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Johnson v State of Queensland (Queensland Health)[2022] QIRC 289

Johnson v State of Queensland (Queensland Health)[2022] QIRC 289

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Johnson v State of Queensland (Queensland Health) [2022] QIRC 289

PARTIES: 

Johnson, Amanda

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/447

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

1 August 2022

MEMBER:

McLennan IC

HEARD AT:

On the papers

  ORDERS:

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

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

CATCHWORDS:

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

LEGISLATION AND OTHER

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

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

Public Service Act 2008 (Qld) s 27, s 148, s 149, s 149A, s 149B, s 194, 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

CASES:

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

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

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)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

IW v City of Perth (1997) 191 CLR 1

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

Kelly v State of Queensland (Queensland Health) [2021] QIRC 055

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

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

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

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

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

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

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

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

Reasons for Decision

  1. [1]
    Mrs Amanda Johnson (the Appellant) is substantively employed as a casual OO2 Operational Services Officer (Cleaner) at the Bundaberg Hospital, within the Wide Bay Hospital and Health Service (WBHHS), Queensland Health (the Department), State of Queensland (the Respondent).
  1. [2]
    The parties do not dispute and have proceeded on the basis that pursuant to s 149B(4)(a) of the Public Service Act 2008 (Qld) (the PS Act), the Appellant's employment status was eligible for review on 24 February 2022.[1]
  1. [3]
    The Department's chief executive was required to make a conversion decision within 28 days of the review eligibility date.  No decision was forthcoming and so a decision rejecting conversion was deemed to have occurred 28 days later on 24 March 2022, in accordance with s 149B(7) of the PS Act. 
  1. [4]
    That deemed decision is the subject of this appeal.
  1. [5]
    The Appellant filed an appeal against the deemed decision on 12 April 2022, appointing the Australian Workers' Union as her agent that same day.
  1. [6]
    By email dated 28 April 2022, WBHHS confirmed the Appellant's temporary contract would be extended until her Appeal is decided.  That consideration is acknowledged and appreciated.

The Decision

  1. [7]
    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. [8]
    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. [9]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [10]
    For the reasons outlined above, I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed by the Appellant.
  1. [11]
    There is no dispute between the parties that the deemed decision is able to be appealed by the Appellant.

Timeframe for appeal

  1. [12]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [13]
    The Decision was deemed to have been given on 24 March 2022. In accordance with s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 12 April 2022. 
  1. [14]
    There is no dispute between the parties that the appeal was filed in time.

What decisions can the Commission make?

  1. [15]
    Pursuant to s 562C(1) of the IR Act, in deciding a public service appeal, the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Appeal principles

  1. [16]
    Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  1. [17]
    The appeal is not conducted by way of re-hearing,[2] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[3] 
  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.[4]
  1. [19]
    The issue for my determination is whether the Decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[5]

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).[6]
  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

1.1The 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.

Interlocutory matters

  1. [28]
    There have been several interlocutory skirmishes in the course of this Appeal.

First Attendance Notice

  1. [29]
    On 26 April 2022, the Appellant filed a Form 32 Request for attendance notice seeking various documentation from the Respondent.
  1. [30]
    I issued the corresponding Form 32B Attendance notice to produce on 29 April 2022.
  1. [31]
    The Respondent subsequently objected to producing the documents sought under the Attendance Notice by email dated 3 May 2022.  An excerpt of its grounds for objection were expressed as follows:

Rule 59 of the Rules requires that an order to produce documents needs to adequately identify documents (as opposed to giving a vague description of a class of documents that may or may not exist).  The Respondent respectfully suggests that the Form 32B does not adequately identify a specific document or documents and further advises that the workforce strategy referred to is not a document, it is a process whereby the WBHHS receives funding to provide a service, in this case cleaning, and is funded to a certain level of establishment to do that, not in excess of that, and therefore higher than budgeted or funded costs would naturally occur in the event of a casual or temporary employee being appointed to an additional permanent position.

  1. [32]
    I issued a Directions Order to hear the parties on the Respondent's request that the First Attendance Notice be set aside.

Second Attendance Notice

  1. [33]
    On 10 May 2022, the Appellant filed a Form 32 Request for attendance notice seeking Ms Marie-Gaye Harvey (WBHHS) attend the Commission to give evidence. 
  1. [34]
    The Respondent also requested that the Second Attendance Notice be set aside.

Conference

  1. [35]
    At that juncture, the Appellant suggested that a conference be convened.  That proposal was adopted.
  1. [36]
    The Directions Order issued on 6 May 2022 pertaining to the First Attendance Notice was vacated.
  1. [37]
    A conference was then held on 8 June 2022 in order to provide the parties an opportunity to themselves resolve the various interlocutory matters.
  1. [38]
    That approach was ultimately successful.
  1. [39]
    On 9 June 2022, the Appellant withdrew the First Attendance Notice.
  1. [40]
    On 21 June 2022, the Appellant withdrew the Second Attendance Notice.
  1. [41]
    Fresh Directions Orders were then issued on 23 June 2022, in order to resume hearing the parties' submissions on the substantive appeal.

Submissions

  1. [42]
    In accordance with the Directions Orders issued in this matter, the parties filed written submissions.
  1. [43]
    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. [44]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of the appeal.

Decision Criteria

  1. [45]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [46]
    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. [47]
    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.[7]

Merit

  1. [48]
    The Appellant satisfied the merit criterion.  That is not in dispute between the parties.

Compliance with an industrial instrument

  1. [49]
    The PS Act and Directive prescribes that the department's chief executive may offer to convert the person's employment "…only if - any requirements of an industrial instrument are complied with in relation to the decision."  Neither party have submitted that is not the case here.
  1. [50]
    The Respondent has however advanced two industrial instrument arguments, in support of their position that the Appellant's conversion to permanent employment is not viable or appropriate having regard to the genuine operational requirements of the agency. 
  1. [51]
    I have considered those ‘genuine operational requirements' matters later in this Decision, subsequent to first establishing the Appellant satisfies the decision criteria set out at cl 8.1 of the Directive. 

Reasons for any decision previously made or deemed

  1. [52]
    The PS Act and Directive prescribes that the department's chief executive must have regard to 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.  Neither party have raised that as a matter in contention here.

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

  1. [53]
    My decision firstly turns on the question of whether there is a continuing need for the Appellant to be employed in the role, or a role which is substantially the same. 
  1. [54]
    I will then go on to consider whether any genuine operational requirements fairly and reasonably prevent permanent conversion of the Appellant.  That includes settling the industrial instrument arguments advanced by the Respondent. 
  1. [55]
    There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [56]
    The Respondent stated that (my emphasis):

…it is likely there is a need to continue to employ the Appellant in a continuing way, however submits that continuing need is but one factor and such continuance 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 temporary work includes contracts to backfill the leave of permanent staff in various roles with varying hours week to week depending on requirements.  Where the Appellant is not engaged in temporary work, she would return to the casual pool and the nature of casual work includes ad hoc casual call-in shifts.  It is acknowledged that due to the demands related to COVID-19 in the last two years the Appellant has been engaged in ongoing short term temporary contracts to backfill leave of permanent employees and take up additional shifts to meet temporary increases in demand as outlined in WB-01, however, this will not necessarily continue as the demands of COVID-19 reduces the amount of leave being taken by permanent staff and therefore it is likely that the Appellant would return to the casual pool and return to ad hoc call-in arrangements.[8]

  1. [57]
    The Respondent also stated that "Over the two years examined in the course of the review, it is noted the Appellant has been engaged in temporary contracts, except for two weeks where she reverted to casual, to cover various positions and roster lines for the purposes of backfill of leave of permanent employees.  In each case a substantive incumbent has returned to their position and the Appellant is no longer required in that position until the next period of backfill is required…"
  1. [58]
    With respect to the employment history provided at WB-01, the Appellant has submitted that attached schedule "showed that the Appellant had conducted at least 31.13 hours per week over the two years."[9]
  1. [59]
    Foundationally, while the Respondent has accepted "it is likely there is a need to continue to employ the Appellant in a continuing way" in the role of cleaner at the hospital – its position is that there are genuine operational requirements rendering it not viable or appropriate to convert the Appellant to permanent employment. 
  1. [60]
    In advancing that particular argument, the Respondent refers to such backfilling circumstances as outlined in s 148(2) of the PS Act – and further makes reference to cl 5.2 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 setting out the "Process to Address Absences within Operational Services". 
  1. [61]
    As I recently found when considering WBHHS's deemed decision in Varghesekutty v State of Queensland (Queensland Health),[10] the Respondent's qualification that the continuing need pertains to a casual and / or fixed term temporary basis when required (and not converting to permanent) is rather beside the point.  The question is whether there is a continuing need for the Appellant to be employed in the current role of cleaner at the hospital - and that has been answered in the affirmative.
  1. [62]
    For the sake of completeness, I will also consider the second pathway to permanent conversion.

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

  1. [63]
    Significantly, the Respondent's submissions do not address whether there is a continuing need for the Appellant to perform a role that is substantially the same.
  1. [64]
    In Benson v State of Queensland (Department of Education), I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.[11] In this matter I similarly find the Respondent's failure to adequately address this limb in subsequent submissions renders the Decision not fair or reasonable.
  1. [65]
    It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Respondent has stopped short of demonstrating its consideration of the entirety of the mandatory criteria. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.
  1. [66]
    The fact of this case is that the Respondent has not defined a role which is substantially the same and the duty to do so must properly be discharged. 
  1. [67]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [68]
    I have found above that there is a continuing need for the Appellant to be employed in the current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this second limb. 

Genuine operational requirements

  1. [69]
    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. [70]
    '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.[12]
  1. [71]
    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".[13]

  1. [72]
    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.'[14]

  1. [73]
    Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those.
  1. [74]
    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. [75]
    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. [76]
    The Respondent's position is there are several 'genuine operational requirements' that prevent the conversion of the Appellant to permanent employment.  Broadly, they are:
  • statutory obligations and associated workforce strategies; and
  • the purpose of the Appellant's temporary employment.
  1. [77]
    I will deal with each of those matters in turn.

Statutory obligations and associated workforce strategies

  1. [78]
    The Respondent submitted that the following statutory obligations and associated workforce strategies constituted genuine operational requirements that prevented the Appellant's conversion to permanent employment:
  • it has obligations under s 98 of the PS Act to ensure the effective, efficient and appropriate management of public resources;
  • clause 4.1 of the Directive gives full effect to the government's employment security policy.  The Employment Security Policy outlines the government's commitment to permanent employment where possible, however the policy also sets out a commitment to "developing and maintaining a responsive, impartial and efficient government workforce", and "with workforce planning, career planning and skills development will ensure that the government workforce has the flexibility and mobility to meet future needs" and "Agencies are encouraged to utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs";
  • the nature of the Appellant's engagements aligns with the workforce strategy for her service area, ensuring flexibility and an appropriate workforce mix.  That includes "a fixed permanent budgeted establishment of Full Time Equivalent (FTE) employees" and a small casual backfill pool sufficient to cover leave arrangements;[15]
  • the Appellant "sits against a casual position which is unfunded.  Therefore, there is no budget for a permanent position";[16] 
  • conversion would mean an FTE over establishment by providing an additional employee above that factored into the budget build and roster.[17]  The result would be a labour expenditure budget overspend;
  • the Appellant's conversion to permanent employment would have the effect of removing the Respondent's workforce and rostering flexibility and create inefficiencies, contrary to the statutory obligations;[18]
  • engaging employees on a casual and temporary basis ensures resourcing across a 24/7 roster allowing for various types of leave; and
  • the Respondent contended this appeal is analogous to the Commission's decision in Cameron v State of Queensland (Queensland Health) ('Cameron')[19] and noted that a conversion appeal was dismissed in that case for such reasons.[20]
  1. [79]
    The Appellant disputes the Respondent's arguments on the basis that no evidence has been presented in support.[21] 
  1. [80]
    Further, the Appellant contends that the Respondent has failed to demonstrate that the cost of converting a permanent employee is more than the cost of a casual,[22] asserting that "the Respondent has not conducted any particular calculations and has only viewed the material on face value, and stated that the result is ‘obvious'."[23]

Consideration

  1. [81]
    As the Appellant correctly pointed out, a budgeted vacancy is not required for conversion to permanent employment.  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 to those posed to most agencies converting employees. Within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent', 'temporary' or 'casual' line item allocation.  Therefore, the expressed concern regarding the appropriate use of public resources with respect to budgetary allocation are not reasonable in this context.
  1. [82]
    While it is necessary to develop a workforce strategy and staff it accordingly, a permanent workforce allows for a structured and organised workforce, which in-turn makes budgeting and expenditure more predictable, thereby reducing the potential for labour expenditure budget overspend. That is a factor that the Respondent ought to have considered.
  1. [83]
    The Respondent has omitted to relate the relevant requirements under various legislative frameworks back to the Appellant's specific circumstances.  Rather, the Respondent has broadly referred to various provisions without referencing the material facts, calculating or evidencing how the Appellant's conversion would go against the objectives of those provisions.  This indicates that the Respondent may have taken a blanket approach to the Appellant's conversion request.  Without specific evidence indicating the Appellant's conversion would otherwise prevent the efficient, effective and sustainable management of the Department's public resources, I am not convinced that such issues pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant. 
  1. [84]
    I accept that the nature of the Appellant's role necessitates a degree of flexibility within the workforce mix. The Respondent has pointed to the Commission's decision in Cameron.[24] 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".[25] 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. [85]
    Further, as it is often observed, reasonable minds may differ.[26]
  1. [86]
    In my view, the circumstances of the Appellant's application are somewhat analogous to the cases of Varghesekutty v State of Queensland (Queensland Health),[27] Woodhouse v State of Queensland (Queensland Health),[28] Finn v State of Queensland (Department of Health),[29] Morgan v State of Queensland (Queensland Health) (No. 2),[30] Kelly v State of Queensland (Queensland Health),[31] Deverge v State of Queensland (Queensland Health)[32] and Pulikkottil v State of Queensland (Queensland Health)[33] - all cases in which Operational Services Officers were successful in their conversion appeals.
  1. [87]
    In light of the above reasoning, I conclude that the workforce strategy issues and statutory obligations raised by the Respondent do not constitute genuine operational requirements - and are not genuine, authentic reasons that could reasonably prevent permanent conversion of the Appellant.

The purpose of the Appellant's employment

  1. [88]
    The Respondent submitted that it was not viable or appropriate to convert the Appellant's employment to permanent:
  • the purpose of the Directive is two-fold, in that "it establishes employment on tenure as the default basis of employment in the Queensland public service…and sets out the circumstances where employment on tenure is not viable or appropriate";[34]
  • clause 4.4 of the Directive and s 148(2) of the PS Act set out situations where the use of tenured employment is generally not viable or appropriate, including backfilling;
  • the nature of the Appellant's employment falls under the circumstances outlined in s 148(2) of the PS Act – that is, backfilling leave of successive substantive incumbents who have then returned to their positions.  The Respondent stated that the Appellant has been engaged "to fill a temporary vacancy arising because a person is absent for a known period" and "to fill a short-term vacancy before a person is appointed on tenure";[35]  
  • in providing a schedule of the Appellant's employment history, the Respondent submitted that "Over the two years examined in the course of the review, it is noted that the Appellant has been engaged in temporary contracts, except for two weeks where she reverted to casual, to cover various positions and roster lines for the purposes of backfill of leave of permanent employees";[36]
  • it was asserted that my decision in Holcombe v State of Queensland (Department of Housing and Public Works) [37] was relevant in this case.  It stated that "conversion appeal was dismissed in circumstances where the secondment of the Appellant was of the type contemplated within clause 4.2(b) of Directive 13/20, being a circumstance that would support temporary rather than permanent engagement.  Further, just as is the case here, there is a situation where only one person may occupy a numbered position at any one time, where the incumbent's return is not speculative or there is no incumbent.  The Respondent does not have a genuine operational need to permanently employ two people in the same position at the same time, performing the same role.  Nor is it viable or appropriate to do so.  In each case of leave backfill the substantive incumbent has returned to the position and the Appellant is no longer required";[38] and
  • the Commission's decision in St Clair v State of Queensland (Department of Housing and Public Works)[39] was also cited as an authority for the Respondent's position that "as soon as the incumbent returns from leave, the Appellant is no longer required and is not required again until another period of leave (if offered).  As such, there is not a requirement for more than one person in the role."[40]

Consideration

  1. [89]
    The Respondent reasoned that the Appellant's employment falls under the circumstances outlined in s 148(2) of the PS Act because the nature of the employment has been "to fill a temporary vacancy arising because a person is absent for a known period"[41] and "to fill a short-term vacancy before a person is appointed on tenure".[42]
  1. [90]
    The Department referred to cases including Holcombe v State of Queensland (Department of Housing and Public Works)[43] and St Clair v State of Queensland (Department of Housing and Public Works)[44] as authorities for the proposition that there is not a requirement for more than one person in any given role. Therefore, the Respondent submits that to convert the Appellant in such circumstances would be unviable and inefficient. Further, the Respondent argues that over the last two years, the Appellant has been engaged to "cover various positions and roster lines for the purpose of backfill of leave of permanent employees". In each case the substantive incumbent has returned to their position and the Appellant is no longer required – until the next time.
  1. [91]
    It does not follow that the permanent conversion of the Appellant's position would have meant there would be two people employed in the same position. My decision in Holcombe[45] - and the Commission's decision in St Clair – were both about a higher classification conversion under s 149C of the PS Act. The reasoning in those decisions was specific to the precise wording of s 149C.  It has no relevance to this matter.  A practice is emerging of contriving some relevance of the Commission's decisions in higher classification conversions to the very different consideration of temporary conversions.  That should cease.  It is an entirely flawed position.
  1. [92]
    Section 148(2) of the PS Act does not prescribe that because an employee is covering backfill that the employee should therefore be employed on a temporary basis. Rather, s 148(2) contemplates a range of purposes which may indicate that employment of a person on tenure may not be viable or appropriate. A reasonable decision-maker ought to first identify whether the employee's circumstances fall under one of the listed purposes and then consider the appropriateness and viability of that employee being made permanent in light of that purpose.
  1. [93]
    As I found in Benson v State of Queensland (Department of Education),[46] although a particular circumstance (such as backfilling an absent incumbent) may have constituted a reason for the Department to initially employ someone on a temporary basis, after more than two years of meritoriously undertaking roles for extensive periods of time, I do not consider it reasonable for the Respondent to rely on that indefinitely.
  1. [94]
    The issue is not whether it was appropriate to initially employ the Appellant on a casual or temporary basis. The Appellant has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for over two years. Section 148(3) of the PS Act provides that employment on tenure may be viable or appropriate if a person is required to be employed under such circumstances on a frequent or regular basis. Although the nature of casual and temporary work can be unpredictable - in light of her continuous engagement, I accept the Appellant has been engaged frequently and this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by the Appellant in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [95]
    The admission that "it is likely there is a need to continue to employ the Appellant in a continuing way" - and the continual pattern of engaging the Appellant over the last two years - illustrates how the Respondent relies upon the Appellant on an ongoing basis. That continuous pattern supports that that Appellant is engaged on a systematic basis.
  1. [96]
    It is possible that the work undertaken by the Appellant 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. [97]
    I am satisfied the Appellant has been employed for purposes mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that the Appellant's employment on tenure is viable and appropriate. 
  1. [98]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Respondent justify a refusal to convert and therefore conclude the Decision was not fair and reasonable in the circumstances.

Compliance with industrial instruments

  1. [99]
    The Respondent stated that the industrial instruments require staff absences to be backfilled and rosters provided in advance.[47] 
  1. [100]
    The Queensland Public Health Sector Certified Agreement (No. 10) 2019 sets out in cl 5.2 the "Process to Address Absences within Operational Services.  The Respondent submitted that provision "…requires WBHHS to backfill all absences (planned and unplanned) within Operational Services and provides options to backfill which may include but are not limited to: (a) offering additional ordinary hours to Part-Time employees, (b) offering additional work to casual employees, (c) the application of relief pool staff, (d) the use of overtime, or (e) the utilisation of temporary engagement (e.g. extended period of absence)."[48]
  1. [101]
    The Respondent asserted that the applicable Certified Agreement[49] "recognises the use of casuals and fixed term temporary engagements as a legitimate workforce strategy for backfilling."[50]
  1. [102]
    The Respondent also later submitted that "…if the Appellant were to be converted to permanent then they would need to be rostered in advance as prescribed in the relevant industrial instrument.  As a result, another casual employee would need to be employed to cover the required backfilling of both planned and emergent leave."[51]

Consideration

  1. [103]
    With regard to the Certified Agreement, the Respondent took into consideration cl 5.2 'Process to Address Absences within Operational Services'. Specifically, cl 5.2.1 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. [104]
    I accept that 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 earlier in this Decision, I am unpersuaded that there are genuine operational requirements that justify the use of temporary employment in the Appellant's circumstances. 
  1. [105]
    With respect to the Respondent's argument about rostering constraints, my observations at paragraph [84] above are relevant here.  In essence, while the rostering provisions do necessitate forward planning and consultation they are certainly not onerous or in any way oppressive. 
  1. [106]
    I cite with approval Industrial Commissioner Pidgeon's observations in Kelly v State of Queensland (Queensland Health)[52] and follow her reasoning here also:

The shift work rostering provisions set out in the relevant Award do allow for changes to be made by agreement, or failing agreement, with 24 hours notice provided by the employer.  Given the regularity with which Ms Kelly has been employed since 2017, I do not think it should be beyond the capacity of the Respondent to continue to roster Ms Kelly as appropriate to ensure the 24/7 roster can operate.  I note that cl 5.2 of the Certified Agreement headed "Process to Address Absences within Operational Services" states that all absences (planned and unplanned) will be backfilled.  However, cl 5.2.2 acknowledges that not all positions will be backfilled on all occasions, and cl 5.2.3 acknowledges that for unplanned absences there may be some circumstances where roles may not require immediate backfill.[53]

  1. [107]
    In my view, neither of the two industrial instrument provisions cited by the Respondent persuade me that the Appellant's conversion to permanent is not viable or appropriate.

Conclusion

  1. [108]
    The question to be decided in this appeal is whether the Decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.
  1. [109]
    The COVID-19 pandemic may have presented novel challenges in recent years but it is certainly continuing into the foreseeable future.  In that context, securing the skills and experience in such roles as the Appellant's have become critical.
  1. [110]
    It is uncontroversial that there is a continuing need for the Appellant to continue working in her current role, working as a hospital cleaner. 
  1. [111]
    The Respondent has not evidenced a genuine operational requirement that has persuaded me that the Appellant's conversion to permanent employment was not viable or appropriate.
  1. [112]
    For the reasons detailed above, I find the Respondent's deemed decision to deny the Appellant conversion to permanent employment was not fair and reasonable.
  1. [113]
    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 Mrs Johnson not have her employment converted to permanent is set aside and another decision is substituted; and
  1. Mrs Johnson's employment status be converted to permanent employment.

Footnotes

[1]Appeal Notice filed 12 April 2022, Attachment AJ-01, Correspondence from WBHHS to Mrs A. Johnson dated 1 March 2022.

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

[3] Industrial Relations Act 2016 (Qld) s 562B(2).

[4]Ibid s 567(2).

[5]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.

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

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

[8]Respondent's submissions filed 26 April 2022, 2 [10].

[9]Appellant's submissions filed 4 July 2022, 3 [13].

[10][2021] QIRC 319, [69].

[11][2021] QIRC 152, 27 [136].

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

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

[14][2020] QIRC 203.

[15]Respondent's Submissions filed 26 April 2022, 1 [3] – [4].

[16]Ibid.

[17]Ibid 2 [11].

[18]Respondent's Submissions filed 26 April 2022, 2 [11].

[19][2021] QIRC 226.

[20]Ibid.

[21]Appellant's submissions filed 4 July 2022, [4] – [10].

[22]Ibid 2 [4].

[23]Ibid [9].

[24][2021] QIRC 226.

[25]Cl 15.2(b).

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

[27][2021] QIRC 319.

[28][2021] QIRC 290.

[29][2021] QIRC 144.

[30][2022] QIRC 132.

[31][2021] QIRC 055.

[32][2021] QIRC 046.

[33][2021] QIRC 052.

[34]Respondent's submissions filed 26 April 2022, 3 [14].

[35]Ibid.

[36]Ibid 1 [2].

[37][2020] QIRC 195.

[38]Respondent's submissions filed 26 April 2022, 3 [16].

[39][2020] QIRC 220, [28].

[40]Respondent's submissions filed 26 April 2022, 3 [17].

[41]Public Service Act 2008 (Qld) s 148(2)(a).

[42]Ibid s 148(2)(d).

[43][2020] QIRC 195.

[44][2020] QIRC 220.

[45]Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195.

[46][2021] QIRC 152, 25 [120].

[47]Respondent's Submissions filed 26 April 2022, 4 [20].

[48]Ibid.

[49]Queensland Public Health Sector Certified Agreement (No. 10) 2019.

[50]Respondent's Submissions filed 26 April 2022, 4 [20].

[51]Respondent's submissions filed 16 June 2022, 2 – 3 [11].

[52]Kelly v State of Queensland (Queensland Health) [2021] QIRC 055.

[53]Ibid [52].

Close

Editorial Notes

  • Published Case Name:

    Johnson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Johnson v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 289

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    01 Aug 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Benson v State of Queensland (Department of Education) [2021] QIRC 152
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
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
3 citations
Jump To
Cite 1 - [2020] QIRC 220
Cite 2 - [2020] QIRC 220
Cite 3 - [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
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
4 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
Cite 3 - [2020] QIRC 195
Cite 4 - [2020] QIRC 195
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
Kelly v State of Queensland (Queensland Health) [2021] QIRC 55
4 citations
Jump To
Cite 1 - [2021] QIRC 55
Cite 2 - [2021] QIRC 55
Cite 3 - [2021] QIRC 55
Cite 4 - [2021] QIRC 55
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
2 citations
Jump To
Cite 1 - (2010) 240 CLR 611
Cite 2 - (2010) 240 CLR 611
Morgan v State of Queensland (Queensland Health) [2022] QIRC 81
1 citation
Jump To
Cite 1 - [2022] QIRC 81
Morgan v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 132
1 citation
Jump To
Cite 1 - [2022] QIRC 132
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Pulikkottil v State of Queensland (Queensland Health) [2021] QIRC 52
2 citations
Jump To
Cite 1 - [2021] QIRC 52
Cite 2 - [2021] QIRC 52
Varghesekutty v State of Queensland (Queensland Health) [2021] QIRC 319
3 citations
Jump To
Cite 1 - [2021] QIRC 319
Cite 2 - [2021] QIRC 319
Cite 3 - [2021] QIRC 319
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
2 citations
Jump To
Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260
Woodhouse v State of Queensland (Queensland Health) [2021] QIRC 290
2 citations
Jump To
Cite 1 - [2021] QIRC 290
Cite 2 - [2021] QIRC 290

Cases Citing

Case NameFull CitationFrequency
Graham v State of Queensland (Queensland Health) [2023] QIRC 384 citations
1

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