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  4. Lynch v State of Queensland (Department of Education) - [2023] QIRC 234

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Lynch v State of Queensland (Department of Education)[2023] QIRC 234

Lynch v State of Queensland (Department of Education)[2023] QIRC 234

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lynch v State of Queensland (Department of Education) [2023] QIRC 234

PARTIES:

Lynch, Meeca

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/117

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision

DELIVERED ON:

14 August 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

  1. 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 SECTOR APPEAL – appeal against a conversion decision – where the appellant requested to be permanently employed at the higher classification level – where the respondent refused the appellant’s request on the basis of its genuine operational requirements – where the appellant is acting in the higher classification level on a non-permanent basis during a project with a known end date – consideration of the respondent’s genuine operational requirements – whether the decision was fair and reasonable – decision appealed against confirmed

LEGISLATION AND

OTHERINSTRUMENTS:

Directive 03/23 Review of acting or secondment at higher classification level cl 7

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

Public Sector Act 2022 (Qld) ss 81, 114, 120, 129, 131, 133, 177

CASES:

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

Huismann v State of Queensland (Queensland Health) [2021] QIRC 176

Katae v State of Queensland & Anor [2018] QSC 225

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

Woods v State of Queensland (Department of Education) [2021] QIRC 193

Reasons for Decision

 Introduction

  1. [1]
    Ms Meeca Lynch (‘the Appellant’) appeals a decision of the State of Queensland (Department of Education) (‘the Respondent’) dated 30 May 2023 to refuse her request to be permanently employed at a higher classification level.
  1. [2]
    Since 20 April 2020, Ms Lynch has been acting in the role of Head of Wellbeing/ Principal Human Resource Consultant (AO7) with the Atherton Centre of Learning and Wellbeing (CLaW) at Atherton State School within the Respondent’s Far North Queensland Division.
  1. [3]
    Ms Lynch’s substantive position is currently that of an Administrative Officer (Unattached) in the Respondent’s ‘HRBP FNQ’ Business Unit within the People, Information & Corporate Services Division. She was appointed to her substantive role on a permanent, full-time basis on 14 April 2007.
  1. [4]
    On 30 May 2023, Mr Boyd Clifford, Director, Recruitment and Employment Review, Engagement and Talent Acquisition, People Branch, wrote to Ms Lynch to provide an outcome of her request to be employed in the position at the higher classification level on a permanent basis. His correspondence confirms that Ms Lynch satisfies the relevant requirements for appointment to the higher classification position as she is: acting in the higher classification level position in the Department where she is employed; has been acting in the higher classification position for a continuous period of at least one year; and is suitable for appointment to the position at the higher classification level.   However, Mr Clifford informs Ms Lynch that genuine operational requirements exist to support the refusal of her request.
  1. [5]
    Mr Clifford sets out the reasons for this decision on pages 2 and 3 of the letter. Relevantly, Mr Clifford says:

… In this case I have determined that it is not appropriate to permanently employ you in the higher classification level classification position as the purpose of your employment is to perform work for a particular project or purpose that has a known end date.

I note you are currently engaged in the role of Head of Wellbeing Coordinator, Atherton Centre for Learning and Wellbeing (CLaW). The CLaW was established as a project to support the Leadership and Capability development of staff in Rural and Remote locations. It has 5 key functions including:

  • leadership capability development
  • mentoring and coaching for beginning teachers
  • coaching for mid and experienced teachers
  • resilience building for staff new to rural and remote settings
  • inter-agency wellbeing support for staff and students

Your role within the project as Head of Wellbeing Coordinator, Atherton CLaW was created to provide staff wellbeing support including needs assessment, critical support in schools, sourcing wellbeing providers and developing system initiatives to attract and retain staff to rural and remote.

The positions attached the [sic] CLaW are currently temporary project positions, with a current end date of 8 December 2023. The proposed Educational Futures Institute is currently under review, and is expected to transition to a permanent establishment in the near future.

I have considered the effective, efficient and appropriate management of the public resources and human resource planning with the department. In the absence of current permanent funding to support the project you are employed by, it would not be viable for the department to support your employment on a permanent basis at this time.

Appeal principles

  1. [6]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [7]
    Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission —

  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [8]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [9]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [10]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. 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.

Legislative framework and other instruments

  1. [11]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Sector Act 2022 (Qld) (‘the PS Act’) and Directive 03/23 Review of acting or secondment at higher classification level (‘the Directive’).

The PS Act

  1. [12]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision.
  1. [13]
    Section 129 of the PS Act relevantly provides:

129  Definitions for part

In this part—

conversion decision means a decision—

…

  1. 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 section 120(7), of at least 2 years.
  1. [14]
    Section 120 of the PS Act provides for the appointment of a public sector employee to a higher classification level in the following terms:

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

  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. the end of 1 year of acting at, or being seconded to, the higher classification level; and
  1. the end of each subsequent 1-year period.
  1. The employee’s chief executive must decide the request within the required period.
  1. 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. In making the decision, the employee’s chief executive must have regard to—
  1. the genuine operational requirements of the public sector entity; and
  1. 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. If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. the reasons for the decision; and
  1. 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. how many times the employee’s acting arrangement or secondment has been extended; and
  1. 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. 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. The commissioner must make a directive about employing an employee at a higher classification level under this section.
  1. 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. the period stated in an industrial instrument within which the decision must be made; or
  1. 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. [15]
    Section 133 of the PS Act explains who may appeal a conversion decision:

133 Who may appeal

The following persons may appeal against the following decisions—

  1. for a conversion decision—the public sector employee the subject of the decision

The Directive

  1. [16]
    While all of the provisions of the Directive have been considered, particular attention is paid to the following provision:

7.  Decision-making

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.

Ms Lynch’s reasons for appeal

  1. [17]
    Ms Lynch filed her appeal notice on 20 June 2023, within 21 days of receiving the 30 May 2023 decision letter. Ms Lynch says that the decision not to appoint her to the higher classification level cites the Department’s genuine operational requirements, specifically that the purpose of her employment at the higher classification level is to perform work for a particular project or purpose that has a known end date.
  1. [18]
    Ms Lynch submits that the higher classification position is in the CLaW team and that the team has recently been confirmed as an enduring team in the Schools and Student Support division of the Department. Ms Lynch says that this confirmation has been communicated widely to staff.
  1. [19]
    Ms Lynch says that as the team has been confirmed, she does not believe the decision is fair and reasonable and contends that she should be employed permanently in the AO7 position.

Respondent’s submissions

  1. [20]
    The Respondent’s submissions state that as required by s 120 of the PS Act, the review of Ms Lynch’s request was undertaken with regard to the higher classification position in which she is currently placed.[1] The Respondent agrees that Ms Lynch was eligible to make the request and confirms that the decision complied with Directive 03/23 and s 120 of the PS Act, except that it does not include how many times Ms Lynch’s acting arrangement or secondment has been extended per s 120(5)(c) of the PS Act. The Respondent says that this is not a significant omission and does not prejudice Ms Lynch, and therefore, it does not render the decision unfair or unreasonable.[2] The Respondent accepts that the appeal is one which can be made and that it was filed within the prescribed timeframe.[3]
  1. [21]
    With regard to the matters set out in Ms Lynch’s appeal notice, the Respondent provides clarification to the reference in the decision letter to a current review of the proposed Educational Futures Institute and says that the higher classification position subject of this appeal is required to be reviewed as part of the service delivery within the CLaW pilot project.
  1. [22]
    With regard to Ms Lynch’s contention in her appeal notice that ‘the team has been confirmed’, the Respondent respectfully submits that workforce changes are occurring.
  1. [23]
    The Respondent refers to the discussion of ‘genuine operational requirements’ in Morison v State of Queensland (Department of Child Safety, Youth and Women) (‘Morison’), which states:

[37]  The phrase ‘genuine operational requirements of the department’ is not defined in the PS Act or in the Directive. As a consequence, 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.

[38]  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; and
  • 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.[4]

The Respondent says that the position is for a specified purpose with a specified end date

  1. [24]
    In the letter, the decision-maker states that the employment is for a specified purpose with a known end date. The Respondent says that the position was created on a temporary basis for the specified purpose of undertaking work in the Atherton CLaW.
  1. [25]
    The Respondent submits that the Atherton CLaW is one of four CLaWs throughout Queensland. CLaWs are a pilot project established under the ‘Advancing rural and remote education in Queensland state schools – An action plan to support every rural and remote student to succeed’ (‘Advancing Education Action Plan’)[5] supported by four years of funding between 2018 to 2022.
  1. [26]
    The Respondent says that the higher classification position provides staff with wellbeing support to schools serviced by the Atherton CLaW, undertakes needs assessment, provides critical support in schools, sources wellbeing providers and develops system initiatives to attract and retain staff to rural and remote schools. The Respondent acknowledges that the end date for the CLaW pilot was extended beyond 2022 and that the CLaW project was intended for a period of four years, concluding in 2023.
  1. [27]
    The Respondent says that the higher classification project is unique to the Atherton CLaW and is not part of the core funding or operating model used by other CLaWs in Queensland. There was an identified temporary need for the position in the Atherton CLaW and the position is funded from discretionary funds.
  1. [28]
    The Respondent submits that the higher classification position has a known end date of 8 December 2023.  The Respondent says that this end date aligns with the end date of the Atherton CLaW.
  1. [29]
    The Respondent points to the creation of the Educational Futures Institute (‘EFI’) and says that the CLaW pilot project will cease due to the creation of the EFI.
  1. [30]
    The Respondent says that in contrast to reviews of non-permanent employment in accordance with the PS Act, consideration of whether ‘there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same as the employee’s role’[6] was not required when considering the request for appointment to the higher classification position.

The Respondent says that there is uncertainty as a result of workplace change

  1. [31]
    The decision refers to the proposed Educational Futures Institute which it says is ‘currently under review and is expected to transition to a permanent establishment in the near future’.
  1. [32]
    The Respondent acknowledges that the absence of permanent funding does not preclude employment on a permanent basis.[7] However, in these circumstances, the Respondent says that the absence of permanent funding for positions attached to the CLaW are a consequence of the temporary project nature of the positions and the current workplace change associated with the creation of the EFI.

The Respondent says that employees working in the CLaWs are directly impacted by the establishment of the EFI

  1. [33]
    By way of background, the Respondent says that on 17 January 2023, it launched ‘Equity and Excellence: Realising the potential in every student’ (‘Equity and Excellence Strategy’) to set all students on a path to lifelong success.
  1. [34]
    The Respondent says that the Equity and Excellent Strategy will review support positions in each region with a focus toward a high-performing education system and has a focus on collective efforts to improve service delivery. To help deliver the Equity and Excellent Strategy, the Respondent has stated implementing an initiative called ‘A renewed educational performance and support model’ (the Model). The Model was announced by the Director-General of the Department of Education on 19 April 2023 to all employees.
  1. [35]
    The Respondent says that the Model includes alignment of resources to establish the EFI as a world-class educational leadership and teaching institute, alongside what it says is a significantly different model of providing supervision and support to schools. The Respondent says that employees working in the CLaWs are directly impacted by the establishment of the EFI as the proposed implementation model for the EFI includes a proposed ‘EFI Regional Campus – Centres for Learning, Leadership and Wellbeing’ (‘EFI – CLLaW’).[8]
  1. [36]
    The Respondent says that the services of the EFI-CLLaW will be in support of the delivery of the Equity and Excellence Strategy and will build on, and may be different to, the services of the CLaW.

The Respondent says that a review is being undertaken in Term 3, 2023 to review the CLaWs and to determine the functions and services to be delivered by EFI-CLLaW within the context of the Model

  1. [37]
    The Respondent says that a review will consider the structural difference in each of the Respondent’s eight geographical regions and the positions within them. The Respondent anticipate that the staffing implications will also form part of the Review and the Respondent is working towards finalising the Review by the end of Term 3, 2023 to enable sufficient planning should employees return to their substantive positions. The Respondent says that it communicated about the Review and the associated timeframes with CLaW employees on 20 March 2023.
  1. [38]
    The Respondent says that to minimise disruptions to CLaW schools and ensure continuity, there was approval in June 2023 for employees in CLaWs to be extended until the end of the school year on 8 December 2023.
  1. [39]
    The Respondent says that at a specified time, the CLaW project and project positions will cease along with its associated funding, and the EFI will become fully operational.
  1. [40]
    The Respondent says that uncertainty as a result of workplace change has been accepted as a genuine operational requirement for refusing a request for permanent employment.[9]  The Respondent says that the Model and Review is genuine, and there is a clear indication that the higher classification position will be imminently impacted. The Respondent sets out evidence of this uncertainty:
  1. Communication about the purpose and proposed implementation model for the EFI was outlined in virtual presentations to all employees between 13 to 17 March 2023;
  1. A copy of the presentation slides along with other information about the Model is available on OnePortal, the department’s Intranet;
  1. On 20 March 2023, Ms Stacie Hansel, Deputy Director-General of Schools and Student Support, communicated to employees about the workforce change;[10]
  1. On 3 May 2023, Ms Leanne Wright, the Assistant Director-General Teaching, Leadership, Rural and Remote (ADG-TLRR) held a meeting with all CLaW staff regarding the work of CLaWs in Term 2 and 3, 2023.  The ADG-TLRR also advised of the Review and that no decisions had been made about the future model;
  1. On or after 26 May 2023, CLaW staff were extended until the end of 2023; and
  1. Regular discussions about the Model in CLaW team meetings.
  1. [41]
    The Respondent says it is expected that variations to the organisational structure will occur, which will see some structural and reporting changes because of the creation of the Model and the Review. Therefore, the Respondent submits that there is real uncertainty as to whether the higher classification position will be required.
  1. [42]
    The Respondent submits that the uncertainty and consequent lack of permanent funding for the position  due to the current workplace change associated with the implementation of the Model and the creation of the EFI represents a genuine operational requirement for refusing the request.

Appellant’s submissions

  1. [43]
    Ms Lynch provides me with a background and history regarding the establishment of the CLaWs. I will not summarise those submissions here as they largely reflect the description of the CLaWs in the decision letter and the Respondent’s submissions.
  1. [44]
    Ms Lynch says that her position provides wellbeing support to 22 schools serviced by the Atherton CLaW. Ms Lynch says that a review of the CLaWs undertaken in 2021 affirmed the exemplary service offering provided by the CLaWs and noted commentary of school leaders that if the CLaWs did not continue in their current form, it would be a ‘devastating loss’ which would ultimately impact student outcomes. Ms Lynch also reports that in 2021, the CLaWs were awarded the Australian Rural Education Award for their work in delivering professional learning to rural and remote teachers and school leaders across Queensland.
  1. [45]
    Ms Lynch acknowledges that the CLaWs were established under the Advancing Education Plan which will be ceasing due to the creation of the EFI.

 Ms Lynch’s submissions regarding the EFI and CLLaWs

  1. [46]
    Ms Lynch provides a summary of the Respondent’s submissions regarding the EFI and agrees that on 20 March 2023, she (and her colleagues), were provided with an overview of the Teaching and Leadership Capability and Wellbeing Team which includes a proposed structure of the EFI.
  1. [47]
    Ms Lynch submits that in consideration of the success of the CLaWs, ‘a significant number of students, families, teachers and school leaders would be significantly and adversely impacted by the discontinuance of learning and wellbeing support provided by the CLaWs.  Ms Lynch says that the Respondent appears to acknowledge this through the inclusion of CLLaWs in the proposed structure of the EFI.
  2. [48]
    Ms Lynch says that the CLLaWs are ‘manifestly the same as CLaWs’. In support of that contention, Ms Lynch says that when she was provided with the overview on 20 March 2023, it was ‘verbally confirmed that CLaW employees were being moved into CLLaW’; that the CLaW Lead Principal advised CLaW employees that their roles were being moved into CLLaW; and that all discussions she has been involved in regarding the transition to CLLaWs have centred on the goal of maintaining the same service as CLaWs have since their establishment in 2018.
  1. [49]
    Ms Lynch says that in the second and third week of Term 3, 2023, an EFI Senior Principal shared a proposed implementation model for EFI with CLLaW team members and that the implementation model includes CLLaWs as a component of the EFI campuses.
  1. [50]
    Ms Lynch contends that the Respondent has already commenced a review to determine the functions and services to be delivered within the establishment of EFI, at least to the extent that the Respondent has released a draft structure of the EFI which confirms the ‘enduring existence’ of the CLaWs, now known as CLLaWs.

 Funding of the position

  1. [51]
    In response to the submission of the Respondent that the role is funded from discretionary funds separate to the core funding of other CLaWs, Ms Lynch says that she has enquired with the relevant Business Manager and understands that the funds appropriated for the position are from CLaW core funding.

Ms Lynch says the decision is not fair and reasonable

  1. [52]
    Ms Lynch agrees that there is no prejudice to her in the omission in the decision regarding how many times her acting arrangement has been extended.
  1. [53]
    Ms Lynch addresses each of the reasons the Respondent says that it has a genuine operational requirement to refuse appointment to the higher classification position.
  1. [54]
    Regarding the Respondent’s position that the role has a specific end date and was established for a specific purpose, Ms Lynch says that the specific purpose for which the role was established will endure with the establishment of the EFI, in accordance with the proposed structure released and distributed by the Respondent on 20 March 2023 and the implementation model shared with CLLaW team members in July 2023.
  1. [55]
    Ms Lynch respectfully contends that submissions regarding funding for the position may be misleading.
  1. [56]
    Ms Lynch accepts that uncertainty as a result of workplace change has been accepted as a genuine operational requirement for refusing a request for permanent employment.[11] However, Ms Lynch makes reference to a different decision of the Commission where she says that it was found that uncertainty from workplace change is ‘ever-present’ and that at some point it is no longer fair and reasonable to rely on an organisational restructure as a reason to refuse conversion.[12]
  1. [57]
    Ms Lynch says that the uncertainty contended by the Respondent is overstated.
  1. [58]
    Ms Lynch makes a series of submissions the effect of which is that the draft EFI structure includes the CLaWs, and she has now received an implementation plan which are evidence of a review having already been undertaken by the Respondent, allowing it to permanently appoint her to the position. Ms Lynch concludes that a decision has already been made to retain the CLaWs (to be called CLLaWs) and that there is now enough certainty about the future that she should be appointed.
  1. [59]
    Ms Lynch notes that while the Respondent says that ‘continuing need’ is not a factor to be considered in a higher classification review, it also argues that the Review has led to uncertainty about the continuing need for the position. Ms Lynch says that the Respondent cannot argue both positions and that continuing need for her position is a relevant and significant consideration and the Respondent has not given appropriate weight to this factor.
  1. [60]
    With regard to ‘genuine operational requirements’, Ms Lynch submits that ‘there is an authentic need for someone to perform the higher classification position for the foreseeable future, and the Respondent is effectively utilising a temporary higher duties arrangement to populate a role which is likely to be carried out in an ongoing way’.

Respondent’s submissions in reply

  1. [61]
    The Respondent addresses Ms Lynch’s submission that the decision did not give enough weight to ‘the continuing need for the higher classification position’ and says that the release of a proposed structure and planned implementation of the structure does not indicate a likely ongoing need for the higher classification position, rather the proposed structure is indicative of the current workplace change being undertaken.
  1. [62]
    The Respondent says that its submissions regarding ‘continuing need’ sought to contrast the requirements of reviews of non-permanent employment and reviews of employment at higher classification level. In particular, the Respondent says that there was no requirement for it to consider if there was a role that is substantially the same as the employee’s role.
  2. [63]
    Regarding Ms Lynch’s submission that the CLLaWs are ‘manifestly the same as CLaWs’, the Respondent relies on its previous submissions on the point and further says:

CLaWs and the EFI – CLLaWs are further distinguished by different governance structures which are informed by different strategic priorities. The CLaWs governance structure and the roles and responsibilities of key stakeholders is outlined in Attachment 1 which is in contrast to the proposed EFI – CLLaW governance structure in the Respondent Submissions, Attachment 20, page 15 – 16.

Each CLaW presently has a Lead Principal which reports to a Regional Director. CLaWs across the State were also governed until recently by the Centres for Learning and Wellbeing Project Board (CLaW Project Board).

At the CLaW Project Board meeting on 2 May 2023, there was agreement to the dissolution of the CLaW Project Board as the project (CLaW Project) was reaching its end date of 2023. Notwithstanding the project end date, CLaW employees were extended until the end of the school year (8 December 2023) to minimise disruption to schools while planning for the EFI functions and service delivery requirements were developed consulted and determined.

  1. [64]
    The Respondent notes that while Attachment 1 references the 2022 to 2025 Centres for Learning and Wellbeing Review Implementation Plan, the plan was developed in 2021 prior to the initiative set out in the Model and the establishment of the EFI.
  1. [65]
    The Respondent says that at the CLaW Project Board meeting on 2 May 2023, there was agreement to consider the findings of the CLaW Review Implementation Plan as part of the Review of the functions and service delivery of the CLaWs and EFI CLLaWs in Term 3, 2023.
  1. [66]
    With regard to communication Ms Lynch says occurred where she was told all CLaW employees would transition to the CLLaWs, the Respondent says that on 23 March 2023, Ms Robin Rosengrave, A/Assistant Director General, Teaching Leadership Rural and Remote, emailed all Regional Directors recognising the work of CLaWs and extending employment for CLaW employees. The Respondent says that following this, Dr Grant Webb, Executive Director, School Performance and Learning Access, contacted all CLaW Lead Principals to follow up on that communication and ensure consistent messaging across all CLaWs. The Respondent says that ‘specifically, the discussions with CLaW Lead Principals was limited to the extension process for employees and for planned discussions with their CLaW employees to occur on 24 March 2023’.
  1. [67]
    In addressing Ms Lynch’s submissions regarding similarities between CLaWs and EFI-CLLaWs, the Respondent further submits:
  1. a.
    It is acknowledged that CLaWs and EFI-CLLaWs are similarly named, however this does not mean that they are the same, or will have the same governance structure and positions, provide the same services and/or provide services in the same way;
  1. b.
    Recognition and acknowledgement of the services provided by CLaWs does not mean that such services will continue or continue unchanged;
  1. c.
    A key aim of the EFI is to have a co-ordinated state-wide presence, and equitable access for schools across the state, which had informed the proposed changes from CLaWs and how it is presently governed, the establishment of the EFI and the proposed regional supervision and support to schools outlined in the Model; and
  1. d.
    The decision subject to this Appeal relates to employing the Appellant on a permanent basis to the Higher Classification Position. The Higher Classification Position is a temporary position for the specified purpose of undertaking work in the CLaW Project which ended on 30 June 2023. Notwithstanding the extension of employment arrangements, the Higher Classification Position will be ceasing at the end of the year. Any position within EFI – CLLaWs is different and distinct from the Higher Classification and is not relevant to the Appeal.
  1. [68]
    The Respondent notes that references to information provided in July 2023 post-date the decision being reviewed but says that such events support its submission that workplace change is being undertaken as evidenced by the Review and that uncertainty arising from workplace change is a genuine operational reason for refusing a request made for employment on a permanent basis.
  1. [69]
    The Respondent says that the proposed implementation model for EFI is a proposed model only, that it has not been finalised and the Respondent cannot pre-determine the outcome of the Review and the final implementation model for EFI.
  1. [70]
    With regard to funding of the position, the Respondent has undertaken further enquiries and clarifies that:
  1. a.
    The Appellant’s wages are paid by Atherton State School;
  1. b.
    The Atherton CLaW transfers funding to Atherton SS to fund the Higher Classification Position;
  1. c.
    The Higher Classification position is funded from CLaW discretionary funds; and
  1. d.
    The Higher Classification Position is unique to the Atherton CLaW and is not part of the funded core staffing or operating model used by other CLaWs in Queensland.

Consideration

  1. [71]
    I have considered all of the parties’ submissions, including references to other decisions of the Commission, even if I do not specifically refer to those submissions or cases in this decision.
  1. [72]
    It is not in issue that Ms Lynch was able to request appointment to the higher classification position, nor that she is eligible to appeal the decision to refuse her request. I also note that Ms Lynch met the requirements for appointment, but the refusal to permanently appoint her to the higher classification level was made based on the Department’s genuine operational requirements.
  1. [73]
    I note Ms Lynch’s submissions that she believes that there will be a requirement for her position in the new EFI-CLLaW. It is important to be clear about what the decision-maker was required to do in considering Ms Lynch’s request. Consideration of a request to be appointed to the higher classification position does not involve a consideration of whether there is  ‘a continuing need for someone to be employed in the role or a role that is substantially the same’. That criterion is a precondition to ‘conversion’ from employment on a non-permanent basis to employment on a permanent basis, where if the employee meets the relevant criteria, they must be converted unless there are genuine operational requirements preventing conversion. Conversely, in a higher classification review, the decision-maker is required to consider the genuine operational requirements of the Department, which may include matters such as whether the position is being filled on secondment due to absence or whether the position existed for the purpose of a project or for a fixed period of time.
  1. [74]
    Section 81 of the PS Act states that while the basis of employment is generally on a permanent basis, there will be situations where employment of a public sector employee on a permanent basis may not be viable or appropriate where the purpose of employment is to perform work for a particular project or purpose that has a known end date.
  1. [75]
    Ms Lynch has been employed to work in a CLaW. The submissions make it clear that the CLaW was established for a particular period of time. The CLaW project has now come to an end which is evidenced by: the communications attached to the parties’ submissions, the disbanding of the CLaW Project Board, the current work being done regarding review and consultation of the Model, and the associated discussion around the structure and service delivery of the EFI-CLLaWs. Ms Lynch has been provided with an end date of 8 December 2023. I understand that the extension of employees until the end of the school year has been done to avoid disruption in schools and to enable time for planning, for example, where an employee will be returning to their substantive position. I am satisfied that Ms Lynch was employed ‘to perform work for a particular project or purpose that has a known end date’.[13] It is also the case that s 81(4) of the PS Act states that employment of a person on a permanent basis may be viable or appropriate if the person is required to be employed in the position on a frequent or regular basis. However, Ms Lynch’s situation does not fall into that set of circumstances, as while Ms Lynch has been employed in the position throughout the project, when the project concludes, she will no longer be required to be undertaking the position ‘on a frequent or regular basis’.
  1. [76]
    The review was to be undertaken regarding the higher classification position Ms Lynch currently occupies. That position will end on 8 December 2023.  It may well be that when the EFI-CLLaW staffing structure is announced, it contains a role substantially the same as the one that Ms Lynch is undertaking, however that role will not be the higher classification position Ms Lynch currently undertakes. In fact, submissions to the effect that Ms Lynch’s position itself is unique to the CLaW provide further uncertainty as to whether the position will be included or funded in any new state-wide structure. Effectively, if I granted the appeal and appointed Ms Lynch to the higher classification position, I would be doing so in the knowledge that the position she currently occupies will not be required in a matter of months. There will be no need for the position CLaW Head of Wellbeing when there is no CLaW, in that sense at least, there is ‘no continuing need’. As there is no requirement for the Department to consider roles ‘substantially the same’, predictions about future roles were not a factor in the decision or something for me to consider in this appeal.
  1. [77]
    I understand Ms Lynch’s argument which is that there has been an announcement and discussion about the new CLLaWs and she is of the view that her position will exist in the new structure. Ms Lynch submits that it is not fair to allow the Respondent to rely on an argument of ‘workplace change’ to refuse appointment to the position. However, I accept that at the time the decision was made, a review of the Model had been announced and that the Review and consultation is currently underway. This is not a situation where the reason given by the Respondent includes some vague reference to a ‘review’ or ‘workplace change’ without the provision of any evidence to suggest that such a review is imminent or genuine. In fact, there is a vast amount of evidence before me to suggest that this review is large scale, involves many moving parts, and is occurring even as I am considering this appeal.
  1. [78]
    Ms Lynch was advised in the decision letter that ‘The proposed Educational Futures Institute is currently under review and is expected to transition to a permanent establishment in the near future’. It appears that this was a truthful statement. I have been provided with many documents and communications to confirm that the Review is taking place and workplace change is currently under consideration. The parties both make reference to actions undertaken in July 2023 and it seems that the Review is, as was discussed, taking place throughout Term 3. I accept that at the time the review of Ms Lynch’s request was undertaken and the decision was written, the Review was underway and that there was an expectation communicated that employment in the Education Futures Institute would involve a permanent establishment. This seems to me to be a very practical example of a real or authentic[14] ‘genuine operational requirement’ to refuse a request for appointment.
  1. [79]
    I understand that it must be frustrating for Ms Lynch to be in a situation where someone has told her she will be appointed to the new structure but for the request for appointment to be refused.  However, it seems to me from the submissions I have reviewed, that if Ms Lynch was told she was being made permanent in the position, this was not communicated to her by a person authorised to make an offer of appointment at the time it was communicated. However, I understand that current CLaW employees may have been provided with some assurances that the work they are undertaking is important and valued and that they should have some confidence the new structure may have a place for them. 
  1. [80]
    I have noted the discussion in the submissions regarding funding for the position. I am not of the view that the funding source for the position was a key factor in the decision-making or that it is a significant issue in this appeal. I find that any discussion about funding most likely arises from the fact that the project is ending and along with it, the funding for the project will cease and be redirected elsewhere. The Respondent recognises that funding is not a pre-condition to appointment on a permanent basis. I accept that the funding for Ms Lynch’s position has been CLaW discretionary funding provided specifically for the purpose of Ms Lynch’s position, which as discussed elsewhere, is unique to the Atherton CLaW.
  1. [81]
    The decision of 23 May 2023 provides Ms Lynch with enough detail to understand why the decision was made. It provides the factual basis for the decision and informs Ms Lynch of her appeal rights. The decision also addresses Ms Lynch’s human rights. Ms Lynch has exercised her right of appeal and I am satisfied that she has now had the additional benefit of a more detailed explanation of the genuine operational requirements of the Respondent. I do not doubt that the CLaWs have done excellent work that has come to be relied upon by stakeholders, however this appeal requires my consideration of whether the decision was fair and reasonable, not whether the Respondent is making appropriate decisions about state-wide resources and structures. In any case, it would appear that the value of the CLaWs has been recognised and is evidenced in the inclusion, albeit as CLLaWs, in the new Model. Such an outcome demonstrates that the CLaW Project has experienced success and must be a source of great pride to those, such as Ms Lynch, who have played an important role in the Project.
  1. [82]
    I accept that the higher classification position exists for the purpose of working within the pilot project. I also accept that the position has a known end date. I am satisfied that there is currently a review underway which involves workforce change and may result in an ongoing program with a different structure and needs. In those circumstances, I find that the Respondent had an authentic, genuine operational requirement for refusing the request. To appoint someone permanently to a position where it is not at this stage known or certain what the EFI-CLLaWs staffing requirements will entail, would not represent the Chief Executive having the necessary regard to the effective, efficient and appropriate management of public resources.[15]
  1. [83]
    The decision of 23 May 2023 is confirmed.

Order

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

Footnotes

[1] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195.

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [52] (‘Morison’).

[3] Industrial Relations Act 2016 (Qld) s 564.

[4] Morison (n 2) [37]-[38] (emphasis added) (citations omitted).

[5] Respondent’s submissions filed 7 July 2023, Attachment 14: ‘Advancing Rural Education Queensland State Schools Action Plan’.

[6] Public Sector Act 2022 (Qld) s 114(3)(a)(i).

[7] Katae v State of Queensland & Anor [2018] QSC 225.

[8] Respondent’s submissions filed 7 July 2023, [36] citing page 19 of the Model.

[9] Woods v State of Queensland (Department of Education) [2021] QIRC 193 (‘Woods’).

[10] Respondent’s submissions filed 7 July 2023, Attachment 1.2.

[11] Woods (n 9).

[12] Huismann v State of Queensland (Queensland Health) [2021] QIRC 176, [68].

[13] Public Sector Act 2002 (Qld) s 81(3)(a)(ii).

[14] Morison (n 2).

[15] Public Sector Act 2022 (Qld) s 177.

Close

Editorial Notes

  • Published Case Name:

    Lynch v State of Queensland (Department of Education)

  • Shortened Case Name:

    Lynch v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 234

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    14 Aug 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
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Huismann v State of Queensland (Queensland Health) [2021] QIRC 176
2 citations
Jump To
Cite 1 - [2021] QIRC 176
Cite 2 - [2021] QIRC 176
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Woods v State of Queensland (Department of Education) [2021] QIRC 193
2 citations
Jump To
Cite 1 - [2021] QIRC 193
Cite 2 - [2021] QIRC 193

Cases Citing

Case NameFull CitationFrequency
Dyson v State of Queensland (Queensland Health) [2024] QIRC 612 citations
1

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