Kemp v State of Queensland

Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209

• [1] Ms Joanne Kemp ('the Appellant') is employed by the State of Queensland (Department of Youth Justice and Victim Support) ('the Respondent'). Ms Kemp has been acting at a higher classification level as a PO5 Senior Practitioner from 27 March 2023. Her current higher duties arrangement concludes on 30 June 2026.

• [2] Ms Kemp's substantive permanent role is at the PO4 classification level. She has worked for the Department (and the former Department of Justice and Attorney General) since 6 May 2015. Ms Kemp has been consistently employed in a PO5/AO7 equivalent capacity since 11 October 2021 in three different roles.[1]

• [3] Ms Kemp has made a request that she be appointed to the higher classification level.[2] On 25 July 2025, the decision-maker informed Ms Kemp that she was not being converted to permanent employment in the higher classification because the position was not substantively vacant and was temporarily funded until 30 June 2026.

• [4] For the following reasons, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), I confirm the decision appealed against.

• [5] Ms Kemp says that the decision was not fair and reasonable for the following reasons:[3]

• I am not backfilling the role of the Senior Practitioner and was appointed to the role through a merit based process. The Respondent state in the decision letter that the position is not substantively vacant. It is in contention whether the position is, in fact, substantively owned, as I have never been made aware of the role being substantively owned, and I also possess a copy of employment records which appears to confirm that the position is vacant.
• The Senior Practitioner role is not a project position and does not have a fixed time frame for completion of work tasks. The duties are ongoing and vary depending on the priorities set by the region. The role is considered essential to support service delivery within the region, as identified by the Regional Management Team.

• Although funding for the original position was specific to supporting young people in watchhouses, the purpose of the role has been varied and extensive over the last two years. Responsibilities continue to evolve and develop outside of the scope.

• The source of funding for the position, should not on its own, be a barrier to conversion.

• [6] The Respondent says that the decision not to convert Ms Kemp to the higher level classification level was made with regard to genuine operational requirements including:

a) The temporary nature of the funding for the Senior Practitioner position.

b) The declining need for the positions funded under the watchhouse response allocations due to the reduced number of young people in watchhouses following the opening of the Wacol Youth Remand Centre.

1. The fact that the position was never intended to be ongoing or permanently funded.

Ms Kemp is suitable for appointment to the role

• [7] It is not contentious that Ms Kemp is suitable for appointment to the higher classification level/role of PO5 - Senior Practitioner.

• [8] The Respondent says that it has explored alternate options to enable Ms Kemp's appointment to a higher classification level, however, has not located any suitable positions. Ms Kemp submits that she appreciates this review of other roles, but that s 120 of the PS Act does not require the Respondent to consider other roles.

• [9] Ms Kemp submits that the role is substantively vacant in that it is 'not substantively owned' and the temporary engagement which commenced in March 2023 was not due to backfilling a substantive owner of the role. Ms Kemp contends that the role is substantively vacant and continues to be.

• [10] The Respondent submits that the Senior Practitioner position was created using an FTE from the Watchhouse response allocation and that the position was never intended to be ongoing or permanently funded. The Respondent says Ms Kemp's claim that the position is substantively vacant is not supported by the funding arrangements or longer-term operational requirements of the Department.

• [11] In my view, the role is 'vacant' or not 'owned' to the extent that Ms Kemp is not back-filling the role with an expectation that the 'owner' of the role may return at some point. However, the Respondent does not resist Ms Kemp's appointment to the higher classification on the basis that there is a substantive owner of the role.

• [12] The basis upon which the Respondent says that the role is not substantively vacant is that the role is not 'substantive' or permanent. The Respondent argues that the role is temporary and that there is no permanently established role into which Ms Kemp can be appointed.

• [13] I accept that if I were to set aside the decision not to appoint Ms Kemp to the higher classification position, I would effectively be making that higher classification position a permanent, substantive position. Thus, setting aside the decision and appointing Ms Kemp as the substantive owner of a position that is not funded to be a permanently established role, is a related issue.

• [14] The Respondent submits that Ms Kemp's current acting position is managed under non-recurrent FTE funding through 'watchhouse response allocations'[4] until 30 June 2026. The Respondent says that the watchhouse funding was originally approved based on a projected large number of young people in watchhouses requiring support.[5]

• [15] The Respondent submits that 29 FTE positions are temporarily funded through the watchhouse response allocation to address temporary needs.[6]

• [16] The Respondent says that following the commencement of the Wacol Youth Remand Centre, there are fewer young people accommodated in watchhouses, and this has reduced the need to continue these positions into the future. The Respondent says that this is the basis of the limited-life FTE funding.

• [17] Ms Kemp accepts that the funding for the role is temporary but argues that the source of funding for the role should not, on its own, be a barrier for conversion.

• [18] I accept that the funding for the role is temporary and that this is one of the reasons the Respondent says that operational requirements prevent the appointment of Ms Kemp to the higher classification position.

• [19] Temporary funding of a role, will not, without more, be a barrier to the appointment of an employee to the higher classification. In this case, it is not the sole reason the Department has not converted Ms Kemp to permanent employment in the higher classification role.

Is the role temporary due to a declining need for the role following the opening of the Wacol Youth Remand centre?

• [20] In her reasons for appeal, Ms Kemp says that the initial funding for the role was specifically to support young people in watchhouses, but that over time the role has evolved and developed beyond that scope.

• [21] Ms Kemp submits that the role description for the Senior Practitioner does not specifically relate to any watchhouse functions and that it has not been used in that capacity since she has been in the position.[7] Ms Kemp says that the role was not specifically assigned in relation to a particular project or purpose and the focus of the role has continued to develop over the period it has been in place.[8]

• [22] With reference to the role description, Ms Kemp says that the role is to provide 'specialist advice, guidance and oversight that service response planning including assessment, intervention, casework and case management are delivered without the region to a high standard and in accordance with legislation and practice guidelines'.[9]

• [23] Ms Kemp says that her key responsibilities to date have included 'supporting staff to embed new government priorities and initiatives and upskill understanding and practice implications of legislative changes...'.[10] Ms Kemp also says that her role has been to '...support the ongoing implementation of a new client management system, review operational policy and procedures and support staff learning and development requirements'.[11]

• [24] The Respondent acknowledges that the Southeast region may have utilised the Senior Practitioner role for broader purposes, including to support initiatives, embed government priorities and implement legislative changes. However, the Respondent says that this does not change the fact that the position was created to address a temporary operational need, is not a permanently established role and will cease when funding ends on 30 June 2026.

• [25] Ms Kemp refers to the following correspondence in support of her submissions:

• A memo dated 13 June 2024 from Regional Direction of Southeast Region, Ms Joanne McKenzie, submitting a memo to senior leaders requesting an expansion of the Senior Practitioner role due to operational need.

• Correspondence dated 19 June 2025 from the Office of the Regional Director Manager, Ms Erin Mackie, outlining how embedded the Senior Practitioner role is within the southeast region.

• An email dated 20 August 2024, from the Regional Director for the Southeast Region, Ms Joanne McKenzie, confirming her extension in the Senior Practitioner role and consideration of how the position could be made permanent.

• [26] The Respondent says that operational use of the Senior Practitioner position reflects the temporary nature of the funding and the Respondent's efforts to maximise the value of the role during the funding period. The Respondent says that discussions such as those set out above at paragraph [25] do not constitute a commitment to making the position permanent.

• [27] Ms Kemp notes that the Wacol Youth Remand centre opened in April 2025 but says that her contract in the Senior Practitioner role has been extended until 30 June 2026, and that this demonstrates the ongoing need for the role, independent of the number of young people in watchhouses.

• [28] I accept that Ms Kemp may have received the communications she refers to at [25] above. However, I also accept the Respondent's submission that those communications do not represent a commitment that the position be made permanent.

• [29] While Ms Kemp may not be undertaking a 'project' with a firm end date, it does seem that the initial reason the funding for the positions was provided was for a specific purpose, namely supporting young people in watchhouses. Discussions Ms Kemp had regarding the role and whether it might be ongoing occurred prior to the opening of the Wacol Youth Remand centre in April this year.

• [30] I accept the Respondent's submission that while funding for the role continues, it wishes to maximise the value of the role until the funding ends. Where the alternative would be to end the role, not utilise the funds and lose the value that Ms Kemp is adding for the final period of the funding, I can understand why a decision was made to continue Ms Kemp's temporary appointment to the role until June 2026.

• [31] There is no doubt that Ms Kemp has been undertaking important work and that there is an ongoing need for the type of work she is undertaking. However, the question before the decision-maker was not whether there is a continuing need for the role. The question was whether there are genuine operational requirements precluding the conversion.

• [32] The funding for the role is set to end in June 2026, work has been allocated to Ms Kemp to undertake until that time. I accept that the temporary need for resources directed at supporting young people in watchhouses has been impacted by the opening of the Wacol Youth Remand centre.

• [33] When the new Wacol facility was being built or established, it follows that positions which supported the system pending the opening of the facility would be funded beyond the date of establishment to factor in any potential delays in it becoming operational.

• [34] I accept that the opening of the Wacol facility and the temporary nature of the funding are genuine operational requirements of the Department preventing Ms Kemp's conversion to the higher duties role. Should new funding be provided for the role beyond 2026 in circumstances where the Wacol facility has been open and operational for some time and the Department identifies an ongoing need for the role, that should certainly lead to consideration as to whether the role Ms Kemp is undertaking is functionally permanent, such that she should be appointed permanently.

• [35] Ms Kemp's request for appointment at the higher classification level was not supported on the basis that the position is temporary/not substantively vacant and not recurrently funded. While there are examples of Commission decisions setting aside decisions based on these reasons, there are also circumstances in which those matters have been found to be genuine operational requirements preventing conversion.

• [36] In making the decision, the delegate was required to consider if Ms Kemp is: suitable to perform the role;[12] and have regard to the genuine operational requirements of the public sector entity;[13] and the reasons for each decision previously made, or taken to have been made in relation to the person during their continuous period of acting at, or secondment to, the higher classification level.[14] Ms Kemp is suitable to perform the role and that question is not in issue.

• [37] It appears that a deemed decision was made to not convert Ms Kemp's employment in the higher classification position to permanent and she was provided information regarding her right to make an additional request, Ms Kemp did so, resulting in the decision being appealed. The decision-maker was required to give consideration to each decision previously made in relation to Ms Kemp during her continuous period of acting in the higher classification position. While the decision does not refer to any previous decision, Ms Kemp's submission requesting a review of her employment is referenced.

• [38] Given that the request was made following a recent deemed decision that both Ms Kemp and the Respondent were aware of, I am satisfied that the failure to directly refer to the deemed decision was an administrative oversight. Ms Kemp does not raise this matter in her grounds for appeal, and there is no information before me to suggest that there were previous decisions other than the apparent deemed decision made on 30 May 2025. The written decision received by Ms Kemp the subject of this appeal should have referred to that deemed decision. I am of the view that consideration of the earlier deemed decision would not have impacted the decision not to convert Ms Kemp to the higher classification role. The omission of that information in the letter does not render the decision not fair and reasonable.[15]

• [39] For the reasons given above from paragraph [14]-[19] of these reasons, I accept that the funding for the role is temporary and that the funding was for a specific purpose. For the reasons given from paragraphs [20]-[33], I accept that the higher classification position is temporary to the extent that it was created for a specific purpose and funded by money allocated for that specific purpose.

• [40] In circumstances where the role was one of a set of positions created to support young people in watchhouses pending the opening of the Wacol Youth Remand centre, which is now open, I find that the temporary nature of the role and non-recurrent funding for the role are genuine operational requirements precluding permanent appointment of Ms Kemp to the higher classification position.

• [42] Accordingly, 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.

[1] Respondent's submissions filed in the Industrial Registry on 26 August 2025 [8].

[2] Pursuant to s 121(b) of the Public Sector Act 2022 (Qld) ('the PS Act').

[3] Appeal Notice filed in the Industrial Registry on 12 August 2025.

[4] Respondent's submissions (n 1) [13]; CBRC decision #1808.

[6] Respondent's further submissions filed in the Industrial Registry on 16 September [4].

[7] Ms Kemp's submissions filed in the Industrial Registry on 8 September 2025 [18].

[12] s 120(3) of the PS Act.

[13] s 120(4)(a).

[14] s 120(4)(b).

[15] Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209 [23].