Taylor v State of Queensland (Queensland Health)
[2022] QIRC 368
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- Unreported Judgment
- Taylor v State of Queensland (Queensland Health)[2022] QIRC 368
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Taylor v State of Queensland (Queensland Health)[2022] QIRC 368
Taylor v State of Queensland (Queensland Health)[2022] QIRC 368
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Taylor v State of Queensland (Queensland Health) [2022] QIRC 368 |
PARTIES: | Taylor, Brett (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/648 |
PROCEEDING: | Public Service Appeal - Conversion of fixed term temporary employment |
DELIVERED ON: | 27 September 2022 |
HEARING DATE: | 27 September 2022 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 4 July 2022 and Respondent's written submissions filed on 15 September 2022 |
ORDER: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
|
CATCHWORDS: | PUBLIC SERVICE – APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS – Appellant employed on casual and fixed term temporary basis in various positions at the Maryborough Base Hospital – Appellant notified of review of Appellant's fixed term temporary employment – no decision made by Respondent within the required time due to another process being conducted under the Queensland Public Health Service Certified Agreement (No. 10) 2019 – decision taken to have been made by the chief executive not to offer to convert the Appellant's employment status to permanent employment – whether decision fair and reasonable – decision not fair and reasonable because no review undertaken due to the intervening application of the other process conducted under the Queensland Public Health Service Certified Agreement (No. 10) 2019 – decision appealed against set aside and returned to the decision maker with directions |
LEGISLATION: | Industrial Relations Act 2016, s 562C Public Service Act 2008, s 148, s 149A and s 149B Queensland Public Health Service Certified Agreement (No. 10) 2019, cl 11.5 |
CASES: | Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 Scowcroft v State of Queensland (Queensland Health) [2021] QIRC 434 |
APPEARANCES: | Mr D. Marr, Ms C. Bullas and Ms K. Primavera of The Australian Workers' Union of Employees, Queensland for the Appellant. Mr G. Cropley and Ms K. Weise of the Wide Bay Hospital and Health Service for the Respondent. |
Reasons for Decision
- [1]Mr Brett Taylor, as at today's date, is employed on a casual basis by the State of Queensland, through Queensland Health ('the Department'), as an Operational Services Officer, classification OO2. Mr Taylor is employed at the Maryborough Base Hospital which is part of the Wide Bay Hospital and Health Service ('the Health Service').
- [2]Mr Taylor commenced casual employment in the position of Operational Services Officer, classification OO2, on 18 May 2020.
- [3]By letter dated 7 June 2022 from Ms Sue Cahill, Employment Relations Advisor of the Health Service, Mr Taylor was advised that as at 18 May 2022, he was eligible for review, pursuant to s 149B of the Public Service Act 2008 ('the PS Act') and Directive: 09/20 - Fixed term temporary employment ('the Directive') to determine whether his employment should be converted to permanent.
- [4]No decision was made within 28 days of his eligibility such that, by virtue of s 149B(7) of the PS Act, the chief executive of the Department was taken to have decided not to offer to convert Mr Taylor's employment to permanent employment ('the decision').
- [5]By appeal notice filed on 4 July 2022, Mr Taylor appealed against the decision.
- [6]The order sought by Mr Taylor is that the decision be set aside and another decision be substituted, namely, that his employment status be converted to permanent employment.
- [7]The principal question for my determination is whether the decision was fair and reasonable.[1]
Background
- [8]Annexed to the submissions filed by the Department was Mr Taylor's employment history. The employment history shows that:
- for the week beginning 18 May 2020, Mr Taylor was employed, on a casual basis, as an Operational Services Officer, classification OO2, for approximately 20.5 hours followed by a period of non-engagement for one week;
- for the week beginning 1 June 2020, Mr Taylor was employed, on a casual basis, in the position of Operational Services Officer, classification OO2, for 15 hours followed by a period of non-engagement for 10 weeks;
- from the week beginning 17 August 2020, Mr Taylor had:
- – various periods of employment on a casual basis in the position of Operational Services Officer, classification OO2;
- – various periods of employment on a temporary basis in the position of Wardsperson Fire & Security Officer, classification OO3; and
- – various periods of employment on a temporary basis in the position of Porter Ward 1, classification OO2; and
- from the week beginning 2 May 2022, Mr Taylor has been employed on a casual basis in the position of Operational Services Officer, classification OO2, and he remains employed, on that basis, in that position as of today's date.
- [9]Mr Taylor's employment history indicates that, in respect of all of the above employment as a casual and fixed term temporary employee in the various positions, he was employed to backfill:
- for other employees who were on emergent leave;
- for other employees who were on other leave;
- for other employees who were on secondment; or
- due to the position being vacant.
- [10]Mr Taylor does not dispute that employment history.
Mr Taylor's submissions
- [11]Mr Taylor was represented by Mr Marr of The Australian Workers' Union of Employees, Queensland.
- [12]It was submitted on behalf of Mr Taylor that:
- since his engagement, he has been employed on a regular and systematic basis with an average of 33.72 hours worked a week;
- since 13 December 2021 alone, he has worked an average of 41.2 hours a week; and
- there is a genuine operational reason to convert him to permanent employment, namely, there is a continuing need for someone to be employed in his role, or in a role which is substantially the same, which will be ongoing as is proven by his payslips which show Mr Taylor's engagement has been regular and systematic which, in-turn, gives rise to an ongoing need by the Department.
- [13]In oral submissions, Mr Marr, on behalf of Mr Taylor, submitted that:
- the Department, in making its submissions about the need for a flexible workforce to fill temporary vacancies, such that Mr Taylor's casual and temporary employment, for that reason, was permissible having regard to s 148(2) of the PS Act, has ignored s 148(3) of the PS Act which provides 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 or regular basis';
- Mr Taylor's pattern of work reflects an ongoing need for him to be permanently employed and it is therefore likely that there will always be an ongoing requirement to backfill multiple absences due to other employees taking approved leave;
- the Department did not consider both pathways to permanent employment as provided for in s 149A(2)(a) of the PS Act; and
- the Department's present submission for not making an offer to employ Mr Taylor on a permanent basis, pursuant to s 149B of the PS Act, reflects managerial inconvenience and not the genuine operational requirements of the Department as required to be considered by the combined effect of ss 149A(3) and 149B(5)(a) of the PS Act.
The Department's submissions
- [14]The Department relevantly submitted that:
- over the two years of Mr Taylor's employment in the Health Service, as outlined in his employment history, Mr Taylor has been engaged:
- – as a casual and in temporary contracts at level or in higher duties to backfill for emergent leave, backfill planned leave and to backfill secondments of permanent employees; and
- – to temporarily to fill a vacant position while recruitment is undertaken;
- the hours worked by Mr Taylor have been variable depending on service needs and the number of hours of leave taken by permanent employees; and
- in each case, a substantive incumbent has returned to their position and Mr Taylor was no longer required in that position until the next period of backfill is required.
- [15]The Department then submitted:
- The Respondent advises that during the course of the commencing the conversion review, it was identified that the Operational Services Unit was currently at that time undergoing the filling of vacancies in accordance with Section 11.5 of the Queensland Public Health Service Certified Agreement (No. 10) 2019 (EB10). Section 11.5 of EB10 outlines the Closed Merit Selection Process for Filling Vacancies. Attached and marked "WB-02" is a copy of the extract of Section 11.5 of EB10. It was identified that the Appellant was offered two (2) permanent part time positions that were available for filling as part of this process: Fire Safety Security Officer (OO3), 24 hours per fortnight; or Porter (Rehabilitation) (OO2), 40 hours per fortnight.
- With any such acceptance of a permanent position, the conversion review would be deemed redundant, therefore the conversion review process was temporarily placed on hold while awaiting outcome of the closed merit process offer. The Appellant ultimately declined both positions by a letter dated 30 June 2022, however due to the delay the conversion review was therefore not completed in the required timeframe. The Respondent acknowledges that therefore the decision is a 'deemed' decision.
- [16]The Department further submitted that while Mr Taylor was eligible for review having regard to cl 7.1 of the Directive, and that he satisfied the merit criteria, there were genuine operational requirements for not converting Mr Taylor to permanent employment.
- [17]In this regard, the Department submitted that:
- there is a legitimate and genuine need for the use of casual and temporary employees as a contingent workforce within Operational Services at the Maryborough Hospital, which is a workforce strategy utilised to ensure resourcing across a 24 hour per day, seven days a week roster allowing for the backfill of planned and unplanned leave of permanent employees;
- the strategy includes a fixed permanent establishment of full time equivalent (FTE) employees attached to a roster that aligns to the operational requirements of the services, and a contingent workforce of casual staff to backfill emergent leave and which can be engaged in fixed term temporary contracts as needed to backfill other forms of planned leave, to meet temporary increases in demand or to temporarily fill positions during recruitment cycles;
- 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 manage fluctuations in staffing needs is critical to ensuring that the required level of services is able to be delivered across the various permanent shifts;
- clause 4.4 of the Directive and s 148(2) of the PS Act sets out situations where the use of tenured employment is generally not viable or appropriate and includes circumstances in which Mr Taylor has been engaged, such as '… to fill a temporary vacancy arising because a person is absent for a known period'; and
- the Department does not have a genuine operational need to permanently employ two people in the same position at the same time, performing the same role and that it is it not appropriate or viable to do so.
- [18]Mr Cropley, who appeared for the Department, properly acknowledged that because of the application of cl 11.5 of the Queensland Public Health Service Certified Agreement (No. 10) 2019 ('the certified agreement'), there was no actual review undertaken of Mr Taylor's continuous employment pursuant to s 149B of the PS Act, despite Ms Cahill's letter dated 7 June 2022.
- [19]Mr Cropley also submitted that, over the last two years, Mr Taylor has had 57 weeks employment at the classification OO3 level and 46 weeks employment at the classification OO2 level.
The decision was not fair and reasonable
- [20]The Department properly concedes that the reason that no decision was made, following on from Ms Cahill's letter to Mr Taylor dated 7 June 2022, was the implementation of a closed merit selection process as provided for in cl 11.5 of the certified agreement. As a consequence of the application of cl 11.5 of the certified agreement, Mr Taylor was offered two permanent part-time positions, which he declined because of the classification level of one position offered and the number of part-time hours offered in respect of the other position.
- [21]It is not in dispute that a further a consequence of the application of cl 11.5 of the certified agreement is that there has been no review of Mr Taylor's employment status undertaken pursuant to s 149B of the PS Act.
- [22]The Department submits that there is a genuine operational requirement for not converting Mr Taylor's employment status to that of permanent employment. This concerns the Health Service's operational decision to have in place a workforce of casual employees to backfill positions when the incumbents are away on leave, or have been seconded or where positions become vacant. In that regard I note, having regard to Mr Taylor's employment history, that since 17 August 2020, Mr Taylor has consistently been employed on a casual and fixed term temporary basis to backfill in other positions where the incumbents are either on leave or have been seconded, or where positions are vacant.
- [23]It seems to me that those circumstances should be expressly considered in a review of Mr Taylor's employment status to be conducted pursuant to s 149B(3) of the PS Act. In my view, having regard to s 148(3) of the PS Act and having regard to the length, frequency and nature of Mr Taylor's employment, those facts may well be determinative in deciding whether Mr Taylor should be offered permanent employment pursuant to s 149B of the PS Act.
- [24]A review of Mr Taylor's employment status was going to be undertaken by the Department, but was then not carried out because of the application of cl 11.5 of the certified agreement. That review should have been undertaken. Further, because it has not done so, that review should be undertaken by the Department as required by the PS Act.
- [25]For these reasons, my view is that the decision was not fair and reasonable. The Department applied cl 11.5 of the certified agreement which, on its case, intervened in the application of the review process to be conducted pursuant to s 149B of the PS Act. Such processes are separate processes.[2] A review of Mr Taylor's employment status, pursuant to s 149B of the PS Act, should have been undertaken.
- [26]The appropriate course is to set aside the decision taken to have been made pursuant to s 149B(7) of the PS Act, to return the issue to the decision maker, with a copy of these reasons for decision on appeal, and to direct that the decision maker conduct the review of Mr Taylor's employment status pursuant to s 149B of the PS Act.
- [27]That review should be completed within 28 days of today.
Order
- [28]I make the following order:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:
- (a)the decision appealed against is set aside;
- (b)the matter is returned to the decision maker with a copy of this decision on appeal; and
- (c)the decision maker is directed to conduct a review of the Appellant's continuous employment, pursuant to s 149B of the Public Service Act 2008, within 28 days of the date of this order.