Marshall v Queensland Museum Network
[2022] QIRC 25
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- Unreported Judgment
- Marshall v Queensland Museum Network[2022] QIRC 25
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Marshall v Queensland Museum Network[2022] QIRC 25
Marshall v Queensland Museum Network[2022] QIRC 25
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Marshall v Queensland Museum Network [2022] QIRC 025 |
PARTIES: | Marshall, Brandon (Appellant) v Queensland Museum Network (Respondent) |
CASE NO.: | PSA/2021/371 |
PROCEEDING: | Public Service Appeal – Conversion of temporary employment |
DELIVERED ON: HEARING DATE: | 21 January 2022 21 January 2022 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 25 November 2021 and Respondent's written submissions filed on 23 December 2021 |
ORDER: | 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 Learning Officer, classification AO4, in the Queensland Museum Network – review, pursuant to s 149B of the Public Service Act 2008, of appellant's fixed term temporary employment – decision made not to offer to convert appellant's employment to permanent employment due to genuine operational requirements, namely, a review of Lifelong Learning within the Queensland Museum Network – appeal against decision – whether decision was fair and reasonable – whether there were genuine occupational requirements such that it was not viable or appropriate to offer to convert appellant's employment to permanent employment – uncompleted review of Lifelong Learning within the Queensland Museum Network amounted to a genuine operational requirement such that it was not viable or appropriate to offer to convert appellant's employment to permanent employment – decision fair and reasonable – decision appealed against confirmed |
LEGISLATION: | Industrial Relations Act 2016, s 562B and s 562C Public Service Act 2008, s 25 and s 149B |
CASES: | Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 |
APPEARANCES: | Mr D. Cummings and Mr M. Thomas of Together Queensland, Industrial Union of Employees as agent for the Appellant. Ms P. Fogarty, Ms N. Blackwell and Mr B. Foley of the Respondent. |
Reasons for Decision (ex tempore)
Introduction
- [1]Mr Brandon Marshall is employed by the State of Queensland in the Queensland Museum Network ('QMN') as a Learning Officer, classification AO4, in what is known as SparkLab. Mr Marshall has been employed on a fixed term, temporary basis in that position since 10 September 2019. Mr Marshall's fixed term temporary employment has been extended four times since that date.
- [2]In November 2020, pursuant to s 149B of the Public Service Act 2008 ('the PS Act'), a review of Mr Marshall's fixed term temporary employment was undertaken by the QMN. In December 2020, the chief executive officer of the QMN informed Mr Marshall that because of a genuine operational requirement, it was not viable or appropriate to convert him to permanent employment at that time. The genuine operational requirement was a review, to be undertaken in early 2021, of the Lifelong Learning function of the QMN. That review involved a review of SparkLab.
- [3]In September 2021, a further review of Mr Marshall's fixed term temporary employment was undertaken by the QMN.
- [4]By letter dated 8 October 2021, Ms Debbie Draper, Acting Chief Executive Officer of the QMN informed Mr Marshall that:
- she had considered the conditions for conversion in the PS Act;
- she had determined that Mr Marshall had demonstrated merit and that there was a continuing need for him to fill his role or a role that is substantially the same; and
- there were genuine occupational requirements of the QMN that meant it was not viable or appropriate to convert Mr Marshall to permanent employment at that time, specifically, '… the Lifelong Learning review (commencing 23 August 2021 and anticipated to be conducted over 12 weeks) is expected to review staffing structure and provide recommendations to enable long-term workforce planning' ('the decision').
- [5]By notice of appeal filed on 27 October 2021, Mr Marshall appealed against the decision.
- [6]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[1]
- [7]The issue for my determination is whether the decision appealed against was fair and reasonable.[2]
Mr Marshall's submissions
- [8]In his written submissions, Mr Marshall contended that:
- it was not an effective, efficient or appropriate management of the public resources of the QMN to rely on a review, that was due to commence at the start of 2020, to continue to preclude his conversion to permanent employment status a year after first using that review to justify not converting him to permanent employment;
- the review cannot be relied on as a genuine operational requirement, particularly when s 25(2)(d) of the PS Act provides that employment on tenure is the default basis of employment in the Queensland public sector;
- the decision of Industrial Commissioner Knight in Brew v State of Queensland (Office of the Public Guardian)[3] was authority for the proposition that not all organisational reviews amount to a genuine operational requirement not to convert in that, on the facts of that case, it was held that:
- -while the review was ongoing, it had progressed sufficiently such that there was in principle support for the reclassification of the relevant position; and
- -in respect of that review, there were no supporting materials or timelines within which it was claimed any changes would or may occur to the position the subject of that appeal;
- as the Lifelong Learning review was due to conclude on 15 November 2021, it should have progressed sufficiently such that there was in-principle support for the requirement and appointment of him to permanent employment;
- the QMN has relied on broad statements regarding the Lifelong Learning review, whereby his position may be affected, in the absence of any supporting materials or timelines within which it is claimed any changes will or may occur; and
- his role is necessarily ongoing as an operational requirement because:
- -he contributes to a team of part-time Learning Officers required to staff a seven‑day operation;
- -SparkLab is an ongoing exhibit at the QMN which does not have a defined end date; and
- -currently six full‑time equivalent employees have been budgeted for SparkLab for the 2021/2022 financial year.
- [9]Mr Marshall then submits:
- The four permanent part-time employees currently employed in SparkLab are unable to staff a seven-day operation at their combined FTE, such that my role is required (refer Attachment 8). SparkLab is an exhibit which is open 362 days a year which requires a minimum of three on‑floor Learning Officers per day to operate and deliver programming. Additional Learning Officers are required to develop new learning programs and resources.
- Six of my colleagues who perform the same role (AO4 Learning Officers) were converted from temporary to permanent part-time employment status in August 2020 without issue after their two-year review. Another colleague who performs this role was converted from temporary to permanent part-time employment after their two-year review in June 2021. I therefore argue the same should be afforded to my employment status.
- In addition, three permanent part-time SparkLab Learning Officers have left roles in the past 12 months with two SparkLab Learning Officers resigning (0.6 FTE and 0.5 FTE), and one 0.45 FTE SparkLab Learning Officer securing permanent employment as an AO5 within a vacant role in Lifelong Learning.
- Consequently, 1.55 FTE has become permanently vacant from the SparkLab Learning Officer role. Given that this vacant FTE is from the current permanent pool, I submit that it would be appropriate to appoint me permanently to the role where the current operating model has already factored in this permanent FTE.
- [10]The relief sought by Mr Marshall is for the decision to be set aside and another decision substituted, namely, granting him permanent employment status.
- [11]In the alternative, Mr Marshall seeks an order that I set aside the decision and return the matter to the decision maker with a copy of the decision on appeal and directions I consider appropriate.
- [12]In oral submissions, Mr Cummings of Together Queensland, Industrial Union of Employees, as agent for Mr Marshall, relied on the written submissions filed by Mr Marshall.
- [13]Mr Cummings also drew my attention to the fifth attachment to those submissions, being an email dated 10 June 2021 from Ms Amy Boulding, Head, Lifelong Learning, to her 'team', which included Mr Marshall ('Ms Boulding's email'), in which Ms Boulding gave an update on the Lifelong Learning review and in which she relevantly stated:
For staff whose employer-initiated temporary to permanent review dates are due during the review period, Patrice has indicated that applications will be declined.
- [14]Mr Cummings, in respect of that statement in Ms Boulding's email, submitted it was evidence that the QMN had completely shut its mind to giving a fair and reasonable consideration of the review of fixed term temporary employees in Lifelong Learning such that it was evidence that tended to support that the decision about Mr Marshall's review was not fair and reasonable.
The QMN's submissions
- [15]The QMN submitted that Mr Marshall's appeal can be summarised into three grounds, namely:
- the Lifelong Learning review can no longer be regarded as a genuine operational requirement not to convert, due to the length of time of the review;
- the conclusion of the review was so near to the decision, the subject of Mr Marshall's appeal, that the review ought to have progressed sufficiently to inform the decision under appeal; and
- the Lifelong Learning review has relied on broad statements, and in the absence of any supporting materials or timelines for implementation, there is no clear impact to the role.
- [16]The QMN rejected the submission that the length of time of the Lifelong Learning review made the decision unfair and unreasonable as '… it is dependent on the information that is available to the decision maker at the time of the review.'[4]
- [17]The QMN also submitted that:
- in December 2020 the QMN, in conjunction with the Board, was considering the strategic priorities into the future more broadly, the impacts the COVID‑19 pandemic was having on the QMN operations and balancing that with staff and visitor expectations;
- the Lifelong Learning function and SparkLab were within the scope as there was a need to better understand a sustainable business model to move forward;
- on 27 May 2021, an external consultant was provided with Terms of Reference and had an undertaking to outline a scope of works of the Lifelong Learning review;
- on 4 June 2021, a Program Proposal was submitted by the external consultant to the QMN for review;
- on 19 August 2021, the chief executive officer of the QMN, Mr Jim Thompson, by email, communicated to the affected employees, including Mr Marshall, that the external consultant would commence the review on 23 August 2021;
- on 24 August 2021, the QMN's Agency Consultative Committee was consulted and was provided with a copy of the Program Proposal; and
- on 23 November 2021, the consultant presented the initial and draft findings and recommendations to the Executive Leadership Team.
- [18]The QMN then submitted that:
- there will be some business model variations that will bring some structural and reporting changes to Lifelong Learning, including SparkLab;
- those changes will be communicated and implemented as part of the overall QMN organisational review;
- a team meeting was held with Lifelong Learning staff on 15 December 2021, where staff were advised of the next steps; and
- QMN has communicated to all staff that the organisational structure is due to be completed and implemented by 1 July 2022.
- [19]In written submissions, the QMN submitted:
- QMN notes that in [sic] Dr Thompson's email dated 19 August 2021 included Mr Marshall because of the very genuine, actual and specific impacts to his position.
- QMN holds the position that general uncertainty does not absolve the decision maker of their obligations under s 98(1)(d) of the Act, however in this instance there is a real, authentic and specific uncertainty, as to Mr Marshall's role and is contingent on the review recommendations and implementation.
- Therefore, QMN submits that there was an imminent indication the role currently being performed by Mr Marshall will be directly impacted by the review, along with all other positions within the Lifelong Learning structure.
- QMN notes that the twelve (12) week anticipated timeframe, set a timeline for the findings to be provided by 15 November 2021, however the external consultant extended his consultation process and provided their report on 2 December 2021. For completeness, stakeholder engagement, by way of consultation and collaboration concluded just prior to this.
- QMN strongly submits that the review had not progressed sufficiently, such that there was information available to the decision maker, to address the specific and authentic impact on Mr Marshall's role, or similar roles within Lifelong Learning.
- [20]In oral submissions, Ms Fogarty, on behalf of the QMN, in addition to the written submissions relied on by the QMN, submitted that Ms Boulding's email was to be seen as legitimate in that the Lifelong Learning review would disturb the reviews that had to be undertaken of fixed term temporary employees in Lifelong Learning in 2021 and, as such, the statement made by Ms Boulding should not be seen as an unfair or unreasonable decision not to review the employment status of fixed term temporary employees.
- [21]Ms Fogarty further submitted that when the first decision was made in 2020 not to offer to convert Mr Marshall's fixed term temporary employment to permanent, the Lifelong Learning review was at the concept stage but had not been conducted; but that at the time of the second review of Mr Marshall's fixed term temporary employment in 2021, the review had moved from the concept stage and was being undertaken.
- [22]In his submissions in reply, Mr Cummings submitted that it was not fair and reasonable for the Lifelong Learning review to be once again cited as a genuine operational requirement by the QMN to continually deny the conversion of Mr Marshall's fixed term temporary employment to permanent, particularly when, on the basis of the information currently provided by the QMN, the organisational structure arising out of that review was not due to be completed and implemented until July this year.
The decision was fair and reasonable
- [23]In Morison v State of Queensland (Department of Child Safety, Youth and Women),[5] I relevantly stated:
- [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.[6]
- [24]Despite the considerable sympathy I have for Mr Marshall and the further delay of a conclusive decision about the review of his fixed term temporary employment brought about by the decision under appeal, in my view, the decision was fair and reasonable. There are a number of reasons for this conclusion.
- [25]First, the circumstances of the present case are sufficiently different from the decision of Industrial Commissioner Knight in Brew v State of Queensland (Office of the Public Guardian). The primary reason for the decision in that case was that there was an absence of evidence which indicated the external review being undertaken by the agency would imminently impact the position the subject of the appeal.
- [26]In the present case, there was undisputed evidence of the review of Lifelong Learning that was to be conducted by an external reviewer in the second part of 2021. The employees of Lifelong Learning were advised of that review by email from the chief executive officer dated 19 August 2021. In that same email, the chief executive officer advised that the review would commence on 23 August 2021 and would be expected to take approximately 12 weeks to complete. Moreover, the chief executive officer did acknowledge that there had been delays in initiating the review. The review of Mr Marshall's employment was required to be undertaken in September 2021.
- [27]There was no dispute from Mr Marshall about the submissions made by the QMN that a meeting was held on 15 December 2021 where the employees of Lifelong Learning were advised of the next steps, including that the organisational structure was due to be completed and implemented by 1 July 2022.
- [28]Secondly, given the genuineness of the Lifelong Learning review, and the fact that review may result in changes to the relevant organisational structure, including to the position in respect of which Mr Marshall is employed on a fixed term temporary basis, there was a genuine operational requirement against the permanent appointment of Mr Marshall at the time his fixed term temporary employment was reviewed in September 2021.
- [29]There is no suggestion made on behalf of Mr Marshall that the Lifelong Learning review was or is a sham. Further, the fact that the QMN will not know what revised organisational structure, if any, may be implemented following the consideration of the Lifelong Learning review recommendations, then that uncertainty was an operational matter that militated against the making of an offer of permanent employment to Mr Marshall in October 2021.
- [30]It seems to me that the chief executive officer of the QMN, in his email to the affected employees dated 19 August 2021, acknowledged that there had been delays in the review commencing and being completed. The fact that there has been a delay in the completion of the review does not mean that the review (that has been undertaken and completed, and from which organisational change may now occur) is not genuine or in any event should have been discounted by the decision maker in determining whether or not to make an offer to Mr Marshall to convert his fixed term temporary employment to permanent employment.
- [31]The timeliness of the management of the Lifelong Learning review by the QMN has not been optimal. I can understand why Mr Marshall has been disappointed that there has been no determinative review of his fixed term temporary employment by the QMN, for the last two years, relying upon the Lifelong Learning review.
- [32]However, on the basis of the submissions made by the QMN, the review has now been completed and a decision will be made about the organisational structure of Lifelong Learning, which is to be implemented by 1 July this year.
- [33]On this basis, there can be no more excuses by the QMN in making a final decision about the fixed term temporary nature of Mr Marshall's employment.
- [34]Indeed, all things being equal, if, as the QMN submits, the organisational structure is to be completed and implemented by 1 July 2022, then there is no reason why a decision about Mr Marshall's fixed term temporary employment could not and should not be made soon after that time or at a time prior to the next time that the QMN is required to review his employment status under the PS Act, which would be September 2022.
- [35]However, for the reasons I have given above, my view is that the decision was fair and reasonable.
Conclusion
- [36]The question in this appeal was whether the decision appealed against, namely, Ms Draper's decision dated 8 October 2021 not to convert Mr Marshall's fixed term temporary employment to permanent employment, was fair and reasonable.
- [37]For the reasons I have given, that decision was fair and reasonable.
Order
- [38]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] Industrial Relations Act 2016 s 562B(3).
[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 ('Morison'), [4]-[7].
[3] [2021] QIRC 188.
[4] The Respondent's submissions filed on 23 December 2021, para. [18].
[5] Morison (n 2).
[6] Citations and footnotes omitted.