Petersen v State of Queensland (Department of Education)
[2024] QIRC 46
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- Petersen v State of Queensland (Department of Education)[2024] QIRC 46
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Petersen v State of Queensland (Department of Education)[2024] QIRC 46
Petersen v State of Queensland (Department of Education)[2024] QIRC 46
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Petersen v State of Queensland (Department of Education) [2024] QIRC 046 |
PARTIES: | Petersen, Robert (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2023/227 |
PROCEEDING: | Public Sector Appeal – Appeal against a conversion decision |
DELIVERED ON: | 21 February 2024 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is substantively employed by the respondent as a permanent part-time Small Schools Business Manager (AO3) – where the appellant acts at the higher classification level as a Business Manager Coach (AO5) – where the appellant’s request for permanent appointment at the higher classification was rejected – where the respondent relies on its genuine operational requirements – whether the decision is fair and reasonable – decision set aside and returned to the decision-maker with a copy of the decision for reconsideration |
LEGISLATION AND OTHERINSTRUMENTS: | Acts Interpretation Act 1954 (Qld) s 27B Directive 03/23 – Review of acting or secondment at higher classification level cls 4, 6, 8, 10 Human Rights Act 2019 (Qld) Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 27, 120, 129, 131 |
CASES: | Burnside v State of Queensland (Queensland Health) [2023] QIRC 344 Cushing v State of Queensland (Department of Education) [2023] QIRC 252 Katae v State of Queensland & Anor [2018] QSC 225 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Readman v State of Queensland (Queensland Police Service) [2020] QIRC 222 Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 022 |
Reasons for Decision
Introduction
- [1]Mr Robert Petersen (‘the Appellant’) is substantively employed by the State of Queensland (Department of Education) (‘the Respondent’) as a permanent part-time (0.34 FTE[1]) Small Schools Business Manager (AO3) at Mutchilba State School, a position he has held since 23 January 2017.
- [2]Mr Petersen has been performing duties at the higher classification level of Business Manager Coach (AO5) at Atherton Centre for Learning and Wellbeing (‘CLaW’) since 5 October 2021. Mr Petersen’s engagement in the position at the higher classification level is on a temporary full-time basis, and while the engagement originally had an end date of 18 May 2022, the arrangement has been extended twice. As at the date of the decision subject of the appeal, 7 November 2023, Mr Petersen’s engagement had been extended until 8 December 2023. Since that time, Mr Petersen’s engagement has again been extended until December 2024.
The decision letter
- [3]Mr Petersen appeals the decision of Mr Jeff Shelden, Director, Recruitment and Employment Review (‘the decision-maker’), dated 7 November 2023 to refuse Mr Petersen’s request of 10 October 2023 to be appointed to the position at the higher classification level on a permanent basis.
- [4]Mr Shelden begins the decision letter by acknowledging Mr Petersen’s request and outlining the details of Mr Petersen’s substantive role and his engagement in the higher classification position.
- [5]Mr Shelden confirms that Mr Petersen has been acting as Business Manager (AO5) at CLaW for two years and three weeks. He says that during this time, no previous decisions have been made, or taken to have been made, under s 120 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’).
- [6]In accordance with the PS Act and Directive, Mr Shelden notes that Mr Petersen has been seconded to the higher classification level position within the Department of Education where he is employed, has been seconded to that position for a continuous period of at least one year, and is suitable for appointment to the position.
- [7]However, in determining to refuse Mr Petersen’s request, Mr Shelden explains that ‘genuine operational requirements exist to support the refusal of your request to be appointed to the higher classification level position’. Therefore, the decision-maker writes that Mr Petersen’s engagement at the higher classification would continue in accordance with the terms and conditions in place.
- [8]Mr Shelden proceeds to set out further his reasons for decision. He says that in accordance with s 120(4) of the PS Act, the chief executive is responsible for determining the genuine operational requirements of the public sector entity, having regard to the context of the operation and service delivery needs of the entity. While the phrase ‘genuine operational requirements’ is not defined in the PS Act, Mr Shelden cites Merrell DP’s consideration in Morison v State of Queensland (Department of Child Safety, Youth and Women) (‘Morison’),[2] where his Honour relevantly held:
[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.[3]
- [9]Ultimately, Mr Shelden says that it would not be appropriate to permanently employ Mr Petersen in the higher classification level position as the purpose of the engagement is to perform work for a particular project with a known end date. Specifically, Mr Shelden writes:
I note you are currently engaged in the role of Business Manager Coach, Atherton Centre for Learning and Wellbeing (CLaW). The project was established under the Advancing Rural and Remote Action Plan to support the Leadership and Capability development of staff in Rural and Remote locations. The project was extended until December 2023 due to an organisational change and the launch of the Department’s Equity and Excellence Strategy and the establishment of the Education Futures Institute.
Your role within the project as Business Manager Coach, Atherton CLaW currently exists for the purpose of working within the pilot project which has a known end date. The position was created to provide support for business managers, corporate partners and school teachers by mentoring and coaching for business partners.
The positions attached to the CLaW are temporary project positions, with a current end date of 8 December 2023. The funding that supports this project will not be ongoing beyond this date.
- [10]Mr Shelden says that in coming to this decision, he considered Mr Petersen’s human rights under the Human Rights Act 2019 (Qld) (‘the HR Act’).
- [11]Mr Shelden concludes the letter by referring Mr Petersen to the Employee Assistance Program (‘EAP’), providing a contact for queries regarding the decision, and outlining Mr Petersen’s appeal rights.
Appeal principles
- [12]Section 562B(3) of the Industrial Relations Act 2016 (‘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’.
- [13]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.
- [14]A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
- [15]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- confirm the decision appealed against; or
…
- 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
The PS Act
- [16]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.
- [17]Section 129 of the PS Act relevantly provides:
129 Definitions for part
In this part—
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.
- [18]Section 120 of the PS Act provides for the appointment of a public sector 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
- 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—
- the end of 1 year of acting at, or being seconded to, the higher classification level; and
- the end of each subsequent 1-year period.
- The employee’s chief executive must decide the request within the required period.
- 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.
- In making the decision, the employee’s 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.
- If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
- the reasons for the decision; and
- 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
- how many times the employee’s acting arrangement or secondment has been extended; and
- 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.
- 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.
- The commissioner must make a directive about employing an employee at a higher classification level under this section.
- 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—
- the period stated in an industrial instrument within which the decision must be made; or
- 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.
- [19]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—
- for a conversion decision—the public sector employee the subject of the decision
The Directive
- [20]While all of the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
…
4.2 Chief executives are required to act in a way that is compatible with the main purpose of this Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.
…
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.
Mr Petersen’s reasons for appeal
- [21]Mr Petersen filed his appeal notice on 27 November 2023, within 21 days of receiving the decision letter. In his appeal notice, Mr Petersen reiterates his suitability for the role and challenges the Respondent’s position that its genuine operational requirements prevent his permanent appointment at the higher classification level.
- [22]Mr Petersen seeks that the decision be set aside and substituted with a decision that he be permanently employed in the higher classification level position of Business Manager (AO5) on the basis that Mr Shelden’s decision was neither fair nor reasonable.
- [23]As to his suitability, Mr Petersen says he has performed in the role for over two years without any adverse findings in respect of his performance or conduct. He believes he has demonstrated his suitability to perform the role in accordance with s 120(3) of the PS Act.
- [24]Mr Petersen notes that at the time of lodging his appeal, his higher classification position has been further extended for another 12-month period until 13 December 2024.
- [25]Mr Petersen submits that the decision not to appoint him to the position at the higher classification level was not fair and reasonable and disputes the Respondent’s position that there is no genuine operational requirement for someone to be employed in the role.
- [26]In terms of the Respondent’s genuine operational requirements, Mr Petersen says:
- The funding for a particular project may administratively come to an end on a particular date, but the genuine operational requirement for the positions within that project may continue.
- He understands that the AO5 Business Manager position will be needed beyond the current administrative funding end date.
- While the Department says that the current funding attached to the CLaW positions end on 8 December 2023 and that funding will not be ongoing beyond that date, the Department does not specify what will happen to the role beyond that date.
- Mr Petersen says that a consideration of what would happen to the role after that date would have been an important and significant material question to be considered by the decision-maker and relied upon in arriving at the decision.
- [27]Mr Petersen contends that the decision-maker has failed to set out findings of material questions of fact, or refer to the evidence or other material on which the findings were based as per section 27B of the Acts Interpretation Act 1954 (Qld).
- [28]Mr Petersen says that he understands the Department has permanently converted AO5 Business Manager positions for the Mount Isa Centre for Learning and Wellbeing (conversion date was 8 October 2022) and the Emerald Centre for Learning and Wellbeing (conversion date was sometime in February 2023). Mr Petersen understands that those conversions took place under similar circumstances to his current employment arrangement.
- [29]Mr Petersen recalls that the success of the CLaW’s Business Manager Coaches positions was spoken about at the 2022 School Business Manager’s Association Queensland (‘SBMAQ’) Conference and it has been announced at the past to SBMAQ state term meetings that the Department will be expanding the positions and hiring 16 additional AO5 Business Manager Coaches around the state with the Department’s realignment.
- [30]Mr Petersen also refers to an email broadcast sent by Deputy Director-General Stacie Hansel on 20 March 2023 indicating that the CLaWs will continue as part of a ‘proposed team structure’.
Respondent’s submissions
Background
- [31]By way of background, the Respondent says the Business Manager Coach position was created as part of the Advancing Rural and Remote Action Plan to assist Departmental staff in rural and remote locations to develop their leadership and capability. The Respondent says that at the outset, the Advancing Rural and Remote Action Plan was established and funded until 18 May 2022.
- [32]The Respondent says that Mr Petersen’s temporary appointment to the Business Coach Manager position was subsequently extended until 8 December 2023, due to an organisational change to support the launch of the Department’s Equity and Excellence Strategy and the establishment of the Education Futures Institute.
- [33]The Respondent says that the positions created as part of the Advancing Rural and Remote Action Plan and extended to support the Education Futures Institute, including the position occupied by Mr Petersen, are temporary project positions and will not be operationally required beyond the conclusion of the Advancing Rural and Remote Action Plan. The Respondent says the funding supporting the plan will not be ongoing beyond its end date.
- [34]The Respondent says that after Mr Shelden advised Mr Petersen of the decision to refuse his request to be permanently appointed to the position at the higher classification level, the Education Futures Institute and associated funding were extended for a 12-month period until December 2024. Accordingly, Mr Petersen’s temporary appointment as Business Manager Coach (AO5) was extended until 13 December 2024.
- [35]The Respondent says that during the period of the extended temporary appointment (until 13 December 2024), the Business Manager Coach positions, including the position Mr Petersen is undertaking, will be reviewed with a view to identifying the ongoing need and funding for the roles beyond December 2024.
The Respondent says the decision was fair and reasonable
- [36]The Department submits that the decision accords with s 120 of the PS Act and the Directive and is fair and reasonable.
- [37]The Department says that Mr Shelden noted that Mr Petersen was currently acting at a higher classification; has acted at the higher classification for at least a year; is suitable for appointment at the higher classification; has been in the higher classification level position for a total continuous period of two years and three weeks at the time of the decision; and no previous decisions had been made under s 120 of the Act during Mr Petersen’s continuous period of employment at the higher classification level.
- [38]The Respondent says that having considered those matters set out at [37], as well as Mr Petersen’s human rights, Mr Shelden refused the request for permanent appointment to the higher classification level due to the genuine operational requirements of the Department.
- [39]The Respondent says that the decision specifically refers to the matters required by s 120(5) of the PS Act, provides detailed consideration of Mr Petersen’s human rights and advises Mr Petersen of his appeal rights as required by cl 10.2 of the Directive.
- [40]The Department says it accepts that the decision letter did not particularise the number of times the Appellant’s acting arrangement was extended as required by s 120(5)(c) of the PS Act but submits it does not render the decision unfair or unreasonable in circumstances where the inclusion of that information would not have materially changed the decision, the Department has complied with the PS Act in all other respects and this omission has not caused any prejudice to the Appellant.[4]
Genuine operational requirements
- [41]The Respondent points to Deputy President Merrell’s discussion of genuine operational requirements in Morison,[5] where his Honour states that a consideration of genuine operational requirements includes:
[40] … 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.’
- [42]The Respondent submits that the ongoing availability of funding for a position which exists to support an initiative or project, which is only approved and funded on a temporary basis, is a relevant consideration when considering the ‘effective, efficient and appropriate management of the public resources of the Department’.
- [43]The Respondent says that it was appropriate for the Department to consider the temporary nature of the Department’s Equity and Excellence Strategy and the Education Futures Institute including that, at this stage, it is unclear whether there will be ongoing funding for the Education Futures Institute, namely for the associated temporary Business Manager Coach positions, when having regard to ‘the effective, efficient and appropriate management of the public resources of department’.
- [44]The Respondent submits that the Education Futures Institute and associated funding for the position Mr Petersen is acting in are only approved on a temporary basis and will be subject to review prior to the end date of the current approval for the Equity and Excellence Strategy and Education Futures Initiative in December 2024.
- [45]The Respondent says that the review will consider the requirements of the role currently occupied by Mr Petersen and whether there will be an ongoing need for the position and matters such as the geographical placement of the position. The Respondent says that these considerations are consistent with the decision-maker’s obligation to have regard to the genuine operational requirements of the Department pursuant to s 120(4) of the PS Act.[6]
- [46]The Respondent acknowledges staff were sent a broadcast email from Ms Stacie Hansel, Deputy Director-General on 20 March 2022 attaching a document indicating the CLaWs would continue as part of a proposed team structure, however, the Department submits that the proposal remains subject to review and consultation and has not been approved and implemented.
- [47]The Respondent submits that at this stage, it is unclear whether there will be an ongoing business need or funding for the Business Manager Coach position Mr Petersen is acting in beyond the end date of the temporary appointment on 13 December 2024.
- [48]With regard to Mr Petersen’s assertion that the Department has permanently appointed employees to Business Manager Coach positions at Mount Isa CLaW and Emerald CLaW, the Respondent says:
… A Business Manager Coach (AO5) at the Mount Isa CLAW was made permanent in October 2022, and there is a permanent Business Manager (AO5) at the Emerald CLAW as a result of a required transfer-at-level in February 2023. The Department submits this does not necessitate that the genuine operational requirements of the Department can support permanent appointment of Mr Petersen to the higher classification level as each assessment of genuine operational requirements turns on its own facts.
- [49]The Department concludes that its genuine operational requirements do not support the permanent appointment of Mr Petersen to the Business Manager Coach position and that the decision was fair and reasonable in the circumstances.
Mr Petersen’s submissions
- [50]I have considered all of Mr Petersen’s submissions, even if I do not specifically refer to them here.
- [51]Mr Petersen brings to the Commission’s attention that his employment history shows a movement between classification levels, however this was a result of a reclassification of the Business Manager Coach role over time. Mr Petersen says he has been performing the Business Manager Coach role consistently since 23 April 2019, including a few periods of authorised absences where the Department requested he perform Business Manager roles for short periods of time with the intent of returning to the Business Manager Coach role on each occasion. Mr Petersen contends that these authorised absences are consistent with cl 8 of the Public Sector Commission’s Review of acting or secondment at higher classification level Directive 03/23. Mr Petersen says that including authorised absences, he has been performing the Business Manager Coach role for over four years and eight months at the time of writing his submissions.
- [52]Mr Petersen says that at the time the decision was made, his acting/secondment arrangements had been extended twice. Mr Petersen contends that the decision notice he received is deficient as it did not contain how many times the acting arrangement or secondment has been extended as required by s 120(5)(c) of the PS Act. While the Respondent says that that the lack of compliance would not change the decision, Mr Petersen points to my decision in Burnside v State of Queensland (Queensland Health)[7] where I said that if I were not upholding the appeal and ordering Ms Burnside’s appointment, the decision would be returned to the decision-maker to be reconsidered and reissued and stated that an employee should not need to file an appeal to be satisfied that the legislative requirements for a review have been satisfied.
- [53]Mr Petersen says that the Respondent’s submissions state that his higher duties arrangement has been extended twice and as at the date of the decision on 7 November 2023, had an end date of 8 December 2023. Mr Petersen says that this information is now out of date and that his temporary appointment has been extended until 13 December 2024. Mr Petersen says that this means he has been extended three times for at least 12 months into the future.
- [54]With reference to the Respondent’s decision relying on an absence of current permanent funding for the role to find that it was not viable or appropriate for the Department to support his employment in the higher duties role on a permanent basis, Mr Petersen submits that the words ‘ongoing’ and ‘continuing’ need to be viewed against their ordinary definitions and not against the definition of the word ‘permanent’.[8] Mr Petersen says that the Commission has found on multiple occasions that security of funding or a permanent vacant position is not a requirement for conversion. Mr Petersen submits that the Department has erred in relying solely on a lack of a permanent vacant position or funding when arriving at their position.
- [55]Mr Petersen notes that the decision-maker refused his request to be permanently appointed to the higher classification role on the basis that the role has a ‘known end date’ and ‘will not be ongoing beyond this date’. Mr Petersen points out that within a period of less than a month, this was directly contradicted by the Department extending funding by more than 12 additional months. Mr Petersen respectfully submits that this erodes the ‘genuine’ nature of the decision and that objectively speaking, the Respondent is or was incorrect about the project having a known end date.
- [56]While the Respondent says that despite the broadcast email stating that CLaWs would continue as part of a proposed team structure, the matter remains subject to review and consultation and the potential that the role Mr Petersen is undertaking may be performed in another geographical location, Mr Petersen says that the email creates an element of doubt that CLaWs and their staff will genuinely be disbanded as opposed to being relocated into a new structure.
- [57]Mr Petersen contends that the Department should not refuse to convert his employment status merely because of an administrative restructure where his higher classification position is merely moved instead of being abolished.
- [58]Mr Petersen notes the difference in language adopted by the Respondent in its submissions where it states that it is ‘unclear whether there will be an ongoing business need or ongoing funding for the Business Manager Coach position’ as opposed to the statement in the decision that the current role has a ‘known end date’.
- [59]Mr Petersen submits that general uncertainty around review processes does not absolve the decision-maker of their obligations under the PS Act for employment security and permanent employment being the default basis of employment in the Queensland public sector.
- [60]Mr Petersen says that ‘objectively speaking, the purported future review will not imminently impact the future of the higher classification role’ he is currently performing.
- [61]While Mr Petersen acknowledges that administratively, the position he is currently acting against appears to be temporary on paper, he submits that the fact he has been engaged to perform higher duties in this exact position for a now extended period indicates that there is a genuine operational need for his appointment at the higher classification level in order to maintain the operational requirements of the Department.
- [62]Mr Petersen says that this matter can be distinguished from Morison as in that matter, the employee was backfilling an incumbent who was set to return to the role. Mr Petersen notes that there is no incumbent occupant for his higher classification role. Mr Petersen goes on to consider the discussion of genuine occupational requirements in Morison and submits that the wording Merrell DP used was not exhaustive and should be interpreted through a lens that s 120 of the PS Act is remedial in nature.
- [63]With regard to the Respondent’s submission that a future review will consider the requirements with respect to the higher level role currently occupied by Mr Petersen and that there are considerations such as whether there is an ongoing need for the position and the geographical placement of the position, Mr Petersen says this implies that the Respondent has not yet fully considered the ongoing need for the higher classification position, that the current project date is not known and could be further extended.
- [64]Mr Petersen says that at the time the decision was made, the Department needed his higher classification position until at least 14 December 2024 with a possibility of further review. Mr Petersen submits that there is an authentic need for someone to perform the higher classification role for the foreseeable future and that the Respondent is effectively utilising a fixed-term temporary arrangement to populate a role which could be carried out by a permanent employee.
- [65]With regard to the matters raised by the Respondent in [45] above, Mr Petersen says that his case can be distinguished from the decision relied upon by the Respondent in that in Readman v State of Queensland (Queensland Police Service) (‘Readman’),[9] ‘the employer had already made a decision prior or adjacent to conversion that Ms Readman’s higher classification position was to be changed to a Sworn Officer from an Administration Officer classification stream’ and the Commission found that this operational decision was not subject to review and so the decision not to appoint Ms Readman to the higher classification remained undisturbed.
- [66]Mr Petersen contends that the Respondent has not made a decision that his role will not be required, there is no proposed change to the classification stream for the Business Manager Coach role and the outcome of any future review of the role is ‘seemingly ambiguous at best’.
- [67]With regard to the two Business Manager Coach positions made permanent in Mount Isa CLaW and Emerald CLaW, Mr Petersen says that while the Respondent claims these positions are somehow distinct from his matter, they fail to describe how those positions were able to be made permanent while his cannot be.
- [68]Mr Petersen argues that if the AO5 Business Manager Coach positions were uncertain due to an organisational restructure or funding coming to an end, the other Business Manager Coach roles would have similarly been excluded from being made permanent. Mr Petersen says the fact both were made permanent shows that it was possible and viable on a ‘genuine operational requirement’ basis for two AO5 Business Manager Coach positions to be converted.
Project work
- [69]With regard to the Respondent’s submissions that the work being undertaken by Mr Petersen is part of a ‘project’, Mr Petersen points to the decision made by Power IC in Underwood v State of Queensland (Department of Housing and Public Works) (‘Underwood’)[10] relating to a higher duties conversion request. In that decision, it was said:
[33] To deny an employee conversion because the inherent nature of their work is project based, rather than continuous, would be to unfairly deny employees working in project-based work access to the benefit of the Directive. There may well be circumstances in which permanent appointment of employees acting in a higher classification level position for a particular project would not be consistent with operational requirements. Clause 4.2 of the Directive clearly contemplates that temporary engagement may be appropriate in circumstances in which a project or purpose has a known end date. However, if the history of the employee's temporary engagement relates to continued projects, appointment to the higher level position should not be denied simply on the basis that a known end date exists in isolation from the broader circumstances of the Appellant's employment.
- [70]Mr Petersen contends that given the three years he will have been acting in the role as per the recent extension, the role should no longer be considered temporary and the broader circumstances of his employment provide that there is a genuine operational need for someone to be employed in the role beyond the current end date. Mr Petersen says that it is unfair and unreasonable for the Respondent to rely solely on the position having an arbitrary end date on paper without having regard to whether the funding will likely be extended past that date as it has been multiple times since its inception.
Purpose of Directive 03/23
- [71]Mr Petersen refers to the Respondent’s requirement to consider his human rights and says that in addition to that obligation, the decision-maker has a duty under Directive 03/23 to ‘promote equity and diversity in relation to employment matters, including the application of and making decisions under the Act and Commissioner directives.’ Mr Petersen says that he is ‘an openly identified gay man’ and ‘there is no indication that the Respondent has considered this principle when making its decision’.
- [72]Mr Petersen submits that his appointment to the higher classification position is in line with the principles outlined in the Directive and in s 27 of the PS Act.
Contention
- [73]Mr Petersen contends that where there is no genuine operational reason provided to prevent employment at higher classification, and where the requirements on the question of being found suitable to perform the role under s 120(8) have been met, the purpose of the PS Act and the principles of the Directive are best met by providing employment at a higher classification.
- [74]Mr Petersen reiterates that he is suitable to perform the role and that this is evidenced by his continuing employment against the role for over two years.
Consideration
- [75]The decision letter and the submissions of the parties make it clear that Mr Petersen has acted at the higher classification for the requisite period and is suitable for appointment to the higher classification level position. The basis of the refusal of his request for appointment to the higher classification level position is the genuine operational requirements of the Department.
- [76]The basis of Mr Shelden’s decision dated 7 November 2023 was that it would not be appropriate to permanently appoint Mr Petersen as the purpose of his employment is to perform work for a particular project with a known end date. Mr Shelden then goes on to provide information about the CLaW, a project established under the Advancing Rural and Remote Action Plan. Mr Shelden states that the project was extended until December 2023 due to organisational changes in the Department and the establishment of the Equity and Excellence Strategy and the Education Futures Institute. Mr Shelden reiterates to Mr Petersen that the pilot project has a known end date and says that the temporary project positions associated with the CLaW have a current end date of 8 December 2023 and that the funding supporting the project will not be ongoing beyond that date.
- [77]The question I need to consider is whether at the time Mr Shelden made the decision and prepared the letter to Mr Petersen, the operational requirement relied upon was genuine.
- [78]I note that Mr Shelden’s letter to Mr Petersen provides the following:
Whilst there is no definition of ‘genuine operational requirements of the department’ in the context of the former provision, section 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women) as follows:
… 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 for 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.
- [79]In my consideration as to whether the stated operational requirements of the Department are genuine, I am guided by the word ‘genuine’ meaning ‘… being, truly such; real; authentic’. There are several reasons why I am not prepared to accept that the operational requirements relied upon by Mr Shelden were genuine.
- [80]The first of these is the timing of the decision. The letter to Mr Petersen was dated 8 November 2023. Mr Petersen is told in the letter that his role and the funding for it will end on 8 December 2023 and that funding will not be ongoing beyond this point. To accept this would mean that with only four weeks to go until Mr Petersen’s role was coming to an end and would not be funded, the Department had not turned their mind to what would be happening after 8 December 2023 or made any contact with Mr Petersen regarding him wrapping up in his current position and returning to his substantive role. As Mr Petersen points out in his appeal notice, while Mr Shelden informs Mr Petersen that the funding for the project is ending on 8 December 2023, he does not specify what will happen to the AO5 Business Manager position on 8 December 2023. It is curious that with only four weeks until the end of the school year, Mr Petersen received a letter telling him that the project he was working on was not ongoing but not informing him as to what he would be doing for work beyond 8 December 2023.
- [81]While I am focused on the material that was before the decision-maker at the time the decision was made, I also have regard to the content of the appeal notice and the submissions before me when considering the appeal. It is difficult to overlook that within the 21-day appeal period of the decision not to appoint Mr Petersen to the higher classification position on the basis that the project was coming to an end, he was contacted by email on 27 November 2023 to be told that his role was being extended until the end of term one and that upon provision of a position number, he would be extended until the end of 2024.
- [82]On the basis of what transpired within a very short period of time following a refusal of Mr Petersen’s request, I am not satisfied that the operational requirements stated by the Department at that time were genuine. It seems to me that the decision-maker relied upon an ‘on paper’ end date for a program which the Department had been determined would be continuing at some time earlier in the year.
- [83]I have been provided with some documents referring to the CLaWs. On 20 March 2023, the Deputy Director-General wrote a ‘special message’ acknowledging the transition of the Learning and Development team into the Schools and Student Support division. This was described by Ms Hansel as ‘a significant step in realising the department’s vision under Equity and Excellence’ and goes on to describe the ‘establishment and statewide implementation of the Institute including regional capability within a whole-system approach through the department’s education performance and support model…’. The email was accompanied by some slides, including a ‘Draft’ structure for the Educational Futures Institute.
- [84]The Respondent’s submissions state that the Education Futures Institute and associated funding for the Business Manager Position Mr Petersen is occupying are only approved on a temporary basis and will be subject to review prior to the end date of the current approval in December 2024.
- [85]I note the Respondent’s submission that any review will involve considerations as to an ongoing need for Mr Petersen’s position and that there may be changes to the geographical placement of the position. I also note that the Respondent says that such matters are consistent with the decision-maker’s obligation to have regard to genuine operational requirements pursuant to s 120(4) of the PS Act.
- [86]I am also aware of the submissions made by Mr Petersen regarding the permanent appointment of colleagues to the higher classification in the Business Manager Coach position in Mount Isa and Emerald. However, I agree with the Respondent that the consideration of genuine operational requirements will occur in context and does not necessarily give rise to an argument that Mr Petersen should be appointed to the higher classification.
- [87]I note Mr Petersen’s reference to Underwood and I agree that project work should not automatically preclude permanent appointment at a higher classification. However, in Underwood, the work Mr Underwood was undertaking was overlapping work on a number of different projects using his skillset. Commissioner Power found that the ‘inherent nature’ of the work was project work rather than continuous work. I do not think this is the same for Mr Petersen and the nature of his role.
- [88]I have significant sympathy for the position Mr Petersen finds himself in, and acknowledge that the objects of the PS Act and the purpose of the Directive are to establish employment on a permanent basis as the default basis of employment in the Queensland public sector. However, I am unwilling to substitute a decision that Mr Petersen be appointed to the higher classification in circumstances where there are submissions before me addressing the possibility that the CLaW project, as currently constituted, may not be ongoing and that even if it is ongoing, there may be changes made regarding the geographic location of the role.
- [89]While I have not determined to substitute the decision, I have decided that the decision was not fair and reasonable and I am setting it aside and ordering that a new review be undertaken within 28 days of this decision on appeal.
- [90]I do not accept that the decision provided to Mr Petersen on 8 November 2023 properly represented the genuine operational requirements of the Department at that time as they related to the ongoing nature or otherwise of Mr Petersen’s Business Manager Coach role. For this reason, the decision was not fair and reasonable. In my view, it is improbable that decisions were not being made at the time of Mr Petersen’s review regarding the immediate future of the CLaWs and his Business Manager Coach position. Even if the position of the Department was that the role was to be extended for a further year pending considerations about the future of the project and that this formed a basis to refuse Mr Petersen’s request for appointment on the grounds of genuine operational requirements, this is what should have been communicated to him.
- [91]In undertaking a fresh review of Mr Petersen’s employment, the Department will also be able to ensure that all required content is included in the decision letter, relevantly here, information regarding how many times Mr Petersen’s acting arrangement or secondment has been extended. It may be that at the time the review is undertaken, there is already some certainty about the future of the CLaWs and specifically Mr Petersen’s role as Business Manager Coach. If so, it may be appropriate to appoint Mr Petersen to the higher classification. However, if appointment to the higher classification is not deemed viable and appropriate at this time, Mr Petersen will have some confidence that the decision he receives is properly based on the most current information available regarding the status of the Education Future Institute.
Order
- Pursuant to the Industrial Relations Act 2016 (Qld) s 562C(1)(c), the decision is set aside. The decision is returned to the decision-maker with a copy of this decision on appeal and a direction that a fresh consideration of Mr Petersen’s request to be appointed to the position at the higher classification be undertaken within 28 days.
Footnotes
[1] ‘Full-time equivalent’.
[2] [2020] QIRC 203 (‘Morison’).
[3] Ibid [37]-[38] (citations omitted).
[4] Cushing v State of Queensland (Department of Education) [2023] QIRC 252, [65].
[5] Morison (n 2) [40].
[6] Readman v State of Queensland (Queensland Police Service) [2020] QIRC 222, [26] (‘Readman’).
[7] [2023] QIRC 344, [71].
[8] Katae v State of Queensland & Anor [2018] QSC 225, [50].
[9] Readman (n 6).
[10] [2021] QIRC 022, [33] (‘Underwood’).