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  4. Hegazy v State of Queensland (Department of Education) - [2023] QIRC 114

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Hegazy v State of Queensland (Department of Education)[2023] QIRC 114

Hegazy v State of Queensland (Department of Education)[2023] QIRC 114

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Hegazy v State of Queensland (Department of Education) [2023] QIRC 114

PARTIES:

Hegazy, Hind

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/37

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision

DELIVERED ON:

27 April 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where appellant requested to be permanently appointed to higher classification 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 – decision confirmed

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562

Public Sector Act 2022 (Qld), s 114, s 115, s 120 and s 131

Public Service Act 2008 (Qld), s 195

Directive 13/20: Appointing a public service employee to a higher classification level

Directive 12/20: Recruitment and selection

Directive 03/23: Review of acting or secondment at higher classification level

CASES:

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

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]
    Dr Hind Hegazy ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Department') substantively in a permanent full-time role as an Experienced Senior Teacher at Woodridge State High School.
  1. [2]
    From 6 October 2015 until 19 January 2021, Dr Hegazy was performing duties in a higher classification of 'Head of Department'[1] within the First Nations Strategy and Partnerships organisational unit in the Central Office.
  1. [3]
    On 21 January 2021, the classification level changed to that of 'Deputy Principal'[2] ('the Position'). 
  1. [4]
    By way of background, on 20 September 2022, Dr Hegazy appealed a deemed decision not to permanently appoint her to the Position.[3]
  1. [5]
    On 20 January 2023, the Commission dismissed the appeal on the basis that it was filed out of time and that Dr Hegazy was not yet eligible to appeal the decision as she had not been acting in the position for a two year period as prescribed by s 195(1)(j) of the Public Service Act 2008 (Qld).[4]
  1. [6]
    On 9 February 2023, Dr Hegazy made another request to be permanently appointed to the Position.
  1. [7]
    Dr Hegazy did not receive a response to the request within 28 days and accordingly, a decision was deemed to have been made on 9 March 2023 to refuse Dr Hegazy's request to be permanently appointed to a higher classification level.
  1. [8]
    By notice of appeal filed on 14 March 2023, Dr Hegazy appeals the decision not to permanently appoint her to the position in which she has been acting at a higher classification level and provides the following:

…

I appeal this decision on the grounds provided under section 129E ''under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under 120(7), of at least 2 years.'' As the chief executive did not make a decision within the required 28-day period and failed to meet their obligations under sections 120(5)(a)(b)(c)(d) and 120(6) of the Public Sector Act 2022, I am eligible to appeal this decision under section 120(7) of the Public Sector Act 2022 which states ''the commissioner must make a directive about employing an employee at a higher classification level under this section.''

…

  1. [9]
    The appeal is made pursuant to s 134 of the Public Sector Act 2022 (Qld) ('PS Act')  which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [10]
    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. [11]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.[5] An appeal under Ch. 3, Pt 10 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.[6]
  1. [12]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [13]
    The Department did not make a decision within 28 days of Dr Hegazy's request for conversion. Accordingly, pursuant to s 120(6) of the PS Act, the chief executive is taken to have decided that the terms of Dr Hegazy's employment will continue according to the current terms of the higher duties arrangement. Relevantly, Dr Hegazy's current arrangement is that she will continue acting in the Position until 28 April 2023.

Relevant legislation and directive

  1. [14]
    Section 131 of the PS Act identifies the decisions against which appeals may be made as follows:

131Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—
  1. (a)
    a conversion decision;

…

  1. [15]
    Section 120 of the PS Act provides for the appointment of a public service employee to a higher classification level in the following terms:

120Employee may request employment at a higher classification level after 1 year of    continuous acting or secondment

  1. (1)
    If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis, after—
  1. (a)
    the end of 1 year of acting at, or being seconded to, the higher classification level; and
  1. (b)
    the end of each subsequent 1-year period.
  1. (2)
    The employee’s chief executive must decide the request within the required period.
  1. (3)
    The employee’s chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role.
  1. (4)
    In making the decision, the employee’s chief executive must have regard to—
  1. (a)
    the genuine operational requirements of the public sector entity; 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 acting at, or secondment to, the higher classification level.
  1. (5)
    If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and
  1. (c)
    how many times the employee’s acting arrangement or secondment has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the employee during the employee’s continuous period of acting at, or secondment to, the higher classification level.
  1. (6)
    If the employee’s chief executive does not make the decision within the required period, the chief executive is taken to have refused the request.
  1. (7)
    The commissioner must make a directive about employing an employee at a higher classification level under this section.
  1. (8)
    In this section—

continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive.

required period, for making a decision under subsection (2), 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.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

  1. [16]
    The phrase 'genuine operational requirements of the department' in the context of the former provision, s 149C of the PS Act[7], was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[8] as follows:[9]

…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. [17]
    Directive 13/20: Appointing a public service employee to a higher classification level ('Directive 13/20') commenced operation on 25 September 2020. Directive 03/23: Review of acting or secondment at higher classification level ('Directive 03/23') became operative on 1 March 2023 and supersedes Directive 13/20.
  1. [18]
    Clause 7 of Directive 03/23 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level as follows:

7.1 When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity

  1. [19]
    Clause 9 of Directive 03/23 outlines the meaning of 'suitable' as follows:

9.1 A public sector employee is to be considered suitable to perform the role where:

  1. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
  1. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
  2. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and where required, managed in accordance with the requirements of a relevant directive, such as the directives relating to positive performance management and discipline.
  1. [20]
    Clause 11 of Directive 03/23 defines a 'deemed decision' as follows:

11.1  A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to employ the person at the higher classification on a permanent basis.

11.2  A written notice is not required to be prepared to support a deemed decision.

11.3  However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

  1. the employee’s right to make an additional request for employment at the higher classification level on a permanent basis under section 121 of the Act, if the initial request was made under section 120 of the Act, and
  2. any relevant appeal right available to the employee.

11.4 Unless otherwise advised by the chief executive, where a deemed decision occurs, a person’s engagement in the public sector entity is to continue according to the terms of the existing secondment or acting arrangement.

11.5   Chief executives of public sector entities are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.

Whether the decision was fair and reasonable

  1. [21]
    By order of this Commission dated 14 March 2023, 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. [22]
    Both parties complied with the direction. Following an application made by the Department, the Department was provided leave to file further submissions in reply to Dr Hegazy's reply submissions.
  1. [23]
    The role of the Commission in an appeal of this nature is to determine if the decision is fair and reasonable. Relevantly, regard will be had to the factors set out in s 120, including s 120(4) of the PS Act and Directive 03/23. 

Genuine operational requirements

  1. [24]
    Dr Hegazy submits that she has been working in the same role for seven years, although it should be noted that the position has been reclassified during that period of time, and that there is a genuine operational need for the position as she has been specifically employed to fulfill the outcomes specified within the Aboriginal and Torres Strait Islander Education and Training: An Action Plan for Queensland (2017) ('the Action Plan'). In support of her position, Dr Hegazy notes that one of the objectives of the Action Plan is to 'continue and expand the solid pathways program for high performing students'. Dr Hegazy submits that this objective 'indicates a need for ongoing responsibilities' in the Position and 'implies permanency' in the Position.
  1. [25]
    Dr Hegazy further submits that the Solid Pathways Program has permanent deliverables which also supports her contention that there is a genuine operational need for the Position.
  1. [26]
    The Department submits that it is not viable or appropriate to permanently convert Dr Hegazy to the Position having regard to the genuine operational requirements of the Department. The Department submits that the Position is incorrectly classified and it is intended that the Position is to be re-evaluated in accordance with the job evaluation management system to determine the applicable classification level under the relevant industrial instrument. It submits that it has been consulting with Dr Hegazy with respect to the re-classification of the Position since the end of 2022. In its submissions, the Department submits that it has 'become a genuine operational requirement to re-evaluate the position' and relies on cl 5.1 of Directive 12/20: Recruitment and selection ('Directive 12/20') which provides that:

5.1  Unless an alternative is approved by the Commission Chief Executive (CCE), a role evaluation for the purpose of determining the work value and applicable classification level must be undertaken in accordance with the Queensland public sector job evaluation management system.

  1. [27]
    In its submissions, the Department submits that Dr Hegazy's supervisor met with her to discuss the future of the Position and its classification. These discussions occurred on several occasions including in late 2022 and in January 2023. The Department submits that there is no legitimate justification for the Position to remain under 'teaching industrial instruments on school conditions' as it is a 'non-teaching role'. In support of its contention, the Department submits that the Position 'does not require the mandatory requirements as set out in section 5.12' of the Department of Education State School Teachers' Certified Agreement 2022 ('the Teachers' Agreement').
  1. [28]
    The Department notes that Dr Hegazy's contract was extended to 28 April 2023 to facilitate discussions around the reclassification of the position. Further, the Department submits that Directive 03/23 does not exempt the Department from their obligation to ensure that the Position is properly evaluated.
  1. [29]
    The Department submits the classification of the Position was assigned to Dr Hegazy in an attempt to achieve remuneration parity and equity within the Queensland Virtual STEM Academy ('QVSA'). In its submissions, the Department notes that the Position was not properly evaluated and instead, a 'generic' Deputy Principal role description was utilised. The Department attaches to its submissions the role description used which describes the responsibilities of a Deputy Principal as, inter alia, one which is to assist the principal to lead the school community.[10]
  1. [30]
    Further, the Department submits that, until the Position is re-classified to an appropriate stream and level, it would not be an appropriate management of public resources to permanently employ Dr Hegazy in the Position. In its submissions, the Department notes that re-classifying the Position to either an Administrative Officer (A08) level or a Professional Officer (PO6) level may be a possibility.
  1. [31]
    In her reply submissions, Dr Hegazy submits that the key role of the Position is to 'oversee curriculum development and manage a team of teachers in the delivery of lessons to school students' during school hours. In the circumstances, Dr Hegazy submits that because the Position aligns with 'school conditions' there is a 'legitimate justification' for the Position to remain classified under the Teachers' Agreement. In relation to the potential classification levels put forth by the Department for the Position, Dr Hegazy submits that neither the A08 or P06 level 'accurately reflect the full spectrum of responsibilities and duties' of the Position.
  1. [32]
    It is not for me to determine in this appeal whether the potential classification levels put forward by the Department for the Position are appropriate. That will no doubt be determined in accordance with Directive 12/20 in due course.
  1. [33]
    However, it is relevant to my consideration that Dr Hegazy has been on notice since late 2022 that the Department intended to have the Position re-evaluated. Accordingly, on the date Dr Hegazy made the request (9 February 2023), Dr Hegazy knew the Department intended to re-evaluate the Position. I consider it is appropriate for the Department to     re-evaluate the Position given it is of the view that the Position now, according to the Department, no longer fits the appropriate criteria for its current classification.
  1. [34]
    In these circumstances, I do not consider that it would be appropriate, particularly having regard to the Department's obligation to ensure that public resources are managed efficiently, to appoint Dr Hegazy to the Position at the higher classification level on a permanent basis. It follows, that I consider that there are genuine operational requirements of the Department which provide a basis for the Department to refuse the request. I do not consider that the decision was unfair or unreasonable.

Other matters for consideration

  1. [35]
    Dr Hegazy submits that a decision not to convert her permanently to the Position would be in 'contempt' of s 114(4) of the PS Act. Further to this, Dr Hegazy submits that she has satisfied the fulfilment criteria set out in s 115(1) of the PS Act.
  1. [36]
    Relevantly, the request by Dr Hegazy was made pursuant to s 120 of the PS Act. Section 114 and 115 of the PS Act are relevant to a request made pursuant to s 113 of the PS Act. Dr Hegazy did not make a request pursuant to s 113 of the PS Act and accordingly, Dr Hegazy's submissions with respect to the Department's alleged contempt of s 114 of the PS Act is without foundation.
  1. [37]
    Dr Hegazy further submits that not permanently appointing her to the Position would go against the public sector principles outlined in s 39(3) of the PS Act, in particular, s 39(3)(a) which provides that:

39  Public sector principles

…

  1. (3)
    The employment of public sector employees should be guided by the following principles—
  1. (a)
    ensuring employment on a permanent basis is the default basis of employment, other than for non-industrial instrument employees;

...

  1. [38]
    In her submissions, Dr Hegazy also submits that coupled with the public sector principles outlined in s 39(3) of the PS Act, regard should also be had to the principles under cl 4 of Directive 03/23 which provides the following:

4. Principles

4.1 Chief executives are responsible for making decisions under the provisions of chapter 3, part 9, division 2 of the Act.

4.2 Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.

4.3 Under the Human Rights Act 2019, decision makers have an obligation to:

  1. act and make decisions in a way that is compatible with human rights
  1. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

4.4 Under chapter 1, part 3 of the Act public sector reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.

4.5 Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.

4.6 In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.…

  1. [39]
    The Department does not contest that the employment of public sector employees should be guided by the principles set out in s 39(2) of the PS Act. Indeed, the Department agrees to the following matters in support of its position:
  1. The Respondent does not contest that: it would be a taxing process to run two appeals in close succession; the Appellant's eligibility to make The Request or lodge the Appeal; the Appellant's suitability in regards to the meaning of suitability in clause 9.1 of Directive 03/23; the classification change to DP was done to align with other online learning positions that were being performed within the department as outlined earlier in these submissions; the purpose of the PS Act is achieved primarily through the matters listed in section 4, which also includes sub-section (d)(v) ‘ensures public resources are managed efficiently and their use is accountable’; the employment of public sector employees should be guided by the principles in section 39(3) of the PS Act, which also includes at sub-section (f) ‘remunerating employees at rates appropriate to their responsibilities’; and, when making relevant active decisions chief executives, and delegates, should consider the Human Rights Act 2019 and the responsibilities under chapter 1, part 3 of the PS Act.

…

  1. [40]
    I note relevantly, that Dr Hegazy is permanently employed by the Department at the classification level of Experienced Senior Teacher and, to that end, I am satisfied that Dr Hegazy's employment accords with the principles set out in s 39(3) of the PS Act. Relevantly, it could not be said that the request made by Dr Hegazy pursuant to s 120 of the PS Act was requesting permanency of employment (because, as noted above, Dr Hegazy is already employed on a permanent basis) but, rather, Dr Hegazy was seeking appointment to a position at a higher classification level.
  1. [41]
    As noted above, in determining a request made pursuant to s 120 of the PS Act, regard should be had to s 120(4) of the PS Act. Having regard to those matters, and for the reasons referred to above, I am satisfied that there are genuine operational reasons which support a refusal of Dr Hegazy's request.
  1. [42]
    The relief sought by Dr Hegazy includes the following:
  1. [38]
    The appellant requests that 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 appealis (sic) set aside; and
  1. (b)
    in lieu thereof, it is ordered that Dr Hind Hegazy be appointed to the position at the higher classification, namely, the position of Deputy Principal Stream 1/O2, Metropolitan Region.

…

  1. [43]
    At the time of the request, Dr Hegazy was employed in the Position. Even if I were inclined to allow the appeal, there is no basis before me as to why it would be appropriate to appoint Dr Hegazy to a position which is not the subject of the request. Accordingly, there is no basis for Dr Hegazy to seek the relief outlined in her written submissions at paragraph 38(b).
  1. [44]
    For the reasons referred to above, I consider that the genuine operational requirements of the Department are such that the deemed decision to refuse Dr Hegazy's request is fair and reasonable.

Order

  1. [45]
    Accordingly, I make the following order:

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

Footnotes

[1] 'Heads of Program – (Stream 2)'.

[2] 'School Leaders – (Stream 3)'.

[3] PSA/2022/910.

[4] Hegazy v State of Queensland (Department of Education) [2023] QIRC 016; s 195(1)(j) of the Public Service Act 2008 (Qld) is in the same terms as s 132(1)(k) of the Public Sector Act 2022 (Qld).

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

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

[7] The Public Service Act 2008 (Qld) has subsequently been repealed by the Public Sector Bill 2022. Section 149C of the Public Service Act 2008 (Qld) is in the same terms as s 120 of the Public Sector Act 2022 (Qld).

[8][2020] QIRC 203.

[9] Ibid [37] - [38].

[10] Attachment 1 to the submissions of the Department.

Close

Editorial Notes

  • Published Case Name:

    Hegazy v State of Queensland (Department of Education)

  • Shortened Case Name:

    Hegazy v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 114

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    27 Apr 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
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
Hegazy v State of Queensland (Department of Education) [2023] QIRC 16
1 citation
Jump To
Cite 1 - [2023] QIRC 16
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

No judgments on Queensland Judgments cite this judgment.

1

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