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Piper v State of Queensland (Department of Agriculture and Fisheries)[2021] QIRC 246

Piper v State of Queensland (Department of Agriculture and Fisheries)[2021] QIRC 246

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Piper v State of Queensland (Department of Agriculture and Fisheries) [2021] QIRC 246

PARTIES:

Piper, Richard

(Appellant)

v

State of Queensland (Department of Agriculture and Fisheries)

(Respondent)

CASE NO.:

PSA/2021/173

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

HEARING DATE:

15 July 2021

15 July 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 8 June 2021 and Respondent's written submissions filed on 7 July 2021

ORDERS:

Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the appellant's appeal will not be heard because the Commission does not have jurisdiction to hear the appeal.

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – appellant temporarily employed in position of Entomologist, classification PO3 – appellant advised that the chief executive of the Department would conduct a review of appellant's fixed term temporary employment pursuant to s 149B of the Public Service Act 2008 – appellant contends that a deemed decision was made that appellant would continue as a fixed term temporary employee – appeal against alleged deemed decision – whether, having regard to when the appellant commenced temporary employment in the Department, the chief executive of the Department was required to conduct a review of the appellant's fixed term temporary employment – whether advice to the appellant that the Department's chief executive was going to conduct a review of the appellant's fixed term temporary employment was in error – whether Department's chief executive was required to review the appellant's fixed term temporary employment within 28 days after a one year period after the end of two years after the employee had been continuously employed as a fixed term temporary employee in the Department – whether in the absence of such a requirement, the chief executive could be taken to have decided not to offer to convert the employee's employment within the meaning of s 149B(7) of the PS Act – appellant's appeal incompetent – appellant's appeal not heard pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 because the Commission has no jurisdiction to hear the appellant's appeal

LEGISLATION:

Directive 08/17 Temporary employment, cl 9.2

Directive 09/20 Fixed term temporary employment, cl 9

Direction 12/20 Recruitment and selection

Industrial Relations Act 2016, s 562A

Public Service Act 2008, s 53, s 149, s 149B and s 194

CASES:

Benson v State of Queensland (Department of Education) [2021] QIRC 152

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

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

Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

R v A2 [2019] HCA 35; (2019) 93 ALJR 1106

APPEARANCES:

Mr D. Hamwood of Together Queensland, Industrial Union of Employees for the Appellant.

Mr N. Kelis and Mr N. Macleod of the Respondent.

Reasons for Decision

Introduction

  1. [1]
    On 11 September 2017, Mr Richard Piper commenced temporary employment with the State of Queensland in the Department of Agriculture and Fisheries ('the Department') in the position of Senior Technical Officer, classification TO4. On 19 March 2018, Mr Piper commenced further temporary employment in Agri-Science Queensland, which is part of the Agriculture Business Unit of the Department, in the position of Entomologist, classification PO3. Mr Piper's present fixed term temporary employment in the position of Entomologist is to continue until 30 November 2021.
  1. [2]
    By email dated 19 March 2021, Mr Piper was informed by Ms Diane Kopras, Senior HR Consultant, Horticulture and Forestry Science and Research Infrastructure of the Department, that because he had been employed with the Department as a fixed term temporary employee in his current role for a period of over two years, he was 'again' eligible for review under s 149B of the Public Service Act 2008 ('the PS Act') and Directive 09/20 Fixed term temporary employment ('the Directive'). Ms Kopras further informed Mr Piper that the decision about whether or not he would be converted to permanent employment would be made within 28 days of 19 March 2021 ('the notice of review'). It is common ground that Mr Piper received no advice of any such decision within 28 days of 19 March 2021 or otherwise.
  1. [3]
    By appeal notice filed on 10 May 2021, Mr Piper, pursuant to ch 7, pt 1 of the PS Act, appealed against a decision he says was taken to have been made by the chief executive of the Department pursuant to s 149B(7) of the PS Act, to continue his fixed term temporary employment according to the terms of his existing employment ('the deemed decision').
  1. [4]
    The parties exchanged written submissions about the appeal in accordance with a Directions Order dated 12 May 2021. I heard the appeal today.
  1. [5]
    Having regard to the submissions made by the parties, there are two issues for me to consider.
  1. [6]
    First, whether the Commission has jurisdiction to hear and determine the merits of Mr Piper's appeal. This question arises because the Department submits that the notice of review was sent in error in that there was no requirement for the chief executive to review Mr Piper's fixed term temporary employment. The Department submits that the consequence of that error is that no decision could be taken to have been made by the chief executive of the Department, pursuant to s 149B(7) of the PS Act, that Mr Piper's fixed term temporary employment was to continue according to the terms of his existing employment.
  1. [7]
    Secondly, if the Commission does have jurisdiction to hear the appeal, whether the socalled 'deemed decision' to continue Mr Piper's fixed term temporary employment according to the terms of his existing employment was fair and reasonable,[1] being a question which requires a consideration of s 149B of the PS Act and of the Directive.

Does the Commission have jurisdiction to hear and determine the merits of Mr Piper's appeal?

The Department's submissions

  1. [8]
    The Department referred to the facts that:
  • on 11 September 2017, Mr Piper commenced temporary employment within the Department in the position of Senior Technical Officer;
  • on 19 March 2018, Mr Piper commenced further temporary employment in the position of Entomologist; and
  • by the notice of review, Mr Piper was notified that the Department was commencing a review of his fixed term temporary status under s 149B of the PS Act and the Directive.
  1. [9]
    The Department submitted that:
  • Mr Piper was notified in error that he was due for a review on 19 March 2021;
  • the error arose because 19 March 2021 was the anniversary date of Mr Piper's review under (the superseded) Directive 08/17 Temporary employment, which provided that reviews must be undertaken where an employee has been continuously employed as Piper v State of Queensland (Department of Agriculture and Fisheries) [2021] QIRC 246a temporary employee for two years in the 'same role' in an agency;
  • section 149B(4)(a) of the PS Act requires the Department to review the status of a fixedterm temporary employee's employment where the employee has been continuously employed for two years or more in the same agency;
  • section 149B(4)(b) of the PS Act requires a subsequent review to be conducted after each additional year where an employee remains continuously employed, which, in Mr Piper's case, is or will be 11 September 2021;
  • the PS Act does not provide any scope for an agency to initiate a review any earlier; and
  • the Department continued to review Mr Piper's employment in error and that review was not finalised which resulted in Mr Piper's belief that a deemed decision occurred.
  1. [10]
    The Department then submitted:
  1. 12.As the Act does not provide an ability for the review to have been commenced, a decision cannot have taken to have been made. Therefore, the Department maintains the Commission does not have jurisdiction to hear the appeal and should confirm the Department is required to conduct a review of the Appellant's employment on 11 September 2021.
  1. [11]
    In further submissions today, the Department submitted that while it was open for the chief executive of the Department to employ a fixed term temporary employee on a permanent basis outside of a mandatory review and decision-making process pursuant to s 149B(4) of the PS Act (for example, pursuant to a discretion conferred by the chief executive pursuant to Directive 12/20 Recruitment and selection), there could be no 'deemed decision' pursuant to s 149B(7) of the PS Act when there was no mandatory requirement for the chief executive of the Department to review Mr Piper's fixed term temporary employment pursuant to s 149B(4) of the PS Act.

Mr Piper's submissions

  1. [12]
    In his written submissions, Mr Piper referred to a letter dated 6 April 2021 that he sent to Ms Kopras in which he referred to the notice of review and stated he would '… be very happy to accept a permanent position and I will here present some matters which might assist the review in assessing my position.'
  1. [13]
    Mr Piper submitted that the sending of that letter was an exercise of his right to notify the Department of the Department's requirement to commence a review under s 149B and that the employee, being himself, would like to be converted to permanent employment within the meaning of cl 9.1 of the Directive ('Mr Piper's letter dated 6 April 2021').
  1. [14]
    Clause 9 of the Directive provides:
  1. 9.Employee’s right to notify that a review is required under section 149B
  1. 9.1A fixed term temporary employee may notify the employee’s agency of its requirement to commence the review under section 149B and that the employee would like to be converted to permanent employment.
  1. 9.2The notification may be made by the employee or the employee’s representative provided it is not more than three months before the review must be undertaken in accordance with section of [sic] 149B of the PS Act.
  1. 9.3An agency must set out information on its intranet about how to notify under this clause.
  1. 9.4Where an employee does not notify their agency, the agency is still required to undertake the review in accordance with section 149B of the PS Act.
  1. [15]
    In further submissions today, Mr Piper submitted:
  • there is a custom and practice, since the introduction of Directive 08/17 Temporary employment, that demonstrates that reviews outside the anniversary date have been conducted;
  • that custom and practice is reflected in a publication of the Public Service Commission about Directive 08/17 Temporary employment entitled 'Frequently asked questions' (marked as Exhibit 2) which relevantly stated that despite the review dates specified in the PS Act (prior to its amendment by the Public Service and Other Legislation Amendment Act 2020), an agency can review the status of a temporary employee earlier than the statutory review date;
  • given that the requirements in Directive 08/17 Temporary employment are analogous to those in the Directive, Directive 08/17 Temporary employment provides guidance on how the Department's view of agency-initiated reviews should be considered;
  • the decision of Industrial Commissioner McLennan in Benson v State of Queensland (Department of Education) ('Benson')[2]is authority for the proposition that a notice of review outside the anniversary date timeframes that complied with the requirements of the Directive is indicative of a valid conversion process and which is appealable;
  • the above were clear indications that the PS Act did not restrict reviews, for the purposes of the conversion of temporary employment to permanent by agencies, to the mandatory requirements in s 149B(4) of the PS Act;
  • it was open to the Department to notify Mr Piper of the error in the notice of review, however, it failed to do so at any time during the review period or prior to its submissions in this appeal; and
  • the fact that after the timeframe for a 'deemed decision', the Department has determined that the review was in error, does not render the notice of review invalid.
  1. [16]
    In further written submissions made today, Mr Piper concluded by submitting:
  1. 9.As indicated by previous custom and practice, and determined in Benson, a review may be initiated by a public service agency outside of the mandatory requirements. To limit the ability of agencies in such a manner would inhibit the process that gives effect to Principle 4.1 of Directive 09/20. That principle restates s 25(2) of the PSA - that employment on tenure is the default basis of employment in the public service.

The Commission does not have jurisdiction to hear and determine the merits of Mr Piper's appeal

  1. [17]
    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. [18]
    The relevant questions are:
  • do the terms of s 149B of the PS Act mean that the Department is precluded from conducting a review of Mr Piper's fixed term temporary employment prior to 11 September 2021? and
  • if so, does the fact that the Department, by the notice of review, stated that a review of Mr Piper's fixed term temporary employment status would be undertaken pursuant to s 149B of the PS Act and the Directive, mean that s 149B(7) has application?
  1. [19]
    The answer to these questions concerns the construction of s 149B of the PS Act.
  1. [20]
    In R v A2,[3] Kiefel CJ and Keane J, in summarising the principles of statutory construction, stated in part:
  1. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.
  1. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.
  1. [21]
    The meaning of the provision in a statute must be determined by reference to the language of the instrument viewed as a whole[4] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[5] The purpose of the legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[6]
  1. [22]
    Section 149B of the PS Act commenced operation on 14 September 2020.
  1. [23]
    I agree with the Department's submissions that under s 149B of the PS Act, the relevant qualifying criteria are different to those under the combined effect of s 149 of the PS Act (prior to its amendment by the Public Service and Other Legislation Amendment Act 2020) and cl 9.2 of Directive 08/17 Temporary employment.
  1. [24]
    The qualifying criteria under s 149B(4) of the PS Act which require a review and decision are:
  • at the end of two years after the employee has been continuously employed as a fixed term temporary employee in the Department; and
  • each one year period after the end of two years after the employee has been continuously employed as a fixed term temporary employee in the Department.
  1. [25]
    By contrast, pursuant to s 149 of the PS Act and cl 9.2 of Directive 08/17 Temporary employment, the qualifying criteria, for the mandatory review of a person's temporary employment, was continuous employment as a temporary employee for two years in the same role in an agency and, where the employee remains temporary, a subsequent review after each additional year of continuous service in the same role.
  1. [26]
    Section 149B(1) of the PS Act provides that s 149B applies to a person who is a fixed term temporary employee who has been continuously employed in the same department for two years or more. Mr Piper meets that description.
  1. [27]
    It seems to me that the purpose of s 149B of the PS Act is, relevantly to Mr Piper's case, to require the chief executive of the Department to make a decision as to whether or not to offer to employ Mr Piper as a public service officer within 28 days, after each one year period after the end of two years after Mr Piper had been continuously employed as a fixed term temporary employee in the Department.
  1. [28]
    As a consequence, it is mandatory for the chief executive to review Mr Piper's temporary employment status within 28 days after 11 September 2021.
  1. [29]
    It is only when no decision is made within 28 days after 11 September 2021 that the chief executive is taken to have decided not to offer to convert Mr Piper's employment and to continue his employment as a fixed term temporary employee according to the terms of his existing employment within the meaning of s 149B(7) of the PS Act.
  1. [30]
    It may be the case that a chief executive of a department may, subject to any relevant statutory provision or any relevant power conferred by a directive made pursuant to s 53 of the PS Act, voluntarily review the fixed term temporary employment of a public service employee even though the chief executive is not required to do so pursuant to s 149B of the PS Act.
  1. [31]
    In my opinion, reading s 149B as a whole, even if a chief executive advised that he or she would voluntarily review the temporary employment status of a fixed term temporary employee, but then made no decision within 28 days of that advice, that could not be a circumstance where a chief executive is taken to have decided not to offer to convert the employee's employment within the meaning of s 149B(7) of the PS Act. The reason is that s 149B(7) only has operation where no decision has been made, within the required period, when there was a mandatory requirement for the department's chief executive to make a decision pursuant to s 149B(4) of the PS Act. Because there was no mandatory requirement to review Mr Piper's fixed term temporary employment, pursuant to s 149B(4) of the PS Act, within 28 days of 19 March 2021, there can be no application of s 149B(7) of the PS Act to his circumstances.
  1. [32]
    The submissions made by Mr Piper today do not assist him.
  1. [33]
    The advice given by the Public Service Commission in Exhibit 2 was in response to the following question:

4. What is the best approach where an agency has missed a review at the two-year eligibility period, and is between annual review dates?

  1. [34]
    It is in the context of that question that the Public Service Commission advised (as set out in Exhibit 2) that an agency can review the employment status of a temporary employee earlier than the mandatory requirement that the agency conduct a review after each additional year of service of a temporary employee. That advice does not establish a custom and practice that an agency, which has not missed a mandatory review date, can voluntarily review the employment status of a fixed term temporary employee where such a voluntary review has the legal effect of being a mandatory review pursuant to s 149B of the PS Act.
  1. [35]
    Furthermore, in my opinion, the decision of Industrial Commissioner McLennan in Benson does not assist Mr Piper. This is because the facts of that case are materially different to his. In Benson, the reason why Industrial Commissioner McLennan determined that a deemed decision had been made pursuant to s 149B(7) of the PS Act[7] was that, on the facts of that case:
  • no review of Ms Benson's fixed term temporary employment had been undertaken despite the fact that Ms Benson had been engaged on temporary employment contracts for over three years, a fact Industrial Commissioner McLennan stated seemed to be in breach of the requirements of the PS Act, the Directive and Directive 08/17 Temporary employment;[8]
  • Ms Benson made a conversion request pursuant to cl 9 of the Directive;[9] and
  • the respondent department then accepted Ms Benson's conversion request and confirmed to Ms Benson that she was eligible to be considered for permanency pursuant to s 149B of the PS Act and the Directive.[10]
  1. [36]
    It was on those facts that Industrial Commissioner McLennan determined that the subsequent failure of the Department to make a decision within 28 days of receiving Ms Benson's conversion request amounted to the circumstance that the chief executive was taken to have decided not to offer to convert Ms Benson's employment pursuant to s 149B(7) of the PS Act.
  1. [37]
    Those are not the facts of Mr Piper's case. There is no dispute that Mr Piper's temporary employment was reviewed, pursuant to the PS Act, (prior to its amendment by the Public Service and Other Legislation Amendment Act 2020) in about April 2020 in respect of which, by letter dated 28 April 2020, the Department advised Mr Piper that his temporary employment would not be converted to permanent. That is to say, unlike the facts in Benson, there is no outstanding mandatory requirement for the Department to review Mr Piper's fixed term temporary employment.
  1. [38]
    In addition, Mr Piper's letter dated 6 April 2021 cannot be a notice within the meaning of cl 9.1 of the Directive. Properly construed, cl 9.1 of the Directive contemplates a circumstance where a fixed term temporary employee notifies his or her agency of the agency's requirement to commence a review of the employee's fixed term temporary employment in circumstances where the agency has not notified the employee that such a mandatory review will be undertaken. These are not the circumstances in Mr Piper's case. There was no requirement, pursuant to s 149B(4) of the PS Act, for the chief executive of the Department to review Mr Piper's fixed term temporary employment within 28 days of 19 March 2021.
  1. [39]
    Indeed, the terms of Mr Piper's letter dated 6 April 2021 are such that he had been informed that at the date he sent that letter, the chief executive was required to review his temporary employment status. That was a consequence of the notice of review which was sent in error.
  1. [40]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against a decision under s 149B not to convert the basis of employment of an employee. For the reasons given above, I am of the view that no such decision has been made. The chief executive has not made a decision under s 149B of the PS Act not to convert the basis of Mr Piper's employment. The consequence is that there is no decision that can be the subject of an appeal, pursuant to ch 7, pt 1 of the PS Act, by Mr Piper.
  1. [41]
    Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, I will not hear Mr Piper's appeal because the appeal should not be heard because the Commission does not have jurisdiction to hear the appeal.

Order

  1. [42]
    I make the following order:

Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the appellant's appeal will not be heard because the Commission does not have jurisdiction to hear the appeal.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7].

[2] [2021] QIRC 152 ('Benson'), [34]-[41].

[3] [2019] HCA 35; (2019) 93 ALJR 1106 (citations omitted) (Nettle and Gordon JJ at [148] agreeing).

[4] Project Blue Sky Inc. v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[5] Ibid [70].

[6] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[7] Benson (n 2), [41].

[8] Ibid [34].

[9] Ibid [35].

[10] Ibid [36].

Close

Editorial Notes

  • Published Case Name:

    Piper v State of Queensland (Department of Agriculture and Fisheries)

  • Shortened Case Name:

    Piper v State of Queensland (Department of Agriculture and Fisheries)

  • MNC:

    [2021] QIRC 246

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    15 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
Benson v State of Queensland (Department of Education) [2021] QIRC 152
6 citations
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
3 citations
R v A2 [2019] HCA 35
2 citations
R v A2 (2019) 93 ALJR 1106
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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