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Chan v State of Queensland (Queensland Health)[2021] QIRC 243

Chan v State of Queensland (Queensland Health)[2021] QIRC 243

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243

Chan, Shaun

(Applicant – PSA/2021/218)

&

Fogarty, Georgia Rose

(Applicant – PSA/2021/219)

&

Moloney, Teague

(Applicant – PSA/2021/220)

&

Huang, Yi–Chin

(Applicant – PSA/2021/221)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/218 – 221

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

14 July 2021

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDERS:

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

  1. The appeal is allowed;
  2. The decision that Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang each do not have their temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang's temporary employment status as a Radiation Therapist (HP classification) be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – temporary employment – decision under s 149B of the Public Service Act 2008 – joinder of matters – where internal review process undertaken – whether appellants' period of provisional registration counts towards continuous service – whether requirements of industrial instrument complied with – backfilling of substantive occupants – consideration of whether permanent conversion would result in above establishment – continuing need in ongoing roles – no genuine operational requirement – decision set aside and substituted

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, s 38

Directive 08/17 Temporary employment cl 9, cl 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 7, cl 8, cl 9, cl 10

Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 72, cl 95, cl 97

Industrial Relations Act 2016 (Qld) s 451, s 452, s 562B, s 562C, s 564, s 567

CASES:

Public Service Act 2008 (Qld) s 27, s 148, s 149, s 149A, s 149B, s 194, s 195, s 196, sch 4

Statutory Instruments Act 1992 (Qld) s 14

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

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

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

Joshi v State of Queensland (Queensland Health) [2021] QIRC 212

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

Merry v State of Queensland (Queensland Health) [2021] QIRC 025

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

Ouseph v State of Queensland (Queensland Health) [2021] QIRC 104

Reasons for Decision

Introduction

  1. [1]
    Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi–Chin Huang (the Appellants) are currently employed as Radiation Therapists (HP classification) with Metro North Hospital and Health Service (MNHHS), State of Queensland (Queensland Health) in Brisbane. 
  1. [2]
    The Appellants have each worked with MNHHS since 11 February 2019 on successive fixed term temporary employment contracts.
  1. [3]
    Through their union – United Voice[1] – Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang each requested MNHHS's consideration of their conversion to permanent employment in February 2021[2] (the Conversion Requests). 
  1. [4]
    Upon commencement with MNHHS, the Appellants first completed "a year of supervised practice in order to gain general registration with AHPRA to practice as a registered Radiation Therapist."[3]  They each then progressed from 'provisional' to 'general' registration with AHPRA in the period between January and March 2020.[4] 
  1. [5]
    The sequence of registration status was considered to be significant to the preliminary decisions made by Associate Professor Glen Kennedy (the delegate) not to convert the Appellants' fixed term temporary employment to permanent.
  1. [6]
    While MNHHS acknowledged that the Appellants had made their conversion requests under s 149B of the Public Service Act 2008 (Qld) (PS Act) and Directive 09/20 Fixed term temporary employment (TE Directive), the preliminary decisions were that they were "not eligible for review at this time as you have not had 2 years of continuous service as a registered Radiation Therapist."[5]
  1. [7]
    The preliminary decisions also indicated that "the role is not likely to be ongoing", as the Appellants' current contracts were for the purpose of "backfilling a substantive occupant".[6]
  1. [8]
    The Appellants were advised of the delegate's preliminary decisions on 9 April 2021 (the Preliminary Decision Letters).[7]   Dissatisfied with that outcome, Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang then elevated their conversion requests through the Internal Review process.[8]
  1. [9]
    On 4 June 2021, the Appellants were advised in writing that the Temporary Conversion Review Panel (the panel) had been "unable to reach consensus to either overturn or confirm the preliminary decision" and that "the HR Branch has decided that it will not overturn the preliminary decision" either.[9]  In those circumstances, cl 97.8 of the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 (the EBA) states that the delegate's preliminary decision then becomes the 'final decision' on the conversion requests. 
  1. [10]
    The effective date of the final decisions verbally given was 26 May 2021.[10]
  1. [11]
    Clause 97.11 of the EBA provides that "Any disputes about the operation of this clause that cannot be resolved may be referred to the Queensland Industrial Relations Commission for assistance." 
  1. [12]
    Section 194(1)(e) of the PS Act enables a conversion decision under s 149B to be appealed.  Section 195 does not prevent the appeals.  Section 196 describes who may appeal a conversion decision – and I am satisfied that each of the Appellants are "the employee the subject of the decision" and may appeal the final decisions.[11]
  1. [13]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) provides that the filing of an appeal to an industrial tribunal is to occur "within 21 days after (the decision was given to the appellant)".
  1. [14]
    As the final decisions were given to the Appellants on 26 May 2021 and the Appeals were filed in the Industrial Registry on 16 June 2021, I find that the Appeals were filed in time.
  1. [15]
    Pursuant to chp 7 of the PS Act, the Appellants have appealed against decisions that their employment as Radiation Therapists remain as temporary with MNHHS (the final decision).
  1. [16]
    This Appeal turns on two key questions:

a) Eligibility for conversion review; and

b) Consideration of the mandatory criteria.

  1. [17]
    For the reasons that follow, I find that:

a) Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi–Chin Huang are each eligible for conversion review.

b) MNHHS have engaged with the mandatory criteria – but have not demonstrated its consideration of the mandatory criteria in its entirety.

Joining of Matters

  1. [18]
    Appeal Notices for matters PSA/2021/218 – 221 were separately filed on 16 June 2021.
  1. [19]
    Each Appellant separately appointed their union – United Voice – to be their agent in the matter on 16 June 2021.[12]
  1. [20]
    In light of the imminent expiry date of the current fixed term temporary contracts of 2 July 2021, the Industrial Registry allocated the four separate Public Service Appeals (PSA) to different Industrial Commissioners to decide.  Chambers then issued Directions Orders in each of the separate PSA matters.
  1. [21]
    On 18 June 2021, Mr Simon Ong emailed the Industrial Registry and Associates to advise that "UV has held discussions with the Respondent in these matters and the parties jointly request the matters be joined and heard together pursuant to the Commission's powers contained at s. 452(2) of the Industrial Relations Act 2016." 
  1. [22]
    In light of the parties' consent, the identical issues in dispute and MNHHS's preparedness to extend each of the fixed term temporary contracts until 1 October 2021, I ordered that the four Appeal matters PSA/2021/218 – 221 be joined on 21 June 2021.  That Order also vacated the previous Directions in each separate Appeal matter – and issued fresh Directions in the (now joined) Appeal matters. 

Appeal principles

  1. [23]
    Section 562B(1)(3) of the IR Act provides that the section applies to a public service appeal made to the Commission.  The purpose of the appeal is "to decide whether the decision appealed against was fair and reasonable."[13]
  1. [24]
    The appeal must be decided by reviewing the decision appealed against.[14] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[15]
  1. [25]
    An appeal under chp 11, pt 6, div 4 of the IR Act is not by way of rehearing,[16] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [26]
    Findings made by the HHS, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the IRC member may allow other evidence to be taken into account.[17]
  1. [27]
    The key issue for my determination is whether the HHS's decision to deny the conversion of the Appellants' temporary employment as Radiation Therapists to permanent was fair and reasonable in the circumstances. This requires a consideration of s 149B of the PS Act and of the TE Directive.
  1. [28]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [29]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

a) confirm the decision appealed against; or

b) set the decision aside and substitute another decision; or

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.

Appeal Notices

  1. [30]
    In the Appeal Notices filed on 16 June 2021, Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang submitted that:

a) They received the final decisions on 26 May 2021.

b) They are currently employed as Radiation Therapists (HP classification) by Metro North Hospital and Health Service (MNHHS), located in Cancer Care Services at the RBWH.

c) They commenced in this role on 11 February 2019.

d) Since commencement, their fixed term, temporary employment contracts have been extended on the following dates: 4 January 2020, 4 July 2020, and 2 January 2021.

e) On 23 February 2021, they requested conversion from fixed term temporary to permanent employment.

f) On 9 April 2021, the conversion requests were refused on the grounds that:

  • Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang were "not eligible for review at this time as you have not had 2 years of continuous service as a registered Radiation Therapist"; and
  • Their current temporary contracts expiring on 2 July 2021 were for the purposes of "backfilling a substantive occupant" and "at this stage", it was determined that "the role is not likely to be ongoing".

g) They then requested an Internal Review Process of the preliminary decisions.

h) On 26 May 2021, they were advised that the panel could not achieve consensus and thus the 'preliminary decisions' became the 'final decisions' at that point.

i) The conversion decision incorrectly interprets the law, incorrectly conflating their periods of service with the HHS with their AHPRA registration status.

j) S 149B of the PS Act applies to a fixed term temporary employee "continuously employed in the same department for 2 years or more."  They satisfy that criteria and note that their registration status is separate and distinct from their periods of continuous service – and thus irrelevant to the consideration of their conversion requests.

k) The conversion decisions are unfair and unreasonable, having regard to ss 149A and 149B of the PS Act, because:

  • They each meet the merit criteria.
  • There is a continuing need for someone to be employed in the role, or a role which is substantially the same.  The Appellants have each been employed in the role since 11 February 2019; their temporary contracts have been extended on 3 occasions; those extensions demonstrate a continuing need; continuing need is further demonstrated "having regard to patient loads and other operational factors."
  • There are no genuine operational reasons which may otherwise prevent the conversions, noting that "it is well established that the lack of an available permanent vacancy is not a genuine operational requirement which can prevent conversion to permanent."
  • The decision maker was bound to convert the Appellants' employment to permanent, in light of the above.

Preliminary Decision Letters

  1. [31]
    The preliminary decisions were contained in correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang dated 9 April 2021. 
  1. [32]
    In summary, those correspondence stated that:
  1. The Appellants were "not eligible for review at this time" as they had not had "2 years of continuous service as a registered Radiation Therapist."
  1. The Appellants did not hold general registration with AHPRA for the first part of their employment with MNHHS.[18]
  1. There is no issue with respect to the Appellants' merit.
  1. The current temporary contracts are for the purpose of backfilling a substantive occupant and have expiry dates of 2 July 2021.
  1. [33]
    Specifically, the delegate's reasons for declining the Appellants' conversion requests were expressed as:
  1. Ineligible for conversion

…I note you commenced with Metro North Hospital and Health Service (MNHHS / the Service) on 11 February 2019 to complete a year of supervised practice in order to gain general registration with AHPRA to practice as a registered Radiation Therapist.  On 25 January 2020, you progressed from a provisional registration and obtained your general registration.  In order to practice as a Radiation Therapist within Australia, it is mandatory to hold general registration with AHPRA.  As you did not hold general registration between 11 February 2019 and 25 January 2020 and did not meet the minimum requirements to be a permanent Radiation Therapist, I am unable to consider you for a Radiation Therapist position under section 149B of the Act.  As such, your employment will remain as fixed term at this time.[19]

  1. No continuing need

Continuing need

In addition to the above, I note that your current end date is 2 July 2021 as you are backfilling a substantive occupant.  As (sic) this stage, I have determined that the role is not likely to be ongoing.[20]

Final Decision Letters

  1. [34]
    The final decision was contained in correspondences from Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health to Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang dated 4 June 2021.
  1. [35]
    In summary, those correspondences stated that:

a)  A temporary conversion review panel was constituted under cl 97 of the EBA to review the preliminary decisions of the delegate.

b)  The panel was unable to reach consensus and the HR Branch determined not to overturn the preliminary decisions.  On that basis, and under cl 97.8 of the EBA, the preliminary decisions have become the final decisions.

c)  The effective date of those outcomes was 26 May 2021.

Decision Maker Response to Internal Review Request ('DMRIRR document')

  1. [36]
    MNHHS prepared a submission for the Internal Review process dated 5 May 2021.  That document was attached to the Appellants' submissions filed 29 June 2021. 
  1. [37]
    In summary, the MNHHS's position contained therein was that:

  Background

a)  The Appellants completed a three year degree in Radiation Therapy followed by 48 weeks of supervised practice. 

b)  Clause 72 of the EBA details the different pay points applicable to health practitioners with 'provisional' and 'general' registration.

c)  During the 48 weeks of supervised practice, the Appellants were provisionally registered with AHPRA and were "required to complete a formal program of supervision and evaluation to be undertaken by the supervised practitioner."  AHPRA requirements are for 'direct supervision' in this period, including that "A supervised practitioner cannot practise as a practitioner."

d)  The Appellants accepted a defined period of employment of 11 months and 2 weeks as 'Graduate Radiation Therapists' and were paid at HP3.0 classification in accordance with the EBA in that initial period.

e)  Graduate Radiation Therapists will only be offered ongoing employment "if there is a requirement for a general registered Radiation Therapist which is normally due to permanent or temporary vacancies due to a variety of reasons including resignations or retirements or an appointed / incumbent employee being either on some form of long term leave or higher classified duties or secondment.  There is no requirement or ability to maintain employment of Graduate Radiation Therapists at HP 3.0 past their attaining general registration."

   The Decision

f)  Between 23 – 25 February 2021, the Appellants sought permanent conversion under s 149B of the PS Act.  Such reviews can only proceed if the employee has a minimum of 2 years continuous service.

g)  With reference to the reasons provided for refusing the conversion requests contained in the Preliminary Decision Letter, MNHHS noted that it "did not include or consider that the year employed as a Graduate Radiation Therapist / Radiation Therapist HP 3.0 / Radiation Therapist with provisional registration should be included when giving consideration if an employee has met the 2 years continuous service as required by section 149B of the Act."

   Reasons for Decision

h)  It is accepted that the PS Act makes permanency the preferred, default employment arrangement for public sector workers. 

i)  However, s 148 does envisage situations where employment on tenure is not viable or appropriate, including at s 148(2)(b) (Emphasis added):

   (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

j)  "The case of Graduate Radiation Therapists is not one where they could have been employed as permanent from day one of their employment and that the section 149B review at 2 years rectifies a mistake.  The initial period of employment, the provisional registered period, is not one that could have been made permanent on commencement."

k)  "Should it be that the year of supervised practice for a Radiation Therapist with a 3 year degree be considered for purposes of the Act then the flow on from this, is that Apprentices at 2 years and medical Registrars at 2 years and all Graduates with 2 years would need to be considered for conversion to permanent Apprentices, permanent Registrars and permanent Graduates.  The Service does not believe that this is the intent of the Act or the Directive."

l)  "It is also of note that none of the 4 Therapists applied under section 149 of the Act for conversion after 1 year of continuous service.  We believe this is because there is an acceptance from the Therapists and their union that the year under supervision, with provisional registration, in the graduate role, is not one that could be converted to permanent and if that is the case, then subsequently that time should not be considered for determining the 2 years of continuous service for section 149B decisions."

   Remedy

m)  MNHHS proposed that the Appellants' initial 12 month employment period of 'provisional' registration should not be taken into account for evaluation of the 2 years continuous employment requirement stipulated in the PS Act.

n)  MNHHS sought a determination that the 2 year requirement has not yet been met – and for a review to be conducted should the four Appellants remain employed by MNHHS 2 years after obtaining their general registration.

o)  Alternatively, if it is found that the initial 12 month period of provisional registration counts towards the two year requirement for s 149B reviews, MNHHS asks that the matter be returned to the decision maker for review.  "This further review would be to specifically determine if there is an ongoing need for the person to be employed.  It should be noted that this determination, the ongoing need requirement under the Act and Directive, has not been considered by the Service due to the position taken that the 2 years' service provision had not been met."

Relevant provisions of the PS Act, TE Directive and EBA

  1. [38]
    Section 149B of the PS Act relevantly provides:

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. (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. [39]
    Schedule 4 Dictionary of the PS Act provides:

continuously employed, in relation to a person employed in a department for a period, means the person is employed in the department –

(a)   continuously as a fixed term temporary employee for the period; or

  1. (b)
    as a casual employee on a regular and systemic basis during the period; or
  1. (c)
    continuously as an employee mentioned in subparagraphs (i) and (ii) for the period.
  1. [40]
    Section 149A(2) of the PS Act provides:

(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. [41]
    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. [42]
    The TE Directive relevantly provides:
  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, 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).

…

  1. [43]
    Clause 97 Temporary and Casual Conversion Panel Review Process of the EBA states:

97.1. A Temporary and Casual Conversion Panel Internal Review Process (Internal Review Process) applies where:

 (a) there has been an outcome of a review of status of employment by decision maker in accordance with either the Temporary Employment Directive (08/17) or the Conversion of Casual Employees to Permanent Employment Directive (01/17);

 (b) the outcome of the review decision has been notified to the employee in accordance with sections 149(1)(a) or (b);

 (c) an appeal under sections 194(1) or 194(ea) of the Public Service Act 2008 has not been made; and

 (d) employee's union representative or the employee (each "the notifier") are of the view the decision maker has made an incorrect decision in accordance with the applicable directive.

97.2. The notifier may, within seven days of the employee being notified of a decision, inform the decision maker that the decision is not accepted, and on this basis request an Internal Review Process is conducted. In which case the temporary employee review outcome becomes a preliminary decision.

97.3. Within 14 days of receiving the request under clause 97.2 , the nominated Department of Health Human Resources Branch (HR Branch) representative must hold a conference for the purposes of conducting a review of the preliminary decision. The members for the purposes of conference will comprise of the HHS or Division representative(s); the Department of Health; and the notifier.

97.4. The notifier and HHS or Division representative will provide all relevant materials of the preliminary decision to the nominated HR Branch representative in advance of the conference.

97.5. The purpose of the conference is to attempt to reach consensus on the preliminary decision to convert or not to convert.

97.6. If at the conference consensus is reached to overturn the preliminary decision, the revised decision will be communicated in writing to the notifier and to the decision maker in order to implement the decision.

97.7. If at the conference consensus cannot be reached between the parties, the HR Branch, having regard to requirements of the relevant directive, may arrive at a decision contrary to the original decision maker and decide to overturn the preliminary decision. Where the outcome of the review decision is overturned, the new decision will be communicated in writing to the notifier and to the original decision maker in order to implement the new decision.

97.8. Where consensus cannot be reached between the parties or HR Branch does not overturn the preliminary decision, it will become the final decision with the effective date being the day the employee receives the notice not to overturn the preliminary decision.

97.9. Where a notifier withdraws their request for an Internal Panel Review Process or where the notifier commences an appeal under sections 194(1) or 194(ea) of the Public Service Act 2008 prior the conference being held, this process is taken to be terminated.

97.10. The employer will provide reports on the conversion of temporary and casual employees that contain classification stream and occupational type for employees covered by this Agreement to the HPDOCG on a quarterly basis.

97.11. The parties will review the effectiveness of the activities associated with this clause, 12 months from certification of this agreement. The parties will attempt to minimise disputes about the operation of this clause. Any disputes about the operation of this clause that cannot be resolved may be referred to the Queensland Industrial Relations Commission for assistance.

  1. [44]
    Clause 95 Permanent Employment of the EBA states:

95.1. The parties recognise that permanent employment is the preferred type of engagement under this Agreement and are committed to maximising permanent employment where possible. Casual or temporary forms of employment should only be utilised where permanent employment is not viable or appropriate. The employer will utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs.

95.2. Where employees are engaged on a temporary basis, contracts of employment should reflect the actual duration of the engagement and the reason for the engagement being temporary. Recruitment of temporary employees is to be in accordance with HR Policies B1 Recruitment and Selection, B24 Appointments – Permanent and/or Temporary – Commonwealth and/or State Funded Programs, B25 Temporary Employment and B52 Conversion of Temporary Employees to Permanent Status.

…

Submissions

  1. [45]
    The parties exchanged written submissions in accordance with the Directions Order issued on 21 June 2021.

 Appellants' submissions

  1. [46]
    United Voice filed submissions in support of the Appeal, on behalf of Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang on 29 June 2021.  These are summarised below:
  1. a)
    The Appellants' conversion requests were made under s 149B of the PS Act, on the basis that they had each completed 2 years of service in the same Department.
  1. b)
    MNHHS prepared a document titled "Decision Maker Response to Internal Review Request" to elaborate their position, as part of the Internal Review process.
  1. c)
    The Internal Review process did not achieve consensus and so the preliminary decision became the final decision as at 26 May 2021.
  1. d)
    The HHS's reasons for refusing the conversion requests were that they had not completed two years continuous service as Radiation Therapists on general registration – and that the roles were not likely to be ongoing given the intention was to be backfilling the substantive occupants.  It was agreed that the merit requirement was fulfilled.
  1. e)
    The Appellants' three stated grounds of appeal are:
  • Eligibility

The HHS incorrectly concluded that the Appellants had not completed 2 years continuous service in the same department and were therefore not eligible for conversion.

  • Continuing need

The HHS incorrectly and unfairly concluded that there was not a continuing need for someone to be in the Appellants' roles (or a role that is substantially the same). 

  • Notice

The HHS's decision does not contain all the required elements in s 149B(6) of the PS Act.

  1. f)
    Further to the 'Eligibility' ground, the Appellants submit that:
  • They commenced employment on 11 February 2019 with 'provisional registration' with AHPRA. 
  • Between 25 January 2020 and 12 March 2020, the Appellants each obtained 'general registration' with AHPRA.
  • The HHS has erroneously conflated registration status with periods of service for the purposes of s 149B of the PS Act and cl 7.1 of the TE Directive, that provide the criteria for eligibility as being two years continuous service within the same department or agency.
  • The Appellants each completed two years continuous service on 11 February 2021.
  • The QIRC has previously cautioned in Ouseph v State of Queensland (Queensland Health) [21] against conflation of service for the purposes of AHPRA registration and service for other purposes.
  • Unlike in Merry v State of Queensland (Queensland Health),[22] the Appellants' appointments were not subject to completion of APHRA registration requirements or similar restrictions.
  • The decision maker's response erroneously references cl 72 of the EBA.  That commenced operation in 18 August 2020, after the Appellants' date of commencement.  Further, it is applicable in determining the appropriate pay point upon commencement for health practitioners possessing provisional registration – it is not relevant to an employee's period of service.
  • The decision maker's response erroneously seeks to distinguish between the supervision requirements for health practitioners with 'provisional' and 'general' registration.  However, it is instead the work level statements indicating the nature and scope of the role applicable to those at the HP3 classification level at sch 4 of the EBA that is the pertinent point.  Supervision remains a feature of HP3 roles, irrespective of the degree of supervision required by AHPRA professional registration standards.
  • Notwithstanding the above, the degree of supervision required of the Appellants is different from their period of continuous service.
  1. g)
    Further to the 'Continuing need' ground, the Appellants submit that:
  • The delegate included a statement in the Preliminary Decision Letter indicating that the criteria at s 149A2(a)(i) of 'continuing need' had not been met. 
  • The Appellants' temporary contracts have been extended four times.[23] 
  • "At no point have the appellants been made specifically aware of the role/s which they are said to be backfilling…No incumbent occupants of the substantive roles have been identified to the appellants." 
  • The HHS's conclusion that the role is "not likely to be ongoing" is not resultant from objective analysis of the history of the Appellants' roles, the continued extension of their roles and the operational requirements.  It was incorrect and unfair in the circumstances.
  1. h)
    Further to the 'Notice' ground, the Appellants submit that:
  • Section 149B(6) of the PS Act specifies the mandatory inclusions in a notice to be provided to employees where a decision is made not to offer to convert the fixed term temporary employment to permanent.
  • The delegate's Preliminary Decision Letter does not state how many times the Appellants' contracts have been extended – thus, the provided notices are not compliant with the provision.
  1. i)
    The remedy sought by the Appellants was conversion to permanency.
  1. j)
    Throughout their employment, the Appellants have worked full time hours according to a predictable roster.

Respondent's submissions

  1. [47]
    MNHHS filed submissions on 6 July 2021 opposing the Appeal.  These are summarised below:

a) MNHHS and MSHHS[24] jointly advertised Graduate Radiation Therapist vacancies, closing 21 September 2018.  Applicants were confined to those completing studies at the end of 2018 and eligible to obtain provisional registration.

b) The four Appellants were appointed as Graduate Radiation Therapists with MNHHS on fixed term contracts, commencing 11 February 2019 and concluding 24 January 2020.  The appointments were made at HP3.0 classification, in accordance with cl 72 of the EBA.

c) The Appellants completed a 3 year degree followed by 48 weeks of supervised practice.[25]  They each held provisional registration and were directly supervised in this period, in accordance with AHPRA requirements.

d) During the 48 weeks of supervised practice, the Graduate Radiation Therapists were subject of special work arrangements, consistent with the direct supervision restrictions.

 First 12 month fixed term employment

e) Section 148(2) of the PS Act does envisage situations where employment of a person on tenure "is not viable or appropriate", including the example of "employment for a set period as part of a training program or placement program." 

f) MNHHS submitted that:

  1. The case of Graduate Radiation Therapists is not one where they could have been employed as a permanent employee from day one of their employment and that the section 149B review at 2 years rectifies a mistake. 
  1. The initial period of employment, the provisional registered period, is not one that could have been made permanent on commencement.  There is no requirement or capacity to permanently employ a provisionally registered Radiation Therapist just as there is no requirement or capacity to permanently employ an Apprentice or permanently employ a Graduate Administration Officer or a Registrar (training) Medical Officer. 
  1. During the initial year of supervised practice, the Appellants could not have applied for employment as a Radiation Therapist in any private or public setting.

g) The Appellants did not apply under s 149 of the PS Act for conversion after 1 year of continuous service.  Section 149A(2)(a)(i) requires the chief executive to consider the current role or a role which is substantially the same "which could only mean conversion to a permanent Graduate Radiation Therapist role, that is a permanent training role.  There are no permanent training roles and therefore conversion would not progress for genuine operational reasons."

h) The conditions of employment for Graduate Radiation Therapists on HP3.0 classification with provisional registration are such that those first 12 months should not be considered or taken into account for evaluation of the 2 years continuous employment requirement stipulated in the PS Act.

i) The decision letter had conveyed to the Appellants that the absence of general registration in the first 12 months meant they had not met the minimum requirements to be a permanent Radiation Therapist and therefore were unable to be considered under s 149B of the PS Act.

 Genuine operational requirements (not to include 12 months Graduate role)

j) If the first year of supervised practice is to count towards the required two years continuous service eligibility for conversion review "there will be a significant negative impact to the genuine operational requirements of the Cancer Services unit." 

k) Any such decision would have an immediate negative effect on the four year degree holders and on the operations of the unit. 

l) There is also possible flow on effects to the operational requirements across the HHS in other training roles and registration arrangements.

 Genuine operational requirements (no ongoing role)

m) Upon achieving full registration, the Appellants were offered fixed term temporary contracts from 25 January 2020 to 3 July 2020.  The reasons for these were:

Mr Chan  Backfilling for an employee acting in a higher classification role

Ms Fogarty Backfilling for two employees (Lavelle and Warmington) electing to work part time, for a period following return from parental leave

Mr Moloney Backfilling for an employee absent on parental leave (Enomoto)

Mr Huang Backfilling for two employees (Millsom and Bell)[26] electing to work part time, for a period following return from parental leave

n) Further fixed term temporary contract extensions were provided from 4 July 2020 to 1 January 2021.  The reasons for these were:

Mr Chan Backfilling for two employees (Warmington and Longworth) electing to work part time, for a period following return from parental leave

Ms Fogarty Backfilling for two employees (Lavelle and McDonnell) electing to work part time, for a period following return from parental leave

Mr Moloney Backfilling for an employee absent on parental leave (Obereigner)

Mr Huang  Backfilling for an employee absent on parental leave (Enomoto)

o) I requested further information from MNHHS, with respect to the reasons for the next fixed term temporary contract extensions from 2 January 2021 to 2 July 2021.  These were not included in MNHHS's submissions initially,[27] but were later filed on 9 July 2021.  The reasons for these were:

Mr Chan Backfilling for two employees (Warmington and McDonnell) electing to work part time, for a period following return from parental leave

 [Note: MNHHS has advised that Ms Warmington has extended the part time arrangement to 28 January 2022 – and Ms McDonnell has advised intention to return full time on 30 January 2022].

Ms Fogarty Backfilling for two employees absent on consecutive secondments (Yu and Tutaki)

 [Note: MNHHS has advised that Ms Yu returned to her role earlier than expected and Ms Tutaki then commenced a secondment that is to end 31 December 2021].[28]

Mr Moloney Backfilling for an employee absent on parental leave (Obereigner)

 [Note: MNHHS has advised that Ms Obereigner was to return full time on 6 July 2021 – but on 5 May 2021,[29] extended the leave until 4 February 2022].

Mr Huang Backfilling for an employee absent on secondment (McCoola)

[Note: MNHHS has advised that Ms McCoola returns to the role on 10 September 2021].

I recognise that soon after the filing of these Appeals, MNHHS also extended the fixed term temporary contracts to enable time for the QIRC to consider and resolve the matters.

p) Radiation Therapy is not an area of clinical medicine that has seen significant employment growth due to an ageing population or employment growth.  In addition, there has been "a significant push from the private sector into the supply of radiation therapy services."

q) In 2013/2014 there were 88 Radiation Therapists employed in MNHHS, compared to 66 employed currently.  This number is not expected to either reduce or increase in the near future.  Should the Appellants be converted to permanent, "and therefore above establishment", the operations and services of the Cancer Care Services unit could be impacted if additional funding cannot be found.

r) In Morison v State of Queensland (Department of Child Safety, Youth and Women),[30] DP Merrell outlined that the phrase genuine operational requirements of the department would at least include consideration of whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department.

s) MNHHS submitted that the Decision to not convert the Appellants employment to permanent be affirmed.

  1. [48]
    In essence, MNHHS submitted that the Appeal faced the jurisdictional challenge of ineligibility for review under s 149B of the PS Act.  MNHHS also argued that the Appellants' employment on fixed term temporary contracts was appropriate given the genuine operational requirements, in circumstances where they were backfilling for incumbent absent employees and where there was not an authentic need for any additional "above establishment" positions.

Appellants' submissions in reply

  1. [49]
    On behalf of the four Appellants, United Voice then filed submissions in response.  These are summarised below:[31]

The eligibility ground

a) MNHHS has erroneously conflated period of service and AHPRA registration.

b) The relevant legislative criteria and principles expressed in Ouseph support the Appellants' eligibility for conversion.

c) The characterisation of the Appellants' role as "Graduate" is irrelevant to determining the period of continuous employment.  Further, such roles are not prevented from conversion under the PS Act or TE Directive - "This intent is reflected in the "Fixed term temporary and casual employment FAQs"."[32]

d) While the AHPRA standard is irrelevant to the Appellants' eligibility for conversion, the MNHHS had misquoted that extract in its submissions.  United Voice contended that misquote "dramatically alters the meaning of the extracted quote."[33]  Notwithstanding, supervision is a feature of all HP3 roles irrespective of registration status - it does not affect the Appellants' eligibility for conversion.

e) "The ability to review employment status after one year of employment was introduced into the PS Act on 14 September 2020 and was not operative when the appellants completed one year of service.  Irrespective, the appellants' decision not to pursue conversion at an earlier point does not support a conclusion that the appellants' roles are "training" roles and is irrelevant for the purposes of the appellants' request subject to these proceedings."[34]

f) The Appellants have each completed two years of continuous employment and are eligible for conversion under s 149B of the PS Act.

The continuing need ground

g) The Appellants provide health services at "the largest cancer care service in Queensland."[35] There has been no diminution of cancer care services at that location during the period of employment, nor is there likely to be in the future.

h) The Appellants understand that there are currently vacancies at HP3 level resultant from retirement and staff movement.  MNHHS has agreed that it "does not maintain fixed establishment numbers"[36] and this is an unreasonable basis for rejecting conversion.

i) Backfilling of incumbents due to leave and secondments "will continue to be a constant feature of the respondent's operations"[37] and can be alleviated by conversion of the Appellants.

j) The numerous and continued temporary contract extensions support the continuing need for the Appellants' role.

k) The EBA states that temporary contracts "should reflect the actual duration of the engagement and the reason for the engagement being temporary."[38]  That has not occurred in these cases.

l) MNHHS's "vague and barely comprehensible submissions alleging "negative impacts" upon 4-year degree holders and on the operations of the unit"[39] should be dismissed.  The Appellants instead state that "positive, collegial, and harmonious working relationships"[40] are enjoyed between the 3-year and 4-year qualified Radiation Therapists.

m) The delegate had relied on two grounds – eligibility for review and continuing need – to refuse the Appellants' conversion request in the first instance.  The delegate's refusal was not stated to be based on 'genuine operational requirements'.  That MNHHS is now introducing that claim in this Appeal supports a conclusion that the decision was not fair and reasonable.

n) As in Cameron v State of Queensland (Queensland Health),[41] "…where a decision maker relies upon genuine operational requirements to refuse conversion, they must cite (with some particularity) the operational requirements.  No coherent operational grounds have been identified by the respondent to render the conversion inappropriate or unviable."[42]

The notice ground

o) MNHHS has not responded to this point in their submissions.

Disposition of the appeal

p) The outcome sought is that the four Appellants be converted to permanent employment.

 Consideration of the Appellants' eligibility for review under s 149B of the PS Act

 MNHHS's position

  1. [50]
    In correspondence to the Appellants dated 9 April 2021, the delegate asserted that they were "not eligible for review at this time" as they had not had "2 years of continuous service as a registered Radiation Therapist." 
  1. [51]
    The delegate noted that the Appellants did not hold general registration with AHPRA for the first part of their employment with MNHHS.[43]  The delegate stated that:

…I note you commenced with Metro North Hospital and Health Service (MNHHS / the Service) on 11 February 2019 to complete a year of supervised practice in order to gain general registration with AHPRA to practice as a registered Radiation Therapist.  On 25 January 2020, you progressed from a provisional registration and obtained your general registration.  In order to practice as a Radiation Therapist within Australia, it is mandatory to hold general registration with AHPRA.  As you did not hold general registration between 11 February 2019 and 25 January 2020 and did not meet the minimum requirements to be a permanent Radiation Therapist, I am unable to consider you for a Radiation Therapist position under section 149B of the Act.  As such, your employment will remain as fixed term at this time.[44]

  1. [52]
    Therefore, the delegate reasoned that the Appellants were "not eligible for conversion under section 149B of the Public Service Act 2008". 
  1. [53]
    Essentially, MNHHS held that the Appellants' initial 12 month employment period of 'provisional' registration should not be taken into account for evaluation of the 2 years continuous employment requirement stipulated in the PS Act.
  1. [54]
    This was the first of the grounds upon which the Appellants' conversion requests were declined.
  1. [55]
    MNHHS's reasoning was further elaborated in its DMRIRR document, summarised at paragraphs [36] – [37] above. 
  1. [56]
    In short, MNHHS surmised that because s 148(2)(b) of the PS Act contains an example of where tenure "is not" viable or appropriate[45] as "employment for a set period as part of a training or placement program" – coupled with the fact of their provisional registration at that time – meant that the Appellants could not have been "employed as permanent from day one". Thus, it reasoned that the first year of employment should not be counted as part of the two years continuous service requirements under s 149B of the PS Act. 
  1. [57]
    The HHS cautioned the likely flow on effects of the obligation to review other categories of workers under s 149B, should the Appeals succeed and emphasised that "The Service does not believe that this is the intent of the Act or the Directive."
  1. [58]
    The HHS also noted that section 149 of the PS Act enabled conversion to be requested after 1 year of continuous service.  The fact that the Appellants did not seek conversion after 1 year was inferred to be resultant from an acceptance that the first year of employment under provisional registration was "not one that could be converted to permanent and if that is the case, then subsequently that time should not be considered for determining the 2 years of continuous service for section 149B decisions."

  Appellants' position

  1. [59]
    The Appellants' position on the question of their eligibility for review was explained in the Appeal Notices as:

With respect to the interpretation of the relevant law, Assoc. Prof. Kennedy has incorrectly conflated my period of service with the employer with my requirements for registration.  Section 149B of the Public Service Act 2008 ("PS Act") applies to a fixed term temporary employee continuously employed in the same department for 2 years or more.

…

The status of my registration was distinct from my period of continuous service and irrelevant for the purposes of my request to convert to permanent employment.

  1. [60]
    The Appellants' submissions on this particular Appeal ground have been comprehensively summarised at paragraph [46] above and so need not be repeated here.

  Relevant legislation

  1. [61]
    The relevant section of the PS Act prescribes that (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. (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. [62]
    Schedule 4 Dictionary of the PS Act defines "continuously employed" as:

continuously employed, in relation to a person employed in a department for a period, means the person is employed in the department –

(a)  continuously as a fixed term temporary employee for the period; or

  1. (b)
    as a casual employee on a regular and systemic basis during the period; or
  1. (c)
    continuously as an employee mentioned in subparagraphs (i) and (ii) for the period.
  1. [63]
    The TE Directive further states that (Emphasis added):

7. Review by agency of the status of a fixed term temporary employee after two years or more of continuous service – section 149B (Appendix C)

7.1 Section 149B of the PS Act requires and establishes criteria for an agency's chief executive to review the status of a fixed term temporary employee's employment where the employee has been continuously employed for two years or more in the same agency.

  1. [64]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the AI Act 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 AI Act provides that 'purpose', for an act, includes policy objective.
  1. [65]
    The TE Directive is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[46]
  1. [66]
    The TE Directive effective 25 September 2020 relevantly provides (Emphasis added):

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. [67]
    The purpose of the TE Directive 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.

 …

  1. [68]
    Further, cl 95 Permanent Employment of the EBA states:

95.1 The parties recognise that permanent employment is the preferred type of engagement under this Agreement and are committed to maximising permanent employment where possible. Casual or temporary forms of employment should only be utilised where permanent employment is not viable or appropriate. The employer will utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs.

  1. [69]
    The interpretation that I have applied here does not frustrate the intent of government policy as articulated in the purpose and principles of the TE Directive; specifically to establish employment on tenure as the default basis of employment in the Queensland public service.[47] 

Consideration

  1. [70]
    The PS Act has been recently amended as at 14 September 2020.  That is the recent expression of the legislature. 
  1. [71]
    The relevant legislation supports the Appellants' position with respect to their eligibility for review.
  1. [72]
    Section 149B of the PS Act clearly describes its application to a fixed term temporary employee if they have been "continuously employed in the same department for 2 years or more".  Those precise words of s 149B(1) clearly describes the cohort to whom the provisions apply and in what terms.
  1. [73]
    Clause 7.1 of the TE Directive similarly provides for those "continuously employed for two years or more in the same agency." 
  1. [74]
    As I recently found in Joshi v State of Queensland (Queensland Health),[48] the TE Directive applies to the HHS as an "agency" so defined at cl 3.2(c).
  1. [75]
    The term 'continuously employed' is defined in Sch 4 of the PS Act (Emphasis added):

continuously employed, in relation to a person employed in a department for a period, means the person is employed in the department –

(a)  continuously as a fixed term temporary employee for the period; or

  1. (b)
    as a casual employee on a regular and systemic basis during the period; or
  1. (c)
    continuously as an employee mentioned in subparagraphs (i) and (ii) for the period.
  1. [76]
    Section 149B(7A) of the PS Act provides further detail as to the factors to be taken into account in the correct calculation of a period of continuous employment.  Time worked under different registration status or under different work role arrangements are not included in the provision as factors that would otherwise impact the calculation of two years continuous employment in the usual course. 

  (7A) For working out how long the person has been continuously employed in the department –

    (a)  all periods of authorised leave are to be included; and

    (b)  the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non–employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.

  1. [77]
    The Amended PS Act and Amended TE Directive contain no requirement that the person's continuous employment for two years must also have been in the same role, same classification, same registration status or indeed same position.  The current requirement is only that the person has been continuously employed in the same department / agency for two years or more in order to be eligible for review. 
  1. [78]
    By way of background, I note that s 149 of the Pre–Amendment PS Act also provides for the review of status of temporary employee "at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department". 
  1. [79]
    However, cl 9.2 of the Pre–Amendment TE Directive had previously stated that (Emphasis added):

An agency must review the status of a temporary employee's employment (including an entry–level temporary employee) where the employee has been continuously employed as a temporary employee for two years in the same role in an agency.

  1. [80]
    In a similar vein, cl 9.8 of the Pre–Amendment TE Directive had previously stated that (Emphasis added):

Where the employee has performed the same role but at different classification levels, the employee should be considered for conversion at both classification levels and assessed applying the criteria in clause 9.6.

  1. [81]
    Whilst recollection of those previous provisions may account for the HHS's preoccupation with the registration status of the Appellants – and flowing from that, some argument as to whether or not the 'same role' was being performed over the periods of 'provisional' and then 'general' registration – that is no longer relevant.  Neither is the HHS's argument that the Appellants could not have been permanently converted to a Graduate Radiation Therapist role – and therefore that period of provisional registration should not count towards continuous service.  In circumstances where there is no current requirement for the "same role" to have been performed for the period of two years continuous service, neither of those arguments can inform the fair–minded resolution of this Appeal.
  1. [82]
    Instead, the MNHHS has buttressed the explicit application of the current provision so defined at s 149B(1) of the PS Act with 'extra words', in its belief that consideration of the first year of employment under provisional registration cannot be "the intent of the Act or the Directive".  But the current expression of the legislature states otherwise. 
  1. [83]
    The intent of the legislature need not be inferred or assumed – it has already been clearly expressed in the principles and purpose of the TE Directive.  There is no need to guess at that. 
  1. [84]
    The fact that the Amended TE Directive omitted the wording "same role" indicates a clear intent to change the requirements and broaden the scope of the provision to encompass individuals such as the Appellants who have been temporarily employed for more than two years in different roles.
  1. [85]
    As I have explained at paragraphs [64] and [69] above, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.  That is the approach that I have taken here.
  1. [86]
    MNHHS have also posited that s 148(2) of the PS Act states that the employment of a person on tenure "is not" viable or appropriate if the employment is for any of the following purposes (that includes an example of "employment for a set period as part of a training program or placement program").  That excerpt misquotes the provision of the PS Act that instead states "may not be".  There is a clear difference.  Certainly, it remains open for one to decide that even in those example conditions, it is nonetheless viable or appropriate to engage a person on tenure.  Indeed, s 148(3) does go on to specify that may in fact be the case, where it states:

…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. [87]
    MNHHS has then gone further to argue that because one cannot be permanently employed in the first year on provisional registration, then that time should not count towards the two years continuous service requirements. 
  1. [88]
    There are a number of problems with the HHS's proposition. 
  1. [89]
    Firstly, the misquote of the s 148(2) sentence stem, as I have explained above. 
  1. [90]
    Secondly, I cannot see that the Appellants or their union have ever accepted that it is not possible to permanently employ someone with only provisional registration. There are many professions in which graduates requiring requisite training for a specific period are permanently employed and naturally progress from unregistered to registered following completion of their training.  MNHHS has not drawn my attention to any evidence of a prohibition against hiring a graduate in a permanent capacity.  In the absence of such evidence, it is unclear what I am to make of such submission.
  1. [91]
    The HHS's assumption that the Appellants and their union must have accepted that it was impossible to permanently employ Graduates because they did not request conversion under s 149 after one year is insupportable.  There could be many reasons why they did not agitate the issue at an earlier time.  Significantly, as at the Appellants' first year anniversary on 11 February 2020, different provisions applied.  Section 149B came into effect only upon the recent amendment to the PS Act on 14 September 2020, some months afterwards.  As at 11 February 2020, s 149 of the Pre–Amendment PS Act applied.  That earlier provision for the review of status of a temporary employee applied at the end of 2 years after a temporary employee had been continuously employed as a temporary employee in a department – and at the end of each 1–year period thereafter.  It was not until the PS Act was amended that s 149 enabled temporary employees to request a conversion review after 1 year of continuous service.  That was not available to the Appellants as at 11 February 2020.  Whilst the Appellants may have accessed an earlier conversion review under the transitional arrangements upon the Amended PS Act coming into force, they may not have been confident of success in circumstances where there were no appeal rights.  It may also have been the case that the Appellants were unaware of their industrial rights or how to exercise them in circumstances where they were each new to the profession. 
  1. [92]
    Thirdly, even if there was somehow to have been previous acceptance by all concerned that the first year of employment on provisional registration did not count towards the required two years continuous service, that still would not override the express provisions[49] at any future point of challenge in an Appeal such as this. 
  1. [93]
    With all that in mind, while I note that the Appellants each requested conversion to permanency in February 2021,[50] they actually became eligible for review on the two–year anniversary of the commencement of their employment with MNHHS.[51]  Thus MNHHS should properly have initiated the review by providing a notice to each Appellant in the usual course, as described under cl 10 of the TE Directive.  MNHHS did not do so at that time.  The TE Directive anticipates the possibility of such circumstances under cl 9 whereby an employee may notify that a review is required under s 149B – and the Appellants did so with the support of their union in these cases.
  1. [94]
    For these reasons, I find that the Appellants were entitled to have their employment reviewed pursuant to s 149B of the Amended PS Act on the basis that they each had been continuously employed in the same department / agency for two years or more.

 Consideration of the mandatory criteria

 MNHHS's position

  1. [95]
    In correspondence to the Appellants dated 9 April 2021, the delegate asserted that (emphasis added):

Continuing need

In addition to the above, I note that your current end date is 2 July 2021 as you are backfilling a substantive occupant.  As (sic) this stage, I have determined that the role is not likely to be ongoing.[52]

  1. [96]
    This was the second ground upon which the Appellants' conversion requests were declined. 

Backfilling a substantive occupant

  1. [97]
    No further information was provided by the delegate at the time of communicating his preliminary decision as to the particular circumstances by which the Appellants each came to be engaged to backfill an absent colleague, in the latest of the fixed term temporary engagements that were to conclude on 2 July 2021. 
  1. [98]
    MNHHS's DMRIRR document also does not elaborate any backfill circumstances in these cases.  However, MNHHS states in that document that s 148 of the PS Act does (emphasis added) "envisage situations where employment of a person on tenure is not viable or appropriate."  The arguments presented at that time go to the s 148(2)(b) example of "employment for a set period as part of a training program or placement program."  That position has been addressed under 'eligibility for review' earlier in this Decision.
  1. [99]
    In documents filed on 6 July 2021 and 9 July 2021, MNHHS did elaborate the particular backfill circumstances necessitating the successive temporary contracts offered to the Appellants since obtaining their general registration.  Those have been reproduced at paragraphs [47] above and need not be repeated here.
  1. [100]
    Given the purpose of those successive temporary contracts was to backfill absent employees, and additional Radiation Therapists "above establishment" were not required, MNHHS submitted that those were genuine operational requirements preventing the Appellants' conversion to permanency.

Role not likely to be ongoing

  1. [101]
    The delegate had also explained to each of the Appellants that "As (sic) this stage, I have determined that the role is not likely to be ongoing."  No further information was provided by the delegate at the time of communicating his preliminary decision as how he had formed this view.
  1. [102]
    However in the DMRIRR document, MNHHS stated that if it is found that the initial 12 month period of provisional registration counts towards the two year requirement for s 149B reviews, it asks that the matter be returned to the decision maker for review because (Emphasis added):

This further review would be to specifically determine if there is an ongoing need for the person to be employed.  It should be noted that this determination, the ongoing need requirement under the Act and Directive, has not been considered by the Service due to the position taken that the 2 years' service provision had not been met.

  1. [103]
    In MNHHS's latest submission, the outcome sought instead is that "the Decision to not convert the Appellants employment to permanent be affirmed." 

Merit

  1. [104]
    The delegate confirmed that there were no issues with respect to merit that would otherwise prevent the Appellants' conversions to permanency:

   Merit

Thank you for your performance in the role.  You have demonstrated over this time that you satisfy the merit requirements for the role.[53]

Appellants' position

  1. [105]
    The Appellants' position on the mandatory criteria was explained in the Appeal Notices and subsequent submissions as:

a)  Eligibility for review has been achieved on the basis of two years continuous service, irrespective of change to the Appellants' registration status in the relevant period.

b)  There is no issue with respect to merit.

c)  The Appeals are made subsequent to the Internal Review process under the EBA.

d)  There is a continuing need for the Appellants to be employed in the role of Radiation Therapists, as evidenced by the absence of any information as to the incumbent occupants of the substantive roles the Appellants are said to be backfilling and the three temporary employment contract extensions undertaken prior to filing these Appeals.  MNHHS's conclusion that there was not an ongoing need was incorrect and unfair.

  1. [106]
    Further, the Appellants noted that s 149B(6) of the PS Act had not been complied with.  Specifically, that the Notices provided to the Appellants upon the delegate's decisions not to offer to convert their employment to permanent did not contain the required inclusion of "how many times the person's employment as a fixed term temporary employee or casual employee has been extended."

Relevant legislation

  1. [107]
    The mandatory decision criteria is contained at s 149A(2) – (3) of the PS Act, which states (emphasis added):

  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—
  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.
  1. [108]
    The TE Directive also reproduces the mandatory criteria at cl 8.1, whilst further noting that "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" must also be considered.

Consideration

  1. [109]
    Clause 8.1 of the TE Directive 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. [110]
    Clause 8.2 of the TE Directive provides that (emphasis added):

…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. [111]
    In brief, I have already found that the Appellants are eligible to have their status as temporary employees reviewed in the Radiation Therapist roles held with MNHHS.
  1. [112]
    I have also considered each of the mandatory decision criteria below. 

 Merit

  1. [113]
    The relevant provision is found at s 149A(2)(a)(ii) of the PS Act.
  1. [114]
    There is no dispute between the parties that the Appellants' merit presents any impediment to their conversion to permanency.

The reasons for each decision previously made under s 149B in relation to the employee

  1. [115]
    The relevant provision is found at s 149B(6) of the PS Act.
  1. [116]
    There could have been no previous decision made, or deemed to have been made, under s 149B of the PS Act relating to the Appellants during the period of their continuous temporary employment, due to that provision taking effect from 14 September 2020.

 Requirements of an industrial instrument are complied with in relation to the decision

  1. [117]
    The relevant provision is found at s 149A(2)(b) of the PS Act.
  1. [118]
    These Appeals have been filed subsequent to the Internal Review process under the EBA.  The panel was unable to reach consensus and so the delegate's preliminary decisions became the final decisions. 
  1. [119]
    Clause 97.1 of the EBA prescribes the conditions under which the Internal Review process may be enacted (Emphasis added):

97. Temporary and Casual Conversion Panel Review Process

97.1. A Temporary and Casual Conversion Panel Internal Review Process (Internal Review Process) applies where:

  1. (a)
    there has been an outcome of a review of status of employment by decision maker in accordance with either the Temporary Employment Directive (08/17) or the Conversion of Casual Employees to Permanent Employment Directive (01/17);
  1. (b)
    the outcome of the review decision has been notified to the employee in accordance with sections 149(1)(a) or (b);
  1. (c)
    an appeal under sections 194(1) or 194(ea) of the Public Service Act 2008 has not been made; and
  1. (d)
    employee's union representative or the employee (each "the notifier") are of the view the decision maker has made an incorrect decision in accordance with the applicable directive.

…

  1. [120]
    I note the EBA was certified on 18 August 2020, shortly prior to changes to both the PS Act and TE Directive.  The TE Directive 08/17 was superseded by TE Directive 09/20 on 25 September 2020, and no longer has effect.  Likewise, cl 97 refers to provisions of the Pre–Amendment PS Act, which has since been subject to amendment as at 14 September 2020. 
  1. [121]
    Notwithstanding that, it remains clear that the intentions of the parties are that the Internal Review process mechanism shall continue to apply in circumstances such as this: where a decision has been made under TE Directive 09/20; the outcome has been notified to the employee under s 149B(1) of the Amended PS Act; an appeal has not been made under s 194(1)(e) of the Amended PS Act; and the notifier believes an incorrect decision has been made in accordance with TE Directive 09/20. 
  1. [122]
    It is apparent that TE Directive 09/20 supersedes TE Directive 08/17 for all purposes – and that the transitional and other provisions in the Amended PS Act are taken to be substituted for those referenced in cl 97 at the time of EBA certification, but prior to those amendments. 
  1. [123]
    The Appellants, their union and MNHHS have each proceeded with utilising the Internal Review process in the first instance to attempt to reach consensus, as intended by cl 97 of the EBA.  Where this has failed, Appeals have been filed with the Commission in accordance with cl 97.11 of the EBA.  MNHHS has not opposed the appeals on that basis and have promptly and appropriately extended the fixed term temporary engagements to enable the appeals to be decided. 
  1. [124]
    I find that cl 97 of the EBA poses no impediment to the appeals being decided by the Commission, having first progressed through the Internal Review process – and that the requirements of an industrial instrument have been complied with.

Whether 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

  1. [125]
    The relevant provision is found at s 149A(2)(a)(i) of the PS Act.[54]
  1. [126]
    There are two potential pathways to conversion.  The first pathway is the Appellants' present role.  The second pathway is an alternative role that is substantially the same.

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

  1. [127]
    The PS Act and TE Directive mandates that the decision maker considers this precise question.
  1. [128]
    The HHS has defined the role to be 'Radiation Therapist' at RBWH.
  1. [129]
    The HHS's considerations of the 'continuing need' for the role – and the Appellants' involvement in it – are both required.  They are not one and the same.  Circumstances may exist where the role is continuing, but the person's involvement in it is not.  In that sense, it is important to interpret the provisions holistically but also pay appropriate attention to the particular separate elements of the clause.
  1. [130]
    The terms of the delegate's initial correspondence was quite limited in conveying the consideration of this criteria.  The delegate simply states (emphasis added):[55]

…I note that your current end date is 2 July 2021 as you are backfilling a substantive occupant.  As (sic) this stage, I have determined that the role is not likely to be ongoing.[56]

  1. [131]
    Despite the phraseology used in that initial correspondence to the Appellants and the earlier position contained in the DMRIRR document, it is now seemingly accepted that there is a continuing need for "someone" to be employed in the Radiation Therapists role at RBWH. 
  1. [132]
    The above extract indicates to me the HHS's view is that the role is continuing, going on to explain that the Appellants' engagement in it is for the purposes of backfilling the incumbent employees.  As such, I find that the role is continuing.
    1. [133]
      I recognise that the HHS contends that while the role is continuing, there is not likely to be a continuing need for the Appellants to be involved in the role (due to the incumbents' expected return as at some future dates).[57]
    1. [134]
      The phrases "As (sic) this stage" and "not likely to be ongoing" do not convey a high level of certainty on the part of the HHS that there is no continuing need for the Appellants to be employed in the role. 
    1. [135]
      Notwithstanding I have established that the role of Radiation Therapists are continuing, the real controversy between the parties is whether (or not) there is a continuing need for the Appellants to be employed in the role. 
    1. [136]
      At the time of the delegate's preliminary decisions, the Appellants' temporary contracts were to cease on 2 July 2021. 
    1. [137]
      The delegate had indicated those temporary engagements were to backfill absent incumbent employees and concluded that those temporary circumstances would end on 2 July 2021.
    1. [138]
      The changed circumstances of the substantive occupants, as presented in the materials filed by MNHHS on 9 July 2021, warrant some further consideration in these cases. 
    1. [139]
      The delegate's presumption was not borne out.  Some absent incumbent employees requested further leave extensions.  Others returned from and departed on secondments.  That being the case, a continuing need for the Appellants to perform the role is now demonstrated.
    1. [140]
      Foundationally, the factual premise of the delegate's decision was not fair and reasonable and thus neither was the conclusion reached.
    1. [141]
      Section 148(2) of the PS Act states that employment on tenure may not be viable in circumstances such as backfilling of a temporary vacancy. 
    1. [142]
      The delegate pointed to there being not likely an ongoing need for the Appellants to perform their current role beyond the expiry of their temporary contracts and / or once the absent incumbent employees otherwise return to the role. 
    1. [143]
      It is quite clear that the role presently occupied by the Appellants is continuing.  At the time of the preliminary decision there was a continuing need for the Appellants to be employed in their present role, at least until 2 July 2021. 
    1. [144]
      As discussed earlier in this Decision, such ongoing requirements to backfill absences on a frequent or regular basis may inform a different outcome – that is, that employment on tenure may be viable or appropriate in such circumstances.[58]
    1. [145]
      The Appellants have submitted that their temporary engagements have been extended on three occasions since the commencement of their employment with MNHHS in 2019.[59]
    1. [146]
      MNHHS did not dispute that the Appellants have been on a series of consecutive temporary contracts in the role for over two years nor that there was a continuing need for that work to be done.  Rather, the delegate indicated that the temporary engagements complied with s 148(2)(a) of the PS Act, in circumstances where the Appellants were each "backfilling a substantive occupant" and on that basis so concluded that "As (sic) this stage, I have determined that the role is not likely to be ongoing." 
    1. [147]
      Further elaboration of the particular circumstances by which each of the Appellants came to "fill a temporary vacancy arising because a person is absent for a known period" was necessary for any assessment of whether that is fair and reasonable.  That information was subsequently provided in the Respondent's submissions filed 6 July 2021 and in further material filed 9 July 2021 and has been recorded earlier in this Decision.
    1. [148]
      Beyond reliance on s 148(2)(a), MNHHS has more recently invoked the example at s 148(2)(b) "employment for a set period as part of a training program or placement program" to argue that the requisite two years continuous service has not yet been reached in circumstances where the Appellants could not have been permanently employed in their first year.  For the sake of completeness, I have addressed that latter argument within paragraphs [70] – [94] above.
    1. [149]
      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. (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. [150]
      I note that provision indicates only that employment on tenure may not be viable or appropriate if it is to fill a temporary vacancy arising because a person is absent for a known period.  Certainly, it remains open for one to decide that even in those conditions it is nonetheless viable or appropriate to engage a person on tenure.  It is also true that in Ms Fogarty's case, the incumbent's date of return from secondment was not 'known' in the sense that she had returned earlier than expected – and thence another colleague commenced in secondment.  With respect to both Mr Moloney and Mr Chan, there were also changed circumstances as incumbents of those positions later advised extensions to their periods of intended leave.
    1. [151]
      While that is certainly one factor that may inform the delegate's considerations of whether there is a continuing need for the Appellants to be employed in the role, it is not the exclusive consideration.  The HHS has submitted that the backfill circumstance is the genuine operational reason not to convert the Appellants' engagement as Radiation Therapists to permanent employment in the submissions filed on 6 July 2021.
    1. [152]
      I would also observe that even if the HHS considered it was not viable or appropriate to employ a person on tenure at the point of the first temporary engagement – whilst the Appellants were employed in the 'Graduate' roles on provisional registration – there were successive temporary contracts backfilling absent colleagues that came afterwards. 
    1. [153]
      I accept that particular circumstance may have constituted reasons for the HHS to initially employ the Appellants on temporary employment contracts.  However, there comes a time when it is no longer fair and reasonable to continue to extend a person's temporary contract arrangements on the basis of the particular reason(s) under s 148(2) that may have originally been relied upon in the first – or in these cases, even in the second – fixed term temporary contract appointments.  After more than two years of meritoriously undertaking the role at this time, coupled with the changed circumstances that clearly demonstrate the continuing need element, I do not consider it reasonable for the HHS to rely on s 148(2) indefinitely.
    1. [154]
      Further, that assessment is envisaged by s 148(3) of the PS Act which states (Emphasis added):

    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. [155]
      That is the case in the particular circumstances of the four Appellants. 
    1. [156]
      In my view, the time has now arrived whereby it is no longer fair and reasonable to continue such temporary employment extensions in lieu of conversion of the Appellants' temporary employment to permanent.  That finding is based on the holistic consideration of all the mandatory criteria under s 149A(2) – (3) of the PS Act, in each of the Appellant's particular circumstances subject of the entirety of the various submissions in these joined matters.
    1. [157]
      It follows that there is a continuing need for the Appellants to be employed in their current role.  In my view, the HHS's decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
    2. [158]
      It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert the Appellants to permanency.
    1. [159]
      For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles.

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

    1. [160]
      The PS Act and TE Directive mandates that the decision maker considers this precise question.
    1. [161]
      The prescribed definition of 'the same role' in the Pre–Amendment TE Directive 08/17 was deliberately broad and captured "…a role which has the same or substantially the same capability requirements…or a role with a generic role description involving a range of duties…"[60]  I note that no definition of 'the same role' is provided in the Amended TE Directive, however in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the Pre–Amendment TE Directive.
    1. [162]
      In Katae, Crow J considered the definition of "same role" in the TE Directive.  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.

    1. [163]
      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 critical here.
    1. [164]
      It is relevant that s 149A(2)(a)(i) requires consideration of the person's role, or a role that is substantially the same.  MNHHS has stopped short of demonstrating its consideration of the entirety of the mandatory criteria in s 149A(2) on the basis that someone may be returning to the role – coupled with its errored interpretation of the requisite eligibility for review period.  Although regrettable, inattention to evidencing consideration of that second pathway to conversion is not altogether unusual in these types of Appeals.
    1. [165]
      The fact of these cases is that the HHS did not define a role which is substantially the same in any decision letter to the Appellants.  Nor have the HHS's subsequent submissions addressed this requirement.  Notwithstanding that, the duty to do so must properly be discharged.  For the purposes of this decision, I have defined a role which is substantially the same to be 'Radiation Therapist' working within MNHHS.
    1. [166]
      The HHS's submissions are inadequate with respect to demonstrating any consideration of this criteria. 
    1. [167]
      In addition to neglecting the key issue of defining a role which is substantially the same, the HHS did not demonstrate that they had analysed the capability requirements of the role performed by the Appellants.  No specific search efforts undertaken to ascertain whether there were other roles that may be suitable to convert the Appellants in the circumstances were referred to at all. 
    1. [168]
      The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same within the MNHHS.
    1. [169]
      In considering whether there is a continuing need for the Appellants to be employed in a role which is substantially the same, I am also conscious of the further extensions to the fixed term temporary contracts on the basis of successive needs to backfill approved leave to the absent incumbent employees. 
    1. [170]
      I have found that there is a continuing need for the Appellants to be employed in their current role.  However, in the alternative and for the reasons above, I also find that there is a continuing need for the Appellants to be employed in a role which is substantially the same.  Fairness and reasonableness requires the appropriate weight be given to the consideration of these relevant factors.

     Genuine operational requirements

    1. [171]
      The relevant provision is found at s 149A(3) of the PS Act (emphasis added):

    …the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure of 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. [172]
      'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning.  I acknowledge that Deputy President Merrell's consideration in Morison was referenced by MNHHS in its submissions and his Honour's explanation is also relevant here.
    1. [173]
      The HHS's submissions provide that the genuine operational reasons to deny conversion are effectively the need to backfill the absent incumbent employees and that additional Radiation Therapists "above establishment" are not required.
    1. [174]
      The HHS posited that should the Appellants positions be converted to permanent, additional positions "above establishment" would result upon the return of the absent incumbent employees at a point in the future.  It was said that presented the genuine operational reason not to convert the Appellants to permanent employment. 
    1. [175]
      MNHHS submitted that permanent conversion will lead to a "significant negative impact" and "immediate negative effects… on the operations of the unit" however does not specify these impacts and merely refers to "over–establishment". The HHS has not provided enough reasoning or evidence to support this contention. Considering there are four individuals that are required to backfill several other substantive employees, there is clearly a need for the Appellants to continue. Had this matter been concerned with an isolated individual who was backfilling another employee in a small faculty, my conclusion may have been different. However, in a situation where there are clearly several Radiation Therapists employed in the Department faculty such that there are in turn several others needed to backfill the substantive owners, I do not accept that permanent conversion will have a significant negative impact. Rather, it appears from the evidence before me that permanent conversion may negate the need for backfilling in the future.  As explained earlier, this precise circumstance is contemplated in s 148(3) of the PS Act.
    1. [176]
      In the alternate, I have explained my concern with MNHHS's lack of reference to the exploration of any role which is substantially the same and the absence of any evidence of its analysis and assessment of such capability requirements inherent in either the role currently performed by the Appellants or others that may be substantially the same. This is further impeded by the HHS's failure to define the role which is substantially the same – and the particulars of any search conducted for same.
    1. [177]
      On the material before me, I have found that there is a continuing role, being the role the Appellants are currently backfilling, and that there is a continuing need for them to be employed in that role.
    1. [178]
      In the alternate, MNHHS was required to consider conversion to a role which is substantially the same.  For the reasons above, that was also an appropriate avenue for conversion.  As such, in the alternative, the Appellants should be converted to permanency on that basis as a Radiation Therapist located within MNHHS.
    1. [179]
      In arriving at this conclusion, I am conscious that the PS Act and TE Directive are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the TE Directive and legislation.  Those efforts allow for the achievement of the purpose of the TE Directive.
    1. [180]
      In my view, by virtue of the absence of genuine operational reasons evidenced in MNHHS's submissions made subsequent to the delegate's decision that have arisen in the course of this Appeal, the appropriate order is that the Appellants be converted to permanency.
    1. [181]
      In addition to the explanation I have provided above regarding the default position contained in s 149A(3) of the PS Act and the shifting return dates of the substantive occupants, there is also no requirement for there to first be a 'vacant' position to be converted into. 
    1. [182]
      It follows that there are no genuine operational reasons that would otherwise prevent the four Appellants from being converted to permanent employment.

    Notice requirements

    1. [183]
      The relevant provision is found at s 149B(6) of the PS Act.
    1. [184]
      The Appellants have submitted that the HHS's failure to comply with the PS Act requirements regarding all of the notice inclusions add to the inherent unfairness and unreasonableness of its decision. 
    1. [185]
      Where a decision is made under a review pursuant to s 149B of the PS Act, the HHS is required to comply with s 149B(6), which provides (emphasis added):
    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)
       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. [186]
      A decision to refuse the request for conversion triggers the requirement for a notice pursuant to subsection (6).  While the first ground of refusal was that the Appellants were not yet eligible for review, the delegate then went on to engage with the remaining mandatory criteria to some extent.  I agree that the terms of the preliminary decision communicated to the Appellants in the correspondences dated 9 April 2021 did not comply with the above subsection in its entirety, in particular "how many times the person's employment as a fixed term temporary employee…has been extended".
    1. [187]
      While that is a legislative requirement, and the HHS is non–compliant with respect to that requirement, it is not in itself determinative to my Decision.

    Conclusion

    1. [188]
      The issue for my determination is whether the decision not to convert the Appellants to permanent employment was fair and reasonable. 
    1. [189]
      The Appellants were first employed on temporary engagements as 'Graduate Radiation Therapists'.  During that time, they were provisionally registered and their practice was supervised.  Upon obtaining general registration, the Appellants were offered further temporary engagements as 'Radiation Therapists' for the purpose of backfilling employees who were absent on approved leave and secondment.
    1. [190]
      MNHHS argued that the period of provisional registration should not count towards the two years of continuous service required in order to be eligible for conversion review under s 149B of the PS Act. 
    1. [191]
      In determining the Appellants were ineligible for review, MNHHS has erred in law.  That is patently unfair and unreasonable.  For that reason, the Appeal must succeed.  The issue then became determining the appropriate remedy.
    1. [192]
      For the reasons outlined above, MNHHS engaged with each of the mandatory criteria sufficiently to enable me to understand its position.  That is, MNHHS had noted the purpose of the fixed term temporary contracts was to backfill the substantive occupants - and concluded that the continuing need for the Appellants to be involved in the role was not likely to be ongoing in those circumstances. 
    1. [193]
      Those grounds of refusal were communicated to the Appellants by the delegate at the time of refusing their conversion request.
    1. [194]
      The Appellants' fixed term contracts were to conclude on 2 July 2021.
    1. [195]
      Dissatisfied with that outcome, the Appellants pursued their conversion claim through the Internal Review process.
    1. [196]
      Upon being notified that the Internal Review panel could not reach consensus and that the preliminary decision would not be overturned, the Appellants filed Appeals with the QIRC.  They appointed United Voice as their agent in these matters.
    1. [197]
      MNHHS extended the fixed term temporary contracts to enable the Appeals to be heard and decided.
    1. [198]
      By consent of the parties, the four Appeals were joined.
    1. [199]
      Once the jurisdictional hurdle of 'eligibility for review' was cleared, this matter largely turned on considerations of whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same.
    1. [200]
      There are two pathways by which conversion to permanency may be reached – and each were separately considered in this Decision.
    1. [201]
      It was accepted that there was a continuing need for someone to fulfill the role of 'Radiation Therapist' at RBWH.  While the backfill circumstances originally relied upon may have been reason to offer the Appellants an early temporary contract on that basis, I have found that after a series of contracts it is no longer fair and reasonable to rely on that indefinitely.
    1. [202]
      I have observed that there is no requirement for there first to be a 'vacancy' before the Appellants may be converted to permanency. 
    1. [203]
      That being the case, a continuing need for the Appellants to perform the role is now demonstrated. 
    1. [204]
      In the alternate, I have explained my concern with the HHS's failure to define a role which is substantially the same and its lack of reference to the exploration of any such role.  Further, there is an absence of any evidence of the HHS's analysis and assessment of such capability requirements inherent in either the role currently performed by the Appellants or others that may be substantially the same.  This is further impeded by the HHS's failure to provide a chronicle of any search conducted for same.
    1. [205]
      On the material before me, I have found that there is both a continuing role and a continuing need for the Appellants to be employed in the role of 'Radiation Therapist' at RBWH.
    1. [206]
      In the alternate, the HHS was required to consider conversion to a role which is substantially the same.  For the reasons above, that was also an appropriate avenue for conversion.  As such, in the alternative, the Appellants should be converted to permanency on that basis as a 'Radiation Therapist' located in MNHHS.
    1. [207]
      In arriving at this conclusion, I am conscious that the PS Act and TE Directive are purposed with encouraging and maximising security of public sector employment.  The EBA makes a similar expression of intent.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the TE Directive and legislation. Those efforts allow for the achievement of the principles and purpose of the TE Directive.[61]
    1. [208]
      In my view, by virtue of the absence of genuine operational reasons evidenced in the HHS's submissions made subsequent to the decision that have arisen in the course of this Appeal, the appropriate order is that the Appellants be converted to permanency.
    1. [209]
      MNHHS's decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
    1. [210]
      I order accordingly.

    Orders:

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

    1.  The appeal is allowed;

    2.  The decision that Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang each do not have their temporary employment converted to permanent employment is set aside and another decision is substituted; and

    3. Mr Chan, Ms Fogarty, Mr Moloney and Mr Huang's temporary employment status as a Radiation Therapist (HP classification) be converted to permanent employment.

    Footnotes

    [1] United Voice, Industrial Union of Employees, Queensland.

    [2] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan dated 9 April 2021, page 1, indicates that his conversion request was made on 25 February 2021.  However, Mr Chan’s Appeal Notice, Schedule, Part C, [5] states that the relevant date was 23 February 2021 – the same date as the other three Appellants’ conversion requests were made.  Whether the correct date was 23 or 25 February 2021 does not materially affect this Decision.

    [3] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [4] Mr Moloney obtained general registration on 25 January 2020; Mr Huang and Ms Fogarty obtained general registration on 11 February 2020; and Mr Chan obtained general registration on 12 March 2020.

    [5] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [6] Ibid.

    [7] Ibid.

    [8] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019, cl 97 Temporary and Casual Conversion Panel Review Process.

    [9] Correspondence from Ms Katrina McGill, Senior Director, Human Resources Branch, Queensland Health to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 4 June 2021.

    [10] The date Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang received verbal advice that the preliminary decision would not be overturned.

    [11] Public Service Act 2008 (Qld) s 196(e).

    [12] Form 33 – Notice of Appointment of Agent, United Voice, Mr Simon Ong, Industrial Officer.

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

    [14] Ibid s 562B(2).

    [15] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.

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

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

    [18] The Appellants did not hold general registration with AHPRA for the following initial periods of their employment with MNHHS: Mr Chan 11 February 2019 – 12 March 2020; Ms Fogarty 11 February 2019 – 11 February 2020; Mr Moloney 11 February 2019 - 25 January 2020 and Mr Huang 11 February 2019 – 11 February 2020.

    [19] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Teague Moloney dated 9 April 2021.  However, the same explanation as to why each Appellant was ineligible for conversion under s 149B of the IR Act at this time was included in each of the Preliminary Decision Letters issued, with the relevant periods of ‘provisional registration with AHPRA’ tailored with respect to each individual Appellant.

    [20] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [21] [2021] QIRC 104, [26].

    [22] [2021] QIRC 025.

    [23] This includes the latest extension on 21 June 2021, for the purposes of enabling time for the QIRC to decide the Appeals.

    [24] Metro South Hospital and Health Service.

    [25] As was case for Radiation Therapists prior to 2017.

    [26] Respondent’s submissions filed 6 July 2021, Attachment MN-6.

    [27] Filed on 6 July 2021.

    [28] MNHHS advised that Ms Tutaki’s current secondment ends 31 December 2021, in an email dated 12 July 2021.

    [29] This was after the Preliminary Decision of the Delegate was conveyed to Mr Moloney - but before he was advised the panel could not achieve consensus and that decision would not be overturned.

    [30] [2020] QIRC 203.

    [31] Appellants’ reply submissions, filed 13 July 2021.

    [32] Ibid [8].

    [33] Ibid [11].

    [34] Ibid [17] – [18].

    [35] Ibid [21].

    [36] Ibid [24].

    [37] Ibid [26].

    [38] Ibid [29].

    [39] Ibid [30].

    [40] Ibid [32].

    [41] [2021] QIRC 226 [23].

    [42] Appellants’ reply submissions, filed 13 July 2021, [36] – [37].

    [43] The Appellants did not hold general registration with AHPRA for the following initial periods of their employment with MNHHS: Mr Chan 11 February 2019 – 12 March 2020; Ms Fogarty 11 February 2019 – 11 February 2020; Mr Moloney 11 February 2019 - 25 January 2020and Mr Huang 11 February 2019 – 11 February 2020.

    [44] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Teague Moloney dated 9 April 2021.  However, the same explanation as to why each Appellant was ineligible for conversion under s 149B of the IR Act at this time was included in each of the Preliminary Decision Letters issued, with the relevant periods of ‘provisional registration with AHPRA’ inserted for each.

    [45] I note that the actual words in s 148(2) of the PS Act are "may not be" rather than "is not".

    [46] Katae v State of Queensland & Anor [2018] QSC 225, [26].

    [47] Directive 09/20 Fixed term temporary employment cl 1 and cl 4.

    [48] [2021] QIRC 212, [56] – [70].

    [49] Section 149B(1) of the Public Service Act 2008 (Qld) and cl 7.1 of the TE Directive, expressing that eligibility for review is based on continuous service in the same department / agency for two years.

    [50] 23 and 25 February 2021.

    [51] 11 February 2021.

    [52] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [53] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [54] Clause 8.1 of the TE Directive describes the criteria as "whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same."

    [55] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [56] Correspondence from Associate Professor Glen Kennedy, Executive Director, Cancer Care Services, MNHHS to Mr Shaun Chan, Ms Georgia Fogarty, Mr Teague Moloney and Mr Yi-Chin Huang dated 9 April 2021.

    [57] The incumbents’ expected dates of return are detailed at paragraph [47](o).

    [58] Public Service Act 2008 (Qld) s 148(3).

    [59] MNHHS also extended the temporary contracts a fourth time in order to enable these Appeals to be heard and decided.

    [60] Directive 08/17 Temporary employment cl 14.

    [61] Directive 09/20 Fixed term temporary employment cl 1.1.

    Close

    Editorial Notes

    • Published Case Name:

      Chan & Ors v State of Queensland (Queensland Health)

    • Shortened Case Name:

      Chan v State of Queensland (Queensland Health)

    • MNC:

      [2021] QIRC 243

    • Court:

      QIRC

    • Judge(s):

      McLennan 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
    Cameron v State of Queensland (Queensland Health) [2021] QIRC 226
    2 citations
    Jump To
    Cite 1 - [2021] QIRC 226
    Cite 2 - [2021] QIRC 226
    Goodall v State of Queensland [2018] QSC 319
    1 citation
    Jump To
    Cite 1 - [2018] QSC 319
    Joshi v State of Queensland (Queensland Health) [2021] QIRC 212
    2 citations
    Jump To
    Cite 1 - [2021] QIRC 212
    Cite 2 - [2021] QIRC 212
    Katae v State of Queensland [2018] QSC 225
    2 citations
    Jump To
    Cite 1 - [2018] QSC 225
    Cite 2 - [2018] QSC 225
    Merry v State of Queensland (Queensland Health) [2021] QIRC 25
    2 citations
    Jump To
    Cite 1 - [2021] QIRC 25
    Cite 2 - [2021] QIRC 25
    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
    Ouseph v State of Queensland (Queensland Health) [2021] QIRC 104
    2 citations
    Jump To
    Cite 1 - [2021] QIRC 104
    Cite 2 - [2021] QIRC 104

    Cases Citing

    Case NameFull CitationFrequency
    Stephens v State of Queensland (Queensland Health) [2022] QIRC 4206 citations
    1

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