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CITE

Unreported Judgment

Neilsen v State of Queensland (Queensland Health)[2021] QIRC 305Member Power IC
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Neilsen v State of Queensland (Queensland Health)[2021] QIRC 305

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Neilsen v State of Queensland (Queensland Health) [2021] QIRC 305
PARTIES:	Neilsen, Shay-lee Anne (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO.:	PSA/2021/289
PROCEEDING:	Public Service Appeal – Conversion of fixed term temporary employment
DELIVERED ON:	3 September 2021
HEARINGDATE:	25 August 2021
MEMBER: HEARD AT:	Power IC Brisbane
ORDER:	Pursuant to s 562C(1)(c) of the *Industrial* *Relations Act 2016* (Qld), the decision is set aside and substituted with the decision that the Appellant's employment is to be converted to permanent.
CATCHWORDS_:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of the scope of a review under s 149B
LEGISLATION:	Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 148, 149A and 149B
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Cameron v State of Queensland (Queensland Health) [2021] QIRC 226 Finn v State of Queensland (Department of Health) [2021] QIRC 144 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Newman v State of Queensland (Queensland Health) [2021] QIRC 218 Walters v State of Queensland (Queensland Health) [2021] QIRC 219
APPEARANCES:	Ms N. Vigor, for the Appellant Ms M. Harvey, for the Respondent

Reasons for decision

Introduction

[1]
Ms Shay-lee Anne Neilsen ('the Appellant'), is currently employed by the State of Queensland (Queensland Health) ('the Respondent') in the fixed term temporary position of AO3, Ward Administrator within the Wide Bay Hospital and Health Service ('WBHHS').

[2]
By Appeal Notice filed on 17 August 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'), appealed against a decision that her employment remain as fixed term temporary with the Respondent ('the decision').

Appeal principles

[3]
Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

[4]
The appeal must be decided by reviewing the decision appealed against.^[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.^[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,^[3] but involves a review of the decision arrived at and the decision making process associated therewith.

[5]
The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.^[4] The issue for determination is whether the decision by Ms Debbie Carroll, Chief Executive, WBHHS ('the decision maker') to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').

What decisions can the Industrial Commissioner make?

[6]
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.

Grounds of Appeal

[7]
In the appeal notice, the Appellant contends that the decision that the Appellant remain a fixed term temporary employee is unfair and unreasonable as:

the decision is based on factual error. The Appellant has never worked as a casual employee, or at the AO2 classification level, and have only worked in AO3, fixed term temporary contracts since commencing her continuous employment on 6 June 2018;

the decision is inconsistent and has not applied a proper process, given the decision states that the Appellant will remain a casual employee, however, conducted the review under the Directive;

the decision maker, while acknowledging that there is a continuing need for the Appellant's employment, applies unfair weight to the reasons that tenure may not be viable or appropriate in accordance with s 148(2)(a) of the PS Act. However, the decision maker does not apply adequate weight to s 148(3) of the PS Act;

the statement in the decision that, 'based on previous patterns of engagement…I am unable to be certain in regards to the number of hours that may be available to be offered to you at any time' is based on convenience rather than complying with the requirements of s 149A of the PS Act or the Directive; and

the decision does not provide sufficient explanation as to the apparent absence of any role substantially the same and does not comply with the requirements under s 149A(2)(a)(ii) of the PS Act and s 27B(a) and (b) of the Acts Interpretation Act 1954 (Qld).

Relevant provisions of the PS Act and the Directive

[8]
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 period 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 mentioned 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 casual 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.

…

[9]
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-

(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.

[10]
Section 149A(3) of the PS Act provides:

(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.

[11]
The Directive relevantly provides:

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:

(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 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:

(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 (28 days).

…

Submissions

[12]
A hearing was held on 25 August 2021 during which both the Appellant and Respondent provided oral submissions.

[13]
The Appellant subsequently filed written submissions on 27 August 2021, which can be summarised as follows:

There is no dispute that the Appellant is eligible for review having been employed in excess of three years and satisfies the merit requirement and that the decision maker confirmed that there is a continuing need in the role;

the decision is inadequate in that it merely states that there are no roles available that are substantially the same as the role in which the Appellant is currently engaged but shows no analysis of any other roles considered and why some might have been rejected;

there is a continuing need for work to be performed in a role that is substantially the same to the Appellant's role due to the need for an AO3, Ward Administrator role proposed for Ward 1, Maryborough Hospital;

the Appellant referred to the matters of Walters v State of Queensland (Queensland Health),^[5] Newman v State of Queensland (Queensland Health),^[6] and Finn v State of Queensland (Department of Health)^[7] for considerations of genuine operational requirements;

clause 11.5 of Queensland Public Health Sector Certified Agreement (No. 10) ('EB10') does not apply and cannot be legitimately relied upon to not comply with its industrial obligations under s 149B(2)(a)(i) of the PS Act, with clause 11.5.1 stating:

The provisions in this clause are not impacted by, nor do they impact the conversion of casual and temporary employees to permanent employment provisions in clause 6.3 of this agreement. Those provisions relate to the commitment of the Queensland Government to maximise permanent employment.

the Recommendation referred to by the Respondent expressly applied to the operational stream, was made with the consent of the parties, is not binding on the Respondent and appears to be an extra claim in breach of the no further claims clause of EB10. It was not the intent of the Recommendation to supplant the legal obligation placed on the employer to undertake a s 149 review.

[14]
The Respondent filed submissions on 30 August 2021, which can be summarised as follows:

The Appellant has only been engaged to cover roles where the incumbent position holder has been temporarily absent due to sick leave, temporary increases in demand, training, secondments/deployments, temporary reductions in hours due to return to work arrangements or parent leave, or recreation leave. In each case, the substantive incumbent has returned to their position and the Appellant is no longer required;

the stated purpose of the Directive is twofold. It establishes employment on tenure as the default basis of employment in the public service, excluding non-industrial instrument employees and sets out the circumstances where employment on tenure is not viable or appropriate. Clause 4.4 of the Directive and s 148(2) of the PS Act sets out situations where the use of tenured employment is generally not viable and appropriate and includes circumstances in which the Appellant has been engaged, such as 'to fill a temporary vacancy arising because a person is absent for a known period' and 'to fill a short-term vacancy before a person is appointed on tenure';

there is a legitimate and genuine need for the use of casual and temporary employees within Administration services. It is a workforce strategy utilised to ensure resourcing across a 24/7 operation and allowing for the types of leave mentioned above. The workforce strategy includes a fixed permanent budgeted establishment of Full Time Equivalent ('FTE') employees aligning with the operational requirements of the service in which the Appellant is engaged, and a small pool of casual staff to backfill emergent leave and which can be engaged in fixed term temporary contracts as required to backfill other forms of planned leave;

converting the Appellant to permanent will impact this workforce strategy. Depending on the timing of recreation or other leave requests, the requirements to backfill substantive FTEs is variable. Therefore, if there are no substantive FTEs on leave, an additional substantive permanent FTE would result in the actual establishment being higher than the budget establishment, resulting in actual costs being higher than budgeted costs and forming a labour expenditure budget overspend. These reasons are not trivial, nor are they managerial inconveniences or simply difficulties;

with regard to the Appellant's argument that there is a recognised need to employ the Appellant in a continuing way, the Respondent agrees, however, submits that it is based on sound operational and workforce planning reasoning which supports employment continuing on a casual and/or fixed term temporary basis when required as the nature of the casual work includes ad-hoc casual call in shifts and temporary contracts when required. The Respondent annexed an outline of the Appellant's hours, indicating the variance from week to week depending on service requirements;

with regard to the Appellant's argument that the reasons for decision are inadequate in describing the evaluation undertaken to determine if there were any other roles that were substantially the same, the Respondent submits that this was spoken to at the hearing and the process for review of the HHS-wide position occupancy report being reviewed for all other similar positions being available was described;

with regard to the potential new vacancy in Ward 1, Maryborough Hospital, the Respondent annexed an organisational change process flow chart and submitted that the position is not yet implemented;

in Cameron v State of Queensland (Queensland Health),^[8] the appeal was dismissed where the circumstances were in effect the same as the circumstances regarding the Appellant;

in reference to a Recommendation issued in a dispute matter at the Commission, the same conflict between clause 11.5 of EB10 and the conversion directives exist in this matter and the same principal that the clause should be used to fill vacant positions should apply; and

in accordance with clause 11.5 of EB10, a closed merit process was undertaken in May 2021 and subsequently, an offer of permanent employment was made to the Appellant on 30 August 2021. The Respondent submits that this offer of permanent employment was accepted by the Appellant.^[9]

Consideration

[15]
To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision by the decision maker was stated in the following terms:

You are not being converted to permanent employment and will continue as casual employee at this time, undertaking fixed term temporary contracts as required. Your eligibility review date is 06/06/2022.

[16]
I firstly note that the decision contains a number of errors. The Appellant is not a 'casual employee' as described in the decision. The Appellant has been employed in temporary contracts and, at the time the review occurred, was employed pursuant to a fixed term temporary contract. I note, however, that the review was conducted under the correct Directive, being Directive 09/20 Fixed term temporary employment. Additionally, the Appellant was not employed in a AO2 role, rather, has been employed in AO3 roles throughout her temporary engagements, including the role she occupied at the time of the review decision.

Is there a continuing need for the Appellant to be employed in the role, or a role which is substantially the same?

[17]
The decision maker considered this criterion and stated the following:

However, in reviewing the circumstances relevant of your employment, I have considered based on previous patterns of engagement, that it is likely there will be a continuing need to engage you either as a casual or as a temporary employee in accordance with the circumstances outlined in section 148(2) of the PS Act to enable WBHHS to fulfil its service provision requirements, however, I am unable to be certain in regards to the number of hours that may be available to be offered to you at any time.

I have also considered whether there is a continuing need to employ you not only in your current role but another role that is substantially the same. There are currently no other roles available within the WBHHS that are substantially the same as the role in which you are currently engaged.

[18]
The decision maker addressed this criterion in an unorthodox manner by determining that there was a continuing need to engage the Appellant but only as a casual or temporary employee. Section 149A(2)(a)(i) of the PS Act states clearly that the consideration is whether there is a continuing need for the Appellant to be employed either in the role or a role which is substantially the same. The question of whether the employment is casual or temporary is not a relevant consideration. It is also incongruous to reason that there is a continuing need to engage the Appellant but determine that there are currently no other roles available that are substantially the same. The consideration does not require there to be a vacant role substantially the same, only that there be a continuing need for the Appellant to be employed in the role or a role substantially the same. In consideration of the history of the Appellant's three years of continuous engagements, and given the Respondent's acceptance that it will continue to engage the Appellant on a casual or temporary basis, it is reasonable to conclude that there is a continuing need for the Appellant to be employed in a role substantially the same as the current role.

[19]
Submissions were made by the Appellant regarding the availability of an AO3 role proposed for Ward 1, Maryborough Hospital. The Respondent submits that this role was not available at the time of review. Irrespective of whether the Appellant may be able to fill this role or continue to backfill other roles, I am satisfied that there is a continuing need for the Appellant to be employed in a role substantially the same as her current role.

Merit

[20]
The decision confirms that the decision maker had regard to the merit principle and determined that the Appellant has demonstrated over time that she satisfied the merit requirements for the role.

Previous decisions

[21]
Section 149B(5)(b) of the PS Act requires that the chief executive consider the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B in relation to the employee during their period of continuous employment.

[22]
The decision maker attached to the decision a schedule of decisions previously made and states that these decisions have been considered. The first decision of 23 June 2020 deemed the Appellant ineligible for conversion on the basis that she was employed in roles that were not the same or similar, being an AO3, Ward Clerk and then working as an AO3, Cancer Care Administration. The second decision of 8 December 2020 deemed the Appellant ineligible for conversion due to genuine operational requirements. This decision confirmed the Appellant's merit and that there was a continuing need for the Appellant's engagement.

Requirements with industrial instruments

[23]
The decision maker referred to clause 11.5 of EB10 which provides for a closed merit selection for filling vacancies. The decision maker advised that there were currently no closed merit selection processes underway and therefore no available hours to be offered in accordance with this clause.

[24]
I note the Appellant's submission that annexed the HR Policy B34 Relief Pool – Administrative Stream Guidelines which is attached to EB10 as a 'protected policy' and provides at clause 8.2:

Every effort is to be made to establish a pool of permanent relief staff when practical and appropriate;

Queensland Health is committed to maximising permanent employment:

…

Temporary positions in relief pools are to comply with the requirements of Temporary Employment HR Policy B25;

Relief pools are to be adequately staffed and resourced. The operational demands on relief pool resources are to be considered in annual funding/budget allocation processes.

[25]
The Respondent submits that it complies with the requirement for relief pools in accordance with Attachment One of the Policy which provides for 'Permanent administrative relief pool to cover planned leave supported by casual relief pool to cover other specific leave periods'.

[26]
I accept the Appellant's submission that this policy provides that employees in relief pools are not subject to a separate arrangement and should be made permanent on the same basis as other employees, and also note that it provides for permanent relief pools to be supported by casual relief pools to cover other leave periods.

[27]
The decision maker stated that she had determined to consider the review separately from the provisions in clause 11.5 of EB10, although also considered that if there were permanent full time or subsequent part time vacancies, clause 11.4 of EB10 should prevail. In my view, the requirements of clause 11.5 are distinct and separate from those of s 149A of the PS Act and the requirements of the Directive, and one does not prevail over the other. The issue of compliance with industrial instruments was not, however, determinative in the decision to deny conversion to permanency and so need not be considered further.

Genuine operational requirement

[28]
Section 149A(3) of the PS Act provides that if the matters in s 149A(2) are satisfied, the person's employment must be converted unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

[29]
The decision maker stated that the reason the Appellant would not be converted to permanent was because the genuine operational requirements of WBHHS made it neither viable nor appropriate to convert to permanent.

[30]
As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),^[10] the phrase '… genuine operational requirements of the department', construed in the context of a temporary higher classification appointment, would at least include consideration of the following:

… whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'^[11]

[31]
In considering the genuine operational requirements of the Department, the decision maker considered that it was not viable nor appropriate to convert the Appellant because there was no budget for a permanent position and the Appellant was engaged as a casual to backfill short term emergent leave. The decision maker considered that the Appellant is engaged to backfill substantive permanent FTEs on leave, and this requirement is variable. The consequence of converting the Appellant's employment would be that, if there were no substantive FTEs on leave, an additional substantive permanent FTE would result in the establishment being higher than the budgeted establishment.

[32]
In my view, there are a number of difficulties with this reasoning. As noted above, the Appellant was not engaged as a casual but rather had been engaged on consecutive fixed term temporary contracts of varying lengths at an AO3 level. I also note that the Directive does not require there to be a funded vacancy as a criterion for conversion.

[33]
The operational requirements of the service require there to be staff available to backfill substantive FTEs due to leave arrangements. The evidence demonstrates that this requirement is ongoing, with the Appellant employed to backfill roles on fixed term contracts continuously for three years. There is no evidence to suggest that the need to backfill other FTEs will somehow decline in the future.

[34]
A consideration that the Appellant may at some point cause the labour expenditure budget to increase is not a genuine operational consideration in these circumstances, particularly given the Appellant's history of engagement. The substantive FTEs have previously been backfilled and will continue to be backfilled due to regular and ongoing leave arrangements. Whether payment for this backfilled labour comes from budget allocation to a fixed term temporary employee or a permanent employee would be of minimal, if any, budgetary consequence. I understand the Respondent's submission that if there were no substantive FTEs on leave, an additional substantive permanent FTE would result in a labour expenditure budget overspend. The evidence in this matter however demonstrates that over a period of three years, the Appellant's labour was continuously required to backfill FTEs on leave. Concerns about a potential period of 'surplus' FTE appear to be theoretical in nature rather than a likely outcome given the history of the Appellant's engagement. Presumably, the tenured employees from a relief pool would normally be utilised prior to the casual relief pool to reduce the likelihood of any surplus FTE.

[35]
I accept that s 148(2) of the PS Act provides that employment on tenure may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period. However, consideration must also be given to s 148(3) which provides that employment on tenure may be viable or appropriate if the engagement outlined in s 148(2) has been on a frequent or regular basis. The Appellant's history demonstrates three continuous years of temporary engagements which would reasonably be considered frequent or regular in circumstances contemplated by s 148(3) of the PS Act.

[36]
The decision maker noted that she was unable to be certain of the number of hours that may be available to be offered at any time to the Appellant. This is undoubtedly correct however this level of certainty is not required by the PS Act or the Directive. Clause 7.4 of the Directive outlines the process by which the number of hours for conversion is to be calculated.

[37]
I am not required to consider the submission regarding the potential vacancy in Ward 1, Maryborough Hospital. It is contested whether the position was available at the time of the decision, whether it should have been considered as a position 'substantially the same' and whether clause 11.5 of EB10 should prevail over the requirements of the Directive to allow for a closed merit appointment process. The recruitment to the potential vacancy in Ward 1 is a separate process to this appeal.

[38]
As the Appellant has satisfied the merit principle and there was a continuing need for someone to be employed in her role or a role substantially the same, the only consideration that may prevent conversion to appointment on tenure is genuine operational requirements. On the basis that I am not satisfied that the reasons provided for genuine operational requirements are fair and reasonable, my determination is that the decision is to be set aside and the Appellant's employment is to be converted to employment on tenure.

[39]
To allow the operational requirements of the type described in the decision to prevent conversion to permanency would prejudice any fixed term temporary employees working in relief pool roles from obtaining the benefit of this statutory framework. It would also defeat the purposes of the Directive and associated provisions of the PS Act, which provide that employment on tenure is the default basis of employment.

Conclusion

[40]
The decision provided to the Appellant contained a number of errors as outlined above, and although the Respondent's oral submissions confirmed that attempts to identify roles substantially the same were made, these actions were not outlined in the decision as required by clause 8.4 of the Directive. These errors, however, do not appear to have impacted the decision maker's decision. The decision to deny conversion was based upon the decision maker's assessment that there were genuine operational reasons, making employment on tenure unviable or inappropriate. As outlined above, I am not satisfied that the reasons provided can reasonably be accepted as genuine operational reasons in these circumstances.

[41]
The Appellant satisfied the criteria of the Directive and the PS Act and as there are no fair and reasonable operational requirements preventing conversion, the Appellant's employment should be converted accordingly.

[42]
Pursuant to s 562C(1)(c) of the IR Act, the decision is set aside and substituted with the decision that the Appellant's employment is to be converted to permanent.

Order

[43]
I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with the decision that the Appellant's employment is to be converted to permanent.

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2021] QIRC 219.

[6] [2021] QIRC 218.

[7] [2021] QIRC 144.

[8] [2021] QIRC 226.

[9] As outlined in an annexure, a statement from the Appellant's line manager.

[10] [2020] QIRC 203.

[11] Ibid [40].

Editorial Notes

Published Case Name:
Neilsen v State of Queensland (Queensland Health)
Shortened Case Name:
Neilsen v State of Queensland (Queensland Health)
MNC:
[2021] QIRC 305
Court:
QIRC
Judge(s):
Member Power IC
Date:
03 Sep 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 List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Brandy v Human Rights & Equal Opportunity Commission	View on:JADE(1995) 183 CLR 245	2 citations Jump To Cite 1 - (1995) 183 CLR 245 Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission	View on:JADE[1995] HCA 10	2 citations Jump To Cite 1 - [1995] HCA 10 Cite 2 - [1995] HCA 10
Cameron v State of Queensland (Queensland Health)	[2021] QIRC 226	2 citations Jump To Cite 1 - [2021] QIRC 226 Cite 2 - [2021] QIRC 226
Finn v State of Queensland (Department of Health)	[2021] QIRC 144	2 citations Jump To Cite 1 - [2021] QIRC 144 Cite 2 - [2021] QIRC 144
Goodall v State of Queensland	[2018] QSC 319	1 citation Jump To Cite 1 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women)	[2020] QIRC 203	3 citations Jump To Cite 1 - [2020] QIRC 203 Cite 2 - [2020] QIRC 203 Cite 3 - [2020] QIRC 203
Newman v State of Queensland (Queensland Health)	[2021] QIRC 218	2 citations Jump To Cite 1 - [2021] QIRC 218 Cite 2 - [2021] QIRC 218
Walters v State of Queensland (Queensland Health)	[2021] QIRC 219	2 citations Jump To Cite 1 - [2021] QIRC 219 Cite 2 - [2021] QIRC 219

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Horne v State of Queensland (Queensland Health)	[2022] QIRC 359	2 citations
Simpson-Page v State of Queensland (Queensland Health)	[2022] QIRC 21	1 citation

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Neilsen v State of Queensland (Queensland Health)[2021] QIRC 305