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  4. Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) - [2022] QIRC 77

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Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2022] QIRC 77

Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2022] QIRC 77

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2022] QIRC 077

PARTIES:

Gonzalez, Carmen

(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

PSA/2021/318

PROCEEDING:

Public Service Appeal – Conversion of Fixed Term Temporary Employment

DELIVERED ON:

10 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 – appeal under s 194 of the Public Service Act 2008 – where employment reviewed under s 149B of the Public Service Act 2008 – where deemed decision – whether there is a continuing need to employ the appellant 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:

Directive 09/20 Fixed term temporary employment cl 8

Disability Services Act 2006 (Qld)

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

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

CASES:

Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188

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

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

Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 311

Reasons for Decision

  1. [1]
    Ms Carmen Gonzalez is employed by the State of Queensland as a PO5 Senior Clinician in the Positive Behaviour Support and Restricted Practices ('the PBSRP') team within the Disability Connect Queensland section of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships ('the Department').
  2. [2]
    She has been continuously employed by the Department since 15 July 2019 and is presently based at the Gold Coast.
  3. [3]
    Pursuant to s 149B of the Public Service Act 2008 (Qld) ('the PS Act'), the Department was required to perform a review of Ms Gonzalez's fixed term temporary employment and consider whether she ought to be converted to permanent employment. A decision was not made within 28 days of her anniversary date such that a decision is deemed to have been made that her employment continue according to its current terms.
  4. [4]
    Ms Gonzalez's present contract is due to expire on 30 June 2022.
  5. [5]
    By appeal notice filed 2 September 2021, Ms Gonzalez appeals the decision under ch 7 pt 1 of the PS Act. Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  6. [6]
    In my view, the decision was fair and reasonable.
  7. [7]
    My reasons follow.

Background

  1. [8]
    The National Disability Insurance Scheme ('the NDIS') rollout in Queensland commenced on 1 July 2016.
  2. [9]
    According to the Department, as part of the transition, the Queensland Government maintained responsibility for limited elements of the NDIS Quality and Safeguarding Framework, which presently includes the authorisation of the use of restrictive practices and the development of positive behaviour support plans for containment and seclusion.[4]
  3. [10]
    As touched on above, Ms Gonzalez is presently engaged as a fixed term temporary employee at a PO5 level as a Senior Clinician within the PBSRP team within the Department.
  4. [11]
    The PBSRP team performs the work of authorising the short-term use of restrictive practices and developing positive behaviour support plans including for those clients subject to containment/seclusion.[5]
  5. [12]
    A submission made by the Queensland Government to the Queensland Productivity Commission Inquiry into the NDIS market ('the Inquiry') states that the government has commenced a review of the current authorisation process in Queensland.[6]
  6. [13]
    The submission to the Inquiry states that the Queensland Government is actively working with the Commonwealth to develop a program to address thin markets and train practitioners in developing containment/seclusion positive behaviour support plans.[7]

Department's Submissions

  1. [14]
    The Department contends Ms Gonzalez's current position is not a permanent position, but rather a temporary position that is only funded until 30 June 2023, as is the PO4 position in which Ms Gonzalez was previously engaged.[8]
  2. [15]
    Moreover, it submits all vacancies in PO4 and PO5 positions in the PBSRP team have been advertised on a temporary basis since 2019, with the exception of one permanent position located in Maryborough.[9]
  3. [16]
    In reply submissions, the Department clarifies that of the 33 positions in the PBSRP, only 11, including the Maryborough position, are recurrently funded to reflect the Department's ongoing business needs.[10] These positions, it maintains, reflect the possibility of the limited, continuing authorisation function under the Disability Services Act 2006 (Qld) ('the DSA') as highlighted by Ms Gonzalez.[11]
  4. [17]
    The Department submits it cannot confirm there will be a continuing need for Ms Gonzalez to continue in her current role beyond 30 June 2022.[12]
  5. [18]
    In support of this submission the Department relies on the Queensland Government's submission to the Inquiry.[13] Although the Department confirms a formal decision has yet to been made,[14] it notes the Queensland Government's submission outlines its commitment to removing the statutory function currently undertaken by the PBSRP team, and transitioning it to the NDIS.[15]
  6. [19]
    Relying on Singh v State of Queensland (Public Safety Business Agency),[16] the Department submits there is sufficient uncertainty regarding the need and future funding of Ms Gonzalez's role such that it is not appropriate to convert her employment having regard to the Department's genuine operational requirements, as presently known.[17]
  7. [20]
    With respect to other roles that are the same or substantially the same, the Department submits it undertook a review of its establishment beyond the PBSRP team, but no suitable roles were identified.[18]
  8. [21]
    It argues the Forensic Disability Service located in Wacol is the only other area of the Department which will continue to provide clinical services to people with a disability.[19] The Department submits it did consider roles within this service, but there were no positions available at the PO5 level.[20]

Ms Gonzalez's Submissions

  1. [22]
    Ms Gonzalez contends it is not fair or reasonable that she be denied conversion and her position removed from the Department's structure in circumstances where a permanent position was filled in Maryborough.[21]
  2. [23]
    She argues there is only one other clinician employed on a permanent basis, albeit at the PO6 level, in the Gold Coast area and it is not possible for one person to undertake the workload once Ms Gonzalez's position ceases.[22] In support of this submission, Ms Gonzalez noted various statistics on the number of applications processed between 2020 and 2021 in South East Queensland.[23]
  3. [24]
    Relying on Brew v State of Queensland (Office of the Public Guardian) ('Brew'),[24] Ms Gonzalez argues the Department's reliance on the Inquiry is not fair and reasonable in circumstances where no decision has been made by the Queensland Government, and where, regardless of the decision made, the authorisation functions under the DSA will remain in Queensland and only the positive behaviour support plans function will be transitioned to the NDIS.[25]
  4. [25]
    Ms Gonzalez submits the new model for the authorisation framework in Queensland has been costed and submitted to Cabinet for final approval, and this proposed framework includes a permanent PO5 clinician role at the Gold Coast.[26]
  5. [26]
    Consequently, she contends there is an ongoing need for her to be employed in the same role, or a role that is substantially the same, where her unique and essential skills are difficult to recruit to and will continue to be required within the new structure.[27]
  6. [27]
    Finally, Ms Gonzalez argues the Department has offered no supporting evidence that her role will no longer be required beyond 30 June 2023.[28] Instead, she submits the Queensland Government will be required to continue to fund her role to fulfil its authorisation functions.[29]
  7. [28]
    In reply submissions, the Department acknowledges the tension arising from the lack of clarity relating to the changes to the Department's statutory functions.[30] However, it denies the characterisation and outcomes of the Inquiry as submitted by Ms Gonzalez, and reiterates that a commitment has been made by the Queensland Government to transition those functions to the NDIS and any decision will be made at a whole of government level.[31]

What Decisions can an Industrial Commissioner make?

  1. [29]
    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. [30]
    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;
  1. (b)
    to perform work for a particular project or purpose that has a known end date;
  1. (c)
    to fill a position for which funding is unlikely or unknown;
  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

(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. [31]
    The relevant directive for the purposes of s 149B(8) is Directive 09/20 Fixed term temporary employment ('the Directive'), which 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. [32]
    It is not in dispute that Ms Gonzalez was eligible for conversion and that she met the merit principle.[32] In those circumstances, the Department was required to offer to convert Ms Gonzalez's employment status to permanent, where there was a continuing need to employ her in the same role, or a role that is substantially the same.[33]
  2. [33]
    The only exception is where it is not viable or appropriate to do so, having regard to the genuine operational requirements of the Department.[34]

Genuine Operational Requirements

  1. [34]
    As is clear from s 149A(3) of the PS Act and cl 8.2 of the Directive above, the decision-maker must have regard to the 'genuine operational requirements of the department' when making their decision.
  2. [35]
    The phrase 'genuine operational requirements of the department' is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women)[35] 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. [36]
    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.[36]
  2. [37]
    Although I accept Ms Gonzalez's role is ongoing, in the sense that the Department has confirmed the position will attract funding until 30 June 2023, the materials provided by the Department during this appeal, support a conclusion that there is, at present, a relatively high degree of uncertainty regarding the ongoing need and future funding of the temporary role held by Ms Gonzalez, and other roles of a similar nature beyond June 2023.
  3. [38]
    I also accept the Department took steps to locate other suitable roles, that are the same or substantially the same, that Ms Gonzalez could be converted into outside her existing team, but that none were able to be identified. 
  4. [39]
    Ms Gonzalez relies on the decision in Brew in support of her appeal. She argues there is no supporting evidence that her role will no longer be required on a permanent basis beyond 2021, particularly in circumstances where the Department will retain certain authorisation functions under the DSA.
  5. [40]
    In my view, Brew is distinguishable here in that there had been no report, recommendation or commitment to act on any review, notwithstanding it had been discussed for several years.[37]
  6. [41]
    In the present appeal, it is not in dispute the Queensland Government has committed to removing the statutory function of preparing positive behaviour support plans for containment and seclusion and transitioning this responsibility to the NDIS market.
  7. [42]
    What is less clear is the timeframe and the actual functions that will eventually be transferred. 
  8. [43]
    Although I accept Ms Gonzalez's assertions there will invariably be some functions within the existing program which may well be retained by the State of Queensland, the difficulty is that there is presently no way of knowing the extent of those functions or the resources that will be required after June 2023.
  9. [44]
    While it is unfortunate and no doubt distressing for Ms Gonzalez that there has been a delay in the final decision as to the timing and nature of the transition, unlike the events in Brew, I am satisfied the materials support a conclusion that at this point the Queensland Government is committed to removing the statutory function of preparing positive behaviour support plans for containment and seclusion, with the objective of transitioning the responsibility to the NDIS market.
  10. [45]
    The uncertainty in respect of the timing and the full extent of the transition is an operational matter which, in my view, presently precludes Ms Gonzalez from having her employment status converted to permanent.
  11. [46]
    Notwithstanding the sympathy I have for Ms Gonzalez, particularly in respect of the current delay in relation to a final decision about the transition, for the reasons I have set out above, I consider the decision was fair and reasonable.

Conclusion

  1. [47]
    The issue for determination in this appeal was whether the decision appealed against, namely, the decision not to convert Ms Gonzalez's fixed term temporary status to permanent was fair and reasonable,
  2. [48]
    For the reasons given above, I consider the decision was fair and reasonable.
  3. [49]
    I order accordingly.

Order

The decision appealed against is confirmed.

Footnotes

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

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

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

[4] Department's submissions filed 27 September 2021, [14].

[5] Ibid [13].

[6] Ibid Attachment 1, 44.

[7] Ibid.

[8] Ibid [9]-[10].

[9] Ibid [11].

[10] Department's reply submissions filed 1 November 2021, [4].

[11] Ibid [6].

[12] Department's submissions filed 27 September 2021, [22].

[13] Ibid [15].

[14] Ibid [21].

[15] Ibid [16].

[16] [2021] QIRC 311, [49].

[17] Department's submissions filed 27 September 2021, [27]-[28].

[18] Ibid [23].

[19] Ibid [24].

[20] Ibid.

[21] Appellant's submissions filed 18 October 2021, [13].

[22] Ibid.

[23] Ibid [14].

[24] [2021] QIRC 188 ('Brew').

[25] Appellant's submissions filed 18 October 2021, [16]-[18] relying on the Department's submissions filed 27 September 2021, Attachment 1, 44 and 62.

[26] Appellant's submissions filed 18 October 2021, [19].

[27] Ibid [24].

[28] Ibid [25].

[29] Ibid [26].

[30] Department's reply submissions filed 1 November 2021, [8].

[31] Ibid.

[32] Department's submissions filed 27 September 2021, [7]-[8].

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

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

[35] [2020] QIRC 203.

[36] Ibid [40].

[37] Brew (n 24) [39]-[42].

Close

Editorial Notes

  • Published Case Name:

    Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Gonzalez v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2022] QIRC 77

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    10 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
Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188
3 citations
Jump To
Cite 1 - [2021] QIRC 188
Cite 2 - [2021] QIRC 188
Cite 3 - [2021] QIRC 188
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
3 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Cite 3 - [2020] QIRC 203
Singh v State of Queensland (Public Safety Business Agency) [2021] QIRC 311
2 citations
Jump To
Cite 1 - [2021] QIRC 311
Cite 2 - [2021] QIRC 311

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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