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Ewart v State of Queensland (Queensland Ambulance Service)[2023] QIRC 304

Ewart v State of Queensland (Queensland Ambulance Service)[2023] QIRC 304

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ewart v State of Queensland (Queensland Ambulance Service) [2023] QIRC 304

PARTIES: 

Ewart, Alexander William

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO:

PSA/2023/162

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision

DELIVERED ON:

20 October 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 SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a conversion decision – where the Appellant is 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 his non-permanent employment – where the appeal has been lodged out of time – where the Respondent offered to convert the Appellant to permanent employment at a different location – consideration of whether the role offered was the same or substantially the same as the appellant’s current role per the Public Sector Act (Qld) s 114 – where it is found that the Advanced Care Paramedic role on the Gold Coast is substantially the same as the Advanced Care Paramedic role in the other locations offered – decision not appealable as the Respondent has made an offer of permanent employment to a role which is substantially the same – appeal dismissed

LEGISLATION AND

OTHERINSTRUMENTS:

Directive 02/23 Review of non-permanent employment cl 11

Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564

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

CASES:

Application by Stratacrete Pty Ltd [2016] FWC 2880

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

Reasons for Decision

Introduction

  1. [1]
    Mr Ewart is employed by the State of Queensland (Queensland Ambulance Service) (‘QAS’) as an Advanced Care Paramedic in the Gold Coast Region.
  1. [2]
    On 28 June 2023, following a review of his temporary employment, Mr David Hill, A/Executive Director, Workforce, wrote to Mr Ewart to inform him that it was not viable or appropriate to convert his employment in the role he is undertaking in the Gold Coast region and that he was instead being offered permanent employment in other roles in regional Queensland or twilight rosters in Brisbane.

Appeal principles

  1. [3]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that the 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. [4]
    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. [5]
    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. [6]
    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. [7]
    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. [8]
    In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Sector Act 2022 (Qld) (‘the PS Act’) and Directive 02/23 Review of non-permanent employment (Directive 02/23) (‘the Directive’).

The PS Act 

  1. [9]
    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. [10]
    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—

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

  1. [11]
    Section 129 of the PS Act relevantly provides:[1]

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. under section 115 to convert the employment of a public sector employee mentioned in section 112 to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis; or

…

  1. [12]
    Section 114 of the PS Act relevantly states:

114 Chief executive must make decision on employee’s request

  1. This section applies if a public sector employee makes a request under section 113.
  1. The employee’s chief executive must decide the request within 28 days after receiving the request.
  1. The employee’s chief executive may decide to offer to convert the employee’s employment to a permanent basis only if—
  1. the employee’s chief executive considers—
  1. 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. the employee is suitable to perform the role; and
  1. any requirements of an industrial instrument are complied with in relation to the decision.
  1. 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. In this section—

suitable, in relation to an employee performing a role, has the meaning given under a directive.

  1. [13]
    Section 115 of the PS Act provides:

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. This section does not limit or otherwise affect section 113.

Jurisdictional issue: Appeal filed out of time

  1. [14]
    The decision attached to Mr Ewart’s Appeal notice is dated 28 June 2023. Mr Ewart lodged his appeal on 14 August 2023. The appeal has therefore been lodged out of time. Mr Ewart states his reasons for the appeal being commenced out of time as follows:

I had replied back to the decision with questions on 09/07/2023 with no reply, then again on 03/08/2023 to only receive a less than adequate reply today on 11/08/2023 from the Queensland Ambulance Service. I was unaware nor informed of my 21 day time limit to file this appeal. I was also advised by my union (United Voice) to give QAS time to reply, not knowing this time frame.

  1. [15]
    Some submissions have been made on behalf of Mr Ewart that the actual decision being appealed may be an email dated 11 August 2023 from Ms Shaylee Cunington, responding to Mr Ewart’s queries.  However, I have determined that the decision being appealed is the one Mr Ewart attached to his Appeal notice. 
  1. [16]
    I note that the decision being appealed does not contain information about Mr Ewart’s appeal rights. This is understandable given the Respondent’s position that it has actually made a permanent offer of employment to Mr Ewart and therefore the decision is not appealable. I also note the submissions regarding the steps Mr Ewart took to seek further information and resolve the matter with the employer, including that he contacted his union who recommended that course of action and did not inform him of his appeal rights.
  1. [17]
    The parties have made submissions on both jurisdictional issues and addressing the decision of 28 June 2023.  In circumstances where: it appears that Mr Ewart was taking genuine steps to act on his disagreement with the decision; there was some delay in him being provided with a response from the employer; his union did not immediately inform him of the appeal timeframe; there is some contention about whether the decision itself was in fact an offer of permanent employment; the parties have already made extensive submissions regarding the decision, and the Respondent does not appear to seriously contest the out of time jurisdictional matter,  I have determined to exercise my discretion to extend the timeframe for lodging the appeal per s 564(2).

Jurisdictional Issue: Is the decision able to be appealed?

  1. [18]
    The decision sets out the criteria to be considered in undertaking a review of temporary employment. The decision-maker then states, in summary:
  • There is a continuing need for the role of Advanced Care Paramedic to be undertaken in various locations across Queensland.
  • Mr Ewart is suitable to perform the role as defined in the Directive.
  • Having considered the genuine operational requirements of QAS, the authorised delegate has determined that it is not currently viable or appropriate to convert Mr Ewart’s employment to permanent in his existing location.
  • It is possible to offer conversion on a permanent basis at an alternate location.
  1. [19]
    The decision then goes on to outline the operational circumstances of QAS including:
  • The purpose of temporary and casual arrangements in providing operational coverage and reducing short-term risks associated with non-filled shifts, particularly within the South-East Corner (‘SEQ’).
  • QAS workforce planning and management practices include rural and remote incentives to ensure permanent employment opportunities within SEQ are offered in a fair and equitable manner.
  • The use of employee transfers and remote area incentive arrangements offered to employees to accept placements in difficult to fill locations with the guarantee of priority transfer status to the location of their choosing upon completion of service.
  • The requirement to maintain vacant positions within SEQ to enable graduate training opportunities for new Advance Care Paramedics coming into the system.
  1. [20]
    The decision states the following regarding the nature of Mr Ewart’s employment:

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. [21]
    The decision concludes:

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
  • Twilight Rosters – Metro North Region
  • Twilight Rosters – Metro South Region
  1. [22]
    Mr Ewart is then requested to advise QAS if he wishes to explore one of the vacancies listed by close of business on 13 July 2023 for further discussion about station vacancies and any location specific terms and conditions that may be applicable. Mr Ewart is also informed that if he does not accept the offer within the timeframe given, it will be considered that he has decided to continue his employment according to the terms and conditions of his existing employment arrangements.

QAS’s position

  1. [23]
    QAS contends that it has made an offer to convert Mr Ewart’s employment to a permanent basis and that the offer to convert meets the requirements of ss 114 and 115 of the PS Act.  
  1. [24]
    QAS says that the decision communicated on behalf of the authorised delegate by Mr Hill is not an appealable conversion decision under section 131, as defined in s 129(a) of the Act. It is not a decision not to convert the employment of Mr Ewart, nor is it a decision about the hours of work offered per s 129(b). 
  1. [25]
    QAS submits that the only circumstance in which the decision may be appealed is where the Commission is of the view that the offer is not an offer which meets the requirements of the Act, and is therefore a decision not to convert the employment of Mr Ewart.
  1. [26]
    QAS says that s 129 of the Act defines a conversion decision and section 114(3)(a)(i) contemplates the consideration and subsequent conversion to permanent employment in the employee’s role or a role that is substantially the same as the employee’s role.
  1. [27]
    While acknowledging that the positions Mr Ewart has been offered may not be in his preferred location, QAS submits that the roles offered are substantially the same as Mr Ewart’s role of Advanced Care Paramedic. QAS states that the permanent positions offered in regions and rosters within QAS are genuine, and many other staff who have been issued with offers of permanency similar to Mr Ewart have readily elected to accept the offer.

Mr Ewart’s submissions

  1. [28]
    Mr Ewart submits that QAS has misconstrued the nature of the decision, and the decision itself does not make a decision as required by the PS Act as it is inconsistent with the requirements of ss 114 and 115.
  1. [29]
    Mr Ewart says that the decision is unfair and unreasonable as the Respondent:
  1. Erred in their construction of s 115 when considering the role and the offer to be made;
  1. Failed to provide any indication of the permanent hours of work, as required by the Review of non-permanent employment Directive 02/23 (the Review Directive);
  1. Consequentially failed to make an offer of permanency as required by s 115 rendering the Decision invalid or, in the alternative, effectively refusing to grant permanency despite the mandatory nature of s 114(4) without a genuine operational requirement;
  1. Failed to enter into negotiations, consider the Appellant’s correspondence, or follow their own deadline when dealing with the Respondent’s purported offer of permanency;
  1. Failed to consider any of the individual merits.
  1. [30]
    Mr Ewart rejects QAS’s assertion that the decision meets the requirements of the PS Act.  Mr Ewart says that under s 115(1), the Respondent must make a decision to either continue the employee’s employment in line with the existing terms of employment, or offer to convert the employee’s employment to a permanent basis. Sub-sections 114(3) and 114(4) also apply to a decision made under s 115. Mr Ewart says that s 114(3) requires the Chief Executive to consider whether there is a continuing need for someone to be employed in the employee’s role or a role that is substantially the same.
  1. [31]
    Mr Ewart says that QAS has incorrectly applied s 114(3)(a)(i) and that the first step was to consider whether there is an ongoing need for someone to be employed in Mr Ewart’s role specifically.  Mr Ewart says this means the role of an Advanced Care Paramedic on the roster, location and other conditions of work that Mr Ewart is currently performing.  Mr Ewart says that this must be considered prior to considering substantially similar roles.  Mr Ewart says that QAS has considered his role and substantially the same role to be the role of ‘Advanced Care Paramedic’. Mr Ewart says this means that the first limb of s 114(3)(a)(i) has no work to do and would mean that a public sector entity would practically never have to consider the employee’s individual role.
  1. [32]
    Mr Ewart says that sub-section 114(4) is conditional on the requirements of ss 114(3) having been met; if those requirements are fulfilled, then the chief executive must decide to offer to convert the employee’s employment on a permanent basis unless it is not viable and appropriate having regard to the genuine operational requirements of the entity. Mr Ewart says that the decision to convert is a mandatory decision, and is an offer to convert the employee’s employment and that it is not an offering of multiple other possible roles.
  1. [33]
    Mr Ewart says that the proper construction of s 114(4) flows from s 114(3)(a)(i) in that the consideration of the employee’s role should flow to the employment offered.  Mr Ewart says that QAS failed to consider the first limb of ss 114(3)(a)(i), only considering whether the role of Advanced Care Paramedic is required in the general sense. Mr Ewart says that this means that QAS have failed to consider the individual merits of him continuing to work in his role and to offer to convert his employment.
  1. [34]
    Mr Ewart says that s 114(4) merely states the decision is ‘to offer to convert the employee’s employment to a permanent basis’ and does not specify ‘role’, ‘position’ or ‘classification’; and that if the intent of the sub-section is ignored and the considerations from s 114(3)(a) are not imported, conversion on a permanent basis could lead to the offer of absolutely any permanent position once the criteria in s 114(3) are met.  Mr Ewart says that this would lead to absurdity or could be used to cause refusals of a purported offer.
  1. [35]
    Mr Ewart goes on to critique the decision and state at the decision needed to specifically address Mr Ewart’s circumstances and not generally discuss the need for casual employment or the individual merits of Mr Ewart’s employment circumstances.
  1. [36]
    Mr Ewart then goes on to identify what he says are errors in the decision. Mr Ewart says that cl 11 requires a decision to offer permanency to also include the hours of work to be offered and that the decision merely lists locations where permanency would be entertained.
  1. [37]
    Finally, Mr Ewart turns to the requirement that roles being offered meet the requirement of being ‘substantially the same’.[2]  Mr Ewart says that substantial similarity is more than just the duties performed by the role but is the specific patterns and locations of work and the flow on effect on an employee’s life and family. Mr Ewart points to matters considered under the Fair Work Act 2009 (Cth) in the context of redundancies and states that significant changes in location, travel, rosters, duties, and other indicia have led to employment not being same enough to warrant a reduction in redundancy pay. Mr Ewart contends that substantially the same is not a simple comparison of duties but a global consideration that needs to include location, travel, workload, the nature of the work, and the hours of work and that it is not apparent that this was considered by QAS.
  1. [38]
    Alternatively, Mr Ewart says that the decision does not demonstrate whether any other role besides ‘Advanced Care Paramedic’ that would be substantially the same were considered.  With reference to this point, Mr Ewart points to his discussion in correspondence to QAS on 9 July 2023 regarding patient transport roles and QAS’s advice on 11 August 2023 that roles were considered without evidencing this or comparing roles whose duties are substantively relevant to the provision of ambulance services.
  1. [39]
    Mr Ewart goes on to address the merits of the matter and says that submissions about the operational requirements and remote service incentive policy invite the Commission to ‘usurp the statutory system created by ss 113 to 117 of the PS Act in favour of QAS’s internal policy and that policy does not supersede statute’.
  1. [40]
    Mr Ewart says that pro-forma decisions issued to many paramedics over the course of June 2023 raises concerns about procedural fairness and the consideration of matters on a case-by-case basis. Mr Ewart also says that the decision mischaracterises his employment to date and that he has worked a 14-week rotating roster for 2.5 years, like other paramedics at the station.  Essentially, Mr Ewart argues that the decision does not demonstrate that his individual circumstances were considered.

QAS’s submissions in reply

  1. [41]
    The QAS maintains that the offers of employment in the districts listed in the decision were full-time offers of employment, in roles that are substantially the same as the employee’s role, being Advanced Care Paramedic, as required under s 114(3)(a)(i) of the Act. 
  1. [42]
    QAS says that in making the decision, it determined that there is a ‘continuing need for someone to be employed in the employee’s role or a role substantially the same as the employee’s role’.  Specifically, QAS says that with regard to s 4(c)(ii) of the Act, the offers of employment were full-time positions that are substantially the same as the work Mr Ewart undertakes now. 
  1. [43]
    With regard to the submissions addressing the hours of work for the positions offered, QAS says that if there had been any intent to offer less than full-time employment, this would have been stated in the correspondence. The decision invites Mr Ewart to contact QAS recruitment for further discussion about the vacancies, location specific terms and conditions that may be applicable.
  1. [44]
    QAS maintains that it acted in accordance with s 114(4) of the Act, as it was not viable or appropriate to convert Mr Ewart’s employment to a permanent basis within the Gold Coast Region having regard to the operational requirements of the QAS. However, in accordance with s 115 of the Act, an offer to convert Mr Ewart’s employment to permanent was made.
  1. [45]
    QAS makes submissions with regard to Application by Stratacrete Pty Ltd (‘Stratacrete’),[3] where Asbury DP (as she then was) held:

[11]  The Commission must be satisfied that the other employment is acceptable before deciding whether to exercise the discretion to make an Order to reduce the redundancy payments to which an employee is entitled under s. 119 of the Act. The alternative employment is either acceptable or it is not. The Commission cannot engage in an exercise of discounting redundancy pay to the degree that it determines that an offer of other employment approaches acceptability. The onus lies on the employer making the application for a reduction in redundancy pay to prove that the other employment obtained for the employee is acceptable on the basis of factors such as:

  • The nature of the work;
  • The comparability of the work with that performed in the current role;
  • Pay levels;
  • Hours of work;
  • Seniority;
  • Fringe benefits;
  • Workload and speed;
  • Job security;
  • Whether the employee will have continuity of service in the new role;
  • Location and/or the need to relocate; and
  • Travel and/or the cost of travel that is additional to that relevant to the original employment.
  1. [46]
    With reference to the list of indicia to determine whether a position is substantially similar in Stratacrete, QAS says that while the Commission may not have considered the indicia for the phrase ‘substantially the same’, QAS asserts that the roles offered to Mr Ewart would meet the significant majority of the substantially similar indicia considered in the Fair Work Commission decision. QAS also asserts that the industrial instruments, the base pay, conditions and entitlements applicable to any Advance Care Paramedic role undertaken by Mr Ewart would be the same.
  1. [47]
    QAS denies asking the Commission to favour policy over statute and says that policy and the operational framework of QAS are matters that go to a consideration of genuine operational requirements.

Summary of the review and appeal framework

  1. [48]
    While I have set out the relevant sections of legislation regarding the review of non-permanent employment and appeal framework earlier in these reasons, I will briefly re-state them here.
  1. [49]
    Section 130 of the PS Act provides that a person may appeal against a decision under section 131.
  1. [50]
    Section 131(1)(a) states that a conversion decision is a decision against which an appeal may be made. Relevant to this matter, Section 129(a) and (b) define a conversion decision as a decision under s 115 not to convert the employment to a permanent basis or a decision about the hours of work offered when offering to convert the employment basis to permanent.
  1. [51]
    The decision of 28 June 2023 offers Mr Ewart permanent employment in several locations. In that sense, it is an offer to convert Mr Ewart’s employment to a permanent basis. However, I will address Mr Ewart’s submissions on that matter below.
  1. [52]
    I note that Mr Ewart has accompanied his appeal notice with a ‘witness statement’. I have had regard to the content of that statement to the extent it is relevant to these reasons for decision.

Consideration

  1. [53]
    At the outset, I note that on a reading of the complete decision, it appears:
  • Mr Ewart is suitable for appointment to the role on a permanent basis;
  • Nothing in an industrial instrument prevents his appointment;
  • There is a continuing need for someone to undertake the role of Advanced Care Paramedic at the Gold Coast and in other parts of the state.
  • The Respondent has identified that there are genuine operational reasons preventing Mr Ewart’s appointment to a permanent position at the Gold Coast.
  • However, having established that the criteria for conversion are met, in that there is a continuing need for someone to undertake the role of Advanced Care Paramedic, the Respondent has offered to convert Mr Ewart’s employment to permanent in several locations in other parts of the state.
  1. [54]
    Whether the decision can be appealed turns on whether the decision properly offers Mr Ewart permanent appointment to the role, or a role which is substantially the same.

What is ‘the employee’s role’?

  1. [55]
    I have considered Mr Ewart’s contention that QAS was first required to consider whether there is an ongoing need for someone to be employed in Mr Ewart’s role specifically and that this must be considered prior to moving on to consider roles which are substantially the same. It seems to me that the employer has done this. The decision notes that there is a continuing need for the role of Advanced Care Paramedic. The requirement is to consider the role the person is undertaking, not the specific position or location of that position.
  1. [56]
    This matter has been considered in various decisions of the Commission identifying that conversion is not dependent on the position the person is employed in being vacant.  It is often the case that the person is employed in a role in, for example, a backfilling capacity for a particular position. The Commission has on occasions considered that the incumbent may return to the position but that the employee should have their employment converted to permanent in a role that is the same or substantially the same. Such a role may be in a different location or may in fact be a different role to the one being undertaken, but with characteristics that make it substantially the same. It is then a matter for the employer to identify a role and make the offer, and it is a matter for the employee to determine whether they accept the role or wish to continue their employment on a temporary basis.
  1. [57]
    The temporary conversion framework can be contrasted with the review of acting or secondment at higher classification level set out in Chapter 3, Division 2. The review of higher classification framework is focused on appointment to ‘the position at the higher classification level’ and to that extent, ‘the position’ is a reference to the role in the circumstances of the employee, including for example, the agency or location of the position the person has been working in.  The higher classification review does not require the employer to seek roles that are substantially the same as the question is confined to whether there is an ongoing need for the employee to perform the position they are currently undertaking.
  1. [58]
    Mr Ewart contends that s 114(4) ‘merely states the decision is to offer to convert the employee’s employment to a permanent basis’ and that it does not specify the role, position, or classification. Mr Ewart says that if the intent of s 114(3)(a) is ignored, conversion on a permanent basis could lead to the offer of absolutely any permanent position once the criteria are met and that this would lead to absurdity. I understand the argument Mr Ewart is making, however it is my view that s 114(4) leads to an expectation that if the criteria are met, the offer of conversion to permanent should be made with regard to the role being undertaken or a role that is substantially similar. It does not create a free-for-all where any offer of permanency in any position will do. In Mr Ewart’s case, the role is Advanced Care Paramedic and offer of permanency is to the role of Advanced Care Paramedic in a range of locations.
  1. [59]
    If s 114(3)(a) referred to position, this would create a different scenario. In fact, if s 114(3)(a) referred to position, it may be that the decision would have involved a finding that there is an ongoing need for someone to perform the position Mr Ewart currently performs and that the criteria had been met. QAS would have then moved to explaining why conversion was not being offered based on genuine operational reasons meaning conversion is not viable or appropriate.
  1. [60]
    The role subject of this decision is that of Advanced Care Paramedic. It seems to me that once the criteria set out in s 114(3) had been met, QAS had to make an offer to convert Mr Ewart’s employment. QAS has done so. QAS employs Advanced Care Paramedics across the state. The offer is permanent employment in the role of Advanced Care Paramedic in a range of locations.
  1. [61]
    In my view, the role of Advanced Care Paramedic is the same in different locations of the state. A role substantially the same as Advanced Care Paramedic would be a different role requiring the same or similar skills and qualifications; receiving the same or similar pay and conditions.

Is the Advanced Care Paramedic role the ‘substantially the same’ in different locations?

  1. [62]
    I have had regard to the argument Mr Ewart makes that Advanced Care Paramedic roles in other parts of the state are not ‘substantially the same’ as Advanced Care Paramedic on the Gold Coast based on an analysis of matters such as those considered by the Fair Work Commission in Stratacrete.  For the reasons set out above, I do not think the role of Advanced Care Paramedic in another part of the state is a different role to that of Advanced Care Paramedic on the Gold Coast. I am of the view that the roles are the same. However, if I am wrong on that, I will consider the matters listed in Stratacrete and consider whether the role of Advanced Care Paramedic in other parts of the state is substantially the same as the role of Advanced Care Paramedic on the Gold Coast.
  1. [63]
    While I am considering the decision in Stratacrete, any such consideration needs to be undertaken in the context of that decision addressing the matter of similarity of the role for the purpose of redundancy payments. The current matter occurs in the context of a state-wide public sector, a feature of which is that there are many locations across the state where the same or similar work is undertaken under state-wide employment arrangements.
  1. [64]
    It seems to me that Advanced Care Paramedics undertake the same role and duties in various contexts across the state. I accept the submission of QAS that the industrial instruments, base pay, conditions and entitlements applicable to Advanced Care Paramedic roles are the same across locations. All roles within the public sector are subject to state-wide transfer and employment procedures and to that extent, matters such as location and travel will differ across locations but I do not think they serve to make the role substantially different. A state-wide context may also mean that workloads, rosters, cultural or socio-economic complexities, location-specific challenges and the like will vary, however the nature of the work and the duties to be undertaken will be that expected of an Advanced Care Paramedic in the context in which they are employed. It may be that in some regional locations, the travel required to get to and from work will considerably vary greater than or less than others. It may also be that there is cost involved with relocating to a position, however this is a feature of a state-wide system. Opportunities for career advancement or to undertake higher duties positions may also differ from place to place but I do not find that such differences serve to make the role substantially different.
  1. [65]
    In my view, if the roles of Advanced Care Paramedic in different parts of the state are not the ‘same’, they are certainly ‘substantially the same’.

Mr Ewart was offered a permanent role and therefore the decision is not appealable

  1. [66]
    The decision explained to Mr Ewart why he was not being offered conversion in his current location, however, having determined that there is a genuine operational need for the role of Advanced Care Paramedic, QAS fulfilled the requirement to make an offer of permanency.
  1. [67]
    Having decided that an offer was made pursuant to section 114, I will not consider submissions as to whether the decision was fair and reasonable as, pursuant to the framework set out at [48]-[50], it is not an appealable decision.

Other matters

  1. [68]
    However, I will address the submission raised by Mr Ewart that consideration of matters such as the QAS’s state-wide transfer policy, remote area incentives and the operational and service provision requirements of QAS somehow usurps the legislative framework regarding review of non-permanent employment. The review process necessarily requires a decision-maker to consider the genuine operational needs of the agency in determining whether it is viable and appropriate to convert employment to permanent.  In my view, a consideration of operational needs appropriately requires an analysis of a range of matters, including departmental policies, procedure and contextual factors. That these operational matters must be genuine is a part of the legislative framework. 
  1. [69]
    I understand that Mr Ewart raises a concern that his individual needs and circumstances have not been addressed by the decision-maker. The needs and circumstances of the individual do not form a part of the criteria for a review of non-permanent employment.  As I considered in Edwards v State of Queensland (Queensland Ambulance Service),[4] personal matters may be considered regarding transfer and relocation requests or appeals, and I understand that QAS will, where possible, address the individual needs and circumstances of temporary employees. However, a failure to address a temporary employee’s personal circumstances will not in itself render a review of non-permanent employment unfair or unreasonable.
  1. [70]
    While I am not required to decide whether the decision was fair and reasonable, I note the submissions made by Mr Ewart that the decision did not provide the hours of work to be offered. I accept the QAS’s submission that if the hours of work to be offered were fewer than a full-time role, this would have been stipulated.  It is also the case that the list of locations was accompanied by the name and contact details of a person who could provide further information to Mr Ewart. Mr Ewart was not being asked to make a decision about whether to accept the offer of employment without the detail he required. It was open to him to seek further information from the contact person.
  1. [71]
    I note that Mr Ewart believes that QAS should have considered other roles that are substantially the same. I do not think that this was a requirement, as QAS had identified that there was a continuing need for the role of Advanced Care Paramedic. Having determined that there was a continuing need for the role (or as discussed above, a role substantially the same, being Advanced Care Paramedic in other locations), there was no need for the employer to go about reviewing all QAS roles that may involve similar duties and conditions as Advanced Care Paramedic.
  1. [72]
    I note the submissions Mr Ewart makes regarding his view that the twilight shift positions listed in the decision letter are unsafe. I note that Mr Ewart is represented by his union in this matter.  It is open to Mr Ewart and his union to pursue such safety concerns through other avenues.
  1. [73]
    Mr Ewart also raises a concern about what he calls ‘pro-forma’ decisions issued to many paramedics in June 2023.  If there is a view that there is a broader issue with the implementation of the Directive, it is a matter for Mr Ewart and/or his union to pursue this through other avenues.

Conclusion

  1. [74]
    I understand that the offer of employment does not suit Mr Ewart’s circumstances as he has a preference to remain on the Gold Coast.  However, the fact remains that the decision is an offer to convert employment to permanent and therefore the decision is non-appealable.
  1. [75]
    The decision appealed against is confirmed.

Order

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

Footnotes

[1] Public Sector Act 2022 (Qld) s 129 (emphasis added).

[2] Application by Stratacrete Pty Ltd [2016] FWC 2880 (‘Stratacrete’).

[3] Ibid.

[4] [2023] QIRC 247 where I said at [89], ‘… 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.’

Close

Editorial Notes

  • Published Case Name:

    Ewart v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    Ewart v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2023] QIRC 304

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 Oct 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
Edwards v State of Queensland (Queensland Ambulance Service) [2023] QIRC 247
2 citations
Jump To
Cite 1 - [2023] QIRC 247
Cite 2 - [2023] QIRC 247
Stratacrete Pty Ltd [2016] FWC 2880
2 citations
Jump To
Cite 1 - [2016] FWC 2880
Cite 2 - [2016] FWC 2880

Cases Citing

Case NameFull CitationFrequency
Costello v State of Queensland (Queensland Ambulance Service) [2025] QIRC 932 citations
In the termination of the Barcoo Shire Council Local Government Operational Employees' Certified Agreement 2021-2024 [2025] QIRC 832 citations
Raymond v State of Queensland (Queensland Ambulance Service) [2025] QIRC 253 citations
1

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