Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Joshi v State of Queensland (Queensland Health) - [2021] QIRC 212

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

Joshi v State of Queensland (Queensland Health)[2021] QIRC 212

Joshi v State of Queensland (Queensland Health)[2021] QIRC 212

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Joshi v State of Queensland (Queensland Health) [2021] QIRC 212

PARTIES: 

Joshi, Rahul

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/122

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

15 June 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. That the decision of Mr Steve Wood dated 12 March 2021 is set aside, and the matter is to be returned to him along with a copy of this decision.
  1. That the employment review prescribed in Directive 09/20 is to be re-conducted according to law, including the provision of adequate reasons regarding each of the mandatory criteria prescribed in that Directive.
  1. The outcome of the review must be provided to Dr Joshi by 29 June 2021.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – consideration of eligibility to appeal – where Appellant holds concurrent permanent and temporary contracts – consideration of the relevant agency – consideration of the mandatory criteria – consideration of changed circumstances – where decision returned to decision maker for fresh review

LEGISLATION AND OTHER INSTRUMENTS:

CASES:

Acts Interpretation Act 1954 (Qld) s 14A, s 27B, sch 1

Directive 09/20 Fixed term temporary employment cl 1, cl 3, cl 4, cl 8

Hospital and Health Boards Act 2011 (Qld) s 67, s 74A, s 74B

Hospital and Health Boards Regulation 2012 (Qld)

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

Public Service Act 2008 (Qld) s 21, s 121, s 147, s 148, s 149, s 149A, s 149B, s 193, s 194, s 196

Public Service Regulation 2018 (Qld) s 5, sch 3, sch 15

Statutory Instruments Act 1992 (Qld) s 14

Benson v State of Queensland (Department of Education) [2021] QIRC 152

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

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

Royle v State of Queensland (Department of Health) [2021] QIRC 142

Reasons for Decision

  1. [1]
    Since 28 November 2018, Dr Rahul Joshi has been permanently employed by the Gold Coast Hospital and Health Service (GCHHS; Gold Coast HHS) in the 0.5 full time equivalent (FTE) role as a Staff Specialist at the Children's Critical Care.
  1. [2]
    On 4 February 2019, Dr Joshi commenced a full-time working arrangement with the Children's Health Queensland Hospital and Health Service (Children's HHS).  This comprised a 0.5 FTE secondment from his substantive role at GCHHS and an additional 0.5 FTE fixed term temporary employment with the Children's HHS.
  1. [3]
    His role at the Children's HHS was as a Senior Medical Officer (SMO), in the Paediatric Intensive Care Unit (PICU), Division of Critical Care.
  1. [4]
    For over two years, Dr Joshi has been engaged on successive fixed term temporary employment arrangements (0.5 FTE) with the Children's HHS.
  1. [5]
    Dr Joshi requested conversion to permanency with the Children's HHS on 10 February 2021. 
  1. [6]
    Dr Joshi subsequently received correspondence dated 12 March 2021 (the decision letter)[1] refusing his conversion request (the conversion decision).  The decision letter stated that (Emphasis added):

The reason for this decision is that you are not eligible for review as per the requirements of the Public Service Act 2008 (PS Act) and the Fixed term temporary employment directive 09/20 (the Directive), as you hold a permanent position with Queensland Health at the Gold Coast University Hospital, as a Senior Staff Specialist.[2]

…

I have determined that you are not currently eligible for review because:

  • As per section 149 and 149B of the Public Service Act 2008, to be eligible for a fixed term temporary to permanent employment review, you must be a fixed term temporary employee.
  • You hold a permanent position as a Senior Staff Specialist at the Gold Coast University Hospital, within Queensland Health.
  • The Public Service Act 2008 establishes that employment on tenure is the default basis of employment in the Queensland public service, which you already hold.[3]

  …

   You will continue your secondment with Queensland Children's Hospital until 4 April 2021.[4]

  1. [7]
    Since the decision letter was given to Dr Joshi, his fixed term temporary contract has again been extended until 11 July 2021.  The latest SMO/VMO employee movement form - temporary indicates that the 'Appointment Reason' is 'Backfill – Vacant Position'.  The 'Reason for vacancy' section shows a line through 'Existing vacancy', replaced with 'Backfill short term secondment.'  It is unclear from that document whether the purpose of Dr Joshi's further temporary engagement is to backfill a current vacancy or a colleague on short term secondment elsewhere. 
  1. [8]
    The Children's HHS stated that Dr Joshi's temporary employment contract at the time of filing the appeal was to backfill a "substantive CHQ staff member who was on a secondment and / or another approved leave type."  The Children's HHS submitted that the purpose of the latest extension was to "backfill further approved leave."[5]
  1. [9]
    On 1 April 2021, Dr Joshi filed an Appeal against the 12 March 2021 conversion decision. 
  1. [10]
    This Appeal raises the jurisdictional issues of:
  • Whether Dr Joshi is eligible for review, given he already holds permanent employment with GCHHS; and
  • Whether the "agency" is the Children's HHS or Queensland Health (as a Government Department) for the purposes of applying the Directive.[6]

Appeal principles

  1. [11]
    Section 562B(2)(3) of the Industrial Relations Act 2016 (Qld) (IR 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. [12]
    The Appeal is not conducted by way of re-hearing,[7] but rather involves a review of the decision arrived at by the Children's HHS and the associated decision-making process.[8]
  1. [13]
    Findings made by the Children's HHS, 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.[9]
  1. [14]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.
  1. [15]
    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.
  1. [16]
    The Notice of Appeal was filed with the Industrial Registry on 1 April 2021. 
  1. [17]
    The decision letter was dated 12 March 2021 and received by Dr Joshi the following day.  The appeal was filed in time.

 What decisions can the IRC Member make?

  1. [18]
    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 matter 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.

Relevant provisions of the PS Act and the TE Directive

  1. [19]
    Section 149B of the Public Service Act 2008 (Qld) (PS Act) relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to-
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a General employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee-how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (7)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

…

  1. [20]
    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. [21]
    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. [22]
    The Directive 09/20 Fixed term temporary employment (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.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

  1. [23]
    Section 193 of the PS Act provides that:

  A person may appeal against a decision if -

  1. (a)
          an appeal may be made against the decision, under section 194; and
  1. (b)
          the person is entitled to appeal against the decision under section 196.
  1. [24]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. 
  1. [25]
    Section 194(1)(e) of the PS Act provides that an appeal may be made against a decision:
  1. (i)
    under section 149B not to convert the basis of employment of an employee; or
  1. (ii)
    under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A).
  1. [26]
    Section 196(e) of the PS Act prescribes that the employee the subject of the conversion decision may appeal. 
  1. [27]
    Section 149B of the PS Act "applies in relation to a person who is a fixed term temporary employee or casual employee".
  1. [28]
    Pursuant to cl 3.2 of the Directive, "This directive applies to public service employees who are employed on a full-time or part-time fixed term temporary basis under section 147(2)(a) or section 148 of the PS Act."
  1. [29]
    Clause 147(2)(a) of the PS Act provides (emphasis added):
  1. (1)
    A chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer.
  1. (2)
    The employment may be—
  1. (a)
    on tenure or a temporary basis for a fixed term and full-time or part-time; or
  2. (b)
    on a casual basis.
  1. [30]
    Clause 4.3 of the Directive states, "Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee."
  1. [31]
    Section 148 of the PS Act provides:

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. [32]
    The Children's HHS has submitted that 'Queensland Health' is a relevant department pertaining to the PS Act, as defined in sch 15 of the Public Service Regulation 2018 (Qld) (the Regulations), as opposed to the Children's HHS.[10]

Grounds of Appeal

  1. [33]
    In the Appeal Notice filed on 1 April 2021, Dr Joshi contended that:
  • His current temporary contract expired on 4 April 2021.
  • The decision maker had determined that Dr Joshi was not eligible for conversion from temporary to permanent employment because he already held a permanent position (0.5 FTE) with the GCHHS.
  • He has worked at the Children's HHS continuously since February 2019.  This work has been performed on a full-time basis, other than for a period of four and a half months where he worked 0.5 FTE.
  • Correspondence from Dr John Wakefield, Director-General, Queensland Department of Health stated Dr Joshi was employed by the Children's HHS.
  • "I understand that Queensland Health usually considers tenure for aggregate and concurrent employment".
  • The role is substantively vacant and there are more positions available due to leave and impending retirements.
  • There is no issue with respect to merit.
  • "Even if my 0.5 FTE considered as a secondment, I should be eligible for conversion for the remaining 0.5 FTE position."
  • The temporary contract has been further extended until 11 July 2021.

Submissions

  1. [34]
    The parties exchanged written submissions in accordance with Directions Order issued on 9 April 2021.

Appellant's submissions

  1. [35]
    Dr Joshi filed submissions in support of the Appeal on 16 April 2021, as summarised below:
  • This appeal is in relation to a decision under s 149B(3) of the PS Act not to convert the temporary engagement to permanent. 
  • The mandatory decision criteria is contained in the PS Act and TE Directive.
  • The PS Act is applied to employees engaged under the Hospital and Health Boards Act 2011 ('HHB Act') through the Regulations.
  • Dr Joshi submitted a request for conversion to the Children's HHS on 10 February 2021.
  • That request was declined on 13 March 2021 on the grounds that he already has a substantive 0.5 FTE permanent appointment with the GCHHS.
  • "The decision is unfair and unreasonable because the decision maker has wrongly applied the appointment provisions in the HHB Act and erred in categorising the basis of my employment.  The HHB Act provides for employment to be either (in this context) on tenure; or on a temporary basis.  The employer states I am a permanent employee."
  • The relevant industrial instruments do not permit a permanent employee to work additional temporary hours in the same role; however employees may have more than one engagement.  Either Dr Joshi is a permanent 1 FTE – or he has two separate engagements, one permanent 0.5 FTE and one temporary 0.5 FTE.
  • If it is accepted that Dr Joshi has a temporary engagement under the HHB Act, he is eligible for review.
  • The decision maker has not considered the mandatory decision criteria.
  • Dr Joshi meets the eligibility requirements and merit criteria.
  • The role is "presently substantively vacant".
  • Ongoing funding from various sources covers some staffing costs.
  • There is an increased need for Dr Joshi to continue in the role due to colleagues' approved long term leave arrangements and changed operational arrangements.
  • There are no genuine operational reasons to prevent conversion to permanency.
  • Dr Joshi has maintained 0.5 FTE continuous temporary employment with the Children's HHS on the following basis:

Dates

Employer

Employment Status

4 Feb 2019 – 2 Feb 2020

Children's HHS

0.5 FTE temporary

0.5 FTE secondment

3 Feb 2020 – 19 April 2020

Children's HHS

GCHHS

0.5 FTE temporary

0.5 FTE permanent

20 April 2020 – 31 May 2020

Children's HHS

0.5 FTE temporary

0.5 FTE secondment

1 June 2020 – 9 Aug 2020

Children's HHS

GCHHS

0.5 FTE temporary

0.5 FTE permanent

10 Aug 2020 – 4 April 2021

Children's HHS

0.5 FTE temporary

0.5 FTE secondment

5 April 2021 – 11 July 2021

Children's HHS

GCHHS

0.5 FTE temporary

0.5 FTE permanent

Respondent's submissions

  1. [36]
    The Respondent filed submissions on 16 April 2021 opposing the Appeal, summarised below:
  • The decision was not to conduct a review of Dr Joshi's fixed term temporary employment status due to 'ineligibility', pursuant to the TE Directive.
  • Dr Joshi holds two employment engagements with Queensland Health: 0.5 FTE permanent as a Staff Specialist at GCHHS; and 0.5 FTE fixed term temporary as a Senior Medical Officer (SMO) at Children's HHS.
  • At the time of the conversion request, Dr Joshi was engaged on a temporary contract with an end date of 4 April 2021 to "backfill a substantive CHQ staff member who was on a secondment and/or another approved leave type."
  • Dr Joshi has since been extended in his temporary contract until 12 July 2021 to "backfill further approved leave."
  • On 10 February 2021, Dr Joshi requested that his temporary employment status be reviewed with Children's HHS.
  • "It was determined that the Applicant was ineligible for review under the Directive due to holding permanent employment on tenure with GCHHS, within Queensland Health."[11]
  • Dr Joshi "is not a genuine fixed term employee…(as he) is substantively employed in a permanent capacity at GCHHS and holds tenured employment with Queensland Health."
  • It is accepted that Dr Joshi is employed on a fixed term temporary basis with Children's HHS as a SMO – but rejects that he is employed by Children's HHS as an agency.  Queensland Health is a relevant department, as opposed to the Children's HHS.  Queensland Health is the relevant Department and is to be considered as one agency for these purposes.
  • As Dr Joshi is substantively employed in a permanent capacity with the agency, where tenured employment is held, he is not a genuine fixed term temporary employee and therefore not eligible for review.

Appellant's reply submissions

  1. [37]
    Dr Joshi filed submissions in reply on 30 April 2021, which have been summarised below:
  • Dr Joshi received correspondence from Dr John Wakefield, Director-General, Queensland Department of Health, that stated that the amendments to the Hospital and Health Boards Regulation 2012 (Qld) effective from 15 June 2020 did not apply to Dr Joshi's employment arrangements.  It was explained that the effect of the amendments was that all non-executive health service employees previously employed by a prescribed HHS will now be employed by the Director-General as the system manager of Queensland Health – but that "This change does not apply to you as a senior health service employee (Senior Medical Officer or Visiting Medical Officer)…"
  • The Respondent's argument that Dr Joshi is not employed by CHQ as an agency "would require an interpretation that is fundamentally different to the provision of Sections 74A and 74B of the HHB Act."
  • Queensland Health and Together Queensland have agreed that an employee who is working on both a permanent basis and a temporary basis has separate engagements and is eligible for review in their temporary engagement. 
  • Other PSA matters have been resolved in line with that interpretation.
  • The State of Queensland is required to conduct itself as a model litigant and the position adopted in these proceedings is contrary to that purpose.
  • Under s 67 of the HHB Act, an employee may be appointed either on tenure or fixed term contract or temporary or casual or contract for an indefinite term.
  • The PS Act also provides for separate permanent and temporary engagements, under s 121 and s 148.  An engagement cannot be made under those provisions that combines tenured and fixed term temporary employment but rather under s 149, 149A and 149B of the PS Act.
  • If there are two separate engagements established, then the temporary engagement is subject to s 149, 149A and 149B.
  • This interpretation was supported by Power IC in PSA/2018/22 in relation to the pre-amended PS Act.

Questions to be decided

  1. [38]
    This decision turns on several questions:
  1. Is Dr Joshi eligible for review?
  1. Is the relevant "agency" Children's HHS or Queensland Department of Health?
  1. Consideration of the mandatory criteria - and the impact of the changed circumstances since Dr Joshi filed the Appeal.
  1. [39]
    I have determined that:
  1. Dr Joshi is eligible for review, even though he already holds permanent employment with GCHHS in a separate employment engagement
  1. The Children's HHS is the relevant "agency" for the purposes of applying the TE Directive.
  1. The Children's HHS has not considered the mandatory criteria.
  1. The changed circumstances since filing the Appeal warrant consideration in this case.
  1. [40]
    My reasons follow.

Is Dr Joshi eligible for review, given he already holds permanent employment with GCHHS?

  1. [41]
    Section 147(2)(a) of the PS Act indicates that a general employee to which s 149B applies, may be employed on tenure or a temporary basis. At first blush, this appears to support the Children's HHS's contention that Dr Joshi cannot be employed both on tenure and on a temporary basis.  However, that is not the correct interpretation.
  1. [42]
    In my view, s 147(2)(a) properly means that for any particular engagement an employee may either be on tenure or fixed term temporary or casual (but that a combination of these is not permitted within the one engagement).  This interpretation does not deny the reality that many Queensland public service workers are engaged on separate and concurrent contracts. 
  1. [43]
    The fact remains that Dr Joshi's employment with GCHHS in his 0.5 FTE hours was certainly 'permanent', whilst the undertaking of the additional fixed term temporary contract for 0.5 FTE hours with Children's HHS was not.  The two employment contracts constituted separate and distinct engagements.
  1. [44]
    The decision letter dated 12 March 2021 identified that the pre-existing tenured employment arrangement with GCHHS was the precise reason why it was determined Dr Joshi was not eligible for review in his fixed term temporary engagement with Children's HHS.  See excerpt at paragraph [6].  Mr Wood's decision was based on an errored interpretation of the relevant provisions of the PS Act and TE Directive.
  1. [45]
    I note Dr Joshi's reply submissions attach an email exchange between Together Union and Mr Kane Ryalls, Director - Industrial Relations and Policy, Employment Relations, Human Resources Branch, Queensland Health on 9 and 16 December 2020.  In response to the union's advocacy on this point, Mr Ryalls confirmed that "…it is Queensland Health's position that whilst an employee is engaged as a temporary or casual employee they will be eligible for review.  This includes where the employee may have multiple engagements in the form of aggregate or concurrent employment, and as part of those engagements they may be permanent in one role and either temporary or casual in another role."  Mr Ryalls' recount of Queensland Health's position is the correct interpretation of the relevant provisions of the PS Act and TE Directive as it applies to Dr Joshi in these circumstances. 
  1. [46]
    Further, the interpretation that I have outlined at paragraph [42] does not frustrate the intent of government policy as articulated in the purpose and principles of the TE Directive; specifically to "establish employment on tenure as the default basis of employment in the Queensland public service"[12] 
  1. [47]
    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.

…

  1. [48]
    The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld).[13]
  1. [49]
    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. [50]
    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. [51]
    For over two years, the Children's HHS was content to concurrently employ Dr Joshi on a fixed term temporary basis, understanding that he was also permanently employed with the GCHHS in the same period.  The Children's HHS has accepted that Dr Joshi holds two different roles, with the two 'Employment Confirmation' documents for each of the Children's HHS and GCHHS attached to the Children's HHS's submissions.  I am satisfied that the two contracts are separate and distinct.
  1. [52]
    Having accepted that Dr Joshi's employment with the Children's HHS is currently on a fixed term temporary contract arrangement, it follows that he remains open to have that status reviewed under s 149B in the usual course.
  1. [53]
    I agree with Industrial Commissioner Power, where she has previously reasoned:[14]

[30] It is possible for a permanent employee to work hours in addition to their permanent roles through a number of arrangements such as through a higher duties arrangement, a casual arrangement, or a temporary arrangement. If the intention was for the Appellant to work occasional additional hours 'from time to time', a casual arrangement attracting commensurate remuneration may have been appropriate. As indicated above, this was not the character of the Appellant's systematic continued engagement and presumable remuneration over two years. 

[31] As a consequence of determining that the Appellant's additional hours were temporary, pursuant to s 148, this employment arrangement is to be subject to the Directive 08/17 -Temporary Employment.

[32] Neither the Directive nor the Act contain exclusions or caveats relating to temporary conversions on the basis that the employee already has tenure for a lesser number of hours, or any other permanent role with the State Government. There are no prohibitions on an employee with part-time tenure having their temporary role also converted to permanent.

[33] There also does not appear to be any prohibition on the chief executive of the department from offering a tenured part time public service employee additional work under either s 147 or s 148 of the Act. In my view, an employee performing additional work pursuant to either of these sections is not prevented from accessing the benefits of the Directive.

[34] Section 149 of the Act outlines the right to a review of temporary status, conferring a right on an employee who has at the end of two years been continuously employed as a temporary employee in a department. Both temporary employees engaged under s 147 and s 148 of the Act are entitled to conversion upon satisfaction of particular conditions.

[35] The determination to be made pursuant to s 149 of the Act is whether a person's employment is to continue as a temporary employee or whether the person's employment should be tenured. In my view the person's 'employment' refers to the particular employment arrangement that is the subject of the review and not any other employment arrangement the person may have… 

  1. [54]
    I have adopted the same interpretation in recent decisions, including Benson v State of Queensland (Department of Education)[15] and Royle v State of Queensland (Department of Health),[16] in similar circumstances of separate but concurrent employment contracts.
  1. [55]
    I find that the 12 March 2021 decision that Dr Joshi was ineligible for review by Children's HHS, on the basis that he already held permanent status with GCHHS, was incorrect.  The fact of Dr Joshi's permanent employment contract with GCHHS does not limit Children's HHS's ability or requirement to review his separate temporary engagement under s 149B.

Is the relevant "agency" Children's HHS or Queensland Department of Health?

  1. [56]
    The Children's HHS has accepted that Dr Joshi is employed on a fixed term temporary basis with Children's HHS as a SMO – but rejects that he is employed by Children's HHS as an "agency".  It instead submitted that Queensland Health is a relevant department pertaining to the PS Act as defined in sch 15 of the Regulations, as opposed to the Children's HHS.  In accordance with cl 3.2, the TE Directive applies to a government department as an agency and their employees.  Further the Respondent stated that "Queensland Health is a Government Department and is therefore considered as one agency for the purposes of applying the Directive." 
  1. [57]
    These contentions are considered in paragraphs [61]-[70] below.
  1. [58]
    The Respondent has cited sch 15 Dictionary of the Regulations to argue that Queensland Health, rather than Children's HHS, is a department for these purposes:

Queensland Health means the department, however named, in which the Hospital and Health Boards Act 2011 is administered.

Service means a Hospital and Health Service.

The Respondent also argued that cl 3.2 of the TE Directive supports this interpretation:

This directive applies to the following entities (each entity being an 'agency' for this directive) and their employees:

  1. (a)
    departments
  1. (b)
    public service offices listed in Schedule 1 of the PS Act
  1. (c)
    an entity declared to be a public service office under a regulation and where the regulation applies this directive to the entity (sections 22-23 PS Act).
  1. [59]
    In his reply submissions, Dr Joshi countered that he had received correspondence from Dr John Wakefield, Director-General, Queensland Department of Health, that stated that the amendments to the Hospital and Health Boards Regulation 2012 (Qld) effective from 15 June 2020 did not apply to Dr Joshi's employment arrangements.  That correspondence explained that the effect of the amendments was that all non-executive health service employees previously employed by a prescribed HHS will now be employed by the Director-General as the system manager of Queensland Health – but that "This change does not apply to you as a senior health service employee (Senior Medical Officer or Visiting Medical Officer)…"
  1. [60]
    In light of that, Dr Joshi argued that the Respondent's position that he is not employed by Children's HHS as an agency "would require an interpretation that is fundamentally different to the provision of Sections 74A and 74B of the HHB Act." These extracts have been reproduced below and I presume they have been referenced by Dr Joshi to demonstrate that a senior health service employee is one employed by the HHS rather than department and that fixed term employment is an option.  However, the significance of the inclusion was not fully elaborated in the Appellant's reply submissions.

Subdivision 2 Senior health service employees

74A Meaning of senior health service employee

  1. (1)
    A senior health service employee is a health service employee employed in a position prescribed by regulation as a senior health service employee position.
  1. (2)
    Without limiting the matters to which the Minister may have regard in deciding whether to recommend the making of a regulation under subsection (1), the Minister may have regard to the role, responsibilities and functions performed by persons employed in the position.

74B Basis of employment for senior health service employees

  1. (1)
    This section applies to a senior health service employee.
  1. (2)
    The employee's contract of employment must be entered into with—
  1. (a)
    for an employee of the department—the chief executive; or
  1. (b)
    for an employee of a Service—the health service chief executive.
  1. (3)
    The employee's contract of employment must be in writing and state each of the following—

 (a)  whether the contract is for a fixed term or an indefinite term;

  1. (b)
    if the contract is for a fixed term—the length of the term;
  1. (c)
    the employee's functions;
  1. (d)
    that the employee must meet any performance criteria stated in the contract;
  1. (e)
    the employee's classification level, and the remuneration to which the employee is entitled;
  1. (f)
    the period of notice of resignation or termination that is required to be given before the notice takes effect.
  1. [61]
    The argument that Children's HHS is not an agency - but rather Queensland Health is one agency for the purposes of the PS Act and TE Directive - is new and novel.  It was not a position advanced in the decision letter but has only emerged later in the Children's HHS's submissions. 
  1. [62]
    I have considered the filed material with respect to this recent argument, including Dr John Wakefield's correspondence (elaborated at paragraph [59] above) and Dr Lynne McKinlay's correspondence dated 10 January 2019 (filed 9 June 2021) that confirmed 'Children's HHS' to be Dr Joshi's employer[17] together with the relevant provisions of the PS Act, TE Directive and the Regulations.
  1. [63]
    As reproduced at paragraph [58] above, the TE Directive has application to three entities that constitute an 'agency' for these purposes.  The Children's HHS has noted that the Regulations define Queensland Health as the department (that is, cl 3.2 (a) above).  The various HHSs are not listed in Sch 1 of the PS Act either. 
  1. [64]
    However, the HHS does meet the definition of cl 3.2 (c) above.  Section 21 of the PS Act defines a public service office as (emphasis added):
  1. (a)
    an entity that schedule 1 states is a public service office; or
  1. (b)
    subject to section 23, another designated entity, or part of a designated entity, declared under a regulation to be a public service office.
  1. [65]
    Schedule 15 'Dictionary' of the Regulations define that term as:

declared public service office means an entity declared to be a public service office under section 3(1)(a).

  1. [66]
    Section 3 'Declared public service offices, their heads, applied provisions and applied rulings—Act ss 21 and 23' states that (emphasis added):
  1. (1)
    Schedules 1 to 13 state—
  1. (a)
    the entities declared to be public service offices under section 21(1)(b) of the Act; and

(b)  for each office—

(i) the person declared to be the head of the office under section 21(2)(b) of the Act; and

  (ii) the applied provisions under section 23(2)(a)(i) of the Act for the office; and

(iii) the applied provisions under section 23(2)(a)(ii) of the Act for the persons, other than public service employees, who are employed in the office; and

(iv) the rulings (each an applied ruling) about matters that apply, with all necessary changes, for a declared public service office and stated employees.

  1. (2)
    The application of an applied ruling for a Hospital and Health Service or Queensland Health is subject to division 3.
  1. [67]
    Going then to s 21(1)(b) of the PS Act, a public service office is defined as either (emphasis added):
  1. (a)
    an entity that schedule 1 states is a public service office; or
  1. (b)
    subject to section 23, another designated entity, or part of a designated entity, declared under a regulation to be a public service office.
  1. [68]
    The Regulations do declare a HHS to be a public service office in these terms (emphasis added):

Schedule 3 Hospital and Health Services and Queensland Health

1 Declared public service office

  1. (1)
    For a health service employee employed by a Hospital and Health Service, the Service is declared to be a public service office.
  1. (2)
    For a health service employee employed by Queensland Health, Queensland Health is declared to be a public service office.
  1. [69]
    Schedule 3, s 5 'Applied rulings' lists the applied rulings for all health service employees of a Hospital and Health Service or Queensland Health, including subsection "(q) temporary employment".
  1. [70]
    For those reasons, I find that Children's HHS is an "agency" for the purposes of the application of the TE Directive.  The PS Act and the TE Directive both apply to the Children's HHS.

Findings

  1. [71]
    I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [72]
    I have found that Mr Wood erred in his determination that Dr Joshi was not eligible for review of his temporary employment status with Children's HHS because he already held a permanent position with GCHHS.  Therefore, the 12 March 2021 decision that was based on that false premise could not be fair and reasonable.
  1. [73]
    With respect to the Children's HHS's later novel argument that the relevant "agency" was not Children's HHS - but was instead the Queensland Department of Health – I have also found that not to be the case. 
  1. [74]
    The decision maker has erred in law. That is patently unfair and unreasonable.
  1. [75]
    For that reason, the appeal must succeed. The issue then becomes determining the appropriate remedy.

Remedy

  1. [76]
    Dr Joshi submitted that he should be made permanent at 0.5 FTE with the Children's HHS.
  1. [77]
    In circumstances where I have found that the decision maker has effectively stopped short of engaging with the totality of the review process, I have determined that the appropriate remedy is to return the matter to the decision maker with a copy of this decision.[18]
  1. [78]
    A fresh review should be conducted, with reasons demonstrating full and thorough consideration of the mandatory criteria and the relevant factual circumstances, in accordance with the TE Directive and PS Act.
  1. [79]
    In light of Dr Joshi's most recent fixed term temporary employment contract expiry date of 11 July 2021, that further review is to occur within 14 days of this decision being released.  That may result in a different decision being made.  In the alternate, it would at least provide Dr Joshi the opportunity for a more fulsome consideration of the circumstances in any subsequent appeal.
  1. [80]
    As such, I order that the outcome of the review must be provided to Dr Joshi by 29 June 2021.

Consideration of the mandatory criteria - and the impact of the changed circumstances since Dr Joshi filed the Appeal

  1. [81]
    I have found that Dr Joshi is eligible to have his 0.5 FTE status as a temporary employee reviewed by Children's HHS. 
  1. [82]
    While I have ordered that the decision maker conduct a fresh review within 14 days, I would offer the following observations.
  1. [83]
    Clause 8.1 of the TE Directive contains the mandatory decision criteria for temporary employment conversions to permanent.  That is:
  • 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. [84]
    Clause 8.2 of the TE Directive provides 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. [85]
    Dr Joshi stated that he has demonstrated merit and that does not present any impediment to conversion to permanency.  That is not contradicted in the Children's HHS's submissions and in fact appears to be supported by the commentary included in two letters attached to the submissions.  That is, Dr Wakefield's correspondence states "I would like to sincerely thank you for your commitment, hard work and dedication to Queensland Health and to your local community, especially during our response to COVID-19."  Mr Wood's correspondence further noted "I would like to take this opportunity to thank you for the ongoing contribution you are making within the Division of Critical Care." 
  1. [86]
    Neither party has referred to any requirements of an industrial instrument that needs to be complied with in this case in the various submissions made in this matter.
  1. [87]
    Further, there could have been no previous decision made, or deemed to have been made, under s 149B of the PS Act relating to Dr Joshi during the period of his continuous temporary employment, due to that provision taking effect from 14 September 2020.
  1. [88]
    The question of whether there is a continuing need for Dr Joshi to be employed in the role, or a role which is substantially the same, will be worthy of some deeper exploration.
  1. [89]
    At the time Dr Joshi filed his appeal, his 0.5 FTE temporary contract was further extended with Children's HHS until 11 July 2021.  That is the changed circumstance that may warrant further consideration, as it appears to support the proposition of a continuing need for Dr Joshi's services.  The wording of Mr Wood's correspondence also pointed to this, where he stated (emphasis added) "…thank you for the ongoing contribution you are making…"  Those precise words do not invoke an impression that it is intended that Dr Joshi's contribution will imminently conclude.
  1. [90]
    Dr Joshi's submission filed 16 April 2021 includes his understanding that "the role is presently substantively vacant."  To be clear, that is not a requirement for conversion to take place.  He goes on to elaborate the increased need for his continued service for a variety of reasons, including extended absences on approved leave.  I have earlier noted the SMO/VMMO employee movement form – temporary filed on 4 May 2021 identifies the appointment reason as 'Backfill – Vacant Position' and the reason for vacancy as 'Backfill short term secondment'. 
  1. [91]
    In light of that, I would also provide the following observations regarding s 148(2)(a) of the PS Act, in circumstances where Children's HHS considers Dr Joshi to be backfilling in the role.  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. [92]
    I note that provision indicates only that employment on tenure may not be viable or appropriate if it is to fill a temporary vacancy arising because a person is absent for a known period.  While that is certainly one factor that may inform the Children's HHS's considerations of whether there is a continuing need for Dr Joshi to be employed in the role, it is not the exclusive consideration. 
  1. [93]
    Further, it may well be the case that those particular circumstances may have constituted reasons for the Children's HHS to initially employ Dr Joshi on a temporary employment contract.  However, after a period of meritoriously undertaking the role it may not be reasonable to rely on that indefinitely in the event that the role presently occupied by Dr Joshi is found by the Children's HHS to be continuing.
  1. [94]
    It is also relevant to note that s 149A(2)(a) requires consideration of the person's role or a role that is substantially the same.  Care must be taken not to stop short of considering both of the two pathways prescribed in that mandatory criteria simply on the basis that someone may be returning to the role. 
  1. [95]
    With respect to the second pathway to conversion, the prescribed definition of 'the same role' in the previous TE Directive 08/17 was deliberately broad and captured "…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…"   I note that no definition of 'the same role' is provided in the current TE Directive, however in the absence of the term being otherwise contemporaneously defined, one may rely on the definition in the previous TE Directive.
  1. [96]
    In Katae, Crow J considered the definition of "same role" in the 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.

  1. [97]
    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. [98]
    With that in mind, the Children's HHS's future considerations of this second pathway to conversion would sensibly commence with first defining the role and a role which is substantially the same.  The demonstrated analysis of the capability requirements of the role performed by Dr Joshi over the last two years, and the recount of specific search efforts undertaken to ascertain whether there were other roles that may be suitable to convert him into, would then necessarily be chronicled by the decision maker in the conduct of the fresh review.

Orders: 

  1. [99]
    I make the following orders:

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

  1. That the decision of Mr Steve Wood dated 12 March 2021 is set aside, and the matter is to be returned to him along with a copy of this decision.
  1. That the employment review prescribed in Directive 09/20 is to be re-conducted according to law, including the provision of adequate reasons regarding each of the mandatory criteria prescribed in that Directive.
  1. The outcome of the review must be provided to Dr Joshi by 29 June 2021.

Footnotes

[1] The correspondence containing the conversion decision was from Mr Steve Wood, Divisional Director, Critical Care, Children's HHS (the decision maker) and was received on 13 March 2021.

[2] Correspondence to Dr Rahul Joshi from Mr Steve Wood dated 12 March 2021, page 1.

[3] Ibid.

[4] Correspondence to Dr Rahul Joshi from Mr Steve Wood dated 12 March 2021, page 1.

[5] Respondent's submissions filed 16 April 2021, page 1, [4]-[6].

[6] Respondent's submissions filed 16 April 2021, page 2, [11]-[16].

[7] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[8] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[9] Ibid; s 567(2).

[10] Respondent's submissions, filed 16 April 2021, page 2, [14].

[11] Respondent's submissions, page 1, [8].

[12] Directive 09/20 Fixed term temporary employment, cl 1 and cl 4.

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

[14] Unpublished Decision PSA/2018/22 (made under the pre-amendment PS Act), Power IC, QIRC, Delivered 22 November 2019, [32] – [35].

[15] [2021] QIRC 152.

[16] [2021] QIRC 142.

[17] "Letter of Offer – Temporary Senior Medical Officer Engagement" correspondence from Dr Lynne McKinlay, Acting Executive Director Medical Services, Children's HHS to Dr Joshi dated 10 January 2019, page 1 references 'Employer' as CHHS and page 2 references 'Gross Salary' as "…payable as part of your engagement with CHQ HHS."

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

Close

Editorial Notes

  • Published Case Name:

    Joshi v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Joshi v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 212

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    15 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
Benson v State of Queensland (Department of Education) [2021] QIRC 152
2 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Goodall v State of Queensland [2018] QSC 319
3 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Cite 3 - [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
Royle v State of Queensland (Department of Health) [2021] QIRC 142
2 citations
Jump To
Cite 1 - [2021] QIRC 142
Cite 2 - [2021] QIRC 142

Cases Citing

Case NameFull CitationFrequency
Burchall v State of Queensland (Queensland Health) [2025] QIRC 1832 citations
Chan v State of Queensland (Queensland Health) [2021] QIRC 2432 citations
Johnstone v State of Queensland (Queensland Health) [2021] QIRC 4333 citations
Morgan v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 1322 citations
1

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.