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Gibson v State of Queensland (Department of Education)[2023] QIRC 73
Gibson v State of Queensland (Department of Education)[2023] QIRC 73
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Gibson v State of Queensland (Department of Education) [2023] QIRC 073 |
PARTIES: | Gibson, Kylie (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2022/1008 |
PROCEEDING: | Public Sector Appeal – Appeal against a conversion decision |
DELIVERED ON: | 3 March 2023 |
MEMBER: | McLennan IC |
HEARD AT: | On the papers |
ORDER: | That the appeal is dismissed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the Appellant was reviewed under s 149C of the Public Service Act 2008 – where Public Service Act 2008 has since been repealed – where the outcome of the review was that the Appellant was not permanently appointed – where Appellant commenced maternity leave during temporary appointment – where the position is no longer funded – where displaced employee is currently performing role – consideration of 'the position' – consideration of 'genuine operational requirement' – where decision was fair and reasonable |
LEGISLATION AND OTHER INSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564, s 567 Public Sector Act 2022 (Qld) s 120, s 129, s 131, s 133, s 134, s 289, s 307, s 324 Public Service Act 2008 (Qld) s 149C Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 03/23 Review of acting or secondment at higher classification level cl 1, cl 7, cl 12 |
CASES: | Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Katae v State of Queensland & Anor [2018] QSC 225 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
Introduction
- [1]Ms Kylie Gibson (the Appellant) is substantively employed as a Permanent – Full Time AO3 Senior Teacher (General) at Palm Beach-Currumbin State High School by the Department of Education, State of Queensland (the Department; the Respondent).
- [2]From 23 May 2018, the Appellant commenced acting in the higher classification role of DP1 Deputy Principal (Primary). The Appellant performed this role initially at Mount Warren Park State School until 17 April 2020; then at Gilston State School from 20 April 2020 until she commenced maternity leave on 25 October 2021.
- [3]On 18 October 2022, the Appellant submitted a request to be converted to the higher classification position. The Department considered whether to appoint the Appellant to the higher classification position pursuant to s 149C of the Public Service Act 2008 (Qld) (now repealed) and Directive 13/20 Appointing a public service employee to a higher classification level (Directive 13/20) (now superseded).
- [4]In correspondence dated 15 November 2022, Mr Boyd Clifford (A/Director, Employment Review, HR Services) (the decision-maker) advised the Appellant that her request had been refused and her employment would continue according to the terms of the existing higher duties arrangement (the Decision). That higher duties arrangement ceased on 22 January 2023.
- [5]On 1 March 2023, the Public Sector Act 2022 (Qld) (the PS Act) came into effect. Pursuant to s 289 of the PS Act, the Public Service Act 2008 (Qld) is repealed. Section 324 of the PS Act relevantly provides:
- (1)This section applies if—
- (a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
- (b)immediately before the commencement, the appeal had not been decided.
- (2)From the commencement, the appeal must be heard and decided under chapter 3, part 10.
- [6]On 5 December 2022, before the commencement of the PS Act, the Appellant filed an appeal against the Decision in the Industrial Registry. Immediately before the commencement of the PS Act, this appeal had not been decided. Therefore, the appeal must be heard and decided under chp 3, pt 10 of the PS Act.
Jurisdiction
Decision against which an appeal may be made
- [7]Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision".
- [8]Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.
- [9]Section 133(a) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. The Appellant meets that requirement.
- [10]It is not a point of dispute between the parties that the Appellant was eligible to request conversion to the higher classification position. I am satisfied that the Decision is able to be appealed.
Timeframe for appeal
- [11]Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
- [12]The decision was given on 15 November 2022.
- [13]The Notice of Appeal was filed in the Industrial Registry on 5 December 2022.
- [14]I am satisfied the Appellant filed the appeal within the required timeframe.
Appeal principles
- [15]Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- [16]
- [17]Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[3]
- [18]The issue for my determination is whether the Decision not to appoint the Appellant to the higher classification position was fair and reasonable in the circumstances.[4]
What decisions can the Commission make?
- [19]Section 562C of the IR Act prescribes that the Commission may determine to either:
- confirm the decision appealed against;
- set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- set the decision aside and substitute another decision.
Relevant provisions of the PS Act and Directive 13/20
- [20]Pursuant to s 324 of the PS Act, this appeal must be heard and decided under ch 3, pt 10. Pursuant to s 129(e) of that part, a 'conversion decision' means a decision:
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.
- [21]The decision-maker considered s 149C of the Public Service Act 2008 (Qld) which was applicable at the time. That act has since been repealed and the equivalent provision currently applicable is s 120 of the PS Act which provides (emphasis added):
- (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—
- (a)the end of 1 year of acting at, or being seconded to, the higher classification level; and
- (b)the end of each subsequent 1-year period.
- (2)The employee's chief executive must decide the request within the required period.
- (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.
- (4)In making the decision, the employee's chief executive must have regard to—
- (a)the genuine operational requirements of the public sector entity; and
- (b)the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of acting at, or secondment to, the higher classification level.
- (5)If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- (a)the reasons for the decision; and
- (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
- (c)how many times the employee's acting arrangement or secondment has been extended; and
- (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.
- (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.
- (7)The commissioner must make a directive about employing an employee at a higher classification level under this section.
- (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—
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (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.
- [22]Directive 03/23 Review of acting or secondment at higher classification level (Directive 03/23) became effective from 1 March 2023 and supersedes Directive 13/20.[5] Directive 03/23 relevantly provides (emphasis added):
- 7.Decision-making
- 7.1When 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.
…
- 12.Appeals
- 12.1Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act.
- [23]Directive 03/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[6]
- [24]Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
- [25]The stated purpose of Directive 03/23 is:
- 1.Purpose
- 1.1The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
- 1.2This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level.
- 1.3This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level.
Submissions
- [26]In accordance with the Directions Order issued on 12 December 2022, the parties filed written submissions.
- [27]The Appellant filed her written submissions on 20 December 2022.
- [28]The Department filed its written submissions on 5 January 2023.
- [29]The Appellant filed no further submissions in reply.
- [30]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.
- [31]I have carefully considered all submissions and annexures. I have determined not to approach the writing of this decision by summarising the entirety of those documents but will instead refer to the parties' key arguments in my consideration of the matter.
Consideration
- [32]I am required to decide this appeal by assessing whether or not the Decision appealed against was fair and reasonable.
- [33]This involves a review of the decision–making process utilised and the conversion decision arrived at.
What is 'the position' subject of this appeal?
- [34]The Appellant submits that since commencing work as a Deputy Principal, she worked at Mount Warren Park State School in 2018, 2019 and Term 1 of 2020. The Appellant then commenced at Gilston State School in Term 2 of 2020 until she commenced maternity leave in October 2021.
- [35]Section 120(1) of the PS Act provides that a public sector employee who has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year may request conversion to the position at the higher classification level on a permanent basis. Section 120(3) provides that the chief executive may decide to employ the employee in the position at the higher classification level. The power afforded to the Department to permanently appoint the Appellant is confined to the position into which she was placed at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a certain period. The term 'the position' is inherently more specific than 'higher classification level'; many positions could be described as being of a higher classification level.
- [36]In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.
- [37]The question then becomes: what is that employee the incumbent of? They are not merely the incumbent of a generic position, but rather a particular position with a specific position name, classification and number. When they return, they are returning to that precise position.
- [38]Section 120 of the PS Act, in concert with Directive 03/23, creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace, or the city, or indeed the State.
- [39]By way of contrast, a broader ambit is expressly imparted in other conversion reviews which immediately precede s 120. In conducting a temporary employment review under ss 114 and 115, the department's chief executive may convert an employee to permanency if there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same and the employee is suitable to perform the role. Therefore, the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number.
- [40]The language of s 120 is narrower: the employee may ask the Department's chief executive to appoint the employee to the position at the higher classification level. That does not empower the Department's chief executive to review the employee against positions which are substantially the same or appoint them to another comparable position. The power is expressly confined to the position occupied by the employee at that time.
- [41]The difference in language employed by the legislation, particularly where the sections appear successively, informs my interpretation of s 120. The words of the section must be afforded meaning to give effect to the section, and cannot be ignored. If it had been intended that a broad–ranging review be engaged in, the legislature could well have employed the terminology employed in the preceding two sections. They pointedly did not do so.
- [42]In conducting the review, the department is required to determine whether a person should be permanently appointed to the position to which they have been seconded at the time of requesting the review.
- [43]It follows that the position the subject of the review was the precise DP1 Deputy Principal (Primary) position at Gilston State School. The Appellant is only able to be appointed to the position she occupied when requesting the review. The decision was fair and reasonable in that the review was conducted against the correct position.
- [44]That reasoning was followed in Holcombe v State of Queensland (Department of Housing and Public Works)[7] which considered s 149C of the repealed Public Service Act 2008 (Qld). The repealed s 149C and current s 120 are almost identical in this regard.
Decision criteria
- [45]Section 120(4) of the PS Act provides that, in making the decision regarding a higher classification conversion request, the chief executive must have regard to:
- the genuine operational requirements of the public sector entity; and
- 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.
Genuine operational requirements
- [46]The Appellant contends the Decision is unfair and unreasonable because:
- if she hadn't gone off on maternity leave or if she had applied earlier for the conversion, the outcome may have been different;
- the displaced permanent Deputy Principal would not have been put in the position if the school was not looking to fill the position while the Appellant was on maternity leave;
- the Appellant has been in an acting role for 4.5 years;
- the Appellant was told that she could not expect to return to the Deputy Principal role if she wanted to go part time upon her return;
- the Appellant feels she has been disadvantaged and almost discriminated against due to going on maternity leave;
- other Deputy Principals become permanent after just 12 months of sitting in the role; and
- the Department should be looking at years of service for individual Acting Deputy Principals before placing displaced staff in these roles to ensure the process is fair.
- [47]The Department contends that the genuine operational requirement preventing conversion of the Appellant to the higher classification position concerns funding allocation. Specifically, the Department submits:
- the temporary nature of the Appellant's higher classification level role was the result of a temporary school funded Deputy Principal role that is still to be approved by the LCC;
- since January 2021, the school had allocated funding of 0.5 FTE for a Deputy Principal role and has used school funds to increase the role to 1.00 FTE;
- the school has been advised there will be a decrease of 0.5 FTE allocation for the Deputy Principal allocation in 2023 and the school could not continue to fund the remaining 0.5 FTE from January 2023;
- there is one Deputy Principal position located at Gilston SS which has permanent financial funding with a permanent incumbent – the Appellant had been performing higher duties in the second Deputy Principal position at Gilston SS;
- the Respondent's staffing allocation/funding model, based upon student enrolment data, identified no further need for an allocation of 0.5 FTE to be made for a Deputy Principal position at Gilston SS – Gilston SS has similarly determined that it no longer needs to fund 0.5 FTE towards a Deputy Principal position;
- cl 2.1.2 of the Queensland State Schools Staffing Allocation Guidelines (the Guidelines) sets out the FTE Deputy Principal hours to be allocated to a primary school on the basis of certain enrolment thresholds – Gilston SS previously received an allocation of 1.5 FTE due to its enrolments being between 575 – 700 students in 2020 and 2021;
- in 2022, enrolments at Gilston SS dropped below the relevant threshold to 565 thereby dropping the FTE allocation to 1.0 FTE;
- the enrolment numbers at Gilston SS are projected to further decrease in 2023 to 544 students;
- accordingly, the higher duties position has been discontinued due to changed staffing allocation requirements;
- due to exceptional circumstances the school has now been advised the Deputy Principal role will continue for the year 2023 to place a displaced permanent employee commencing term 1, 2023;
- the relocated Deputy Principal is supernumerary and not part of the staffing allocation – they were unable to continue in their substantive position at a different State School due to an employment related matter;
- the relocated Deputy Principal will be performing duties at Gilston SS due to the need to place the relocated Deputy Principal in a school rather than Gilston SS requiring a second Deputy Principal at the school; and
- the relocated Deputy Principal will not be funded through the abovementioned funding allocation methods nor will Gilston SS be funding the role – instead, the role will be funded by the region while it continues to identify a suitable permanent school for the relocated Deputy Principal.
- [48]Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):
- [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.
…
- [40]The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[8]
- [49]The Department's inability to convert the Appellant essentially comes down to the fact Gilston SS no longer receives funding for a second Deputy Principal position because of decreased enrolment numbers. During the year the Appellant commenced at Gilston SS and the subsequent year in which she commenced maternity leave, the school enrolments stood between 575 and 700 students. Pursuant to cl 2.1.2 of the Guidelines, Gilston SS was therefore allocated 1.5 FTE for Deputy Principal positions. In 2022, the year the Appellant applied for conversion to the higher classification position, enrolments dropped below 575. Pursuant to cl 2.1.2 of the Guidelines, Gilston SS was therefore allocated 1.0 FTE for a Deputy Principal position. The Department contends the enrolment numbers are projected to further decrease in 2023, therefore supporting the proposition that only 1.0 FTE Deputy Principal is required at Gilston SS. That first Deputy Principal position is already filled by an incumbent permanent employee.
- [50]While the Appellant was working in the role, allocated funding and school funds were used to pay for the position as required due to the enrolment numbers at the time. However, as the numbers have now fallen below the Guideline threshold, there is no need for an allocation to be made for a second Deputy Principal position. The Department has simply and convincingly illustrated that there is no real or authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint the Appellant to the higher classification position.
- [51]I acknowledge the Appellant successfully carried out her higher duties position as Deputy Principal, however the simple fact is that the position is no longer required.
- [52]The Department's submissions regarding the displaced Deputy Principal are logical and convincing. I do not consider those exceptional circumstances to render the Decision unfair or unreasonable. The reasons presented by the Department contradict the Appellant's contention that the school must have been looking to fill the position while the Appellant was on maternity leave.
- [53]The Appellant submits that had she applied earlier for conversion, the outcome may have been different. That may have been the case but is not relevant to the determination of whether the Decision was fair and reasonable. The Appellant also makes submissions with respect to feeling disadvantaged and almost discriminated against due to going on maternity leave. However, those allegations are not borne out on the evidence before me and in any event, a Public Sector Appeal is not the avenue to be pursuing such. I have already concluded that the genuine operational requirement presented by the Department constitutes a fair and reasonable circumstance to refuse conversion of the Appellant to the higher classification position.
- [54]The Appellant's remark that other Deputy Principals have become permanent after just 12 months of sitting in the role is irrelevant to the consideration of whether the Appellant, specifically, should be appointed to the specific position of Deputy Principal at Gilston SS. The determination is made with respect to the position occupied by the Appellant. That was the correct approach. It is not a more broad-ranging consideration of whether she should continue to be employed at a higher level in her present workplace or another.
- [55]In this case, the position of Deputy Principal at Gilston SS of which the Appellant held has had its funding discontinued as the school no longer requires a person to occupy that position. Although I appreciate the unpleasantness of uncertainty, the Appellant has a secure substantive position to return to. In my view, the particular circumstance presented by the Department does constitute a genuine operational requirement which prevented the Department from appointing the Appellant to the higher classification position.
The effect of any previous decisions
- [56]Section 120(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level.
- [57]The Decision provides "There have been no decisions made, or taken to have been made, under s. 149C of the PS Act[9] and the Directive, during your continuous period of employment at the higher classification level." On that basis, I am satisfied that there were no previous decisions to be considered.
Conclusion
- [58]In conducting the review against the appropriate position, and in their submissions in this appeal, the Department reasoned that the position is no longer going to be funded in 2023 due decreased enrolment numbers at Gilston SS. That was said to present a genuine operational reason not to appoint the Appellant permanently to the higher duties position. I have found that Decision to be fair and reasonable. As such, I confirm the Decision appealed against and dismiss the appeal.
- [59]I order accordingly.
Order:
- That the appeal is dismissed.
Footnotes
[1] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
[2] Ibid s 562B(2).
[3] Ibid s 567(2).
[4] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.
[5] cl 3.5.
[6] Katae v State of Queensland & Anor [2018] QSC 225, [26].
[7] [2020] QIRC 195.
[8] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.
[9] The repealed Public Service Ac 2008 (Qld) applicable at the time of the Decision.