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Johnstone v State of Queensland (Queensland Health)[2021] QIRC 433

Johnstone v State of Queensland (Queensland Health)[2021] QIRC 433

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnstone v State of Queensland (Queensland Health) [2021] QIRC 433

PARTIES:

Johnstone, Fairlane

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/270

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

HEARING DATE:

2 December 2021

2 December 2021

MEMBER:

HEARD AT:

Merrell DP

Brisbane

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 13 September 2021 and Respondent's written submissions filed on 12 October 2021

ORDERS:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the appellant's appeal will not be heard because it is misconceived.

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – appellant employed on a full-time, fixed term temporary basis – on 11 June 2020, appellant accepted offer to be appointed to part-time permanent employment at 0.55 FTE hours – appellant contends that she remained a fixed term temporary employee for 0.45 FTE hours with an anniversary date of 9 June 2021 – appellant contends that no decision, pursuant to s 149B(4)(b) of the Public Service Act 2008, was made by the chief executive about her fixed term temporary employment at 0.45 FTE hours and that by s 149B(7) of the Public Service Act 2008, the chief executive was taken to have decided not to offer to convert the appellant's employment and to continue the appellant's employment as a fixed term temporary employee according to her existing conditions – appeal against that decision – respondent contends that appeal is misconceived as there was no requirement to undertake a review of appellant's employment status because appellant was performing additional ordinary hours in addition to her substantive permanent part-time hours in accordance with cl 8.2(c)(i) of the Hospital and Health Services General Employees (Queensland Health) Award – State 2015 – appeal misconceived – decision to not hear appeal

LEGISLATION:

Directive 09/20 Fixed term temporary employment, cl 5

Hospital and Health Service General Employees (Queensland Health) Award – State 2015, cl 8.2

Queensland Public Health Sector Certified Agreement (No. 10) 2019, cl 1 and cl 11.7

Hospital and Health Boards Act 2011, s 66 and s 67

Industrial Relations Act 2016, s 562A

Public Service Act 2008, s 21, s 22, s 23, s 148, s 149, s 149A, s 149B and s 149C

Public Service Regulation 2018, s 3 and sch 3

CASES:

Amesbury v State of Queensland (Department of Education), (Queensland Industrial Relations Commission, Industrial Commissioner Power dated 22 November 2019)

Benson v State of Queensland (Department of Education) [2021] QIRC 152

Joshi v State of Queensland (Queensland Health) [2021] QIRC 212

Royle v State of Queensland (Department of Health) [2021] QIRC 142

APPEARANCES:

Mr D. Goldman of Together Queensland, Industrial Union of Employees for the Appellant.

Ms L. Griffin of the Respondent.

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    Ms Fairlane Johnstone commenced part-time temporary employment with and by the Metro North Hospital and Health Service on 9 June 2016.
  1. [2]
    That continued until 13 November 2017 when Ms Johnstone commenced parttime temporary employment with and by the Metro South Hospital and Health Service ('the Health Service') in the role of Administration Officer, classification AO3, in the Emergency Department at the Princess Alexandra Hospital ('the role'). The Emergency Department is a healthcare facility under the control of the Health Service. In that employment, Ms Johnstone, since July 2019, has worked, on various occasions, fulltime hours per fortnight (76 hours per fortnight) for reasons including backfilling for other employees.
  1. [3]
    It is common ground that Ms Johnstone is a 'health service' employee within the meaning of s 67 of the Hospital and Health Boards Act 2011.
  1. [4]
    Section 67 of the Hospital and Health Boards Act 2011 relevantly provides:

67 Appointment of health service employees

  1. (1)
    The chief executive may appoint a person as a health service employee in the department, including as an employee of the department working for a Service that is not a prescribed Service.

  1. (3)
    A prescribed Service may appoint a person as any health service employee in the Service.
  1. (4)
    Appointment as a health service employee may be-
  1. (a)
    on tenure; or
  1. (b)
    on contract for a fixed term, including as a health executive or a senior health service employee; or
  1. (c)
    on a temporary basis; or
  1. (d)
    on a casual basis; or
  1. (e)
    for an employee who is a senior health service employee—on contract for an indefinite term.
  1. (5)
    An appointment under this section may be for full-time or part-time employment.
  1. [5]
    There is no dispute that Ms Johnstone is presently employed by the State of Queensland.
  1. [6]
    On 11 June 2020, Ms Johnstone was converted, by consent, to permanent part-time employment in the role, working 0.55 FTE, which equates to 41.8 hours per fortnight.
  1. [7]
    That consent conversion took place pursuant to s 149 of the Public Service Act 2008 ('the PS Act') as that section was enacted at that date.
  1. [8]
    There is no dispute that since 11 June 2020, Ms Johnstone has performed hours additional to 41.8 hours in her permanent part-time employment, such that, in effect, Ms Johnstone has continued to work full-time hours. In the main, although not exclusively, that has been because Ms Johnstone has been backfilling for other employees.
  1. [9]
    Presently, Ms Johnstone is to continue performing additional hours, that is above 0.55 FTE so that she is working full-time hours, until 30 January 2022 because she is backfilling for an employee who is on parental leave.
  1. [10]
    On 9 June 2021, Ms Johnstone, by email, made the following request to the Health Service:

I'm emailing to make a request under section 11.7.1 of the Public Health Sector Certified Agreement (No.10) 2019 to maximise my full time hours. Under this provision, part time employees who have worked in excess of their contracted hours may request an amendment of their substantive hours to reflect the hours worked.

My permanent contracted hours are 0.55 FTE. For over 12 months, I have been working on a full time line in the Emergency Department. As I have worked full time hours, I request that my substantive hours be amended to full time.

I am aware that section 11.7.1 states that request such as this must not be unreasonably refused.

  1. [11]
    Clause 11.7 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 ('the certified agreement'), provides:

11.7 Additional Permanent Hours for Part-time Employees

11.7.1 Part-time employees, following approval, may work more than their substantive (contracted) hours on an ad-hoc or temporary basis. Where an employee works more than their substantive (contracted) hours on a regular basis over a twelve (12) month period, the employee may request an amendment to their substantive permanent part-time hours to reflect the increased hours worked. Such requests should not be unreasonably refused.

11.7.2 Any agreed permanent increase to an employee’s substantive part-time hours is limited to a maximum of 64 hours per fortnight for part-time employees employed under the Hospital and Health Service General Employees Award - State 2015, or full-time.

  1. [12]
    By letter dated 7 July 2021, Ms Johnstone was advised by Mr Adam Lavis, Director, Human Resources, Princess Alexandra Hospital, that her request was denied because:

[T]here are genuine operational requirements of the agency that means it is not viable or appropriate to increase your substantive permanent hours at this time. Specifically, there is currently no available FTE to increase your permanent part-time hours. The additional hours you have been completing are a result of you backfilling tenured employees who are on secondment or longterm leave.

  1. [13]
    Following that decision, by letter dated 13 July 2021, Ms Johnstone's union, Together Queensland, Industrial Union of Employees ('Together Queensland'), wrote to the chief executive of the Health Service contending that Ms Johnstone's request had been unreasonably refused and sought that the matter be resolved in accordance with the dispute resolution provisions contained in cl 1.12.5(c) of the certified agreement. In that correspondence, Together Queensland also contended:

Ms Johnstone has been working full time, continuously for two years and has worked full time for approximately 75% of fortnight's in the last 5 years. She has also been employed continuously as a temporary or casual employee since June 2016, and therefore she is also entitled to be reviewed under s 149B of the PS Act within 28 days of the anniversary date. This did not occur.

  1. [14]
    By letter dated 19 July 2021, the chief executive of the Health Service responded to Together Queensland's correspondence confirming the earlier decision not to permanently increase Ms Johnstone's substantive hours.
  1. [15]
    On 22 July 2021, Together Queensland notified of an industrial dispute in relation to the refusal to permanently increase Ms Johnstone's substantive hours.
  1. [16]
    I am informed today that that dispute has been referred to arbitration but, by consent, has been held in abeyance pending determination of the present appeal.
  1. [17]
    On 28 July 2021, Ms Johnstone filed her present appeal.

Ms Johnstone's appeal

  1. [18]
    The decision against which Ms Johnstone appeals is that set out in her notice of appeal.
  1. [19]
    Ms Johnstone contends that since 11 June 2020, when her temporary employment was converted to permanent employment at 0.55 FTE, the remaining 0.45 FTE hours she has worked means that, in respect of those 0.45 FTE hours, she is a fixed term temporary employee within the meaning of s 149B of the PS Act.
  1. [20]
    In turn, Ms Johnstone contends that this means that on the anniversary of her temporary employment by and with the Metro North Hospital and Health Service, on 9 June 2021, the chief executive of Queensland Health had to review her fixed term temporary employment and that if no decision was made within 28 days, then, pursuant to s 149B(7) of the PS Act, the chief executive was taken not to have offered to convert her employment and to continue her employment as a fixed term temporary employee according to the terms of her existing employment.
  1. [21]
    It is that decision, taken to have been made pursuant to s 149B(7) of the PS Act, against which Ms Johnstone appeals.

The Health Service's contentions

  1. [22]
    The Health Service contends that Ms Johnstone's appeal is misconceived.
  1. [23]
    The Health Service contends that Ms Johnstone has worked additional ordinary hours, in addition to her substantive permanent part-time hours, by mutual agreement, in the role in accordance with cl 8.2(c)(i) of the Hospital and Health Services General Employees (Queensland Health) Award - State 2015 ('the Award'). Clause 8.2 of the Award deals with part-time employees and relevantly provides:

8.2 Part-time employment

(c) (i) By mutual agreement with their employer, a part-time employee may elect to work additional ordinary hours above their regular hours, up to and including full-time equivalent hours. The additional hours so worked are to be taken into account in the pro rata calculation of all entitlements.

  1. (ii)
    any such additional hours are to be treated as follows:
  1. (A)
    day workers - additional hours worked within the spread of ordinary hours prescribed at clause 15.3 are to be paid for at the ordinary hourly rate;
  1. (B)
    shift workers - to be paid for at the ordinary hourly rate.
  1. (d)
    Subject to clause 8.2(c) all time worked by a part-time employee in excess of the agreed hours on any one day, or in the case of a day worker, outside the spread of ordinary hours prescribed in clause 15.3, is to be paid at the appropriate overtime rate prescribed in clauses 18.2 or 18.3, as the case may be.
  1. [24]
    It is for this reason that the Health Service contends that the additional hours worked by Ms Johnstone, past 0.55 FTE per fortnight, do not amount to separate fixed term temporary employment within the meaning of s 149B of the PS Act.

Ms Johnstone's contentions

  1. [25]
    Ms Johnstone contends that there are a number of decisions of the Commission which indicate that where a part-time employee's additional hours are worked in the same role as their permanent hours, that will constitute a fixed term temporary engagement within the meaning of s 149B of the PS Act.
  1. [26]
    Those cases are:
  • Amesbury v State of Queensland (Department of Education), (Queensland Industrial Relations Commission, Industrial Commissioner Power dated 22 November 2019);
  • Royle v State of Queensland (Department of Health) [2021] QIRC 142;
  • Benson v State of Queensland (Department of Education) [2021] QIRC 152; and
  • Joshi v State of Queensland (Queensland Health) [2021] QIRC 212.
  1. [27]
    However, on my reading of those cases, the evidence was that there was clearly a separate temporary or fixed term temporary employment arrangement between the relevant agency and the relevant employee such that there was temporary employment or fixed term temporary employment that was capable of review to permanent employment under the relevant provisions of the PS Act.
  1. [28]
    The decision of Industrial Commissioner Power in Amesbury v State of Queensland (Department of Education) was one decided under s 149 of the PS Act prior to the amendments to that Act that had effect from 14 September 2020 and that introduced s 149B of the PS Act. At that time, s 148 of the PS Act provided:

148 Employment of temporary employees

  1. (1)
    To meet temporary circumstances, a chief executive may employ a person as a temporary employee to perform work of a type ordinarily performed by a public service officer other than a chief executive or senior executive.
  1. (2)
    The employment may be-
  1. (a)
    on a temporary basis and full-time or part-time; or
  1. (b)
    on a casual basis.
  1. (3)
    A person employed under this section does not, only because of the employment, become a public service officer.
  1. (4)
    Subsections (1) and (2) are subject to any relevant directive about temporary employees.
  1. [29]
    At paragraph [33] of the decision, Industrial Commissioner Power stated that:
  1. there did not appear to be any prohibition on the chief executive of the Department from offering a tenured part-time public service employee additional work under either s 147 or under s 148 of the PS Act; and
  1. an employee performing additional work pursuant to either of those sections was not prevented from accessing the benefits of the temporary employment directive that applied at that time.
  1. [30]
    The decision in Amesbury v State of Queensland (Department of Education) did not involve the appointment of a person as a health service employee pursuant to s 67 of the Hospital and Health Boards Act 2011.
  1. [31]
    In Royle v State of Queensland (Department of Health)[1] - which, as best as I can make out, involved the appointment of a person as either a health service employee or senior health service employee pursuant to s 67 of the Hospital and Health Boards Act 2011 - it was clear that the employee in that case had two separate employment engagements, one permanent and the other temporary. Indeed, Industrial Commissioner McLennan held that, on the evidence before her (footnotes omitted):

[84] The Appeal Notice filed 17 December 2020 states:

This temporary position was extended on 13 separate occasions by Letter of Offer for a total period of five and a half years until 29 November 2020. The last two extensions have been on a monthly basis.

[85]  The contents of the "13 separate occasions by Letter of Offer" referred to above were not expanded upon and no further evidence was provided in the form of correspondence or a temporary agreement to demonstrate Dr Royle was employed on a fixed term temporary basis. Notwithstanding that, 13 letters of offer further supports the notion the additional 0.25 FTE hours constituted fixed term temporary employment, as those specific hours were clearly not permanent.

[86]  Noting the circumstances surrounding Dr Royle undertaking additional 0.25 FTE hours were clearly intended to be temporary, I accept Dr Royle's contention that she was permanently employed in her 0.5 FTE hours and temporarily employed in her 0.25 FTE hours.

[87]  While it may not be typical, it certainly appears to be the case here that Dr Royle's 0.5 FTE hours position constitutes a permanent engagement and her additional undertaking of 0.25 FTE hours was a separate engagement of a distinctly temporary nature.

  1. [32]
    In Benson v State of Queensland (Department of Education),[2] the employee was employed under temporary employment contracts for the performance of two different roles at a State primary school. The evidence and position of the Department of Education in that case were clearly set out by Industrial Commissioner McLennan, where the Industrial Commissioner stated:

[76] For over three years the Department was content to concurrently employ Ms Benson on two temporary employment contracts for the performance of two different roles at SPSS. The Department has accepted that "the employee holds two different employee numbers for the two roles." Those two contracts are unarguably separate and distinct.

[77] It is also not disputed that Ms Benson received a decision on 18 November 2020 to convert her temporary Teacher Aide role to permanent. Further, the Department submitted that "The decision on the 18 November 2020 did not alter the status of the Appellant's temporary Administration Officer role." Having accepted that Ms Benson remained on a temporary employment contract, it follows that she remains open to have that status reviewed under s 149B in the usual course.[3]

  1. [33]
    The decision in Benson v State of Queensland (Department of Education) did not involve the appointment of a person as a health service employee pursuant to s 67 of the Hospital and Health Boards Act 2011.
  1. [34]
    In Joshi v State of Queensland (Queensland Health),[4] again, as best as I can make out, that decision involved the appointment of a person as a health service employee or senior health service employee pursuant to s 67 of the Hospital and Health Boards Act 2011. The employee had two contracts of employment, one being permanent and the other being fixed term temporary. In that case, the evidence and position of Queensland Health were clearly set out by Industrial Commissioner McLennan, where the Industrial Commissioner stated:

[42] In my view, s 147(2)(a) properly means that for any particular engagement an employee may either be on tenure or fixed term temporary or casual (but that a combination of these is not permitted within the one engagement). This interpretation does not deny the reality that many Queensland public service workers are engaged on separate and concurrent contracts.

[43]  The fact remains that Dr Joshi's employment with GCHHS [Gold Coast Hospital and Health Service] in his 0.5 FTE hours was certainly 'permanent', whilst the undertaking of the additional fixed term temporary contract for 0.5 FTE hours with Children's HHS [Children's Health Queensland Hospital and Health Service] was not. The two employment contracts constituted separate and distinct engagements.

[44]  The decision letter dated 12 March 2021 identified that the pre-existing tenured employment arrangement with GCHHS was the precise reason why it was determined Dr Joshi was not eligible for review in his fixed term temporary engagement with Children's HHS. See excerpt at paragraph [6]. Mr Wood's decision was based on an errored interpretation of the relevant provisions of the PS Act and TE Directive.

  1. [35]
    In this appeal, the onus is on Ms Johnstone to demonstrate that the additional hours she works outside her permanent part-time hours, that is outside 0.55 FTE or above 41.8 hours per fortnight, in her role in the Emergency Department was performed as a fixed term temporary employee within the meaning of s 149B of the PS Act.
  1. [36]
    Mr Goldman of Together Queensland, on behalf of Ms Johnstone, contends that:
  1. where a temporary part-time employee agrees to work hours additional to their agreed regular hours on a temporary basis, they remain engaged under s 67(4)(c) of the Hospital and Health Boards Act 2011 and the hours of their temporary engagement are amended;
  1. where a permanent part-time employee is offered and agrees to increase the hours permanently then they remain engaged on tenure under s 67(4)(a) of the Hospital and Health Boards Act 2011 and their permanent hours in this engagement are amended; and
  1. where a permanent part-time employee is offered, and agrees to undertake additional temporary hours beyond their permanent engagement, they remain engaged under s 67(4)(a) of the Hospital and Health Boards Act 2011, for the hours for which they are permanently engaged and they are also engaged under s 67(4)(c) of the Hospital and Health Boards Act 2011.
  1. [37]
    Mr Goldman submits these contentions, and I assume, in particular, the very last contention to which I have referred, are supported by the four public service appeal decisions referred to earlier in these reasons.

The relevant legislative provisions

  1. [38]
    I have referred earlier to s 67 of the Hospital and Health Boards Act 2011.
  1. [39]
    Section 66 of the Hospital and Health Boards Act 2011 provides:

66 Conditions of employment

  1. (1)
    The conditions of employment for a health service employee, other than for a health executive or a senior health service employee, are governed by-
  1. (a)
    this Act; and
  1. (b)
    the Industrial Relations Act 2016; and
  1. (c)
    the applied Public Service law; and
  1. (d)
    an industrial instrument that applies to the employee; and
  1. (e)
    health employment directives; and
  1. (f)
    if the employee is appointed on a contract for a fixed term-the employee’s contract.
  1. [40]
    The dictionary to the Hospital and Health Boards Act 2011 exhaustively defines the phrase, the 'applied Public Service law' as follows:

applied Public Service law, for a health service employee, means the following that are applied to the employee under a regulation under the Public Service Act 2008, section 23-

  1. (a)
    a provision of the Public Service Act 2008;
  1. (b)
    a directive issued under that Act.
  1. [41]
    The Public Service Regulation 2018 ('the PS Regulation') is such a regulation. The combined effect of s 3(1) and sch 3, item 4(f) of the PS Regulation is that ss 149, 149A, 149B and 149C of the PS Act apply to health service employees.
  1. [42]
    By virtue of the combined effect of ss 21, 22 and 23 of the PS Act, and s 3(1) and sch 3, item 5(k) of the PS Regulation, Directive 09/20 Fixed term temporary employment ('the Directive') applies to health service employees.
  1. [43]
    Clause 5.2 of the Directive relevantly provides:

5.  Fixed term temporary employee rights and responsibilities

5.2  An agency must ensure that fixed term temporary employees are provided with:

  1. (a)
    access to flexible working arrangements in accordance with the relevant industrial instruments, and
  1. (b)
    a written notice of engagement for each separate period of engagement, including engagements which extend beyond the end date of the original engagement.
  1. [44]
    The dictionary to the PS Act defines the phrase 'fixed term temporary employee' by reference back to s 148(1) of the PS Act. However, for the reasons given above, s 148 of the PS Act does not apply to a health service employee.
  1. [45]
    For Ms Johnstone to be a fixed term temporary employee within the meaning of s 149B of the PS Act (and thus, as she contends, for the mandatory requirement for the chief executive of Queensland Health to review her fixed term temporary employment on the anniversary of her temporary employment by the Metro North Hospital and Health Service - being 9 June 2021), it seems to me that she must have been appointed either on a contract for a fixed term within the meaning of s 67(4)(b) of the Hospital and Health Boards Act 2011 or (as Ms Johnstone asserts and as is more likely) as a temporary employee within the meaning of s 67(4)(c) of the Hospital and Health Boards Act 2011.
  1. [46]
    Assuming, without deciding, that Ms Johnstone's employment with Metro North Hospital and Health Service from 9 June 2016 was the commencement of her temporary employment for the purposes of s 149B of the PS Act, in my view, such an appointment on a temporary basis as is contended by Ms Johnstone:
  • must have continued from 13 November 2017, when she commenced temporary employment with the Health Service, and with no change to such a temporary appointment in the role, to when she was made a permanent part-time employee on 11 June 2020; or
  • must have been made as from 11 June 2020, when she was made a permanent parttime employee.
  1. [47]
    In my view, there is no evidence that tends to prove either of these situations.
  1. [48]
    There are a number of reasons for this view.
  1. [49]
    First, by her consent to convert her temporary full-time employment to permanent parttime employment as from 11 June 2020, it seems to me that Ms Johnstone was agreeing to relinquish her temporary employment in the role.
  1. [50]
    Secondly, there is no evidence of a separate temporary employment contract or engagement, to work in the role for 0.45 FTE, being maintained by Ms Johnstone and the Health Service since 11 June 2020.
  1. [51]
    Similarly, there is no evidence of a separate temporary employment contract or engagement, to work in the role for 0.45 FTE, being entered into between Ms Johnstone and the Health Service as from 11 June 2020.
  1. [52]
    The Queensland Health timeline, which is attachment 5 to Ms Johnstone's submissions, is not evidence of these matters. There is no evidence of any formalities of Ms Johnstone's continued, or new appointment, as a fixed term employee or temporary employee in the role, continuing from before 11 June 2020 or starting from 11 June 2020.
  1. [53]
    Thirdly, having regard to the first two reasons I have just given, it seems to me to be logical and plausible that Ms Johnstone's additional hours in the position are performed by mutual agreement as contemplated in cl 8.2(c) of the Award and as contemplated in cl 11.7.1 of the certified agreement.
  1. [54]
    Indeed, the second last page of attachment 1 to the submissions of Queensland Health is the email to the Health Service, dated 9 June 2021, by which Ms Johnstone requests an amendment to her substantive part-time hours to reflect the increased hours she has been working. In that email, Ms Johnstone states that under cl 11.7.1 of the certified agreement: '… part time employees who have worked in excess of their contracted hours may request an amendment of their substantive hours to reflect the hours worked.'
  1. [55]
    This seems to be a recognition by Ms Johnstone that the work she was performing in the position beyond 41.8 hours per fortnight was not undertaken pursuant to a temporary appointment to work those hours, but was in excess of her permanent part-time contracted hours.
  1. [56]
    Fourthly, for the reasons I have given above, I cannot accept the last of the three contentions as asserted by Mr Goldman (referred to earlier in these reasons) in respect of the facts of Ms Johnstone's employment.
  1. [57]
    Putting aside the question of law as to whether the chief executive, pursuant to s 67(4) of the Hospital and Health Boards Act 2011, may appoint a health service employee to perform work in one position on tenure (pursuant to s 67(4)(a) of the Hospital and Health Boards Act 2011) and also to perform work in the same position on a temporary basis (pursuant to s 67(4)(c) of the Hospital and Health Boards Act 2011), there is no evidence of an express agreement between the Health Service and Ms Johnstone whereby, from 11 June 2020, she worked as a temporary employee within the meaning of s 67(4)(c) of the Hospital and Health Boards Act 2011 in respect of the hours she worked in addition to 0.55 FTE in the role.
  1. [58]
    Although it is not necessary for me to make a final determination about this in the absence of full argument by both parties, on the plain reading of s 67(4) of the Hospital and Health Boards Act 2011, it may be open to conclude that a chief executive may appoint a person as a health service employee to one position on only one of the bases referred to in that subsection.
  1. [59]
    Mr Goldman highlights part of the letter of the chief executive of the Health Service to Together Queensland dated 19 July 2021, where the chief executive states that Ms Johnstone's working hours, in addition to her permanent part-time hours, has been in accordance with s 148 of the PS Act. I am not bound by the chief executive's characterisation of that employment and it is not supported by any evidence before me.
  1. [60]
    For these reasons, I accept the Health Service's submissions, that the additional hours being performed by Ms Johnstone since 11 June 2020, when she agreed to be converted to permanent part-time employment at 0.55 FTE, was and is undertaken pursuant to cl 8.2 of the Award.
  1. [61]
    Ms Johnstone is not a fixed term temporary employee within the meaning of s 149B of the PS Act. There can be no relevant decision taken to have been made pursuant to s 149(7) of the PS Act within 28 days of 9 June 2021, the consequence of which is that there is no decision which can be appealed within the meaning of s 194(1)(e)(i) of the PS Act.
  1. [62]
    Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, I decide not to hear Ms Johnstone's public service appeal because it is misconceived.
  1. [63]
    I make the following order:

Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016, the Commission decides not to hear the appeal because it is misconceived.

Footnotes

[1] [2021] QIRC 142.

[2] [2021] QIRC 152.

[3] Footnotes omitted.

[4] [2021] QIRC 212.

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Editorial Notes

  • Published Case Name:

    Johnstone v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Johnstone v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 433

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    02 Dec 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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