Burns v State of Queensland (Department of Education) [2025] QIRC 48

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Burns v State of Queensland (Department of Education) [2025] QIRC 048 PARTIES: Burns, Karen (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2024/95 PROCEEDING: Public Sector Appeal – Fair Treatment Decision DELIVERED ON: 13 February 2025 MEMBER: McLennan IC HEARD AT: On the papers ORDERS: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision: 1. The decision to reduce the Appellant's classification to TA003.02 was not fair and reasonable. 2. The Appellant is reinstated to the TA004.01 classification. 3. The Appellant's classification at TA004.01 is backdated to 21 August 2023. 4. The Respondent must pay the Appellant all entitlements associated with the backdating of her classification within 22 days of the release of this decision. -- 1 of 19 -- 2 CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant is employed as a Teacher Aide – where the appellant was appointed to the role of Library Officer at the TA004 classification – where the TA004 classification is subject to the progression arrangements provided for under the certified agreement – where the appellant did not meet the required criteria for progression into to a TA004 role under the certified agreement – where the respondent determined the appellant was ineligible to be appointed to the TA004 role around seven months after the appointment had been made – where the respondent reduced the appellant's classification back to TA003.02 – consideration of whether the appellant should have been appointed to the role – whether the decision fair and reasonable – decision not fair and reasonable LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 562B, s562C, s 564 Public Sector Act 2022 (Qld) s 92, s 131, s 133, s 134 Department of Education Teacher Aides’ Certified Agreement 2018 cl 1, cl 13 Department of Education Teacher Aides’ Certified Agreement 2022 cl 1, cl 12 Department of Education, Recruitment and Selection Procedure Directive 11/20: Individual Employee Grievances General Employees (Queensland Government Department) and Other Employees Award – State 2015 CASES: State of Queensland (Queensland Health) v Hume [2024] ICQ 3 -- 2 of 19 -- 3 Reasons for Decision [1] On 19 February 2018, Ms Karen Burns (the Appellant) commenced employment with the Department of Education (the Department; the Respondent) as a permanent, part- time Teacher Aide at the TA002 classification at Moranbah East State School (MESS). [2] By January 2022, Ms Burns was working at the TA003.01 pay classification for around 15 hours per week. In May 2022, Ms Burns also backfilled the role of Teacher Aide – Library Assistant for approximately 15 hours a week. [3] In June 2022, Ms Burns responded to a closed merit expression of interest for a Library Officer position for 15 hours a week as a TA004 and 10 hours a week as a TA002. Ms Burns was successfully appointed to the Library Officer position. [4] Ms Burns commenced the TA004 position on 11 July 2022. [5] On 17 February 2023, Ms Yolande Dorward (the new Business Manager) met with Ms Burns to advise her that following a Human Resources review, her role was identified as an incorrect classification and would be reduced to a TA003.01, however, her progression to TA003.02 would not be affected.1 [6] On 4 August 2023, Ms Burns was provided notice that she would no longer be working as a TA004 and would return to her substantive hours and classification of TA003.02 as of 21 August 2023. The Acting Principal, Ms Geraldine Curran, MESS, issued a letter to Ms Burns advising that: … We have been working with Employee Relations' and they have advised that given the payment at the TA04 level was an administrative error with no ability within the appropriate instrument for you to be appointed to this level as it stands, there is no reason for the TA04 Level to be grandfathered. We will move forward with the pay classification adjustment to TA03.2 – 60 hours per fortnight to be effective Monday 21 August 2023.2 [7] At that time, Ms Burns payment at TA004 ceased. She worked 60 hours per fortnight, renumerated at TA003 classification level. [8] On 19 February 2024, Ms Burns submitted an individual employee grievance with the Department in relation to the reduction of her classification. The Department responded to her grievance, finding that it was fair and reasonable for Ms Burns' classification to be reduced to the TA003.02 rate. [9] On 22 April 2024, Ms Burns raised a request for a stage two review (Internal Review). 1 Respondent's submissions filed 5 July 2024, [6]. 2 Ibid Attachment 4. -- 3 of 19 -- 4 [10] On 20 May 2024, Ms Marie Zapata, A/Director, Employee Relations, Department of Education advised Ms Burns her appointment to the TA004 classification occurred out of an administrative error (the Decision). The Decision further explained: Specifically, appointment to the TAOO4 classification level was not permitted under clause 12.3(a) of the Department of Education Teacher Aides’ Certified Agreement 2022, which states that only “teacher aides who were employed at the OO4 classification on 31 August 2019 will maintain their OO4 classification for the duration of their employment (Preserved OO4 Employees)”. Further, and by way of relevant background context, the Department of Education Teacher Aides’ Certified Agreement 2018 which introduced the OO4 progressional arrangements and preserved existing (at that time) OO4 positions states at clause 13.12.1(a)(ii), “Other than OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan), the OO4 classification can only be accessed via the OO4 progression arrangements at clause 13.10 of this Agreement”. Therefore, there was no basis for appointing Ms Burns to the TAOO4 classification level and the EOI advertising and subsequent appointment to this level was in error. 'Local arrangements' as submitted in the IRR, cannot be supported outside of the department's industrial framework, particularly in circumstances where the certified agreements expressly intended for any new OO4 positions to cease in favour of broader access to the OO4 classification level through progression arrangements. Similarly, prior approval to pay the higher rate OO4 rate (sic) does not enable the delegate to exercise this delegation outside of the department's industrial framework. [11] On 5 June 2024, Ms Burns filed an appeal of the Decision. Background [12] On 21 March 2023, the United Workers' Union (UWU), on behalf of Ms Burns, raised concerns regarding the Respondent's decision to return her to the TA003 classification. [13] The UWU highlighted that the expression of interest clearly outlined the role involved higher duties at the TA004 level. After Ms Burns was advised that her application for the Library Officer role was successful, she was provided with a Roster Variation Form that stated she would be "working 30 hrs per week with increased duties TA004 and 30 min per week at current level".3 Further, Ms Burns had discussed the current arrangement Ms Lisa Wilkinson (the former Business Manager) who sought for Ms Burns to be paid TA004 hours, which was approved by the Department.4 [14] In response, the Department claimed that the prior practice by the Business Manager seven years ago: … certainly does not require the grandfathering of this role as a TA04 position for any new Employees. Whilst it is problematic that the position description references the TA04 classification, there is no requirement to continue this practice in conflict with the Certified Agreement.5 3 Respondent's submissions filed 5 July 2024, Attachment 2, 5. 4 Ibid. 5 Appellant's submissions filed 21 June 2024, Attachment E. -- 4 of 19 -- 5 [15] The Department stated Ms Burns needed to progress to the TA004.01 pay point in accordance with the terms of the Department of Education Teacher Aides' Certified Agreement 2018 (the Certified Agreement 2018).6 [16] On 15 May 2023, the UWU issued a letter to the Department, disagreeing with the decision to amend the Appellant's classification to TA003.01. [17] In that correspondence, the UWU acknowledged the Department's view that the previous Business Manager did not follow procedures in filling the role as cls 13.11(a) and 13.12.1(a)(ii) of the Certified Agreement 2018 prohibits the grandfathering of TA004 roles.7 They also acknowledged that Ms Burns should not have been appointed to the position in June 2022, as the Department's decision to appoint Ms Burns was in contravention of the Certified Agreement and relevant directives.8 Notwithstanding that, the UWU disagreed that the appropriate response was to reduce Ms Burns' classification. [18] The UWU noted that at no point did Ms Burns misrepresent her classification when she expressed interest in the position. Irrespective of any shortfalls in recruiting for the role, the Department was advised of Ms Burns' classification, and that she would be moving to the TA004 position in a roster variation submitted by Ms Wilkinson on 2 September 2022. The relevant contraventions of the Certified Agreement 2018 and Public Service Act 2008 (PS Act 2008)9 were subsequently attributable to the Department and not Ms Burns.10 [19] Regardless of Ms Burns' pathway to attaining the position, the UWU expressed that a demotion to TA003 is not permitted by the General Employees (Queensland Government Department) and Other Employees Award – State 2015 (the Award), the Certified Agreement 2018 and the PS Act 2008, or Ms Burns' employment contract, in circumstances where she was not being disciplined or the decision to appoint her was not successfully appealed.11 [20] On 21 August 2023, the Department reduced Ms Burns' pay to TA003.02 for all hours worked after providing written notice to Ms Burns on 4 August 2023. [21] The UWU, on behalf of Ms Burns, submitted an individual employee grievance in accordance with Directive 11/20: Individual Employee Grievances (the Grievance Directive), alleging that the decision to reduce the Appellant's classification under the 6 The Department of Education Teacher Aides' Certified Agreement 2018 has since been superseded by the Department of Education Teacher Aides' Certified Agreement 2022. The clauses relevant to this appeal are almost identically reproduced in the Department of Education Teacher Aides' Certified Agreement 2022. 7 Respondent's submissions filed 5 July 2024, Attachment 3, 1. 8 Ibid Attachment 3, 1. 9 Now repealed and replaced with the Public Sector Act 2022 (Qld). 10 Respondent's submissions filed 5 July 2024, Attachment 3, 2. 11 Ibid Attachment 3, 2. -- 5 of 19 -- 6 Department of Education Teacher Aides' Certified Agreement 2022 (the Certified Agreement 2022) from the TA004 to the TA003 level was not fair or reasonable. [22] On 27 March 2024, Ms Kerri Dromgoole, A/Director, Human Resource Business Partnering, wrote to Ms Burns confirming that the decision was fair and reasonable based on the following reasons:12 • All reasonable steps were undertaken to ensure that the advice was provided in line with the appropriate instrument. • Consultation with the Department's Integrity and Employee Relations team was undertaken on numerous occasions. • Recommendations were provided to Ms Dorward to review the role and duties of the Library Officer position. • The practice by a Business Manager seven years ago did not require the grandfathering of this role as a TA004 to any new employees. • While Ms Burns did not at any time mislead or misrepresent her classification when applying for the Library Officer position, the Certified Agreement specifies the requirements to progress to the TA04 level. [23] On 22 April 2024, the UWU, on behalf of Ms Burns, submitted a request for Internal Review. In their request for an Internal Review, they submitted that:13 • The decision-maker erroneously referred to the prior practice of seven years ago as being relevant and applicable to Ms Burns when it was not. • Ms Burns applied for the position subject to an expression of interest stating a higher pay rate, which was granted when Ms Burns put forward her expression of interest and was subsequently appointed. • Ms Burns had been paid at the higher rate for a substantive period before her pay rate was reduced. [24] The Respondent advised that the period to submit an Internal Review under the Grievance Directive had lapsed and so, the request would not be accepted. Nonetheless, the Department advised that Ms Zapata would provide a response.14 12 Appellant's submissions filed 21 June 2024, Attachment G, 2-3. 13 Ibid Attachment H, 1. 14 Respondent's submissions filed 5 July 2024, [12]. -- 6 of 19 -- 7 [25] Ms Zapata confirmed that the decision was fair and reasonable, as Ms Burns' appointment to the TA004 role was an administrative error.15 That Decision is the subject of this appeal. Submissions [26] I have carefully considered all submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. Jurisdiction Decisions against which appeals may be made [27] Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable is appealable under s 131(1)(d) of the PS Act. [28] Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. The Appellant meets that requirement. [29] Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission. Timeframe for appeal [30] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. [31] The Decision was given on 20 May 2024 and the Appeal Notice was filed on 5 June 2024. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe. What decisions can the Commission make? [32] Section 562C of the IR Act prescribes that the Commission may determine to either: • confirm the decision appealed against; • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or 15 Ibid [13]. -- 7 of 19 -- 8 • set the decision aside and substitute another decision. Relevant Legislation and Clauses of the Certified Agreements [33] Section 131 of the PS Act states: 131 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— … (d) a fair treatment decision; … [34] Section 133 of the PS Act provides: 133 Who may appeal The following persons may appeal against the following decisions— … (d) for a fair treatment decision—a public sector employee aggrieved by the decision; … [35] Clauses 13.11 and 13.12 of the Certified Agreement 2018 provide (emphasis added): 13.11 OO4 positions (a) Clauses 13.11(b) to (d) will cease to apply effective from 31 August 2019. (b) Where OO4 classification level Teacher Aide position/s have been established in the school, such hours and positions must be maintained consistent with the OO4 position description and work profile, unless otherwise agreed between the Parties to this Agreement. Application from the school can be made through to Regional Office for consultation with the Employee Relations function of the Department and the Teacher Aide Consultative Committee. (c) No existing position can cease to exist without consultation and agreement between the Department and UV. (d) Where hours in a school become vacant, these hours will be subject to the hours management arrangements as contained within this agreement to maintain DoE and UV’s commitment to existing permanent OO4 positions across the state. 13.12 Preserved OO4 arrangements 13.12.1 Preserved OO4 positions (a) The Parties agree that from 1 September 2019: (i) OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan) positions will continue; (ii) Other than OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan), the OO4 classification can only be accessed via the OO4 progression arrangements at clause 13.10 of this Agreement; and -- 8 of 19 -- 9 (iii) Selection and appointment to OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan) positions will be in accordance with the Recruitment and Selection Directive, as amended from time to time, and there will be no requirement to satisfy the OO4 progression criteria in clause 13.10. 13.12.2 Preserved OO4 employees (a) Teacher Aides who are employed at the OO4 classification on 31 August 2019 will maintain their OO4 classification for the duration of their employment (Preserved Employees). (b) Preserved Employees will maintain their OO4 classification should they transfer to another school location during their employment. (c) Preserved Employees who transfer to another school location during their employment must sign a Personal Action Plan and Undertaking in accordance with Schedule 6 and clause 13.10.2. (d) Clause 13.12.2 (a) and (b) do not apply to OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan) positions. [36] Clause 13.10 of the Certified Agreement 2018 provides (emphasis added): 13.10 Progression to OO4 Teacher Aide Clause 13.10 does not come into effect until 1 September 2019. 13.10.1 Notifications The Department will notify Teacher Aides at OO3 (paypoint 4) on an annual basis of the eligibility requirements for progression to OO4 (paypoint 1). Principals will also be notified. 13.10.2 Criteria and Process for Progression (a) To progress to OO4 Teacher Aide, a Teacher Aide must satisfy the following criteria: (i) Employment with the Department as a permanent Teacher Aide at OO3 (paypoint 4) for at least 12 months; (ii) Hold a Certificate III level qualification, equivalent or higher; (iii) Hold a current Senior First Aid certificate or equivalent; and (iv) Sign an Undertaking committing to perform higher level duties as outlined in Schedule 6 to be incorporated into a Personal Action Plan. (b) The process for OO4 Teacher Aide progression will include the following: (i) Following the provision of a signed Undertaking, a Principal (or delegate) and a Teacher Aide will work cooperatively to discuss and agree on a Personal Action Plan in accordance with Schedule 6. The actions identified in the Personal Action Plan will be consistent with the list of indicative duties contained in Schedule 6 and may include higher level duties they are already undertaking; (ii) The Personal Action Plan is to be discussed and agreed as soon as practicable but no later than four (4) weeks following satisfaction of the eligibility criteria in accordance with clause 13.10.2; -- 9 of 19 -- 10 (iii) The Personal Action Plan may be reviewed on an annual basis, if required; (iv) A Principal/delegate must ensure higher level duties are available for the Personal Action Plan; (v) Where higher level duties are unable to be identified, this will not impede Teacher Aides progressing to the OO4 classification, or incrementing thereafter; and (vi) An OO4 Teacher Aide shall increment within OO4 in accordance with the Award provided that the OO4 Teacher Aide continues to undertake higher level duties as discussed and agreed in the Personal Action Plan. [37] Clause 1.9 of the Certified Agreement 2018 outlines the objectives of the agreement is to (emphasis added): (a) The over-arching objective of this Agreement is to provide schools with agreed arrangements to focus on student learning outcomes and the delivery of educational services whilst enhancing the employment relationship, conditions of employment and work environment for Teacher Aides. The Parties agree that consultation with Teacher Aides by school management is a feature of this Agreement. (b) Other objectives include the enhancement of educational services by: (i) supporting the Department to achieve the best educational outcomes for all school students; (ii) providing efficient and high quality services; (iii) supporting initiatives in school-based planning, management and accountability frameworks; (iv) implementing fair and equitable employment practices; (v) developing more highly skilled Teacher Aides capable of achieving effective and efficient working arrangements and who are committed to client service, continual improvement, employee accountability, ongoing learning, team work and team problem solving; (vi) providing certainty for Teacher Aides and the Department in relation to remuneration outcomes for the life of the Agreement; (vii) providing mechanisms for achieving the aims of the Agreement; (viii) providing a bargaining process that delivers industrial stability for the duration of the Agreement; and (ix) providing an agreed dispute resolution process. [38] The relevant clauses contained with the current Certified Agreement 2022 are (emphasis added): 12.2 Progression to OO4 Teacher Aide (a) Eligibility for progression -- 10 of 19 -- 11 (i) Subject to clause 12.2(a)(ii), the OO4 classification can only be accessed via the OO4 progression arrangements under this clause. (ii) This clause does not apply to OO4 Teacher Aide – ALM/EI/Braille positions. Selection and appointment to these positions will only be in accordance with the Recruitment and Selection Directive, as amended from time to time. (b) Notifications The Department will notify Teacher Aides at OO3 (pay point 4) on an annual basis of the eligibility requirements for progression to OO4 (pay point 1). Principals will also be notified. (c) Criteria and process for progression (i) To progress to OO4 Teacher Aide, a Teacher Aide must satisfy the following criteria: A. employment with the Department as a permanent Teacher Aide at OO3 (pay point 4) for at least 12 months; B. hold a Certificate III level qualification, equivalent or higher; C. hold a current Senior First Aid certificate or equivalent; and D. sign an Undertaking committing to perform higher level duties as outlined in Schedule 7. (d) Reporting requirements A statistical report regarding the number of Teacher Aides who have successfully progressed from OO3 (pay point 4) to OO4 (pay point 1) by region will be provided and discussed at each meeting of TACC with processes agreed to address any issues with the application of this initiative. 12.3 Preserved OO4 employees (a) Teacher Aides who were employed at the OO4 classification on 31 August 2019 will maintain their OO4 classification for the duration of their employment (Preserved OO4 Employees). (b) Preserved OO4 Employees will maintain their OO4 classification should they transfer to another school location during their employment. (c) Preserved OO4 Employees who transfer to another school location during their employment must sign an Undertaking in accordance with clause 12.2(c)(i)D. and Schedule 7. (d) Clauses 12.3(a) to (c) do not apply to Teacher Aide – ALM/EI/Braille To clarify, if the employee transfers to a different Teacher Aide role they will be required to sign an Undertaking to perform duties at the OO4 level. [39] Clause 1.7 of the Certified Agreement 2022 outlines the objectives of the agreement is to (emphasis added): (d) Other objectives include the enhancement of educational services by: -- 11 of 19 -- 12 (i) supporting the Department to achieve the best educational outcomes for all school students; (ii) providing efficient and high-quality services; (iii) supporting initiatives in school-based planning, management and accountability frameworks; (iv) implementing fair and equitable employment practices; (v) developing more highly skilled Teacher Aides capable of achieving effective and efficient working arrangements and who are committed to client service, continual improvement, employee accountability, ongoing learning, team work and team problem solving; (vi) providing certainty for Teacher Aides and the Department in relation to remuneration outcomes for the life of the Agreement; and (vii) providing mechanisms for achieving the aims of the Agreement. Consideration Appeal principles [40] Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [41] The appeal is not conducted by way of re–hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision–making process. [42] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. In reviewing the decision appealed against, the Commission may allow other evidence to be taken into account. Fair and reasonable [43] In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,16 Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals. [44] In State of Queensland (Queensland Health) v Hume,17 his Honour explained (citations omitted): [41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons. 16 [2024] ICQ 3. 17 Ibid. -- 12 of 19 -- 13 [42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning. [43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness. [44] Similar arguments made to the Commission have been rejected by the Commission. [45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning. … [48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely: • that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and • that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning. [49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact. [50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act. [51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole. … [53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department. [45] I have determined that the Decision to reduce Ms Burns' classification was unfair and unreasonable. My reasons follow. -- 13 of 19 -- 14 Should Ms Burns have been appointed to the TA004 level? [46] Clause 13.10.2(a) of the Certified Agreement 2018 provided to that progress to 004 Teacher Aide, a Teacher Aide must satisfy the following criteria: (i) Employment with the Department as a permanent Teacher Aide at OO3 (paypoint 4) for at least 12 months; (ii) Hold a Certificate III level qualification, equivalent or higher; (iii) Hold a current Senior First Aid certificate or equivalent; and (iv) Sign an Undertaking committing to perform higher level duties as outlined in Schedule 6 to be incorporated into a Personal Action Plan. [47] The same four criteria are required under cl 12.2(c) of the Certified Agreement 2022 for an employee to progress to the TA004 classification, which was operative from 31 May 2023.18 [48] The Department submitted that Ms Burns did not meet the minimum criteria to progress to the TA004 classification both now and at the time she was appointed to the TA004 position in July 2022. [49] Further, the Department submitted that Ms Burns does not meet the criteria of a "Preserved OO4 Employee" defined at cl 13.12.1 of the Certified Agreement 2018 and cl 12.3(a) of the Certified Agreement 2022, in that she was not a Teacher Aide "employed at the OO4 classification on 31 August 2019" who "will maintain their OO4 classification for the duration of their employment". [50] The Appellant submitted that cl 6 of the Department's Recruitment and Selection Procedure (the Recruitment Procedure)19 specifies that the successful applicant of a position "may be appointed to any pay point within a classification level" based on recognition of skills, knowledge and abilities. In the Appellant's view, the Recruitment Procedure takes precedence, and the Appellant was appointed to the TA004.01 pay point being in the TA004 classification level. That occurred when approval was sought by the then Business Manager and provided by the Department's human resource team. [51] The Appellant also submitted that cl 13.1(b) of the Certified Agreement 2018 and cl 14.1(b) of the Certified Agreement 2022 stipulate that a "part-time permanent Teacher Aide may be appointed to more than one position within the Department". In combining elements of the Certified Agreement 2018 that a Teacher Aide can be appointed to more than one position and the Recruitment Procedure specifying that an employee can be appointed to any pay classification level, the Appellant submitted that she was properly appointed to the TA004.01 pay point. This is because the Certified 18 Notwithstanding the Department and Appellant have referred to provisions of the Certified Agreement 2022 in their submissions, I have approached my consideration relevant to whether Ms Burns should have been appointed to the role by referring to the provisions of the Certified Agreement 2018 (noting that this was the agreement in operation at the time Ms Burns was appointed to the position). 19 Department of Education, Recruitment and Selection Procedure (effective 24 January 2022). -- 14 of 19 -- 15 Agreement 2018 states that an employee may progress to a TA004 pay point, which is not what occurred in the Appellant's situation as she was appointed to the Library Officer role at a pay point of a TA004.01. [52] I do not agree that Ms Burns should have been appointed to the TA004 position. Clause 13.12.1(a)(ii) of the Certified Agreement 2018 states that the parties to the agreement agree from 1 September 2019 "other than OO4 Teacher Aide (Educational Interpreter – Auslan) and OO4 Teacher Aide (Language Model – Auslan), the OO4 classification can only be accessed via the OO4 progression arrangements at clause 13.10 of this Agreement". The definition of "OO4" is provided in the Certified Agreement 2018 as the "Teacher Aide classification (Operational Officer) level 4. Unless stated otherwise, includes Teacher Aides employed as Auslan Language Model / Educational Interpreter and Braille". [53] That means that Ms Burns could not be appointed to the TA004 classification (a role in the level four classification), rather, she ought to have progressed to the TA004 classification by satisfying the criteria outlined at cl 13.10. It is clear Ms Burns did not meet those criteria, as she was not employed "with the Department as a permanent Teacher Aide at OO3 (paypoint 4) for at least 12 months". [54] The Recruitment Procedure outlines: The commencing salary will usually be the first pay point of the classification level. However, the successful applicant may be appointed to any pay point within a classification level based on recognition of skills, knowledge and abilities (excluding employees covered by the Teaching in State Education Award – State 2016, SO and SES roles). [55] I do not find that clause particularly relevant in this instance. The wording of the Recruitment Procedure is not that an employee can be appointed to "any classification level" it is that an employee can be appointed to "any pay point within a classification level". The issue here is that Ms Burns was ineligible to progress into the level four "classification level". It is not simply a matter of what pay point she was appointed to – it is the fact that she did not satisfy the criteria to progress into the TA004 classification. [56] Therefore, Ms Burns should not have been appointed to the TA004.01 position by the Department and that appointment occurred in contravention of the Certified Agreement 2018. Was the decision to reduce Ms Burns' classification to TA003.02 fair and reasonable given she was incorrectly appointed to the TA004.01 position? [57] The Respondent submitted that the Decision was fair and reasonable because:20 20 Respondent's submissions filed 5 July 2024, [19]. -- 15 of 19 -- 16 • The Appellant's appointment was undertaken in 'error' and there was no basis under the relevant industrial instruments for appointing Ms Burns to the TA004 classification level. • The reclassification of Ms Burns' role to the TA003 level was the most appropriate decision for them to make, and the Appellant's work duties were amended to reflect the pay classification adjustment. • The Decision was made free of bias, dishonesty or injustice to correct an error which occurred "during the advertising and appointment process" which "led to a contravention of the TA Agreement". • The Decision was "agreeable to reason and sound judgement, taking into account the correction of the error", and the Department's "obligation to ensure compliance with industrial instruments" as well as the "appropriate and defensible use of public funds". • The Decision had regard for Ms Burns' human rights. • It was a reasonably open decision to make based on the material before the decision-maker. [58] The Appellant submitted that a reduction in her classification cannot unilaterally occur in circumstances where she is not being disciplined pursuant to s 92 of the Public Sector Act 2022 (Qld) (PS Act 2022) or where her appointment has not been successfully appealed. I agree with that position. [59] I accept the Appellant's submission that there was no legislative authority in the PS Act for the Department to reduce Ms Burns' classification. It is inappropriate for the Department to remedy their contravention of an industrial instrument at a detriment to Ms Burns. Notwithstanding that Ms Burns should not have been appointed to the TA004 classification, there is no provision for the Department to reduce Ms Burns' classification under the premise that "the payment at the TA04 level was an administrative error".21 [60] I do not consider the appointment of Ms Burns to the TA004 classification to be an 'administrative error', rather, it was an oversight of the Department where Ms Burns was appointed to a position by the Department in contravention of the Certified Agreement 2018. Ms Burns worked successfully in that position for around seven months before the Department realised its mistake. It was not an appropriate response from the Department to: … firstly, review the roles and duties of this position. If they can reduce these to a TA03 level the Karen would be able to remain in this position. If this role does require the current responsibilities 21 Respondent's submissions filed 5 July 2024, Attachment 2, 1. -- 16 of 19 -- 17 to continue, the School would need to look at rescheduling some of the TA's in their current roles and look at moving a current TA04 into the Library position.22 [61] The expression of interest outlined that the Library Officer position was classified as "TA004 Library duties" for 15 hours per week.23 The advertising and appointing of a Library Officer in June to July of 2022 occurred at the TA004 level, despite the provisions contained within the Certified Agreement 2018. That seems to be because the duties of the Library Officer position are of a TA004 classification – which is clearly apparent to the Department considering they had to modify the Library Officer duties for Ms Burns when reducing her classification back to the TA003.02 level. The point at which Ms Burns was appointed to the TA004 Library Officer position – with the conscious approval from the Business Manager at the time and the relevant authorisation from human resources – the contravention of the Certified Agreement 2018 occurred. [62] I find it curious that the Department submitted the Decision was fair and reasonable by virtue of the fact that it was made to "ensure compliance with industrial instruments". The fact is, the Department did not comply with the Certified Agreement 2018 when they appointed Ms Burns to the position back in July 2022. That occurred some time ago and the Department cannot go back in time and 'fix' the problem of its own making, at the expense of Ms Burns. Ms Burns was appointed to a TA004 Library Officer position, rather than progressing to that position as was required under the Certified Agreement 2018. The Department cannot simply change the duties and responsibilities of the position to reduce it to a TA003 level for Ms Burns to occupy, when it was advertised at the TA004 level and Ms Burns was appointed to that classification. It is the Department's mistake to carry. I agree with the Appellant's submission that to diminish Ms Burns' wages on the basis of a claimed 'administrative error' is unfair and unreasonable. A mistake made by the Department does not give the Department a right to escape its obligations to Ms Burns. [63] Further, I do not accept that the Decision was agreeable to reason or sound judgment as the Department submits. Ms Burns was appointed to the position due to the Department's failure to interpret the provisions contained within the Certified Agreement 2018. That contravention occurred some seven months before realised by the Department. The reasonable approach would be to not disturb Ms Burns' employment, as approved by the authorised HR / Delegate of the Department. The Decision to reduce Ms Burns' classification is also a significant injustice to Ms Burns. Ms Burns did not mislead or misrepresent herself to the Department when applying for (and ultimately winning) the position – and now has been put to suffer a financial detriment. 22 Appellant's submissions filed 21 June 2024, Attachment E, 1. 23 Ibid Attachment A, 1. -- 17 of 19 -- 18 [64] It is for the reasons I have outlined above that I find the decision unfair and unreasonable. [65] The Appellant has submitted that as a matter of conventional estoppel, the Department cannot unilaterally reduce Ms Burns' pay grade. As I have determined that the Decision was unfair and unreasonable above, I will not address these submissions in my consideration. Should Ms Burns be reinstated to the TA004 level and back paid accordingly? [66] The Respondent submitted that Ms Burns' claim to be reinstated to the TA004 level is without merit, as the appointment was made in error outside the Certified Agreement 2022. Further, the Department has a duty to ensure all employees are appointed equitably in compliance with the Certified Agreement 2022.24 [67] The Certified Agreement 2022 outlines that the objective of the agreement is to: … (iv) implementing fair and equitable employment practices; … (vi) providing certainty for Teacher Aides and the Department in relation to remuneration outcomes for the life of the Agreement; [68] The Certified Agreement's objective is to provide employees certainty and security with respect to the monetary figure they will be renumerated at through their employment, so they can plan and manage their family budget accordingly. Ms Burns was provided certainty from the Department in July 2022 that her librarian duties would be remunerated at the TA004 classification. It is certainly not fair or equitable to reduce Ms Burns' classification for a mistake that was no fault of her own. [69] The Department submitted that: The Respondent acknowledges the detriment the applicant may believe has occurred as a result of this action; this however does not preclude the Respondent's responsibilities under the Financial Accountability Act 2009. The Respondent therefore submits it is reasonable to have rectified this appointment error, once identified. [70] I agree with the Appellant's response to this submission, that any responsibility the Department has under the Financial Accountability Act 2009 is unlikely to be unduly onerous in this specific instance.25 The expenditure amount in paying Ms Burns at the TA004 role is not large in the overall scheme of the Department's budget. Ms Burns had been receiving wages at the TA004 pay point for 15 hours a week for around seven months. The prejudice to Ms Burns by the effective demotion from TA004 pay to the TA003 classification level would undoubtedly be much greater. 24 Respondent's submissions filed 5 July 2024, [26], [28]. 25 Appellant's submissions in reply filed 12 July 2024, [7]. -- 18 of 19 -- 19 Conclusion [71] I do not accept that it was fair and reasonable to reduce Ms Burns' classification upon the Department's realisation that Ms Burns was incorrectly appointed to the position. The appointment was the Departments own oversight which caused them to contravene the Certified Agreement 2018. [72] Ms Burns was appointed to the position by the Department following her submitting an expression of interest and being successful in obtaining the position at the level advertised. The decision to appoint Ms Burns to the position was made with the knowledge and conscious approval from the Business Manager at the time, and the relevant HR authorisation. The Department cannot simply 'rectify' the issue by reducing Ms Burns' classification. In circumstances where Ms Burns is not subject to any disciplinary action and her appointment has not been successfully appealed, it is not a fair or reasonable approach to reduce her classification. [73] While the Department submitted that they have "a responsibility to ensure all employees are appointed equitably in compliance with the 2022 TA Certified Agreement", the fact remains that Ms Burns' appointment to the Library Officer role in July 2022 was approved despite the relevant progression criteria not being met. The Department must bear the consequences of that oversight. Orders [74] I order accordingly. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision: 1. The decision to reduce the Appellant's classification to TA003.2 was not fair and reasonable. 2. The Appellant is reinstated to the TA004.01 classification. 3. The Appellant's classification at TA004.01 is backdated to 21 August 2023. 4. The Respondent must pay the Appellant all entitlements associated with the backdating of her classification within 22 days of the release of this decision. -- 19 of 19 --