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  4. Power v State of Queensland (Department of State Development, Tourism and Innovation) - [2021] QIRC 53

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Power v State of Queensland (Department of State Development, Tourism and Innovation)[2021] QIRC 53

Power v State of Queensland (Department of State Development, Tourism and Innovation)[2021] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 053

PARTIES:

Power, Paula

(Appellant)

v

State of Queensland (Department of State Development, Tourism and Innovation)

(Respondent)

CASE NO:

PSA/2020/392

PROCEEDING:

Public Service Appeal – Temporary Employment

DELIVERED ON:

11 February 2021

MEMBER:

HEARD AT:

Industrial Commissioner Dwyer

On the papers

ORDER:

  1. The decision appealed against is set aside.
  1. The issue is returned to the decision maker along with a copy of this decision and they are directed to:
  1. Conduct a fresh review of the appellant’s employment status within 14 days of the date of this decision in accordance with either s 149 or s 149B of the Public Service Act 2008; and
  2. Upon completion of the fresh review of the appellant’s employment status, issue a notice in compliance with s 149A(4) or s 149B(6) and Clause 8.4 of Directive 09/20.

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal – Fixed term temporary employment review – Mandatory content for decision – Omission of mandatory content in decision – Inadequate reasons provided – Decision not fair and reasonable.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 27B

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

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

Directive 09/20 Fixed term temporary employment cl. 8.4

CASES:

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

Gay v Workers’ Compensation Regulator [2019] ICQ 001

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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

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

Reasons for Decision

 Background

  1. [1]
    Ms Paula Power is currently a fixed term temporary employee. She is employed as a Regional Executive Officer (classification level AO4) by the Department of State Development, Tourism and Innovation (‘the Department’).
  1. [2]
    Ms Power commenced in temporary employment with the Department on 2 July 2018. The appointment was originally to run until 30 June 2020 but was subsequently extended to 12 February 2021. This engagement was further extended and is currently scheduled to end on 26 February 2021. Ms Power had, at the time of her review, been employed for a total period of 2 years and 4 months. She has performed different roles throughout her service.  
  1. [3]
    At some stage prior to 22 October 2020, Ms Power sought a review of her temporary employment status. The details or the basis upon which Ms Power relied for this review are not set out in the material. A fixed term temporary employee may seek a review of their employment status after 1 year of continuous service.[1] A department chief executive must review the status of a fixed term temporary employee after 2 years continuous service.[2]
  1. [4]
    On 22 October 2020, Ms Power was advised by Mr John Kyriakidis that a review of her temporary status would be undertaken pursuant to the Public Service Act 2008 (‘the PS Act’). This correspondence refers to Ms Power having ‘one year of continuous service’. The correspondence of 22 October 2020 also invites Ms Power to provide the decision maker with information she would like considered as part of the review.
  1. [5]
    On 27 October 2020, Ms Power supplied information in support of her application for review to Mr Dan Jarvis via email. The email had attached inter alia a written submission from Ms Power in which she set out in express terms that her period of service was 2 years and 4 months.  
  1. [6]
    On 18 November 2020, Ms Power was advised in correspondence from Mr Michael McKee that the review of her temporary employment status was conducted in accordance with the PS Act and Directive 09/20 – Fixed term temporary employment (‘the Directive’). The correspondence advised that Ms Power that her employment was not going to be converted to permanent employment ('the decision'). The decision identifies Mr Jarvis as the assigned contact for the review.
  1. [7]
    The reasons for the decision were set out as follows:
  • I have considered the conditions for conversion in the PS Act and determined that you have demonstrated merit for you to fill the role in a fixed term capacity. However, there are genuine operational requirements of the agency that mean it is not viable or appropriate to convert you permanently at this time.
  • There is no continuing need for you to perform your current role because the substantive incumbent is returning to the role on a full-time basis.
  • Further, there is no continuing need for you to perform a role that is substantially the same. All potential roles have been considered and there are no vacant positions available that are substantially the same role.
  1. [8]
    Following receipt of the decision, Ms Power commenced an exchange of emails with Mr Jarvis on 23 November 2020.[3] These emails reveal that, for the purposes of her review, Ms Power regarded herself as having in excess of 2 years continuous service, while Mr Jarvis expresses a view that the role Ms Power first filled and the role she is currently filling are not ‘the same or substantially the same’. The relevance of this assertion is not made clear by Mr Jarvis.
  1. [9]
    While it is unclear from Mr Jarvis’ email of 23 November 2020, it would seem that he is informing Ms Power that her review was conducted on the basis that her request for conversion was made pursuant to s 149 of the PS Act i.e. continuous employment of 1 year. The decision does not address Ms Power’ tenure with any specificity.
  1. [10]
    Ms Power filed an Appeal Notice on 4 December 2020. The parties filed written submissions in accordance with a Directions Order dated 4 December 2020. Ms Power contends, for reasons set out in her submissions, that the decision is not fair and reasonable.

What decisions can the Industrial Commissioner make?

  1. [11]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 ('the IR Act') provides that the Commission may:

 (a)  confirm the decision appealed against; or

 (b) set the decision aside and substitute another decision; or

 (c)  for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

 Nature of appeal

  1. [12]
    Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[4] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[5]
  1. [13]
    An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[6] but rather, it is a review of the decision and the decision-making process.[7] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[8]
  1. [14]
    The issue for my determination in the matter before me is whether the decision to refuse to convert Ms Power's employment to permanent and continue her as a temporary employee was fair and reasonable.[9]
  1. [15]
    For the reasons set out below I have determined that the decision was not fair and reasonable.

Relevant sections of the Act and Directive

  1. [16]
    The relevant provisions of the PS Act and the Directive for consideration of this appeal are limited to those prescribing the form of the decision.
  1. [17]
    In this matter there was, and remains, a dispute as to whether the review ought to have been conducted pursuant to s 149 or s 149B. As noted above, Ms Jones relies on the totality of her service with the Department, a period of 2 years and 4 months. The Department considered the nature of Ms Power’s engagements over that period meant that a portion of her service did not count towards the continuous service for review purposes.
  1. [18]
    Ultimately, it is not necessary for me to resolve this dispute in these reasons. It is only relevant to the extent that it informs whether the decision ought to have been issued in accordance with s 149A or s 149B of the PS Act. Whichever was the case, my conclusions in this decision would be the same.   
  1. [19]
    Section 149A of the PS Act relevantly provides:

Decision on review of status

  1. (1)
    The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
  1. (2)
    The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if—
  1. (a)
    the department’s chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (3)
    If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. (4)
    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 person a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department under section 149; and
  1. (c)
    for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee has been extended…

(Emphasis added)

  1. [20]
    Section 149B of the PS Act relevantly provides

149B Review of status after 2 years continuous employment

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

(Emphasis added)

  1. [21]
    Clause 8.4 of the Directive provides as follows:

Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [22]
    Section 27B of the Acts Interpretation Act 1954 (‘the AI Act’) which provides:

27B Content of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also—

  1. (a)
    set out the findings on material questions of fact; and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [23]
    Clause 8.4 of the Directive clearly adopts the wording of s 27B of the AI Act.
  1. [24]
    The PS Act was amended in 2020 with the amendments taking effect on 14 September 2020. Ms Power’s application for review falls under the amended PS Act.  In terms of the amendments it is notable that there is no provision equivalent to s 149A(4) in the pre-amendment PS Act. Further, the Directive replaces Directive 08/17 which similarly contains no equivalent to Cl 8.4 of Directive 09/20.
  2. [25]
    More particularly, the pre-amendment PS Act contained no compulsory prescribed form for a decision to refuse conversion.[10] The (superseded) Directive 08/17 only prescribed that the decision to refuse conversion must include reasons.[11]
  1. [26]
    The amendments to the PS Act are intended to improve fairness and transparency in review decisions.[12] It is clear from these changes, and from the use of the term ‘must’ in both s 149A(4), s 149B(6) and also in Cl 8.4 of the Directive, that the legislature and the authors of the Directive intended the matters prescribed in those provisions to be mandatory rather than directory.

Submissions of the parties

  1. [27]
    The parties' submissions are largely directed at the merits of the decision to refuse Ms Power’s conversion to permanent employment. Notwithstanding this, the submissions accompanying Ms Power’s Appeal Notice also squarely raise deficiencies as to the form of the decision. Ms Power complains that the decision did not:
  • Include the total period for which I have continuously been employed in the department as required under the PS Act s 149B(6b)
  • Include how many times my employment as a fixed term temporary employee has been extended as required under the PS Act s 149B(6c)
  1. [28]
    Ms Power’s submissions in this regard clearly reflect her (disputed) view that the consideration of her review ought to have proceeded pursuant to the terms prescribed by s 149B on the basis of her service exceeding 2 years continuous service. Regardless of whether she is correct in that view, similar provisions are found at s 149A(4) such that the Department ought to have been on notice that compliance with the requirements of the PS Act was one of the grounds for Ms Power’s appeal.
  1. [29]
    The Department’s response does not engage with these submissions by Ms Power, either directly or at all. There is a submission from the Department asserting the adequacy of the reasons by reference to compliance with the criteria set out Cl 8.1 and 8.2 of the Directive. There is also a (presumably erroneous) reference to compliance with s 149(3) of the PS Act which appears to be a reference to the pre-amendment PS Act. 
  1. [30]
    Nowhere in their submissions do the Department seek to respond to Ms Power’s submission that the form of the decision does not comply with the terms prescribed in the PS Act. The focus of the Department’s submissions appears to be on the merit of the decision with respect to the genuine operational requirements.
  1. [31]
    Neither Ms Power nor the Department directly address whether the decision is compliant with the PS Act with respect to the adequacy of the reasons provided though it is plainly evident that Ms Power contends there is a continuing role for her. 

Consideration

  1. [32]
    The adequacy of a review decision is analogous with considerations around the adequacy of reasons provided in a judicial decision. Adequacy will be determined by ‘whether sufficient was said’ to explain the conclusions reached.[13] Further, the decision was subject to certain statutory requirements with respect to its content. Compliance or otherwise with those requirements informs the question of adequacy and also fairness.
  1. [33]
    I do not consider that a decision issued in accordance with s 149A(4) or s 149B(6) needs to expressly step through e.g. the matters referred to at s 149A(4)(a)-(c). However, to do so would certainly remove any doubt about compliance. It is enough in my view if the prescribed mandatory information is contained in a decision in a way that it can be plainly identified and understood. Regrettably that is not the case in this matter.
  1. [34]
    Having regard to the decision, it is my view that the Department has failed to include the mandatory content prescribed by the PS Act.  
  1. [35]
    Section 149A(4)(a) and s 149B(6)(a) require the chief executive to give the person a notice stating the reasons for the decision. Section 27B of the AI Act and Cl 8.4 of the Directive prescribe what such reasons must address. The decision in this instance fails to meet this standard in my view.  I would, for example, expect that a decision of this nature would not simply refer to ‘genuine operational requirements’ without some degree of particulars relevant to Ms Power.
  1. [36]
    Further, even while the reference to ‘the return of an incumbent’ might  adequately address the particulars as to why Ms Power’s current role is not ongoing,[14] a broad reference to ‘all potential roles have been considered’ is insufficient in my view to explain the apparent absence of a role substantially the same.
  1. [37]
    In my view, the decision needed to refer to evidence relied on to support this conclusion. This would include e.g. details of other roles considered and why some might have been rejected. It must be sufficient to inform Ms Power why the decision was made.
  1. [38]
    To be clear, in reaching this conclusion, I am not acknowledging any viability in the  numerous hypothetical scenarios proffered by Ms Power in her reply submissions,[15] rather, I have concluded that the reasons provided in the decision are inadequate having regard to s 27B of the AI Act and Cl 8.4 of the Directive. 
  1. [39]
    Apart from requiring the Department to provide the reasons for the decision, s 149A and s 149B require the decision maker to provide a notice stating certain historical employment antecedents.[16] It might be argued that the omission of this content gives rise to no prejudice (or unfairness) to the recipient of the decision. There may be some merit in that argument.
  1. [40]
    However, whether the absence of this additional information is capable of producing any actual unfairness is irrelevant in my view.  If the statute provides that the information must be supplied, a failure to do so cannot be simply set aside to e.g. be substituted with practical considerations.
  1. [41]
    In this instance, there is no reading of the decision that would allow me to conclude that it complies with the mandatory requirements of the PS Act and the Directive. Apart from the inadequacy of the reasons, there is no compliance at all with the mandatory requirement to give notice stating:
  • The total period for which Ms Power has been continuously employed in the department; and
  • How many times Ms Power’s employment as a fixed term temporary employee has been extended. 
  1. [42]
    As it happens, the additional information regarding Ms Power’s service is important. In Ms Power’s case there is a dispute as to the period of her employment establishing her eligibility for review. As noted above, the PS Act prescribes separate procedures for fixed term temporary or casual employees seeking review, depending on whether they have 1 or 2 years of continuous service. Ms Power maintains her 2 years and 4 months ought to be taken into account. The Department maintains only 1 year of her service is eligible.
  1. [43]
    The absence of this information in the decision means that Ms Power was compelled to seek the information after the decision had issued.[17] Even then, the explanation provided by Mr Jarvis is scant of information explaining the Department’s position, and consequently the dispute remains ongoing. Having read the email of Mr Jarvis, I am unable to understand the basis for the Department’s position. I do not say it is incorrect, simply that it is not clearly explained.
  1. [44]
    An evaluation of whether a decision is ‘fair and reasonable’ within the meaning of s 562B of the IR Act may be informed by any number of matters. Each matter will turn on its own peculiar facts.  However, where the PS Act now compels mandatory content in such decisions, the presence of that content is an incontrovertible prerequisite for a conclusion that the decision is fair and reasonable. 
  2. [45]
    The amendment of the PS Act, and the inclusion of s 149A and s 149B in particular, now place a greater burden on decision makers to set out specified information in a way the legislation has not previously done. This will inevitably require decision makers to adopt a more thorough and comprehensive approach to decision writing. It is a task that will require precision from the decision maker, rather than a perfunctory approach.
  1. [46]
    The legislature has deemed it necessary that employees like Ms Power be provided with specific information when advised by the chief executives of a decision about their conversion. The explanatory notes suggest this is to enhance accountability and fairness. In the circumstances, Ms Power has been denied the opportunity to properly understand or evaluate the merits of the decision because of the non-compliance by the Department with the mandatory requirements of the PS Act. The inescapable conclusion arising from that is that the decision is not fair and reasonable. 

Disposition of the matter

  1. [47]
    While I have found that the decision was not fair and reasonable, my conclusion should not be construed as an indication that I consider Ms Power is otherwise eligible for conversion to permanent employment. I have not addressed the merits of the decision with respect to genuine operational requirements because I consider that those matters might be more fairly considered once fuller particulars are provided, particularly in respect of other roles that are substantially the same.  
  1. [48]
    In my view, the most appropriate course of action for this matter is to set the decision aside and return the issue to the decision maker to reconsider the matter.
  1. [49]
    While this decision may not give Ms Power the employment security she seeks, and while it may cause some frustration to the departmental officers responsible, I consider that this task must be performed to the proper standard for it to be fair and reasonable.

Order

  1. [50]
    In the circumstances I make the following Order:
  1. The decision appealed against is set aside.
  1. The issue is returned to the decision maker along with a copy of this decision and they are directed to:
  1. Conduct a fresh review of the appellant’s employment status within 14 days of the date of this decision in accordance with either s 149 or s 149B of the Public Service Act 2008; and
  2. Upon completion of the fresh review of the appellant’s employment status, issue a notice in compliance with s 149A(4) or s 149B(6) and Clause 8.4 of Directive 09/20.

Footnotes

[1] Public Service Act 2008 (Qld) s 149.

[2] Ibid s 149B.

[3] See attachment 5 to the Appeal Notice.

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

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

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

[7] Ibid.

[8]  Industrial Relations Act s 562B(2).

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

[10] Public Service Act 2008 (Qld) s 149(3) (pre-amended Act).

[11] [Superseded] Directive 08/17 Temporary employment, cl 11.2.

[12] Explanatory Notes, Public Service and Other Legislation Amendment Bill 2020 (Qld).

[13] Gay v Workers’ Compensation Regulator [2019] ICQ 011, 28-30. See also Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 at [49].

[14] Though I do not consider it does. See Minister for Immigration and Citizenship v Li [2013] HCA 18, 76.

[15] Filed on 21 December 2020.

[16] Public Service Act 2008 (Qld) s 149A(3)(b)(c), s 149B(6)(c)(d).

[17] See the email chain that is Attachment 5 to Ms Power’s Appeal Notice.

Close

Editorial Notes

  • Published Case Name:

    Power v State of Queensland (Department of State Development, Tourism and Innovation)

  • Shortened Case Name:

    Power v State of Queensland (Department of State Development, Tourism and Innovation)

  • MNC:

    [2021] QIRC 53

  • Court:

    QIRC

  • Judge(s):

    Industrial Commissioner Dwyer

  • Date:

    11 Feb 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gay v Workers' Compensation Regulator [2019] ICQ 11
1 citation
Jump To
Cite 1 - [2019] ICQ 11
Minister for Immigration and Citizenship v Li [2013] HCA 18
1 citation
Jump To
Cite 1 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
1 citation
Jump To
Cite 1 - (2013) 249 CLR 332
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Sarkaria v Workers' Compensation Regulator [2019] ICQ 1
1 citation
Jump To
Cite 1 - [2019] ICQ 1

Cases Citing

Case NameFull CitationFrequency
Battaglia v State of Queensland (Queensland Health) [2023] QIRC 552 citations
Carson v State of Queensland (Department of Environment and Science) [2022] QIRC 3072 citations
Epong v State of Queensland (Queensland Health) [2025] QIRC 73 citations
Erbulut v State of Queensland (Queensland Health) [2023] QIRC 2002 citations
Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 4802 citations
Joyce v State of Queensland (Department of Environment and Science) [2024] QIRC 2792 citations
Keenan v State of Queensland (Queensland Health) [2023] QIRC 2972 citations
Murray v State of Queensland (Queensland Health) [2023] QIRC 1942 citations
Novak v State of Queensland (Queensland Health) [2023] QIRC 1952 citations
Palomino v State of Queensland (Department of Education) [2021] QIRC 1293 citations
Shafiee v State of Queensland (Queensland Health) [2023] QIRC 1892 citations
Sharma v State of Queensland (Department of Education) [2024] QIRC 2552 citations
Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 3113 citations
Taylor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 532 citations
Watson v State of Queensland (Queensland Health) [2022] QIRC 4772 citations
1

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