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  4. Mancuso v State of Queensland (Department of Communities, Housing and Digital Economy) - [2021] QIRC 241

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Mancuso v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 241

Mancuso v State of Queensland (Department of Communities, Housing and Digital Economy)[2021] QIRC 241

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Mancuso v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 241

PARTIES:

Mancuso, Rosario

(Appellant)

v

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

(Respondent)

CASE NO:

PSA/2021/121

PROCEEDING:

Public Service Appeal - Conversion Decision

DELIVERED ON:

14 July 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

  1. The appeal is allowed.
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside.
  1. I direct that a copy of the decision on appeal be provided to the decision maker and that a fresh review be conducted in accordance with the relevant provisions of the Public Service Act 2008 and Directive 09/20.
  1. I further direct that the review is to be conducted by the Respondent within 14 days.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where appellant is acting in a temporary role – where substantive employee is temporarily performing duties in an alternative position – where substantive employee is on approved parental leave – consideration of "genuine operational requirements" – appeal allowed – fresh review to be conducted.

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B

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

Public Service and Other Legislation Amendment Act 2020 (Qld)

Fixed Term Temporary Employment – Directive 09/20, cl 7, cl 8

CASES:

Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

King-Koi v State of Queensland (Department of Education) [2020] QIRC 209

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

Reasons for Decision

 Introduction

  1. [1]
    Mr Rosario Mancuso appeals a decision of the State of Queensland (Department of Communities, Housing and Digital Economy) ("the Department") to not convert his fixed term temporary position to a permanent position.
  1. [2]
    Mr Mancuso has temporarily been employed in the position of AO6, Senior Program Officer, Property Management and Facilities within the Department since 11 February 2019.  Mr Mancuso's fixed term temporary employment has been extended on 7 occasions; 6 times as an AO6 Senior Program Officer and once as an AO7 Principal Program Officer (between 14 October 2019 to 29 November 2019).  Mr Mancuso's current fixed term temporary employment contract ends on 3 August 2021.
  1. [3]
    On 26 March 2021, Mr Mancuso wrote to the Department and requested that he be appointed permanently to the position of AO6, Senior Program Officer in accordance with Directive 09/20: Fixed term temporary employment ("Directive 09/20").
  1. [4]
    On 31 March 2021, the Department confirmed, in writing, that a decision had not been made within the prescribed time and accordingly it was taken that a decision was made refusing Mr Mancuso's request to be permanently appointed to the role in which he has been acting[1] ("the decision").
  1. [5]
    By notice of appeal filed in the Industrial Registry on 1 April 2021, Mr Mancuso, pursuant to Ch. 7 of the Public Service Act 2008 (Qld) ("PS Act"), appeals the decision.
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission.
  1. [7]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [8]
    As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing but, rather, involves a review of the decision arrived at and the decision making process associated with it.[4]
  1. [9]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The decision

Relevant provisions of the PS Act and Directive 09/20

  1. [10]
    In determining this appeal, I have had regard to relevant provisions of the PS Act and "Directive 09/20", including those provisions which I set out below.
  1. [11]
    Section 148 of the PS Act provides as follows:
  1. 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 if 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. (4)
    The employment may be full-time or part-time.
  1. (5)
    A person employed under this section does not, only because of the employment, become a public service officer.
  1. (6)
    The commission chief executive may make a directive about employing fixed term temporary employees under this section.
  1. [12]
    Section 149A of the PS Act provides as follows:

 149A Decision on review of status

  1. (1)
    The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
  1. (2)
    The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if—

 (a) the department’s chief executive considers—

  (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

  (ii) the person is eligible for appointment having regard to the merit principle; and

 (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.
  1. (4)
    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 person 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 under section 149; and
  1. (c)
    for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee has been extended.
  1. (5)
    If the department’s chief executive does not make the decision within the period required under subsection (1), the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.
  1. (6)
    The commission chief executive may make a directive about making a decision under this section.
  1. [13]
    Section 149B of the PS Act relevantly provides as follows:

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.
  2. (2)
    However, this section does not apply to a non-industrial instrument employee.
  3. (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
  2. (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
  2. (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
  2. (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
  2. (b)
    the total period for which the person has been continuously employed in the department; and
  3. (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
  4. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment.
  1. (7)
    If the department’s chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person’s employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee’s existing employment.

…

  1. [14]
    Deputy President Merrell[5] recently considered the operation of s 149A(2) and (3) of the PS Act.  Section 149A(2) and (3) of the PS Act are referred to and applied by the operation of s 149B(5) of the PS Act.  Relevantly Deputy President Merrell stated:

[20] Reading sub-ss 149A(2) and (3) of the PS Act together and in context, the purpose of s 149A(2) is to set out the matters of which the chief executive must be satisfied before he or she is required, pursuant to s 149A(3), to offer to convert the relevant person's employment basis to employment as a general employee on tenure or a public service officer. Therefore, in my view, the transitive verb 'considers' in s 149A(2)(a) relevantly means: 'to regard as or deem to be'.[6] Thus, if a chief executive is of the opinion that there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role, and the employee is eligible for appointment having regard to the merit principle (and where relevant, there is compliance with any requirements of an industrial instrument),[7] the chief executive must decide to make a conversion offer.

[21] Again, reading sub-ss 149A(2) and (3) of the PS Act together and in context, the only circumstance where a chief executive officer can decide not to make a conversion offer is where the chief executive forms the opinion that it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

[22] As I recently stated in Morison v State of Queensland (Department of Child Safety, Youth and Women)[8] in respect of the phrase 'genuine operational requirements of the department' in s 149C(4A)(a) of the PS Act and in cl 6.2(a) of Directive 13/20 Appointing a public service employee to a higher classification level:

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

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

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

…

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

  1. [15]
    I consider that given the language of s 149B(5) of the PS Act and that it states that s 149A(2) and (3) applies, that similar reasoning be adopted when considering s 149B of the PS Act (and, as referred to below, in the application of cl 8.2 of the Directive).
  1. [16]
    Accordingly, the relevant question to be asked is whether or not it is viable or appropriate to offer to convert a fixed term temporary employee or casual employee having regard to, for example, authentic requirements for the effective, efficient and appropriate management of the public resources of the department or the authentic planning of the human resources of the department.
  1. [17]
    I have also considered Directive 09/20.  Clause 8 of Directive 09/20 relevantly states:
  1.  Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

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

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954,[9] the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.

8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decision.

Is the decision fair and reasonable?

  1. [18]
    There is no dispute that Mr Mancuso was eligible for review, pursuant to s 149B of the PS Act, in respect of his temporary employment status.
  1. [19]
    Indeed, the Department concedes that such a review should have occurred on or about 11 February 2021.  It submits that because of "unforeseen circumstances", particularly in relation to machinery of government changes, a review of Mr Mancuso's temporary employment was not conducted in accordance with s 149B(4)(a) of the PS Act.  The Department's explanation of "unforeseen circumstances" is not a satisfactory explanation as to why the Department failed to comply with its obligations in accordance with the PS Act and Directive 09/20.  In any event, a consequence of the Department's conduct is that no review of Mr Mancuso's temporary employment has occurred.
  1. [20]
    The Department submits that Mr Mancuso's current temporary engagement as an AO6, Senior Program Officer, is to backfill the substantive employee while the substantive employee was relieving in an alternative position and then was on approved maternity leave.
  1. [21]
    The Department further submits that the substantive occupant of the position returned to work from maternity leave on 30 January 2021.  From that time, Mr Mancuso and the substantive employee have entered a job share arrangement, where Mr Mancuso works 3 days per week in the role and the substantive employee works the remaining 2 days per week.
  1. [22]
    On 13 April 2021, the substantive employee advised that they wish to return to work full‑time on 2 August 2021. The Department submits that Mr Mancuso's temporary engagement is to backfill a substantive employee while the substantive employee was on maternity leave and now is sharing the role. The Departments also submits that on that basis, there is no longer a continuing need for Mr Mancuso to be employed.
  1. [23]
    The Department contends that there are no other roles with substantially the same capability requirements and there is not a continuing need for Mr Mancuso to be employed in the role.
  1. [24]
    The submissions made on behalf of the Department do not provide evidence, or any other explanation, to support the Department's contention that there are no other roles with substantially the same capability requirements and there is not a continuing need for Mr Mancuso to perform the role.  Given that the Department has not conducted the review, the lack of evidence of information to support this contention is not surprising.
  1. [25]
    The decision does not accord with the requirements of s 149(5)(a) of the PS Act and clause 8.1 of Directive 09/20 as the Department has failed to consider, in a material way, whether there is a continuing need for a person to be employed in the role or a role which is substantially the same.  It is for this reason that I consider the decision not to be fair or reasonable.
  1. [26]
    Given the absence of evidence or any other information with respect to whether there is a need for someone to be employed in a role which is substantially the same as Mr Mancuso's role, I am unable to form a conclusion with respect to the matter.  For that reason, I will direct the matter be returned to the Department in order for it to conduct a review in accordance with the relevant provisions of the PS Act and Directive 09/20.

Order

  1. [27]
    I make the following orders:
  1. The appeal is allowed.
  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside.
  1. I direct that a copy of the decision on appeal be provided to the decision maker and that a fresh review be conducted in accordance with the relevant provisions of the Public Service Act 2008 and Directive 09/20.
  1. I further direct that the review is to be conducted by the Respondent within 14 days.

Footnotes

[1] Public Service Act 2008 (Qld), s 149B(7).

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

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

[5] King-Koi v State of Queensland (Department of Education) [2020] QIRC 209.

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

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

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

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

27B Content of statement of reasons for decision

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

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.
Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2021] QIRC 241

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    14 Jul 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 & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
2 citations
Jump To
Cite 1 - [2020] QIRC 209
Cite 2 - [2020] QIRC 209
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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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