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  4. Behm-Pike v State of Queensland (Office of the Independent Assessor) - [2021] QIRC 173

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Behm-Pike v State of Queensland (Office of the Independent Assessor)[2021] QIRC 173

Behm-Pike v State of Queensland (Office of the Independent Assessor)[2021] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Behm-Pike v State of Queensland (Office of the Independent Assessor) [2021] QIRC 173

PARTIES:

Behm-Pike, Hannah

(Appellant)

v

State of Queensland (Office of the Independent Assessor)

(Respondent)

CASE NO.:

PSA/2021/137

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

25 May 2021

MEMBER:

HEARD AT:

Power IC

On the papers

ORDER:

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

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal – Fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of the scope of a review under s 149B

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 148, 149A and 149B

Directive 09/20 Fixed term temporary employment, cl 8

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

Reasons for decision

Introduction

  1. [1]
    Ms Hannah Behm-Pike ('the Appellant'), is currently employed by the State of Queensland (Office of the Independent Assessor) ('the Respondent') in the fixed term temporary position of AO6, Senior Investigator.
  1. [2]
    By Appeal Notice filed on 16 April 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'), appealed against a decision that her employment remain as fixed term temporary with the Respondent ('the decision').

Appeal principles

  1. [3]
    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. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision by Ms Kathleen Florian, Independent Assessor of the Respondent to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').

What decisions can the Industrial Commissioner make?

  1. [6]
    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. [7]
    The Appellant outlined the following reasons for appeal in her appeal notice:

I am appealing the conversion decision on the basis that I understand there to be a continuing need for my current role within the Office of the Independent Assessor (OIA). The OIA was established in December 2018 to assess, investigate and prosecute complaints about councillor conduct for 77 local governments in Queensland. These complaints were previously managed by the Department of Local Government who reported receiving approximately 150 complaints per year. Based on these numbers, the OIA was established with a total of 10 FTE staff, four of which were investigators. In the OIA's first year of operation (FY2018-19), a total of 917 complaints were received. The following year (FY2019-20), a total of 1,030 complaints were received.

As a result of the significant number of complaints received, the OIA currently have four FTE Investigators and an additional four temporary investigators. Currently, the OIA have 20 employees in total and 45% of these are on temporary contracts or are on loan from the Department. Since inception, and as at 30 March 2020, the OIA's jurisdiction has also expanded to include Brisbane City Council. It is understood that despite the ongoing high volume of complaints and new jurisdiction, the OIA's FTE allocation & budget allocation have not been permanently addressed.

…

While I hold the role of a Senior Investigator, due to the high volume of work within the OIA, I have been required to assist in multiple areas of the organisation. This includes the assessment of new complaints, ongoing investigations, and assisting the internal legal team in clearing a backlog of matters being prepared for referral to the Councillor Conduct Tribunal. In essence, I have been deployed flexibly across three areas of the organisation to address backlogs based on priority.

I believe the above extensions of my contract, the scope of work that I am involved with, and the current workload of the OIA (including increased jurisdiction) demonstrate the ongoing need for my role. Further, I have been advised that over the period of my employment with the OIA, I have demonstrated that I exceed the merit requirements for the role.

Relevant provisions of the PS Act and the Directive

  1. [8]
    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. [9]
    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. [10]
    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. [11]
    The 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. [12]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.  

Respondent's submissions

  1. [13]
    The Respondent filed submissions in response to the Appellant's appeal, which are summarised as follows:
  • the decision not to convert the Appellant's employment to permanent was based on the genuine operational requirements of the Respondent;
  • at present, the Respondent does not have a budget allocation or full time equivalent ('FTE') approval to support the permanent conversion of the Appellant's employee status;
  • agencies are required to operate within their established FTE and budget allocations;
  • regard must be had to the necessity to manage resources under the Government's savings and debt plan;
  • communication has been made to the Appellant that her current appointment in the role of AO6, Senior Investigator is on a fixed term temporary contract, as there is no permanent FTE or budget allocation;
  • the decision was consistent with the requirements of s 148(2) of the PS Act;
  • in making a decision under the Directive, the decision maker must necessarily consider budget, FTE staffing levels (i.e. FTE restrictions and caps), sources and limits of budget funding; and
  • in determining clause 8.1 of the Directive, the decision making has included a review and understanding of the broader FTE allocation, budget allocation and the requirements of the Whole of Government led Savings and Debt Planning process as at the date the decision is made.
  1. [14]
    The Respondent provided the following submissions with respect to the Respondent's funding and resourcing:
  1. The OIA commenced operations on 3 December 2018 with an establishment of 10 full-time positions including the Delegate. An additional funded position was later transferred from the department to form the currently approved 11 permanent FTEs.
  2. Due to a higher than anticipated workload since the commencement of the OIA, and the expanded jurisdiction from April 2020 the OIA have incrementally supplemented staffing through the engagement of eight temporary employees, while simultaneously seeking permanent funding and FTE through the normal budget cycle on 15 March 2019 and 7 February 2020. 
  3. The latest approval provides for 8 temporary employees up to 30 June 2021. Additional funding was not approved. Five positions were funded from 2020-21 financial year as a result of a one-off Treasury approval for unspent funds from the completion of a 2019/20 IT project being carried over into the 2020-21 year. On 8/12/2020 the Deputy Premier announced further funding of $250K to cover the salaries of the remaining three approved temporary FTE positions until 30 June 2020.
  4. An internal review of the resourcing of the OIA and the Councillor Conduct Tribunal commenced in January 2020. This review will inform whether and to what extent OIA FTE and funding can continue to be supported from within the DSDILGP. As at the date of this decision, and this submission, the OIA's FTE or funding position for 2021-22 is not known.
  5. The Delegate is required to manage the office within approved FTE and budget allocations.  As such a commitment beyond 30 June 2021 could not be given.
  6. Further to this the Whole of Government led Savings and Debt Planning process requires agencies to manage its resourcing and FTE's in line with FTE caps and budget requirements to realise savings due to the exceptional circumstances of the COVID-19 health pandemic. Agencies have been requested to meet further savings targets to support economic recovery in response to the COVID-19 health pandemic. As a result, all projects, initiatives, resourcing and associated timeframes are being reviewed to ensure savings targets are met. This has subsequently created high degree of uncertainty regarding the funding arrangements of departmental projects and resourcing of work priorities.
  1. [15]
    The Respondent accepts that the Appellant's performance satisfies the merit principle pursuant to clause 8.1 of the Directive and that there is an ongoing need for the role, or a role which is substantially the same based on the volume of work and investigations undertaken by the Respondent and the expanded jurisdiction.

Appellant's submissions in reply

  1. [16]
    The Appellant was provided with the opportunity to provide written submissions in response to the Respondent's submissions, however, confirmed she did not wish to provide any further submissions.

Consideration

  1. [17]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision determined that the Appellant's employment remain as fixed term temporary.
  1. [18]
    The Respondent outlined in its decision dated 31 March 2021 that the Appellant satisfies the merit requirements of the Senior Investigator role and that there is a continuing need for the Appellant to fill the role or a role that is substantially the same.
  1. [19]
    The reasons provided in the decision for the denial of the Appellant's request is that conversion is not viable or appropriate at this time because the Respondent does not have approval for a permanent ongoing FTE and does not know, at this time, what its funding position will be after 30 June 2021.
  1. [20]
    Section 148(2)(c) of the PS Act provides that employment of a person on tenure may not be viable or appropriate if the employment is to fill a position for which funding is unlikely or unknown. Whilst guaranteed funding is not a criterion for conversion, the funding uncertainty in the midst of a review does reasonably indicate that permanent appointment would not be viable or appropriate at this time.
  1. [21]
    Section 149A(3) of the PS Act provides that if the matters in s 149A(2) are satisfied, the person's employment must be converted unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [22]
    As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),[5] the phrase '… genuine operational requirements of the department' construed in the context of a temporary higher classification appointment, would at least include consideration of the following:

… whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[6]

  1. [23]
    In considering the genuine operational requirements of the Department, it was reasonable for the Respondent to consider the outcome of the internal review of the resourcing of the Respondent and Councillor Conduct Tribunal which commenced in January 2020. I accept that considerations of the funding restrictions covering temporary FTE positions until 30 June 2021 in the context of this review could reasonably be considered as having regard to 'the effective, efficient and appropriate management of the public resources of the department'.
  1. [24]
    Section 149B(6) of the PS Act require that where a decision is made not to offer to convert a person's employment, the chief executive must give the person a notice stating:
  1. (a)
    the reasons for the decision; and
  2. (b)
    the total period for which the person has been continuously employed in the department; and
  3. (c)
    for a fixed term temporary employee – how many times the person's employment as a fixed term temporary employee has been extended; and
  4. (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. [25]
    The Respondent's decision broadly complied with the requirements of s 149B(6) of the PS Act regarding the mandatory contents of the notice given to the Appellant.
  1. [26]
    The reasons for the decision were adequate and outlined the basis upon which the decision had been made, in compliance with s 149B(6)(a).
  1. [27]
    The decision notes that the Appellant's period of employment is "over the period 4/3/2019 to present". Although the decision does not specifically outline the total period for which the Appellant has been employed, I am satisfied that the decision complies with s 149B(6)(b) of the PS Act.
  1. [28]
    The decision does not state how many times the Appellant's employment has been extended pursuant to s 149B(6)(c), however, this information was provided in the Respondent's submissions, outlining that the Appellant's engagement has been extended four times.
  1. [29]
    I note that s 149B(6)(d) was not referred to in the decision. On the basis that ss 149A and 149B of the PS Act commenced operation on 14 September 2020, no previous decisions could have been made under these sections of the PS Act. Consequently, the Respondent is not required to demonstrate compliance with s 149B(6)(d).
  1. [30]
    In consideration of the material before me, I am satisfied that the Respondent has complied with the obligations under both the Directive and the PS Act. Consequently, the decision made by the Respondent was fair and reasonable.

Order

  1. [31]
    I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2020] QIRC 203.

[6] Ibid [40].

Close

Editorial Notes

  • Published Case Name:

    Behm-Pike v State of Queensland (Office of the Independent Assessor)

  • Shortened Case Name:

    Behm-Pike v State of Queensland (Office of the Independent Assessor)

  • MNC:

    [2021] QIRC 173

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    25 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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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