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Varghesekutty v State of Queensland (Queensland Health)[2021] QIRC 319

Varghesekutty v State of Queensland (Queensland Health)[2021] QIRC 319

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 319

PARTIES:

Varghesekutty, John

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/291

PROCEEDING:

Public Service Appeal – temporary employment conversion

DELIVERED ON:

16 September 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. 1.The appeal is allowed;
  2. 2.The decision that Mr Varghesekutty not have his employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Mr Varghesekutty's employment status be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – where the deemed outcome of the review was that the appellant was not permanently appointed – where appeal filed out of time – consideration of whether to determine appeal out of time – consideration of genuine operational requirements – where deemed decision was not fair and reasonable

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Financial Accountability Act 2009 (Qld)

Hospital and Health Boards Act 2011 (Qld)

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

Public Service Act 2008 (Qld) s 27, s 147, s 148, s 149, s 149A, s 149B, s 194, s 195, s 196

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 08/20 Casual employment

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 11

Hospital and Health Service General Employees (Queensland Health) Award - State 2015 cl 15

Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 5, cl 11

CASES:

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

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

Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220

Deverge v State of Queensland (Queensland Health) [2021] QIRC 046

Finn v State of Queensland (Department of Health) [2021] QIRC 144

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

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

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

House v The King (1936) 55 CLR 499

IW v City of Perth (1997) 191 CLR 1

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

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 052

Roger Carter Paterson v Medical benefits Fund of Australia Limited (1998) 159 QGIG 232

Woodhouse v State of Queensland (Queensland Health) [2021] QIRC 290

Reasons for Decision

Introduction

  1. [1]
    On 18 August 2021, the Australian Workers' Union (the AWU) on behalf of Mr John Varghesekutty (the Appellant) filed an appeal against a conversion decision made by Queensland Health, State of Queensland (the Department; the Respondent).
  1. [2]
    Mr Varghesekutty is substantively employed as a casual OO2 Operational Services Officer (Kitchen Assistant) at Hervey Bay Hospital, Wide Bay Hospital and Health Service (WBHHS).
  1. [3]
    Mr Varghesekutty has been employed by the Respondent on a casual basis and in various temporary contracts for over two years.[1]
  1. [4]
    In correspondence dated 26 May 2021, the Department advised Mr Varghesekutty that he is eligible for a review of his fixed term temporary employment under Directive 09/20 Fixed term temporary employment (Directive 09/20) and s 149B of the Public Service Act 2008 (Qld) (PS Act).
  1. [5]
    In correspondence dated 30 May 2021, the AWU wrote to the Department seeking for Mr Varghesekutty to be converted from casual to permanent employment under Directive 08/20 Casual employment (Directive 08/20) and the PS Act.[2]
  1. [6]
    On 28 July 2021, the Department issued a letter to Mr Varghesekutty that advised he is 'not being converted to permanent employment and will continue as casual employee at this time' and outlined the reasoning for the conversion decision with reference to Directive 09/20.[3] At this time, Mr Varghesekutty was engaged in a fixed term temporary contract with an end date of 8 August 2021.[4]
  1. [7]
    On 18 August 2021, Mr Varghesekutty filed an Appeal Notice seeking to appeal the decision contained in the 28 July 2021 correspondence.

The decision

   The review

  1. [8]
    As outlined above, Mr Varghesekutty has been engaged on both a casual basis and on temporary contracts over the last two years. Although the AWU requested a review of Mr Varghesekutty's employment under Directive 08/20, the Department proceeded to review Mr Varghesekutty's employment under Directive 09/20.
  1. [9]
    Directive 09/20 "applies to public service employees who are employed on a full-time or part-time fixed term temporary basis under section 147(2)(a) or section 148 of the PS Act."[5] Clause 3.4 of Directive 09/20 states that "Public service employees who are currently employed on a casual basis under section 147 or 148A of the PS Act should refer to the casual employment directive".
  1. [10]
    At the time of the 28 July 2021 correspondence, Mr Varghesekutty was employed on a fixed term temporary basis.[6] However, at the time of his review eligibility date on 20 May 2021, Mr Varghesekutty was not then engaged for work, although he had been casually employed in the week prior and throughout the subsequent review eligibility period.[7]
  1. [11]
    It is unclear why the Department decided to conduct Mr Varghesekutty's review under Directive 09/20, particularly as Mr Varghesekutty was not engaged on a temporary contract during the review eligibility period. Notwithstanding, there does not appear to be a contention from Mr Varghesekutty that the Department errored in this application as he too referred to Directive 09/20 in his submissions and Directive 08/20 does not feature in Mr Varghesekutty's submissions.
  1. [12]
    I acknowledge that not all documentation informing the Department's decision has been provided to me through this appeal but note it is not agitated or responded to within the submissions of either party. Noting that there appears to have been a meeting of the minds between the parties, I consider the most appropriate course is to proceed on the basis that the Department was correct to consider Directive 09/20 when conducting Mr Varghesekutty's review.

 What constitutes the decision subject of this appeal?

  1. [13]
    Clause 11.1 of the Directive 09/20 provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert."
  1. [14]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee".
  1. [15]
    In the submissions annexed to the Appeal Notice, Mr Varghesekutty submits that the 'conversion decision' subject of this appeal is contained in the 28 July 2021 correspondence.[8] Mr Varghesekutty argues that because the Department did not provide an update on the status of the conversion request until 28 July 2021 when the written correspondence was issued, the 21-day time limit for appeal began on 29 July 2021. For the reasons that follow, I disagree with that argument. 
  1. [16]
    Section 149B(4)(a) and (9)(b) of the PS Act requires the Department's chief executive to make the decision within 28 days from "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department".
  1. [17]
    Mr Varghesekutty submitted he commenced employment with the Department on 15 March 2019.[9] Notwithstanding, the Department stated that Mr Varghesekutty's review eligibility date is 20 May 2021[10] which suggests he had been continuously employed as a temporary or casual employee in the Department since 20 May 2019. It is unclear why there is a discrepancy between dates. However, as the Department specifically stipulated the review eligibility date, I will proceed on the basis that 20 May 2021 is the correct date.
  1. [18]
    The Department's chief executive was required to make a conversion decision within 28 days from 20 May 2021. No decision was forthcoming by the Department, and so a decision rejecting conversion was deemed to have occurred 28 days later on 17 June 2021 in accordance with s 149B(7) of the PS Act. That is the decision that forms the subject of this appeal. Any written correspondence subsequent to that deemed decision is simply explanation for the prior deemed refusal.

   Respondent's submission

  1. [19]
    Mr Varghesekutty's appeal seeks a decision to convert his employment status to permanent pursuant to s 149B of the PS Act. However, the Department submitted that s 195(2) of the PS Act provides that "A person can not appeal against, or in an appeal call in question in any way, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the public service or a department." Further, that the decision to decline Mr Varghesekutty's application for conversion "is a decision about the resourcing of the operational services at the Hospital within a framework of accountability underpinned by numerous legislation…"[11]
  1. [20]
    The Department then proceeded to argue that "an industrial tribunal ought not interfere with the right of management to manage its business".[12]
  1. [21]
    The Department's submission in this regard is vague and it is unclear whether the Department is alleging the conversion decision cannot be appealed. If that is the case and the Department's assertion on this point were to be accepted, the stipulation of an option for Mr Varghesekutty to appeal the decision under s 194(1)(e) of the PS Act in the 26 May 2021 and 28 July 2021 correspondence issued to him would be quite inexplicable.
  1. [22]
    Further, any attempted argument by the Department to adopt this errored interpretation would seemingly result in prohibiting most staffing conversion determinations from ever being challenged through a Public Service Appeal process. Clearly, this is not the intention of either the PS Act or Directive 09/20.

  Conclusion

  1. [23]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [24]
    For the reasons outlined above, I am satisfied the deemed decision was made under s 149B of the PS Act and is able to be appealed by Mr Varghesekutty.

Timeframe for appeal

  1. [25]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [26]
    The deemed decision was given on 17 June 2021. To accord with s 564(3) of the IR Act, an Appeal Notice should have been filed with the Industrial Registry on or by 8 July 2021.
  1. [27]
    The Appeal Notice was filed with the Industrial Registry on 18 August 2021 - 41 days out of time. 

Should this appeal be heard out of time?

  1. [28]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[13] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [29]
    Mr Varghesekutty bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[14]
  1. [30]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[15] Several factors inform the exercise of my discretion.
  1. [31]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[16]
  • The length of the delay;
  • The explanation for the delay;
  • The prejudice to the Appellant if the extension of time is not granted;
  • The prejudice to the Respondent if the extension of time is granted; and
  • Any relevant conduct of the Respondent.

Length of delay

  1. [32]
    The appeal was filed 41 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act. I appreciate 41 days is not an insubstantial amount of time.

Explanation for the delay

  1. [33]
    The Appeal Notice indicates Mr Varghesekutty believes he was within the required timeframe for filing. That is supported by Mr Varghesekutty's submission that the reason for the delay was the belief the appeal period commenced from the date he received a written decision.[17]
  1. [34]
    Mr Varghesekutty additionally referred to correspondence dated 26 May 2021 in which the Department relevantly stated the following:[18]

You will be advised in writing within 28 calendar days after the review eligibility date. If a decision is not made within this timeframe, it is deemed that you will not be converted to permanent employment.[19]

Under the PS Act, a decision needs to be made within 28 days of your eligibility date. While the delegate expects to make a decision within this timeframe, if not, a decision will be taken to have been made that you will not be permanently appointed. You will be advised in writing of the outcome of your request, reasons for the decision and any appeal rights. I have included additional information about this process at the end of this letter.[20]

  1. [35]
    I acknowledge that Mr Varghesekutty ought to have known that a deemed decision was given 28 days after his review eligibility date. I agree with the Department's submission that the 26 May 2021 correspondence was clear in this regard. Notwithstanding, that correspondence from the Department may have confused Mr Varghesekutty into believing the appeal period commenced from the date he received the written outcome of his request, particularly because of the wording, "You will be advised in writing of the outcome of your request".
  1. [36]
    I find that Mr Varghesekutty relied upon the wording in the 26 May 2021 correspondence such that he waited until he received a written outcome of the decision before filing an appeal and that explains the delay in issue.

 Prejudice to Mr Varghesekutty

  1. [37]
    The obvious prejudice is that Mr Varghesekutty would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.

  Prejudice to the Respondent

  1. [38]
    Delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[21] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[22] Mr Varghesekutty submitted that "any such prejudice would be both sine qua non and par delictum."[23] Mr Varghesekutty did not elaborate on that submission beyond simply stating it is the case.
  1. [39]
    I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time.

  Conduct of the Respondent

  1. [40]
    The Department's conduct appropriately comprised advising Mr Varghesekutty of his review eligibility date, when a decision would be deemed and his appeal rights. Notwithstanding, the Department's indication that Mr Varghesekutty would receive a written outcome of his request may have confused Mr Varghesekutty and inclined him to wait for a written decision.

  Prospects of success

  1. [41]
    Mr Varghesekutty's prospects of success at a substantive hearing are a relevant consideration.[24] I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[25]

  1. [42]
    In my preliminary view of the substantive matter, there are matters that are not in dispute and some that are. Therefore, the merits of the case (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter.
  1. [43]
    In light of the reasoning above, I will consider this appeal out of time.

 What decisions can the QIRC Member make?

  1. [44]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • Confirm the decision appealed against; or
  • Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • Set the decision aside and substitute another decision.

Appeal principles

  1. [45]
    Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [46]
    The appeal is not conducted by way of re-hearing,[26] but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[27] 
  1. [47]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[28]
  1. [48]
    The issue for my determination is whether the decision not to convert Mr Varghesekutty's employment status to permanent was fair and reasonable in the circumstances.[29]

Relevant provisions of the PS Act and Directive 09/20

  1. [49]
    Section 148 of the PS Act states:

148  Employment of fixed term temporary employees

  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period –

approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples—

employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example—

an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

   

  1. [50]
    Section 149B of the PS Act relevantly provides:
  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. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  2. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. [51]
    Section 149A(2)-(3) of the PS Act provides (emphasis added):

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-

  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [52]
    Directive 09/20 relevantly provides:

8.  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.

  1. [53]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[30]
  1. [54]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [55]
    The purpose of Directive 09/20 is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.  The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

 The legislation indicates where employment on tenure may not be appropriate.

  1. [56]
    Further, Directive 09/20 relevantly provides:

4.   Principles

4.1  Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the Government's Employment Security Policy.

4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

Submissions

  1. [57]
    In accordance with the Directions Order issued on 20 August 2021, the parties filed written submissions.
  1. [58]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [59]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

Consideration

  1. [60]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [61]
    Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker must consider:
  • 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 employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [62]
    Clause 8.2 of Directive 09/20 states (emphasis added):

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.[31]

  1. [63]
    The criterion regarding merit is not in dispute and as no other decision has been made under ss 149A or 149B of the PS Act with respect to Mr Varghesekutty's employment, that criterion will not be considered. Therefore, my decision firstly turns on the question of whether there is a continuing need for Mr Varghesekutty to be employed in the role, or a role which is substantially the same. I will then consider whether any genuine operational requirements fairly and reasonably prevent permanent conversion of Mr Varghesekutty and whether any relevant requirements of an industrial instrument have been complied with.

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

  1. [64]
    There are two potential pathways to conversion. The first pathway is Mr Varghesekutty's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [65]
    The Department stated that "it is difficult to predict whether there will be a continuing need to engage" Mr Varghesekutty in accordance with the circumstances outlined in           s 148(2) of the PS Act. The Department submitted that is because the circumstances prescribed rely upon permanent staff being unable to work their permanent rostered shifts for reasons such as emergent sick leave or carers leave, which is not planned in advance.[32]
  1. [66]
    Notwithstanding the above, the Department concluded that "based on previous patterns of engagement, that it is likely there will be a continuing need to engage" Mr Varghesekutty as either a casual or temporary employee in accordance with the circumstances outlined in s 148(2) of the PS Act. That is, "to enable WBHHS to fulfil its service provision requirements and having regard to the Certified Agreement…"[33]
  1. [67]
    The Department noted that the number of hours that may be available to offer Mr Varghesekutty at any time are uncertain.[34]
  1. [68]
    In support of the Department's ultimate conclusion at [66], Mr Varghesekutty annexed invoices to his Appeal Notice which evidence a pattern of regular and systematic engagements thus far.
  1. [69]
    I agree with both parties that there is a continuing need for Mr Varghesekutty to be employed in his current role. The Department's qualification that the continuing need pertains to "a casual and/or fixed term temporary basis when required (and not converting to permanent)" is beside the point. The question is whether there is a continuing need for Mr Varghesekutty to be employed in his current role and the Department has answered in the affirmative. For the sake of completeness, I will also consider the second pathway to permanent conversion.

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

  1. [70]
    In the 28 July 2021 correspondence, the Department states that "There are no other roles within the WBHHS that are substantively the same as the role in which" Mr Varghesekutty is currently engaged. The Department submits that the Kitchen Assistant role is unique and "there are no other positions with similar capability requirements" because all of the kitchen roles are backfilled from the same pool in which Mr Varghesekutty is currently engaged.[35]
  1. [71]
    Although the Department had not articulated the capability requirements, the 28 July 2021 correspondence indicates that it had considered and compared capability requirements across roles to reach its conclusion. Mr Varghesekutty did not present submissions in this regard and therefore I accept that there is not a continuing need for Mr Varghesekutty to be employed in a role which is substantially the same.

Genuine operational requirements

  1. [72]
    Clause 8.2 of Directive 09/20 provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency."
  1. [73]
    'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply.[36]
  1. [74]
    One relevant rule of statutory interpretation is the principle of 'beneficial legislation'.  Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. That principle has been applied to equal opportunity legislation. In IW v City of Perth, it was held that such remedial materials are:

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".[37]

  1. [75]
    Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.
  1. [76]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):

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

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

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

 

[40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[38]

  1. [77]
    Giving due consideration to the object, scope and purpose of the relevant legislative materials, including those outlined in paragraphs [55] and [56] above, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those.
  1. [78]
    If the inconveniences inherent to most if not all permanency conversions were sufficient to constitute genuine operational requirements, there would be few or no conversions. That interpretation would defeat the purpose of Directive 09/20 and the review.
  1. [79]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.
  1. [80]
    The Department argued there are 'genuine operational requirements' that prevent the conversion of Mr Varghesekutty to permanent employment. In essence, the reasons are:
  • Mr Varghesekutty's employment aligns with the workforce strategy for his service area which includes a budgeted permanent full time equivalent (FTE) establishment and a small casual backfill pool sufficient to cover leave arrangements; and
  • Mr Varghesekutty falls under the circumstances outlined in s 148(2) of the PS Act and his employment on tenure is therefore not viable or appropriate.
  1. [81]
    I will deal with each of those reasons in turn.

Workforce strategy

  1. [82]
    With respect to 'workforce strategy', the Department submitted that the following factors constituted genuine operational requirements preventing conversion of Mr Varghesekutty:
  • The nature of Mr Varghesekutty's engagements align with the workforce strategy for his service area, ensuring flexibility and an appropriate workforce mix.[39]
  • Mr Varghesekutty "sits against a casual position which is unfunded."[40] An additional substantive permanent FTE would result in an over establishment, "resulting in a labour expenditure budget overspend."[41]
  • It is not viable nor appropriate to convert Mr Varghesekutty when regard is had for the management and resourcing of the FTE establishment, workforce planning considerations, operational needs and ensuring financial sustainability as outlined in s 98 of the PS Act and within the current Service Delivery Agreement for WBHHS.
  • Engaging employees on a casual and temporary basis ensures resourcing across a 24/7 roster allowing for various types of leave.
  • The Department referred to provisions of the Financial Accountability Act 2009 (Qld), particularly those relating to efficient, effective and economical management. Those principles are similarly prescribed in the Hospital and Health Boards Act 2011 (Qld) in addition to that of sustainability.
  1. [83]
    The Department pointed to the case of Cameron v State of Queensland (Queensland Health)[42] and noted that in analogous circumstances, a conversion appeal was dismissed for the reasons outlined above.
  1. [84]
    In response, Mr Varghesekutty contended:
  • Section 98 of the PS Act requires the chief executive to manage the operational needs and ensure the financial sustainability of the service. Mr Varghesekutty contends his employment history "clearly shows that there is an on-going genuine operational need to employ him on a consistent and systematic basis."[43]
  • Section 25 of the PS Act requires the management of public resources in an efficient, responsible and fully accountable way while ensuring promotion of employment on tenure as the default basis.[44]
  1. [85]
    Mr Varghesekutty also correctly pointed out that a budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. Further, it is an inherent requirement of converting any casual or temporary employee to permanency that there will be budgetary re-allocations and the like. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees. Within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent', 'temporary' or 'casual' line item allocation.  Those operational reasons are therefore not reasonable in this context.
  1. [86]
    The Department has omitted to relate the relevant requirements under various legislative frameworks back to Mr Varghesekutty's specific circumstances. Rather, the Department has broadly referred to various provisions without referencing the material facts or evidencing how Mr Varghesekutty's conversion would go against the objectives of those provisions. This indicates that the Department may have taken a blanket approach to Mr Varghesekutty's conversion request and without specific evidence indicating Mr Varghesekutty's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that workforce strategy issues pose a genuine operational requirement that justifies a fair and reasonable deemed refusal to convert Mr Varghesekutty.
  1. [87]
    I accept that the nature of Mr Varghesekutty's role necessitates a degree of flexibility within the workforce mix. The Respondent has pointed to the Commission's conclusion in Cameron v State of Queensland (Queensland Health).[45] I have considered that decision and make the following observations. Firstly, with respect to the relevant provisions of the Hospital and Health Service General Employees (Queensland Health) Award - State 2015 (the Award), I note that rosters are required to be made available to employees "…at least one calendar week in advance of the roster cycle".[46] Further, that changes to the roster "…shall be by agreement between the employer and the employee concerned but, failing agreement, 24 hours' notice of any change in the roster must be given by the employer..." Such industrial instrument requirements are neither unique nor new conditions for the Department to come to terms with.  These requirements do necessitate forward planning and consultation but are certainly not onerous. Nor are they beyond what would be expected of most agencies converting a staff member to permanency.
  1. [88]
    Secondly, in my view the circumstances of Mr Varghesekutty's application are analogous to the cases of Woodhouse v State of Queensland (Queensland Health),[47] Finn v State of Queensland (Department of Health),[48]Deverge v State of Queensland (Queensland Health)[49] and Pulikkottil v State of Queensland (Queensland Health)[50] - all cases in which Operational Services Officers employed by WBHHS were successful in their conversion appeals.
  1. [89]
    Finally, it is often observed that reasonable minds may differ.[51]
  1. [90]
    In light of the reasoning above, I conclude that the workforce strategy issues raised by the Department do not constitute genuine operational requirements that could reasonably prevent permanent conversion of Mr Varghesekutty.

Employment on tenure is not viable or appropriate

  1. [91]
    The Department reasoned that Mr Varghesekutty's employment falls under the circumstances outlined in s 148(2) of the PS Act because Mr Varghesekutty's employment has been "to fill a temporary vacancy arising because a person is absent for a known period"[52] and "to fill a short-term vacancy before a person is appointed on tenure".[53]
  1. [92]
    The Department referred to cases including Holcombe v State of Queensland (Department of Housing and Public Works)[54] and Clair v State of Queensland (Department of Housing and Public Works)[55] as authority for the proposition that there is not a requirement for more than one person in any given role. Therefore, the Department submits that to convert Mr Varghesekutty in such circumstances would be unviable and inefficient. Further, the Department argues that over the last two years, Mr Varghesekutty "has only been engaged to cover in roles where the incumbent position holder has been temporarily absent" due to various types of leave. In each case the substantive incumbent has returned to their position and Mr Varghesekutty is no longer required.
  1. [93]
    It does not follow that the permanent conversion of Mr Varghesekutty's position would have meant there would be two people employed in the same role. My decision in Holcombe v State of Queensland (Department of Housing and Public Works)[56] was about a higher classification conversion under s 149C of the PS Act. The reasoning in that decision was specific to the wording of s 149C and has no relevance to this matter. Further, the Department argued that Mr Varghesekutty's engagement falls under all circumstances listed in s 148(2) of the PS Act. If that is the case, then it seems improbable that he has been covering the workload of just one employee but rather a number of employees for a range of reasons.
  1. [94]
    The issue is not whether it was appropriate to initially employ Mr Varghesekutty on a casual or temporary basis. Mr Varghesekutty has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for over two years. Although the nature of casual and temporary work can be unpredictable, in light of his continuous engagement, I accept Mr Varghesekutty has been engaged frequently - this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by Mr Varghesekutty in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [95]
    The admission that Mr Varghesekutty's role is continuing and the continual pattern of engaging Mr Varghesekutty over the last two years illustrates how the Department relies upon Mr Varghesekutty on an ongoing basis. A continuous pattern of allocated hours and temporary contracts, albeit unpredictable, indicates that Mr Varghesekutty is engaged on a systematic basis.
  1. [96]
    It is possible that the work undertaken by Mr Varghesekutty could be done on a casual or temporary basis. That is not in issue. A finding that the work could be done on a casual or temporary basis is not tantamount to evidencing a genuine operational requirement preventing conversion to permanent.
  1. [97]
    I am satisfied Mr Varghesekutty has been employed for a purpose mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that Mr Varghesekutty's employment on tenure is viable and appropriate. 
  1. [98]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Department justify a deemed refusal and therefore conclude that the decision was not fair and reasonable in the circumstances.

Compliance with industrial instrument

  1. [99]
    The Department took into consideration cl 11.5 of the Certified Agreement which pertains to the 'closed merit selection process for filling vacancies' and relevantly provides:

  11.5.2   The parties to this agreement agree to fill vacant full-time roles by offering such to those permanent part-time employees working in the work unit, who seek to work full-time.

11.5.3     If there are any vacant hours remaining after the process in clause 11.5.2 has been conducted, the remaining vacant hours will then be offered to those permanent part-time employees working in the work unit, who seek to work additional ordinary hours on a permanent basis up to 64 hours per fortnight, or full-time.

11.5.6    If vacant hours still remain unfilled, the remaining vacant hours will be offered by a closed merit process, restricted to those casual and temporary employees working at the site (example: Hospital) who have two years or more continuous service for base grade or non-base grade roles. Preference for base grade roles will be given to those employees with more than four years continuous service.

  1. [100]
    The Department noted that Mr Varghesekutty would "be considered as part of the EB10 process should a closed merit process be commenced in the event of a full time vacancy, and it be established that there are vacant hours remaining unfilled in accordance with clause 11.5.6 as the process is conducted."[57] The Department submitted that as there are currently no closed merit processes underway, there are no available hours to offer Mr Varghesekutty in accordance with cl 11.5.6 of the Certified Agreement. As outlined above, a position does not need to be vacant for an employee to be converted under s 149B of the PS Act. Therefore, I find that cl 11.5 poses no impediment to Mr Varghesekutty being converted to permanent.
  1. [101]
    With regard to the Certified Agreement, the Department took into consideration cl 5.2 'Process to Address Absences within Operational Services'. Specifically, cl 5.2.1 states:

All absences (planned and unplanned) within Operational Services will be backfilled. The options to backfill may include but are not limited to:

  1. (a)
    Offering additional ordinary hours to Part-Time employees,
  2. (b)
    Offering additional work to casual employees,
  3. (c)
    The application of Relief Pool staff, the use of Overtime,
  4. (d)
    Utilisation of temporary engagement (e.g. extended period of absence).
  1. [102]
    The Department contends, and I agree, that the Certified Agreement recognises the use of temporary employees as one strategy to mitigate workload and continue service provision in the event of staff absences. However, when employment on tenure is the default basis of employment in the public service, other considerations must be taken into account and for the reasons outlined above, I am not convinced there are genuine operational requirements that justify the use of temporary employment in Mr Varghesekutty's circumstances. 
  1. [103]
    I find that cl 5.2 of the Certified Agreement poses no impediment to the appeal being decided by the Commission.

Conclusion

  1. [104]
    For the reasons detailed above, I find the decision to maintain Mr Varghesekutty on a temporary basis was not fair and reasonable. There is a continuing need for Mr Varghesekutty to continue working in his current role and the Department has not evidenced a genuine operational requirement that reasonably prevents conversion of Mr Varghesekutty to permanent employment.
  1. [105]
    I order accordingly.

Order:

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

  1. The appeal is allowed;
  2. The decision that Mr Varghesekutty not have his employment converted to permanent is set aside and another decision is substituted; and
  3. Mr Varghesekutty's employment status be converted to permanent employment.

Footnotes

[1] Appeal Notice, 18 August 2021, Annexure: Submissions [1]; Letter from Ms D. Carroll to Mr J. Varghesekutty, Chief Executive of Wide Bay Hospital and Health Service, 28 July 2021, 1; Respondent's Submissions, 3 September 2021, 1 [1] and Annexure: 'Employment History Previous two years'.

[2] Appeal Notice, 18 August 2021, Annexure: Submissions [2] refers to 'Directive 08/20 Conversion of fixed term temporary employment', however that appears to be a typographical error as Directive 08/20 Casual employment and Directive 09/20 Fixed term temporary employment are separate.

[3] Letter from Ms. D Carroll to Mr J. Varghesekutty, 28 July 2021.

[4] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 1.

[5] Directive 09/20 Fixed term temporary employment cl 3.1.

[6] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 1.

[7] Respondent's Submissions, 3 September 2021, Annexure: 'Employment History Previous two years'.

[8] Appeal Notice, 18 August 2021, Annexure: Submissions [3].

[9] Appeal Notice, 18 August 2021, Annexure: Submissions [1].

[10] Letter from Mr B. Minns to Mr J. Varghesekutty, 26 May 2021, 1.

[11] Respondent's Submissions, 3 September 2021, 5 [28].

[12] Respondent's Submissions, 3 September 2021, 5 [29].

[13] Industrial Relations Act 2016 (Qld) s 564(2).

[14] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[15] House v The King (1936) 55 CLR 499, [2].

[16] (1995) 149 QGIG 777.

[17] Appellant's Submissions, 26 August 2021, [21].

[18] Appellant's Submissions, 26 August 2021, [22]. The extract at [22] of the Appellant's Submissions did not exactly mirror the wording in the 26 May 2021 correspondence. The extract in this decision mirrors the 26 May 2021 correspondence rather than the Appellant's Submissions.

[19] Letter from Mr B. Minns to Mr Varghesekutty, 26 May 2021, 1.

[20] Letter from Mr B. Minns to Mr Varghesekutty, 26 May 2021, 2.

[21] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[22] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[23] Appellant's Submissions, 26 August 2021, [26].

[24] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[25] [2010] ICQ 35, [6].

[26] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[27] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

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

[29] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

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

[31] This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).

[32] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 3.

[33] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 3.

[34] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 3.

[35] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 3.

[36] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269. 

[37] IW v City of Perth (1997) 191 CLR 1, 12.

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

[39] The Employment Security Policy referred to in cl 4.1 of Directive 09/20 encompasses these principles.

[40] Respondent's Submissions, 3 September 2021, 1 [4].

[41] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 4.

[42] [2021] QIRC 226.

[43] Appeal Notice, 18 August 2021, Annexure: Submissions [10].

[44] Appeal Notice, 18 August 2021, Annexure: Submissions [11].

[45] [2021] QIRC 226.

[46] Cl 15.2(b).

[47] [2021] QIRC 290.

[48] [2021] QIRC 144.

[49] [2021] QIRC 046.

[50] [2021] QIRC 052.

[51] Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611, [131].

[52] Public Service Act 2008 (Qld) s 148(2)(a).

[53] Public Service Act 2008 (Qld) s 148(2)(d).

[54] [2020] QIRC 195.

[55] [2020] QIRC 220.

[56] [2020] QIRC 195.

[57] Letter from Ms D. Carroll to Mr J. Varghesekutty, 28 July 2021, 4.

Close

Editorial Notes

  • Published Case Name:

    Varghesekutty v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Varghesekutty v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 319

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    16 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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