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  4. Simpson-Page v State of Queensland (Queensland Health) - [2022] QIRC 21

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Simpson-Page v State of Queensland (Queensland Health)[2022] QIRC 21

Simpson-Page v State of Queensland (Queensland Health)[2022] QIRC 21

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Simpson-Page v State of Queensland (Queensland Health) [2022] QIRC 021

PARTIES: 

Simpson-Page, Emily

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/373

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

31 January 2022

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – where the appellant requested a review for conversion to permanent employment – whether there is a continuing need for the appellant to be employed in the role or a role substantially the same – whether there are genuine operational requirements preventing conversion – where employment on tenure is not viable or appropriate

LEGISLATION:

Public Service Act 2008, s 149B

Industrial Relations Act 2016, s 562C

Directive 09/20: Fixed term temporary employment

Reasons for Decision

Appeal Details

  1. [1]
    Ms Simpson-Page (the Appellant) is currently employed by the State of Queensland (Queensland Health), (the Respondent) as a Medical Physics Cadet in Cancer Care Services, at the Royal Brisbane & Women's Hospital, with the Metro North Hospital and Health Service (MNHHS).
  1. [2]
    The Respondent's submissions explain the role of Medical Physicists as

highly trained health professionals who apply their knowledge of physics to the development and use of medical radiation treatments, devices and technologies.  In the radiation oncology context, Medical Physicists work with physicians, nurses, therapists and engineers in the delivery of radiotherapy for the treatment of cancer.  Radiation Oncology Medical Physicists are involved in clinical consultancy, treatment delivery and verification, quality assurance and the clinical implementation of the latest treatment technologies.[1]

  1. [3]
    Ms Simpson-Page commenced her continuous fixed term temporary employment on 19 August 2019 as a level HP3 Research Physicist in Cancer Care Services.  Her temporary employment contract within MNHHS has been extended three times and she has been performing her current role since 30 June 2020.
  1. [4]
    On 6 October 2021, following a review of Ms Simpson-Page's employment status, Melissa Eastgate, A/Executive Director of Cancer Care Services wrote to Ms Simpson Page and informed her that she was not being converted to permanent employment and will continue as a fixed term temporary employee at this time. 
  1. [5]
    The letter informed Ms Simpson-Page that she satisfied the merit requirements for the role but that the decision not to permanently appoint her was based on continuing staffing needs, specifically:
  1. a)
    there is no continuing need for you to perform your current role of Medical Physics Cadet because the current role that you are performing is temporarily funded by the Australasian College of Physical Scientists and Engineers in Medicine (ACPSEM) from 30 June 2020 and has a defined end date of 30 June 2023. There will be no further funding for the position beyond this date.
  2. b)
    there is no continuing need for you to perform a role that is substantially the same. The RBWH is the only Metro North Health facility that employs Medical Physicists.  I can confirm that there are no permanently vacant positions within Medical Physics at RBWH that you could be considered for.

Legislative Framework

  1. [6]
    Section 149B of the Public Service Act 2008 (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
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.

…

  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

…

  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.

The Directive

  1. [7]
    While all the provisions of Directive 09/20: Fixed term temporary employment (the Directive) have been considered, particular attention is paid to the following provisions:

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.

4.2  Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B.

4.3  Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee.

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

4.5  Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. …

…

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.

8.3  If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:

  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.

8.4  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.

8.5  Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6  Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.

8.7  Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.

What decisions can the Commission make?

  1. [8]
    In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (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.

Appellant Submissions

  1. [9]
    Ms Simpson-Page says that the decision of the Respondent was unfair and unreasonable and that there is a continuing need for her role.
  1. [10]
    Ms Simpson-Page says that the fact that the role is funded by an external scholarship source, ACPSEM, does not displace whether there is a continuing need for her to perform as an HP3 Medical Physicist within the work unit.[2]
  1. [11]
    Ms Simpson-Page says that the decision is in error by stating that her role is temporarily funded by ACPSEM when only 56% of her role is externally funded by ACPSEM. Ms Simpson-Page says that 44% of her role is funded by MNHHS and that MNHHS has failed to provide reasons why she could not, in the very least, be offered to convert to permanent employment status at 0.5 FTE given the continuing need for her role within Cancer Care Services.
  1. [12]
    With regard to the MNHHS decision that there was no continuing need for her to perform a role substantially the same as there are "no permanently vacant positions within Medical Physics at RBWH [Royal Brisbane Women's Hospital] that you could be considered for", Ms Simpson-Page says that the test under s 149A(2)(a)(i) of the PS Act "does not require there to be a vacant role substantially the same, only that there be a continuing need for the Appellant to be employed in the role or a role substantially the same".[3]
  1. [13]
    Ms Simpson-Page says that she has been working in substantially the same role for greater than two years and contributing to the clinical roster across the team.  Ms Simpson-Page says that there are permanently employed HP3 Medical Physicist Registrars, who are not on a Cadet program scholarship under ACPSEM and there is a continuing need in a role substantially the same.
  1. [14]
    Ms Simpson-Page says that as she meets the merit requirement, there is a continuing need for her in her current role or a role substantially the same, there is no industrial instrument requirements to be complied with, and no genuine operational requirements to be preclude her conversion, she should be converted to permanent employment status.

Respondent Submissions

Background

  1. [15]
    The Respondent provides an employment history for Ms Simpson-Page.  It is clear that from 19 August 2019 until 4 September 2020, Ms Simpson-Page was employed to undertake backfilling of other staff members on a fixed term temporary basis.  From 30 June 2020, the reason given for Ms Simpson-Page's contract is '3 year fixed term Cadetship commenced by Emily Simpson-Page following MNHHS receiving Commonwealth grant of $60,000 per year for 3 years to be trained and acquire ACPSEM registration'.[4]

Cadetship/ACPSEM

  1. [16]
    MNHHS says that it was successful in obtaining a funding agreement from the ACPSEM to support employment of a Medical Physics trainee (or cadet) for the three year duration of that cadet's enrolment in the ACPSEM's Training, Education and Assessment (TEAP) program.[5]
  1. [17]
    The funding agreement is for $60,000 per annum for the three years with no escalation.  This results in a shortfall between the HP3 wage and the funding agreement which is met by MNHHS.  Not including superannuation, allowances, on costs such as sick leave or EB increases, the short fall is: year one, $23, 561; year two, $28, 975; year three, $35, 281.[6]
  1. [18]
    Successful completion of the ACPSEM's TEAP program automatically confers ACPSEM registration as a 'Qualified Medical Physics Specialist'.  The registration indicates that a medical physicist is 'safe to practice' in the important and specialised area of Radiation Oncology Medical Physics.  Registration is generally expected of applicants for senior Medical Physics roles in public and private radiation oncology facilities in Queensland and is a requirement or employment as a Radiation Oncology Medical Physicist interstate. In Queensland, the MPARI (Medical Physics Attraction and Retention Incentive), paid to physicists at HP4 level and above is at least 40% greater for ACPSEM QMPS registered physicists than for non-registered physicists.[7]
  1. [19]
    Enrolment in the ACPSEM TEAP gives trainees (cadets) the opportunity to participate in all areas of the Radiation Oncology Medical Physics service and therefore, ACPSEM TEAP cadets therefore make important contributions to the Radiation Oncology Medical Physics services wherever they are employed.   Physicists temporarily employed at the HP3 level who are not enrolled in the program are unlikely to be permitted those opportunities and may instead by asked to complete a limited range of technical tasks due to the ongoing lack of training.[8]
  1. [20]
    The Medical Physicist whose role had caused the backfilling vacancies was expected to return from maternity leave on 4 September 2020 and following her return there would be no opportunity for ongoing work or additional contracts as all positions would be filled.  The intention of the funding application is that if successful, Ms Simpson-Page would be the cadet and this was discussed and agreed to by Ms Simpson-Page.[9]

Submissions in response to this appeal

  1. [21]
    Section 148(2) of the PS Act notes that employment of a person on tenure may not be viable or appropriate if the employment is for, in part:
  1. (a)
    to fill a temporary vacancy arsing because a person is absent for 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. [22]
    MNHHS says that Ms Simpson-Page was initially employed as a fixed term temporary employee as per s 148(2)(a) of the PS Act to provide backfill relief for an employee on secondment and then on leave, and then progressed to be employed as per section 148(2)(b) of the PS Act when she commenced in the Cadet training role.
  1. [23]
    According to MNHHS, the employee on parental leave did return from leave on 16 September 2020 and had Ms Simpson-Page not progressed into the Cadet training role, her temporary employment would have ceased on 16 September 2020, following approximately 13 months total employment.[10]
  1. [24]
    Due to the set period of the training role, the Respondent determined that there was no continuing need in the same or substantially the same role.
  1. [25]
    MNHHS also says that pursuant to s 149A(3) of the PS Act, it was not viable or appropriate to offer conversion to permanency to Ms Simpson-Page when considering genuine operational requirements
  1. [26]
    MNHHS points to s 25 of the PS Act, The management and employment principles which state relevantly:
  1. (1)
    Public service management is to be directed towards—
  1. (a)
    providing responsive, effective and efficient services to the community and the Government and;

…

  1. (e)
    managing public resources efficiently, responsibly and in a fully accountable way.
  1. [27]
    MNHHS says that the direct costs to it from a decision to convert Ms Simpson-Page's employment from temporary to permanent would be dependent on the number of hours determined in that decision.  However, approximate costs would be $120,000.00 per annum.[11]
  1. [28]
    A further possible outcome from a decision to convert a three year cadet to permanent would be a withdrawal of the service from this training.  RBWH has been a leader in Radiation Oncology Medical Physics training for at least the last four years and has produced outstanding Medical Physicists via a carefully planned and well managed implementation of the ACPSEM TEAP program. 
  1. [29]
    MNHHS says that the RBWH has the range of clinical equipment and multi-disciplinary support needed to deliver a high-quality training program which has the potential to deliver qualified Radiation Oncology Medical Physicists into departments that have more limited training capabilities.  The withdrawal of the service from the ACPSEM TEAP training program may detrimentally impact the Medical Physics staffing of other (including regional) Queensland Radiation Oncology departments in the medium and long term.[12]

Ms Simpson-Page submissions in reply

  1. [30]
    Ms Simpson-Page says that there are ACPSEM TEAP qualified medical physicist in Queensland who are permanently employed at the HP3 level.  Ms Simpson-Page is seeking conversion to permanent employment status at the HP3 level.
  1. [31]
    With regard to the MNHHS submissions regarding the 40% Medical Physicists Attraction and Retention Incentive payment, Ms Simpson-Page says that HP3 level medical physicists do not receive the payment.
  1. [32]
    Ms Simpson-Page contends that converting her employment to permanent will not remove the opportunity for training or scholarship from other staff or potential employees as it is a defined three year program.  When the training program ends, the scholarship will end and other staff or potential trainees will be able to be selected for new scholarships offered by the course.
  1. [33]
    Ms Simpson-Page notes that s 148(2) of the PS Act refers to circumstances where employment on tenure may not be viable or appropriate.  Ms Simpson-Page submits that these purposes are not the only consideration and do not preclude her conversion.
  1. [34]
    Ms Simpson-Page says that prior to being employed in the training program, she was required to be employed on a frequent and regular basis for temporary backfill arrangements and that s 148(3) of the PS Act is enlivened, making employment on tenure both viable and appropriate.
  1. [35]
    With regard to s 149A(2)(a)(i), Ms Simpson-Page submits that there are already staff employed as permanent HP3 Medical Physicists at RBWH some of whom are currently undertaking TEAP training and some who are not, and this demonstrates that there is a continuing need in the same or substantially the same role.
  1. [36]
    The decision maker stated that there are no permanently vacant positions within Medical Physics at RBWH that Ms Simpson-Page can be considered for.  Ms Simpson-Page contends that the test for whether there is a continuing need in a role or a role substantially the same does not require there to be a vacant role substantially the same, only that there is a continuing need for the Appellant to be employed in a role or a role substantially the same.
  1. [37]
    Ms Simpson-Page has been working at RBWH for greater than two years in substantially the same role, contributing to the clinical roster across the team and this is further evidence of her continuing need in the role.
  1. [38]
    Ms-Simpson-Page submits that the cost of conversion to permanent is grossly over-estimated by MNHHS. Ms Simpson-Page says that given the scholarship component of her role funds just under 56% of her position, she would accept conversion at 0.4 FTE while remaining working full time while completing her TEAP training.
  1. [39]
    Ms Simpson-Page rejects the MNHHS submissions about the future of the program at RBWH and says that while ACPSEM funds some of the scholarships, not everyone who undertakes the program is funded by ACPSEM.  Ms Simpson-Page says that once the training ends, the Health Service will continue to fund any permanent component of her role and therefore her employment status will not affect funding arrangements already agreed by ACPSEM and the service or interfere with her TEAP training.

Consideration

  1. [40]
    It is not in dispute that Ms Simpson-Page is eligible for review of her employment status or that she has standing to make this appeal.
  1. [41]
    Ms Simpson-Page meets the merit requirement for the role and so the only criteria to be considered is whether there is an ongoing need for her to be employed in the role or a role substantially the same.
  1. [42]
    Essentially, Ms Simpson-Page's submission is that she has been performing the role or a role substantially the same in a continuing way for over two years and that this is a demonstration of the continuing need for her to perform the role.
  1. [43]
    MNHHS however, says that since the return of the employee who was on parental leave and requiring backfill, Ms Simpson-Page has been employed wholly to complete the cadetship and not due to a continuing need for someone to be in the role or a role that is substantially the same.
  1. [44]
    Based on the material before me, I accept the submission of MNHHS that if not for the ACPSEM TEAP scholarship/cadetship program, there would not have been a need for Ms Simpson-Page to continue to be employed as all other roles substantially the same were currently being completed by substantive employees.
  1. [45]
    I was provided with a copy of the Role Description for the Radiation Oncology Medical Physicist (Cadet) role. The role description indicates that the position is for a fixed term of three years.

Radiation Oncology Medical Physicists provide a scientific service for the support of radiation treatment in Cancer Care Services at the Royal Brisbane and Women's Hospital and assist with the proper and accurate treatment of patients with cancer through scientific and technical means.

The purpose of this position is to complete the Australasian College of Physical Scientists and Engineers in Medicine (ACPSEM) Training, Education and Accreditation Programme (TEAP) in Radiation Oncology Medical Physics.[13] (my emphasis)

  1. [46]
    It appears that it is the scholarship that has enabled or prompted Ms Simpson-Page's employment and that MNHHS has allocated resources to 'top-up' the scholarship in order to support the further development of Medical Physicists.
  1. [47]
    To that end, Ms Simpson-Page's engagement is reflective of the circumstances referred to in s 148(2) of the PS Act, being that her engagement directly relates to performance of work for a particular purpose, being a training program, with a set end date.
  1. [48]
    While I agree with Ms Simpson-Page that converting her employment would not necessarily mean that the MNHHS would no longer participate in the ACPSEM TEAP or that existing employees would be unable to participate, I understand the predicament that MNHHS faces with regard to Ms Simpson-Page's application for conversion.
  1. [49]
    If Ms Simpson-Page's employment were to be converted, even into 0.4 FTE, the funding provided by MNHHS to 'top up' the scholarship would then be diverted to her ongoing permanent employment as an HP3 and would no longer be available to 'top up' scholarship funding for a future participant in the scholarship program. To that end, MNHHS may determine that it will not be able to make application for the cadetship program for future participants.
  1. [50]
    I agree with Ms Simpson-Page that continuing in 'the role' or 'a role substantially the same' does not require the availability of a permanent vacancy.  However, it does require a consideration of whether there is continuing work to be undertaken by Ms Simpson-Page.  The circumstances that led to her employment for backfilling purposes no longer exist.  The work that was required to be done by Ms Simpson-Page in the backfilling role is now being undertaken by the substantive employees.  This leads to a conclusion that there is no continuing need for Ms Simpson-Page to be employed in a role substantially the same.
  1. [51]
    MNHHS says that Ms Simpson-Page is wholly engaged for the purposes of the cadetship program.  Ms Simpson-Page says in her submissions that once the cadetship program she is participating in ends, 'other staff or potential trainees will be able to be selected for new scholarships as offered by the ACPSEM TEAP training course'. This means that when the cadetship program is complete, there is no continuing need for Ms Simpson-Page to be employed in the 'the role' she is currently undertaking.  The 'cadetship role', should MNHHS apply for the scholarship and allocate funding to topping it up, would be undertaken by a new or existing employee wishing to engage with the cadetship. 
  1. [52]
    I am of the view that there is not a continuing need to employee Ms Simpson-Page as a cadet in 'the role' she is currently undertaking and I accept the MNHHS submissions that there is not a continuing role 'substantially the same' for Ms Simpson-Page to be converted into.
  1. [53]
    I appreciate that Ms Simpson-Page is currently 'contributing to the clinical roster across the team' but I note that at the conclusion of her cadetship, there will be an opportunity for another medical physicist to be employed in a cadetship role and similarly contribute to the clinical roster.  This would mean that a new cadet would be doing the work currently being undertaken by Ms Simpson-Page.
  1. [54]
    Having determined that there is not a continuing need for Ms Simpson-Page to be employed, it is not necessary to consider whether genuine operational requirements preclude her conversion.  However, in this regard, I will note that the conversion of Ms Simpson-Page, even at the 0.4 FTE she suggests may be reasonable, would impose a financial cost upon MNHHS that may impact on the capacity of the health service to support future participants in the cadet training program.
  1. [55]
    I am satisfied that it is not viable or appropriate for Ms Simpson-Page to be converted to permanent and it was open to the decision maker to determine that Ms Simpson-Page's fixed term temporary engagement would continue.
  1. [56]
    The decision appealed against is confirmed.

Footnotes

[1]  Respondent submissions 1 December 2021.

[2]  Notable case 174/18 as cited in Purvis v State of Queensland (Department of Housing and Public Works) [2021] QIRC 40, [27].

[3]  Ms Simpson-Page's appeal notice filed 27 December 2021 citing Neilsen v State of Queensland (Queensland Health) [2021] QIRC 305, [18].

[4]  Respondent Submissions filed 1 December 2021, [6].

[5]  Submissions of the Respondent filed 1 December 2021, Attachment 6,

[6]  Submissions of the Respondent filed 1 December 2021, [9].

[7]  Submissions of the Respondent filed 1 December 2021, [10].

[8]  Submissions of the Respondent filed 1 December 2021, [11]-[12].

[9]  Submissions of the Respondent filed 1 December 2021, [13]

[10] Submissions of the Respondent filed 1 December 2021, [19].

[11] Submissions of the Respondent filed 1 December 2021, [23].

[12] Submissions of the Respondent filed 1 December 2021, [24].

[13]  Submissions of the Respondent filed 1 December 2021, Attachment 5.

Close

Editorial Notes

  • Published Case Name:

    Simpson-Page v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Simpson-Page v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 21

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    31 Jan 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
Neilsen v State of Queensland (Queensland Health) [2021] QIRC 305
1 citation
Jump To
Cite 1 - [2021] QIRC 305
Purvis v State of Queensland (Department of Housing and Public Works) [2021] QIRC 40
1 citation
Jump To
Cite 1 - [2021] QIRC 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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