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  4. Stievano v State of Queensland (Queensland Health) - [2022] QIRC 404

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Stievano v State of Queensland (Queensland Health)[2022] QIRC 404

Stievano v State of Queensland (Queensland Health)[2022] QIRC 404

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stievano v State of Queensland (Queensland Health) [2022] QIRC 404

PARTIES:

Stievano, Trudi

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/741

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

24 October 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 Stievano not have her employment converted to permanent is set aside and another decision is substituted; and
  1. Mrs Stievano'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

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

IW v City of Perth (1997) 191 CLR 1

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

Kay v State of Queensland (Queensland Health) [2022] QIRC 311

Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013

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

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

Reasons for Decision

  1. [1]
    Mrs Trudi Stievano (the Appellant) is currently employed as an AO3 Billing Officer at the Mossman Multi-Purpose Health Service, within the Cairns Hinterland Hospital and Health Service (CHHHS), Queensland Health (the Department), State of Queensland (the Respondent). 
  1. [2]
    Mrs Stievano has a 0.84 FTE fixed-term temporary contract arrangement.  That concludes on 11 December 2022.
  1. [3]
    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 12 July 2022.[1]
  1. [4]
    The Department's chief executive was required to make a conversion decision within 28 days of the review eligibility date.  That is, a decision was due on 9 August 2022. 
  1. [5]
    Mrs Stievano's union, Together Queensland, followed up the status of her matter with CHHHS shortly thereafter on 15 August 2022, in order to protect her appeal rights. 
  1. [6]
    In reply email, CHHHS confirmed that no decision had been reached within 28 days and so a decision rejecting conversion was deemed to have occurred, in accordance with s 149B(7) of the PS Act.
  1. [7]
    Together Queensland notified CHHHS that the deemed decision was not accepted.  That then triggered a review of the preliminary decision, through the mechanism of a temporary conversion review panel constituted under cl 6.4 Temporary and Casual Conversion Panel Review Process of the relevant certified agreement.[2]
  1. [8]
    In correspondence dated 31 August 2022, Mrs Stievano was advised that:

After reviewing the preliminary decision:

1. The panel has been unable to reach consensus to either overturn or confirm the preliminary decision.

2. In considering the information available to the panel, the HR Branch has decided that it will not overturn the preliminary decision made by CHHHS.[3]

  1. [9]
    That correspondence also explained that the certified agreement provided that:

Where consensus cannot be reached between the parties or the HR Branch does not overturn the preliminary decision, it will become the final decision with the effective date being the day the employee receives the notice not to overturn the preliminary decision.[4]

  1. [10]
    Verbal advice in those terms had already been provided to Mrs Stievano, such that the effective date of the final decision was 30 August 2022.
  1. [11]
    That decision is the subject of this appeal.
  1. [12]
    The Appellant filed an appeal against the decision on 6 September 2022.

The Decision

  1. [13]
    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. [14]
    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. [15]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [16]
    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. [17]
    There is no dispute between the parties that the decision is able to be appealed by the Appellant.

Timeframe for appeal

  1. [18]
    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. [19]
    The effective date of decision was 30 August 2022.  In accordance with s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 6 September 2022. 
  1. [20]
    There is no dispute between the parties that the appeal was filed in time.

What decisions can the Commission make?

  1. [21]
    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. [22]
    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. [23]
    The appeal is not conducted by way of re-hearing,[5] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[6] 
  1. [24]
    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.[7]
  1. [25]
    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.[8]

Relevant provisions of the PS Act and Directive 09/20

  1. [26]
    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. [27]
    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. [28]
    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. [29]
    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. [30]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[9]
  1. [31]
    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. [32]
    The purpose of Directive 09/20 is:
  1. Purpose

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

The legislation indicates where employment on tenure may not be appropriate.

  1. [33]
    Further, Directive 09/20 relevantly provides:

4.   Principles

4.1  Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the Government's Employment Security Policy.

…

4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

Submissions

  1. [34]
    In accordance with the Directions Orders issued in this matter, the parties filed written submissions.
  1. [35]
    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. [36]
    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.

Grounds of appeal

  1. [37]
    The Appellant submitted that the decision is unfair and unreasonable because:

…the decision maker has failed to:

a)properly consider the mandatory criteria in the PS Act for such a decision;

b)provide written reasons of the decision including findings on material questions of fact;

c)refer to the evidence or other material on which those findings were based.[10]

No written reasons provided in a deemed decision

  1. [38]
    With respect to the latter two grounds of appeal, I would observe that s 149B(7) expressly envisages the circumstances in which a deemed decision is made. 
  1. [39]
    That is permissible under the PS Act, notwithstanding "Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision".[11]
  1. [40]
    As I have previously explained in Lee v State of Queensland (Public Safety Business Agency), there are two pathways to deciding an employee's conversion request – where a decision is given complete with written reasons or where a decision is deemed to have been made.  Whilst that earlier appeal pertained to a higher classification conversion (rather than a temporary conversion appeal, as is the case here) the comments about a written notice in circumstances of a deemed decision are apposite here:[12]

[51] While the PS Act and Directive prescribes timeframes and components of written decisions where one is made, a second pathway for responding to a conversion request is also available to the department's chief executive. That is, where a decision is not made within the required period, the conversion request is taken to have been refused (the 'deemed decision').

[52] Put another way, the act of not making a decision is taken to be a decision in itself - and it also follows that the same requirements do not apply under the second pathway. Self-evidently, there can be no inclusion of mandatory components evidencing consideration of particular criteria where no written notice is provided to the employee requesting conversion.

[53] A deemed decision taken to be made under this second pathway does not provide the explanation or detail that would otherwise assist an employee in understanding the basis for the refusal of their conversion request and thus enable them to consider whether they wish to pursue any appeal rights. However, it is nonetheless a legitimate and permissible option for departmental decision makers as the legislation currently stands - and establishes the clear parameters within which I am compelled to decide such appeals.

[54] With respect to a deemed decision made under the second pathway, it has also been made clear that "A written notice is not required to be prepared 'after the fact' to support a deemed decision…" This further confirms that the mandatory components of any written decision made under the first pathway do not apply to a deemed decision made under the second pathway.

[55] Ms Lee has submitted that the department's decision was not fair and reasonable because they failed to provide her with a written notice containing the mandatory components and within the required time period. For the reasons explained above, that is not correct. There was no requirement to do so under the second pathway for deciding such conversion request.

[56] That the department chose to then provide Ms Lee with a written notice of the decision to refuse her conversion request subsequent to the filing of her appeal does not amount to their failure to adhere to the mandatory requirements either. The decision subject of Ms Lee's appeal is the deemed decision. This was made clear in Ms Lee's Appeal Notice. Therefore, the standing of any written notice that the department has later provided to Ms Lee is useful only as "…other evidence to be taken into account…" as part of my review of the deemed decision subject of this appealed. The provision of a written notice outside the 28 day time period, nor the question of whether it adequately or otherwise addresses the mandatory components, does not constitute an error of law that would lead me to find the decision to be unfair and unreasonable in circumstances where it is the deemed decision that is subject of Ms Lee's appeal.[13]

  1. [41]
    I have also considered a deemed decision, made absent the provision of written reasons, in Benson v State of Queensland (Department of Education).[14] In that earlier appeal, I explained a deemed decision was not inherently unfair and unreasonable:
  1. [80]
    Ms Benson has submitted that the Department's failure to comply with the PS Act and TE Directive requirements regarding the provision of written notice of the decision including written reasons, findings and evidence combined to make the deemed decision inherently unfair and unreasonable. 
  1. [81]
    I do not agree with that proposition.  The PS Act[15] and TE Directive[16] contemplate a scenario in which the chief executive does not make the decision within the required period and makes alternative provision in those circumstances. 
  1. [82]
    Where a decision is made under a review pursuant to s 149B of the PS Act, the Department is required to comply with s 149B(6), which provides:
  1. (6)
    If the department's chief executive decides to refuse the request, the chief executive must give the employee a notice stating—
  1. (a)
    reasons for the decision; and
  1. (b)
    the total continuous period for which the person has been acting at the higher classification level in the department; and
  1. (c)
    how many times the person's engagement at the higher classification level has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of employment at the higher classification level.
  1. [83]
    However, s 149B(7) of the PS Act and cl 8.5 of the TE Directive provides for a decision not to have been made with respect to a conversion.  That is, the employment continues according to the terms of the existing arrangement.
  1. [84]
    Section 149B(7) of the PS Act provides:

              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. [85]
    Clause 8.5 of the TE Directive provides:

              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).

  1. [86]
    A 'decision' to refuse the request for conversion triggers the requirement for a notice pursuant to subsection (6). However, those requirements do not apply to a deemed decision. 
  1. [87]
    While there is no statutory requirement that reasons be furnished if the decision is deemed in accordance with s 149B(7) of the PS Act, the Department has nonetheless been required to elaborate the extent to which the mandatory criteria was considered in taking the deemed decision with respect to the Administrative Officer engagement through this Appeal process.
  1. [88]
    While I appreciate the earlier revelation of those considerations may well have assisted Ms Benson to decide whether she wished to embark on her Appeal in the first place, and the grounds on which to do so, I am satisfied that she has now been provided with the opportunity to examine the Department's submissions with respect to the extent of considerations undertaken.
  1. [42]
    In summary, I do not accept that the decision subject of this appeal is inherently unfair and unreasonable by virtue of it being a deemed decision and omitting written reasons.[17] Although rather concise, the Respondent's written submissions do now present the extent of its consideration of the relevant criteria, insofar as is necessary for my determination of whether the decision made was fair and reasonable.

Decision criteria

  1. [43]
    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. [44]
    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. [45]
    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.[18]

Merit

  1. [46]
    The Appellant satisfied the merit criterion.  That is not in dispute between the parties.

Compliance with an industrial instrument

  1. [47]
    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.

Reasons for any decision previously made or deemed

  1. [48]
    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. [49]
    Mrs Stievano commenced with CHHHS on 31 July 2016 as a casual employee.[19]  Since then, she has "been engaged in multiple fixed-term temporary and casual engagements" and has certainly been employed continuously for the requisite two years.[20]
  1. [50]
    Mrs Stievano submitted that:

I have been continuously engaged on a fixed-term / casual temporary contract as a AO3 Administration Officer or AO3 Billing Officer based within Mossman in a combination of Full Time, Part Time and Casual engagements for the majority of time since starting with the Department.  I am currently engaged in a fixed-term temporary contract at 0.84 FTE until 11 December 2022.[21]

  1. [51]
    My decision firstly turns on the question of whether there is a continuing need for Mrs Stievano to be employed in the role, or a role which is substantially the same. 
  1. [52]
    I will then go on to consider whether any genuine operational requirements fairly and reasonably prevent permanent conversion of the Appellant. 
  1. [53]
    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?

Respondent's submissions

  1. [54]
    The Respondent stated that there is not a continuing need because:

Length of employment and contract end date

  • Mrs Stievano's fixed-term temporary contract expires on 11 December 2022.

Funding

  • Funding for the position is unknown and subject to change, as it relies on

Commonwealth funding.[22]

The Respondent submitted that:

Whilst the funding arrangement with the Commonwealth is in place until the fixed end date of 30 July 2025, it is not expected that the Appellant's role would be required if the funding is not renewed, as CHHHS would no longer be able to bill Medicare professional attendances in relation to the Mossman Multi-Purpose Health Service that is funded under the COAG agreement.  This is in accordance with Queensland Health Policy that the 'funded program is to be at least two years in length and due to the nature of the program, is expected to continue beyond the life of any program funding.'

…

… there is a fixed end date to the temporary funding and … it is currently unknown whether further funding would be provided.[23]

Funding arrangements peculiar to one position

  • Mrs Stievano is the only administration officer employed under the COAG

agreement and her "duties are solely related to the activities produced under the COAG agreement."[24]

Small facility

  • The Mossman Multi-Purpose Health Service is a small facility with a total of 3.47

FTE of permanent AO3 Administration Officer roles established on a continuing permanent basis.[25]

Queensland Health's Human Resources Policy

  • The Respondent's submission cites Queensland Health's Human Resources Policy 'Appointments – Permanent and / or fixed term temporary – Commonwealth and / or State Funded Programs', B24 (QH-POL-104), December 2021 (my emphasis):

1.1Principle for permanent employment

The funded program is to be at least two years in length and due to the nature of the program, is expected to continue beyond the life of any program funding.

Appellant's submissions

  1. [55]
    The Appellant stated that there is a continuing need because:

Length of employment and contract end date

  • Mrs Stievano's employment in an AO3 role at the Mossman Multi-Purpose Health Service commenced in July 2016.  Her fixed term employment has been extended multiple times.

Mrs Stievano stated that "I have been continuously engaged on a fixed-term / casual temporary contract as a AO3 Administration Officer or AO3 Billing Officer based within Mossman in a combination of Full Time, Part Time and Casual engagements for the majority of time since starting with the Department.  I am currently engaged in a fixed-term temporary contract at 0.84 FTE until 11 December 2022."[26]

Since 2018 to the present time, Mrs Stievano has worked as an AO3 Billing Officer at the Mossman Multi-Purpose Health Service.

Mrs Stievano asserted that she has been engaged "in my current role or a role substantially the same since 31 July 2016 and have been extended or re-engaged numerous times by the Department."[27]

The length of her employment would support a contention that the nature of the work is ongoing.[28]

Work has no known end date

  • With respect to s 148(2)(b) of the PS Act, the Appellant submitted that the "employment of a person on tenure may not be viable or appropriate if" it is (emphasis added) "to perform work for a particular project or purpose that has a known end date…" 

However, the Appellant stated that "…the Department has failed to outline when the role will end, if ever…I contend that a lack of a known end date contributes to my assertion that there is a continuing need for my role."[29]

Funding

  • With respect to s 148(2)(c) of the PS Act, the Appellant submitted that the "employment of a person on tenure may not be viable or appropriate if" it is (emphasis added) "to fill a position for which funding is unlikely or unknown…" 

However, the Appellant stated that "…the Department has failed to provide detail about the unlikelihood or uncertainty of the funding of the position…I contend that whilst the funding may administratively appear to be partially temporary, it is not unlikely or unknown as the nature of the work is ongoing."[30]

  • It was also submitted that "During the internal review process, the Department indicated that the funding for my current role is in place until the year 2025, but is reviewed annually.  I believe the lack of a known end date and funding until 2025 indicates the Respondent has failed to adequately assess the continuing need for the role or a role that is substantially the same.  I contend that this makes their deemed decision unfair and unreasonable."[31]

Whether or not there is recurrent funding for a position is not a valid reason for withholding conversion.[32]

  • Whilst the Respondent makes vague reference to Commonwealth funding being unreliable or potentially non-recurrent, I respectfully submit that this is irrelevant to making a conversion decision.  Further to this, Hartigan IC found in Kay v State of Queensland (Queensland Health)[33] (Kay):

[38]  Whilst s 148(2)(b) of the PS Act acknowledges that employment on tenure may not be viable, including if an employee is performing work for a particular project that has an end date, that must be considered in the context of the matter. In this matter, the Appellant has been engaged in multiple fixed term engagements since 30 July 2018. I do not consider that the purpose of s 149B of the PS Act or Directive 09/20 is achieved by placing an employee on rolling fixed term engagements for a period of at least six years (noting that funding is current until at least 30 July 2024). I consider the failure to convert Ms Kay's employment from temporary to permanent, in the circumstances of this matter, as not fair or reasonable.

Employed on a frequent or regular basis

  • With respect to s 148(3) of the PS Act, the Appellant submitted that (emphasis added) "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…"

The Appellant contended that "…even if the Department believes that the work I perform in my current role is temporary in nature, they have not adequately considered whether the Department requires someone to be employed on a frequent or regular basis for a purpose mentioned in subsection (2)."[34]

Initial temporary engagement reason cannot be relied upon indefinitely

  • The Appellant cited the Commission's decision in Benson[35] where I held that an employer could not rely indefinitely on their reasons for initially engaging an employee on a temporary basis.  In the case where a person had been repeatedly extended in the role this did demonstrate a continuing need for them to be employed in the role and the decision to the contrary was unfair and unreasonable and had not appropriately weighed those factors.

It was thus submitted that this case is analogous to Benson insofar as Mrs Stievano has been in her "…current role or a role substantially the same since 31 July 2016 and have been extended or re-engaged numerous times by the Department."[36]

Purpose

  • The Appellant argued that, as found in Kay, the purpose of s 149B of the PS Act or Directive 09/20 is not achieved by failing to convert the employment to permanent where the role is continuing and ongoing in nature (by virtue of funding being in place to 2025).[37]

Consideration

  1. [56]
    I am mindful of several factors in determining this issue:
  • Mrs Stievano has been employed on various successive contracts in AO3 roles with the Department for about six years now.

As detailed above at [50] and [55], a succession of employment contracts at AO3 over approximately a six year period is rather a strong indicator of the continuing need for Mrs Stievano to be employed in an AO3 role at the Mossman Multi-Purpose Health Service.

  • She has been working in her current role as an AO3 Billing Officer at the Mossman Multi-Purpose Health Service since 2018.
  • Mrs Stievano's current fixed-term temporary contract expires on 11 December 2022. 

That is despite the Respondent's concession that the current role is continuing until (at least) 30 July 2025, as it submitted that:

…the funding arrangement with the Commonwealth is in place until the fixed end date of 30 July 2025, it is not expected that the Appellant's role would be required if the funding is not renewed…

Quite bluntly, 2025 is quite some time away.

  • Section 148 of the PS Act states:

148Employment 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 –

…

(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

(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. (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.

I note that provision indicates only that employment on tenure may not be viable or appropriate in the circumstances cited in the submissions.  While that is certainly one factor that may inform the Department's considerations of whether there is a continuing need for Mrs Stievano to be employed in the role, it is not the exclusive consideration. 

  • Even if Commonwealth funding for the current role undertaken by Mrs Stievano were not to be renewed in mid-2025, she would have been working in that role under successive temporary contracts for seven years by that point. 

It is insupportable for the Respondent to rely on s 148(2)(c) of the PS Act to continue to employ Mrs Stievano temporarily on grounds that funding after mid-2025 "is unlikely or unknown" in those terms.

  • As the Appellant correctly pointed out, a budgeted vacancy is not required for conversion to permanent employment.
  • The Department accepts that there is a continuing need for someone to fulfil that AO3 role for the duration of the funding (at least). 
  • The Directive requires that the Respondent consider whether there is a continuing need for Mrs Stievano to be employed in the role. 

As the Department's submissions stated that Mrs Stievano is the only administration officer employed under the COAG agreement and her "duties are solely related to the activities produced under the COAG agreement", it would appear to be self-evident that there was also a continuing need for Mrs Stievano to be employed in that role.

  • There is clearly then a continuing need for Mrs Stievano to perform her current role beyond the expiry of her current temporary contract and at least until the expiration of the Commonwealth funding presently secured until mid-2025. 
  • Whilst the Respondent has cited Queensland Health's Human Resources Policy, cl 1.1 'Principle for permanent employment' as an argument for why it was correct not to convert Mrs Stievano's employment to permanent, it appears to me to in fact support her claim for permanency.  Certainly, the Commonwealth funding is at least two years in length and there is no material before me to persuade that it would not be expected to continue beyond the life of any program funding.  Furthermore, I note that cl 2.3 of that same policy also relevantly states (my emphasis):

2.3Renewal of fixed term temporary appointments

If at the time of engagement a period of program funding is due to cease in less than two years, with no expectation of funding being renewed, or the position does not satisfy the fundamental principles (refer section 1.1), engagements are to be of a temporary nature.

If subsequent funding is renewed, a reassessment of the temporary engagement is to occur within one month of renewal, and a merit selection process is to be commenced promptly as detailed in sections 2.1 and 2.2.

The funding status of a position does not remove the requirement under sections 149, 149B and 149C of the Public Service Act 2008, for Queensland Health to review a temporary employee for conversion to permanent status.

  • Respectfully, the Respondent's submissions as to matters such as the Commonwealth funding arrangements being peculiar to only one position or that Mrs Stievano works in a small facility are not relevant.
  1. [57]
    I accept that particular circumstance may have constituted reasons for the Department to initially employ Mrs Stievano on a temporary employment contract.  However, after many years of meritoriously undertaking the role at this time, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [58]
    It is quite clear that the role presently occupied by Mrs Stievano is continuing.  At the time of the deemed decision there was a continuing need for her to be employed in her present role, at least until mid-2025. 
  1. [59]
    It follows that there is a continuing need for Mrs Stievano to be employed in her current role.  In my view, the Department's deemed decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
  1. [60]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Mrs Stievano to permanency.
  1. [61]
    For the sake of completeness, I will also consider the second pathway to permanent conversion of alternative "substantially the same" roles.

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

  1. [62]
    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. [63]
    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.[38] 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. [64]
    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. [65]
    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. [66]
    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. [67]
    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. [68]
    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. [69]
    '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.[39]
  1. [70]
    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".[40]

  1. [71]
    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.'[41]

  1. [72]
    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. [73]
    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. [74]
    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.

Consideration

  1. [75]
    The Respondent's position is the key 'genuine operational requirement' that prevents the conversion of the Appellant to permanent employment is the uncertainty of Commonwealth funding after mid-2025.
  1. [76]
    In light of that, 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";[42]
  • cl 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 to fill a position for which funding is unlikely or unknown;
  • for the reasons I have explained above, I do not accept Commonwealth funding until mid-2025 to be a sufficient reason to disrupt the intent and principles, particularly where the provision expresses only that conversion to tenure "may not" be viable and appropriate in some circumstances.  The Respondent has simply failed to persuade me that there is a real and pressing concern that the funding in question is either subject to change or not expected to be renewed after that time.
  1. [77]
    Section 148(2) of the PS Act does not prescribe that because a particular circumstance listed may apply to an employee, 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. [78]
    As I found in Benson v State of Queensland (Department of Education),[43] although a particular circumstance may have constituted a reason for the Department to initially employ someone on a temporary basis, after many 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. [79]
    The issue is not whether it was appropriate to initially employ the Appellant on a casual or temporary basis. 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. In light of her pattern of engagement over a lengthy period, I accept the Appellant has been engaged frequently and this is evidence of regularity.
  1. [80]
    The Respondent relies upon the Appellant on an ongoing basis. That continuous pattern supports that that Appellant is engaged on a systematic basis.
  1. [81]
    Of course, it is possible that the work undertaken by the Appellant could be done on a temporary basis. That is not in issue. A finding that the work could be done on a temporary basis is not tantamount to evidencing a genuine operational requirement preventing conversion to permanent.
  1. [82]
    I am satisfied the Appellant has been employed on a regular and systematic basis and am satisfied that the Appellant's employment on tenure is viable and appropriate. 
  1. [83]
    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.

Conclusion

  1. [84]
    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. [85]
    I have found that there is a continuing need for the Appellant to continue working in her current role.  That need will certainly not conclude at the end of her current fixed term contract.
  1. [86]
    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. [87]
    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. [88]
    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 Stievano not have her employment converted to permanent is set aside and another decision is substituted; and
  1. Mrs Stievano's employment status be converted to permanent employment.

Footnotes

[1] Appellant's submissions, Attachment 2 – Email from HR re: Initiation, 19 September 2022.

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

[3] Appellant's submissions, Attachment 4 – Letter re: Outcome of Internal Review, 19 September 2022.

[4] cl 6.4.8.

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

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

[7] Ibid s 567(2).

[8] 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.

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

[10] Appellant's submissions, 19 September 2022, [14].

[11] Directive 09/20 Fixed term temporary employment s 8.6

[12] [2021] QIRC 013, 15 [53].

[13] Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 013.

[14] [2021] QIRC 152.

[15] Public Service Act 2008 (Qld) s 149B(7).

[16] Directive 09/20 Fixed term temporary employment cl 8.5 and cl 8.7.

[17] McAllister v State of Queensland (Queensland Health) [2021] QIRC 435, [26].

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

[19] Respondent's submissions, 27 September 2022, [9]; Appellant's submissions, 19 September 2022, [3].

[20] Appellant's submissions, 19 September 2022, [3].

[21] Ibid [4].

[22] "via a Council of Australian Governments (COAG) Section 19(2) Exemptions Initiative, in accordance with the Health Insurance (Medicare Benefits Payable in Respect of Professional Services – Council of Australian Governments' Improving Access to Primary Care in Rural and Remote Areas – COAG s 19(2) Exemptions Initiative – Queensland Direction 2022"; Respondent's submissions, 27 September 2022, [11].

[23] Respondent's submissions, 27 September 2022, [13] – [14].

[24] Ibid [12].

[25] Ibid [15].

[26] Appellant's submissions, 19 September 2022, [4].

[27] Ibid [21].

[28] Appeal Notice, 6 September 2022, 4.

[29] Appellant's submissions, 19 September 2022, [16].

[30] Ibid [17].

[31] Ibid [18].

[32] Ibid [25].

[33] [2022] QIRC 311, [38].

[34] Appellant's submissions, 19 September 2022, [19].

[35] Benson v State of Queensland (Department of Education) [2021] QIRC 152, [119] – [124].

[36] Appellant's submissions, 19 September 2022, [21].

[37] Ibid [31].

[38] [2021] QIRC 152, 27 [136].

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

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

[41] [2020] QIRC 203.

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

[43] [2021] QIRC 152, 25 [120].

Close

Editorial Notes

  • Published Case Name:

    Stievano v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Stievano v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 404

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    24 Oct 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
5 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Cite 4 - [2021] QIRC 152
Cite 5 - [2021] QIRC 152
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
Kay v State of Queensland (Queensland Health) [2022] QIRC 311
2 citations
Jump To
Cite 1 - [2022] QIRC 311
Cite 2 - [2022] QIRC 311
Lee v State of Queensland (Public Safety Business Agency) [2021] QIRC 13
3 citations
Jump To
Cite 1 - [2021] QIRC 13
Cite 2 - [2021] QIRC 13
Cite 3 - [2021] QIRC 13
McAllister v State of Queensland (Queensland Health) [2021] QIRC 435
1 citation
Jump To
Cite 1 - [2021] QIRC 435
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
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

Cases Citing

Case NameFull CitationFrequency
Dudley v State of Queensland (Office of Industrial Relations) [2023] QIRC 2122 citations
Epong v State of Queensland (Queensland Health) [2025] QIRC 72 citations
Olesk v State of Queensland (Department of Education) [2024] QIRC 142 citations
1

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