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Tyson v State of Queensland (Department of Health)[2021] QIRC 184

Tyson v State of Queensland (Department of Health)[2021] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Tyson v State of Queensland (Department of Health) [2021] QIRC 184

Tyson, Cindy Maree

(Appellant)

v

State of Queensland (Department of Health)

(Respondent)

CASE NO:

PSA/2021/131

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

31 May 2021

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDERS:

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

1. The appeal is allowed;

2. The decision that Ms Tyson not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and

3. Ms Tyson's temporary employment status be converted to permanent employment.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – temporary employment – where the appellant was reviewed under s 149B of the Public Service Act 2008 (Qld) – where the outcome of the review was that the appellant was not permanently appointed – where the role is not permanently funded – consideration of genuine operational requirement

LEGISLATION AND OTHER

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 9, cl 11

Directive 08/17 Temporary Employment cl 14

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

CASES:

Public Service Act 2008 (Qld) s 27, s 148, s 149, s 149A, s 149B, s 194, s 196

Statutory Instruments Act 1992 (Qld) s 14

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

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

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

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

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

House v The King (1936) 55 CLR 499

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

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

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Reasons for Decision

Introduction

  1. [1]
    Ms Cindy Tyson (the Appellant) is currently employed in the West Moreton Hospital and Health Service (the WMHHS) by the State of Queensland (Department of Health) (the Respondent; the Department).
  1. [2]
    Ms Tyson works as an Advanced Health Worker within the Indigenous Hospital Liaison Service, specifically within the area of infant and maternal care.
  1. [3]
    The Respondent has employed Ms Tyson on a temporary full-time basis for more than two years. 
  1. [4]
    On 12 February 2021, the Respondent refused to convert Ms Tyson to permanent employment by way of deemed refusal (the deemed decision).
  1. [5]
    Ms Tyson filed an Appeal Notice on 12 April 2021 appealing the deemed decision.

Appeal principles

  1. [6]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[1] This is the key issue for my determination.
  1. [7]
    A public service appeal under the IR Act is not by way of rehearing,[2] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  1. [8]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.[3]
  1. [9]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

Decision against which an appeal may be made

  1. [10]
    Clause 11.1 of the Directive 09/20 Fixed term temporary employment (TE Directive) provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert."
  1. [11]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee". This is the 'type of decision' Ms Tyson indicated was being appealed against in the Appeal Notice. Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [12]
    For the reasons outlined above, I am satisfied the decision was made under s 149B of the PS Act and is able to be appealed.

Timeframe for appeal

  1. [13]
    Ms Tyson became eligible for review on 11 February 2021, being two years after she commenced with the Department as a fixed term temporary employee. On 12 February 2021, the Respondent advised Ms Tyson that a review of her employment status would be undertaken.
  1. [14]
    Section 149B(4) of the PS Act requires the Department's chief executive to decide whether to convert the employee to permanent within the 'required period', defined at sub-s (9) as being:
  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4)(a) or (b).
  1. [15]
    Section 149B(4)(a) refers to "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department". For Ms Tyson that date is 11 February 2021. Therefore, the required period within which the Respondent ought to have made a decision ended 28 days later on 11 March 2021. 
  1. [16]
    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. [17]
    The deemed decision was given on 11 March 2021. To accord with s 564(3) of the IR Act, an Appeal Notice should have been filed with the Industrial Registry on or by 1 April 2021.
  1. [18]
    The Appeal Notice was filed with the Industrial Registry on 12 April 2021 - 11 days out of time. 

Should this appeal be heard out of time?

  1. [19]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[4] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [20]
    Ms Tyson bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[5] However, the issue of the appeal being filed out of time was not raised by either Ms Tyson nor the Respondent.
  1. [21]
    The out of time issue was only drawn to my attention once the Respondent's submissions were filed and stated, "The Appellant became eligible for review of her status after two years as a fixed term temporary employee as of 11 February 2021."
  1. [22]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion.[6] Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[7] Several factors inform the exercise of my discretion.
  1. [23]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[8]
  • The length of the delay;
  • The explanation for the delay;
  • The prejudice to the Appellant if the extension of time is not granted;
  • The prejudice to the Respondent if the extension of time is granted; and
  • Any relevant conduct of the Respondent.

Length of delay

  1. [24]
    The appeal was filed 11 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act.

Explanation for the delay

  1. [25]
    The Appeal Notice indicated that Ms Tyson believed she was within the required timeframe for filing, taking into account correspondence received by the Department on 24 March 2021. In that correspondence, Ms Tyson was advised:

I refer to my correspondence dated 12th February 2021 where I advised you that a review of your fixed term temporary employment would be undertaken.

As outlined in my email, an outcome of that review was to be provided to you in writing within a period of 28 calendar days after the review eligibility date. Whilst it was anticipated that this timeframe would be met, you were advised that if you did not receive written confirmation of a decision within this 28 day timeframe that you would not be converted to permanent employment. As a decision has not been made by the delegate in relation to your review, your review is now deemed a decision not to convert. This means that your current fixed term temporary employment status remains unchanged.

As your review is now deemed a refusal of conversion, I wanted to provide you with information in relation to your appeal rights under Public Service Act 2008 sections 194(1)(e) and 196(e). As your review related to two years continuous service you may appeal the deemed decision to not convert.

There are procedural requirements, including time limits, under the Industrial Relations Act 2016 that you must fulfil in order to appeal this decision. Further information is available in the Queensland Industrial Relations Commission’s public service appeals guide found at:

https://www.qirc.qld.gov.au/public-service-appeals .

  1. [26]
    Ms Tyson appears to consider the above-mentioned correspondence to constitute the decision subject of this appeal. However, as a deemed decision was given on 11 March 2021, the 24 March 2021 correspondence serves as a subsequent confirmation of the deemed decision and a reminder about appeal rights.
  1. [27]
    I acknowledge that Ms Tyson ought to have known that a deemed decision was given 28 days after her review eligibility date. That was clearly explained to her in the correspondence from the Respondent dated 12 February 2021. Notwithstanding, the subsequent email from the Department may have confused Ms Tyson into believing the appeal period commenced from the date of that correspondence, particularly because of the wording, "as your review is now deemed a refusal of conversion" and "your review is now deemed a decision not to convert".

 Prejudice to Ms Tyson

  1. [28]
    The obvious prejudice is that Ms Tyson would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.

  Prejudice to the Respondent

  1. [29]
    I note the Respondent did not raise that Ms Tyson's appeal was filed out of time and therefore no submissions were presented with respect to prejudice. Notwithstanding, delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[9] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[10]
  1. [30]
    For those reasons, I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time.

  Conduct of the Respondent

  1. [31]
    The Respondent's initial conduct comprised advising Ms Tyson of her review eligibility date, when a decision would be deemed and her appeal rights. This conduct aligns with the TE Directive. Notwithstanding, the subsequent email from the Respondent that was issued 13 days after the deemed decision appears to have confused Ms Tyson, despite it likely being issued with good intentions.
  1. [32]
    I consider this to be a significant reason for why Ms Tyson's view of when the appeal should be filed was misconstrued.

  Prospects of success

  1. [33]
    Ms Tyson's prospects of success at a substantive hearing are a relevant consideration.[11] However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[12]

  1. [34]
    In my preliminary view of the substantive matter, the merits (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter.
  1. [35]
    In light of the reasoning above, I will consider this appeal out of time.

What decisions can the Industrial Commissioner make?

  1. [36]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [37]
    In the Appeal Notice filed on 12 April 2021, Ms Tyson submitted that:
  • Ms Tyson's role broadly involves supporting Aboriginal and Torres Strait Islander women and babies across various clinics and settings.
  • Ms Tyson's Key Performance Indicators (KPI's) include increasing attendance at antenatal appointments, increasing birth weights and smoking cessation. Further, Ms Tyson's role meets KPI's in relation to 'Closing the Gap' and 'Making Tracks'.
  • WMHHS does not have an identified maternity service for Aboriginal and Torres Strait Islander women and Ms Tyson's role is the only identified position that covers this area. Without Ms Tyson's role, "the women of the community would not have an identified cultural advocate to support them in the mainstream maternity model."

Submissions

  1. [38]
    The parties exchanged written submissions in accordance with Directions Orders issued on 21 April 2021 and 4 May 2021.

  Appellant's submissions

  1. [39]
    Ms Tyson filed submissions in support of the appeal on 4 May 2021, as summarised below:
  • There is no issue with respect to merit.
  • There is ongoing funding through Making Tracks.
  • There are no First Peoples midwives and no First Peoples "maternity hub" at Ipswich Hospital to provide culturally appropriate care.
  • Through discussions with women of the community, some women specifically choose to attend hospitals that have a First Peoples "maternity hub".
  • It is important that the role be made permanent to ensure First Peoples women are supported. Ms Tyson has reported an increase in attendance at antenatal appointments and "a flow on effect to reduce low birth weight".
  • Ms Tyson outlined research pertaining to the importance of culturally appropriate support for First Peoples women.

  Respondent's submissions

  1. [40]
    The Respondent filed submissions on 6 May 2021 opposing the appeal, summarised below:
  • The Queensland Government has provided annual funding to the Health Service until June 2022 to support Making Tracks towards closing the gap in health outcomes for Indigenous Queenslanders by 2033: policy and accountability framework.
  • The Respondent does not consider that Ms Tyson satisfies s 149A(2)(a)(i) of the PS Act (pertaining to 'continuing need') because "genuine operational reasons exist".
  • The genuine operational reason that supported a decision not to convert Ms Tyson is that "future funding for the position is unknown or uncertain and is only granted on an annual basis with no prospects of becoming recurrent funding." Section 148(2)(c) of the PS Act specifically provides for this scenario.

 Appellant's submissions in reply

  1. [41]
    Ms Tyson filed submissions in response to the Respondent's submissions on 18 May 2021, summarised below:
  • The West Moreton Health Clinical Services Plan 2020-2035 includes reference to "health initiatives to ensure the improvement of West Moreton Aboriginal and Torres Strait Islander health outcomes", expanding maternity services and targets towards 'Closing the Gap' relating to life expectancy and mortality rates for Aboriginal and Torres Strait Islander children under five.
  • The Aboriginal and Torres Strait Islander Health Workforce Strategic Framework 2016-2026 aims to meet the state-wide staff retention target of 3% of Aboriginal and Torres Strait Islander Health Workers and midwives by December 2022. Further, the Framework aims to "create sustainable long-term employment opportunities to optimise the retention…"

Relevant provisions of the PS Act and the TE Directive

  1. [42]
    Section 148 of the PS Act states:

148  Employment of fixed term temporary employees

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

Examples of absences for a known period –

approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples—

employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example—

an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—

 an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

   …

  1. [43]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to-
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief    executive; and
  1. (b)
    the department's chief executive must have regard to the reasons      for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee-how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. [44]
    Section 149A(2) of the PS Act provides:

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

  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [45]
    Section 149A(3) of the PS Act provides:
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [46]
    The TE Directive relevantly provides:
  1.  Decision on review of status

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

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

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

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

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

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

  1. [47]
    The TE Directive is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[13]
  1. [48]
    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. [49]
    The purpose of the TE Directive is:
  1. Purpose

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

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

 …

  1. [50]
    The TE Directive relevantly provides:

4.   Principles

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

…

Consideration

  1. [51]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable.  This involves a review of the decision-making process utilised and the temporary employment decision arrived at. 

 Mandatory decision criteria

  1. [52]
    Section 149A(2) of the PS Act and cl 8.1 of the TE Directive contains the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker 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;
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [53]
    Clause 8.2 of the TE Directive provides that (emphasis added):[14]

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

  1. [54]
    My decision firstly turns on the question of whether there is a continuing need for Ms Tyson to be employed in the role, or a role which is substantially the same. 
  1. [55]
    There is no dispute between the parties that the remaining three criterion listed above are met.

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

  1. [56]
    There are two potential pathways to conversion. The first pathway is Ms Tyson's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [57]
    It is unclear whether Ms Tyson has been employed on a temporary contract or several temporary contracts. However, she commenced work as an Advanced Health Worker on 11 February 2019.  Clearly, funding for the position has already periodically been provided since that time at least. 
  1. [58]
    Considering the annual funding that has been provided to support Making Tracks - which is a framework aimed towards closing the gap in health outcomes for Indigenous Queenslanders by 2033 - recurrent funding is likely given 2033 is many years away yet and there remains a continuing need for the role undertaken by Ms Tyson (and similar) to continue. The Making Tracks initiative clearly does not have a known end date, but rather a timeframe by which a set of goals would ideally be achieved.
  1. [59]
    Ms Tyson outlined research supporting the importance of her role and submitted that without her role, there would be a significant gap in this area, specifically at Ipswich Hospital. Further, Ms Tyson has outlined several benefits stemming from her role, including increased attendance at antenatal appointments. The Respondent did not dispute these submissions. My view is that this information supports the continuing need for Ms Tyson to be employed in the role.
  1. [60]
    While Ms Tyson's current contract expires as at 30 June 2021, I note that the current service agreement does provide funding to the Health Service for Making Tracks until June 2022 at this point. The evidence before me indicates that there are many ongoing initiatives with respect to enhancing Aboriginal and Torres Strait Islander maternal and infant care that will continue to require Ms Tyson's involvement beyond next month. 
  1. [61]
    The Making Tracks initiative will not neatly conclude simply as a matter of convenience to coincide with Ms Tyson's contracted arrangements. The health issues faced by Aboriginal and Torres Strait Islander women and their babies require clear and continuing support. I am strongly convinced that Ms Tyson's role will continue well into the future because of that continuing need.
  1. [62]
    The Department has relied on the uncertainty of future funding as the genuine operational reason on which to refuse conversion. However, the terms "unknown" and "uncertain" do not convey a high level of certainty on the part of the Respondent that there is not a continuing need for Ms Tyson to perform the role, only the reality of annual allocations.  
  1. [63]
    It appears to me that the Respondent's view is that the role is continuing in some form. As such, I find that the role is continuing.

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

  1. [64]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles. 
  1. [65]
    While the matters under s 148(2) are certainly factors that may inform the Department's considerations of whether there is a continuing need for Ms Tyson to be employed in the role, it is not the exclusive consideration. 
  1. [66]
    As the Respondent gave a deemed decision that it later submitted was based on genuine operational reasons, it appears to me that the Department has stopped short of considering the remaining element of the mandatory criteria in s 149A(2)(a)(i) of the PS Act.
  1. [67]
    In Katae v State of Queensland & Anor ('Katae'), Crow J considered the definition of "same role" in the previous TE Directive.  His Honour noted that the legislation was remedial, and went on to find:

.. through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[15]

  1. [68]
    I acknowledge that the current TE Directive does not contain a definition of 'same role'; however, in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the previous TE Directive to which Katae refers:[16]

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. [69]
    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. [70]
    In considering whether there is a continuing need for Ms Tyson to be employed in a role which is substantially the same, I am also conscious of the significance of the initiatives to enhancing the health outcomes and support of Aboriginal and Torres Strait Islander women and their babies.
  1. [71]
    I have found above that there is a continuing need for Ms Tyson to be employed in her current role.  However, in the alternative, I would also find that there is a continuing need for Ms Tyson to be employed in a role which is substantially the same. 

Genuine operational reasons

  1. [72]
    The Respondent contends that the genuine operational requirement relied on not to convert Ms Tyson to permanent is that funding is "unknown or uncertain and is only granted on an annual basis with no prospects of becoming recurrent funding." The Respondent's submission in this regard is somewhat contradictory - in the first instance it submits the funding is "unknown or uncertain" and then goes on to submit there are "no prospects" of recurrent funding.
  1. [73]
    The Respondent has submitted that funding uncertainty confirmed the appropriateness of the temporary nature of Ms Tyson's current role, consistent with s 148(2)(c) of the PS Act.
  1. [74]
    I note that the provision at s 148(2)(c) indicates only that employment on tenure may not be viable or appropriate if it is "to fill a position for which funding is unlikely or unknown" – and that this circumstance is not precisely met in this case. 
  1. [75]
    I would observe that the objective of maximising permanent employment and adherence to funding requirements need not be at odds.  Where work is required to be performed, public sector workers will be required to be paid regardless of whether they are employed on a permanent or temporary basis.  Further, while the PS Act and TE Directive are in place there is a mandatory criteria to decide conversion reviews at prescribed intervals that must be faithfully applied.
  1. [76]
    The importance of ensuring support for Aboriginal and Torres Strait Islander women and babies will foreseeably still require appropriate funding support well into the future. The Making Tracks initiative is to be achieved by 2033 - funding to the HHS has at this point been secured until 1 June 2022, however Ms Tyson's fixed term contract is still fixed with an end date of 30 June 2021.  It ought not be assumed that the current engagement will conclude as fixed in circumstances where there remain significant health issues at stake.
  1. [77]
    The insecure nature of the funding source for a role may be a valid reason for utilising temporary employment, pursuant to s 148(2)(c). So too may be performing work for a particular project or purpose with a known end date, under s 148(2)(b).  In that sense, those matters can also remain relevant in considering conversions to permanency. However, while it may perhaps be considered an appropriate reason for an initial temporary engagement, after more than two years of temporary engagements said to be based on such insecurity, in my view it is no longer fair and reasonable to rely on such a reason not to convert Ms Tyson to permanent employment. I would observe that it is not necessary that a role is certain to be continuing – nor that it must indefinitely continue. That is not the test to be applied in these circumstances, rather it is the much lower bar of whether there is a continuing need.
  1. [78]
    In considering all of the material before me, I find that the deemed decision (and the Department's conclusion regarding s 148(2)(c)) was unfair and unreasonable. There is a continuing need for Ms Tyson to be employed in her role as Advanced Health Worker.
  1. [79]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Ms Tyson to permanency.

Conclusion

  1. [80]
    I accept that the particular circumstances may have constituted reasons for the Respondent to initially employ Ms Tyson on a temporary employment contract.  However, I do not consider it reasonable for the Respondent to rely on that indefinitely.
  1. [81]
    On the material before me, I have found that there is a continuing need for Ms Tyson to be employed in her current role. 
  1. [82]
    In the alternate, I have explained my concern that the fact of the deemed decision meant there was no visibility with respect to the Department's exploration of any role which is substantially the same - and the absence of any evidence of its analysis and assessment of such capability requirements inherent in either the role currently performed by Ms Tyson or others that may be substantially the same. The Respondent's submissions are also silent on any such endeavours.
  1. [83]
    In arriving at this conclusion, I am conscious that the PS Act and TE Directive are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the TE Directive and legislation. Those efforts allow for the achievement of the purpose of the TE Directive.[17]
  1. [84]
    In my view, the Department's decision to refuse conversion to permanency was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
  2. [85]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Ms Tyson to permanency.
  1. [86]
    I order accordingly.

Orders:

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

1.  The appeal is allowed;

2.  The decision that Ms Tyson not have her temporary employment converted to

 permanent employment is set aside and another decision is substituted; and

  1. Ms Tyson's temporary employment status be converted to permanent employment.

Footnotes

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

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

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

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

[5] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[6] Ibid s 317(2)(b).

[7] House v The King (1936) 55 CLR 499, [2].

[8] (1995) 149 QGIG 777.

[9] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[10] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[11] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[12] [2010] ICQ 35, [6].

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

[14] This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).

[15] [2018] QSC 225.

[16] Temporary Employment Directive 08/17 cl 14

[17] Directive 09/20 Fixed Term Temporary Employment cl 1.1.

Close

Editorial Notes

  • Published Case Name:

    Tyson v State of Queensland (Department of Health)

  • Shortened Case Name:

    Tyson v State of Queensland (Department of Health)

  • MNC:

    [2021] QIRC 184

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    31 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
1 citation
Jump To
Cite 1 - (1995) 183 CLR 245
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
2 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
1 citation
Jump To
Cite 1 - [2010] ICQ 35

Cases Citing

Case NameFull CitationFrequency
Burchall v State of Queensland (Queensland Health) [2025] QIRC 1831 citation
1

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