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  4. Oakland v State of Queensland (Queensland Health) - [2022] QIRC 166

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Oakland v State of Queensland (Queensland Health)[2022] QIRC 166

Oakland v State of Queensland (Queensland Health)[2022] QIRC 166

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Oakland v State of Queensland (Queensland Health) [2022] QIRC 166

PARTIES:

Oakland, Annette

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/199

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

6 April 2022

HEARING DATE:

6 April 2022

MEMBER:

Merrell DP

HEARD AT:

Brisbane

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 7 March 2022 and Respondent's written submissions filed on 25 March 2022.

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 Respondent's Richlands Distribution Centre – review of Appellant's fixed term temporary employment – decision made by Respondent not to convert Appellant's employment to permanent 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 at the time it was made – decision appealed against confirmed

LEGISLATION:

Industrial Relations Act 2016, s 562B and s 562C

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

Queensland Public Health Sector Certified Agreement (No. 10) 2019, cl 11.5 and cl 11.6

CASES:

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

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

APPEARANCES:

Mr A. Santelises, Mr B. Watson and Ms K. Hills of The Australian Workers' Union of Employees, Queensland for the Appellant.

Ms T. O'Connor and Mr M. Uzelin of the State of Queensland (Queensland Health) for the Respondent.

Reasons for Decision (ex tempore)

  1. [1]
    Ms Annette Oakland is currently employed as an Operational Support Officer, classification OO2, at the Richlands Distribution Centre. The Richlands Distribution Centre is a facility operated by Queensland Health ('the Department'). Ms Oakland is currently employed on a fixed term temporary basis and has been so employed since 2019.
  1. [2]
    In a letter dated 14 January 2022, from Mr David Sinclair, Executive Director, COVID‑19 Supply Chain Surety Division, Ms Oakland was advised of the result of his review, undertaken pursuant to the Public Service Act 2008 ('the PS Act') and pursuant to Directive: 09/20 Fixed term temporary employment ('the Directive'), of Ms Oakland's temporary employment status. Mr Sinclair's decision was that Ms Oakland's employment status would remain as fixed term temporary and that she would continue in the role of Supply Officer, classification OO2, until 23 January 2022 when her temporary contract was to end ('the decision').
  1. [3]
    By appeal notice filed on 3 February 2022, Ms Oakland appealed against the decision.
  1. [4]
    It is common ground that Ms Oakland meets the merit requirements for conversion. It is also common ground that Ms Oakland's fixed term temporary employment has been further extended from 24 January 2022 to 1 May 2022.
  1. [5]
    The order sought by Ms Oakland is that the decision be set aside and another decision be substituted, namely, that her employment status be converted to permanent employment.
  1. [6]
    The question for my determination is whether the decision was fair and reasonable.[1]

Background

  1. [7]
    According to the Department's submissions, Ms Oakland commenced employment with Health Support Queensland on 9 September 2019, however, due to genuine operational requirements, she was offered and accepted fixed term temporary employment on that same day.
  1. [8]
    The Department further submits that Ms Oakland:
  1. has performed roles that are considered the same or similar, and has had 17 fixed term temporary contracts, with nine of those contracts being for a period of less than one month; and
  2. is currently on a fixed term temporary contract until 1 May 2022 and '… there is no expectation that the contract will be renewed after this date.'
  1. [9]
    I have dealt with a similar appeal involving a fixed term, temporary Operational Support Officer, classification OO2, at the Richlands Distribution Centre in McAllister v State of Queensland (Queensland Health) ('McAllister').[2] In McAllister, I confirmed a decision not to appoint the appellant to permanent employment. The appellant in that case commenced fixed term temporary employment on the same day as Ms Oakland and commenced such employment at the Richlands Distribution Centre for the same reasons as Ms Oakland. In my reasons for decision, I relevantly stated:
  1. [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.

The decision

  1. [10]
    In the decision, Mr Sinclair relevantly stated:

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons are:

  • your role was one of a large number of temporary positions that were created within Supply Chain Services, COVID-19 Supply Chain Surety Division to support the rollout of the S/4HANA project and the ongoing response to the COVID‑19 pandemic and may not be required past the period of increased demand resulting from the pandemic.
  • Forecast modelling associated with the recently announced new Distribution Centre indicates that additional permanent staffing will not be required.

I have considered the conditions for conversion in the Act and determined that you have demonstrated merit. However, there are genuine operational requirements of Queensland Health that mean it is not viable or appropriate to convert you at this time. Specifically, your role was created as a temporary position to support the roll out of the S/4HANA project and respond to the COVID-19 pandemic and may not be required past the period of increased demand resulting from the pandemic, as evidenced in operational documents.

In late 2021, it was announced that a new Distribution Centre was being commissioned in Richlands. Forecast modelling indicates that following a transition period, the new Distribution Centre will not require permanent staffing levels beyond those that are already established, resulting in there being no operational requirement for the temporary positions, such as yours to continue beyond the timeframes mentioned above.

Ms Oakland's submissions and material

  1. [11]
    It was submitted on behalf of Ms Oakland that:
  1. the continuing need for her to be employed in the role is demonstrated by the repeated, temporary contracts of employment that she has worked for the duration of her employment with the Department;
  2. the Department's claim to have genuine operational reasons not to convert her employment to a permanent basis was disputed on the basis of the affidavit of Mr Barry Watson, Senior Industrial Advocate for The Australian Workers' Union of Employees, Queensland ('the AWU'), which contained evidence that the Department has or will be creating nine additional permanent positions '… at the workplace that the Appellant will be working this year.'; and
  3. noting the evidence of Mr Watson, the Department has no reason for not converting Ms Oakland's employment to permanent employment.
  1. [12]
    Mr Watson's evidence was that:
  1. on 11 February 2022, he met with Mr Sinclair and other persons to discuss the resource issues surrounding the Department's Distribution Centres at Richlands and Inala;
  2. in the course of that meeting, Mr Sinclair indicated that the Department had determined that the staffing component for the new distribution centre would require nine additional permanent employees beyond the current staffing allocation; and
  3. the new distribution centre is co-located with the current distribution centre at Richlands, it will replace the current centres at Richlands and Inala and is expected to be operational by the end of 2022.

The Department's submissions

  1. [13]
    The Department relevantly submitted that:
  1. Ms Oakland's appointment was due to the Department increasing its contingency labour of Supply Officers to address a sudden and significant increase in demand due to the implementation of S/4HANA, being a digital system which provides centralised finance, business and logistics solutions;
  2. the requirement for contingency labour began to decrease in early 2020, however, another extraordinary and significant increase in demand occurred in the form of the COVID-19 pandemic;
  3. at the time, the Department chose to address the increased demand by utilising the existing contingency labour, which had been engaged following the S/4HANA implementation;
  4. in accordance with s 149A(2)(a)(i) of the PS Act, Mr Sinclair:
  1. considered whether there was a continuing need for the role of temporary supply officers as part of the contingency labour force;
  2. considered the increase in demand had subsided, and the increase in the contingency workforce may not be required past the period of increased demand resulting from the COVID-19 pandemic; and
  3. considered the forecast modelling associated with the new Richlands Distribution Centre;
  1. when Mr Sinclair considered the matter, the forecast modelling at the time indicated there was no continuing need for the temporary contingency labour, and the new Richlands Distribution Centre only required the existing establishment to operate the new Richlands Distribution Centre and therefore, it was concluded that there was a genuine operational requirement not to convert Ms Oakland to permanent employment at the time of the review; and
  2. those considerations were fair and reasonable.
  1. [14]
    In respect of Mr Watson's evidence, the Department submitted that the forecast modelling indicated that an additional nine OO2 roles would be required for the new Richlands Distribution Centre, which the Department expects to be operational in 2023. However, the Department disputed Ms Oakland's contention that the modelling demonstrated that she should be converted to permanent employment.
  1. [15]
    In this regard, the Department submitted that Mr Sinclair made the review decision on 14 January 2022, based upon the information available at that time, and that it was unreasonable to expect Mr Sinclair to consider and make a decision regarding the review based on a decision that had not been made at the time of the review decision.
  1. [16]
    The Department then submitted:
  1. When created, the Respondent intends the new positions to be filled utilising the provisions of clause 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Award). This is consistent with the recommendations arising from a dispute determined by Industrial Commissioner Hartigan on 27 May 2021 regarding the use of clause 11.5 in relation to operational stream positions.[3]
  1. [17]
    Clause 11. 5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 ('the certified agreement') provides for a closed merit selection process for filling vacancies. It relevantly provides that:
  1. the parties 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;
  2. if there are any vacant hours remaining after that process, 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;
  3. for OO2 Operational roles, the vacant roles and/or hours will be offered to those permanent part-time employees working at the site, for example a Hospital, rather than the work unit; and
  4. if vacant hours 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 who have two years or more continuous service for base grade or non‑base grade roles with a preference for base grade roles to be given to those employees with more than four years continuous service.
  1. [18]
    The recommendations made by Industrial Commissioner Hartigan arose out of a dispute concerning the appointment of Operational Stream employees to vacant full‑time positions within the Central Queensland Hospital and Health Service.
  1. [19]
    In fact, in that matter, the recommendations sought were joint recommendations proposed by the Department and the AWU. The recommendations made were:

Recommendation 1: The Commission recognises that achieving an appropriate workforce mix may be problematic due to commitments to maximising permanent employment through the conversions of temporary and casual employees and the provisions contained in clause 11.5 of the Agreement. The parties are encouraged to turn their minds to these provisions during future negotiations.

Recommendation 2: The closed merit selection provisions prescribed in clause 11.5 of the Queensland Public Health Sector Certified Agreement (No.10) 2019 shall be used to fill vacant full‑time operational positions in Hospital and Health Services.

  1. [20]
    In making the recommendations, Industrial Commissioner Hartigan recognised that compliance with the Directive by the relevant Health Service did not supersede compliance with cl 11.5 of the certified agreement, and that converting an employee pursuant to the Directive and filling vacant full-time positions are separate and distinct processes, such that a relevant full-time vacant position should be filled in accordance with the certified agreement.
  1. [21]
    In oral submissions, the Department submitted that the nine additional staff referred to by Mr Watson are not currently required.
  1. [22]
    Ms Oakland further submitted that:
  1. there had been six other Operational Support Officers, classification OO2, converted to permanent employment over a time period commencing before the introduction of the S/4HANA system and up to a point in time in the last four months;
  2. clause 11.5 of the certified agreement cannot be relied upon to oust the operation of s 149B of the PS Act and the Directive;
  3. clause 11.5 of the certified agreement is to fill vacancies that have arisen due to resignations and retirements;
  4. the new Richlands Distribution Centre will open in July 2022;
  5. the work required to be done between now and the end of 2022 will be done by current employees including current casual and fixed term temporary employees; and
  6. the nine additional vacancies, which will exist from the end of 2022, will be filled by the operation of cl 11.5 of the certified agreement.

The decision was fair and reasonable

  1. [23]
    The evidence of Mr Watson about the advice he received from Mr Sinclair on 11 February 2022 about the need for nine additional full-time permanent employees to be employed at the new Richlands Distribution Centre was not disputed by the Department.
  1. [24]
    However, there is no evidence to suggest that Mr Sinclair was possessed of that knowledge at the date he made the decision reviewing Ms Oakland's fixed term temporary employment. For me to determine otherwise would be an exercise in speculation.
  1. [25]
    Viewed from this point of view, then in my opinion, Ms Oakland is in no different situation to that of Mr McAllister when I heard and determined his appeal against the decision, not to convert his fixed term temporary employment to permanent employment, in December 2021.
  1. [26]
    The reasons why I found that the decision appealed against in Mr McAllister's case was fair and reasonable were:
  1. the reason for Mr McAllister's fixed term temporary employment from 2019 was to provide labour, in respect of the existing Richlands Distribution Centre, to meet increasing demand experienced since that time;
  2. such demand had abated and the requirement for its contingency labour was reducing such that the reason for Mr McAllister's fixed term temporary employment was abating; and
  3. the existing permanent establishment would be sufficient to efficiently manage the new distribution centre.
  1. [27]
    Having regard to the reasons given by Mr Sinclair, at the time that he made his decision, those same reasons equally apply to Ms Oakland. By s 562B(2) of the IR Act, I am required to review the decision appealed against. Even on that basis, the decision was fair and reasonable.
  1. [28]
    However, there is another way that the decision has been challenged on appeal. This concerns Mr Watson's evidence about the nine additional vacancies at the new Distribution Centre. It is common ground that those nine positions will be operational from sometime later this year or early next year.
  1. [29]
    The Department submits that it will fill the nine vacant positions at the new Richlands Distribution Centre in accordance with cl 11.5 of the certified agreement which was consistent with the Commission's recommendations, to which it referred to in its submissions, regarding Operational Stream positions.
  1. [30]
    Contrary to the submissions made on behalf of Ms Oakland, I do not read cl 11.5 of the certified agreement to be limited to vacancies caused by resignations or retirements. There is nothing in that clause that provides for that.
  1. [31]
    Further, contrary to the submissions made on behalf of Ms Oakland, it is not apparent that cl 11.5 of the certified agreement only operates in conjunction with cl 11.6 of the certified agreement.
  1. [32]
    Clause 11.5 is headed 'Closed Merit Selection Process for Filling Vacancies.'
  1. [33]
    Clause 11.6 is headed 'Replacement of Existing Staff' and contains time frames for which processes, to replace permanent employees who have retired, resigned, been dismissed or have been transferred or promoted, must be commenced and completed. The purpose of cl 11.6 is to ensure there is no net reduction of staff during the life of the certified agreement. Having regard to the headings and purposes of both clauses, they have different work to do.
  1. [34]
    In my opinion, given that there will be nine more vacant, permanent positions to be operational either at the end of this year or at the beginning of next year at the new Richlands Distribution Centre, and given the requirements of the certified agreement referred to above, those facts give rise to a genuine operational requirement against the permanent appointment of Ms Oakland at this time. Given that the number of vacancies at the OO2 classification which will become operational at the one time, namely, nine, and given the purpose of cl 11.5 of the certified agreement, then it seems to me that the appropriate process to fill those vacancies is by the operation of the certified agreement. This is consistent with Industrial Commissioner Hartigan's recommendations.
  1. [35]
    The Department, by the certified agreement, has agreed to apply the process in cl 11.5 of the certified agreement to fill those vacancies. This has been confirmed by the Department in its submissions to me today.
  1. [36]
    Given that Ms Oakland was represented today by the AWU, and given the Department's submissions about the involvement of the AWU in respect of staffing matters concerning the new Richlands Distribution Centre, I would encourage the continuation of direct negotiations between the Department and the AWU about the lawful and fair filling of those nine vacancies. The obvious goal of the parties should be to ensure that the nine additional full-time positions at the new Richlands Distribution Centre are filled in a way that not only complies with any relevant industrial instrument, but is done in a way that lawfully and fairly has regard to the long-term, fixed term temporary employees at the current Richlands Distribution Centre whose positions are classified OO2.
  1. [37]
    I have great sympathy for Ms Oakland and others in her situation at the current Richlands Distribution Centre. I also have great sympathy for the AWU and the advocacy it provides on behalf of its members in respect of, on the one hand, advocating for its members and enforcing s 149B of the Public Service Act 2008 and the Directive and, on the other hand, complying with the certified agreement it has made with Queensland Health, in particular, cl 11.5 of the certified agreement.
  1. [38]
    However, the combined effect of the decision to create nine new positions at the new Richlands Distribution Centre with cl 11.5 of the certified agreement, in my opinion, amount to a genuine operational reason against Ms Oakland's permanent appointment at this time.
  1. [39]
    For the reasons I have given, I cannot say that Mr Sinclair's decision, in respect of Ms Oakland, was other than fair and reasonable.

Order

  1. [40]
    I make the following order:

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

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311, [4]-[7].

[2] [2021] QIRC 435.

[3] Footnotes omitted.

Close

Editorial Notes

  • Published Case Name:

    Oakland v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Oakland v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 166

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • 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
McAllister v State of Queensland (Queensland Health) [2021] QIRC 435
2 citations
Jump To
Cite 1 - [2021] QIRC 435
Cite 2 - [2021] QIRC 435
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
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
2 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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