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Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 397

Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2021] QIRC 397

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES: 

Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 397

Taylor, Bronwyn

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO:

PSA/2021/358

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

22 November 2021

MEMBER:

HEARD AT:

McLennan IC

On the papers

  ORDERS:

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

  1. The appeal is allowed;
  1. The decision that Mrs Taylor not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  1. Mrs Taylor's temporary employment status be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of genuine operational requirements – where there are no substantively vacant positions – where funding is unlikely or unknown – where there has been an increase in workload

LEGISLATION AND OTHER INSTRUMENTS:

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

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

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

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

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

CASES:

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

Jones v State of Queensland (Department of Housing and Public Works) [2021] QIRC 177

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

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

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

Reasons for Decision

Introduction

  1. [1]
    Mrs Bronwyn Taylor (the Appellant) is currently employed as a temporary AO3 Child Safety Support Officer (CSSO) with the Department of Children, Youth Justice and Multicultural Affairs, State of Queensland (the Department; the Respondent).[1]
  1. [2]
    Mrs Taylor has been employed by the Department as a temporary employee since 12 February 2018 and her current temporary engagement is expected to conclude on 31 December 2021.[2]
  1. [3]
    Mrs Taylor's employment history and the reasons for her temporary employment status with the Department are outlined below:
  • AO3 CSSO between 12 February 2018 and 19 April 2019 - unfunded position;
  • AO3 CSSO between 20 April 2019 and 19 January 2020 - incumbent on parental leave;
  • AO3 CSSO between 20 January 2020 and 30 September 2020 - incumbent on parental leave;
  • AO3 Administrative Officer between 1 October 2020 and 22 November 2020 - incumbent relieving at level;
  • AO3 CSSO between 23 November 2020 and 26 February 2021 - incumbent on parental leave; and
  • AO3 CSSO between 27 February 2021 and 31 December 2021 - unfunded position.[3]
  1. [4]
    On 6 October 2021, Mrs Taylor filed an appeal against a decision not to convert her temporary employment status to permanent (the Decision). The Decision was contained within a letter dated 15 September 2021 from Ms Karen Abrahams, Regional Director for the Department in the Central Highlands and Central Coast District (the decision-maker).

The Decision

  1. [5]
    Section 149B(4) of the Public Service Act 2008 (Qld) (the PS Act) provides:
  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. [6]
    The 'required period' is defined at s 149B(9) as being:
  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4)(a) or (b).
  1. [7]
    Mrs Taylor most recently became eligible for review on 12 February 2021, being the third-year anniversary of her commencement with the Department as a fixed term temporary employee.[4] The Department subsequently conducted a review in March 2021.[5] 
  1. [8]
    Notwithstanding the above, in September 2021 the Department conducted a further review in accordance with Directive 09/20 Fixed term temporary employment (Directive 09/20). That review "was an inadvertent error from the business unit"[6] and was carried out as follows:
  • On 26 August 2021, the decision-maker wrote to Mrs Taylor advising her she is due for a second review under the PS Act and Directive 09/20.
  • On 15 September 2021, the decision-maker advised Mrs Taylor of the Decision.[7]
  1. [9]
    Although the Department conducted the review in error, it has not presented any jurisdictional objections to this appeal being heard. Regardless, although s 149B(4)(b) of the PS Act requires the Department to make a decision on each one-year anniversary after the employee has been continuously employed as a fixed term temporary employee for a period of two years, it does not prohibit further reviews being undertaken at the election of the Department, or indeed, in error, as is the case here.
  1. [10]
    Clause 11.1 of Directive 09/20 provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert." Section 149B of the PS Act applies to an employee "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."[8] Mrs Taylor satisfies this eligibility requirement.
  1. [11]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee". This is the 'type of decision' Mrs Taylor indicated was being appealed against in the Appeal Notice. Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". For the reasons outlined above, I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed.
  1. [12]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [13]
    The Decision was given on 15 September 2021 and the Appeal Notice was filed 21 days later on 6 October 2021. On that basis, I am satisfied Mrs Taylor has lodged her Appeal Notice on time.

 Appeal principles

  1. [14]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against to determine whether it "was fair and reasonable".
  1. [15]
    The appeal is not conducted by way of re-hearing,[9] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[10] 
  1. [16]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[11]
  1. [17]
    The issue for my determination is whether the decision not to convert Mrs Taylor's employment status from temporary to permanent was fair and reasonable in the circumstances.[12]

 What decisions can the QIRC Member make?

  1. [18]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • Confirm the decision appealed against; or
  • Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • Set the decision aside and substitute another decision.

Relevant provisions of the PS Act and Directive 09/20

  1. [19]
    Section 148 of the PS Act states:

148  Employment of fixed term temporary employees

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

Examples of absences for a known period –

approved leave (including parental leave), a secondment

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

Examples—

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

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

Examples—

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

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

Example—

an unexpected increase in workload for disaster management and recovery

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

Example—

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

   …

  1. [20]
    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)
    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. (3)
    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.

…

  1. [21]
    Section 149A of the PS Act provides:

  …

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

  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (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. [22]
    Directive 09/20 relevantly provides:

8.  Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

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

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

 …

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.
  1. [23]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[13]
  1. [24]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [25]
    The purpose of Directive 09/20 is outlined below:
  1. Purpose

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

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

 …

  1. [26]
    Further, Directive 09/20 relevantly provides:

4.   Principles

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

…

Consideration

  1. [27]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at. 
  1. [28]
    Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker must consider:
  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [29]
    Clause 8.2 of Directive 09/20 provides that (emphasis added):[14]

…where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

  1. [30]
    Section 149B(6) of the PS Act requires the chief executive to give the employee a notice in the event the decision-maker determines not to convert that employee to permanent. That notice must include, inter alia, the reasons for the decision.[15]
  1. [31]
    The only reason stipulated in the Decision for not converting Mrs Taylor to permanent is that there are "currently no vacant positions at Rockhampton".[16] The Department conceded that the decision-maker did not meet all the requirements of s 149B(6) of the PS Act and stated that although the mandatory criteria under s 149A(2) of the PS Act were considered, that was not communicated in the Decision.[17]
  1. [32]
    I acknowledge the Department intends to ensure adherence to the requirements moving forward and elaborated on its position with respect to the mandatory criteria in its written submissions.[18] However, failure to articulate the reasons for the Decision renders it difficult for an employee in Mrs Taylor's position to comprehensively understand how the decision was reached and inhibits her ability to respond appropriately. I find the failure to adhere to the requirement under s 149B(6) of the PS Act was not fair and reasonable for those reasons.
  1. [33]
    I will now turn to the mandatory decision criteria.

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

  1. [34]
    There are two potential pathways to conversion. The first pathway is Mrs Taylor's current role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for Mrs Taylor to be employed in the current

role?

  1. [35]
    Although not expressly conveyed in the Decision, the Department submitted the decision-maker identified "there was no ongoing need, beyond 31 December 2021, for Ms Taylor to be employed in the role, or a role that is substantially the same, in the Rockhampton CSSC or nearby child safety service centres."[19]
  1. [36]
    The Department stated that Mrs Taylor is employed in an "unfunded position, which has been created to provide additional temporary support to the CSOs to meet unexpected increase in workload."[20] The Department submits the unexpected increase in workload is "due to the vacancy rate of the CSO role".[21] The Department contends that the "CSSO position has been offset against the recurrently funded CSO position and once the CSO positions are filled the funding for the CSSO position will no longer be available."[22]
  1. [37]
    Mrs Taylor contends "There are high case loads and continued work that needs to be performed. The department are currently looking at recruitment and selection strategies to help retain staff and reduce workloads."[23] Mrs Taylor also submits that upon the recruitment of CSOs, there will likely be a requirement for further support from CSSOs.[24]
  1. [38]
    The Department's submissions indicate that when the CSO roles are vacant and/or the workload is high, there is a need for an alternative employee (in this case, Mrs Taylor) to perform her role as CSSO. On that basis, as the CSO role/s are vacant and the workload is high, there is a continuing need for Mrs Taylor to perform her current role at least until 31 December 2021. However, I note the date on which the CSO role/s will be filled and/or the workload decreases is uncertain and I doubt the vacancies and/or increased workload will neatly conclude simply as a matter of convenience to coincide with the cessation of Mrs Taylor's current temporary contract. Consequently, I find there is likely to be a continuing need for Mrs Taylor to remain employed in her current role following 31 December 2021.
  1. [39]
    The insecurity of funding for a role or increased workloads may be valid reasons for appointment to temporary employment. However, after over three years of meritoriously undertaking various roles, I do not consider it reasonable for the Department to rely on that indefinitely. It is not necessary that a role is certain to be ongoing, merely that it is likely to be ongoing. That is the case in this instance.
  1. [40]
    Since the commencement of Mrs Taylor's employment, Mrs Taylor has had her temporary contract extended on five occasions.[25] The pattern of Mrs Taylor's undertaking of the temporary contracts in substantively the same role suggests there is a continuing need for Mrs Taylor to be employed in her current role, and that said role and her involvement in it are likely to be ongoing. It is on that basis, and in the absence of genuine operational requirements to the contrary as set out below, that I will convert Mrs Taylor to permanency.

Pathway 2: Is there a continuing need for Mrs Taylor to be employed in a role which is

substantially the same?

  1. [41]
    There is no evidence in the Decision that indicates the decision-maker considered whether or not there is a continuing need for Mrs Taylor to be employed in a role which is substantially the same as her current role.
  1. [42]
    In its submissions, the Department simply concluded there "are no recurrently funded and substantively vacant positions within the Gladstone CSSC or nearby service centres including Rockhampton and Emerald"[26] and "there are no roles which are substantially the same available at Gladstone, Rockhampton and Emerald CSSC."[27]
  1. [43]
    Mrs Taylor submits there are currently two vacant CSSO roles in the Rockhampton Service Centre which have been vacant since December 2019.[28] In response, the Department submits that both positions:

are unfunded temporary positions created to support the unexpected high workloads associated with the vacancy rate of the CSO role. The Rockhampton CSSC is actively recruiting to fill the vacant CSO roles and when completed it is expected the unfunded position will no longer be required.[29]

  1. [44]
    It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Department has stopped short of demonstrating its consideration of the entirety of the mandatory criteria as it appears its consideration was limited to identifying vacant and funded positions. Although regrettable, inattention to evidencing consideration of that second pathway to conversion is not altogether unusual in these types of appeals.
  1. [45]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Department did not demonstrate they had analysed the capability requirements of the role performed by Mrs Taylor.  The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [46]
    I have found that there is a continuing need for Mrs Taylor to be employed in her current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert Mrs Taylor was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of whether there is a continuing need for the employee to be employed in a role that is substantially the same and the Department has failed to discharge that requirement.

Merit

  1. [47]
    The decision maker did not evidence consideration of merit in the Decision. However, in its submissions, the Department confirmed that Mrs Taylor meets the merit principle in accordance with s 27 of the PS Act.[30] I am satisfied that is the case.

Requirements of an industrial instrument

  1. [48]
    Neither party raised any requirements of an industrial instrument that need to be complied with in this case.

Genuine operational requirements

  1. [49]
    Clause 8.2 of Directive 09/20 provides that (emphasis added):[31]

…where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

  1. [50]
    'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning.
  1. [51]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):

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

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

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

…

 [40]  The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[32]

 No substantively vacant positions

  1. [52]
    The decision-maker indicated that the genuine operational reason to deny conversion is there are no substantively vacant positions available in Rockhampton.[33]
  1. [53]
    Mrs Taylor correctly submits that neither the PS Act nor Directive 09/20 prescribe that a temporary employee's conversion relies first on the existence of a permanent vacancy.[34] The Department has not offered any evidence of a particular resourcing strategy nor how it may be specifically impacted in the event that Mrs Taylor's conversion claim was to succeed in a circumstance where there are currently no vacant positions available.
  1. [54]
    I do not accept that a lack of vacant positions constitutes a genuine operational requirement that justifies a decision to refuse conversion. The reliance upon that sole reason in the Decision was not fair and reasonable.

 Funding is unlikely or unknown

  1. [55]
    In its submissions, the Department elaborated with reference to s 148(2)(c) of the PS Act which provides that "employment of a person on tenure may not be viable or appropriate if the employment is… to fill a position for which funding is unlikely or unknown".
  1. [56]
    There is no indication that the difficulties faced by the Department in this instance would be any different to those posed to most agencies converting employees. It is an inherent requirement of converting any temporary employee to permanency that there will be budgetary relocations and the like.
  1. [57]
    I would also observe that the objective of maximising permanent employment and adherence to funding requirements need not be at odds. Where work is required to be performed, public sector workers will be required to be paid regardless of whether they are employed on a permanent or temporary basis. I find that within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent' or 'temporary' line-item allocation. As Mrs Taylor has been engaged as a temporary employee for a period of more than three years and paid accordingly, I do not consider the expressed funding concerns to be reasonable in this circumstance.
  1. [58]
    The insecure nature of the funding source for a role may be a valid reason for utilising temporary employment, pursuant to s 148(2)(c) of the PS Act. However, while it may be considered an appropriate reason for an initial temporary engagement, after more than three years of temporary engagements, in my view it is no longer fair and reasonable to rely on such a reason not to convert Mrs Taylor to permanent employment.

  Increase in workload

  1. [59]
    In its submissions, the Department elaborated with reference to s 148(2)(e) of the PS Act which provides that "employment of a person on tenure may not be viable or appropriate if the employment is … to perform work necessary to meet an unexpected short-term increase in workload."[35]
  1. [60]
    The issue is not whether it was appropriate to initially employ Mrs Taylor on a temporary basis. The question is whether that should continue. It is possible that the work undertaken by Mrs Taylor could be done on a temporary basis. That also is not in issue. A finding that the work could be done on a temporary basis is not tantamount to evidencing a genuine operational reason not to convert to permanent.
  1. [61]
    Where Mrs Taylor has been required repeatedly for backfilling and because there has been an increase in workload, I do not accept that permanent conversion of Mrs Taylor will have a negative impact on organisational viability. Rather, it appears from the evidence before me that permanent conversion may alleviate some of that workload with a more assuring degree of certainty.
  1. [62]
    For the reasons outlined above and in light of my conclusion there is likely to be a continuing need for Mrs Taylor to be engaged in her current role, I reject the Department's submission that Mrs Taylor should remain a temporary employee because of an increase in workload that the Department alleges is "short-term". The reliance upon that purpose was not fair and reasonable in the circumstances.

  Other considerations

  1. [63]
    The Department submits the decision-maker also considered the following genuine operational reasons:[36]
  • Future service delivery considerations;
  • The ongoing permanent FTE requirements across the Rockhampton CSSC;
  • The organisational structure that aligns to or is informed by service delivery priorities and workforce planning requirements;
  • The delegate's responsibility to manage resources within funded FTE cap as per the Department's Workforce Guidelines; and
  • The delegate's obligations under s 98 of the PS Act to manage the Department in a way that promotes the effective, efficient and appropriate management of public resources and with respect to planning human resources.
  1. [64]
    The Department did not expand upon or particularise the relevance of the broad considerations identified in [63]. There was no indication of how those factors would be impacted by the permanent conversion of Mrs Taylor in the Department specifically.
  1. [65]
    The Department's submission regarding FTE requirements and Workforce Guidelines was vague. However, in that regard I note s 25(2) of the PS Act provides that public service employment is to be directed towards promoting employment on tenure as the default basis of employment.
  1. [66]
    The Department contended the decision of Industrial Commissioner Dwyer in Jones v State of Queensland (Department of Housing and Public Works) ('Jones')[37] is analogous to this matter.[38] The Department did not specifically outline the similarities of that case to Mrs Taylor's circumstances and why I should accept the reasoning therein. Upon review, a significant difference between Jones and this decision, is that Industrial Commissioner Dwyer accepted that Ms Jones' role was not ongoing - and this was not contradicted by Ms Jones herself. Further, Ms Jones' role was said to be affected by the automation of data entry in the future - a role that is vastly different to that undertaken by Mrs Taylor.

 Conclusion

  1. [67]
    After over three years of being engaged on a temporary basis, I am persuaded there is a need for another permanent employee and it would be unreasonable for the Department to refute Mrs Taylor's request on the basis of funding or an increase in workload when she has continuously been paid and utilised in temporary roles extensively.
  1. [68]
    In arriving at this conclusion, I am conscious that the PS Act and Directive 09/20 are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed.  Those efforts allow for the achievement of the purpose of Directive 09/20.
  1. [69]
    It follows that there are no genuine operational requirements that would fairly and reasonably prevent Mrs Taylor from being converted to permanent employment.

Reasons for each decision previously made

  1. [70]
    Mrs Taylor submits the Department did not consider the reason for its previous decision on 28 April 2020 which was made under Directive 08/17 Temporary employment (Directive 08/17). In that decision, the Department determined not to permanently convert Mrs Taylor because there were "No vacant Child Safety Support Officer positions".[39]
  1. [71]
    Although the reasons were not articulated in the Decision, in its submissions the Department stated that the reason for each decision previously made pertained to the fact there were no "recurrently funded positions available."[40] In this regard I rely upon the reasoning set out in [52] - [54] above and further note that continuous reliance upon such a reason after over three years of continuous service in Mrs Taylor's circumstances is not fair or reasonable.

Conclusion

  1. [72]
    For the reasons detailed above, I find that the decision to maintain Mrs Taylor on a temporary contract was not fair and reasonable.
  1. [73]
    With regards to the discretions available to me to conclude this matter, I determine that the most appropriate course of action is to set the decision aside and substitute another decision to convert Mrs Taylor's employment to permanent.
  1. [74]
    I order accordingly.

Orders:

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

  1. The appeal is allowed;
  1. The decision that Mrs Taylor not have her temporary employment converted to permanent employment is set aside and another decision is substituted; and
  1. Mrs Taylor's temporary employment status be converted to permanent employment.

Footnotes

[1] Respondent's Submissions, 1 November 2021, [4].

[2] Ibid.

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

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

[5] Respondent's Submissions, 1 November 2021, [14].

[6] Respondent's Submissions, 1 November 2021, [14].

[7] Ibid [15]-[16].

[8] Public Service Act 2008 (Qld) s 149B(1).

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

[10] Ibid.

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

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

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

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

[15] Public Service Act 2008 (Qld) s 149B(6)(a).

[16] Letter from Ms K. Abrahams to Mrs B. Taylor, 15 September 2021.

[17] Respondent's Submissions, 1 November 2021, [18].

[18] Ibid [18]-[19].

[19] Ibid [22].

[20] Respondent's Submissions, 1 November 2021, [8].

[21] Ibid [20].

[22] Ibid.

[23] Appellant's Submissions, 25 October 2021, 3 [14].

[24] Appellant's Submissions in Reply, 15 November 2021, 2 [10].

[25] Respondent's Submissions, 1 November 2021, [4].

[26] Respondent's Submissions, 1 November 2021, [20].

[27] Ibid.

[28] Appeal Notice, 6 October 2021.

[29] Respondent's Submissions, 1 November 2021, [21].

[30] Ibid [23].

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

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

[33] Letter from Ms K. Abrahams to Ms B. Taylor, 15 September 2021.

[34] Appellant's Submissions, 25 October 2021, 3 [11].

[35] Respondent's Submissions, 1 November 2021, [10].

[36] Respondent's Submissions, 1 November 2021, [23].

[37] [2021] QIRC 177.

[38] Respondent's Submissions, 1 November 2021, [13].

[39] Appeal Notice, 6 October 2021, 4 [3].

[40] Respondent's Submissions, 1 November 2021, [14].

Close

Editorial Notes

  • Published Case Name:

    Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2021] QIRC 397

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    22 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
Jones v State of Queensland (Department of Housing and Public Works) [2021] QIRC 177
2 citations
Jump To
Cite 1 - [2021] QIRC 177
Cite 2 - [2021] QIRC 177
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Maroochydore Sands Pty Ltd v Minister for State Development, Manufacturing, Infrastructure and Planning [2019] QSC 319
1 citation
Jump To
Cite 1 - [2019] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

Case NameFull CitationFrequency
Chiotakis v Queensland Museum Network [2022] QIRC 221 citation
Chiotakis v Queensland Museum Network [2023] QIRC 342 citations
1

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