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  4. Spry v State of Queensland (Department of Communities, Housing and Digital Economy) - [2021] QIRC 231

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Spry v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 231

Spry v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 231

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Spry v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 231

PARTIES: 

Spry, Toni

(Appellant)

v

State of Queensland (Department of Communities, Housing and Digital Economy)

(Respondent)

CASE NO:

PSA/2021/193

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

29 June 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. That the deemed decision is set aside, and the matter is to be returned to the chief executive of the Department with a copy of this decision.
  2. That the employment review prescribed in Directive 09/20 is to be conducted according to law, including the provision of adequate reasons regarding each of the mandatory criteria prescribed in that Directive.
  3. The outcome of the review must be provided to Ms Spry by 20 July 2021.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – temporary employment – where the appellant was reviewed under s 149B of the Public Service Act 2008 (Qld) – where a deemed decision was given – where appeal was brought out of time – where appellant employed to undertake work in a project with known end date – where there is no continuing need for appellant to undertake work in current role – where respondent has failed to consider continuing need for appellant to be employed in a role that is substantially the same

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Directive 08/17 Temporary Employment cl 9, cl 14

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

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

Public Service Act 2008 (Qld) s 27, s 98, s 148, s 149, s 149A, s 149B, s 194, s 196

Statutory Instruments Act 1992 (Qld) s 14

CASES:

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

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

House v The King (1936) 55 CLR 499

Jones v State of Queensland (Queensland Health) (Queensland Industrial Relation Commission, 15 October 2020, McLennan IC)

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

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

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

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 22

Reasons for Decision

Introduction

  1. [1]
    Ms Toni Spry (the Appellant) is currently employed in the temporary position of AO6 Senior Project Officer within the Business Enablement Delivery Unit by the State of Queensland (Department of Communities, Housing and Digital Economy) (the Respondent; the Department).
  1. [2]
    Ms Spry has worked in the position of AO6 Senior Project Officer within the Business Enablement Delivery Unit since 8 October 2019 and will continue to do so until 30 June 2021. Ms Spry was engaged in this position specifically to support the implementation of the Customer Management System (CMS) project (the CMS Project).
  1. [3]
    From 1 July 2021, Ms Spry has agreed to commence work as an AO5 Project Officer. That temporary contract will expire on 31 January 2022.
  1. [4]
    Prior to commencing in her current temporary contract, Ms Spry undertook an AO6 Senior Program Officer position within the Property Operations and Support, Loans and Debt Management Unit of the Department between 19 March 2018 and 30 August 2019. Ms Spry was engaged in that position for various reasons, including; to backfill the substantive employee who was relieving in an alternative position, to relieve in a substantively vacant position while a recruitment process was undertaken to fill the position permanently and to complete a handover period with the newly appointed substantive employee. 
  1. [5]
    Between 31 August 2019 and 7 October 2019, Ms Spry undertook an AO6 Senior Project Officer position within the Property Operations and Support, Loans and Debt Management Unit of the Department to backfill the substantive employee, who was on a period of leave.
  1. [6]
    On 16 April 2021, the Respondent refused to convert Ms Spry to permanent employment by way of deemed refusal (the deemed decision).
  1. [7]
    Ms Spry filed an Appeal Notice on 28 May 2021 appealing the deemed decision.

Appeal principles

  1. [8]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[1] This is the key issue for my determination.
  1. [9]
    A public service appeal under the IR Act is not by way of rehearing,[2] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  1. [10]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.[3]
  1. [11]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

Decision against which an appeal may be made

  1. [12]
    Clause 11.1 of Directive 09/20 Fixed term temporary employment (Directive 09/20) provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the Public Service Act 2008 (Qld) (PS Act) in relation to a decision not to convert."
  1. [13]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee". This is the 'type of decision' Ms Spry indicated was being appealed against in the Appeal Notice. Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [14]
    It is relevant to note at this point that the Respondent submitted that Ms Spry was not engaged as an AO7 Principal Program Officer under a fixed term temporary arrangement, but rather, she performed short-term higher duties in the role of AO7 Principal Program Officer for the period of 17 December 2018 until 4 January 2019 to backfill the substantive employee who was relieving in an alternative position. Section 149B of the PS Act applies in relation to "a person who is a fixed term temporary employee… if the person has been continuously employed in the same department for 2 years or more." Ms Spry has been continuously employed in the Department for more than two years and the fact a small portion of her employment was performed in a short-term higher duties role does not affect her eligibility to be reviewed under s 149B of the PS Act.
  1. [15]
    For the reasons outlined above, I am satisfied the decision was made under s 149B of the PS Act and is able to be appealed.

Timeframe for appeal

  1. [16]
    Ms Spry became eligible for a temporary review on 19 March 2021 - her third anniversary of commencing with the Department as a fixed term temporary employee. On that date, the Department issued a letter to Ms Spry advising that a review of her employment status would be undertaken and further:

The date by which a decision will be made is 16 April 2021. As provided in section 149A of the PSA, if a decision is not made within 28 calendar days after the date the fixed term temporary employee became eligible for review, the decision maker is taken to have decided not to convert the fixed term temporary employee.

…

You will be provided the outcome of the review in writing.

…

Following the review, in accordance with section 194(1)(e) PSA, if a decision is made that your employment with the department is to continue as a fixed term temporary employee, you may appeal the decision to the Queensland Industrial Relations Commission within 21 days of receiving the decision.

  1. [17]
    On 13 May 2021, the Department issued a further letter to Ms Spry advising that because the chief executive did not make the review decision within 28 days, the chief executive is taken to have decided not to offer to convert Ms Spry's employment. The letter continued:

In accordance with section 194(1)(e) of the PSA, you may appeal a deemed decision that your employment remain as temporary, within 21 days of the decision, to the Queensland Industrial Relations Commission (QIRC).

  1. [18]
    In her Appeal Notice, Ms Spry submitted that in reliance upon the 19 March 2021 letter, she waited to receive a written decision before considering her appeal options. However, as the decision was not made by 16 April 2021, the decision maker was taken to have decided not to convert Ms Spry on that date.
  1. [19]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes. I note that despite the question posed in the Form 89 – Appeal Notice regarding when the decision was received.
  1. [20]
    The deemed decision was given on 16 April 2021. To accord with s 564(3) of the IR Act, an Appeal Notice should have been filed with the Industrial Registry on or by 7 May 2021.
  1. [21]
    The Appeal Notice was filed with the Industrial Registry on 28 May 2021 - 21 days out of time. 

Should this appeal be heard out of time?

  1. [22]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[4] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [23]
    Ms Spry bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[5]
  1. [24]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[6] Several factors inform the exercise of my discretion.
  1. [25]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[7]
  • The length of the delay;
  • The explanation for the delay;
  • The prejudice to the Appellant if the extension of time is not granted;
  • The prejudice to the Respondent if the extension of time is granted; and
  • Any relevant conduct of the Respondent.

Length of delay

  1. [26]
    The appeal was filed 21 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act.

Explanation for the delay

  1. [27]
    The Appeal Notice indicates that Ms Spry was aware she had filed the Appeal Notice out of time. Ms Spry outlined the following explanation for the delay:
  • In correspondence issued by the Respondent on 19 March 2021, Ms Spry was advised she "will be provided the outcome of the review in writing" and "if a decision is made that your employment with the department is to continue as a fixed term temporary employee, you may appeal the decision to the Queensland Industrial Relations Commission within 21 days of receiving the decision."
  • In reliance upon the 19 March 2021 correspondence, Ms Spry believed she would receive the review outcome in writing and that she could appeal within 21 days of receiving that written decision.
  • Ms Spry repeatedly followed up with Ms Bronte Betts, Director at the Department for a written outcome. Ms Betts advised she would follow it up.
  • On 17 May 2021, Ms Spry received correspondence advising that the deemed decision had been made.
  1. [28]
    In its submissions filed 11 June 2021, the Respondent stated:

In acknowledgment of the delay in formally advising the Appellant of the deemed decision outcome, the department does not refute the Appellant's application for an extension of time to lodge their appeal notice.

  1. [29]
    I acknowledge that Ms Spry ought to have known that a deemed decision was given 28 days after her review eligibility date. That was explained to her in the correspondence from the Respondent dated 19 March 2021 as stipulated in paragraph [16] above. Notwithstanding, the reference to a written decision being issued has seemingly confused Ms Spry into believing the appeal period commenced from the date she would receive written correspondence.
  1. [30]
    There was no obligation upon the Respondent to advise Ms Spry that a deemed decision had been made - particularly as they had already advised that a deemed decision would be given on 16 April 2021 if a written decision was not issued prior. Nevertheless, the Respondent does not object to Ms Spry's appeal being heard out of time and in this circumstance, I will extend the time and consider Ms Spry's appeal. 

Prejudice to Ms Spry

  1. [31]
    The obvious prejudice to Ms Spry is that she would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.

Prejudice to the Respondent

  1. [32]
    Delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[8] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[9]
  1. [33]
    For those reasons, I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time. However, given the Respondent has indicated consent to hearing the appeal out of time, I acknowledge the Respondent has accepted this prejudice.

Conduct of the Respondent

  1. [34]
    The Respondent's initial conduct comprised advising Ms Spry of her review eligibility date, when a decision would be deemed and her appeal rights. This conduct aligns with Directive 09/20. Notwithstanding, some aspects of the 19 March 2021 correspondence and the subsequent communications with Ms Betts who indicated she would follow up on the review appears to have confused Ms Spry.
  1. [35]
    I consider this to be a significant reason for why Ms Spry's view of when the appeal should be filed was misconstrued.

Prospects of success

  1. [36]
    Ms Spry's prospects of success at a substantive hearing are a relevant consideration.[10] However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[11]

  1. [37]
    In my preliminary view of the substantive matter, the merits (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter.
  1. [38]
    In light of the reasoning above, I will consider this appeal out of time.

What decisions can the Industrial Commissioner make?

  1. [39]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [40]
    In the Appeal Notice filed on 28 May 2021, Ms Spry submitted that:
  • her fixed term temporary employment has been extended 15 times;
  • she has performed as an AO6 Senior Project Officer at the Department for over three years without any adverse findings in respect of performance or conduct, demonstrating merit with respect to s 27 of the PS Act;
  • There is a continuing need for Ms Spry to perform in her role, or a role which is substantially the same and there are no genuine operational requirements of the Department to make Ms Spry's appointment not viable or appropriate.

Submissions

  1. [41]
    The parties exchanged written submissions in accordance with Directions Orders issued on 1 June 2021 and 4 June 2021.

Respondent's submissions

  1. [42]
    The Department filed submissions in response to the Appeal Notice on 11 June 2021, as summarised below:
  • Since 19 March 2018, Ms Spry has been engaged in a number of different positions including AO6 Senior Program Officer and AO6 Senior Project Officer. A comparative capability of the different positions was completed and in April 2020, the chief executive's delegate determined that while there are some overlapping capabilities between the roles, the roles do not have the same or substantially the same capability requirements to constitute 'same role' as per the definition in Directive 08/17 Temporary employment (Directive 08/17), being the applicable directive at the time.
  • The temporary AO6 Senior Project Officer position within the Business Enablement Delivery Unit will be abolished upon completion of the work for the CMS Project. As Ms Spry's current temporary engagement as an AO6 Senior Project Officer within the Business Enablement Delivery Unit is to perform work for a specific project, there will no longer be a continuing need for Ms Spry to be employed in the AO6 Senior Project Officer position on the completion of the CMS Project on 30 June 2021.
  • Section 148(1) of the PS Act provides that a chief executive may employ a fixed term temporary employee for a fixed term to perform work of a type ordinarily performed by a public service officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under s 98(1)(d) of the PS Act. Further, s 148(2)(b) of the PS Act relevantly provides that "employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes - … to perform work for a particular project or purpose that has a known end date."
  • Sections 148(1) and (2) demonstrate that a fixed term temporary employee does not need to be appointed permanently to a role where it is not viable or appropriate to do so because their skills are only temporarily required to perform work for a particular project or purpose that has a known end date.

Appellant's submissions

  1. [43]
    Ms Spry filed submissions in response to the Respondent's submissions on 18 June 2021, as summarised below:
  • It is not in contention that Ms Spry meets the eligibility requirements with regards to meeting the merit principle.
  • There is a continuing need for someone to be employed in the role Ms Spry is currently undertaking, or a role which is substantially the same. The Respondent's submissions fail to properly consider whether there is a continuing need as required by s 149A(2)(a)(ii) of the PS Act.
  • In Underwood v State of Queensland (Department of Housing and Public Works), Power IC stated that to "deny an employee conversion because the inherent nature of their work is project based, rather than continuous, would be to unfairly deny employees working in project-based work access to the benefit of the Directive."[12] That reasoning is directly relevant to the principles underpinning consideration of this appeal in that, permanent appointment should not be denied simply on the basis that a known end date exists, in isolation from broader circumstances.
  • The Respondent did not take into consideration Ms Spry's length of service at the Department as an AO6, which is for a continuous period of greater than 3 years. Further, the Respondent has not taken into account Ms Spry's prior role working on the 'Business Simplification - Rent Campaign project' and the 'Rates project'.
  • There is continuing and future project work at the Department, not limited to the Business and Technology Enablement and the Date Transformation project within the Strategy, Policy and Programs area. This work aligns with Ms Spry's skillset, such that there is a continuing need for her to continue in this work.
  • The continuing work is relevantly demonstrated by the "AO6 Development Pool" of which Ms Spry was accepted after successfully undertaking an EOI merit process. The Expression of Interest for the AO6 Development Pool was issued on 22 February 2021 and provides that:

Over the next twelve months there will be opportunities available across Service Delivery for higher duties and other opportunities at the AO6 level… Roles across Service Delivery at the AO6 level are varied, Senior Project Officer… Importantly this request for expressions of interest will also be used to formalise/extend relieving arrangements for many Service Delivery roles in both Regions and in Central Office teams where we currently have temporary backfilling arrangements in place (staff on higher-duties at the AO6 level).

The above serves as evidence that there is a continuing need for Ms Spry to perform work as an AO6 Senior Project Officer, and that the Department are now recruiting such roles from the AO6 Development Pool. This is further supported by the fact Ms Spry has been performing in AO6 roles in excess of three years, with 16 contract extensions.

  • In accordance with s 148(3) of the PS Act, it is both viable and appropriate for the Department to employ Ms Spry on tenure, as she has been required, on a frequent and regular basis, to fill temporary vacancies and to perform work for a particular project.
  • Ms Spry had been advised by Mr Damien Tait, Executive Director that although she has merit and has been included in the AO6 Development Pool, there  are other candidates that "had a higher level" so he would not offer Ms Spry an AO6 position after the contract expiry. Rather, Ms Spry would be offered a temporary AO5 position until the end of August 2021, "at this stage".
  • The Department has not offered Ms Spry an AO6 role in order to reduce her prospects of success through this public service appeal process.
  • The abolishment of the temporary AO6 Senior Project Officer position is irrelevant to whether there is a continuing need for Ms Spry to work as an AO6 Senior Project Officer in other projects. The Department can create and abolish roles and positions at their whim, regardless of the continuing need for an AO6 Senior Project Officer in current and future projects, such that this does not meet the test of a genuine operational requirement to preclude offering to convert Ms Spry to permanent employment status.[13]
  • The full reading of the Respondent's submissions reveals that the decision maker did not consider whether there is a continuing need for Ms Spry to perform in a role that is substantially the same, as is required under s 149A(2)(a)(ii) of the PS Act. The AO6 Development Pool roles establish that there is a continuing need for Ms Spry to perform as an AO6 in roles that are substantially the same.
  • Given that employment on tenure is the default basis of employment, Ms Spry should be converted to permanent on the basis that there is continuing temporary AO6 work in roles that are substantially the same and a vacancy is not required.[14]

Relevant provisions of the PS Act and the Directive 09/20

  1. [44]
    Section 148 of the PS Act states (emphasis added):

148  Employment of fixed term temporary employees

  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period –  approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples— employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples— employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example— an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—  an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

 …

  1. [45]
    Section 149B of the PS Act relevantly provides (emphasis added):

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. [46]
    Section 149A(2) of the PS Act provides (emphasis added):

(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. [47]
    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. [48]
    Directive 09/20 relevantly provides:

4.   Principles

4.1  Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the Government's Employment Security Policy.

…

  1.  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.

  1. [49]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[15]
  1. [50]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [51]
    The purpose of Directive 09/20 is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.  The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

 The legislation indicates where employment on tenure may not be appropriate.

 …

Consideration

  1. [52]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable.  This involves a review of the decision-making process utilised and the temporary employment decision arrived at. 

Mandatory decision criteria

  1. [53]
    As outlined above, s 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent. 
  1. [54]
    My decision firstly turns on the question of whether there is a continuing need for Ms Spry to be employed in the role, or a role which is substantially the same. 
  1. [55]
    There is no dispute between the parties that the remaining criterion listed above are met.

Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

  1. [56]
    There are two potential pathways to conversion. The first pathway is Ms Spry's current role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for Ms Spry to be employed in the current role?

  1. [57]
    Since 19 March 2018, Ms Spry's employment as a fixed term temporary employee with the Department has been extended on 16 occasions in various roles.
  1. [58]
    In Katae v State of Queensland & Anor ('Katae'), Crow J considered the decision criteria.[16] In that matter, Ms Katae was engaged in a series of temporary contracts from July 2014 until 31 December 2018. His Honour found that there was plainly a continuing need for Ms Katae to be employed in her role, effectively because her contract had not yet concluded. It was the question of whether the role was likely to be ongoing that formed the primary basis for argument.
  1. [59]
    In that regard, his Honour's findings are particularly relevant to these proceedings (emphasis added):

It is the second element of the 9.6(a) directive which is in issue, that is, whether "the role is likely to be ongoing". Whilst the Vice President acknowledged that the department was unable to guarantee that the end of the project would have been its set end date (30 June 2018), that is an insufficient basis upon which one could fairly and reasonably conclude that the role was not likely to be ongoing. What was required was an objective analysis of whether the role was likely to be ongoing, which depends upon the meaning given to the word "ongoing" and each of the circumstances which might affect the likelihood of the role being ongoing.

As discussed with counsel, the word "ongoing" is defined in the Shorter Oxford English Dictionary as "the action of going on; proceeding; continued movement." Where reference is had to the Shorter Oxford English Dictionary, or any other dictionary, it must be concluded that the word "ongoing" is most imprecise. Whilst it certainly does not mean "permanent" neither does it mean "temporary". It is noteworthy that within Directive 08/17 the words "permanent" and "temporary" are used. Given that s 149 is remedial, it seems to me that the directive ought to be read in a remedial manner, and the meaning prescribed to the word "ongoing" ought to be its ordinary dictionary meaning; that is, "going on" or "proceeding" or "continuing".

…

It was shown in evidence that Ms Katae was a capable person, having been in receipt of numerous temporary contracts for a period of over 3.5 years at the time of the decision. Importantly, while the project had an end date of 30 June 2018, it ought not be presumed that it would end at that date, that is, not all projects end on time. That is a matter of common experience, both in private and public enterprises. Similarly when one is considering the broad definition of "roles", it can be taken into account that prior to the decision, the experience of Ms Katae had been for a period of more than 3.5 years and throughout that period she has found similar roles within the department. A fair and reasonable conclusion on the then-available evidence was that the "role" was likely to be "ongoing". It follows that it has been shown that the appealed decision was not fair and reasonable.

Paragraph 9.7 of the directive evinces a presumption that temporary employees will be converted to permanent employees in the ordinary case. That is, ordinarily, where a person has been employed on a temporary basis for more than 2 years, there is a likelihood for the employment on an "ongoing basis". It is important to note that the criteria in paragraph 9.6(a) speaks of a role "likely to be ongoing" rather than a role being "permanent". In the present case, the materials placed before Linnane VP in respect of the senior project officer's role, show there was a continuing need for the applicant to be employed in that role or in a substantially similar role, and that role was likely to be ongoing.

  1. [60]
    Ms Spry has been employed on a series of temporary contracts for a range of reasons as outlined in [4] above. 
  1. [61]
    Most recently, Ms Spry was temporarily appointed in the position of AO6 Senior Project Officer from 8 October 2019.  The Department submitted that Ms Spry was appointed to this position to undertake work on the CMS Project and that the position will be abolished upon completion of the CMS Project on 30 June 2021. The central issue in this appeal, as it was in Katae, is the pertinent consideration of whether there is a continuing need for Ms Spry to continue working in that role beyond that time.
  1. [62]
    The Department asserted the abolishment of Ms Spry's role with certainty rather than on speculation. This is supported by Ms Spry's submissions in which she referred to a conversation she had with Mr Damien Tait, Executive Director. In that conversation, Mr Tait informed Ms Spry that her current contract will meet its natural expiration, but that he could offer Ms Spry a temporary AO5 position until the end of August 2021. Ms Spry has since advised that she was offered a fixed term temporary contract as an AO5 Project Officer from 1 July 2021 until 31 January 2022 and that she accepted that offer.
  1. [63]
    There is no indication by either party that the CMS Project will not end on 30 June 2021 and the fact Mr Tait was looking to engage Ms Spry in an alternative role that she was subsequently contracted into suggests the CMS Project will come to an end on that date and there is not a continuing need for Ms Spry to be employed in her current role. I agree with Ms Spry's submission that an employee should not be denied conversion because the inherent nature of their work is project based, however the broader circumstances in this matter indicate that the known end date not only exists but that it will also be enforced through the abolishment of Ms Spry's current role.
  1. [64]
    Unlike in Katae, it appears that the project initiatives underway will conclude on 30 June 2021 and in considering all of the material before me, I find that there is not a continuing need for Ms Spry to be employed in her current role.
  1. [65]
    Ms Spry submitted the Department's submissions failed to properly consider whether there is a continuing need under s 149A(2)(a)(i) of the PS Act. For the reasons outlined above, I consider the Department has appropriately concluded there is not a continuing need for Ms Spry to be employed in her current role. However, for the reasons outlined below I agree that the Department has failed to properly consider whether there is a continuing need for Ms Spry to be employed in a role that is substantially the same.

Pathway 2: Is there a continuing need for Ms Spry to be employed in a role which is substantially the same?

  1. [66]
    I will now consider the second pathway to permanent conversion of alternative "substantially the same" roles. 
  1. [67]
    In Katae, Crow J considered the definition of "same role" in the superseded Directive 08/17.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[17]

  1. [68]
    I acknowledge that the current Directive 09/20 does not contain a definition of "same role". However, in the absence of the term being otherwise contemporaneously defined, I will rely on the definition in Directive 08/17 to which Katae refers:[18]

The same role includes a role which has the same or substantially the same capability requirements, either at level or at a higher classification (e.g. a payroll officer may provide a service to different client groups), or a role with a generic role description involving a range of duties (e.g. rotation through financial and payroll processing duties under a generic entry-level role description).

  1. [69]
    It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is relevant.
  1. [70]
    With respect to the definition of "same role" as outlined above, the Respondent submitted that the roles Ms Spry has engaged in - specifically, as an AO6 Senior Project Officer and AO6 Senior Program Officer - do not constitute the 'same role'. The Department based that conclusion upon a comparative capability assessment completed by the chief executive's delegate in April 2020 that determined while there are some overlapping capabilities between the roles, the roles do not have the same or substantially the same capability requirements.
  1. [71]
    The submission indicates the Department has considered whether the AO6 Senior Program Officer role is substantially the same as that currently undertaken by Ms Spry. As the Department concluded that the roles are not substantially the same, it has not evidenced consideration of whether there is a continuing need for Ms Spry to be employed as an AO6 Senior Program Officer. Although the Department may be correct in concluding the roles are not substantially the same, the Department failed to comply with the second limb of s 149A(2)(a)(i) of the PS Act by limiting their consideration to the AO6 Senior Program Officer role. The evaluation of roles that are substantially the same is not confined to previous roles undertaken by Ms Spry.
  1. [72]
    Ms Spry's submissions included reference to the AO6 Development Pool for which the Expression of Interest suggests that "Over the next twelve months there will be opportunities available… at the AO6 level" including for the position of Senior Project Officer. Ms Spry further submitted there is "continuing and future project work at the Department, not limited to the Business & Technology Enablement (Customer Contact Review and Rent projects) and the Data Transformation project within Strategy, Policy and Programs area". Ms Spry contends that these projects align with her skillset.
  1. [73]
    I agree with Ms Spry that the AO6 Development Pool in particular evidences potential for there being a continuing need for Ms Spry to be employed in a role that is substantially the same as the one she currently undertakes. As the Department did not evidence any consideration of other roles (other than AO6 Senior Program Officer), the above opportunities have not been properly explored by the Department. 
  1. [74]
    After filing her Appeal, Ms Spry was offered a further temporary contract in the position of AO5 Project Officer. That changed circumstance supports the proposition of a continuing need for Ms Spry's services in a role that is substantially the same as her current role.
  1. [75]
    I have found above that there is not a continuing need for Ms Spry to be employed in her current position.  However, the question of whether there is a continuing need for Ms Spry to be employed in a role which is substantially the same will be worthy of some deeper exploration.

Findings

  1. [76]
    I am required to decide this Appeal by assessing whether or not the decision appealed against was fair and reasonable. 
  1. [77]
    I have found that the decision maker failed to consider whether there was a continuing need for Ms Spry to be employed in a role that is substantially the same. Therefore, the deemed decision could not be fair and reasonable.
  1. [78]
    For that reason, the appeal must succeed. The issue then becomes determining the appropriate remedy.

Remedy

  1. [79]
    Ms Spry submitted that she should be appointed to permanent employment status.
  1. [80]
    In circumstances where I have found that the decision maker has effectively stopped short of engaging with the totality of the review process, I have determined that the appropriate remedy is to return the matter to the decision maker with a copy of this decision.[19]
  1. [81]
    A fresh review should be conducted, with reasons demonstrating full and thorough consideration of the mandatory criteria and the relevant factual circumstances, in accordance with Directive 09/20 and the PS Act.
  1. [82]
    That further review is to occur within 21 days of this decision being released.  That may result in a different decision being made.  In the alternate, it would at least provide Ms Spry the opportunity for a more fulsome consideration of the circumstances in any subsequent appeal.
  1. [83]
    As such, I order that the outcome of the review must be provided to Ms Spry by 20 July 2021.

Consideration of the mandatory criteria - and the impact of the changed circumstances since Ms Spry filed the Appeal

  1. [84]
    While I have ordered that the decision maker conduct a fresh review within 21 days, I would offer the following observations.
  1. [85]
    Clause 8.1 of Directive 09/20 contains the mandatory decision criteria for temporary employment conversions to permanent.  That is:
  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [86]
    Clause 8.2 of Directive 09/20 provides that:

…where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

  1. [87]
    Ms Spry stated that she has demonstrated merit and that does not present any impediment to conversion to permanency. That is not contradicted in the Department's submissions.
  1. [88]
    Neither party has referred to any requirements of an industrial instrument that needs to be complied with in this case.
  1. [89]
    Further, there could have been no previous decision made, or deemed to have been made, under s 149B of the PS Act relating to Ms Spry during the period of her continuous temporary employment, due to that provision taking effect from 14 September 2020.
  1. [90]
    The question of whether there is a continuing need for Ms Spry to be employed in a role which is substantially the same will be worthy of some deeper exploration.
  1. [91]
    After Ms Spry filed her appeal, she was engaged on a subsequent temporary contract for an AO5 Project Officer position. That is a changed circumstance that may warrant further consideration as it appears to support the proposition of a continuing need for Ms Spry's services. 
  1. [92]
    With respect to genuine operational requirements, the Department contends that s 148(1)-(2) of the PS Act is relevant for this matter because it, "clearly demonstrates that a fixed term temporary employee does not need to be appointed permanently to a role, where it is not viable or appropriate to do so because their skills are only temporarily required to perform work for a particular project or purpose that has a known end date."
  1. [93]
    The genuine operational requirement relied on not to convert Ms Spry to permanent is that her current position will be abolished following the cessation of the CMS Project.
  1. [94]
    I note the provision at s 148(2)(b) indicates only that employment on tenure may not be viable or appropriate if it is "to perform work for a particular project or purpose that has a known end date" and that circumstance is met in this case. There is no evidence before me that indicates there are any ongoing project tasks that will continue to require Ms Spry's involvement beyond 30 June 2021.
  1. [95]
    Notwithstanding the above, upon review the Department must now consider roles that are substantially the same to that currently undertaken by Ms Spry. If an appropriate role is identified and there is a continuing need for Ms Spry to be employed in that role, then the Department must freshly consider whether there are any genuine operational reasons that render permanent conversion not viable or appropriate.

Conclusion

  1. [96]
    With the above observations in mind, the Department's future considerations of the second pathway to conversion would sensibly commence with first defining the role and a role which is substantially the same. The demonstrated analysis of the capability requirements of the role performed by Ms Spry, and the recount of specific search efforts undertaken to ascertain whether there were other roles that may be suitable to convert her into, would then necessarily be chronicled by the decision maker in the conduct of the fresh review.
  1. [97]
    The Department should not omit to consider Ms Spry's length of service as an AO6 employee as well as her involvement in the 'Business Simplification - Rent Campaign project' and the 'Rates project' as this experience may be relevant to finding a suitable, similar position. Further, the Department should be reminded that a vacancy is not required for Ms Spry to be converted to permanent.
  1. [98]
    I order accordingly.

Orders:

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

  1. That the deemed decision is set aside, and the matter is to be returned to the chief executive of the Department with a copy of this decision.
  1. That the employment review prescribed in Directive 09/20 is to be conducted according to law, including the provision of adequate reasons regarding each of the mandatory criteria prescribed in that Directive.
  1. The outcome of the review must be provided to Ms Spry by 20 July 2021.

Footnotes

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

[2] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[3] Industrial Relations Act 2016 (Qld) s 567(2).

[4] Industrial Relations Act 2016 (Qld) s 564(2).

[5] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[6] House v The King (1936) 55 CLR 499, [2].

[7] (1995) 149 QGIG 777.

[8] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[9] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[10] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[11] [2010] ICQ 35, [6].

[12] [2021] QIRC 22.

[13] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [37], [38] and [40].

[14] Jones v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, 15 October 2020, McLennan IC), [70].

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

[16] [2018] QSC 225.

[17] [2018] QSC 225.

[18] Temporary Employment Directive 08/17 cl 14.

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

Close

Editorial Notes

  • Published Case Name:

    Spry v State of Queensland (Department of Communities, Housing and Digital Economy)

  • Shortened Case Name:

    Spry v State of Queensland (Department of Communities, Housing and Digital Economy)

  • MNC:

    [2021] QIRC 231

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    29 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
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Katae v State of Queensland [2018] QSC 225
4 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Cite 4 - [2018] QSC 225
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
2 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
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
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 22
2 citations
Jump To
Cite 1 - [2021] QIRC 22
Cite 2 - [2021] QIRC 22

Cases Citing

Case NameFull CitationFrequency
Lisle v The Public Trustee of Queensland [2021] QIRC 3531 citation
1

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