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Pearce v State of Queensland (Queensland Health)[2021] QIRC 402

Pearce v State of Queensland (Queensland Health)[2021] QIRC 402

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pearce v State of Queensland (Queensland Health) [2021] QIRC 402

PARTIES: 

Pearce, Dean

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/298

PROCEEDING:

Public Service Appeal – Conversion of fixed term temporary employment

DELIVERED ON:

29 November 2021

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDERS:

  1. The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – APPEAL – casual employment – fixed term temporary contracts – application for permanent employment – decision not to convert – genuine operational requirements – decision fair and reasonable

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 27B

Directive 09/20 Fixed term temporary employment cl 8

Industrial Relations Act 2016 (Qld) ss 562B, 562C

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

CASES:

Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

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

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

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

Kelly v State of Queensland (Queensland Health) [2021] QIRC 55

Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232

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

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

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

Reasons for Decision

Background

  1. [1]
    Mr Dean Pearce is substantively employed as a casual Operational Services Officer (Wardsperson) (OO2) at Hervey Bay Hospital with the Wide Bay Hospital and Health Service ('WBHHS') through Queensland Health ('the Department'). For approximately two years, he has been temporarily employed in various temporary contracts.
  1. [2]
    In correspondence dated 4 July 2021 from the Australian Workers' Union (on behalf of Mr Pearce), a request was made that Mr Pearce be converted to a permanent position. It stated that he had been working on a regular and systematic basis for at least two years since 17 June 2019.
  1. [3]
    On 31 July 2021, Ms Debbie Carroll, Chief Executive of WBHHS advised Mr Pearce that a review of his employment status had been conducted in accordance with Directive 09/20 Fixed term temporary employment ('the Directive') and the Public Service Act 2008 (Qld) ('PS Act').
  1. [4]
    He was advised that notwithstanding meeting the merit requirements, he would continue on a casual basis with the Department ('the decision') due to the genuine operational requirements of the Department.
  1. [5]
    The reasons for the decision were set out as follows:

There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below.

Merit

Thank you for your performance as an Operational Services Officer (Wardsperson) to date. You have demonstrated over this time that you satisfy the merit requirements for the role.

Continuing need

In accordance with section 4.4 of the Directive, sections 148(2) and 148(3) of the 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 a known 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, Hervey Bay Hospital, in position number 30468502. 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 and secondments of substantive employees. A review of your history shows that you have been engaged on fixed term temporary contracts in the following role/s for various lengths of time:

  • 30484956, Porter Support Services (OO2), Hervey Bay Hospital
  • 32028999, Wardsperson Fire and Security Officer (OO3), Hervey Bay Hospital

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 of substantive employees, or to meet temporary increases in demand. 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. I have also noted 10 weeks in which you were not engaged as there was no requirement to engage you during those periods.

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 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.

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 already engaged.

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 services for base grade or non-base grade rotes. 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 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.

Reasons for decision previously made

In accordance with section 8.1 of the Directive, I am also required to consider the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to you in the period of your employment. I have attached to this letter a schedule of your previous reviews and which I have considered.

Genuine Operational Requirements

Given 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 includes a budgeted permanent full time equivalent (FTE) establishment that aligns with the workforce needs for the service area (Food Services), and a small casual backfill pool which is sufficient to cover planned and unplanned leave arrangements and/or secondments through casual engagements or temporary backfill contracts, depending on which is most appropriate at the time. This ensures flexibility and an appropriate workforce mix.

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 contracts to backfill substantive permanent FTEs on leave.
  • 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.

Taking these considerations in to account, I find it is neither viable nor appropriate in this case to convert to permanent.

I therefore find that there is a genuine operational requirement of this agency not to convert your employment to permanent at this time.

  1. [6]
    In response to the decision, Mr Pearce filed an Appeal Notice on 23 August 2021. In his appeal, he contended that:
  • Pursuant to the Directive, there is a continuing need to convert him to a permanent position;
  • There is and has been a continuing need for Mr Pearce to be converted into the role or one substantially the same, and it will be ongoing; and
  • It is viable and appropriate to convert his employment to permanency on the basis that he has been consistently required at his place of work and there would be no shortage of work.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; 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.

Nature of appeal

  1. [8]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]
  1. [9]
    An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[5]
  1. [10]
    The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Pearce's casual employment was fair and reasonable.[6]
  1. [11]
    For the reasons set out below, I have determined that the decision was fair and reasonable.

Relevant sections of the PS Act and Directive

  1. [12]
    The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.
  1. [13]
    The PS Act relevantly provides:

149A Decision on review of status

...

  1. (2)
    The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if –
  1. (a)
    the department’s chief executive considers–
  1. (i)
    there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (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.

…

(Emphasis added)

149B Review of status after 2 years continuous employment

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

...

  1. [14]
    Clause 8 of the Directive provides as follows:

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.

...

(Emphasis added)

Submissions of the parties

  1. [15]
    The parties filed written submissions in accordance with a Directions Order dated 26 August 2021. The parties' submissions primarily concern the genuine operational requirements of the Department.

Submissions of the Department

  1. [16]
    The Department contends, for reasons set out in their submissions dated 23 September 2021, that genuine operational requirements preclude Mr Pearce's conversion to permanency. In summary, it submits that:
  • Mr Pearce has only been engaged to cover in roles where the substantive incumbent has been on leave or to meet temporary increases in demand. In each case, the incumbent has returned and Mr Pearce was no longer required;[7]
  • There is a legitimate and genuine need for a casual and temporary workforce at Hervey Bay Hospital to ensure resourcing across a 24/7 roster, backfill of emergent and planned leave and ad hoc on-call requirements. Converting Mr Peace would impact this flexible rostering strategy, which is consistent with section 5.2 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019. Breaks in his employment history clearly shows periods where Mr Pearce has not been required. These circumstances are very similar to the decision of Cameron v State of Queensland (Queensland Health) ('Cameron'),[8] where the appeal was dismissed on the basis of genuine operational requirements;
  • The requirement to backfill substantive Full Time Equivalent ('FTE') employees is variable and appointing another substantive FTE would result in budget overspend and would be contrary to the responsibility of the chief executive to effectively manage financial resources;[9]
  • While Mr Pearce meets the merit criteria and there is an ongoing need to engage him, the request can be refused where there are genuine operational requirements relied on which are fair and reasonable,[10] and authentic;[11] and
  • The reasons in the decision are such that Mr Pearce can understand why a decision was not made in his favour,[12] evidence on which the decision-maker's findings were based were provided,[13] the decision letter is clear and unambiguous,[14] and in application of the Directive as a while the decision was fair and reasonable.[15]

Submissions of Mr Pearce

  1. [17]
    Mr Pearce contends, for reasons set out in his submissions dated 1 October 2021, that he should be converted to permanency. In summary, he submits that:
  • On the basis that Mr Pearce works regular and consistent hours (averaging 37.63 hours per week) and there is a continuing need for him, there should be no impediment to him holding a permanent position as the hours would be sustained post-conversion;
  • Citing the decision of Kelly v State of Queensland (Queensland Health),[16] there is a recognised need for Mr Pearce to be employed on a permanent basis as there is a constant demand in his working hours which could be transferred into a permanent position without issue and a budgeted vacancy is not required;[17] and
  • The period of non-engagement was for three months and occurred one year ago, since this period, Mr Pearce has constantly held an average of 37.63 hours with the Department and the period of non-engagement should not bear any weight in consideration of the consistent hours worked thereafter. There have not been any further periods of non-engagement in his working hours.

Consideration

  1. [18]
    The central issue in dispute between the parties to this appeal is the question of the existence of 'genuine operational requirements'. In particular, the parties are at odds as to the extent to which the absence of a budgeted vacancy can be grounds for refusal.
  1. [19]
    The Department relies on genuine operational requirements to reject Mr Pearce's request for conversion and particularises this with reference to the availability of funding for a permanent position.
  1. [20]
    Mr Pearce, in his reply submissions, cites the decision of Kelly v State of Queensland (Queensland Health) and seeks to emphasise the proposition that the Directive does not require there to be a budgeted vacancy to enable conversion. While this observation about the Directive is correct, that does not make the absence of a budgeted position an irrelevant consideration.
  1. [21]
    Both the Directive and the PS Act contain the catch all consideration of 'genuine operational requirements'. The term encompasses a broad range of factors.     
  1. [22]
    The term 'genuine operational requirements' is not defined in the PS Act or the Directive. Deputy President Merrell held in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'):[18]

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.

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.

…

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.'

  1. [23]
    As I have frequently observed, an employee may satisfy all criteria for conversion set out in the PS Act and the Directive but still fail to achieve conversion if the employer can demonstrate that there are genuine operational requirements precluding conversion. Further, having regard to the findings in Morison,[19] the term 'genuine operational requirements' can be read broadly to encompass a variety of intertwined operational factors affecting an employer. Included in that array of considerations is the availability or otherwise of a budgeted position.
  1. [24]
    The facts and circumstances of each case will ultimately determine whether there are genuine operational factors impeding conversion. The absence of a budgeted position will not, of itself, preclude conversion. But when considered in the context of broader factors, it may well be an influential factor.
  1. [25]
    The Department's submission with respect to genuine operational requirements relies on its need to maintain a flexible workforce of casual employees capable of filling in on short or longer term engagements to take up the work usually performed by permanent employees on planned or unplanned leave (as the case may be).  The size of the workforce understandably will produce regular short term absences of an unexpected nature due to e.g. illnesses and also longer absences due to annual or other leave absences.
  1. [26]
    It is understandable that the Department will need to have capable and skilled casual employees on hand at all times to fill these absences as and when they emerge. Further, it is understandable that the conversion of a casual employee such as Mr Pearce will inevitably reduce the pool of experienced casuals available for short term appointments, while at the same time cause a degree of displacement amongst permanent employees in circumstances where Mr Pearce is simply added to their ranks without there being a designated position for him to fill.   
  1. [27]
    As I said in Cameron v State of Queensland (Queensland Health):[20]

[25]  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. The Department further relies on the hypothetical requirement to engage another casual to backfill leave potentially taken by Mr Cameron. That Mr Cameron already takes leave is not a proper response by him to this ground relied on by the Department. The absence of a casual employee from a pool of casuals used to fill in for permanent employees does not place any additional financial cost on the Department and is not a proper comparison to a scenario where he is permanent.

[26]  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 that the Department has adequately identified genuine operational requirements that preclude Mr Cameron's conversion on this occasion.

  1. [28]
    While the absence of a budgeted position is not of itself a barrier to conversion, in the context of the broader considerations in this instance, I am satisfied it adds to the collection of factors giving rise to the genuine operational requirements impeding Mr Pearce's conversion.
  1. [29]
    In all of these circumstances, I consider that the Department has adequately demonstrated that there are genuine operational requirements that preclude Mr Pearce's conversion at this time. It follows that I consider that the decision is fair and reasonable.
  1. [30]
    I hasten to add that the Department ought to not lose sight of the purpose and intention of the PS Act and the Directive with respect to the principles around conversion of causal and temporary employees. It is essential that the Department continue to strive to achieve a permanent workforce and security of employment, save for the identified exceptions.
  1. [31]
    I note that Mr Pearce has been (mostly) continuously employed for a little over two years in his casual role and has no merit issues. I note that these factors essentially satisfy two of the key criteria for consideration for conversion, and no doubt gives rise to a degree of expectation on his part. That expectation is understandable and is not misplaced.
  1. [32]
    While I appreciate that Mr Pearce may feel disappointed with the outcome of this appeal on this occasion, he ought to take some comfort from the fact that he continues to be entitled to routine reviews of his employment status under s 149B(4) of the PS Act.
  1. [33]
    Notwithstanding that the objective of the PS Act and the Directive is to encourage and achieve employment on tenure, it would be perilous to express a view as to what might be an outer limit of continuous casual or temporary engagement before conversion should occur. The circumstances of each case will dictate the result. I would fully expect that Mr Pearce will ultimately achieve conversion on one of the routine reviews of his employment status provided he continues to be employed continuously and demonstrate merit.  

Order

  1. [34]
    In the circumstances, I make the following order:
  1. The decision appealed against is confirmed.

Footnotes

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

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

[4] Ibid.

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

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

[7] Clair v State of Queensland (Queensland Health) [2020] QIRC 220 [28].

[8] [2021] QIRC 226 [25]-[26].

[9] Financial Accountability Act 2008 (Qld); Hospitals and Health Boards Act 2011 (Qld); Public Service Act 2008 (Qld).

[10] Ibid [27]; Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 [65]-[70].

[11] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison') [27]-[38], [41].

[12] Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 481 ('Our Town FM').

[13] Acts Interpretation Act 1954 (Qld) s 27B.

[14] Wilcox J in Our Town FM citing Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500, 507.

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

[16] [2021] QIRC 55.

[17] Ibid [48].

[18] [2020] QIRC 203, 12 [37]-[40].

[19] Ibid.

[20] [2021] QIRC 226, 10 [25]-[26].

Close

Editorial Notes

  • Published Case Name:

    Pearce v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Pearce v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 402

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    29 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
Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500
2 citations
Jump To
Cite 1 - (1983) 48 ALR 500
Cite 2 - (1983) 48 ALR 500
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
Cameron v State of Queensland (Queensland Health) [2021] QIRC 226
3 citations
Jump To
Cite 1 - [2021] QIRC 226
Cite 2 - [2021] QIRC 226
Cite 3 - [2021] QIRC 226
Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220
2 citations
Jump To
Cite 1 - [2020] QIRC 220
Cite 2 - [2020] QIRC 220
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Kelly v State of Queensland (Queensland Health) [2021] QIRC 55
3 citations
Jump To
Cite 1 - [2021] QIRC 55
Cite 2 - [2021] QIRC 55
Cite 3 - [2021] QIRC 55
Monavvari v State of Queensland (Queensland Health, eHealth) [2020] QIRC 232
2 citations
Jump To
Cite 1 - [2020] QIRC 232
Cite 2 - [2020] QIRC 232
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
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
2 citations
Jump To
Cite 1 - (1987) 16 FCR 465
Cite 2 - (1987) 16 FCR 465
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
Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 282 citations
1

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