Walters v State of Queensland (Queensland Health)
[2021] QIRC 219
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- Unreported Judgment
- Walters v State of Queensland (Queensland Health)[2021] QIRC 219
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Walters v State of Queensland (Queensland Health)[2021] QIRC 219
Walters v State of Queensland (Queensland Health)[2021] QIRC 219
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Walters v State of Queensland (Queensland Health) [2021] QIRC 219 |
PARTIES: | Walters, Jordan (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2020/393 |
PROCEEDING: | Public Service Appeal – Conversion Decision |
DELIVERED ON: | 17 June 2021 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: |
|
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where Appellant applied to convert from casual to permanent status – where Respondent relied on incorrect Directive – where the Respondent did not rely on material facts and information – consideration of genuine operational requirements Directive 01/17: Conversion of casual employees to permanent employment [superseded] Directive 08/20: Casual employment, cl 5.2, cl 6.1, cl 7, cl 8 Financial Accountability Act 2009 (Qld), s 61 Financial Accountability Regulation 2019 Financial and Performance Management Standard 2019, s 11 Hospital and Health Boards Act 2011 (Qld), s 19(2) Industrial Relations Act 2016 (Qld), s 562B Public Service Act 2008 (Qld), s 25, s 98, s 147, s 148A, s 149B, s 197 Public Service and Other Legislation Amendment Act 2020 (Qld) |
CASES: | Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Mr Jordan Walters appeals a decision of the State of Queensland (Queensland Health), Wide Bay Hospital and Health Service ("Queensland Health") not to convert Mr Walters employment from casual to permanent.
- [2]Mr Walters is employed as a casual (OO2) Operational Services Officers (Porter) at the Hervey Bay Hospital.
- [3]On or about 28 September 2020, Mr Walters filed a request to have his employment converted from casual to permanent. On that occasion, Mr Walters made the request mistakenly pursuant to Directive 01/17: Conversion of casual employees to permanent employment ("Directive 01/17").
- [4]Further, Queensland Health perpetuated the error made by Mr Walters and purportedly conducted a review and issued a decision in accordance with Directive 01/17.
- [5]This was erroneous as from 25 September 2020, Directive 01/17 was superseded by Directive 08/20: Casual employment ("Directive 08/20").
- [6]The decision issued by Queensland Health was one in which the decision maker determined not to convert Mr Walters' employment status to permanent under Directive 01/17 ("the decision").
- [7]Despite the decision referencing Directive 01/17, it appeared to take into account mandatory criteria required when considering a request for a review pursuant to Directive 08/20. Accordingly, on the material before me, I am able to assess the appeal by reference to the decision as the decision maker appears to have at least considered the matters required to be considered pursuant to Directive 08/20.
- [8]Further, I note that the submissions filed by each of the parties, refers to Directive 08/20 and relevantly the appeal notice filed by Mr Walters also references Directive 08/20.
- [9]The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ("PS Act"), which provides than an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("IR Act") by the Queensland Industrial Relations Commission.
- [10]Sections 562B(2) and (3) of the IR Act, which commended operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
- [11]As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 7, Pt. 1 of the PS Act is not to be by way of re-hearing[3] but, rather, involves a review of the decision arrived at and the decision making process associated with it.[4]
- [12]For the reasons contained herein, I have determined that the decision was not fair or reasonable.
The decision
- [13]The decision was issued by Ms Debbie Carroll, Chief Executive of the Wide Bay Hospital and Health Service on 17 November 2020. The decision was in the following relevant terms:
…
Conversion review decision
In accordance with the Directive, a review of your employment has been undertaken to assess whether you are eligible for conversion to permanent employment.
In reviewing the circumstances relevant to your employment, I have carefully considered all the information available to me, however all the information may not be specifically mentioned in my decision.
I wish to advise that I have completed a review of your employment status, including your periods of temporary employment, and for the reasons outlined below, I have decided not to convert your employment status to permanent under this Directive. Accordingly, at this time you will remain as a casual employee with Wide Bay Hospital and Health Service (WBHSS).
In reviewing the circumstances relevant to your employment, I have carefully considered all the information available to me, however all the information may not be specifically mentioned in my decision.
The following factors must be considered when deciding whether to convert a casual employee to permanent employment.
Continuing need
In accordance with section 6.2 of the Directive the circumstances that indicate an appointment should be casual rather than permanent include, but are not limited to, where the casual employee backfills permanent or temporary staff on short-term emergent leave; covers short gaps in work rosters of permanent or temporary employees; is engaged in ad hoc or "on demand" nature, each engagement standing alone; or works irregular, informal, flexible, occasional or unrostered hours.
In reviewing the circumstances relevant to your employment, I have established that you have been engaged in accordance with the circumstances as outlined in 6.2 of the Directive.
Merit
I am satisfied that you meet the merit requirements for the role having regard to the merit principle, and this would not prevent the conversion of your employment.
Genuine Operational Requirements
Section 8.2 of the Directive provides that in line with the Employment Security Policy, the chief executive should convert the casual employee to a permanent employee at level, unless there are genuine operational reasons not to do so.
As Chief Executive, I am required to manage and resource the full time equivalent (FTE) establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within section 98 of the Public Service Act 2008, and within the current Service Delivery Agreement for Wide Bay Hospital and Health Service.
Notwithstanding there are currently no budgeted vacancies within the area in which you are engaged, I have determined that there is likely to be a continuing need for you to be engaged in accordance with the circumstances outlined in 6.2 of the Directive; specifically that the nature of your engagement is required where the service operates in a regional area and in a twenty-four hour, seven day per week service where flexibility in the type of engagement is required.
It is neither viable not appropriate in this case to convert to permanent.
I therefore find that there is a genuine operational reason of this agency not to convert your employment to permanent at this time.
…
Relevant provisions of the PS Act and Directive 08/20 – Casual Employment
- [14]In determining this appeal, I have had regard to relevant provisions of the PS Act and Directive 08/20 including those provisions which I set out below.
- [15]Section 149B of the PS Act relevantly provides as follows:
149B Review of status after 2 years continuous employment
- (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.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The department’s chief executive must decide whether to—
- (a)continue the person’s employment according to the terms of the person’s existing employment; or
- (b)offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
- (4)The department’s chief executive must make the decision within the required period after—
- (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
- (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.
- (5)In making the decision—
- (a)section 149A (2) and (3) applies to the department’s chief executive; and
- (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.
- (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—
- (a)the reasons for the decision; and
- (b)the total period for which the person has been continuously employed in the department; and
- (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
- (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.
- (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.
(7A) For working out how long the person has been continuously employed in the department—
- (a)all periods of authorised leave are to be included; and
- (b)the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
- (8)The commission chief executive must make a directive about making a decision under this section.
(8A) The directive must provide for—
- (a)the matters a department’s chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under subsection (3) (b); and
- (b)the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person’s employment.
- (9)In this section—
fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.
required period, for making a decision under subsection (3), means—
- (a)the period stated in an industrial instrument within which the decision must be made; or
- (b)if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4) (a) or (b).
- [16]Directive 08/20 came into effect on 25 September 2020. Directive 08/20 applies to Public Service employees employed on a casual basis under ss 147(2)(b) or 148A of the PS Act.
- [17]Directive 08/20 recognises that the PS Act provides that casual employment should only be used when tenured or fixed-term temporary employment is not viable or appropriate.[5] Clause 6 of Directive 08/20 provides that a casual employee may request a review of their employment status after being continuously employed for one year.
- [18]Clause 6.1 is relevantly in the following terms:
6.1 Section 149 of the PS Act (Appendix C) provides that a casual employee who has been continuously employed for one year or more may request a review for conversion to permanent employment. An employee may only make one request in a 12-month period.
- [19]Clause 7 of Directive 08/20 provides that there is a requirement to review employment status of a casual employee after they have been continuously employed for two years. Clause 7 of Directive 08/20 relevantly provides as follows:
7. Requirement to review employment status of a casual employee after being continuously employed for two year
7.1 Section 149B of the PS Act (Appendix C) provides that an agency must review the employment status of a casual employee for conversion to employment as a general employee on tenure or a public service officer:
- (a)under section 149B(4)(a), at the end of two years after the employee has been continuously employed as a casual employee, and
- (b)under section 149B(4)(b), annually after the end of the initial two years during which the employee remains continuously employed.
7.2 For a review under section 149B, section 149B(7A) sets out the matters to be considered
when working out how long the employee has been continuously employed in the
agency.
7.3 Under section 149B(3), the chief executive must decide within 28 days whether to offer
to convert the person’s employment basis to employment as a general employee on
tenure or a public service officer, or continue the person’s employment according to the
terms of the person’s existing employment.
7.4 Unless there are exceptional circumstances, when deciding the hours of work to be
offered when converting an employee under section 149B(3)(b), the chief executive
should offer hours of work no less than the greater of the following amounts:
- (a)the hours worked by the employee in the continuing role or a role that is substantially the same, in the week immediately before the chief executive’s decision, or
- (b)the average hours per week worked by the employee in the continuing role or a role that is substantially the same, over the last two years.
- [20]Clause 8 of Directive 08/20 provides that the chief executive must consider the following criteria when determining whether to offer permanent employment under ss 149A or 149B of the PS Act as follows:
8. Decision on review 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 employee to be employed in the role, or a role which is substantially the same
- the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
- whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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 casual employee to employment as a general employee on tenure or a public service officer:
- (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)
- (b)where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
- (c)the chief executive cannot convert the casual 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 or149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
- (a)set out the findings on material questions of fact, and
- (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.
8.6 Agencies are expected to consider each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
8.8 A casual employee who is converted could be subject to a probationary period following conversion in accordance with section 126 of the PS Act. However, given that the casual employee has performed the required service with the agency, it would not be expected that agencies would apply probation other than in exceptional circumstances.
Was the decision fair and reasonable?
- [21]As noted at the outset, the decision refers to a decision in which a review was conducted and decision made in accordance with Directive 01/17. Relevantly, that Directive 01/17 had been superseded by Directive 08/20 at the time the request was made and the review conducted and the decision subsequently made. Accordingly, on its face, the decision has not been made in accordance with the appropriate directive which is an error.
- [22]However, despite the reference to Directive 01/17, the decision itself substantially refers to matters which must be considered in accordance with Directive 08/20. Further, as noted above, the submissions of the parties both referred to matters relevant to consideration of a review and subsequent decision in accordance with Directive 08/20. Accordingly, I consider there is sufficient information before me to determine whether the decision was fair and reasonable in accordance with the relevant directive that was in effect at the time the request was made and the decision subsequently issued by Queensland Health.
Consideration of mandatory criteria
- [23]As noted above, the PS Act, together with clause 8.1 of Directive 08/20, requires the decision maker, when deciding whether to offer permanent employment under s 149B of the PS Act, to consider, inter alia, whether there is a continuing need for the employee to be employed in a role, or a role that is substantially the same.
- [24]On the facts of the decision itself, the decision maker confirms there is likely to be a continuing need for Mr Walters to be engaged.[6]
- [25]Accordingly, it appears to be accepted between the parties that there is a continuing need for Mr Walters to be engaged.
Consideration of the merit principle
- [26]Again, on the face of the decision, it appears that the decision maker did have regard to the merit principle when determining not to convert Mr Walters employment from casual to permanent. It is noted that the decision maker recorded that she was satisfied that Mr Walters met the merit requirements for the role having regard to the merit principle and that this would not prevent the conversion of his employment. Accordingly, this is not an issue in dispute between the parties.
- [27]The key issue in dispute between the parties is whether there was a genuine operational requirement for the decision to be made to not convert Mr Walters' employment to permanent.
Genuine operational requirement
- [28]The reasons provided for the decision not to convert Mr Walters' employment from casual to permanent were that Ms Carroll stated that as the chief executive, she was required to manage and resource the full-time equivalent establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined in s 98 of the PS Act and within the current service delivery agreement for the Wide Bay Hospital and Health Service.
- [29]Ms Carroll continued by stating that not withstanding that there are no current budgeted vacancies within the area in which Mr Walters is engaged, that she determined that there is a likely need for Mr Walters to be continued to be engaged on a casual basis.
- [30]The reasons relied on by the decision maker to assert that there were genuine operational requirements to not convert Mr Walters employment from casual to permanent are absent of any material facts or information relied on by the decision maker in coming to that decision.
- [31]In the submissions filed on behalf of Queensland Health, it was submitted that in determining whether the decision was fair or reasonable, consideration should be had to the relevant legislative framework within which the decision was made. In this regard, Queensland Health relied on the following:
- (a)Financial Accountability Act 2009 (Qld) ("the FA Act") – which governs public sector financial administration in Queensland and sets out strategic obligations with which agencies must comply. Queensland Health refers to the subordinate legislation, consisting of the Financial and Performance Management Standard 2019 and the Financial Accountability Regulation 2019 which have the aim of establishing broad requirements within which agencies must operate to meet their obligations under the FA Act. Queensland Health submits that the financial management framework is underpinned by the concepts of "efficient", "effective", "economical" and "value for money". It submits that s 61 of the FA Act requires "the accountable officer or statutory body to achieve reasonable value for money by ensuring the operations of the department or statutory body are carried out efficiently, effectively and economically", and s 11 of the Financial and Performance Management Standard 2019 requires agencies to "establish and maintain management systems for efficiently, effectively and economically managing their financial resources."
- (b)Hospital and Health Boards Act 2011 (Qld) – section 19(2) of the Hospital and Health Boards Act 2011 (Qld) states that the relevant Hospital and Health Service has the following function to: "ensure the operations of the Service are carried out efficiently, effectively and economically" and "to manage the performance of the Service against the performance measures stated in the Service Agreement."
- (c)Public Service Act 2008 (Qld) – section 98 of the PS Act requires that chief executive manage their department in way that promotes the "effective, efficient and appropriate management of public resources" … "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 this Act". Further, Queensland Health refers to s 25 of the PS Act which requires the public service management be directed towards a) providing responsive effective and efficient services to the community and the Government; and (3) managing public resources efficiently, responsibility and in a fully accountable way.
- [32]Queensland Health submits that its reference to this legislative framework provides "evidence" of genuine operational reasons not to convert Mr Walters' employment. Queensland Health submits that the chief executive is required to deliver, sustainable, efficient, economical, appropriate resourcing within a framework of accountability underpinned by numerous legislation which requires that the operations of the statutory body are carried out efficiently, effectively and economically and the KPIs under the relevant health service agreement which state "available resources are maximised to deliver sustainable high quality health; average sustainable Queensland Health FTE". Queensland Health submits that these matters, together with the fact that Mr Walters' engagement falls squarely within the confines of the examples in clause 6.2 of the Directive,[7] is evidence that Queensland Health has genuine operational requirements which support its reasons for not converting Mr Walters employment to permanent.
- [33]The difficulty with much of the submissions made by Queensland Health is that it does no more than recite relevant expectations and requirements under the legislative framework without identifying, by reference to material facts, how such considerations apply to the circumstances of Mr Walters' matter.
- [34]It is readily accepted that the chief executive must work within financial management and performance and accountability frameworks. The issue here however is how such obligations are managed in circumstances where the PS Act and Directive 08/20 require that public service employment is to be directed toward promoting employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.
- [35]Queensland Health has not detailed in any specific way, including by reference to material facts or information, as to why, in the circumstances of this matter, the conversion of Mr Walters will result in Queensland Health not complying with its obligations to manage public resources in an efficient, responsible or fully accountable way.
- [36]There is no information before me that identifies, in a material way, the basis on which Queensland Health has prioritised its workforce strategy over the requirements of the consideration of the principles in the PS Act and Directive 08/20 which establish employment on tenure as the default basis of employment in the public service.
- [37]I am not satisfied that Queensland Health's decision is supported by material facts and information that establishes that the operational requirement relied on by Queensland Health in the decision are genuine. Further, the decision does not indicate any consideration of how Queensland Health has balanced its operational requirements with the principle that employment on tenure is the default basis of employment in the public service in the circumstances of this matter.
- [38]Accordingly, I consider that the decision was not fair or reasonable.
- [39]I consider that Mr Walters has been employed by Queensland Health in excess of two years. Queensland Health recognises that there is need for Mr Walters to be employed in a continuing way. Mr Walters, on the material, meets the merit requirements.
- [40]Further, as there is no relevant information before me to support a conclusion that there are genuine operational requirements to deny Mr Walters' request, I consider it appropriate in the circumstances of this matter for his request to be granted.
- [41]Pursuant to s 562C(1)(c) of the IR Act, the decision is set aside and substituted with the decision that Mr Walters' employment is to be converted to permanent.
Order
- [42]I make the following order:
- Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with the decision that the Appellant's employment is to be converted to permanent.
Footnotes
[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[3] See discussion of various legal categories of appeal, Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[4] Ibid.
[5] Clause 5.2.
[6] Although the decision maker makes that statement referencing clause 6.2 of Directive 01/17.
[7] The decision and submissions refer erroneously (in this regard) to clause 6.2 of the superseded directive, Directive 01/17.