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Stephens v State of Queensland (Queensland Health)[2022] QIRC 420

Stephens v State of Queensland (Queensland Health)[2022] QIRC 420

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Stephens v State of Queensland (Queensland Health) [2022] QIRC 420

PARTIES:

Stephens, Emily

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/649

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

31 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. 1.The appeal is allowed;
  2. 2.The decision that Ms Stephens not have her employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Ms Stephens' fixed term temporary employment status as a Radiation Therapist (HP classification) be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where respondent determined 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 25, s 27, s 148, s 149, s 149A, s 149B, s 194, s 196

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 08/17 Temporary employment cl 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 11

Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 92, cl 95

CASES:

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

Borean v State of Queensland (Queensland Health) [2021] QIRC 295

Cassilles v State of Queensland (Queensland Health) [2021] QIRC 210

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243

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

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

IW v City of Perth (1997) 191 CLR 1

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

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

Moodley v State of Queensland (Queensland Health) [2022] QIRC 282

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

Stephens v State of Queensland (Queensland Health) [2022] QIRC 213

Swan v State of Queensland (Queensland Health) [2021] QIRC 346

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

Zhao v State of Queensland (Queensland Health) [2022] QIRC 185

Reasons for Decision

  1. [1]
    Ms Emily Stephens (the Appellant) is currently employed by Queensland Health at Metro South Hospital and Health Service (MSHHS) as a fixed term temporary employee.  Ms Stephens works in the role of Radiation Therapist (HP3) with Radiation Oncology at the Princess Alexandra Hospital (PAH). 
  1. [2]
    Ms Stephens is currently engaged on a full-time (76 hours per fortnight) fixed term temporary contract that concludes on 29 January 2023. 
  1. [3]
    She has worked under such arrangements over a period of some four to five years.
  1. [4]
    In January this year, Ms Stephens was advised that a fixed term temporary employment review had been initiated, in accordance with the Fixed Term Temporary Employment Directive 09/20 (Directive 09/20).
  1. [5]
    Later that month, Ms Stephens was formally notified that the outcome of the review was that she would not be converted to permanent employment "having regard to genuine operational requirements".  MSHHS explained that included that she was employed as a fixed term temporary employee to:
  • backfill tenured employees on parental leave and / or secondment; and
  • backfill tenured employees returning to work part-time from a period of parental leave.

With respect to the mandatory consideration of "a role that is substantially the same", MSHHS's decision merely stated:

Furthermore, there is no continuing need for you to perform a role that is substantially the same as the duties you were previously undertaking as all alternative roles have been considered.

The First Appeal

  1. [6]
    Ms Stephens filed an appeal of MSHHS's decision on 3 February 2022 (the first appeal).
  1. [7]
    The first appeal was decided by Industrial Commissioner Dwyer on 15 June 2022. 
  1. [8]
    Essentially, Dwyer IC did not consider MSHHS's decision to be fair and reasonable because of its inattention to the mandatory consideration of "a role that is substantially the same".  He said:

…the decision maker has failed to comply with a mandatory requirement to include findings and evidence on material findings of fact with respect to what efforts were undertaken to locate and consider roles that might be substantially the same, and why roles considered (if any) were excluded.

…

…the decision provides no information as to the extent, quality or genuineness of the efforts made to find a substantially similar role.  That is not to say that proper efforts were not made, but simply that there is no information about those efforts that would allow Ms Stephens to evaluate whether she had been treated fairly.

Dwyer IC elaborated that the decision maker should:

…give consideration to any substantially similar roles that are available at the time of the fresh review.  If a permanent role cannot be found for Ms Stephens, I expect that any decision issued will set out the details of the efforts to identify substantially similar roles and (if applicable) why any identified were excluded.

  1. [9]
    Ultimately, the outcome of that first appeal was that Dwyer IC ordered the decision maker to "conduct a fresh review of Ms Stephens' employment in accordance with the terms of Sections 149A and 149B of the Public Service Act 2008, and in accordance with the Fixed Term Temporary Employment Directive 09/20".

The Second Appeal

  1. [10]
    MSHHS then undertook a fresh review.
  1. [11]
    The result of that fresh review was that the conversion of Ms Stephens' employment to permanency was again refused; albeit this time with an elevated consideration of the mandatory criteria of "a role that is substantially the same" demonstrated.
  1. [12]
    That is the decision subject of this particular appeal (the second appeal).

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 the decision was 29 June 2022. 
  1. [20]
    In accordance with s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 5 July 2022.  Ms Stephens appointed her union – United Voice – to be her agent in this matter.
  1. [21]
    There is no dispute between the parties that the appeal was filed in time.

What decisions can the Commission make?

  1. [22]
    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. [23]
    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. [24]
    The appeal is not conducted by way of re-hearing,[1] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[2] 
  1. [25]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 
  1. [26]
    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.[3]

Relevant provisions of the PS Act and Directive 09/20

  1. [27]
    Section 148 of the PS Act states (emphasis added):

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).
  2. (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. [28]
    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
  2. (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. [29]
    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
  2. (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. [30]
    Directive 09/20 relevantly provides (emphasis added):
  1. 8.Decision on review of status
  2. 8.1When 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. 8.2Sections 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. [31]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[4]
  1. [32]
    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. [33]
    The purpose of Directive 09/20 is:
  1. 1.Purpose
  1. 1.1The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

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

  1. [34]
    Further, Directive 09/20 relevantly provides:
  1. 4.Principles
  2. 4.1Section 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.

…

  1. 4.4Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

Submissions

  1. [35]
    In accordance with the Directions Order issued in this matter, the parties filed written submissions.
  1. [36]
    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. [37]
    I have carefully considered all submissions and annexed materials.

Chronology

  1. [38]
    A chronology is useful in this case.

Date(s)

Event

8 January 2018

January 2019

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

January 2019

August 2019

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

August 2019

January 2020

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

January 2020

3 January 2021

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

4 January 2021

9 January 2022

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

10 January 2022

29 January 2023

Fixed term temporary contract with MSHHS at 76 hours per fortnight (full-time hours)

10 January 2022

 

MSHHS advised Ms Stephens that a fixed term temporary employment review had commenced

18 January 2022

 

MSHHS correspondence to Ms Stephens refused her conversion from temporary to permanent employment (the first decision)

3 February 2022

 

Ms Stephens filed an appeal of the first decision (the first appeal)

15 June 2022

 

Dwyer IC decided the first appeal.  He ordered MSHHS to conduct a fresh review

21 June 2022

 

MSHHS advised Ms Stephens that it would undertake the fresh review

29 June 2022

 

MSHHS correspondence to Ms Stephens again refused her conversion from temporary to permanent employment (the second decision)

5 July 2022

 

Ms Stephens filed an appeal of the second decision (the second appeal)

5 July 2022

 

Ms Stephens appointed her union as her agent

11 July 2022

 

McLennan IC issued Directions Order

18 July 2022

 

Respondent filed written submissions

22 July 2022

 

Appellant filed written submissions

  

Neither party sought leave to make any further submissions in this case

31 October 2022

 

McLennan IC decided the second appeal.  She ordered that Ms Stephens' employment be converted to permanent

MSHHS's stated reasons for refusing conversion

  1. [39]
    In correspondence[5] advising its second decision (subject of this appeal), MSHHS again refused to convert Ms Stephens to permanent employment because (my emphasis):

…In considering the continuing staffing needs at this time, Ms Brown has accounted for the fact that you have been engaged as a fixed term temporary employee to backfill a tenured employee on parental leave.

You are currently backfilling a temporary vacancy created by the substantive occupant who is currently on parental leave for a known period.  At the cessation of this period, the substantive occupant will be returning to their position.

Furthermore, there are no current vacancies that are substantially the same or similar as roles you have previously performed.  In order to make this determination a review of the MSH jobs board has been completed to review all vacant positions within MSH that are at an appropriate level and discipline.  There are currently no permanently available Radiation Therapist roles within any MSH facility…

  1. [40]
    The above reasons reflect the explanation for refusal provided by MSHHS in earlier correspondence, in which Ms Stephens was advised that (my emphasis):[6]
  • 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.

…

Continuing need

The decision not to permanently appoint you is based on continuing staffing needs at this time.

Specifically, you have been engaged as a fixed term temporary employee where a temporary vacancy has been created due to the following genuine operational reasons:

  • Backfill of tenured employees on parental leave and / or secondment;
  • Backfill of tenured employees returning to work part-time from a period of parental leave.

You are currently backfilling a temporary vacancy created by the substantive occupant who is currently on parental leave and / or secondment for a known period.  At the cessation of this period, the substantive occupant will be returning to their position.  This type of coverage is contemplated in the directive as to a reason a person's employment should remain temporary.

Furthermore, there is no continuing need for you to perform a role that is substantially the same as the duties you were previously undertaking as all alternative roles have been considered.

  1. [41]
    MSHHS supplemented that reasoning in its written submissions, including that (my emphasis):
  1. a)"…there were genuine operational reasons for not converting Ms Stephens to permanent employment.  Ms Stephens' fixed term engagement is temporary in nature because the hours are substantively occupied by a permanent employee who is on leave."
  2. b)For the first year of her employment, Ms Stephens was engaged as a Graduate Radiation Therapist.

"Since advancing to the position of Radiation Therapist in February 2019, Ms Stephens has been engaged on a fixed term basis primarily to backfill permanent employees who are on leave.  Each of these employees has retained the entitlement to return to their substantive position at which point the hours that Ms Stephens is backfilling will no longer be required."

  1. c)In accordance with the Queensland Government's Employment Security Policy, MSHHS is committed to maximising permanent employment and only utilising fixed term temporary employment where it is not viable or appropriate to appoint permanently.
  2. d)The purpose of this appeal is to determine whether or not the second conversion refusal decision made by MSHHS was fair and reasonable.  MSHHS submitted that "the relevant point in time" of that decision was 29 June 2022.
  3. e)Ms Stephens' merit is not disputed.
  4. f)"…Ms Stephens was advised that her employment would continue in a fixed term capacity, and she would not be converted to permanent employment, as she is currently engaged to backfill the parental leave of another employee who is entitled to, and intends to, return to their substantive position.  It is not viable for the MSHHS to permanently appoint Ms Stephens to a position that is owned by another employee who is entitled and intends to return to it."
  5. g)This circumstance was contemplated by Dwyer IC in the first appeal:

With respect to the position she currently holds, it would be nothing short of irresponsible to permanently appoint Ms Stephens to a role that she is filling temporarily while the substantive position holder is on leave or otherwise absent, or to create a position for her for which there is no funding.  The prevailing circumstances, which include both budgetary considerations and the fact that there is a substantive position holder, combine to form the operational requirements precluding Ms Stephens' permanent appointment to the position.[7]

  1. h)"Whether Ms Stephens is offered another fixed term engagement beyond her current fixed term contract is contingent on whether another employee accesses leave.  At the time of these submissions, the substantive occupant has indicated an intention to return from parental leave on or around 29 January 2023."
  2. i)"Although there is an ongoing need for the duties Ms Stephens is currently engaged to undertake to be performed, there is not an ongoing need for Ms Stephens to perform them as a permanent employee is already employed to perform the duties on an ongoing basis."
  3. j)"Consideration was given to whether there was, at the time, a continuing need to place Ms Stephens in a role and the likelihood that the role would be ongoing.  As the substantive position holder of the role Ms Stephens is engaged to perform will return to their role, there is no continuing need for Ms Stephens beyond her fixed term temporary contract."
  4. k)"Opportunities within other work areas of the PAH and within other facilities under the control of MSHHS in a same or similar role were also explored…there were no current vacancies that are substantially the same or similar that were suitable for Ms Stephens in consideration of her profession, skills, qualifications and experience."
  5. l)Dwyer IC supported that the availability of a permanent position is "an unavoidable consideration amongst a suite of factors having regard to the effective, efficient and appropriate management of the public resources of MSHHS."
  6. m)The fact of her involvement in various projects "is not an indication of a continuing need for Ms Stephens to perform them as a permanent employee is already engaged to undertake this role."
  7. n)The "…studies and activities undertaken by Ms Stephens are projects.  The purpose of each project is to complete a defined task within the Radiation Oncology unit at the PAH.  There is no indication of an ongoing need for Ms Stephens to perform them."
  8. o)"…each of Ms Stephens' fixed term engagements have been to backfill a temporary vacancy created where a permanent employee has taken a period of leave and subsequently returned to the workplace."  MSHHS asserted that is not "indicative of the need for Ms Stephens to continue performing the role once the substantive occupant returns to it."
  9. p)"Section 148(2) of the PS Act provides a non-exhaustive list of circumstances that indicate an appointment should be on a fixed term temporary basis rather than a permanent basis.  This list specifically includes where an employee is engaged to fill a vacancy arising because a person is absent for a known period."
  10. q)With respect to the genuine operational reason preventing the conversion of Ms Stephens' employment to permanent, MSHHS submitted that:

At the time of the review, Ms Stephens occupied a position that is temporarily vacant because the permanent incumbent or position holder is on leave.  The MSHHS is unable to convert an employee to permanency where the role already has an incumbent as the permanent incumbent is eligible to, and intends to, return to their substantive position when their leave concludes.

  1. r)There is "not an ongoing requirement for Ms Stephens beyond the nominal expiration of her current fixed term engagement."

Appellant's submissions

  1. [42]
    United Voice outlined compelling reasons as to why the decision subject of this appeal is unfair and unreasonable.  Those submissions asserted that there was a continuing need for someone to be employed in the Appellant's role, or a role that is substantially the same, because (my emphasis):
  1. a)Ms Stephens' employment history demonstrates an ongoing requirement for her to continue performing the role with MSHHS.

Specifically, she has been employed in the role since 8 January 2018 (40 months) – and her engagement as a fixed term temporary employee has been extended a dozen times.

  1. b)Employment on tenure may be viable and appropriate if a person is employed for a purpose in s 148(2) of PS Act on a "frequent or regular basis".[8]  For example, "an ongoing requirement to backfill multiple absences because of approved leave (including parental leave)…"
  2. c)Ms Stephens does not accept that the conversion is not viable or appropriate because "permanent conversion may negate the need for backfilling in the future."[9]
  3. d)Employment on tenure is the default basis for Queensland public sector employment.[10]
  4. e)The Directive does not allow the use of a closed merit process where there are multiple employees eligible for review.
  5. f)Conversion of a fixed term temporary employee does not rely on a substantive vacancy.
  6. g)There is a continuing need for the work of Radiation Therapists at the PAH.
  7. h)Conversion is viable and appropriate due to the multiple ongoing temporary engagements available.
  8. i)Whilst the Respondent had argued there to be a "lack of an available substantive or budgeted vacancy", neither are required under the Directive.
  9. j)The lack of an available permanent vacancy is not a genuine operational requirement which can prevent conversion to permanent employment.
  10. k)MSHHS have not set out the findings on material questions of fact or referred to the evidence or other material on which this finding was based.
  11. l)It is fair and reasonable to conclude that the role is ongoing.
  12. m)There are no genuine operational requirements which make it unviable or inappropriate to convert Ms Stephens' employment to permanent.
  13. n)The decision is unreasonable "because the legal standard of reasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power and its real objective."
  14. o)"The decision-maker erred by failing to consider all relevant factors, specifically; the requirement for agencies to proactively manage their workforce planning to reduce their reliance on casual and temporary employees; and the existence of an extensive review process designed to facilitate conversion of casual and temporary employees to permanent positions, which is subject to appeal to ensure compliance."
  15. p)The PS Act requires consideration of whether there is a continuing need to employ Ms Stephens in the same role, not necessarily the same position.  "That is, it was required to consider whether there was a continuing need to employ the appellant as a 76 hours per fortnight HP3 Radiation Therapist where the appellant understands that there is approximately 80 FTE working in Princess Alexandra Hospital."
  16. q)"…there is an ongoing need to employ her in a role that is substantially the same given the increased workloads, requirements of the Respondent, requirements of backfilling and the existence of multiple ongoing temporary engagements available in Princess Alexandra Hospital and MSHHS in circumstances where MSHHS does not maintain fixed establishment numbers."[11]
  17. r)The decision-maker ought to have considered that Ms Stephens' "…workplace currently has 65 FTE and that 10 FTE of this 65 are currently engaged on fixed term temporary employment contracts.  Radiation Therapists at Princess Alexandra Hospital Radiation Oncology have advised that they cannot remember a time over the last 20 years when their workplace has not employed fixed term temporary employees."
  18. s)Ms Stephens' work at Princess Alexandra Hospital has culminated in her present leadership of "…a team across two MSH Radiation Oncology departments.  The aims of the current project are to create a consensus of practice guidelines, clinical protocols and create training tools to educate staff.  This project will continue into late 2023 / early 2024."
  19. t)Significant investment of time and resources has been made in training Ms Stephens in special treatment machines, systems, competencies and protocols.
  1. [43]
    The Appellant submitted that MSHHS had erred in conducting the review against the position owned by the absent incumbent employee, rather than the role of Radiation Therapist at PAH. 
  1. [44]
    United Voice asserted this matter was analogous to a recent Commission decision in Zhao v State of Queensland (Queensland Health) ('Zhao'),[12] submitting that "mirrors the prevailing circumstances for Ms Stephens" as "it was noted that if the appellant had only been backfilling the one employee on parental leave and that employee had a known return date, there may have been genuine operational reasons preventing conversion.  However, in the appellant's case, she had backfilled a number of employees on a consistent basis for a period of years.  This case also notes s. 148(3) which states that employment on tenure may be viable or appropriate if a person is required to be employed for purposes listed in s. 148(2) on a frequent or regular basis."  In Zhao, Industrial Commissioner Pidgeon decided to convert Ms Zhao's temporary employment to permanent, concluding that:

I accept that Ms Zhao cannot be employed in the particular position she is currently backfilling as it has a substantive position holder with a right to return to work from parental leave.  I also accept that when the Respondent undertook a review of other positions, it did not find an existing vacancy to offer Ms Zhao.  However, an existing vacancy is not a requirement to enable conversion.  In this case, having established, based on her employment history, that there is a continuing need for Ms Zhao to perform the role, or a role substantially the same, and in the absence of genuine operational requirements precluding appointment on tenure, Ms Zhao's temporary employment should be converted to permanent.[13]

Decision criteria

  1. [45]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [46]
    Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker must consider:
  • whether there is a continuing need for the person to be employed in the role, or a role that is substantially the same; 
  • the merit of the employee for the role, having regard to the merit principle in s 27 of the PS Act; 
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and 
  • the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [47]
    Clause 8.2 of Directive 09/20 states (emphasis added):

Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.[14]

Merit

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

Compliance with an industrial instrument

  1. [49]
    The PS Act and Directive prescribes that the department's chief executive may offer to convert the person's employment "…only if - any requirements of an industrial instrument are complied with in relation to the decision." 
  1. [50]
    The Appellant submitted that "…there is an ongoing need to employ (Ms Stephens) in a role that is substantially the same given the increased workloads, requirements of the Respondent, requirements of backfilling and the existence of multiple ongoing temporary engagements available in Princess Alexandra Hospital and MSHHS in circumstances where MSHHS does not maintain fixed establishment numbers."[15]
  1. [51]
    The certified agreement cited above provides (my emphasis):

92.2. There is no intention that there will be a net reduction of Department of Health and the Hospital and Health Services staffing during the life of this Agreement.  However, the parties recognise that the employer does not maintain fixed establishment numbers.

  1. [52]
    I also note cl 95 of the certified agreement states (my emphasis):

95.1. The parties recognise that permanent employment is the preferred type of engagement under this Agreement and are committed to maximising permanent employment where possible. Casual or temporary forms of employment should only be utilised where permanent employment is not viable or appropriate. The employer will utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs.

  1. [53]
    As that particular argument was provided in the context of why there was a continuing need for Ms Stephens' employment in the role, I will address it further in consideration of that decision criterion below.

Reasons for any decision previously made or deemed

  1. [54]
    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.

Consideration

  1. [55]
    My decision firstly turns on the question of whether there is a continuing need for Ms Stephens to be employed in the role, or a role that is substantially the same.
  2. [56]
    I will then go on to consider whether any genuine operational requirements fairly and reasonably prevent her conversion to permanent employment.
  3. [57]
    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.
  4. [58]
    The relevant provision is found at s 149A(2)(a)(i) of the PS Act.[16]
  5. [59]
    In summary, the Respondent contends that there is not a continuing need for Ms Stephens to be employed in the role of Radiation Therapist because:
  • she is "currently backfilling a temporary vacancy created by the substantive occupant who is currently on parental leave for a known period";
  • "At the cessation of this period, the substantive occupant will be returning to their position";
  • "It is not viable for the MSHHS to permanently appoint Ms Stephens to a position that is owned by another employee who is entitled to and intends to return to it";
  • there is no other available role which is substantially the same;
  • those particular circumstances were contemplated by Dwyer IC in Stephens v State of Queensland (Queensland Health) ('Stephens'), who was "…satisfied that the decision maker identified a legitimate operational requirement precluding permanent appointment, at least in so far as the position being temporarily filled by Ms Stephens is concerned.";[17]
  • "Section 148(2) of the PS Act provides a non-exhaustive list of circumstances that indicate an appointment should be on a fixed term temporary basis rather than a permanent basis";[18] and
  • "…Ms Stephens' involvement in these projects is not an indication of a continuing need for Ms Stephens to perform them as a permanent employee is already engaged to undertake this role…the studies and activities undertaken by Ms Stephens are projects.  The purpose of each project is to complete a defined task within the Radiation Oncology unit at the PAH.  There is no indication of an ongoing need for these tasks to be undertaken beyond their completion."[19]  That is also a circumstance contemplated under s 148(2)(b) of the PS Act.
  1. [60]
    Each of the Respondent's reasons for refusing Ms Stephens permanent conversion are addressed below.

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

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

  1. [61]
    The PS Act and Directive mandates that the decision maker considers this precise question.
  1. [62]
    The role is that of 'Radiation Therapist' at the Princess Alexandra Hospital.
  1. [63]
    The HHS's considerations of the 'continuing need' for the role – and the Appellant's involvement in it – are both required.  They are not one and the same.  Circumstances may exist where the role is continuing, but the person's involvement in it is not.  In that sense, it is important to interpret the provisions holistically but also pay appropriate attention to the particular separate elements of the clause.
  1. [64]
    It is not disputed that there is a continuing need for "someone" to be employed in the role of Radiation Therapist at the Princess Alexandra Hospital. 
  1. [65]
    The real controversy between the parties is whether (or not) there is a continuing need for Ms Stephens to be employed in the role. 
  2. [66]
    Section 148 of the PS Act is critical to my consideration of this matter and provides (my emphasis):

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).
  2. (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. (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. [67]
    The Respondent has submitted:

Although there is an ongoing need for the duties Ms Stephens is currently engaged to undertake to be performed, there is not an ongoing need for Ms Stephens to perform them as a permanent employee is already employed to perform the duties on an ongoing basis.

  1. [68]
    I recognise that the HHS contends that while the role is continuing, there is not a continuing need for the Appellant to be involved in the role - due to the position incumbent having "indicated an intention to return from parental leave on or around 29 January 2023". 
  1. [69]
    The Respondent has further stated there is "not an ongoing requirement for Ms Stephens beyond the nominal expiration of her current fixed term engagement."  The particular phrases "indicated an intention to" and "on or around 29 January 2023" and "nominal expiration" do not convey a high level of certainty on the part of the HHS that there is no continuing need for the Appellant to be employed in the role. 
  1. [70]
    The Respondent stated that the current fixed term temporary engagement was to backfill the position incumbent employee who is absent on parental leave and concluded that those temporary circumstances would end "on or around 29 January 2023" – the date of Ms Stephen's "nominal" contract expiry.
  1. [71]
    Section 148(2) of the PS Act states that employment on tenure may not be viable in circumstances such as backfilling of a temporary vacancy.  The Respondent's submissions rather overstate the bar to instead be should not.[20]  That is not correct.
  1. [72]
    My recent comments in Chan & Ors v State of Queensland (Queensland Health)[21] are relevant to this point:

MNHHS have also posited that s 148(2) of the PS Act states that the employment of a person on tenure "is not" viable or appropriate if the employment is for any of the following purposes (that includes an example of "employment for a set period as part of a training program or placement program").  That excerpt misquotes the provision of the PS Act that instead states "may not be".  There is a clear difference.  Certainly, it remains open for one to decide that even in those example conditions, it is nonetheless viable or appropriate to engage a person on tenure.  Indeed, s 148(3) does go on to specify that may in fact be the case, where it states:

…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. [73]
    The Respondent pointed to there not being need for the Appellant to perform her current role beyond the expiry of her temporary contract, once the absent incumbent employee otherwise returned to the role. 
  1. [74]
    It is quite clear that the role presently occupied by the Appellant is continuing.  At the time of the decision subject of this appeal,[22] there was a continuing need for the Appellant to be employed in her current role, at least until 29 January 2023. 
  1. [75]
    As discussed earlier in this Decision, such ongoing requirements to backfill absences on a frequent or regular basis may inform a different outcome – that is, that employment on tenure may be viable or appropriate in such circumstances.[23]
  1. [76]
    The Appellant has submitted that her fixed term temporary engagements have been extended a dozen times since the commencement of her employment with MSHHS in January 2018.
  1. [77]
    MSHHS did not dispute that the Appellant has been on a series of consecutive fixed term temporary contracts in the role for over two years nor that there was a continuing need for that work to be done.  Rather, the Respondent indicated that the temporary engagement complied with s 148(2)(a) of the PS Act, in circumstances where the Appellant was "currently engaged to backfill the parental leave of another employee who is entitled to, and intends to, return to their substantive position."
  1. [78]
    Beyond reliance on s 148(2)(a), MSHHS has more recently invoked the example at s 148(2)(b) "to perform work for a particular project or purpose that has a known end date" to argue that Ms Stephens' involvement in the role is not continuing.  The Respondent does not dispute Ms Stephens' involvement in the projects, as identified in her Appeal Notice.[24]  That description includes that "this project will continue into late 2023 / early 2024."  It does not appear at all certain that there is a "known end date" to any project here either.  If an example of a "project or purpose" whereby employment on tenure may not be viable or appropriate is to be invoked by the Respondent under s 148(2)(b) of the PS Act, I note the absence of a "known end date" would disturb that contention.
  1. [79]
    Fundamentally, s 148(2) of the PS Act indicates only that employment on tenure may not be viable or appropriate if it is to fill a temporary vacancy arising because a person is absent for a known period.  Certainly, it remains open for one to decide that even in those conditions it is nonetheless viable or appropriate to engage a person on tenure.  It is also true that the incumbent's date of return from parental leave has been described in soft terms such as "indicated an intention to" and "on or around 29 January 2023" – with Ms Stephens' current contract described as having a "nominal" expiration.
  1. [80]
    While that is certainly one factor that may inform the delegate's considerations of whether there is a continuing need for the Appellant to be employed in the role, it is not the exclusive consideration.  The HHS has submitted that the backfill circumstance is the genuine operational reason not to convert the Appellant's engagement as a Radiation Therapist to permanent employment, in both the correspondence advising of the conversion decision and also in its submissions filed on 18 July 2022.
  1. [81]
    I would also observe that even if the HHS considered it was not viable or appropriate to employ a person on tenure at the point of the first temporary engagement – whilst the Appellant was employed in the 'Graduate' role – there were successive temporary contracts backfilling absent colleagues that came afterwards. 
  1. [82]
    In Benson v State of Queensland (Department of Education) ('Benson'),[25] 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, as it had not appropriately weighed those factors.  This matter is somewhat analogous to Benson insofar as Ms Stephens has been in her current role for four to five years, having been extended a dozen times since then by the Department.
  1. [83]
    While there may have been reason for the HHS to initially employ the Appellant on a temporary employment contract, there comes a time when it is no longer fair and reasonable to continue to extend a person's temporary contract arrangements on the basis of the particular reason(s) under s 148(2) that may have originally been relied upon in the first – or in this case, even in the second, third, fourth, fifth etcetera – fixed term temporary contract appointments.  After four to five years of meritoriously undertaking the role at this time, I do not consider it reasonable for the HHS to rely on s 148(2) indefinitely.
  1. [84]
    Further, that assessment is envisaged by s 148(3) of the PS Act which states (my emphasis):

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

In my view, that is most certainly the case in these particular circumstances. 

  1. [85]
    The time has now arrived whereby it is no longer fair and reasonable to continue such temporary employment extensions in lieu of conversion of the Appellant's temporary employment to permanent.  That finding is based on the holistic consideration of all the mandatory criteria under s 149A(2) – (3) of the PS Act, and in the Appellant's particular circumstances subject of the entirety of the parties' submissions.
  1. [86]
    It follows that there is a continuing need for the Appellant to be employed in her current role.  In my view, the HHS's decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
  1. [87]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert the Appellant to permanency.
  1. [88]
    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. [89]
    The PS Act and Directive mandates that the decision maker considers this precise question.
  1. [90]
    The prescribed definition of 'the same role' in the (Pre–Amendment) Directive 08/17 was deliberately broad and captured "…a role which has the same or substantially the same capability requirements…or a role with a generic role description involving a range of duties…"[26]  I note that no definition of 'the same role' is provided in the (now amended) Directive 09/20, however in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the (Pre–Amendment) Directive 08/17.
  1. [91]
    In Katae v State of Queensland & Anor,[27] Crow J considered the definition of "same role" in the (Pre–Amendment) Directive 08/17.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.

  1. [92]
    It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is critical here.
  1. [93]
    It is relevant that s 149A(2)(a)(i) requires consideration of the person's role, or a role that is substantially the same.  That is, a 'Radiation Therapist' working within MSHHS.
  1. [94]
    Following the decision of Dwyer IC in the first appeal, the HHS's correspondence to Ms Stephens conveying the second conversion decision[28] have demonstrated adequate regard to this mandatory criteria. 

Genuine operational requirements

  1. [95]
    The relevant provision is found at s 149A(3) of the PS Act (my emphasis):

…the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure of 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. [96]
    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. [97]
    '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.[29]
  1. [98]
    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".[30]

  1. [99]
    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.'[31]

  1. [100]
    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. [101]
    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. [102]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.
  1. [103]
    The HHS's submissions provided that the genuine operational reasons to deny conversion was effectively the need to backfill the absent incumbent employee – and at the point of that person's return, Ms Stephens would be an additional Radiation Therapist that was surplus to requirements.
  1. [104]
    The HHS's argument was essentially that should the Appellant be converted to permanent employment, an additional position would be the result, upon the return of the absent incumbent employee "on or around" 29 January 2023.  It was said that presented the genuine operational reason not to convert the Appellant to permanent employment. 
  1. [105]
    MSHHS has not provided evidence to support the contention that converting Ms Stephens' employment to permanent would compromise the effective, efficient and appropriate management of the public resources of MSHHS.  Considering Ms Stephens' employment history with MSHHS, I am persuaded that there is an authentic need for her to continue in the role, whether to backfill the various absences of substantive employees or in other scenarios of the type envisaged under s 148(2) of the PS Act. 
  1. [106]
    In circumstances where there are clearly several Radiation Therapists employed in the Department faculty, there are in turn several others that will be needed to backfill the substantive owners.  I therefore cannot accept that permanent conversion will have a significant negative impact on the effective, efficient and appropriate management of the public resources. Rather, it appears from the evidence before me that permanent conversion may instead negate the need for backfilling in the future.  This precise circumstance is contemplated in s 148(3) of the PS Act. That course would also most prudently guard the Department's investment in training Ms Stephens in the use of special treatment machines, systems, competencies and protocols - and secure her (now) significant professional experience, team leadership and institutional knowledge relevant to her work as a Radiation Therapist at the Princess Alexandra Hospital.  In fact, it would certainly support, not detract from, the effective, efficient and appropriate management of the public resources.

QIRC decisions

  1. [107]
    I have identified seven public service appeals filed by Radiation Therapists challenging Department decisions to refuse the conversion of their temporary employment to permanent, prior to this one. 
  1. [108]
    Those previous public service appeals decided by the Commission are:

Date

Appellant

Matter

Member

Decision

Citation

14 July 2021

Chan, Shaun

PSA/2021/218

McLennan IC

Converted to permanent employment

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243[32]

14 July 2021

Fogarty, Georgia Rose

PSA/2021/219

McLennan IC

Converted to permanent employment

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243

14 July 2021

Moloney, Teague

PSA/2021/220

McLennan IC

Converted to permanent employment

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243

14 July 2021

Huang, Yi-Chin

PSA/2021/221

McLennan IC

Converted to permanent employment

Chan & Ors v State of Queensland (Queensland Health) [2021] QIRC 243

27 May 2022

Zhao, Ming

PSA/2022/302

Pidgeon IC

Converted to permanent employment

Zhao v State of Queensland (Queensland Health) [2022] QIRC 185

15 June 2022

Stephens, Emily

PSA/2022/195

Dwyer IC

Returned to the decision-maker to conduct a fresh review

Stephens v State of Queensland (Queensland Health) [2022] QIRC 213

27 July 2022

Moodley, Parushka

PSA/2022/245

Power IC

Converted to permanent employment

Moodley v State of Queensland (Queensland Health) [2022] QIRC 282

  1. [109]
    In their written submissions, the parties have each invoked previous decisions of the Commission in support of their respective positions.
  1. [110]
    The Respondent cited Dwyer IC's comments in Stephens v State of Queensland (Queensland Health), as follows:

With respect to the position that she currently holds, it would be nothing short of irresponsible to permanently appoint Ms Stephens to a role that she is filling temporarily while the substantive holder is on leave or otherwise absent, or to create a position for her for which there is no funding.  The prevailing circumstances, which include both budgetary considerations and the fact that there is a substantive position holder, combine to form the operational requirements precluding Ms Stephens' permanent appointment to the position.[33]

  1. [111]
    The Respondent also submitted that Dwyer IC supported the availability of a permanent position in these terms "an unavoidable consideration amongst a suite of factors having regard to the effective, efficient and appropriate management of the public resources of MSHHS."  However, I do note that was but an extract of his comment.  The Respondent's submissions omitted the important caveat that "While I accept entirely that the availability of a permanent position is not of itself a prescribed pre-condition for conversion…"[34]
  1. [112]
    On the other hand, the Appellant submitted that this matter was analogous to a recent Commission decision in Zhao v State of Queensland (Queensland Health)[35] because it "mirrors the prevailing circumstances for Ms Stephens" as "it was noted that if the appellant had only been backfilling the one employee on parental leave and that employee had a known return date, there may have been genuine operational reasons preventing conversion.  However, in the appellant's case, she had backfilled a number of employees on a consistent basis for a period of years.  This case also notes s. 148(3) which states that employment on tenure may be viable or appropriate if a person is required to be employed for purposes listed in s. 148(2) on a frequent or regular basis." 
  1. [113]
    In Zhao, Pidgeon IC decided to convert Ms Zhao's temporary employment to permanent, concluding that:

I accept that Ms Zhao cannot be employed in the particular position she is currently backfilling as it has a substantive position holder with a right to return to work from parental leave.  I also accept that when the Respondent undertook a review of other positions, it did not find an existing vacancy to offer Ms Zhao.  However, an existing vacancy is not a requirement to enable conversion.  In this case, having established, based on her employment history, that there is a continuing need for Ms Zhao to perform the role, or a role substantially the same, and in the absence of genuine operational requirements precluding appointment on tenure, Ms Zhao's temporary employment should be converted to permanent.[36]

  1. [114]
    I have carefully considered each of those decisions.  I accept the Appellant's submission that the matter of Zhao is analogous to this, I agree with Pidgeon IC and will follow her reasoning here.
  1. [115]
    While the Respondent has invoked the comments of Dwyer IC in Stephens, in support of its contentions about the position having an incumbent who intends to return to it constituting 'genuine operational requirements' in this second (and separate) appeal, I note that he ultimately decided to order the decision maker to conduct a fresh review.  Dwyer IC neither converted Ms Stephens to permanent employment at that time; nor did he confirm MSHHS's decision to refuse conversion.  Clearly, that was a decision that was open to the Industrial Commissioner to make under s 562C(1)(c). 
  1. [116]
    The entirety of the parties' submissions available to me in deciding Ms Stephens' second appeal may not have been available to Dwyer IC at the time of his consideration of the first appeal. 
  1. [117]
    However, even if they were, I have been persuaded that this matter is analogous with Zhao and so I will adopt the reasoning of Pidgeon IC here.
  1. [118]
    In Swan v State of Queensland (Queensland Health) ('Swan'),[37] Dwyer IC cited with approval Pidgeon IC's observations in her decision in Cassilles v State of Queensland (Queensland Health) ('Cassilles').[38]  His comments in Swan are apposite and I have adopted Dwyer IC's approach here: 

…As Pidgeon IC correctly observed in Cassilles each appeal under the PS Act is decided on its own unique facts.  I would add that while the matter of Cassilles involved an employee in near identical circumstances to Mr Swan, my decision in this matter has been made entirely independent of any influence of the reasoning applied in Cassilles.[39]

  1. [119]
    I also note Dwyer IC's further comments in Swan, where he said:

…I accept that the Directive does not require a budgeted position to be available to allow for conversion (as observed by Pidgeon IC in Kelly).  However, this does not mean that the absence of a budgeted position cannot be a compelling genuine operational reason that may preclude conversion in the unique circumstances of any particular matter.

In different circumstances, it might be the case that an appellant could demonstrate that the lack of a budgeted position is not a barrier to conversion.  It will depend on the circumstances of each case…[40]

  1. [120]
    I have found that there is no such barrier to Ms Stephens' conversion to permanent employment in this case. 
  1. [121]
    Also, as is often observed, "reasonable minds may differ".[41]
  1. [122]
    Deputy President Merrell's comprehensive exploration of the notion of genuine operational requirements in Morison is regularly cited in decisions of the Commission.  It is relevant though that the Morison decision was about a higher classification conversion, not a temporary employment conversion.  Different legislative provisions, different Directives and different mandatory decision criteria are applied in higher classification matters.  There is a particular nuance to the context of Deputy President Merrell's consideration of whether or not there was an 'authentic need' to appoint Morison to the higher classification level having regard to the effective, efficient and appropriate management of the public resources of the department because – as I found first in Holcombe,[42] and later in Borean[43] – the employer does not need two people in one position.
  1. [123]
    But temporary employment conversion appeals are different – here it is not about the consideration of conversion to a position, but rather to a role.
  1. [124]
    In my view, the continuing need for Ms Stephens to work in the role of Radiation Therapist has been clearly evidenced by the fact she has been extended a dozen times, on successive contracts for four to five years.  While I note that her first year of employment was as a Graduate Radiation Therapist, that does not undermine the significant time she has been employed in this role with the Department on a frequent and regular basis.  The PS Act has been recently amended as at 1 July 2021.  That is the recent expression of the legislature.  Clause 9.2 of the (Pre-Amendment) Directive had previously stated that (my emphasis):

An agency must review the status of a temporary employee's employment (including an entry-level temporary employee) where the employee has been continuously employed as a temporary employee for two years in the same role in an agency.

However, the (Amended) PS Act and (Amended) Directive 09/20 does not now contain the requirement that the person's continuous employment for two years must also have been in the same role, same classification, same registration status or indeed same position.  The current requirement is only that the person has been continuously employed in the same department / agency for two years or more in order to be eligible for review.  For that reason, I do not consider the Respondent's submission regarding the first year of employment as a "Graduate Radiation Therapist" to be relevant – nor does it in any way diminish the significance of the lengthy period of time that Ms Stephens has been employed on numerous and successive fixed term temporary employment arrangements.  Ms Stephens' employment history supports her assertion that there is a continuing need for her to be involved in the role – and I appreciate that Ms Stephens' conversion to permanency may negate the need for ad hoc backfilling on such temporary fixed term arrangements.  That is a further reason why I believe it is not fair and reasonable to refuse Ms Stephens' conversion to permanent in these circumstances. 

  1. [125]
    I do not accept that funding is an impediment that would reasonably prevent the conversion of Ms Stephens to permanency.  The reality is that Ms Stephens has been working in the role for a lengthy period.  During this time, Ms Stephens has been engaged on numerous and successive fixed term temporary contracts for various reasons.  She has clearly been paid for all those years of her work with the Department already.  What particular wages line item in the budget her wages come from is not so significant a matter as to circumvent the government's commitment to maximising permanent employment.
  1. [126]
    The interpretation that I have applied here does not frustrate the intent of government policy as articulated in the purpose and principles of the Directive; specifically to establish employment on tenure as the default basis of employment in the Queensland public service.[44] 
  1. [127]
    On the material before me, I have found that there is a continuing role, being the role the Appellant is currently backfilling, and that there is a continuing need for her to be employed in that role.
  1. [128]
    Importantly, a "role" is different to a "position".  The Respondent has rather conflated those terms, appearing to use the words almost interchangeably.  It appears to me that the MSHHS has misdirected its own inquiry in this way.  Foundationally, I accept that the MSHHS's decision had "misconstrue(d) a temporary employment review" because "the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number."  That particular submission is precisely on point.
  1. [129]
    As I have disturbed the Respondent's contention that the reasons relied on for refusing conversion were "genuine operational reasons", the appropriate order is that Ms Stephens' employment now be converted to permanent.
  1. [130]
    In addition to the explanation I have provided above regarding the default position and matters contained in s 149A(3) of the PS Act, there is also no requirement for there to first be a 'vacant' position to be converted into. 
  1. [131]
    It follows that there are no genuine operational reasons that would otherwise prevent the Appellant from being converted to permanent employment.
  1. [132]
    In arriving at this conclusion, I am conscious that the PS Act and Directive are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the Directive and legislation.  Those efforts allow for the achievement of the purpose of the Directive.
  1. [133]
    As detailed at paragraph [108] above, there have now been several Commission decisions in just over 12 months ordering that six Radiation Therapists employed by Queensland Health on fixed term temporary contracts be converted to permanent employment.  Including Ms Stephens' case, there are now seven such decisions.  Quite extensive guidance has now been provided by the QIRC on the factors relevant to the mandatory decision criteria – and the appropriate weight to be placed on these.  Whilst I have acknowledged that each case is decided on its own unique facts, I would encourage the parties to more effectively utilise the Internal Review Process contained in the certified agreement[45] to facilitate the conversion of Radiation Therapists employed by Queensland Health to permanent employment, according to the mandatory decision criteria, as appropriate.  That approach is consistent with the Department's commitment to proactively manage its workforce mix for current and future needs, and takes account of its stated commitment to maximise permanent employment.[46] It also serves to guard the Department's investment in training by retaining experienced public sector employees like Ms Stephens – thus having prudent regard to the effective, efficient and appropriate management of the public resources of the department.

Conclusion

  1. [134]
    The issue for my determination is whether the decision not to convert Ms Stephens to permanent employment was fair and reasonable. 
  1. [135]
    She was first employed on a fixed term temporary engagement on 8 January 2018, as 'Graduate Radiation Therapist'.  Ms Stephens was then employed under numerous and successive further temporary engagements in the role of 'Radiation Therapist'.  Her current fixed term temporary contract was for the purpose of backfilling an incumbent employee absent on parental leave.
  1. [136]
    For the reasons outlined above, MSHHS engaged with each of the mandatory criteria sufficiently to enable me to understand its position.  That is, MSHHS had noted the purpose of the fixed term temporary contracts was to backfill the absent substantive occupant - and concluded that the continuing need for Ms Stephens to be involved in the role was not ongoing upon their return to it. 
  1. [137]
    Those grounds of refusal were communicated to Ms Stephens in writing at the time of refusing her conversion request.
  1. [138]
    The "nominal" expiry of the Appellant's fixed term contract is said to conclude "on or about" 29 January 2023.
  1. [139]
    Dissatisfied with that outcome, Ms Stephens exercised her right to pursue her conversion claim and appointed United Voice as her agent.
  1. [140]
    This matter turned on considerations of whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same.
  1. [141]
    There are two pathways by which conversion to permanency may be reached – and each were separately considered in this Decision.
  1. [142]
    It was accepted that there was a continuing need for someone to fulfill the role of 'Radiation Therapist' at the Princess Alexandra Hospital.  While the backfill circumstances originally relied upon may have been reason to offer the Appellant an early fixed term temporary contract on that basis, I have found that after numerous and successive such contracts - over a lengthy period of four to five years - it is no longer fair and reasonable for MSHHS to rely on that indefinitely.
  1. [143]
    I have observed that there is no requirement for there first to be a 'vacancy' before the Appellant may be converted to permanency. 
  1. [144]
    That being the case, a continuing need for the Appellant to perform the 'role' has been shown. 
  1. [145]
    On the material before me, I have found that there is both a continuing role and a continuing need for the Appellant to be employed in the role of 'Radiation Therapist' at the Princess Alexandra Hospital.
  1. [146]
    In arriving at this conclusion, I am conscious that the PS Act and Directive are purposed with encouraging and maximising security of public sector employment.  The certified agreement makes a similar expression of intent.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the Directive and legislation. Those efforts allow for the achievement of the principles and purpose of the Directive.[47]
  1. [147]
    In my view, by virtue of the absence of genuine operational reasons, the appropriate order is that the Appellant be converted to permanency.
  1. [148]
    MSHHS's decision to the contrary was unfair and unreasonable because appropriate weight was not given to the relevant factors set out above.
  1. [149]
    I order accordingly.

Orders:

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

  1. 1.The appeal is allowed;
  2. 2.The decision that Ms Stephens does not have her fixed term temporary employment converted to permanent employment is set aside and another decision is substituted; and
  3. 3.Ms Stephens' fixed term temporary employment status as a Radiation Therapist (HP classification) be converted to permanent employment.

Footnotes

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

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

[3] 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.

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

[5] 29 June 2022.

[6] 18 January 2022.

[7] Stephens v State of Queensland (Queensland Health) [2022] QIRC 213, [41].

[8] Public Service Act 2008 (Qld) s 148(3).

[9] As contemplated under s 148(3) of the Public Service Act 2008 (Qld).

[10] Public Service Act 2008 (Qld) s 25(2)(d).

[11] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 92.2.

[12] [2022] QIRC 185.

[13] [2022] QIRC 185, [57].

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

[15] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 92.2.

[16] Clause 8.1 of Directive 09/20 describes the criteria as "whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same."

[17] [2022] QIRC 213, [54].

[18] Respondent's submissions, 18 July 2022, 5 [40].

[19] Ibid 4 [35] – [36].

[20] Respondent's submissions, 18 July 2022, 5, [40].

[21] [2021] QIRC 243, [86].

[22] 29 June 2022.

[23] Public Service Act 2008 (Qld) s 148(3).

[24] Respondent's submissions, 18 July 2022, 4 [35] – [36].

[25] [2021] QIRC 152, [119] – [124].

[26] Directive 08/17 Temporary employment cl 14.

[27] [2018] QSC 225.

[28] 29 June 2022.

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

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

[31] [2020] QIRC 203.

[32] The four public service appeals were joined by consent of the parties.

[33] Stephens v State of Queensland (Queensland Health) [2022] QIRC 213, [41].

[34] Ibid [40].

[35] [2022] QIRC 185.

[36] [2022] QIRC 185, [57].

[37] [2021] QIRC 346

[38] [2021] QIRC 210.

[39] Swan v State of Queensland (Queensland Health) [2021] QIRC 346, [24].

[40] Ibid [25] – [26].

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

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

[43] Borean v State of Queensland (Queensland Health) [2021] QIRC 295.

[44] Directive 09/20 Fixed term temporary employment cl 1 and cl 4.

[45] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 97.

[46] Ibid cl 95.1.

[47] Directive 09/20 Fixed term temporary employment cl 1.1.

Close

Editorial Notes

  • Published Case Name:

    Stephens v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Stephens v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 420

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    31 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
2 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Borean v State of Queensland (Queensland Health) [2021] QIRC 295
2 citations
Jump To
Cite 1 - [2021] QIRC 295
Cite 2 - [2021] QIRC 295
Cassilles v State of Queensland (Queensland Health) [2021] QIRC 210
2 citations
Jump To
Cite 1 - [2021] QIRC 210
Cite 2 - [2021] QIRC 210
Chan v State of Queensland (Queensland Health) [2021] QIRC 243
6 citations
Jump To
Cite 1 - [2021] QIRC 243
Cite 2 - [2021] QIRC 243
Cite 3 - [2021] QIRC 243
Cite 4 - [2021] QIRC 243
Cite 5 - [2021] QIRC 243
Cite 6 - [2021] QIRC 243
Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195
2 citations
Jump To
Cite 1 - [2020] QIRC 195
Cite 2 - [2020] QIRC 195
IW v City of Perth (1997) 191 CLR 1
2 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Katae v State of Queensland [2018] QSC 225
3 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
2 citations
Jump To
Cite 1 - (2010) 240 CLR 611
Cite 2 - (2010) 240 CLR 611
Moodley v State of Queensland (Queensland Health) [2022] QIRC 282
2 citations
Jump To
Cite 1 - [2022] QIRC 282
Cite 2 - [2022] QIRC 282
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
Stephens v State of Queensland (Queensland Health) [2022] QIRC 213
5 citations
Jump To
Cite 1 - [2022] QIRC 213
Cite 2 - [2022] QIRC 213
Cite 3 - [2022] QIRC 213
Cite 4 - [2022] QIRC 213
Cite 5 - [2022] QIRC 213
Swan v State of Queensland (Queensland Health) [2021] QIRC 346
3 citations
Jump To
Cite 1 - [2021] QIRC 346
Cite 2 - [2021] QIRC 346
Cite 3 - [2021] QIRC 346
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
Zhao v State of Queensland (Queensland Health) [2022] QIRC 185
6 citations
Jump To
Cite 1 - [2022] QIRC 185
Cite 2 - [2022] QIRC 185
Cite 3 - [2022] QIRC 185
Cite 4 - [2022] QIRC 185
Cite 5 - [2022] QIRC 185
Cite 6 - [2022] QIRC 185

Cases Citing

Case NameFull CitationFrequency
Wood v State of Queensland (Queensland Health) [2024] QIRC 1732 citations
1

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