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O'Neill v State of Queensland (Queensland Health)[2021] QIRC 388

O'Neill v State of Queensland (Queensland Health)[2021] QIRC 388

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

O'Neill v State of Queensland (Queensland Health) [2021] QIRC 388

PARTIES:

O'Neill, Steven

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/299

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

10 November 2021

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where the appellant requested a review for conversion to permanent employment – whether there is a continuing need for the appellant to be employed in the role or a role substantially the same – whether there are genuine operational requirements preventing conversion – where employment on tenure is not viable or appropriate

LEGISLATION:

Public Service Act 2008, s 149B

Industrial Relations Act 2016, s 562C

Directive 09/20: Fixed term temporary employment

CASES:

Public Service Act 2008, s 149B

Industrial Relations Act 2016, s 562C

Directive 09/20: Fixed term temporary employment

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

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

Kelly v State of Queensland (Queensland Health) [2021] QIRC 055

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

Reasons for Decision

Appeal Details

  1. [1]
    Mr O'Neill (the Appellant) is currently employed by the State of Queensland (Queensland Health), (the Respondent) as an Operational Services Officer, at the Maryborough Hospital, with the Wide Bay Hospital and Health Service (WBHHS).  Mr O'Neill commenced employment on 15 July 2019 and his employment history indicates that has been consistently employed in backfilling positions for various reasons over a period of two and a half years.
  1. [2]
    On 15 July 2021, the Australian Workers' Union made a request on behalf of Mr O'Neill that he be converted to a permanent employee. I note that at the time of the review Mr O'Neill was engaged on a fixed term temporary contract, however when otherwise not engaged on this basis remains part of the casual relief pool. Given Mr O'Neill's current status as a fixed term temporary employee, the review was conducted pursuant to Directive 09/20: Fixed term temporary employees (the Directive) and the Public Service Act 2008 (the PS Act).
  1. [3]
    In a decision letter dated 11 August 2021, the Acting Chief Executive of WBHHS (the decision maker) wrote to Mr O'Neill stating that he was to continue as a casual employee at this time.
  1. [4]
    Mr O'Neill was told that he meets the merit requirement for the role.
  1. [5]
    With regard to the continuing need for Mr O'Neill to be employed, the decision maker said:

In accordance with section 4.4 of the Directive, sections 148(2) and 148(3) of the [PS] Act list purposes where employment of a person on tenure may not be viable or appropriate.  Examples of these types of circumstances include:

  1. to fill a temporary vacancy arising because a person is absent for an unknown period;
  2. to perform work for a particular project or purpose that has a known end date;
  3. to fill a position which funding is unlikely or unknown;
  4. to fill a short-term vacancy before a person is appointed on tenure;
  5. to perform work necessary to meet an unexpected short-term increase in workload.

You are substantively employed as a casual Operational Services Officer (Wardsperson) (OO2), within the Casual Pool, Maryborough Hospital, in position number 30468501.  The nature of your engagements includes ad hoc casual call in shifts, and when required, you are engaged on fixed term temporary contracts, to backfill the leave of substantive employees.

I have considered your employment history, including the hours worked by you in a casual capacity, the circumstances for which those hours were performed, and the context of any temporary engagements.  The review of your history confirms that you have worked varying hours as a casual to cover emergent leave, and when you have been engaged on temporary fixed term contracts these have been for the purposes of backfilling the leave or secondments of substantive employees.  The hours you have worked as a casual and temporary have varied from week to week depending on the service's requirements at the time.

Therefore, in reviewing the circumstances relevant to your employment, I have established that you have been engaged in accordance with the circumstances as outlined in the [PS] Act.

Further, I have reviewed your employment having regard to the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Certified Agreement), section 5.2, Process to Address Absences within Operational Services. Section 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,
  4. (d)
    The use of Overtime,
  5. (e)
    Utilisation of temporary engagement (e.g. extended period of absence)."

I have also considered section 148(3) of the PS Act which states that employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in section 148(2), on a frequent or regular basis.

In accordance with clause 8.1 of the Directive, in reviewing the circumstances relevant to your employment, I have established that it is difficult to predict whether there will be a continuing need to engage you in accordance with the circumstances as outlined in section 148(2) of the PS Act. These circumstances rely upon permanent staff being unable to work their permanent rostered shifts for reasons such as emergent sick leave, carers leave, etc. which is not planned in advance where the requirement for a particular level of backfill can be known at any particular time.

Where permanent or temporary staff do determine to access planned leave entitlements, such as recreation leave or long service leave, this is often known in advance and replacements are engaged on a fixed term temporary contract, but in those circumstances there is a permanent incumbent who will return to their position at the end of such leave, and the temporary employee is no longer required.

I have considered that you are currently engaged in a fixed term temporary contract to backfill the secondment of the permanent incumbent of the role in which you are currently sitting, and upon that person's return to their position, you will no longer be required.

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

I have also considered whether there is a continuing need to employ you not only in your current role but another role that is substantially the same. There are no other roles within the WBHHS that are substantially the same as the role in which you are currently engaged. The position of Operational Services Officer (Wardsperson) is a unique role and there are no other positions with similar capability requirements, as all of the wardsperson roles are backfilled from the same pool in which you are currently engaged.

  1. [6]
    The decision letter also refers to the requirements of an industrial instrument:

In accordance with section 8.1 of the Directive, I am also required to consider whether any requirements of an industrial instrument are complied with in relation to the decision.  I refer to clause 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) (EB10) which sets out the closed merit selection process for filling vacancies.

Clause 11.5 provides for the following steps to occur (in part and in summary):

11.5.2 Vacant full-time role to be offered to 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 11.5.2 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 or more years 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.

I note that you will 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.

However, I am advised that there are currently no closed merit selection processes underway at this time and therefore there are no available hours to be offered in accordance with clause 11.5.6 at this time.

  1. [7]
    With regard to genuine operational requirements, the decision maker said:

Given that you meet merit and I have determined that it is likely that there will be a need to continue to engage you in either a casual or temporary capacity, and I have determined to consider your review separately and distinctly from the provisions outlined in clause 11.5 of EB10, Section 8.2 of the Directive provides that where these criteria 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.

I have considered that the nature of your engagements aligns with the workforce strategy for your service area, which include a budgeted permanent full time equivalent (FTE) establishment that aligns with the workforce needs for the service area (Operational Services), and a small casual backfill pool which is sufficient to cover planned and unplanned leave arrangements through casual engagements or temporary backfill contracts, depending on which it most appropriate at the time. This ensures flexibility and an appropriate workforce mix.

  1. [8]
    Finally, the decision maker says:

I have also considered the following:

  • If there are permanent full time vacancies, clause 11.5 of EB10 should prevail.
  • The casual position you sit against is unfunded. Therefore, there is no budget for a permanent position.
  • You are engaged as a casual to backfill short term emergent leave.
  • You are engaged when required in fixed term temporary contacts to backfill substantive permanent FTEs on leave or secondment.
  • Depending on the timing of recreation or other leave requests, the requirement to backfill substantive FTEs is variable.
  • Therefore, if there are no substantive FTEs on leave, an additional substantive permanent FTE would result in the actual establishment being higher than the budgeted establishment.
  • This would result in actual costs being higher than budgeted costs, resulting in a labour expenditure budget overspend.

As Chief Executive, I am required to manage and resource the full time equivalent (FTE) establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within section 98 of the Public Service Act 2008, and within the current Service Delivery Agreement for Wide Bay Hospital and Health Service.

  1. [9]
    The basis for Mr O'Neill's appeal is set out in attachment one to his appeal notice:
  • The Appellant is filing a public service appeal on based on (sic) the Directive on the basis that there is a continuing need to convert the Appellant to a permanent position.
  • Further, that there is and has been a continuing need for the person to be converted into the role or in a role which is substantially the same and will be ongoing.
  • Additionally, the Appellant submits that it is viable and appropriate to convert the Appellant's employment to permanency, on the basis that the Appellant has been consistently required or needed at this place of work, and there would be no shortage of the same.
  1. [10]
    The decision letter was dated 11 August 2021.  Mr O'Neill's appeal notice was filed on 23 August 2021.  I am satisfied that Mr O'Neill has made his appeal within the 21 day time period required.
  1. [11]
    The issue for me to determine in this appeal is whether the decision that Mr O'Neill's employment not be converted from temporary to a general employee on tenure and that he would remain a casual employee was fair and reasonable.

Relevant sections of the Act and Directive

  1. [12]
    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. (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. (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. (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.

The Directive

  1. [13]
    While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

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.

4.2  Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B.

4.3  Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee.

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

4.5  Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. …

  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.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

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

  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).

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.

8.7  Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.

What decisions can the Commission make?

  1. [14]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Respondent Submissions

  1. [15]
    The case for the respondent is, in summary:
  • Over the last two years, Mr O'Neill has been engaged in various temporary contracts as well as engaged on a casual basis with the Respondent;[1]
  • in that two year period, Mr O'Neill has only been engaged to cover in roles where the incumbent position holder has been temporarily absent due to leave requirements or secondments or to cover a temporarily vacant position while undergoing recruitment;
  • there is a legitimate and genuine need for the use of casual and temporary employees within the operational service unit of the Maryborough Hospital;
  • there is a workforce strategy utilised to ensure resourcing across a 24/7 roster allowing for the types of leave mentioned above.;
  • the workforce strategy include a fixed permanent budgeted establishment of Full Time Equivalent employees aligning with the operational requirements of the service, and a small pool of casual staff to backfill emergent leave and be engaged in fixed term temporary contracts as required.;
  • converting Mr O'Neill to permanent will impact this workforce strategy;
  • the casual position is unfunded and there is no budget for a permanent position.;
  • depending on the timing of recreation or other leave request, the requirements to backfill substantive FTEs is variable.;
  • if there is no substantive FTE on leave, an additional substantive permanent FTE would result in the actual establishment being higher than the budgeted establishment;
  • if actual costs are higher than budgeted costs, there will be a labour expenditure budget overspend; and
  • the Respondent has converted numerous employees who have made an application for conversion and have met the criteria under the relevant Directives.  However, this is a case where the Respondent relies on genuine operational requirements and has denied Mr O'Neill's application for conversion.

Response to Mr O'Neill's reasons for appeal

  1. [16]
    The Respondent agrees that there is a need to employ Mr O'Neill in a continuing way, however submits that the operational and workforce planning reasoning supports employment continuing on a casual and/or fixed term temporary basis when required as the nature of the work includes adhoc casual call in shifts and temporary contracts to backfill the leave of permanent staff.
  1. [17]
    Mr O'Neill's hours vary from week to week depending on the service requirements.
  1. [18]
    Workforce planning is undertaken for each area of the service and funding is allocated to that plan.  The service is rostered to the workforce plan and there is a requirement for a certain number of casual and temporary employees to ensure workforce capability and continuity.
  1. [19]
    Converting the Mr O'Neill's employment to permanent would have the effect of removing the Respondent's workforce and rostering flexibility and create inefficiencies, which would be contrary to s 98 of the PS Act which requires the Chief Executive to manage their department in a way that promotes the 'effective, efficient and appropriate management of public resources.'
  1. [20]
    In Cameron v State of Queensland (Queensland Health) [2021] QIRC 226 (Cameron), a conversion appeal was dismissed where the circumstances were in effect the same as the circumstances regarding Mr O'Neill:

The circumstances cited by the Department in the decision, especially with respect to the need to maintain the availability of a flexible workforce on a 24 hours per day/7 days per week basis is a compelling and genuine operational requirement.

On the whole, I am satisfied that the need to have flexibility around the availability of employees places a degree of pressure on the Department to balance its workforce between casual and permanent in a manner that fits within a relatively restricted budget.  In the circumstances I am satisfied the Department has adequately identified genuine operational requirements that preclude Mr Cameron's conversion on this occasion.[2]

The Directive

  1. [21]
    The Department says that the stated purpose of the Directive is twofold: it establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees and sets out the circumstances where employment on tenure is not viable or appropriate (Respondent emphasis). Clause 4.4 and suctions 148(2) of the PSA set out situations where the use of tenured employment is generally not viable or appropriate and includes circumstances in which Mr O'Neill has been engaged.
  1. [22]
    The Respondent says that the nature of Mr O'Neill's engagements aligns with the workforce strategy for the Operational Services Department at the hospital, ensuring flexibility and an appropriate workforce mix.  It is also consistent with the requirements for backfilling under cl 5.2 of the Certified Agreement which recognises the use of casual and temporary employees as a legitimate workforce strategy for backfilling.

Merit

  1. [23]
    The Department confirms that Mr O'Neill satisfies the merit requirements for the role and the qualifying conditions at cl 7.1 of the Directive and that the decision letter informed him of this.

Continuing Need

  1. [24]
    It was determined by the decision maker that there was likely to be a continuing need to engage Mr O'Neill and he was advised of this.  However, continuing need is but one factor to be considered.
  1. [25]
    The Respondent submits that in Cameron, Commissioner Dwyer stated:

The structure of both the PS Act and the Directive is such that even where all other mandatory considerations and criteria fall in favour of a candidate for conversion, it may still be refused in the presence of genuine operational requirements.[3]

Adequacy of reasons

  1. [26]
    The Respondent submits that the reasoning contained with the decision set out the substantial issue and the findings and reasons upon which the decision turned, such that Mr O'Neill could understand why the decision was not made in his favour.[4]
  1. [27]
    The context of the application of the Directive as a whole, taking into account the considerations in accordance with cl 7.2 of the Directive, supports a finding that the decision was fair and reasonable.[5]

Genuine Operational Requirements

  1. [28]
    The Respondent points to other decisions of the Commission establishing that the return of the substantive incumbent was found to constitute a genuine operational requirement supporting temporary rather than permanent employment.[6]  While these decisions address a different section of the PS Act, arguably the same principle can be applied here. The Respondent does not have a genuine operational need to permanently employ two people in the same position at the same time, performing the same role. 
  1. [29]
    The Department refers to the decision in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 where Merrell DP considered the phrase 'genuine operational requirements'.  In that decision, the Respondent says that His Honour considered 'genuine' to mean 'authentic' and considered the legislative responsibilities required of chief executives.[7] 
  1. [30]
    The Department says that determining whether the WBHHS Chief Executive's reasons support a finding that there is a genuine operational reason; and whether it is fair and reasonable, it is relevant to understand the legislative framework within which such decisions are made:
  • Queensland Public Health Certified Agreement (No 10) 2019 (see [6] above)
  • The Financial Accountability Act 2009 (Qld) (FA Act) was enacted to govern public sector financial administration in Queensland and sets out strategic legal obligations with which agencies must comply.
  • Subordinate legislation, consisting of the Financial and Performance Management Standard 2019 and the Financial Accountability Regulation 2019 have the aim of establishing board requirements within which agencies must operate to meet their obligations under the FA Act.
  • The financial management framework is underpinned by concepts of "efficient", "effective", "economical" and "value for money".
  • Section 61 of the FA Act requires "the accountable officer or statutory body to achieve reasonable value for money by ensuring the operations of the department or statutory body are carried out efficiently, effectively and economically".
  • Section 11 FPMS requires agencies to "establish and maintain management systems for efficiently, effectively and economically managing their financial resources."
  • The HHS is required to deliver the health services outlined in the Service Agreement for which funding is provided. Service Agreements are established with each HHS under the National Health Reform Agreement.
  • Under the WBHHS Service Agreement the relevant KPI states "Efficient – available resources are maximised to deliver sustainable, high quality health care; avoid waste; minimise financial risk, maximise available resources, sustainable/productive, average sustainable Queensland Health FTE, Capital expenditure performance".
  • Section 19(2) of the HHB states that an HHS has the following function: "to ensure the operations of the Service are carried out efficiently, effectively and economically' and 'to manage the performance of the Service against the performance measures stated in the Service Agreement".
  • Section 98 of the PSA requires that a Chief Executive manages their department in a way that promotes the "effective, efficient and appropriate management of public resources'…'planning human resources, including ensuring the employment here 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 this Act"These responsibilities are delegated to the WBHHS Chief Executive via the Delegations Manual.
  • Section 25(1) of the PS Act requires that public service management be directed towards a) providing responsive, effective and efficient services to the community and the Government; and (3) managing public resources efficiently, responsibly and in a fully accountable way.
  • Section 195(2) of the PS Act which states that a person cannot 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.

Managerial prerogative

  1. [31]
    The Respondent refers to authorities which recognise the general principle that an industrial tribunal ought not interfere with the right of management to manage its business, unless the employer is seeking from employees something which is unjust or unreasonable.[8]  The Respondent says that here, through a process of workforce planning, it has factored in a certain number of casual on call employees to ensure workforce flexibility and continuity.  Setting aside the decision to not convert the employee would have the effect of removing the Respondent's workforce and rostering flexibility and create inefficiencies, which would interfere with the right of the Respondent to manage its business in line with recognised authorities.

Conclusion

  1. [32]
    The Respondent says that it has evidenced its genuine operational requirements for not converting Mr O'Neill and that these reasons are authentic, genuine and factual. Mr O'Neill's engagement falls squarely within the confines of the examples in section 148(2) of the PS Act. For all these reasons the Respondent respectfully submits that the decision be confirmed.

Mr O'Neill's submissions in reply

  1. [33]
    Mr O'Neill submits that on the basis that he is required to work regular and consistent hours, there should be no impediment to him holding a permanent position as the hours would be sustained post permanency.  With reference to the employment history provided by the Respondent, Mr O'Neill says that it is evident that he conducts on average at least 34.90 hours per week.
  1. [34]
    Mr O'Neill believes his work history over the past two and a half years is evidence there is a continuing need for him to be employed in the role, and why a permanent position should be provided.
  1. [35]
    Mr O'Neill draws my attention to Kelly v State of Queensland (Queensland Health) [2021] QIRC 055 (Kelly) where I considered Ms Kelly's service and need and established that there was a continuing need:

Ms Kelly has been working for WBHHS for over three years.  There is a recognised need for her to be employed in a continuing way.  I am not satisfied that the operational requirements relied upon by the Respondent are genuine to an extent that serves to displace the principle that employment on tenure is the default basis of employment in the public service.[9]

  1. [36]
    Mr O'Neill submits that he should be made permanent on the basis that there is a constant demand in consideration of his average work hours that he could be made permanent without issue.
  1. [37]
    With reference to the decision maker's finding that there is no vacancy for Mr O'Neill to fill, Mr O'Neill further refers to Kelly where I said:

The Directive does not require there to be a budgeted vacancy to enable conversion. Converting a person's employment from casual to permanent will often involved the creation of a new permanent position and this is to be expected where the requisite criteria are met.[10]

  1. [38]
    Mr O'Neill submits that the constant demand for him to work and the nil requirement for an actual position to be open mean that he should be converted to a permanent position.
  1. [39]
    With regard to the Respondent's reference to Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195, Mr O'Neill submits that this decision should not be relied upon as when reviewing his service as a whole, he has maintained an average and consistent number of working hours of 34.90 hours, regardless of the reasons i.e. backfilling staff on secondment, other leave.
  1. [40]
    In conclusion, Mr O'Neill submits that:
  • Regardless of the role he undertakes, it is evident by the most recent outline of hours by the respondent that Mr O'Neill has undertaken, on average, 34.90 hours per fortnight and as such, there is a continuing need for him to be employed;
  • there does not have to be a budgeted vacancy for conversion to occur; and
  • there should be no hesitation with converting Mr O'Neill, on the basis that there is no requirement for an open position; and he has maintained consistent hours.

Consideration

  1. [41]
    I note that the Respondent's submissions state that Mr O'Neill meets the merit requirement for conversion. It has also been assessed that there is a continuing need for Mr O'Neill to be employed on a casual basis for the types of circumstances set out at cl 5.2 of the Directive which describes circumstances which make tenured or fixed term employment generally not viable or appropriate.
  1. [42]
    With regard to cl 5.3 of the Directive, Mr O'Neill's employment with the Respondent cannot be described as short-term.  He has worked for the Respondent for two and half years. While Mr O'Neill is employed to address the circumstances set out in cl 5.2 of the Directive, the Respondent has identified that he will be required to do so in a continuing way.  
  1. [43]
    Having established that Mr O'Neill fulfils the criteria for conversion, the Respondent says that genuine operational requirements preclude his conversion to permanent employment.

Genuine Operational Requirements

  1. [44]
    The Respondent argues that the employer does not have a need to employ two people in the same position at the same time and I accept this submission so far as it relates to there being no genuine operational requirement to appoint Mr O'Neill to the fixed term temporary position he was occupying at the time of the decision. However, with regard to the casual position, Mr O'Neill's employment history demonstrates that he has replaced a number of people absent for various purposes and for engagements of varying lengths over the period of time prior to his current temporary appointment.  In those circumstances, Mr O'Neill's conversion to permanent would not mean that two people would be employed in one position.  The circumstances are different to those in Holcombe.[11]
  1. [45]
    The phrase 'genuine operational requirements' is defined in neither the PS Act nor the Directive and must therefore:

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 including 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 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 person on a fixed term temporary basis occurs only if there is a reason for the basis of employment under the PS Act.

The phrase '…genuine operational requirements of the department' in s 149C(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.'[12][my emphasis, citations omitted].

  1. [46]
    The decision letter and the Respondent submissions provide extensive reasoning as to the genuine operational requirement to continue Mr O'Neill's employment as a casual employee. 
  1. [47]
    I have considered in previous matters that the Directive does not require there to be a budgeted vacancy to enable conversion.[13] The conversion of an employee to permanent will result in a new position requiring funding. This is a regular outcome of conversion of employees at either the initiative of the employer or by way of an appeal outcome.
  1. [48]
    While I note Mr O'Neill's submissions regarding my decision in Kelly, each matter turns on its own facts and circumstances as put forward in the decision letter, appeal submissions and associated materials put before me.
  1. [49]
    While Mr O'Neill has most recently been undertaking a temporary appointment to backfill an employee on secondment for four weeks and to backfill an employee/s on leave for fifteen weeks resulting in several months of regular work at 38 hours per week, I must consider the whole of his employment history.  Prior to his temporary appointment, Mr O'Neill was employed to backfill employees for various reasons such as leave, secondment, and 'funded project or program'.    It is not controversial that there is a continuing need for Mr O'Neill to be employed. However, continuing need is not, on its own, the deciding factor for conversion.
  1. [50]
    While required to work in a continuing way, the hours that Mr O'Neill was required to work were varied on a week to week basis, indicating that the employment fell within the circumstances envisaged by cl 4.4 of the Directive and sub-ss 148(2) and 148(3) of the Act.
  1. [51]
    Mr O'Neill submits he should be made permanent as his average work hours are easily transferable. However Mr O'Neill's submissions do not address parts of the Directive and the PS Act referred to above; reasons given in the decision; or the Respondent's submissions about what they say is their genuine operational requirement to maintain a 'small pool of causal staff to backfill emergent leave and of which can be engaged in fixed term temporary contracts as required to backfill other forms of planned leave.'
  1. [52]
    Likewise, Mr O'Neill's submissions do not address the Respondent's contentions regarding the requirement for a certain number of casual and temporary employees to ensure workforce flexibility and continuity.  There are no submissions before me regarding the Respondent's workforce strategy, the 24/7 roster and the lack of certainty about the number of hours that may be available to be offered to Mr O'Neill at any particular time.
  1. [53]
    Based on the material before me, I find myself in agreement with Commissioner Dwyer, who said in Cameron, 'On the whole, I am satisfied that the need to have flexibility around the availability of employees places a degree of pressure on the Department to balance its workforce between casual and permanent in a relatively restricted budget'.
  1. [54]
    While the legislative framework clearly establishes that employment on tenure is the default basis of employment in the Queensland public service, it also envisages a need for there to be some use of temporary and casual employment.
  1. [55]
    I am satisfied that the Department had genuine operational requirements preventing Mr O'Neill's conversion at the time of the decision and that the decision was fair and reasonable.
  1. [56]
    Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed.

Footnotes

[1] A schedule of Mr O'Neill's employment history is attached at WB-01 (Submissions 8 September 2021).

[2] Cameron, [25] – [26].

[3] Cameron, [27].

[4] Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301 (Wilcox J).

[5] Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232 [23], [24].

[6] Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220 [28].

[7] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [27]-[38].

[8] Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401; Australian Federated Union of Locomotive Engineers v State Rail Authority of NSW (1984) 295 CAR 188

[9] Kelly, [54].

[10] Kelly, [48].

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

[12] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [37] – [38], [40].

[13] Kelly v State of Queensland (Queensland Health) [2021] QIRC 055.

Close

Editorial Notes

  • Published Case Name:

    O'Neill v State of Queensland (Queensland Health)

  • Shortened Case Name:

    O'Neill v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 388

  • Court:

    QIRC

  • Judge(s):

    Pidgeon 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.

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