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  4. Fleming v State of Queensland (Queensland Health) - [2022] QIRC 69

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Fleming v State of Queensland (Queensland Health)[2022] QIRC 69

Fleming v State of Queensland (Queensland Health)[2022] QIRC 69

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Fleming v State of Queensland (Queensland Health) [2022] QIRC 69

PARTIES:

Fleming, Lyndsay

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/259

PROCEEDING:

Public Service Appeal – Conversion of Fixed Term Temporary Employment

DELIVERED ON:

7 March 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant's employment was reviewed under s 149B of the Public Service Act 2008 after two years' continuous service – whether there is a continuing need for the appellant to be employed in the same role, or a role that is substantially the same – whether there are genuine operational requirements which preclude conversion – decision confirmed

LEGISLATION AND INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 27B

Directive 08/20 Casual employment

Directive 09/20 Fixed term temporary employment cls 4.1, 4.4, 8

Financial Accountability Act 2009 (Qld)

Financial Accountability Regulation 2019 (Qld)

Financial and Performance Management Standard 2019 (Qld)

Hospital and Health Boards Act 2011 (Qld)

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

Public Service Act 2008 (Qld) ss 25, 98, 148, 149A, 149B, 195, 197

Queensland Public Health Sector Certified Agreement (No 10) 2019 cl 5.2

CASES:

Australian Federation Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188

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

Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401

Gilmour v Waddell & Ors [2019] QSC 170

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

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

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Reasons for Decision

  1. [1]
    Mr Lyndsay Fleming is employed on a casual basis as an Operational Services Officer (Cleaner) (OO2) at the Bundaberg Hospital within the Wide Bay Hospital and Health Service ('WBHHS'). He has been continuously employed by WBHHS since at least 8 April 2019. During this time he has undertaken several short, fixed term, temporary contracts.
  2. [2]
    On 1 April 2021, the Australian Workers' Union ('the AWU'), on Mr Fleming's behalf, requested his employment be converted to permanent pursuant to Directive 09/20 Fixed term temporary employment ('Directive 09/20').[1]
  3. [3]
    In a decision letter dated 14 June 2021,[2] Ms Debbie Carroll, Chief Executive of WBHHS, informed Mr Fleming his employment would not be converted on the basis of genuine operational requirements ('the Decision').
  4. [4]
    By appeal notice filed 20 July 2021, Mr Fleming appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[3] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[4] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[5]
  5. [5]
    In my view, the decision was fair and reasonable.
  6. [6]
    My reasons follow.

The Decision

  1. [7]
    The Decision relevantly provides:

Genuine Operational Requirements

Section 8.2 of the Directive provides that where the above criteria 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.

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

I have also considered the following:

  • There are currently no substantive FTEs that are permanently vacant.
  • The causal pool you sit against is unfunded. Therefore, there is no budget for a permanent position.
  • You are engaged in fixed term temporary contracts to backfill substantive permanent FTEs on leave.
  • Depending on the timing of the recreation or other leave requests, the requirement to backfill substantive FTEs is variable.
  • Therefore, if there are no substantive FTEs on leave, an additional substantive permanent FTE would result in the actual establishment being higher than the budgeted establishment.
  • This would result in actual costs being higher than budgeted costs, resulting in a labour expenditure budget overspend.

As Chief Executive, I am required to manage and resource the full time equivalent (FTE) establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within section 98 of the Public Service Act 2008, and within the current Service Delivery Agreement for Wide Bay Hospital and Health Service.

Taking these considerations into account, I find it is neither viable nor appropriate in this case to convert to permanent.

I therefore find that there is a genuine operational requirement of this agency not to convert your employment to permanent at this time.

WBHHS's Submissions

  1. [8]
    WBHHS argues it is a genuine operational requirement that it maintain casual employees in order to staff a 24/7 roster whilst also allowing for various leaves and absences of permanent staff.[6]
  2. [9]
    It submits that over the past two years Mr Fleming has only been contracted to fill roles where the incumbent position holder has been absent due to recreation leave, sick leave, QSuper, WorkCover, training, graduated return to work or where a position was undergoing recruitment.[7] With respect to his casual engagement, it submits the nature of the work is ad hoc and his ordinary hours vary week to week depending on service requirements.[8]
  3. [10]
    WBHHS contends it is not the case that Mr Fleming's conversion has been refused because there is no vacant position, but rather that there is no budgeted vacancy.[9] Converting Mr Fleming would, WBHHS contends, result in a labour expenditure budget overspend as the position he sits against is unfunded and there is no budget for a permanent position.[10] This difficulty, it says, is not trivial or merely an inconvenience.[11]
  4. [11]
    It submits workforce planning is undertaken for each area of the service and budgeting and funding are determined on that basis.[12] Rostering, it submits, is allocated according to that plan and there is a requirement for a certain number of casual employees to ensure flexibility and continuity of service.[13] WBHHS contends converting Mr Fleming would remove that flexibility, and create inefficiencies contrary to the requirements set out under s 98 of the PS Act.[14] Further, it argues such matters are within its managerial prerogative and an industrial tribunal ought not to interfere with that prerogative unless satisfied WBHHS is seeking from an employee something that is unjust or unreasonable.[15]
  5. [12]
    Referring to s 148(2) of the PS Act and cl 4.4 of Directive 09/20, WBHHS relies on the circumstances identified by those provisions in which tenured or fixed term employment may not be viable or appropriate.[16]
  6. [13]
    Moreover, it submits the nature of Mr Fleming's engagement aligns with the workforce strategy implemented by WBHHS, which in turn aligns with its obligations under the certified agreement.[17] It further submits Mr Fleming's casual engagement is consistent with the State's employment security policy which not only makes a commitment to permanent employment but also encourages workforce planning that is efficient and flexible.[18]
  7. [14]
    Although it concedes there is a continuing need to continue to employ Mr Fleming in his current role, WBHHS argues such a concession is not inconsistent with its reliance on genuine operational requirements to refuse conversion.[19]
  8. [15]
    Referring to Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'),[20] WBHSS notes that the term 'genuine' has been construed to mean 'authentic'.[21]
  9. [16]
    In determining whether the operational reasons relied upon are 'authentic', WBHHS submits it is relevant to understand the legislative framework within which it made its decision.[22] In doing so it relies on several instruments under which it has certain obligations, namely the:
  1. (a)
    PS Act which requires a chief executive to manage a department in a way that promotes the 'effective, efficient and appropriate management of public resources' including, inter alia, human resources;[23]
  2. (b)
    certified agreement, which requires WBHHS to backfill permanent staff and recognises the use of casual staff for that purpose;[24]
  3. (c)
    Financial Accountability Act 2009 (Qld) and related subordinate legislation[25] which sets out strategic legal obligations and a financial management framework which WBHHS must comply with;[26] and
  4. (d)
    Hospital and Health Boards Act 2011 (Qld) under which WBHHS provides services with key performance indicators linked to efficient and sustainable workforce management.[27]
  1. [17]
    These reasons, it submits, were contained within the decision letter provided to Mr Fleming which WBHHS argues was 'clear, unambiguous, not written in vague generalities or the formal language of legislation.'[28] Consequently, it contends the decision-maker's findings and reasons were set out such that Mr Fleming could understand why the Decision was not made in his favour, supporting a conclusion the Decision was fair and reasonable.[29]
  2. [18]
    Finally, as best I understand the submission, WBHHS also challenges Mr Fleming's standing to bring the appeal, contending s 195(2) of the PS Act prevents a person from appealing against, or calling into question in an appeal, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the agency.[30]

Mr Fleming's Submissions

  1. [19]
    Although Mr Fleming concedes the Decision is clear,[31] he contends it is not fair and reasonable having regard to the relevant directive as a whole, and the grounds relied upon by WBHHS.[32]
  2. [20]
    The legal standard of reasonableness, he submits, is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power and its real objective.[33]
  3. [21]
    Consequently, Mr Fleming argues the decision-maker erred by failing to consider all relevant factors, specifically:[34]
  1. (a)
    the State's commitment to permanent employment and limiting the use of casual employment, which should only be used where permanent employment is not viable or appropriate;
  1. (b)
    the requirement for agencies to proactively manage their workforce planning to reduce their reliance on casual and temporary employees; and
  2. (c)
    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.
  1. [22]
    Mr Fleming accepts the work he undertakes could be performed on a temporary or casual basis; however, he submits the question is not whether he should have initially been employed on a casual basis, but whether it is reasonable for his employment to continue on that basis.[35]
  2. [23]
    In this respect he notes WBHHS's sole reason for refusing to convert his employment was on the basis of 'genuine operational requirements'.[36] Where those reasons do exist, Mr Fleming contends they must be evidenced and not trivial.[37] That is, a 'reasonable' genuine operational requirement is one which is sufficiently substantial as to warrant overcoming the State's commitment to permanency and should not be interpreted to included inconveniences which are inherent to most, if not all, conversions.[38]
  3. [24]
    In reply submissions, Mr Fleming submits WBHHS has 'grossly over-exaggerated' the impact his conversion would have on its ability to manage its workforce and rostering flexibility.[39]
  4. [25]
    Further, Mr Fleming maintains (correctly in my view) that the existence of a vacant or budgeted position is not a pre-requisite to conversion.[40] Even if a new permanent position was required to be created, Mr Fleming submits this is somewhat to be expected and no different to the difficulties that might be experienced in other departments or agencies.[41]
  5. [26]
    Finally, in reply submissions, Mr Fleming argues WBHHS's reliance on statutory frameworks is designed to take the Commission 'on a distracting and somewhat irrelevant journey' that requires, unsurprisingly in his view, the chief executive to exercise fiscal responsibility.[42] The submissions on these points, he concludes, do not assist the Commission in determining whether the operational requirements relied upon are genuine, and consequently whether the Decision was fair and reasonable.[43]

What Decisions can the Industrial Commissioner make?

  1. [27]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  2. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant Principles

  1. [28]
    The PS Act relevantly provides:

148 Employment of fixed term temporary employees

  1. (1)
    A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
  1. (2)
    Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes—
  1. (a)
    to fill a temporary vacancy arising because a person is absent for a known period;

(b) to perform work for a particular project or purpose that has a known end date;

(c) to fill a position for which funding is unlikely or unknown;

(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.

(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.

...

149A Decision on review of status

...

  1. (2)
    The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if—
  1. (a)
    the department's chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

149B Review of status after 2 years continuous employment

  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The department's chief executive must decide whether to—
  1. (a)
    continue the person's employment according to the terms of the person's existing employment; or
  1. (b)
    offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
  1. (4)
    The department's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
  1. (5)
    In making the decision—
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. (6)
    If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the person has been continuously employed in the department; and
  1. (c)
    for a fixed term temporary employee—how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.

...

  1. (8)
    The commission chief executive must make a directive about making a decision under this section.

(8A)  The directive must provide for—

  1. (a)
    the matters a department's chief executive must consider in deciding the hours of work to be offered in converting a person's employment under subsection (3)(b); and

...

  1. [29]
    Clause 8 of Directive 09/20 relevantly provides:

8. Decision on review of status

8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):

  • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
  • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
  • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
  • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

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

...

8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).

8.6 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.

...

Was the Decision Fair and Reasonable?

  1. [30]
    It is not in dispute that Mr Fleming was eligible to apply for conversion and that he met the merit principle.[44] In those circumstances, WBHHS was required to offer to convert Mr Fleming's employment status to permanent, where there was a continuing need to employ him in the same role, or a role that is substantially the same.[45] The only exception is where it is not viable or appropriate to do so, having regard to the genuine operational requirements of WBHHS.[46]
  2. [31]
    WBHHS maintains the decision not to convert Mr Fleming should be confirmed by the Commission, noting it 'has evidenced genuine operational requirements for not converting [Mr Fleming]' and further, Mr Fleming's engagement 'falls squarely within the confines of the examples in s 148(2) of the [PS Act]'.[47]
  3. [32]
    Before turning to my consideration, I note that throughout his primary submissions, which were presumably drafted by his representative, Mr Fleming makes reference to his casual employment status and Directive 08/20 Casual employment.
  4. [33]
    This is apparently notwithstanding the fact that in its request to WBHHS, the AWU requested that Mr Fleming's employment be reviewed according to 'Directive 09/20 Conversion of temporary employees to permanent employment' which, from context, has been understood to be a reference to Directive 09/20, which deals with circumstances where a person is employed in a fixed term temporary capacity.
  5. [34]
    A review of Mr Fleming's work history for the relevant period reveals a combination of both fixed term temporary employment contracts and casual engagements with the overwhelming majority of engagements falling into the category of temporary fixed term contracts.
  6. [35]
    In circumstances where Mr Fleming's review was conducted by WBHHS following a request by his representatives for conversion pursuant to Directive 09/20 and where the decision being appealed against was made having regard to Directive 09/20, this appeal has been conducted having regard to the criteria set out in s 149A(2) and Directive 09/20.

Continuing need to be employed in the same role, or a role that is substantially the same

  1. [36]
    As I understand its submissions, WBHSS accepts there is a continuing need to employ Mr Fleming in his current role, albeit in his current capacity as a casual employee who undertakes frequent fixed term temporary contracts.

Genuine operational requirements

  1. [37]
    As is clear from s 149A(3) of the PS Act and cl 8.2 of Directive 09/20 above, the decision‑maker must have regard to the 'genuine operational requirements of the department' when making their decision.
  2. [38]
    The phrase 'genuine operational requirements of the department' is not defined in the PS Act or Directive 09/20. In Morison Merrell DP observed, albeit in the context of s 149C of the PS Act:

[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.
  1. [39]
    His Honour then found that the phrase would at least include a consideration of whether there was 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department' to convert the employee's employment.[48]
  2. [40]
    Representatives for Mr Fleming argue the need to back-fill full-time substantive roles for the purposes of covering leave and other absences is a regular occurrence in Queensland Health. Moreover, that WBHHS will always require Mr Fleming to backfill leave on a permanent and systematic basis. On this basis, it is said he should be converted.
  3. [41]
    Among other factors, WBHSS appears to rely on the lack of a permanent vacancy and its requirements under the certified agreement with respect to filling such vacancies as a bar to conversion. However, in my view, the existence of a vacant position is neither a mandatory consideration nor a pre-requisite to conversion.
  4. [42]
    More relevantly, for this appeal, WBHHS relies on a schedule attached to its submissions which sets out Mr Fleming's hours on a weekly basis for the previous two years, and the circumstances of his various engagements, both in a casual capacity and on various short‑term contracts.[49] Neither Mr Fleming, nor his representatives, raised any concerns in relation to the accuracy of the schedule.
  5. [43]
    The document reflects a series of both short, fixed term temporary engagements, and casual appointments undertaken by Mr Fleming over a two-year period.
  6. [44]
    The hours performed by Mr Fleming for the relevant period, while undertaking casual engagements, range from 4 to 32 hours per week. Where Mr Fleming has undertaken fixed term temporary roles, the hours vary from 8 to 38 hours per week.
  7. [45]
    I have been unable to identify more than two consecutive weeks where Mr Fleming performed the same number of hours as either a casual or while engaged as a temporary fixed term employee. The schedule indicates there have been occasions where Mr Fleming did not perform any hours.
  8. [46]
    In those circumstances, there seems to be no question that the primary reason Mr Fleming has been engaged in casual and fixed term temporary roles has been to cover hours where the incumbent position holder has been temporarily absent due to leave purposes.
  9. [47]
    The predominant description or reasons attributed to the performance of temporary fixed term contracts by Mr Fleming during the relevant period included:
  • 'Backfill – other leave'; and
  • 'Backfill – emergent leave'.
  1. [48]
    A review of the hours performed by Mr Fleming during the relevant period, supports a conclusion the backfill arrangements are highly variable, particularly in so far as it concerns the number of available hours and the form in which they are offered.
  2. [49]
    In those circumstances, I accept the hours performed by Mr Fleming, irrespective of whether they have been undertaken on a fixed term temporary or casual basis, were for the purposes of covering temporary absences.
  3. [50]
    In circumstances where WBHHS is obligated to maintain a flexible workforce in order to cover absences, when and if they arise, I am satisfied the operational reasons relied on by WBHHS as the basis for its decision not to convert Mr Fleming are genuine and therefore preclude Mr Fleming from conversion on this occasion.

Conclusion

  1. [51]
    Although it is the case that employment on tenure is the default basis of employment in the public service, s 148(2) of the PS Act sets out examples where employment on tenure may not be viable or appropriate.
  2. [52]
    Notably s 148(2)(a) describes a circumstance where a vacancy is filled because a person is absent for a known period, for example, on approved leave or a secondment.
  3. [53]
    In this matter, I am satisfied this is a case where WBHHS has relied on genuine operational reasons to deny conversion in circumstances where Mr Fleming has been engaged to cover short-term absences including annual and sick leave.
  4. [54]
    I am satisfied the decision, on this occasion, not to convert was fair and reasonable.
  5. [55]
    I order accordingly.

Order

The decision appealed against is confirmed.

Footnotes

[1] Appeal Notice filed 20 July 2021, Attachment LF-01.

[2] Although the decision letter attached to the Appeal Notice filed 20 July 2021 appears to be dated 14 June 2021, I note Mr Fleming identifies the date he received the decision within his appeal notice as 29 June 2021.

[3] Public Service Act 2008 (Qld) s 197.

[4] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[5] Industrial Relations Act 2016 (Qld) s 562B(3).

[6] WBHHS's submissions filed 17 August 2021, [3], [8] relying on the decision in Cameron v State of Queensland (Queensland Health) [2021] QIRC 226 ('Cameron'), [25]-[26].

[7] Ibid [2].

[8] Ibid [6].

[9] Ibid [7].

[10] Ibid [4].

[11] Ibid.

[12] Ibid [6].

[13] Ibid.

[14] Ibid.

[15] Ibid [28] citing Federated Clerks' Union of Australia, North Queensland Branch, Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401; Australian Federation Union of Locomotive Enginemen v State Rail Authority of NSW (1984) 295 CAR 188.

[16] Ibid [9].

[17] Ibid [10].

[18] Ibid citing Directive 09/20 Fixed term temporary employment cl 4.1; Queensland Public Health Sector Certified Agreement (No 10) 2019 cl 5.2.

[19] Ibid [13]-[14] citing Cameron (n 6) [27].

[20] [2020] QIRC 203 ('Morison').

[21] WBHHS's submissions filed 17 August 2021, [20] citing Morison (n 19) [27]-[38].

[22] Ibid [21].

[23] Ibid [26] citing Public Service Act 2008 (Qld) ss 25, 98.

[24] Ibid [22] citing Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 5.2.

[25] Namely, the Financial and Performance Management Standard 2019 (Qld) and the Financial Accountability Regulation 2019 (Qld).

[26] WBHHS's submissions filed 17 August 2021, [23].

[27] Ibid [24]-[25].

[28] Ibid [15] citing Acts Interpretation Act 1954 (Qld) s 27B; Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 481.

[29] Ibid.

[30] Ibid [27].

[31] Mr Fleming's reply submissions filed 23 August 2021, [9].

[32] Ibid [8].

[33] Ibid [9]-[10] citing Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[34] Ibid [12].

[35] Ibid [14].

[36] Ibid [16].

[37] Ibid [17].

[38] Ibid [18]-[19].

[39] Mr Fleming's reply submissions filed 23 August 2021, [6].

[40] Mr Fleming's submissions filed 20 July 2021, [20]; Mr Fleming's reply submissions filed 23 August 2021, [7].

[41] Mr Fleming's submissions filed 20 July 2021, [21]-[22].

[42] Mr Fleming's reply submissions filed 23 August 2021, [13] citing Cameron (n 6) [24].

[43] Ibid.

[44] WBHHS's submissions filed 17 August 2021, [11]-[12].

[45] Public Service Act 2008 (Qld) s 149A(2); Directive 09/20 Fixed term temporary employment cl 8.1.

[46] Public Service Act 2008 (Qld) s 149A(3); Directive 09/20 Fixed term temporary employment cl 8.2.

[47] WBHHS's submissions filed 17 August 2021, [29].

[48] Morison (n 20) [40].

[49] WBHHS's submissions filed 17 August 2021, Attachment WB-01.

Close

Editorial Notes

  • Published Case Name:

    Fleming v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Fleming v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 69

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    07 Mar 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
AFULE v State Rail Authority of NSW (1984) 295 CAR 188
2 citations
Jump To
Cite 1 - (1984) 295 CAR 188
Cite 2 - (1984) 295 CAR 188
Cameron v State of Queensland (Queensland Health) [2021] QIRC 226
4 citations
Jump To
Cite 1 - [2021] QIRC 226
Cite 2 - [2021] QIRC 226
Cite 3 - [2021] QIRC 226
Cite 4 - [2021] QIRC 226
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
4 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Cite 4 - [2020] QIRC 203
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
2 citations
Jump To
Cite 1 - (1987) 16 FCR 465
Cite 2 - (1987) 16 FCR 465
Union of Employees v Cairns Base Hospital (1995) 150 QGIG 1401
2 citations
Jump To
Cite 1 - (1995) 150 QGIG 1401
Cite 2 - (1995) 150 QGIG 1401

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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