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  4. Murray v State of Queensland (Queensland Health) - [2023] QIRC 194

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Murray v State of Queensland (Queensland Health)[2023] QIRC 194

Murray v State of Queensland (Queensland Health)[2023] QIRC 194

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murray v State of Queensland (Queensland Health) [2023] QIRC 194

PARTIES:

Murray, Rebecca

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/71

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

29 June 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

  1. The appeal is allowed;
  1. The decision that the Appellant not have her employment converted to permanent is set aside and another decision is substituted; and
  1. The Appellant's employment status be converted to full time, permanent employment.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – appeal against conversion decision – where the appellant lodged the appeal out of time – consideration of whether the respondent conducted review as required – whether there is a continuing need for appellant to be employed in same role – whether there is a continuing need for appellant to be employed in a role that is substantially the same – consideration of genuine operational requirements – the appeal is allowed

LEGISLATION AND OTHER

INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567

Public Sector Act 2022 (Qld) s 4, s 27, s 81, s 114, s 115, s 131, s 133

Public Service Act 2008 (Qld) s 25, s 148, s 149A, s 149B

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

Directive 02/23 Review of non-permanent employment cl 1, cl 4, cl 7, cl 10, cl 14

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

Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019

Queensland Health Policy Conversion of Temporary Employees to Permanent Status B52 (QH-POL-119) cl 1

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

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

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

Reasons for Decision

  1. [1]
    Dr Rebecca Murray (the Appellant) is currently employed as a Senior Research Fellow (Health Practitioner HP5) in the Urology unit at the Redcliffe Hospital, within Metro North Hospital and Health Service (MNHHS), by the State of Queensland (Queensland Health) (the Respondent; the Department).
  1. [2]
    The Appellant is engaged on a fixed-term temporary contract, with an end date of 17 November 2023. 
  1. [3]
    First commencing with MNHHS on 16 November 2020, the Appellant will have worked on consecutive fixed-term temporary arrangements for 3 years as at the expiry of her current contract.
  1. [4]
    On 14 April 2023, the Appellant filed an appeal on the basis that:

I am writing to request your assistance in my pursuit of a permanent position at Metro North Hospital and Health Service (MNHHS) as a Health practitioner 5 (Senior Research Fellow). I have been employed on a temporary contract for more than 2 years.  As an individual and as a group with the senior research fellows at HBI, we have repeatedly inquired about temporary-to-permanent conversion and I have yet to receive a clear answer on my ability to convert …

…

… all avenues to rectify this internally have been exhausted …[1]

  1. [5]
    This is an appeal against the deemed decision not to convert the Appellant's fixed-term temporary employment to permanent.

Deemed Decision subject of this Appeal

  1. [6]
    As the Appellant commenced her employment on 16 November 2020, it is not disputed that the first review ought to have occurred on 16 November 2022,[2] after two years continuous employment.[3] 
  1. [7]
    Section 149B(1) of the Public Service Act 2008 (Qld) (now repealed) (PS Act 2008) provided 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. [8]
    Between 7 November 2022 and 20 February 2023, the Appellant sought to engage with management about her temporary contract not being converted to permanent employment.  That included both email correspondence and in-person meetings.  I note that the Appellant’s first attempt to raise such concerns with management was only 9 days before a review was actually required to be conducted under s 149B of the PS Act 2008.  For that reason, I consider the contacts made by the Appellant best fall under cl 9 of Directive 09/20. 
  1. [9]
    At the review point referred to at [6] above, the department's chief executive did not make any decision within 28 days. 
  1. [10]
    As such, a deemed decision not to convert the Appellant to permanent employment was taken to have been made on 14 December 2022.[4]

Applicable legislation in the relevant period

  1. [11]
    The Respondent submitted that the applicable legislation in the relevant period was the PS Act 2008,[5] Directive 09/20 Fixed term temporary employment (Directive 09/20)[6] and Queensland Health Policy Conversion of Temporary Employees to Permanent Status B52 (QH-POL-119).[7]  I agree that was the case.
  1. [12]
    The Public Sector Act 2022 (PS Act 2022) commenced operation on 1 March 2023. Pursuant to s 289 of the PS Act 2022, the former PS Act 2008, which was in effect at the time the deemed decision was made, has been repealed.
  1. [13]
    This appeal was filed on 14 April 2023, after the PS Act 2008 was repealed and the PS Act 2022 commenced. Therefore, the transitional provisions require me to decide this appeal under the PS Act 2022.
  1. [14]
    When the review of the Appellant's employment status became due on 16 November 2022, a notice ought to have been issued by the Respondent pursuant to the PS Act and Directive 09/20.
  1. [15]
    The deemed decision was taken to have been 'given' 28 days after the 16 November 2022 - so, on 14 December 2022. 
  1. [16]
    It follows then that this appeal of the deemed decision is to be decided under the PS Act 2022, Directive 09/20 and QH-POL-119.

Notice not provided

  1. [17]
    The review of the Appellant's employment status after two years continuous employment ought to have been undertaken on 16 November 2022.
  1. [18]
    While the Respondent asserted that the deemed decision was made in accordance with the PS Act 2008, Directive 09/20 and QH-POL-119, that was not the case.
  1. [19]
    Directive 09/20 required that "Notice be given if the chief executive starts a review of the status of the fixed term temporary employee's employment."  Directive 09/20 stated that:

10.1 The 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.

10.2 The 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.[8]
  1. [20]
    In the Appeal Notice, the Appellant included a chronology of her attempts to progress her conversion to permanency with management.  While that revealed a series of commitments made to "look into it" - nothing was done. 
  1. [21]
    The Appellant also later submitted that "None of the appellants have received any formal correspondence from the chief executive at 2-year milestones…" and that with respect to correspondence to management seeking conversion to permanent employment, "no clear response has been received ..."[9]
  1. [22]
    That appeared to be rather accepted by the Respondent in its submissions, as it stated that (emphasis added):

In relation to paragraph 1(d) of the Appellant's submission the Respondent notes discussions occurred with the Appellant about whether the Appellant's employment could be converted on a permanent basis (as outlined in the Appellant's submission, Timeline of Internal Communication), although not in writing, the Appellant was informed that conversion would be unlikely as there was no funding available.[10]

  1. [23]
    If the Respondent had in fact issued any 'notice' to the Appellant, in the terms required at paragraph [19] above, I would have expected those documents to be attached to its submissions or otherwise at least referred to.  Instead, the Respondent conceded that no information was provided "in writing".
  1. [24]
    Rather, the Appellant’s submissions include that "None of the appellants have received any formal correspondence from the chief executive at 2-year milestones …"[11]
  1. [25]
    Absent the provision of any such notice, the Respondent did not comply with the mandatory requirement to conduct a review of the Appellant's employment status after 2 years continuous employment.
  1. [26]
    It appears to me that the Respondent considered the mandatory decision criteria only at the point of this appeal being filed.
  1. [27]
    For those reasons, I do not accept the Respondent's submission that the deemed decision not to convert the Appellant to permanent employment was undertaken in accordance with the PS Act, Directive and QH-POL-119 that applied at that time. 
  1. [28]
    The Respondent's failure to comply with the mandatory requirement contributes to my finding that the deemed decision subject of this appeal was not fair and reasonable.

Can the deemed decision be appealed?

  1. [29]
    It is accepted that the conversion review ought to have occurred on 16 November 2022 - after the Appellant had been continuously employed on a fixed-term temporary employment arrangement for 2 years.[12] 
  1. [30]
    As the deemed decision was given on 14 December 2022, that review was to be undertaken under the PS Act 2008.[13]
  1. [31]
    Section 131(1)(a) of the PS Act 2022 prescribes that an appeal may be made against a conversion decision.[14]
  1. [32]
    Section 115(6) of the PS Act 2022 provides for a deemed decision not to convert the person's employment to permanent, if the chief executive does not make the decision within the required period - 28 days.[15]
  1. [33]
    The email sent by the Appellant to management about her desire to convert to permanent employment was sent proximate to the review date of 16 November 2022.  As earlier explained, I have considered that to be notification that a review was required[16] and thus able to be appealed.
  1. [34]
    Section 133 of the PS Act 2022 prescribes that "the public sector employee the subject of the decision" may appeal "against a conversion decision". 
  1. [35]
    For those reasons, I am satisfied the deemed decision is able to be appealed.

Timeframe for appeal

  1. [36]
    The review of the Appellant's fixed-term temporary employment arrangement ought to have occurred on 16 November 2022.
  1. [37]
    The deemed decision to refuse the Appellant's conversion to permanency was taken to be made (given) 28 days after 16 November 2022.  That is, on 14 December 2022.
  1. [38]
    To accord with s 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act), an Appeal Notice should have been filed with the Industrial Registry within 21 days after 14 December 2022.  That is, on or by 4 January 2023.
  1. [39]
    The Appeal Notice was filed with the Industrial Registry on 14 April 2023.  That is, 100 days out of time. 
  1. [40]
    The Respondent raised a jurisdictional objection to the Commission hearing this matter because the appeal was filed outside the prescribed time limits.[17] 
  1. [41]
    For the reasons above, I find the appeal was filed 100 days out of time - not 121 days as the Respondent had submitted.

Should this appeal be heard out of time?

  1. [42]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[18] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [43]
    The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[19]
  1. [44]
    The question of whether to extend the time for filing an application 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.[20] Several factors inform the exercise of my discretion.
  1. [45]
    In Breust v Qantas Airways Ltd, Hall P set out the following considerations:[21]
  • 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. [46]
    I have explained above that the appeal was filed 100 days out of time.
  1. [47]
    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.
  1. [48]
    The Appellant had filed the appeal 100 days late.  That is a very lengthy period.

Explanation for the delay; and

Any relevant conduct of the Respondent

  1. [49]
    In the Appeal Notice, the Appellant explained that:

I have not received a definitive decision regarding temporary-to-permanent conversion as a senior research fellow (HP5) at Herston Biofabrication Institute.  Despite repeated requests, there has been a persistent delay in providing a clear answer.[22] 

  1. [50]
    The Appellant provided an extensive chronology of persistent attempts to engage with management about conversion to permanency.  There were meetings - but no answers or outcomes.
  1. [51]
    The Respondent has conceded that nothing had been provided to the Appellant "in writing".
  1. [52]
    If the Respondent had provided the mandatory notice to the Appellant, prior to any conduct of review of the status of her fixed term temporary employment as required under Directive 09/20[23] and QH-POL-119,[24] she would have been advised of (amongst other matters):
  • the date by which the decision must be made;
  • 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
  • that a conversion decision under section 149B may be appealed, and the timeframe for appeal.
  1. [53]
    No such information was provided to her by the Respondent.
  1. [54]
    The Respondent's failure to provide the required information in writing to the Appellant meant that she was not aware that a deemed decision could be given or when – and what her appeal rights were.  That is a very serious omission.
  1. [55]
    Notwithstanding management's reply that they were "consulting with the appropriate resources", the Appellant was fobbed off for five months.  Despite the Appellant's "repeated requests, there has been a persistent delay in providing a clear answer."[25]  Having exhausted all internal avenues, the Appellant concluded that:

To-date, no progress has been made, and 2 of the remaining 4 HP5s have their contracts expiring in 2023 after serving in temporary research roles for (over) 2 years at MNHHS.  Thus, we have exhausted all internal lines of enquiry, gained no direct answers or pathways, and urgently require this issue to be resolved.[26]

  1. [56]
    I find that the delay in the Appellant filing this appeal was a direct result of the Respondent's conduct. 
  1. [57]
    With respect to the Respondent's obligations as a Model Litigant, I am frankly surprised that it has pressed a jurisdictional objection to the Commission hearing this appeal.  It is clear that the Respondent's failure to provide the mandatory notice to the Appellant was the very reason she was unaware of her rights to appeal - and filed 'out of time'.

Prejudice to the Appellant

  1. [58]
    The obvious prejudice is that the Appellant would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment.

Prejudice to the Respondent

  1. [59]
    Delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[27] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[28]
  1. [60]
    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. [61]
    The Appellant's prospects of success at a substantive hearing are a further relevant consideration.[29] 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.[30]

  1. [62]
    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. [63]
    In light of the reasoning above, I will consider this appeal out of time.

What decisions can the Commission make?

  1. [64]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Appeal principles

  1. [65]
    Sections 562B(2) and 562B(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. [66]
    The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[31] 
  1. [67]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. 
  1. [68]
    The issue for my determination is whether the decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[32]

Relevant provisions of the PS Act 2008 (now repealed) and Directive 09/20 (now repealed)

  1. [69]
    Section 148 of the PS Act 2008 stated:

148  Employment of fixed term temporary employees

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

Examples of absences for a known period –

approved leave (including parental leave), a secondment

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

Examples—

employment for a set period as part of a training program or placement program

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

Examples—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (d)
    to fill a short-term vacancy before a person is appointed on tenure;
  1. (e)
    to perform work necessary to meet an unexpected short-term increase in workload.

Example—

an unexpected increase in workload for disaster management and recovery

  1. (3)
    Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

…

  1. [70]
    Section 149A of the PS Act 2008 provided (emphasis added):
  1. (2)
    The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-
  1. (a)
    the department's chief executive considers-
  1. (i)
    there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
  1. (ii)
    the person is eligible for appointment having regard to the merit principle; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (3)
    If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
  1. [71]
    Section 149B of the PS Act 2008 provided:
  1. (1)
    This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.

…

  1. (5)
    In making the decision-
  1. (a)
    section 149A(2) and (3) applies to the department's chief executive; and
  1. (b)
    the department's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.
  1. [72]
    Section 3 of the PS Act 2008 stated:

   3 Main purposes of Act and their achievement

 The main purposes of this Act are to —

 …

    (b) promote the effectiveness and efficiency of government entities; and

 …

  1. (d)
    provide for the rights and obligations of public service employees; and
  2. (e)
    promote equality of employment opportunity in the public service and in other particular agencies in the public sector.

 …

  1. [73]
    The Directive 09/20 provided:

8.  Decision on review of status

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

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

•  the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act

•  whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and

•  the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

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

  1. [74]
    The purpose of Directive 09/20 was:
  1. Purpose

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

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

  1. [75]
    Further, Directive 09/20 relevantly provided:

4.   Principles

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

…

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

Relevant provisions of the PS Act 2022 and Directive 02/23 Review of non-permanent employment (Directive 02/23)

  1. [76]
    Section 81 of the PS Act 2022 states:

…

  1. (2)
    However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate.
  1. (3)
    Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes—
  1. (a)
    in relation to employment on a temporary basis for a fixed term—
  1. (i)
    ill a temporary vacancy arising because a person is absent for a known period; or

Examples of absence for a known period—

approved leave (including parental leave), a secondment

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

Example—

employment for a set period as part of a training program or placement program

  1. (iii)
    to fill a position for which funding is unlikely or unknown; or

Example—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

  1. (iv)
    to fill a short-term vacancy before a person is employed on a permanent basis; or
  1. (v)
    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. (4)
    Without limiting subsection (3)(a), employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

  1. (5)
    Without limiting subsection (3)(b), employment of a person on a permanent basis, or on a temporary basis for a fixed term, may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(b) on a regular or systematic basis.

Example—

an ongoing requirement to fill gaps in various work rosters, on a regular and systematic basis

…

  1. [77]
    Section 4 of the PS Act 2022 states:

4 How main purpose is primarily achieved

 The main purpose of this Act is to be achieved primarily by—

  1. (a)
    ensuring the public sector is responsive to the community it serves by—

 …

  1. (iv)
    taking measures to promote the effectiveness and efficiency of public sector entities; and

  …

  1. (b)
    creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by—
  1. (i)
    providing for the key rights, obligations and employment arrangements of public sector employees; and
  1. (ii)
    maximising employment security and permanency of employment; and
  1. (iii)
    taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
  1. (iv)
    ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
  1. (v)
    ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

…

  1. [78]
    Section 114 of the PS Act 2022 states:

 …

  1. (3)
    The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if—
  1. (a)
    the employee's chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
  1. (ii)
    the employee is suitable to perform the role; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (4)
    If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

…

  1. [79]
    Section 115 of the PS Act 2022 states:

…

  1. (2)
    The employee'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 on a non-permanent basis in the public sector entity; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.
  1. (3)
    In making the decision—
  1. (a)
    section 114(3) and (4) applies to the employee's chief executive; and
  1. (b)
    the employee'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 114 in relation to the employee during the employee's period of continuous employment.

…

  1. (6)
    If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment.

…

  1. (11)
    In this section—

  required period, for making a decision under subsection (1), means—

  1. (a)
    the period stated in an industrial instrument within which the decision must be made; or
  1. (b)
    if paragraph (a) does not apply—28 days after the end of the period mentioned is subsection (2)(a) or (b).
  1. [80]
    Clauses 7, 10, 14 of Directive 02/23 state:
  1. Employer obligation to undertake a review of non-permanent employment

…

  1. 7.5
    When a chief executive starts a review of an employee's employment status under section 115 of the Act, the chief executive must notify the employee.
  1. Meaning of suitable
  1. 10.1
    A public sector employee is to be considered suitable to perform the role where:
  1. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
  1. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
  1. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.'
  1. Deemed decisions
  1. 14.1
    A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis, and to continue to the employee's employment according to the terms of the employee's existing employment.
  1. 14.2
    A written notice is not required to be prepared to support a deemed decision.
  1. 14.3
    However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of: a. the employee's right to make an additional request for employment on a permanent basis under section 116 of the Act, if the deemed decision occurred under section 114(7) or 115(6) of the Act, and
  1. 14.4
    Chief executives are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.
  1. [81]
    The purpose of Directive 02/23 is:
  1. Purpose

1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.

 …

  1. [82]
    Further, Directive 02/23 relevantly provides:

4.   Principles

…

  1. 4.4
    Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.
  1. 4.5
    Under section 81 of the Act, employment of a public sector employee is generally on a permanent basis unless it is not viable or appropriate.
  1. 4.6
    Employment on a permanent basis may not be viable or appropriate if the employment is for any of the reasons provided for at section 81(3) of the Act.

…

  1. 4.7
    Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
  1. 4.8
    In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

  …

  1. [83]
    Directive 09/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[33]
  1. [84]
    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.

Submissions

  1. [85]
    In accordance with the Directions Order issued, the parties filed written submissions.
  1. [86]
    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. [87]
    I have carefully considered all submissions and provided materials.
  1. [88]
    The Appellant submitted that her employment should be converted to permanent because:
  • She has been employed on fixed-term temporary contracts for more than 2 years now.[34]
  • It is compatible with the purpose of the PS Act.
  • Permanent employment is the default basis of employment in the Queensland public sector.
  • Public sector entities have a duty to promote equity and diversity in relation to employment matters.
  • The continuing need for the Appellant to be employed in the Senior Research Fellow role is demonstrated by various strategic plans and documents.
  • The continuing need for the Appellant to be employed in the role is demonstrated by the ongoing requirement for the functions of her role to be performed.
  • The continuing need for the Appellant to be employed in the role is demonstrated by "ongoing funding" and "annual renewals" of her temporary contracts.
  • There is a continuing need for the Appellant to be employed in a role substantially the same.
  • It is viable and appropriate to convert the Appellant to permanent employment, having regard to the genuine operational requirements of MNHHS.
  • The duration of the Appellant's fixed-term temporary contracts does not mean permanent employment is not viable or appropriate.
  • She did not reduce to part time employment at all - due to an alleged lack of funding or project wind down or otherwise.
  • Project funding and budget matters raised by the Respondent do not prevent the Appellant's conversion to permanent employment.
  • It would support the "efficient, effective and sustainable management" of the HHS.
  1. [89]
    The Respondent submitted the Appellant's employment should not be converted to permanent because:
  • There is no continuing need for the Appellant's current role, as at the Project end date.
  • There is no continuing need for the Appellant to perform a role that is substantially the same.
  • Conversion to permanency is not viable or appropriate, as the Project is being wound down.
  • The Appellant was employed for the purpose of completing a particular project, with a known end date.
  • The "Project funding is not expected to be renewed"[35] and "the total funding for the Project was reallocated until the end of the financial year in 2023. 
  • The "seed-funded" Project was not able to "self-fund through grants," as was the "original intention."
  • The Appellant's conversion to permanent would result in a labour expenditure budget overspend.
  • The Respondent is required to ensure the "efficient, effective and sustainable management" of the HHS.

Employment history

  1. [90]
    The Appellant's employment history is summarised below:

Title

Status

Classification

Reason for contract

Start date

End date

Senior

Research Fellow

Full time

Biofabrication for Urology

HP5 (02)

Initial hire for program

16/11/2020

15/5/2021

6 months

Senior

Research Fellow

Full time

Biofabrication for Urology

HP5 (02)

Completing research allocated within the Program and reduced FTE working on a workplace diversity project with the CE Office (not related to HBI)

16/5/2021

17/11/2023

2 years, 6 months, 2 day

  1. [91]
    The Respondent submitted that "The Appellant remains employed with the Health Service as a Senior Research Fellow on a temporary full-time basis (76 hours per fortnight)."[36]

Consideration

  1. [92]
    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.

Eligibility for review

  1. [93]
    The Appellant was eligible for the review of her employment status after two years' of continuous employment on a fixed-term temporary basis.
  1. [94]
    It is not disputed that the Appellant was eligible for review on 16 November 2022.

Decision criteria

  1. [95]
    Section 114(3) of the PS Act 2022 contains the mandatory decision criteria for temporary employment conversions to permanent, where the chief executive considers:
  • there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
  • the employee is suitable to perform the role; and
  • any requirements of an industrial instrument are complied with in relation to the decision.[37]
  1. [96]
    Section 114(4) of the PS Act 2022 states (emphasis added):

If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.[38]

  1. [97]
    Section 115(3)(b) of the PS Act 2022 provides that:

  In making the decision –

  …

The employee'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 114 in relation to the employee during the employee's period of continuous employment.[39]

Is there 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?

  1. [98]
    There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [99]
    The Appellant submitted that the continuing need for her to be employed in the Senior Research Fellow role is demonstrated by various strategic plans and documents. 
  1. [100]
    The Appellant asserted that MNHHS is committed to conducting research that improves patient outcomes and promotes health equity, as outlined in the MNHHS Research Strategy 2023 – 2027.  That document states that MNHHS will: "retain, train and attract a world class research active workforce"; "embed integrated research career pathways across Metro North that promote professional development and career-progression, enabling us to retain and leverage the expertise of a highly skilled research workforce"; "Recruitment and retention strategies that recognise the valuable contributions this workforce makes to clinical care and research must be integrated within professional workforce development structures"; and "Establishing integrated career pathways for this highly skilled workforce will address systemic inequalities regarding professional development and career progression."[40] 
  1. [101]
    In addition, the Appellant noted that MNHHS's own long-term strategic plan (MN32 #Nextcare) includes research, innovation and knowledge translation as a key pillar with 2032 targets including: integrated research institutes; embedded academics in all clinical services; and 3000 research journal articles published per year.[41]  Similar needs for ongoing research across Queensland Health and MNHHS are expressed in various other strategic plans and documents.[42] 
  1. [102]
    The Respondent's submissions have not refuted the importance of research to the long-term strategy of Metro North Health.
  1. [103]
    Over the past two and a half years, the Appellant stated that she has contributed to MNHHS's research activities including: securing research funding; designing and conducting studies; supervising students; disseminating research findings through peer-reviewed publications and presentations.  The Appellant argued that there is a continuing need for her to be employed in the role because there is a continuing need for those functions to be performed. 
  1. [104]
    The Appellant submitted that research has focused on improving patient outcomes and has already enhanced patient care through the provision of patient-matched anatomic models (ARTG listed) and PET/MRI fusion.[43]  Further, that the Appellant stated that:

I led the structuring and application of a medical device implementation pathway at HBI including the ARTG listing for patient matched anatomic models, the pathway for custom device production, and the technical file documentation structure that is used to bring more medical devices to the market from MNH.  I have also supervised 30 students and am chair of SA Additive Manufacturing committee (ISO/TC 261).[44]

  1. [105]
    Conversely, the Respondent's position was that (my emphasis) "Although the Appellant's role was extended for approximately two and a half years, within the funded period, this was at a reduced FTE (by way of mutual agreement) as a result of a reduction in the volume of work required for the Project."[45] 
  1. [106]
    The Respondent elaborated that the Appellant's conversion to permanency is not viable or appropriate:

… having regard to the genuine operational requirements of the Health Service. The Appellant’s role of a Senior Research Fellow Urology is part of a Project that is in the process of being wound down, which is demonstrated by the reduction of work available and reduced FTE.  At the conclusion of the Project there will no longer be a continuing need for the Appellant to be engaged in the role."[46]

  1. [107]
    However, the Appellant refuted the Respondent's contention.  The Appellant explained that:

The Biofabrication project in no way has had a reduction in the work available, to the contrary, there is more work than can be completed by the dwindling man-hour capacity.  The dwindling man-hour capacity of the Biofabrication project is in large part a result of my temporary contract because I am told there is a policy that a researcher cannot recruit new students for student projects that have a duration longer than their contract date.  At the end of 2022 when I had a lower 0.5 FTE on the Biofabrication project, I was supervising more than double the students I am now where I am 0.8 FTE on the Biofabrication project.  Please note that the choice to be Project Lead of the gender diversity project alongside my senior research fellow role was made consciously with the Surgical Lead of my Biofabrication project, to enable personal career development because it enabled me to lead a project from the executive branch that had reach across the health service and in no way represents a reduction in the project work available.  A permanent position would greatly enable me to do my research job especially in terms of grant and student attraction which are vital for research progression.[47]

  1. [108]
    The Appellant further submitted that the "ongoing funding for our contract renewals"[48] of her fixed-term temporary contract over the last two and a half years demonstrated the continuing need for her to be employed in the role, indicative of its ongoing value to the research activities of MNHHS.
  1. [109]
    The Respondent denied that there were any extensions provided to the funding for the role since the Appellant was initially appointed.[49]  Though, under the Respondent's own submission, the Appellant commenced with the HHS in November 2020 even though "… funding for the Project was reallocated until the end of the financial year in 2023."[50]  However, the Appellant’s current contract has an expiry date of 17 November 2023 – not 30 June 2023.  So it appears that MNHHS must have got the money from somewhere after all.  Still later in its submission, the Respondent then stated that "The Project was funded for a specific duration with an end date being the financial year in 2024 …"[51]  Given the Respondent had submitted that project funding was given for a definite period, that all appears to be most contradictory. 
  1. [110]
    As the project is funded until mid-2024,[52] it is clear that the role is continuing until that time at least.  That then raises the question of why the Appellant's fixed-term temporary contract had an end date of 17 November 2023, rather than 30 June 2024, if that is indeed the case.
  1. [111]
    A further curiosity is that although the Appellant was recruited in November 2020 (after the budget variation for the project was approved), she was only placed on a six-month temporary contract at that time.  I note also that the expiry date of the Appellant’s current full-time temporary contract - 17 November 2023 – does not align with either of the two project end dates nominated by the Respondent in its submission (30 June 2023 or 30 June 2024).  That is difficult to reconcile then with the Respondent’s submission that the Appellant was employed for the purpose of completing a particular project with a known end date.
  1. [112]
    The Respondent submitted that there was "no continuing need for the Appellant's current role as the Project had limited funding and a specific end date which has not changed since the position was established … the Project in itself is not ongoing in nature."[53]  For the reasons explained at paragraphs [109] – [111] above, that cannot be true. 
  1. [113]
    In addition, the Respondent also stated that "… funding was not expected to be renewed … when the Appellant commenced the role."[54]  That does not evince a definitive position that either the project has a known end date - or that funding is unlikely. 
  1. [114]
    I note that the Appellant's fixed-term temporary employment has been extended and that she has been continuously employed for a period of about two and a half years at the time of filing this appeal. As I found in Benson v State of Queensland (Department of Education),[55] although employment for any of the purposes outlined in the PS Act[56] may have constituted a reason for the Respondent to initially employ an employee on a non-permanent basis, after more than two and a half years of meritoriously undertaking Senior Research Fellow roles, I do not consider it reasonable for the Respondent to rely on that indefinitely.
  1. [115]
    For those reasons, it appears most likely that there will be a continuing need for the Respondent to engage the Appellant in her current role.  The real objection to doing so appears to be the matter of how that can be provided for, within budget and funding parameters.

Pathway 2: Is there a continuing need for someone to be employed in a role that is substantially the same as the person's role?

  1. [116]
    The Appellant submitted there is also a continuing need for her to be employed in a role that is substantially the same.  She asserted that:

The skills used by the appellants are highly specialised yet transferable for research positions in a health service at a HP5 level or higher, and are not limited to the specific project each appellant was initially hired to lead.  Therefore, the appellants would be suitable for filling substantially similar roles, which we note are advertised externally for new recruitment (eg a recently externally advertised position – Manager – Research (Clinical Skills Development Service), level HP5.[57] 

…

The Appellants are disappointed that the Respondent does not value broader application of their skills developed over substantial academic and industry careers as well as their time with the health service.  All appellants hold PhDs that evidence expertise in research, and are also accomplished project managers (evidenced by their leadership of the multi-million dollar projects at HBI), are skilled in the submission and upholding of ethically responsible studies within the health system, are capable team-builders evidenced by numerous internal and external collaborations among other transferable skills.[58]

…

One appellant (Murray) is currently working in her Senior Research Fellow role as well as the Project Lead for a gender equity project that has worked directly with the Chief Executive, the Chief of People and Culture and the Deputy Chief Medical Officer.  This role has utilised the broader application of her skills including project management, data analysis, communication, and strategic planning.  The Appellant has received positive feedback from working group members including the Chief Executive for her contributions in the role demonstrating clearly that the Appellant has transferable skills that can deliver positive contribution in roles across the health system even including those roles which are beyond ‘substantially equivalent’. 

Examples of similar HP5 roles in Metro North include: two permanent HP5 positions held by colleagues in HBI (Research Coordinator and Advanced Biomedical Engineer), most large departments within the RBWH have Research Coordinators / Managers, the Metro North Office of Research team, Rehabilitation Engineering Centre (eg Advanced Rehabilitation Engineer).  These are all examples of similar roles within the health service where the Appellants would be qualified and experienced to contribute at the conclusion of their specific projects.

Furthermore, since 2018, the Herston Biofabrication Institute has initiated multiple new projects, and programs which has resulted in the recruitment of the appellants over several years.  Since there has been no mention that Metro North Health plans to close HBI at the conclusion of the last appellant's contract, it is feasible that new roles within HBI will continue to occur in which the Appellants could be suitable candidates.[59]

  1. [117]
    The Respondent stated it had:

… considered similar roles with substantially the same capability requirements that the Appellant held, however determined there was not a continuing need for the Appellant to perform a role that is substantially the same based on the highly specialised and unique engineering skills that the Appellant possessed.  The Appellant was engaged specifically for the Project which is a unique role and encompassed a particular skill set and there were no other substantially the same roles to convert the Appellant to within the Health Service.[60]

  1. [118]
    In Power v State of Queensland (Department of State Developments, Tourism and Innovation),[61] Industrial Commissioner Dwyer concluded the following:

   [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.

   [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.

  1. [119]
    In Benson v State of Queensland (Department of Education),[62] I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.[63] In this matter I similarly find the Respondent's failure to adequately address this limb itself contributed to its deemed decision not being fair or reasonable.
  1. [120]
    I take into consideration the Respondent's submissions in which it stated that although some consideration occurred, it did not return any results. In light of the circumstances, I am not satisfied with that response. At the very least, the Respondent should have expanded on other similar roles that were considered and why those particular roles were rejected - especially where the Appellant has made submissions about roles she alleged are similar within MNHHS.
  1. [121]
    It is relevant that s 114(3) of the PS Act 2022[64] requires consideration of the employee's current role, or a role that is substantially the same. The Respondent has stopped short of adequately demonstrating its consideration of the entirety of the mandatory criteria. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.
  1. [122]
    The fact of this case is that the decision-maker did not define a role that is substantially the same in its submissions. The duty to do so must properly be discharged. 
  1. [123]
    In addition to neglecting the key issue of defining a role that is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [124]
    I have found that there is a continuing need for the Appellant to be employed in her current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb.

Genuine operational requirements

  1. [125]
    The PS Act 2022 provides that when the other criteria are met, the chief executive must decide to offer to convert an employee to permanent "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity."[65]
  1. [126]
    'Operational requirements' are not defined in the PS Act 2022, 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.[66]
  1. [127]
    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,[67] 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".[68]

  1. [128]
    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. [129]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).[69] His Honour's explanation is also useful here (emphasis added):

[37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive.  As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.  The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38] The adjective 'genuine' relevantly means '…being truly such; real; authentic.'  The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.  In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

 …

[40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'

  1. [130]
    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. [131]
    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 the Directive and the review.
  1. [132]
    The PS Act 2022 establishes employment on a permanent basis as the default basis of employment in the Queensland public sector, unless it is not viable or appropriate.[70]
  1. [133]
    Chief executives are required to act in a way that is compatible with the main purpose of the PS Act 2022, including providing for the rights and obligations of public service employees; and promoting equality of employment opportunity in the public service and in other particular agencies in the public sector.[71]
  1. [134]
    Chief executives of departments have a duty to promote equity and diversity in its workforce.[72]  The Appellant identifies as a woman and member of the LGBTQIA+ community.[73]
  1. [135]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's significant commitments to limiting non-permanent employment where possible, given the above.
  1. [136]
    Section 81(3) of the PS Act 2022 indicates employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for "any of the following purposes":

…

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

Example –

employment for a set period as part of a training program or placement program

  1. (iii)
    to fill a position for which funding is unlikely or unknown; or

Example –

employment relating to performing work for which funding is subject to change or is not expected to be renewed

…

  1. [137]
    Section 81(3) of the PS Act 2022 does not prescribe that because an employee is performing work for a purpose stated at paragraph [136] that the employee should therefore be employed on a non-permanent basis.  Rather, s 81(3) contemplates a range of purposes which may indicate that employment of a person on a permanent basis may not be viable or appropriate. A reasonable decision-maker ought to first identify whether or not 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. [138]
    The Respondent submitted the Appellant's employment should not be converted to permanent because she was employed for the purpose of completing a particular project, with a known end date.  It stated that the Project "commenced with the recruitment of the HP5 Senior Research Fellow role in November 2020 and the total funding for the Project was reallocated until the end of the financial year in 2023."[74]
  1. [139]
    Further, the Respondent submitted that funding for the Project is not expected to be renewed, beyond the end of the financial year in 2024.[75]  It stated that "The Project end date aligns with the funding end date being a period of five years and funding was not expected to be renewed in accordance with sections 148(2)(b) and (c) of the PS Act when the Appellant commenced in the role."[76]
  1. [140]
    The Respondent asserted that there is no funding source available to convert the Appellant to permanency and MNHHS is currently in a deficit position.  The Respondent stated that the "seed-funded" Project was not able to "self-fund through grants," as was the "original intention."  It submitted that:

… the Project was seed funded in order to undertake experimental research that would generate revenue and grants for more research opportunities.  The Project did not achieve its desired effect, specifically there had been a reduction in research activity and the Project did not generate momentum to self-fund through grants, as was the Project's original intention.[77] 

…

… the Appellant's current role can be distinguished from other research roles as the Project is one of eight HBI Programs that were unique to receive seed funding because other research projects or teams within the Health Service do not receive any seed funding to commence.[78]

  1. [141]
    In reply, the Appellant noted that "As Senior Research Fellows with significant experience applying for grants, we assert that grant funding rarely covers the salary of recipients and suggest that this issue is separate to the appeal for temporary-to-permanent conversion."[79]  I agree with the Appellant's assessment.  The permanent employment of public sector workers is not conditional on one's ability to self-fund their role.  The Respondent's assertion that presents a barrier to the Appellant's conversion to permanency is neither fair and reasonable nor consistent with the mandatory decision criteria under the PS Act 2022.
  1. [142]
    The Respondent concluded that "There has been limited grant funding generated to assist self-sustaining of these Projects."[80]  In such circumstances, the Respondent stated that it is not viable or appropriate to convert the Appellant's employment to permanent, as it would "result in actual costs being higher than budgeted costs, resulting in a labour expenditure budget overspend ..."[81]
  1. [143]
    The Respondent noted its obligation to ensure the "efficient, effective and sustainable management"[82] of the HHS.  The Respondent submitted that the conversion of the Appellant's employment to permanent "… would affect the efficient, effective and sustainable management of the Health Service because such consideration would apply for four separate positions under a program of work that has defined funding."[83]
  1. [144]
    The Appellant refuted the Respondent's claim that the efficient, effective and sustainable management of the MNHHS would be negatively impacted by her conversion to permanent employment.  Rather, she argued that given the ongoing need for research, it is critical to ensure the continuity and stability of research roles such as this through conversion to permanency:

It is known that establishment of career pathways for clinical researchers is a challenge that has led to systemic inequalities that need to be addressed (MN Health Research Strategy).  Further, conversion to permanent employment will enable the appellants to do their jobs more effectively…[84]

  1. [145]
    As the continuing need for the research role (or one substantially the same) has been established, it follows that there must also be a corresponding provision for that to occur.  The Appellant stated that:

… the decision to terminate each Appellant's employment at the conclusion of their project, after training a person over 3-5 years within the health system, could itself be seen as an irresponsible use of public funding, when the researcher's health service specific experience could be redirected into another project and/or department within the health system.  As noted previously, MNH has recently been recruiting substantially similar positions which were advertised externally.[85]

  1. [146]
    I find the Appellant's analysis of how the purpose of the PS Act 2022 ought be achieved most persuasive.  It is not disputed that the Respondent should be taking measures to promote the effectiveness and efficiency of public sector entities, and to ensure public resources are managed efficiently and their use is accountable.
  1. [147]
    However, it does not follow that those obligations are best met by failing to retain experienced, skilled and suitable staff.  Neither do the Respondent's arguments give appropriate weight to the management and employment principles and purpose of the PS Act.
  1. [148]
    In my view, it is not fair and reasonable for the Respondent to cherry-pick which of its obligations under the PS Act, Directive and QH-POL-119 it will mind for the purposes of cost cutting - whilst brushing aside its equal responsibilities to safeguard the rights of employees, such as the Appellant.
  1. [149]
    The Appellant submitted that a pathway has been described by the Director-General of Queensland Health, Mr Shaun Drummond, for researchers to be converted as a permanent research role inside the health service rather than against a particular project. 
  1. [150]
    However, the Respondent asserted that Mr Drummond's commentary on research role conversion pertained to circumstances where funding has been ongoing and renewed year after year, arguing that was not so in the Appellant's case as the funding for a particular project has a defined end date.
  1. [151]
    The Appellant stated that Mr Drummond outlined a mechanism for managing a central pool of individuals converted to permanent appointments, allowing for suitability assessments and transfer against available permanent roles.  Conversion to permanent is emphasised in quotes from her such as:

I would like to confirm again, if you are in a research role and it is an annual renewal of your temporary contract, you are absolutely entitled to be permanent.  And I think there's a real misunderstanding, particularly in this research space, because it's temporary funding, but where that funding has been ongoing and renewed year after year after year.  We should be fulfilling our obligations to you and converting you to permanent.  You can't be converted permanent against that project, but it can be converted as a permanent research role inside the health service.[86] 

  1. [152]
    The Appellant asserted that supports the conversion of research roles to permanent, in circumstances where there is temporary funding but that has been ongoing and renewed year after year.
  1. [153]
    I find the comments attributed to Mr Shaun Drummond to be apposite in this case.
  1. [154]
    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 Respondent in this instance would be any different than those posed to most departments in which employees are so converted.
  1. [155]
    Considering the length of the Appellant's continuous temporary engagements, there is clearly a constant need for an additional employee. In a situation where the need is constant and substantial, I do not accept that permanent conversion of the Appellant 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 circumstances like the employ of several more non-permanent employees in the future. 
  1. [156]
    Section 81(4) of the PS Act 2022 provides that "employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis." The considerable length of time for which the Appellant has been engaged on fixed-term temporary contracts suggests there is a need for another permanent employee and it would be unreasonable for the Respondent to refute the Appellant's desire to convert to permanency on the basis of budget and funding matters, when she has continuously been paid and utilised in the Senior Research Fellow roles for two and a half years at time of filing this appeal.
  1. [157]
    The issue is not whether it was appropriate to initially employ the Appellant on a fixed-term temporary basis - but whether it is fair and reasonable to continue to do so. Although the nature of project work can be less predictable, in light of both her continuous engagement and the expansion of application of her skills and experience within the department, I cannot accept that the funding and budget matters raised by the Respondent are at all sufficient to prevent her conversion to permanent employment.
  1. [158]
    I have concluded that the Appellant's role is continuing - and the continual pattern of engaging the Appellant for two and a half years illustrates how the Respondent relies upon the work performed by the Appellant on an ongoing basis. A continuous pattern of fixed-term temporary contracts indicates to me that the Appellant is engaged on a frequent or regular basis.
  1. [159]
    I am satisfied the Appellant has been employed for a purpose mentioned in s 81(3) of the PS Act 2022 on a frequent or regular basis and am satisfied that the Appellant's permanent employment is viable and appropriate. 
  1. [160]
    On the material before me, I have found that there is a continuing role, being the role the Appellant 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 Respondent's consideration of a role that is substantially the same.
  1. [161]
    In arriving at this conclusion, I am conscious that the PS Act 2022 and Directive are purposed with establishing employment on tenure as the default basis of employment in the Queensland public service.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in legislation. Those efforts allow for the achievement of the purpose of the Directive.
  1. [162]
    For all the reasons outlined above, I find it was not reasonably open to the decision-maker to determine that the operational requirements submitted did justify a conversion refusal.  I therefore conclude that the decision was not fair and reasonable in the circumstances.

Merit and suitability

  1. [163]
    The Respondent confirmed that the Appellant met the merit principle.[87] There is no dispute that the Appellant is suitable to perform the role.

Any requirements of an industrial instrument

  1. [164]
    The Appellant submitted there are requirements of an industrial instrument that ought to have been complied with in relation to the deemed decision.
  1. [165]
    The Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 (HPDO3) states that:

The parties are committed to maximising permanent employment opportunities for long term temporary employees.  The parties agree to implement the conversion of temporary employees consistent with legislative provisions and whole-of-government policy …[88]

…

… that permanent employment is the preferred type of engagement …[89]

…

… job security for employees assists in ensuring workforce stability, cohesion and motivation and hence is central to achieving the objectives of this Agreement HPDO …[90]

  1. [166]
    Further, the Appellant asserted that she has been employed on consecutive contracts of short duration, notwithstanding the funding duration of the project she was initially employed to undertake is longer.  However, HPDO3 states that:

Where employees are engaged on a temporary basis, contracts of employment should reflect the actual duration of the engagement …[91]

  1. [167]
    For these reasons, the industrial instrument provisions are of assistance to the Appellant's claim for her employment status to be converted to permanent.

Reasons for each decision previously made

  1. [168]
    Section 115(3) of the PS Act 2022 requires the decision-maker to have regard to the reasons for each decision previously made, or taken to have been made, in relation to the employee during the employee's period of continuous employment.
  1. [169]
    I have earlier noted that the previous decision to refuse to convert the Appellant to permanent employment was a 'deemed' decision.  As such, no written reasons were provided to the Appellant at the time.
  1. [170]
    However, in the chronology provided in the Appellant's submissions, she recounted that management had advised verbally that her conversion to permanent employment was:

… unlikely due a lack of financial resources and prioritisation of clinical activities rather than research …[92]

and that:

… MNH are still looking into it, budgets are tight, and the temp-to-perm pathway typically only applies to clinical staff …[93]

  1. [171]
    In its submissions, the Respondent confirmed that:

… The Project was funded for a specific duration with an end date being the financial year in 2024 and the funding was not expected to be renewed …

…

The Appellant was informed that conversion would be unlikely as there was no funding available …

…

… research roles are entitled to be converted to a permanent basis in accordance with the PS Act.  However … there is distinction between Mr Shaun Drummond's advice where funding has been ongoing and renewed year after year and funding for a particular project with a defined project and funding end date, which falls under the Appellant's circumstances.[94]

  1. [172]
    The Respondent's earlier representations to the Appellant that her conversion to permanency was refused because of the "prioritisation of clinical activities rather than research" and "the temp-to-perm pathway typically only applies to clinical staff" were not correct.  The remaining matters of "funding" and "project end date" have been considered and rejected, for the reasons I have explained above. 

Conclusion

  1. [173]
    I find the deemed decision to maintain the Appellant on a fixed-term temporary basis was not fair and reasonable.
  1. [174]
    The process was not conducted in accordance with either the PS Act, Directive or QH-POL-119.  The Appellant was not provided with a notice "in writing" at the commencement of the review.
  1. [175]
    I have found that there is a continuing need for someone to be employed in the Appellant's role.  In the alternative, I have also found there is a continuing need for the Appellant to be employed in a role that is substantially the same.
  1. [176]
    The Respondent has not disputed that the Appellant is eligible for appointment having regard to the merit principle. 
  1. [177]
    Relevant provisions of the industrial instrument pertaining to the Appellant's employment also supports her claim for permanent employment in such circumstances.
  1. [178]
    The Respondent has not evidenced any genuine operational requirement that reasonably prevents conversion of the Appellant to permanent employment.
  1. [179]
    I order accordingly.

Order:

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

  1. The appeal is allowed;
  1. The decision that the Appellant not have her employment converted to permanent is set aside and another decision is substituted; and
  1. The Appellant's employment status be converted to full time, permanent employment.

Footnotes

[1] Appeal Notice filed 14 April 2023, 4.

[2] Public Service Act 2008 (Qld) s 149B(4)(a).

[3] Ibid s 149B(4)(b); Respondent’s submissions filed 8 May 2023, [3], [16].

[4] Directive 09/20 Fixed term temporary employment cl 8.5.

[5] I note this act has since been repealed and replaced with the Public Sector Act 2022 (Qld).

[6] Directive 09/20 Fixed term temporary employment has since been superseded by Directive 02/23 Review of non-permanent employment.

[7] Respondent’s submissions filed 8 May 2023, 1 [2]-[4].

[8] Directive 09/20 Fixed term temporary employment cl 10.

[9] Appellant’s submissions filed 26 April 2023, 2.

[10] Respondent’s submissions filed 8 May 2023, 5 [29].

[11] Appellant’s submissions filed 26 April 2023, 2.

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

[13] I note this act has since been repealed and replaced with the Public Sector Act 2022 (Qld).

[14] Public Service Act 2008 (Qld) s 194(1)(e).

[15] Ibid s 149B(7).

[16] Directive 09/20 Fixed term temporary employment cl 9.

[17] The Respondent’s submissions make reference to "the application for reinstatement" and "determining disciplinary findings made by the delegate" at paragraphs [5] and [30].  Those are clearly errors.

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

[19] 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.

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

[21] (1995) 149 QGIG 777.

[22] Appeal Notice filed 14 April 2023, 3.

[23] Directive 09/20 Fixed term temporary employment cl 10.

[24] Queensland Health Policy Conversion of Temporary Employees to Permanent Status B52 cl 1.2.

[25] Appeal Notice filed 14 April 2023, 3.

[26] Appeal Notice filed 14 April 2023, 8.

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

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

[29] 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.

[30] [2010] ICQ 35 [6].

[31] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) ss 562B(2), 567(1).

[32] 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(3).

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

[34] Appeal Notice filed 14 April 2023, 4.

[35] Respondent’s submissions filed 8 May 2023, 4, [27].

[36] Ibid 2.

[37] Public Service Act 2008 (Qld) s 149A(2).

[38] This is very similar to Public Service Act 2008 (Qld) s 149A(3).

[39] Public Service Act 2008 (Qld) s 149B(5)(b). 

[40] Appellant’s submissions filed 26 April 2023, 4.

[41] Ibid 3.

[42] Including My health, Queensland’s future: Advancing health 2026, Metro North Health Strategic Plan 2020 - 2024, MN Health Service Strategy 2021 - 2026, and Queensland Advancing Health Research 2026; Appellant’s submissions filed 26 April 2023, 4.

[43] Appeal Notice filed 14 April 2023, 5.

[44] Appellant’s submissions filed 25 April 2023, 1.

[45] Respondent’s submissions filed 8 May 2023, 4.

[46] Ibid 4.

[47] Appellant’s reply submissions filed 15 May 2023, 1.

[48] Appeal Notice filed 14 April 2023, 4.

[49] Respondent’s submissions filed 8 May 2023, 4

[50] Ibid 3.

[51] Ibid 5.

[52] Or until the end of the financial year in 2023 – whichever of those two dates nominated by the Respondent is correct.

[53] Respondent’s submissions filed 8 May 2023, 4.

[54] Ibid 3.

[55] [2021] QIRC 152, 25 [120].

[56] As currently reflected in the Public Sector Act 2022 (Qld) s 81(3).

[57] Appellant’s submissions filed 26 April 2023, 3.

[58] Appellant’s reply submissions filed 15 May 2023, 2.

[59] Ibid 2-3.

[60] Respondent’s submissions filed 8 May 2023, 4.

[61] [2021] QIRC 53.

[62] [2021] QIRC 152.

[63] Ibid [136].

[64] Similar to the Public Service Act 2008 (Qld) s 149A(2).

[65] Public Sector Act 2022 (Qld) ss 114(4), 115(3)(a).

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

[67] IW v City of Perth (1997) 191 CLR 1.

[68] Ibid 12.

[69] [2020] QIRC 203.

[70] Public Sector Act 2022 (Qld) s 81.

[71] Appellant’s submissions filed 26 April 2023, 2.

[72] Public Sector Act 2022 (Qld) s 27; Public Service Act 2008 (Qld) s 25.

[73] Appellant’s submission filed 26 April 2023, 3.

[74] Respondent’s submissions filed 8 May 2023, 3.

[75] Ibid 5.

[76] Ibid 3.

[77] Ibid 4.

[78] Ibid.

[79] Appellant’s reply submissions filed 15 May 2023, 3.

[80] Respondent’s submissions filed 8 May 2023, 4.

[81] Ibid.

[82] Respondent’s submissions filed 8 May 2023, 4.

[83] Ibid 4-5.

[84] Appellant’s submissions filed 26 April 2023, 4.

[85] Appellant’s reply submissions filed 15 May 2023, 3.

[86] Appeal Notice filed 14 April 2023, 6; Appellant’s submissions filed 26 April 2023, 5.

[87] Respondent’s submissions filed 8 May 2023, 3.

[88] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 96.1.

[89] Ibid cl 95.1.

[90] Ibid cl 94.2.

[91] Ibid cl 95.2.

[92] Appellant’s submissions filed 26 April 2023, 5.

[93] Ibid.

[94] Respondent’s submissions filed 8 May 2023, 5.

Close

Editorial Notes

  • Published Case Name:

    Murray v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Murray v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 194

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    29 Jun 2023

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
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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
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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
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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
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Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Goodall v State of Queensland [2018] QSC 319
2 citations
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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
3 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Cite 3 - (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
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
2 citations
Jump To
Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260

Cases Citing

Case NameFull CitationFrequency
Gomez v State of Queensland (Department of Agriculture and Fisheries) [2024] QIRC 1903 citations
1

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