Recent case shows why length of service isn't enough for position upgrades
The Queensland Industrial Relations Commission recently dealt with a case about permanent appointment rights when acting in a higher position. The case examined how the Public Sector Act 2022 applies to higher classification conversions in Queensland's public sector.
A guidance officer challenged her employer's decision to refuse her permanent appointment to a senior role she had been acting in for more than two years.
She argued that some colleagues with less experience had received similar permanent appointments, and that her manager had discouraged her from applying for other permanent positions at the same level.
The Department of Education, Queensland maintained they could not convert the position because it was substantively held by another employee who was temporarily working elsewhere in the organisation but retained the right to return to it.
From January 2022, the guidance officer began acting as a senior guidance officer at classification H02 in the Metro South Region, while maintaining her substantive permanent position at the H01 level. She was backfilling for another employee who was temporarily performing different duties within the department.
In June 2024, after more than two years in the acting role, she requested permanent appointment to the senior position. The executive director of engagement and talent acquisition refused this request, stating:
"[The employer] does not use permanent relief pools for this particular position... The consequences of appointing you [to] the higher classification position would be that two permanent employees would then occupy the one position of Senior Guidance Officer, Metropolitan South Region upon the substantive employee's return."
The Public Sector Act 2022 (PS Act) allowed employees to request permanent appointment to a higher classification after acting in it continuously for at least one year.
Under the Act, the chief executive needed to consider both the employee's suitability and the organisation's genuine operational requirements.
The guidance officer argued that other similar positions existed within the department. She noted in her submissions that she had "never had [her] performance questioned in this role."
She also pointed out that some colleagues with less acting experience had received permanent appointments to senior roles.
The Commission provided important clarification about position-specific conversion rights: "The power afforded to [the employer] to permanently appoint [the worker] is confined to the position which she is performing at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period."
The Commission further explained the scope of the legislation: "The PS Act... creates a framework where if a person has been acting at a higher classification for a particular period, they may be permanently appointed to the position they occupy. There is no contemplation in those materials that the meaning of the position would be so broad as to encapsulate any position with the same title and classification anywhere in the workplace."
While acknowledging that the guidance officer met the time requirements and was suitable for the role, the Commission found:
"I find that the decision-maker did correctly consider and apply the decision criteria contained in the PS Act and [any other relevant directives], and reliance on genuine operational requirements to refuse conversion was fair and reasonable in this case."
The Commission upheld the department's decision, concluding that "it would be simply untenable for [the employer] to employ two permanent Senior Guidance Officers in the same position – that clearly would not demonstrate effective, efficient and appropriate management of public resources."
The Commission's decision clarified that higher classification conversion rights under Section 120 of the Public Sector Act 2022 apply only to the specific position an employee is acting in, not to similar positions at the same classification level.
The decision also confirmed that operational requirements, including the rights of substantive position holders, are valid considerations in conversion decisions.