State of Queensland (Department of Education) v Johnston

The outcome of this recent appeal turned upon the proper construction of the phrase “available to work” in a directive made under s 102 Public Sector Act 2022, which created a qualified entitlement for employees suspended without normal remuneration to be reimbursed where their disciplinary processes had not resulted in termination. The directive provided that if the employee was not “available to work” during the period of suspension, then the amount repaid to them was to be adjusted accordingly. The appellant sought to argue that, given the respondent had been unable to legally teach during his suspension, that meant he was disentitled to a higher rate of reimbursement. The Court of Appeal disagreed, upholding a decision of the President of the Industrial Court of Queensland which had set aside a decision made within the Department of Education to disallow wages to the respondent. The Court held that according to the proper construction of “available to work”, instead of the one favoured by the appellant, the respondent was available to work during the period of suspension. It followed it was appropriate that the decision of the Industrial Court remain.

Boddice and Brown JJA, and Williams J

1 August 2025

The respondent was a teacher and public sector employee employed by the State in the Department of Education. [4]. In total, the respondent was suspended without pay for a period of 16 months due to pending criminal charges. [7]. Following his acquittal, the Department of Education determined that he was not eligible for reimbursement under cl 10.5 of the directive, on the grounds he was “not available to work during that time for reasons other than [his] suspension, as [he was] prohibited from teaching pursuant to Education (Queensland College of Teachers) Act 2005”. [8]. The Queensland Industrial Relations Commission and the Industrial Court differed, concluding that on a proper construction of the directive, he was available to work during the relevant period. [10]–[12]. Essentially, the Industrial Court determined the directive should be construed as meaning physically available to undertake work, as distinct from both physically able and legally entitled to do so. [12], [18].

The appellant argued that the Industrial Court erred in law in two respects:

(a)first, in determining that “available to work” for the purposes of cl 10.5 of directive 06/23 means the employee is available to perform physical exertion, notwithstanding that an employee is prohibited by law from performing the work the employee is employed to undertake; and secondly,

(b)in determining that the respondent who was employed as a teacher, was “available to work” within the meaning of cl 10.5 of directive 06/23 during the period when the respondent was prohibited by law from performing work as a teacher. [20].

The directive

Paragraph 10 of the directive provided as follows:

“10.Reimbursement when employee has been suspended without normal remuneration

10.1An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.

…

10.5If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.”

Consideration

Dismissing the appeal (but for different reasons to those below), the Court held:

(1)Whilst a directive is not a statute, it is essentially a statutory instrument made within the constraints of the statutory framework. Accordingly, it was appropriate to undertake the task of construction by reference to the wording of the provision and its context, which included the statutory provision under which it was made and the statutory provisions with respect to suspensions. Since directives are generally not subject to the same scrutiny in drafting as an Act of Parliament, a more liberal approach in interpretation was warranted; [23];

(2)The Education (Queensland College of Teachers) Act 2005 (QCT Act) and Public Sector Act 2022 (PSA) did not relate to the same subject matter, nor were they interlinked. Whilst it is possible for teachers employed by the Department of Education to also be public sector employees, to which the PSA applies, the QCT Act applies to teachers working at both state and private schools. In general, the suspension under the QCT Act can only be brought to an end by a determination of QCAT, whereas the Chief Executive under the PSA is in a position to lift the suspension at any time; [24];

(3)That s 101(1) PSA enables the Chief Executive to suspend an employee “from duty” if they reasonably believe the employee is liable to discipline under a disciplinary law, or alternatively, the proper and efficient management of the entity might be impeded if the employee is not suspended. Prior to that occurring, the provision requires that the Chief Executive consider all reasonable alternatives available to the employee. The fact that the legislature used the word “duty” as opposed to “work”, coupled with the fact that reasonable alternatives must be considered before suspension, suggests that “duty” may be slightly broader than “work” to reflect that no reasonable alternatives were available before suspension; [26], [50];

(4)Clause 10.5 of the directive cites the example of an employee being detained in a corrective services facility, as an instance of where they might be considered not available to work during the period of suspension for reasons other than being suspended. That is just an example, it does not confine the term “available” to physically available; [40];

(5)That the Industrial Court had erred in its construction by construing cl 10.5 too narrowly having regard to the word “available” and its statutory context. That “available” is to be construed as being available in both a physical and legal sense, instead of confining it to physical availability. That is because both physical and legal availability are relevant in terms of assessing whether an employee is available to work; [44]–[45];

(6)That the Industrial Court construed “duty” in s 101(1) PSA as encompassing “all work”, since s 101(3) required that the Chief Executive consider reasonable alternatives, including alternative duties and another alternative working arrangements. However, it was not accurate to construe the phrase “available to work” as extending to the respondent being “available to perform physical exertion for the State in exchange for remuneration”. [46]. Since cl 10.5 concerned remuneration payable by the State, it followed that the reference to “available to work” must refer to availability to work for the State; [47];

(7)That where an employee was considered legally and physically available to undertake their role, or a reasonable alternative as contemplated by s 101(3) PSA, the person in question was “available to work” within the meaning of cl 10.5 of the directive; [50]; and

(8)That suspension under the QCT Act only comprised suspension of the teacher’s registration or permission to teach: “That would not have prevented the respondent being placed in an administrative role. While it may be accepted that there were no reasonable alternatives at the time of the suspension, the fact that the respondent remained employed by the State and was only prevented from working in teaching roles as a result of the suspension by the QCT Act, is not sufficient to establish that the respondent was not available to work and disentitled to be reimbursed for the period he was suspended by the State without remuneration. Thus, in those circumstances, notwithstanding that … [the court has] adopted a narrower construction of ‘available to work’, the respondent was available to work during the period of suspension”. [54].

Disposition

The appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

A Jarro