Vale v State of Queensland (Department of Education)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION PARTIES:	Vale v State of Queensland (Department of Education) [2025] QIRC 089 Vale, Helen (Appellant) v State of Queensland (Department of Education) (Respondent)
CASE NO:	PSA/2025/1
PROCEEDING:	Public Sector Appeal – Appeal against a fair treatment decision
DELIVERED ON:	26 March 2025
DATES OF WRITTEN SUBMISSIONS:	Appeal Notice (2 January 2025) Respondent's submissions (23 January 2025) Appellant's submissions in reply (14 February 2025) Respondent's further submissions (21 February 2025)
MEMBER:	Pidgeon IC
HEARD AT:	On the papers
ORDERS:	1. The decision appealed against is confirmed.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a fair treatment decision – where the Appellant submits that is not fair for the Respondent to not convert her additional hours to permanent – where the appeal relates to colleagues having their employment converted from temporary to permanent – where the Department did not breach the Agreement – consideration of the effect of delays in dealing with the Appellant's grievances – where the decision appealed against is fair and reasonable
LEGISLATION AND OTHER INSTRUMENTS:	Public Sector Act 2022 (Qld) s 4(c)(ii), 121, 129, 133 Review of non-permanent employment (Directive 02/23) cl 11

Reasons for Decision

Background

Miss Helen Vale ('the Appellant') has been employed by the State of Queensland (Department of Education) ('the Respondent') as a teacher aide at Urangan State High School ('USHS') since 20 August 2020.
In or around September of 2024, Miss Vale contacted the Business Manager of USHS with respect to what she considered to be a breach of the Department of Education Teacher Aides' Certified Agreement 2022 ('the Agreement').
Miss Vale submits that the Respondent was converting a number of temporary teacher aides (who had been employed by the Respondent for less time than Miss Vale) to the standard job model ('SJM'), ahead of pre-existing permanent staff whose length of employment exceeded those temporary teacher aides, such as Miss Vale.
On 27 October 2024, Miss Vale raised a stage one dispute pursuant to s 4.3(a) of the Agreement to the Principal of USHS. Miss Vale met with the Principal of USHS on 8 November 2024.
On 11 November 2024, the Principal issued a written response to Miss Vale confirming that the hours worked by temporary employees on an ongoing basis were not hours that were available for existing permanent employees under the Agreement.
On 22 November 2024, Miss Vale was issued a stage two response on behalf of the regional HR team which corroborated the 11 November 2024 letter.
On 23 November 2024, Miss Vale submitted a stage 3 dispute which was decided in a written letter dated 13 December 2024. It is this decision that Miss Vale appeals.

The decision

Miss Vale appeals the decision of Mr Damien Cricchiola, Executive Director, Integrity and Employee Relations ('the decision-maker') dated 13 December 2024 ('the decision'). With regard to the Public Sector Act 2022 (Qld) and the Agreement, the decision-maker found that:[1]
…
[1] Appeal Notice filed in the Industrial Registry on 2 January 2025, Attachment 1, 3.
I note you are seeking additional hours in your role as a teacher aide at Urangan State High School and have raised your concern about the order in which available teacher aide hours are assigned at the school level in consideration of the terms of (and interaction between) the Agreement and the Directive.
Legislative Analysis
The Directive is legislatively mandated by the Public Sector Act 2022 (PS Act) and therefore works independently of the provisions of the Agreement. Under section 113 of the PS Act, an employee can request a review of their employment after 12 months.
Sections 114 and 115 of the PS Act provide the legislative authority for the Directive and stipulate that the department must take action to review an employee's employment status and decide to offer to convert the employee's employment to a permanent basis only if:
a)there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
b)the employee is suitable to perform the role; and

c)any requirements of an industrial instrument are complied with in relation to the decision.

Section 8.1 of the Agreement provides "the objective under the new employment model is to employ Teacher Aides on an optimal part-time arrangement called a standard job." Section 8.1(e) of the Agreement states:
"This Agreement provides a framework to facilitate the employment of Teacher Aides (currently engaged on less than 30 hours per week) on the optimal part-time arrangement through systematic access to hours as they become available or vacancies arise. The system will actively prioritise shifting existing permanent Teacher Aides to the optimal part-time arrangement."
Part 10 of the Agreement in summary provides for the filling of available or vacant hours where they become available from time to time. Where this occurs, the available or vacant hours are offered to teacher aides through a consultative process in accordance with Part 2 of the Agreement, and consideration of individual requests. The Agreement process stipulates that teacher aides who have been employed for longer than two (2) years may be offered available hours in the first instance.[2]
[2] Department of Education Teacher Aides' Certified Agreement 2022 s 10.3(e).
The department therefore considers the review of an eligible temporary or casual employee in accordance with (the) Directive is a separate and unrelated process to that set out in the Agreement, and in effect, takes priority over the distribution of 'available or vacant hours' as per Parts 8 and 10 of the Agreement. The hours performed by existing temporary staff are effectively 'quarantined' for the purposes of temporary/casual conversion to permanent employment.

I do however acknowledge that Section 5.7 of the Agreement provides a commitment to the conversion of fixed term temporary or casual employment to permanent status, however, the hours of a temporary or casual employee entitled to a review cannot be considered 'available or vacant hours', as prescribed by parts 8 and 10 of the Agreement.
The department's Guideline for Filling Teacher Aide Vacancies provides a process for the distribution of vacant hours when they become available (i.e. hours that are not attached to a temporary/casual teacher aide or are genuinely available/vacant due to the cessation of employment, leave or a reduction in hours). It is noted that this process does not include reference to, or consideration for conversion of temporary employment status under the Directive.

The decision-maker goes on to address a number of other matters: school-based consultation process; expression of interest process, school funding and order of service.
The decision-maker then states:
Determination
Noting the above considerations, I do not consider the department has contravened the terms of the Agreement by converting employees from temporary to permanent status in accordance with the Directive prior to offering their hours to existing permanent staff.
The decision-maker then sets out some recommendations and next steps:
I note Mr McCormack in his email to you on 11 November 2024 committed to working with the regional HR team to identify what schools may have permanent hours and to work with other schools to identity additional hours that you may be able to be assigned. As such, I encourage you to engage further with Mr McCormack about any available hours for teacher aides that may become available at Urangan State High School or other local schools.
I have raised your concerns with HR Business Partnering North coast region and confirm that available hours are posted on the relevant SharePoint Site…. Existing permanent teacher aides may submit an expression interest for any available hours. I understand you have recently lodged a new EOI however if this is not the case, you are encouraged to do so at your earliest opportunity.
I am informed that Mr McCormack is prepared to provide you with ongoing support in this process.
In considering the matter, I make the following recommendations:
· management and administration staff at Urangan State High School:
-are reminded of the importance of ensuring discretion and clarity in communication with employees about upcoming vacancies and additional hours, to ensure that employees understand the availability of additional hours is subject to a range of variables that are often subject to change;
-are provided guidance in relation to the correct process for managing available hours for teacher aides under the Agreement and Directive.

· the department considers a review with the objective of clarifying the relevant departmental guidance material relating to the allocation of teacher aide hours, including addressing the interaction between the Agreement and Directive.

Appeal principles

Section 562B of the IR Act provides that the appeal is to be decided by 'reviewing the decision appealed against' and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[3]
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) For another appeal – set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Framework and Other Instruments

Section 131 of the Public Sector Act 2022 (Qld) ('the PS Act') lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
Section 129 of the PS Act relevantly states:

129 Definitions for part
…
fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

Section 133 of the PS Act explains who may appeal a fair treatment decision:

133 Who may appeal
…
(d) for a fair treatment decision—a public sector employee aggrieved by the decision;

Miss Vale's reasons for appeal and submissions

Miss Vale complains that her permanent hours have not been increased to 30 to align with the SJM set out in the Agreement. Miss Vale believes she has been treated unfairly as three temporary staff have had their employment converted to permanent while she remains working continuing temporary hours in addition to her permanent hours.[4]
[4] Appeal Notice (n 1), page 1 of 5.
Miss Vale believes that despite being a permanent employee, the portion of her hours which are temporary should be subject to a review of temporary fixed-term employment. Miss Vale says that she is both a permanent and a contract employee. In support of this, Miss Vale provides a hyperlink to what she says is Irish case law about fixed-term employees.[5]
[5] I looked at the article Miss Vale provided which was a commentary on a 2021 Irish case which addressed that country's Fixed-Term Work Act. It is not necessary for me to refer to this case in order to consider Miss Vale's submissions that she should have access to a legislative review of the portion of her employment which is temporary.
Miss Vale provides a brief employment history and explains why she did not seek a review of the decision to convert three temporary teacher aides to permanent employment at the time the decision was made.[6]
[6] Appeal Notice (n 1), page 2 of 5.
Miss Vale challenges the interpretation of the legislation as set out in Mr Cricchiola's decision. Miss Vale states that there is no legislative basis for the statement in the decision that 'the hours attached to a temporary staff members are effectively quarantined' from the consultation process. Miss Vale then states that there is nothing in 'our temporary contracts that states who we are backfilling'.[7]
[7] Ibid, page 2 of 3.
Miss Vale says that the Business Manager and Principal can 'manipulate the backfilling arrangements, transferring staff to adjust who they are backfilling as they see fit'. Miss Vale says the relevance of this is that 'when the staff that were being backfilled resigned, and hours did in fact become 'available' in December 2023, they should have been offered to existing permanent staff and not to temporary staff looking to convert'.[8]
[8] Ibid, page 4 of 5.
It appears that the point Miss Vale makes here is that temporary staff should not have been converted, rather hours that were to be made permanent should have been allocated to her. Miss Vale relies upon her interpretation that cl 10 of the Agreement 'is to be placed in priority over the Public Sector Act 2022'.[9]
[9] Ibid.
Miss Vale's appeal notice is accompanied by the decision she is appealing and an extensive set of correspondence which forms the history of her grievance.
Respondent's submissions
The Respondent submits that the decision to deny additional hours[10] to Miss Vale was '… fair and reasonable, as it was made in accordance with the terms of the Agreement'.[11]
[10] The Respondent is referring to permanent hours.
[11] Respondent's submissions filed in the Industrial Registry on 23 January 2025, [14].
Furthermore, the Respondent submits that the decision-maker took the following into account:[12]
[12] Ibid [15].
a) The terms of the Industrial Relations Act 2016 (IR Act);
b) The terms of the Agreement;

c) The terms of the Directive;

d) Departmental policies, practices and procedures; and

e) The matters set out in section 4(c) of (the) PS Act, in particular: Section 4(c)(ii) to maximise the employment security and permanency of employment; and Section 4(c)(v), by ensuring fair and accountable decision-making and access to independent reviews and appeals.

The Respondent lists relevant provisions of the PS Act and the Review of non-permanent employment (Directive 02/23) ('the Directive').[13]
[13] Ibid [19]–[22].
The Respondent also lists provisions of the Agreement, notably:
·Part 8.1(c);[14]
·Part 8.1(e);[15]
·Part 10.2;[16] and
·Part 10.3(e)[17]
[14] Ibid [23].
[15] Ibid [24].
[16] Ibid [26].
[17] Ibid [27].

The Respondent submits that:[18]
[18] Ibid [29].
where teacher aide hours become available, the school Principal/Site Manager is required to follow the five-step process in the Guideline (in accordance with the Agreement), namely to:
i.Consider required and requested high compassionate transferees (Group consultation required);
ii.Distribute hours to permanent teacher aides in-school (group consultation required);

iii.Consider permanent teacher aides in cluster schools;

iv.Consider compassionate and required transfers; and

v.Recruitment.

The Respondent submits that the Guideline (specifically page 5) '… confirms the longest serving teacher aides (requesting increased hours) are to be moved to the SJM first, with further offers made in order of length of service'.[19]
[19] Ibid [30].
The Respondent notes that once the consultation process under the Guideline has occurred, and available hours are filled by a temporary employee via a recruitment process, those hours are effectively quarantined from conversion under the Agreement, as consultation has already occurred. The Respondent states that the conversion process for a temporary employee under the Directive is a separate and unrelated process to the distribution of 'available or vacant hours' under Parts 8 and 10 of the Agreement.[20]
[20] Ibid [31]–[32].
The Respondent says that as a result, Miss Vale does not have an entitlement under the Agreement to increase her hours (although this may occur through the consultation process). The Respondent also says that Miss Vale does not have an entitlement to be offered additional hours prior to the conversion of temporary employees to permanent status under the Directive.[21]
[21] Ibid [33].
The Respondent submits that were consultation required under the Agreement prior to a temporary employee being able to request conversion under the Directive (after the minimum 1-year continuous service period), it would limit a temporary employee's opportunity to achieve employment security via permanent employment, which would be at odds with the objects of the PS Act as set out in section 4(c)(ii).[22]
[22] Ibid [34].
The Respondent further submits that:
38.     In December 2023, the Appellant declined 12 additional hours at Hervey Bay SHS for the 2024 school year, in order to continue working additional temporary hours at Urangan SHS with no guarantee of permanency.
39.     The Appellant did not raise concerns about the hours at Hervey Bay SHS until her correspondence with the Business Manager, Urangan SHS, on 3 September 2024 (approximately 10 months after the appellant had declined these additional hours).
40.     A consultation process under the Agreement was finalised in April 2024 at Urangan SHS, and the available hours under the Agreement were allocated in order of length of service. This also resulted in…the Appellant receiving additional hours.
41.     Should additional hours become available at Urangan SHS, they will be subject he process outlined under the Guideline. Further, if hours were to become available, the Appellant would not be offered those additional hours until other longer serving teacher aides at Urangan SHS were first provided the opportunity to increase their hours.
42.     The consultation process under the agreement considers more than just whether a permanent teacher aide wishes to increase their hours. This includes determining which teacher aides have genuine capacity to work the additional hours and the impact at the school (including the impact on the workforce, timetabling and most importantly supporting students).
43.     The Urangan SHS Principal's correspondence to the Appellant dated 11 November 2024 confirmed he was working with the regional HR team to identify whether there were any additional hours available for the Appellant. this was supported by the Decision of 13 December 2024 and remains an active consideration.
Miss Vale's submissions in reply
Miss Vale filed submissions in reply to the Respondents in the Industrial Registry on 14 February 2025.[23]
[23] Appellant's submissions in reply filed in the Industrial Registry on 14 February 2025.
Miss Vale submits that the Respondent has misapprehended the Appellant's grievance, stating:[24]
Paragraph 3 of the Respondent's Submission states the Appellant "is dissatisfied with the Respondent's decision not to increase her hours…". However, the respondent (sic) was already working 30 hours per week and is dissatisfied with the Respondent's decision to convert three temporary teacher aides employed for a lesser period than the Appellant (newer staff), to the standard job model (SJM) ahead of the Appellant in conflict with the Department of Education Teacher Aides' Certified Agreement 2022…
[24] Ibid [1].
Furthermore, Miss Vale submits that the Respondent 'assumes that the Appellant would be satisfied with permanent hours at another school in the area'.[25] Stating that she '… wishes to remain at [USHS] and should not be required to change schools to secure permanent hours before newer staff'.[26]
[25] Ibid [2].
[26] Ibid.
Miss Vale submits that the Respondent '… suggests the Appellant was taking hours from the newer staff',[27] however, Miss Vale submits she '… was already working 30 hours per week and did not seek extra hours.'[28] Miss Vale submits that '… available hours should have been used to convert the temporary hours of existing permanent staff before those of newer staff, ensuring the total hours worked remained the same for all parties'.[29]
[27] Ibid [3].
[28] Ibid.
[29] Ibid.

Miss Vale disagrees with the timeline of the dispute as described by the Respondent, submitting that she had '.. raised her concerns about her hours on multiple occasions before this…'.[30] She supports this assertion by attaching emails between the Appellant and Respondent.[31]
[30] Ibid [4].
[31] Ibid Attachment 4.
Miss Vale submits that at the time she met with the Principal in October of 2024, she '… was unaware of the dispute resolution process at that time'.[32] She says that she met with the Business Manager of USHS in 'good faith' who had determined to 'involve the Principal' and that it was only after six-weeks had passed without contact from the Principal, that Miss Vale wrote the Employment Review team.
[32] Ibid [5].
Miss Vale says that, while she did not know that she had made a stage 1 grievance at the time, if this is perceived to be one, then pursuant to part 4.3(a)iii of the Agreement, that the Principal met with Miss Vale more than two weeks after she had raised her concerns, that is in contravention of this part of the Agreement.[33]
[33] Ibid [6].
Miss Vale says that the written response provided by the Principal 'neither explained the decision, nor offered avenues for appeal, and was misleading'.[34]
[34] Ibid [7].
In response to the Respondent's submission that the Principal suggested that he was working with the regional Human Resources team to identify additional hours for Miss Vale, Miss Vale says that she:[35]
… responded with concerns about the feasibility of this but the Principal has not replied or made any further contact to genuinely support her or understand her individual needs.
[35] Ibid [8].
With respect to the interaction between the Agreement and the Directive, Miss Vale says that the Respondent has failed to cite a legislative basis to support the claim that the Directive takes priority over the Agreement.[36]
[36] Ibid [10].
Miss Vale makes various submissions about the timelines associated with the process and says that the Department should be held accountable for the timeframes set out in the Agreement. Miss Vale says that the provision of the Stage 3 decision to her on the last day of the school term meant that she had to spend the lead-up to Christmas preparing her Stage 4 dispute.
Miss Vale points to Part 5, s 229(1) of the PS Act which says '(t)his section applies if a directive deals with a matter all or part of which is dealt with under an industrial instrument' and s 229(2), which states that '(t)he industrial instrument prevails over the directive to the extent of any inconsistency'. Miss Vale says that the primary focus of the agreement is on the transition of existing permanent staff to the SJM and that this is inconsistent with the application of the Directive. Miss Vale says that this means the Agreement should prevail over the Directive.[37]
[37] Ibid [11]–[12].
Miss Vale disputes the Respondent's submission that school-based consultation had occurred in accordance with Part 2 of the Agreement. Miss Vale points to Part 2(e) of the Agreement which states that 'consultation involves more than a mere exchange of information. For consultation to be effective, the participants must be contributing to the decision-making process not only in appearance, but in fact'.[38]
[38] Ibid [13].
Miss Vale attaches a PowerPoint presentation regarding teacher aide hour allocation presented at the consultation meeting on Friday 22 March 2024. Miss Vale says:[39]
Slide 3 shows that [Staff Member A], [Staff Member B] and [Staff Member C] had resigned, while [Staff Member D] and [Staff Member E] had been converted to temporary to permanent (25 hours each at that time). Slide 5 shows that another staff member, was being reviewed for temporary to permanent conversion and was successful, before any remaining hours were allocated to existing permanent teacher aides. In total, 65 vacant hours were available, but teacher aides were not consulted or given the opportunity to discuss how these hours should be allocated.
[39] Ibid [13]; I have removed the names of staff members which were originally included in Miss Vale's submissions.
Miss Vale submits that on 7 December 2023, she was verbally advised by the Business Manager that there were available hours, but due to there only being two days left of school, the consultation process would be undertaken after Day-8 numbers were confirmed. Miss Vale says that she had a verbal conversation about hours after she copied the Business Manager into an email to another school, confirming her intention to apply for permanent hours there. Miss Vale says that during the conversation, she was led to believe that her temporary hours would be converted to permanent after the Day-8 consultation process. Miss Vale said that after the PowerPoint presentation referred to above, she sought clarification on whether the hours had been fully allocated and was told 'no, it should still be okay'. With reference to a union 'Kit for Delegates', Miss Vale says that consultation should occur whenever there is a change to teacher aide numbers, not only in the Day-8 process.[40]
[40] Ibid [14].
Regarding the Respondent's submission that she had declined additional hours at Hervey Bay SHS, Miss Vale says that she was never offered additional permanent hours and could not have declined them. Miss Vale says that she submitted an EOI to explore the possibility of working between the two schools to secure permanent hours but that the Business Manager had dissuaded the Appellant from pursuing this option. Miss Vale says that she withdrew the EOI in good faith, trusting that the guaranteed permanent hours she had been promised would 'materialise'.[41]
[41] Ibid [15].
Miss Vale accepts that this was a risk she took and that no written guarantee had been given to her, however, she says that the Business Manager was 'very convincing'. Miss Vale says that the Business Manager asked Miss Vale to think about whether to withdraw the EOI. Miss Vale says that she decided to 'trust the Business Manager's clear intentions, believing it would be a better outcome for the students (due to consistency), would allow her to continue working with a great team, and would make her personal life easier, as her children also attend USHS and the nearby state school.'[42]
[42] Ibid [15].
While the Respondent says that hours are based on operational requirements, Miss Vale says that there was to be no change in the total hours worked among teacher aides. Miss Vale says that everyone was to retain the same hours they were already working, with the only change being the conversion of her hours to permanent, before those of newer staff. Miss Vale points to the PowerPoint sheet as evidence of the hours being worked prior to the consultation.[43]
[43] Ibid [16].
Miss Vale provides calculations which she says demonstrate that there were available hours to be allocated to her on a permanent basis to reach the SJM.[44]
[44] Ibid [17].
Miss Vale goes on to repeat her submission that the Department's approach was in error as the Agreement overrides the Directive.[45]
[45] Ibid [18]–[19].
Miss Vale says that she has 'been employed on rolling contracts for 4.5 years, living in constant uncertainty' and that this does not demonstrate a reasonable attempt on the part of the employer to maximise security and permanency of employment pursuant to s 4(c)(ii) of the PS Act.[46]
[46] Ibid [20].
Miss Vale submits that the decision is not fair as it is occasioned by bias, dishonesty and injustice.[47] Miss Vale submits that the decision is not reasonable as the Respondent has 'not provided a logical or reasoned explanation for disregarding the provisions in the Agreement by converting temporary staff's hours before considering the Appellant's hours, despite her long-standing employment'. Miss Vale says that given her continuous contracts for 4.5 years, the judgment to prioritise temporary staff over permanent seems neither reasonable nor sound and would likely not pass the 'pub test' in terms of fairness or public expectation.[48]
[47] Ibid [22].
[48] Ibid.
Miss Vale says that the process has 'marked by a lack of transparency, making it difficult for the Appellant to fully understand the rationale behind the decisions that have been made'.[49]
[49] Ibid [23].
With regard to the Respondent's description of 'quarantined hours', Miss Vales says there is no legislative basis for this claim. Miss Vale says that temporary staff on contracts do not have any entitlement to 'own' hours allocated to the permanent staff they are temporarily backfilling for. Miss Vale says that there is no foundation for this concept and submits that its introduction only adds confusion to the matter.[50]
[50] Ibid [25].
In response to the Respondent's submission that she does not have an entitlement to increased hours or an offer of additional hours, Miss Vale says that she did not seek to increase her hours, rather she sought to have her temporary hours converted to permanent in order of service as per the Agreement.[51]
[51] Ibid [27].
Miss Vale says that the Respondent's stance that requiring consultation before a temporary employee can request conversion would limit their chance for job security implies that it is acceptable for newer staff to be prioritised over an existing permanent employee who has been waiting for 4.5 years. Miss Vale says that if this continues, she may never achieve the SJM, as newer staff will always take precedence. Miss Vale says that the first-come, first-served approach in the Agreement ensures fairness based on time served.[52]
[52] Ibid [28].
Miss Vale submits that she is both a permanent staff member and a temporary staff member as she holds a temporary contract. Miss Vale says that she is unable to find any legislation that states she should not be treated as temporary for the portion of her employment which is a temporary contract.[53]
[53] Ibid [29].
Miss Vale seeks to clarify the timeline of the stages of the grievance and provides an explanation for her delay in addressing the matter.[54]
[54] Ibid [34].
Miss Vale says the Respondent's submission that the consultation process resulted in her receiving additional hours is incorrect. Miss Vale says that she received an extension of temporary increase of hours from 25-30 per week on 29 November 2023, effective from 18 January 2024 and that this change was unrelated to the consultation process.[55]
[55] Ibid [35].
The Respondent's submissions in reply
The Respondent filed further submissions in the Industrial Registry on 21 February 2025.[56]
[56] Respondent's further submissions filed in the Industrial Registry on 21 February 2025.
The Respondent submits that the conversion of three temporary employees to permanency '… occurred prior to the 2024 post Day-8 consultation process at [USHS], therefore these hours were not 'available' for consultation as part of the available hours at USHS in 2024'.[57]
[57] Ibid [4(a)].
Furthermore, the Respondent submits that:[58]
the conversion process applicable to a temporary employee under Directive 02/23 – Review of non-permanent employment (Directive) is a separate and unrelated process to the distribution of 'available or vacant hours' under Parts 8 and 10 of the Agreement
[58] Ibid [4(b)].
The Respondent says that Miss Vale '… did not have an entitlement to be offered additional hours prior to the conversion of temporary employees to permanent under the Directive'.[59]
[59] Ibid [4(c)].
The Respondent clarifies the following:[60]
[60] Ibid [5].
a.As at 22 March 2024, there were 16.01 permanent hours and 82.68 temporary hours available to be consulted about after the day-8 student numbers and staffing allocations were assigned for 2024
b.The following allocations occurred as a result of that process:
i.Employee (initials DB) owned 20 permanent hours and increased by 10 hours to 30 hours – SJM aligned;
ii.Employee (initials TD) owned 25.25 permanent hours, and increased by 4.75 hours to 30 hours – SJM aligned;
iii.Employee (initials SR) owned 25 permanent hours, and increased by 1.25 hours to 26.25 hours – not SJM aligned due to available permanent hours having been depleted, and as the employee was on leave, they were not allocated any temporary hours;
iv.The Appellant was the fourth employee in order of service, owning 15.5 hours, and she accepted 14.5 temporary hours to take her to 30 hours per week – SJM aligned;
v.Employee (initials AM) owned 15.75 permanent hours, and increased by 14.25 temporary hours to 30 hours – SJM aligned; and
vi.Employee (initials VC) owned 15 permanent hours, and increased by 3 temporary hours to 18 hours (SJM aligned).
The Respondent submits that '… all Teacher Aides employed at Urangan SHS working permanent hours and who requested an increased to those hours, were allocated additional hours in line with the SJM'.[61] Furthermore, the Respondent submits that 'this process was supported by the North Coast Regional Human Resources team and was undertaken in consultation with the UWU'.[62]
[61] Ibid.
[62] Ibid.
The Respondent accepts Miss Vale's 'contention that had the 65 hours that were made permanent under the Directive been available at the time of her request, then USHS would have had more hours to allocate towards the maximisation of the working hours of existing staff'.[63]
[63] Ibid [6].
Furthermore, the Respondent submits that USHS had experienced a decrease in student enrolments between 2023 and 2025:[64]
[64] Ibid [8].

Figure 1 – Urangan SHS Student numbers vs allocated teacher aide hours per week

Year Urangan SHS Student numbers Allocated teacher aide hours per week

2023 1,596.2 650.56 hours

2024 1,507.6 640.68 hours

2025 1,413.2 452.58 hours

The Respondent says that 'this decrease in student enrolment results in a reduction in the staffing allocation of teacher aide hours to the school'.[65]
[65] Ibid [9].
The Respondent says that '…[USHS] finalised the transition to the SJM in the final week of October 2023 in accordance with subclauses 9.1 and 9.2 of the Agreement, having completed the consultation process throughout terms three (3) and four (4) of 2023'.[66]
[66] Ibid [10].
Vacant hours were identified in December 2023, in the final week of the school year, but that USHS 'engaged with the UWU and it was agreed that those hours were not to be allocated until after the Day-8 2024 enrolment numbers and staff allocations were finalised'.[67]
[67] Ibid [11].
Furthermore, the Respondent submits that the 'anticipated decrease in student enrolments for 2024' was a reasonable consideration to take into account 'when determining how many hours were available for consultation, and when that consultation should take place'. The Respondent says this is 'particularly relevant given that UWU was consulted in relation to this decision, acknowledging there would be an associated decrease in the number of teacher aide hours available in 2024 due to the dropping enrolment numbers'.[68]
[68] Ibid [12].
With respect to Miss Vale's request for conversion of her temporary hours, the Respondent says that the Directive does not provide a mechanism for conversion of these hours to permanent, as she already holds a permanent position as a teacher aide. Furthermore, the Respondent submits that there 'is also no entitlement for Miss Vale to be offered hours that temporary employees are actively occupying who are eligible for permanency under the Directive'.[69]
[69] Ibid [13].
The Respondent submits that the appropriate avenue for Miss Vale to increase her hours at USHS is through the consultation process pursuant to Parts 8 and 10 of the Agreement. The Respondent submits that this is 'outlined under the Guideline for Filling Teacher Aide Vacancies'.[70]
[70] Ibid [13]; Respondent's submissions (n 11) Attachment 16.
In light of these reasons, the Respondent submits that the decision Miss Vale appeals is fair and reasonable, and that, on this basis, I should confirm the decision pursuant to s 562C(1)(a) of the IR Act.
Consideration
The task before me in this appeal is to consider whether the decision of Mr Damien Cricchiola dated 10 December 2024 is fair and reasonable. This involves reviewing all of the filed material and considering whether it was open to Mr Cricchiola to determine that the Respondent had not contravened the agreement by converting employees from temporary to permanent status in accordance with the Directive prior to offering their hours to existing permanent staff.
It is clear from the materials that Miss Vale has struggled with the uncertainty associated with a portion of her weekly hours being temporary.
Essentially, Miss Vale seeks a decision that it was not fair for the Respondent to not convert her additional hours to permanent. However, as she states in her material, her grievance relates to a number of her colleagues having their employment converted from temporary to permanent. Miss Vale thinks this is unfair as she is seeking more permanent hours and those colleagues have not worked at the school for as long as she has.
Miss Vale holds several personal views about the way that the legislation, agreements and directives relevant to this matter operate. It is also the case that Miss Vale has been provided with information from various individuals that she has either rejected on the basis that she thinks it is wrong, or that it is inconsistent and not transparent.
Miss Vale is a permanent employee of the Respondent. For this reason, it is not open to her to apply for the temporary hours she has been allocated to be converted to permanent pursuant to the Directive or Ch 3, Part 9, Division 1 of the PS Act.
The Respondent rightly identifies that the appropriate avenue for Miss Vale to increase her permanent hours of employment is via the process provided for in Parts 8 and 10 of the Agreement and the Guideline for Filling Teacher Aide Vacancies.
I understand that Miss Vale's view is that the Agreement overrides the Directive. This is not correct. The Respondent is correct in stating that cl 10.4 of the Agreement is a separate process to that of the review of non-permanent employment provided for in the PS Act and set out in the Directive.
Where a person has been a non-permanent employee fulfilling a teacher aide role for the requisite period, that person has a right to have their non-permanent employment reviewed. If there is a continuing need for the person to be employed, and they are suitable for the role, their employment is to be converted to permanent unless genuine operational requirements of the Department preclude this. The process also states that the conversion should only occur if it complies with any industrial instrument. Given that the two processes are separate, cl 10.4 of the Agreement is not an industrial instrument that the process needs to comply with.
For clarity, it is not the case that where a person has been employed as a temporary teacher aide for the requisite period, they are ineligible for conversion to permanency due to the operation of cl 10 of the Agreement.
The Respondent has stated that three temporary employees were converted to permanent prior to consultation post-Day-8 2024. The hours worked by these individuals were not 'available' for the filling of vacancies or providing additional hours to individuals. In fact, these hours were temporary hours until the point where a review determined to convert their employment to permanent. This process converted an individual's employment to permanent, it did not convert a set of hours to permanent to then be made available through the consultation process provided for in the Agreement.
The Respondent says that the North Coast Regional Human Resources Team consulted with the UWU regarding the process of allocating available teacher aide numbers post-Day-8 2024. As has been explained in the Respondent's submissions, the 16.01 available permanent hours were allocated to the two longest serving permanent staff members to align their permanent hours with the SJM. The remaining permanent hours were allocated to the third longest serving permanent staff member and while this did not take that person to the SJM, they are on leave and so were not allocated additional temporary hours.

It then appears that available temporary hours were allocated Miss Vale and other employees to take them to the 30-hours, in alignment with the SJM.
As I understand the process, any leftover temporary hours not needing to be allocated to permanent staff to maximise their hours and align with the SJM, would then be used to employ temporary teacher aides.
When these temporary teacher aides were eligible for review under the Directive, if they met the criteria, they would be converted to permanent. Pursuant to the Directive, where an employee is converted to permanent, there is a requirement to offer them either the hours they have been working on a continuing basis or the average hours per week they have worked over the past year.[71]
[71] Review of non-permanent employment (Directive 02/23) cl 11.
Temporary Teacher Aides will become eligible for review on the anniversary date of their employment. There is an ongoing obligation for the Department to conduct reviews of temporary employment. This is a separate process to any consultation regarding the distribution of available hours required under the Agreement.
The way that 'available' or 'vacant' permanent hours come about is either through an increased allocation of hours (for example due to an increase in enrolments), or because a permanent employee resigns. In this case, those available hours would be allocated in accordance with the Agreement. If Miss Vale is the longest serving permanent employee requiring permanent hours to align with the SJM, those hours would be allocated to her, provided it is operationally feasible to do so.
I understand that Miss Vale does not think it meets the 'pub test' or public expectations that newer employees may be converted to permanent while a portion of her hours are temporary. However, the decision-making under review has to occur pursuant to the relevant legislation, directives and industrial instruments and not public expectations or a 'pub test'.
I accept that the conversion of temporary employees occurred prior to the 2024 post-Day-8 consultation process and therefore those hours were not available for the consultation. It appears that consultation occurred with regard to the transition to the SJM in the final part of 2023. It seems that permanent teacher aides wanting to work 30 hours aligned with the SJM had temporary hours allocated to achieve this during that period.
I understand Miss Vale's view that consultation regarding the allocation of additional vacant hours should occur whenever these become available and not only on Day-8, however I have no reason not to accept the Respondent's submission that USHS engaged with the Union and there was an agreement not to allocate hours until after Day-8, 2024. As it turned out, the allocated teacher aide hours per week dropped from 650.56 in 2023 to 640.68 hours in 2024. (I note that there is a further significant decrease to 452.58 in 2025).
It is unfortunate that conversations and communication around these matters has occurred over a protracted period. It is also unfortunate for Miss Vale that she decided to withdraw her EOI for hours at another school on the basis that she believed she would have increased permanent hours at USHS. None of these things serve to make Mr Cricchiola's decision not fair or reasonable.
In fact, it seems to me that Mr Cricchiola's recommendations are entirely sound and designed to ensure that clear and correct information is provided to employees regarding vacancies and available hours. Guidance regarding the correct process for managing available hours will ensure that there is no confusion or situations which may lead to someone like Miss Vale making decisions in reliance on vague information or misunderstandings. Miss Vale could not (or should not) have been promised that she would have her existing temporary hours converted to permanent at USHS in 2024. There was no entitlement for this to occur by matter of right. In fact, any such promise would have circumvented the transparent consultation process.
Additionally, all kinds of things may have happened, including a decrease in enrolments or the movement of particular students. It is also the case that the needs of the school may have meant that available hours could not be undertaken by an employee seeking additional permanent hours, for example where the teacher aide duties needing to be performed were timetabled simultaneously or where a particular skill set would be required.
It seems to me that any clear authoritative advice to employees about the interaction between the Agreement and the Directive would be useful in avoiding situations such as this one, where Miss Vale has been informed regarding the operation of the Directive and the Agreement but doesn't trust the information which has been provided by various decision-makers.
Miss Vale may believe that it is unfair for a temporary employee to be converted to permanent while permanent staff have not yet reached maximum permanent hours, and this may remain her belief. But that belief does not serve to make Mr Cricchiola's decision not fair or reasonable.
The Respondent did not breach the agreement in determining, in consultation with the UWU, to delay the consultation about vacant or available hours until Day-8 2024. Furthermore, the Respondent did not breach the Agreement in complying with the requirement under legislation and the Directive, to review the employment of temporary employees and convert them to permanent employment. The hours being worked by those temporary employees who were eligible for review of employment status were not 'available' hours for the purposes of the Agreement.
With regard to the timeline of the dispute, it is unfortunate that there were delays in responding to Miss Vale's grievances. There is no evidence before me that delays at various stages of the grievance have in some way changed or undermined the outcome. Miss Vale submits that the provision of the Stage 3 decision on the last day of the school term meant that she had to spend the lead-up to Christmas preparing her Stage 4 dispute. While this may have been inconvenient, it does not serve to make the decision not fair and reasonable. I am unable to determine that any delay in dealing with the dispute has made Mr Cricchiola's decision not fair and reasonable.
The decision of Mr Cricchiola dated 13 December 2024 is fair and reasonable.
Order
I make the following order:

1.The decision appealed against is confirmed.

Figure 1 – Urangan SHS Student numbers vs allocated teacher aide hours per week
Year	Urangan SHS Student numbers	Allocated teacher aide hours per week
2023	1,596.2	650.56 hours
2024	1,507.6	640.68 hours
2025	1,413.2	452.58 hours

[2025] QIRC 89

26 March 2025