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Sarnadsky v State of Queensland (Queensland Health)[2022] QIRC 28

Sarnadsky v State of Queensland (Queensland Health)[2022] QIRC 28

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sarnadsky v State of Queensland (Queensland Health) [2022] QIRC 28

PARTIES: 

Sarnadsky, Nicholas

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/421

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

4 February 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. 1.The appeal is allowed;
  2. 2.The decision that Mr Sarnadsky not have his employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Mr Sarnadsky's employment status be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary and casual employment – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – where the outcome of the review was that the appellant was not permanently appointed consideration of genuine operational requirements – where decision was not fair and reasonable

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Financial Accountability Act 2009 (Qld)

Hospital and Health Boards Act 2011 (Qld)

Industrial Relations Act 2016 (Qld) s 451, s 555, s 564, s 562B, s 562C, s 567

Public Service Act 2008 (Qld) s 27, s 147, 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

Hospital and Health Service General Employees (Queensland Health) Award - State 2015 cl 15

Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 5, cl 11

CASES:

Cameron v State of Queensland (Queensland Health) [2021] QIRC 226

Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220

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

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

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

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Nicholas Sarnadsky (the Appellant) is substantively employed as a casual OO2 Operational Services Officer (Wardsperson) at Bundaberg Base Hospital, Wide Bay Hospital and Health Service (WBHHS).[1] Mr Sarnadsky's employer is Queensland Health, State of Queensland (the Department; the Respondent).[2]
  1. [2]
    Mr Sarnadsky has been employed by the Respondent on a casual basis and under various temporary contracts for over two years.[3]
  1. [3]
    In correspondence dated 22 October 2021, the Respondent advised Mr Sarnadsky he is eligible for a review of his fixed term temporary employment under Directive 09/20 Fixed term temporary employment (Directive 09/20) and s 149B of the Public Service Act 2008 (Qld) (PS Act).[4]
  1. [4]
    In correspondence dated 23 November 2021, the Respondent advised Mr Sarnadsky he is "not being converted to permanent employment and will continue as (sic) casual employee at this time, undertaking temporary contracts as required" (the Decision).[5]
  1. [5]
    On 9 December 2021, the Australian Workers' Union (the AWU) on behalf of Mr Sarnadsky filed an appeal against the Decision.

The Decision

  1. [6]
    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. [7]
    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. [8]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [9]
    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 Mr Sarnadsky.

Timeframe for appeal

  1. [10]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [11]
    The Decision was given on 23 November 2021. In accordance with s 564(3) of the IR Act, Mr Sarnadsky filed the Appeal Notice on 9 December 2021.

What decisions can the Commission make?

  1. [12]
    Mr Sarnadsky seeks the Decision be set aside and substituted with a decision to convert his employment status to permanent pursuant to s 555(1) or s 451 of the IR Act.[6]
  1. [13]
    Section 555(1) of the IR Act confers powers on the Court of Appeal rather than the Commission and this appeal will therefore not be determined under that provision.
  1. [14]
    Rather, s 562C(1) of the IR Act specifically confers power on the Commission to make various decisions in Public Service Appeals. Under that provision, the Commission may determine to either:
  • Confirm the decision appealed against; or
  • 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.
  1. [15]
    Section 451(2)(b) of the IR Act states the Commission may "make a decision it considers appropriate, irrespective of the relief sought by a party". The relief sought by Mr Sarnadsky 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.

Appeal principles

  1. [16]
    Section 562B(2) and (3) of the IR Act provide that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [17]
    The appeal is not conducted by way of re-hearing,[7] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[8] 
  1. [18]
    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.[9]
  1. [19]
    The issue for my determination is whether the Decision not to convert Mr Sarnadsky's employment status to permanent was fair and reasonable in the circumstances.[10]

Relevant provisions of the PS Act and Directive 09/20

  1. [20]
    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. [21]
    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. [22]
    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. [23]
    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. [24]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[11]
  1. [25]
    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. [26]
    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. [27]
    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. [28]
    In accordance with the Directions Order issued 10 December 2021, the parties filed written submissions.
  1. [29]
    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. [30]
    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 each question to be decided.

Consideration

  1. [31]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [32]
    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. [33]
    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.[12]

  1. [34]
    The merit criterion is not in dispute.[13] It is noted that no other decision has been made under ss 149A or 149B of the PS Act with respect to Mr Sarnadsky's employment. Therefore, my decision firstly turns on the question of whether there is a continuing need for Mr Sarnadsky 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 Mr Sarnadsky 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. [35]
    There are two potential pathways to conversion. The first pathway is Mr Sarnadsky's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [36]
    The Respondent advised Mr Sarnadsky that "it is difficult to predict whether there will be a continuing need to engage you in accordance with the circumstances outlined in section 148(2) of the PS Act."[14] The Respondent submits that is because the circumstances prescribed "rely upon permanent staff being unable to work their permanent rostered shifts for reasons such as emergent sick leave, carers leave, etc., which is not planned in advance..."[15]
  1. [37]
    Notwithstanding the above, the Respondent concludes that "based on previous patterns of engagement, that it is likely there will be a continuing need to engage" Mr Sarnadsky as either a casual or temporary employee in accordance with the circumstances outlined in s 148(2) of the PS Act. That is, "to enable WBHHS to fulfil its service provision requirements and having regard to the Certified Agreement…"[16] The Respondent notes that the number of hours that may be available to offer Mr Sarnadsky at any time are uncertain and that "such need is based on sound operational and workforce planning reasoning which supports employment continuing on a casual and/or fixed term temporary basis when required (and not converting to permanent) as the nature of the work includes adhoc casual call in shifts and temporary contracts to backfill the leave or secondments of permanent staff".[17]
  1. [38]
    It is not entirely clear on the materials before me what role Mr Sarnadsky was undertaking at the time of the Decision, i.e., what his "current role" was at that time. The Decision states "I have determined that your employment will remain as a casual Operational Services Officer (Wardsperson) (OO2)" and considers roles that are substantially the same as the "positions of Operational Services Officer (Wardsperson) and (Environmental Waste)".[18] However, at the time of the review, Mr Sarnadsky must have been employed under a temporary contract considering the review was conducted under Directive 09/20. In its submissions, the Respondent refers to "temporary contracts in the positions of Gardener (OO2), Porter (OO2) and Environmental Waste Officer (OO2)."[19] Nevertheless, the Respondent ultimately concedes there is a continuing need to engage Mr Sarnadsky.  
  1. [39]
    Despite the position taken in the Decision, in its subsequent submissions the Respondent argues that Directive 09/20 "implies that the person under consideration has been engaged continuously in the same position ("the role")…"[20] In this regard, the Respondent refers to cl 8.1 of Directive 09/20 which provides the chief executive 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."
  1. [40]
    The Respondent's submission in this regard is vague and it is unclear whether the Respondent is alleging Mr Sarnadsky was not eligible for review by virtue of the fact he has undertaken various roles over the past two years. If that is the case and the Respondent's assertion on this point were to be accepted, the application of s 149B to a person "who has been continuously employed in the same department for 2 years or more" would be quite inexplicable. The requirement under s 149B is simply that the individual has been employed by the Department for two years or more. That individual may have undertaken a range of roles in either a temporary or casual capacity during that time. The key element is that they were nonetheless employed by the Department for two years or more.
  1. [41]
    Although Mr Sarnadsky was "not engaged" for some weeks over the past two years,[21] the Respondent has not contended he was at any stage "not employed" over the past two years. On that basis, I am satisfied Mr Sarnadsky has been continuously employed by the Respondent in a combination of casual and fixed term temporary roles since 9 September 2019. Therefore, s 149B of the PS Act is applicable to Mr Sarnadsky.
  1. [42]
    Further, any attempted argument by the Respondent to adopt this errored interpretation would seemingly result in prohibiting many staffing conversion determinations from ever being challenged through a Public Service Appeal process. Clearly, this is not the intention of either the PS Act or Directive 09/20.
  1. [43]
    Ultimately the Respondent concedes it is likely there will be a continuing need to engage Mr Sarnadsky.[22] The Respondent places several caveats on that concession, including that the continuing need is uncertain and therefore Mr Sarnadsky is needed on a temporary or casual basis rather than permanent. Respectfully, that is not the test. The Respondent has established a continuing need for Mr Sarnadsky to be engaged and in support of the Respondent's conclusion, Mr Sarnadsky annexed payslips to his submissions filed 17 December 2021 which evidence a pattern of regular and systematic engagements thus far.[23] On that basis, I am satisfied there is a continuing need for Mr Sarnadsky to be engaged in the current role. For the sake of completeness, I will also consider the second pathway to permanent conversion.

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

  1. [44]
    The Respondent submits "There are no other roles within the WBHHS that are substantively the same as the role in which" Mr Sarnadsky is currently engaged.[24] The Department argues that the "Operational Services Officer (Wardsperson) and (Environmental Waste) are unique roles and there are no other positions with similar capability requirements, as all of the Wardsperson and Environmental Waste roles are backfilled from the same pool in which you are already engaged."[25]
  1. [45]
    Although the Respondent has not articulated the capability requirements, the Decision indicates it has considered and compared capability requirements across roles to reach its conclusion. Mr Sarnadsky did not present submissions in this regard and therefore has not pressed the argument as to whether there is a continuing need for Mr Sarnadsky to be employed in a role which is substantially the same under the second pathway.

Genuine operational requirements

  1. [46]
    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. [47]
    '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.[26]
  1. [48]
    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".[27]

  1. [49]
    Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.
  1. [50]
    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.'[28]

  1. [51]
    Giving due consideration to the object, scope and purpose of the relevant legislative materials, including those outlined above, 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. [52]
    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. [53]
    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. [54]
    The Respondent argued there are 'genuine operational requirements' that prevent the conversion of Mr Sarnadsky to permanent employment. In essence, the reasons are:
  • Mr Sarnadsky's employment aligns with the workforce strategy for his service area which includes a budgeted permanent full time equivalent (FTE) establishment and a small casual backfill pool sufficient to cover leave arrangements; and
  • Mr Sarnadsky falls under the circumstances outlined in s 148(2) of the PS Act and his employment on tenure is therefore not viable or appropriate.
  1. [55]
    I will deal with each of those reasons in turn.

Workforce strategy

  1. [56]
    With respect to 'workforce strategy', the Respondent submits the following:
  • The nature of Mr Sarnadsky's engagements align with the workforce strategy for his service area, ensuring flexibility and an appropriate workforce mix.[29]
  • Mr Sarnadsky sits against a casual position which is unfunded.[30] An additional substantive permanent FTE would result in an over establishment and a labour expenditure budget overspend.[31] The Respondent contends these reasons are not trivial, nor are they managerial inconveniences or simply difficulties.[32]
  • It is not viable nor appropriate to convert Mr Sarnadsky when regard is had for the management and resourcing of the FTE establishment, workforce planning considerations, operational needs and ensuring financial sustainability as outlined in s 98 of the PS Act.
  • Engaging employees on a casual and temporary basis ensures resourcing across a 24/7 roster allowing for various types of leave.[33]
  • The Respondent referred to provisions of the Financial Accountability Act 2009 (Qld), particularly those relating to efficient, effective and economical management. Those principles are similarly prescribed in the Hospital and Health Boards Act 2011 (Qld) in addition to that of sustainability.
  1. [57]
    The Respondent refers to the decision of Cameron v State of Queensland (Queensland Health)[34] as an example of a matter where a conversion appeal was dismissed in analogous circumstances.[35]
  1. [58]
    Further, the Respondent refers to the following reasons in Pearce v State of Queensland (Queensland Health):[36]

[20]  Mr Pearce, in his reply submissions cites the decision of Kelly v State of Queensland (Queensland Health) and seeks to emphasise the proposition that the Directive does not require there to be a budgeted vacancy to enable conversion. While this observation about the Directive is correct, that does not make the absence of a budgeted position an irrelevant consideration.

…

[23]  As I have frequently observed, an employee may satisfy all criteria for conversion set out in the PS Act and the Directive but still fail to achieve conversion if the employer can demonstrate that there are genuine operational requirements precluding conversion. Further, having regard to the findings in Morison,19 the term 'genuine operational requirements can be read broadly to encompass a variety of intertwined operational factors affecting an employer. Included in that array of considerations is the availability or otherwise of a budgeted position.

[24]  The facts and circumstances of each case will ultimately determine whether there are genuine operational factors impeding conversion. The absence of a budgeted position will not, of itself, preclude conversion. But when considered in the context of broader factors, it may well be an influential factor.

…

[26]  It is understandable that the Department will need to have capable and skilled casual employees on hand at all times to fill these absences as and when they emerge. Further, it is understandable that the conversion of a casual employee such as Mr Pearce will inevitably reduce the pool of experienced casuals available for short term appointments, while at the same time cause a degree of displacement amongst permanent employees in circumstances where Mr Pearce is simply added to their ranks without there being a designated position for him to fill.

  1. [59]
    Mr Sarnadsky correctly points out that a budgeted vacancy is not required for conversion to permanent employment. I have considered the reasoning in Pearce v State of Queensland (Queensland Health)[37]but note creation of a new permanent position is to be expected in such circumstances. 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 than 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.  Those operational reasons are therefore not reasonable in this context.
  1. [60]
    While it is necessary to develop a workforce strategy and staff it accordingly, Mr Sarnadsky submits, and I agree, that 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.[38] That is a consideration that the Respondent ought to have considered.
  1. [61]
    I accept that the nature of Mr Sarnadsky's role necessitates a degree of flexibility within the workforce mix. The Respondent has pointed to the decision of Cameron v State of Queensland (Queensland Health).[39] I have considered that decision and make the following observations. Firstly, with respect to the relevant provisions of the Hospital and Health Service General Employees (Queensland Health) Award - State 2015 (the Award), I note that rosters are required to be made available to employees "…at least one calendar week in advance of the roster cycle".[40] Further, that changes to the roster "…shall be by agreement between the employer and the employee concerned but, failing agreement, 24 hours' notice of any change in the roster must be given by the employer..." Such industrial instrument requirements are neither unique nor new conditions for the Respondent to come to terms with.  These requirements do necessitate forward planning and consultation but are certainly not onerous. Nor are they beyond what would be expected of most agencies converting a staff member to permanency.
  1. [62]
    Secondly, in my view the circumstances of Mr Sarnadsky's application are analogous to the cases of Varghesekutty v State of Queensland (Queensland Health),[41] Woodhouse v State of Queensland (Queensland Health),[42] Finn v State of Queensland (Department of Health),[43] Deverge v State of Queensland (Queensland Health)[44] and Pulikkottil v State of Queensland (Queensland Health)[45] - all cases in which Operational Services Officers employed by WBHHS were successful in their conversion appeals. Further, it is often observed that reasonable minds may differ.[46]
  1. [63]
    With respect to "managerial prerogative" the Respondent submits "there is a long line of authority that recognises the general principle than (sic) an industrial tribunal ought not interfere with the right of management to manage its business, unless the employer is seeking from employees something which is unjust or unreasonable."[47] The Respondent's submission in this regard is vague and it is unclear whether the Respondent is alleging the Decision cannot be appealed or the powers under s 562C of the IR Act should not be exercised. If that is the case and the Respondent's assertion on this point were to be accepted, the stipulation of an option for Mr Sarnadsky to appeal the decision under s 194(1)(e) of the PS Act in the 22 October 2021 and 23 November 2021 correspondence issued to him would be quite inexplicable.
  1. [64]
    Further, any attempted argument by the Respondent to adopt this errored interpretation would seemingly result in prohibiting most staffing conversion determinations from ever being challenged through a Public Service Appeal process. Clearly, this is not the intention of either the PS Act or Directive 09/20.
  1. [65]
    In light of the reasoning above, I conclude that the workforce strategy issues raised by the Respondent do not constitute genuine operational requirements and are not genuine, authentic reasons that could reasonably prevent permanent conversion of Mr Sarnadsky. I am not convinced that workforce strategy issues pose a genuine operational requirement that justify a fair and reasonable refusal to convert Mr Sarnadsky.

Employment on tenure is not viable or appropriate

  1. [66]
    The Respondent argues that Mr Sarnadsky's employment falls under the circumstances outlined in s 148(2) of the PS Act because his employment has been for the purposes of backfilling substantive employees, backfilling temporarily vacant roles while recruitment is undertaken or to meet temporary increases in workload.[48] The Respondent also contends that Mr Sarnadsky's employment history shows periods of non-engagement which demonstrate that conversion to permanent would impact the Respondent's ability to manage staffing effectively in periods where Mr Sarnadsky is not required.[49]
  1. [67]
    The Respondent refers to Clair v State of Queensland (Department of Housing and Public Works)[50] as authority for the proposition there is not a requirement for more than one person in any given role. On that basis, the Respondent submits that to convert Mr Sarnadsky in such circumstances would be unviable and inefficient. However, it is clear that Mr Sarnadsky has been employed in a range of roles in both a casual and temporary capacity. If that is the case, then it seems improbable that he has been covering the workload of just one employee but rather a number of employees for a range of reasons.
  1. [68]
    The issue is not whether it was appropriate to initially employ Mr Sarnadsky on a casual or temporary basis. Mr Sarnadsky has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for over two years and submits he has maintained "a consistent average of 55.9 hours per fortnight".[51] 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 Mr Sarnadsky has been engaged frequently - this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by Mr Sarnadsky in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [69]
    The admission that Mr Sarnadsky's engagement is continuing and the continual pattern of engaging Mr Sarnadsky over the last two years illustrates how the Respondent relies upon Mr Sarnadsky on an ongoing basis. A continuous pattern of allocated hours and temporary contracts, albeit unpredictable, indicates Mr Sarnadsky is engaged on a systematic basis.
  1. [70]
    It is possible that the work undertaken by Mr Sarnadsky could be done on a casual or temporary basis. That is not in issue. A finding that the work could be done on a casual or temporary basis is not tantamount to evidencing a genuine operational requirement preventing conversion to permanent.
  1. [71]
    I am satisfied Mr Sarnadsky has been employed for purposes mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that Mr Sarnadsky's employment on tenure is viable and appropriate. 
  1. [72]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Respondent justify a refusal to convert and therefore conclude that the decision was not fair and reasonable in the circumstances.

Compliance with industrial instrument

  1. [73]
    The Respondent took into consideration cl 11.5 of the Queensland Public Health Sector Certified Agreement (No.10) 2019 (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.

…

11.5.6 If 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. [74]
    The Respondent notes that Mr Sarnadsky "will be considered as part of the Certified Agreement process should a closed merit process be commenced in the event of a full time vacancy, and it be established that there are vacant hours remaining unfilled in accordance with clause 11.5.6 as the process is conducted."[52] The Respondent submits there is currently a closed merit selection process underway, that all available hours have been allocated in accordance with cl 11.5 of the Certified Agreement and therefore there are no available hours to offer Mr Sarnadsky in accordance with cl 11.5.6 of the Certified Agreement.
  1. [75]
    The process described under cl 11.5.6 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 Mr Sarnadsky being converted to permanent.
  1. [76]
    The Respondent also took into consideration cl 5.2.1 of the Certified Agreement which states:

All absences (planned and unplanned) within Operational Services will be backfilled. The options to backfill may include but are not limited to:

  1. (a)
    Offering additional ordinary hours to Part-Time employees,
  2. (b)
    Offering additional work to casual employees,
  3. (c)
    The application of Relief Pool staff, the use of Overtime,
  4. (d)
    Utilisation of temporary engagement (e.g. extended period of absence).
  1. [77]
    I accept the Certified Agreement recognises the use of temporary employees as one strategy to mitigate workload and continue service provision in the event of staff absences. However, when employment on tenure is the default basis of employment in the public service, other considerations must be taken into account and for the reasons outlined above, I am not convinced there are genuine operational requirements that justify the use of temporary nor casual employment in Mr Sarnadsky's circumstances. 
  1. [78]
    I find that cl 5.2.1 of the Certified Agreement poses no impediment to the appeal being decided by the Commission.

Conclusion

  1. [79]
    For the reasons detailed above, I find the decision to maintain Mr Sarnadsky on a casual or temporary basis is not fair and reasonable. There is a continuing need for Mr Sarnadsky to continue working in his current role and the Respondent has not evidenced a genuine operational requirement that reasonably prevents conversion of Mr Sarnadsky to permanent employment.
  1. [80]
    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 Mr Sarnadsky not have his employment converted to permanent is set aside and another decision is substituted; and
  1. Mr Sarnadsky's employment status be converted to permanent employment.

Footnotes

[1] Respondent's Submissions, 22 December 2021, 1 [1].

[2] Appeal Notice, 9 December 2021.

[3] Ibid.

[4] Letter from Ms S. Bainbridge to Mr N. Sarnadsky, 22 October 2021, 1.

[5] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 1.

[6] Appellant's Submissions, 17 December 2021, [19]; Appellant's Submissions in Reply, 7 January 2022, [10].

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

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

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

[10] 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.

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

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

[13] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 2.

[14] Ibid 3.

[15] Ibid.

[16] Ibid.

[17] Ibid; Respondent's Submissions, 22 December 2021, 2 [12].

[18] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 1, 3.

[19] Respondent's Submissions, 22 December 2021, 2 [13].

[20] Ibid [8].

[21] Ibid Annexure. 

[22] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 3.

[23] Appellant's Submissions, 17 December 2021, 1 [3].

[24] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 3.

[25] Ibid.

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

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

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

[29] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 4; The Employment Security Policy referred to in cl 4.1 of Directive 09/20 encompasses these principles.

[30] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 1.

[31] Ibid.

[32] Respondent's Submissions, 22 December 2021, 1 [4].

[33] Ibid.

[34] [2021] QIRC 226.

[35] Respondent's Submissions, 22 December 2021, 2 [11], [14].

[36] [2021] QIRC 402.

[37] [2021] QIRC 402.

[38] Appellant's Submissions in Reply, 7 January 2022, [4].

[39] [2021] QIRC 226.

[40] Cl 15.2(b).

[41] [2021] QIRC 319.

[42] [2021] QIRC 290.

[43] [2021] QIRC 144.

[44] [2021] QIRC 046.

[45] [2021] QIRC 052.

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

[47] Respondent's Submissions, 22 December 2022, 5 [29].

[48] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 2.

[49] Respondent's Submissions, 22 December 2021, 4 [22].

[50] [2020] QIRC 220.

[51] Appellant's Submissions in Reply, 7 January 2022, [6].

[52] Letter from Ms D. Carroll to Mr N. Sarnadsky, 23 November 2021, 3.

Close

Editorial Notes

  • Published Case Name:

    Sarnadsky v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sarnadsky v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 28

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    04 Feb 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
Cameron v State of Queensland (Queensland Health) [2021] QIRC 226
3 citations
Jump To
Cite 1 - [2021] QIRC 226
Cite 2 - [2021] QIRC 226
Cite 3 - [2021] QIRC 226
Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220
2 citations
Jump To
Cite 1 - [2020] QIRC 220
Cite 2 - [2020] QIRC 220
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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
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
Katae v State of Queensland [2018] QSC 225
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
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
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
Pearce v State of Queensland (Queensland Health) [2021] QIRC 402
2 citations
Jump To
Cite 1 - [2021] QIRC 402
Cite 2 - [2021] QIRC 402
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
1 citation
Jump To
Cite 1 - (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
Pullen v State of Queensland (Queensland Health) [2024] QIRC 2542 citations
1

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