Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Huismann v State of Queensland (Queensland Health) - [2021] QIRC 176

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Huismann v State of Queensland (Queensland Health)[2021] QIRC 176

Huismann v State of Queensland (Queensland Health)[2021] QIRC 176

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Huismann v State of Queensland (Queensland Health) [2021] QIRC 176

PARTIES: 

Huismann, Cindy

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2021/96

PROCEEDING:

Public Service Appeal - Temporary Employment

DELIVERED ON:

26 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;
  1. The decision that Ms Huismann not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  1. Ms Huismann's temporary employment status be converted to permanent employment.

CATCHWORDS:

LEGISLATION AND OTHER INSTRUMENTS:

CASES:

INDUSTRIAL LAW – APPEAL – temporary employment – where the Respondent had been ordered to conduct a fresh review under the Public Service Act 2008 and Directive 08/17 – Temporary Employment – where the outcome of the review was that the Appellant was again not permanently appointed – consideration of continuing need and whether role is likely to be ongoing – consideration of role which is substantially the same

Acts Interpretation Act 1954 (Qld) s 14A

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

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

Public Service Act 2008 (Qld) s 28, s 149, s 194, s 294,

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Harbour Radio Pty Ltd & Ors v Wagner & Ors [2019] QCA 221

Huismann v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, Hartigan IC, 5 February 2021)

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

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

Reasons for Decision

Introduction

  1. [1]
    Ms Cindy Huismann (the Appellant) has filed an appeal against a temporary employment conversion decision (the decision) made by Mr Adam Lavis, Director of Human Resources (the decision maker) for the Princess Alexandra Hospital, Metro South Hospital and Health Service (the Respondent; PAH; MSHHS). 
  1. [2]
    Ms Huismann works as an Administration Officer AO3 in the Medical Records Department (MRD) at PAH.
  1. [3]
    Ms Huismann has been employed by the Respondent on successive temporary contracts since 29 September 2014.
  1. [4]
    For the reasons outlined below, I find the decision to continue Ms Huismann as a temporary employee was not fair and reasonable in the circumstances.

The Decision

  1. [5]
    The terms of the decision were provided to Ms Huismann in correspondence from the decision maker on 19 February 2021 (the decision letter).
  1. [6]
    The decision subject of this Appeal is the Respondent's determination under Directive 08/17 Temporary Employment (Directive 08/17) not to convert Ms Huismann's employment status from temporary to permanent. 

Submissions

  1. [7]
    In accordance with the Directions Order issued on 16 March 2021, the parties exchanged written submissions. 
  1. [8]
    Pursuant to s 451(1) of the Industrial Relations Act 2016 (Qld) (IR Act), no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Jurisdiction

 Decision against which an appeal may be made

  1. [9]
    In her Appeal Notice, Ms Huismann indicated she is appealing "a conversion decision made under s 149B". I disagree that the decision subject of this Appeal should be characterised in that way. My reasons follow.
  1. [10]
    On 24 August 2020, the Respondent gave a decision not to convert Ms Huismann's temporary employment to permanent (the original decision).
  1. [11]
    On 5 February 2021, Commissioner Hartigan of the Queensland Industrial Relations Commission ordered the Respondent to conduct a fresh review of the original decision "pursuant to the relevant provisions of both the Public Service Act 2008 (Qld) and the Public Service Commission Directive 08/17 - Temporary Employment" within 28 days.[1]
  1. [12]
    Directive 08/17 pertains to legislative provisions of the Public Service Act 2008 (Qld) (PS Act) that were in force prior to significant changes that took effect on 14 September 2020 (Pre-Amendment PS Act).
  1. [13]
    Section 149 of the Pre-Amendment PS Act required the department's chief executive to decide whether to convert a temporary employee "at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department" and "at the end of each 1-year period" thereafter.[2]
  1. [14]
    Section 294 of the current PS Act provides as follows:

294 Continuation of previous section 149 for particular temporary employees

  1. (1)
    This section applies if—

  (a)  a temporary employee was, under section 149 as in force immediately before the commencement, entitled to a decision by the chief executive; and

  (b)  on the commencement, the decision has not been made.

  1. (2)
    Section 149, as in force immediately before the commencement, continues to apply in relation to the employee.
  1. [15]
    I am satisfied that prior to the commencement of the current PS Act on 14 September 2020, Ms Huismann was entitled to a decision under s 149 of the Pre-Amendment PS Act. The original decision was made on 25 September 2020, after the commencement of the current PS Act. As outlined above, that original decision was returned to the decision-maker for a fresh review in accordance with Directive 08/17. I find that s 149 of the Pre-Amendment PS Act continues to apply in relation to this matter, rather than s 149B of the PS Act. I note that Ms Huismann subsequently sided with this position in her reply submissions filed 1 April 2021.
  1. [16]
    Section 194(1)(e) of the Pre-Amendment PS Act provided that "a decision under section 149 that a temporary employee's employment in a department is to continue as a temporary employee" is an appealable decision.
  1. [17]
    For the reasons outlined above, I am satisfied the decision was made under s 149 of the Pre-Amendment PS Act and is able to be appealed.

Timeframe for appeal

  1. [18]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [19]
    The decision letter was dated 18 February 2021 - 22 days prior to the filing of the Appeal Notice on 12 March 2021. According to the Appeal Notice, Ms Huismann received the decision letter on 19 February 2021 - 21 days prior to the filing of the Appeal Notice.
  1. [20]
    It may well be the case that the decision letter was given to Ms Huismann on 19 February 2021 rather than on 18 February 2021 when it was dated. The Respondent did not argue that Ms Huismann was out of time with respect to filing the Appeal Notice and therefore I will proceed on the basis the decision letter was given on 19 February 2021.
  1. [21]
    I am satisfied that the Appeal was filed by Ms Huismann within the required timeframe.

Appeal principles

  1. [22]
    Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against to determine whether it "was fair and reasonable".
  1. [23]
    The appeal is not conducted by way of re-hearing,[3] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[4] 
  1. [24]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.[5]
  1. [25]
    The issue for my determination is whether the decision not to convert Ms Huismann's employment status from temporary to permanent was fair and reasonable in the circumstances.[6]

   What decisions can the IRC Member make?

  1. [26]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • Confirm the decision appealed against; or
  • Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  •  Set the decision aside and substitute another decision.

Appeal Notice

  1. [27]
    In the Appeal Notice filed on 12 March 2021, Ms Huismann argues that:
  • In considering the availability of roles that were the same or substantially the same, the decision maker erred in considering only the past two years of Ms Huismann's service - despite the fact she has worked for the Respondent for over six years.
  • The majority of work performed by Ms Huismann is for the Scanning Unit. This work is ongoing and will not be impacted by the implementation of the integrated electronic Medical Record (ieMR).
  • There is still a continuing need for Administration Officers to work in the MRD. The Respondent has permanently appointed employees to the same roles in other MRDs in 2021.
  • The decision maker has made arguments in the alternative for why Ms Huismann cannot be permanently converted to permanent. These arguments indicate the decision maker has not adequately considered whether there is a continuing need for a person to be employed in the role as required by cl 9.6(a) of Directive 08/17.
  • There is no dispute between the parties that Ms Huismann has demonstrated merit with respect to s 27 of the PS Act.

Respondent's stated reasons for not converting Ms Huismann to permanent

 Decision letter

  1. [28]
    In the decision letter, the Respondent provided reasons for not converting Ms Huismann to permanent employment.  In summary, they were:
  • That "there is not a continuing need for a person to be employed in the role, or the role is not likely to be ongoing. In the event that this is not correct and there is a continuing need for you to be employed in this role or a substantially similar role, I am unable to have your employment converted as there are genuine operational reasons underpinning my decision."
  • The decision "is based on continuing staffing needs at this time."
  • Since 2015 and the introduction of ieMR, the MRD has seen demand on its services reduce significantly as patient interactions have become electronically integrated. Due to this decline in workload, the Respondent has had to consider the implementation of changes to the staffing structure of the Medical Records Service (MRS) and other functions within the Health Information Management Services (HIMS).
  • On 2 December 2020, the Business Case for Change was provided to unions and impacted employees outlining a number of proposed substantial structural changes to the MRS and HIMS. Feedback was sought from interested unions and impacted employees, which has now been provided and is under consideration. As the consultation and feedback process regarding the Business Case for Change is continuing, which directly impacts on the continuing need to employ Ms Huismann on an ongoing basis, there are genuine operational reasons not to convert Ms Huismann's employment to permanent.
  • The decision maker had regard to other ongoing roles currently available which have the same or substantially the same capability requirements to the roles Ms Huismann has performed over the preceding two years. The decision maker considered an Administrator Officer AO3 vacancy, however did not consider this role to be substantially the same as Ms Huismann's current role because of the nature of the role and because the duties and responsibilities do not have the same or substantially the same capability as the role Ms Huismann is currently performing.

Submission to QIRC

  1. [29]
    In its written submission to the QIRC dated 23 March 2021, the Respondent further explained their reasons for not converting Ms Huismann to permanent employment:
  • The position occupied by Ms Huismann is within a unit undergoing organisational change and restructure which directly impacts the role being performed by Ms Huismann. The long-term viability of Ms Huismann's role cannot be definitively determined until the organisational change process is finalised.
  • The foundations for the implementation of ieMR were built in 2014, and the program was progressively implemented across the MSH until it was fully realised in 2017.
  • The implementation of ieMR across the state is aligned to the Queensland Health Digital Health Strategic Vision for Queensland 2026 and forms an integral part of the state-wide ten-year vision for digital health in Queensland.
  • Since the introduction of ieMR there have been significant reductions across daily clinic records, loose mail filings, after hours phone calls and the requirement for regular deliver of paper medical records. Further declines are expected. The significant reduction in service demand on the MRS necessitates an examination as to the ongoing viability of the service.
  • Ms Huismann has been "well aware of the organisational change on foot for some time" and in the context of information already provided to Ms Huismann, the level of detail provided by the decision maker in his decision is entirely appropriate.
  • Ms Huismann has never worked within the Scanning Unit, rather she has worked in the same position since her commencement as an employee of the Respondent.
  • A "Notable Case" dated 6 October 2017 and summarised by the Public Service Commission  stated, "The criteria are not retrospectively focussed but require that a determination be made at a particular point in time by reference to the decision maker's judgement about prevailing and future circumstances." The Respondent submits that the relevant point in time is 18 February 2021, being the date on which the decision the subject of this Appeal was made.
  • Consideration was given to the criteria outlined in cl 9.6 of Directive 08/17.
  • There have been no AO3 Administrative Officers converted to permanent positions in the MRS at the PAH in 2021.
  • Although there is some realignment of some roles proposed from the MRS to the Scanning Unit, s 5.1 of the Business Case for Change also notes that 3 FTE temporary engagements within Medical Records Administration will be honoured until their contract end dates only, and not realigned. This denotes that the temporary engagement of Ms Huismann is not ongoing beyond its nominal expiration.

Appellant's submissions in reply

  1. [30]
    In response to the Respondent's written materials, Ms Huismann contends in her reply submissions filed 1 April 2021:
  • The decision the subject of this Appeal was ordered to be made in accordance with the instruments at the time of the original decision and it is also to be made on the prevailing circumstances at that time. Although the Respondent is to conduct a "fresh review" and is therefore not restricted to considering only the evidence or material considered in the first review, this review should be conducted based on the circumstances existing at the time of the first decision and should not consider changed circumstances or evidence that did not exist at the time of the first review. The decision which is the subject of this Appeal, was based on circumstances that occurred after the original decision and was therefore unfair and unreasonable.
  • The fresh decision sets out changes in the medical records department since 2015 as well as changes in circumstances that have occurred between the first decision and the fresh decision relating to the Business Case for Change - these considerations were not outlined in the original decision.
  • The Respondent has essentially summarised the submissions they previously made in matter PSA/2020/265. Commissioner Hartigan found these reasons to not be fair and reasonable and these reasons are therefore as unfair and unreasonable today as they were when that decision was made.
  • Ms Huismann refers to "The paragraph in the decision and the submissions in relation to the business case for change" as being irrelevant to this Appeal and reliance on them makes the decision unfair and unreasonable. However, if the Commission disagrees with Ms Huismann on that point, she contends that the reasoning in the original decision holds in relation to those circumstances, reasoning and submissions:

[39] The Service submits that the PAH Medical Record Service is due to undergo operational change in the future as it moves away from paper-based records.  At the time the submissions were made those changes had not yet been undertaken and the Service’s submissions could go no higher that stating that management was considering a number of potential structural changes.

[40] Consequently, the Service’s submissions were not able to definitively state that there was no ongoing need for the role or a role that was substantially the same.  That is hardly surprising given the process had not yet commenced.[7]

  • The Respondent's submissions go no higher than stating that management is considering a number of potential structural changes.
  • The Notable Case provides that "A desire for future flexibility is not a genuine operational reason that precludes conversion of an individual employee."
  • Together Union opposed the proposed changes and have sought that they do not proceed in the form proposed because the termination of long-term temporary employees in this process would be contrary to government policy and the intent of the provisions of the legislative and industrial instruments. Further, Union members and staff have challenged the assumptions and conclusions presented in the Business Case for Change.
  • The decision errs by considering roles that are permanent, vacant and being advertised. Further, the evidence relied upon by the decision maker in reaching the finding that the roles have different capability requirements has not been referred to or provided in the notice. There does not need to a be a substantive vacancy for Ms Huismann to be converted. The roles that are advertised right now show the availability of ongoing work within Queensland Health in Brisbane and surround that would support a conversion.
  • For at least the last three years, Ms Huismann has spent significant time performing the work of scanning unit roles rather than medical records work. The fact that Ms Huismann has been employed for these tasks demonstrates that there is a continuing need.
  • The decision in Katae v State of Queensland & Anor[8] displaces the proposition that the Respondent need not consider anything "retrospectively". The Supreme Court in that case expressly considered employment history and the number and duration of Ms Katae's extensions in coming to a decision about whether a role is likely to be ongoing.
  • The Katae decision reinforces that cl 9.6 of Directive 08/17 provides that a role is required to be "likely to be ongoing" rather than "permanent". The Respondent's submissions reveal the error in decision making in considering that the role had to be definitively ongoing or permanent.
  1. [31]
    The outcome Ms Huismann seeks is that I exercise my discretion to substitute a decision that her employment status be converted to permanent.

Findings

  1. [32]
    I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [33]
    Whether the factors considered relevant by the decision maker were reasonable, and whether the weight afforded to them was reasonable, is relevant to my consideration of whether the decision itself was 'fair and reasonable'. It is not a hearing de novo.
  1. [34]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):

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

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

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

The pluarity in Li said:

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

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

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

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

  1. [35]
    On that basis, I find it relevant to consider the objects, scope and purpose of the legislative scheme for the review of the status of certain casual and temporary employees.

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

  1. [36]
    The legislative scheme for the review of the status of certain temporary employees is contained in the PS Act and in Directive 08/17.
  1. [37]
    Section 149 of the Pre-Amendment PS Act provides (emphasis added):

149  Review of status of temporary employee

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

 (3) In making the decision, the chief executive must -

  1. (a)
    consider any criteria for the decision fixed under -

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

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

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

  1. [38]
    Directive 08/17 relevantly provides:
  1. Purpose

a) to encourage and maximise security of employment; and

b) to ensure efficient and effective service delivery through the appropriate use of temporary employees.

…

7.  Principles

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

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

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

…

9. Review of the status of a temporary employee

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

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

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

…

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

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

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

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

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

  …

14.  Dictionary

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

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

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

  1. [39]
    Directive 08/17 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[10]
  1. [40]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) (the AI Act) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the AI Act provides that 'purpose', for an act, includes policy objective.
  1. [41]
    The stated purposes of Directive 08/17 are:
  • To encourage and maximise security of employment; and
  • To ensure efficient and effective service delivery through the appropriate use of temporary employees.
  1. [42]
    In deciding this Appeal, I note the significance of the legislative provisions identified and explained above.

 The Respondent's Considerations

  1. [43]
    Prior to considering the decision criteria, it is appropriate to first consider Ms Huismann's argument that the Respondent's review should have been conducted based on the circumstances existing at the time of the original decision only. I disagree with that argument for the reasons that follow.
  1. [44]
    The Respondent was ordered to conduct a "fresh review". Considerable time passed between reviews and therefore it is unsurprising if the workplace circumstances have changed. The Respondent should not be constrained to considering only the evidence or material considered in the first review.
  1. [45]
    To have the decision maker place themselves back in time to review a set of circumstances could lead to errors. For example, a decision maker may establish a continuing need in an ongoing role that is substantially the same in August 2020. By virtue of six months elapsing, as is the case here, circumstances are likely to affect the list of roles that fall into that category. To have the Respondent think back and only consider the roles at that time would be illogical and without benefit to either party.
  1. [46]
    Although it was the case the Respondent felt the circumstances at the time of the "fresh review" supported a decision not to convert Ms Huismann, the circumstances could very well have changed to support a conversion in the eyes of the Respondent. I doubt Ms Huismann would have wanted the Respondent to ignore such changed circumstances if they were in her favour.
  1. [47]
    Further, the Respondent submitted the foundations for the implementation of the ieMR were built in 2014 and the program was progressively implemented across the MSH until it was fully realised in 2017. The Respondent contends Ms Huismann has been "well aware of the organisational change on foot for some time". Therefore, I find it difficult to accept there was a substantial "change in circumstances" in only the six months prior to the decision. Rather, the need for a restructure had been contemplated and communicated to employees and their unions for some time.
  1. [48]
    I accept the Respondent has articulated some points in the decision that were not raised in their previous decision. That is to be expected in a "fresh review". It may be the case those points were considered by the Respondent in the original decision but were not articulated as such.
  1. [49]
    For the reasons outlined above, I agree with the Respondent's submission that the criteria are not retrospectively focused but instead require a determination be made at a particular point in time.

 Decision criteria that must be considered under Directive 08/17

  1. [50]
    Section 149(3)(a)(i) of the Pre-Amendment PS Act provides that in making the decision regarding a temporary employee's conversion to permanent status "…the chief executive must consider any criteria for the decision fixed under a directive."
  1. [51]
    The decision criteria prescribed under cls 9.6 and 9.7 of Directive 08/17 are:
  • The merit of the temporary employee for the role;
  • Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; and
  • A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent. 

 Merit

  1. [52]
    Clause 9.6(b) of Directive 08/17 states that "When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider…the merit of the temporary employee…"
  1. [53]
    There is no dispute between the parties that Ms Huismann met the merit criteria. Therefore, I find that cl 9.6(b) of Directive 08/17 presents no impediment to Ms Huismann's application for conversion from temporary to permanent employment.

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

  1. [54]
    The prescribed definition of 'the same role' is deliberately broad,[11] and captures a role which has the same or substantially the same capability requirements or a role with a generic role description involving a range of duties.
  1. [55]
    There are therefore two potential pathways to conversion. The first pathway is Ms Huismann's present role. The second pathway is an alternative role which is substantially the same.

Is there a continuing need for Ms Huismann to be employed in her present role?

  1. [56]
    Considerations of 'continuing need' and 'likely to be ongoing' are not one in the same, and circumstances exist where a person's involvement in the role is continuing, but the role is not ongoing, and vice versa. In that sense, it is important to interpret Directive 08/17 holistically but also pay appropriate attention to the particular separate elements of the clause.
  1. [57]
    In Katae, Crow J considered the criteria in cl 9.6 of Directive 08/17.  In that matter, Ms Katae was engaged in a series of temporary contracts from July 2014 until 31 December 2018, a shorter period than that undertaken by Ms Huismann. His Honour found that there was plainly a continuing need for Ms Katae to be employed in her role, effectively because her contract had not yet concluded.  It was the question of whether the role was likely to be ongoing that formed the primary basis for argument.
  1. [58]
    In that regard, his Honour’s findings are particularly relevant to these proceedings (emphasis added):

It is the second element of the 9.6(a) directive which is in issue, that is, whether "the role is likely to be ongoing". Whilst the Vice President acknowledged that the department was unable to guarantee that the end of the project would have been its set end date (30 June 2018), that is an insufficient basis upon which one could fairly and reasonably conclude that the role was not likely to be ongoing. What was required was an objective analysis of whether the role was likely to be ongoing, which depends upon the meaning given to the word "ongoing" and each of the circumstances which might affect the likelihood of the role being ongoing.

As discussed with counsel, the word "ongoing" is defined in the Shorter Oxford English Dictionary as "the action of going on; proceeding; continued movement." Where reference is had to the Shorter Oxford English Dictionary, or any other dictionary, it must be concluded that the word "ongoing" is most imprecise. Whilst it certainly does not mean "permanent" neither does it mean "temporary". It is noteworthy that within Directive 08/17 the words "permanent" and "temporary" are used. Given that s 149 is remedial, it seems to me that the directive ought to be read in a remedial manner, and the meaning prescribed to the word "ongoing" ought to be its ordinary dictionary meaning; that is, "going on" or "proceeding" or "continuing".

…

It was shown in evidence that Ms Katae was a capable person, having been in receipt of numerous temporary contracts for a period of over 3.5 years at the time of the decision. Importantly, while the project had an end date of 30 June 2018, it ought not be presumed that it would end at that date, that is, not all projects end on time. That is a matter of common experience, both in private and public enterprises. Similarly when one is considering the broad definition of "roles", it can be taken into account that prior to the decision, the experience of Ms Katae had been for a period of more than 3.5 years and throughout that period she has found similar roles within the department. A fair and reasonable conclusion on the then-available evidence was that the "role" was likely to be "ongoing". It follows that it has been shown that the appealed decision was not fair and reasonable.

Paragraph 9.7 of the directive evinces a presumption that temporary employees will be converted to permanent employees in the ordinary case. That is, ordinarily, where a person has been employed on a temporary basis for more than 2 years, there is a likelihood for the employment on an "ongoing basis". It is important to note that the criteria in paragraph 9.6(a) speaks of a role "likely to be ongoing" rather than a role being "permanent". In the present case, the materials placed before Linnane VP in respect of the senior project officer’s role, show there was a continuing need for the applicant to be employed in that role or in a substantially similar role, and that role was likely to be ongoing.

  1. [59]
    The decision maker has seemingly relied on the proposition that because Ms Huismann's position is within a unit undergoing organisational change and restructure, the longer-term viability of Ms Huismann's role cannot be definitively determined at this time.
  1. [60]
    Ms Huismann’s present contract expires on 26 June 2021. Ms Huismann argues that whilst the Respondent's submissions record her employment in the same temporary position of MRD Administration Officer, the reality is that over the last three years her role has expanded beyond the MRD to the Scanning Unit where she has undertaken "scanning unit roles". Ms Huismann argues that the "majority of work" currently performed by her is for the Scanning Unit.
  1. [61]
    Although the Respondent denies that Ms Huismann is "employed" in the Scanning Unit, I accept that although her role is listed as MRD Administration Officer, her responsibilities have expanded to incorporate roles within the Scanning Unit.
  1. [62]
    Ms Huismann has argued that the continuing need for Administration Officers to work in the MRD is further evidenced by appointments that have been made in 2021. The Respondent denies there have been any permanent conversions in the MRS at the PAH. Ms Huismann did not respond to this point in her reply submissions and without substantial evidence, I will not take it into account in this decision.
  1. [63]
    By the end of her present contract, Ms Huismann will have been temporarily employed by the Respondent for six years and eight months. Ms Huismann is clearly a highly capable person with a depth of relevant experience that she has practically applied to perform a range of work across various units.
  1. [64]
    The Respondent has not submitted any evidence of a capability assessment of the responsibilities undertaken that persuades me otherwise.
  1. [65]
    While it is manifestly obvious that the digital age is changing priorities within the HIMS, the acceleration and transition into digital recording would foreseeably still require need for employees with a similar skillset and experience to Ms Huismann. If there is a decrease in demand of the MRS by virtue of the ieMR, presumably there has been an increase in demand for employees to administer the ieMR in the Scanning Unit. The expansion of Ms Huismann's current role to incorporate associated ieMR tasks supports this notion. In that sense, with respect to both parties’ submissions, there is clearly a continuing need for Ms Huismann to be employed in her present role. So, the central issue in this Appeal, as it was in Katae, is whether the role is likely to be ongoing.

Is Ms Huismann's current role likely to be ongoing?

  1. [66]
    As provided by Crow J in Katae, the meaning of "…the word 'ongoing' ought to be its ordinary dictionary meaning; that is, 'going on' or 'proceeding' or 'continuing'."[12]
  1. [67]
    The Department has submitted that current uncertainties surrounding staffing structure within the MRS and HIMS confirm the appropriateness of the temporary nature of Ms Huismann's current role.
  1. [68]
    I note that cl 7.1 of Directive 08/17 indicates that employment "should be on a temporary rather than permanent basis" if "skills are required for a one-off project with a specific end date" and/or "funding for a project or program after a specific date is uncertain" and that neither of those circumstances are precisely met in this case. The Respondent's case turns largely on general uncertainty and arguably that type of uncertainty is ever-present in all workplaces.
  1. [69]
    While Ms Huismann's current contract expires as at 26 June 2021, the evidence before me supports her contention that there are many ongoing initiatives within the ieMR framework that will continue to require the involvement of someone with her skillset and experience beyond next month. The Respondent has not shed light on when they expect the restructuring decisions to be made and understandably, such decisions could take considerable time.
  1. [70]
    In adopting the rationality of Crow J, it ought not be assumed that the current engagement will conclude on time in circumstances where Ms Huismann's previous temporary engagements have been extended and where there is still a lot of "uncertainty" regarding structuring decisions left to be made.
  1. [71]
    However, the decision maker appears to infer a rather narrow consideration of the definition through an inability to speculate on the impact of organisational change and restructure on Ms Huismann's role, other than speculating that she may be terminated. The terminology of cl 9.6 is not about a position that the person is engaged under, it is about the role that the person is engaged in. 
  1. [72]
    There comes a point where it is no longer fair and reasonable to rely on an organisational restructure and the associated uncertainties not to convert Ms Huismann to permanent employment.  That point has now been reached.  It is not necessary that a role is certain to be ongoing, merely that it is likely to be ongoing.  That is the case in this instance.
  1. [73]
    It follows that there is a continuing need for Ms Huismann to be employed in her present role, and that said role and her involvement in it are likely to be ongoing.  The decision maker’s finding to the contrary was unfair and unreasonable because he did not give appropriate weight to the relevant factors set out above.
  1. [74]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Ms Huismann to permanency.
  1. [75]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles.

Is there a continuing need for Ms Huismann to be employed in a role which is substantially the same as her current role, and is the role likely to be ongoing?

  1. [76]
    In Katae, Crow J considered the definition of "same role" in Directive 08/17.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[13]

  1. [77]
    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. [78]
    The decision maker has expressed that "there are no other ongoing roles currently available which have the same or substantially the same capability requirements to the roles you have performed over the preceding two (2) years." In making the decision, the decision maker considered the role of AO3 Client Support Officer in Aboriginal and Torres Strait Islander Primary Health Care.
  1. [79]
    The decision maker concluded that he was unable to permanently appoint Ms Huismann to that role because it is not "substantially the same" as her current role and "the role does not have the same or substantially the same capability" as the role Ms Huismann is currently performing.
  1. [80]
    In light of the Respondent's comments regarding "vacancy"[14] and "roles currently available",[15] I have observed the decision maker's rather scant efforts to establish whether or not there were any ongoing roles in existence that could be considered substantially the same as Ms Huismann's current role - whether they be "currently available" or not.
  1. [81]
    The Respondent's submissions underscore a continued, errored preoccupation with the presence of a vacant role into which Ms Huismann may be placed.  While the fact of a vacancy may be convenient, it is certainly not determinative as to whether or not conversion can occur. I note with approval that point was also made by Industrial Commissioner Hartigan in her 5 February 2021 decision ordering the conduct of a fresh review.[16]
  1. [82]
    I find that the decision maker erred in limiting its search of "ongoing roles which are substantially the same" to only role(s) that were vacant at the time of the decision.
  1. [83]
    Ms Huismann argued the Respondent erred in considering only the last two years of Ms Huismann's service. I agree that the Respondent should not limit their consideration of capability requirements to Ms Huismann's preceding two years - nevertheless, considering Ms Huismann has worked within the same role for the past six years, I do not consider this lack of consideration to be a major issue in these circumstances.
  1. [84]
    I have found above that there is a continuing need for Ms Huismann to be employed in her present role, and that said role and her involvement in it are likely to be ongoing.  However, in the alternative and for the reasons above, I also find that there is a continuing need for Ms Huismann to be employed in a role which is substantially the same - and that such a role is likely to be ongoing.  The decision maker’s finding to the contrary was unfair and unreasonable because he did not give appropriate weight to these relevant factors.

Genuine operational reasons

  1. [85]
    Clause 9.7 of Directive 08/17 states that "A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent."
  1. [86]
    The Respondent contends that the genuine operational requirements relied on not to convert Ms Huismann to permanent are that the consideration and feedback process regarding the Business Case for Change is continuing, which directly impacts on the continuing need to employ Ms Huismann on an ongoing basis.  It suggests that the decrease in demand for the MRS may negate the need to employ Ms Huismann. 
  1. [87]
    It does however indicate the Department's view that the role is continuing in some form.  Indeed, the Respondent goes on to explain how it intends to consider the feedback it has received from employees and their unions. As such, I have earlier found that the role is continuing.
  1. [88]
    It may also be inferred that the Respondent contends that while the role is continuing, there is not a continuing need for Ms Huismann to be involved in the role post 26 June 2021. As I have observed, the Respondent has not evinced a high level of certainty there is no continuing need for Ms Huismann to be employed in the role beyond that date.
  1. [89]
    In addition to my consideration at paragraph [86] above, the decision maker also touches on the issue of genuine operational reasons at an earlier point in their decision letter, in these terms:

…I am unable to have your employment converted as there are genuine operational reasons underpinning my decision.  The decision not to permanently appoint you is based on continuing staffing needs at this time.[17]

  1. [90]
    It appears to me, in reading the decision and the submissions, that the Respondent’s position is effectively that the lack of continuing need and ongoing role in cl 9.6 was the genuine operational reason not to convert Ms Huismann.
  1. [91]
    However, I have concluded that such a finding was unfair and unreasonable. It follows that the genuine operational reason relied upon by the Respondent was also unfair and unreasonable, as it is predicated upon the findings as to cl 9.6 which I have disturbed in this Decision. 

Conclusion

  1. [92]
    For the reasons detailed above, I find that the decision to maintain Ms Huismann on a temporary contract was not fair and reasonable.
  1. [93]
    With regards to the discretions available to me to conclude this matter, I determine that the most appropriate course of action is to set the decision aside and substitute another decision.
  1. [94]
    It was not disputed that Ms Huismann meets the merit criteria. The Respondent relied upon claimed 'genuine operational reasons' to resist converting Ms Huismann to permanency. I have found those to be unreasonable in these circumstances.
  1. [95]
    As such, I have determined that the appropriate remedy is to convert Ms Huismann to permanent employment.
  1. [96]
    I order accordingly.

Orders:

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

  1.  The appeal is allowed;
  1.  The decision that Ms Huismann not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  1.  Ms Huismann's temporary employment status be converted to permanent employment.

Footnotes

[1] Huismann v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, Hartigan IC, 5 February 2021).

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

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

[4] Ibid.

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

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

[7] Huismann v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, Hartigan IC, 5 February 2021).

[8] [2018] QSC 225.

[9] [2019] QSC 170.

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

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

[12] Katae v State of Queensland & Anor [2018] QSC 225, [50].

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

[14] Decision Letter dated 18 February 2021, page 2.

[15] Ibid.

[16] Huismann v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, Hartigan IC, 5 February 2021).

[17] Decision Letter dated 18 February 2021, page 1.

Close

Editorial Notes

  • Published Case Name:

    Huismann v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Huismann v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 176

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    26 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Harbour Radio Pty Ltd v Wagner(2019) 2 QR 468; [2019] QCA 221
1 citation
Jump To
Cite 1 - [2019] QCA 221
Katae v State of Queensland [2018] QSC 225
5 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Cite 4 - [2018] QSC 225
Cite 5 - [2018] QSC 225
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Alexander v State of Queensland (Queensland Health) [2022] QIRC 802 citations
James v State of Queensland (Queensland Health) [2022] QIRC 2093 citations
Kattenberg v State of Queensland (Queensland Health) [2022] QIRC 1021 citation
Lynch v State of Queensland (Department of Education) [2023] QIRC 2342 citations
Whatman v State of Queensland (Queensland Health) [2022] QIRC 1012 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.