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  4. Morgan v State of Queensland (Queensland Health) (No. 2) - [2022] QIRC 132

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Morgan v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 132

Morgan v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 132

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Morgan v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 132

PARTIES: 

Morgan, Peter

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/407

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

6 April 2022

MEMBER:

McLennan IC

HEARD AT:

On the papers

  ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  1. The decision that the Appellant not have his employment converted to permanent is set aside and another decision is substituted; and
  1. The Appellant's employment status be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where respondent gave a deemed decision not to convert the appellant's employment to permanent under the Public Service Act 2008 – whether there is a continuing need for the appellant to be employed in the same role or a role which is substantially the same – consideration of genuine operational requirements – where decision was not fair and reasonable

LEGISLATION AND OTHER
INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Industrial Relations Act 2016 (Qld) s 451, s 564, s 562B, s 562C, s 567

Public Service Act 2008 (Qld) s 26, s 27, s 148,

s 149, s 149A, s 149B, s 194, s 195, s 196

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 11

CASES:

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

Deverge v State of Queensland (Queensland Health) [2021] QIRC 046

Finn v State of Queensland (Department of Health) [2021] QIRC 144

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

IW v City of Perth (1997) 191 CLR 1

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

Katae v State of Queensland & Anor [2018] QSC 225

Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013

McAllister v State of Queensland (Queensland Health) [2021] QIRC 435

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

Morgan v State of Queensland (Queensland Health) [2022] QIRC 081

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

Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 052

Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 319

Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260

Woodhouse v State of Queensland (Queensland Health) [2021] QIRC 290

Reasons for Decision

Introduction

  1. [1]
    Mr Peter Morgan (the Appellant) is substantively employed as a casual OO2 Operational Services Officer at the Richlands Distribution Centre.[1] The Appellant's employer is Queensland Health, State of Queensland (the Department; the Respondent).[2]
  1. [2]
    The Appellant was initially employed by the Respondent as a casual employee on 1 July 2019[3] and then subsequently undertook various temporary contracts from 14 October 2019.[4]
  1. [3]
    The parties do not dispute and have proceeded on the basis that pursuant to s 149B(4)(a) of the Public Service Act 2008 (Qld) (the PS Act), the Appellant's employment status was eligible for review from 14 October 2021.[5]
  1. [4]
    Neither party raised the argument that the review eligibility date ought to have been two years from the Appellant's commencement of continuous service as either a casual or temporary employee, i.e., 1 July 2021 pursuant to s 149B(1) of the PS Act. In the absence of an objection or submissions to the contrary, I will proceed to accept the parties' agreement with respect to the review eligibility date.
  1. [5]
    On 18 October 2021, the Australian Workers' Union (the AWU) on behalf of the Appellant requested to have the Appellant's employment converted to permanent.[6]
  1. [6]
    The Respondent did not give a conversion decision within 28 days of the Appellant's review eligibility date. Therefore, a decision not to convert the Appellant to permanency was deemed to have occurred on 11 November 2021 pursuant to s 149B(7) of the PS Act (the Decision).[7] 
  1. [7]
    On 26 November 2021, the Appellant filed an appeal against the Decision.

The Attendance Notice

  1. [8]
    By way of background, on 20 December 2021, the Appellant filed a Form 32 Request for attendance notice seeking various documentation from the Respondent. I issued the corresponding Form 32B Attendance notice to produce on 23 December 2021 (the Attendance Notice).
  1. [9]
    The Respondent subsequently objected to producing the documents sought under the Attendance Notice and that dispute formed the subject of an interlocutory decision I released on 11 March 2022.
  1. [10]
    Ultimately, I decided to set aside the Attendance Notice pursuant to r 61 of the Industrial Relations (Tribunals) Rules 2011 (Qld).[8]
  1. [11]
    I will now proceed to consider the substantive appeal.

The Decision

  1. [12]
    Clause 11.1 of Directive 09/20 provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert."
  1. [13]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee".
  1. [14]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [15]
    For the reasons outlined above, I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed by the Appellant.

Timeframe for appeal

  1. [16]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [17]
    The Decision was deemed to have been given on 11 November 2021. In accordance with   s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 26 November 2021. 

What decisions can the Commission make?

  1. [18]
    The Appellant seeks the Decision be set aside and substituted with a decision to convert his employment status to permanent pursuant to s 451 of the IR Act.[9]
  1. [19]
    Section 451 of the IR Act broadly provides for the general powers of the Commission. However, the relief sought by the Appellant is specifically provided for in s 562C(1) of the IR Act, as is the relief sought by the Respondent. On that basis, I find it is appropriate to determine this appeal under s 562C(1) of the IR Act.
  1. [20]
    Pursuant to s 562C(1) of the IR Act, in deciding a public service appeal, the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Appeal principles

  1. [21]
    Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [22]
    The appeal is not conducted by way of re-hearing,[10] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[11] 
  1. [23]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[12]
  1. [24]
    The issue for my determination is whether the Decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[13]

Relevant provisions of the PS Act and Directive 09/20

  1. [25]
    Section 148 of the PS Act states:

148  Employment of fixed term temporary employees

  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

Examples of absences for a known period –

approved leave (including parental leave), a secondment

  1. (b)
    to perform work for a particular project or purpose that has a known end date;

Examples—

employment for a set period as part of a training program or placement program

  1. (c)
    to fill a position for which funding is unlikely or unknown;

Examples—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example—

an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

…

  1. [26]
    Section 149B of the PS Act relevantly provides:
  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. (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. [27]
    Section 149A(2)-(3) of the PS Act provides (emphasis added):
  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. [28]
    Directive 09/20 relevantly provides:

8. Decision on review of status

8.1  When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

•  whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2  Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a General employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

  1. [29]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[14]
  1. [30]
    Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.
  1. [31]
    The purpose of Directive 09/20 is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.  The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

The legislation indicates where employment on tenure may not be appropriate.

  1. [32]
    Further, Directive 09/20 relevantly provides:

4.   Principles

4.1  Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the Government's Employment Security Policy.

…

4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

Submissions

  1. [33]
    In accordance with the Directions Orders issued in this matter, the parties filed written submissions.
  1. [34]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [35]
    At this juncture, I note the parties spent considerable time debating the matter of a deemed decision. I accept the Respondent's submission "that a deemed decision does not provide the explanation or detail that would otherwise assist an employee in understanding the basis for the refusal of their conversion" with reference to my previous decision in Lee v State of Queensland (Public Safety Business Agency).[15] I also accept that the Decision is not inherently unfair and unreasonable by virtue of it being a deemed decision and omitting written reasons.[16] However, I do expect that the Respondent's written submissions address the relevant criteria as this is necessary for my determination of whether the Decision is fair and reasonable.
  1. [36]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of the appeal.

Consideration

  1. [37]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [38]
    Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker must consider:
  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;
  • the merit of the employee for the role having regard to the merit principle in s 27 of the PS Act;
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [39]
    Clause 8.2 of Directive 09/20 states (emphasis added):

Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.[17]

  1. [40]
    The merit criterion is not in dispute.[18] It is noted that no other decision has been made under ss 149A or 149B of the PS Act with respect to the Appellant's employment. Therefore, my decision firstly turns on the question of whether there is a continuing need for the Appellant to be employed in the role, or a role which is substantially the same. I will then consider whether any genuine operational requirements fairly and reasonably prevent permanent conversion of the Appellant and whether any relevant requirements of an industrial instrument have been complied with.

Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same

  1. [41]
    There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for the Appellant to be employed in the current role?

  1. [42]
    The Respondent presented a summary of the Appellant's employment history as follows:
  • Casual Supply Officer (OO2) from 1 July 2019 to 13 October 2019;
  • Temporary Supply Officer (OO2) from 14 October 2019 to 12 July 2020;
  • Temporary Supply Officer COVID (OO2) from 13 July 2020 to 2 May 2021;
  • Temporary Dist Team Leader Trainer COVID (OO3) from 3 May 2021 to 14 September 2021;
  • Temporary Dist Supervisor COVID (OO5) from 15 September 2021 to 4 October 2021; and
  • Temporary Dist Team Leader Trainer COVID (OO3) from an unknown date to an expected end date of 23 January 2022.[19]
  1. [43]
    At the time of filing initial submissions on 13 December 2021, the Respondent stated the Appellant is currently employed as a Temporary Dist Team Leader COVID OO3 (the Role) but there is no identified need for extra or permanent OO3 positions within the distribution centre nor is the Appellant required in the Role beyond the expected expiry of his fixed term temporary contract on 23 January 2022.[20]
  1. [44]
    The Appellant was due to return to an OO2 Supply Officer role in the casual pool from 24 January 2022.[21] However, at the time of filing further submissions on 18 March 2022, the Respondent stated the Appellant "is currently in a temporary OO3 position (Dist Team Leader Trainer Covid)"[22] which suggests the Appellant's contract had been extended.
  1. [45]
    The Respondent submits it was appropriate to engage the Appellant under fixed term temporary contracts because the distribution centre has experienced two unique and unexpected increases in demand that required an increase to the Respondent's contingency labour.[23] The Respondent submits this increase was undertaken after consultation and agreement with the AWU.[24]
  1. [46]
    The Respondent contends that although the requirement for contingency labour began to abate in early 2020, another extraordinary and significant increase in demand occurred by virtue of the COVID-19 pandemic.[25] The Respondent contends this need is evidenced by the number of advertisements for casual and fixed term Supply Officers.[26]
  1. [47]
    The Respondent submits the increase in demand has subsided and the requirement for contingency labour is reducing - therefore the reasons for the Appellant's initial and ongoing employment is abating.[27] The Respondent has determined that the existing permanent establishment is sufficient to efficiently manage operations at the new distribution centre.[28]
  1. [48]
    The Appellant disputes the Respondent's arguments on the basis that no evidence has been provided in support other than simply stating that the Appellant's current contract is set to expire on 23 January 2022.[29] The Appellant contends that if the Respondent cannot provide evidence to support how it drew its conclusions, then the claim should either be withdrawn by the Respondent or otherwise disregarded by the Commission.[30]
  1. [49]
    As I found in Benson v State of Queensland (Department of Education),[31] although a particular circumstance (such as an unexpected increase in workload) may have constituted a reason for the Department to initially employ someone on a temporary basis, after more than two years of meritoriously undertaking various roles for extensive periods of time, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [50]
    Unlike the conclusion reached in McAllister v State of Queensland (Queensland Health),[32] I find there is sufficient evidence indicating a continuing need for the Appellant to be employed in the Role. Further, it is often observed that reasonable minds may differ.[33]  I note the Appellant's fixed term temporary employment has been extended on at least four occasions. Further, the Appellant was employed in the Role from 3 May 2021 to 14 September 2021 and was then re-engaged in the Role sometime after 4 October 2021 until 23 January 2022.[34] The Respondent's submissions suggest the Appellant remains employed in the Role.[35]
  1. [51]
    The Appellant annexed payslips to his submissions filed 6 December 2021 which evidence a pattern of regular and systematic engagements thus far.[36] Based on these patterns of engagement, it appears likely there will be a continuing need to continue engaging the Appellant in the Role. The COVID-19 pandemic may have presented novel challenges in recent years but it is certainly continuing into the foreseeable future and in my view, so too are the need for associated roles.
  1. [52]
    In McAllister v State of Queensland (Queensland Health),[37] Deputy President Merrell considered that the advertisements seeking various temporary and casual Supply Officers "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." While I agree with his Honour's comments, in my view it is also evidence that tends to support the fact that there is a continuing need for the Appellant to be employed in the Role particularly in light of the continuing COVID-19 pandemic.
  1. [53]
    Further, at the time of the Decision, there was a continuing need for the Appellant to be employed in the Role at least until 23 January 2022 and for those reasons I find that any finding to the contrary was not fair or reasonable.
  1. [54]
    In the event I am wrong on that point, I will now consider whether there is a continuing need for the Appellant to be employed in a role which is substantially the same.

Pathway 2: Is there a continuing need for the Appellant to be employed in a role which is substantially the same?

  1. [55]
    The Appellant relies upon the affidavit of Mr Barry Watson of the AWU which relevantly includes the following:
  • Mr Watson is involved in discussions with Queensland Health Management about resourcing issues with regards to the Distribution Centres at Richlands and Inala;
  • on 11 February 2022, Mr Watson met with Mr David Sinclair, Executive Director of the COVID-19 Supply Chain and Surety Division as well as other stake holders to discuss resourcing issues;
  • during the course of the meeting on 11 February 2022, Mr Sinclair stated that Queensland Health had determined the staffing component for the new distribution centre would require nine additional permanent employees beyond the existing staffing allocation; and
  • the new distribution centre will replace the current centres at Richlands and Inala and is expected to be operational by the end of 2022.[38]
  1. [56]
    The Respondent confirms the need for nine additional permanent OO2 Supply Officer roles to support the new distribution centre.[39] However, the Respondent submits the new positions will be filled utilising the provisions of cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Certified Agreement). The Respondent contends this process is consistent with a recommendation of Industrial Commissioner Hartigan that arose from a dispute regarding the use of cl 11.5 in relation to operational stream positions.[40]
  1. [57]
    I note that cl 11.5.1 of the Certified Agreement provides:

The provisions in this clause are not impacted by, nor do they impact the conversion of casual and temporary employees to permanent employment provisions in clause 6.3 of this agreement. Those provisions relate to the commitment of the Queensland Government to maximise permanent employment.

  1. [58]
    Further, the Recommendation of Industrial Commissioner Hartigan referred to by the Respondent relevantly provides:

Compliance with Directives 08/20 and 09/20 by the relevant Health Service does not supersede compliance with clause 11.5 of the Agreement. Converting an employee pursuant to the relevant directive and filling a vacant full-time position are separate and distinct processes. A relevant full-time vacant position should be filled in accordance with clause 11.5.2 (and following) of the Agreement. Such a vacancy should not be filled and utilised as a means to convert an employee under Directive 08/20 or 09/20.[41]

  1. [59]
    While I accept the two processes are separate and cl 11.5 of the Certified Agreement may be the most appropriate way to fill the available positions - Mr Watson has presented evidence that there are similar roles that require filling which tends to prove that there is a continuing need for the Appellant to be employed in roles that are substantially the same.
  1. [60]
    The Respondent submits the resourcing considerations subject of Mr Watson's affidavit were not a known source of information at the time of the Decision and are not relevant in the determination of this matter.[42] I accept that the appeal is not conducted by way of re-hearing, however in reviewing the Decision, I may take additional evidence into account if appropriate to effectively dispose of the appeal.[43] The evidence subject of Mr Watson's affidavit is directly relevant to the question of whether there is a continuing need for the Appellant to be employed in a role which is substantially the same. In that regard, I also refer to my previous decision in Joshi v State of Queensland (Queensland Health)[44] in which I considered a change in circumstances may warrant further consideration where it appears to support the proposition of a continuing need for an appellant's services. I consider the subject matter of Mr Watson's affidavit to be relevant, however for the reasons that follow I have determined the Decision is not fair and reasonable for an alternative reason. 
  1. [61]
    Significantly, the Respondent's submissions do not address whether there is a continuing need for the Appellant to perform a role that is substantially the same.
  1. [62]
    In Benson v State of Queensland (Department of Education), I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.[45] In this matter I similarly find the Respondent's failure to adequately address this limb in subsequent submissions renders the Decision not fair or reasonable.
  1. [63]
    It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Respondent has stopped short of demonstrating its consideration of the entirety of the mandatory criteria. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.
  1. [64]
    The fact of this case is that the Respondent has not defined a role which is substantially the same and the duty to do so must properly be discharged. 
  1. [65]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [66]
    I have found that there is a continuing need for the Appellant to be employed in the Role.  However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb. On that basis and noting the need for similar roles to be filled, I find that there is a continuing need for the Appellant to be employed in a role that is substantially the same.

Genuine operational requirements

  1. [67]
    Clause 8.2 of Directive 09/20 provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency."
  1. [68]
    'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply.[46]
  1. [69]
    One relevant rule of statutory interpretation is the principle of 'beneficial legislation'.  Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. That principle has been applied to equal opportunity legislation. In IW v City of Perth, it was held that such remedial materials are:

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".[47]

  1. [70]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):

[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.

[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.

…

[40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[48]

  1. [71]
    Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those.
  1. [72]
    If the inconveniences inherent to most if not all permanency conversions were sufficient to constitute genuine operational requirements, there would be few or no conversions. That interpretation would defeat the purpose of Directive 09/20 and the review.
  1. [73]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.
  1. [74]
    Upon review of the Respondent's submissions, it appears the Respondent contends that the genuine operational requirements preventing conversion of the Appellant broadly pertain to:
  • statutory obligations and associated workforce strategies; and
  • the purpose of the Appellant's temporary employment. 
  1. [75]
    I will deal with each of those matters in turn.

Statutory obligations and associated workforce strategies

  1. [76]
    The Respondent submits it has obligations under ss 25-26 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.[49]
  1. [77]
    The Respondent contends that in order to meets its statutory obligations and responsibilities, the Respondent is reviewing and setting strategies regarding the supply chain services provided to hospitals within the Department.[50] For example, the Respondent has adopted a centralised digital system for purchasing, ordering and distributing supplies.[51]
  1. [78]
    On 12 November 2021, the Respondent announced that an agreement had been reached regarding a new distribution centre to be commissioned adjacent to the current Richlands Distribution Centre.[52] The Respondent contends it has and still is considering the scope and operation of the new distribution centre.[53]
  1. [79]
    The Appellant disputes the Respondent's arguments on the basis that no evidence has been presented in support.[54]
  1. [80]
    I note firstly that a budgeted vacancy is not required for conversion to permanent employment. Further, it is an inherent requirement of converting any casual or temporary employee to permanency that there will be budgetary re-allocations and the like. There is no indication that the difficulties faced by the Respondent in this instance would be any different to those posed to most agencies converting employees. Within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent', 'temporary' or 'casual' line item allocation.  Therefore, any concern regarding the appropriate use of public resources with respect to budgetary allocation are not reasonable in this context.
  1. [81]
    While it is necessary to develop a workforce strategy and staff it accordingly, a permanent workforce allows for a structured and organised workforce, which in-turn makes budgeting and expenditure more predictable, thereby reducing the potential for labour expenditure budget overspend. That is a factor that the Respondent ought to have considered.
  1. [82]
    Without specific evidence indicating the Appellant's conversion would affect the efficient, effective and sustainable management of the Department's public resources, I am not convinced that such issues pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant.
  1. [83]
    Moreover, in my view the circumstances of the Appellant's application are somewhat analogous to the cases of Varghesekutty v State of Queensland (Queensland Health),[55] Woodhouse v State of Queensland (Queensland Health),[56] Finn v State of Queensland (Department of Health),[57] Deverge v State of Queensland (Queensland Health)[58] and Pulikkottil v State of Queensland (Queensland Health)[59] - all cases in which Operational Services Officers were successful in their conversion appeals.
  1. [84]
    In light of the reasoning above, I conclude that the workforce strategy issues and statutory obligations raised by the Respondent do not constitute genuine operational requirements and are not genuine, authentic reasons that could reasonably prevent permanent conversion of the Appellant.

Purpose of the Appellant's employment

  1. [85]
    The Respondent appears to contend that employment of the Appellant on tenure is not viable or appropriate because he has been employed for the purpose of performing work necessary to meet an unexpected short-term increase in workload. That purpose is contemplated under s 148(2)(e) of the PS Act.
  1. [86]
    My first observation is that the Appellant has been employed in a range of roles over the last two years. In light of that fact, it seems improbable that he has been covering an unexpected short-term increase in workload in each of those roles but rather there appears to have been a long-term and continuing increase in workload.
  1. [87]
    Section 148(2) of the PS Act does not prescribe that because an employee is assisting with an increase in workload that the employee should therefore be employed on a temporary basis. Rather, s 148(2) contemplates a range of purposes which may indicate that employment of a person on tenure may not be viable or appropriate. A reasonable decision-maker ought to first identify whether the employee's circumstances fall under one of the listed purposes and then consider the appropriateness and viability of that employee being made permanent in light of that purpose.
  1. [88]
    Further, the issue is not whether it was appropriate to initially employ the Appellant on a casual or temporary basis. The Appellant has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for over two years. Section 148(3) of the PS Act provides that employment on tenure may be viable or appropriate if a person is required to be employed under such circumstances on a frequent or regular basis. Although the nature of casual and temporary work can be unpredictable - in light of his continuous engagement, I accept the Appellant has been engaged frequently and this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by the Appellant in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [89]
    The continual pattern of engaging the Appellant over the last two years illustrates how the Respondent relies upon the Appellant on an ongoing basis. A continuous pattern of allocated hours and temporary contracts, albeit unpredictable, indicates the Appellant is engaged on a systematic basis.
  1. [90]
    I am satisfied the Appellant has been employed for purposes mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that the Appellant's employment on tenure is viable and appropriate. 
  1. [91]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Respondent justify a refusal to convert and therefore conclude the Decision was not fair and reasonable in the circumstances.

Compliance with industrial instrument

  1. [92]
    As discussed above, the Respondent took into consideration cl 11.5 of the Certified Agreement which pertains to the 'closed merit selection process for filling vacancies' and relevantly provides:

11.5.2 The parties to this agreement agree to fill vacant full-time roles by offering such to those permanent part-time employees working in the work unit, who seek to work full-time.

11.5.3 If there are any vacant hours remaining after the process in clause 11.5.2 has been conducted, the remaining vacant hours will then be offered to those permanent part-time employees working in the work unit, who seek to work additional ordinary hours on a permanent basis up to 64 hours per fortnight, or full-time.

…

11.5.6If vacant hours still remain unfilled, the remaining vacant hours will be offered by a closed merit process, restricted to those casual and temporary employees working at the site (example: Hospital) who have two years or more continuous service for base grade or non-base grade roles. Preference for base grade roles will be given to those employees with more than four years continuous service.

  1. [93]
    The process described under cl 11.5 of the Certified Agreement is a separate process to a review under s 149B of the PS Act which is marked by the fact that a vacancy is not required to convert an employee under s 149B of the PS Act. Therefore, I find that cl 11.5 of the Certified Agreement poses no impediment to the Appellant being converted to permanent.

Conclusion

  1. [94]
    For the reasons detailed above, I conclude the Decision to maintain the Appellant on a casual or temporary basis is not fair and reasonable. There is a continuing need for the Appellant to continue working in the Role or a role that is substantially the same and the Respondent has not evidenced a genuine operational requirement that reasonably prevents conversion of the Appellant to permanent employment.
  1. [95]
    I order accordingly.

Order:

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

  1. The appeal is allowed;
  1. The decision that the Appellant not have his employment converted to permanent is set aside and another decision is substituted; and
  1. The Appellant's employment status be converted to permanent employment.

Footnotes

[1] Appeal Notice, 26 November 2021, 1. 

[2] Ibid 1. 

[3] Respondent's Submissions, 13 December 2021, 2 [8]a; Appellant's Submissions in Reply, 20 December 2021, 1 [2].

[4] Ibid.

[5] Respondent's Submissions, 13 December 2021, 1 [4]; Appellant's Submissions in Reply, 20 December 2021, 1 [2].

[6] Letter from Mr J. Shepherd to Mr J. Patel, Distribution Centre Manager - SEQ, 18 October 2021. 

[7] Respondent's Submissions, 13 December 2021, 1 [4]-[5].

[8] Morgan v State of Queensland (Queensland Health) [2022] QIRC 081.

[9] Appellant's Submissions in Reply, 20 December 2021, 2 [11].

[10] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[11] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[12] Industrial Relations Act 2016 (Qld) s 567(2).

[13] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

[14] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[15] [2021] QIRC 013, 15 [53]; Respondent's Submissions, 13 December 2021, 3 [9]c.

[16] McAllister v State of Queensland (Queensland Health) [2021] QIRC 435, [26].

[17] This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).

[18] Respondent's Submissions, 13 December 2021, 2 [7].

[19] Ibid [8].

[20] Ibid 3 [10].

[21] Ibid 2 [8]f, [10].

[22] Respondent's Submissions, 18 March 2021, 2 [6]c.

[23] Respondent's Submissions, 13 December 2021, 3 [11].

[24] Ibid 4 [17].

[25] Ibid [19].

[26] Ibid [21].

[27] Ibid [22].

[28] Ibid 5 [23].

[29] Appellant's Submissions in Reply, 20 December 2021, 2 [4], [8].

[30] Appellant's Further Submissions in Reply, 11 January 2022, 2 [4].

[31] [2021] QIRC 152, 25 [120].

[32] [2021] QIRC 435, [35]a).

[33] Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611, [131].

[34] Respondent's Submissions, 13 December 2021, 2 [8].

[35] Respondent's Further Submissions, 18 March 2021, 2 [6]c.

[36] Appellant's Submissions, 6 December 2021, 1-2 [1], [11].

[37] [2021] QIRC 435, 7 [29].

[38] Affidavit of Barry Graham Watson, 16 March 2022.

[39] Respondent's Further Submissions, 18 March 2022, 2 [6]a.

[40] Ibid [6]b.

[41] Recommendation of Industrial Commissioner Hartigan, D/2021/41: Australian Workers' Union of Employees, Queensland v State of Queensland (Queensland Health), 27 May 2021, [7].

[42] Respondent's Further Submissions, 18 March 2022, 2 [6]c.

[43] Industrial Relations Act 2016 (Qld) s 567(2).

[44] [2021] QIRC 212, 20 [89].

[45] [2021] QIRC 152, 27 [136].

[46] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269. 

[47] IW v City of Perth (1997) 191 CLR 1, 12.

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

[49] Respondent's Submissions, 13 December 2021, 2 [12].

[50] Ibid [13].

[51] Ibid [14].

[52] Ibid [15].

[53] Ibid [16].

[54] Appellant's Submissions in Reply, 20 December 2021, 2 [6].

[55] [2021] QIRC 319.

[56] [2021] QIRC 290.

[57] [2021] QIRC 144.

[58] [2021] QIRC 046.

[59] [2021] QIRC 052.

Close

Editorial Notes

  • Published Case Name:

    Morgan v State of Queensland (Queensland Health) (No. 2)

  • Shortened Case Name:

    Morgan v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2022] QIRC 132

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    06 Apr 2022

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
Benson v State of Queensland (Department of Education) [2021] QIRC 152
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Deverge v State of Queensland [2021] QIRC 46
2 citations
Jump To
Cite 1 - [2021] QIRC 46
Cite 2 - [2021] QIRC 46
Finn v State of Queensland (Department of Health) [2021] QIRC 144
2 citations
Jump To
Cite 1 - [2021] QIRC 144
Cite 2 - [2021] QIRC 144
IW v City of Perth (1997) 191 CLR 1
2 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Joshi v State of Queensland (Queensland Health) [2021] QIRC 212
2 citations
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Cite 1 - [2021] QIRC 212
Cite 2 - [2021] QIRC 212
Katae v State of Queensland [2018] QSC 225
2 citations
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Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 13
2 citations
Jump To
Cite 1 - [2021] QIRC 13
Cite 2 - [2021] QIRC 13
McAllister v State of Queensland (Queensland Health) [2021] QIRC 435
4 citations
Jump To
Cite 1 - [2021] QIRC 435
Cite 2 - [2021] QIRC 435
Cite 3 - [2021] QIRC 435
Cite 4 - [2021] QIRC 435
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
2 citations
Jump To
Cite 1 - (2010) 240 CLR 611
Cite 2 - (2010) 240 CLR 611
Morgan v State of Queensland (Queensland Health) [2022] QIRC 81
2 citations
Jump To
Cite 1 - [2022] QIRC 81
Cite 2 - [2022] QIRC 81
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
Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 52
2 citations
Jump To
Cite 1 - [2021] QIRC 52
Cite 2 - [2021] QIRC 52
Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 319
2 citations
Jump To
Cite 1 - [2021] QIRC 319
Cite 2 - [2021] QIRC 319
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
2 citations
Jump To
Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260
Woodhouse v State of Queensland (Queensland Health) [2021] QIRC 290
2 citations
Jump To
Cite 1 - [2021] QIRC 290
Cite 2 - [2021] QIRC 290

Cases Citing

Case NameFull CitationFrequency
Johnson v State of Queensland (Queensland Health) [2022] QIRC 2891 citation
1

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