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  4. Benson v State of Queensland (Department of Education) - [2021] QIRC 152

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Benson v State of Queensland (Department of Education)[2021] QIRC 152

Benson v State of Queensland (Department of Education)[2021] QIRC 152

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Benson v State of Queensland (Department of Education) [2021] QIRC 152

PARTIES:

Benson, Lynn

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2020/417

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

11 May 2021

MEMBER:

HEARD AT:

McLennan IC

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 Ms Benson not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Ms Benson's temporary employment status as an Administrative Officer AO2 be converted to permanent employment.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – temporary employment – where appellant was reviewed under s 149B of the Public Service Act 2008 (Qld) – where the outcome of the review was that the appellant was not permanently appointed – whether Appeal Notice filed out of time – consideration of whether conversion is possible under s 149B once permanency is granted in a separate engagement – whether a deemed decision is inherently unfair and unreasonable – consideration of mandatory criteria – consideration of changed circumstances – where the decision is set aside and another decision is substituted

LEGISLATION AND OTHER

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, s 38

Directive 08/17 Temporary Employment cl 9, cl 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 9, cl 10, cl 15

Industrial Relations Act 2016 (Qld) s 451, s 562B,  s 562C, s 564, s 567

Public Service Act 2008 (Qld) s 27, s 147, s 148, s 149A, s 149B

Statutory Instruments Act 1992 (Qld) s 14

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

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

Grant v State of Queensland (Queensland Health) [2020] QIRC 228

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

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

King-Koi v State of Queensland (Department of Education) [2020] QIRC 209

Reasons for Decision

Introduction

  1. [1]
    Ms Lynn Benson (the Appellant), is currently employed by the State of Queensland (Department of Education) (the Respondent) in the regional Queensland city of Mackay. 
  1. [2]
    Ms Benson has worked at Slade Point State School (SPSS) as both a Teacher Aide[1] and an Administrative Officer[2] for more than three years. 
  1. [3]
    The two engagements are separate and distinct.  Ms Benson has a different employee number for each of the two different roles.
  1. [4]
    On 3 November 2020, Ms Benson requested that the Department review her temporary employment status, with a view to conversion to permanency (the Conversion Request).
  1. [5]
    The Department acknowledged that Ms Benson was eligible to have her temporary employment status reviewed for both the Teacher Aide and Administrative Officer roles, in accordance with s 149B of the Public Service Act 2008 (Qld) (PS Act) and Directive 09/20 Fixed Term Temporary Employment (the TE Directive).  This 'Review Notice' was provided to Ms Benson on 6 November 2020. 
  1. [6]
    On 18 November 2020, the Department advised Ms Benson that she would be converted to permanent part-time (0.17 FTE) in her Teacher Aide role ('the TA Conversion Offer').  Ms Benson accepted the TA Conversion Offer.
  1. [7]
    However, the Department did not provide a decision with respect to Ms Benson's Conversion Request for her Administrative Officer role (0.58 FTE).  In such circumstances, a decision was 'deemed' to have been made.
  1. [8]
    By Appeal Notice filed on 14 December 2020, pursuant to chapter 7 of the PS Act,  Ms Benson appealed against a deemed decision[3] that her employment as an Administration Officer remain as temporary with the Respondent ('the AO Deemed Decision').
  1. [9]
    This Appeal turns on several questions:
  1. i)
    When was the Department's decision not to covert Ms Benson's Administrative Officer role from temporary to permanent deemed to have been made?
  1. ii)
    Was Ms Benson's Appeal filed out of time?  If so, should I exercise my discretion to extend time for filing?
  1. iii)
    Is Ms Benson eligible to appeal the Department's deemed decision, with respect to the failure to convert her Administrative Officer role from temporary to permanent, given she had been given permanency in her Teacher Aide role?
  1. iv)
    Is a deemed decision inherently unfair and unreasonable?
  1. v)
    Consideration of the mandatory criteria - what is the impact of the changed circumstances since Ms Benson filed the Appeal?
  1. [10]
    For the reasons that follow, I find that:
  1. i)
    The Department's AO Deemed Decision was made on 1 December 2020;
  1. ii)
    Ms Benson has not filed this Appeal out of time;
  1. iii)
    Ms Benson is able to appeal the AO Deemed Decision, even though she had been converted to permanent in her separate engagement as a Teacher Aide;
  1. iv)
    A deemed decision is not inherently unfair and unreasonable;
  1. v)
    The Department has not evidenced consideration of the mandatory criteria; and
  1. vi)
    The changed circumstances since filing the Appeal warrant consideration in this case.

Appeal principles

  1. [11]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission.  The purpose of the appeal is "to decide whether the decision appealed against was fair and reasonable."[4]
  1. [12]
    The appeal must be decided by reviewing the decision appealed against.[5] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[6]
  1. [13]
    An appeal under chp 11, pt 6, div 4 of the IR Act is not by way of rehearing,[7] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  1. [14]
    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.[8]
  1. [15]
    The key issue for my determination is whether the Department's deemed decision to deny the conversion of Ms Benson's temporary employment as an Administration Officer to permanent was fair and reasonable in the circumstances. This requires a consideration of s 149B of the PS Act and of the TE Directive.
  1. [16]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [17]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    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.

Grounds of Appeal

  1. [18]
    In the Appeal Notice filed on 14 December 2020, Ms Benson contends that:
  • she appeals the Department's deemed decision not to convert her temporary engagement as an AAEP / Administration Officer at SPSS to permanent;
  • no decision was made within the required 28-day period, which expired on 1 December 2020;
  • she commenced her first temporary engagement as an AAEP / Administration Officer at SPSS on 3 October 2017;
  • her current temporary employment contract expires on 12 February 2021;
  • she has been employed on fixed term contracts continuously for more than two years;
  • the failure to provide a decision was not fair and reasonable;
  • she meets the merit and performance requirements; and
  • there are no genuine operational reasons to prevent conversion to permanent.

Relevant provisions of the PS Act and the TE Directive

  1. [19]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to-
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee-how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (7)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

…

  1. [20]
    Section 149A(2) of the PS Act provides:

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-

  1. (a)
    the department's chief executive considers-
  1. (i)
    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
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [21]
    Section 149A(3) of the PS Act provides:
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment 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.
  1. [22]
    The TE Directive relevantly provides:
  1.  Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

•  whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a General employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

Submissions

  1. [23]
    The parties exchanged written submissions in accordance with Directions Order issued on 14 December 2020.

Appellant's submissions

  1. [24]
    Ms Benson filed submissions in support of the Appeal on 12 January 2021, as summarised below:
  • This appeal is in relation to a deemed decision not to convert Ms Benson's AO2 Administration Officer temporary engagement to permanent.
  • She is also employed as a Teacher Aide at Slade Point State School.
  • Ms Benson commenced her temporary position on 3 October 2017 and has been continuously employed since that time.
  • Her current fixed term contract will conclude on 12 February 2021.
  • There are no issues with respect to merit.
  • Ms Benson made a conversion request on 3 November 2020.
  • There is no dispute that she was eligible to make the request.
  • On 6 November 2020, the Department emailed Ms Benson to acknowledge her conversion request.  No decision on the Administration Officer conversion request was notified and so a deemed decision was taken to have been made.  The 28-day period within which the Department was to make a decision ended on 16 November 2020.
  • The Department's failure to consider the mandatory criteria, make a decision, provide a written notice of the decision including written reasons, findings and evidence combined to make the deemed decision inherently unfair and unreasonable.
  • The Commission must decide if the decision subject of this Appeal is fair and reasonable.
  • The decision maker has not considered whether there was a continuing need for Ms Benson to be employed in the role, or a role which is substantially the same.
  • Ms Benson's temporary contract has been extended on 8 occasions.  Her role in the front office and reception area is required before, after and during school hours as an essential first point of contact.
  • There are no operational reasons that would prevent conversion to permanent.
  • The outcome sought is that the Department's deemed decision be set aside and a decision to convert Ms Benson to permanent is substituted.

  Respondent's submissions

  1. [25]
    The Department filed submissions on 15 January 2021 opposing the Appeal, summarised below:
  • Ms Benson holds two roles in Slade Point State School – Teacher Aide and Administrative Officer.
  • Ms Benson's anniversary for both positions was 3 October 2020, with 28 days passing on 31 October 2020 for a deemed decision. 
  • Ms Benson was given a decision on 18 November 2020 to convert her role of Teacher Aide at Slade Point State School to permanent part-time (0.17 FTE).
  • She accepted that permanent Teacher Aide position on 27 November 2020.
  • The 18 November 2020 decision did not alter the temporary status of Ms Benson's Administration Officer role.
  • Ms Benson's filed Appeal on 14 December 2020 is 25 days after the given decision on 18 November 2020 and 44 days after the deemed decision is said to have occurred.  A person's right to appeal lapses 21 days after the decision is given.  The question of whether to extend the time limit is an exercise of discretion.[9]
  • Additionally, following the 18 November 2020 decision, Ms Benson became a general employee on tenure.  This "…limits the decision making of the Department, as the employee primary status is no longer a temporary fixed term employee as per section 147(2)(a) of the PS Act."
  • The Department contends the use of the word "or" in s 147(2)(a) means it is not contemplated that a tenured employee can be tenured a second time.
  • Ms Benson performs two roles at Slade Point State School (SPSS).  She has two different employee numbers for the two different roles: Teacher Aide (0.17 FTE) and Administrative Officer (0.58 FTE).
  • If the Commission determines that a deemed decision was made with respect to the Administration Officer role, then the Department submits that the temporary role is for the purpose of backfilling another employee who substantively holds the position and at the time of these submissions has been granted leave up to 15 January 2021.  The absent position owner is using a combination of approved long service, recreation and unpaid special leave during the period of absence.  Specifically, "The permanent substantive employee has been seeking work in Brisbane, and at some stage in the future, the availability of the permanent Administrative Officer role at Slade Point State School will be determined."  The Department submits that "until the substantive employee provides a decision, through resignation, approved transfer application, or otherwise, the Administrative Officer role at Slade Point State School remains the substantive employee's to return to, and cannot be permanently filled by another employee."
  • The temporary engagement of Ms Benson in the Administration Officer role complied with s 148(2)(a) of the PS Act.
  1. [26]
    In essence, the Department submitted that Ms Benson's appeal faced two jurisdictional challenges.  Firstly, that it had been filed out of time.  Further, that once converted from temporary to permanent in one engagement, an employee ceased to be eligible for conversion in the remaining engagement.  In the alternate, the Department argued that Ms Benson's employment on a temporary contract was appropriate where she was backfilling the role of another employee who was absent on approved leave.

 Appellant's submissions in reply

  1. [27]
    Ms Benson filed submissions in response to the Department's submissions,[10] which have been summarised below:
  • On 3 November 2020, Ms Benson requested that the Department convert her temporary employment to permanent.
  • On 6 November 2020, the Department emailed Ms Benson to advise that both positions would be reviewed.
  • On 18 November 2020, the Department emailed Ms Benson to advise that her Teacher Aide role (13 hours per fortnight) would be converted from temporary to permanent.
  • On 27 November 2020, she accepted this conversion for the Teacher Aide role.
  • On 4 December 2020, 28 days after receiving notification that her conversion request would be reviewed, no decision had been made about the Administrative Officer role.  That deemed decision was what initiated this Appeal.
  • On 14 December 2020, she filed the Appeal. 
  • Ms Benson considered that her appeal was filed in time, given the Department's email advice of 6 November 2020.  That email stated that if no response is received by 1 December 2020, the Department is taken to have decided not to offer to convert her temporary employment.  Further, "If you do not receive a decision on or by Tuesday, 1 December 2020, you may wish to lodge an appeal with the Industrial Registry of the Queensland Industrial Relations Commission (QIRC)."

   Out of time submissions

  1. [28]
    On 15 March 2021, a Further Directions Order[11] was issued inviting the Parties to make submissions as to whether the Appeal should be heard out of time.
  1. [29]
    Ms Benson submitted that:[12]
  • She was not informed by the Department that the timeframe would be "backdated to the anniversary start date of the employment in this role for my request to seek a permanent position."
  • In over three years of employment at SPSS, she had never been reviewed "to be informed or offered options in relation to my employment other than continual ongoing contracts to fulfill the Administration role."
  • She herself initiated the process to seek permanency in November 2020 and found it to be challenging to comprehend.
  • Ms Benson does not have a personal computer or laptop and has been limited to accessing emails out of hours through her personal mobile phone.
  1. [30]
    The Department stated that:[13]
  • The principles for extension of time are contained in Grant v State of Queensland (Queensland Health).[14]  These include: an acceptable explanation for the delay, action taken by the applicant, any prejudice to the respondent, the merits of the substantive application, and consideration of fairness between the applicant and others in a like position.
  • With respect to a deemed decision under s 149B(7), the decision does not require notification. 
  • Not possessing knowledge of the Appeal timeframes does not amount to special circumstances for the delay.
  • Ms Benson had access to the relevant correspondence via her Departmental email during the period 3 October 2020 to 14 December 2020.  It does not appear as though Ms Benson was prejudiced by not having a personal computer or laptop.
  • The Department confirmed that Ms Benson is backfilling an Administrative Officer position whilst the substantive employee is absent on leave.  This has previously been confirmed as genuine operational reasons by the Commission.[15]  Therefore, the Department believes that the application is unlikely to be successful.
  • The Department "acknowledges the merit of the application, and extension of time remains at the discretion of the Commission to determine."

Consideration

When was the Department's decision not to covert Ms Benson's Administrative Officer role from temporary to permanent deemed to have been made? 

  1. [31]
    Before I turn to the consideration of whether the Department's deemed decision to refuse Ms Benson's conversion request was fair and reasonable, I must first establish whether her Appeal was filed outside the 21 day period provided under s 564 of the IR Act – and if so, whether I should exercise my discretion to extend time for filing.[16]
  1. [32]
    The parties' submissions reveal the evident confusion around this issue.  There are competing claims as to whether the deemed decision is taken to have been made 28 days after the three-year work anniversary of Ms Benson's temporary employment or 28 days after Ms Benson's conversion request was made.  The precise date of the deemed decision is significant because Ms Benson has only 21 days after that date in which to file an Appeal.  The Department also contends that the date it communicated the decision to convert Ms Benson's separate Teacher Aide temporary contract to permanent may also be relevant, in that she was also outside the 21-day timeframe to file an appeal on that basis.
  1. [33]
    I find that the Department's deemed decision was made on 1 December 2020 – 28 days after Ms Benson's conversion request was made.  My reasons follow.
  1. [34]
    In an email dated 3 November 2020, Ms Benson requested that a review be undertaken regarding conversion of her temporary employment to permanent.  I note Ms Benson's submission that no such review had previously been undertaken, notwithstanding she had been engaged on temporary employment contracts for over three years.[17]  While the Department did not respond to that claim in its reply submissions,[18] if that were to be the case it would seemingly be in breach of the requirements of the PS Act, TE Directive and superseded Directive 08/17 Temporary employment (Directive 08/17).
  1. [35]
    I consider Ms Benson's conversion request to have been made under cl 9 of the TE Directive - 'Employee's right to notify that a review is required under section 149B'.
  1. [36]
    That position was accepted by the Department in its email response to Ms Benson on 6 November 2020.  Confirmation was provided that she was eligible to be considered for permanency in both the Teacher Aide and Administrative Officer roles, pursuant to s 149B of the PS Act and the TE Directive.  I determine that email correspondence to be the Review Notice that is required to be provided when a review of the status of the temporary employee's employment is commenced, under cl 10 of the TE Directive.
  1. [37]
    The Review Notice explained that s 149B of the PS Act required a decision to be made within 28 days of receiving Ms Benson's request - and should a decision not be notified by that time, the decision is deemed to be one not to convert to permanent.  I agree that is the relevant period, as identified by the Department to Ms Benson at that time. 
  1. [38]
    The Review Notice further specified that if a decision is not given on or by 1 December 2020, Ms Benson may choose to appeal to the Queensland Industrial Relations Commission (QIRC).
  1. [39]
    I observe that the TE Directive prescribes that the Review Notice must be in writing and sets out a number of mandatory inclusions.[19]  In my view, the Review Notice has complied with those requirements – with the exception of the requirement to notify Ms Benson of "the timeframe for appeal."[20]  I recognise that the Review Notice indicated that she may appeal to the QIRC, notes the appropriate form by which to do so and invites contact with the Industrial Registry "for further information about the appeal process"; however, the information provided to Ms Benson stopped short of indicating that she had 21 days after 1 December 2020 in which to appeal the decision.  While that omission is not determinative in this case, it is nonetheless a requirement under the TE Directive and a useful inclusion in future notices.
  1. [40]
    As it happened, the Department did not make a decision with respect to Ms Benson's conversion request by 1 December 2020, which was 28 days after it received her email. In such circumstances, 'no decision' is taken to be a 'deemed decision' to decline the request.
  1. [41]
    It is not disputed that Ms Benson was entitled to have her employment reviewed pursuant to s 149B of the PS Act on the basis that she had been continuously employed in the same department for two years or more. A decision was not made in relation to her eligibility under s 149B within the required period, and pursuant to s 149B(7), it was deemed the decision was made not to offer to convert Ms Benson's employment to permanent. This deemed decision is the subject of this Appeal.
  1. [42]
    The Department has submitted that the Appeal against the deemed decision was filed outside of the statutory timeframe of 21 days.  That is, 44 days after Ms Benson's three-year work anniversary date or alternatively 25 days after the Department communicated the decision to convert her separate Teacher Aide temporary contract to permanent.[21]
  1. [43]
    I will now address each of those possibilities.
  1. [44]
    I do not accept that the date the Department communicated its decision that Ms Benson's temporary Teacher Aide engagement would be converted to permanent is at all relevant. 
  1. [45]
    The Department has recognised that Ms Benson was eligible to be considered for permanency in both the roles she held at SPSS – Teacher Aide and Administrative Officer – and notified her that the opportunity for conversion would be assessed with respect to each.[22] 
  1. [46]
    The separate and distinct nature of the two temporary employment contracts was further evidenced in the Department's submissions, as it stated:[23]

The Appellant is currently performing two roles at Slade Point State School

a. Teacher Aide 0.17 FTE

b. Administrative Officer AO2 0.58 FTE

The Appellant's service histories have been included for reference, as the employee holds two different employee numbers for the two roles (Attachments C & D).

  1. [47]
    Even the Department's correspondence advising Ms Benson of the decision to convert her temporary Teacher Aide engagement to permanent did not make any reference to the other temporary Administrative Officer engagement also under review at that time.[24] 
  1. [48]
    Further, the Department's submission also noted that "The decision on the 18 November 2020 did not alter the status of the Appellant's temporary Administration Officer role."[25]
  1. [49]
    The most obvious explanation was that it was understood and accepted that the two reviews were entirely separate.  The outcome in one review had no impact on the outcome of the other.  In light of that, the Department's contention cannot be true - the 18 November 2020 decision date is not relevant to whether this Appeal has been filed out of time.
  1. [50]
    The Department's alternative submission based on the significance of Ms Benson's three-year work anniversary date warrants deeper exploration.
  1. [51]
    The Department has contended that the deemed decision was taken to have been made 28 days after the passing of her work anniversary date on 3 October 2017, that is 31 October 2020. 
  2. [52]
    Section 149B of the PS Act provides (emphasis added):
  1. (3)
    The department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (7)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

 …

  1. (9)
    In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

 required period, for making a decision under subsection (3), means—

(a) the period stated in an industrial instrument within which the decision must be made; or

(b) if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4)(a) or (b).

  1. [53]
    Section 149B of the PS Act obligates the Department to decide whether to continue Ms Benson's employment on a temporary basis or whether to convert her to permanent.
  1. [54]
    Ms Benson began undertaking the separate Administration Officer role (0.58 FTE hours) on 3 October 2017. In accordance with the timeframes prescribed by s 149B(4) of the PS Act, the Department was obligated to review Ms Benson's status as a temporary employee on 3 October 2019, being the end of a two year period of continuous employment. This obligation arose again annually thereafter on 3 October 2020.
  1. [55]
    Notwithstanding that review obligation, Ms Benson submitted[26] that her roles had never been subject of such review and that it were she who initiated "the process to seek permanency of my role myself."[27] In its subsequent submission, the Department does not respond directly to that claim, other than to note that a deemed decision means that the person is taken not to have been made permanent "…through the passing of time, and does not necessitate notification."[28]  While that observation is correct, it rather sidestepped the point that the Department is required also to notify the employee that their employment is to be subject of review at the commencement of the process.  Under cl 10 of the TE Directive,[29] an employer is obligated to give notice to an employee when it commences a review of the status of the fixed term temporary employee's employment under s 149B of the PS Act. There is no evidence that the Department had provided this notice to Ms Benson.  In fact, if such a review had been conducted by the Department within the prescribed timeframes, the Department's 6 November 2020 email to Ms Benson accepting that she is "eligible to be considered for permanency for both of your roles…" is quite unfathomable.  In circumstances where a review had been conducted just a month before, presumably the Department's email to Ms Benson on 6 November 2020 would have advised her accordingly - that a review had only recently been conducted and that a deemed decision had been made.  As I have earlier noted, Ms Benson's Conversion Request can best be characterised as the exercise of her right to notify that a review is required under the TE Directive,[30] especially given its close proximity to the date that the periodical review was prescribed to be conducted. 

Was Ms Benson's Appeal filed out of time?  If so, should I exercise my discretion to extend time for filing? 

  1. [56]
    Even if I were to be wrong in finding that the Department's deemed decision was made on 1 December 2020, and Ms Benson was instead to be found to be 44 days out of time in filing her Appeal, I would determine to exercise my discretion to hear it.
  1. [57]
    In exercising discretion to extend time to lodge an application or appeal, there are a number of principles that have been used for guidance. Those principles commonly include the applicant's explanation for the delay, actions taken by the applicant, any prejudice to the respondent in defending the proceedings occasioned by the delay, the merits of the substantive application and consideration of fairness between the applicant and others in a similar position.[31]
  1. [58]
    In circumstances where Ms Benson has relied on advice from the Department that their decision (or a deemed decision) on her conversion requests are due on 1 December 2020 and that she may exercise her appeal rights after that time, I would find that to be an acceptable explanation for the delay.  Taken together with Ms Benson's submission that she acted promptly to obtain guidance with respect to navigating the appeal process and the merits of her claim, those factors would be persuasive to my determination to hear the appeal out of time.
  1. [59]
    Further to the above, my consideration of the various propositions involves the calculation of the relevant periods of 28 days and 21 days after particular events submitted by the parties to be determinative in this case.
  1. [60]
    Although I have found that Ms Benson's Appeal was not filed out of time, and even if it were I would nonetheless exercise my discretion to hear it, I have included the relevant extract from the Acts Interpretation Act 1954 (Qld) (the AI Act) to supplement the reasoning provided in this Decision.
  1. [61]
    The AI Act provides (emphasis added):

38  Reckoning of time

  1. (1)
    If a period beginning on a given day, act or event is provided or allowed for a purpose by an Act, the period is to be calculated by excluding the day, or the day of the act or event, and—
  1. (a)
    if the period is expressed to be a specified number of clear days or at least a specified number of days—by excluding the day on which the purpose is to be fulfilled; and
  1. (b)
    in any other case—by including the day on which the purpose is to be fulfilled.
  1. (2)
    If the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or last day, is taken to fall on the next day later that is not an excluded day.
  1. (3)
    If the time, or earliest day of a period, calculated backwards that is provided or allowed by an Act for doing anything falls on an excluded day, the time, or earliest day, is taken to fall on the next day earlier that is not an excluded day.
  1. (4)
    If no time is provided or allowed for doing anything, the thing is to be done as soon as possible, and as often as the relevant occasion happens.
  1. (5)
    In this section—

excluded day—

  1. (a)
    for filing or registering a document—means a day on which the office is closed where the filing or registration must or may be done; or
  2. (b)
    otherwise—means a day that is not a business day in the place in which the thing must or may be done.
  1. [62]
    A deemed decision not to convert an employee to permanent occurs where a decision is not made within 28 days.[32]  By virtue of s 38(1) of the AI Act, the first day, namely 3 November 2020, is excluded. The count begins from the following day. The PS Act at s 149B(7)(9) does not specify a number of "clear days", or "at least" a number of days. Each of those terms would provide the filing party an entitlement to the entirety of the final day, such that the last day for filing would be the following day. Rather, the PS Act provides that the decision is to be made "within 28 days after". It follows that s 38(1)(a) of the AI Act does not apply, and so s 38(1)(b) does apply and the last day is not excluded from the count.  The deemed decision was made on 1 December 2020.
  1. [63]
    The IR Act at s 564 also does not specify a number of "clear days", or "at least" a number of days. Section 564(3) of the IR Act provides that the filing is to occur "within 21 days after (the decision was given to the appellant)". It follows that s 38(1)(a) of the AI Act does not apply, and so s 38(1)(b) does apply and the last day is not excluded from the count.  Therefore, "within 21 days after" the deemed decision was taken to have been provided to Ms Benson on 1 December 2020 would be 22 December 2020, having excluded the first day but included the final day.
  1. [64]
    The Appeal Notice was filed in the Industrial Registry on 14 December 2020.  Therefore, the Appeal was filed in time.[33]

Is Ms Benson eligible to appeal the Department's deemed decision, with respect to the failure to convert her Administrative Officer role from temporary to permanent, given she had been given permanency in her Teacher Aide role?

  1. [65]
    The Department submitted that once Ms Benson had been converted from temporary to permanent in one engagement, she ceased to be eligible for conversion in the remaining engagement.[34] 
  1. [66]
    The Department posits that "…the employee following the decision on 18 November 2020 became a general employee on tenure.  Therefore, the Respondent is of the belief this employment status, tenured general employee, limits the decision making of the Department, as the employee primary status is no longer a temporary fixed term employee as per section 147(2)(a) of the PS Act." 
  1. [67]
    The Department's interpretation of s 147(2)(a) of the PS Act is that a general employee to which s 149B applies, may be employed on tenure or a temporary basis.[35] 
  1. [68]
    At first blush, the use of the word "or" in s 147(2)(a) may appear to support the Department's contention.  But I do not agree with that interpretation. 
  1. [69]
    The Department has asserted that "The legislation does not contemplate the ability of tenured employee to be tenured a second time."[36]  An argument that one cannot be both 'tenured and tenured' – but can on the other hand be 'temporary and temporary' - is surely difficult to sustain. 
  1. [70]
    In my view, s 147(2)(a) properly means that for any particular engagement an employee may either be on tenure or fixed term temporary or casual (but that a combination of these is not permitted within the one engagement).  This interpretation does not deny the reality that many Queensland public service employees are engaged on separate and concurrent contracts. 
  1. [71]
    Further, the interpretation that I have outlined does not frustrate the intent of government policy as articulated in the purpose and principles of the TE Directive; specifically to "establish employment on tenure as the default basis of employment in the Queensland public service"[37] 
  1. [72]
    The TE Directive relevantly provides:

4.   Principles

4.1  Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the Government's Employment Security Policy.

…

  1. [73]
    The TE Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[38]
  1. [74]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of 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. [75]
    The purpose of the TE Directive is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.  The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

 The legislation indicates where employment on tenure may not be appropriate.

 …

  1. [76]
    For over three years the Department was content to concurrently employ Ms Benson on two temporary employment contracts for the performance of two different roles at SPSS.  The Department has accepted that "the employee holds two different employee numbers for the two roles."[39]  Those two contracts are unarguably separate and distinct.
  1. [77]
    It is also not disputed that Ms Benson received a decision on 18 November 2020 to convert her temporary Teacher Aide role to permanent.  Further, the Department submitted that "The decision on the 18 November 2020 did not alter the status of the Appellant's temporary Administration Officer role."[40]  Having accepted that Ms Benson remained on a temporary employment contract, it follows that she remains open to have that status reviewed under s 149B in the usual course.
  1. [78]
    I agree with Industrial Commissioner Power, where she has previously reasoned:[41]

[32] Neither the Directive nor the Act contain exclusions or caveats relating to temporary conversions on the basis that the employee already has tenure for a lesser number of hours, or any other permanent role with the State Government. There are no prohibitions on an employee with part-time tenure having their temporary role also converted to permanent.

…

[34] Section 149 of the Act outlines the right to a review of temporary status, conferring a right on an employee who has at the end of two years been continuously employed as a temporary employee in a department. Both temporary employees engaged under s 147 and s 148 of the Act are entitled to conversion upon satisfaction of particular conditions.

[35] The determination to be made pursuant to s 149 of the Act is whether a person's employment is to continue as a temporary employee or whether the person's employment should be tenured. In my view the person's 'employment' refers to the particular employment arrangement that is the subject of the review and not any other employment arrangement the person may have.

  1. [79]
    I find that the 18 November 2020 decision to convert Ms Benson's temporary engagement as a Teacher Aide to permanent does not limit the Department's ability to review her separate temporary engagement as an Administration Officer under s 149B.

 Is a deemed decision inherently unfair and unreasonable? 

  1. [80]
    Ms Benson has submitted that the Department's failure to comply with the PS Act and TE Directive requirements regarding the provision of written notice of the decision including written reasons, findings and evidence combined to make the deemed decision inherently unfair and unreasonable. 
  1. [81]
    I do not agree with that proposition.  The PS Act[42] and TE Directive[43] contemplate a scenario in which the chief executive does not make the decision within the required period and makes alternative provision in those circumstances. 
  1. [82]
    Where a decision is made under a review pursuant to s 149B of the PS Act, the Department is required to comply with s 149B(6), which provides:
  1. (6)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. [83]
    However, s 149B(7) of the PS Act and cl 8.5 of the TE Directive provides for a decision not to have been made with respect to a conversion.  That is, the employment continues according to the terms of the existing arrangement.
  1. [84]
    Section 149B(7) of the PS Act provides:

If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

  1. [85]
    Clause 8.5 of the TE Directive provides:

Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

  1. [86]
    A 'decision' to refuse the request for conversion triggers the requirement for a notice pursuant to subsection (6). However, those requirements do not apply to a deemed decision. 
  1. [87]
    While there is no statutory requirement that reasons be furnished if the decision is deemed in accordance with s 149B(7) of the PS Act, the Department has nonetheless been required to elaborate the extent to which the mandatory criteria was considered in taking the deemed decision with respect to the Administrative Officer engagement through this Appeal process.
  1. [88]
    While I appreciate the earlier revelation of those considerations may well have assisted Ms Benson to decide whether she wished to embark on her Appeal in the first place, and the grounds on which to do so, I am satisfied that she has now been provided with the opportunity to examine the Department's submissions with respect to the extent of considerations undertaken.

Consideration of the mandatory criteria - and the impact of the changed circumstances since Ms Benson filed the Appeal 

  1. [89]
    Clause 8.1 of the TE Directive contains the mandatory decision criteria for temporary employment conversions to permanent.  That is:
  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [90]
    Clause 8.2 of the TE Directive provides that:

…where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

  1. [91]
    In brief, I have found that Ms Benson is eligible to have her status as a temporary employee reviewed for the Administrative Officer role at SPSS.
  1. [92]
    The parties agree that Ms Benson's merit does not present any impediment to conversion to permanency.
  1. [93]
    The parties have not identified any requirements of an industrial instrument that need to be complied with in this case.
  1. [94]
    Further, there could have been no previous decision made, or deemed to have been made, under s 149B of the PS Act relating to Ms Benson during the period of her continuous temporary employment due to that provision taking effect from 14 September 2020.

Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

  1. [95]
    It is not a matter of dispute that there is a continuing need for the Administrative Officer role to be performed.  The contest lies in how that need is fulfilled.
  1. [96]
    Ms Benson indicated that her temporary role had been extended on eight occasions since 2017 and submitted that:[44]

My role is front office and reception duties for the school and requires someone to man this at all times during school hours, including a period before and after.  If I am not in attendance, someone is required to cover this position as it is a crucial first point of contact for the school.

  1. [97]
    The Department did not contradict that Ms Benson had been on a series of consecutive temporary contracts in the role for over three years nor that there was a continuing need for that work to be done.  Rather, the Department asserted that the temporary engagement complied with s 148(2)(a) of the PS Act, in circumstances where Ms Benson was backfilling an employee absent on extended approved leave currently seeking work in Brisbane.
  1. [98]
    Section 148 of the PS Act states:

148 Employment of fixed term temporary employees

  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period –

approved leave (including parental leave), a secondment

  1. [99]
    I note that provision indicates only that employment on tenure may not be viable or appropriate if it is to fill a temporary vacancy arising because a person is absent for a known period.  While that is certainly one factor that may inform the Department's considerations of whether there is a continuing need for Ms Benson to be employed in the role, it is not the exclusive consideration.  The Department has submitted that the backfill circumstance is the genuine operational reason not to convert Ms Benson's engagement as an Administrative Officer to permanent employment in its final submission.[45]
  1. [100]
    It appears to me that the Department has misdirected its own inquiry.  It is relevant that s 149B(2)(a) requires consideration of the person's role, or a role that is substantially the same.  The Department has stopped short of considering the mandatory criteria in s 149A(2) simply on the basis that someone may be returning to the role. 
  1. [101]
    That is particularly pointed because there seems also to have been a change of circumstances since the Appeal was filed. 
  1. [102]
    The Appeal Notice initially indicated that Ms Benson's temporary contract was to expire on 12 February 2021.  The Department further added that the absent incumbent employee had been granted leave up until 15 January 2021.  However, it appears the absent incumbent employee's return did not eventuate, with Ms Benson's later stating that she had "signed another temporary contract for this role to commence of 25 January 2021 and ceasing on 10 December 2021 with an increase from 42 hours to 49 hours a fortnight."[46]  The Department had the opportunity to comment on that development in its submission filed after that time, but did not do so.[47]  That Ms Benson has been extended on a further temporary contract for an entire school year, with increasing hours, is also pertinent to my considerations of this matter.
  1. [103]
    As earlier outlined, the Department must consider the mandatory criteria in cl 8.1 and 8.2 of the TE Directive.
  1. [104]
    The prescribed definition of 'the same role' in the previous Directive 08/17 was deliberately broad and captured "…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…"[48]  I note that no definition of 'the same role' is provided in the current TE Directive, however in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the previous TE Directive.
  1. [105]
    There are therefore two potential pathways to conversion.  The first pathway is Ms Benson's present role.  The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for Ms Benson to be employed in the current role?

  1. [106]
    The TE Directive mandates that the decision maker considers this precise question.
  1. [107]
    The fact of a deemed decision in this case means that the Department did not provide Ms Benson with written reasons for the conversion refusal, nor has the role been defined and presented in any decision letter.  The Department's submissions have not addressed this requirement. However, I note that Ms Benson had included a brief description of her work on 12 January 2021 and this was not contradicted by the Department. 
  1. [108]
    I struggle to understand how the duty to consider the mandatory criteria may properly be discharged by the Department in the absence of doing so.  For the purposes of this Decision, I have defined the role to be 'Administrative Officer AO2' located at Slade Point State School.
  1. [109]
    The Department's inattention to providing an outline of reasons relating to each of the TE Directive mandatory criteria in its submissions is unhelpful.  Considerations of the 'continuing need' for the role – and Ms Benson's involvement in it – are both required.  They are not one and the same.  Circumstances may exist where the role is continuing, but the person's involvement in it is not.  In that sense, it is important to interpret the TE Directive holistically but also pay appropriate attention to the particular separate elements of the clause.
  1. [110]
    The Department's submissions are quite limited in conveying the consideration of this criteria.  It states:[49]

The temporary Administrative Officer role at Slade Point State School is for the purpose of backfilling another employee who substantively holds the position, and at the time of these submissions has been granted leave up to 15 January 2021. 

The substantive employee is using a combination of approved long service, recreation and unpaid special leave to account for her absence from Slade Point State School.

The temporary engagement of the Appellant in the role of Administrative Officer complied with section 148(2)(a) of the PS Act.

…

The permanent substantive employee has been seeking work in Brisbane, and at some stage in the future, the availability of the permanent Administrative Officer role at Slade Point State School will be determined.

The Respondent submits that until the substantive employee provides a decision, through resignation, approved transfer application, or otherwise, the Administrative Officer role at Slade Point State School remains the substantive employee's to return to, and cannot be permanently filled by another employee.

  1. [111]
    The above indicates the Department's view that the role is continuing.  Indeed, it goes on to explain the intended program of backfill of the absent incumbent employee.  As such, I find that the role is continuing.
  1. [112]
    It may also be inferred that the Department contends that while the role is continuing, there is not a continuing need for Ms Benson to be involved in the role (due to the incumbent's expected return on 15 January 2021).
  1. [113]
    The phrase "…and at the time of these submissions has been granted leave up until 15 January 2021" does not convey a high level of certainty on the part of the Department that there is no continuing need for Ms Benson to be employed in the role.  This is borne out on the evidence before me that Ms Benson has been further extended in this role for another school year and on increased hours.  It would appear then that the absent incumbent employee did not return as anticipated and has in fact further extended their leave until at least 10 December 2021.[50]
  1. [114]
    Notwithstanding I have established that the role (as I have defined it) is continuing, the real controversy between the parties is whether (or not) there is a continuing need for Ms Benson to be employed in the role. 
  1. [115]
    In essence, the Department notes that:
  • The present temporary engagement is backfilling for another absent employee who is the incumbent in the role;
  • That absent employee's leave had been granted until 15 January 2021; and
  • "…until the substantive employee provides a decision, through resignation, approved transfer application, or otherwise, the Administrative Officer role at Slade Point State School remains the substantive employee's to return to…"[51]
  1. [116]
    At the time of the Department's submission, Ms Benson's temporary contract was to cease on 12 February 2021.
  1. [117]
    I am also conscious of several other factors in determining this issue:
  • Ms Benson has been employed on eight (now nine) consecutive temporary contracts (previously at 42 hours and most recently progressing to 49 hours per fortnight).
  • These temporary contracts were for the purpose of backfilling the absent incumbent employee, on approved leave to seek employment in Brisbane.
  • The temporary contract extensions have been for varying periods - and the most recent extension for this school year is until 10 December 2021.  Demonstrably, there is very little or no certainty as to a definitive return date for the absent incumbent employee.
  • The Department accepts that there is a continuing need for someone to backfill the position. 
  • The TE Directive requires that the decision maker consider whether there is a continuing need for Ms Benson to be employed in the role. 
  1. [118]
    Section 148(2) of the PS Act states that employment on tenure may not be viable in circumstances such as backfilling of a temporary vacancy. 
  1. [119]
    The Department points to there being no continuing need for Ms Benson to perform her current role beyond the expiry of her temporary contract and / or once the absent incumbent employee otherwise "provides a decision" as to whether they will return to the role. 
  1. [120]
    I accept that particular circumstance may have constituted reasons for the Department to initially employ Ms Benson on a temporary employment contract.  However, after more than three years of meritoriously undertaking the role at this time, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [121]
    It is quite clear that the role presently occupied by Ms Benson is continuing.  At the time of the deemed decision there was a continuing need for Ms Benson to be employed in her present role, at least until 12 February 2021.  As a result of a further approved leave extension for this school year, there is now a continuing need for Ms Benson to be employed in her present role until at least 10 December 2021.  Beyond that date, there is very little certainty as to when, if ever, the absent incumbent employee may return.  That is accepted by the Department as much in its submissions[52] - and is particularly pointed in light of the repeated temporary contract extensions over three years and the inherently uncertain nature of the approved leave.
  1. [122]
    It follows that there is a continuing need for Ms Benson to be employed in her current role.  In my view, the Department's deemed decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
  2. [123]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Ms Benson to permanency.
  1. [124]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles.

Pathway 2: Is there a continuing need for Ms Benson to be employed in a role which is substantially the same?

  1. [125]
    The TE Directive mandates that the decision maker considers this precise question.
  1. [126]
    The fact of a deemed decision in this case means that the Department did not define a role which is substantially the same in any decision letter to Ms Benson either.  Nor have the Department's submissions addressed this requirement.
  2. [127]
    My comments above as to how the duty to consider the mandatory criteria may properly be discharged in the absence of doing so apply here too.  For the purposes of this decision, I have defined a role which is substantially the same to be 'Administrative Officer AO2' located at Slade Point State School.
  1. [128]
    The Department's submissions are inadequate with respect to conveying any consideration of this criteria at all. 
  1. [129]
    In addition to neglecting the key issue of defining the role and a role which is substantially the same, the Department did not demonstrate that they had analysed the capability requirements of the role performed by Ms Benson over the last three years.  No specific search efforts undertaken to ascertain whether there were other roles that may be suitable to convert Ms Benson in the circumstances were referred to at all. 
  1. [130]
    In Katae, Crow J considered the definition of "same role" in the TE Directive.  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.

  1. [131]
    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. [132]
    As I have earlier acknowledged, the current TE Directive does not contain a definition of 'same role'.  In light of that absence, I have relied on the definition provided in Directive 08/17 to which Katae refers.
  1. [133]
    The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same within the Department.
  1. [134]
    In considering whether there is a continuing need for Ms Benson to be employed in a role which is substantially the same, I am also conscious of the further extension of approved leave to the absent incumbent employee. 
  1. [135]
    Ms Benson has rather anticipated that option, in submitting that:[53]

…to resolve this issue, the Commission may overcome this by ordering the Respondent to convert me to permanent employment at the AO2 classification within the Department of Education, rather than specific position held by the substantive position holder.  Once the substantive position holder has provided a decision to the Department on their employment, this would enable the respondent to appoint me to that position.

  1. [136]
    I have found that there is a continuing need for Ms Benson to be employed in her current role.  However, in the alternative and for the reasons above, I also find that there is a continuing need for Ms Benson to be employed in a role which is substantially the same.  The Department's finding to the contrary was unfair and unreasonable because it did not give appropriate weight to these relevant factors.

 Genuine operational reasons

  1. [137]
    Section 149A(3) states:

…the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure of a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

  1. [138]
    'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning.
  1. [139]
    The Department's final submissions provide that the genuine operational reasons to deny conversion are effectively the need to backfill an absent incumbent employee.
  1. [140]
    The Department reasoned that the possible return of the absent incumbent employee presented the genuine operational reason not to convert Ms Benson to permanent employment.  In that vein, I have found that the requirements of s 149A(3) have been met and it follows that the genuine operational reasons appeared to be relied on are now without basis. 
  1. [141]
    I note the default position of s 149A(3) is that a temporary employee should be converted.  In the absence of any expressed genuine operational reasons, I find that provision contains no impediment in this case.
  1. [142]
    It follows that there are no genuine operational reasons preventing Ms Benson from being converted to permanent employment.

Conclusion

  1. [143]
    The issue for my determination is whether the decision not to convert Ms Benson to permanent employment was fair and reasonable. 
  1. [144]
    Once the jurisdictional hurdles were cleared, this matter largely turned on considerations of whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same.
  1. [145]
    The Department had found that the series of Ms Benson's temporary engagements as an Administrative Officer AO2 at Slade Point State School was to backfill an absent incumbent employee on approved leave for the purposes of seeking work in Brisbane.
  1. [146]
    The Department also concluded that the temporary circumstances of Ms Benson's appointment would end on 12 February 2021 (with the absent incumbent employee's approved leave granted until 15 January 2021 at that time).
  1. [147]
    The factual premise of the decision was not fair and reasonable, and neither was the conclusion reached.
  1. [148]
    The Department's presumption was not borne out.  The absent incumbent employee did not in fact return to work after long term approved leave – and Ms Benson was offered a further temporary contract for this school year.  That being the case, a continuing need for Ms Benson to perform the role is now demonstrated. 
  1. [149]
    In the alternate, I have explained my concern with the Department's lack of reference to the exploration of any role which is substantially the same and the absence of any evidence of its analysis and assessment of such capability requirements inherent in either the role currently performed by Ms Benson or others that may be substantially the same.  This is further impeded by the Department's failure to define these terms - and the particulars of any search conducted for same.
  1. [150]
    On the material before me, I have found that there is a continuing role, being the role Ms Benson is currently backfilling, and that there is a continuing need for Ms Benson to be employed in that role.
  1. [151]
    In the alternate, the Department was required to consider conversion to a role which is substantially the same.  For the reasons above, that was also an appropriate avenue for conversion.  As such, in the alternative, Ms Benson should be converted to permanency on that basis as an Administrative Officer AO2 located at Slade Point State School.
  1. [152]
    In arriving at this conclusion, I am conscious that the PS Act and TE Directive are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the TE Directive and legislation. Those efforts allow for the achievement of the purpose of the TE Directive.[54]
  1. [153]
    In my view, by virtue of the absence of genuine operational reasons evidenced in the Department's submissions made subsequent to the deemed decision that have arisen in the course of this Appeal, the appropriate order is that Ms Benson be converted to permanency.
  1. [154]
    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 Ms Benson not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Ms Benson's temporary employment status as an Administrative Officer AO2 be converted to permanent employment.

Footnotes

[1] 0.17 FTE.

[2] 0.58 FTE.

[3] Public Service Act 2008 (Qld) s 149B(7).

[4] Industrial Relations Act 2016 (Qld) s 562B(3).

[5] Ibid s 562B(2).

[6] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.

[7] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provision in s 201 of the Public Service Act 2008 (Qld).

[8] Industrial Relations Act 2016 (Qld) s 567(2).

[9] Industrial Relations Act 2016 (Qld) s 564.

[10] Appellant’s submissions in reply were filed 27 January 2021.

[11] Amended on 24 March 2021.

[12] These submissions were filed on 29 March 2021.

[13] These submissions were filed on 1 April 2021.

[14] [2020] QIRC 228 [7]-[8].

[15] King-Koi v State of Queensland (Department of Education) [2020] QIRC 209, [38].

[16] Industrial Relations Act 2016 (Qld) s 564(2).

[17] Appellant’s submissions filed 29 March 2021, page 1, [2].

[18] Respondent’s submissions filed 1 April 2021.

[19] Directive 09/20 Fixed term temporary employment cl 10.2 (a)-(e).

[20] Ibid cl 10.2 (e).

[21] Respondent’s submissions filed 15 January 2021, pages 1–2, [8]-[9].

[22] Email from the Department to Ms Benson dated 6 November 2020.

[23] Respondent’s submissions filed 15 January 2021, page 3, [14]-[15].

[24] Correspondence to Ms Benson from the Department dated 18 November 2020.

[25] Respondent’s submissions filed 15 January 2021, page 1, [7].

[26] Appellant’s submissions filed 29 March 2021, page 1, [2]-[3].

[27] Appellant’s submissions filed 29 March 2021, page 1, [3].

[28] Respondent’s submissions filed 1 April 2021, page 2, [4].

[29] Contained in cl 9.5 of Directive 08/17 Temporary Employment as well.

[30]Directive 09/20 Fixed term temporary employment cl 9.

[31] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348; Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300; Grant v State of Queensland (Queensland Health) [2020] QIRC 228 [7]–[8]. 

[32] Public Service Act 2008 (Qld) s 149B(7); Directive 09/20 Fixed term temporary employment cl 8.5.

[33] The IR Act does not delineate between business or non-business days in that respect, it is simply 21 calendar days. That aspect would only become a relevant consideration if the due date for filing fell on an excluded day.

[34] Respondent’s submissions filed 15 January 2021, page 2, [11]-[12].

[35] Ibid.

[36] Ibid.

[37] Directive 09/20 Fixed term temporary employment cl 1 and cl 4.

[38] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[39] Respondent’s submissions filed 15 January 2021, page 3, [14]-[15].

[40] Respondent’s submissions filed 15 January 2021, page 1, [7].

[41] Unpublished Decision PSA/2018/22, Power IC, QIRC, Delivered 22 November 2019, [32]–[35].

[42] Public Service Act 2008 (Qld) s 149B(7)

[43] Directive 09/20 Fixed term temporary employment cl 8.5 and cl 8.7

[44] Appellant’s submissions filed 12 January 2021, page 3, [16].

[45] 1 April 2021.

[46] Appellant’s submissions in reply filed 27 January 2021, page 2, [8].

[47] Respondent’s submissions filed 1 April 2021.

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

[49] Respondent’s submissions filed 15 January 2021, pages 3-4, [22]-[26].

[50] Appellant’s Reply Submissions, filed 27 January 2021, page 2, [8].

[51] Respondent’s Submissions, filed 15 January 2021.

[52] Respondent’s submissions, filed 15 January 2021, page 4, [25]-[26].

[53] Appellant’s Reply Submissions, filed 27 January 2021, page 2, [9].

[54] Directive 09/20 Fixed term temporary employment cl 1.1.

Close

Editorial Notes

  • Published Case Name:

    Benson v State of Queensland (Department of Education)

  • Shortened Case Name:

    Benson v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 152

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    11 May 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Grant v State of Queensland (Queensland Health) [2020] QIRC 228
3 citations
Jump To
Cite 1 - [2020] QIRC 228
Cite 2 - [2020] QIRC 228
Cite 3 - [2020] QIRC 228
Hunter Valley Dev Pty Ltd v Cohen (1984) 3 FCR 344
2 citations
Jump To
Cite 1 - (1984) 3 FCR 344
Cite 2 - (1984) 3 FCR 344
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
2 citations
Jump To
Cite 1 - [2020] QIRC 209
Cite 2 - [2020] QIRC 209
Maroochydore Sands Pty Ltd v Minister for State Development, Manufacturing, Infrastructure and Planning [2019] QSC 319
2 citations
Jump To
Cite 1 - [2019] QSC 319
Cite 2 - [2019] QSC 319

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Crothers v State of Queensland (Queensland Police Service) [2022] QIRC 972 citations
Ecimovic v State of Queensland (Queensland Police Service) [2022] QIRC 3002 citations
Erbulut v State of Queensland (Queensland Health) [2023] QIRC 2004 citations
Johnson v State of Queensland (Queensland Health) [2021] QIRC 2843 citations
Johnson v State of Queensland (Queensland Health) [2022] QIRC 2893 citations
Johnstone v State of Queensland (Queensland Health) [2021] QIRC 4333 citations
Joshi v State of Queensland (Queensland Health) [2021] QIRC 2122 citations
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Morgan v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 1323 citations
Murray v State of Queensland (Queensland Health) [2023] QIRC 1943 citations
Novak v State of Queensland (Queensland Health) [2023] QIRC 1954 citations
Olesk v State of Queensland (Department of Education) [2024] QIRC 143 citations
Owens v State of Queensland (Department of Education) [2021] QIRC 3723 citations
Piper v State of Queensland (Department of Agriculture and Fisheries) [2021] QIRC 2466 citations
Shafiee v State of Queensland (Queensland Health) [2023] QIRC 1893 citations
Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 3112 citations
Stephens v State of Queensland (Queensland Health) [2022] QIRC 4202 citations
Stievano v State of Queensland (Queensland Health) [2022] QIRC 4045 citations
Taylor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 533 citations
Williams v State of Queensland (Queensland Health) [2023] QIRC 592 citations
1

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