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Palomino v State of Queensland (Department of Education)[2021] QIRC 136

Palomino v State of Queensland (Department of Education)[2021] QIRC 136

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Palomino v State of Queensland (Department of Education) [2021] QIRC 136

PARTIES:

Palomino, Justin

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/150

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

23 April 2021 – Delivered ex tempore

HEARING DATE:

23 April 2021

MEMBER:

HEARD AT:

Power IC

Brisbane

ORDER:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – Public service appeal – where appellant's fixed term temporary employment status was reviewed pursuant to s 149B of the Public Service Act 2008 – decision made to not to convert appellant's status to permanent employment whether decision was fair and reasonable

LEGISLATION:

Industrial Relations Act 2016, ss 562B and 562C

Public Service Act 2008, ss 148, 149A and 149B

Directive 09/20 Fixed term temporary employment, cl 8

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

APPEARANCES:

Ms N. Vigor for the Appellant

Mr A. Thompson for the Respondent

COMMISSIONER:  I will proceed to give my decision and reasons in this matter.  The appellant, Mr Justin Palomino is currently employed by the State of Queensland through the Department of Education in the position of Information Officer in the Business Systems Maintenance Unit of the Information and Technology Branch of the Department of Education on a temporary basis until the 23rd of April 2021.  By appeal notice filed on 22nd of April 2021, the appellant, pursuant to chapter 7 of the Public Service Act 2008 appeals against a decision that his employment remain as fixed term temporary with the Department.

Appeal principles

Section 562B subsection (1) of the Industrial Relations Act 2016 provides that the section applies to a public service appeal made to the Commission.  Section 562B subsection (2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B subsection (3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

The appeal must be decided by reviewing the decision appealed against. Because the word review has no settled meaning it must take its meaning from the context in which it appears.  An appeal under chapter 11 part 6 division 4 of the Industrial Relations Act is not by way of a rehearing but involves a review of the decision arrived at and the decision making process associated therewith.  The states purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. 

The issue for determination is whether the decision by Lisa Newbold, Director, Employment Review, Human Resources of the respondent to deny conversion of the appellant's employment to permanent was fair and reasonable in all of the circumstances.  This requires a consideration of section 149B of the Public Service Act and of directive 09/20 fixed term temporary employment.  In deciding this appeal, section 562C of the Industrial Relations Act provides that the Industrial Commissioner may confirm the decision appealed against or set the decision aside and substitute another decision or set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant provisions of the Public Service Act and the directive include section 149B of the Public Service Act which provides for the provisions relating to the review of status after two years continuous employment.  Section 149A subsection (2) provides that the Department's chief executive may offer to convert the person's employment under section 149 subsection (3) subsection (b) only if the Department's chief executive considers that there is a continuing need for someone to be employed in the person's role or a role that is substantially the same as the person's role and the person is eligible for appointment having regard to the merit principle and any requirements of an industrial instrument are complied with in relation to the decision. 

Section 149A subsection (3) of the Public Service Act provides if the matters in subsection (2) are satisfied, the Department's chief executive must decide to offer to convert the person's employment basis as a general employee on tenure or a public service officer unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the Department.

The directive provides under clause 8 the provisions with respect to a review of status. 

Background

The first decision to decline conversion of the appellant's employment basis to permanent was made by Lisa Newbold in a letter dated 30 March 2021.  The appellant appealed this decision which was heard and determined by Deputy President Merrell.  Deputy President Merrell ordered that the decision be set aside and the matter be returned to the decision maker to conduct a fresh review of the appellant's employment status, following which, a notice in compliance with section 149B subsection (6) and clause 8.4 of the directive was to be issued.

The respondent conducted a fresh review and a decision was made by Ms Newbold on the 20th of April 2021, that the appellant's temporary employment will not be converted to permanent.  This will be referred to as 'the decision' in this appeal.  The appellant filed an appeal notice on the 22nd of April 2021. As the appellant's temporary employment is due to end on the 23rd of April 2021, the Commission listed this matter for an urgent hearing on the morning of the 23rd of April 2021.

Grounds of appeal

The appellant outlined the following grounds of appeal.  A, the decision maker has failed to adequately consider roles that are substantially the same as the role being performed and B, the appellant meets the requirements of section 149A of the Public Service Act for conversion to tenured employment because there is a continuing need for the work that he is currently doing or work that is substantially the same.  There are no genuine operational requirements sufficient to displace the onus on the employer to employ the appellant on tenure.

The respondent's position

The respondent outlined in the decision the reasons that the appellant was not afforded conversion to permanent employment.  I quote the following paragraphs from the decision:

I have determined that there is a continuing need for someone to be employed in the role you are performing.  You are eligible for appointment having regard to the merit principle and there are no relevant requirements of the certified agreement which need to be complied with in relation to making the decision which would inhibit an offer from being made.  Although the matters referred to above have been satisfied, I consider that it is not appropriate to offer to

 convert your employment basis to permanent having regard to the genuine operational requirements of the Department. 

Specifically, the purpose of your employment is to fill a temporary vacancy arising because a person was absent for a known period.  The existing permanent employee was absent from the role to perform another role within the Department, requiring replacement until the date of their expected return.  The existing permanent employee was engaged in a higher classification role within another organisational unit of the Department which resulted in Business Systems and Maintenance needing to engage an employee to backfill the vacancy in a temporary capacity.  The existing employee has since returned to their substantive role in Information Technologies Branch on 19 April 2021.

The decision maker proceeds to state that she has turned her mind to whether there are any other roles that are substantially the same as the role the appellant is currently performing that should be considered under this decision.  The decision maker states that following consultation with Ms Emilie McMullin, Acting Senior HR Consultant, Recruitment Services Unit, she can advise that there have been no permanent AO4 information officer roles advertised within the Department this year.  The decision outlines Ms Newbold's consultations with ITB to review their establishment to determine if there are any vacant roles that are substantially the same as the role the appellant is currently performing.  To determine if any vacant roles are substantially the same as the role currently performed, the decision advises that Ms Newbold sought advice from ITB regarding the duties and responsibilities of the AO4 Information Officer role.  These duties and responsibilities are outlined in the decision.

The decision outlines details of the five currently vacant roles in the ITB establishment ranging from AO3 to AO5.  The decision states that each of the role descriptions for these positions have been reviewed and compared to those of the AO4 Information Officer role.  A summary is provided in the decision of the roles and responsibilities for each of the five vacant positions along with the decision maker's determination as to whether any of these roles are substantially the same as the AO4 Information Officer role.  The decision concludes with the following remarks:

Based on my review of the role descriptions for the above positions, I have been unable to identify any permanent roles within ITB that are substantially the same as the role you are currently performing.  Furthermore, as stated above, as there is an existing employee substantively engaged in the role that you are backfilling and this officer has since returned to their role on 19 April 2021, a genuine operational requirement exists to not offer to convert your employment basis to permanent at this time.

The appellant's position

The appellant submitted that the decision maker has failed to adequately consider roles that are substantially the same as the role currently performed by the appellant.  The appellant submits that this is demonstrated by the following:  A, when making inquiries to the Recruitment Services Unit on 16 April 2021 for roles, no inquiry was made as to whether there were any advertised roles which are substantially the same as the AO4 Information Officer roles as required by section 149A subsection (2) subsection (a)(i) of the Public Service Act;  B, the decision letter provides that there are only five vacant roles in the Information and Technology Branch establishment. However, the appellant is aware that there is an equivalent of 62 vacant roles in the ITB from information previously provided to the appellant and contends that it is unreasonable that only five vacancies have been considered by the Department in the ITB;  C, when determining whether the appellant's role is substantially the same to any of the five vacancies in the ITB which have been provided by the Department, the appellant's specific duties as an AO4 Information Officer have been compared against the generic role descriptions of those five roles. 

The appellant submits that this disadvantages him by narrowing whether his current role as an AO4 information officer can be considered as substantially the same to any of those five vacant roles.  The appellant submits that there is a continuing need for the work that he is doing or work that is substantially the same and that there are no genuine operational requirements sufficient to displace the onus on the employer to employ him on tenure.

Consideration

To determine the outcome of this appeal, I'm required to assess whether the decision appealed against was fair and reasonable. The decision maker considered the criteria outlined in section 149A subsection (2) subsection (a)(ii) of the Public Service Act and determined that the appellant satisfied the merit criteria and in compliance with section 149A subsection (2) subsection (b) noted that there are no requirements of relevant industrial agreements that must be complied with in relation to the decision. 

As outlined in the letter of the decision maker dated 20 April 2021, the decision maker determined that the appellant's employment would not be converted to permanent at this time on the basis that an existing employee substantively engaged in the role returned to the role on the 19th of April 2021 and no other permanent roles within ITB were identified as substantially the same as the role currently being performed.  Section 148 subsection (2)(a) of the Public Service Act provides that employment on tenure may not be viable or appropriate if the

employment to fill a temporary vacancy arises because a person is absent for a known period, for example, on secondment.  In these circumstances, I accept that there is not a continuing need for the appellant to perform in the role in which he is currently temporarily placed on the basis that the permanent employee returned to this role on the 19th of April 2021.

Section 149A subsection (2)(a)(i) provides that the chief executive must also consider whether there is a continuing need for someone to be employed in a role

that is substantially the same as the person's role.  The decision maker has outlined in the decision the steps taken to identify whether there is a continuing need for someone to be employed in a role that is substantially the same.  The decision maker outlined the duties and responsibilities of the appellant's current temporary role as an AO4 Information Officer and compared those with the five vacant roles within the ITB establishment, concluding that the roles were not substantially the same as the role the appellant is currently performing.

At the hearing of this appeal, the appellant submitted that 62 positions were currently vacant within the agency.  The respondent submitted that as part of this review, these positions were examined to determine if any could be considered substantially the same as the one currently occupied by the appellant.  Following this analysis, five positions were identified as potentially meeting the description of 'substantially the same'.  These five positions were identified in the decision along with comparisons with the appellant's current role.  The decision maker determined that the positions were not substantially the same as the appellant's current role.  On the basis that there is not a continuing need for a person to be employed in a role substantially the same, the decision maker declined to convert the appellant's employment.

Submissions were made with respect to the reason that the 62 positions remained vacant.  To be clear, if the reason that the appellant was not converted to one of those positions was due to generic budgetary preferences as submitted, this decision may not be considered reasonable as this is not a requirement of the directive.  The respondent gave submissions that the 62 positions were examined in significant detail before concluding that they were not substantially the same and it is primarily on this basis that I accept that the decision was reasonable.

The appellant submitted that the comparison of the generic role descriptions of other roles with the specific duties of the appellant's role was an unfair comparison.  The respondent submitted that an in-depth analysis was done of the duties of all positions in order to determine if the roles were substantially the same.  Whilst this is not clear from the decision, there is no evidence before me to dispute that this in-depth analysis occurred.

The decision notes that inquiries were made to the Recruitment Services Unit on 16 April 2021 as to whether there were any AO4 Information Officer roles advertised within the Department this year.  The appellant submits that no enquiry was made as to whether there were any advertised roles which are substantially the same as the AO4 Information Officer roles as required by the directive.  I accept that if this was the only inquiry made it may be considered deficient on the basis that it did not consider substantially similar roles. 

However, it is clear from the decision that further inquiries were made to identify these substantially similar roles.  The directive does not require the respondent to search for all roles within an agency to identify any possible role that might match the appellant's skillset.  The directive only requires consideration of the continuing need to perform the role or a role substantially the same.  The respondent's decision

demonstrates that roles were identified and considered across a range of positions and classifications ranging from AO3 to AO5.  I am satisfied that the respondent has complied with this requirement. 

As outlined by Deputy President in Morison v State of Queensland (Department of Child Safety, Youth and Women), when considering section 149C subsection (4A) the phrase "genuine operational requirements of the Department" would at least include consideration of the following:

Whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the Department for the requisite period of time.

The respondent's determination that there is no role that is substantially the same as the appellant's current role can reasonably be considered a genuine operational requirement for the employment not to be converted to permanent. 

Section 149A subsection (4) of the Public Service Act requires that the chief executive must give the person who has not had their employment converted a notice stating the reasons for the decision, the total period for which the person has been continuously employed in the Department under section 149 and the number of times the person's employment has been extended.  The decision complies with the requirements of section 149A subsection (4), with the decision maker noting that the appellant has been employed in the Department for three years, one month and 25 days following 14 extensions as a fixed term temporary employee. 

Clause 8.4 of the directive requires that a notice of decision must, in accordance with section 27B of the Acts Interpretation Act, A, set out the findings on material questions of fact and B, refer to the evidence or other material on which those findings were based.  I am satisfied that the decision complies with the requirements of clause 8.4 of the directive.  For the foregoing reasons, the decision to decline to convert the appellant's fixed term temporary employment to permanent was fair and reasonable in the circumstances.  I make the following Order – pursuant to section 562C subsection (1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

Close

Editorial Notes

  • Published Case Name:

    Palomino v State of Queensland (Department of Education)

  • Shortened Case Name:

    Palomino v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 136

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    23 Apr 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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