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Finn v State of Queensland (Department of Health)[2021] QIRC 144

Finn v State of Queensland (Department of Health)[2021] QIRC 144

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Finn v State of Queensland (Department of Health) [2021] QIRC 144

PARTIES:

Finn, Greg

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2020/288

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

29 April 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  2. The decision that Mr Finn not have his temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Mr Finn's temporary employment status be converted to permanent employment.

CATCHWORDS:

INDUSTRIAL LAW – APPEAL – temporary employment – where the appellant was reviewed under s 149 of the pre-amendment Public Service Act 2008 (Qld) – where the outcome of the review was that the appellant was not permanently appointed – consideration of whether the decision was fair and reasonable – consideration of genuine operational requirements – where the decision is set aside and another decision is substituted

LEGISLATION AND DIRECTIVES:

Acts Interpretation Act 1954 (Qld) s 14A, sch 1

Directive 08/17 Temporary Employment cl 1, cl 7, cl 9, cl 11, cl 12, cl 14

Directive 09/20 Fixed term temporary employment cl 7

Financial Management Accountability Act 2009 (Qld) s 61

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Service Act 2008 (Qld) s 149, s 194, s 196, s 294

Statutory Instruments Act 1992 (Qld) s 7, s 14

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

IW v City of Perth (1997) 191 CLR 1

Katae v State of Queensland & Anor [2018] QSC 225

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Mr Greg Finn (the Appellant) has filed an appeal against a temporary employment conversion decision (the decision) made by Ms Debbie Carroll, Chief Executive (the decision maker) of the Wide Bay Hospital and Health Service, Department of Health (the Respondent; the WBHHS). 
  1. [2]
    Mr Finn is currently substantively employed as a casual OO2 Operational Services Officer (Wards Person) at the Bundaberg Base Hospital with the WBHHS.
  1. [3]
    Mr Finn submits he has been employed by the Respondent as a casual employee since 25 July 2013. However, the Respondent contends Mr Finn has 'been continuously engaged in various temporary contracts over the last two years.' Regardless, neither party has claimed there was any break in Mr Finn's service throughout that period of employment.
  1. [4]
    For the reasons outlined below, I find Mr Finn has been employed on a temporary basis rather than a casual basis and the decision to continue Mr Finn as a temporary employee was not fair and reasonable in the circumstances.

The Decision

  1. [5]
    The terms of the decision were provided to Mr Finn in correspondence from the decision maker on 19 October 2020 (the decision letter).
  1. [6]
    The decision subject of this appeal is the Respondent's determination under Directive 08/17 Temporary Employment (Directive 08/17) not to convert Mr Finn's employment status from temporary to permanent. 

Submissions

  1. [7]
    In accordance with the Directions Order issued on 11 November 2020 and Amended Directions Order issued on 26 November 2020, the parties exchanged written submissions. 
  1. [8]
    Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) (IR Act), no hearing was conducted in deciding this appeal.  The matter was decided on the papers.

Employment Status

  1. [9]
    Whether Mr Finn has been employed by the Respondent as a temporary or casual employee is a point in dispute between the parties.
  1. [10]
    Mr Finn contends he has always been employed as a casual employee.
  1. [11]
    In a letter dated 23 September 2020, the Respondent states that Mr Finn is not engaged as a casual employee but rather Mr Finn has been engaged on temporary contracts over the prior two-year period.
  1. [12]
    Subsequently, in its submissions dated 30 November 2020, the Respondent states that Mr Finn is substantively employed as a casual but "has been continuously engaged in various temporary contracts over the last two years with the Respondent."
  1. [13]
    The Respondent annexed a schedule of Mr Finn's employment contracts to its submissions - indicating that Mr Finn's last casual engagement ended on or about 26 August 2016 and he has been temporarily employed from that time until on or about 14 December 2020, when he returned to the substantive casual position.
  1. [14]
    In response to an email inquiry made by the Industrial Registry on 15 March 2021, the Respondent stated that Mr Finn's "… current temporary contract is due to expire 21 March 2021." The following day, the Respondent provided email confirmation that the temporary contract would be extended until the Appeal has been determined. That consideration was appreciated.
  1. [15]
    I am persuaded by the Respondent's submissions in this regard and will determine this Appeal on the basis Mr Finn has been employed as a temporary employee after two years or more of continuous service.

Jurisdiction

Decision against which an appeal may be made

  1. [16]
    On 24 August 2020, the Australian Workers' Union on behalf of Mr Finn applied for conversion of what he considered to be 'casual' employment to permanent pursuant to s 149A of the pre-amendment Public Service Act 2008 (Qld) (Pre-Amendment PS Act).
  1. [17]
    Notably, Mr Finn's request was made prior to significant changes to the Pre-Amendment PS Act that took effect on 14 September 2020.
  1. [18]
    Section 149 of the Pre-Amendment PS Act required the department's chief executive to decide whether to convert a temporary employee "at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department" and "at the end of each 1-year period" thereafter.[1]
  1. [19]
    As outlined above, I find that Mr Finn was temporarily employed and therefore consider his application is more appropriately characterised as a request made pursuant to s 149 of the Pre-Amendment PS Act.
  1. [20]
    Section 294 of the current Public Service Act 2008 (Qld) (PS Act) provides as follows:

294 Continuation of previous section 149 for particular temporary employees

  1. (1)
    This section applies if—
  1. (a)
    a temporary employee was, under section 149 as in force immediately before the commencement, entitled to a decision by the chief executive; and
  1. (b)
    on the commencement, the decision has not been made.
  1. (2)
    Section 149, as in force immediately before the commencement, continues to apply in relation to the employee.
  1. [21]
    On 27 August 2020, the Respondent advised Mr Finn that a review of his conversion request would commence, albeit under the initial misconception that Mr Finn was a casual employee.
  1. [22]
    I am satisfied that prior to the commencement of changes to the Pre-Amendment PS Act on 14 September 2020, Mr Finn was entitled to a decision under s 149 of the Pre-Amendment PS Act. The decision was not made until 19 October 2020, after the commencement of the changes. Therefore, in accordance with s 294 of the PS Act, s 149 of the Pre-Amendment PS Act continues to apply in relation to this matter.
  1. [23]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. 
  1. [24]
    Section 194(1)(a) of the PS Act provides that an appeal may be made against "a decision to take, or not to take, action under a directive". This is the 'type of decision' Mr Finn marked as being appealed against in the Appeal Notice. Section 196(a) of the PS Act prescribes that a "public service employee aggrieved by the decision" may appeal "if the employee is entitled to appeal under a directive of the commission chief executive". 
  1. [25]
    The Directive 09/20 Fixed term temporary employment (Directive 09/20) came into effect on 25 September 2020. Conversion reviews that commenced before 25 September 2020 are to be finalised in accordance with the provisions of Directive 08/17.[2] The conversion review commenced on 23 September 2020 and I am therefore satisfied that Directive 08/17 is applicable - this is not a point in dispute.
  1. [26]
    Clause 12.1 of Directive 08/17 provides that "A temporary employee has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert a temporary employee."
  1. [27]
    Section 194(1)(e) of the Pre-Amendment PS Act provided that "a decision under section 149 that a temporary employee's employment in a department is to continue as a temporary employee" is an appealable decision.
  1. [28]
    For the reasons outlined above, I am satisfied the decision was made under s 149 of the Pre-Amendment PS Act and is able to be appealed.

Timeframe for appeal

  1. [29]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [30]
    The decision letter was dated 19 October 2020 and Mr Finn confirmed it was provided to him on 19 October 2020 - this is not a point in dispute. 
  1. [31]
    The Notice of Appeal was filed with the Industrial Registry on 6 November 2020. 
  1. [32]
    I am satisfied that the Appeal was filed by Mr Finn within the required timeframe.

Appeal principles

  1. [33]
    Section 562B(2)(3) of the IR Act provides that the Appeal is decided by reviewing the decision appealed against to determine whether it "was fair and reasonable".
  1. [34]
    The appeal is not conducted by way of re-hearing,[3] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[4] 
  1. [35]
    Findings made by the Respondent, 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.[5]
  1. [36]
    The issue for my determination is whether the decision not to convert Mr Finn's employment status from temporary to permanent was fair and reasonable in the circumstances.[6]

 What decisions can the IRC Member make?

  1. [37]
    Section 562C 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 issue 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

Documents considered

  1. [38]
    The materials considered in arriving at this decision included the:
  • Appeal Notice;
  • Attachment GF-01 to the Appeal Notice comprising a letter from the Australian Workers' Union to the Respondent dated 24 August 2020;
  • Attachment GF-02 to the Appeal Notice comprising a letter from the Respondent to Mr Finn dated 23 September 2020;
  • Attachment GF-03 to the Appeal Notice comprising the decision letter;
  • Submissions of Respondent;
  • Attachment WB-01 to Submissions of Respondent comprising a schedule of Mr Finn's temporary employment contracts;
  • Attachment WB-02 to Submissions of Respondent comprising correspondence from the Respondent to Mr Finn dated 27 August 2020; and
  • Appellant's Reply Submissions.

Appeal Notice

  1. [39]
    In the Appeal Notice filed on 6 November 2020, Mr Finn states that:
  • The decision to reject his Application was not fair and reasonable when considering Directive 08/17 as a whole;
  • The Respondent failed to consider all relevant factors within the objects and nature of the relevant legislative including:

– the State's commitment to engage employees permanently wherever possible;

– temporary employment should only be used when permanent employment is not viable or appropriate;

– agencies should proactively manage their workforce planning to reduce reliance upon temporary employment;

– an extensive review process was created to facilitate conversions; and

– that process is subject to appeal to ensure compliance.

  • The Respondent paid "particular attention" to cl 7.2 of Directive 08/17 which stipulates "circumstances that indicate an appointment should be on a temporary rather than permanent basis" whereas cl 7.1 stipulates that "temporary employment should only be used when ongoing employment is not viable or appropriate";
  • The issue is not whether it was appropriate to initially employ Mr Finn on a temporary basis, but rather whether that should continue;
  • It is not in dispute that Mr Finn meets the minimum service, merit and regular and systematic employment requirements;
  • Clause 9.7 of Directive 08/17 provides that "A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so…";
  • The conversion request "failed solely on the grounds of alleged 'genuine operational reasons'";
  • Genuine operational reasons must go beyond managerial inconveniences and difficulties that commonly occur when a casual or temporary employee is converted to permanency. Further, it is an inherent requirement of conversion that there will be budgetary reallocations, backfilling requirements and the like;
  • Within any staffing budget provision, it is a "superficial concern" as to whether wages for a staff member come from a permanent or temporary line item;
  • Giving due consideration to the object, scope and purpose of the relevant legislation, a limited interpretation of 'genuine operational reasons' would defeat the purpose of Directive 08/17 and the review;
  • A reasonable genuine operational reason is one which is sufficiently substantial as to warrant overcoming the Respondent's commitment to permanent employment;
  • The decision is unreasonable because it lacks evidence and intelligible justification; and
  • It is inappropriate for Mr Finn to be placed on a waiting list as there does not need to be a substantive vacancy for conversion to permanent employment to occur. 

Respondent's stated reasons for not converting Mr Finn to permanent employment

Decision letter

  1. [40]
    In the decision letter, the Respondent provided reasons for not converting Mr Finn to permanent employment.  In summary, they were:
  • Mr Finn's temporary employment has been for the purpose of replacing an employee taking a period of leave until the date of their expected return or when an existing employee is absent from their substantive role due to secondment. In accordance with cl 7.2 of Directive 08/17, this circumstance indicates Mr Finn's appointment should be temporary rather than permanent; and
  • In accordance with cl 9.7 of Directive 08/17, there are genuine operational reasons not to convert Mr Finn's employment, specifically:

– The full-time equivalent establishment must align with the WBHHS staffing (MOHRI) cap;

– There are currently no budgeted vacancies within the area in which Mr Finn is engaged to perform backfill contracts in accordance with cl 7.2 of the Directive; and

– If Mr Finn were to be converted to permanent, the Respondent would be required to create a new permanent position in which to place him which would be above the staffing cap for the WBHHS and without the required budget.

Submission to QIRC

  1. [41]
    In its written submission to the QIRC dated 30 November 2020, the Respondent further explained their reasons for not converting Mr Finn to permanent employment:
  • Mr Finn has never been contracted to cover either a long term vacant or unfunded position. Rather, the nature of Mr Finn's engagement is to backfill contracts. Mr Finn has only been contracted to cover roles where the incumbent position holder has been temporarily absent due to recreation leave, sick leave, QSuper, training, graduated return to work, WorkCover, etc;
  • The use of casual and temporary employees is genuinely and legitimately required to ensure resourcing across a 24/7 roster and to allow for several types of leave;
  • Converting Mr Finn to permanent will impact the workforce strategy by creating another permanent member of staff who will then require backfilling during temporary absences from work;
  • The Financial Management Accountability Act 2009 (Qld) (the FA Act) was enacted to govern public sector financial administration in Queensland and stipulates strategic legal obligations with which the Respondent must comply. Section 61 of the FA Act requires "the accountable officer or statutory body to achieve reasonable value for money by ensuring the operations of the department or statutory body are carried out efficiently, effectively and economically";
  • The performance and accountability framework within which the Respondent made its decision focuses on, inter alia, providing sustainable, timely, safe and high-quality Health Services, avoiding waste, minimising financial risk, maximising available resources, delivering average sustainable Queensland Health FTE and capital expenditure performance;
  • The operational reasons for not converting Mr Finn are not trivial, nor are they managerial inconveniences or simply difficulties;
  • Although the Employment Security Policy outlines the Respondent's commitment to permanent employment where possible, it also provides for a commitment to "developing and maintaining a responsive, impartial and efficient government workforce"…"with workforce planning, career planning and skills development will ensure that the government workforce has the flexibility and mobility to meet future needs" and "Agencies are encouraged to utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs";
  • It is disputed that it is a "superficial concern" within any staffing budget provision as to whether wages for a staff member come from a permanent or a temporary line item - the Respondent cannot have more than one person against one position;
  • Referring to Holcombe v State of Queensland (Department of Housing and Public Works),[7] the question to be determined upon review is not of merit or whether there is work to be done but rather whether the genuine operational requirements relied upon by the Respondent in denying Mr Finn's request are fair and reasonable; and
  • Altogether, the reasons provided by the Respondent are genuine operational reasons, thereby rendering the decision fair and reasonable. To convert Mr Finn in the circumstances would be "inefficient, inappropriate, unviable and not in accordance with the FA Act which requires that the decision maker ensuring the operations of the statutory body are carried out efficiently, effectively and economically and the KPIs under the WBHHS Service Agreement which state "Available resources are maximised to deliver sustainable high quality health; Average sustainable Queensland Health FTE"".
  1. [42]
    With respect to assessing the conversion request under Directive 08/17, the Respondent elaborated that:
  • Originally, the Respondent advised Mr Finn by letter dated 27 August 2020 that it would commence a review of Mr Finn's employment status in accordance with Directive 01/17 - Conversion of casual employees to permanent employment (Directive 01/17);
  • The Respondent subsequently realised Mr Finn had been temporarily employed during the two-year review period, rather than casually employed. By letter dated 23 September 2020, the Respondent advised Mr Finn that his employment status would be reviewed in accordance with Directive 08/17 instead;
  • The Respondent conducted a review in accordance with cl 9 of Directive 08/17 and provided written notification of the outcome in accordance with cl 11;
  • It is not the case that "No steps were taken to review the Application under the Casual Directive, and seemingly nor the Temporary Directive, despite 35 days having passed since lodging his Application"; and
  • Directive 08/17 should be interpreted to best achieve the purpose of Directive 08/17. The stated purposes of Directive 08/17 are to encourage and maximise security of employment and to ensure efficient and effective service delivery through the appropriate use of temporary employees. Having regard to the financial management framework and performance and accountability framework, the decision is consistent with the stated purpose of Directive 08/17.
  1. [43]
    With respect to Mr Finn's submission that the Respondent erroneously placed Mr Finn on a waiting list, the Respondent contended:
  • If there is an opportunity to review earlier than that prescribed under Directive 08/17, the Respondent would do so and advise Mr Finn accordingly;
  • The Respondent may choose to trigger a new review status for a number of reasons, including a new vacancy or organisational change;
  • Clause 9.4 of Directive 08/17 provides that, "An agency can review earlier than this date if the agency considers it is appropriate"; and
  • Clause 7.5 of Directive 09/20 provides that a subsequent review must be conducted after each additional year - this does not preclude the Respondent from electing to review the status of an employee at any time of its choosing.

Appellant's submissions in reply

  1. [44]
    In response to the Respondent's written materials above and with respect to the genuine operational needs of the Respondent, Mr Finn contends in his reply submissions dated 11 December 2020:
  • The Respondent's regard to the nature of Mr Finn's previous engagement is "misguided and appears half-hearted". The decision maker should consider the nature of the employment as a whole;
  • Mr Finn accepts that only one person may occupy a position at any one time but contends he did not apply for conversion to a role where a substantive occupant currently has claim;
  • The substantive issues, subject matter, material facts and purpose of the statute conferring the power in this matter are distinct from those in Holcombe v State of Queensland (Department of Housing and Public Works).[8] Employees applying for conversion to a higher classification level already hold permanent and secure employment and are therefore not comparable to the "Casual Directive"; and
  • Complying with directives should form an integral part of any Chief Executive's "financial management framework" and planning. The Directive is not new and the Respondent has had several years to evaluate the number of casual and temporary employees who will be eligible for conversion within each proceeding 12-month period. The Chief Executive is responsible for planning their budgetary allocations and backfilling requirements in consideration of those numbers. Changes to the casual and temporary pool in accordance with Queensland Government Directives can, and should, be foreshadowed by agencies.
  1. [45]
    With respect to whether or not the decision maker's decision was fair and reasonable, Mr Finn contends:
  • Mr Finn has dedicated eight years of service to the Respondent - the Respondent's continuous renewal of Mr Finn's contracts constitute an acknowledgement of Mr Finn's ability to fulfill a range of duties and roles within the service;
  • Job insecurity has affected Mr Finn's ability to plan for his future, provide for his family, and fully engage in his local economy;
  • Mr Finn has spent the last eight years on what he alleges are inferior entitlements, including no access to paid leave, irregular and unpredictable working hours, working hours that are too long or too few, unpredictable pay, and a lack of influence at work regarding his wages and conditions;
  • Remaining as a casual cannot reasonably be considered "appropriate use" of his service and is therefore inconsistent with the stated purpose of Directive 08/17; and
  • For the reasons outlined above, the Industrial Commission should not accept the Respondent's submission that conversion would be "inefficient, inappropriate, unviable and not in accordance with the FA Act".
  1. [46]
    The outcome Mr Finn seeks is that I exercise my discretion to substitute a decision that his employment status be converted to permanent.

Findings

  1. [47]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [48]
    Whether the factors considered relevant by the decision maker were reasonable, and whether the weight afforded to them was reasonable, is relevant to my consideration of whether the decision itself was 'fair and reasonable'. It is not a hearing de novo.
  1. [49]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.[9]

  1. [50]
    On that basis, I find it relevant to consider the objects, scope and purpose of the legislative scheme for the review of the status of certain casual and temporary employees.

The review of temporary employees under the PS Act and Directive 08/17

  1. [51]
    The legislative scheme for the review of the status of certain temporary employees is contained in the PS Act and in Directive 08/17.
  1. [52]
    Section 149 of the Pre-Amendment PS Act provides (emphasis added):

149  Review of status of temporary employee

  1. (1)
    This section applies -
  1. (a)
    at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department; and
  1. (b)
    at the end of each 1-year period, after the period mentioned in paragraph (a), that a temporary employee has been continuously employed as a temporary employee in the department.
  1. (2)
    The department's chief executive must, within the required period, decide whether the person's employment in the department is to -
  1. (a)
    continue as a temporary employee according to the terms of the existing employment; or
  1. (b)
    be as a general employee on tenure or a public service officer.
  1. (3)
    In making the decision, the chief executive must -
  1. (a)
    consider any criteria for the decision fixed under -

(i)  a directive by the commission chief executive; and

  1. (ii)
    an industrial instrument; and
  1. (b)
    if an industrial instrument provides for the way the decision must be made - comply with the industrial instrument.
  1. (4)
    If the chief executive does not make the decision within the period, the chief executive is taken to have decided that the person's employment in the department is to continue as a temporary employee according to the terms of the existing employment.
  1. (5)
    In this section -

continuously employed as a temporary employee has the meaning given under a commission chief executive directive or an industrial instrument.

  1. [53]
    Directive 08/17 relevantly provides:
  1. Purpose
  1. (a)
    to encourage and maximise security of employment; and
  1. (b)
      to ensure efficient and effective service delivery through the appropriate use of temporary employees. 

…

7.   Principles

7.1  The employment security policy outlines the Queensland government's commitment to ongoing employment and limiting the use of temporary employment.  Temporary employment should only be used when ongoing employment is not viable or appropriate.  Where there is a need to employ a person on an ongoing basis, the chief executive of an agency should employ a person permanently rather than temporarily.  In this regard, an agency should also take steps to proactively manage its workforce, including temporary employees, to ensure that workplace change can be managed effectively. 

7.2  Circumstances that indicate an appointment should be on a temporary rather than permanent basis include, but are not limited to:  

  • When an existing employee is taking a period of leave (such as parental leave) and needs to be replaced until the date of their expected return from leave;
  • When skills are required for a one-off project with a specific end date;
  • Where funding for a project or program after a specific date is uncertain;
  • When an existing employee is absent from their substantive role due to secondment; and
  • When skills are temporarily required prior to a permanent appointment being made in accordance with the directive relating to recruitment and selection. 

…

9.   Review of the status of a temporary employee

9.1  A temporary employee can be converted to permanent following a review of their status as a temporary employee by the agency. 

9.2  An agency must review the status of a temporary employee's employment (including an entry-level temporary employee) where the employee has been continuously employed as a temporary employee for two years in the same role in an agency. 

9.3  The requirement to review an employee's temporary status also applies where a temporary employee has performed a cumulative total of two years' service in the same role, provided that the breaks in employment do not exceed a total of three months in the previous two-year period.

…

9.6  When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider the following criteria:

a)  Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; and

b)  The merit of the temporary employee for the role by applying the merit criteria in section 28 of the PS Act. 

9.7  A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent. 

9.8  Where the temporary employee has performed the same role but at different classification levels, the employee should be considered for conversion at both classification levels and assessed applying the criteria in cl 9.6.

14.   Dictionary

agency means a department or public service office as defined in sections 7 and 21 of the PS act. 

the same role includes a role which has the same or substantially the same capability requirements, either at level or at a higher classification (e.g.  a payroll officer may provide a service to different client groups), or a role with a generic role description involving a range of duties (e.g.  rotation through financial and payroll processing duties under a generic entry-level role description). 

permanent means an employee employed under the PS Act either as a general employee on tenure or a public service officer employed on tenure.

  1. [54]
    Directive 08/17 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[10]
  1. [55]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) (the AI Act) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the AI Act provides that 'purpose', for an act, includes policy objective.
  1. [56]
    The stated purposes of Directive 08/17 are:
  • To encourage and maximise security of employment; and
  • To ensure efficient and effective service delivery through the appropriate use of temporary employees.
  1. [57]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.

 Decision criteria that must be considered under Directive 08/17

  1. [58]
    Section 149(3)(a)(i) of the Pre-Amendment PS Act provides that in making the decision regarding a temporary employee's conversion to permanent status "…the chief executive must consider any criteria for the decision fixed under a directive."
  1. [59]
    The decision criteria prescribed under cls 9.6 and 9.7 of Directive 08/17 are:
  • The merit of the temporary employee for the role;
  • Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; and
  • A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent. 

Merit

  1. [60]
    Clause 9.6(b) of Directive 08/17 states that "When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider…the merit of the temporary employee…"
  1. [61]
    There is no dispute between the parties that Mr Finn met the merit criteria. Therefore, I find that cl 9.6(b) of Directive 08/17 presents no impediment to Mr Finn's application for conversion from temporary to permanent employment.

Continuing need to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing

  1. [62]
    The decision maker must also consider the mandatory criteria in cl 9.6(a) of Directive 08/17, which regards "whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing".
  1. [63]
    The prescribed definition of 'the same role' is deliberately broad,[11] and captures a role which has the same or substantially the same capability requirements or a role with a generic role description involving a range of duties.
  1. [64]
    There are therefore two potential pathways to conversion. The first pathway is Mr Finn's present role. The second pathway is an alternative role which is substantially the same.

Is there a continuing need for Mr Finn to be employed in his present role, and is the role likely to be ongoing?

  1. [65]
    The decision maker does not reveal any consideration of the "continuing need" for Mr Finn to be employed in the role (or one that is substantially the same) and if so, whether such role might be "ongoing" beyond the simple acknowledgement of a pattern of systematic engagement in temporary contracts. 
  1. [66]
    If the decision maker did consider this, it was not evidenced in her decision letter.
  1. [67]
    Mr Finn did not provide explicit submissions in this regard. 
  1. [68]
    The review process for conversion to permanency is not a trivial matter. Directive 08/17 sets out in quite expansive detail the policy on temporary employment conversion and mandatory criteria to be considered in the review process.
  1. [69]
    Failing to consider express relevant considerations is an error of law. [12] There is a distinct absence of evidence that said key criterion has been considered by the decision maker. As such, I cannot be satisfied that the decision maker has considered all the relevant criteria.
  1. [70]
    Alternatively, if the decision maker did indeed consider that criterion but omitted to make reference to it in the decision letter, she has failed to provide adequate reasons to Mr Finn to justify the decision not to convert him to permanency.
  1. [71]
    Considerations of 'continuing need' and 'likely to be ongoing' are not one in the same, and circumstances exist where a person's involvement in the role is continuing, but the role is not ongoing, and vice versa. In that sense, it is important to interpret Directive 08/17 holistically but also pay appropriate attention to the particular separate elements of the clause.
  1. [72]
    The Respondent has submitted that by virtue of Mr Finn undertaking temporary employment to backfill other employees, Mr Finn has been engaged for the purposes described in cl 7.2 of Directive 08/17 which indicates his employment should remain as temporary.
  1. [73]
    In considering the fairness and reasonableness of that decision as it currently presents, I am mindful that I am entitled to consider other evidence.[13]
  1. [74]
    It is clear that the duration of Mr Finn's temporary contracts are dependant upon the duration of the incumbent role owner's absence. For an undisclosed reason, Mr Finn has covered the roles for considerable periods of time.
  1. [75]
    In both the decision letter and Respondent's submissions, the point may be inferred that Mr Finn's role is not determined to be ongoing beyond the return of the permanent role owner.
  1. [76]
    That particular circumstance may have constituted reasons for the Respondent to initially employ Mr Finn on a temporary employment contract.  However, after eight years of meritoriously undertaking the role, I do not consider it reasonable for the Respondent to rely on that indefinitely.
  1. [77]
    There is no indication in either the decision letter, or the submissions before me, that the substantial role held by Mr Finn is not likely to be ongoing. The decision maker indicates that the permanent owners will return to the role following their absences. 
  1. [78]
    Rather, the decision maker found that Mr Finn's backfilling of the role/s is not likely to be ongoing. In that sense, the criteria in cl 9.6 of Directive 08/17 really turns on the question of the continuing need for Mr Finn to be employed in his role or substantively the same role.
  1. [79]
    At the time of the decision there was a continuing need for Mr Finn to be employed in his role, at least until 30 November 2020.
  1. [80]
    The pattern of Mr Finn's undertaking of the temporary contracts in substantively the same role suggests there is a continuing need for Mr Finn to be employed in the role, and that said role and his involvement in it are likely to be ongoing. It is on that basis, and in the absence of genuine operational reasons to the contrary as set out below, that I will convert Mr Finn to permanency.
  1. [81]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles.

Capability requirements and the limited search for roles likely to be ongoing

  1. [82]
    The decision maker has expressed 'the role' to constitute "various temporary contracts". The schedule of Mr Finn's employment contract annexed to the Respondent's submissions indicates the role title was 'Operational Services Wardsperson' which appears to align with (OO2) Operational Services Officer (Wards Person).
  1. [83]
    In broadly referring to "various temporary contracts", the Respondent has failed to evidence any consideration of the capability requirements of the role, resulting in foundationally flawed efforts to identify another role which may be substantially the same within the Bundaberg Base Hospital, WBHHS and / or Department of Health.
  1. [84]
    I have also observed the decision maker's rather scant efforts to establish whether or not there were any ongoing roles in existence within those areas that could be considered substantially the same as Mr Finn's current role. 
  1. [85]
    In Katae, Crow J considered the definition of "same role" in Directive 08/17.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[14]

  1. [86]
    It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is relevant.
  1. [87]
    I find that the decision maker erred in not conducting a search of "ongoing roles which are substantially the same" - in the absence of also evidencing any genuine and rigorous consideration of the capability requirements underpinning it.

Genuine operational reasons

  1. [88]
    Clause 9.7 of Directive 08/17 states "A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent."
  1. [89]
    Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply.  'Genuine operational reasons' is a very broad term. Despite some examples being provided in Directive 08/17, there is no precise definition of the word, and some statutory interpretation is required to determine the true meaning of the term in this context. One relevant rule of statutory interpretation is the principle of 'beneficial legislation'. 
  1. [90]
    Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. Workers' Compensation legislation is one such example of remedial legislation which "should be constructed beneficially".  That principle has also been applied to equal opportunity legislation. Such remedial materials are to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".[15]
  1. [91]
    Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material.
  1. [92]
    What is a 'reasonable' genuine operational reason should be considered in concert with that principle of statutory interpretation.
  1. [93]
    Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational reasons preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational reasons must go beyond those, as exemplified by the examples in Directive 08/17.
  1. [94]
    If the inconveniences inherent to most if not all conversions to permanency were sufficient to constitute genuine operational reasons, there would be few or no conversions. That interpretation would defeat the purpose of the Directive and the review.
  1. [95]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming "…the government's commitment to permanent employment where possible and limiting the use of casual employment".
  1. [96]
    As outlined above, the Respondent contends there are several genuine operational reasons preventing Mr Finn's conversion to permanent employment.  Each of these are considered below.

Conversion to permanency would result in budgetary issues

  1. [97]
    The Respondent reasoned that converting Mr Finn to permanent would impact the departmental budget as there are no budgeted vacancies within the area in which Mr Finn is engaged. Therefore, the Respondent would be required to create a new position for Mr Finn which would not align with the WBHHS staffing (MOHRI) cap and which would exceed budgetary limits.
  1. [98]
    Further, the Respondent submitted that a new permanent employee would also require resourcing for backfill.
  1. [99]
    Mr Finn submitted that he is not applying for conversion to a role where a substantive occupant currently has claim. This is at odds with the Respondent's contention that Mr Finn has only ever backfilled the roles of absentees for their period of absence. Nevertheless, Mr Finn correctly points out that Directive 08/17 does not prescribe that a temporary employee's conversion relies first on the existence of a permanent vacancy. 
  1. [100]
    Notably, the Respondent has not offered any evidence of a particular resourcing strategy nor how it may be specifically impacted in the event that Mr Finn's conversion claim was to succeed. 
  1. [101]
    It is an inherent requirement of converting any temporary employee to permanency that there will be budgetary reallocations, backfilling requirements and the like. There is no indication that the difficulties faced by the Respondent in this instance would be any different than those posed to most agencies converting employees.
  1. [102]
    I find that within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent' or 'temporary' line item allocation. As Mr Finn has been engaged as a temporary employee for a period of eight years and paid accordingly, I do not consider the expressed 'budgetary concerns' to be reasonable in this circumstance.
  1. [103]
    The considerable length of time for which Mr Finn has been backfilling other employees suggests that there is a need for another permanent employee and it would be unreasonable for the Respondent to refute Mr Finn's request on the basis of budget when he has already been paid and utilised in the roles extensively.  
  1. [104]
    Those claimed operational reasons are therefore not reasonable in this context.

Use of temporary employees integral to resourcing requirements

  1. [105]
    The Respondent submitted that "There is a legitimate and genuine need for the use of casual and temporary employees within the operational services unit… It is a workforce strategy utilised to ensure resourcing across a 24/7 roster…" and that allows for various types of leave to be taken.
  1. [106]
    The Respondent pleaded that converting Mr Finn to permanent employment "… will impact this workforce strategy by creating another member of staff who will then require backfilling."
  1. [107]
    I note that no insights into resourcing arrangements for the department have been offered in the Respondent's submissions beyond their simple assertion that was the case.
  1. [108]
    In response, Mr Finn argues that complying with directives should form an integral part of any Chief Executive's "financial management framework" and planning - a process that agencies have had several years to comprehend and integrate. I agree that such requirements are neither unique nor new conditions for the Respondent to come to terms with. These reviews do necessitate forward planning and consultation but are certainly not onerous. Nor are they beyond what would be expected of most agencies converting a temporary staff member to permanency.
  1. [109]
    With respect to backfilling, again, that is to be expected in the ordinary course of converting any temporary staff member to permanency. Were that a sufficient reason, it is foreseeable that very few or no temporary conversions would occur.
  1. [110]
    In light of Mr Finn's submission that he too takes leave and therefore has required backfilling from time to time, seemingly there are other temporary staff members available to backfill an unplanned absence aside from Mr Finn - or indeed there may be other part time staff who would welcome an additional shift or perhaps even a full time employee prepared to swap a rostered shift. As such, I do not consider that such an inherent reality of converting virtually any temporary employee to permanency constitutes a reasonable genuine operational reason. 
  1. [111]
    Therefore, those genuine operational reasons relied upon by the Respondent are not reasonable in this context.

Contracts were consistent with examples of appropriate use in the Directives

  1. [112]
    The Respondent points to cl 7.2 of Directive 08/17 that indicates "…the circumstances that indicate an appointment should be on a temporary rather than permanent basis".
  1. [113]
    In assessing Mr Finn's claim for permanency, the decision maker determined that his temporary employment contracts were consistent with the examples contained in cl 7.2 of Directive 08/17.
  1. [114]
    The issue is not whether it was appropriate to initially employ Mr Finn on a temporary basis. The question is whether that should continue.
  1. [115]
    It is possible that the work undertaken by Mr Finn could be done on a temporary basis. That also is not in issue. A finding that the work could be done on a temporary basis is not tantamount to evidencing a genuine operational reason not to convert to permanent.
  1. [116]
    The Respondent must demonstrate that genuine operational reasons prevent the conversion to permanent. For the reasons above, they have not done so. As such, that is not a reasonable genuine operational reason not to convert Mr Finn to permanency.

Now on a waiting list

  1. [117]
    The decision letter contained advice to Mr Finn that he was to be "placed on a waiting list."
  1. [118]
    Mr Finn argued this was inappropriate as there does not need to be a substantive vacancy for conversion to permanency to occur. It is true that a vacancy is not a condition required in order for a conversion to occur. However, that was not the expressed term used in this decision letter but rather "for the purposes of a further review."
  1. [119]
    In its submissions, the Respondent clarified that this waiting list provided an opportunity for Mr Finn to be reviewed earlier than the next review period - for a number of reasons. I accept that Directive 08/17 and Directive 09/20 both permit an earlier review to be conducted if the agency considers it appropriate.
  1. [120]
    As I have found that Mr Finn has met the mandatory criteria for conversion to permanent employment, the question of 'what he was on a waiting list for' becomes irrelevant. 

Conclusion

  1. [121]
    For the reasons detailed above, I find that the decision to maintain Mr Finn on a temporary contract was not fair and reasonable.
  1. [122]
    With regards to the discretions available to me to conclude this matter, I determine that the most appropriate course of action is to set the decision aside and substitute another decision.
  1. [123]
    It was not disputed that Mr Finn meets the merit criteria. The Respondent relied upon claimed 'genuine operational reasons' to resist converting Mr Finn to permanency. I have found those to be unreasonable in these circumstances.
  1. [124]
    As such, I have determined that the appropriate remedy is to convert Mr Finn to permanent employment.
  1. [125]
    I order accordingly.

Orders:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  2. The decision that Mr Finn not have his temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Mr Finn's temporary employment status be converted to permanent employment.

Footnotes

[1] Public Service Act 2008 (Qld) s 149(1).

[2] Directive 09/20 Fixed term temporary employment cl 12.3.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[4] Ibid.

[5] Industrial Relations Act 2016 (Qld) s 562B(4)(b).

[6] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61].

[7] [2020] QIRC 195, [65]-[70].

[8] [2020] QIRC 195, [65]-[70].

[9] [2019] QSC 170.

[10] Katae v State of Queensland & Anor [2018] QSC 225, [26] (“Katae”).

[11] Directive 08/17 Temporary employment  cl 14.

[12] Katae v State of Queensland [2018] QSC 225, [22] citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 367.

[13] Industrial Relations Act 2016 (Qld) s 562B(4)(b).

[14] Katae v State of Queensland [2018] QSC 225.

[15] IW v City of Perth (1997) 191 CLR 1, 12.

Close

Editorial Notes

  • Published Case Name:

    Finn v State of Queensland (Department of Health)

  • Shortened Case Name:

    Finn v State of Queensland (Department of Health)

  • MNC:

    [2021] QIRC 144

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    29 Apr 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
3 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
IW v City of Perth (1997) 191 CLR 1
2 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Katae v State of Queensland [2018] QSC 225
4 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Cite 4 - [2018] QSC 225
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
2 citations
Jump To
Cite 1 - (2001) 206 CLR 323
Cite 2 - (2001) 206 CLR 323
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Blanchette v State of Queensland (Queensland Health) [2021] QIRC 3182 citations
Johnson v State of Queensland (Queensland Health) [2022] QIRC 2892 citations
Morgan v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 1322 citations
Neilsen v State of Queensland (Queensland Health) [2021] QIRC 3052 citations
Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 282 citations
Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 3192 citations
Wood v State of Queensland (Queensland Health) [2022] QIRC 2462 citations
1

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