Regan v State of Queensland (Queensland Health)
[2021] QIRC 412
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- Regan v State of Queensland (Queensland Health)[2021] QIRC 412
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Regan v State of Queensland (Queensland Health)[2021] QIRC 412
Regan v State of Queensland (Queensland Health)[2021] QIRC 412
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Regan v State of Queensland (Queensland Health) [2021] QIRC 412 |
PARTIES: | Regan, Ranett (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/267 |
PROCEEDING: | Public Service Appeal – conversion of casual employment |
DELIVERED ON: | 3 December 2021 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – casual employment – where the appellant requested to convert their employment to permanent – where respondent rejected request – where appellant was not converted for genuine operational requirements – consideration of 'genuine operational requirements' – where decision was fair and reasonable |
LEGISLATION | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 148A, 149A, 149B Casual Employment Directive 08/20 cls 5, 7, 8 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Gilmour v Waddell Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Regan v State of Queensland (Queensland Health) [2021] QIRC 221 |
Reasons for Decision
Introduction
- [1]Ms Ranett Regan ('Ms Regan') is employed by the State of Queensland (Queensland Health) ('the Department') on a casual basis, as an Operation Services Officer (Cleaner) (002) at the Hervey Bay Hospital, within the Wide Bay Hospital and Health Service ('WBHHS').
- [2]On 8 March 2021, Ms Regan filed an appeal notice in the Industrial Registry in respect of a decision by the Department dated 25 February 2021 to refuse her request for conversion from casual to permanent employment (PSA/2021/92).
- [3]On 21 June 2021, this Commission delivered its Reasons for Decision[1] in respect of the decision appealed against and made orders in the following terms:
- The appeal is allowed.
- Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
- Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Ms Regan's request in accordance with Directive 08/20 Casual employment and these reasons.
- [4]In a decision letter dated 7 July 2021, the Department advised Ms Regan that a fresh review of the request had been undertaken and this had been completed in accordance with Casual Employment Directive 08/20 ('Directive 08/20') and the Reasons for Decision dated 21 June 2021 ('the review decision').
- [5]The review decision determined to not convert Ms Regan's employment from casual to permanent.
- [6]Ms Regan filed an appeal notice in the Industrial Registry on 27 July 2021 in respect of the review decision, and relies on the following grounds in support of her appeal, as relevantly summarised:
- (a)there is a genuine reason to convert Ms Regan's employment from casual to permanent;
- (b)there is an operational reason to convert Ms Regan's employment on the basis that there has been, and will be, a continuing need for Ms Regan to perform the role, or a role which is substantially the same;
- (c)it is viable and appropriate to convert Ms Regan's employment on the basis that Ms Regan has been consistently required or needed at the Respondent's workplace for an extended period; and
- (d)during the relevant period of employment, Ms Regan has worked more than 20 hours per week, and on occasions where Ms Regan has worked less than 20 hours per week, it has been because Ms Regan requested to work less hours due to family or personal reasons, not because the Respondent did not have available hours for Ms Regan to work.
- [7]The appeal is made pursuant to s 197 of the Public Service Act 2008 (Qld) ('the PS Act'), which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission ('the Commission').
- [8]Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
- [9]I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
- [10]For the reasons contained herein, I have found that the review decision was fair and reasonable.
The review decision
- [11]The review decision had regard to the requirements of the IR Act, together with the matters referred to in Regan v State of Queensland.[5] Given the detailed nature of the reasons for the review decision, I will include a large extract of the decision as follows:
…
Considerations when making the decision
In accordance withs section 8.1 of the Directive, when deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2). I have considered these requirements and outline below my considerations in further detail.
Merit
Thank you for your performance as an operations Services Officer (Cleaner) to date. You have demonstrated over this time that you satisfy the merit requirements for the role.
Continuing need
In accordance with section 5.2 of the Directive, use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:
- backfilling tenured or fixed term temporary staff on short-term leave
- covering short gaps in work rosters of tenured and fixed term temporary employees
- in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
- where needed to work irregular, informal, flexible, occasional or non-rostered hours
You are substantively employed as a casual Operational Services Officer (Cleaner) (OO2), within the Casual Pool, Hervey Bay Hospital, in position number 30468492. The nature of your engagements includes ad hoc casual call in shifts to cover emergent leave, and when required, you are engaged on fixed term, temporary contacts, to backfill the leave of substantive employees. A review of your history shows that you have been engaged on fixed term temporary contracts in the following roles for various lengths of time:
- 32029412, Operational Services Officer Day Therapy Unit, Hervey Bay Hospital (OO2)
- 32026331, Cleaner, Hervey Bay Hospital (OO2)
I have considered the comments of Commissioner Knight in her decision dated 21 June 2021 at paragraph [35] and to that end attach a schedule (Attachment One) outlining the hours worked by you in a casual capacity, the circumstances for which those hours were performed, and the context of any temporary engagements, and which I have considered. The schedule 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, backfilling temporarily vacant roles while recruitment is undertaken 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.
Therefore, in reviewing the circumstances relevant to your employment, I have established that you have been engaged in accordance with the circumstances as outline in 5.2 of the Directive.
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:
- (a)Offering additional ordinary hours to Part-Time employees,
- (b)Offering additional work to Casual employees,
- (c)The application of Relief Pool staff,
- (d)The use of Overtime,
- (e)Utilisation of temporary engagement (e.g. extended period of absence)."
I have also considered section 5.3 of the Directive states that employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis.
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 5.2 of the Directive. 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 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 to engage you either as a casual or as a temporary employee in accordance with circumstances as outlined in 5.2 of the Directive to enable the [sic] WBBHS 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 the comments of Commissioner Knight in her decision dated 21 June 2021 at paragraph [29] and to that end have 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 (Cleaner) is a unique role and there are no other positions with similar capability requirements, as all of the cleaning 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) 2019 (EB10) which sets out the closed merit selection process for filling vacancies.
In accordance with the recommendation by Commissioner Hartigan dated 27 May 2021, the closed merit provisions in clause 11.5 of EB10 shall be used to fill vacant full-time operational positions in Hospital and Health Services. I have therefore considered that a closed merit selection process in relation to a vacancy in the Cleaning Department at Hervey Bay Hospital is currently underway in accordance with the requirements of section 11.5 of EB10 and which is not yet finalised.
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 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 it be established that there are vacant hours remaining unfilled in accordance with clause 11.5.6 as the process is conducted. However, as the process is still underway, I am not able to state at this time whether there will be 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. Attached to this letter is a schedule of previous employment review decisions which I have considered.
Genuine Operational Requirements
Given you meet merit and I have determined that is it 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 the 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 you service area, which includes a budgeted permanent full time equivalent (FTE) establishment that aligns with the workforce needs for the service area (Cleaning Services), and a small casual backfill pool which is sufficient to cover planned and unplanned leave arrangements through casual engagements or temporary back fill 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 FTE's is variable.
- Therefore, if there are no substantive FTE's 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 into 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 convert your employment to permanent at this time.
…
Relevant legislation and Directive
- [12]Section 148A of the PS Act provides for the employment of casual employees as follows:
148A Employment of casual employees
- (1)A chief executive may employ a person on a casual basis to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive, if employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.
- (2)A person employed under this section does not, only because of the employment, become a public service officer.
- (3)The commission chief executive must make a directive about the employment of casual employees employed under this section or section 147, including the circumstances in which employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.
- [13]Section 149A of the PS Act set out the requirements for a decision on review of status as follows:
149A Decision on review of status
...
- (2)The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if—
- (a)the department’s chief executive considers—
- (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
- (ii)the person is eligible for appointment having regard to the merit principle; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision.
- (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.
- [14]Section 149B of the PS Act provides for a review of status after two years continuous employment as follows:
149B Review of status after 2 years continuous employment
- (1)This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The department’s chief executive must decide whether to—
- (a)continue the person’s employment according to the terms of the person’s existing employment; or
- (b)offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
- (4)The department’s chief executive must make the decision within the required period after—
- (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
- (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.
- (5)In making the decision—
- (a)section 149A(2) and (3) applies to the department’s chief executive; and
- (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.
- (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—
- (a)the reasons for the decision; and
- (b)the total period for which the person has been continuously employed in the department; and
- (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
- (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.
...
- (8)The commission chief executive must make a directive about making a decision under this section.
(8A) The directive must provide for—
- (a)the matters a department’s chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under subsection (3)(b); and
...
- [15]The phrase 'genuine operational requirements of the department' as referred to in s 149A(3) of the PS Act, is not defined in the PS Act. The phrase, in the context of s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women)[6] as follows:[7]
…that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
- managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
- planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
[footnotes omitted]
- [16]Directive 08/20 came into effect on 25 September 2020. Directive 08/20 highlights key sections in the PS Act which deal with the employment and conversion of casual employees, provides for the circumstances in which employment on tenure or a fixed term temporary employee is not viable or appropriate and sets out procedures for reviews and requirements of decisions.
- [17]Clause 5 of Directive 08/20 provides for the employment of casual employees as follows:
5.1 Section 148A of the PS Act (Appendix A) provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate.
5.2 Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:
- (a)backfilling tenured or fixed term temporary staff on short-term emergent leave
- (b)covering short gaps in work rosters of tenured and fixed term temporary employees
- (c)in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
- (d)where needed to work irregular, informal, flexible, occasional or non-rostered hours.
5.3 Employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis.
- [18]Clause 7 of Directive 08/20 provides for the requirement to review employment status of a casual employee after being employed for two years as follows:
7.1 Section 149B of the PS Act (Appendix C) provides that an agency must review the employment status of a casual employee for conversion to employment as a general employee on tenure or a public service officer:
- (a)under section 149B(4)(a), at the end of two years after the employee has been continuously employed as a casual employee, and
- (b)under section 149B(4)(b), annually after the end of the initial two years during which the employee remains continuously employed.
7.2 For a review under section 149B, section 149B(7A) sets out the matters to be considered
when working out how long the employee has been continuously employed in the
agency.
7.3 Under section 149B(3), the chief executive must decide within 28 days whether to offer
to convert the person’s employment basis to employment as a general employee on
tenure or a public service officer, or continue the person’s employment according to the
terms of the person’s existing employment.
7.4 Unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee under section 149B(3)(b), the chief executive
should offer hours of work no less than the greater of the following amounts:
- (a)the hours worked by the employee in the continuing role or a role that is substantially the same, in the week immediately before the chief executive’s decision, or
- (b)the average hours per week worked by the employee in the continuing role or a role that is substantially the same, over the last two years.
- [19]Clause 8 of Directive 08/20 sets out the requirements for a decision on review of status as follows:
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 employee to be employed in the role, or a role which is substantially the same
- the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
- whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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 casual employee to employment as a general employee on tenure or a public service officer:
- (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)
- (b)where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
- (c)the chief executive cannot convert the casual 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 or149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
- (a)set out the findings on material questions of fact, and
- (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.
8.6 Agencies are expected to consider 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.
8.8 A casual employee who is converted could be subject to a probationary period following conversion in accordance with section 126 of the PS Act. However, given that the casual employee has performed the required service with the agency, it would not be expected that agencies would apply probation other than in exceptional circumstances.
Whether the review decision was fair and reasonable
- [20]The review decision addresses the mandatory criteria, including, whether there is an ongoing need for Ms Regan to be employed in the role, or in a role that is substantially similar, the requirements of an industrial instrument, reasons for decision previously made, the genuine operational requirements of the Hervey Bay Hospital and Ms Regan's merit. Merit, and the ongoing need for the role to be performed, are both matters that are not in issue in this appeal.
- [21]The issue that remains to be determined is whether the facts establish the existence of genuine operational requirements.
Genuine operational requirement
- [22]Ms Regan contends that to give due consideration to the object, scope and purpose of the relevant legislative material, any genuine operational requirement preventing conversion to permanent employment must not be trivial and must be evidenced.
- [23]I accept the general principle of that contention.
- [24]The review decision outlines the basis for the Department's reliance on 'genuine operational requirements' in the following terms:
I have considered that the nature of your engagements aligns with the workforce strategy for you service area, which includes a budgeted permanent full time equivalent (FTE) establishment that aligns with the workforce needs for the service area (Cleaning Services), and a small casual backfill pool which is sufficient to cover planned and unplanned leave arrangements through casual engagements or temporary back fill 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 FTE's is variable.
- Therefore, if there are no substantive FTE's 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.
- [25]The Department contends that it is fair and reasonable for it to develop a workforce strategy and staff it accordingly. Relevantly, it submits that regard should be had to the setting of that strategy, namely, that it is in a regional setting in which the Department operates 24/7. The Department argues that in such a setting, it is essential to utilise casual and temporary staff to supplement its permanent workforce.
- [26]Ms Regan argues, in summary, that:
- (a)Directive 08/20 does not prescribe that a casual employee's conversion first relies on the existence of a permanent vacancy or, 'budgeted vacancy';
- (b)the Department has effectively created a permanent position for Ms Regan by the manner in which it has engaged her over the last two years; and
- (c)the Department has mistakenly interpreted the interaction of Directive 08/20 and cl 11.5 of the EB10.
- [27]With respect to subparagraph (a) above, I agree with Ms Regan's submissions that Directive 08/20 does not prescribe that a casual conversion first relies on the existence of a permanent or 'budgeted vacancy'. However, the review decision does not state this. Rather, the review decision lists a number of matters that the decision maker has considered, including whether there was a budgeted vacancy.
- [28]There is no statement in the reasons that the Department was relying on the existence, at first instance, of a permanent or budgeted vacancy in order to convert Ms Regan's employment.
- [29]With respect to subparagraph (b) above, I do not accept Ms Regan's submissions that the Department has effectively created a permanent position by the manner in which it has engaged Ms Regan. A review of Ms Regan's engagements identifies that she has been engaged on a variety of temporary contracts and casual appointments for a variety of reasons.
- [30]The reasons for those appointments, including covering emergent leave or backfilling other leave, are consistent with the manner in which Ms Regan has been variously engaged.
- [31]With respect to subparagraph (c) above, the review decision states that the review has been conducted separately and distinctly from the provisions contained within cl 11.5 of the EB10. Whilst the decision maker has somewhat surprisingly, later stated, if a permanent full-time vacancy did exist, then cl 11.5 of the EB10 should prevail, I have concluded that ultimately such a statement, whilst distracting, is irrelevant to the review and the reasons for the decision.
- [32]I am satisfied that the review was conducted by reference to the relevant Directive.
- [33]Ultimately, I have concluded that there is an authentic and real basis for the Department to rely on genuine operational requirements to not convert Ms Regan's employment to permanent. The matters referred to in the review decision to support such a conclusion includes, the workforce strategy engaged in the relevant service which requires resourcing across a 24/7 roster. This requires a utilisation of a larger pool of fixed permanent FTE employees, together with a small pool of casual staff to backfill emergent and other leave. I accept that the Department has provided a 'real reason' for its use of casual employment in the circumstances of this matter.
- [34]In managing the Department in a way that promotes the effective, efficient and appropriate use of public resources, I accept that the Department is required to balance its needs for a flexible and appropriate workplace mix and as such, has established a genuine operational requirement that precludes the conversion of Ms Regan's employment from casual to permanent.
Conclusion
- [35]I have concluded that the decision was fair and reasonable.
Order
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] Regan v State of Queensland(Queensland Health) [2021] QIRC 221.
[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[5] [2021] QIRC 221.
[6] [2020] QIRC 203.
[7] Ibid, [37] - [38].