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Scowcroft v State of Queensland (Queensland Health)[2021] QIRC 434

Scowcroft v State of Queensland (Queensland Health)[2021] QIRC 434

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434

PARTIES:

Scowcroft, Luke

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/366

PROCEEDING:

Public Service Appeal - Conversion of casual employment

DELIVERED ON:

3 December 2021

HEARING DATE:

3 December 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 9 November 2021 and 26 November 2021 and Respondent's written submissions filed on 23 November 2021

ORDERS:

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

CATCHWORDS:

PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – appellant employed on a casual basis in the position of Operational Services Officer, classification OO2, at the Hervey Bay Hospital – appellant made request, pursuant to s 149B of the Public Service Act 2008, to have his casual employment converted to permanent employment – no decision made by respondent's chief executive within 28 days of the request – chief executive taken to have decided not to offer to convert appellant's casual employment and to continue appellant's employment as a casual employee – appeal against decision – whether decision was fair and reasonable – whether there is a continuing need for someone to be employed in the appellant's role, or a role that is substantially the same as the appellant's role – whether appellant is eligible for appointment having regard to the merit principle – whether it was or was not viable or appropriate to offer to convert appellant's casual employment to permanent employment having regard to the genuine operational requirements of the department – not viable or appropriate to offer to convert appellant's casual employment to permanent employment having regard to the genuine operational requirements of the department, namely, a proposed restructuring of work unit in which the appellant is employed – decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

Industrial Relations Act 2016, s 562C

Public Service Act 2008, s 27, s 149, s 149A and s 149B

Queensland Public Health Sector Certified Agreement (No. 10) (EB 10), cl 11.5

CASES:

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

APPEARANCES:

Mr D. Marr, Mr A. Santelises, Mr B. Ufer and Ms C. Bullas of The Australian Workers' Union of Employees, Queensland for the Appellant.

Ms M. Harvey, Ms G. Upson and Mr G. Cropley of the Respondent.

Reasons for Decision (ex tempore)

Introduction

  1. [1]
    Mr Luke Scowcroft is employed as an Operational Services Officer at the Hervey Bay Hospital ('the hospital'). The hospital is part of the Wide Bay Hospital and Health Service ('the Health Service'). The classification of Mr Scowcroft's position is OO2. Mr Scowcroft is currently employed on a casual basis. Mr Scowcroft has been employed on a casual basis since 15 July 2019 and is employed by the State of Queensland through Queensland Health ('the Department').
  1. [2]
    By email dated 2 September 2021, Mr Scowcroft's trade union, The Australian Workers' Union of Employees, Queensland ('the AWU'), made application to the Health Service for Mr Scowcroft's casual employment to be converted to permanent employment, pursuant to s 149 of the Public Service Act 2008 ('the PS Act').
  1. [3]
    Because no decision was made by the chief executive of the Department within 28 days of the receipt by the Health Service of that request, then, pursuant to s 149A(5) of the PS Act, the chief executive was taken to have decided not to offer to convert Mr Scowcroft's casual employment to permanent employment and to continue Mr Scowcroft's employment as a casual employee according to the terms of his existing employment.
  1. [4]
    By appeal notice filed on 18 October 2021, Mr Scowcroft appeals against the decision taken to have been made pursuant to s 149A(5) of the PS Act.
  1. [5]
    It is not in dispute that by letter, also dated 18 October 2021, the chief executive of the Health Service did give written reasons to Mr Scowcroft as to why he was not converted to permanent employment.
  1. [6]
    The Department does not contend that Mr Scowcroft's appeal is incompetent.
  1. [7]
    In his appeal notice, Mr Scowcroft contends that there was a genuine reason to convert him to permanent employment because:
  • there is a continuing need for someone to be employed in his role, or a role that is substantially the same as his role; and
  • he meets the merit principle required under s 27 of the PS Act.
  1. [8]
    In its letter dated 18 October 2021, the Health Service stated that while Mr Scowcroft had demonstrated merit and there was a continuing need for him to fill the role or a role that is substantially the same, there were genuine operational requirements of the Department that meant it was not viable or appropriate to convert him to permanent employment at that time.
  1. [9]
    Relevantly, in that letter, the Health Service stated:

Specifically, Operational Services, Hervey Bay Hospital, is currently undergoing a significant workforce change and your role is one of a group identified as being impacted by this change, as evidenced in the consultation document that [sic] provided to the Australian Workers' Union (AWU) on Friday, 1 October 2021, [sic] has been circulated to all staff of this work area, and is still undergoing consultation.

  1. [10]
    The question for my determination is whether the decision taken to have been made was fair and reasonable.
  1. [11]
    The Health Service annexed to its submissions a document entitled 'Business Case for Change, Proposed Restructure of Security and Porterage Services, Hervey Bay Hospital, Wide Bay Hospital and Health Service'. The document provided an overview of the business case for the proposed implementation of dedicated Security Services at Hervey Bay Hospital ('the proposed restructure').
  1. [12]
    I did not understand Mr Scowcroft, or the AWU, to contest that document was the consultation document referred to in the Health Service's letter dated 18 October 2021 referred to earlier in these reasons. From the submissions made to me today by the AWU, while the AWU does not agree with what is being proposed by the Health Service in the proposed restructure, there was no contention by the AWU, on behalf of Mr Scowcroft, that the proposed restructure was not being genuinely pursued by the Health Service.
  1. [13]
    The Department does not dispute that there is a continuing need for someone to be employed in Mr Scowcroft's role or a role that is substantially the same as his and that he has demonstrated the requisite merit within the meaning of s 149A(2)(a) of the PS Act.
  1. [14]
    Having regard to the submissions made by the parties today, the material question for my determination is whether the decision was fair and reasonable in respect of whether it was or was not viable or appropriate to appoint Mr Scowcroft as a general employee on tenure or as a public service officer, due to the operational requirements of the Department, namely, the proposed restructure.
  1. [15]
    There is no dispute that Mr Scowcroft is presently engaged in a small pool of casual staff to backfill for employees who are on leave.
  1. [16]
    Mr Marr, on behalf of the AWU, in further written submissions filed on 9 November 2021, submitted that given that no particulars had been provided by the Department (in the later written reasons dated 18 October 2021) as to why Mr Scowcroft's conversion application had been denied, the Department's failure to give proper reasons renders the decision not to convert Mr Scowcroft to permanent employment to be unreasonable.
  1. [17]
    However, the Department submits that the genuine operational requirements against the conversion of Mr Scowcroft's employment to permanent employment is the proposed restructure referred to earlier in these reasons and '… the Appellant in this case is engaged within a role that has been identified as one that will be impacted by an organisational change that is currently undergoing consultation with staff and the relevant unions'.
  1. [18]
    The Department submitted that the consultation document:
  • is about the proposed restructure to remove an outdated and inefficient 'hybrid' roster system which encompasses the 'dual role' of Operational Services Officers at the OO3 classification, who act as both Wardspersons, normally a OO2 classification, and Fire Safety and Security Officers, normally a OO3 classification; and
  • refers to a proposal to introduce a new continuous shift roster pattern, abolish the hybrid dual role OO3 classification positions and replace those positions with distinct Fire Safety and Security Officers, classification OO3, and Porters at the OO2 classification.
  1. [19]
    In the proposed restructure, the current 5.63 FTE OO2 classification establishment would be increased to 20.23 FTE.
  1. [20]
    The Department submits that should the organisational change consultation process be finalised and the proposed changes occur, new permanent vacancies at the OO2 classification level will be created which, having regard to cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) (EB 10) ('the certified agreement'), will be filled on a closed merit selection basis.
  1. [21]
    The Department further submitted that Mr Scowcroft is but one of a number of temporary and casual employees who will require consideration in the event the organisational change process is finalised and the proposed change implemented.
  1. [22]
    The Department, in its written submissions, then stated:
  1. The Respondent submits that it is currently undergoing significant organisational changes within Operational Services at Hervey Bay Hospital and until the organisational change consultation process is finalised, it is not yet determined whether there may be changes to the current proposal, and therefore the determination of future operational requirements and the effect on the Respondent establishment is not yet known, including determination of ongoing staffing needs in accordance with the proposed new rostering arrangements and taking into account any surplus staffing that will need to be absorbed.
  2. The Respondent therefore submits that it is a genuine operational requirement of the WBHHS to finalise the consultation process and implement the proposed changes, prior to determining its capacity to appoint permanently to an affected position through either section 11.5 of EB10 or through a conversion process.
  1. [23]
    In reply, Mr Marr, on behalf of Mr Scowcroft, relevantly submitted, correctly in my view, that compliance with cl 11.5 of the certified agreement and the conversion of a casual employee pursuant to Directive 08/20 Casual employment are completely separate processes and a vacant full-time position should not be filled and utilised as a means to convert an employee under that Directive.
  1. [24]
    In its written submissions and in answer to questions from me, Ms Harvey and Mr Upson, on behalf of the Health Service, made submissions about the efficacy of the proposed restructure, and how vacancies at the OO2 classification, being Mr Scowcroft's classification, would be filled if the proposed restructure was implemented. It was conceded that the proposed restructure may or may not be implemented, or that it may be implemented in another form to that as currently proposed and that Mr Scowcroft may or may not be permanently appointed as a result of the implementation of any restructure.
  1. [25]
    Submissions were also made on behalf of Mr Scowcroft by Ms Bullas of the AWU about, from the AWU's point of view, the efficacy of the proposed restructure, whether or not the AWU agrees with the proposed restructure, which I am led to believe it does not, and other vacancies to which Mr Scowcroft could have been permanently appointed.
  1. [26]
    I make the point that the jurisdiction I am exercising today is not to arbitrate a dispute or disputes between the AWU and the Health Service about the proposed restructure or matters related to it, including any past opportunities for Mr Scowcroft to be permanently appointed. My power is limited to whether the decision taken to have been made pursuant to s 149A(5) of the PS Act, not to offer to convert Mr Scowcroft's casual employment to permanent employment, was fair and reasonable.
  1. [27]
    In Morison v State of Queensland (Department of Child Safety, Youth and Women),[1] I relevantly stated:
  1. [37]
    The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
  2. [38]
    The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.[2]
  1. [28]
    The issues in this matter are finely balanced.
  1. [29]
    I have significant sympathy for Mr Scowcroft given the length of time he has been employed as a casual employee.
  1. [30]
    Clearly, since July 2019, Mr Scowcroft has been employed on a regular and systematic basis as a casual employee. I have been informed today by Mr Marr, and it is not disputed by Ms Harvey, that Mr Scowcroft has been employed as a casual employee on an average of 42 hours per fortnight since July 2019. The genuine operational requirements cited by the Department against the permanent employment of Mr Scowcroft is the proposed restructure. Yet, it is speculative as to whether the proposed restructure will be implemented, in what form it may ultimately be implemented, and of course, whether or not permanent employment would be the result for Mr Scowcroft upon whatever restructure was in fact implemented.
  1. [31]
    However, the speculative nature of the proposed restructure, and its effect on Mr Scowcroft, I think, misses the point of what I have to determine.
  1. [32]
    The question I have to determine is whether, at the time of the decision taken to have been made pursuant to s 149A(5) of the PS Act, it was or was not viable or appropriate to offer to convert Mr Scowcroft's employment to permanent employment having regard to the genuine operational requirements of the Department.
  1. [33]
    It seems to me that the Health Service was and is genuinely considering the structure in which it may employ Operational Services Employees, classification OO2, including Mr Scowcroft, at the Hervey Bay Hospital.
  1. [34]
    Presently, Mr Scowcroft is employed on a casual basis, principally, to relieve other employees who take leave. That certainly seems to be borne out by attachment 'WB01' to the Department's submissions. Mr Scowcroft wishes to be employed on a permanent basis.
  1. [35]
    However, in respect of its management of Operational Services at the Hervey Bay Hospital, the Health Service is not presently certain as to the number of permanent Operational Services Employees, classification OO2, it will genuinely require. That is to say, Mr Scowcroft wishes to be employed on a permanent basis at a time when the Health Service is genuinely considering how it will structure its employees and Operational Services, including employees permanently employed in positions classified at OO2.
  1. [36]
    As I stated earlier, whilst the AWU (and presumably Mr Scowcroft) and the Health Service do not necessarily agree in relation to the efficacy of the restructure as presently proposed, there is no dispute that the Health Service is genuinely reviewing the structure of Operational Services at the Hervey Bay Hospital.
  1. [37]
    For these reasons, in my view, there was a genuine operational requirement against the permanent appointment of Mr Scowcroft at the date of the decision taken to have been made pursuant to s 149B(5) of the PS Act.
  1. [38]
    For these reasons, my opinion is that the deemed decision that it was not viable or appropriate to offer to convert Mr Scowcroft's employment basis to employment as a general employee on tenure or as a public service officer, having regard to the genuine operational requirements of the Department, was fair and reasonable.
  1. [39]
    I make the following order:

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

Footnotes

[1] [2020] QIRC 203.

[2] Footnotes omitted.

Close

Editorial Notes

  • Published Case Name:

    Scowcroft v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Scowcroft v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 434

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    03 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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