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[2025] QCA 142
respondent. Appeal dismissed. The appellant must pay the respondent’s costs of the appeal [56].
The Court of Appeal held that a worker is not “available to work” merely because they are physically able to work: legal restrictions also matter. But the relevant work is not limited to the worker’s usual job. It includes reasonable alternative duties the State could lawfully assign. Johnston’s suspended teacher registration prevented him from teaching, but did not prevent him from doing administrative work for the State. The State’s appeal was dismissed, even though the Court disagreed with part of the Industrial Court’s reasoning.
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2,165 words · generated 07/10/2026
The dispute concerned the conditions for reimbursing a Queensland public sector employee who had been suspended without pay, after the disciplinary process did not result in termination. The relevant instrument was directive 06/23 suspension, made under the Public Sector Act 2022 (Qld) (PSA). Clause 10.1 says an employee “must be reimbursed” for remuneration not received during suspension if the disciplinary decision or process does not result in termination. Clause 10.5 qualifies that provision: if the employee was unavailable to work for reasons other than suspension, the amount repaid is reduced by the days of unavailability [17].
5 cited instruments linked from this judgment.
Benjamin Johnston was a Department of Education teacher. After he was charged with offences unrelated to his employment, he was suspended with remuneration on 13 August 2020. On 3 February 2022, he was suspended without pay. He was acquitted of all charges on 8 May 2023 [4]. He did not challenge the suspension without pay [5]. His teacher registration remained suspended under the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act).
After his acquittal, Johnston sought reimbursement for the 16 months during which he had received no pay. The Department refused, taking the view that suspended QCT registration meant he was unavailable to work because the QCT Act prohibited him from teaching [7]-[9]. The QIRC set aside the Department’s decision. The Industrial Court dismissed the State’s appeal, concluding that Johnston had been “available to work” under clause 10.5 [10]-[12].
The State appealed to the Queensland Court of Appeal. The central question was whether “available to work” meant only physically available to perform work, as the Industrial Court had held, or whether legal ability and the kind of work potentially available to the employee also mattered [3], [20]-[22]. Brown JA gave the substantive reasons. Boddice JA and Williams J agreed [1], [57].
The Court dismissed the appeal and ordered the State to pay Johnston’s appeal costs [56]. The outcome is important to distinguish from the reasoning: the Court of Appeal rejected part of the Industrial Court’s interpretation, but concluded that the error did not require the Industrial Court’s ultimate result to be overturned.
Brown JA began with the character and context of the directive. A directive is not an Act of Parliament, although the Court proceeded on the basis that statutory interpretation principles were relevant. It was appropriate to consider the text and context of clause 10.5, including the PSA provisions under which the directive was made and the statutory rules about suspension [23]-[25]. Brown JA also noted that directives may not receive the same drafting scrutiny as an Act and may warrant a more liberal interpretive approach [23].
The PSA context mattered because suspension is not necessarily the only option available to an employer. Under s 101(3), a chief executive must consider reasonable alternatives before suspending an employee. The examples include alternative duties and other working arrangements [14], [26]. Brown JA considered that this context supported an understanding of “work” broader than the employee’s existing position. It did not, however, support treating every kind of work as relevant [49]-[52].
The Court read clause 10.1 as establishing a prima facie reimbursement entitlement when the disciplinary process does not result in termination [31]-[32]. That entitlement is qualified. Clause 10.3 addresses an employee who ceases employment before a disciplinary decision; clause 10.4 concerns money earned through alternative employment; and clause 10.5 deals with unavailability for other reasons [33]-[36]. Brown JA described clause 10.5 as directed to circumstances in which the employee could not be regarded as standing and waiting to resume employment during the suspension [44].
The word “available” was not limited to physical availability. The example in clause 10.5, detention in a corrective services facility, illustrates physical unavailability. But it is only an example, and does not exhaust the situations covered by the provision [40]-[41]. Brown JA concluded that a broader understanding, including legal availability, remained consistent with the example. She therefore held that the Industrial Court had construed “available” too narrowly [44]-[45].
The Court also considered Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435. Dixon J’s observation that “[t]hey also serve who only stand and wait” did not answer whether an employee subject to an external legal prohibition was available to provide the relevant service. Brown JA said that the case offered little assistance on that particular question [35], [42].
The Court then defined the relevant work more precisely. It is work for the State, because clause 10.5 concerns remuneration payable by the State [47]. It includes the employee’s substantive role and reasonable alternative duties to which the State could deploy the employee under s 101(3). It does not include any work whatever, or a role the State could not lawfully direct the employee to undertake [49]-[52]. The resulting test was whether the employee was legally and physically available for the substantive role or a reasonable alternative [50].
Applied to Johnston, the QCT registration suspension prevented him from teaching, but did not prevent the State from placing him in an administrative role [54]. The teaching prohibition therefore did not establish that he was unavailable to work for the State. That application allowed the Court to dismiss the appeal notwithstanding its disagreement with the Industrial Court’s interpretation [53]-[56].
The judgment identifies no earlier case interpreting the specific phrase “available to work” in clause 10.5 [37]. It therefore presents the Court of Appeal’s construction as an interpretation of this directive in its statutory setting, rather than as a resolution of an established line of authority about that precise wording.
Before this appeal, the Industrial Court had construed “available” as physical availability and treated “work” broadly as work generally, not only the employee’s usual job [12], [18]-[19]. The Court of Appeal changed both parts of that analysis. It held that legal availability must also be considered, while defining “work” by reference to duties the State could lawfully require as a reasonable alternative [45], [50].
The judgment does not establish that a legal restriction always defeats reimbursement. The result turned on the relationship between the particular restriction and the range of work the State could lawfully assign. Johnston could not teach, but administrative work remained possible [54]. Nor does the judgment say that all alternative work, including employment with another employer, counts as availability under clause 10.5. The Court distinguished work for the State from outside employment, which is separately addressed by clause 10.4 [47]-[48].
The Court describes reimbursement under clause 10.1 as a prima facie entitlement qualified by clauses 10.3 to 10.5 [32]-[36]. It also explains that s 101(4) of the PSA generally provides for normal remuneration during suspension, subject to the stated exception for certain disciplinary suspensions [27]-[30]. The Court’s reasoning is specific to those provisions and directive 06/23; it does not announce a general rule for every suspension or every public sector employment instrument.
The cited decisions in Carr and Winter were not treated as authoritative. Brown JA said they turned on their own circumstances and that it was unnecessary to decide whether they illustrated legal as well as physical unavailability [43].
At [23], Brown JA says the directive must be read by reference to its words and context, including the enabling statute. In plain English, clause 10.5 cannot be interpreted in isolation from the PSA’s suspension framework.
At [41], she explains that an example in a provision should not overwhelm the provision’s words, and that an example is not necessarily exhaustive. Put simply, detention in a corrective services facility shows one kind of unavailability, but does not confine the clause to that example.
At [45], the Court states that “available” includes both physical and legal availability. This means that an employee’s physical ability to attend or perform tasks does not, by itself, answer the question if a legal restriction prevents the relevant work.
At [50], Brown JA says that “work” includes reasonable alternative work the employee could have been deployed to undertake, rather than only their usual role. But the phrase does not extend to any work imaginable. The alternative must be one the State could lawfully direct the employee to perform.
At [54], the Court applies that construction to Johnston. His suspended registration prevented him from working as a teacher, but did not prevent an administrative placement. The judgment’s conclusion is therefore tied to the work that remained legally possible for this employee, rather than a general proposition that professional registration restrictions never affect availability.
At [53]-[56], the Court explains why the appeal still failed. The Industrial Court’s interpretation was partly wrong, but the State had not established that Johnston was unavailable under the Court of Appeal’s construction. The formal orders dismissed the appeal and awarded appeal costs to Johnston.
The decision is most directly relevant where a Queensland public sector employee seeks reimbursement under clause 10 of directive 06/23 after a period of suspension without remuneration, and the disciplinary process did not result in termination [17], [31]-[36].
It is particularly relevant where the employer argues that a legal restriction made the employee unavailable for work. The Court’s approach requires attention to both the employee’s legal and physical availability, and to the work the employer could lawfully assign [45], [50]. A restriction affecting only the employee’s ordinary position may not resolve the clause 10.5 question if reasonable alternative duties remained possible, as the administrative-role example illustrates [54].
The PSA suspension context is also significant. Section 101(3) requires reasonable alternatives to be considered before suspension, while the directive’s clause 11 provides for review of a continuing suspension. Brown JA treated these provisions as relevant context for identifying the range of alternative work that could matter [26], [49].
The decision does not establish a result for every employee subject to a licence, registration, detention, incapacity, or other restriction. The judgment gives detention as the clause’s example and considers a teacher’s registration restriction. Whether a particular circumstance affects availability depends on the legal restriction and the work the State could lawfully require the employee to perform, assessed under the Court’s construction [40]-[41], [50], [54].
It is also important to separate availability for the State from outside employment. Clause 10.4 deals with deductions for money earned from alternative employment, subject to its stated exception. The Court treated clause 10.5 as addressing whether the employee was available to work for the State [47]-[48].
The judgment was delivered on 1 August 2025. The supplied judgment text does not identify any later court treatment of this decision, so it cannot establish whether subsequent courts have followed, distinguished, or otherwise applied it.
Within this judgment, State of Queensland (Department of Education) v Johnston [2024] ICQ 18 is the decision under appeal. The Court of Appeal considered the Industrial Court’s reasoning, rejected part of its construction of “available”, but left its ultimate result undisturbed [18]-[19], [44]-[45], [53]-[56]. That is appellate treatment of the decision below, not later treatment of the 2025 Court of Appeal decision.
The judgment also discusses Carr v State of Queensland (Department of Education) [2023] ICQ 12 and Winter v State of Queensland (Department of Education) [2022] QIRC 350. Brown JA agreed they were not authoritative and said they turned on their own circumstances. She did not decide whether they involved both physical and legal unavailability [43]. They are therefore not described in this judgment as controlling interpretations of clause 10.5.
The judgment does not resolve how the test applies where the employer has no reasonable alternative duties available, or where a potential alternative role exists but the employee cannot lawfully perform it. It identifies reasonable alternatives as relevant, but its application to Johnston relied on the fact that an administrative role was not precluded by the QCT registration suspension [49]-[54].
The Court also did not set out a detailed method for assessing the range of reasonable alternatives in every case. It refers to s 101(3), the suspension review process, and clause 7.3 of the directive, including duties that may be outside an established role or usual workplace [49], footnote 23. How those provisions apply to different job structures remains dependent on the relevant facts and instruments.
The judgment leaves open how Carr and Winter should be characterised in cases involving vaccination requirements and the ability to present physically for work [43]. It also does not determine what other legal restrictions, beyond the teacher-registration prohibition in Johnston’s case, will make an employee legally unavailable under clause 10.5.
Finally, the Court notes that no case interpreting “available to work” had been identified [37]. The decision provides a construction for this directive and its statutory context, but the judgment itself does not determine how differently worded reimbursement provisions should be interpreted.
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: State of Queensland (Department of Education) v Johnston [2025] QCA 142
PARTIES: STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION) / (appellant) / v / BENJAMIN JAMES JOHNSTON / (respondent)
FILE NO/S: Appeal No 12877 of 2024 / Appeal No C/2024/19
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Industrial Court of Queensland at Brisbane – [2024] ICQ 18 (Davis J, President)
DELIVERED ON: 1 August 2025
DELIVERED AT: Brisbane
HEARING DATE: 4 February 2025
JUDGES: Boddice and Brown JJA and Williams J
ORDERS: The appeal is dismissed. The appellant pay the costs of the respondent of the appeal.
CATCHWORDS: INDUSTRIAL LAW – QUEENSLAND – DEFINITIONS AND INTERPRETATION – OTHER MATTERS – where the respondent was a school teacher employed by the State in the Department of Education – where the respondent was suspended while awaiting the outcome of criminal proceedings – where the respondent received no remuneration for a portion of the suspension – where the respondent was acquitted of the criminal charges – where the respondent made a successful application to the Queensland Industrial Relations Commission (QIRC) to be reimbursed for the period the respondent was suspended without remuneration – where the appellant appealed the decision of the QIRC to the Industrial Court of Queensland (ICQ) and the appeal was dismissed – where the appellant alleges that the ICQ erred in determining that “available to work” for the purposes of clause 10.5 of directive 06/23 means the employee is physically available to perform work not legally available – where the appellant alleges that the ICQ erred in determining that the respondent who was employed as a teacher, was “available to work” within the meaning of clause 10.5 of directive 06/23 during the period when the respondent was prohibited by law from performing work, including as a teacher – whether the respondent was “available to work” within the meaning of directive 06/23 suspension / Education (Queensland College of Teachers) Act 2005 (Qld), s 48, s 52, s 67 / Industrial Relations Act 2016 (Qld), s 562B(3), s 545 / Public Sector Act 2022 (Qld), s 101, s 102 / Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435; [1946] HCA 25, considered / State of Queensland (Department of Education) v Johnston [2024] ICQ 18, related
COUNSEL: C J Murdoch KC, with C D Martin, for the appellant / G J Rebetzke for the respondent
SOLICITORS: C E Christensen, Crown Solicitor for the appellant / Holding Redlich for the respondent
BODDICE JA: I agree with Brown JA.
BROWN JA: The appellant, State of Queensland (Department of Education) (the State) appeals the decision of the learned President of the Industrial Court of Queensland upholding a decision of the Queensland Industrial Relation Commission (QIRC) which set aside a decision made within the Department of Education to disallow wages to an employee, Mr Johnston, which accrued whilst he was suspended.
The question this Court has to consider is whether the respondent, who was employed as a teacher, was “available to work” within the meaning of “directive 06/23 suspension” (the directive) made under s 102.5 of the Public Sector Act 2022 (Qld) during the period when he was prohibited under s 67 of Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act) from starting or continuing to teach in a prescribed school. Section 82(2) of the QCT Act also provided that the State could not allow the respondent to teach in prescribed schools.
Background
The respondent was a teacher and public sector employee employed by the State in the Department of Education. In 2020 he was charged with a number of offences, unconnected with his employment, which resulted in his being suspended from duty on 13 August 2020, with remuneration. He subsequently was suspended without pay on 3 February 2022. He was acquitted of all charges on 8 May 2023.
The respondent did not challenge the suspension without pay.
On 8 May 2023, the respondent was informed by a letter from the Department of Education that:1the decision maker within the Department “[does not] hold the reasonable belief that [Mr Johnston] is liable to discipline”;Mr Johnston’s registration remains suspended by the Queensland College of Teachers;Mr Johnston’s suspension made under s 101(1)(a) of the Public Sector Act 2022 would end;Mr Johnston would be suspended pursuant to s 101(1)(b) of the Public Sector Act 2022; andthe suspension would be with remuneration.
The respondent sought reimbursement for the 16 month period when he was suspended without pay. At that time the directive in place concerning suspension of government employees was the directive.
The Department determined that the respondent was not eligible for reimbursement under clause 10.5 of the directive for the period he was suspended without pay under the directive. The Department advised that “[a]s your QCT teacher registration was suspended throughout the relevant period you were not available to work during that time for reasons other than your suspension, as you were prohibited from teaching pursuant to the Education (Queensland College of Teachers) Act 2005.”2
A suspension under the QCT Act can only be lifted by QCAT.
The appellant sought to overturn the decision with the result that the QIRC determined that the decision of the Department was not fair and reasonable3 and in doing so held that on the proper construction of the directive, the Department was not prohibited from allowing the respondent payment of salary accrued during the period when he was suspended without pay.
On appeal to the Industrial Court, the question was whether “on a proper construction of the directive” Mr Johnston was “available to work during the period of suspension”.4
Statutory Framework
The Public Service Act 2008 (Qld) which was superseded by the Public Sector Act 2022 (Qld) (PSA) provides for disciplinary action of employees including suspension with and without pay.
Section 101 of the PSA provides that the Public Sector Commissioner, may issue directives about investigating grievances and managing disciplinary action. Section 101 and 102 which are headed “Suspension” provide as follows:
“101 Suspension
A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
the employee is liable to discipline under a disciplinary law; or
the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
The notice must state—
when the suspension starts and ends; and
whether the employee is entitled to remuneration for the period of the suspension; and
the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension.
However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee.
Examples of reasonable alternatives which may be available to the employee—
alternative duties
a change in the location where the employee performs duties
another alternative working arrangement
The employee is entitled to normal remuneration for the period of the suspension, unless—
the employee is suspended under subsection (1)(a); and
the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable.
If the employee is entitled to normal remuneration for the period of the suspension, any amount earned by the employee from engaging in alternative employment during the period of the suspension must be deducted from the employee’s normal remuneration, unless—
the employee was engaged in the employment at the time of the suspension; and
the employee, in engaging in the employment, was not contravening—
this Act; or
a standard of conduct applying to the employee under an approved code of conduct or approved standard of practice under the Public Sector Ethics Act 1994.
The deduction under subsection (5) must not be more than the amount of the employee’s normal remuneration during the period of the suspension.
The continuity of the employee’s service as a public sector employee is taken not to have been broken only because of the suspension.
The chief executive may cancel the suspension at any time.
In suspending a public sector employee under this section, the chief executive must comply with the directive made under section 102.
Procedural fairness is not required if the employee is entitled to normal remuneration during the suspension.
102 Directive about suspension
The commissioner must make a directive about procedures relating to suspension from duty of public sector employees.
The directive must make provision for the following matters—
the periodic review by public sector entities or the commissioner of suspensions being considered or undertaken by a chief executive of a public sector entity, including, for example, the period within which reviews must be conducted to ensure the timely resolution of suspension matters;
sector entity may, under section 101(4)(b) decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee;
any other matter about procedures relating to suspension from duty of public sector employees the chief executive considers appropriate.
The directive may make provision for the circumstances, and the way, in which a person may be reimbursed after a decision is made about whether or not the employee is liable for discipline for any remuneration the person does not receive during the person’s suspension.”
It is only where an employee is suspended for disciplinary matters that he may be suspended without pay.
The directive applies to “public sector employees”. Clause 8 of the directive provides as follows:
“8. Suspension without remuneration
8.1A chief executive may decide that normal remuneration is not appropriate during a suspension under section 101(1)(a). This decision will usually occur after a period of suspension with remuneration but may be made from the start of the suspension.
8.2Having regard to the nature of the discipline in accordance with section 101(4)(b) of the Act, the circumstances in which a chief executive may decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee are limited to where:
there are factors not within the control of the agency that are preventing the timely conclusion of the discipline process, for example if there are criminal charges and the investigation or discipline process is pending the outcome of these charges; or
it is otherwise fair and reasonable to suspend an employee without remuneration, taking into account the financial impact on the employee and the broader public interest of the employee remaining on suspension with remuneration.”
“10. Reimbursement when employee has been suspended without normal remuneration
10.1An employee must be reimbursed for remuneration the employee does not receive during the employee’s suspension if a decision on discipline has been made, or the disciplinary process has been concluded, and does not result in termination of their employment.
10.2The amount to be reimbursed is the employee’s normal remuneration at the date of suspension without pay for the period the employee was without remuneration during the suspension, taking into account any increase due to certified agreements or rulings made in stage wage cases.
10.3An employee who ceases employment prior to a decision on discipline being made is not entitled to reimbursement.
10.4Any amount earned by the employee from alternative employment the employee engaged in during the period of suspension must be deducted from the amount repaid to the employee under 10.2 above, unless:
the employee was engaged in the employment at the time of the suspension, and
the employee, in engaging in the employment, was not contravening:
the Act, or
a standard of conduct applying to the employee under an approved code of conduct or standard of practice under the Public Sector Ethics Act 1994.
10.5If the employee was not available to work during the period of suspension for reasons other than being suspended (for example, due to being detained in a corrective services facility), then the amount repaid to the employee must be less the total number of days that the employee was not available to work during the period of suspension.” (emphasis added)
Decision Below
The key features of the Industrial Court in determining the correct construction of 10.5 of the directive were that:the QCT was not relevant to the construction of the directive which was to be made pursuant to the PSA;as the directive was given pursuant to the PSA, the terms of the PSA are the context against which to construe the document;section 101(4) of the PSA provides that where a public service employee is suspended they are entitled to remuneration over a period of suspension;neither s 101(4) or clause 8.2 of the directive suggests that a legal impediment or prohibition to perform the work for which the employee who was employed is a relevant factor, let alone a decisive one, in a determination under s 101(4) to deny remuneration while disciplinary proceedings are continuing;clause 10.1 provides that a suspended employee who is without remuneration must be reimbursed if the disciplinary process does not result in termination, thus, linking the right to reimbursement to the employee’s success in the disciplinary process;the exceptions in cll 10.3 and 10.4 provide that the right of reimbursement only exists while the employee and employer relationship exists and prevents an employee double dipping in relation to remuneration; andclause 10.5 does not suggest that an employee is required to be legally entitled to perform the specific work they were employed to do in order to be relevantly “available”.
The Industrial Court therefore concluded that the obvious intention of the PSA and the directive is that reimbursement to an employee who was suspended without remuneration is prima facie dependent upon success of the employee in the disciplinary proceedings with very narrow exceptions. The Industrial Court also considered that the “work” for which an employee must be “available” is not limited to the work for which the employee was employed which the Industrial Court considered is clear from s 101 and the reference to “duty” which must be taken to mean “for work”.
Grounds of Appeal
The State contends that the Industrial Court erred in law in two respects:first, in determining that “available to work” for the purposes of clause 10.5 of directive 06/23 means the employee is available to perform physical exertion, notwithstanding that an employee is prohibited by law from performing the work the employee is employed to undertake; andsecondly, in determining that the respondent who was employed as a teacher, was “available to work” within the meaning of clause 10.5 of directive 06/23 during the period when the respondent was prohibited by law from performing work as a teacher.
In particular, the State contends that in the process of reasoning, the Industrial Court:did not apply the definition of “available” correctly as one cannot be “suitable or ready for use; at hand; of use or service” if you can’t perform the work for which you have been employed;wrongly relied on s 101 PSA and Automatic Fire Sprinklers Pty Ltd v Watson5 when s 101 PSA does not support the wide construction; andadopted a construction which leads to anomalous results because if the employee could carry out a role that they could not be directed to carry out by the employer they would be “available for work” and entitled to remuneration.
The respondent, however, contends that the decision of the Industrial Court was correct. He submits that the context and purpose of clause 10.5 supports the fact that “available to work” means what it says, an employee is available to work if they are physically available to perform work.
Consideration
A directive is not a statute although it would appear to be a statutory instrument.6 Given that the directive is made within the constraints of the statutory framework, it is appropriate to construe clause 10.5 of the directive having regard to the words of the provision itself and its context,7 which includes the statutory provision under which it is made and the statutory provisions with respect to suspensions.8 It must be borne in mind that directives, like regulations, are often not subject to the same scrutiny in drafting as an Act of Parliament and may call for a more liberal approach in interpretation.9
The terms of the QCT Act are not a part of the statutory context for the directive although in the present case there was a factual overlap in the basis for the suspension, namely that the respondent was subject to criminal charges. The QCT Act and PSA are not in pari materia or otherwise interlinked. The considerations which apply in determining whether a public sector employee can be suspended which are prescribed under the PSA are, however, separate from those prescribed under the QCT Act for a teacher who may also be a public sector employee. While teachers employed by the Department of Education may also be public sector employees to which the PSA applies, the QCT Act applies to both teachers employed by state schools and non-state schools. Save for limited circumstances, the suspension under the QCT Act can only be lifted by a determination of QCAT,10 whereas the Chief Executive under the PSA may cancel the suspension at any time,11 and it otherwise ends at the time specified in the notice of suspension.
While a right to reimbursement only arises under the directive and not under the PSA, the PSA makes provision for such a directive being made in s 102. It provides for a directive to be made in relation to matters arising under s 101.
Section 101(1) provides that by notice an employee may be suspended “from duty” if the Chief Executive reasonably believes the employee is liable to discipline under a disciplinary law or the proper and efficient management of the entity might be prejudiced if the employee is not suspended. Prior to being able to suspend an employee under s 101(1), the Chief Executive must under s 101(3) consider all reasonable alternatives available to an employee. Examples of alternatives given explicitly refer to “alternative duties” and “another alternative working arrangement”. Consideration therefore must be given to roles outside that in which the person concerned is specifically employed. While the appellant claims there is no significance in using the word “duty” as opposed to “work” in clause 10.5 and both terms are used interchangeably to refer to the work for which you are employed, I do not agree. The fact that reasonable alternatives must be considered before suspension suggests “duty” may be slightly broader than “work” to reflect that no reasonable alternatives were available before suspension, even though the suspension itself must be from the role in which the employee is engaged.
Orders
The appeal is dismissed.
The appellant pay the costs of the respondent of the appeal.
State of Queensland (Department of Education) v Johnston [2024] ICQ 18, at [8] (‘ICQ Decision’). ↩
Correspondence from Ms R. Borger to Mr B. Johnston dated 29 May 2023. ↩
Industrial Relations Act 2016 (Qld) s 562B(3). ↩
ICQ Decision at [19]. ↩
(1946) 72 CLR 435 at 466. ↩
Section 7 Acts Interpretation Act. Statutory instrument as defined in s 7 of the Statutory Instruments Act 1992 but this was a matter addressed in argument which proceeded on the basis that statutory interpretation principles were relevant to the construction of the directive. ↩
Collector of Customs v AGFA-Gevaert Ltd (1996) 186 CLR 389 at 398 in relation to the construction of subordinated and delegated legislation and specifically with respect to Commercial Tariff Concession Orders; R v A2 (2019) 269 CLR 507 at [30]-[35]. ↩
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at [19] with respect to regulations. ↩
Environment Protection Authority v Condon as Liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) (2014) 86 NSWLR 499 at [44]-[46] per Leeming JA (with whom Bathurst CJ, McColl JA agreed); Interpretation, Herzfeld and Prince, Second edition, Thomson Reuters 2020 at [14.30]. ↩
Section 52 (a) QCT Act unless s 52(b) or (c) applies.
State of Queensland (Department of Education)
Johnston [2025] QCA 142
(1946) 72 CLR 435
(1996) 186 CLR 389
(2019) 269 CLR 507
(2008) 236 CLR 101
(2014) 86 NSWLR 499
(2000) 100 FCR 117
Appeal dismissed. The appellant must pay the respondent’s costs of the appeal [56].
The Industrial Court considered the statutory context of the directive and found that he was “available to work”. The Industrial Court construed “available” to mean physically available to perform work, not physically able and legally entitled to do work. The Industrial Court further interpreted “work” to mean any work and not limited to the work for which the employee was employed.
Suspension without remuneration can only occur in limited circumstances. Under s 101(4) of the PSA, the employee is entitled to normal remuneration for the period of suspension unless the employee is suspended under sub-s (1)(a) and the Chief Executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension “having regard to the nature of the discipline to which the Chief Executive believes the employee is liable”.
Under s 102(2) of the PSA, the Commissioner must make provision for, amongst other things, the circumstances in which a Chief Executive of a public sector entity may under s 104(4)(b) decide a public sector employee is not entitled to normal remuneration for the period of the suspension of the employee. Clause 8.2 of the directive sets out those circumstances. Those circumstances do not specifically extend to where an employee cannot work, due to a legal prohibition under another law, however the reference to “broader public interest” in clause 8.2(b) potentially could encompass such circumstances as relevant.
It is evident from s 101 that:suspension is a step of last resort where no reasonable alternatives, including alternative duties, are open;an employee is to continue to have remuneration while suspended unless the suspension is in relation to a disciplinary matter and it is considered not appropriate for it to continue; andit was not mandatory for a directive to be made for remuneration that was not paid during suspension to be paid once the disciplinary proceedings had concluded, but there was a discretion to allow it to be included in a directive made under s 102 of the PSA.
The Commissioner did include in the directive under s 102 in clause 10, provision for an employee to be paid remuneration for the period of suspension after a decision is made about whether or not the employee is liable for discipline.
The terms of clause 10.1 of the directive are phrased in mandatory terms providing that “[a]n employee must be reimbursed for the remuneration the employee does not receive during the employee’s suspension” when the disciplinary process is complete and does not result in termination of employment. Clause 10.2 provides that the remuneration is to be the employee’s normal remuneration which takes into account any increase that occurred during the period of suspension.
Clause 10.1 creates an entitlement to be reimbursed for a suspended employee without remuneration. It is, however, qualified by clauses 10.3 -10.5 in three respects.
First, clause 10.3 provides there is no entitlement to remuneration if the employee ceases employment prior to a decision on discipline being made regardless of when they ceased employment. Secondly, clause 10.4 provides for the deduction of moneys from the amount to be repaid where an employee has earned money in alternative employment during the period of suspension, save for where they engaged in employment at the time of the suspension which did not contravene the Act or any standard of conduct.
Clause 10.5 then provides a further qualification on the entitlement to be reimbursed under clause 10.1 and 10.2, namely if the employee “was not available to work” for reasons other than being suspended. The example given is if the person concerned is detained in a corrective services facility. Provision is made for an apportionment such that the “amount repaid to the employee must be less than the total number of days that the employee was not available to work during the period of suspension.”
It is apparent that clause 10 seeks to place an employee whose employment is not terminated as a result of disciplinary action in the position they would have been in had they not been suspended, but that entitlement is not absolute. That accords with the fact that they have not worked in their role due to an external decision in effect placing their employment on hold pending the disciplinary process and its outcome. In that sense the suspended employee is in a position discussed by Dixon J in Automatic Fire Sprinklers that “[t]hey also serve who only stand and wait.”13
The underlying premise is that the employee has remained employed even if not actively able to carry out their role for the period of their employment, but if they have been available to do so and have not engaged in other work, terminated their employment or for some other reason not to be available to work they are entitled to reimbursement. Clause 10.3 and clause 10.4 are both examples of where the employee is not available to work for their employer the State because he or she is partaking in other employment or ceased to be employed by the employer. Clause 10.5 is in more general terms but given the specific provision in clauses 10.3 and 10.4 is directed to other reasons why an employee may not be available to work for their employer the State.
There is surprisingly no case that has been identified interpreting the phrase “available to work”. Both words are of ordinary meaning.
In adopting the construction that “available” refers to physically available to perform work14 the Industrial Court relied upon the dictionary meaning of available, Automatic Fire Sprinklers, the example in clause 10.5 and the statutory context of the suspension without remuneration under the PSA and the directive.
The Industrial Court referred to the meaning of “available” in [48] of the judgment from the Macquarie Dictionary. The Oxford Dictionary definition of “available” relevantly includes “at one’s disposal”. The natural meaning would extend to available in a physical and legal sense.
While the example given in clause 10.5 of when an employee is not available to work is one which involves a physical detention of the employee in a corrective services facility, which provides some support for the confining of the term “available” to physically available, it is just an example.
Examples may be used in the construction of a statutory provision,15 but the provision must prevail to the extent of any inconsistency. Some caution must be exercised so as not to allow the example of itself to overwhelm the words in the provision used. An example is just that, an example and is not intended to be exhaustive of cases which might fall within a section.16 However, if there are two constructions which are open and one would encompass the example but the other would not, the former would ordinarily be preferred.17 While the example does bespeak of physical unavailability, a broader construction which refers to physical and legal availability would still be consistent with the example, rather than excluding it. The example does not in my view confine the proper construction of “available” to meaning “physically available”.
Automatic Fire Sprinklers Pty Ltd v Watson casts little light on the meaning of ‘available’.18 While Dixon J stated, “[t]hey also serve who only stand and wait” he was not addressing the position if the employee is unable to carry out the service because of an external legal prohibition. In the particular passage relied upon, Dixon J stated that “wages are for the service reasonably demanded under a subsisting relationship of master and service.”19 In the present case, if the respondent’s services as a teacher were demanded by the Department of Education, the respondent would not be able to provide those services. Automatic Fire Sprinklers does not provide any support for “available” being limited to physically available.
I agree with the Industrial Court that the decisions of Carr v State of Queensland (Department of Education)20 and Winter v State of Queensland (Department of Education)21 are not authoritative and turn on their own circumstances. While the Industrial Court characterised the individuals in those cases as being physically unavailable, I think they are arguably examples of cases where the employee was not legally and physically available to work, given they did not comply with the employer’s directive to be vaccinated in order to be able to physically present themselves to perform their work. It is however unnecessary for me to decide.
As to the statutory context, it is true that s 101(4) and clause 8.2 of the directive do not suggest a legal impediment or prohibition to perform the work for which the employee is employed is a relevant factor in the determination to deny remuneration, unless it could be regarded as a factor in the consideration of the “broader public interest”. That, however, conflates the factors which cause a suspension without remuneration to be determined with the circumstances in which the directive has provided for reimbursement. They are focussed on different circumstances at different points in time. Clause 10 focusses on when the employee is to be reimbursed and the circumstances which exclude such reimbursement, in particular, circumstances where the employee could not be regarded as standing and waiting to resume employment during the period of suspension. In that respect provision for reimbursement was discretionary and not mandatory. While clause 10 provides a prima facie right for the employee to be reimbursed where the disciplinary process has not resulted in their termination, the directive addresses circumstances that would arise after suspension without remuneration, which could disentitle the employer from receiving reimbursement in whole or in part. In my view the Industrial Court erred in its construction and construed clause 10.5 too narrowly having regard to the word “available” and its statutory context.
In my view “available” is to be construed as being available in both a physical and legal sense and is not confined to physically available because both physical and legal availability are relevant to whether an employee is available to work.
That does not resolve the present appeal. There remains the question of how to construe “to work” in the phrase “available to work”, given that the suspension under the QTC Act only prevented the respondent from carrying out a teaching position. The Industrial Court construed “duty” in s 101(1) to mean “all work”, given that s 101(3) provided that the Chief Executive had to consider reasonable alternatives, including alternative duties and another alternative working arrangement. While I agree that supports a broader meaning of “work” in clause 10.5 of the directive, I do not accept that “available to work” is as broad as an employee, and specifically the respondent, being “available to perform physical exertion for the State in exchange for remuneration”.22
The definition of “work” in the Oxford Dictionary includes “action or activity involving physical or mental effort undertaken in order to achieve a result especially as a means of making ones living or earning money; labour; (one’s) regular occupation or employment”. The definition of work could be confined to the role in which one is employed, but is broad enough to extend to any work the person in question can undertake for their employer. Given clause 10.5 is directed to remuneration payable by the State for the period of the suspension the reference to available to work must refer to availability to work for the employer, namely the State.
That is consistent with clause 10.3 which makes provision for where an employee has engaged in alternative work during the suspension which must contemplate employment by another employer.
The construction of “available to work’ in the directive is assisted by having regard to the s 101(1) and the reference to “duty” and s 101(3) of the PSA. Section 101(3) provides that reasonable alternatives must be considered at the time the decision to suspend is being made which gives some support to a broader meaning. They demonstrate if a reasonable alternative had been available the suspension could not have occurred. Provision is made in clause 11 of the directive for review of the suspension and whether it will be cancelled or continue, having regard to the factors in s 101, which would include s 101(3). That indicates that the review would consider reasonable alternatives in determining whether the suspension could continue.23 Similarly the phrase used “available to work”, suggests a broader meaning of work than the work for which the employee has been employed. Further while the employee is suspended they remain employed by the employer, but can neither work in the position for which they are employed or any other position which would constitute a reasonable alternative which could be offered by the State at the time the decision to suspend was made. While they can seek outside employment, in which case the amount earned is deducted from the employee’s normal remuneration they would have earned, they are not obliged to do so and can await the outcome of the disciplinary proceedings. Section 101(3), however, contemplates that the employee can be deployed to reasonable alternatives rather than being suspended.
In my view, “work” is not to be construed as only meaning the work in the role in which the employee was employed, but extends to work to which the employee could have been deployed as a reasonable alternative. It does not, however, extend to any work given there are obvious limitations recognised in s 101(3) of the PSA of roles to which the employee could be deployed by the State rather than any role, even if the State could not lawfully direct the employee to undertake that role. In my view if the employee is legally and physically available to carry out the role in which they were employed or a reasonable alternative as contemplated by s 101(3), the person in question was “available to work” within the meaning of clause 10.5 of the directive.
The purpose of clause 10.5 is to remunerate the employee for that period in which they were suspended without pay if they remain within the employment of the State and “available to work” for the State. The recognition that an employee will not be suspended if there are reasonable alternative positions, to which regard can be had in ongoing reviews of the suspension, demonstrates that the phrase “available to work” extends beyond the role in which they were employed, if they remained available to work in an alternative position which the State could lawfully direct them to undertake.
The context of “available to work” does not support it being construed as being available for work by any employer for any work whatsoever, because it would not be open to the State to seek to redeploy the employee in a role which is not a reasonable alternative to the role for which they are employed.
While I have found error in the Industrial Court’s decision and not accepted that on its proper construction “available” is confined to physically available, and have adopted a narrower construction of “work”, that does not mean the appeal should be successful, given I have not found that the State’s construction is correct in so far as “available to work’ refers to work the employee is employed to undertake.
The suspension under the QCT Act only extends to suspension of the teacher’s registration or permission to teach. That would not have prevented the respondent being placed in an administrative role. While it may be accepted that there were no reasonable alternatives at the time of the suspension, the fact that the respondent remained employed by the State and was only prevented from working in teaching roles as a result of the suspension by the QCT Act, is not sufficient to establish that the respondent was not available to work and disentitled to be reimbursed for the period he was suspended by the State without remuneration. Thus, in those circumstances, notwithstanding that I have adopted a narrower construction of “available to work”, the respondent was available to work during the period of suspension. The decision of the Industrial Court upholding the decision of the IRC should remain.
Consistent with the submissions of the respondent, s 545 of the Industrial Relations Act 2016 (Qld) does not constrain the order of costs in the Court of Appeal. Costs should follow the event pursuant to r 681 of the UCPR. The State has not been successful in the appeal and should pay the respondent’s costs.
Section 101(8) PSA. ↩
Which is further elaborated upon in clause 7.3 of the directive. ↩
(1946) 72 CLR 435 at 466. ↩
ICQ Decision at [47]. ↩
Section 14 (3) Acts Interpretation Act provides that an example in an act of the operation and provision of the Act is a part of the Act. The directive may be a statutory instrument as defined in s 7 of the Statutory Instruments Act 1992 but this was a matter addressed in argument which proceeded on the basis that statutory interpretation principles were relevant to the construction of the directive. ↩
Brooks v The Federal Commissioner of Taxation (2000) 100 FCR 117 at [66]. ↩
Herzfeld and Prince (Interpretation), Second Edition, 2020. ↩
(1946) 72 CLR 435. ↩
(1946) 72 CLR 435 at 466. ↩
[2023] ICQ 12. ↩
[2022] QIRC 350. ↩
ICQ Decision at [67]. ↩
Bearing in mind the scope of alternative duties to be considered do not have to form part of an established role and can be outside the employee’s usual place of work: clause 7.3 of the Directive. ↩