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Murphy v State of Queensland (Queensland Health)[2021] QIRC 213

Murphy v State of Queensland (Queensland Health)[2021] QIRC 213

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murphy v State of Queensland (Queensland Health) [2021] QIRC 213

PARTIES:

Murphy, Kerri

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/103

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

15 June 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 8 April 2021 and Respondent's written submissions filed on 7 May 2021

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
  1. Pursuant to s 580(5) of the Industrial Relations Act 2016, I direct that the document exhibited to the Appellant's written submissions entitled 'SCHHS Digital Health Strategy 2021 - 2024 Update' be withheld from release or search.

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – appellant temporarily employed in position of Principal Project Manager, classification AO7 – review of appellant's fixed term temporary employment pursuant to s 149B of the Public Service Act 2008 – decision that appellant would continue as a fixed term temporary employee – appeal against decision – whether decision was fair and reasonable – decision fair and reasonable – decision confirmed

LEGISLATION:

Acts Interpretation Act 1954, s 27B

Directive 08/17 Temporary employment, cl 9.6

Directive 09/20 Fixed term temporary employment, cl 8

Directive 13/20 Appointing a public service employee to a higher classification level, cl 6.2

Industrial Relations Act 2016, s 539, s 562C, s 564 and s 580

Public Service Act 2008, s 149, s 149A, s 149B and s 149C

CASES:

Davies v State of Queensland (Queensland Health) [2021] QIRC 090

Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232

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

Reasons for Decision

Introduction

  1. [1]
    Ms Kerri Murphy is presently employed by the State of Queensland. From 1 January 2019 to 5 April 2021, Ms Murphy was employed on a fixed term temporary basis in the Sunshine Coast Hospital and Health Service ('the Health Service'). In particular, between 28 September 2020 and 28 February 2021, Ms Murphy was employed in the position of Principal Project Manager ('PPM') in the Digital Healthcare Portfolio ('DHP') section of the Health Service, classification AO7 ('the temporary PPM position'). According to the submissions of the Health Service, while Ms Murphy remains employed by the State of Queensland, on a fixed term, temporary basis, her present employment is in the SouthWest Hospital and Health Service.
  1. [2]
    In February 2021, Ms Murphy's fixed term temporary employment was reviewed by the Health Service pursuant to s 149B of the Public Service Act 2008 ('the PS Act'). By letter dated 16 February 2021, Mr Colin Anderson, Executive Director People and Culture of the Health Service, informed Ms Murphy that she would not be converted to permanent employment and that she would continue as a fixed term temporary employee ('the decision').
  1. [3]
    By appeal notice filed on 17 March 2021, Ms Murphy, pursuant to ch 7 of the PS Act, appealed against the decision. At the time Ms Murphy gave her appeal notice to the Industrial Registrar, Ms Murphy was temporarily employed in an AO3 position within the Health Service.
  1. [4]
    The parties exchanged written submissions in accordance with Directions Orders dated 18 March 2021 and 21 April 2021.
  1. [5]
    The Health Service submitted that because the decision was provided to Ms Murphy on 23 February 2021 and because she did not file her appeal until 17 March 2021, her appeal was started one day outside the 21 day limitation period.[1] The Health Service submitted that because Ms Murphy has not provided any submissions or evidence to identify any reasonable ground for extending the time limit, the appeal should be dismissed. While it is true that Ms Murphy did not apply for an extension of time and she did not provide any submissions in support of extending the time for her to start her appeal to 17 March 2021, the Health Service has made submissions about the merits of Ms Murphy's appeal. In the circumstances, there is no prejudice to the Health Service in defending the decision. As a consequence, pursuant to s 564(2) of the Industrial Relations Act 2016 ('the IR Act'), I allow Ms Murphy's appeal to be started on 17 March 2021.
  1. [6]
    Pursuant to s 539(c) of the IR Act, no hearing was conducted.
  1. [7]
    The question for my determination is whether the decision, and the decisionmaking process, was fair and reasonable.[2] That question requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').
  1. [8]
    For the reasons that follow, the decision was fair and reasonable.

Background

  1. [9]
    Attachment 1 to the Health Service's submissions set out Ms Murphy's history of employment in the Health Service. That attachment provided:

Dates

Position

Reason for temporary engagement

01.01.2019 to 31.03.2019

Senior Project Officer (AO6), Temporary, Project Control Team, Digital Healthcare Portfolio (DHP)

Administrative project support for the Temporary Project Control Team

01.04.2019 to 26.07.2019

Project Control Manager (AO8), Temporary, Project Control Team, DHP

Backfill temporary incumbent on long service leave

27.09.2019 to 18.08.2019

Senior Project Officer (AO6), Temporary, Project Control Team, DHP

Administrative project support for the Temporary Project Control Team

19.08.2019 to 31.12.2019

Project Control Manager (AO8), Temporary, Project Control Team, DHP

Backfill temporary incumbent on secondment

01.01.2020 to 09.02.2020

Program Manager (AO8), Temporary, Digital Minor ICT Projects and Intake Program, DHP

Managing the delivery of new minor ICT projects and the delivery of support services

10.02.2020 to 23.02.2020

ICT Delivery Director (DSO2), Temporary, ICT Management Team, DHP

Backfill temporary incumbent on sick leave

24.02.2020 to 27.09.2020[3]

Program Manager (AO8), Temporary, Digital Minor ICT Projects and Intake Program, DHP

Managing the delivery of new minor ICT projects and the delivery of support services.

28.09.2020 to 31.12.2020

Principal Project Manager (AO7), Temporary, Digital Foundations Program, DHP

Backfill temporary incumbent on maternity leave and provide administrative support for the closure of the Blueprint Review Project which concluded on 31 December 2020

01.01.2021 to

28.02.2021

Principal Project Manager (AO7), Temporary, Digital Healthcare Digital Solutions, DHP

This is the Temporary PPM position which Ms Murphy was in at the time of review.

Administrative support for the closure of the ieMR Local Interface Remediation Project which concluded on 5 February 2021; and Front End Speech Recognition Pilot Project Phase 1 which concluded on 28 February 2021

01.03.2021

to

07.03.2021[4]

Administrative Officer (AO2), Casual, Administration Relief Pool

Backfill substantive vacancies and genuine temporary roles across SCHHS

08.03.2021

to

05.04.2021

Administration Officer (AO3), Temporary, COVID Vaccination Program

Temporary role supporting Temporary COVID Vaccination Program

06.04.2021

to

03.10.2021

Ms Murphy commenced working for another Health Service (South West Hospital and Health Service) on a temporary basis as a Senior Quality Officer (AO5).

The reason for this temporary engagement is unknown to SCHHS

The decision

  1. [10]
    In the decision, Mr Anderson relevantly stated:

I refer to the email of 20 January 2021 about the review of your fixed term temporary employment with the Sunshine Coast Hospital and Health Service (SCHHS).

Key points:

  • You are not being converted to permanent employment and will continue as a fixed term temporary employee at this time.
  • The reason for this decision is that you are a fixed term temporary employee in a temporary position where the ongoing funding is uncertain.
  • Additional information about the decision making framework and your appeal rights is at the end of this letter.

Conversion review decision

I wish to advise that your employment will remain as fixed term temporary at this time. You will continue in the role of Principal Project Manager until 28 February 2021Murphy v State of Queensland (Queensland Health) [2021] QIRC 213

Considerations when making the decision

I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment directive 09/20 and your employment history, including any previous conversion review decisions.

There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below.

Merit

Thank you for your performance in the role. You have demonstrated over this time that you satisfy the merit requirements for the role.

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, the reason for this decision is that you are a fixed term temporary employee in a temporary position where the ongoing funding is uncertain. The Digital Healthcare Portfolio is a temporary organisational structure. This portfolio is 100% funded by capital associated with major infrastructure projects. There is no approved Digital Healthcare Portfolio Plan (including funding) beyond June 2021. It is acknowledged that the Digital Health Strategy 2021 to 2024 has been developed and is under consultation, however the plan remains unfunded at this time and therefore the ongoing nature is uncertain.

Further review

A subsequent review of your temporary employment status will be undertaken after each additional year of continuous service in accordance with section 149B(4)(b) of the Public Service Act 2008 (Qld) and the Public Service Commission Directive - Fixed Term Temporary Employment (09/20).

Ms Murphy's grounds of appeal and submissions

  1. [11]
    In her appeal notice, Ms Murphy relevantly contended:

My review period expired on 16 February. Advice was provided to the SCHHS HR that the portfolio finishes June 2021 with no ongoing need for my project manager (PM) role or similar/substantially the same role & uncertain funding. On 17 February however a request was made to extend the portfolio to June 2022, subsequently approved, projects & resources approved for extension, and additional project identified. I believe this demonstrates ongoing requirements for project manager/similar roles and I believe the argument regarding uncertain funding is no different to the following -

https://www.forgov.qld.gov.au/file/31601/download?token=s4Zx773V[5]

The SCHHS has developed a Digital Health Strategy. It is foreseeable that a PM/similar roles will be required to meet the genuine operational business needs of this strategy. I do not believe this was taken into consideration as part of my review. SCHHS HR advised they only considered feedback from the Director, Digital Healthcare Portfolio & reviewed permanent roles that were being recruited at the time, nothing further.

On 7 Feb I applied for a temporary PM role after my request for the role to be considered as part of my review was denied. I believe the recruitment of the role demonstrated an ongoing need for the SCHHS to employ PM s [sic] however was denied as the role was not of a permanent nature. Subsequently I applied for the role, was the successful applicant. However on 22 Feb the role was withdrawn, it was considered high risk to introduce a new resource at that time. The PM requirement however remained. I do not believe this was a fair decision in relation to my review and believe a fair review in January would have negated any need for the role to be withdrawn.

I ask as part of this appeal, fair consideration be given to the matter of funding, that it shouldn t [sic] be considered in isolation from other factors. The SCHHS runs digital hospitals and there will always be operational requirements for project activity for ICT systems, validated by the HHS s [sic] current recommendations to implement a permanent Digital Health structure with Project Managers to deliver ongoing project activity. I also ask it be considered that multiple temporary project roles where a resource moves from project to project, be factored into this decision, that it is reasonable that an employee may be of permanent tenure moving between multiple temporary roles. Otherwise this restricts project staff who are long term temporary employees who have moved from project to project, to ever have the opportunity to be considered for convers [sic]

  1. [12]
    Having regard to cl 8.1 of the Directive, Ms Murphy submitted that, there was a need for her to be employed in the role, being that of a Project Manager, classification AO7, or a role which was substantially the same. This was because:
  • at the time of her review, between 20 January 2021 and 16 February 2021, she was performing the role of Project Manager, classification AO7, to pilot the implementation of a new Information and Communications Technology ('ICT') solution for the Health Service;
  • the end date for that project was extended for three months on 25 February 2021 '… with an agreement to further assess additional phases for the rollout of the functionality into operations';
  • while the continuing need for a Project Manager was 'apparent and acknowledged', her employment was not extended with the portfolio and instead, the project management was shared between other temporary project resources in addition to their existing project workloads and to operational staff;
  • it was her understanding that an approved DHP plan was in place until 30 June 2022 and that there were pipeline project activities to support an extension of work for DHP until June 2022, such that Ms Murphy understood:

[T]he approved plan includes extending existing projects and plans for additional project work, all of which will require project manager resources. I believe this demonstrates the continual need for the SCHHS to engage project manager roles or roles that are substantially the same.

  • on 1 February 2021, there was an advertised vacancy, which was later withdrawn, for the fixed term temporary position of Project Manager, classification AO7, which Ms Murphy contends was the same as her Project Manager, classification AO7, role, or was substantially the same as that role, with the fixed term ending on 30 June 2021 with a possible extension until 30 November 2021, which Ms Murphy submitted demonstrated an ongoing need for a Project Manager in the Health Service which should have been considered as part of her review;
  • the Health Service's Strategic Plan 2020-2024:
  1. outlines strategic priorities and objectives demonstrating a commitment to '… embracing technology for digital future, to optimise the advantages of digital healthcare, to explore technology opportunities and to foster innovation'; and
  1. refers to the above priorities and objectives being achieved through the 'development of an HHS Digital Strategy'; and
  • the Health Service has developed a digital strategy and it is Ms Murphy's understanding that:

[T]his resource need has in fact already been recognised in proposed organisational changes that illustrate the need for permanent project management resources as part of the Digital Healthcare Portfolio, known at the time of my review. I do not believe any of the abovementioned was taken into consideration as part of my review [sic]

  1. [13]
    Ms Murphy concluded by submitting that:
  • she was unclear on the extent of opportunities that were assessed during her review and that she has '… concerns that opportunities broadly across SCHHS' were not considered because her interpretation of the advice she received from the Human Resources unit was that it was only considering her conversion to permanency for roles that were:
  1. part of the DHP;
  1. of a permanent nature; and
  1. being advertised at the time;
  • contrary to what was stated in the decision, the Directive does not make any reference to ongoing funding being a matter that determines conversion of a temporary employee to permanency; and
  • as she submitted earlier, it was her understanding that the DHP had been extended to June 2022 with approved funding.

The Health Service's submissions

  1. [14]
    The Health Service submitted that:
  • it has no continuing need for Ms Murphy's employment in the temporary PPM position because the projects supported by that role were for a defined scope of work which have now concluded and, accordingly, the temporary PPM position ceased upon the projects' conclusion;
  • while Ms Murphy was correct, in her submissions, that the decision was made in February 2021 to move to Phase 2 of the Front End Speech Recognition Pilot Project, it disputed her submission regarding the need for a dedicated project manager for Phase 2, because a decision was made that Phase 2 of the project would be handed back to the business to manage as business as usual, such that no dedicated project management support was required; and
  • the DHP is currently a temporary portfolio, and all current projects are funded on a discrete basis out of capital expenditure associated with major infrastructure projects, such that of the two program streams within DHP (Digital Foundations and Digital Solutions), there are:
  1. three projects in the Digital Foundations stream that are funded which are anticipated to run until June 2021, September 2021 and December 2022; and
  1. two projects in the Digital Solutions stream, both anticipated to run until 30 June 2021; and
  • any future works beyond these dates remain unapproved, unfunded and uncertain.
  1. [15]
    The Health Service then submits:
  1. There are currently five (5) approved temporary PPM positions that are filled with ICT staff with relevant ICT domain knowledge and experience as well as PPM skill sets to deliver the five (5) abovementioned projects. There is no requirement for additional PPM positions beyond this. Ms Murphy's previous PPM roles within DHP predominately focused on low complexity and continuous improvement projects. The incumbent PPM's have a more demonstrable level of experience and ICT domain knowledge relevant to the abovementioned projects. The five (5) current temporary positions are funded on a discrete basis out of capital expenditure and will cease upon their required need within the project lifespan.
  1. At paragraph 2.3 (and Attachment 2) of her submissions, Ms Murphy refers to an advertisement for a temporary PPM for the Temporary COVID Vaccination Hub. The COVID vaccination roll-out is a rapidly developing program, which resulted in an Executive decision that this temporary PPM position was no longer required after two weeks.
  1. At paragraph 3 of her submission, Ms Murphy submits that future service delivery priorities and planning must also be taken into account when considering whether there is a continuing need for Ms Murphy to be employed in substantially the same role. In particular, Ms Murphy refers to the SCHHS Strategic Plan 2020-2024 and subsequent Digital Health Strategy 2021 to 2024.
  1. Whilst a draft Digital Health Strategy 2021 to 2024 has been developed, it is still subject to consultation, and the strategy remains unapproved and unfunded at this time. A lack of certainty regarding ongoing funding is a relevant consideration,[6] although not the only consideration in determining ongoing need.
  1. The SCHHS will be required to review and determine what resources are needed to support the SCHHS's Digital Health Strategy upon approval. The SCHHS has a business as usual (BAU) ICT team, in addition to the temporary DHP team. The BAU ICT team supports the continuing ICT need. The DHP supports discrete projects where the resources required fluctuate depending on the stage of project, approvals and funding. Any review of resources required to deliver on an approved Strategy will consider both the BAU ICT team and DHP team and may result in an organisational restructure. As such, there is currently no certainty about the future need for either permanent or temporary ICT PPM positions within SCHHS.
  1. On 25 January 2021, Ms Murphy requested consideration for conversion to permanency in the following positions; Business Advisor Research (AO5) and Administration Coordinator (AO4) Child Protection Liaison Unit Reporting. This request was considered, but these positions were not the same or substantially the same as the Temporary PPM Position held by Ms Murphy at that time.[7] This was communicated to Ms Murphy.
  1. The SCHHS submits that there is no continuing need for Ms Murphy to be employed in a substantially the same role for the above reasons.
  1. [16]
    By way of conclusion, the Health Service submitted that if the Commission decided that there was an ongoing need for employment in the temporary PPM position, or a role which is substantially the same, there were genuine operational reasons which meant that it was not viable or appropriate to convert Ms Murphy's employment to permanent employment in accordance with s 149A(3) of the PS Act and cl 8.2 of the Directive. This is because once there is an approved Digital Health Strategy, there will be a need to review resources required to support delivery which will consider both the BAU ICT team and the temporary DHP team. As such, there is currently no certainty about the future need for either permanent or temporary ICT PPM positions within the Health Service.
  1. [17]
    In those circumstances, the Health Service submits that it would not be appropriate to convert Ms Murphy's employment given that there is no certainty of funding for the future need for ICT PPM positions within the Health Service.

The decision is fair and reasonable

The PS Act

  1. [18]
    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. (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. [19]
    Section 149A of the PS Act deals with the circumstance where a fixed term temporary employee or a casual employee, who has been continuously employed in the same department for one year or more, asks the chief executive to decide whether to continue the employee's employment according to the terms of the employee's existing employment or offer to convert the employee's employment basis to employment as a general employee on tenure or a public service officer.[8]
  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]
    Reading sub-ss 149A(2) and (3) of the PS Act together and in context, the purpose of s 149A(2) is to set out the matters of which the chief executive must be satisfied before he or she is required, pursuant to s 149A(3), to offer to convert the relevant person's employment basis to employment as a general employee on tenure or a public service officer. The transitive verb 'considers' in s 149A(2)(a) relevantly means: 'to regard as or deem to be'.[9] Thus, if a chief executive is of the opinion that there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role, and the employee is eligible for appointment having regard to the merit principle (and where relevant, there is compliance with any requirements of an industrial instrument),[10] the chief executive must decide to make a conversion offer.
  1. [23]
    The only circumstance where a chief executive officer can decide not to make a conversion offer is where the chief executive forms the opinion that it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [24]
    As stated in Morison v State of Queensland (Department of Child Safety, Youth and Women)[11] in respect of the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level:

[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.

[40] The phrase '… genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

  1. [25]
    Similar considerations apply in the application of s 149A(3) of the PS Act (and, as referred to below, in the application of cl 8.2 of the Directive). The question is whether or not it is viable or appropriate to offer to convert a fixed term temporary employee having regard to, for example, authentic requirements for the effective, efficient and appropriate management of the public resources of the department or the authentic planning of the human resources of the department.

The Directive

  1. [26]
    The 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.

8.4  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,[12] 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. [27]
    I will deal with each of the issues raised by Ms Murphy in her submissions in turn.

The approved DHP plan until 30 June 2022

  1. [28]
    The Health Service submitted that there is no continuing need for Ms Murphy's employment in the temporary PPM position because the projects supported by that role have now concluded. Such a contention is readily apparent from Ms Murphy's chronology of employment referred to earlier in these reasons.
  1. [29]
    Further, the Department submitted that in respect of the DHP, of the five currently funded projects within the DHP, with the last anticipated to run until December 2022, there are presently approved temporary PPM positions occupied by staff for each of those projects and that there is no requirement for additional PPM positions beyond that.
  1. [30]
    As a consequence, it seems to me, that despite the continued approval for some projects within the DHP, there is no vacancy available in respect of which Ms Murphy could be appointed either on a temporary or permanent basis.

The advertised Project Manager, classification AO7, vacancy that was withdrawn

  1. [31]
    The Department submitted that this referred to an advertisement for a temporary PPM for the Temporary COVID Vaccination Hub, which was a rapidly developing program which resulted in an executive decision that the position was no longer required after two weeks. That submission seems to coincide with Ms Murphy's appeal notice and submissions that the position was advertised on 1 February 2021 and was withdrawn on 22 February 2021. Ms Murphy submitted that that role demonstrated an ongoing need for a Project Manager within the Health Service. I cannot accept that submission.
  1. [32]
    First, the position itself was temporary. This is clearly borne out of having regard to the attachment to Ms Murphy's submissions, being an email dated 1 February 2021, where reference was made to this position, being a temporary PPM position in respect of one of six coronavirus vaccination hubs set up across Queensland.
  1. [33]
    Secondly, on the Health Service's submissions, on an immediate review of that program, it was determined that the position was no longer required.
  1. [34]
    For these reasons, I cannot accept that the advertisement of that position tends to prove that there is a demonstrated ongoing need for a PPM, classification AO7, within the Health Service.

The development of the Digital Health Strategy

  1. [35]
    The Health Service submitted that the Digital Health Strategy has only been developed in draft, is still subject to consultation and remains unapproved and unfunded at the present time. I accept the Health Service's submissions that a lack of certainty regarding ongoing funding is a relevant consideration. Such a position is consistent with other decisions of this Commission concerning reviews of temporary employees.[13] That is, in determining whether there is a continuing need for someone to be employed in an appellant's role or a role that is substantially the same as an appellant's role, whether there is funding for the role is a relevant consideration.
  1. [36]
    Ms Murphy's submissions about this issue involves speculation about not only whether the Digital Health Strategy will be confirmed, but whether, as a consequence of its implementation, there will be a continuing need for a PPM position, classification AO7, or a role that is substantially the same. Speculation about such funding for work and, as a consequence, the need for particular roles, is also a relevant consideration.[14] Such speculation about potential funding for roles does not, in my view, render the Health Service's decision to be other than fair and reasonable.
  1. [37]
    In addition, Ms Murphy's reference to the Public Service Commission's report of the 2017 appeal case, referred to earlier in these reasons, does not assist Ms Murphy's case. As I read the report of that decision, it was one very much limited to its facts. The employee, in that case, had been continuously engaged within the agency for seven years. The agency argued that it could not convert the employee's temporary employment to permanent because the position occupied by the employee was subject to shortterm external funding. The reason why the member of the Commission set aside the agency's decision and substituted a decision to convert the employee to permanent employment was because it rejected the agency's argument that the funding for the position was external on the basis that the funding actually came from another Queensland government agency.
  1. [38]
    In other words, the case is not authority for the proposition that the uncertainty of funding for a position is not a relevant consideration in determining whether there is a continuing need for someone to be employed in an appellant's role or a role that is substantially the same as the appellant's role.

The alleged failure of the Health Service to consider other positions outside of DHP

  1. [39]
    The Health Service submitted that on 25 January 2021, during the period of her review, Ms Murphy requested consideration for conversion to permanency in two positions; Business Advisor Research, classification AO5, and Administration Coordinator, Child Protection Liaison Unit Reporting, classification AO4. Ms Murphy did not refer to that request in her submissions. The Department submitted that the request was considered but the positions were not the same or substantially the same as the temporary PPM position.
  1. [40]
    In Monavvari v State of Queensland (Queensland Health, eHealth),[15] Industrial Commissioner Dwyer stated, of the phrase '… a role that is substantially the same' as that in cl 9.6a) of the, now repealed, Directive 08/17 Temporary employment:
  1. [36]
    With respect to the second limb i.e. 'a role that is substantially the same' I do not consider that 'substantially the same' is necessarily synonymous with 'the same classification level' but I would consider that to be, at the very least, a compelling characteristic of sameness. I can readily anticipate the objections likely to emerge if decision makers converted employees who had been working for two or more years at a classification level of e.g. AO5 to e.g. a permanent AO3 role. Notwithstanding this may suit Mr Monavvari, I can imagine it would be controversial for many other employees.
  1. [37]
    Ultimately, the test of where a role is 'substantially the same' will turn on the individual facts of each matter and the duties and responsibilities of each role.
  1. [41]
    I agree with Industrial Commissioner Dwyer's statements.
  1. [42]
    In the present case, the Health Service did not provide the details of the other two positions identified by Ms Murphy. Despite this, it seems to me that not only having regard to the classification levels of the positions but also to the titles of the positions, they could not reasonably be considered to be roles that are substantially the same as the temporary PPM position occupied by Ms Murphy at the time of her review.

Genuine occupational requirements

  1. [43]
    For the reasons I have given above, I cannot find that the decision was not fair and reasonable. On the material before me, there was no continuing need for someone to be employed in Ms Murphy's temporary PPM role or a role that was substantially the same as that role.
  1. [44]
    In case I am wrong about that, I will also consider the Department's submissions about the application of s 149A(3) of the PS Act and cl 8.2 of the Directive. Those provisions are to the effect that if there is a continuing need for the person to be employed in the role or a role which is substantially the same, then the chief executive of a department must decide to offer to convert the person's employment to permanent employment unless it is not viable or appropriate having regard to the genuine operational requirements of the department.
  1. [45]
    The Department submitted that once there is an approved Digital Health Strategy, there would need to be a review of resources required to support the delivery of that strategy which will consider both the BAU ICT team and the temporary DHP team with the result being that there is currently no certainty about the future need for either permanent or temporary ICT PPM positions within the Health Service. As a consequence, the Health Service submitted that it would not be appropriate to convert Ms Murphy's employment given that there is no certainty of funding for the future need of ICT PPM positions within the Health Service.
  1. [46]
    That submission makes logical sense. The present inability for the Health Service to be certain about its need for permanent ICT PPM positions strongly suggests that it is not viable or appropriate to permanently appoint Ms Murphy to a PPM position, classification AO7, because there is not an authentic need, having regard to the effective, efficient and appropriate management of the Health Service, to do so.
  1. [47]
    The Health Service referred to the fact that Ms Murphy attached to her submissions the Health Service's Digital Health Strategy Update which, it submitted, was a confidential document which has not been made public and remains unapproved.
  1. [48]
    The Health Service requested that, in making this decision, I do not directly refer to the specifics of any potential future projects or strategies in my reasons for decision. Apart from paraphrasing the Health Service's submissions about the relevant effect of the draft Digital Health Strategy 2021 to 2024, I have not. To ensure the confidential nature of that document I will, pursuant to s 580(5) of the Act, direct that the document exhibited to Ms Murphy submissions being the Health Service's 'Digital Health Strategy 2021  2024 Update' be withheld from release or search absolutely.

Conclusion

  1. [49]
    The question in this appeal was whether the decision, not to convert Ms Murphy to permanent employment, was fair and reasonable.
  1. [50]
    For the reasons given, the decision was fair and reasonable.

Orders

  1. [51]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
  1. Pursuant to s 580(5) of the Industrial Relations Act 2016, I direct that the document exhibited to the Appellant's written submissions entitled 'SCHHS Digital Health Strategy 2021 - 2024 Update' be withheld from release or search.

Footnotes

[1] Industrial Relations Act 2016 s 564(1) and s 564(3)(d).

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [3]-[7].

[3] In relation to this position, the Health Service submitted that the Program Manager and the Digital Minor ICT Projects and Intake Program ceased on 27 September 2020, as there was no continuing need for that position program within the Digital Health Portfolio.

[4] The Health Service submitted that although Ms Murphy has now commenced in a role with another Health Service (the South-West Hospital and Health Service), she remains in the Health Service's Administration Relief Pool.

[5] That link is an overview, produced by the Public Service Commission, of a July 2017 public service appeal. It relevantly stated:

Overview

This is a decision about a refusal to convert a temporary employee to permanent employment under temporary employment directive 20/10.

A temporary employee, who had been continuously engaged within their agency for seven years, appealed the agency’s decision not to convert the employee to permanent employment. The agency advised that they could not convert the employee’s position to permanent because the position was subject to short-term external funding.

In appealing the agency’s decision, the employee argued that:

  • the role had previously been funded as a permanent full-time position with 100% external funding;
  • their experience and knowledge could be applied to different projects; and
  •  funding through another Queensland Government agency should be considered differently to funding from an industry body.

The agency argued that it did not receive base funding for the employee’s position and relied on funding from another Queensland Government agency. Funding for the position in question was provided under a Memorandum of Understanding that continued for approximately another 2 years. The agency also argued that practice of converting an employee to permanent employment when it relied on short term and external funding arrangements, if applied to a large number of staff in a similar position, exposed the agency to considerable risk with the potential to overcommit the agency beyond responsible funding management practices.

Decision

The IRC member set aside the agency’s decision and substituted a decision to convert the employee to permanent.

The IRC member noted that to consider funding from another Queensland Government agency as 'external' would mean that funding from Queensland Treasury to any government department or agency could also be considered external, leaving limited opportunities for temporary employees to be converted to permanent.

The IRC member did not accept the agency's argument that to allow conversion of this employee would mean that the agency would have to convert all its temporary employees because the circumstances of each employee are different.

Implications for agencies

Agencies should be mindful that a history of ongoing funding may be considered as indicative of an ongoing requirement for the role.

Agencies should consider the situation specific to each temporary employee when conducting a review to determine whether the employee should be converted to permanent.

Funding from other Queensland Government agencies is not likely to be considered an uncertain funding source.

[6] Citing Davies v State of Queensland (Queensland Health) [2021] QIRC 090 ('Davies'), [45] (Industrial Commissioner Pidgeon).

[7] Citing Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232 ('Monavvari'), [36]‑[37] (Industrial Commissioner Dwyer).

[8] Public Service Act 2008 s 149(1), s 149(2) and s 149(3).

[9] Macquarie Dictionary (7th ed, 2017) 'consider' (def 2).

[10] Public Service Act 2008 s 149A(2)(b).

[11] Morison (n 2).

[12] Section 27B of the Acts Interpretation Act 1954 provides:

27B Content of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also-

  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.

[13] See for example Davies (n 6), [45] (Industrial Commissioner Pidgeon).

[14] Ibid.

[15] Monavvari (n 7).

Close

Editorial Notes

  • Published Case Name:

    Murphy v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Murphy v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 213

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • 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.

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