Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2021
  4. Cameron v State of Queensland (Queensland Health) - [2021] QIRC 226

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

Cameron v State of Queensland (Queensland Health)[2021] QIRC 226

Cameron v State of Queensland (Queensland Health)[2021] QIRC 226

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Cameron v State of Queensland (Queensland Health) [2021] QIRC 226

PARTIES: 

Cameron, Roy

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2020/436

PROCEEDING:

Public Service Appeal – Conversion of casual employment

DELIVERED ON:

23 June 2021

MEMBER:

Industrial Commissioner Dwyer

HEARD AT:

On the papers

ORDER:

  1. The decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal employment – application for permanent employment – genuine operational requirements – decision not to convert – decision fair and reasonable

LEGISLATION:

Directive 08/20 Casual Employment cl 8

Financial Accountability Act 2009 (Qld)

Hospitals and Health Boards Act 2011 (Qld)

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

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

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Clair v State of Queensland (Department of Housing and Public Works [2020] QIRC 220

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

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

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

Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

 Background

  1. [1]
    Since 15 October 2018, Mr Cameron has been employed as a casual employee at Hervey Bay Hospital with the Wide Bay Hospital and Health Service ('WBHHS') through Queensland Health ('the Department'). The initial appointment was to the position of Casual Operational Services Officer (Wardsperson) OO2, but Mr Cameron is currently engaged as an Operational Services Officer (Porter) OO2.
  1. [2]
    In correspondence dated 9 October 2020 from the Australian Workers' Union (on behalf of Mr Cameron), a request was made that Mr Cameron be converted to a permanent position. It stated that he had been working on a regular and systematic basis for at least two years since 27 September 2018.
  1. [3]
    On 16 October 2020, the Department sent Mr Cameron correspondence informing him that a review of his casual employment would be undertaken to determine if he is eligible for conversion to permanent employment.
  1. [4]
    On 1 December 2020, Ms Debbie Carroll, Chief Executive, Wide Bay Hospital and Health Service wrote to Mr Cameron to advise of the outcome of his application for conversion. Mr Cameron was advised that a review of his employment status had been conducted in accordance with Directive 08/20 Casual Employment ('the Directive'). He was advised that there was an ongoing need for the work he is currently performing and that there was no issue as to his merits for permanent appointment. He was advised that notwithstanding these criteria being met, his employment would continue on a casual basis with the Department ('the decision').
  1. [5]
    The decision contained extensive reasons. The salient portion of the reasons was set out as follows:

 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 as outlined in 5.2 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 to enable the WBHHS to fulfil its requirements outlined in the Certified Agreement.

 It is neither viable nor appropriate in this case to concert 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.

  1. [6]
    In response to the decision, Mr Cameron filed an Appeal Notice on 21 December 2020.  In his appeal, he contended that:
  • The reasons for the decision indicates that the Department concedes that there is an ongoing need for the work that he conducts, he meets the merit criteria, however the Department also argues that there is a genuine operational requirement for his employment not to be converted to permanent;
  • There are no genuine operational requirements that should prevent his employment being converted to permanent;
  • The Department accepts that there will be an ongoing need for the work Mr Cameron undertakes;
  • The fact that there are no budgeted vacancies in the area where Mr Cameron is engaged is not a justification to not convert his employment; and
  • He has met all the criteria to have his employment converted to permanent, and in being consistent with the Directive, he must be converted.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or
  1. (c)
    set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

 Nature of appeal

  1. [8]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]
  1. [9]
    An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[5]
  1. [10]
    The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Cameron's temporary employment was fair and reasonable.[6]
  1. [11]
    For the reasons set out below, I have determined that the decision was fair and reasonable.

 Relevant sections of the Public Service Act 2008 (Qld) and Directive

  1. [12]
    The relevant provisions of the Public Service Act 2008 (Qld) (‘the PS Act’) and the Directive for consideration in this appeal are set out below.
  1. [13]
    The PS Act relevantly provides:

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.

 (Emphasis added)

  1. [14]
    Clause 8 of the Directive provides as follows:

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 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.

(Emphasis added)

Submissions

  1. [15]
    The parties filed written submissions in accordance with a Directions Order dated 21 December 2020.
  1. [16]
    Mr Cameron's submissions dated 12 January 2021 essentially replicate the submissions made in his appeal notice filed 21 December 2020 which are set out above.

        Submissions of the Department

  1. [17]
    The Department contends, for the reasons set out in their reply submissions filed 15 January 2021, that genuine operational requirements preclude Mr Cameron's employment being converted to permanent. In summary, it submits that:
  • Mr Cameron has been engaged in various temporary contracts and on a casual basis with the Department for the past two years;
  • He has only been contracted to cover in roles where the incumbent was absent due to sick leave, training, graduated return to work, WorkCover or to cover short-term vacant positions while the position underwent recruitment or to cover short gaps in the work roster. In each case, the incumbent returned to their position and Mr Cameron was no longer required;
  • There is a legitimate and genuine need for the use of casual and temporary employees within the operational services unit in which Mr Cameron works within Hervey Bay Hospital. This is a workforce strategy used to ensure flexible resourcing for a 24/7 roster allowing for leave. The strategy also aligns with the requirement of backfilling under the Certified Agreement which recognises the use of casual and temporary employees;
  • Converting Mr Cameron to permanent will impact this strategy, as another casual or temporary employee will need to be engaged to backfill any leave Mr Cameron takes for any of the reasons above;
  • Since 2017, 97 employees have been converted to permanent, however in this case, the Department relies on the genuine operational requirements of WBHHS to deny this application for conversion;
  • Citing the decision of Holcombe v State of Queensland (Department of Housing and Public Works) ('Holcombe'),[7] it submits that only one person may occupy a numbered position at one time where there is no incumbent or where an incumbent's return is not speculative. There is no genuine operational need to permanently employ two people in the same position. In each case, the incumbent has always returned to their position and Mr Cameron was no longer required. In further support of this, the Department cited the decision of Clair v State of Queensland (Department of Housing and Public Works);[8]
  • The Department also cites sections of the Financial Accountability Act 2009 (Qld), the Hospitals and Health Boards Act 2011 (Qld) and the PS Act in support of their submission that the Department is required to deliver sustainable, efficient, economical and appropriate resourcing within this legislative framework; and
  • Mr Cameron's employment falls within the examples in clause 5.2 of the Directive and the WBHHS has outlined its genuine operational requirements which do not support converting him to permanent.

Reply submissions of Mr Cameron

  1. [18]
    Mr Cameron contends, for reasons set out in his reply submissions filed 27 January 2021, that his employment should be converted to permanent. In summary, he submits that:
  • Despite being a casual employee, he takes periods of sick and recreational leave and when this occurs, he is backfilled by another employee. The Department's assertion that they must hire another casual employee to backfill Mr Cameron, if converted, is flawed;
  • The decision of Holcombe is not analogous as it is about appointing an employee to a higher classification position. The substantive issues, subject matter, material facts and, the principles and purpose of the different directives are not comparable;
  • Mr Cameron's matter can be distinguished from Holcombe as he did not apply for conversion to a role that had an incumbent;
  • Considering the legislation cited by the Respondent, the Commission should not accept any argument that the Directive operates independently, outside the framework and legislation that the Chief Executive is responsible for;
  • Section 5.2 of the Certified Agreement does not encourage promote, or support the ongoing use of casual employment, as the Department 'seems to be inferring'; and
  • Remaining a casual employee on what he considers to be 'inferior entitlements' cannot be considered a reasonably appropriate use of his services and is inconsistent with the purpose of the Directive.

Consideration

  1. [19]
    The singular issue in dispute between the parties to this appeal is the question of the existence of 'genuine operational requirements'. This term relied on by the Department is taken from the language of both the PS Act and the Directive. It is not defined.
  1. [20]
    I agree with Mr Cameron's submission that the reliance by the Department on Holcombe is broadly misconceived. The starting point for determining the existence or otherwise of genuine operational requirements is establishing the broadly accepted meaning of that phrase as it appears in the PS Act and the Directive.
  1. [21]
    Deputy President Merrell held in Morison v State of Queensland (Department of Child Safety, Youth and Women):[9]

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.

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.

                            …

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.'

(Emphasis added)

  1. [22]
    The authentic need to efficiently manage public resources represents a genuine operational requirement. That said, I am not persuaded as to the existence of genuine operational requirements by the Department's broad reference to obligations under e.g. the Financial Accountability Act 2009 (Qld) or s 98 of the PS Act.
  1. [23]
    Statutory frameworks and 'motherhood' statements about financial responsibility do not represent the facts necessary to demonstrate genuine operational requirements. In my view, for a decision to properly inform a candidate, a decision maker relying on genuine operational requirements to refuse conversion must cite (with some particularity) the operational requirements.
  1. [24]
    The Department's submissions take a distracting and somewhat irrelevant journey through the various statutory frameworks that (unsurprisingly) require the Chief Executive to exercise fiscal responsibility. It goes nowhere to establishing the facts relevant to satisfying me of the existence of genuine operational requirements. However, the decision itself ultimately provides sufficient particulars of genuine operational requirements.
  1. [25]
    The circumstances cited by the Department in the decision, especially with respect to the need to maintain the availability of a flexible workforce on a 24 hours per day/7 days per week basis is a compelling and genuine operational requirement. The Department further relies on the hypothetical requirement to engage another casual to backfill leave potentially taken by Mr Cameron. That Mr Cameron already takes leave is not a proper response by him to this ground relied on by the Department. The absence of a casual employee from a pool of casuals used to fill in for permanent employees does not place any additional financial cost on the Department and is not a proper comparison to a scenario where he is permanent.
  1. [26]
    On the whole, I am satisfied that the need to have flexibility around the availability of employees places a degree of pressure on the Department to balance its workforce between casual and permanent in a manner that fits within a relatively restricted budget. In the circumstances I am satisfied that the Department has adequately identified genuine operational requirements that preclude Mr Cameron's conversion on this occasion.
  1. [27]
    For completeness, I add that the tone of Mr Cameron's submissions suggest that the Department’s decision is somehow inconsistent. The references to 'conceding' that work is ongoing and that there are no merit concerns appear to suggest that the reliance on genuine operational reasons is somehow at odds with these conclusions. It is not. The structure of both the PS Act and the Directive is such that even where all other mandatory considerations and criteria fall in favour of a candidate for conversion, it may still be refused in the presence of genuine operational requirements.       
  1. [28]
    In all of these circumstances, I conclude the decision to be fair and reasonable.     

Order

  1. [29]
    In the circumstances I make the following order:
  1. The decision appealed against is confirmed.

Footnotes

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[4] Ibid.

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

[6] Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[7] [2020] QIRC 195, 18-19 [65]-[70].

[8] [2020] QIRC 220, 5 [28].

[9] [2020] QIRC 203, 12 [37]-[40]. 

Close

Editorial Notes

  • Published Case Name:

    Cameron v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Cameron v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 226

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    23 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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220
2 citations
Jump To
Cite 1 - [2020] QIRC 220
Cite 2 - [2020] QIRC 220
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Chan v State of Queensland (Queensland Health) [2021] QIRC 2432 citations
Fleming v State of Queensland (Queensland Health) [2022] QIRC 694 citations
Graham v State of Queensland (Queensland Health) [2023] QIRC 384 citations
Horne v State of Queensland (Queensland Health) [2022] QIRC 3592 citations
Johnson v State of Queensland (Queensland Health) [2022] QIRC 2893 citations
Morfett v State of Queensland (Queensland Health) [2022] QIRC 453 citations
Neilsen v State of Queensland (Queensland Health) [2021] QIRC 3052 citations
O'Neill v State of Queensland (Queensland Health) [2021] QIRC 3884 citations
Pearce v State of Queensland (Queensland Health) [2021] QIRC 4023 citations
Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 283 citations
Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 3193 citations
Watson v State of Queensland (Queensland Health) [2022] QIRC 4773 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.