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  4. Menzies v State of Queensland (Queensland Health) - [2021] QIRC 385

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Menzies v State of Queensland (Queensland Health)[2021] QIRC 385

Menzies v State of Queensland (Queensland Health)[2021] QIRC 385

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Menzies v State of Queensland (Queensland Health) [2021] QIRC 385

PARTIES: 

Menzies, Scot

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/192

PROCEEDING:

Public Service Appeal – appeal against a conversion decision

DELIVERED ON:

10 November 2021

MEMBER:

HEARD AT:

Hartigan, IC

On the papers

ORDER

  1. That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – conversion decision – where  appellant applied to convert from fixed term temporary to permanent employment – where the request was considered in accordance with Directive 09/20 Fixed term temporary employment – where appellant was not converted for genuine operational requirements of the respondent – consideration of "genuine operational requirements" – where decision maker considered irrelevant matters – where consideration of irrelevant matters did not disturb the decision – where decision was fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3) , s 562C(1)

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

Fixed Term Temporary Employment Directive 09/20, cl 8

CASES:

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

Gilmour v Waddell  Ors [2019] QSC 170

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

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

Reasons for Decision

Introduction

  1. [1]
    Mr Scot Menzies ("Mr Menzies") was employed by the State of Queensland (Queensland Health) ("the Department") at the Gold Coast Hospital and Health Service ("GCHHS") as a Protective Services Officer, Operational Services.
  1. [2]
    Mr Menzies commenced employment with the Department on 1 February 2019 as a casual employee filling temporary contracts.  In the two years preceding Mr Menzies' application for conversion of his employment, Mr Menzies worked temporary engagements.  Mr Menzies originally applied for conversion of his employment in accordance with the Casual Employment Directive 08/20, however as Mr Menzies had worked for two years on temporary engagements, the Department considered his application for conversion in accordance with the Fixed Term Temporary Employment Directive 09/20 ("Directive 09/20").[1]
  1. [3]
    Mr Menzies appeals a decision not to convert his temporary employment as a Protective Services Officer to permanent employment at the GCHHS.  The decision was contained in written correspondence from Mr Grant Brown, acting Executive Director – People and Culture and Corporate Services  dated 6 May 2021 ("the decision").  The decision, inter alia, determined to refuse Mr Menzies' request to be converted to permanent employment due to "genuine operational requirements".
  1. [4]
    Mr Menzies relies on the following grounds of appeal:
  1. (a)
    The decision to reject the Appellant's Application was not fair or reasonable in consideration of the provisions of the Temporary Directive as a whole, and the grounds relied upon by the Respondent.
  1. (b)
    The Applicant relies broadly on the decision in Gilmour v Waddell & amp;Ors [2019] QSC 70 ('Gilmour') in support of its submissions…[2]
  1. [5]
    The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ("the PS Act"), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act") by the Queensland Industrial Relations Commission ("the Commission").
  1. [6]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
  1. [7]
    I must decide the appeal by reviewing the decision appealed against.  The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[5]
  1. [8]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision 

  1. [9]
    The reasons for the decision were set out in the decision letter in the following terms:

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs and the genuine operational requirements of Integrated Security Services at this time. The roles within Security Services at Gold Coast Hospital and Health Service (GCHHS) fundamentally require adhoc shifts, and the work available to Security Staff continuously fluctuates. This is particularly due to 'specialling' that occurs when GCHHS has particular patients that can require additional Security Staff for unknown periods of time.

In October 2019, a Memorandum of Understanding (MOU) was reached with AWU and became operational on 24 October 2019. This agreement requires additional ordinary hours to be allocated to permanent part time employees in the first instance. It also details any further gaps in the roster which become available as a result of adhoc arrangements, emergent leave or additional service requests may be filled by casual employees. The MOU, and the parties to the MOU, acknowledge requests made to Security Services are done so to ensure the immediate safety of staff, patients and visitors to its facilities and are inherently unscheduled, emergent and on demand. I have attached a copy of the MOU for your information.

In considering your application, a review was undertaken of the temporary contracts you engaged in. Since your commencement at Gold Coast Health, you have been provided eighteen (18) fixed term engagements in addition to your casual shifts. For the period of 2020 through to current, on three (3) occasions you were backfilling vacant roles due to people in those positions backfilling fulltime lines and the remainder of the contracts were backfilling periods of leave. This occurred after the implementation of the MOU and subsequent roster review. Currently, there are no vacant roles in Integrated Security Services.

The backfilling noted in your employment history above was a series of 39 and 32 hour contracts in which allocated to cover the rostered shifts of permanent employees who were engaged to backfill fulltime roster lines or accessing their leave entitlements. While it is acknowledged there may be a need to provide backfill for permanent employees who access emergent leave or may be off work on work-related injuries, this requirement is unpredictable and fluctuating in nature.

As there are no vacant roles currently, Integrated Security Services has undertaken a review of ongoing long-term illness, other leave arrangements and 'specialling' to determine whether there is a genuine operational need to create further permanent roles in the unit. However, after a careful review, it has been concluded that no further permanent roles are required at this time as employees off work on work-related injuries are expected to return, emergent leave arrangements are unpredictable and temporary in nature and security specials are inherently emergent, unpredictable and temporary. If there is a need that arises in the future to expand the current permanent FTE within Integrated Security Services, any vacancies created will be filled in accordance with the applicable instrument.

To provide context to the extent security 'specials' can impact on the hours offered to Security Staff, in mid-December 2020, a patient presented to GCHHS requiring a significant and detailed security presence. This particular patient has required a minimum of three Security Officers present outside their room 24 hours a day, seven days a week, since their admission. While GCHHS has received multiple varying estimates of when this patient will be discharged, the patient remains with GCHHS on a temporary basis. While this patient continues to require ongoing Security Officers, it is clear to GCHHS that this occurrence of 'specialling', as with other instances of specialling, is temporary in nature, and therefore there is no genuine operational requirement to permanently appoint roles in this circumstance as it will come to an end. Therefore, while there may be temporary vacancies due to specialling, emergent leave, or other uncontrollable factors, this does not equate to an ongoing role. As particular instances of 'specialling' are completed, there will inevitably be a reduction in the number of hours that need to be covered. Therefore, after considering the information detailed above, there is no continuing need to create a new role based on the genuine operational requirements within Integrated Security Services.

Merit

Thank you for your performance in the role since 1 February 2019. I am satisfied that you meet the merit requirements for the role having regard to the merit principle. Your consistent engagement in temporary contracts is a testament to you fulfilling the requirements.

Conversion is not viable or appropriate – genuine operational requirements

Collectively, the emergent and unpredictable nature of your work and the commitment made inn consultation with staff and the AWU to fill any permanent vacancy in accordance with the MOU, make your appointment to permanent status not viable at this time. While opportunities may arise for employees to fill temporary contracts, the nature of this need is driven by adhoc business needs, including emergent leave and adhoc business requests. As such, while there may be future opportunities for you to fill temporary contracts, and you have demonstrated merit, conversion is not appropriate or viable at this time due to genuine operational requirements of Integrated Security Services.

As detailed above, the Integrated Security Services department within Gold Coast Health often requires employees to perform work necessary to meet an unexpected short-term increase in workload. This can be evidence by the 'specialising' Protective Services Officers engage in requiring a temporary increase in security presence.

To confirm, the Integrated Security Services department of Gold Coast Health does not currently have vacant permanent hours and is committed to the MOU which requires adhoc roster gaps to be allocated to permanent part time employees in the first instance. On this basis. There are no current vacancies to which you can be permanently appointed. Further to this, and after careful review, there is no genuine operational need to create extra permanent vacancies within Integrated Security Services at this time. Should an operational need arise to create further vacancies within the unit in the future, these will be filled in accordance with the applicable industrial instrument.

Relevant legislation and Directive

  1. [10]
    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.             
  2. (2)
    However, this section does not apply to a non-industrial instrument employee.
  3. (3)
    The Department's chief executive must decide whether to -
    1. Continue the person's employment according to the terms of the person's existing employment; or
    2. Offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  4. (4)
    The Department's chief executive must make the decision within the required person after -
    1. 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
    2. Each 1-year period after the end of the period mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
  5. (5)
    In making the decision  -
    1. Section 149A(2) and (3) applies to the Department's chief executive; and
    2. The Department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  6. (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. The reasons for the decision; and
    2. The total period for which the person has been continuously employed in the Department; and
    3. For a fixed term temporary employee — how many times the person's employment as a fixed term temporary employee or causal employee has been extended; and
    4. 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. (7)
    If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

(7A)  For working out how long the person has been continuously employed in the Department  -

  1. (a)
    All periods of authorised leave are to be included; and
  2. (b)
    The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non-employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.
  1. [11]
    Section 149B(5) of the PS Act states that s 149A(2) and (3) applies to the department's chief executive when making a decision.  Relevantly, s 149A(2) and (3) states:

149A Decision on review of status

…

  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
  2. (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. [12]
    The phrase "genuine operational requirements of the department" as referred to in s 149A(3) of the PS Act, is not defined in the PS Act.  The phrase, in the context of s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[6] as follows:

…that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

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

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.[7]

[Citations omitted]

  1. [13]
    Directive 09/20 came into effect on 25 September 2020.  Directive 09/20 applies to public service employees who are employed on a full-time or part-time fixed term temporary basis under ss 147(2)(a) or 148 of the PS Act.
  1. [14]
    Directive 09/20, amongst other things, highlights sections of the PS Act which deal with the employment and conversion of fixed term employees and sets out procedures for reviews and requirements for decisions.
  1. [15]
    Clause 8 of Directive 09/20 relevantly requires a decision on a review of status to address certain matters as follows:
  1.  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.

…

8.4  Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954,12 the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.

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

Was the decision fair and reasonable?

  1. [16]
    The decision addresses the three matters that must be considered, including whether there is an ongoing need for Mr Menzies to be employed in the role, or in a role that is substantially the same, Mr Menzies' merit, and the genuine operational requirements of the GCHHS.  Mr Menzies' merit is not an issue in this matter.
  1. [17]
    As noted above, Mr Menzies contends that the decision to reject his request for conversion of his employment was not fair and reasonable having regard to the provisions of Directive 09/20.  Mr Menzies also relies on the decision of Gilmour v Waddell & Ors[8] in support of his submission that the decision was not reasonable.

Continuing need and merit

  1. [18]
    As noted above, the PS Act, together with cl 8.1 of Directive 09/20, requires the decision maker, when advising whether to convert an employee to permanent employment under s 149B of the PS Act, to consider, inter alia, whether there is a continuing need for the employee to be employed in a role, or a role that is substantially the same.
  1. [19]
    It appears on the material before me, including the submissions of the GCHHS, that there is a continuing need for an employee to be employed in a role, or a role that is substantially the same as the one performed by Mr Menzies.  It is also not in dispute that Mr Menzies' merit for the role is accepted by the GCHHS.

Genuine operational requirements

  1. [20]
    The primary dispute between the parties relates to the GCHHS's contention that
    Mr Menzies' request should be denied based on genuine operational requirements.  Relevantly, the GCHHS argues that, despite any perception of predictability, regularity or systematic need, Mr Menzies' engagements have been in response to adhoc increases in emergent clinical and operational demand.
  1. [21]
    By way of example, the GCHHS refers to, what it says is the unpredictable nature of the demand for the role to be performed.  The role of a Security Officer in the Integrated Security Services at the GCHHS is dependent on the needs of the GCHHS and the use of "specialling arrangements".  Some patients require specialling arrangements which may vary in both length and the number of Security Officers required to be placed with a patient.  Such a specialling arrangement is reviewed and has the potential to be reviewed.  Ultimately, the specialling arrangements fall outside the control of the Integrated Security Services.
  1. [22]
    Due to the unpredictable nature of the specialling arrangements and that the decisions relating to the nature and extent of a specialling arrangement falls outside the control of the Integrated Security Services, I conclude that, in the circumstances of this matter, genuine operational requirements are established, and the decision is fair and reasonable.
  1. [23]
    Whilst I accept that the decision maker did refer to matters that are irrelevant to the decision, namely that there are no vacant permanent hours and no current vacancies to which Mr Menzies could be appointed, I do not consider that the consideration of these matters was of such a nature so as to render the decision as not fair and reasonable.
  1. [24]
    I am satisfied that the consideration of the irrelevant matters did not disturb the ultimate conclusion that the request was denied for genuine operational requirements. 
  1. [25]
    Mr Menzies' submissions focus on the reasonableness of the decision.  As noted by Ryan J in Gilmour v Waddell & Ors[9] "[t]he focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances."
  1. [26]
    I do not consider that the decision lacked intelligent justification in all of the relevant circumstances having regard to the nature of the work and the specialling arrangements undertaken.

Conclusion

  1. [27]
    For the foregoing reasons, I have concluded that the decision was fair and reasonable.

Order

  1. That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.

Footnotes

[1] Respondent's submissions filed 11 June 2021.

[2] Appellant's Appeal Notice filed on 27 May 2021, Attachment 1.

[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

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

[6] [2020] QIRC 203.

[7] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [37] - [38].

[8] [2019] QSC 170.

[9] [2019] QSC 170, [207].

Close

Editorial Notes

  • Published Case Name:

    Menzies v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Menzies v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 385

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan, IC

  • Date:

    10 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Summer Swim Pty Ltd v Sam Riley Promotions Pty Ltd [2019] QSC 70
1 citation
Jump To
Cite 1 - [2019] QSC 70

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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