Knipe v State of Queensland (Queensland Health)
[2021] QIRC 302
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- Unreported Judgment
- Knipe v State of Queensland (Queensland Health)[2021] QIRC 302
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Knipe v State of Queensland (Queensland Health)[2021] QIRC 302
Knipe v State of Queensland (Queensland Health)[2021] QIRC 302
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Knipe v State of Queensland (Queensland Health) [2021] QIRC 302 |
PARTIES: | Knipe, Damien (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/162 |
PROCEEDING: | Public Service Appeal – appeal against a conversion decision |
DELIVERED ON: | 2 September 2021 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDER |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where Appellant applied to convert from casual to permanent employment – where Appellant was not converted for genuine operational requirements of the Respondent – consideration of "genuine operational requirements" – where the decision was fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3) , s 562C(1) Public Service Act 2008 (Qld), s 149A, s 149B, s 197 Casual Employment Directive 08/20, cl 5, cl 6, cl 7, cl 8 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). Kelly v State of Queensland (Queensland Health) [2021] QIRC 055 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
Reasons for Decision
Introduction
- [1]Mr Damien Knipe ("Mr Knipe") is employed by the State of Queensland (Queensland Health) at the Gold Coast Hospital and Health Service ("GCHHS") as a Protective Services Officer, Operational Services.
- [2]Mr Knipe appeals a decision not to convert his casual employment as a Protective Services Officer to permanent employment at GCHHS. The decision was contained in written correspondence from Mr Grant Brown, acting Executive Director – People and Culture and Corporate Services ("the decision"). The decision, inter alia, determined to refuse Mr Knipe's request to be converted to permanent employment due to "genuine operational requirements".
- [3]Mr Knipe filed an appeal and relies on the following grounds:
- (a)'there is an operational reason to convert Mr Knipe's employment because:
- (i)there is a continuing need for Mr Knipe to be converted into the role or in a role which is substantially the same, and will be ongoing;
- (ii)there would be substantial and a continuing amount of expected hours that Mr Knipe could undertake if he were to be made permanent;[1]; and
- (b)Mr Knipe's employment should be converted to permanent due to the continuing need and demand for hours, which is reinforced by his two and a half years employment with the organisation.'[2]
- [4]The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ("the PS Act"), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission ("the Commission").
- [5]Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
- [6]I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
- [7]For the reasons contained herein, I have found that the decision was fair and reasonable.
The decision
- [8]As noted above, the decision refused Mr Knipe's request to have his casual employment converted to permanent employment.
- [9]The reasons for the decision were set out in the decision letter as follows:
'Continuing need
The decision not to permanently appoint you is based on continuing staffing needs and the genuine operational requirements of Integrated Security Services at this time. The roles within Security Services at Gold Coast Hospital and Health Service (GCHHS) fundamentally require adhoc shifts, and the work available to Security Staff continuously fluctuates. This is particularly due to 'specialling' that occurs when GCHHS has particular patients that can require additional Security Staff for unknown periods of time.
In October 2019, a Memorandum of Understanding (MOU) was reached with AWU and became operational on 24 October 2019. This agreement requires additional ordinary hours to be allocated to permanent part time employees in the first instance. It also details any further gaps in the roster which become available as a result of adhoc arrangements, emergent leave or additional service requests that may be filled by casual employees. The MOU, and the parties to the MOU, acknowledge requests made to Security Services are done so to ensure the immediate safety of staff, patients and visitors to its facilities and are inherently unscheduled, emergent and on demand. I have attached a copy of the MOU for your information.
As there are no vacant roles currently, Integrated Security Services has undertaken a review of ongoing long-term illness, other leave arrangements and 'specialling' to determine whether there is a genuine operational need to create further permanent roles in the unit. However, after a careful review, it has been concluded that no further permanent roles are required at this time as employees off work on work-related injuries are expected to return, emergent leave arrangements are unpredictable and temporary in nature and security specials are inherently emergent, unpredictable and temporary. If there is a need that arises in the future to expand the current permanent staffing roles within Integrated Security Services, any vacancies created will be filled in accordance with the applicable instrument.
To provide context to the extent security 'specials' can impact on the hours offered to Security Staff, in mid-December 2020, a patient presented to GCHHS requiring a significant and detailed security presence. This particular patient has required a minimum of three Security Officers present outside their room 24 hours a day, seven days a week since their admission. While GCHHS has received multiple varying estimates of when this patient will be discharged, the patient remains with GCHHS on a temporary basis. While this patient continues to require ongoing Security Officers, it is clear to GCHHS that this occurrence of 'specialling', as with other instances of specialling, is temporary in nature, and therefore there is no genuine operational requirement to permanently appoint roles in this circumstance as it will come to an end. Therefore, while there may be temporary vacancies or increased available hours for casual staff due to specialling, emergent leave, or other uncontrollable factors, this does not equate to an ongoing role. As particular instances of 'specialling' are completed, there will inevitably be a reduction in the number of hours that need to be covered. Therefore, after considering the information detailed above, there is no continuing need to create a new role based on the genuine operational requirements within Integrated Security Services.
Merit
In reviewing your eligibility for the merit principle, I have taken into consideration the previous management action finalised in December 2020, in which you were required to undertake additional training to ensure you understood your role, responsibilities and appropriate pain compliance techniques.
My understanding is you have completed some components of this training and have been on WorkCover for some time which has impacted your ability to complete the physical training. I have been advised this will be booked at the earliest operational convenience following your final clearance, expected in May 2021.
On this basis, I consider you have met the merit principle.
Conversion is not viable or appropriate – genuine operational requirements
I have determined while there will generally be opportunities for casual engagement, the nature of this need is driven by adhoc business needs, including emergent leave and adhoc business requests. As such, while there may be future opportunities for you to access casual shifts, and you have demonstrated merit, conversion is not appropriate or viable at this time due to genuine operational requirements of Integrated Security Services at Gold Coast Health.
As detailed above, the Integrated Security Services department within Gold Coast Health often requires employees to perform work necessary to meet an unexpected short-term increase in workload. This can be evidence by the 'specialising' Protective Services Officers engage in requiring a temporary increase in security presence.
To confirm, the Integrated Security Services department of Gold Coast Health does not currently have vacant permanent hours and is committed to the MOU which requires adhoc roster gaps to be allocated to permanent part time employees in the first instance. On this basis. There are no current vacancies to which you can be permanently appointed. Further to this, and after careful review, there is no genuine operational need to create extra permanent vacancies within Integrated Security Services at this time. Should an operational need arise to create further vacancies within the unit in the future, these will be filled in accordance with the applicable industrial instrument.'
Relevant legislation and Directive
- [10]Section 149B of the PS Act relevantly provides:
149B Review of status after 2 years continuous employment
- (1)This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The Department's chief executive must decide whether to -
- (a)Continue the person's employment according to the terms of the person's existing employment; or
- (b)Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
- (4)The Department's chief executive must make the decision within the required person after -
- (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
- (b)Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
- (5)In making the decision -
- (a)Section 149A(2) and (3) applies to the Department's chief executive; and
- (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.
- (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 -
- (a)The reasons for the decision; and
- (b)The total period for which the person has been continuously employed in the Department; and
- (c)For a fixed term temporary employee — how many times the person's employment as a fixed term temporary employee or causal employee has been extended; and
- (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.
- (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.
(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.
- [11]Section 149B(5) of the PS Act states that s 149A(2) and (3) applies to the department's chief executive when making a decision. Relevantly, s 149A(2) and (3) states:
149A Decision on review of status
…
- (2)The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if—
- (a)the department's chief executive considers –
- (i)there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
- (ii)the person is eligible for appointment having regard to the merit principle; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision
- (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.
…
- [12]The phrase "genuine operational requirements of the department" as referred to in s 149A(3) of the PS Act, is not defined in the PS Act. The phrase, in the context of s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[6] as follows:[7]
'…that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
- managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
- planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.'
(Citations omitted)
- [13]The Casual Employment Directive 08/20 ("Directive 08/20") came into effect on 25 September 2020. Directive 08/20 applies to public service employees employed on a casual basis under ss 147(2)(b) or 148A of the PS Act.
- [14]Directive 08/20 recognises that the PS Act provides that casual employment should only be used when tenured or fixed-term temporary employment is not viable or appropriate.[8] Clause 5.2 relevantly provides examples of circumstances where there is a need for short term employment as follows:
Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:
- (a)backfilling tenured or fixed term temporary staff on short-term emergent leave
- (b)covering short gaps in work rosters of tenured and fixed term temporary employees
- (c)in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
- (d)where needed to work irregular, informal, flexible, occasional or non-rostered hours
- [15]Clause 6 of Directive 08/20 provides that a casual employee may request a review of their employment status after being continuously employed for one year.
- [16]Clause 6.1 of Directive 08/20 is relevantly in the following terms:
6.1 Section 149 of the PS Act (Appendix C) provides that a casual employee who has been continuously employed for one year or more may request a review for conversion to permanent employment. An employee may only make one request in a 12-month period.
- [17]Clause 7 of Directive 08/20 provides that there is a requirement to review the employment status of a casual employee after they have been continuously employed for two years. Clause 7 of Directive 08/20 relevantly provides as follows:
7. Requirement to review employment status of a casual employee after being continuously employed for two year
7.1 Section 149B of the PS Act (Appendix C) provides that an agency must review the employment status of a casual employee for conversion to employment as a general employee on tenure or a public service officer:
- (a)under section 149B(4)(a), at the end of two years after the employee has been continuously employed as a casual employee, and
- (b)under section 149B(4)(b), annually after the end of the initial two years during which the employee remains continuously employed.
7.2 For a review under section 149B, section 149B(7A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
7.3 Under section 149B(3), the chief executive must decide within 28 days whether to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, or continue the person’s employment according to the terms of the person’s existing employment.
7.4 Unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee under section 149B(3)(b), the chief executive should offer hours of work no less than the greater of the following amounts:
- (a)the hours worked by the employee in the continuing role or a role that is substantially the same, in the week immediately before the chief executive’s decision, or
- (b)the average hours per week worked by the employee in the continuing role or a role that is substantially the same, over the last two years.
- [18]Clause 8 of Directive 08/20 provides that the chief executive must consider the following criteria when determining whether to offer permanent employment under ss 149A or 149B of the PS Act as follows:
8. Decision on review status
8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):
- whether there is a continuing need for the employee to be employed in the role, or a role which is substantially the same
- the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
- whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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 casual employee to employment as a general employee on tenure or a public service officer:
- (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)
- (b)where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
- (c)the chief executive cannot convert the casual 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 or149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
- (a)set out the findings on material questions of fact, and
- (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.
8.6 Agencies are expected to consider each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
8.8 A casual employee who is converted could be subject to a probationary period following conversion in accordance with section 126 of the PS Act. However, given that the casual employee has performed the required service with the agency, it would not be expected that agencies would apply probation other than in exceptional circumstances.
Was the decision fair and reasonable?
- [19]The decision addresses the three matters that must be considered, including, whether there is an ongoing need for Mr Knipe to be employed in the role or in a role that is substantially the same, Mr Knipe's merit, and the genuine operational requirements of the GCHHS. Merit is not an issue in this matter.
Continuing need
- [20]As noted above, the PS Act, together with cl 8.1 of Directive 08/20, requires the decision-maker, when advising whether to convert an employee to permanent employment under s 149B of the PS Act, to consider, inter alia, whether there is a continuing need for the employee to be employed in a role, or a role that is substantially the same. Mr Knipe, through his representative, the Australian Workers' Union of Employees, Queensland, contends that he is required to work regular and consistent hours and consequently he argues that there is a continuing need for the role to be performed. Further, Mr Knipe relies on payslips for two pay periods in September 2020, a recent roster and a payslip dated 12 May 2021 to support his contention that he has worked "substantial hours" for the GCHHS.
- [21]The decision does address the issue as to whether there is a continuing need for Mr Knipe to be employed in the role or a role that is substantially the same. The decision relevantly states that the roles within Security Services at the GCHHS fundamentally require adhoc shifts and the work available constantly shifts. The GCHHS states that this is particularly due to "specialling", which occurs when the GCHHS has particular patients that may require additional security staff for unknown periods of time. In the decision, the GCHHS provides an example of "specialling" and how it may impact on the hours offered to security staff with the following example:
'…in mid-December 2020, a patient presented to GCHHS requiring a significant and detailed security presence. This particular patient has required a minimum of three Security Officers present outside their room 24 hours a day, seven days a week since their admission. While GCHHS has received multiple varying estimates of when this patient will be discharged, the patient remains with GCHHS on a temporary basis. While this patient continues to require ongoing Security Officers, it is clear to GCHHS that this occurrence of 'specialling', as with other instances of specialling, is temporary in nature, and therefore there is no genuine operational requirement to permanently
appoint roles in this circumstance as it will come to an end…'
- [22]The GCHHS submits that, while there may be temporary vacancies or increased available hours for casual staff due to specialling, emergent leave or other uncontrollable factors, this does not equate to an ongoing role.
- [23]In addition to this, the GCHHS contends that there are no vacant roles available currently, following a review by the Security Services of ongoing long-term illness, other leave arrangements and "specialling" to determine whether there is a genuine operational need to create further permanent roles in the unit.
- [24]In response, Mr Knipe contends that there does not have to be an available permanent position for him to be converted to a permanent position with the GCHHS. In this regard Mr Knipe relies on the decision of Kelly v State of Queensland (Queensland Health).[9]
- [25]I accept Mr Knipe's submission that there does not need to be a vacant position to convert an employee's employment from casual to permanent. However, in this matter the consideration of whether there was a vacancy of a position, or otherwise, was ancillary to the substantive reasons for the refusal of Mr Knipe's request.
- [26]Whilst I accept that the GCHHS has referred to the steps it has taken to determine whether there is an available role for Mr Knipe to perform, they have done so within the context of explaining that due to the adhoc and unpredictable nature of the work to be performed, including with respect to "specialling", there is no ongoing need for the role to be performed in a permanent capacity.
- [27]On one view, the material relied on by Mr Knipe attached to his submissions supports this conclusion. For instance, the payslips, albeit for various periods, depict a two-week time frame during which Mr Knipe appears to have worked on varying days for varying hours. Some shifts are scheduled for as little as two and a half hours, whilst other shifts are scheduled for up to ten hours. The payslip for May 2021, whilst recording the relevant two-week period that Mr Knipe worked on the Tuesday, Wednesday and Thursday's of each of those weeks for ten hours, does not provide an overall understanding of the way in which Mr Knipe has been rostered.
- [28]I have also had regard to the Memorandum of Understanding ("MOU") which was entered into in October 2019. I recognise that the purpose of the MOU is to outline how the GCHHS has agreed to prioritise, offering additional and or emergent ordinary hours to part time employees within Integrated Security Services before engaging casual employees. It follows, that the MOU provides an understanding as to how the parties have agreed that additional and or emergent ordinary hours will be allocated. It recognises that the GCHHS, will, wherever possible, offer available additional ordinary hours shifts to part-time employees in the first instance.
- [29]Further, the parties to the MOU acknowledge that adhoc requests made to Integrated Security Services by other areas of the health service to ensure the immediate safety of staff, patients and visitors to its facilities are inherently unscheduled, emergent and on demand. It may well be that one of the reasons it is unable to be established that there is an ongoing need for Mr Knipe's role to be performed, is because of the MOU and the preference to offering part-time employees ordinary hours shifts in the first instance.
Genuine operational requirement
- [30]Mr Knipe further contends that there is a genuine reason to convert his employment to a permanent position. The decision, again, deals with this criteria under the heading "Conversion is not viable or appropriate – genuine operational requirements".
- [31]The decision relevantly states that whilst there will be opportunities for casual engagement, the nature of the need is driven by the adhoc business needs, including emergent leave and adhoc business requests. The decision states that while there may be further opportunities for Mr Knipe to access casual shifts, conversion is not appropriate or viable due to the genuine operational requirements of the GCHHS.
- [32]The decision also confirms that the GCHHS does not currently have vacant permanent hours and is committed to the MOU which requires adhoc roster gaps to be allocated to permanent part-time employees in the first instance. The GCHHS submits that there are no current vacancies to which Mr Knipe could be permanently appointed and after a careful review, there is no genuine operational need to create extra permanent vacancies within the Security Services at that time.
- [33]As noted above, whilst I accept Mr Knipe's complaint that the decision-maker did not need to consider whether there were permanent positions available, I do not find that such consideration disturbs the substance of the reasons for the decision, which is, that the performance of Mr Knipe's role requires "specialling" which leads to unpredictability and adhoc requirements for the performance of the role.
- [34]As noted above, cl 5.2 of Directive 08/20 provides circumstances where it may be appropriate to continue temporary employment. The circumstances of this matter and the GCHHS's need to engage in "specialling", in particular, supports the decision. Further, I accept that there are genuine operational requirements of the GCHHS to continue Mr Knipe's employment as casual. Such a decision is consistent with the GCHHS's management of the department in such a way that promotes the effective, efficient and appropriate management of public resources.
- [35]Accordingly, I do not consider that the decision was not fair or reasonable.
Order
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Appellant's Appeal Notice filed on 5 May 2021, Attachment 1.
[2] Appellant's submissions filed on 10 May 2021.
[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[6] [2020] QIRC 203.
[7] Ibid, [37] - [38].
[8] Casual Employment Directive 08/20, cl 5.2.
[9] [2021] QIRC 055.