McAllister v State of Queensland (Queensland Health)
[2021] QIRC 435
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- McAllister v State of Queensland (Queensland Health)[2021] QIRC 435
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McAllister v State of Queensland (Queensland Health)[2021] QIRC 435
McAllister v State of Queensland (Queensland Health)[2021] QIRC 435
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McAllister v State of Queensland (Queensland Health) [2021] QIRC 435 |
PARTIES: | McAllister, Mark (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/386 |
PROCEEDING: | Public Service Appeal - Conversion of fixed term temporary employment |
DELIVERED ON: | 9 December 2021 |
HEARING DATE: | 9 December 2021 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 22 November 2021 and Respondent's written submissions filed on 29 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 fixed term temporary basis in the position of Operational Support Officer, classification OO2, at the Richlands Distribution Centre operated by the respondent – appellant's representative made request, pursuant to s 149B of the Public Service Act 2008, to have appellant's fixed term temporary 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 fixed term temporary employment – appeal against decision – whether decision 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 – decision fair and reasonable – decision appealed against confirmed |
LEGISLATION: | Industrial Relations Act 2016, s 539, s 562C and s 564 Public Service Act 2008, s 25, s 26, s 149, s 149A, and s 149B |
CASES: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Pienaar v State of Queensland (Queensland Health) [2021] QIRC 326 Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 311 |
APPEARANCES: | Mr G. Taylor of The Australian Workers' Union of Employees, Queensland for the Appellant. Ms T. O'Connor of the Respondent. |
Reasons for Decision (ex tempore)
- [1]Mr Mark McAllister is currently employed as an Operational Support Officer, classification OO2, at the Richlands Distribution Centre which is a facility operated by Queensland Health ('the Department').
- [2]The Department asserts in its written submissions that, presently, Mr McAllister is employed in the role of Supply Officer COVID Temporary. It was disputed, on behalf of Mr McAllister, that that was the title of his present role, although it was not disputed that during the time of Mr McAllister's fixed term temporary employment in the position of Operational Support Officer, Mr McAllister worked in different roles. In the end, for reasons which I will give later, I do not think the exact title of the role in which Mr McAllister is currently working is determinative of his appeal.
- [3]There is no dispute that Mr McAllister's present role is that of temporary Supply Officer ('the role').
- [4]Mr McAllister commenced employment at the Richland's Distribution Centre on 9 September 2019. However, the Department submitted, and it was not disputed by or on behalf of Mr McAllister, that on that same day, Mr McAllister was offered fixed term temporary employment, and that he accepted that offer.
- [5]Having regard to the sixth annexure to the Department's submissions, it seems that Mr McAllister, since 9 September 2019, has performed three roles that the Department considers are the same or similar and, since that time, he has had 17 fixed term temporary contracts of employment.
- [6]By email dated 20 September 2021, Mr McAllister's union, The Australian Workers' Union of Employees, Queensland ('the AWU') requested, on behalf of Mr McAllister, that his employment be converted from fixed term temporary to permanent. While that request was made pursuant to Directive 08/17 Temporary employment, which, at that time, had been replaced by Directive 09/20 Fixed term temporary employment ('the Directive'), it is common ground that the request made on behalf of Mr McAllister was made pursuant to s 149B of the Public Service Act 2008 ('the PS Act').
- [7]No decision was made by the chief executive officer of the Department in response to the request within 28 days of the request being received. Consequently, pursuant to s 149B(7) of the PS Act, the chief executive was taken to have decided not to offer to convert Mr McAllister's fixed term temporary employment to permanent and to continue Mr McAllister's employment as a fixed term temporary employee according to the terms of his existing employment ('the decision').
- [8]By appeal notice filed on 9 November 2021, Mr McAllister appealed against the decision. The appeal was framed as an appeal against a decision not to convert Mr McAllister's casual employment to permanent employment. As a matter of fact, that was wrong and was a defect in his appeal notice. Pursuant to s 539(e) of the Industrial Relations Act 2016, I granted leave for Mr McAllister to amend his appeal notice to remedy that defect so that his appeal was one framed as an appeal against a decision not to convert his fixed term temporary employment to permanent. I made that decision on the basis that there was no opposition, by the Department, to such an amendment.
- [9]It was also the case that Mr McAllister's appeal was filed one day out of time. Pursuant to s 564(2) of the Industrial Relations Act 2016, I allowed Mr McAllister to start his appeal within a longer period, namely, on 9 November 2021. I exercised that discretion on the basis that his appeal was only filed one day out of time and that, given the Department had filed submissions that went to the merits of Mr McAllister's appeal, there was, in practice, no prejudice to the Department in the exercise of the discretion to allow Mr McAllister to start his appeal within that longer period.
- [10]There was and is no other contention advanced by the Department that Mr McAllister's appeal is not competent.
- [11]It is common ground that Mr McAllister can appeal against a decision taken to have been made pursuant to s 149B(7) of the PS Act.
- [12]The question for my determination is whether the decision was fair and reasonable.[1]
Mr McAllister's submissions
- [13]Mr Taylor of the AWU, as agent for Mr McAllister, submitted, in support of the contention that the decision was not fair and reasonable, that:
- having regard to s 149A(2)(a)(i) of the PS Act, there must be a continuing need for someone to be employed in Mr McAllister's role, or a role that is substantially the same as Mr McAllister's role; and
- having regard to s 149A(2)(a)(ii) of the PS Act, Mr McAllister must be eligible for appointment having regard to the merit principle.
- [14]It was submitted on behalf of Mr McAllister that there was a continuing need for him to be employed in the role he has been occupying. It was submitted that the evidence demonstrating that fact was Mr McAllister's consistent hours of work for the duration of his employment with the State of Queensland. In that regard, reference was made to Mr McAllister's payslips which, by way of a summary annexed to his submissions, showed that in the 56 fortnights that Mr McAllister had been employed on a fixed term temporary basis:
- on only nine of those fortnights, he had worked less than 60 hours per fortnight;
- on 33 of those fortnights, he had worked more than 60 but less than 76 hours per fortnight; and
- on the remaining 14 fortnights, he had worked 76 hours per fortnight.
- [15]In fact, the Department submitted that Mr McAllister had been employed, on a fixed term temporary basis, to work 80 hours per fortnight such that he participated in a rostered day off scheme, where he had one rostered day off every 19 days and was rostered off on public holidays. Upon my enquiry, that assertion by the Department was not disputed by Mr McAllister. It seems to be the case that, having regard to the payslips annexed to Mr McAllister's submissions, he was working hours in respect of which he accrued time to avail himself of a rostered day off. For these reasons, I accept that Mr McAllister, during the time of his fixed term temporary employment, was working 80 hours per fortnight.
- [16]It was further submitted that there was no issue in respect of Mr McAllister's merit in respect of him being converted to permanent employment.
- [17]In addition, it was submitted that given the fact that there was no reasoned decision made in response to the request, the decision could not be fair and reasonable. In support of that submission, Mr Taylor cited the decision of Industrial Commissioner Dwyer in Singh v State of Queensland (Public Safety Business Agency) ('Singh'),[2] namely, that where no reasons are given and there is an absence of explanation for no reasons being given by the agency, that will tend to unfairness.[3] Mr Taylor also referred to the decision of Industrial Commissioner Power in Pienaar v State of Queensland (Queensland Health),[4] namely, that the written decision, the subject of that appeal, did not give adequate reasons such that the appellant in that case could not understand why the decision was made.[5]
- [18]It was for these reasons that it was submitted by Mr Taylor, on behalf of Mr McAllister, that Mr McAllister should be converted to permanent employment.
- [19]Upon my enquiry, it was confirmed that the decision sought was that Mr McAllister be converted to full-time permanent employment in the role.
The Department's submissions
- [20]Ms O'Connor, on behalf of the Department, submitted that the Department:
- has an obligation and responsibility, pursuant to s 25 and s 26 of the PS Act to:
- – provide a responsive, effective and efficient service to the community;
- – ensure the effective, efficient and appropriate use of public resources; and
- – manage public resources efficiently, responsibly and in an accountable way;
- in order to meet its statutory obligations and responsibilities, had been reviewing and setting the strategies regarding the supply chain services provided to hospitals within the Department;
- had introduced efficiencies, including adopting a centralised digital system, known as "S/4Hana", for purchasing, ordering and distributing supplies across the Department and was building and commissioning new warehouses in Cairns and Rockhampton;
- on 12 November 2021, announced that an agreement had been confirmed regarding a new distribution centre to be commissioned adjacent to the Richlands Distribution Centre where Mr McAllister works; and
- throughout the 28 day review period from 20 September 2021, being the day of the request, was (and is still) considering the scope and operation of the new distribution centre in accordance with its statutory obligations and requirements.
- [21]In submissions today, Ms O'Connor, on behalf of the Department, informed me that on 12 November 2021, the lease agreement for the new distribution centre had been executed on behalf of the Department. Ms O'Connor further informed me that the current distribution centre in which Mr McAllister is employed will continue operations until the new distribution centre is commissioned, at which time the current distribution centre will cease operations.
- [22]It was also submitted by the Department that the decision, pursuant to s 149B(7) of the PS Act, arose because the Department was unable to finalise the planning of operations with regard to the new distribution centre within that 28 day period following the request.
- [23]The Department then submitted that despite Mr McAllister meeting the merit requirements to be appointed to the role, there will be no continuing need for Mr McAllister's role, being that of Supply Officer COVID Temporary, beyond the expiry date of his current fixed term temporary employment contract which is 23 January 2022; and that from that time (assuming there is agreement by Mr McAllister), he would be employed as a casual employee.
- [24]The Department further submitted that:
- it was appropriate to engage Mr McAllister on fixed-term temporary employment contracts as the Richlands Distribution Centre had experienced two unique and unexpected increases in demand that necessitated an increase to the Department's contingency labour;
- the increase in contingency labour was undertaken after consultation and agreement with the AWU;
- on 16 July 2019, the Department advertised to increase its contingency labour of Supply Officers to address a sudden and significant increase in demand due to the implementation of S/4Hana;
- the AWU had been consulted and agreed with the use of contingency labour by way of casual and fixed term temporary employment;
- Mr McAllister commenced casual employment as a Supply Officer on 9 September 2019, however, due to genuine operational requirements, he was offered and accepted a fixed term temporary contract on that day;
- the requirement for contingency labour began to abate in early 2020, however, another extraordinary and significant increase in demand occurred arising out of the COVID-19 pandemic;
- at that time, the Department chose to address the increased demand by utilising the existing contingency labour, which had been engaged following the S/4Hana implementation;
- the Department's utilisation of contingency labour to address the extraordinary and exceptional increase in demands in 2019 and 2020 is demonstrated in the number of advertisements for casual and fixed-term Supply Officers;
- the increase in demand has subsided, and the requirement of contingency labour is reducing such that the reasons for Mr McAllister's initial and ongoing employment is abating;
- during the review period, it determined that the existing permanent establishment will be sufficient to efficiently manage operations at the new distribution centre; and
- while there may be future increase in demand, contingency labour will address any increase in accordance with the Directive and in consultation with the AWU.
- [25]It is for these reasons that the Department submits that, inconsistently with its earlier submissions, it is not viable or appropriate to permanently appoint Mr McAllister having regard to its genuine operational requirements.
The decision was fair and reasonable
- [26]I have taken note of Mr Taylor's submission about what was said by Industrial Commissioner Dwyer in Singh. However, it seems to me, that the Department has provided an explanation of sorts for not providing written reasons in response to Mr McAllister's request, namely, its uncertainty around the scope and operation of the new distribution centre and the related uncertainty about its need for temporary labour in respect of the new distribution centre. That is to say, the fact that no reasons were given in response to Mr McAllister's request does not, on its own, mean that the decision was not fair and reasonable.
- [27]The seventh attachment to the Department's submissions is a list containing reference numbers, position titles, and dates of advertisement of various temporary and casual Supply Officer positions for the Richlands Distribution Centre as from 31 July 2014.
- [28]That attachment was not disputed by or on behalf of Mr McAllister.
- [29]That attachment certainly shows a sharp spike in advertisements for Supply Officer positions since July 2019. It is evidence that tends to support the Department's submission that, since that time, it has used contingency labour in response to increased demand and, in addition, in response to the effects of the COVID-19 pandemic.
- [30]Therefore, that is evidence that tends to support the Department's overall submission that there is a genuine operational requirement against the permanent appointment of Mr McAllister. That is to say, the reason for Mr McAllister's fixed term temporary employment from 2019 was to provide labour, in respect of the Richlands Distribution Centre, to meet the increasing demand experienced since that time.
- [31]The Department now submits, and was not disputed by or on behalf of Mr McAllister, that such demand has abated and the requirement for its contingency labour (casual or temporary) is reducing such that the reasons for Mr McAllister's fixed term temporary employment is abating. Further, the Department submits that it has determined that the existing permanent establishment will be sufficient to efficiently manage the new distribution centre.
- [32]While it is true, as referred to earlier in these reasons, that Mr McAllister has been consistently employed on a full-time temporary basis, that is not, on its own, sufficient for me to determine that the decision taken to have been made pursuant to s 149B(7) of the PS Act was not fair and reasonable.
- [33]It seems to me that the Department does not discount that there may be a future increase in demand such that there may be a continuing need for someone to be employed in Mr McAllister's role or a role that is substantially the same, namely, on a fixed term temporary basis. However, s 149B(2)(a)(i) of the PS Act provides that the chief executive must consider that 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; not that there may be such a need.
- [34]In addition, it seems to me there is force in the submission made by the Department that because the increased demand, that resulted in the fixed term temporary employment of Mr McAllister, has abated and an operational decision has been made that the Department can, into the future, manage its distribution operations with permanent existing staff, those reasons amount to a genuine operational requirement against the permanent appointment of Mr McAllister.
- [35]For these reasons, my opinion is that in respect of the decision taken to have been made, pursuant to s 149B(7) of the PS Act, not to appoint Mr McAllister on a permanent basis, that decision was fair and reasonable. This is because:
- there is insufficient evidence that there is a continuing need for someone to be employed in Mr McAllister's role or a role that is substantially the same as his role; and
- even if I am wrong about that, it is not viable or appropriate to permanently appoint Mr McAllister having regard to the genuine operational requirements of the Department that I have referred to above.
- [36]During this appeal, it was submitted on behalf of Mr McAllister that the Department had made assertions in its submissions, and through the material attached to its submissions, but had not led evidence in support of those matters such that I should find that the submissions made and material put on by the Department should not be accepted.
- [37]The onus is always on the appellant to demonstrate that the decision was not fair and reasonable. If an appellant disputes any assertion made by the respondent in an appeal such as this, then he or she of course has the discretion to make application to the Commission to seek leave to make further submissions and, or in the alternative, to make further submissions and to lead evidence which might tend to disprove the assertions made by the respondent.
- [38]I wish to make one further point. In its submissions, the Department did not discount that there may be a future increase in demand for supply officers and that 'contingency labour' will address the increase. As I referred to earlier, I take this to mean that there may be a need to continue to employ a person in Mr McAllister's role, or a role that is substantially the same, on a fixed term temporary basis.
- [39]If it is the case, that after 23 January 2022, when Mr McAllister's current fixed term temporary employment contract comes to an end, he is in fact continued to be employed in the same role or a role that is substantially the same on a fixed term temporary basis, then I would encourage the Department, independently of its legal obligations to Mr McAllister under s 149B of the PS Act, to review Mr McAllister's fixed term temporary employment.
- [40]That is to say, if it becomes apparent that there is a need to permanently engage Mr McAllister in his role, then the Department should give consideration to reviewing Mr McAllister's fixed term temporary employment before it is legally required to do so under s 149B of the PS Act.
- [41]For these reasons, I confirm the decision appealed against.
- [42]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.