Forrest v State of Queensland (Department of Education)
[2025] QIRC 85
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- Unreported Judgment
- Forrest v State of Queensland (Department of Education)[2025] QIRC 85
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Forrest v State of Queensland (Department of Education)[2025] QIRC 85
Forrest v State of Queensland (Department of Education)[2025] QIRC 85
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Forrest v State of Queensland (Department of Education) [2025] QIRC 085 |
PARTIES: | Forrest, Michael Appellant v State of Queensland (Department of Education) Respondent |
CASE NO: | PSA/2024/84 |
PROCEEDING: | Public sector appeal of a conversion decision |
DELIVERED ON: | 24 March 2025 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – PUBLIC SERVICE APPEAL – appeal of a deemed decision refusing application for conversion to permanent role – appellant undisputed as well qualified for the role – consideration of genuine operational requirements arising from obligation on respondent under a certified agreement to prioritise transfer and relocation applicants over applications for conversion – held that the deemed decision was for a genuine operational requirement – appeal dismissed. |
LEGISLATION & OTHER INDUSTRIAL INSTRUMENTS: | Department of Education State School Teachers' Certified Agreement 2022 cl 10.5 Directive 13/20: Appointing a public service employee to a higher classification level Directive 03/23: Review of acting or secondment at higher classification level cl 9 Industrial Relations Act 2016 (Qld) s 562B Public Sector Act 2022 (Qld) s 120, s 121, s 130, s 131, s 133 Public Service Act 2008 (Qld) s 149C |
CASES: | Cushing v State of Queensland (Department of Education) [2023] QIRC 252 Dyson v State of Queensland (Queensland Health) [2024] QIRC 61 Gatla v State of Queensland (Queensland Police Service) [2022] QIRC 436 McDonald v State of Queensland (Department of Housing and Public Works) [2021] QIRC 78 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Piccolo v State of Queensland (Public Trustee Office) [2021] QIRC 47 |
Reasons for Decision
- [1]Mr Michael Forrest ('Appellant') appeals a deemed decision of 26 April 2024 by the State of Queensland (Department of Education) ('Respondent') to decline his application to be permanently appointed by conversion to the position of Principal (Primary) PR3 that the Appellant was acting in ('Decision').
Background
- [2]The Appellant's substantive position is that of a full-time Teacher (General) (B03) at Mooloolah State School. He has been in that position since 23 February 2021. The Appellant also performed the higher duties of a Principal from 23 February 2021 to, after two extensions, 10 May 2024. The Appellant took on the Principal position due to the substantive incumbent of that position going on extended personal leave.
- [3]On 27 June 2021, the Appellant made an application to be permanently appointed to the Principal position under s 149C of the then in force Public Service Act 2008 (Qld) and Directive 13/20: Appointing a public service employee to a higher classification level, otherwise known as a 'conversion application.' The Respondent denied that application on 23 July 2021 because the Appellant did not meet the time requirement of acting at the higher classification for a continuous period of 1 year.
- [4]On 30 August 2023, the Appellant submitted another conversion application under s 120 of the Public Sector Act 2022 ('PS Act') and Directive 03/23: Review of acting or secondment at higher classification level ('Directive 03/23'). On 26 September 2023, the Respondent denied that application citing a genuine operational requirement that the position needed to be backfilled due to the substantive incumbent being on approved leave.
- [5]On 22 March 2024, a 'request for hire' was approved for the Principal position. About a week later, on 28 March 2024, the Appellant submitted another conversion application under ss 120 and 121 of the PS Act and Directive 03/23. No formal decision was issued within the required timeframe of 28 days under ss 120(6) and 120(8)(b) of the PS Act. Pursuant to s 120(6) of the PS Act, the effect of no formal decision being issued is that, on 26 April 2024, the 28 March 2024 conversion application was taken to have been refused. On 29 April 2024, the Respondent notified the Appellant in writing of the nature and effect of the (deemed) Decision.
Relevant law
Relevant legislation
- [6]Section 562B of the Industrial Relations Act 2016 (Qld) says:
(1) This section applies to a public service appeal made to the commission.
(2) The commission must decide the appeal by reviewing the decision appealed against.
(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
(4) For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022 , the commission—
(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b) may allow other evidence to be taken into account if the commission considers it appropriate.
- [7]Section 120 of the PS Act says:
(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 position.
(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 position, has the meaning given under a directive.
- [8]Section 121 of the PS Act says:
(1) This section applies in relation to a public sector employee mentioned in section 120 (1) if—
(a) both of the following apply—
(i) the employee’s chief executive has decided under section 120 not to employ the employee in the position at the higher classification level on a permanent basis because the chief executive considered the employee was not suitable to perform the position;
(ii) the employee considers the employee may have become suitable to perform the position; or
(b) both of the following apply—
(i) the employee’s chief executive is taken, under section 120(6), to have refused the employee’s request to be employed in the position at the higher classification level on a permanent basis;
(ii) the employee has not appealed against the decision under section 130 ; or
(c) the position in which the employee is acting, or to which the employee is seconded, at the higher classification level becomes vacant.
(2) The public sector employee may ask the employee’s chief executive to employ the employee in the position at the higher classification level on a permanent basis.
(3) The public sector employee must make the request—
(a) for subsection (1) (a) —within 3 months after the employee first considers the employee may have become suitable to perform the position; or
(b) for subsection (1) (b) —within 3 months after the chief executive is taken to have refused the employee’s request as mentioned in subsection (1) (b) (i) ; or
(c) for subsection (1) (c) —within 3 months after the position becomes vacant.
(4) The employee’s chief executive must decide the request within 28 days after receiving the request.
(5) In making the decision, section 120 (3), (4) and (5) applies to the employee’s chief executive.
(6) If the employee’s chief executive does not make the decision within the period required under subsection (4), the chief executive is taken to have refused the request.
(7) The employee may make only 1 request under this section in relation to each separate decision made, or taken to have been made, under section 120.
(8) The commissioner must make a directive about the making of a decision under this section.
- [9]Section 130 of the PS Act says:
A person may appeal against a decision if—
(a) an appeal may be made against the decision under section 131; and
(b) the person is entitled to appeal against the decision under section 133.
- [10]Section 131(1)(a) of the PS Act says:
(1) An appeal may be made against the following decisions—
(a) a conversion decision…
- [11]Section 133(a) of the PS Act says:
The following persons may appeal against the following decisions—
(a) for a conversion decision—the public sector employee the subject of the decision…
Relevant industrial instruments
- [12]Clause 10.5 of the Department of Education State School Teachers' Certified Agreement 2022 ('Certified Agreement') says:
10.5 Transfer and Relocation
10.5.1 The parties agree that a strong state-wide service, including service in a range of locations – regional/rural/remote/high priority, underpins the transfer and relocations system. Effective staffing across the state requires that teachers are able to apply to a location of preference subject to meeting minimum service requirements.
10.5.2 It is a condition of permanent employment that an employee could be required to work at any school location within the state.
10.5.3 The Department is committed to the placement of teachers who become eligible for transfer through the TR system including employees who have applied for transfer on compassionate grounds. Employees seeking transfer and relocation will continue to be prioritised before new appointments are offered.
10.5.4 Transfer and relocation shall be subject to the existence of a suitable vacancy in the area. In circumstances where compassionate transfer grounds exist, the Department will make all reasonable effort to transfer a teacher or relocate a Head of Program/School Leader within their nominated location preference.
- [13]Clause 9 of Directive 03/23 says:
9. Meaning of suitable
9.1 A public sector employee is to be considered suitable to perform the position where:
(a) the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the position description), and
(b) the employee meets any relevant mandatory condition/s of the position (as reflected in the position description), and
(c) the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing, and where required, managed in accordance with the requirements of a relevant directive, such as the directives relating to positive performance management and discipline.
Relevant case law
- [14]In McDonald v State of Queensland (Department of Housing and Public Works),[1] Dwyer IC, under the previous legislation's analogue to s 120 of the PS Act, said that the 'circumstances relevant for consideration of an application… are the prevailing circumstances at the time the application is made.'[2]
- [15]
… 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 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.
- [16]
… [c]aution ought to be exercised by this Commission when making decisions to convert employees to permanent employment or to order appointment to a higher classification. The nature of these appeals and the manner in which they are ordinarily conducted is such that, despite submissions from the parties, it is often difficult to fully appreciate the operational setting in which the appeal is being determined. Care must be taken to ensure conversions and appointments do not produce unsustainable outcomes.
- [17]In Cushing v State of Queensland (Department of Education),[7] Pidgeon IC found that there was a genuine operational requirement to not convert an applicant to a higher classification when there was a substantive employee in that higher classification position that the department planned on returning to that position. That was despite the fact that the substantive employee expressed a desire not to return to the position.[8]
- [18]In Dyson v State of Queensland (Queensland Health) ('Dyson'),[9] Power IC dealt with an appeal of a conversion decision where the stated genuine operational requirement was that the respondent was moving to a new recruitment process.[10] Power IC found that merely changing the recruitment process was not a genuine operational requirement that justified rejecting a conversion application. Power IC said on this point:[11]
The adoption of a new process may allow recruitment to particular positions to operate alongside the conversion process, but it is not a replacement for the conversion process. To deny conversion on the basis of the development of an agency recruitment process is contrary to the purpose of the relevant statutory instruments and cannot reasonably be considered a genuine operational requirement preventing conversion.
- [19]In Piccolo v State of Queensland (Public Trustee Office) ('Piccolo'),[12] Hartigan IC, as her Honour then was, dealt with an appeal where the respondent had refused conversion because of a genuine operational requirement stated to be that there was a recruitment process underway for that position, which the appellant was part of.[13] Hartigan IC upheld that as a genuine operational requirement, and found the decision to be fair and reasonable.[14]
The Decision
- [20]The Decision is what is often referred to as a "deemed decision" under the PS Act. There is therefore no set of written reasons. Nor needs there be. The letter from Ms Rhiannon Burgess to the Appellant on 29 April 2024 simply reiterated the effect of s 120(2) of the PS Act and clause 11 of Directive 03/23:
In accordance with section 120(2) of the PS Act, a decision was required to be made by the Department on or before 26 April 2024. In accordance with clause 11 of the Directive, your application results in a deemed decision. A deemed decision refers to the circumstances where the Department does not make a decision in the relevant timeframe provided for under the PS Act, and consequently, the Department is taken to have decided not to employ you at the higher classification on a permanent basis.
The appeal notice
- [21]The grounds of appeal set out within the appeal notice are brief. The Appellant outlines the background of the matter and submits that he was informed that the Respondent would carry out the relocation process after the approaching holidays. The Appellant also submits that his contract was to be continued until week 4 of Term 2, 2024, at which point he would be returned to his previous position. However, the Appellant says the Respondent then informed him of the decision to not employ the Appellant in the Principal position or in his previous position. The Appellant says that the Respondent did not return him to his previous position because the person who had been filling that position was made permanent in that position after invoking the higher classification directive. The Appellant submits that he was then offered a position as a district relief teacher.
Submissions
The Respondent's submissions
- [22]The Respondent's primary submission is that it has an obligation to prioritise substantive employees, which it has historically done, in accordance with clause 10.5 of the Certified Agreement and Directive 03/23. The Respondent does not dispute the length of time that the Appellant has been acting in the higher classification, his eligibility to make a request for conversion under s 120 of the PS Act, his suitability to perform the position within the meaning of clause 9 of Directive 03/23, or his eligibility to appeal the deemed conversion decision.
- [23]The Respondent submits that the Decision was fair and reasonable because there was a genuine operational requirement within the meaning of s 120(4)(a) of the PS Act justifying the Decision. It points to a successful applicant for the Principal position being found on 22 March 2024, which was the same day the abovementioned 'request for hire' was approved for the position. The Respondent submits that this meant that the Principal position was not substantively vacant when the Appellant made his conversion application about a week later on 28 March 2024. The Respondent also says it is a genuine operational requirement to prioritise employees seeking transfer and relocation under the Certified Agreement and Directive 03/23. The Respondent argues that the Decision was fair and reasonable because it was in response to these two genuine operational requirements – specifically, that the Principal position was already filled and that the Respondent must prioritise transfer and relocation.
The Appellant's submissions
- [24]The Appellant submits that on 16 April 2024 he met with the School Supervisor, Mr Reid Thompson, to discuss the application for conversion that the Appellant made on 28 March 2024. The Appellant alleges that Mr Thompson said he would follow up with that application prior to beginning the relocation process. Then, on 24 April 2024 the Appellant alleges, Mr Thompson, along with the Mooloolah State P&C President and two school Principals, discussed the application for relocation. The Appellant also notes that forms for the relocation process were sent to the Regional Director and Central Office for signing on 24 April 2024 following the relocation panel interview. The Appellant therefore questions how the position could have been 'filled' on 22 March 2024 when the Respondent apparently did not even conduct interviews for it until a month later on 24 April 2024. The submission is that the Respondent appears to argue that the position had already been filled before the relocation and transfer process had been carried out.
- [25]As well, the Appellant submits that the position should have been considered vacant at the time he applied for conversion to it.
- [26]Finally, the Appellant further notes that the person who was appointed to the position was previously an Acting Principal at a different school in the Sunshine Coast region. The Appellant also submits that that same person, prior to being relocated to be an acting principal at that different school, held a substantive position at another school in the Sunshine Coast region. As I understand this line of argument, the Appellant seeks a finding that it was not fair and reasonable for the Respondent to prioritise the relocation of an employee to Mooloolah State School, a school in the Sunshine Coast region when that same employee had previously worked in schools in the Sunshine Coast region.
The Respondent's reply submissions
- [27]In reply, the Respondent submits that its prior submissions were unclear. It submits the following revised chronology of events:
- On 19 March 2024, the permanent incumbent submitted a relinquishment of the Higher Classification Position.
- On 22 March 2024, a request for hire was submitted by Mr Thompson for the Higher Classification Position. Also on 22 March 2024, an approved relocation applicant was found for the Higher Classification Position and was notified that a position is due to become vacant in the near future that met the relocation applicant requirements.
- On the morning of 28 March 2024, the Panel Chair and Region were notified, the templates for completion for the interview panel was sent to the panel chair, and the relocation applicant sent in their CV as part of the relocation process.
- On the afternoon of 28 March 2024, the Appellant submitted his request for review under Directive 03/23.
- On 15 April 2024, the permanent incumbent vacated the Higher Classification Position.
- On 24 April 2024, the panel convened and an interview was conducted with the relocation applicant. The applicant was approved to be offered the position, pending Regional Director sign off and a completed integrity check.
- On 26 April 2024, the Appellant's request for review under Directive 03/23 resulted in a Deemed Decision.
- On 1 May 2024, the Regional Director approved the relocation applicant and an integrity check was completed.
- On 2 May 2024, Mr Thompson offered the relocation applicant the Higher Classification Position and the relocation applicant accepted the position.
- The relocation applicant commenced the Higher Classification Position on 13 May 2024 at the end of the Appellant's secondment.
- [28]The Respondent submits that the successful candidate for the Principal position was decided on 22 March 2024 although that person was not appointed on that day. The Respondent did not therefore appoint that person into the position prior to the relocation process interviews on 24 April 2024.
- [29]The Respondent's primary submission is that it had commenced the transfer and relocation process several days before the Appellant's application for conversion on 28 March 2024. The Respondent had decided to appoint the relocation applicant into the position on 22 March 2024. At about the same time it formally commenced the above-mentioned transfer and relocation process. The Respondent rejects the assertion that the transfer and relocation process began on 16 April 2024. The Respondent submits that the reference to relocation made by Mr Thompson was to the Appellant's eligibility for relocation to the Principal position, not the relocation process that saw another employee moved into the position the Appellant sought conversion to.
- [30]As a secondary argument, the Respondent notes that whilst the Principal position did become vacant during the 28-day time frame that resulted in a deemed decision, the position was 'technically' not vacant until formally declared so on 15 April 2024. Hence, the position was not vacant on 22 March 2024 when the Appellant's application for conversion was made.
- [31]However, the Respondent's primary submission is, as I have outlined above, that there was a genuine operational requirement to not convert the Appellant to the position. That had two elements to it. First, that there was an obligation under the Certified Agreement to give priority to the transfer and relocation of employees. Second, that a formal process of recruiting and selecting a transfer and relocation candidate for the position had commenced, and should have been allowed to run its course, when the conversion application was made.[15]
Consideration
- [32]I have no difficulty in finding that, that the plain meaning of clause 10.5.3 of the Certified Agreement is that the Respondent had an obligation to prioritise employees seeking transfer and relocation. The clause means what it says and that is, quite simply, exactly what it says in my opinion. I am satisfied that the candidate chosen on 22 March 2024 to be engaged as part of that process was a transfer and relocation candidate to whom the Respondent owed an obligation of priority. Even the Appellant accepts that to be so, albeit disagreeing with the geographical legitimacy of the relocation/transfer in this case. I find therefore that it was a genuine operational requirement upon the Respondent to grant priority to that candidate and that process in the circumstances of this case.
- [33]The argument that the position was technically not vacant at the time the Appellant made his conversion application does not assist the Respondent. It was abundantly clear at that time that vacancy of the position was imminent. That the Respondent knew that to be the case was evidenced by two facts, which I find to be so based on the materials before me. First, the position was the subject of a formal 'request for hire' nearly a week before the conversion application was made. Second, the Respondent set in motion the transfer and relocation procedure for the position a week before the conversion application was made.
- [34]Whilst this is a case where a recruitment process was underway when a conversion application came in, there is one noteworthy difference between the process in this case and that before Hartigan IC in Piccolo. In this case there was more behind the Decision than just sound management of public resources. Here there was a legal obligation under clause 10.5.3 of the Certified Agreement that required the Respondent to prioritise the transfer and relocation process.
- [35]It is clear that the Respondent never meant to argue that it had filled the position with the transfer and relocation candidate by the time the conversion application was made on 22 March 2024. The position was not filled by the transfer and relocation candidate until that person accepted the offer on 2 May 2024.
- [36]The Appellant's argument that the person who did end up assuming the position was effectively transferring from another nearby school in the Sunshine Coast region is somewhat misguided in my opinion. I understand this argument to be based upon a perceived unfairness around transfer and relocation obligations being invoked for a move that is relatively small in terms of distance or a move within a region. I am of the view that it has no bearing on the fairness and reasonableness of the Decision. That is because clause 10.5.3 of the Certified Agreement invokes a prioritisation of employees seeking a transfer and relocation. It is silent as to the relevance of where the employee is seeking transfer and relocation from or to.
- [37]I am also mindful of the warning in Gatla about taking a cautious approach in these cases. I respectfully agree and adopt that approach.
- [38]It is clear to me that the Respondent could have handled the matter better insofar as communications with the Appellant are concerned. The Appellant's submissions are largely borne of a failure by the Respondent to adequately communicate with the Appellant over the position and the Respondent's plans (and obligations) on how to fill it. There seems to me to have been a lack of consideration for the Appellant, who was, by the Respondent's own admission, suitably qualified to assume the position he was applying for conversion to. There was, however, a legal obligation upon the Respondent to prioritise the transfer and relocation process. That was a genuine operational requirement which gave rise to the Decision in my opinion. Consequently, I find that the Decision is fair and reasonable. Accordingly, I dismiss the appeal and order that the Decision is confirmed.
Orders
- The Appeal is dismissed.
- The Decision is confirmed.
Footnotes
[1] [2021] QIRC 78 ('McDonald').
[2] McDonald (n 1) [25].
[3] [2020] QIRC 203.
[4] Ibid [37]-[38].
[5] [2022] QIRC 436.
[6] Ibid [34].
[7] [2023] QIRC 252.
[8] Ibid [74].
[9] [2024] QIRC 61.
[10] Ibid [40]-[45].
[11] Ibid [46].
[12] [2021] QIRC 47 ('Piccolo').
[13] Ibid [37]-[45].
[14] Ibid [46].
[15] Citing Piccolo (n 12) [45]-[46].