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  4. Beves v State of Queensland (Department of Tourism, Innovation and Sport) - [2021] QIRC 178

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Beves v State of Queensland (Department of Tourism, Innovation and Sport)[2021] QIRC 178

Beves v State of Queensland (Department of Tourism, Innovation and Sport)[2021] QIRC 178

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Beves v State of Queensland (Department of Tourism, Innovation and Sport) [2021] QIRC 178

PARTIES:

Beves, Rachael Louise

(Appellant)

v

State of Queensland (Department of Tourism, Innovation and Sport)

(Respondent)

CASE NO:

PSA/2021/53

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

3 June 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. The appeal is allowed;
  2. The decision that Mrs Beves not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Mrs Beves' temporary employment status as a Senior Project Officer AO6 be converted to permanent employment.

CATHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – temporary employment – where the Respondent had been ordered to conduct a fresh review under Directive 08/17 – Temporary Employment – where the outcome of the review was that the Appellant was again not permanently appointed – where the Respondent argued limited funding and uncertainty around work practices constituted genuine operational reasons not to convert – consideration of FTE allocation – consideration of continuing need and whether role is likely to be ongoing

LEGISLATION:

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 562C

Public Service Act 2008 (Qld) s 149, s 194, s 196, s 197, s 201, s 202, s 203, s 208

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

CASES:

Beves v State of Queensland (Department of State Development, Tourism and Innovation) (Queensland Industrial Relations Commission, Hartigan IC, 22 December 2020)

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

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]
    Mrs Rachael Beves (the Appellant) has filed an appeal against a decision not to convert her temporary employment status to permanent ('the conversion decision') made by Mr John Lee ('the decision maker'), Acting Director-General of the Department of Tourism, Innovation and Sport ('the Department', 'DTIS', 'the Respondent'), State of Queensland. 
  1. [2]
    Mrs Beves is currently employed in the role of Senior Project Officer (AO6), Business and Commercialisation Programs (BCP), Innovation Division of DTIS, based in Brisbane.
  1. [3]
    She has been employed by the Department in the temporary contract position since 3 July 2017.

The Decision

  1. [4]
    The terms of the decision were contained in correspondence from the decision maker dated 21 January 2021 ('the decision letter'), which was received by Mrs Beves that same day.
  1. [5]
    The decision subject of this appeal is the Respondent's determination that Mrs Beves is to continue as a temporary employee, in accordance with the terms of her existing temporary employment. 
  1. [6]
    The decision subject of this appeal was the result of a previous decision of Industrial Commissioner Hartigan in matter PSA/2020/205 that the Department conduct a fresh review of its original conversion decision "pursuant to the relevant provisions of both the Public Service Act 2008 (Qld) and the Public Service Commission Directive 08/17 – Temporary Employment."  That Directive pertains to legislative provisions of the Public Service Act ('PS Act') that were in force prior to significant changes that took effect on 14 September 2020. Commissioner Hartigan's decision is relevant to the determination of this appeal, and considered in some detail below.

Jurisdiction

 Decision against which an appeal may be made

  1. [7]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made.  Section 194(1)(e) of the PS Act provides that an appeal may be made against "a decision under section 149 that a temporary employee's employment in a department is to continue as a temporary employee". 
  1. [8]
    Section 197(1) of the PS Act allows for an appeal to be initiated by providing the Industrial Registrar an appeal notice stating the details of the decision being appealed against and the reasons for the appeal.
  1. [9]
    Section 196(e) of the PS Act prescribes that the temporary employee the subject of the decision may appeal.  Mrs Beves meets that requirement.
  1. [10]
    I am satisfied that the temporary employment decision made by the Respondent is able to be appealed.

 Timeframe for appeal

  1. [11]
    Section 197(2) of the PS Act requires that an appeal notice be lodged before 5:00 pm on the day that is 21 days after the day the Appellant received notice of the decision appealed against. 
  1. [12]
    The notice of the decision was received by Mrs Beves on 21 January 2021. 
  1. [13]
    The Notice of Appeal was filed with the Industrial Registry on 28 January 2021. 
  1. [14]
    I am satisfied that the appeal was filed by the Appellant within the required timeframe.

Appeal principles

  1. [15]
    Section 201 of the PS Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [16]
    The appeal is not conducted by way of re-hearing,[1] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[2]
  1. [17]
    Section 202 of the PS Act prescribes that an IRC member must observe the principles of natural justice in deciding an appeal.
  1. [18]
    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.[3]
  1. [19]
    The issue for my determination is whether the decision not to convert Mrs Beves' employment status from temporary to permanent was fair and reasonable in the circumstances.[4]

What decisions can the IRC Member make?

  1. [20]
    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.

Industrial Commissioner Hartigan's Decision

  1. [21]
    On 6 August 2020, after conducting a temporary employment review, the Department wrote to Mrs Beves.[5]  In summary, that letter advised Mrs Beves that "it is not appropriate to offer you conversion to permanent status at this time" because:
  • The role of Senior Project Officer is a temporary position with no ongoing funding; and
  • There are no ongoing roles at the AO6 classification level within the Department.
  1. [22]
    Mrs Beves appealed that decision. Industrial Commissioner Hartigan heard that appeal.
  1. [23]
    On 22 December 2020, Industrial Commissioner Hartigan ordered that the conversion decision of 6 August 2020 be set aside, and the temporary employment review be re-conducted according to law. In arriving at her Decision, Industrial Commissioner Hartigan provided:

In any event, the additional information provided by the Department is, in some respects, of limited relevance to the matter.  The information includes information with respect to the number of full time employees impacted by the Innovation Division and the Department submits that if all employees were to return to their substantive position on a full time basis, the Innovation Division would be above their budgeted full time employees for 2020/21.

This information is superfluous to the matters that must be considered pursuant to Directive 08/17.

For the same reason, consideration of whether there is a vacant AO6 role within the Department is also of limited relevance.  The absence of a vacant role into which Ms Beves could be placed is not a matter which the decision-maker is required to consider.

The decision-maker also nominates that the role is temporary, on the basis that it is subject to funding.  Whilst it is accepted that the funding for a role may be a factor that is relevant to the consideration of whether the role is likely to be ongoing, it should not be looked at in isolation from other relevant factors.

Additionally, just because a position is subject to funding and the future funding of that matter is uncertain does not necessarily mean, given the nature and context of the role, that the State would not require the role to continue, should the funding cease.[6]

The conversion decision of 21 January 2021 (subject of this appeal)

  1. [24]
    The decision maker's reasons for not converting Mrs Beves to permanent employment is set out below:

Reasoning for the decision to not convert your temporary employment to tenured status is:

  • the role of Senior Project Officer was initially funded for a three-year period until 30 June 2020 as part of the Advance Queensland initiative.  The funding for this initiative was limited life that ceased on this date
  • the position is currently funded by Trade and Investment Queensland (TIQ) on a cost recovery basis until 30 June 2021
  • there are no ongoing roles in DTIS at the AO6 classification level with available funding and / or full time equivalent (FTE)
  • Innovation Division FTE allocation will reduce by four in the 2021-2022 financial year due to the completion of significant programs and further reductions will follow in subsequent years
  • there is uncertainty around the future work practices around contract management due to reduced requirements as a result of limited life Advance Queensland funding and the outcomes of a departmental functional review into grants management as part of DTIS' Savings and Debt Plan.  This work may lead to a reduction in the number of FTE required to undertake contract management and DTIS needs to manage its FTE and funding accordingly
  • Innovation Division is starting a pilot to respond to this change in contract management requirements with a new approach needed due to limited life Advance Queensland funding.  As a result, it is uncertain as to the number of FTE that will be required for this work and the department has a responsibility to manage this.[7]

Appeal Notice

  1. [25]
    Mrs Beves set out why she believes the decision was unfair and unreasonable in the Appeal Notice filed on 28 January 2021. Those reasons are summarised as follows:
  • The present review decision is the result of Industrial Commissioner Hartigan's earlier decision.  The Department was late in complying with the review order.
  • At the end of her current temporary contract on 30 June 2021, Mrs Beves will have been in the position for four years.  This will be her third review and permanency has been declined on each occasion.
  • The review was conducted under the PS Act and Directive 08/17 – Temporary Employment; however Directive 09/20 - Fixed Term Temporary Employment has now replaced that earlier Directive.
  • Temporary employment should only be used when ongoing employment is not viable or appropriate.
  • The Department has not demonstrated a genuine operational need to refuse conversion to permanent.  It does not address the plan ahead with contract management, other than to state that there may be a reduction in FTE.  There has been no prior communication regarding the Savings and Debt Plan.
  • Mrs Beves has worked in permanent public service roles from 1995 – 2017, in both Queensland and the Australian Public Service.  She commenced a temporary role almost four years ago in order to return to Brisbane.
  • There are no issues with respect to merit.
  • Grants management is core business of DTIS and operationally ongoing.

Submissions

  1. [26]
    In accordance with the Directions Order issued on 28 January 2021, the parties filed written submissions.
  1. [27]
    Pursuant to s 203(1)(d) of the PS Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

Appellant's Submissions

  1. [28]
    The Appellant's submissions, filed 4 February 2021 stated that:
  • On 27 August 2020, Mrs Beves filed an appeal against the Department's conversion decision that was provided to her on 6 August 2020.
  • Industrial Commissioner Hartigan decided that the decision maker was to conduct a fresh review within 21 days.  While Mrs Beves had consented to some delay, the Department provided Mrs Beves with that review decision on 21 January 2021 - two days after the agreed extension deadline. 
  • On 28 January 2021, Mrs Beves filed a further appeal.  This time against the reviewed conversion decision.
  • She has been temporarily employed as a Senior Project Officer AO6 in the Department since 3 July 2017.  This was created and funded for 2 years through the Advance Queensland program.  Mrs Beves was the most meritorious applicant.
  • In July 2019, her temporary status was reviewed.  Conversion to permanency was refused on the grounds that her role was temporary and funded through a limited life fund due to cease.
  • In mid-2019, Innovation Division extended the temporary engagement for a further 12 months to 30 June 2020 due to increase in the Advance Queensland program workload.  After that extension was in place, external temporary funding was received from Trade and Investment Queensland (TIQ) to undertake grants administration.  Mrs Beves temporary engagement was then extended for another 12 months to 30 June 2021 to work on both TIQ grants administration and continue to support AQ programs.
  • Mrs Beves stated that the conversion decision was not consistent with the requirements of the PS Act and Directive and was not fair and reasonable; in light of both ongoing operational need and merit criteria being met.

Decision letter dated 21 January 2021

  • Mrs Beves asserted the Department failed to demonstrate that there is no genuine operational need for the role to be ongoing, specifically:
  1. (a)
    She queried the relevant Departmental officers with whom "extensive consultation" was said to have occurred.
  1. (b)
    That the position is funded with limited life funding is not relevant to whether there is an ongoing operational need.  Budget bids for further program funding also demonstrates an ongoing need.
  1. (c)
    Mrs Beves refutes that FTE numbers were considered as part of the review.
  1. (d)
    She has no knowledge of the Department's Savings and Debt Plan relied on.  DTIS's claim that 'may' lead to a reduction in the number of FTE required to undertake contract management and need to manage FTE funding are not clear.  'Uncertainty' around work practices is not grounds to refuse conversion and does not demonstrate that the role is not ongoing.
  1. (e)
    Mrs Beves' Director advised that he had supported her conversion to permanent.

Workforce planning

  • On 3 February 2021, a new structure and alignment of duties for the Division was received.  Mrs Beves described the impact as:
  1. (a)
    In the new Division structure, the team loses 3 FTE and gains 2.6 FTE, an overall 0.4 FTE loss – noting that one FTE position-holder is currently on long term secondment.
  1. (b)
    The team is receiving additional responsibilities for grant delivery of all competitive programs plus contract management responsibilities for the vast majority of those currently managed by the Division (an estimated 50 additional contracts).
  1. (c)
    A budget bid has been submitted to Queensland Treasury seeking funding for a Regional Futures Program to be managed by the team.
  1. (d)
    Further funding has also been sought for a further two years of Industry Research Fellowships, which equates to 6 years work (funding rounds, assessment and minimum 3 years contract management).  This would mean additional work for Mrs Beves, who currently manages a caseload of Industry Research Fellows.
  • Katae stated that the criteria requires that a role is "likely to be ongoing", not permanent. 
  • DP Bloomfield observed that "…Notably, having a vacancy into which a temporary employee can be placed is not a requirement."
  • Given there does not need to be a substantive vacancy, the new divisional structure and workforce planning supports the ongoing operational need for Mrs Beves' role.

Matters of concern

  • There is a conflict between the Department's pressure to manage an FTE count and

the genuine consideration to convert employees to permanent under the Directive.

  • The Department has not provided any support or advice to Mrs Beves with respect to her attempts to be converted to permanent.
  • The Department's tardiness in providing the last two decisions to refuse conversion have caused Mrs Beves undue stress.

Delegate's decision making

  • Mrs Beves does not accept that:
  1. (a)
    The FTE count of the Division was considered;
  1. (b)
    The Department's claims that a reduction in FTE may occur and there is uncertainty around contract management are ambiguous and unsatisfactory grounds on which to refuse conversion;
  1. (c)
    The Department has failed to demonstrate that there is no genuine ongoing operational need for the position.
  • Mrs Beves asserts her claim for conversion to permanency is supported by:
  1. (a)
    The new Division structure means additional contract management duties will be transferred to the team, however the team FTE will reduce by 0.4 FTE (and another officer is on long term secondment);
  1. (b)
    The budget bid submitted to Queensland Treasury shows further funding for programs is being sought that provides for at least 6 years' work in grants management;
  1. (c)
    Grants administration is an ongoing role, future program rounds are still planned and ongoing contract management is occurring.  Given 2 separate one year extensions, this role should not be limited life funded;
  1. (d)
    The team will experience additional stress to manage the additional workload;
  1. (e)
    She is in the fourth year of employment in the same role, which evidences a continuing need for the role.

Respondent's Submissions

  1. [29]
    The Respondent's submissions, filed 11 February 2021, can be summarised as follows:

Contract details

  • Mrs Beves has been temporarily employed by the Department as a Senior Project Officer (AO6) since 3 July 2017.  The position was created and funded for 2 years through the Advance Queensland program.
  • In July 2019, Mrs Beves' temporary employment was reviewed and conversion refused given the role was funded through a limited life fund which was due to cease.
  • Additional Advance Queensland funding was reallocated in mid-2019 and Mrs Beves' contract was extended for 12 months.  The funding ceased on 30 June 2020.
  • In mid-2020, temporary external funding was obtained from Trade Investment Queensland (TIQ) to undertake grants administration on a costs recovery basis.  Mrs Beves' contract was extended for a further 12 months in line with this body of work and funding until 30 June 2021.  TIQ has now confirmed that this allocation of work is not ongoing and funding will cease at the end of the 2020/21 financial year.

Submissions

  • The decision to refuse conversion was consistent with the requirements of the PS Act and Directive[8] - and is fair and reasonable in the circumstances.
  • The decision criteria is established under clause 9.6 of the Directive.
  • Merit is not disputed.
  • There were genuine operational reasons not to convert Mrs Beves to permanency, including:
  1. (a)
    The role is not ongoing. 
  1. (b)
    The role was funded through Advance Queensland funding for 2 years until 30 June 2019.  The reallocation of funding allowed for a 12 month extension of the role until June 2020 - "Advance Queensland programs that are the administrative responsibility of the department have not received any new funding or FTEs since the 2018/19 Budget Outcomes."[9]
  1. (c)
    In mid-2020, TIQ provided funding on a cost recovery basis to undertake grants administration -  "TIQ have advised that this work will not be ongoing and will cease as at 30 June 2021.  At this point, the position and FTE will cease.  Allocation of residual work will be distributed across existing members of Innovation division."[10]

Workforce Planning

  • A review of positions and funding arrangements within the Innovation team was undertaken in 2019 and July 2020.  This team leads a significant number of Advance Queensland initiatives which are limited life funding with temporary FTEs.  Between 2019 and 2023, the Innovation team's budgeted FTEs must reduce from 71.6 to 61.6 due to the completion of significant Advance Queensland programs and cessation of funding.
  • In the period relevant to this decision,[11] the FTE status was:

2020/21 Budgeted FTE

Total Paid FTE

Total Headcount

67.6

65.24

.73

The team was under its budgeted FTE due to 12 full time employees temporarily working part time and three employees on long term sick leave or secondment.

If all staff returned to their substantive positions on a full time basis, the team would be above the budgeted FTE for 2020/21 by 5.4 FTEs.

"Whilst TIQ provided funding, no additional FTEs were provided.  Ms Beves' FTE is accounted for through management of current vacancies."[12] 

  • The budget bid submitted to Queensland Treasury for the Innovation team to undertake a Regional Futures Program "is a temporary body of work with limited life funding which can be managed within existing resources."[13]  An additional FTE is not required on an ongoing basis to do this work and there is a permanent employee on secondment that could be recalled to undertake the work if required in the future.

Funding

  • The Advance Queensland funding and FTE for this position ceased on 30 June 2019.
  • Mrs Beves' position was extended, initially for 12 months and then for a further 12 months until 30 June 2021, as a result of TIQ funding received - "This is temporary external funding for an additional program of work.  TIQ have now advised that this work will not continue and funding through cost recovery will cease on 30 June 2021. Mrs Beves' current employment arrangement aligns with this funding agreement."[14]
  • The genuine operational requirements for refusing the conversion were that the initial engagement was to undertake work aligned with the Advance Queensland initiative (a limited life funding role), then there was a separate extension opportunity through TIQ (also a limited life funding role) which is not ongoing past 30 June 2021.
  • "…the Delegate considered strategic workforce management factors that influence the operational and resourcing considerations of the department."[15]
  • There was no ongoing, suitable alternative role identified within the department which was the same or substantially the same for conversion into either.
  • The "…Savings and debt plan requires agencies to focus on delivering essential government services and highlights that programs that are time limited should be integrated into core business or ceased and requires agencies to manage within existing FTE caps."[16]

Delegate's decision making

  • "…in making a decision under the Directive, Mr Lee must necessarily consider budget, full time equivalent (FTE) staffing levels (FTE restrictions and caps), sources and limits of project funding and the requirement to manage human resources that necessitates a mix of temporary, permanent and contingent labour to meet fluctuating and changing strategic objectives and service delivery requirements."[17]

Assessment

  • Mrs Beves' role is "…funded until June 2021 and there is neither FTE, funding, nor an ongoing role after this time."[18]  There is no extension to the temporary funding from TIQ after that.
  • "Given the role is subject to non-recurrent funding, the Delegate has concluded that the role was not available for the employee to be permanently appointed to." 
  • That decision is consistent with the circumstances indicating appointment should be on a temporary basis include "when skills are required for a one-off project with a specific end date" and "where funding for a project or program after a specified date is uncertain."[19]
  • "At this point in time, the department has not received advice on any budget bids.  It is proposed that the department will manage the possible allocation of work through existing resources."[20]
  • The Department submits that the decision not to convert Mrs Beves to permanent was fair and reasonable and that specific consideration was given to cls 9.6, 9.7 and 7.2 of the Directive and s 149 of the PS Act as required.
  • "Given the role is funded using temporary sources of funding and based on a temporary body of work which is not ongoing, conversion to a permanent position within the department was not possible at the time of the review."[21]

Appellant's Reply Submissions

  1. [30]
    In response to the Department's written materials above, Mrs Beves' reply submissions filed 15 February 2021 can be summarised as follows:
  • Whether a permanent position and funding are available are not grounds to refuse conversion to permanency under the TE Directive. 
  • In summary, Mrs Beves stated "I work in a grants management area which is core business and is receiving additional workload and this increase should be adequately address…in terms of resourcing."[22]

Reason the role was extended to 30 June 2021

  • In mid-2019, her temporary engagement was extended to 30 June 2020 due to

increased Advance Queensland workload.  It is significant that the TIQ external funding was only received after that extension was executed. 

  • The latest temporary extension to 30 June 2021 was for the dual purposes of work on the TIQ grants administration and also to continue Advance Queensland programs and grants administration.  Mrs Beves stated that she is "…still managing a suite of Advance Queensland research fellowships and undertaking other team functions such as Monthly Reporting commitments, writing and management of a Grants Administration Manual and SmartyGrants data management and reports for Advance Queensland programs."[23]
  • "Whilst there was initially a specific end date, a need for the position was demonstrated with two further one year extensions of my employment in the same role."[24]

"The role is not ongoing"

  • The Department has not addressed the additional workload to the team nor the budget bid currently underway for the 2021/22 – 2022/23 period. 
  • If the budget bid for further Industry Research Fellowships is approved, this will require 6 years additional work to the team delivering periodic funding rounds, assessment and minimum 3 years contract management.  Mrs Beves currently manages a caseload of Industry Research Fellows and this work has "…been undertaken by the Department since 2006 and there is positive indication this will continue with further funding as the Fellowships have been a core pillar program for many years."[25]
  • With respect to the budget bid for the team to manage a Regional Futures Program, the Department has submitted that an additional FTE is not required to perform this work on an ongoing basis.  Given that "…regional work and regional contract management is managed by 2 officers…it is highly questionable how the Respondent thinks the existing workload can be transferred and delivered, along with the additional work, without an impact on existing resourcing."[26]
  • "TIQ has advised that this work will not be ongoing and will cease as at 30 June 2021.  At this point, the position and FTE will cease. Allocation of residual work will be distributed across existing members of Innovation Division."
  • The Department has not addressed workload issues for the team if all staff do not return to their substantive positions on a full time basis.
  • A new structure and alignment of duties for the Division was received on 3 February 2021.  Mrs Beves stated that the team "…is receiving additional responsibilities for the majority of contracts currently managed by the Division.  As an estimate this could be in the vicinity of 50 additional contracts."[27]
  • The Department has not explained how the team's additional workload (due to the centralising of all contract management responsibilities for the Division) will be resourced (decrease of 0.4 FTE).

Budgeted FTE

  • The Department stated that the Innovation team is below the budgeted FTE due to 12 full time employees working part time on a temporary basis and 3 employees on long term sick leave or secondment – and if all were to return to their substantive full time positions, the team would be above the budgeted FTE by 5.4 FTE.
  • In the new Division structure, the team will lose 3 FTE and gain 2.6 FTE (overall loss of 0.4 FTE).  However, "One officer in an FTE position is currently on long term secondment at Queensland Health assisting with COVID tracking, so is unlikely to be back in the near future.  As this person is being funded by the Department whilst on secondment, it is likely that the vacant position cannot be backfilled, meaning the team actually has 1.4 FTE less after the restructure."[28]
  • Mrs Beves argued the Department has not addressed the workload issues resultant from employees not in their substantive positions on a full time basis. 
  • She submitted that workload, workforce planning issues and the new divisional structure support the ongoing operational need for her position.
  • There does not need to be a vacancy in order for there to be a continuing need for the person to be employed.
  • There is a difference between the Department's budgeted FTE for 2020/21 and the Department's Total Paid FTE.  Since filing her initial appeal in September 2020, the Department has become smaller through the substitution of 'Sport' for the previous larger 'State Development'.

Savings and Debt Plan

  • The Department has stated that programs that are time limited should be integrated into core business and that agencies manage within existing FTE caps.  Mrs Beves contended that pressure to operate within an FTE cap is not something to be considered in deciding a conversion to permanency.

Delegate's decision making

  • Mrs Beves stated that:
  1. (a)
    The FTE count is not relevant to the conversion decision.
  1. (b)
    There does not need to be a 'vacancy' for there to be a 'continuing need'.
  1. (c)
    The Department's position that a reduction in FTE "may" occur and the "uncertainty" around contract management are not sufficient grounds on which to deny permanency.
  1. (d)
    A 'genuine operational need' to deny conversion has not been demonstrated, with respect to the likely new funding and ongoing additional workload associated with the Industry Research Fellowships and the continued workload issues should employees not return to their substantive positions on a full time basis.
  1. (e)
    Whilst the whole-of-Department view has been claimed, the Respondent's submissions relate only to the Innovation Division.
  1. (f)
    Insufficient evidence and explanation has been provided with respect to broader workforce planning requirements and budget considerations.
  • Mrs Beves summarised her arguments as:
  1. (a)
    The ongoing nature of the role is supported by the new Division structure having a reduced FTE of 0.4 (with another officer on long term secondment) but additional contract management tasks allocated to the team. 
  1. (b)
    The budget bid demonstrates that further funding is being sought for programs providing for a further 6 years work in grants management.
  1. (c)
    Grants administration is ongoing contract management occurring and future program rounds planned.  The role should not be limited life funded.
  1. (d)
    Additional workload with commensurate increase in additional resources to do it will lead to increased stress and pressure in the team.
  1. (e)
    She is in the fourth year of employment in the same role, which is evidence of a continuing need and ongoing role.[29]

Other matters

  • Mrs Beves submitted that:
  1. (a)
    The Department has provided insufficient evidence to support their contentions.
  2. (b)
    There is a conflict between the pressure to manage an FTE count and the genuine consideration of the mandatory conversion criteria as required under the Directive.
  1. (c)
    Her Director is supportive of her conversion claim.
  1. (d)
    The Department's late provision of decisions has created stress and exacerbated time pressures for Mrs Beves.

The review of temporary employees under the PS Act and the Directive

  1. [31]
    The legislative scheme for the review of the status of certain temporary employees is contained in the PS Act and in the Directive.
  1. [32]
    Section 149 of the PS Act provides (Emphasis added):

149  Review of status of temporary employee

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

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

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

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

  1. [33]
    It is noted that Directive 08/17 came into effect on 1 July 2017. 
  1. [34]
    The Directive 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. [35]
    The Directive is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[30]
  1. [36]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) 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 Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [37]
    The stated purposes of the Directive are:
  • To encourage and maximise security of employment; and
  • To ensure efficient and effective service delivery through the appropriate use of temporary employees.

Findings

  1. [38]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. 

Eligibility for review of status as a temporary employee under the PS Act and Directive

  1. [39]
    Section 149(1)(a) of the PS Act provides that a temporary employee is eligible for a review "…at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department." This requirement is restated at clause 9.2 of the Directive.
  1. [40]
    This is not a point of dispute between the parties. I find that Mrs Beves is eligible to have her status as a temporary employee reviewed.

Purpose of the Directive

  1. [41]
    In deciding this appeal, I note the significance of the legislative provisions identified and explained above.
  1. [42]
    In summary, the Directive's status as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of the Directive is to be preferred to any other interpretation.
  1. [43]
    In that regard, I recognise that one of the stated purposes of the Directive is "…to encourage and maximise security of employment."[31]

Decision criteria that must be considered under the Directive

  1. [44]
    Section 149(3)(a)(i) of the 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. [45]
    The decision criteria prescribed under cls 9.6 and 9.7 of the Directive are:
  • The merit of the temporary employee for the role by applying the merit criteria in s 28 of the PS Act.
  • 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.
  • 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. [46]
    Clause 9.6(b) of the Directive states "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. [47]
    There is no dispute between the parties that Mrs Beves meets the merit criteria.
  1. [48]
    Mrs Beves submitted she was engaged to perform the role in 3 July 2017, following a competitive merit process in which she "came first on the merit list".  She stated she is a "dedicated employee who has never been in trouble."  Further, that her Director was supportive of her claim for conversion to permanency. 
  1. [49]
    The Department's submission concurs that Mrs Beves' merit is endorsed and confirmed the view of her manager that "Ms Beves has the knowledge, skills and ability to undertake the role".[32]
  1. [50]
    I find that cl 9.6(b) presents no impediment to Mrs Beves' conversion from temporary to permanent employment.[33]

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. [51]
    The decision maker must also consider the mandatory criteria in cl 9.6(a) of the Directive, which states "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…Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing…".
  1. [52]
    The prescribed definition of 'the same role' is deliberately broad,[34] 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. [53]
    There are therefore two potential pathways to conversion. The first pathway is Mrs Beves' present role. The second pathway is an alternative role which is substantially the same.

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

  1. [54]
    In Katae, Crow J considered the criteria in cl 9.6. In that matter, Ms Katae was engaged in a series of temporary contracts from July 2014 until 31 December 2018. 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. [55]
    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. [56]
    Mrs Beves has been employed on a series of temporary contracts since 3 July 2017.  Since her initial temporary engagement, Mrs Beves has had her temporary contract extended three times.
  1. [57]
    By the end of her present contract, Mrs Beves will have been temporarily employed by the Respondent for four years.
  1. [58]
    Whilst it is recognised that the role has been funded from two different sources over the course of her temporary employment, Mrs Beves has nonetheless been undertaking the same Senior Project Officer AO6 role for that entire period. 
  1. [59]
    Her energetic and comprehensive submissions chronicle the scope of work that she has had involvement in over that time.  She appears to be a highly capable person with a demonstrated ability to perform a range of work within her area of expertise.
  1. [60]
    The previous temporary employment reviews conducted by the Respondent in July 2019, July 2020 (and most recently in January 2021) essentially all found that Mrs Beves could not be converted to permanent employment on the basis of the limited life funding of the position.[35] Notwithstanding that, the temporary engagements were subsequently extended by the Department on the first two occasions.
  1. [61]
    The Department submitted that reasons for the temporary engagements were initially to implement the Advance Queensland initiatives[36] and then to undertake a separate body of work pertaining to Trade and Investment Queensland (TIQ),[37] consistent with cl 7.2 of the Directive.  The Department noted that extensions were made to those temporary engagements as further funding had become available. 
  1. [62]
    The Department has submitted that the funding and FTE associated with Mrs Beves' current temporary role is limited life funding with a definite end date of 30 June 2021 and that there is no ongoing FTE available for this role.
  1. [63]
    While Mrs Beves' current temporary contract expires on 30 June 2021, the evidence before me supports her contention that there are many ongoing initiatives within the Innovation team (both at present, and likely into the future) that will continue to require her involvement beyond next month. 
  1. [64]
    I am persuaded by the arguments that Mrs Beves' role is continuing and likely to be ongoing for reasons including:
  • Additional work to be allocated to the team,[38] following the new Division structure announcement recently;[39]
  • The budget bids currently in progress for two programs[40] - and the expected timeframes for the completion of that work if successful;
  • Examination of the FTE calculations of the Innovation Division, in order to undertake this work;[41]
  • Despite the Department's submissions that the "allocation of residual work" would be distributed across existing members of the Innovation Division, that claim appears to be more aspirational than grounded in practical reality.  People cannot reasonably be expected to do more with less;[42]
  • That grants administration is core work for the Department; and
  • That the continuing need for her role can be demonstrated by the reality that she is now in her fourth year of performing that work.
  1. [65]
    Specifically, as in Katae, the suite of project / program initiatives underway will not neatly conclude simply as a matter of convenience to coincide with Mrs Beves' contracted arrangements.  Nor is it conceivable that the existing team staff will seamlessly absorb an increased workload.  It cannot be true.
  1. [66]
    The Respondent submitted that the "…Queensland Treasury's Savings and Debt Plan requires agencies to focus on delivering essential government services and highlights that programs that are time limited should be integrated into core business or ceased and requires agencies to manage within existing FTE caps."[43]  In response, Mrs Beves expressed her concern that "…there is conflict between the Respondent being under pressure in managing an FTE count and the Directive allowing temporary employees to be converted to permanent.  I believe the FTE count pressure unfortunately outweighs the genuine consideration to convert employees."[44] 
  1. [67]
    I would observe that the objectives of 'maximising permanent employment' and 'adherence to budgetary requirements' need not be at odds.  Where work is required to be performed, public sector workers will be paid to do it, regardless of whether they are employed on a permanent or temporary basis. 
  1. [68]
    Further, the PS Act and Directive stipulate a mandatory criteria to decide conversion reviews at prescribed intervals that must be faithfully applied. 
  1. [69]
    The insecurity of funding for a role or work on a one-off project with a specific end date are valid reasons for appointment to temporary employment, pursuant to cl 7.2 of the Directive. In that sense, limited life funding may be one factor in considering conversions under cl 9.6. However, after four years of temporary engagements said to be based upon insecure funding, there a comes a point where it is no longer fair and reasonable to rely on such a reason not to convert Mrs Beves 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. [70]
    In adopting the rationality of Crow J, it ought not be assumed that the present engagement will conclude on time in circumstances where Mrs Beves' previous engagements have been repeatedly extended.
  1. [71]
    The Respondent has also submitted that the decision maker has had regard to a number of departmental-wide factors. Yet Mrs Beves has observed that the Department's explanation of those has been limited to the Innovation Division alone.  In light of the limited evidence before me, it is unclear what the Respondent seeks that I make of such a submission in circumstances where I am required to consider the fairness and reasonableness of the decision.
  1. [72]
    In the appeal before Industrial Commissioner Hartigan, the Department's decision not to convert was set aside and the Respondent was required to re-conduct the review. That, in part, was on the basis that despite the Department's submissions that the decision-maker gave specific consideration to the criteria under cl 9.6 and cl 9.7 of Directive 08/17 "the decision does not disclose, in any meaningful way (or at all), that such consideration occurred."[45]  Further, I note that although Industrial Commissioner Hartigan had highlighted in advance that matters such as budgeted FTEs and whether or not there was a vacancy were of limited relevance, those positions have persisted.
  1. [73]
    In considering all of the material before me, and bearing particular mind to Mrs Beves' long history of temporary employment with the Respondent in the same or similar roles, I find that the decision maker's conclusion regarding cl 9.6(a) was unfair and unreasonable. There is a continuing need for Mrs Beves to be employed in her role as Senior Project Officer AO6, or a role which is substantially the same, and it is likely that such a role will be ongoing. 
  1. [74]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Mrs Beves to permanency.

Pathway 2: Is there a continuing need for Mrs Beves to be employed in a role which is substantially the same

  1. [75]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles. 
  1. [76]
    While the matters under cl 7.2 are circumstances that indicate an appointment be temporary in the Department's considerations of whether there is a continuing need for Mrs Beves to be employed in the role and whether it is likely to be ongoing, that is not the exclusive consideration. 
  1. [77]
    It appears to me that the Department has stopped short of considering the second limb of the mandatory decision criteria in cl 9.6(a) simply on the basis of Mrs Beves' temporary engagement in a project or program where funding is uncertain and/or with a specified end date, together with the limitations on FTE caps and budgetary pressure. 
  1. [78]
    In the Decision Letter, the decision-maker asserted that "…there are no ongoing roles in DTIS at the AO6 classification level with available funding and/or full-time equivalent (FTE)."[46] 
  1. [79]
    But that is not the test.  The PS Act and Directive contains no requirement that one be converted into a vacant position or one available within the Department's currently budgeted permanent FTEs. 
  1. [80]
    In Katae, Crow J considered the definition of "same role" in the 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. [81]
    The Directive contains a definition of 'same role', to which Katae refers:[47]

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).

  1. [82]
    I note that the Decision Letter did not define the role currently performed by Mrs Beves nor demonstrate the Department's assessment of the capability requirements.  In my view, that would certainly be foundational to any meaningful effort to identify a role which is substantially the same.  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 to any true comparison.
  1. [83]
    No specific search efforts undertaken by the Department to ascertain whether there were any such other roles that may be suitable to convert Mrs Beves into were referred to in the material before me. 
  1. [84]
    This requirement was treated with similar brevity in the Department's submissions as well.[48] 
  1. [85]
    The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same and likely to be ongoing within the Department that Mrs Beves may be converted into.
  1. [86]
    In considering whether there is a continuing need for Mrs Beves to be employed in a role which is substantially the same, I am also conscious of the additional workload and less people available to undertake that work that has featured in the submissions.  While the new Innovation Division structure change was announced six days after Mrs Beves filed her latest appeal, the changed circumstances are both significant enough and proximate enough to the filing of the appeal to be taken into consideration in my view.
  1. [87]
    I have found that there is a continuing need for Mrs Beves to be employed in her current role and it is likely to be ongoing.  However, in the alternative, I would also find that there a continuing need for Mrs Beves to be employed in a role which is substantially the same and likely to be ongoing. 

Genuine operational reasons

  1. [88]
    In this appeal, the Respondent submitted that:

…there were genuine operational reasons not to convert Ms Beves to permanent status under section 149 of the PS Act.  These reasons were provided to Ms Beves and include:

  • The role is not ongoing.  The role was originally funded for two years through Advance Queensland funding which ceased on 30 June 2019.  Reallocation of funding allowed for a 12 month extension of Ms Beves' role.  This funding has been utilised and no additional funding forthcoming post June 2020.  Advance Queensland programs that are the administrative responsibility of the department have not received any new funding or FTEs since the 2018/19 Budget Outcomes.
  • In mid-2020, TIQ provided funding on a cost recovery basis to undertake grants administration.  TIQ have advised that this work will not be ongoing and will cease as at 30 June 2021.  At this point, the position and FTE will cease.  Allocation of residual work will be distributed across existing members of Innovation division.[49]
  1. [89]
    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 Mrs Beves.
  1. [90]
    However, I have earlier concluded that such a finding was unfair and unreasonable. It follows that the genuine operational reason relied upon by the Respondent were also unfair and unreasonable, as it is predicated upon the findings as to cl 9.6 which I have already disturbed.

Disposition of the appeal

  1. [91]
    Mrs Beves submits that she should be made permanent because there is a continuing need for her to perform the role, it is likely to be ongoing and there are no genuine operational reasons to prevent her conversion.
  1. [92]
    The Directive is 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 Directive, policy and legislation. Those efforts allow for the achievement of both purposes of the Directive.[50]
  1. [93]
    In accordance with my findings about Mrs Beves' present role, suitable alternative roles, and in the absence of any genuine operational reasons that would prevent conversion, I have determined that the appropriate remedy is to convert Mrs Beves to permanent employment.

Conclusion

  1. [94]
    Mrs Beves commenced her temporary employment with the Respondent on 3 July 2017. Her contract has been extended three times.
  1. [95]
    On 21 January 2021, the Respondent advised Mrs Beves that she was to remain a temporary employee and would not be converted to permanent employment. That decision reflected the two previous decisions of the Respondent not to make Mrs Beves permanent, which were also on the basis that Mrs Beves' engagement was funded by insecure means.
  1. [96]
    On 28 January 2021, Mrs Beves appealed against that decision. I have noted that Mrs Beves has had contract extensions over a period of four years, all of which were in the context of limited life funding arrangements of one form or another. In light of all the material before me, and particularly Mrs Beves' employment history and the role she currently undertakes, I have found that it was not fair and reasonable for the decision maker to find that cl 9.6 was not satisfied.
  1. [97]
    The decision maker, and the Respondent in submissions, appeared to rely on non-satisfaction of that clause as a basis to conclude that there were genuine operational reasons not to convert Mrs Beves to permanent employment. In accordance with my finding as to cl 9.6, that basis is no longer sustainable, and so there is no genuine operational reason which prevents conversion to permanent employment.
  1. [98]
    Further, there is no evidence before me of the decision maker's genuine efforts to identify a role which is substantially the same and likely to be ongoing.  Scant reference is made to the second limb of the mandatory decision criteria at cl 9.6(a) of the Directive in both the decision letter and subsequent submissions. 
  1. [99]
    I have determined that the appropriate outcome of this appeal is that Mrs Beves be converted to permanent employment.
  1. [100]
    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 Mrs Beves not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  1. Mrs Beves' temporary employment status as a Senior Project Officer AO6 be converted to permanent employment.

Footnotes

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

[2] Ibid.

[3] Public Service Act 2008 (Qld) s 201(4).

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

[5] Correspondence from Ms P. Heather, Manager Human Resources, Department of State Development, Tourism and Innovation (which is now DTIS).

[6] Beves v State of Queensland (Department of State Development, Tourism and Innovation) (Queensland Industrial Relations Commission, Hartigan IC, 22 December 2020) 13, [37]-[41].

[7] Correspondence from Mr J. Lee, Acting Director-General, Department of Tourism, Innovation and Sport, to Mrs R. Beves, dated 21 January 2021, page 1-2.

[8] Temporary Employment Directive 08/17.

[9] Respondent’s Submissions, filed 11 February 2021, page 2.

[10] Respondent’s Submissions, filed 11 February 2021, page 2.

[11] Fortnight ending 15 January 2021.

[12] Respondent’s Submissions, filed 11 February 2021, page 3.

[13] Respondent’s Submissions, filed 11 February 2021, page 3.

[14] Respondent’s Submissions, filed 11 February 2021, page 3.

[15] Respondent’s Submissions, filed 11 February 2021, page 3.

[16] Respondent’s Submissions, filed 11 February 2021, page 4.

[17] Respondent’s Submissions, filed 11 February 2021, page 4.

[18] Respondent’s Submissions, filed 11 February 2021, page 4.

[19] Temporary Employment Directive 08/17 cl 7.2.

[20] Respondent’s Submissions, filed 11 February 2021, page 5.

[21] Respondent’s Submissions, filed 11 February 2021, page 5.

[22] Appellant’s Reply Submissions, filed 15 February 2021, page 3.

[23] Appellant’s Reply Submissions, filed 15 February 2021, page 2.

[24] Appellant’s Reply Submissions, filed 15 February 2021, page 4.

[25] Appellant’s Reply Submissions, filed 15 February 2021, page 3.

[26] Appellant’s Reply Submissions, filed 15 February 2021, page 2.

[27] Appellant’s Reply Submissions, filed 15 February 2021, page 2.

[28] Appellant’s Reply Submissions, filed 15 February 2021, page 3.

[29] Reference to Notable Case 66/19 (Date of Decision 28 June 2019), as contained in Temporary Employment Directive 08/17 FAQs.

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

[31] Temporary Employment Directive 08/17 cl 1a.

[32] Respondent’s Submissions, filed 11 February 2021, page 2.

[33] Such a conclusion was also drawn in markedly similar circumstances in Katae, [18].

[34] Temporary Employment Directive 08/17 cl 14.

[35] Beves v State of Queensland (Department of State Development, Tourism and Innovation) (Queensland Industrial Relation Commission, Hartigan IC, 22 December 2020) 4, [8].

[36] The Department submitted this was consistent with cl 7.2 of Directive 08/17 “where funding for a project or program after a specific date is uncertain.”

[37] The Department submitted this was consistent with cl 7.2 of Directive 08/17 “when skills are required for a one-off project with a specific end date.”

[38] As a result of the new structure, Mrs Beves has submitted on 4 February 2021 that “My team is receiving additional responsibilities for grant delivery of all competitive programs plus contract management responsibilities for the vast majority of contracts currently managed by the Division.  As an estimate this could be in the vicinity of 50 additional contracts.”

[39] On 3 February 2021, a new structure and alignment of duties for the Innovation Division was announced.

[40] Industry Research Fellowships and Regional Futures Program.

[41] Mrs Beves has submitted on 4 February 2021 that “In the new Division structure our team loses 3 FTE and gains 2.6 FTE, meaning an overall 0.4 FTE loss.  One officer in an FTE position is currently on long term secondment at Queensland Health assisting with COVID tracking, so is unlikely to be back in the near future.”

[42] While I note the Department’s “uncertainty around the future work practices” and that it is “starting a pilot to respond to this change”, the mandatory decision criteria does not require certainty, but rather that it is likely.

[43] Respondent’s Submissions, filed 11 February 2021, page 4.

[44] Appellant’s Reply Submissions, filed 15 February 2021, page 5.

[45] Beves v State of Queensland (Department of State Development, Tourism and Innovation) (Queensland Industrial Relations Commission, Hartigan IC, 22 December 2020) 13, [35].

[46] Correspondence from Mr J. Lee, Acting Director-General, Department of Tourism, Innovation and Sport, to Mrs R. Beves, dated 21 January 2021, page 1.

[47] Temporary Employment Directive 08/17 5.

[48] Respondent’s Submissions, filed 11 February 2021, page 3.

[49] Respondent’s Submissions, filed 11 February 2021, page 2.

[50] Temporary Employment Directive 08/17 cl 1.

Close

Editorial Notes

  • Published Case Name:

    Beves v State of Queensland (Department of Tourism, Innovation and Sport)

  • Shortened Case Name:

    Beves v State of Queensland (Department of Tourism, Innovation and Sport)

  • MNC:

    [2021] QIRC 178

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    03 Jun 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
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [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
Burchall v State of Queensland (Queensland Health) [2025] QIRC 1831 citation
1

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