Day v State of Queensland (Department of Education) [2026] QIRC 159

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Day v State of Queensland (Department of Education) [2026] QIRC 159 PARTIES: Day, Jacquelene (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2025/292 PROCEEDING: Public Sector Appeal – Conversion Decision DELIVERED ON: 7 May 2026 MEMBER: HEARD AT: Power IC On the papers ORDER: 1. The decision appealed against is set aside. 2. The issue is returned to the decision maker along with a copy of this decision and they are directed to: (a) Conduct a fresh review of the Appellant's employment status within 14 days of the date of this decision in accordance with the Public Sector Act 2022 and the Review of acting or secondment at higher classification level (Directive 03/23); and (b) Upon completion of the fresh review of the Appellant's employment status, issue a notice in compliance with the Public Sector Act 2022 and the Review of acting or secondment at higher classification level (Directive 03/23) -- 1 of 14 -- 2 CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – where the Appellant is substantively employed by the Respondent – where the Appellant is acting in a higher classification position – where the Appellant's request for conversion to the higher classification position was rejected – where the Respondent relies on its genuine operational requirements – whether the decision is fair and reasonable – where the decision is not fair and reasonable. LEGISLATION: Industrial Relations Act 2016 (Qld), s 562B and s 562C Public Sector Act 2022 (Qld), s 120, s 129 and s 131 Review of acting or secondment at higher classification level (Directive 03/23) CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Qld & Anor [2018] QSC 319 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 O'Grady v State of Queensland (Queensland Police Service) (2025) QIRC 371 Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187 Rackley v State of Queensland (Queensland Police Service (2024) QIRC 80 -- 2 of 14 -- 3 Reasons for Decision Introduction [1] Ms Jacquelene Day ('the Appellant') is substantively employed by the State of Queensland (Department of Education) ('the Respondent') as a HP3 Speech-Language Pathologist and has been engaged to act in a higher classification position of HP4 Senior Speech-Language Pathologist (Clinical) with Curriculum, Teaching and Learning since 9 October 2023. [2] The Appellant received a decision from Mr Damien Cricchiola, Executive Director Integrity & Employee Relations, Human Resources Strategy ('the decision maker') advising that the Appellant was not being converted to a higher classification level on a permanent basis. The reason provided was that conversion was not appropriate due to the genuine operational requirements of the entity, with the purpose of the Appellant's engagement to perform work for a particular project or purpose that has a known end date. [3] Further, the decision maker stated that in the absence of guaranteed permanent funding and the undetermined ongoing future structure and sourcing identified, it would not be viable or appropriate for the department to support the Appellant's conversion to the higher duties position on a permanent basis. [4] The Appellant appealed against the decision pursuant to s131(1)(a) of the Public Sector Act 2022 (Qld) ('the PS Act'). Appeal principles [5] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [6] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision to deny conversion of the Appellant's higher duties engagement to permanent was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 3 Goodall v State of Qld & Anor [2018] QSC 319, 5. 4 IR Act (n 1), s 562B(3). -- 3 of 14 -- 4 What decisions can the Industrial Commissioner make? [7] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: a. confirm the decision appealed against; or b. set the decision aside and substitute another decision; or c. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant provisions of the PS Act [8] Pursuant to s 129(e) of the PS Act, 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. [9] Section 120 of the PS Act relevantly provides: 120 Employee may request employment at higher classification level after 1 year of continuous acting or secondment (1) If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after— (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. -- 4 of 14 -- 5 (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. Reasons for Appeal [10] The Appellant submits that she has been acting at a higher classification level (Senior Speech Language Pathologist – Clinical HP4) since 9 October 2023 following a formal interview process, with continuous service for over two years (aside from a brief reduced fraction period) when a request for conversion to the higher classification was submitted on 19 November 2025. [11] The Appellant submits that the decision to refuse the request relied on 'genuine operational requirements', focusing only on the Appellant's 0.6 FTE HP4 role within the Reading Disorders team. The Appellant sought clarification as to whether consultation occurred regarding her additional 0.4 FTE HP4 role with the Borderless Therapy and Nursing Team (commenced 7 July 2025), but the response indicated this was treated as a separate role and as such was excluded due to being held for less than 12 months. -- 5 of 14 -- 6 [12] The Appellant maintains that the application concerns appointment to the HP4 classification level, for which all criteria are met, regardless of team allocation, and that the HP4 Clinical role is consistent across the Department and should not be assessed based on team. [13] The Appellant further submits that the decision also stated that details regarding the number of contract extensions were unnecessary and did not influence the decision. The Appellant contends that this information is relevant and notes that her contracts have been extended to mid-2026. [14] Further, the Appellant submits that the reliance on funding limitations does not negate the Department's ongoing need for HP4-level clinical work. This is supported by the recent establishment of an HP4 Clinical Talent Pool, for which the Appellant was successful, demonstrating sustained organisational demand. [15] The Appellant submits that the time-limited nature of current funding does not provide sufficient grounds to refuse conversion where the legislative criteria have otherwise been met. Submissions [16] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. Appellant's submissions [17] The Appellant submits that she has been acting at higher level as a Senior Speech Language Pathologist, HP4.3 since October 2023 in the Reading Disorders, Language and Literacy Team, a role that is not substantively occupied. The Appellant has had six contract extensions to date, most recently to 26 June 2026. [18] The Appellant submits that her suitability for the HP4 role is not in dispute as there are no performance or disciplinary concerns. Further this is supported by the Appellant's successful re-interview and placement in the 2026 HP4 Clinical Talent Pool. [19] The Appellant submits that the reasons given in the Decision Notice appear to be based primarily on funding rather than operational need, which she submits is unreasonable for the following reasons: • The Decision Notice repeatedly refers to the project having a "known end date", being "temporary in nature", and funding being "unlikely or unknown to be ongoing" (with a stated end date of 18/01/2026). However, the Appellant has since received a further contract extension to 26/06/2026, and all other members of the Reading Disorders - Language and Literacy Team have been similarly extended, contradicting the claimed funding uncertainty. -- 6 of 14 -- 7 • Case law is clear that security or continuity of funding is not a valid basis to refuse permanent appointment at the higher level,5 and there is also no requirement under the PS Act for a position to be recurrently or permanently funded before conversion can occur.6 • The Decision Notice states the Respondent was unable to determine the number of extensions and claims the omission is not unfair or unreasonable. This is incorrect as the role has been extended six times since October 2023, demonstrating the ongoing nature of the work and the continuing operational need. Details of the number and dates of extensions are required under s 120(5)(c) of the PS Act and are readily available via the Department of Education MyHR system, with this omission shows a lack of proper consideration. • The Decision Notice describes the role as involving the development and delivery of capability programs focused on language, reading and writing development, difficulties and disorders (including dyslexia), particularly for students at risk. This need continues, as evidenced by: o Premier Crisafulli's Ministerial Charter Letter prioritising more speech and occupational therapy support for children with learning difficulties and improved outcomes for students with disability; o The Department's ongoing 2026 focus on reading implementation, English results for priority groups (including students with disability), and the "Brighter Futures" strategy (launching 2026), which emphasises literacy, inclusion, and support for students with disability; o Significant growth in the Reading Disorders – Language and Literacy Team since 2023 (now with three additional temporary HP4 Speech Language Pathologists); o The team's high workload in 2025 with professional learning delivered to over 4,800 educators and over 760 Advisory Line inquiries; and o The critical, ongoing state-wide demand for specialist support in reading and writing disorders (including dyslexia), which affect an estimated 5-10% of school-aged children. [20] The Appellant seeks that pursuant to s 562C of the IR Act, the decision rejecting her conversion request be set aside and substituted with a decision appointing her permanently to the HP4 Senior Speech Language Pathologist (Clinical) role. 5 Gatla v State of Queensland (Queensland Police Service) [2022] QIRC 436. 6 Singh v State of Queensland (Queensland Police Service) [2024] QIRC 275. -- 7 of 14 -- 8 Respondent's submissions [21] The Respondent submits that the Appellant is substantively employed as an HP3 Speech- Language Pathologist and has acted as an HP4 Senior Speech-Language Pathologist (Clinical) within Curriculum, Teaching and Learning since 9 October 2023 at varying FTE. [22] The Respondent submits that the Appellant applied for conversion to the higher classification, and this request was refused on the basis that the role was tied to a specific project with a known end date and there was no ongoing operational requirement for permanent appointment. [23] The Respondent submits the Decision was fair and reasonable because it complied with the PS Act and Review of acting or secondment at higher classification level (Directive 03/23) ('the Directive'), considered relevant factors, including operational requirements and appropriately exercised discretion. [24] Regarding genuine operational requirements, the Respondent submits that: • Relying on Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'),7 "Genuine operational requirements" includes consideration of efficient resource management, workforce planning, and whether there is a real need for the role; and • The Decision was based on multiple factors, not funding alone, as the role supports a specific project with a defined purpose and end date; funding is time-limited and uncertain; and future structure and resourcing are undetermined. [25] The Respondent further submits that the Appellant's role within the Reading Disorders team focuses on delivering statewide professional learning and building capability. The Respondent's position is that this work is intended to become self-sustaining and will not require ongoing HP4 FTE. [26] Additionally, the Respondent relies on O'Grady v State of Queensland (Queensland Police Service) ('O'Grady'),8 and Rackley v State of Queensland (Queensland Police Service) ('Rackley'),9 which confirm that decisions about the ongoing need for a role rest with the employer, not the employee, and that uncertainty about a role's future and the need to manage public resources efficiently are legitimate considerations when determining whether permanent appointment is appropriate. 7 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'). 8 O'Grady v State of Queensland (Queensland Police Service) (2025) QIRC 371 ('O'Grady'). 9 Rackley v State of Queensland (Queensland Police Service) (2024) QIRC 80 ('Rackley'). -- 8 of 14 -- 9 [27] The Respondent further submits that the role is not substantively occupied, does not form part of the permanent establishment, and is not intended to continue beyond the project. [28] As to the previous extensions of higher duties, the Respondent submits that: • The Appellant has acted in the role for over two years and is considered suitable; • The most recent extension (to June 2026) was not in effect at the time of the Decision; and • Limitations in HR reporting systems affected visibility of extension history and omission of this information did not affect the outcome. [29] Regarding the continuing need for the role, the Respondent maintains that determining ongoing need is a matter for the Department, and citing Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) ('Pallourios'),10 the Appellant's views do not establish that the specific HP4 role will continue or be funded and, consistent with authority, where a role is project-based and will cease, this constitutes a genuine operational requirement justifying refusal of permanent appointment. [30] The Respondent submits the Decision was fair and reasonable and made in accordance with legislative requirements. As such, the Commission should confirm the Decision. Consideration [31] This appeal requires consideration of the decision and associated decision-making process to determine if it was fair and reasonable in all of the circumstances. [32] Section 120 of the PS Act provides that an employee who has been acting in a higher classification position for one year may request to be employed in the position at the higher classification level on a permanent basis. It is common ground that the Appellant had been acting in the higher classification position for a continuous period of at least one year and accordingly was able to request conversion to permanency to the higher classification position. [33] Section 120(3) provides that 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. [34] The decision confirmed that the Appellant is suitable for appointment to the position at the higher classification level. 10 Pallourios v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 187 ('Pallourios') [24], [27]-[29]. -- 9 of 14 -- 10 [35] Section 120(4) provides that when making the decision, the chief executive must have regard to the following: (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. [36] The decision demonstrates that regard was had to s 120(4)(b), with the decision maker stating that no decisions have been made, or taken to have been made, under s 120 of the PS Act and the Directive, during the Appellant's continuous period of employment at the higher classification level. [37] The decision also demonstrates that regard was had to the genuine operational requirements of the public sector entity in accordance with s 120(4)(a). It was on this basis that the decision to refuse the Appellant's request was made. [38] The decision determined that it was not viable or appropriate to convert the Appellant to the higher classification position based on the genuine operational requirements of the entity. Specifically, that the Appellant's role was tied to a specific project with a known end date. [39] The decision outlines the following reasoning: Your temporary employment as Senior Speech Language Pathologist (Clinical) within the Curriculum, Teaching and Learning Branch is the result of funding of the Queensland Reading Commitment project which is unlikely or unknown to be ongoing. Consultation with Curriculum, Teaching and Learning has revealed that the purpose of the Queensland Reading Commitment project is to develop and deliver capability programs with a focus on language, reading and writing development, difficulties and disorders, including dyslexia. Your role is responsible for a range of key pieces of work in the Reading Disorders – Language and Literacy portfolio which includes delivering approved statewide professional learning initiatives aimed at enhancing educational leadership and teaching expertise in supporting students with complex communication needs who are at risk of significant spoken and/or written language difficulties. The funding for this project is temporary in nature and has a current end date of 18 January 2026. I have considered the effective, efficient and appropriate management of the public resources and human resource planning with the department. In the absence of guaranteed permanent funding, and the undetermined ongoing future structure and resourcing identified, it would not be viable or appropriate for the department to support your employment on a permanent basis at this time. -- 10 of 14 -- 11 [40] The phrase 'genuine operational requirements' is not defined in the PS Act, however, the term was considered by Deputy President Merrell in Morison,11 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. [citations omitted] [41] The Respondent submits that determining ongoing need is a matter for the Department citing Pallourios.12 Whilst decisions regarding operational requirements are generally a matter for the Respondent, the genuine nature of such requirements must be able to be demonstrated. The statement that funding is 'unlikely or unknown to be ongoing' does not demonstrate that the Queensland Reading Commitment project is indeed a project with a known end date. [42] The decision states that the funding for the project has an end date of 18 January 2026 and that funding is unlikely or unknown to be ongoing. I note that this review may only consider the material before the decision maker at the time the decision was made. However, in circumstances where sparse information has been provided outlining the proposed length of the project, it is reasonable to consider that the extension of the Appellant's contract to 26 June 2026 indicates that the project does not in fact have a known end date. 11 Morison (n 7). 12 Pallourios (n 10). -- 11 of 14 -- 12 [43] There may be circumstances where a project is not completed within the allocated timeframe and ultimately extends beyond the planned end date. An extension to an employee's contract does not automatically indicate that the project is ongoing indefinitely. However, in circumstances where there is a paucity of detail as to the proposed duration of the project, such an extension weighs against a determination that the Appellant's secondment is to a project with a known end date. [44] I note the decisions of O'Grady and Rackley referred to by the Respondent. As indicated in these decisions, an assessment of the genuine operational requirements of the entity require consideration of the appropriate management of public resources. The fact that the HP4 Senior SLP role is not currently part of the CTL establishment and is not a vacant position supports a finding that the work being undertaken is limited to a particular project only. [45] Clause 10 of the Directive provides the following: Obligations when a decision is made to refuse a request to employ a public sector employee at a higher classification level on a permanent basis 10.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to: (a) set out the findings on material questions of fact (b) refer to the evidence or other material on which those findings were based. [46] In circumstances where the decision maker has made a finding that the higher duties position is limited to a project with a known end date, material should have been provided to indicate the basis upon which that finding was made. The general nature of the assertion, with no further information, is insufficient. [47] Of further concern in this appeal is the omission from the decision of the mandatory requirement to outline the number of times the Appellant's employment has been extended as required by s 120 of the PS Act. The decision included the following explanation: It is a requirement of the PS Act to identify the number of times your engagement at the higher classification role has been extended. The department's payroll system, The Solution Series, cannot state with any certainty the number of times your employment has been extended. Consultation was undertaken with your business unit during the processing of your request and your business unit was also unable to determine with any certainty the number of times you have been extended. While we have been unable to determine the number of times your employment has been extended, we do not consider the omission of this information to be unfair or unreasonable, as the inclusion of this information would not materially change this decision. -- 12 of 14 -- 13 [48] Section 120(5) of the PS Act is outlined as follows: (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 [49] The Respondent submits that limitations in HR reporting systems affected visibility of extension history, however the omission of this information did not affect the outcome. [50] The Respondent may well be correct that the omission of this information did not affect the outcome. However, in circumstances where s 120(5)(c) mandates the inclusion of such information, I am not persuaded that the response provided by the Respondent is reasonable. [51] The Appellant submits that her contract has been extended 6 times in total and has outlined the specific dates of each extension. It is perplexing that the Respondent, as the employer, was not able to provide such information in the decision. [52] I accept that the omission of the information was not an oversight nor an intention to disregard the requirement. However, where the PS Act requires employees to be provided with a notice containing mandatory information, it is not reasonable to simply state that the HR systems 'affected visibility of extension history'. At the very least, evidence of the steps taken to exhaust all avenues to obtain such information should be provided. Conclusion [53] The decision is not fair and reasonable for the reasons outlined above. In circumstances where the decision did not include information regarding the known time period for the project and mandatory information was not included, I consider the most appropriate outcome is for the Respondent to conduct a fresh review and provide a decision compliant with the requirements of the PS Act. -- 13 of 14 -- 14 Order [54] I make the following order: 1. The decision appealed against is set aside. 2. The issue is returned to the decision maker along with a copy of this decision and they are directed to: (a) Conduct a fresh review of the Appellant's employment status within 14 days of the date of this decision in accordance with the Public Sector Act 2022 and the Review of acting or secondment at higher classification level (Directive 03/23); and (b) Upon completion of the fresh review of the Appellant's employment status, issue a notice in compliance with the Public Sector Act 2022 and the Review of acting or secondment at higher classification level (Directive 03/23). -- 14 of 14 --