Bobbin v State of Queensland (Department of Education) [2021] QIRC 236

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Bobbin v State of Queensland (Department of Education) [2021] QIRC 236 PARTIES: Bobbin, Linda (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/115 PROCEEDING: Public Service Appeal – Conversion Decision DELIVERED ON: 06 July 2021 MEMBER: HEARD AT: Hartigan IC On the papers ORDER: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: LEGISLATION: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant has been acting in a position in a higher classification level – where position will no longer exist – consideration of "genuine operational requirements" Appointing a public service employee to a higher classification level – Directive 13/20, cl 4.2 cl 6, cl 7 Industrial Relations Act 2016 (Qld), s 562B Public Service Act 2008 (Qld), s 148, s 149C, s 197, s 295 Public Service and Other Legislation Amendment Act 2020 (Qld) CASES: Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 -- 1 of 10 -- 2 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for Decision Introduction [1] Ms Linda Bobbin appeals a decision of the State of Queensland (Department of Education) ("the Department") not to permanently appoint her to a position in which she has been acting at a higher classification level. [2] Ms Bobbin is permanently employed in the position of AO3, Senior Teacher (General) at Labrador State School within the South East Region of the Department. Ms Bobbin has been permanently employed by the Department since 22 March 2010. [3] Since 13 October 2016, Ms Bobbin has been performing in a position in a higher classification, being DP1 Deputy Principal (Primary) at Labrador State School ("the position"). Ms Bobbin's higher classification duties contract has been extended on 12 occasions. [4] On 22 February 2021, Ms Bobbin requested, pursuant to s 149C of the Public Service Act 2008 (Qld) ("the PS Act"), to be permanently converted to the position. [5] On 22 March 2021, the Department issued a decision refusing Ms Bobbin's request to be permanently appointed to the position ("the decision"). That is the decision which is the subject of the appeal. [6] The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld), which provides than an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission. [7] Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.1 Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. [8] As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.2 An appeal under Ch. 7, Pt. 1 of the PS Act is not 1 See the Public Service and Other Legislation Amendment Act 2020 (Qld). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). -- 2 of 10 -- 3 by way of re-hearing, rather, involves a review of the decision arrived at and the decision making process associated with it.3 [9] For the reasons contained herein, I have found that the decision was fair and reasonable. The decision [10] On 22 March 2021, the Department issued the decision and provided reasons in the following relevant terms: Reasons for Decision The temporary nature of your role is to perform work necessary to meet an unexpected short-term increase in workload. Your temporary role as DP1 Deputy Principal (Primary) at Labrador State School was created at the end of 2016 as a direct result of the increase in enrolments in 2016 and the further increase in enrolment indicatives for the 2017 school year. These increases in school enrolments peaked in 2018, at 928 student enrolments. Since this time, the school's student enrolments have been on a steady decline, with another anticipated loss expected in 2022. Since your temporary engagement commenced in October 2016, the school enrolments have dropped by 202 students. Whilst the school has continued to risk manage the position in 2021, the current Workplace Reform will cease on the basis that the additional Deputy Principal (Primary) allocation will cease in 2022. This process has highlighted that it would not be sustainable for Labrador State School to continue this role for 2022 and beyond due to the declining enrolment numbers. At this stage, the school is anticipating a further reduction of student numbers for the 2022 school year. … Relevant provisions of the PS Act and Directive 13/20 [11] In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 13/20: Appointing A Public Service Employee to a Higher Classification Level ("Directive 13/20"), including those provisions which I set out below. [12] Section 148 of the PS Act provides as follows: 148 Employment of fixed term temporary employees (1) A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d). (2) Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment if for any of the following purposes— (a) to fill a temporary vacancy arising because a person is absent for a known period; Examples of absences for a known period— approved leave (including parental leave), a secondment (b) to perform work for a particular project or purpose that has a known end date; 3 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). -- 3 of 10 -- 4 Examples— employment for a set period as part of a training program or placement program (c) to fill a position for which funding is unlikely or unknown; Examples— employment relating to performing work for which funding is subject to change or is not expected to be renewed (d) to fill a short-term vacancy before a person is appointed on tenure; (e) to perform work necessary to meet an unexpected short-term increase in workload. Example— an unexpected increase in workload for disaster management and recovery (3) Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis. Example— an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments (4) The employment may be full-time or part-time. (5) A person employed under this section does not, only because of the employment, become a public service officer. (6) The commission chief executive may make a directive about employing fixed term temporary employees under this section. [13] Section 149C of the PS Act relevantly provides: 149C Appointing public service employee acting in position at higher classification level (1) This section applies in relation to a public service employee if the employee— (a) is seconded to, under section 120(1)(a), or is acting at, a higher classification level in the department in which the employee holds an appointment or is employed; and (b) has been seconded to or acting at the higher classification level for a continuous period of at least 1 year; and (c) is eligible for appointment to the position at the higher classification level having regard to the merit principle. (2) However, this section does not apply to the following public services employees— (a) a casual employee; (b) a non-industrial instrument employee; (c) an employee who is seconded to or acting in a position that is ordinarily held by a non- industrial instrument employee. (3) The employee may ask the department's chief executive to appoint the employee to the position at the higher classification level as a general employee on tenure or a public service officer, after— (a) the end of 1 year of being seconded to or acting at the higher classification level; and (b) each 1-year period after the end of the period mentioned in paragraph (a). -- 4 of 10 -- 5 (4) The department's chief executive must decide the request within the required period. (4A) In making the decision, the department's chief executive must have regard to— (a) the genuine operational requirements of the department; 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 employment at the higher classification level. (5) If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person's engagement at the higher classification level has been extended; and (d) 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 employment at the higher classification level. (6) If the department's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commission chief executive must make a directive about appointing an employee to a position at a higher classification level under this section. (8) In this section— continuous period, in relation to an employee acting at a higher classification level, has the meaning given for the employee under a directive made under subsection (7). required period, for making a decision under subsection (4), 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. [14] The phrase "genuine operational requirement of the department" is not defined in the PS Act or Directive 13/20. The phrase in the context of s 149C of the PS Act, was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women),4 Merrell DP relevantly stated:5 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. 4 [2020] QIRC 203. 5 Ibid, [37] – [38]. -- 5 of 10 -- 6 The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things: • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. (Citations omitted) [15] Directive 13/20 came into effect on 25 September 2020. Directive 13/20 recognises that the PS Act establishes employment on tenure as the default basis of employment in the public service and sets out the circumstances where employment on tenure is not viable or appropriate. [16] Clause 4.2 of Directive 13/20 sets out examples of certain circumstances that would support the temporary engagement of an employee at a higher classification level, as follows: 4.2. Secondment to or assuming the duties and responsibilities of a higher classification level should only be used when permanent appointment to the role is not viable or appropriate. Circumstances that would support the temporary engagement of an employee at a higher classification level include: (a) when an existing employee takes a period of leave such as parental, long service, recreation or long-term sick leave and needs to be replaced until the date of their expected return (b) when an existing employee is absent to perform another role within their agency, or is on secondment, and the agency does not use permanent relief pools for those types of roles (c) to perform work for a particular project or purpose that has a known end date (d) to perform work necessary to meet an unexpected short-term increase in workload [17] Clause 6 of Directive 13/20 sets out the decision-making process when determining whether to permanently appoint an employee to a higher classification level, as follows: 6. Decision making 6.1 When deciding whether to permanently appoint the employee to the higher classification level as a general employee on tenure or a public service officer, the chief executive may consider whether the employee has any performance concerns that have been put to the employee and documented and remain unresolved, that would mean that the employee is no longer eligible for appointment to the position at the higher classification level having regard to the merit principle. 6.2 In accordance with section 149C(4A) of the PS Act, when deciding the request, the chief executive must have regard to: (a) the genuine operational requirements of the department, and -- 6 of 10 -- 7 (b) the reasons for each decision previously made, or deemed to have been made, under section 149C of the PS Act in relation to the employee during their continuous period of employment at the higher classification level. 6.3 In accordance with section 149C(6) of the PS Act, if the chief executive does not make the decision within 28 days, the chief executive is taken to have decided that the person’s engagement in the agency is to continue according to the terms of the existing secondment or higher duties arrangement. 6.4 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions occurring by operation of section 149C(6) of the PS Act. [18] Clause 7 of Directive 13/20 provides that a decision maker who refuses a request must provide a statement of reasons, as follows: 7. Statement of reasons 7.1 A chief executive who decides to refuse a request made under clause 5 is required to provide a written notice that meets the requirements of section 149C(5) of the PS Act (Appendix A). The notice provided to the employee must, in accordance with section 27B of the Acts Interpretation Act 1954: (a) set out the findings on material questions of fact, and (b) refer to the evidence or other material on which those findings were based. 7.2 A written notice is not required to be prepared ‘after the fact’ to support a deemed decision made under clause 6.3. [19] Section 295 of the PS Act provides for the transitional provisions for the application of s 149C of the PS Act for employees acting at higher classification levels immediately before the commencement of s 149C of the PS Act. In summary, s 295(3) of the PS Act provides that for s 149C, the period for which the person has been continuously acting at the higher classification level before the commencement will be taken into account for working out how long the person has been acting at that level for a continuous period for s 149C(1)(b). Was the decision fair and reasonable? [20] The following matters are not in dispute: (a) that Ms Bobbin is eligible to appeal the decision pursuant to s 194(1)(e)(ii) of the PS Act; and (b) that Ms Bobbin is eligible to apply for conversion to the position at a higher classification level in accordance with s 149C(1) of the PS Act. [21] The Department contends that the genuine operational requirements of the Department do not support Ms Bobbin's request for the conversion of her employment to the position at the higher classification level. Essentially, the Department relies on the fact that it intends to discontinue the position at the end of the 2021 school year. -- 7 of 10 -- 8 Genuine operational requirements of the Department [22] As noted above, s 149C(4A)(a) of the PS Act and clause 6.2(a) of the Directive provides that the decision maker must have regard to the "genuine operational requirements of the Department". [23] It has been held,6 that when construed in context, the phrase "genuine operational requirements of the Department" would, at least, include consideration of the following: … Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time, to…position at the higher classification level. [24] In her submissions, Ms Bobbin submits that initially she was engaged on a short-term contract which sat behind a permanent long-term Deputy Principal position at Labrador State School. Ms Bobbin submits the employee in the permanent long-term Deputy Principal position has been assessed as not being able to return to her substantive position although that position is yet to be deemed vacant. [25] I consider Ms Bobbin's submission with regard to these matters as holding limited relevance to the appeal. Relevantly, Ms Bobbin's short-term contract ended in October 2017. Further, the personal circumstances applying to employees who hold other positions within the Department are not matters relevant to the decision made by the decision maker and accordingly are not relevant to this appeal. [26] Ms Bobbin contends that with the creation of the Workplace Reform Permanency ("the workplace reform"), in October 2017, the then Principal placed her on a year-long contract and informed Ms Bobbin that after this time there would be a merit process to create a permanent position. [27] Ms Bobbin contends that following the commencement of a new Principal in October 2018, she was informed that the Principal did not know her well enough yet for the merit process to begin and would continue the workplace reform for another year with the approval from the Local Consultative Committee, which was granted. Ms Bobbin's contract was further extended to 19 January 2022 after having that extension approved by the Local Consultative Committee. [28] Ms Bobbin contends that successive Principals and the Department failed to adhere to the workplace reform policy which states: No reform may be trialled for more than three years i.e. by the end of the third year of a trial the decision must be made to make the workplace reform permanent or abandon the trial completely. 6 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 per DP Merrell, [40]. -- 8 of 10 -- 9 [29] Ms Bobbin argues that had the Department not failed to adhere to the workplace reform policy she "would have been made permanent at the end of 2020". [30] On the limited information before me with respect to the workforce reform process, it appears that the temporary workforce reform position was extended on several occasions. This approval process appears to have been conducted with the involvement of the Local Consultative Committee, who permitted the position to continue until the end of the 2021 school year. [31] In any event, any complaint Ms Bobbin may have with regard to that approval process is a separate matter to the matters to be considered in this appeal. [32] Ms Bobbin's submits that in regards to the reasons given by the Department in terms of declining enrolment rates, that in a meeting in January 2021 between the Principal other Deputy Principals, the Principal advised that they were planning to seek permanency for Ms Bobbin due to: • One (1) permanent DP was not able to ever return to her position for medical reasons and was expected to relinquish her position some time this year and • The expected retirement of another permanent DP at the end of 2022. [33] The Department did not reply to the submissions made by Ms Bobbin regarding the alleged representations made by the Principal to Ms Bobbin in January 2021. However, it is noted that those representations, if they were made, do not relate to declining enrolment rates, but rather, relate to positions that are not the position Ms Bobbin has made her request with respect to. The relevant position is the position that Ms Bobbin has been working in and that is due to be discontinued at the end of the 2021 school year. Further opportunities may be available with respect to other positions in the future, however those positions and what may occur with respect to them in the future are not matters relevant to the request made by Ms Bobbin. [34] The Department submits that since 2017, there has been a steady decline in student numbers at Labrador State School. The Department submits that Queensland Government Statistician's Office has forecasted student enrolments in the coming years as: • 2021: 783 students • 2022: 763 students • 2023: 745 students [35] The Department submits that as the enrolment figures for 2021 were confirmed at 772, which is less than forecasted student enrolments. Accordingly, it contends that the predicted enrolment rates for 2022 and 2023 are conservative. [36] The Department contends that Labrador State School currently engages two permanent Deputy Principals and receives allocated funding of 0.5 FTE for a third part-time Deputy Principal role. This third role has been “topped up” by the school through 0.5 FTE Investing for Success (I4S) funding, allowing Ms Bobbin to be engaged temporarily as 1.0 FTE Deputy Principal during 2017-2021. -- 9 of 10 -- 10 [37] The Department submits that with the decline in student numbers experienced in 2021, as well as that predicted for 2022 and 2023, the Deputy Principal allocation will decrease by 0.5 FTE in 2022. The Department submits that the decision to discontinue the workplace reform temporary Deputy Principal position from the commencement of the 2022 school year, was a decision made with regard to the effective, efficient and appropriate management of the school’s resources. [38] It is clear from the terms of the reasons for the decision, that the decision maker had regard to the matters referred to in the Department's submissions. [39] I accept that the declining numbers of student enrolments was a consideration and formed the basis for the decision to discontinue the funding for the position. I consider that the discontinuance of the position means that it would not be viable or appropriate to appoint Ms Bobbin to the position. [40] Accordingly, when considering the operational requirements of the Department, including managing the Department in a way that promotes the effective, efficient and appropriate management of public resources, I consider that the reasons provided by the decision maker support a conclusion that the refusal to appoint Ms Bobbin to the position at the higher classification level was for a genuine operational requirement of the Department. [41] For the forgoing reasons, I consider the decision to be fair and reasonable. Order [42] I make the following order: 1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 10 of 10 --