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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Kidd v State of Queensland (Queensland Health)  QIRC 012
State of Queensland (Queensland Health)
Public Service Appeal – Casual employment conversion
19 January 2021
On the papers
That, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – where the deemed outcome of the review was that the appellant was not permanently appointed – consideration of ‘casual employment’.
Acts Interpretation Act 1954 (Qld) s 14A
Directive 09/20 Fixed term temporary employment
Directive 08/20 Casual employment
Industrial Relations Act 2016 (Qld) s 564, s 562B, s 562C
Public Service Act 2008 (Qld) s 120, s 147, s 149, s 149B, s 194, s 196, s 197
Statutory Instruments Act 1992 (Qld) s 7, s 14
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)
Katae v State of Queensland & Anor  QSC 225
Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
WorkPac Pty Ltd v Rossato  FCAFC 84
WorkPac Pty Ltd v Skene  FCAFC 131
Reasons for Decision
- Mr Douglas Kidd (the Appellant) has filed an appeal against a deemed conversion decision (the decision) made by the State of Queensland (Queensland Health).
- Mr Kidd was employed as a casual Fire Safety & Security Officer with the Respondent from 14 May 2018. On 12 August 2019, he was offered what the Respondent describes as a temporary engagement in a full-time capacity, to conclude on 29 January 2021.
- On 14 October 2020, Mr Kidd wrote to the Respondent and sought to be converted “from casual to permanent” employment, under s 149B of the Public Service Act 2008 (Qld). No decision was forthcoming by the Respondent, and so a decision rejecting that request was deemed to have occurred. On 24 November 2020, Mr Kidd appealed against that deemed decision.
- In essence, Mr Kidd argues that he has only ever been a casual employee of the Respondent, and he was not actually converted to temporary employment.
- I have rejected that argument. I have instead found that on 12 August 2019, Mr Kidd became a full-time fixed-term temporary employee. He thereby ceased to be a casual employee, as those employment types are mutually exclusive and foundationally incongruous. As such, when Mr Kidd requested to be converted from casual to permanent employment on 14 October 2020, he was ineligible to do so because he was no longer a casual employee.
- As such, I have confirmed the deemed decision not to convert Mr Kidd to permanent employment. My reasons follow.
- Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
- Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.
- The issue for my determination is whether the decision not to convert Mr Kidd’s employment status to permanent was fair and reasonable in the circumstances.
What decisions can the IRC Member make?
- Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
- Confirm the decision appealed against; or
- Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
- Set the decision aside and substitute another decision.
- In accordance with the Directions Order issued on 25 November 2020, the parties filed written submissions.
- Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal. The matter was decided on the papers.
- Mr Kidd set out why he believes the deemed decision was unfair and unreasonable in the Appeal Notice filed on 24 November 2020. Those reasons are summarised as follows:
- On 14 June 2018 Mr Kidd commenced casual employment at the Rockhampton Hospital.
- On 14 October 2020 Mr Kidd wrote to the Respondent asking to be converted from casual to permanent employment, as he had been continuously employed as a casual for more than two years and satisfies the other relevant criteria.
- There was no response within time, and so there was a deemed decision to reject the request.
- Mr Kidd was eligible for review under s 149B of the PS Act, and so appeals accordingly.
- Mr Kidd has been employed as a casual on a regular and systematic basis during the relevant two year period, satisfied the merit criteria, is required to be employed in his present role, and there are no genuine operational reasons to reject his request.
- The outcome of this appeal should be that Mr Kidd is converted to permanent employment.
- On 25 November 2020, Mr Kidd filed submissions. Those are reflective of his previous submissions. He also attached a letter he had written to the Respondent, requesting to be converted “from casual to permanent”, and makes several references to that effect.
- The Department’s submissions, filed 9 December 2020, can be summarised as follows:
- There was a deemed decision to reject Mr Kidd’s request for conversion.
- On 1 July 2019, Mr Kidd accepted a temporary employment engagement with the Respondent on a 0.21FTE basis.
- On 12 August 2019, Mr Kidd accepted a full-time temporary employment engagement with the Respondent. Since that time, Mr Kidd has not been engaged as a casual.
- Mr Kidd’s present employment is premised upon funding which is not likely to be recurring, as it relates to the construction of a multi-story carpark. There are presently some discussions within the Department as to whether and how funding for Mr Kidd’s position will continue.
- Given that the funding is presently uncertain, the Department has not yet engaged in a detailed review of Mr Kidd’s present engagement, though intends to do so once that funding issue has been clarified. Given that employees may only request one conversion every 12 months, that was seen to be to Mr Kidd’s advantage.
- The Respondent also makes reference to other matters currently in conciliation before the Commission.
Appellant reply submissions
- On 16 December 2020, Mr Kidd filed submissions in reply. Insofar as they are different than his previous submissions, they may be summarised as follows:
- Mr Kidd is not a temporary employee, but rather is a casual employee. That is evidenced by an attached “Movement Details” form, which includes a line saying “Employee will continue to hold their existing position with the proposed position”.
- Mr Kidd then submits that he is therefore not a temporary employee, as “The Appellant must revert to his existing substantive position at the conclusion of his movement on 29 January 2021.”
- Broadly, Mr Kidd submits that the funding for his position is not insecure, and that submission should be rejected. Mr Kidd refers to a recommendation provided to the Executive Management Team that his position should be permanently funded.
- The Respondent has not sufficiently considered the objects and purpose of the PS Act and relevant directives in reaching their conclusions regarding funding.
- The deemed decision is itself an appealable decision. It follows that the Respondent’s submissions regarding making further decisions are incorrect; a decision has already been made.
- The Respondent does not provide adequate evidence of any genuine operational reasons.
- Both parties make reference to another matter before the Commission, D/2020/106. That matter was not brought by Mr Kidd, and has no direct relevance or significant indirect relevance to his review or subsequent appeal.
- Mr Kidd has sought to be converted from casual to permanent employment. Self-evidently, in order for a person to be converted from casual to permanent employment, the person must in fact be a casual employee. That is reflected in the Casual Employment Directive 8/20.
- The preliminary issue is therefore whether Mr Kidd remained a casual employee after 12 August 2019, or not.
- Broadly, Mr Kidd’s position is that he was only ever a casual employee with the Department, and on 12 August 2019 he was not converted to temporary employment but instead merely moved to another position.
In rejecting WorkPac’s contention, we do not intend to suggest that the payment of a casual loading may not be a relevant indicator in the characterisation process. Our conclusion however reinforces the importance of the “essence of casualness” referred to in Hamzy. We respectfully agree with Wilcox, Marshall and Katz JJ in Hamzy at  that the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) the employee will work” is the essence of casualness. That insightful description needs to be further explored so as to expose its rationale.
What needs to be recognised is that the expression “casual employee” describes a type of employment that, at least in part, takes its meaning from other recognised types of employment. Beyond the reference made to casual employees, there is extensive reference made in the FW Act to two other types of employees – full-time and part-time employees (including, in Pt 2–2 at ss 62(1), 63(1), 64(1) and 114(4) in respect of full-time employees, and ss 65(1B) and 114(4) in respect of part-time employees). This reflects the reality that the vast majority of employees in Australia conveniently fall into one of three categories – full-time, part-time or casual. Another type of employee also extensively referred to in the FW Act is a “shiftworker”, but a shiftworker will usually also be a full-time, part-time or casual employee.
A “type” of anything is usually distinguished by a characteristic or perhaps several characteristics not present in other categories of a like nature. The characteristic that distinguishes full-time and part-time employment is that those employments are on-going (sometimes called “permanent”) employments. On-going employment does not mean life-long employment (McClelland v Northern Ireland General Health Services Board  1 WLR 594 at 601 (Lord Goddard); Haley v Public Transport Corporation of Victoria (1998) 119 IR 242 at  (Ashley J) but on-going employment is employment for an indefinite term subject to rights of termination (McClelland at 601 (Lord Goddard)). It is characterised by a commitment by the employer, subject to rights of termination, to provide the employee with continuous and indefinite employment according to an agreed pattern of ordinary time (as distinct from overtime) work. A corresponding commitment to provide service is given by the employee. What distinguishes a full-time employee from a part-time employee is the pattern of work agreed to. A full-time employee’s pattern of work will be the ordinary full-time hours applicable at the particular workplace (eg eight hours each week-day). A part-time employee’s pattern of work will be a fixed number of ordinary hours, the number of hours being less that the full-time ordinary hours applicable at the workplace, worked at a regular time on regular days (eg 9.00 am to 1.00 pm every Monday, Tuesday and Thursday).
In contrast, a casual employee has no firm advance commitment from the employer to continuing and indefinite work according to an agreed pattern of work. Nor does a casual employee provide a reciprocal commitment to the employer. That characteristic, drawn from Hamzy, is what White J referred to in more general terms in South Jin at  as “any commitment by the employer or the worker to ongoing employment”. In our view, what is referred to in Hamzy as the “essence of casualness”, captures well what typifies casual employment and distinguishes it from either full-time or part-time employment.
The indicia of casual employment referred to in the authorities – irregular work patterns, uncertainty, discontinuity, intermittency of work and unpredictability – are the usual manifestations of an absence of a firm advance commitment of the kind just discussed. An irregular pattern of work may not always be apparent but will not necessarily mean that the underlying cause of the usual features of casual employment, what Hamzy identified as the “essence of casualness”, will be absent.
… spoke of an absence of a firm advance commitment as capturing the “essence” of casualness and as that which “typifies casual employment”.
- In each of those cases, the Full Court considered federal legislation and was not required to consider fixed term temporary employment per se. However, that distinction is resolved by considering the nature of fixed term employment in the PS Act, which at s 147 provides:
147 Employment of general employees
- (1)A chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer.
- (2)The employment may be—
- (a)on tenure or a temporary basis for a fixed term and full-time or part-time; or
- (b)on a casual basis.
- (3)A person employed under this section does not, only because of the employment, become a public service officer.
- (4)Subsections (1) and (2) are subject to a directive about general employees.
- In one sense, it can be said that there are two broad species of employment under that section of the PS Act: full/part-time, and casual. A full-time or part-time employee may be tenured or fixed term. A casual employee is neither full-time nor part-time; they do not have a firm advance commitment of regular and systematic employment.
- Mr Kidd has attached a form titled “Movement Details” to his reply submissions. On that form, under the heading “Concurrent/Aggregate Proposed Status”, the next line reads “Employee will continue to hold their existing position with the proposed position.” Mr Kidd submits that such an entry indicates that he is in fact a casual employee.
- I do not accept Mr Kidd’s submission about the relevance of that line on the form, for several reasons.
- First, Mr Kidd’s submission ignores several other pertinent features of the form. The first heading reads “Movement Task”, followed by the entry “Casual to Temporary”. The next heading reads “Effective Period”, followed by “12.08.2019 – 29.01.2021”. Under the heading “Position Title”, the entry is “Fire Safety & Security Officer TMP”. Under the “Employment Conditions” section, it is noted that Mr Kidd will be employed on a “Full Time” basis, for “76.00” hours fortnightly.
- Second, Mr Kidd’s type of employment is a question of substance rather than form, and the types of employment are mutually exclusive. As the Full Court said in Skene (emphasis added, citations removed):
The discussion has sought to emphasise that, in their ordinary conceptions, casual employment and full-time and part-time employments are mutually exclusive categories of employment. An employee cannot be both a casual employee and full-time or part-time employee at the same time in the same employment. The features that distinguish one from the other are important to bear in mind in the characterisation process.
It is also necessary to bear in mind that employment arrangements may change during the course of an employment. What is agreed to at the commencement of an employment is relevant to the characterisation process, but an employment which commences as casual employment may become full-time or part-time because its characteristics have come to reflect those of an on-going part-time or full-time employment.
The conduct of the parties to the employment relationship and the real substance, practical reality and true nature of that relationship will need to be assessed.
- On 12 August 2019, Mr Kidd’s employment conditions changed. He was to be moved from casual to temporary, and employed on terms specifically including full-time hours (76 hours per fortnight), in a precise position at classification OO3, for the period 12 August 2019 to 29 January 2021. That constitutes a firm, advance commitment of regular and systematic employment, for a fixed term. As such, on 12 August 2019, Mr Kidd became a fixed-term temporary employee, and so ceased to be a casual employee.
- It appears to me that the entry about his existing position is included to facilitate Mr Kidd’s transition from the temporary engagement back to his casual employment, once the temporary engagement concludes on 29 January 2021. He does not, and in fact cannot, remain a casual employee in the interim. That entry has very little bearing on the substantive nature of his employment, particularly where that same form includes other overt indicia of full-time employment.
- Mr Kidd is no longer a casual employee, and since 12 August 2019 he has been a temporary employee. It follows that he could not then have been converted from casual employment to permanent employment in the requisite period, nor could he be converted from casual to permanent employment now. As such, the deemed decision of the Department not to convert Mr Kidd was fair and reasonable.
- Mr Kidd sought to be converted from casual to permanent employment. However, on 12 August 2019, Mr Kidd became a temporary employee. That is apparent from both the substance of his engagement, including factors such as his position being “full time” for a certain number of hours per fortnight, and the form of his engagement, namely being moved from casual to temporary. Because he is no longer a casual employee, and has not been for some time, he cannot be converted from casual to permanent employment.
- It is therefore unnecessary for me to consider the parties’ further submissions about genuine operational reasons for declining the conversion.
- The deemed decision of the Department not to convert Mr Kidd from casual to permanent employment was fair and reasonable. I confirm the decision appealed against.
- I order accordingly.
That, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
 Attachment DK-01 of the Appellant’s reply submissions, filed 16 December 2020.
 ‘PS Act’.
 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).
 Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).
 Industrial Relations Act 2016 (Qld) s 567(2).
 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252,  - ; Industrial Relations Act 2016 (Qld) s 562B.
 Any evidence intended to be relied upon by the Appellant should be adduced before the Respondent is to file their submissions, so as to afford the Respondent a fair opportunity to respond. However, given the outcome of this appeal, the fact that the document is within the possession of the Department, and the submissions of the Department regarding Mr Kidd’s employment status, it is unnecessary for me to invite further submissions from the Respondent.
 See, for example, the Casual Employment Directive 8/20 cl 3.1 and cl 3.4. Together, those clauses provide that the directive applies to casual employees, and temporary employees should refer to the fixed term temporary employment directive.
 WorkPac Pty Ltd v Skene  FCAFC 131, (‘Skene’).
 Ibid,  – .
 WorkPac Pty Ltd v Rossato  FCAFC 84, (‘Rossato’). I note this matter is presently on appeal to the High Court.
 Ibid, .
 WorkPac Pty Ltd v Skene  FCAFC 131,  - , .
- Published Case Name:
Kidd v State of Queensland (Queensland Health)
- Shortened Case Name:
Kidd v State of Queensland (Queensland Health)
 QIRC 12
Member McLennan IC
19 Jan 2021