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  4. Edwards v State of Queensland (Queensland Ambulance Service) - [2023] QIRC 247

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Edwards v State of Queensland (Queensland Ambulance Service)[2023] QIRC 247

Edwards v State of Queensland (Queensland Ambulance Service)[2023] QIRC 247

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Edwards v State of Queensland (Queensland Ambulance Service) [2023] QIRC 247

PARTIES:

Edwards, Olivia Rose

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2023/111

PROCEEDING:

Public Service Appeal – Appeal against a conversion decision

DELIVERED ON:

28 August 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

OUTCOME:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a conversion decision – where the appellant has been employed on a non-permanent basis as an Advanced Care Paramedic within the Gold Coast region for at least two years –  where the appellant requested a review of her non-permanent – where the appellant rejected an offer of permanent employment at an alternate location – decision made by the respondent that the appellant would remain as a non-permanent employment – consideration of the respondent’s genuine operational requirements – decision fair and reasonable – appeal dismissed

LEGISLATION AND

OTHER INSTRUMENTS:

Directive 02/23 Review of non-permanent employment (Directive 02/23) cl 13

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

Public Sector Act 2022 (Qld) ss 81, 112, 113, 114, 115, 129, 131, 133

Reasons for Decision

Introduction

  1. [1]
    Ms Olivia Edwards (‘the Appellant’) was first employed by the State of Queensland (Queensland Ambulance Service) (‘the Respondent’) as an Advanced Care Paramedic on 16 March 2020. Since that time, Ms Edwards has been engaged on both a casual and fixed-term temporary basis across the Gold Coast region.
  1. [2]
    Ms Edwards is not attached to a station but has been engaged in various capacities to fill temporary and short-term absences across stations within the Gold Coast region.
  1. [3]
    At the time of lodging her appeal on 2 June 2023, Ms Edwards was engaged as a temporary full-time paramedic at Mermaid Waters Station in a placement spanning 1 May 2023 until 2 July 2023 for the purpose of relieving the substantive officer who was working elsewhere at the time.
  1. [4]
    Ms Edwards has now commenced a new contract on 3 July 2023 in a temporary full-time capacity to relieve another officer taking on higher duties.
  1. [5]
    Prior to this, Ms Edwards has relieved in varying roles at Mermaid Waters, Southport, Nerang and Pimpama stations.
  1. [6]
    Ms Edwards made her current request for conversion on 10 April 2023 via the Respondent’s online portal facility. By the time that Ms Edwards’ request for a review had been received by the Respondent, Ms Edwards had also been identified by the Respondent as an employee deemed eligible for review through an employer-initiated process. Ms Edwards’ request was therefore joined to the employer review.
  1. [7]
    On 19 May 2023, the Queensland Ambulance Service (‘QAS’) Recruitment emailed Ms Edwards to confirm that her request had been received and was currently under review.
  1. [8]
    The Public Sector Act 2022 (Qld) s 114(2) (‘the PS Act’) requires the employee’s chief executive to decide a request for conversion made under s 113 of the PS Act within 28 days of receiving the request. Section 114(7) of the PS Act provides that where the employee’s chief executive does not make the decision within the required period of 28 days, 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 existing employment arrangements.
  1. [9]
    As Ms Edwards did not receive a decision letter within 28 days of the Respondent receiving her request, a deemed decision was taken to have been made. Ms Edwards therefore appealed a deemed decision by the Respondent not to convert her to permanent employment.
  1. [10]
    During the course of submissions being made by the parties in relation to that appeal, it became clear that a review had been undertaken by QAS but that decision was being withheld pending the outcome of this appeal.
  1. [11]
    Ms Edwards expressed a desire to receive that decision despite the ongoing appeals process.
  1. [12]
    Ms Edwards was provided with a written decision on 10 July 2023. The decision was that it was not possible to convert Mrs Edwards’ employment to permanent in her current location but that it was possible to offer conversion on a permanent basis at an alternate location. Ms Edwards declined the offer of permanency at an alternate location.
  1. [13]
    At a mention of this matter on 27 July 2023, the parties agreed that the decision of 10 July 2023 had overtaken the earlier deemed decision. It was agreed that the practical way forward would be to consider the written decision of 10 July 2023 as the decision under appeal.[1]
  1. [14]
    As the written submissions were in their final stages, I invited the parties to make any further submissions on the basis that there was now a set of written reasons for the decision not to convert Ms Edwards to permanent employment. I also indicated to the parties that I would consider any relevant parts of the submissions previously filed.

Appeal principles

  1. [15]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that a public sector appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [16]
    Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission —

  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  2. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [17]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [18]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [19]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative framework and other instruments

  1. [20]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the PS Act and Directive 02/23 Review of non-permanent employment (Directive 02/23) (‘the Directive’).

The PS Act

  1. [21]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision.
  1. [22]
    Section 129 of the PS Act relevantly provides:

129  Definitions for part

In this part—

conversion decision means a decision—

  1. under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis.
  1. [23]
    Section 115 of the PS Act relevantly states:

115  Chief executive must review status after 2 years of continuous employment

  1. If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee’s chief executive must decide whether to—
  1. continue the employee’s employment according to the terms of the employee’s existing employment; or
  1. offer to convert the employee’s employment to a permanent basis.
  1. The employee’s chief executive must make the decision within the required period after—
  1. the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and
  1. 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. In making the decision—
  1. section 114(3) and (4) applies to the employee’s chief executive; and
  1. 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. If the employee’s chief executive decides not to offer to convert the employee’s employment to a permanent basis, the chief executive must give the employee a notice stating—
  1. the reasons for the decision; and
  1. the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and
  1. how many times the employee’s employment on a non-permanent basis has been extended; and
  1. 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. Subsection (4)(c) does not apply in relation to employment on a casual basis.
  1. 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. For working out how long the employee has been continuously employed in the public sector entity—
  1. all periods of authorised leave are to be included; and
  1. the employee is to be regarded as continuously employed even if there are periods during which the employee is not employed in the entity, if the periods of non-employment in the entity total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
  1. The commissioner must make a directive about the making of a decision under this section.
  1. The directive must provide for—
  1. the matters a chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under subsection (1)(b); and
  1. the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person’s employment under subsection (1)(b).
  1. This section does not limit or otherwise affect section 113.
  1. In this section—

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

  1. the period stated in an industrial instrument within which the decision must be made; or
  1. if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (2)(a) or (b).
  1. [24]
    Deemed decisions are dealt with under s 114 of the PS Act which relevantly provides:

114 Chief executive must make decision on employee’s request

…

  1. employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment.
  1. [25]
    Section 133 of the PS Act explains who may appeal a conversion decision:

133 Who may appeal

The following persons may appeal against the following decisions—

  1. for a conversion decision—the public sector employee the subject of the decision

The Directive

  1. [26]
    While all of the provisions of the Directive have been considered, particular attention is paid to the following clause:

13.  Obligations when a decision is made not to offer to convert an employee’s employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment

13.1 Any notice provided to the employee must comply with section 27B of the Act Interpretation Act 1954 to:

  1. set out the findings on material questions of fact, and
  2. refer to the evidence or other material on which those findings were based.

13.2  Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

13.3  Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee’s employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee’s right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.

The decision

  1. [27]
    On 10 July 2023, Mr David Hill, A/Executive Director, Workforce, wrote to Ms Edwards to provide an outcome of the review of her non-permanent employment.
  1. [28]
    Mr Hill informs Ms Edwards that that there is a continuing need for the role of Advanced Care Paramedic to be undertaken in various locations across Queensland.
  1. [29]
    Mr Hill notes that Ms Edwards meets the suitability requirements for the role per the Directive.
  1. [30]
    Mr Hill states that where there is a continuing need for someone to be employed in the role and where the person is suitable for appointment, QAS is required to offer to convert appointment unless it is not viable or appropriate to do so having regards to the genuine operational requirements of the QAS.
  1. [31]
    Mr Hill informs Ms Edwards that the authorised delegate has determined that it is not currently viable or appropriate to convert Ms Edwards’ employment to a permanent basis in her existing location, but that it is possible to offer conversion on a permanent basis at an alternate location.
  1. [32]
    Mr Hill provides a detailed explanation of the genuine operational requirements QAS relies on in its decision not to convert Ms Edwards’ employment to permanent in her current location on the Gold Coast. In summary, Mr Hill explains:
  • The QAS operational workforce requires 24 hours a day coverage, 7 days per week;
  • Casual and temporary employment arrangements for Advanced Care Paramedics within QAS provide dynamic operational coverage and reduces short-term risks associated with non-filled shifts, particularly in the South-East Corner of Queensland;
  • Coverage is achieved by filling emergent shift vacancies and medium-term deployment responses in higher demand areas with non-permanent employees; and
  • Casual and temporary employees are also able to work across different locations dependent upon operational need.
  1. [33]
    With regard to Ms Edwards’ employment, Mr Hill says:

Whilst you have been continuously employed as a non-permanent employee within SEQ, your engagement to date would accurately be categorised as being utilised for one or more of the following reasons:

  • Filling a temporary/short-term vacancy arising from an absence;
  • Performing work necessary to meet an unexpected short-term increase in workload;
  • Filling gaps in work rosters and other short-term increases in workload where work patterns and demand are both variable and difficult to predict; and
  • Filling a position for which work hours are irregular, informal, flexible, occasional, or non-rostered.
  1. [34]
    Mr Hill says that QAS workforce planning and management practices are designed to ensure that QAS can achieve effective staffing levels through the proper allocation of employees to ensure service obligations are fulfilled in all QAS locations.
  1. [35]
    Mr Hill says that the planning and management practices include ‘incentivising opportunities in rural and remote locations and ensuring permanent employment opportunities within South East Queensland (‘SEQ’) are offered in a fair and equitable manner’. Mr Hill explains that:

The QAS addresses this in part through the employee transfers and remote area incentive arrangements whereby incentives are offered for employees to accept placements in difficult to fill locations with the guarantee of having priority transfer status to the location of their choosing once the service has been completed. This ensures the QAS maintains the ability to move employees around the State to fulfil our service obligations.

  1. [36]
    Mr Hill also addresses the need for QAS to maintain vacant positions within SEQ to enable graduate training opportunities for new Advanced Care Paramedics coming into the system to ensure their clinical readiness as independent practitioners. Mr Hill explains that this ensures new graduates receive adequate supervision and exposure to the varying clinical situations and requirements for the role within the first 6 months that can only be delivered at stations equipped with appropriate staffing levels and clinical workload.
  1. [37]
    Mr Hill goes on to conclude that:

It is on this basis that it is not considered viable or appropriate to offer to convert your employment to a permanent basis within SEQ at your current location. However, there is the capacity for the QAS to offer you employment on a permanent basis at the following locations:

  • Townsville District
  • Central Queensland District
  • Mackay District
  • Metro North District – Twilight Rosters
  • Metro South District – Twilight Rosters

Ms Edwards’ reasons for appeal

  1. [38]
    Ms Edwards filed her further final submissions on 3 August 2023. As these are the most recent submissions and are made following the receipt of the written decision, I will begin my consideration of Ms Edwards’ reasons for appeal by considering those submissions.
  1. [39]
    Ms Edwards notes that she has been offered permanency in other parts of the state but takes issue with several of the reasons given in the decision as to why she will not be converted to permanent employment in the Gold Coast region.
  1. [40]
    With regard to ‘short term increases in workload’, Ms Edwards says that she has been ‘diligently serving on the Gold Coast since March 2020’. Ms Edwards says that her continuous employment since that time is comprised of 11 temporary full-time contracts of employment and cannot be deemed as ‘unexpected and short term’.
  1. [41]
    With regard to the reference in the letter to ‘medium-term deployment’, Ms Edwards says that this raises concerns for her about the unpredictability of future employment and this causes ‘undue stress and instability’.
  1. [42]
    While the decision refers to offering permanent employment opportunities in SEQ in a ‘fair and equitable manner’, Ms Edwards says this is ‘contradictory to the actual process experienced’. Ms Edwards says that positions are not adequately advertised, and she has ‘witnessed colleagues who were employed after me being offered permanency in the Gold Coast Region, while I was not advised of the same opportunities’.
  1. [43]
    Ms Edwards says that if offers of permanency within SEQ region are fair and reasonable, QAS must explain why particular employees have been offered a permanent role on the Gold Coast, without first relocating to another region.
  1. [44]
    Ms Edwards says that she is distressed at the lack of clarity on the criteria to obtain a full-time position on the Gold Coast. Ms Edwards says that if ‘merit is not the basis for selection, then it raises questions about the fairness and transparency of the process’.
  1. [45]
    Ms Edwards submits that the location of the permanent positions offered to her by QAS implies that she may only obtain a permanent position in a region other than the Gold Coast and this means she would be expected to relocate herself and her family.
  1. [46]
    Ms Edwards says that she has communicated her reasons for refusing a permanent position elsewhere in the State and lists in her submissions a range of personal matters meaning relocation would place an unreasonable burden upon her and her family.
  1. [47]
    Ms Edwards submits that the Gold Coast region ‘clearly has an operational need for further staffing’ and that this can be seen in ‘evident increases in overtime messages, single officer responses to jobs, excessive ramping at hospitals, missed meals on the majority of shifts, and overtime carried out on the majority of shifts’.  Ms Edwards attaches a week of ‘overtime messages’ and a record of her individual missed meals, meal overtime, shift overtime and minimal leave she has been allowed to access. Ms Edwards says that these numbers have been consistent since the beginning of her employment with the QAS and have not just been an unexpected short term rise in workload.
  1. [48]
    Ms Edwards says that she has faced significant challenges in obtaining leave whilst working full-time temporary contracts. Ms Edwards says that she has rarely been able to access her leave entitlements since she started with QAS and that a refusal of leave requests and only limited capacity to take leave is ‘disheartening and accentuates the operational demands’. While QAS states in its submissions that she has been paid out for leave owed to her, Ms Edwards says this places her at a ‘significant tax disadvantage due to large lump sum payments’ while working at a full-time capacity and having inadequate leave in a high-stress job.
  1. [49]
    Ms Edwards says that QAS has sent out expressions of interest (‘EOIs’) to work in Canungra and Mt Tamborine stations on 30 March 2023 and Ormeau station on 6 March 2023. Despite expressing interest in working at these stations, Ms Edwards submits that she has not received a response or reply from QAS as to why she was unsuccessful. Ms Edwards says that this raises questions about the fairness in the process and allocation of positions.
  1. [50]
    With regard to the offer of twilight rosters in Metro North and Metro South, Ms Edwards says such positions present significant challenges. Ms Edwards says these positions would require her to work afternoon and night shifts and travel considerable distances. Ms Edwards says such a work arrangement would place ‘further strain on my work-life balance and put undue pressure on my relationships, family and safety’.
  1. [51]
    Ms Edwards says that the continuous extension of her contracts and the continuing need for her position along with the hiring of new full-time employees as well as transfers into the Gold Coast region clearly demonstrates the ongoing operational requirement for her role as an Advanced Care Paramedic on the Gold Coast.
  1. [52]
    Ms Edwards says that on 2 August 2023, she received an offer for a new contract extension until 31 January 2024 on the Gold Coast.
  1. [53]
    Ms Edwards submits that limited contract duration and timeframes in which contracts are offered adds significant stress and anxiety to her professional life and hampers her ability to make informed future plans. Ms Edwards also says that the uncertainty of temporary employment imposes financial stress and makes it challenging to secure stable and long-term commitments relating to housing, family planning and finance. Ms Edwards says these matters have impacted her professional life, personal life and overall wellbeing.
  1. [54]
    I note that in her initial submissions appealing the original ‘deemed decision’, Ms Edwards says she has spoken about permanent employment with numerous Officers in Charge in the Gold Coast region but that she has been told that it is ‘not within their position to help’. Ms Edwards says that the Gold Coast Ambulance Service Human Resources Manager and Assistance Commissioner have told her that it is not their role to convert her employment to permanent and that it is a ‘state level issue’.

Respondent’s submissions

  1. [55]
    I note at the outset that QAS had filed significant submissions prior to issuing the written decision on 10 July 2023. The QAS filed its further final submissions on 10 August 2023 which states that it relies on all previous submissions but specifically replies to the matters raised by Ms Edwards set out above at [39] to [54].

Background

  1. [56]
    I have set out the relevant information regarding Ms Edwards’ current employment arrangements above from [1] to [7]. I note that in its earlier submissions, QAS provided some other contextual information regarding the circumstances of Ms Edwards’ employment and prior request for conversion which I set out below.

Further contextual information provided by QAS

  1. [57]
    The Respondent says Ms Edwards was one of 60 temporary and casual graduate recruits engaged to support QAS during the pandemic using one-off emergency funding provided by Queensland Health. The funding was designed to enable QAS to establish a temporary, flexible and agile workforce during the pandemic able to provide surge capacity during these times. When the funding was exhausted, QAS retained employees who did not opt to be converted to permanent status at an alternate location to remain on their existing arrangement at their existing location.
  1. [58]
    The Respondent says on 18 February 2020, Ms Edwards received (and on that same day accepted) a letter of offer to an initial temporary full-time position from 16 March 2020 to 26 April 2020 covering the induction period, followed by a transition to casual employment form 27 April 2020.[2] The letter stated:

On 27 April you will transition to casual employment and may remain as a casual for a period up to two (2) years. During this time, you will receive an offer of permanent employment as a paramedic and whilst every effort will be made to retain you within your current LASN, this will be dependent on vacancies and operational requirement at the time of offer.

  1. [59]
    Ms Edwards was offered a permanent position in Aramac on 18 March 2022. Ms Edwards rejected this offer of employment on the basis of her personal circumstances and she remained employed on a casual basis.
  1. [60]
    On 1 September 2021, seven employees, including Ms Edwards, met with Assistant Commissioner Warrener and Gold Coast Region Senior Human Resources Consultant, Ms Jennifer Curtis, to discuss their contracts. The Respondent said that at this meeting, it was explained that permanent placements are managed centrally and regularly reviewed and that at that current point in time, there was no capacity within the region to offer permanency, due to there being no genuine vacancies.
  1. [61]
    The Respondent said that it was also explained that there were 70 longer term staff who, in good faith, undertook rural and remote service for extended periods and in accordance with the remote area incentives procedure applicable at the time. The Respondent says it was made clear at the 1 September 2021 meeting that those staff were priority-order listed according to their eligibility for the first available permanent transfers into the Gold Coast region.
  1. [62]
    Ms Edwards is not attached to a station, rather she has been engaged in varying capacities to fill temporary and short-term absences across any station within the region. The Respondent says that at the time of making it submissions, Ms Edwards was engaged as a temporary full-time paramedic at Mermaid Waters Station from 1 May 2023 until 2 July 2023, to relieve the substantive officer while they worked elsewhere. I understand that Ms Edwards has since commenced a new contract on 3 July 2023, in a temporary full-time capacity relieving another officer taking on higher duties.
  1. [63]
    The Respondent says that prior to this, Ms Edwards relieved in a role at Mermaid Waters Station from 22 March 2021 to 26 September 2021, and she had also relieved in varying roles at Southport, Nerang and Pimpama Stations. The Respondent provides a history of Ms Edwards’ appointments and the reason for these appointments.[3]

Submissions addressing the decision not to convert Ms Edwards’ employment to permanent

  1. [64]
    With regard to the number and repeated engagements Ms Edwards has undertaken since she was employed in 2020, QAS says that this is a demonstration of the temporary nature of the work that QAS has a requirement to fulfil.
  1. [65]
    QAS points to the varied reasons for Ms Edwards’ engagements and says that these reasons support its position that it has a genuine operational requirement to have a small percentage of non-permanent workforce available to fill unexpected and short-term operational gaps.[4]
  1. [66]
    Regarding Ms Edwards’ submissions about leave access and the unpredictability of her employment arrangements, QAS says that since commencing duty on 16 March 2020, Ms Edwards has availed herself of 4.9 weeks of accumulated time leave, 0.6 weeks of COVID response leave, 2 weeks of recreation leave, and approximately 7.4 weeks of personal leave. QAS says that the short notice of subsequent appointments and the limitation on entitlements is ‘very much inherent in the nature of these temporary engagements’.
  1. [67]
    With regard to Ms Edwards’ submissions about people employed after her receiving permanent appointments, QAS says that without particulars, it cannot accurately respond.  However, QAS says it is possible that Ms Edwards is referring to cases where graduate employees who have been on an alternate non-operational pathway may have been appointed to permanent positions in line with the employment arrangements established at the outset of their appointments. An example of this is where a graduate paramedic accepts a temporary placement to a non-paramedic role for a defined period of time with a guaranteed placement at the end of that period as a paramedic in order to assist QAS in other service delivery areas such as patient transport and emergency medical dispatch.[5]
  1. [68]
    QAS acknowledges that the placements it offered to Ms Edwards in the letter of 10 July 2023 may not suit her personal circumstances or those of all employees, but that the offers are genuine and there are employees who are able to take up the positions which is why the offers are made.  QAS says that many other staff who have been issued with offers of permanency like those made to Ms Edwards have readily accepted the offer.
  1. [69]
    QAS says that the fact that Ms Edwards feels the offers are not suitable for her permanent circumstances does not render the offers unreasonable or not warranting of being made.
  1. [70]
    With regard to the internal expressions of interest Ms Edwards refers to above at [49], QAS says that these EOIs were issued, however the positions were not permanent, rather they were short-term relieving roles and only employees currently designated as casual employees were eligible to apply. QAS says that when expressions of interest are issued for short-term relief, due to the significant numbers usually received, the current practice is that only those employees who are shortlisted for consideration by the Officer in Charge are contacted directly, and no further contact will necessarily be made with remaining applicants. QAS says that the expression of interest invites applicants to contact the Officer in Charge directly if they have questions and it was open to Ms Edwards to contact the relevant Officer in Charge if she had questions.
  1. [71]
    While Ms Edwards says the number of contracts she has undertaken demonstrates an ongoing operational requirement for her role as an Advanced Care Paramedic on the Gold Coast, QAS says the contrary is true.  QAS says that Ms Edwards is engaged with QAS on a casual basis and has accepted short to medium term temporary contracts in various locations within the Gold Coast region between her casual engagements.
  1. [72]
    QAS says that it has a ‘4% casual and 4% temporary workforce which it requires to fill operational gaps both expected and unexpected, quickly, and effectively’.
  1. [73]
    QAS submits that with due respect to Ms Edwards, and notwithstanding any change in her personal circumstances, QAS reiterates that in accepting each contract, it necessarily means there was an understanding and acceptance of the conditions associated with the arrangements. Further, QAS says that all the arrangements Ms Edwards has accepted, except for temporary COVID surge positions funded specifically by Queensland Health in 2020, have been positions substantively held by other employees.
  1. [74]
    QAS says it understands Ms Edwards’ circumstances but that the situations requiring her engagement have been genuinely temporary in nature.
  1. [75]
    QAS says that it remains fully committed to continually maximising its permanent workforce and that currently the rate of permanency in the QAS is 92% across the state.  QAS says that this is the maximum threshold that can be filled without losing necessary access to the flexible cohort needed for surge activity and short-term relief.
  1. [76]
    With regard to the number of employees seeking appointment to the Gold Coast Region, QAS says the number change regularly due to changes in circumstances of employees.  However, at the time of writing the submissions, QAS says that there are 49 employees external to the region waiting for a transfer to a permanent position within the Gold Coast Region and 10 of those employees have waited for five years or more after serving their agreed time in a regional position.
  1. [77]
    QAS says that it has 31 permanent employees from within the region who are waiting for vacancies to arise at alternate stations.
  1. [78]
    QAS says that Ms Edwards is one of 39 employees who have applied or have been identified as being eligible for consideration of casual conversion on the Gold Coast since 1 March 2023. QAS says that many of the employees in all categories have cited personal health and/or family circumstances which they have requested be considered. 
  1. [79]
    QAS says that the internal demand for permanent positions in the Gold Coast Region is extremely high and the issue for the QAS remains that it must balance the competing interests of a range of different employee cohorts seeking a permanent position within the Gold Coast region and be able to accommodate the placement of employees on a non-permanent basis to meet service delivery requirements.
  1. [80]
    With regard to Ms Edwards’ submission about the hiring of new employees, QAS says it cannot make accurate commentary without more detailed information.
  1. [81]
    In response to Ms Edwards’ submission that her current contract has been extended, QAS says that Ms Edwards’ current contract comes to an end on 3 September 2023.  The correspondence Ms Edwards attaches to her submissions is an expression of interest issued to all casual paramedics across the Region via email on 2 August 2023, for short-term positions. Expressions of interest were due to close on 9 August 2023 and at the time of submissions, no decisions in the region had been confirmed.
  1. [82]
    QAS says that the issuing of expressions of interest for short-term roles is not indicative of the need for permanency, but rather illustrates the need for QAS to be able to forward plan for short-term vacancies and have a minimal and proportionate workforce to undertake temporary appointments as and when the operational need arises.
  1. [83]
    QAS extracts Ms Edwards placements since 14 February 2022 and says that each of the temporary contract placements listed is substantively and genuinely held by another permanent employee:

Ms Edwards’ Placements since 14 February 2022

Start Date

End Date

Position No

Reason for Placement

14 February 2022

1 January 2023

748845

(designated position no)

Casual appointment

2 January 2023

30 April 2023

751868

Incumbent in temporary at level role

1 May 2023

3 July 2023

751525

Incumbent on leave

4 July 2023

3 September 2023

750227

Incumbent on higher duties

  1. [84]
    In summary, QAS reiterates that it has significant complexities in managing a very competitive demand on placements for existing employees in the south-east corner of Queensland and retaining a workforce to more broadly provide its service across Queensland.
  1. [85]
    I have reviewed the earlier submissions of the Respondent which set out the operational environment in which decisions regarding conversion to permanent take place.  It is my view that those submissions are largely addressed above.

Consideration

  1. [86]
    It is not in dispute that Ms Edwards is suitable for appointment in the position.
  1. [87]
    QAS acknowledges that there is a continuing need for Advanced Care Paramedics across Queensland.
  1. [88]
    Having determined that these matters were met, QAS understands that Ms Edwards is to be converted to permanent employment unless it is not viable or appropriate to do so having regard to the genuine operational requirements of QAS.
  1. [89]
    I have reviewed the employment history of Ms Edwards and note that she has been engaged in a continuous way to undertake roles relating to COVID and also to provide backfill to employees on leave or undertaking higher duties or other roles as required by QAS. 
  1. [90]
    While the basis of employment under the PS Act is generally on a permanent basis, section 81(3)(a) envisages circumstances in which permanent employment may not be viable or appropriate and fixed-term temporary employment may be appropriate. Relevantly to this matter, such reasons include to fill a temporary vacancy arising because a person is absent for a known period; or to perform work necessary to meet an unexpected short-term increase in workload. Section 81(3)(b) says that casual employment may be appropriate relevantly, to fill a short-term vacancy arising because a person is absent for an unplanned or unexpected period; to perform work for a short period to fill a gap in a work roster for employees employed on a permanent basis, or on a temporary basis for a fixed term; to fill a position for which work patterns or work demand is variable and difficult to predict; or to fill a position for which work hours are irregular, informal, occasional or non-rostered.
  1. [91]
    Sections 81(4) and (5) provide that employment on a permanent basis may be viable or appropriate where a person is required to be employed on the bases discussed above at [90] on a frequent, regular or systematic basis.  It is clear from the employment history that Ms Edwards has been required to be employed on a temporary or casual basis on a frequent and regular basis. However, it seems to me that QAS has adequately explained the operational need it has to maintain a small, casual and temporary workforce for the purposes of undertaking exactly the kind of work described in section 81 of the PS Act.
  1. [92]
    I understand Ms Edwards’ submissions regarding the impact that non-permanent work has on her professional and personal circumstances. I also understand Ms Edwards’ frustration at her ongoing non-permanent employment. While individual employees engaged on a casual and/or temporary basis may have a strong personal preference to be employed permanently in a location of their choice, it is also the case that QAS are required to deliver services on a state-wide, ‘around the clock’ basis. 
  1. [93]
    QAS has provided detail regarding its graduate programs, various pathways to permanency including engagement of graduates in roles other than Advanced Care Paramedic.  QAS has also provided detail regarding remote incentive programs and the statewide transfer system.
  1. [94]
    In its submissions, QAS says that the conversion of non-permanent employees to permanent status across the South-East corner of Queensland:

… has the potential to very quickly restrict the ability of the QAS to employ and train new graduate paramedics, block employees from transferring into their preferred locations following rural service and restricting the ability for operational shifts to be filled by casuals without the use of overtime for permanent employees, which in turns creates other risks (e.g. fatigue risks).

  1. [95]
    While I understand Ms Edwards’ frustrations, I find the submission set out above at [94] compelling.  That submission is supported by the detailed information provided in both the decision letter and the submissions of QAS.  It is clear that in order to deliver services across the state, including in rural and remote locations, QAS is faced with a range of complexities. On the basis of the information provided regarding challenges faced by QAS in the south-east corner, the ‘waiting list’ for employees who have undertaken rural or remote service and are seeking placement in their preferred locations, and the significant number of temporary and casual employees who have not undertaken any service elsewhere in the state and are seeking permanent appointment in ‘preferred locations’, I am satisfied that at the present time, there are genuine operational requirements which mean that it is not viable or appropriate to appoint Ms Edwards to a permanent position on the Gold Coast.
  1. [96]
    I note that while the decision maker informed Ms Edwards that she would not be appointed permanently on the Gold Coast, offers of permanency in several other locations across the state were offered.  I understand that Ms Edwards does not find any of these locations suitable, however the fact remains that QAS has made an offer of permanency and Ms Edwards has determined that those locations are not suitable to her personal circumstances.
  1. [97]
    I have reviewed the written decision provided to Ms Edwards and I am satisfied that the decision satisfactorily sets out findings on material questions of fact and makes reference to evidence or other material on which the findings were based.[6] There is enough information contained in the letter for Ms Edwards to understand why the review of her employment resulted in a refusal to appoint her to a permanent position.
  1. [98]
    The issue regarding conversion to permanency for Advanced Care Paramedics in south-east Queensland involves a complex range of factors. While on a ‘case-by-case’ basis, it may seem unfair to determine not to convert an individual to permanent employment in the personal circumstances such as those of Ms Edwards, it is necessary for QAS to provide services across the state and it must maintain a workforce which enables it to do so. Once QAS had determined that Ms Edwards was suitable for appointment and that QAS has a continuing need for Advanced Care Paramedics, it was required to consider the genuine operational requirements of the organisation. A review of temporary or casual employment is unlike deciding whether an employee has reasonable grounds to refuse a transfer to another location or considering an employee’s request for a compassionate transfer. In undertaking the review, QAS is not required to take Ms Edwards’ personal circumstances or preferences into account in the way that may be required by the QAS Employee Transfers Human Resource Procedure which applies to permanent employees of the QAS.[7]
  1. [99]
    For the reasons given above, I accept that QAS has a genuine operational requirement to not convert Ms Edwards’ employment on the Gold Coast at this time.

Order

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] T 1-6, ll 23-47.

[2] Respondent’s submissions filed 21 June 2023, attachment 6.

[3] Ibid attachment 5.

[4] Ibid. I note that in this attachment to its submissions, the Respondent includes a table setting out Ms Edwards temporary placements.

[5] Ibid [7].

[6] Directive 02/23 Review of non-permanent employment (Directive 02/23) cl 13.1.

[7] Respondent’s submissions filed 21 June 2023, attachment 12; Queensland Ambulance Service Employee Transfers Human Resource Procedure cl 2.

Close

Editorial Notes

  • Published Case Name:

    Edwards v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Edwards v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2023] QIRC 247

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    28 Aug 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Dyson v State of Queensland (Queensland Health) [2024] QIRC 612 citations
Ewart v State of Queensland (Queensland Ambulance Service) [2023] QIRC 3042 citations
1

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