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  4. Taylor v State of Queensland (Department of Transport and Main Roads) - [2022] QIRC 53

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Taylor v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 53

Taylor v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 53

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Taylor v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 053

PARTIES:

Taylor, Felicity

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO:

PSA/2022/91

PROCEEDING:

Public Service Appeal – temporary employment conversion

DELIVERED ON:

23 February 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 Taylor not have her employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Ms Taylor's employment status be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – where the respondent raised jurisdictional objections – consideration of whether the respondent conducted reviews as required– consideration of whether review was conducted under s 149 or s 149B of the Public Service Act 2008 – whether decisions should be heard out of time – where appellant is filling a temporary vacancy arising because a person is absent for a known period – where incumbent employee has returned to position – whether there is a continuing need for appellant to be employed in same role – whether respondent adequately considered continuing need for appellant to be employed in a role that is substantially the same – consideration of genuine operational requirements

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 147, s 148, s 149, s 149A, s 149B, s 194, s 195, s 196

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

Directive 08/17 Temporary employment cl 8, cl 9, cl 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 9, cl 10

CASES:

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

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

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

House v The King (1936) 55 CLR 499

IW v City of Perth (1997) 191 CLR 1

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

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

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

Palomino v State of Queensland (Department of Education) [2021] QIRC 129

Power v State of Queensland (Department of State Developments, Tourism and Innovation) [2021] QIRC 53

Roger Carter Paterson v Medical benefits Fund of Australia Limited (1998) 159 QGIG 232

Reasons for Decision

Introduction

  1. [1]
    Ms Felicity Taylor (the Appellant) is currently employed as an acting Senior Information Management Advisor AO6.3 in the Governance Branch of the Department of Transport and Main Roads, State of Queensland (the Department; the Respondent).[1] Ms Taylor is employed under a fixed term temporary contract that is due to expire on 25 February 2022.[2]
  1. [2]
    Ms Taylor has been employed by the Department under various temporary contracts and roles since 15 May 2018.[3]
  1. [3]
    The Department contends the chief executive's delegate made deemed decisions not to convert Ms Taylor's employment to permanent on 12 June 2020 under s 149(4) of the superseded Public Service Act 2008 (Qld) and on 12 June 2021 under s 149B(7) the current Public Service Act 2008 (Qld) (the PS Act).[4]
  1. [4]
    On 7 December 2021, Ms Taylor submitted a written request to the Department seeking to have her fixed term temporary employment status reviewed (the 7 December 2021 Request).[5] 
  1. [5]
    On 23 December 2021, Ms Taylor received correspondence from Ms Brydie Bodnar, A/General Manager, Governance Branch dated 21 December 2021. Ms Bodnar advised she had conducted a review of Ms Taylor's employment status and had determined her employment would remain as fixed term temporary (the 21 December 2021 Decision).
  1. [6]
    Ms Taylor contends that prior to the process culminating in the 21 December 2021 Decision, the Respondent had not initiated a review under Directive 09/20 Fixed term temporary employment (Directive 09/20) nor the superseded Directive 08/17 Temporary employment (Directive 08/17).[6]
  1. [7]
    On 24 January 2022, Ms Taylor filed an appeal against a conversion decision made by the Department.[7]
  1. [8]
    In the Appeal Notice, Ms Taylor indicates she is applying for an extension of time to lodge her appeal and that the reason she could not lodge the appeal within the 21-day time frame is:

I received advice from TMR HR that I did not have a right of appeal and that a temp to perm conversion is only valid if there is a vacant position within my current business unit at the level at which I was employed. I have since found out that this is not correct…[8]

…

I waiting (sic) until I was 2 years in my current role to enquire as I had previously received verbal advice from an HR Advisor that I would have to wait for this period to pass before becoming eligible. I had expected HR to initiate a review but this had not occurred.

I have only just received advice that I did have a right of appeal and that the timeframe for appeal was 21 days, which has passed.[9]

Jurisdictional objections

Overview

  1. [9]
    The Respondent raises the following jurisdictional objections to the appeal:
  1. Ms Taylor is excluded from appealing the deemed decisions of 12 June 2020 and 12 June 2021 because she has filed the appeal out of time pursuant to s 564(3) of the Industrial Relations Act 2016 (the IR Act); and
  2. Ms Taylor is excluded from appealing the 21 December 2021 Decision because it is a decision made under s 149 of the PS Act. 
  1. [10]
    I acknowledge Ms Taylor's contentions in this regard and have concluded it is necessary to determine the following questions:
  1. Was the Department required to conduct a review of Ms Taylor's employment on 15 May 2020?
  2. Was the Department required to conduct a review of Ms Taylor's employment on 15 May 2021?
  3. Did the Department conduct reviews of Ms Taylor's employment as required under the PS Act?
  4. Should I exercise my discretion to hear the 12 June 2021 Deemed Decision out of time?
  5. Was the 21 December 2021 Decision made under s 149 of the PS Act?
  6. Should I exercise my discretion to hear the 21 December 2021 Decision out of time?
  1. [11]
    I will deal with each of those questions in turn.

Was the Department required to conduct a review of Ms Taylor's employment on 15 May 2020?

  1. [12]
    The superseded Directive 08/17 required the Department to review an employee's temporary employment status where the employee had been "continuously employed as a temporary employee for two years in the same role in an agency."
  1. [13]
    Clause 14 of Directive 08/17 defines "the same role" as:

… a role which has the same or substantially the same capability requirements, either at level or at a higher classification (e.g. a payroll officer may provide a service to different client groups), or a role with a generic role description involving a range of duties (e.g. rotation through financial and payroll processing duties under a generic entry-level role description).

  1. [14]
    Since 15 May 2018, Ms Taylor has been temporarily engaged in the following roles:
  • AO3 Legal Support Officer, Office of Corporate Counsel, Governance Branch, Corporate Division between 15 May 2018 and 2 September 2018;
  • AO5 Advisor, Office of Corporate Counsel, Governance Branch, Corporate Division between 3 September 2018 and 26 November 2018;
  • AO5 Business Advisor, Office of the Corporate Counsel, Governance Branch, Corporate Division between 27 November 2018 and 3 December 2019; and
  • AO6 Senior Advisor (Record Keeping), Information Management Unit, Governance Branch, Corporate Division from 4 December 2019.[10]
  1. [15]
    Although the parties have not presented submissions with respect to the capability requirements of the abovementioned roles, the Department contends it gave a deemed decision on 12 June 2020[11] which indicates the Department accepts Ms Taylor was eligible for review on 15 May 2020.
  1. [16]
    I will therefore proceed on the basis that Ms Taylor was eligible for review of her temporary employment status on 15 May 2020.

Was the Department required to conduct a review of Ms Taylor's employment on 15 May 2021?

  1. [17]
    Section 149B(1) of the PS Act provides for the "Review of status after 2 years continuous employment" and "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 department for 2 years or more."
  1. [18]
    Schedule 4 of the PS Act defines "continuously employed" (emphasis added):

…in relation to a person employed in a department for a period, means the person is employed in the department—

  1. (a)
    continuously as a fixed term temporary employee for the period; or
  2. (b)
    as a casual employee on a regular and systematic basis during the period; or
  3. (c)
    continuously as an employee mentioned in subparagraphs (i) and (ii) for the period.
  1. [19]
    Section 149B(7A) of the PS Act relevantly provides:

(7A) For working out how long the person has been continuously employed in the department—

  1. (a)
    all periods of authorised leave are to be included; and
  2. (b)
    the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
  1. [20]
    There does not appear to be any gaps in Ms Taylor's work history with the Department - immediately following the end of one role, it appears Ms Taylor immediately commenced in the next.[12] On that basis, I am satisfied Ms Taylor has been continuously employed by the Department in fixed term temporary roles since 15 May 2018.[13] Therefore, s 149B of the PS Act is applicable to Ms Taylor. 
  1. [21]
    Section 149B(4)(a) and (9)(b) of the PS Act requires the Department's chief executive to make a conversion decision within 28 days from "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department". I have already established Ms Taylor was eligible for review under        s 149B of the PS Act - therefore a review of her employment status ought to have occurred within 28 days from 15 May 2021.[14]

Did the Department conduct reviews of Ms Taylor's employment as required under the PS Act?

  1. [22]
    The Respondent alleges that because no decision was given within 28 days of Ms Taylor's review eligibility dates as established above, deemed decisions were given on 12 June 2020 and 12 June 2021 respectively.[15]
  1. [23]
    Ms Taylor raises serious doubt as to whether the Department conducted reviews of her temporary employment status as required under the superseded and current PS Act. That doubt stems from the following allegations:
  • On 7 June 2021, Ms Taylor was advised by a Corporate HR Advisor that the first date she could apply for a review was 4 December 2021 - that is, two years from when Ms Taylor commenced in her current role.[16] Ms Taylor annexed a Skype log of that call to her written submissions.[17]
  • On 7 June 2021, Ms Taylor was advised by a Corporate HR Advisor that she was not eligible for permanent conversion because there were no substantively vacant AO6 positions available within the Information Management Unit.[18]
  • On 18 June 2021, Ms Taylor wrote to the Department suggesting a need for greater clarification of the temporary to permanent conversion process including who is eligible and under what circumstances.[19]
  • On 11 November 2021, Ms Taylor clarified the advice she received on 7 June 2021 with another Corporate HR Advisor who confirmed there would have to be a vacant AO6 role within the Information Management Unit for Ms Taylor to be eligible for conversion to permanent employment.[20] Ms Taylor annexed a Skype log of that call to her written submissions.[21]
  • In response to the 7 December 2021 Request - on 8 December 2021, the Department's HR Advisor emailed Ms Taylor and advised:

A review of your temporary employment will commence from the date of your email below, Tuesday 7 December 2021, and future reviews will be due annually from this date.[22]

  1. [24]
    Strikingly, Ms Taylor alleges she received verbal advice from the Department on two separate occasions that she would not be eligible for a review until she had been continuously employed in one role for a minimum of two years, that being 4 December 2021.[23] That is despite s 149B of the PS Act applying to a fixed term temporary employee who has been continuously employed "in the same department" for two years or more rather than the same role.
  1. [25]
    Further, the Department concedes it did not issue any notification that a review was to occur under cl 10 of Directive 09/20 which provides:
  1. 10.1The agency must notify the employee when the agency starts a review of the status of the fixed term temporary employee's employment under section 149B of the PS Act.
  2. 10.2The notification must be in writing and include:
  1. (a)
    the name and contact details of the agency contact for the review
  2. (b)
    the date by which the decision must be made
  3. (c)
    that the employee or their representative may choose to provide a written submission for consideration during the review process
  4. (d)
    that if the chief executive does not make a decision within the required period as defined in section 149B(9), the chief executive is taken to have decided not to convert the fixed term temporary employee, and
  5. (e)
    that section 194(1)(e) and 196(e) of the PS Act, provide that a conversion decision under section 149B may be appealed, and the timeframe for appeal.
  1. [26]
    Clause 9.5 of the superseded Directive 08/17 stipulates a similar notification requirement.
  1. [27]
    The Department submits that although it did not issue notices as required, both Directive 09/20 and Directive 08/17 are public documents that contain information regarding the appeal rights of fixed term temporary employees and therefore Ms Taylor had the opportunity to access information to those rights at the relevant times.[24]
  1. [28]
    The Department elected not to respond to Ms Taylor's allegations regarding the advice she received on 7 June 2021 as confirmed on 11 November 2021. The lack of objection from the Department, the failure to provide Ms Taylor with notices of the reviews, together with Ms Taylor's thorough recollection of what was said and evidence of those conversations tends to prove that the Department did not commence the reviews as required.
  1. [29]
    Ms Taylor refers to cl 8.6 of Directive 09/20 which stipulates:

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 referred to in clause 8.5.

  1. [30]
    The evidence I have been presented with suggests the Department was misconceived by the notion that Ms Taylor's temporary employment status was only eligible for review under s 149B following two years of her being employed in her current position.  Notably, the Department has not provided any form of evidence that a review was conducted when required. Further or in the alternative, it appears the Department was misconceived by the notion that there needed to be a permanent vacancy in the Information Management Unit for Ms Taylor to be converted to permanent. Those notions are false, and it is not fair or reasonable for the Department to rely on "a deemed decision" rather than undertaking the review as prescribed in cl 8.6 of Directive 09/20.
  1. [31]
    I note that the bulk of Ms Taylor's allegations pertain to the period of time during which the 15 May 2021 review should have been conducted. There is insufficient evidence to conclude that a review was not conducted during the 15 May 2020 review period and therefore I will proceed to consider the most recent 15 May 2021 review period only.

Should I exercise my discretion to hear the 12 June 2021 Deemed Decision out of time?

  1. [32]
    The Department argues that Ms Taylor's appeal against the 12 June 2021 Deemed Decision is out of time pursuant to s 564(3) of the IR Act and should therefore be excluded from appeal.[25]
  1. [33]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[26]
  1. [34]
    Ms Taylor bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[27]
  1. [35]
    The question of whether to extend the time for filing under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[28] Several factors inform the exercise of my discretion.
  1. [36]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[29]
  • The length of the delay;
  • The explanation for the delay;
  • The prejudice to the Appellant if the extension of time is not granted;
  • The prejudice to the Respondent if the extension of time is granted; and
  • Any relevant conduct of the Respondent.

Length of delay

  1. [37]
    Ms Taylor filed her Appeal Notice 226 days after the 12 June 2021 Deemed Decision.
  1. [38]
    The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act. I appreciate 226 days is not an insubstantial amount of time.

Explanation for the delay & conduct of the Respondent

  1. [39]
    Ms Taylor alleges she did not become aware of her appeal rights until she was advised by her colleague that the advice she had received from HR was inconsistent with other agencies. That Skype conversation occurred on 7 December 2021 and is annexed to Ms Taylor's submissions.[30] Also on 7 December 2021, Ms Taylor emailed Corporate HR requesting an employment review.[31]
  1. [40]
    It is clear that Ms Taylor's knowledge of her appeal rights was likely skewed by what she was allegedly advised by the Department. Around the time that Ms Taylor ought to have filed the appeal, she was advised that she was ineligible for review because she had not worked in the same role for two years or more and that she could not be converted because there were no permanent positions available. Clearly that advice has affected Ms Taylor's perception of her appeal rights.
  1. [41]
    I also note the Department should have provided Ms Taylor with the notification required under cl 10 of Directive 09/20 as outlined at [25] - but did not do so. That notification should have set out Ms Taylor's appeal rights including the timeframe for appeal. That is another failure in how this process was conducted.
  1. [42]
    Although Ms Taylor herself could have accessed information regarding her appeal rights, the delay is clearly reasonable in circumstances where it was the Department who advised her to the contrary. By virtue of that fact, I find the Department has contributed to the delay. In such circumstances, I cannot reasonably conclude that Ms Taylor ought to have known that a deemed decision was given 28 days after her review eligibility date and that the appeal period therefore commenced.
  1. [43]
    I find that Ms Taylor was advised that she was not eligible for review, relied upon this advice and therefore filed her appeal notice late. The conversation log between Ms Taylor and her colleague on 7 December 2021 is consistent with this explanation for delay.

Prejudice to Ms Taylor

  1. [44]
    The obvious prejudice is that Ms Taylor would lose the opportunity for an independent review of the 12 June 2021 Deemed Decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.
  1. [45]
    I have already concluded that based on the evidence before me it appears that a review was not conducted in 2021 when it should have. Ms Taylor is clearly prejudiced in circumstances where a deemed decision has stemmed from a significant oversight.
  1. [46]
    Further, Ms Taylor's temporary contract is due to expire on 25 February 2022. If this appeal is not heard and her contract is not extended, Ms Taylor will lose the opportunity to appeal altogether.

Prejudice to the Respondent

  1. [47]
    Delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[32] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[33]
  1. [48]
    I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time.

Prospects of success

  1. [49]
    Ms Taylor's prospects of success at a substantive hearing are a relevant consideration.[34] I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[35]

  1. [50]
    In my preliminary view of the substantive matter, there are matters that are not in dispute and some that are. Therefore, the merits of the case (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter.
  1. [51]
    In light of the totality of the reasoning above, I will consider an appeal of the 12 June 2021 Deemed Decision out of time.

Was the 21 December 2021 Decision made under s 149 of the PS Act?

  1. [52]
    In response to the 7 December 2021 Request, Ms Taylor received the 21 December 2021 Decision which advised she was not permanently appointed because:
  1. a)there is no continuing need for you to perform your current role because the substantive incumbent is returning to the role on a full-time basis.
  2. b)when the substantive holder returns there will be no continuing need for an additional person to perform the work of the position.[36]
  1. [53]
    The Department submits that Ms Taylor is excluded from appealing the 21 December 2021 Decision because that Decision was based on a conversion request submitted by Ms Taylor under s 149 of the PS Act.
  1. [54]
    Section 149 of the PS Act provides:
  1. (1)
    This section applies 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 1 year or more.
  2. (2)
    However, this section does not apply to a non-industrial instrument employee.
  3. (3)
    The person may ask the department’s chief executive to decide whether to—
  1. (a)
    continue the person’s employment according to the terms of the person’s existing employment; or
  2. (b)
    offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    A person can not make more than 1 request under subsection (3) in a 12-month period.
  2. (4A)
    For working out how long the person has been continuously employed in the department—
  1. (a)
    all periods of authorised leave are to be included; and
  2. (b)
    the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 6 weeks or less in the year occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
  1. (5)
    In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

  1. [55]
    The Department then refers to s 195(1)(i) of the PS Act which provides that a person cannot appeal against "a decision under s 149 not to convert the employment basis of a fixed term temporary or casual employee…"[37]
  1. [56]
    As outlined above, Ms Taylor alleges she did not become aware of her appeal rights until she was advised by her colleague that the advice she received was inconsistent with other agencies. On that date, Ms Taylor made the 7 December 2021 Request for a review of her employment.[38]
  1. [57]
    Ms Taylor argues she exercised her right under cl 9.2 of Directive 09/20 to notify the agency that a review was required.[39] Clause 9.2 of Directive 09/20 provides:

The notification may be made by the employee or the employee's representative provided it is not more than three months before the review must be undertaken in accordance with s 149B of the PS Act.

  1. [58]
    It appears Ms Taylor made the 7 December 2021 Request because of the Corporate HR Advisor's instruction that the first date she could apply for a review was 4 December 2021 - that is, two years from when Ms Taylor commenced in her current role and/or because of the advice Ms Taylor received from her colleague.[40]
  1. [59]
    Peculiarly, although the Department contends the 21 December 2021 Decision was made under s 149 of the PS Act - on 8 December 2021, the Department's HR Advisor emailed Ms Taylor and advised (emphasis added):

A review of your temporary employment will commence from the date of your email below, Tuesday 7 December 2021, and future reviews will be due annually from this date.[41]

  1. [60]
    A review under s 149 of the PS Act is triggered by an employee's request in contrast to   s 149B which automatically requires a decision after each one-year period following the two-year anniversary of continuous employment within the Department.[42] Therefore, the comment made by the Department's HR Advisor in the 8 December 2021 correspondence suggests that the decision was being made under s 149B of the PS Act which accords with the Department's previous, erroneous view that the review eligibility date commenced on 4 December 2021 rather than 15 May 2021.
  1. [61]
    I have already concluded above that the Department did not conduct a review as required from 15 May 2021 and have exercised my discretion to hear an appeal against the 12 June 2021 Deemed Decision out of time. Even if I am wrong on either of those points, I find that the review conducted by the Department from 7 December 2021 can appropriately be characterised as a review under s 149B of the PS Act due to the failure to conduct a review earlier that year. That is the most fair and reasonable course in these circumstances. On that basis, I find that the 21 December 2021 Decision was made under s 149B of the PS Act and is appealable.

Should I exercise my discretion to hear the 21 December 2021 Decision out of time?

  1. [62]
    Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [63]
    To accord with s 564(3) of the IR Act, an Appeal Notice against the 21 December 2021 Decision should have been filed with the Industrial Registry on or by 11 January 2022.
  1. [64]
    The Appeal Notice was filed with the Industrial Registry on 24 January 2022 - 13 days out of time. 
  1. [65]
    I have outlined the principles with respect to hearing an appeal out of time above at [33] - [36]. 

Length of delay

  1. [66]
    The appeal against the 21 December 2021 Decision was filed 13 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act. I appreciate 13 days is not an insubstantial amount of time.

Explanation for the delay and conduct of the Respondent

  1. [67]
    Ms Taylor contends the 21 December 2021 Decision contained ambiguous information regarding rights of appeal which led her to believe she was not entitled to an appeal due to the review being employee initiated.[43] Ultimately, Ms Taylor lodged her appeal out of time because she believed she had no right to appeal.[44]
  1. [68]
    In response to the 7 December 2021 Request - on 8 December 2021, the Department's HR Advisor emailed Ms Taylor and advised:

Under the PS Act, a decision needs to be made within 28 days of your request. Based on the date of your request an outcome would be provided on or before 4 January 2022.

Noting the 28 day review period includes the mandatory Christmas/new year shutdown, and taking into consideration leave taken by Nicole, Brydie Bodnar (A/GM Governance) and Tracy O'Bryan (DDG, Corporate) between 24/12/2021 and 17/01/2022, to provide the Delegate with sufficient time to make a decision may I request an extension on the decision of your employment status?

Would you consider and agree to receiving the outcome letter on or before Friday 28 January? If agreeable to an extension, would you please reply with 'Agreed' and include your email signature block.[45]

  1. [69]
    Ms Taylor agreed to the Department's extension request.[46] Ultimately, the Department did not require that length of time but I note Ms Taylor consented to the extension in good faith even though her temporary contract was due to expire a few days later on 31 January 2022.
  1. [70]
    I also refer to my consideration above at [39] - [41].

Prejudice to Ms Taylor

  1. [71]
    I refer to my consideration above at [44] - [46].

Prejudice to the Respondent

  1. [72]
    I refer to my consideration above at [47] - [48].

Prospects of success

  1. [73]
    I refer to my consideration above at [49] - [50].
  1. [74]
    In light of the reasoning above, I will consider this appeal out of time.

What constitutes the decision/s subject of this appeal?

  1. [75]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [76]
    For the reasons outlined above, I have concluded that the 12 June 2021 Deemed Decision is appealable. In the event I am wrong, I have concluded also that the 21 December 2021 is appealable.
  1. [77]
    I will now proceed to consider whether those decisions were fair and reasonable.

What decisions can the QIRC Member make?

  1. [78]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • Confirm the decision appealed against; or
  • 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. [79]
    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. [80]
    The appeal is not conducted by way of re-hearing,[47] but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[48] 
  1. [81]
    Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[49]
  1. [82]
    The issue for my determination is whether the decision not to convert Ms Taylor's employment status to permanent was fair and reasonable in the circumstances.[50]

Relevant provisions of the PS Act and Directive 09/20

  1. [83]
    Section 148 of the PS Act states:
  1. 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).
  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;
  2. (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. [84]
    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. [85]
    Section 149A(2)-(3) of the PS Act provides (emphasis added):

(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. [86]
    Directive 09/20 relevantly provides:
  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. [87]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[51]
  1. [88]
    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. [89]
    The purpose of Directive 09/20 is:
  1. 1Purpose
  2. 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. [90]
    Further, Directive 09/20 relevantly provides:
  1. 4Principles
  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. [91]
    In accordance with the Directions Orders issued, the parties filed written submissions.
  1. [92]
    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. [93]
    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 each question to be decided.

Consideration

  1. [94]
    I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.
  1. [95]
    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. [96]
    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.[52]

  1. [97]
    Merit is not in dispute and the Respondent did not address the reasons for any decision previously made under ss 149A or 149B of the PS Act. Further, the Department submits there are no conversion requirements specified in an industrial instrument that apply to Ms Taylor.[53]
  1. [98]
    Therefore, my decision firstly turns on the question of whether there is a continuing need for Ms Taylor to be employed in the role, or a role which is substantially the same. I will then consider whether any genuine operational requirements fairly and reasonably prevent permanent conversion of Ms Taylor.

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

  1. [99]
    There are two potential pathways to conversion. The first pathway is Ms Taylor's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [100]
    The Department's position is that there is no longer a continuing need for Ms Taylor to be employed in her current role beyond 25 February 2022, as the substantive employee has returned.[54]
  1. [101]
    The Department contends that the reason for Ms Taylor's temporary engagement in her current role has been to backfill the substantive employee, while the substantive employee was relieving in another role.[55] The original end date of Ms Taylor's temporary engagement on 31 January 2021 coincided with the return date of the substantive employee.[56] That substantive employee has now returned and the Department contends that two employees (Ms Taylor and the substantive employee) are currently being held against the same position.[57]
  1. [102]
    Ms Taylor alleges that on 19 November 2021, she was advised by her supervisor that her current temporary contract would be extended for an additional two years due to a transfer of the substantive owner.[58] Over the following days, Ms Taylor alleges her supervisor advised there were "lots of options" available to extend Ms Taylor's employment.[59] That sentiment was allegedly further conveyed on 29 November 2021 with respect to "opportunities that may arise due to other staff movements".[60]
  1. [103]
    Ms Taylor argues the accountabilities of the AO6 Senior Information Management Advisor has expanded significantly to include duties ordinarily the responsibility of the AO8 Manager and the AO5 Compliance Officer role within the Unit.[61] Ms Taylor alleges she was advised by the Director of Information Management that she had not been consulted during the review process with respect to whether there was a continuing need for an additional employee within the Unit, nor with respect to information regarding Ms Taylor's skillset.[62]
  1. [104]
    I note that Ms Taylor's fixed term temporary employment has been extended on nine occasions.[63] Further, Ms Taylor has outlined several conversations which suggest there is a continuing need for her in either her current role or elsewhere - those comments were not disputed by the Department with the exception of one comment made by an employee who is currently on leave and could therefore not be verified.
  1. [105]
    As I found in Benson v State of Queensland (Department of Education),[64] although backfilling may have constituted a reason for the Department to initially employ an employee on a temporary basis, after more than three years of meritoriously undertaking various roles for extensive periods of time, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [106]
    Based on the previous, repeated patterns of engagement, it appears likely there will be a continuing need to continue engaging Ms Taylor in her current role.

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

  1. [107]
    Ms Taylor contends there is a Senior Policy Advisor AO6 role within the Information Management Unit that has been vacant for many years as the incumbent has a long-term secondment with another agency. Ms Taylor questions whether this role was considered as an option to continue her employment.[65] Ms Taylor also refers to several AO6 and AO5 positions advertised during the review period where she alleges the competencies are substantially the same.[66] Ms Taylor also refers to the position of AO6 Senior Program Advisor (Procurement) within Translink Division which she interviewed for on 20 December 2021.[67]
  1. [108]
    Ms Taylor alleges she was advised by the Director of Information Management that she had not been consulted during the review process with respect to whether there was a continuing need for an additional employee within the Unit, nor with respect to information regarding Ms Taylor's skillset.[68] Ms Taylor argues the Department could not have adequately determined her suitability for positions without details of her skills and capabilities.[69] Ms Taylor submits the Department only reviewed the Information Management Unit for substantively vacant AO6 positions.[70]
  1. [109]
    Further, Ms Taylor argues the Department failed to meet its obligations under cl 8.4 of Directive 09/20 which requires:

Notice of a decision not to convert a person's employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:

  1. (a)
    set out the findings on material questions of fact, and
  2. (b)
    refer to the evidence or other material on which those findings were based.
  1. [110]
    Evidently, this argument pertains to the 21 December 2021 Decision in its written form. I accept the 21 December 2021 Decision does not address whether there is a continuing need for Ms Taylor to perform a role that is substantially the same and there is no evidence or other material presented in this regard.
  1. [111]
    In Palomino v State of Queensland (Department of Education), Deputy President Merrell considered cl 8.4 of Directive 09/20 and concluded the following:

In my view, the decision to not comply with the requirements of section 27B of the Acts Interpretation Act, as required by clause 8.4 of the Directive, and did not comply with the other principles or the adequacy of reasons of administrative decision makers I have referred to above, in respect of the consideration by the decision maker as to whether there was a role that was substantially the same as Mr Palomino’s role. It is not sufficient for decision makers, as occurred in the present case, to merely state that the decision maker has taken into consideration, "Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing".[71]

  1. [112]
    I note in this appeal that the decision-maker did not even go as far to state she had considered roles that are substantially the same - rather, she merely stated that is one factor for consideration.
  1. [113]
    Deputy President Merrell continued:

In my view, decision makers must, where the matter of the availability of a role that is substantially the same as the employee's role is being considered, and a decision is made about that matter, set out the findings on material questions of fact, and refer to the evidence or other material in which those findings were based. Further, in my view, in giving reasons for the decision, as required by section 149B(6)(a) of the PS Act, the findings and reasons of that decision must deal with the substantial issues upon which the decision turned, so that the person aggrieved by the decision can understand why the decision went against him or her.[72]

  1. [114]
    In Power v State of Queensland (Department of State Developments, Tourism and Innovation), Industrial Commissioner Dwyer concluded the following:
  1. [35]
    Section 149A(4)(a) and s 149B(6)(a) require the chief executive to give the person a notice stating the reasons for the decision. Section 27B of the AI Act and Cl 8.4 of the Directive prescribe what such reasons must address. The decision in this instance fails to meet this standard in my view. I would, for example, expect that a decision of this nature would not simply refer to ‘genuine operational requirements’ without some degree of particulars relevant to Ms Power.
  2. [36]
    Further, even while the reference to ‘the return of an incumbent’ might adequately address the particulars as to why Ms Power’s current role is not ongoing, a broad reference to ‘all potential roles have been considered’ is insufficient in my view to explain the apparent absence of a role substantially the same.
  3. [37]
    In my view, the decision needed to refer to evidence relied on to support this conclusion. This would include e.g. details of other roles considered and why some might have been rejected. It must be sufficient to inform Ms Power why the decision was made.[73]
  1. [115]
    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.[74] In this matter I similarly find the Department's failure to adequately address this limb itself renders the 21 December 2021 Decision not fair or reasonable. Notwithstanding, I take into consideration the Department's further submissions filed 18 February 2022 in which the Department refers to and annexes several enquiries it made throughout the Department to determine whether there was a continuing need for Ms Taylor to be employed in a role which is the same or substantially the same as her current role. The Department submits the various Divisions responded that there are no positions that are the same or substantially the same as Ms Taylor's current role in which there is a continuing need for her to be employed in.[75]
  1. [116]
    Despite that submission, upon review of the email issued to the various Divisions, I note that the HR Advisor asked the following question (emphasis added):

Could you please advise of any roles which may be substantially the same/similar in your Division or Branch that:

  • are currently vacant (including roles being advertised or with current recruitment processes underway); or
  • may be about to become vacant.[76]
  1. [117]
    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 Department has stopped short of demonstrating its consideration of the entirety of the mandatory criteria as it appears its consideration was limited to identifying roles that are currently vacant or about to become vacant. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.
  1. [118]
    Ms Taylor argues that the subject line of the 14 December 2021 correspondence is misleading in that it only references recordkeeping positions and does not request consideration of AO5 positions.[77] Although various Divisions may have interpreted it that way, I do not accept that it was the intention of the sender for it to be read in that light particularly as she requests "roles which may be substantially the same/similar in your Division or Branch".[78] Ms Taylor also takes issue with the timeframe in which the Divisions were expected to respond in light of the fact Ms Taylor consented to the Department's extension request.[79] However, I do not accept that three days was unreasonable considering each Human Resource employee within the Divisions ought to be able to answer those questions relatively quickly.
  1. [119]
    The fact of this case is that the decision-maker did not define a role which is substantially the same in the Decision. Nor has the Department's subsequent submissions adequately addressed this requirement.  Notwithstanding that, the duty to do so must properly be discharged. 
  1. [120]
    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 Ms Taylor. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [121]
    I have found that there is a continuing need for Ms Taylor to be employed in her current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert Ms Taylor was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb.

Genuine operational requirements

  1. [122]
    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. [123]
    '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.[80]
  1. [124]
    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".[81]

  1. [125]
    Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.
  1. [126]
    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):
  1. [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.
  2. [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.

…

  1. [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.'[82]
  1. [127]
    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. [128]
    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. [129]
    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. [130]
    In this regard, the Department refers to s 148(1) of the PS Act which provides that a chief executive may employ a fixed term temporary employee for a fixed term if employment on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under s 98(1)(d) of the PS Act.[83]
  1. [131]
    In this regard I refer to the Department's submissions outlined at [101] - [102] and argument that converting Ms Taylor would jeopardise the ongoing employment of the substantive employee.[84]
  1. [132]
    Further, the Department refers to s 148(2) of the PS Act which indicates employment of a person on tenure may not be viable or appropriate if the employment is for the purpose of filling "a temporary vacancy arising because a person is absent for a known period."[85]
  1. [133]
    Section 148(2) of the PS Act does not prescribe that because an employee is filling a temporary vacancy 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. [134]
    The decision-maker did not outline why permanent conversion of Ms Taylor would not be viable or appropriate having regard to the alleged genuine operational requirement. The Department does not address why in their subsequent submissions either. Instead, it appears the Department has concluded Ms Taylor should be employed on a temporary basis because she is filling a temporary vacancy. The misapplication of s 148(2)(a) of the PS Act renders the Decisions unfair and unreasonable.
  1. [135]
    In support of her position, Ms Taylor refers to a finance meeting she attended with the Director of Information Management and the Principal Finance Advisor, Corporate in which it was mentioned that the Governance Branch was "20 FTE's under cap".[86]
  1. [136]
    Without specific evidence indicating Ms Taylor's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that human resource issues pose a genuine operational requirement that justifies a fair and reasonable refusal to convert Ms Taylor.
  1. [137]
    A budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees.
  1. [138]
    Considering the substantial length of Ms Taylor's continuous temporary engagements, there is clearly a constant need for an additional employee. In a situation where the need for backfilling is constant and substantial, I do not accept that permanent conversion of Ms Taylor will have a negative impact on organisational viability. Rather, it appears from the evidence before me that permanent conversion may, to some extent, negate the need for backfilling in the future. 
  1. [139]
    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 for a purpose mentioned in subsection (2) on a frequent or regular basis." The considerable length of time for which Ms Taylor has been backfilling another employee suggests there is a need for another permanent employee and it would be unreasonable for the Department to refute Ms Taylor's request on the basis of a lack of vacancies when she has continuously been paid and utilised in the roles extensively.
  1. [140]
    The issue is not whether it was appropriate to initially employ Ms Taylor on a temporary basis. Ms Taylor has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for over three years. Although the nature of temporary work can be unpredictable, in light of her continuous engagement, I accept Ms Taylor has been engaged frequently - this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by Ms Taylor in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [141]
    I have concluded that Ms Taylor's role is continuing and the continual pattern of engaging Ms Taylor over the last three years illustrates how the Department relies upon Ms Taylor on an ongoing basis. A continuous pattern of temporary contracts indicates that Ms Taylor is engaged on a systematic basis.
  1. [142]
    I am satisfied Ms Taylor has been employed for a purpose mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that Ms Taylor's employment on tenure is viable and appropriate. 
  1. [143]
    On the material before me, I have found that there is a continuing role, being the role Ms Taylor is currently undertaking, and that there is a continuing need for her to be employed in that role. In the alternative, I have outlined the unreasonableness of the Department's exploration for a role that is substantially the same which was impeded by the Department's misunderstanding that they must identify a role that is vacant.
  1. [144]
    In arriving at this conclusion, I am conscious that the PS Act and Directive 09/20 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 Directive 09/20 and legislation. Those efforts allow for the achievement of the purpose of Directive 09/20.
  1. [145]
    It follows that there are no genuine operational reasons that would otherwise prevent Ms Taylor from being converted to permanent employment.
  1. [146]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Department justify a refusal and therefore conclude that the decision was not fair and reasonable in the circumstances.

Conclusion

  1. [147]
    I find the decision to maintain Ms Taylor on a temporary basis was not fair and reasonable. There is a continuing need for Ms Taylor to continue working in her current role or a role that is substantially the same and the Department has not evidenced a genuine operational requirement that reasonably prevents conversion of Ms Taylor to permanent employment.
  1. [148]
    I order accordingly.

Order:

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 Taylor not have her employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Ms Taylor's employment status be converted to permanent employment.

Footnotes

[1] Appeal Notice, 24 January 2022, 1.

[2] Appellant's Further Submissions, 14 February 2022, 3 [9].

[3] Appeal Notice, 24 January 2022, 2.

[4] Respondent's Further Submissions, 15 February 2022, 1 [2].

[5] Respondent's Submissions, 8 February 2022, 2 [15].

[6] Appellant's Submissions, 1 February 2022, 1 [4].

[7] Appeal Notice, 24 January 2022, 1.

[8] Ibid 3.

[9] Ibid 4.

[10] Respondent's Further Submissions, 18 February 2022, 1 [5].

[11] Respondent's Further Submissions, 15 February 2022, 1 [2](a).

[12] Appellant's Submissions, 1 February 2022, 1 [2].

[13] Appeal Notice, 20 December 2021, Attachment 1, [1].

[14] Public Service Act 2008 (Qld) s 149B(4)(a), (9)(b).

[15] Respondent's Further Submissions, 15 February 2022, 1 [2].

[16] Appellant's Submissions, 1 February 2022, 2 [5].

[17] Ibid Exhibit F, I.

[18] Ibid 1 [5].

[19] Ibid Exhibit G.

[20] Ibid 2 [10].

[21] Ibid Exhibit F, I.

[22] Ibid Exhibit L.

[23] Appellant's Submissions in Reply, 14 February 2022, 2, [1](d).

[24] Respondent's Further Submissions, 15 February 2022, 2 [8].

[25] Respondent's Further Submissions, 15 February 2022, 1 [3]-[6].

[26] Industrial Relations Act 2016 (Qld) s 564(2).

[27] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[28] House v The King (1936) 55 CLR 499, [2].

[29] (1995) 149 QGIG 777.

[30] Appellant's Submissions, 1 February 2022, 2 [14].

[31] Ibid 3 [15].

[32] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[33] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[34] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[35] [2010] ICQ 35, [6].

[36] Appellant's Submissions, 1 February 2022, 3 [18].

[37] Respondent's Submissions, 8 February 2022, 1 [3].

[38] Appellant's Submissions, 1 February 2022, 3 [15].

[39] Appellant's Submissions in Reply, 14 February 2022, 1, [1](c).

[40] Appellant's Submissions, 1 February 2022, 2 [5].

[41] Ibid Exhibit L.

[42] Public Service Act 2008 (Qld) s 149B(4)(b).

[43] Appellant's Submissions, 1 February 2022, 3 [19].

[44] Ibid [22].

[45] Appellant's Submissions, 1 February 2022, Exhibit L.

[46] Ibid.

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

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

[49] Industrial Relations Act 2016 (Qld) s 567(2).

[50] 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.

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

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

[53] Respondent's Further Submissions, 18 February 2022, 4 [21].

[54] Ibid 3 [13].

[55] Respondent's Submissions, 8 February 2022, 1 [6].

[56] Ibid [7].

[57] Respondent's Further Submissions, 18 February 2022, 2 [7].

[58] Appellant's Submissions, 1 February 2022, 2 [11].

[59] Ibid [12].

[60] Ibid [13].

[61] Ibid 3 [21].

[62] Appellant's Submissions, 1 February 2022, 3 [21].

[63] Respondent's Submissions, 8 February 2022, 1 [8].

[64] [2021] QIRC 152, 25 [120].

[65] Appellant's Submissions, 1 February 2022, 4 [25].

[66] Ibid [29].

[67] Appellant's Further Submissions, 22 February 2022, 1 [3].

[68] Ibid 3 [21].

[69] Ibid 4 [26].

[70] Ibid 4 [27].

[71] [2021] QIRC 129, 9-10.

[72] Ibid.

[73] [2021] QIRC 53.

[74] [2021] QIRC 152, 27 [136].

[75] Respondent's Further Submissions, 18 February 2022, 3 [18].

[76] Email sent by Ms J. Avila to various recipients, 14 December 2021.

[77] Appellant's Further Submissions, 22 February 2022, 2 [9].

[78] Email sent by Ms J. Avila to various recipients, 14 December 2021.

[79] Appellant's Further Submissions, 22 February 2022, 2 [12].

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

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

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

[83] Respondent's Further Submissions, 18 February 2022, 3 [14].

[84] Ibid [17].

[85] Ibid [15].

[86] Appellant's Submissions, 1 February 2022, 3 [20].

Close

Editorial Notes

  • Published Case Name:

    Taylor v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Taylor v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2022] QIRC 53

  • Court:

    QIRC

  • Judge(s):

    Member McLennan IC

  • Date:

    23 Feb 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Benson v State of Queensland (Department of Education) [2021] QIRC 152
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
3 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
2 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
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
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
2 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
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
Palomino v State of Queensland (Department of Education) [2021] QIRC 129
2 citations
Jump To
Cite 1 - [2021] QIRC 129
Cite 2 - [2021] QIRC 129
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53
2 citations
Jump To
Cite 1 - [2021] QIRC 53
Cite 2 - [2021] QIRC 53
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
1 citation
Jump To
Cite 1 - (2003) 201 ALR 260

Cases Citing

Case NameFull CitationFrequency
Burchall v State of Queensland (Queensland Health) [2025] QIRC 1832 citations
Epong v State of Queensland (Queensland Health) [2025] QIRC 74 citations
1

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