Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Regan v State of Queensland (Queensland Health) - [2021] QIRC 221

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

Regan v State of Queensland (Queensland Health)[2021] QIRC 221

Regan v State of Queensland (Queensland Health)[2021] QIRC 221

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Regan v State of Queensland (Queensland Health) [2021] QIRC 221

PARTIES:

Regan, Ranett

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/92

PROCEEDING:

Public Service Appeal – Conversion of Casual Employment

DELIVERED ON:

21 June 2021

MEMBER:

HEARD AT:

Knight IC

On the papers

ORDERS:

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Regan's request in accordance with Directive 08/20 Casual employment and these reasons.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested that her casual status be converted to permanent – where the request was refused – whether there is a continuing need to employ the appellant in the same role, or a role that is substantially the same – whether there were genuine operational requirements which precluded conversion – adequacy of reasons – appeal allowed

LEGISLATION AND

INSTRUMENTS:

Directive 08/20 Casual employment cls 5, 8

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) ss 197, 148A, 149A, 149B

CASES:

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

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

Reasons for Decision

  1. [1]
    Ms Ranett Regan is employed on a casual basis as an Operational Services Officer (Cleaner) (OO2) at the Hervey Bay Hospital within the Wide Bay Hospital and Health Service ('WBHHS'). She has been continuously employed by WBHHS since 28 January 2019.
  2. [2]
    On 28 January 2021, the Australian Workers' Union ('the AWU'), on Ms Regan's behalf, requested her employment be converted to permanent pursuant to Directive 08/20 Casual employment ('the Directive').
  3. [3]
    In a decision letter dated 25 February 2021, Ms Debbie Carroll, Chief Executive of WBHHS, informed Ms Regan her employment would not be converted on the basis of genuine operational requirements ('the decision').
  4. [4]
    By appeal notice filed 8 March 2021, Ms Regan appeals the decision under ch 7, pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  5. [5]
    In my view, the decision was not fair and reasonable.
  6. [6]
    My reasons follow.

The Decision

  1. [7]
    The decision relevantly provides:

Genuine Operational Requirements

Section 8.2 of the Directive provides that where the above criteria 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.

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.

The nature of your engagement aligns with the workforce strategy for your service area, ensuring flexibility and an appropriate workforce mix. The service area in which you are engaged currently has a budgeted permanent establishment of 25.22 Full Time Establishment (FTE) and all permanent positions are currently filled. The service also has a requirement to engage casual and temporary staff as required in accordance with its workforce management strategy to enable to [sic] the WBHHS to fulfil its requirements as outlined in the Certified Agreement.

It is neither viable nor appropriate in this case to convert to permanent.

I therefore find that there is a genuine operational requirement of this agency not to convert your employment to permanent at this time.

WBHHS's submissions

  1. [8]
    WBHHS argues it is a genuine operational requirement that it maintain casual employees in order to staff a 24/7 roster whilst also allowing for various leaves and absences of permanent staff.[4]
  2. [9]
    It submits that over the past two years Ms Regan has only been contracted to fill roles where the incumbent position holder has been absent due to recreation leave, sick leave, QSuper, WorkCover, training, graduated return to work or where a position was undergoing recruitment.[5]
  3. [10]
    If it were to convert Ms Regan, WBHHS contends it would be obliged to engage another casual or temporary employee to backfill any leave or absence taken by her.[6] That requirement is not, it says, trivial or merely an inconvenience.[7]
  4. [11]
    With respect to any vacant positions, it submits it is required to comply with the provisions of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 ('the certified agreement'). The certified agreement relevantly provides that vacancies be filled through a closed merit process which preferences part-time employees who wish to become full-time, followed by part-time employees who wish to increase their hours and then casual and temporary employees with at least four years' service.[8] WBHHS submits Ms Regan does not fall within any of those categories.[9]
  5. [12]
    Relying on cl 5.2 of the Directive, WBHHS refers to the circumstances in which tenured or fixed term employment may not be viable or appropriate.[10] Although it concedes Ms Regan's employment could not be characterised as short-term, WBHHS highlights other circumstances where it is appropriate to engage casuals, for example, "to meet unpredictable, irregular or variable demand or in emergent situations".[11]
  6. [13]
    Having regard to those circumstances, WBHHS contends the nature of Ms Regan's engagement is unpredictable, irregular or variable in demand or in emergent situations such that it is a true casual position.[12] Moreover, it submits the nature of her engagement aligns with the workforce strategy implemented by WBHHS, which in turn aligns with its obligations under the certified agreement.[13]
  7. [14]
    It further submits Ms Regan's casual engagement is consistent with the State's employment security policy which not only makes a commitment to permanent employment but also encourages workforce planning that is efficient and flexible.[14]
  8. [15]
    Referring to Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'),[15] WBHSS notes that the term "genuine" has been construed to mean "authentic".[16]
  9. [16]
    In determining whether the operational reasons relied upon are "authentic", WBHHS submits it is relevant to understand the legislative framework within which it made its decision.[17] In doing so it relies on several instruments under which it has certain obligations, namely the:
  1. (a)
    PS Act which requires a chief executive to manage a department in a way that promotes the "effective, efficient and appropriate management of public resources" including, inter alia, human resources;[18]
  2. (b)
    certified agreement, which requires WBHHS to backfill permanent staff and recognises the use of casual staff for that purpose;[19]
  3. (c)
    Financial Accountability Act 2009 (Qld) and related subordinate legislation[20] which sets out strategic legal obligations and a financial management framework which WBHHS must comply with;[21] and
  4. (d)
    Hospital and Health Boards Act 2011 (Qld) under which WBHHS provides services with key performance indicators linked to efficient and sustainable workforce management.[22]

Ms Regan's Submissions

  1. [17]
    Ms Regan contends the decision is not fair and reasonable and as such seeks that it be set aside and a decision substituted in lieu thereof that she be converted to permanent.[23] Alternatively, she seeks to be allocated "first in line or highest priority" with respect to the next permanent vacancy.[24] In support of that submission, Ms Regan states she is aware of two vacant positions to which she could be converted.[25]
  2. [18]
    Ms Regan submits that, in circumstances where she is already required to work regular and consistent hours, converting her employment to permanent:[26]
  1. (a)
    will not interfere with, or cause detriment to, the effective, efficient and appropriate management of public resources; and
  2. (b)
    is justified having regard to the continuing need to employ her to fill those hours.
  1. [19]
    In her submissions in reply, Ms Regan submits WBHSS has failed to provide sufficient evidence that there is not a continuing need to employ her, or that conversion is not appropriate having regard to its financial responsibilities.[27] Further, she submits the material relied upon by WBHSS[28] supports conversion in that it indicates her average hours in the same or similar roles are 63 hours per fortnight, such that there is an authentic need for her to continue working at least that many hours.[29]

What decisions can the Industrial Commissioner make?

  1. [20]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    set the decision aside and return to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant principles

  1. [21]
    The PS Act relevantly provides:

148A  Employment of casual employees

  1. (1)
    A chief executive may employ a person on a casual basis to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive, if employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.
  1. (2)
    A person employed under this section does not, only because of the employment, become a public service officer.
  1. (3)
    The commission chief executive must make a directive about the employment of casual employees employed under this section or section 147, including the circumstances in which employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.

...

149A Decision on review of status

...

  1. (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. (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.

...

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. (8)
    The commission chief executive must make a directive about making a decision under this section.

(8A)  The directive must provide for—

  1. (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

...

  1. [22]
    The Directive relevantly provides:

5. Employment of casual employees

5.1  Section 148A of the PS Act (Appendix A) provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate.

5.2  Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:

  1. (a)
    backfilling tenured or fixed term temporary staff on short-term emergent leave
  1. (b)
    covering short gaps in work rosters of tenured and fixed term temporary employees
  1. (c)
    in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
  1. (d)
    where needed to work irregular, informal, flexible, occasional or non-rostered hours.

5.3  Employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis.

5.4  Section 26 of the PS Act requires managers to ensure that public service employees are aware of the work performance and personal conduct expected of them and to proactively manage that performance and conduct, including by applying the positive performance management principles in section 25A of the PS Act (Appendix B). Casual employees who are engaged for a period of three months or more are required to participate in the formal performance management system of their agency. Participation in the formal system where a casual employee is engaged for less than three months is at the discretion of the agency.

5.5  An agency should periodically review the use of casual employees to appropriately limit casual employment in accordance with the provisions of the PS Act and to proactively manage its workforce planning.

...

8. 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 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.

Was the decision fair and reasonable?

  1. [23]
    That Ms Regan met the merit principle is not in dispute.[30]
  2. [24]
    The effect of the Directive is that a decision-maker is essentially required to offer to convert an employee's casual status to permanent, where it is established there is a continuing need for the person to be employed in the role, or a role that is substantially the same.[31] The only exception is where it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.[32]
  3. [25]
    When making the decision to offer permanent employment, the chief executive is required to consider several criteria, including whether any requirements of an industrial instrument are complied with in relation to the decision.
  4. [26]
    WBHHS maintains the decision not to convert Ms Regan should be confirmed by the Commission, noting it "has evidenced genuine operational requirements for not converting [Ms Regan]" and further, "[a]long with [Ms Regan's] engagement falling squarely within the confines of the examples in clause 5.2 of the Directive, this is evidence that WBHHS has genuine operational requirements … for not converting [Ms Regan] to permanent".[33]
  5. [27]
    I have some difficulties with these submissions for several reasons.

Continuing need to employ Ms Regan in the same role, or a role that is substantially the same

  1. [28]
    As I understand its submissions, WBHSS accepts there is a continuing need to employ Ms Regan in her current role, although in a casual capacity only.
  2. [29]
    However, the PS Act and the Directive impose a further consideration on the chief executive. That is, they must also consider whether there is a continuing need to employ the relevant person in another role that is substantially the same ("continuing need"). I consider that it is incumbent on the decision-maker to make that consideration before turning their minds to whether genuine operational requirements might preclude conversion.
  3. [30]
    Although there is reference to this issue in WBHHS's submissions, I can see nothing in the decision letter itself[34] which indicates the decision-maker turned her mind to such a consideration at the time of the review.

Genuine operational requirements

  1. [31]
    As is clear from s 149A(3) of the PS Act and cl 8.2 of the Directive above, the decision‑maker must have regard to the "genuine operational requirements of the department" when making their decision.
  2. [32]
    The phrase "genuine operational requirements of the department" is not defined in the PS Act or the Directive. In Morison Merrell DP observed, albeit in the context of s 149C of the PS Act:

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

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

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
  1. [33]
    His Honour then found that the phrase would at least include a consideration of whether there was "an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department" to convert the employee's employment.[35]
  2. [34]
    There are limited, if any, accompanying materials within the decision or WBHSS's submissions that support its claim that Ms Regan's employment is of an unpredictable nature, or that there are genuine operational requirements which preclude conversion.
  3. [35]
    Although WBHHS relies on a schedule attached to its submissions which purports to indicate Ms Regan's hours on a fortnightly basis,[36] on my reading of the attachment, it is useful only in so far as it indicates the hours undertaken by Ms Regan when engaged on fixed term temporary contracts.
  4. [36]
    I consider it does not provide any relevant information with respect to Ms Regan's casual hours of work, the circumstances in which those hours are performed or the context in which she has undertaken temporary appointments.
  5. [37]
    Further, WBHSS appears to rely on the lack of a permanent vacancy as a bar to conversion. However, in my view, the existence of a vacant position is neither a mandatory consideration, nor a pre-requisite to conversion.
  6. [38]
    In those circumstances, I am unable to conclude whether or not the operational reasons highlighted by WBHHS preclude Ms Regan from conversion.
  7. [39]
    For the reasons given above, I consider the decision was not fair and reasonable and that another review should be undertaken.

Conclusion

  1. [40]
    Having regard to the paucity of detailed reasons within the decision letter in relation to genuine operational requirements and continuing need, along with an absence of materials identifying Ms Regan's casual working patterns in between periods where she has been engaged on fixed-term temporary contracts, the appropriate course is to set aside the decision dated 25 February 2021, and order a fresh review.
  2. [41]
    Ms Regan's request for conversion to permanent employment is returned to the decision‑maker for determination.
  3. [42]
    I order accordingly.

Orders

  1. The appeal is allowed.
  2. Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
  3. Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Regan's request in accordance with Directive 08/20 Casual employment and these reasons.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[4] WBHHS's submissions filed 1 April 2021, [3].

[5] Ibid [2].

[6] Ibid [4].

[7] Ibid.

[8] Ibid [6].

[9] Ibid.

[10] Ibid [10].

[11] Ibid.

[12] Ibid [11].

[13] Ibid [13].

[14] Ibid [12] citing Directive 08/20 Casual employment cl 4.1.

[15] [2020] QIRC 203.

[16] WBHHS's submissions filed 1 April 2021, [22] citing Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [27]-[38].

[17] WBHHS's submissions filed 1 April 2021, [23].

[18] Ibid [28] citing Public Service Act 2008 (Qld) ss 25, 98.

[19] Ibid [24] citing Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 5.2.

[20] Namely, the Financial and Performance Management Standard 2019 (Qld) and the Financial Accountability Regulation 2019 (Qld).

[21] WBHHS's submissions filed 1 April 2021, [25].

[22] Ibid [26]-[27].

[23] Ms Regan's submissions filed 15 March 2021, [8].

[24] Ibid [9].

[25] Ibid [3].

[26] Ibid [5].

[27] Ms Regan's submissions in reply filed 12 April 2021, [4]-[7].

[28] Specifically, attachment WB-01 to WBHHS's submissions filed 1 April 2021.

[29] Ms Regan's submissions in reply filed 12 April 2021, [10].

[30] The merit principle is set out in Public Service Act 2008 (Qld) pt 4.

[31] Public Service Act 2008 (Qld) s 149(2), (3); Directive 08/20 Casual employment cl 8.2.

[32] Public Service Act 2008 (Qld) s 149(3).

[33] WBHHS's submissions filed 1 April 2021, [29]-[30].

[34] Including the balance of the decision not reproduced above.

[35] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [40].

[36] WBHHS's submissions filed 1 April 2021, Attachment WB-01.

Close

Editorial Notes

  • Published Case Name:

    Regan v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Regan v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 221

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    21 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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203

Cases Citing

Case NameFull CitationFrequency
Regan v State of Queensland (Queensland Health) [2021] QIRC 4123 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.