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Owens v State of Queensland (Department of Education)[2021] QIRC 372

Owens v State of Queensland (Department of Education)[2021] QIRC 372

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Owens v State of Queensland (Department of Education) [2021] QIRC 372

PARTIES:

Owens, Alfred

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2021/368

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

4 November 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDER:

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

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

CATCHWORDS:

PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where the appellant was reviewed under s 149B of the Public Service Act 2008 – where appellant is filling a temporary vacancy arising because a person is absent for a known period – consideration of genuine operational requirements

LEGISLATION AND

OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A, sch 1

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

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

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

Department of Education Certified Agreement 2019 cl 9

Directive 08/17 Temporary employment cl 14

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

CASES:

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

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

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

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

Reasons for Decision

Introduction

  1. [1]
    Since 16 September 2019, Mr Alfred Owens (the Appellant) has been employed as a temporary AO5 Project Officer in the Indigenous Community Engagement and Cultural Capability section of the Department of Education, State of Queensland (the Department; the Respondent).
  1. [2]
    Ms Elane Merkouriou[1] (the decision-maker) conducted a review of Mr Owens' employment status pursuant to s 149B of the Public Service Act 2008 (Qld) (the PS Act). On 12 October 2021, the decision-maker determined that Mr Owens' temporary employment status would not be converted to permanent (the Decision).[2]
  1. [3]
    On 20 October 2021, Mr Owens appealed the Decision.[3]
  1. [4]
    Mr Owens' current temporary engagement is expected to conclude on 5 November 2021.[4] 

The Decision

  1. [5]
    Mr Owens' temporary employment status became eligible for review on 16 September 2021, being the two-year anniversary of his commencement as a fixed term temporary employee.[5]
  1. [6]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. The Decision was given on 12 October 2021 and the Appeal Notice was filed eight days later on 20 October 2021. On that basis, I am satisfied Mr Owens has lodged the Appeal Notice on time.
  1. [7]
    Clause 11.1 of Directive 09/20 Fixed term temporary employment (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. [8]
    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". This is the "type of decision" Mr Owens indicated was being appealed against in the Appeal Notice. Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [9]
    For the reasons outlined above, I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed.

 Appeal principles

  1. [10]
    The appeal is decided by reviewing the decision appealed against to determine whether it "was fair and reasonable".[6]
  1. [11]
    The appeal is not conducted by way of re-hearing,[7] but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[8] 
  1. [12]
    Findings made by the Respondent, 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.[9]
  1. [13]
    The issue for my determination is whether the decision not to convert Mr Owens' employment status from temporary to permanent was fair and reasonable in the circumstances.[10]

 What decisions can the QIRC Member make?

  1. [14]
    Section 562C 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 issue 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

Relevant provisions of the PS Act and Directive 09/20

  1. [15]
    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. (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. [16]
    Section 149B of the PS Act relevantly provides:

149B  Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.

…

  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. [17]
    Section 149A(2) of the PS Act provides:

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

  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. [18]
    Section 149A(3) of the PS Act provides:
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [19]
    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. [20]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[11]
  1. [21]
    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. [22]
    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. [23]
    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.

…

Consideration

  1. [24]
    A Directions Order was issued on 21 October 2021 requiring submissions from both parties.
  1. [25]
    I have decided not to approach the writing of this decision by summarising all of the parties' submissions but will instead refer to the parties' key positions where relevant.
  1. [26]
    At this juncture it is appropriate to note that Mr Owens annexed a complaint he lodged against his Director referring to concerns regarding racial vilification and adverse action.[12] 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. Mr Owens opined that "I don't know what impact my complaint has had on this decision" but that "Given the difference in this decision to the previously made assurances I believe there is some impact."[13] The Department denies that the complaint had any impact on the Decision. Proceeding on mere speculation would be prejudicial to the Respondent and Mr Owens' submissions with respect to the complaint are not relevant to the mandatory decision criteria. A Public Service Appeal is not the avenue to be raising such complaints.
  1. [27]
    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 fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [28]
    Clause 8.2 of Directive 09/20 provides that (emphasis added):[14]

…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.

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

  1. [29]
    There are two potential pathways to conversion. The first pathway is Mr Owens' current role. The second pathway is an alternative role which is substantially the same.

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

  1. [30]
    Mr Owens argues the work he performs is not of a temporary nature.[15] I accept the role is clearly ongoing and there is a continuing need for someone to continue carrying out Mr Owens' current role. The question to be decided is whether there is a continuing need for Mr Owens specifically to be employed in his current role.
  1. [31]
    The Decision did not specifically address whether there was a continuing need for Mr Owens to be employed in his current role. The Department's inattention to providing an outline of reasons relating to each of the criteria in the Decision and submissions is unhelpful. The decision-maker reasoned that the temporary nature of Mr Owens' engagement is "the result of a temporary vacancy arising from an existing permanent employee being absent from the role for a known period."[16] It may be inferred that the Department contends that while the role is continuing, there is not a continuing need for Mr Owens to be involved in the role due to the incumbent employee's expected return on 5 November 2021. 
  1. [32]
    Although the Department's system indicated the incumbent employee's return date was 23 October 2021, Mr Owens submitted the incumbent employee had already returned to the office as at the date he filed the Appeal Notice on 20 October 2021.[17] The Department indicated the incumbent employee was (emphasis added) "extended in her other role until 5 November 2021."[18]
  1. [33]
    The Department submits that the purpose of Mr Owens' engagement is to backfill the incumbent employee. That particular circumstance may have constituted reasons for the Department to initially employ Mr Owens on a temporary basis. However, after more than two years of meritoriously undertaking the role, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [34]
    Mr Owens does not believe that any stakeholders have been contacted to suggest he would not remain as their primary contact and he has not been asked to 'hand over' any work or wrap up any projects.[19] It may be the case that Mr Owens' contract will be extended to accommodate a handover upon return of the incumbent employee or that stakeholders will be contacted following the transition. I do not place substantial weight on this belief for those reasons.
  1. [35]
    Mr Owens contends he has relied upon assurances as well as other communications and is of the understanding he will be made a permanent employee.[20] However, Mr Owens also outlined an alternative understanding that he is to be extended in his role "due to the ongoing nature of these projects, and the need for effective delivery of the important indigenous education services in our Region" and further that his contract would be extended while the outcome of a recruitment process is being considered.[21] Mr Owens being made permanent in his current role is different to having his temporary contract extended. I accept Mr Owens' submissions indicate a continuing need for him to be employed in his current role. However, I do not place substantial weight on the alleged 'assurances' particularly when they appear to be contradictory. Regardless, it is ultimately the person conducting the review that makes the decision.
  1. [36]
    Since the commencement of Mr Owens' employment, Mr Owens' has had his temporary contract extended on 6 occasions.[22] The pattern of Mr Owens undertaking the temporary contracts suggests there is a continuing need for Mr Owens to be employed in his current role, and that said role and his involvement in it are likely to be ongoing. It is on that basis, and in the absence of genuine operational requirements to the contrary as set out below, that I will convert Mr Owens to permanency.

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

  1. [37]
    Mr Owens submits there is a continuing need for him to be employed in a role which is substantially the same because:
  • Mr Owens is involved in co-ordinating and implementing the Indigenous Leaders of the Future (ILF) and Indigenous Leaders of Tomorrow (ILT) Programs. Mr Owens contends the demands of the programs require a full-time employee, the program involves 250+ students with potential for increased numbers and there is no indication the Department intends to cancel the programs. Mr Owens outlined several other initiatives that he has been involved in.[23]
  • The Department's 'Commitment Statement to Aboriginal Peoples and Torres Strait Islander People' commits the Department to "value, include and support Aboriginal employees and Torres Strait Islander employees in our workplace" by "ensuring the workplace value the culture, skills and knowledge of staff" and through "providing career pathways & professional development within the department".[24]
  1. [38]
    The decision-maker's consideration of this criterion can be summarised as follows:
  • The decision-maker "considered if there are other AO5 Project Officer positions considered substantially the same as the role you are working to which you could be appointed to in (sic) Far North Queensland Region."
  • Consultation was undertaken with a Senior HR Consultant of the Recruitment Services Unit who advised there are no permanent AO5 Project Officer roles currently advertised within the Far North Queensland Region.
  • Further consultation was undertaken with the Regional Director of the Far North Queensland Region who advised there are no vacant AO5 Project Officer roles within the establishment of the regional office that Mr Owens could be appointed to.[25]
  1. [39]
    Mr Owens argues the Decision reveals consideration only of roles that are substantively vacant, "in the establishment" and with the same job title as Mr Owens' current role.[26]
  1. [40]
    It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Department has stopped short of demonstrating its consideration of the entirety of the mandatory criteria as it appears its consideration was limited to identifying AO5 Project Officer roles that are currently advertised or vacant. The decision-maker concluded by making a sweeping statement that she has "been unable to identify any other permanent roles in Far North Queensland Region that are substantially the same as the role you are performing which you could be appointed to at this time." Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.
  1. [41]
    The fact of this case is that the decision-maker did not define a role which is substantially the same in the Decision. Nor has the Department's subsequent submissions addressed this requirement.  Notwithstanding that, the duty to do so must properly be discharged. 
  1. [42]
    In Katae v State of Queensland & Anor, Crow J considered the definition of "same role" in Directive 08/17 Temporary employment.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[27]

  1. [43]
    It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is relevant.
  1. [44]
    As I have earlier acknowledged, Directive 09/20 does not contain a definition of 'same role'.  In light of that absence, I have relied on the definition provided in Directive 08/17 to which Katae refers.
  1. [45]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by Mr Owens. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [46]
    I have found that there is a continuing need for Mr Owens to be employed in his current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert Mr Owens was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of these relevant factors.

Merit

  1. [47]
    The decision-maker stated she took into consideration whether Mr Owens is "eligible for appointment having regard to the merit principle".[28] However, neither the 'Reasons for the Decision' nor the subsequent submissions addressed whether this criterion had been accepted.
  1. [48]
    Mr Owens submitted he has had no adverse finding in any performance review and his performance in the role demonstrates he satisfied the merit criteria pursuant to s 27 of the PS Act.[29] In the absence of any comment to the contrary, I accept that Mr Owens is eligible for appointment having regard to the merit principle.

Requirements of an industrial instrument

  1. [49]
    In support of Mr Owens' argument that there is a continuing need for him to be employed in his current role, Mr Owens submitted he has not been given notice about the cessation of his contract other than the noting of dates "in the employment review correspondence."[30] In that regard, Mr Owens referred to cl 9.9.1 of the Department of Education Certified Agreement 2019 (the Certified Agreement) which provides:

  9.9.1  Temporary employees will be provided with one months' notice of cessation or extension to their temporary engagement.

  1. [50]
    Upon review of that clause, I have identified a second part which provides:

  9.9.2  Should one months’ notice of cessation or extension not be given, an employee’s temporary engagement is deemed to have ceased in accordance with the original terms of the temporary engagement, unless otherwise agreed between the employer and the employee.

  1. [51]
    Notwithstanding that one months' notice of cessation or extension is the ideal notice period provided for under the Certified Agreement - the second part of cl 9.9 contemplates there may be circumstances in which that notice is not given and therefore provides that "an employee's temporary engagement is deemed to have ceased in accordance with the original terms of the temporary engagement…" This provision can be likened to a deemed decision under s 149B(7) of the PS Act. Notwithstanding that point, the form of the notice mentioned under cl 9.9.1 is not particularised. Therefore the "employment review correspondence" indicating the cessation date is arguably a sufficient indication of cessation. On that basis, I do not find that cl 9.9.1 of the Certified Agreement poses any issue to the Decision made.
  1. [52]
    Neither party presented any alternative requirements of an industrial instrument that must be complied with in relation to the Decision.

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. [53]
    The Decision refers to a previous deemed decision of 18 December 2020 made in accordance with s 149A(5) of the PS Act and cl 8.5 of Directive 09/20. That deemed decision was said to be made in response to an application made by Mr Owens on 20 November 2020.
  1. [54]
    As I concluded in Benson v State of Queensland (Department of Education):

A 'decision to refuse the request for conversion triggers the requirement for a notice pursuant to subsection (6). However, those requirements do not apply to a deemed decision.[31]

  1. [55]
    Being a deemed decision, no reasons would have been provided to Mr Owens. However, the decision-maker stated she took into consideration "the reasons provided for in the previous decision made, or taken to have been made (referred to above)" during Mr Owens' continuous employment. Notwithstanding, those reasons were not articulated in the Decision nor in the subsequent submissions. Failing to articulate the reasons renders it difficult and unreasonable for Mr Owens to consider and respond.

Genuine operational reasons

  1. [56]
    As outlined above, Mr Owens has satisfied the criteria outlined in s 149A(2) of the PS Act. Section 149A(3) of the PS Act provides (emphasis added):

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 of a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

  1. [57]
    'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. 
  1. [58]
    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.'[32]

  1. [59]
    In the Decision, the decision-maker stated (emphasis added):

Section 148(2)(a) of the PS Act provides that an appointment should be on a temporary, rather than permanent basis, to fill a temporary vacancy arising because a person is absent for a known period.[33]

  1. [60]
    The decision-maker's exclusive reliance on that interpretation of s 148(2)(a) of the PS Act is incomplete and unreasonable.
  1. [61]
    Section 148(2) of the PS Act begins with (emphasis added):

…employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes-

  1. [62]
    Section 148(2) of the PS Act does not prescribe that because an employee is filling a temporary vacancy that the employee should therefore be employed on a temporary basis. Rather, s 148(2) contemplates a range of purposes which may indicate that employment of a person on tenure may not be viable or appropriate. A reasonable decision-maker ought to first identify whether the employee's circumstances fall under one of the listed purposes and then consider the appropriateness and viability of that employee being made permanent in light of that purpose.
  1. [63]
    The decision-maker's conclusion with respect to genuine operational requirements was simple - "As an existing employee is substantively engaged in the role, with an expected return date of 23 October 2021, a genuine operational requirement exists to refuse to convert your employment from temporary to permanent as a public service officer at this time."[34] The decision-maker did not outline why permanent conversion of Mr Owens would not be viable or appropriate having regard to the alleged genuine operational requirement. Instead, the decision-maker has concluded that Mr Owens should be employed on a temporary basis because he is filling a temporary vacancy. The misapplication of s 148(2)(a) of the PS Act renders the Decision unfair and unreasonable.
  1. [64]
    I note that Mr Owens contends the operational requirement advanced by the Department does not accord with his experience or communications regarding his ongoing role with the Department. Mr Owens argues the Decision is deficient because he has "not been treated transparently or fairly by the management team given assurances made and the lack of cultural safety."[35] Further, Mr Owens argues that the reasons provided "are based on errors and/or not sufficiently significant to overcome the legislative presumption that public sector employment is to be on tenure."[36]
  1. [65]
    I also note that Mr Owens argues the Decision does not reference the actual operational situation that exists in the team. Mr Owens contends there are consequential processes that are occurring including a "consequential vacancy that I am against to be filled."[37] Mr Owens contends that although Ms Merkouriou was the decision-maker, Mr Bell is the Regional Director and Director General's delegate and representative in Mr Owens' region. Mr Owens has therefore relied on the genuine operational requirements of his team as outlined by his line management.[38] Again, there is no evidence of these "processes" or of the "operational situation" that Mr Owens contends actually exists. Further, the Decision indicated there was a degree of consultation between Ms Merkouriou and Mr Bell.

Conclusion

  1. [66]
    Having satisfied the criteria outlined in s 149A(2)-(3) of the PS Act, the Department was required to convert Mr Owens' employment status to permanent "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department."[39] For the reasons outlined above, I am not satisfied that a genuine operational requirement justifying the Decision is borne out on the reasoning or evidence presented by the Department. As decided in Benson v State of Queensland (Department of Education),[40] in the absence of a justified and genuine operational requirement, I will order that the Decision be set aside and Mr Owens' temporary employment status be converted to permanent.
  1. [67]
    Further to the above, I have concluded that the foundationally flawed efforts to identify another role which may be substantially the same as Mr Owens' current role was unreasonable. The lack of reasoning with respect to the remaining criteria was also noted.
  1. [68]
    I order accordingly.

Orders:

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

1.    The appeal is allowed;

2. The decision that Mr Owens not have his temporary employment converted to permanent employment is set aside and another decision is substituted; and

3. Mr Owens' temporary employment status be converted to permanent employment.

Footnotes

[1] A/Director, Employment Review, HR Shared Services, Department of Education, State of Queensland.

[2] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021.

[3] Form 89 - Appeal notice, 20 October 2021.

[4] Email from Ms J. Turner, HR Consultant, HR Shared Services, Department of Education to Queensland Industrial Relations Commission, 21 October 2021.

[5] Public Service Act 2008 (Qld) s 149B(4)(b).

[6] Industrial Relations Act 2016 (Qld) s 562B(2)-(3).

[7] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[8] Ibid.

[9] Industrial Relations Act 2016 (Qld) s 562B(4)(b).

[10] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61].

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

[12] Appeal Notice - Schedule 1, 20 October 2021, [7].

[13] Ibid [8].

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

[15] Appellant's Submissions, 29 October 2021, 2 [9].

[16] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 2.

[17] Appeal Notice - Schedule 1, 20 October 2021, [4].

[18] Submissions of the Respondent, 25 October 2021, [3]e.

[19] Appellant's Submissions, 29 October 2021, 2 [13]. 

[20] Appeal Notice - Schedule 1, 20 October 2021, [3]; Appellant's Submissions, 29 October 2021, 3 [14].

[21] Appeal Notice - Schedule 1, 20 October 2021, [5].

[22] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 1.

[23] Document titled 'Submission in support of my conversion to permanent employment pursuant to section 149 of the Public Service Act 2008', [4](b).

[24] Ibid [4](c). Mr Owens provided electronic links to several other plans and strategies.

[25] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 2.

[26] Appellant's Submissions, 29 October 2021, 3 [15].

[27] [2018] QSC 225.

[28] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 2.

[29] Document titled 'Submission in support of my conversion to permanent employment pursuant to section 149 of the Public Service Act 2008', [5].

[30] Appellant's Submissions, 29 October 2021, 2 [13]. 

[31] [2021] QIRC 152, 20 [86].

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

[33] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 2.

[34] Letter from Ms E. Merkouriou to Mr A. Owens, 12 October 2021, 2.

[35] Appeal Notice - Schedule 1, 20 October 2021, [8].

[36] Appellant's Submissions, 29 October 2021, 1 [5]. 

[37] Appeal Notice - Schedule 1, 20 October 2021, [5]-[6].

[38] Appellant's Submissions, 29 October 2021, 5 [28]. 

[39] Public Service Act 2008 (Qld) s 149A(3).

[40] [2021] QIRC 152.

Close

Editorial Notes

  • Published Case Name:

    Owens v State of Queensland (Department of Education)

  • Shortened Case Name:

    Owens v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 372

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    04 Nov 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Benson v State of Queensland (Department of Education) [2021] QIRC 152
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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