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  4. Freeman v State of Queensland (Department of Education) - [2021] QIRC 381

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Freeman v State of Queensland (Department of Education)[2021] QIRC 381

Freeman v State of Queensland (Department of Education)[2021] QIRC 381

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Freeman v State of Queensland (Department of Education) [2021] QIRC 381

PARTIES: 

Freeman, Katelyn

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2021/212

PROCEEDING:

Public Service Appeal – Conversion of Fixed Term Temporary Employment

DELIVERED ON:

9 November 2021

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal under s 194 the Public Service Act 2008 (Qld) – where the appellant's employment was reviewed – whether there was a continuing need to employ her in the same role, or a role that is substantially the same – whether there are genuine operational requirements which preclude conversion – decision confirmed

LEGISLATION AND

INSTRUMENTS:

Directive 09/20 Fixed Term Temporary Employment cl 8

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 197, 148, 149A, 149B

CASES:

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

King-Koi v State of Queensland (Department of Education) [2020] QIRC 209

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

Reasons for Decision

  1. [1]
    Ms Katelyn Freeman is currently employed by the State of Queensland as a HP3 Speech Language Pathologist ('SLP') through the Department of Education ('the Department'). Ms Freeman commenced with the Department on a fixed term temporary basis on 23 April 2019. Presently, she is employed at 0.6 FTE at Sunnybank Special School and 0.4 FTE at Calamvale Special School.
  2. [2]
    Pursuant to s 149B of the Public Service Act 2008 (Qld) ('the PS Act'), Ms Freeman's employment was reviewed following her two-year service anniversary on 23 April 2021. As she did not receive a written decision within the prescribed 28-day period, a decision is deemed to have been made that her employment continue according to its current terms ('the decision').
  3. [3]
    Ms Freeman's present contract is due to expire on 17 December 2021.
  4. [4]
    By appeal notice filed 10 June 2021, Ms Freeman appeals the decision under ch 7, pt 1 of the PS Act. Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld).[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  5. [5]
    After considering the submissions made by the parties, I have determined the decision was fair and reasonable.

Grounds of Appeal

  1. [6]
    Ms Freeman appeals on the following grounds:
  1. (a)
    the person she is contracted to backfill is not returning to the position;
  2. (b)
    the number of state schools, and the number of children enrolling in those schools, is increasing such that there is a continuing need for Ms Freeman to continue to be employed as a SLP; and
  3. (c)
    it is not appropriate to employ staff as temporary employees where staffing needs have increased and where the position is a continuing position.

The Department's Submissions

  1. [7]
    The Department contends there will not be a continuing need to employ Ms Freeman in her current role beyond 17 December 2021. It states her engagement is comprised of 0.6 FTE which is regionally funded, and 0.4 FTE funded through school purchased time.[4]
  2. [8]
    The purpose of the 0.6 FTE component, the Department submits, is to backfill a temporary vacancy caused by the substantive position holder being absent for a known period while she undertakes maternity leave and subsequent part-time work arrangements.[5] The Department states that employee has negotiated a part-time position until 17 December 2021, after which she will return to her substantive position.[6] Consequently, it submits the 0.6 FTE Ms Freeman is currently undertaking will not be required after 17 December 2021.
  3. [9]
    The Department disputes Ms Freeman's submissions regarding any 'breakdown in relationship' between the substantive position holder and the relevant school as mere opinion.[7] Irrespective of any relationship difficulties, the Department notes the substantive position holder is entitled to return to their full-time role, and permanent SLPs hold roles in a set region, as opposed to their positions being tied to specific schools.[8]
  4. [10]
    With respect to the 0.4 FTE component, the Department submits Ms Freeman's position is funded by discretionary 'Investing for Success' ('I4S') funding, approved by the relevant school for 2021 only.[9] It contends this funding is not guaranteed in 2022 and notes the same school made no allocation for a SLP in either 2019 or 2020.[10]
  5. [11]
    The Department resists Ms Freeman's submissions regarding increases in student enrolment, contending resourcing of SLPs is based on individual student need and does not increase proportionately to student numbers.[11] It therefore contends that Ms Freeman's engagement is consistent with s 148(2)(b) of the PS Act in that it is a temporary engagement for a specific purpose or project.[12]
  6. [12]
    Although it accepts a deemed decision was made, the Department states that for the purpose of its submissions, Ms Shelley Bampton, Director – Strategy and Performance, who oversees the work of SLPs in the Metropolitan region, confirmed there were no other roles substantially the same which were either vacant or advertised at the time of the review.[13] In this respect the Department contends it was restricted to considering only other SLP positions, due to the qualifications and accreditation specific to the nature of the role.[14]
  7. [13]
    Finally, it submits, having regard to its genuine operational requirements, it is not appropriate or viable to convert Ms Freeman's employment and add to the Department's permanent establishment numbers.[15]

Ms Freeman's Submissions

  1. [14]
    Although Ms Freeman concedes the purpose of her current engagement is to backfill a temporary vacancy, she submits there is still an ongoing need for her to continue in a SLP role.[16] In this respect she relies on the fact that the Department presently has 14.6 permanent FTE SLP staff on periods of long-term leave.[17] She also notes at the beginning of 2021 the Department advertised multiple temporary SLP positions which were not filled.[18] In support of this position, Ms Freeman has provided the Commission with several emails, authored by a representative of the Department in January 2021, advising of vacancies for the new school year, in short term positions located in Ipswich and the southern end of the region.
  2. [15]
    Ms Freeman submits there is a disconnect between her actual caseload and the position she is technically filling.[19] By way of example, she notes her previous engagement in April 2019 was also for the purpose of backfilling a permanent employee on parental leave.[20] However, when that person returned to their substantive role, Ms Freeman submits there was no disruption to her own contract or the schools she serviced at the time.[21] Ms Freeman contends there is likewise no indication that when the person she is presently backfilling returns, they will assume Ms Freeman's caseload as opposed to the caseload they worked before commencing parental leave.[22]
  3. [16]
    Though she accepts resourcing SLPs is multifaceted, Ms Freeman contends many contracted SLPs, herself included, have maintained long-term caseloads with a continued supply of work.[23] She therefore contends the Department's reliance on short-term temporary contracts is inconsistent with Directive 09/20 Fixed term temporary employment ('the Directive') and the Department of Education Certified Agreement 2019.[24]
  4. [17]
    Ms Freeman contends statistical evidence suggests demand for SLPs will continue to increase such that there is a continuing need for her to be employed.[25] In making this submission she relies on a report commissioned by the Department in 2017 which found that between 2011 and 2016, the number of students with an education adjustment program recognised disability in Queensland State schools increased by 6% per annum, compared with the growth in enrolments of 1.6%.[26] Despite this increase, Ms Freeman argues there has not been a corresponding increase in permanent FTE available for SLPs.[27]
  5. [18]
    Ms Freeman consequently contends there is an authentic need to employ her,[28] and rejects that it is not viable or appropriate to do so on the basis that the current permanent establishment is insufficient to meet that need.[29] Finally, with respect to I4S funding, Ms Freeman notes SLP resources are considered at a regional level and, irrespective of her current school's allocation of funding, there is a considerable amount of school purchased time available at a regional level, meaning there is a continuing need to employ her.[30]

Relevant Principles

  1. [19]
    The PS Act relevantly provides:

149A Decision on review of status

...

  1. (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. (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.

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision—
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee—how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.

 (7) If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.             

 ...

  1. (8)
    The commission chief executive must make a directive about making a decision under this section.

(8A) The directive must provide for—

  1. (a)
    the matters a department's chief executive must consider in deciding the hours of work to be offered in converting a person's employment under subsection (3)(b); and
  1. (b)
    the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person's employment.

 ...

  1. (9)
    In this section—

 ...

required period, for making a decision under subsection (3), means—

...

  1. (b)
    ... 28 days after the end of the period mentioned in subsection (4)(a) or (b).
  1. [20]
    The Directive 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.

...

8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.

...

Was the decision fair and reasonable?

  1. [21]
    It is not in dispute that Ms Freeman was eligible to be converted having regard to her length of service, and the merit criteria.[31] Therefore, the Department was required to offer to convert Ms Freeman's temporary status to permanent, if it concluded there was a continuing need for someone to be employed in her role, or a role that is substantially the same.[32]
  2. [22]
    The only exception or circumstance where the Department can decide not to make an offer of conversion, is where it is not viable or appropriate to do so having regard to the genuine operational requirements of the Department.[33]

Continuing need to be employed

  1. [23]
    Under s 149A(2)(a)(i) of the PS Act, the Department was required to consider whether there is a continuing need to employ Ms Freeman in the same role, or a role that is substantially the same.
  2. [24]
    Although the Department concedes there is a continuing need to employ Ms Freeman, it argues it is or was not viable or appropriate to convert her employment status from temporary to permanent, in circumstances where 0.6 FTE of her role is presently being undertaken for the purpose of backfilling an existing incumbent who is on a period of maternity leave, with a nominated return date of 18 December 2021.
  3. [25]
    The Department submits the Metropolitan region is presently managing, through the use of temporary engagements, the absence of 14.6 permanent SLP FTE due to parental leave or employees who have opted for temporary part-time roles on their return. Moreover, that it takes a flexible approach to the use of SLP resources, noting that this provides management with the ability to consider the geographic service demand, residence of the temporary/permanent workers, agreed flexible work arrangements for existing employees and employee leave.
  4. [26]
    Certainly, s 148 of the PS Act sets out the circumstances where the employment of a person on tenure may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period. Relevantly, the examples provided in the PS Act include where a person is absent for a known period which extends to parental leave.[34]
  5. [27]
    For the remaining 0.4 FTE of Ms Freeman's temporary role, the Department submits it is the subject of a specific I4S funding arrangement, which has approved $40,000 expenditure on SLP support services in 2021 only.
  6. [28]
    Ms Freeman counters this position, along with the suggestion by the Department there is not a continuing need for her to be employed in the HP3 role, by referencing a study undertaken in 2017, indicating the number of students with disabilities in the state school sector has increased by 6% per annum between 2011 and 2016, and noting that the purchase of SLP time at a regional level, using I4S funding, increased by 20% from 2018 to 2019.
  7. [29]
    The Department submits Ms Freeman's contentions in relation to a 6% growth in student enrolments, bear little relevance to the specific circumstances at the present time, or to the specific student needs within the immediate geographic area where Ms Freeman is currently based. Further, the continuation of discretionary I4S funding is based on multiple factors and directed each year based upon contemporary needs at the school level.
  8. [30]
    Read together, ss 149A(2) and (3) of the PS Act confirm the only circumstances where a Department can decide not to make a conversion offer is where it determines that it is not viable or appropriate having regard to the genuine operational requirements of the department.
  9. [31]
    The phrase 'genuine operational requirements of the department' is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women)[35] Merrell DP observed, albeit in the context of s 149C of the PS Act:

[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.
  1. [32]
    His Honour then found that the phrase would at least include a consideration of whether there was 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department' to convert the employee's employment.[36]
  2. [33]
    Although it is clear Ms Freeman's role is ongoing until mid-December 2021, I accept, on the materials before me that she has been engaged to fill a temporary role, where the substantive holder of the position is absent on maternity leave. Conversion of her existing status from temporary to permanent, would not be viable or appropriate in circumstances where the substantive holder of the role has a right to return to the role.
  3. [34]
    Similarly, I consider the lack of certainty around the continuation, nature and extent of discretionary I4S funding for 2022, in so far as it relates to the remaining components of Ms Freeman's position, a further bar to conversion to the role she is currently undertaking.
  4. [35]
    As observed by Merrell DP in King-Koi v State of Queensland (Department of Education):[37]

These matters concern the effective, efficient, and appropriate management of the public resources of the Department and the planning of human resources. They are authentic or genuine considerations.

  1. [36]
    In this matter, I consider it was fair and reasonable for the Department not to convert Ms Freeman's employment status to permanent, in circumstances where the issues canvassed above amount to genuine operational requirements of the Department.

A role which is substantially the same

  1. [37]
    However, there is a second route to conversion. That is, if there was not a continuing need to employ Ms Freeman in the current role, the Department is required to consider whether there was a continuing need to employ Ms Freeman in a role that is substantially the same.
  2. [38]
    I accept this consideration would be limited to other SLP roles given the specific training and accreditation required.
  3. [39]
    In this regard, the Department contends there were no roles within the permanent establishment which were vacant or advertised at the time of the review. Further, that there is no need to add to the current establishment of permanent SLPs.
  4. [40]
    Again, I consider these are circumstances which concern the efficient and appropriate management of the resources of the Department, which extend to the planning of human resources.
  5. [41]
    Here, the Department has decided it is presently not able to add to the existing group of permanent SLP roles. They are genuine considerations, and, on balance, I consider the position the Department has taken to be fair and reasonable.

Conclusion

  1. [42]
    For the reasons given above, I consider the decision was fair and reasonable.
  2. [43]
    I order accordingly.

Order

The decision appealed against is confirmed.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[4] Department's submissions filed 28 June 2021, [16], [19].

[5] Ibid [22] citing Public Service Act 2008 (Qld) s 148(2)(a).

[6] Ibid [23].

[7] Ibid [41].

[8] Ibid [42]-[43].

[9] Ibid [26]-[27], [40].

[10] Ibid [30], Attachment D, Attachment E.

[11] Ibid [44]; Department's reply submissions filed 26 July 2021, [6].

[12] Department's submissions filed 28 June 2021, [32].

[13] Ibid [37].

[14] Ibid [35].

[15] Ibid [21], [25].

[16] Ms Freeman's submissions filed 12 July 2021, [6].

[17] Ibid.

[18] Ibid [14].

[19] Ibid [24].

[20] Ibid [7].

[21] Ibid.

[22] Ibid [8].

[23] Ibid [10]-[12].

[24] Ibid [12]-[13].

[25] Ibid [15].

[26] Ibid [18] citing Deloitte Access Economics, Review of education for students with disability in Queensland state schools (February 2017) 8.

[27] Ibid [19].

[28] Ibid [26] citing Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203.

[29] Ibid [28].

[30] Ibid [29]-[31].

[31] See Public Service Act 2008 (Qld) s 28.

[32] Ibid s 149A(2); Directive 09/20 Fixed term temporary employment cl 8.1.

[33] Public Service Act 2008 (Qld) s 149A(3); Directive 09/20 Fixed term temporary employment cl 8.2.

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

[35] [2020] QIRC 203.

[36] Ibid [40].

[37] [2020] QIRC 209, [38].

Close

Editorial Notes

  • Published Case Name:

    Freeman v State of Queensland (Department of Education)

  • Shortened Case Name:

    Freeman v State of Queensland (Department of Education)

  • MNC:

    [2021] QIRC 381

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    09 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
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
King-Koi v State of Queensland (Department of Education) [2020] QIRC 209
2 citations
Jump To
Cite 1 - [2020] QIRC 209
Cite 2 - [2020] QIRC 209
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
6 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Cite 5 - [2020] QIRC 203
Cite 6 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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