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  4. Horne v State of Queensland (Queensland Health) - [2022] QIRC 359

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Horne v State of Queensland (Queensland Health)[2022] QIRC 359

Horne v State of Queensland (Queensland Health)[2022] QIRC 359

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Horne v State of Queensland (Queensland Health) [2022] QIRC 359

PARTIES:

Horne, Kate

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/632

PROCEEDING:

Public Service Appeal - Conversion of fixed term temporary employment

DELIVERED ON:

14 September 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with another decision that the Appellant's employment is to be converted to permanent.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 (Qld) – consideration of the scope of review under s 149B – decision not fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 25, 98, 99, 148, 149A, 149B and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

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

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

Neilsen v State of Queensland (Queensland Health) [2021] QIRC 305

Newman v State of Queensland (Queensland Health) [2021] QIRC 218

Reasons for decision

Introduction

  1. [1]
    Miss Kate Horne ('the Appellant') is currently employed by the State of Queensland (Queensland Health) ('the Respondent') in a fixed term temporary position of Administration Officer within the Wide Bay Hospital and Health Service ('WBHHS').
  1. [2]
    The Appellant has been employed in a number of temporary and casual engagements with the Respondent as an Administration Officer and Ward Administrator since 2020.
  1. [3]
    In May 2022, the Appellant requested conversion from fixed term temporary to permanent.
  1. [4]
    By letter dated 5 June 2022, the Appellant was advised by Ms Debbie Carroll, Chief Executive, WBHHS, that her employment would remain as fixed term temporary with the Respondent ('the decision').
  1. [5]
    By appeal notice filed on 27 June 2022, the Appellant appealed against the decision pursuant to s 194(1)(e) of the Public Service Act 2008 (Qld) ('the PS Act').

Appeal principles

  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment ('the Directive').

What decisions can the Industrial Commissioner make?

  1. [8]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

The appeal notice

  1. [9]
    In the appeal notice, the Appellant contends that Ms Carroll considered matters that were not relevant when considering whether to convert the Appellant to permanent. Those matters included:
  1. (a)
    the question of whether the Appellant's employment is casual or temporary;
  1. (b)
    whether there was a vacant role substantially the same;
  1. (c)
    the funding of the position; and
  1. (d)
    the reliance on uncertainty or variability in relation to the hours of work required.
  1. [10]
    The Appellant contends that the decision:
  1. (a)
    is deficient as Ms Carroll fails to provide any details of the process engaged to identify any other roles that would be substantially the same;
  1. (b)
    that there is a genuine operational requirement to not convert the Appellant does not detail or outline material facts about the actual workforce needs or why they prevent the Appellant from being converted to permanent;
  1. (c)
    is contrary to the HR Policy B34 Relief Pools and the reliance on flexibility and appropriate workforce mix are contrary to the requirement that employment on tenure is the default basis of employment;
  1. (d)
    selectively relies on some aspects of s 98 of the PS Act but fails to consider other relevant provisions, including ss 25 and 99 of the PS Act;
  1. (e)
    fails to provide any reasoning for weighing some legislative considerations over others;
  1. (f)
    does not identify how workforce planning considerations and operational needs apply specifically to the Appellant;
  1. (g)
    does not detail specifically why converting the Appellant would result in the Respondent not managing public resources in an efficient, responsible or fully accountable way;
  1. (h)
    does not detail the consideration of the balancing of its workforce strategy over the requirements of the consideration under the PS Act and the Directive which establish employment on tenure as the default basis of employment in the public service;
  1. (i)
    provides inadequate consideration of s 148(3) of the PS Act;
  1. (j)
    fails to consider the provisions of HR Policy B34 Relief Pool – Administrative Stream Guidelines; and
  1. (k)
    misapplies cl 11.5 of Queensland Health Public Sector Certified Agreement (No. 10) ('EB10').
  1. [11]
    The Appellant further contends that:
  1. (a)
    clause 11.5 of the EB10 does not prevail over the Directive; and
  1. (b)
    the need for the Appellant to backfill emergent leave or to meet 'unpredictable, irregular or variable demand or in emergent situations' has not been short term, and has been and continues to be on a regular and systematic basis and on a regular or frequent basis.

Relevant provisions of the PS Act and the Directive

  1. [12]
    Section 149B of the PS Act relevantly provides:

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to-
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after-
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  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. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating-
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee-how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (7)
    If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person’s employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.

…

  1. [13]
    Section 149A(2) of the PS Act provides:

(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. [14]
    Section 149A(3) of the PS Act provides:
  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. [15]
    The Directive relevantly provides:
  1. 8.
    Decision on review of status
  1. 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.
  1. 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. 8.3
    If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:
  1. (a)
    the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
  1. (b)
    where the employee is part-time, an explanation of the days and hours of work offered in the decision, and
  1. (c)
    the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.
  1. 8.4
    Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. 8.5
    Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

…

Respondent's submissions

  1. [16]
    The Respondent maintains that the decision was fair and reasonable and contends that the decision not to convert the Appellant to permanent complies with s 148(2)(a), (c) and (e) of the PS Act, submitting the following:

…

Aside from the more recent temporarily funded position in the Community and Allied Health service, in each case of temporary engagement in the various Ward Administrator roles, a substantive incumbent has returned to their position and the Appellant is no longer required in that position until the next period of backfill of leave is required.

…

There is a legitimate and genuine need for the use of casual and temporary employees as a contingent workforce within the Patient Support Services unit of the Hervey Bay Hospital. The use of a contingent workforce is a workforce strategy utilised to ensure resourcing across the various shift rosters within different wards and services allowing for the various types of leave taken by permanent employees, such as sick leave, recreation leave, long service leave or other emergent types of leave. The workforce strategy includes a fixed permanent budgeted establishment of Full Time Equivalent (FTE) employees aligning with the operational requirements of each Ward or area in which the Appellant has been engaged, and a contingent workforce of casual staff to backfill emergent leave and of which can be engaged in fixed term temporary contracts as required to backfill other forms of planned leave or to meet temporary increases in demand.

Hospitals are funded to deliver services and funding is provided to provide the required level of staff to deliver those services. The service is rostered accordingly. Converting the Appellant to permanent would have the effect of requiring the service to create an entirely new permanent position in the roster which is above the required and approved level of staff to deliver services, and does not negate the requirement to backfill the existing permanent FTEs by other casual or temporary employees when they access leave. The Respondent has no need to add to the current numbers of permanent positions when permanent employees on leave return.

This in effect removes the Respondent's workforce and rostering flexibility and creates inefficiencies, which would be contrary to s. 98 of the PSA which requires a Chief Executive to manage their department in a way that promotes the "effective, efficient and appropriate management of public resources".

Depending on the timing of recreation or other leave requests, the requirement to backfill substantive FTEs is variable and the use of a contingent workforce to mange (sic) fluctuations in staffing needs is critical to ensuring that the required level of services are able to be delivered across the various shifts. The Respondent has converted numerous employees to permanent who have met the criteria under the relevant Directives, however, this is a case where the Respondent relies on genuine operational requirements and on this occasion, has denied the application for conversion because the Appellant is one of a contingent workforce engaged to backfill emergent and planned leave and to meet temporary increases in demand when required…

  1. [17]
    The Respondent acknowledges and confirms that there is an error within the decision referring to the Appellant's role as an Assistant in Nursing rather than an Administration Officer, however, submits that this did not materially change the reasons for decisions.
  1. [18]
    In response to the Appellant's appeal notice, the Respondent submits, in summary, that:
  1. (a)
    although it is likely that there is a need to continue to employ the Appellant in a continuing way, continuing need is but one factor, referring to Cameron v State of Queensland (Queensland Health);[5]
  1. (b)
    it is fair and reasonable for the delegate to consider the requirements of cl 11.5 of the EB10 which sets out the closed merit process for filling vacancies and to inform the Appellant that consideration was given to these provisions, however, had determined to consider the review separately and distinctly from those provisions as outlined in the decision;
  1. (c)
    the filling of vacancies is not an irrelevant consideration in the context of determining whether all available roster line positions are permanently filled or whether a process to fill them is currently on foot with offers and acceptance in accordance with cl 11.5 of EB10 already underway and which must be factored into considering the impact of converting the Appellant to permanent;
  1. (d)
    Ms Carroll informed the Appellant within the decision of the considerations undertaken including that cl 11.5 of EB10 places a requirement upon the Respondent to act in a certain way in the event of permanent full time vacancies, however, this consideration in itself is distinct from the fact that a conversion review does not necessarily require there to be a vacancy for a conversion to occur;
  1. (e)
    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 appropriate or viable to do so. In each case, the substantive incumbent has returned to their position and the Appellant is no longer required in the role;
  1. (f)
    the Respondent has a permanent establishment of the required number of full time equivalent ('FTE') staff to deliver the level of services required in the roles in which the Appellant has been engaged to backfill the leave of permanent employees, and has a contingent workforce of casual on call and temporary employees to supplement the permanent establishment to ensure workforce flexibility and continuity;
  1. (g)
    it is unviable and inefficient to permanently engage more employees than that factored into the approved roster. Converting the Appellant would leave the Respondent a surplus employee in the roster;
  1. (h)
    the nature of the Appellant's engagements aligns with the workforce strategy for the Patient Support Services unit at the hospital, ensuring flexibility and an appropriate workforce mix of permanent employees and contingent employees, such as the Appellant; and
  1. (i)
    it is fair and reasonable for the Respondent to staff its services in accordance with approved establishment relevant to the workforce needs of each service and in a regional setting in which the Respondent operates a 24/7 operation, it is essential to supplement its permanent workforce with contingent staff.

Appellant's submissions

  1. [19]
    The Appellant highlights that her employment history demonstrates continuous years of temporary engagements which would reasonably be considered frequent or regular in circumstances contemplated by s 148(3) of the PS Act. The Appellant submits that the decision not to convert the Appellant's employment to permanent is flawed.
  1. [20]
    The Appellant further submits that her pattern of engagement demonstrates that performing the same duties in same way would not require her to be placed on a roster as described by the Respondent and that the Appellant could continue in the relief pool as a permanent employee.
  1. [21]
    The Appellant refers to Newman v State of Queensland (Queensland Health) ('Newman')[6] and Kelly v State of Queensland (Queensland Health)[7]and submits that 'it has been well rehearsed in a number of decisions of the Commission that a funded and vacant substantive position is not a requirement for conversion to occur'.

Consideration

  1. [22]
    To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable.
  1. [23]
    The key points of the decision by Ms Carroll were outlined in the following terms:
  1. You are not being converted to permanent employment and will continue as casual employee at this time, undertaking fixed term temporary contracts as required. Your eligibility review date is 13/5/2023.
  1. The reason for this decision is that it is not viable or appropriate to convert you having regard to genuine operational requirements which prevents your conversion at this time.
  1. Additional information about the decision-making framework and your appeal rights is at the end of this letter.
  1. [24]
    Ms Carroll proceeded to outline in greater detail the reasons for the decision.

Merit

  1. [25]
    The decision confirms that Ms Carroll determined that the Appellant had satisfied the merit requirements for the role consistent with the requirements of s 149A(2)(a)(ii) of the PS Act.

Is there a continuing need for the Appellant to be employed in the role, or a role which is substantially the same?

  1. [26]
    Ms Carroll considered whether there is a continuing need for the Appellant to be employed in the role, stating the following:

I have considered your employment history, including the hours worked by you in a casual capacity, the circumstances for which those hours were performed, and the context of any temporary engagements. The review of your history confirms that over the past two years you have been engaged on temporary fixed term contracts for the purposes of backfilling the leave of substantive employees, backfilling temporarily vacant roles while recruitment is undertaken or to meet temporary increases in demand. The hours you have worked as a temporary employee have varied depending on the service's requirements at the time.

  1. [27]
    Ms Carroll considered that the circumstances of the Appellant's employment history were consistent with those outlined in s 148(2) of the PS Act which provides that employment on tenure may not be viable or appropriate in circumstances which include:
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;
  1. (b)
    to perform work for a particular project or purpose that has a known end date;
  1. (c)
    to fill a position which funding is unlikely or unknown;
  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure; and
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.
  1. [28]
    The decision demonstrates that Ms Carroll considered s 148(3) of the PS Act which states that employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in s 148(2) on a frequent to regular basis. As part of this consideration, the decision stated:

… I have established that it is difficult to predict whether there will be a continuing need to engage you in accordance with the circumstances as outlined in section 148(2) of the PS Act. These circumstances 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 where the requirement for a particular level of backfill can be known at any particular time.

Where permanent or temporary staff do determine to access planned leave entitlements, such as recreation leave or long service leave, this is often known in advance and replacements are engaged on a fixed term temporary contract, but in those circumstances there is a permanent incumbent who will return to their position at the end of such leave, and the temporary employee is no longer required.

However, in reviewing the circumstances relevant to your employment, I have considered based on previous patterns of engagement, that it is likely there will be a continuing need to engage you either as a casual or as a temporary employee in accordance with the circumstances outlined in section 148(2) of the PS Act to enable WBHHS to fulfil its service provision requirements, however, I am unable to be certain in regards to the number of hours that may be available to be offered to you at any time.

…

  1. [29]
    The determination that there is likely to be a continuing need to engage the Appellant was reasonable on the basis of the Appellant's history of continuous engagements. It was unnecessary to consider the number of hours that may be available as the process by which hours are calculated as part of an offer to convert is outlined separately in cl 7.4 of the Directive. Similarly, s 149A(2)(a)(i) of the PS Act provides that consideration be given to whether there is a continuing need for the Appellant to be employed either in the role or a role which is substantially the same which does not require consideration of whether the employment is casual or temporary.

Requirements of industrial instruments

  1. [30]
    The decision demonstrated consideration of the requirements of an industrial instrument in accordance with cl 8.1 of the Directive and s 149A(2)(b) of the PS Act, specifically cl 11.5 of EB10. Ms Carroll determined that if there are permanent full time or subsequent part time vacancies, cl 11.5 of EB10 should prevail. In my view, the requirements of cl 11.5 are distinct and separate from those of s 149A of the PS Act and one does not prevail over the other. I note that the issue of consideration of industrial instruments was not determinative in the decision to deny conversion to permanency to the Appellant.

Genuine operational requirements

  1. [31]
    Following the determination that the Appellant satisfied the merit criteria and that there is a continuing need for the Appellant to be employed in the role, Ms Carroll considered the genuine operational requirements of the department.
  1. [32]
    Section 149A(3) of the PS Act provides that if the matters in s 149A(2) are satisfied, the person's employment must be converted unless it is not viable or appropriate having regard to the genuine operational requirements of the department.
  1. [33]
    In consideration of the genuine operational requirements of WBHHS, Ms Carroll made the following determination:

I have considered that the nature of your engagements aligns with the workforce strategy for your service area, which includes a budgeted permanent full time equivalent (FTE) establishment that aligns with the workforce needs for the relevant service areas, and a small casual backfill pool which is sufficient to cover planned and unplanned leave arrangements through casual engagements or temporary backfill contracts, depending on which is most appropriate at the time. This ensures flexibility and an appropriate workforce mix.

  1. [34]
    The decision outlined other considerations including the lack of budget for a permanent position and a determination that if there are no substantive FTEs on leave, having an additional substantive permanent FTE would result in the actual establishment being higher than the budgeted establishment.
  1. [35]
    I acknowledge Ms Carroll's reference in the decision to her responsibility as Chief Executive to manage and resource the FTE establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within s 98 of the PS Act. In consideration of these obligations, I note the comments in Newman:

It is readily accepted that the chief executive must work within financial management and performance and accountability frameworks. The issue here however is how such obligations are managed in circumstances where the PS Act and Directive 08/20 require that public service employment is to be directed toward promoting employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.[8]

  1. [36]
    Deputy President Merrell considered the phrase '… genuine operational requirements of the department' in the context of a temporary higher classification appointment in Morison v State of Queensland (Department of Child Safety, Youth and Women):[9]

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 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. [10]
  1. [37]
    In considering the genuine operational requirements of the department, Ms Carroll determined that it was not viable nor appropriate to convert the Appellant's employment primarily because there is no budget for a permanent position and if there were no substantive FTEs on leave to backfill, there would be a higher establishment than the budgeted establishment. 
  1. [38]
    The difficulty with this reasoning is that, firstly, neither the PS Act nor the Directive require there to be a funded vacancy as a criterion for conversion. With respect to the potential for labour expenditure budget increases, I considered these circumstances in Neilsen v State of Queensland (Queensland Health).[11] The substantive FTEs have previously been backfilled and will continue to be backfilled due to regular and ongoing leave arrangements. Whether payment for this backfilled labour comes from the budget allocation to a fixed term temporary employee or a permanent employee would be of minimal, if any, budgetary consequence.  I understand the Respondent's submission that if there were no substantive FTEs on leave, an additional substantive permanent FTE would result in a labour expenditure budget overspend. The evidence in this matter, however, demonstrates that over a period of two years, the Appellant's labour was continuously required to backfill FTEs on leave. Concerns about a potential period of 'surplus' FTE appear to be theoretical in nature rather than a likely outcome given the history of the Appellant's engagement. Presumably, the tenured employees from a relief pool would be utilised prior to the casual relief pool to reduce the likelihood of any surplus FTE.
  1. [39]
    The operational requirements of the department require staff to be available to backfill substantive FTEs due to leave arrangements. Ms Carroll accepted that there is a continuing need for the Appellant to backfill these substantive FTEs, and the evidence demonstrates that this requirement is ongoing. There is nothing before me to suggest that the operational need to backfill other FTEs will not continue in the future.
  1. [40]
    I note that s 148(2)(a) of the PS Act provides that employment on tenure may not be viable or appropriate if the employment is to fill a temporary vacancy arising because a person is absent for a known period. Consideration must, however, also be given to s 148(3) of the PS Act which provides that employment on tenure may be viable or appropriate if the engagement outlined in s 148(2) has been on a frequent or regular basis. The employment history of the Appellant demonstrates two continuous years of engagements which would, in my view, reasonably be considered frequent or regular in circumstances contemplated by s 148(3).
  1. [41]
    To allow the operational requirements of the type described in the decision to determine that is not viable or appropriate to convert the Appellant's employment would prejudice any fixed term or casual employees working in relief pool roles from obtaining the benefit of this statutory framework. It would also defeat the purposes of the Directive and associated provisions of the PS Act which provide that employment on tenure is the default basis of employment. Consequently, I am not satisfied that the reasons provided for genuine operational requirements are fair and reasonable.

Conclusion

  1. [42]
    The Appellant satisfied the criteria of the Directive and the PS Act and as there are no genuine operational requirements preventing conversion, the decision not to convert the Appellant's employment was not fair and reasonable. It follows that the decision is to be set aside and the Appellant's employment is to be converted to permanent.

Order

  1. [43]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and substituted with another decision that the Appellant's employment is to be converted to permanent.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2021] QIRC 226.

[6] [2021] QIRC 218.

[7] [2021] QIRC 055.

[8] [2021] QIRC 218, [35].

[9] [2020] QIRC 203.

[10] Ibid [37]-[38].

[11] [2021] QIRC 305.

Close

Editorial Notes

  • Published Case Name:

    Horne v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Horne v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 359

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    14 Sep 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Cameron v State of Queensland (Queensland Health) [2021] QIRC 226
2 citations
Jump To
Cite 1 - [2021] QIRC 226
Cite 2 - [2021] QIRC 226
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Kelly v State of Queensland (Queensland Health) [2021] QIRC 55
2 citations
Jump To
Cite 1 - [2021] QIRC 55
Cite 2 - [2021] QIRC 55
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Neilsen v State of Queensland (Queensland Health) [2021] QIRC 305
2 citations
Jump To
Cite 1 - [2021] QIRC 305
Cite 2 - [2021] QIRC 305
Newman v State of Queensland (Queensland Health) [2021] QIRC 218
3 citations
Jump To
Cite 1 - [2021] QIRC 218
Cite 2 - [2021] QIRC 218
Cite 3 - [2021] QIRC 218

Cases Citing

Case NameFull CitationFrequency
Clements v State of Queensland (Queensland Health) [2023] QIRC 2042 citations
Pullen v State of Queensland (Queensland Health) [2024] QIRC 2542 citations
Watson v State of Queensland (Queensland Health) [2022] QIRC 4772 citations
1

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