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

Maddock v State of Queensland (Department of Department of Communities, Disability Services and Seniors)[2021] QIRC 208

Maddock v State of Queensland (Department of Department of Communities, Disability Services and Seniors)[2021] QIRC 208

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Maddock v State of Queensland (Department of Department of Communities, Disability Services and Seniors) [2021] QIRC 208

PARTIES: 

Maddock, Kelly

(Appellant)

v

State of Queensland (Department of Communities, Disability Services and Seniors)

(Respondent)

CASE NO:

PSA/2020/254

PROCEEDING:

Public Service Appeal – Conversion of Casual Employment

DELIVERED ON:

9 June 2021

MEMBER:

HEARD AT:

Knight IC

On the papers

ORDERS:

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Maddock's request in accordance with Directive 01/17 Conversion of casual employees to permanent employment and these reasons.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested that her casual status be converted to permanent – where the request was refused – whether the appellant undertook "regular and systematic" hours – whether there were genuine operational requirements which precluded conversion – appeal allowed

LEGISLATION AND INSTRUMENTS:

Directive 01/17 Conversion of casual employees to permanent employees cls 6, 7, 8

Industrial Relations Act 2016 ss 451, 562B, 562C

Public Service Act 2008 ss 149A, 201

(as at 31 August 2020)

Public Service Act 2008 s 197

(as at 14 September 2020)

Public Service and Other Legislation Amendment Act 2020

CASES:

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

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

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

Reasons for Decision

  1. [1]
    This appeal concerns Ms Kelly Maddock, who has been employed by the State of Queensland through the Department of Communities, Disability Services and Seniors ('the Department'), as a casual PO3/2 Forensic Clinician within the Forensic Disability Service ('the FDS') since 20 August 2018.
  2. [2]
    On 21 August 2020, the Together Queensland, Industrial Union of Employees requested, on behalf of Ms Maddock, that she be converted to permanent status pursuant to Directive 01/17 Conversion of casual employees to permanent employees ('the Directive').[1]
  3. [3]
    The request was rejected on 18 September 2020. In the reasons for the decision, Mr Stan Pappos ('the decision-maker') advised:

… Pursuant to section 8.1 (e) of the Directive, the Chief Executive must have regard to genuine operational considerations which may impact on the conversion of a casual employee to a permanent role. In this instance, it is not possible to confirm the conversion request as there are no permanent part-time or full-time Forensic Disability Worker (Clinician) positions available. The work that you have been offered at the Forensic Disability Service (FDS) to date has primarily centred on coverage of short-term and long-term staff absences, where the staff involved hold permanent positions.

...

Additionally, the FDS will be implementing a new operating model and structure. The approved operating model and structure will result in a reduction of Forensic Disability Worker (Clinicians) currently consisting of 16 full-time equivalent positions. The Department of Communities, Disability Services and Seniors has ensured that there is job security for persons that are permanently employed at the FDS and as such, there are no planned vacancies that are likely to emerge as part of the new operating model. Notwithstanding this, the FDS will continue to ensure that there is a casual pool of Forensic Disability Worker (Clinicians) that is maintained, which will mean that there will be irregular shift opportunities offered to you and other casual staff at the FDS.

  1. [4]
    By appeal notice filed 9 October 2020, Ms Maddock appeals the decision under ch 7 of the Public Service Act 2008 ('the PS Act').
  2. [5]
    The parties exchanged written submissions, albeit having secured an extension to the timeframe within which submissions were to be filed and served, in accordance with a Directions Order issued by the Commission after Ms Maddock's appeal was filed. No hearing was conducted.[2]

Appeal Principles

  1. [6]
    The Public Service and Other Legislation Amendment Act 2020 ('the Amendment Act') commenced operation on 14 September 2020. The Amendment Act, inter alia, amended the Industrial Relations Act 2016 ('the IR Act') and the PS Act in respect of public service appeals referred to in ch 7, pt 1 of the PS Act. Section 197 of the PS Act now provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the IR Act.
  2. [7]
    Section 562B(2) of the IR Act provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  3. [8]
    These sections replicate ss 201(1) and (2) of the PS Act prior to their deletion by the Amendment Act. For this reason, it has been accepted by the Commission that the principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions under the IR Act.[3]
  4. [9]
    I must decide the appeal by reviewing the decision appealed against.[4] Because the word "review" has no settled meaning, it must take its meaning from the context in which it appears.[5] An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision-making process associated therein.[6] Findings made by the Department which are reasonably open to it based on relevant materials or evidence should not be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [10]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    set the decision aside and return to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant Provisions

  1. [11]
    The decision-maker was required to have regard to s 149A of the PS Act as it applied prior to amendment, which provided as follows:

149A Commission chief executive must make directive about casual employees

  1. (1)
    The commission chief executive must make a directive about reviewing the status of casual employees for the purpose of deciding whether or not to convert their employment to permanent employment.
  1. (2)
    The chief executive of the department in which a casual employee the subject of the directive is employed must, within the period provided for in the directive, decide whether the person's employment in the department is to—
  1. (a)
    continue as a casual 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 consider any criteria for the decision fixed under the directive by the commission chief executive.
  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 casual employee according to the terms of the existing employment.
  1. (5)
    A person's employment can not be converted without the person's consent.
  1. (6)
    A person may apply to have the person's employment converted if the person has been employed as a casual employee on a regular and systematic basis for at least—
  1. (a)
    2 years; or
  1. (b)
    if a shorter time is decided by the commission chief executive—the shorter time.
  1. [12]
    The relevant clauses of the Directive are set out below:

6. Principles

6.1 The Employment Security Policy outlines the government's commitment to permanent employment where possible and limiting the use of casual employment.

6.2 Casual employment should only be used when permanent employment is not viable or appropriate. Examples of viable and appropriate casual employment include where the casual employee:

  • backfills permanent or temporary staff on short-term emergent leave;
  • covers short gaps in work rosters of permanent and temporary employees;
  • is engaged in an ad hoc or "on demand" nature, each engagement standing alone; or
  • works irregular, informal, flexible, occasional or unrostered hours.

6.3 An agency should periodically review the use of casual employees to limit casual employment and to proactively manage its workforce planning.

7. Application for conversion of casual employee to permanent employment

7.1 A casual employee may apply to have their employment converted to permanent employment if the person has been employed as a casual employee on a regular and systematic basis for at least 2 years, as provided by section 149A of the PSA.

...

8. Criteria for a decision

8.1  When making a decision about an application of a casual employee for conversion to permanent employment, the chief executive must consider the following criteria:

a) Is the person employed as a casual employee?

b) Is the basis of the casual employment both regular and systematic?

The chief executive must look at the engagement as a whole and consider each application on a case by case basis.

Circumstances that may indicate the casual employment is regular and systematic include (but are not limited to):

Regular

Systematic

  • Usual, normal or customary
  • Recurs at a fixed time or periodically
  • Observes fixed times or habits

 

Evidence might include:

  • Repetitive pattern
  • Frequent though unpredictable engagements
  • Regular days or hours of work or provided with shifts regularly

 

Having, showing or involving a system, method or plan

 

Evidence might include:

  • Pattern of engagement
  • A fixed roster (or predicable hours)
  • Unpredictable hours may also be evidence of a pattern of engagement
  • Degree of certainty about work hours
  • Ongoing reliance upon the worker's services

Note: The evidence listed above are examples only. Other evidence may support a finding that the basis of the casual employment is regular and systematic.

c)  Has the person been employed on a regular and systematic basis as a casual employee for at least two years?

Employment on a regular and systematic basis as a casual employee for at least two years includes:

  • non-continuous service, where a casual employee has performed a cumulative total of two years' service in the same role in an agency, including periods of temporary and casual service, provided that the breaks in employment do not exceed a total of three months in the cumulative two year period.

d) Has the casual employee satisfactorily met the performance objectives of the role during their employment?

e) If all of the above criteria are satisfied, the chief executive must then consider:

Are there genuine operational reasons not to convert the casual employee? These may include (but are not limited to):

  • whether there is a continuing need for the person to be employed in the role, or in a role which is substantially the same, and the role is likely to be ongoing;
  • where the minimum hours set out in an industrial instrument if the casual is converted will not suit operational requirements; or
  • where a closed merit selection process is more appropriate to determine an order of merit for casual conversions.

8.2  In line with the Employment Security Policy, the chief executive should convert the casual employee to a permanent employee at level, unless there are genuine operational reasons not to do so.

Submissions

  1. [13]
    The outcome sought by Ms Maddock in this appeal is for her employment status to be converted from casual to permanent.[7] In the alternative, she has requested the decision be set aside and returned to the decision-maker.[8]
  2. [14]
    In support of her position, Ms Maddock highlights the obligation of the Department to convert her employment status in the absence of genuine operational reasons that would otherwise be a bar to conversion.[9]
  3. [15]
    Relying on the stated purposes of the Directive, she maintains the decision-maker has misconstrued the provisions of the Directive in his reliance on the absence of a substantively vacant role, to justify the decision not to convert her status. The existence of a permanent role, Ms Maddock argues (correctly in my view) is not a mandatory consideration within the Directive.[10]
  4. [16]
    Likewise, Ms Maddock contends consideration by the decision-maker of the nature of work she was undertaking, that is, coverage of short- and long-term absences, was also unreasonable in that these issues do not form part of the criteria of the Directive.[11]
  5. [17]
    Ms Maddock has also raises concerns that the decision-maker failed to deal with cl 8.1 of the Directive in a meaningful way.[12] That is, there is an absence in the decision letter of any detailed consideration in relation to the various criteria set out at cl 8.1, which she argues, should result in an outcome where the decision is found to be unfair and unreasonable.[13]
  6. [18]
    Although not reflected in the decision letter which forms the basis of this appeal, in its submissions to the Commission the Department confirms that, at the time of the decision, Ms Maddock satisfied criteria (a) to (d) of cl 8.1 of the Directive.[14]
  7. [19]
    That is, at the time the application for conversion was made, Ms Maddock had been employed on a regular and systematic basis for two years, and she was not subject to any formalised performance issues that prevented her from satisfying cl 8.1(d) of the Directive.[15]
  8. [20]
    In making this submission, the Department observes that the majority of work (approximately 80%) performed by Ms Maddock in the two-year period prior to her conversion request, was undertaken under the auspices of a temporary, full-time contract.[16]
  9. [21]
    In reliance on these circumstances, the Department, although acknowledging Ms Maddock's engagement on a temporary fulltime basis was eligible service for the purposes of the Directive, argues the nature of these engagements demonstrated that the service undertaken by Ms Maddock was predominantly temporary full-time work, whereby she was backfilling long-term absences of other permanent employees.[17]
  10. [22]
    The Department contends that when considering whether there were "genuine operational reasons" in existence that would prevent Ms Maddock's conversion to a permanent role, the decision-maker explored the issue of whether the work performed by Ms Maddock in the preceding two years was able to be characterised as "ongoing".[18]
  11. [23]
    It argues that as part of these considerations, the decision-maker became aware that a number of long-term absences Ms Maddock had been backfilling were over two years in duration and were likely to be resolved within the foreseeable future by way of, for example, the substantive employee returning to work.[19] This being the case, it submits the decision-maker determined there would not be adequate ongoing work available for Ms Maddock to the extent that it had been available in the preceding two years.[20]
  12. [24]
    The Department maintains that during the review process, consideration was also given to whether conversion to a part-time position was tenable.[21] As part of this process, the decision-maker had regard to impending changes to the FDS staffing structure.[22]
  13. [25]
    In circumstances where it had already been determined by the FDS that a new staffing structure would result in a reduction in the number of clinicians from the equivalent of 20 FTE to 16 FTE, the decision-maker concluded this outcome would significantly lessen the need for casuals to backfill roles, given the reduction in both staff and rostered shifts.[23]
  14. [26]
    In turn, the decision-maker concluded there would not be sufficient ongoing work of such a consistency or volume that it could justify the conversion of Ms Maddock's status to permanent part-time.[24]
  15. [27]
    Although the Department acknowledged there would most likely be ongoing casual work in that the FDS would continue to maintain a small pool of casual staff that it intended to draw from for irregular shift opportunities, it was assessed that this work was of truly casual nature, that is irregular and inconsistent.[25]
  16. [28]
    In its submissions, the Department does not disagree with Ms Maddock's position that "a substantive vacancy is not required to convert a casual employee to permanent employment",[26] but argues that when determining the request for conversion, the absence of a permanent role was just one of several factors that were considered by the decisionmaker at the time, namely:[27]
  • the availability of vacant clinician roles;
  • the work that had been performed by Ms Maddock during the preceding two years, and the work that would be required to be performed in the future; and
  • the fiscal position of the FDS and the Department more wholly, given the unprecedented impact COVID-19 has and will have on current and future departmental budgets.
  1. [29]
    In the end, after considering all of those factors, it submits the decision-maker determined he would not convert Ms Maddock's status from casual to permanent, having regard to genuine operational reasons.[28]
  2. [30]
    In her reply submissions, Ms Maddock disputes the Department's position that the only available hours following the implementation of the new staffing structure, were or are, irregular and inconsistent.[29] In support of her position, Ms Maddock provided the Commission with an example of the hours she was performing both before and after the decision was made.[30]
  3. [31]
    Although the context in which the hours reflected in the document is not clear, what is apparent from the table submitted to the Commission is that the hours Ms Maddock is working could easily be characterised as regular and consistent. Moreover, the number of hours being worked on each shift are consistently eight hours or above.

Consideration

  1. [32]
    My role here is to undertake a review of the decision arrived at by the decision-maker and the decision-making processes associated therewith, to determine whether it is fair and reasonable.
  2. [33]
    Here, there is no question Ms Maddock satisfied the relevant criteria in cl 8.1 of the Directive, in that she was employed on a regular and systematic basis for two years. Moreover, she was not the subject of any performance issues that may have prevented her from being converted.
  3. [34]
    According to the Department, the decision-maker who made the decision not to convert Ms Maddock's status concluded there were several operational reasons in existence that precluded the conversion of her casual employment status to permanent, either on a fulltime or part-time basis, namely:
  • the foreseeable resolution of several long-term backfill arrangements;
  • the impending reduction of clinician roles and shifts at FDS; and
  • the "non-re-emergence" to date of COVID-19 at the FDS (in circumstances where it is argued Ms Maddock would not have enjoyed the number of hours she received for several periods in 2020, but for COVID-19 related reasons).
  1. [35]
    The Department submits the FDS employs several permanent clinicians, who have been on long-term absences for a variety of reasons associated with WorkCover, QSuper and maternity leave. Where this has occurred, temporary and casual clinicians, including Ms Maddock, have been utilised to backfill these long absences, in addition to other shortterm and unplanned absences.
  2. [36]
    The possibility of the absences being resolved within the foreseeable future led the decision-maker to conclude that the volume of work previously available to Ms Maddock would not exist in such a way as to warrant conversion, either on a full-time or part-time basis.
  3. [37]
    Moreover, the Department submits that several internal and external reviews had identified that the number of clinicians working passive shifts (that is, night shifts), should be reduced and the funding utilised to employ, instead, several new Operational Team Leader (007) roles.[31]
  4. [38]
    Relying on a table that sets out both her historic and current hours, Ms Maddock disputes the submission she no longer receives consistent hours or that her work is irregular.
  5. [39]
    Further to her concerns as to the absence of detailed reasons within the decision-letter, in so far as the application of cl 8 of the Directive is concerned, she contends the Department has failed to consider the ongoing need for relief and backfill.[32]
  6. [40]
    Ms Maddock also argues there has also been a failure, on the part of the Department, to consider the overall objective of Directive – that is, to encourage and maximise permanent employment where possible – while exploring whether there were genuine operational reasons in existence that would act as a bar to conversion.[33]
  7. [41]
    Although I consider it is entirely open to the Department to have regard to the issues such as those set out at [35] above when considering a conversion request, one of the challenges I have with the submissions of the Department is that despite referring to: the impending "resolution" of a number of long-term absences; several internal and external reviews related to the FDS structure; and a reduction in fulltime equivalent roles resulting in a circumstance where ongoing work for the likes of Ms Maddock would become truly casual in nature, it has provided no materials in support of these claims.
  8. [42]
    Moreover, it is not clear from its submissions as to when or if the reduction in staffing levels is proposed to take effect. Nor is it clear when or if staff who have previously been absent from the workplace, will return.
  9. [43]
    Conversely, although it is not entirely clear as to the context in which the hours were or are being undertaken, Ms Maddock has been able to provide the Commission with material that demonstrates she has performed consistent and regular hours both before and after the decision was made to refuse her conversion, throwing some doubt on the Department's assertion she would only be offered hours of a truly casual nature, that is hours that are irregular and inconsistent.
  10. [44]
    I note there also seems to be no question that Ms Maddock has satisfied the criteria set out within cl 8.1(a) to (d) of the Directive.
  11. [45]
    As is clear from cl 8(e) of the Directive, the decision-maker must have regard to the "genuine operational requirements of the department" when making their decision.
  12. [46]
    Here, the decision-maker relies on genuine operational reasons as a bar to converting Ms Maddock.
  13. [47]
    The phrase "genuine operational requirements of the department" is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women)[34] Merrell DP observed, albeit in the context of s 149C of the PS Act:

[37] The phrase 'genuine operational requirements of the department ' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38] The adjective 'genuine ' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
  1. [48]
    His Honour then found that the phrase would at least include a consideration of whether there was "an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department" to convert the employee's employment.[35]
  2. [49]
    Due to the paucity of supporting materials before the Commission in respect of whether or not it can be established there is some factual basis upon which genuine operational reasons exist such that Ms Maddock cannot be converted, the appropriate course here, I think, is to err on the side of caution and set the decision aside.
  3. [50]
    In my view, another review should occur.

Conclusion

  1. [51]
    For the reasons given above, I consider the decision was not fair and reasonable.
  2. [52]
    I order accordingly.

Orders

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Maddock's request in accordance with Directive 01/17 Conversion of casual employees to permanent employment and these reasons.

Footnotes

[1] Although it has since been superseded by Directive 08/20 Casual employment, which took effect on 25 September 2020, it was the Directive which applied to Ms Maddock's request and the decision-maker's consequent consideration.

[2] As permitted by s 451(1) of the Industrial Relations Act 2016.

[3] See, for example, Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 (Merrell DP), [5].

[4] Industrial Relations Act 2016 s 562B(2).

[5] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

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

[7] Ms Maddock's submissions attached to the appeal notice filed 9 October 2021, [27].

[8] Ibid [28].

[9] Ibid [6].

[10] Ibid [13]-[15].

[11] Ibid [16].

[12] Ibid [19].

[13] Ibid.

[14] Department's submissions filed 16 October 2020, [7].

[15] Ibid.

[16] Ibid [9].

[17] Ibid [10].

[18] Ibid [11].

[19] Ibid [12].

[20] Ibid.

[21] Ibid [13].

[22] Ibid [14], [3].

[23] Ibid.

[24] Ibid [14].

[25] Ibid [15], [18].

[26] Ibid [19].

[27] Ibid [22].

[28] Ibid [17].

[29] Ms Maddock's submissions in reply filed 26 October 2021, [4].

[30] Ibid [5].

[31] Department's submissions filed 16 October 2020, [3].

[32] Ms Maddock's submissions in reply filed 26 October 2021, [10].

[33] Ibid [8].

[34] [2020] QIRC 203 (my emphasis).

[35] Ibid [40] (my emphasis).

Close

Editorial Notes

  • Published Case Name:

    Maddock v State of Queensland (Department of Department of Communities, Disability Services and Seniors)

  • Shortened Case Name:

    Maddock v State of Queensland (Department of Department of Communities, Disability Services and Seniors)

  • MNC:

    [2021] QIRC 208

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    09 Jun 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.