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  4. Talbot v State of Queensland (Department of Education) - [2023] QIRC 10

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Talbot v State of Queensland (Department of Education)[2023] QIRC 10

Talbot v State of Queensland (Department of Education)[2023] QIRC 10

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Talbot v State of Queensland (Department of Education) [2023] QIRC 010

PARTIES: 

Talbot, John Oswald

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/743

PROCEEDING:

Public Service Appeal – preliminary hearing

DELIVERED ON:

17 January 2023

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 451 of the Industrial Relations Act 2016 (Qld) it is ordered that:

  1. The appeal filed 6 September 2022 will be a review of the deemed decision of the Respondent dated 29 August 2022 in accordance with ss 562B and 562C of the Industrial Relations Act 2016 (Qld).
  1. The appeal will be listed for mention on a date to be advised. 

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE – appeal – conversion of temporary employment – deemed decision – decision purportedly repealed – new decision issued offering permanent employment in another region – where appellant seeks for amended decision to be reviewed – where validity of the power to repeal decision under review in question.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) ss 4, 24AA

Directive 09/20 Fixed term temporary employment

Human Rights Act 2019 (Qld) ss 26, 48

Industrial Relations Act 2016 (Qld) ss 562A, 562B

Public Service Act 2008 (Qld) ss 149A, 149B, 149C, 194, 197

CASES:

Bayside Consulting Pty Ltd v Caboolture Shire Council [2005] QPEC 122

Firearm Distributors Pty Ltd v Carson [2000] QSC 159

JL Holdings Pty Ltd v Queensland [1998] FCA 220

Westacott v State of Queensland (Queensland Health) [2021] QIRC 417

Reasons for Decision

Background

  1. [1]
    Mr John Talbot ('Mr Talbot') is employed with the Department of Education ('the Department') as a teacher. He has been employed on a temporary or casual basis in this position since 27 January 2016.
  1. [2]
    Relevantly Mr Talbot was engaged in a number of temporary and casual roles across schools within the Department's north coast region between 1 August 2020 and 1 August 2022.
  1. [3]
    On 1 August 2022, Mr Talbot submitted a request to be converted to permanent employment ('the request'). The Department acknowledged the request. No decision was forthcoming from the Department within the required period of 28 days and consequently a deemed decision refusing Mr Talbot's conversion occurred by operation of statute on 29 August 2022 ('the deemed decision').[1]
  1. [4]
    On 6 September 2022 Mr Talbot lodged an appeal with the Queensland Industrial Relations Commission ('QIRC') pursuant to s 194(e) of the Public Service Act 2008 (Qld) ('the PS Act') in relation to the deemed decision ('the decision under review').
  1. [5]
    Subsequent to the filing of the appeal, directions were issued requiring the parties to file submissions in support of their respective positions. Mr Talbot filed submissions in accordance with these directions on 5 October 2022. The Department were required to file their submissions on 4 November 2022.
  1. [6]
    On 2 November 2022 (two days before their submissions were due) the Department provided Mr Talbot with correspondence which purported to repeal the decision under review and substitute it with a new decision offering Mr Talbot permanent full-time employment as a teacher in the Department's central Queensland region ('the substitute decision'). The correspondence relevantly read:

I refer to the deemed decision of 29 August 2022, made in accordance with section 149B(7) of the Public Service Act 2008 (PS Act). After further consideration I have decided to repeal that deemed decision in accordance with section 24AA of the Acts Interpretation Act 1954 and replace it with this decision.

…

In accordance with section 149B of the PS Act and the Directive, I am pleased to offer to convert the basis of your employment from temporary to permanent as a public service officer.

(Emphasis added)

  1. [7]
    It is clear from the substitute decision that the Department:
  • Acknowledged there was a deemed decision made on 29 August 2022 by operation of s 149B(7) of the PS Act;
  • Purported to make the substitute decision pursuant to s 149B of the PS Act; and
  • Relied on s 24AA of the Acts Interpretation Act 1954 (Qld) ('the AIA') to make the substitute decision.
  1. [8]
    On 3 November 2022, Mr Talbot advised the QIRC Registry that he had received the substitute decision and that he now wished to appeal that decision on the basis he could not relocate to the central Queensland region due to family responsibilities.
  1. [9]
    Without leave or explanation, the Department failed to comply with the direction requiring them to provide submissions by 4 November 2022. It would appear the Department considered that the substitute decision would negate the utility of further proceedings.[2]
  1. [10]
    The matter was listed for mention on 11 November 2022 to determine the appropriate future conduct of the appeal and in particular, which (if any) decision was subject to the jurisdiction of the QIRC for review in this appeal. 

Matter for determination

  1. [11]
    At the mention of the matter Mr Talbot remained aggrieved by both the decision under review and the substitute decision. Before determining how or whether the appeal could continue I expressed a preliminary view to the parties that the process by which the substitute decision was made arguably lacked validity given that the filing of the appeal made the decision under review exclusively a matter for determination by the QIRC. I made the preliminary observation that once an appeal was filed in relation to a decision a Departmental decision maker could not unilaterally interfere with the jurisdiction of the QIRC to review it.
  1. [12]
    Ultimately the validity of the substituted decision needed to be determined before the steps for the future conduct of the appeal could be established. The Department was given a period of time to consider their position and, if necessary, to file submissions supporting the supposed validity of their use of s 24AA of the AIA to make the substitute decision.
  1. [13]
    On 6 December 2022 the Department indicated their continued intention to rely on the substitute decision and filed submissions in support of its alleged validity.
  1. [14]
    The central proposition for consideration is whether the substitute decision has displaced the decision under review and, if it has, whether that undermines Mr Talbot's appeal entirely (which in turn gives rise to grounds for a separate appeal with respect to the substitute decision). Alternatively, if the substitute decision was not a valid product of the powers available under s 24AA of the AIA, what then is its effect (if any) on the decision under review and this appeal. 
  1. [15]
    The critical threshold issue for determination then is whether the substitute decision is a product of a valid use of powers granted to a decision maker by s 24AA of the AIA.

Submissions of the parties

  1. [16]
    The parties filed written submissions in accordance with the further directions order dated 16 November 2022.

Submissions of the Department

  1. [17]
    The Department submits the decision was valid by operation of an exercise of their powers under s 24AA of the AIA.
  1. [18]
    The Department acknowledges the powers under s 24AA of the AIA cannot be applied where the decision is adjudicative in nature, impacts legal entitlements or has consequences which would suggest the decision was intended to be final. In such cases, it is beyond the decision makers power to repeal or amend the original decision. The Department's submissions detail examples where it has been held the courts do not have the power to recall, reconsider, revoke or vary decisions.[3]
  1. [19]
    Further, the Department submits that a conclusion as to whether the discretion to amend or repeal is open is reached by a process of construction, having regard to the nature or character of the power in question.[4] 
  1. [20]
    The Department submits that the PS Act does not evince a contrary intention to the application of s 24AA of the AIA to a deemed decision by the chief executive under s 149B(7) of the PS Act, including once an appeal has been filed pursuant to s 194(1)(e) of the PS Act.
  1. [21]
    The Department submits an act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid; rather, the effect of non-compliance is a question of statutory interpretation. The test to be considered is whether it was the purpose of the legislation that an act done in breach of the provision should be invalid.
  1. [22]
    The Department submits Parliament is unlikely to have intended non-compliance with the time period provisions to have the effect of depriving the chief executive of authority to revoke a decision to enable them to give effect to the statutory purpose of converting or appointing employees who meet the statutory requirements.
  1. [23]
    The Department submits an alternative interpretation of the provision would not best achieve the purpose of s 149B of the PS Act.
  1. [24]
    The Department, in noting courts will avoid constructions of provisions that would operate in a way that makes little sense in terms of the evident purpose of the provision, submits the purpose of this provision is to facilitate the conversion of eligible employees to a permanent status. They submit where the chief executive is satisfied the employee meets the requirements it is unlikely to be the purpose of the legislation that the employee be deprived of the benefit of the provisions due to an administrative error or oversight by a decision maker resulting in non-compliance with the time period provisions.
  1. [25]
    The Department further submits its preferred construction is more likely to be compatible with Mr Talbot's human rights, noting all statutory provisions must, to the extent possible that is constituent with their purpose be interpreted in a way that is compatible with human rights.[5]
  1. [26]
    The Department closes its submissions by contending the amended decision was validly made, with its effect to permanently offer Mr Talbot permanent employment as a public service officer.
  1. [27]
    The Department submits should their submissions above not be accepted, there is no utility in reviewing the deemed decision, as the best outcome for Mr Talbot would be the Commission substituting the deemed decision with the amended decision.

Submissions of Mr Talbot

  1. [28]
    Mr Talbot filed submissions in response to the Department's submissions on 20 December 2022.
  1. [29]
    Mr Talbot submits that if the position outlined in the Department's submissions is correct, this will have the effect of usurping the Commission's jurisdiction to hear the appeal and deny his entitlement to convert to a permanent position after seven years of temporary employment.
  1. [30]
    Mr Talbot submits the contrary intention is found in the express terms of the PS Act and Directive 09/20 Fixed term temporary employment ('the directive').
  1. [31]
    Mr Talbot submits where the Department has gone to lengths to argue the PS Act and directive should not be read at face value, they do not make submissions as to why the 28 day deadline is included in the PS Act and the directive.
  1. [32]
    Mr Talbot submits the parliament's true intention can be seen in the following clauses of the directive:
  1. 8.6
    Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
  1. 8.7
    Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
  1. [33]
    Mr Talbot submits the above clauses intended to ensure consistency and responsiveness in public sector agencies.
  1. [34]
    Mr Talbot submits that parliament legislating the 28 day deadline, after which the chief executive is presumed to have made a deemed decision, was an intentional mechanism to encourage a responsive, consistent and reliable public service. He submits the intention was to ensure appellants have a defined timeframe in which to expect a decision and to allow for accurate reporting and accountability for agencies which have failed to comply with their obligations. He submits these objectives would be undermined if the Respondent's submissions were to be accepted.
  1. [35]
    Mr Talbot submits that if the Commission decides to consider the amended decision, this decision also fails to comply with the requirements of the PS Act.
  1. [36]
    Mr Talbot contends that his human rights have not been properly considered by the decision maker in making the amended decision.[6]
  1. [37]
    Mr Talbot submits in making the amended decision, the Department sought to avoid the requirements of the PS Act and the directive:
  1. 8.4
    Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [38]
    Mr Talbot submits by seeking to repeal the deemed decision and replace it with the amended decision, the Department seeks to avoid the requirements in clause 8.4 of the directive.

Reply Submissions of the Department

  1. [39]
    The Department submits that the application of s 24AA of the AIA can be displaced only by the appearance of a contrary intention in the PS Act. They submit there is no contrary intention in s 149B.
  1. [40]
    The Department submits the 28 day timeframe for a decision under s 149B of the PS Act is not relevant to the validity of the substitute decision, except to the extent that it could displace an exercise of s 24AA of the AIA which is a question the Department addressed in their previous submissions.
  1. [41]
    The Department submits that they disagree with Mr Talbot's submissions in respect of clauses 8.6 and 8.7 of the directive, in that they reject that they constitute a relevant contrary intention. They contend the intention of the clauses are not incompatible with allowing the chief executive authority to revoke or amend a decision made under s 149B of the PS Act.
  1. [42]
    The Department submits any failure not to consider Mr Talbot's human rights does not invalidate the amended decision.

The AIA and relevant principles

  1. [43]
    Section 24AA of the AIA relevantly provides:

24AA Power to make instrument or decision includes power to amend or repeal

If an Act authorises or requires the making of an instrument or decision—

  1. (a)
    the power includes power to amend or repeal the instrument or decision; and
  1. (b)
    the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.
  1. [44]
    The application of s 24AA is limited by s 4:

4 Displacement of Act by contrary intention

The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.

  1. [45]
    The only limit on the powers granted to a decision maker by s 24AA of the AIA is the presence of a contrary intention 'in any Act'.
  1. [46]
    The limits of s 24AA of the AIA were considered by Chesterman J in Firearm Distributors Pty Ltd v Carson[7] where he observed:

According to Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic [1990] FCA 22; (1990) 21 FCR 193 at 211:

" . . .there was "an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise": . . . however, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of a estoppel or, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."

       (Emphasis added) 

  1. [47]
    In JL Holdings Pty Ltd v State of Queensland[8] Kiefel J (as Her Honour then was) considered the limitations of s 24AA of the AIA (and similar provisions in other legislation) and concluded:

Sections 23(1) and 4 of the Acts Interpretation Act 1954 (Qld) provided that a function or power conferred by an Act may be performed or exercised as the occasion requires, unless the contrary intention appears. They are to the same effect as s 33(1) Acts Interpretation Act 1901 (Cth) which was considered in Kurtovic. A later amendment to the Queensland Act provided that if an Act authorises or requires the making, relevantly, of a decision, it includes a power to amend or repeal the decision and is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision: s 24AA….

Cases holding that decisions must be considered as incapable of reconsideration have generally been concerned with powers to decide questions affecting legal entitlements, or with consequences which are such that finality must have been intended:…

Such a conclusion is reached by a process of construction and in particular, by having regard to the nature or character of the power in question:…

(Emphasis added)

  1. [48]
    The presence (or otherwise) of a contrary intention in any Act will limit the power granted under s 24AA of the AIA. Further, certain decisions will be incapable of repeal or amendment and whether they are or not is a matter of construction.
  1. [49]
    The starting point for this exercise is to consider the statutory framework in which this appeal arises.

Statutory framework

  1. [50]
    The decision under review was made in accordance with s 149B of the PS Act. Section 149B relevantly provides:

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The Department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  2. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The Department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the Department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
  1. (5)
    …
  1. (6)
    …
  1. (7)
    If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.
  1. (7A)
    …
  1. (8)
    …
  1. (8A)
    …
  1. (9)
    In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

required period, for making a decision under subsection (3), 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 end of the period mentioned in subsection (4)(a) or (b).

(Emphasis added)

  1. [51]
    Section 197 of the PS Act provides:

197 Appeal to IRC

An appeal under this part is to be heard and decided under the Industrial Relations Act 2016, chapter 11 by the IRC.

  1. [52]
    Section 562B of Chapter 11 of the IR Act relevantly provides:

562BPublic service appeal to commission is by way of review

  1. (1)
    This section applies to a public service appeal made to the commission.
  1. (2)
    The commission must decide the appeal by reviewing the decision appealed against.
  1. (3)
    The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

(Emphasis added)

Consideration

Statutory basis for decisions

  1. [53]
    It ought to be noted at the outset that both parties have proceeded on the basis that the decision under review and the substitute decision were made pursuant to s 149B of the PS Act. This is important given the exercise of statutory construction necessary to consider the purported validity of the use of s 24AA of the AIA.
  1. [54]
    It is important to identify the statutory basis of each decision because a review of Mr Talbot's status was also potentially available pursuant to s 149 of the PS Act. As will be seen from comments below, there is a significant distinction between review per s 149 and s 149B of the PS Act. The former will occur on request of an employee, while the latter arises by virtue of a statutory obligation imposed on the Department and activated solely by an employee's length of continuous service as a temporary or casual employee.
  1. [55]
    Mr Talbot made a request for consideration for conversion in an email sent on 1 August 2022. The request did not specify which section of the PS Act he relied on. Arguably the request made by Mr Talbot might have been characterised as a request pursuant to s 149(3) which could have been dealt with under s 149A of the PS Act.
  1. [56]
    Alternatively, in the absence of further facts, it is equally consistent that Mr Talbot's email request on 1 August 2022 served to prompt the Department to act on its statutory obligations prescribed in s 149B of the PS Act (assuming those obligations had been properly activated).
  1. [57]
    There is no evidence, submission, or explanation forthcoming from the Department as to why they elected to characterise both the deemed decision and the substitute decision as having been made pursuant to s 149B of the PS Act. More importantly there is no challenge from the Department as to Mr Talbot's eligibility for consideration for conversion under s 149B of the PS Act from 1 August 2022. 
  1. [58]
    In all of those circumstances it is appropriate to consider this matter on the basis that the decision under review and the substitute decision were properly made pursuant to s 149B of the PS Act. I hasten to add that the conclusions reached below would not be materially altered if it transpired that Mr Talbot was only entitled to a review pursuant to s 149A of the PS Act.

Application of relevant principles re s 24AA of the AIA

  1. [59]
    The Department's submissions correctly identify the appropriate authorities and principles derived from those decisions. The salient portions of those authorities are set out above.
  1. [60]
    The Department's submissions acknowledge that s 24AA of the AIA cannot be utilised where the decision is adjudicative in nature, impacts legal entitlements, or has consequences which would suggest the decision was intended to be final. The Department acknowledges that in such cases it is beyond the decision maker's power to repeal or amend the original decision.
  1. [61]
    Further, the Department appears to argue that there is no contrary intention (within the meaning of s 4 of the AIA) precluding the making of the substitute decision.[9] This submission will be addressed more fully below. Suffice to say that in my view the Department has failed to properly examine the relevant statutory framework in which the decision was made and appealed.
  1. [62]
    Importantly, and contrary to the submission of the Department at paragraph 19 of their primary submissions, s 4 of the AIA foreshadows displacement of the discretion found in s 24AA of the AIA by a contrary intention appearing in any Act. That is to say, the search for a contrary intention is not limited to an examination of the PS Act.
  1. [63]
    I would add here that there is no reading of s 4 of the AIA that would cause me to conclude that the necessary 'contrary intention' required to displace s 24AA needs to be explicit i.e. the contrary intention may be implied by the manner in which a relevant statutory provision operates.
  1. [64]
    Having regard to the relevant statutory framework in which the decision under review was made and in which this appeal arises it is plainly apparent that there are multiple examples where those statutes unambiguously point to a contrary intention capable of wholly limiting the powers granted to the chief executive by s 24AA of the AIA.
  1. [65]
    Before turning to the specific submissions of the Department, the presence of contrary intention displacing s 24AA of the AIA ought to be dealt with.

Contrary intention in s 149B

  1. [66]
    The most obvious contrary intention is found in s 149B of the PS Act itself. The contrary intention is evident when one has regard to the prescriptive manner in which s 149B operates. In the matter of Westacott v State of Queensland (Queensland Health)[10] ('Westacott') the QIRC as presently constituted had occasion to examine the unique operation of s 149B of the PS Act.
  1. [67]
    In Westacott it was concluded that:
  1. [24]
    It is important to note that s 149B operates in a different fashion to s 149 and s 149C of the PS Act. In each of s 149 and s 149C of the PS Act, a review of an employee's status is initiated by a request from the employee.
  1. [25]
    By contrast, s 149B of the PS Act imposes a statutory obligation on the Department's chief executive to undertake a review. Not only must the Department's chief executive undertake the review, but they must do so within a stipulated time frame.
  1. [26]
    Further, this statutory obligation is activated exclusively by reference to the length of continuous employment of an employee. That is to say, the review contemplated by s 149B is not activated by the actions (or at the discretion) of the Department's chief executive or the employee but rather, it is an obligation that arises immediately upon the completion of two years continuous service, and then again on each 12 month anniversary of continuous service after that date.
  1. [27]
    Not only is this obligation on the Department chief executive to conduct the review an obligation that is automatically activated by the requisite period of continuous service after the nominated period, but the timing for a review and a decision is a statutory obligation that cannot be varied by the Department's chief executive at their discretion or even with consent of the employee.

(Emphasis added)

  1. [68]
    Regardless of the specific details of Mr Talbot's employment history and the circumstances of his eligibility for consideration for conversion under s 149B of the PS Act, it is not in dispute that the Department made a deemed decision pursuant to s 149B(7) on 29 August 2022. The substituted decision letter issued by the Department on 2 November 2022 confirms this.
  1. [69]
    The great difficulty for the Department in those circumstances is that s 149B(4) expressly prescribes a time frame for the making of  any subsequent decisions about Mr Talbot's conversion. According to the terms strictly prescribed by s 149B(4) the chief executive must initially make such a decision after two years of continuous service and then every 12 months thereafter.
  1. [70]
    The substitute decision of the Department made on 2 November 2022 purports to repeal the decision under review and replace it with the substituted decision. In making the substitute decision the Department plainly acknowledges the deemed decision made pursuant to s 149B on 29 August 2022 and then, in stark contradiction to the prescribed timings set out in s 149B(4) of the PS Act, purports to make the substitute decision pursuant to s 149B a mere two months later.  The power to do this is said to emanate from s 24AA of the AIA.
  1. [71]
    However, there is no provision in s 149B (or elsewhere) that contemplates any flexibility or variation of the specific statutory obligation it prescribes. There is no discretion for a chief executive to vary the prescribed timing of decision(s) which must be made under s 149B.
  1. [72]
    So, in circumstances of this matter where the chief executive has made a (deemed) decision on 29 August 2022, there is no power or discretion to make a further decision pursuant to s 149B until August 2023. It is difficult to imagine a more contrary intention capable of displacing the discretion conferred by s 24AA of the AIA and as purportedly exercised by the Department on 2 November 2022.
  1. [73]
    To be clear I would add that the chief executive or their delegate is not restrained in a wider sense from making decisions to convert an employee in the interim but rather, it is only decisions purportedly made pursuant to s 149B that are restricted. As I concluded in Westacott:
  1. [52]
    Sections 149B(3) and (4) of the PS Act express the obligations of a Department's chief executive as mandatory by virtue of the use of the term 'must'. Section 149B(3) and (4) of the PS Act are clear, unambiguous and entirely specific in their language. There is no room for a construction of these terms that allows any flexibility as to the obligations of the chief executive and the timing in which those obligations must be discharged. The consent of the parties cannot displace the statutory obligation to make a decision within the specified time.
  1. [53]
    To be completely clear: in broad terms, the Department is not prevented from undertaking reviews of employment status and conversion of employment (where each party consents) at a time of its own choosing. But such mutually agreed reviews (however structured) are not reviews conducted or decisions made for the purpose of discharging the mandatory requirements for review of status set out in s 149B if they occur outside of the explicitly stipulated timing requirements set out in s 149B(4).

(Emphasis added)

  1. [74]
    It is not controversial that power granted by s 24AA of the AIA is limited by a contrary intention appearing in any Act. In my view the strictly prescribed timeframes for making decisions under s 149B that are found at s 149B(4) are plainly such a contrary intention.
  1. [75]
    In those circumstances, because of that contrary intention, I consider that the chief executive could not validly exercise a discretion pursuant to s 24AA of the AIA to repeal the decision under review or replace it with the substitute decision.

Contrary intention in the IR Act

  1. [76]
    The Department incorrectly describes the limitation on the use of s 24AA of the AIA in paragraph 19 of their submissions filed 6 December 2022. The limitation expressed in s 4 of the AIA is where there is a contrary intention appearing in any Act.
  1. [77]
    Section 197 of the PS Act gives jurisdiction for appeals to the QIRC under Chapter 11 of the IR Act. Section 562B of the IR Act compels the QIRC to review the decision by using the language 'The commission must decide the appeal by reviewing the decision appealed against'. This language is, by clear implication, a contrary intention to the discretion granted to a decision maker by s 24AA of the AIA. 
  1. [78]
    The jurisdiction of the QIRC is to review the decision appealed against. The term 'the' restricts the jurisdiction to a specific decision which the Appeal Notice requires an appellant to identify. In this instance 'the' decision appealed against is the deemed decision of 29 August 2022 to continue Mr Talbot's employment as temporary/casual.
  1. [79]
    The jurisdiction of the QIRC to review the decision is enlivened from the time the appeal is filed and, from that moment, the QIRC becomes seized of the matter i.e. the review of the nominated decision. The conferring of this jurisdiction on the QIRC by s 562B of the IR Act is plainly a contrary intention of the type contemplated by s 4 of the AIA. The authority of the chief executive or their delegate to unilaterally withdraw, amend or substitute the decision under review is extinguished once the jurisdiction of the QIRC is enlivened. Any other conclusion would be to permit a chief executive to subvert the jurisdiction of the QIRC.
  1. [80]
    Again, to be clear, this conclusion is limited to the circumstances where a chief executive or their delegate purports to unilaterally rescind, amend or replace the decision under review by relying on s 24AA of the AIA. There is, of course, no barrier to a chief executive or their delegate proposing to an appellant (by way of compromise) that an appeal be resolved by way of altering or rescinding a decision under review. This is a common occurrence in appeals of this nature, but an important distinction is that it is done by way of mutual agreement. Upon such agreement being reached an appellant will typically voluntarily discontinue their appeal, thereby relieving the QIRC of its jurisdiction over the decision under review. 
  1. [81]
    Further, in circumstances where such proposal for compromise does not result in a mutual agreement for the discontinuance of an appeal, it would be open for a respondent to bring the proposal to the attention of the QIRC as part of their response to an appeal. In certain circumstances, a proposed amendment or revocation of the decision under review could well give rise to the presiding member of the QIRC exercising a discretion pursuant s 562A(3) of the IR Act if they considered that it remedied the grievance of the appellant in a manner that was sufficiently compelling or otherwise rendered the review futile.
  1. [82]
    There are any number of options for a decision maker to legitimately give effect to a desire to resile from or amend a decision under review, but the contrary intent implicit in the language of s 562B of the IR Act means that exercising the discretion found in s 24AA of the AIA is not one of them.

Consideration of the submissions of the Department

  1. [83]
    Beyond correctly identifying the authorities and principles for considering the limitations on s 24AA of the AIA, it seems the Department's submissions are premised on a glaring error in the characterisation of relevant events.
  1. [84]
    It must be said at the outset that the Department's submissions are far from clear. At paragraph 24 to 25 of their submissions filed on 6 December 2022 the Department appears to be submitting that some significance must be read into the distinction between s 149A(1) and s 149B(4) of the PS Act in that the former requires a chief executive to make a decision 'within 28 days' of receiving a request for conversion, while the latter requires a decision to be made 'within the required period'.
  1. [85]
    The submission fails to refer to s 149B(9) of the PS Act which relevantly defines the 'required period' as within (for the purposes of this matter) '28 days' of the relevant anniversary of continuous employment as a temporary or casual employee. In effect, there is no distinction to be made.
  1. [86]
    Having made this 'distinction' the Department then curiously recites principles relevant to the validity or effect of the exercise of a statutory power or decision made in breach of a condition regulating the exercise of the power.  How these principles are relevant to the circumstances of Mr Talbot's appeal and the preliminary question being dealt with is completely unclear, but they form the cornerstone of the Department's submission in support of the purported validity of their use of s 24AA of the AIA. The Department submits (at paragraph 26 of their submissions):

…Parliament is unlikely to have intended non-compliance with the time period provisions to have the effect of depriving the chief executive of authority to revoke a decision…

  1. [87]
    The Department appears to be submitting that a failure to make a decision within the stipulated time frame is somehow a breach or non-compliance with the PS Act which, according to the cited authorities, cannot lead to a construction precluding them from making a decision outside the time frame.  The obvious error with this submission is that this is not a case where the Department was in breach of a requirement to make a decision within a nominated time frame or was otherwise non-compliant with the PS Act.
  1. [88]
    Section 149B of the PS Act (like the related provisions in s 149A and s 149C) makes provision for deemed decisions where the chief executive does not make the decision within the required period. That is to say, in order to give finality and certainty to the process, s 149B(7) establishes a statutory mechanism for a deemed decision.
  1. [89]
    It is entirely within the contemplation of s 149B that the chief executive may elect to either issue a formal decision in terms of either s 149B(3)(b) or s 149B(6) or, alternatively, may legitimately rely on the provisions of s 149B(7) and make a deemed decision declining to convert an employee.
  1. [90]
    This is not a case where the Department intended to make a formal decision within the stipulated time frame but e.g. through some logistical difficulty delivered the intended decision late. There is an express acknowledgement by the Department in their correspondence of 2 November 2022 that a deemed decision was made by operation of s 149B(7) on 29 August 2022. That was a decision of the type contemplated by s 149B and in no way constitutes non-compliance or breach.  
  1. [91]
    It is more than a little puzzling that the Department would acknowledge in their letter of 2 November 2022 that a deemed decision was made 'in accordance' with s 149B(7) but then seek to rely on a suggestion of breach or non-compliance to support their use of s 24AA of the AIA. Whatever the rationale for this approach, it has failed. For the reasons set out above I reject the statutory construction posited by the Department.
  1. [92]
    Further, the Department's submissions broadly (and correctly) note that decisions affecting legal rights or decisions intended to be final are excluded from the operations of s 24AA of the AIA. Despite recognising this in their submissions the Department then wholly fails to apply these principles to the facts of this matter.
  1. [93]
    With respect to a decision affecting legal rights it is my view that this is not limited to the extinguishment of an existing right. It is an exclusion equally apposite where prospective rights are denied. A decision refusing to convert a temporary or casual employee to permanent employment will invariably affect the legal rights of that employee in a multitude of ways. It is unnecessary in these reasons to recite ad nauseum the well-travelled pros and cons of temporary or casual employment versus permanent employment. Suffice to say a decision to refuse to convert an employee to permanent employment (in circumstances where permanent employment is their preference) will deprive that employee of inter alia the reliable tenure of permanency (as opposed to the more tenuous tenure associated with temporary and casual appointments).
  1. [94]
    A decision (deemed or otherwise) refusing to convert a temporary employee to permanent will fundamentally affect the rights of that employee in their employment relationship.
  1. [95]
    With respect to the intention of finality, s 149B of the PS Act is expressed in terms that (by operation of the statute) make each decision made by the chief executive final. Indeed, the provisions of s 149B(4) prescribing the timing of future decisions paint a compelling picture of finality with respect to the decision made. The fact that s 149B might contemplate further decisions about the status of an employee does nothing to detract from the finality of a decision that has been made. Any subsequent decisions are distinct decisions precipitated by the prescribed circumstances i.e. a further 12 months of continuous employment. The timing of all subsequent decisions pursuant to s 149B can be reliably predicted by all stakeholders with a significant degree of certainty.     
  1. [96]
    Again, to be clear, decisions about Mr Talbot's status can be made in much less restrictive ways outside the formal structure of s 149B of the PS Act, but decisions made pursuant to the express obligations of the chief executive under s 149B are decisions that directly impact the rights of the employee and are clearly intended to be final. They are decisions that are beyond repeal or amendment pursuant to the use of powers under s 24AA of the AIA.  

Disposition of the appeal

  1. [97]
    The decision to offer permanent employment to Mr Talbot on 2 November 2022 might have caused this matter to take a different course had the Department not sought to rely on s 24AA of the AIA and simply made the offer of permanent employment as a means of proposed compromise. This might still occur, though for the reasons set out above I would caution that such an offer could not be made with a decision purported to be pursuant to s 149B.
  1. [98]
    While decisions and discussions in the broader context of Mr Talbot's employment may occur at any time (including decisions to convert him to permanent or offer him work in a different region), for all of the reasons set out above subsequent decisions made pursuant to s 149B are strictly confined to the time frames prescribed in s 149B(4).[11]  
  1. [99]
    On 3 November 2022, after being notified of the Department's offer of permanent employment, Mr Talbot (unaware of the questionable validity of the Department's decision) notified the Registry that he wished to appeal the substitute decision. This prompted the listing of the matter for mention and the subsequent preliminary inquiry into the valid use of s 24AA of the AIA by the Department.
  1. [100]
    In circumstances where I have concluded that the purported repeal of the deemed decision and its replacement with the substitute decision was an invalid use of the discretion available in s 24AA of the AIA I am of the of the view that (for the purposes of this appeal) the Department's decision of 2 November 2022 does not have the effect of repealing the deemed decision of 29 August 2022.
  1. [101]
    I therefore consider that the substitute decision does not displace the QIRC's jurisdiction to review the decision under review. Accordingly fresh directions will be issued for submissions addressing a review of that decision.

Other matters

  1. [102]
    As an alternative submission the Department contends that if the QIRC determines the decision of 2 November 2022 is invalid then the utility of reviewing the deemed decision has been lost because '...the best outcome for the appellant would be the Commission substituting the Deemed Decision with the Amended Decision...'.[12] Apart from being breathtakingly presumptuous, this submission is plainly wrong.
  1. [103]
    It must be stressed that the merits or otherwise of Mr Talbot's appeal are yet to be evaluated and no view has been formed about them at this time. The deemed decision may well be confirmed. But the range of possible outcomes extends beyond what is foreshadowed by the Department as the 'best' outcome for Mr Talbot.
  1. [104]
    The powers granted to the QIRC pursuant to s 562C(1)(c) include the power to 'set the decision aside and substitute for another decision'. Among the possible outcomes of the QIRC's review is the possibility of a decision that Mr Talbot's employment ought to be converted to permanent but also, that he ought to be employed permanently in the region where he is currently employed. There are no express limits placed on the term 'another decision' as it appears in the powers granted under s 562C(1)(c).
  1. [105]
    Naturally if an order is made making Mr Talbot a permanent employee he might then be subject to a transfer decision. But that would be a discrete decision which could also be the subject of an appeal by Mr Talbot to the QIRC and an interim order staying the transfer decision until such time as any objections on e.g. compassionate grounds are dealt with. 
  1. [106]
    The Department has notice of Mr Talbot's personal circumstances. For reasons of privacy it is not necessary to go into detail in these reasons. Suffice to say Mr Talbot has previously supplied the Department with extensive details of his family living arrangements and in particular, the details of the additional needs of one of his three children who has a medical diagnosis regarding a condition of an ongoing nature. 
  1. [107]
    It is no solution at all to suggest (as the Department has) that upon accepting transfer to some distant school away from his children that Mr Talbot would be at liberty to apply for a transfer back to his family on compassionate grounds – an application which would be subject to a merits consideration. Given that Mr Talbot's circumstances are known to the Department one would think that the most efficient use of the Department's resources in these circumstances would be to take the compassionate grounds into account before proposing to transfer Mr Talbot to the regions, away from his family.   
  1. [108]
    I accept that the Department has a significant responsibility to provide skilled teachers to schools throughout the state. Operational efficiency demands that the Department ought to have the discretion to deploy permanent teachers wherever their skills are most needed. Accordingly, regional service will be all but compulsory for teachers permanently employed by the Department. Further, even consideration of compassionate grounds ought to have very narrow and clear limits lest the Department finds itself unable to staff regional schools.
  1. [109]
    In those circumstances, subject to consideration of submissions made in the subsequent conduct of this appeal, it may be that Mr Talbot will continue to find himself having to make a difficult choice between the needs of his family and the advantages of permanent employment with the Department.

Order

  1. [110]
    In the circumstances I make the following orders:
  1. Pursuant to s 451 of the Industrial Relations Act 2016 (Qld) it is ordered that:
  1. (i)
    The appeal filed 6 September 2022 will be a review of the deemed decision of the Respondent dated 29 August 2022 in accordance with ss 562B and 562C of the Industrial Relations Act 2016 (Qld).
  2. (ii)
    The appeal will be listed for mention on a date to be advised.

Footnotes

[1] Public Service Act 2008 (Qld) s 149B(7) and (9).

[2] See paragraph 31 of the submissions of the Department filed 6 December 2022.

[3] JL Holdings Pty Ltd v State of Queensland [1998] FCA 220; 85 FCR 1; Bayside Consulting Pty Ltd v Caboolture Shire Council [2005] QPEC 122.

[4] See paragraph 22 of the submissions of the Department filed 6 December 2022.

[5] Human Rights Act 2019 (Qld) s 48.

[6] Human Rights Act 2019 (Qld) s 26.

[7] [2000] QSC 159.

[8] [1998] FCA 220.

[9] See submissions of the Respondent filed 6 December 2022 at [24] – [29].

[10] [2021] QIRC 417.

[11] Westacott v State of Queensland (Queensland Health) [2021] QIRC 417.

[12] See paragraph 31 of the submissions of the Department filed 6 December 2022.

Close

Editorial Notes

  • Published Case Name:

    Talbot v State of Queensland (Department of Education)

  • Shortened Case Name:

    Talbot v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 10

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    17 Jan 2023

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
Bayside Consulting Pty Ltd v Caboolture Shire Council [2005] QPEC 122
2 citations
Jump To
Cite 1 - [2005] QPEC 122
Cite 2 - [2005] QPEC 122
Ethnic Affairs v Kurtovic [1990] FCA 22
1 citation
Jump To
Cite 1 - [1990] FCA 22
Firearm Distributors Pty Ltd v Carson[2001] 2 Qd R 26; [2000] QSC 159
2 citations
Jump To
Cite 1 - [2000] QSC 159
Cite 2 - [2000] QSC 159
JL Holdings Pty Ltd v Queensland [1998] FCA 220
3 citations
Jump To
Cite 1 - [1998] FCA 220
Cite 2 - [1998] FCA 220
Cite 3 - [1998] FCA 220
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
1 citation
Jump To
Cite 1 - (1990) 21 FCR 193
Westacott v State of Queensland (Queensland Health) [2021] QIRC 417
3 citations
Jump To
Cite 1 - [2021] QIRC 417
Cite 2 - [2021] QIRC 417
Cite 3 - [2021] QIRC 417

Cases Citing

Case NameFull CitationFrequency
Costello v State of Queensland (Queensland Ambulance Service) [2025] QIRC 932 citations
In the termination of the Barcoo Shire Council Local Government Operational Employees' Certified Agreement 2021-2024 [2025] QIRC 832 citations
1

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