service Appeal – Appeal against a conversion decision
29 July 2022
On the papers
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.
PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where the appellant requested a review for conversion to permanent employment – whether there is a continuing need for the appellant to be employed in the role or a role substantially the same – whether there are genuine operational requirements preventing conversion – where employment on tenure is not viable or appropriate
Directive 09/20: Fixed term temporary employment cls 4, 6, 7, 8
Industrial Relations Act 2016 s 562C
Public Service Act 2008 s 149C
Reasons for Decision
- Ms Peyer (the Appellant) is currently employed by the State of Queensland (Department of Education) as a Teacher's Aide/Education Interpreter at Wilsonton State School. Ms Peyer has been undertaking this role since 23 March 2019.
- On Friday 11 March 2022, Ms Peyer wrote to the Department requesting appointment to a higher classification level. Ms Peyer's request stated
I began in 'Higher Duties' as a teacher aide interpreter and willingly accepted this position on 23/03/2019. Subsequently I have continued in this position without a break in service.
During this time at my own expense I continued my AUSLAN education, completing a Diploma of AUSLAN.
My time as an AUSLAN interpreter has been enhanced by my working as a Teachers Aide since 2011.
- That same day, Lauren Collis (Senior HR Services Officer), wrote to Ms Peyer acknowledging receipt of the request. That correspondence noted that a decision must be made within 28 days of Ms Peyer's request and that if a decision is not made and sent to Ms Peyer in writing on or before Friday 8 April 2022, the decision maker is taken to have refused the request to be appointed to the higher classification level position and in that case, Ms Peyer would receive no further notification.
- Ms Peyer did not receive notification of a decision by Friday 8 April 2022 and as such, the decision maker is taken to have refused her request. Ms Peyer filed her appeal against the deemed decision on 28 April 2022 and I am satisfied that the appeal has been filed within the 21-day appeal period.
Relevant sections of the Act and Directive
- In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 13/20 Appointing a public service employee to a higher classification level ("the Directive").
- Section 149C of the PS Act relevantly provides:
149C Appointing public service employee acting in position at higher classification level
- (1)This section applies in relation to a public service employee if the employee-
- (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
- (b)has been seconded to or acting at the higher classification level for a continuous period of at least one year; and
- (c)is eligible for appointment to the position at the higher classification level having regard to the merit principle.
- (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 -
- (a)the end of 1 year of being seconded to or acting at the higher classification level; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a).
(4A) In making the decision, the department's chief executive must have regard to –
- (a)the genuine operational requirements of the department; and
- (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.
- While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
- 4.1An employee seconded to or assuming the duties and responsibilities of a higher classification level in the agency in which the employee is substantively employed can be appointed to the position at the higher classification level as a general employee on tenure or a public service officer following a written request to the chief executive.
- 4.2Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include:
- (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
- (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
- (c)to perform work for a particular project or purpose that has a known end date
- (d)to perform work necessary to meet an unexpected short-term increase in workload.
- 6.Decision making
- 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 documents 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.
- 6.2In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to:
- (a)the genuine operational requirements of the department, and
- (b)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.
- 7.Statement of reasons
- 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:
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
- 8.1An employee eligible for review under clause 149C(3)(b), that is after two years of continuous engagement at the higher classification level, has a right of appeal provided for in section 194(1)(e)(iii) of the PS Act in relation to a decision not to permanently appoint the employee to the higher classification level.
What decisions can the Commission make?
- In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 ("the IR Act") provides that the Commission may:
- (a)confirm the decision appealed against; or
- (c)For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Grounds of appeal
- On 17 May 2022, Ms Peyer made submissions in support of her appeal. I summarise those submissions below:
- Ms Peyer has been employed since 2011. Ms Peyer's current classification is TA004.
- Ms Peyer has 5 permanent hours per week and has been working an additional 20 hours per fortnight. From 2019 to 2022, Ms Peyer has continually worked 30 hours per fortnight.
- Ms Peyer's level of qualification has allowed her to advance to a higher level of employment over the period she has worked as a teacher's aide.
- Ms Peyer has willingly participated in ongoing training offered to her and has continued her AUSLAN education at her own cost.
- Ms Peyer claims to be disadvantaged as her fortnightly hours have not been made permanent, meaning she is held back from acquiring job security.
- Ms Peyer further submits that the Department is currently converting the temporarily employed teacher aides to permanent status with up to 60 hours per fortnight.
- The Department filed a response to Ms Peyer's appeal and submissions on 3 June 2022.
- The Department notes that the delegate determining Ms Peyer's request was Mr Boyd Clifford, Director of Employment Review. Between 11 March 2022 and 31 March 2022, Mr Clifford made three attempts to obtain information relevant to his consideration of Ms Peyer's request from Darling Downs South West Regional Office. In the absence of timely information being provide to Mr Clifford, he was unable to make a decision and on 8 April 2022 a deemed decision to refuse the request was made.
- The Department says that information subsequently provided by the Darling Downs South West Regional Office on 16 May 2022 indicates that Mr Clifford ought to have refused the request for appointment at the higher classification level. The reasons the Department provides are summarised below:
- Ms Peyer has been temporarily performing duties at a higher classification level since 23 January 2019.
- Ms Peyer's role is funded through targeted regional resources funding designed to support the specific needs of AUSLAN students.
- Ms Peyer's temporary appointment to the higher classification has been extended annually, corresponding with the ongoing enrolment and specialist educational needs of the same AUSLAN student.
- The AUSLAN student Ms Peyer is currently supporting at Wilsonton State School is ceasing their enrolment on 9 December 2022 and moving to a different school.
- Ms Peyer is due to cease performing in the higher classification role on 9 December 2022.
- The regional funding associated with the AUSLAN Teacher Aide – Educational Interpreter role at Wilsonton State School will also cease in December 2022 as the additional educational support will no longer be required.
- The Department says that the higher duties classification role Ms Peyer has been performing and seeks to be appointed to is entirely funded by funds from targeted regional resource funding allocated to support a specific individual student who will cease their enrolment at Wilsonton State School in December 2022. When the student leaves the school, the funding used to engage Ms Peyer will also cease.
- The Department submits that a decision to appoint Ms Peyer to the higher classification would not represent proper and efficient management of public resources and would result in a surplus workforce at Wilsonton State School.
- The Department says that having regard to the requirements set out in s 149C(4A)(a) of the Act and the submissions set out above, genuine operational requirements exist to the extent that the request for appointment should be refused.
- Clause 4.2 of the Directive is set out above. The Directive provides that assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. The Directive sets out some circumstances that would support the temporary engagement of an employee at a higher classification level. Relevantly, the Directive provides that temporary engagement at the higher classification level is supported by circumstances where the employee is appointed to "perform work for a particular project or purpose that has a known end date".
- In the circumstances, it is clear that for the purposes of the Directive, Ms Peyer has been appointed to the higher classification level for a particular purpose (supporting the student) that has a known end date (December 2022). The circumstances therefore support the temporary engagement at the higher classification level.
- I understand that Ms Peyer finds insecure employment challenging and believes that having worked 20 hours per fortnight at the higher classification role and undertaken study to improve her qualifications as an AUSLAN interpreter, she should be permanently appointed to the higher classification position. However, I agree with the Department that it would not be a proper or efficient use of public resources to appoint Ms Peyer to the higher classification in circumstances where the funding is tied to the student and the student is moving to another school.
- For the foregoing reasons, the deemed decision appealed against is confirmed.
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.
- Published Case Name:
Peyer v State of Queensland (Department of Education)
- Shortened Case Name:
Peyer v State of Queensland (Department of Education)
 QIRC 287
29 Jul 2022