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Chiotakis v Queensland Museum Network[2023] QIRC 34

Chiotakis v Queensland Museum Network[2023] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Chiotakis v Queensland Museum Network [2023] QIRC 034

PARTIES:

Chiotakis, Christina

(Appellant)

v

Queensland Museum Network

(Respondent)

CASE NO:

PSA/2022/948

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

7 February 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. 1.The appeal is allowed;
  2. 2.The decision that Miss Chiotakis not have her (0.6 FTE) TO2 Technical Officer employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Miss Chiotakis' employment status as a (0.6 FTE) TO2 Technical Officer be converted to permanent employment.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where respondent gave a deemed decision not to convert the appellant's employment to permanent under the Public Service Act 2008 – whether there is a continuing need for the appellant to be employed in the same role or a role which is substantially the same – consideration of genuine operational requirements – where decision was not fair and reasonable

LEGISLATION AND OTHER INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 14A

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

Public Service Act 2008 (Qld) s 26, s 27, s 148, s 149, s 149A, s 149B, s 194, s 195, s 196

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

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 11

CASES:

Benson v State of Queensland (Department of Education) [2021] QIRC 152

Chiotakis v Queensland Museum Network [2022] QIRC 022

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

IW v City of Perth (1997) 191 CLR 1

Katae v State of Queensland & Anor [2018] QSC 225

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

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

Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 397

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

Reasons for Decision

Introduction

  1. [1]
    Miss Christina Chiotakis (the Appellant) is employed by the Queensland Museum Network (QMN), Department of Communities, Housing and Digital Economy (the Department), State of Queensland (the Respondent).
  1. [2]
    Miss Chiotakis currently has two separate and distinct engagements with the Queensland Museum Network. 
  1. [3]
    Firstly, Miss Chiotakis is employed on a permanent part time basis (0.4 FTE), as a OO2 Visitor Experience Officer. 
  1. [4]
    Initially commencing in this role as a casual on 16 September 2014, she was subsequently converted to permanent employment on 24 November 2021.
  1. [5]
    The conversion from casual to permanent part time employment in the Visitor Experience Officer role occurred only after Miss Chiotakis filed a public service appeal against the earlier deemed decisions not to convert (PSA/2021/379), in which she had sought permanency in both of the two separate and distinct engagements with the Queensland Museum Network. 
  1. [6]
    Secondly, Miss Chiotakis is employed on a fixed-term temporary part time basis (0.6 FTE), as a TO2 Technical Officer (Collections, Research and Exhibitions) in the Geosciences Team located at Hendra. 
  1. [7]
    Initially commencing in the role as a casual on 23 April 2019, she was subsequently appointed on a fixed- term temporary contract from 10 January 2022 until 30 June 2023.
  1. [8]
    During that contract period, an organisational review occurred.  Miss Chiotakis received correspondence advising that her "existing fixed-term temporary arrangement would not be affected and that the position title would be updated to TO2 Research Assistant, Project DIG."[1]
  1. [9]
    I note that Miss Chiotakis' commitment to the Geosciences Team is longstanding "having volunteered with the team since 2010, (as) there has never been a shortage of work that needs to be completed".  That significantly predates the commencement of her casual employment as a TO2 in 2019.
  1. [10]
    On 16 September 2022, QMN notified Miss Chiotakis of the commencement of the required review of her fixed-term temporary employment status after 2 years continuous employment in the TO2 position,[2] following her inquiry the previous day.
  1. [11]
    Once again, QMN did not issue a notice stating the reasons for the decision not to offer to convert Miss Chiotakis' TO2 employment to permanent within 28 days of her review eligibility date.[3]  Therefore, a decision not to convert Miss Chiotakis to permanency was deemed to have occurred on 14 October 2022, pursuant to s 149B(7) of the PS Act (the Decision).[4] 
  1. [12]
    On 21 October 2022, Miss Chiotakis filed an appeal against that Decision.

Pattern of deemed decisions

  1. [13]
    While this has not been raised in the Appellant's submissions, I am concerned that a pattern appears to be emerging with respect to a reliance on deemed decisions about Miss Chiotakis' employment at QMN. 
  1. [14]
    The Respondent's submissions have referred me to the Commission's decision in Chiotakis v Queensland Museum Network,[5] following Miss Chiotakis' earlier appeal against two deemed decisions of QMN to refuse the conversion of both of her separate and distinct engagements to permanent.  This current appeal is then the third time in a year that QMN have failed to issue a notice to Miss Chiotakis containing reasons for refusing conversion to permanency. 
  1. [15]
    As I explained in Benson v State of Queensland (Department of Education) ('Benson'),[6] the PS Act[7] and Directive 09/20[8] contemplate a scenario in which the chief executive does not make the decision within the required period - and makes alternative provision in those circumstances. 
  1. [16]
    A deemed decision in itself is not inherently unfair and unreasonable.
  1. [17]
    However, Directive 09/20 also cautions that (my emphasis):
  1. 8.6
    Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
  1. 8.7
    Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
  1. [18]
    Self-evidently then, QMN should guard against what may well be perceived as an over-reliance on deemed decisions.

Eligibility to appeal

  1. [19]
    Clause 11.1 of Directive 09/20 provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert."
  1. [20]
    Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee".
  1. [21]
    Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". 
  1. [22]
    I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed by the Appellant.
  1. [23]
    For the sake of completeness, Miss Chiotakis is eligible to appeal the decision even though she has already been converted to permanent in one of the two separate and distinct engagements.[9]  QMN's earlier decision to convert Miss Chiotakis' casual engagement as a OO2 Visitor Experience Officer to permanent part time (0.4 FTE) does not limit its ability to review her separate fixed-term temporary engagement in the TO2 role under s 149B.  My reasoning is explained in Benson.[10]
  1. [24]
    Miss Chiotakis' eligibility to appeal the deemed decision is not in dispute.[11]

Timeframe for appeal

  1. [25]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [26]
    The Decision was deemed to have been given on 14 October 2022. 
  1. [27]
    In accordance with s 564(3) of the IR Act, Miss Chiotakis filed the Appeal Notice on 21 October 2022. 

What decisions can the Commission make?

  1. [28]
    Miss Chiotakis seeks the Decision be set aside and substituted with a decision to permanently appoint her to the role of TO2 Technical Officer, or a role substantially the same.[12]
  1. [29]
    Pursuant to s 562C(1) of the IR Act, in deciding a public service appeal, 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. [30]
    Section 562B(2) and (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. [31]
    The appeal is not conducted by way of re-hearing,[13] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[14] 
  1. [32]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, I may allow other evidence to be taken into account.[15]
  1. [33]
    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.[16]

Relevant provisions of the PS Act and Directive 09/20

  1. [34]
    Section 148 of the PS Act states:

148Employment 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. [35]
    Section 149B of the PS Act relevantly provides:
  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. [36]
    Section 149A(2)-(3) of the PS Act provides (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. [37]
    Directive 09/20 relevantly provides:

8.Decision on review of status

  1. 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.
  1. 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. [38]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[17]
  1. [39]
    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.
  1. [40]
    The purpose of Directive 09/20 is:
  1. 1.
    Purpose
  1. 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. [41]
    Further, Directive 09/20 relevantly provides:
  1. 4.
    Principles
  1. 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.

…

  1. 4.4
    Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

Submissions

  1. [42]
    In accordance with the Directions Order issued in this matter, the parties filed written submissions.
  1. [43]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.

Mandatory decision criteria

  1. [44]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable.
  1. [45]
    Section 149A(2) of the PS Act and cl 8.1 of Directive 09/20 contain the mandatory decision criteria for temporary employment conversions to permanent.  The decision maker must consider:
  • 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 employee for the role having regard to the merit principle in s 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 ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.
  1. [46]
    Clause 8.2 of Directive 09/20 states (emphasis added):

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.[18]

Merit

  1. [47]
    The parties agree that there were no issues with respect to 'merit' that would otherwise prevent Miss Chiotakis' conversion to permanent.

Requirements of an industrial instrument

  1. [48]
    Neither party has submitted there to be any requirements of an industrial instrument that need to be complied with in relation to the Decision.[19]

Reasons for each decision previously made, or deemed to have been made

  1. [49]
    Earlier decisions have been made under ss 149A and 149B of the PS Act with respect to Miss Chiotakis' employment in the TO2 role. 
  1. [50]
    With respect to a prior review, the Respondent submitted:

On 5 March 2021, in response to Ms Chiotakis' request under section 149 of the Act, the chief executive made a decision not to convert Ms Chiotakis.

The decision maker considered that it was not appropriate or viable at this time, due to genuine operational requirements, specifically:

  1. a.
    There is no ongoing funding for the position beyond the current end date of 30 June 2023.  The funding provided by BHP directly supports Ms Chiotakis' TO2 project position.[20]
  1. [51]
    In the Commission's earlier decision in Chiotakis v Queensland Museum Network,[21] the Respondent's reasons for the previous decisions made were recorded as follows:
  1. [14]
    The Respondent notes that on 5 March 2021, Ms Chiotakis requested that she be converted to permanent in the TO2 role.  At that time, the decision maker determined that it was not appropriate or viable to convert Ms Chiotakis' employment at that time due to genuine operational requirements, specifically,

…the Queensland Museum does not have ongoing funding for your position beyond the current end date of 30 June 2023.  As you are aware, Project DIG is a five year partnership with BHP which aim is to transform how we store, explore and share the State's collection and research with communities, students and scientists across the world.  The funding provided through this partnership directly supports your position.

  1. [15]
    The Respondent acknowledges that a deemed decision was made on 14 October 2021 and that Ms Chiotakis is eligible to appeal.  After conducting a review of the facts and circumstances that were available at the time of the review period, the Respondent submits that the reasons outlined in the decision of 5 March 2021 remain unchanged.

…

  1. [17]
    At the point in time of the review, there is no continuing need for the engagement of the role on a permanent basis, and it is not viable or appropriate to convert because the funding is for a position specific role which performs work for a particular program (Project DIG) which has a known end date of 30 June 2023.
  1. [18]
    The Respondent points to s 149B(4) of the PS Act which states that the Chief Executive is responsible for, among 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 basis or casual basis only if there is a reason for the basis of employment under the PS Act.
  1. [19]
    In the alternative, the Respondent contends that it may be that the nature and circumstances of Ms Chiotakis' employment engagement may no longer reflect a casual arrangement and may align with those envisaged under a fixed term temporary arrangement as contained in s 148(2)(b) – (c) of the PS Act.
  1. [20]
    The Respondent says that:

it is intended for a strategic workplace planning review to commence for all positions associated with Project DIG to ensure deliverables people and capability continue to achieve desired outcomes, along with an appropriate basis of employment.

  1. [21]
    The Respondent says that there are two casual TO2 positions which may be more appropriate to engage under a fixed term temporary engagement and that it is the Respondent's intention to offer a fixed term temporary engagement to Ms Chiotakis with an end date of 30 June 2023.[22]
  1. [22]
    With regard to roles substantially the same to convert Ms Chiotakis, the Respondent says that the two TO2 positions were created specifically for Project DIG and are unique roles within QMN.  There were no other substantially the same roles to convert Ms Chiotakis during the review period.
  1. [23]
    The Respondent says that at the time of making submissions to this appeal, there has not been, nor is it expected that there will be any ongoing commitments to support the TO2 role or one substantially the same, beyond 30 June 2023.[23]
  1. [52]
    Unsurprisingly perhaps, one year later the Respondent has relied on similar reasons when its most recent deemed decision not to convert Miss Chiotakis' TO2 arrangement to permanent was again appealed.

Summary of Findings

  1. [53]
    For the reasons that follow, I find that:
  • there was a continuing need for Miss Chiotakis to be employed in the role, or a role which is substantially the same;
  • there are no genuine operational requirements that would otherwise prevent her conversion to permanent; and
  • QMN's decision not to convert Miss Chiotakis' employment to permanent was not fair and reasonable in the circumstances.

Appellant's submissions

The current role

  1. [54]
    Miss Chiotakis submitted that she undertakes the following range of tasks in the current TO2 role with Project DIG:

Collection Management:

  1. –
    Data management of specimens on Vernon and Excel as required
  2. –
    Boxing and reboxing as needed, including updating labels and cradling specimens for transport or storage
  3. –
    Accessioning of collections and donations
  4. –
    Audits

Preparation of Fossils:

  1. –
    Physical preparation of specimens with the use of microjacks
  2. –
    Knowledge of appropriate glues and consolidants to be used, varies according to individual specimen requirements
  3. –
    Conservation
  4. –
    Cradling with the use of foam, plasters or fibreglass cradles

Field and Microscopy Experience:

  1. –
    Field and Survey work across multiple sites at South Walker Creek, Chinchilla and Mt Etna
  2. –
    Sorting of sediments and micro fossils from various localities including the above listed sites and Geebung using a microscope or magilamp
  3. –
    Identification of fauna from various sites
  4. –
    Community day events including Capricorn Caves Open Days, School Visits to site (South Walker Creek) and Unearthed.[24]

Continuing need to be employed in the role

  1. [55]
    Miss Chiotakis submitted there to be a continuing need for her to be employed in the role, for the following reasons:

Longstanding involvement

  1. Miss Chiotakis' involvement with the Geosciences Team is longstanding.  She has volunteered with the team since 2010 and "there has never been a shortage of work that needs to be completed".  She commenced as a casual TO2 on 23 April 2019.  She was appointed on a fixed-term temporary contract from 10 January 2022 until 30 June 2023.

Regular and systematic

  1. Since commencing as a casual TO2 in April 2019, Miss Chiotakis has had regular and systematic shifts, working approximately 0.6 FTE (that is, 6 shifts on the same days each fortnight). 

Appointment to current role

  1. The letter[25] appointing Miss Chiotakis to a fixed-term temporary contract from 10 January 2022 until 30 June 2023 "contains no reference to Project DIG".  Rather, it appointed her as a TO2 Technical Officer, Collections and Research, QMN.  (Following the organisational review, a further letter was later provided to Miss Chiotakis indicating that her position was attached to Project DIG).

QMN's Strategic Plan objectives evidence continuing need

  1. The QMN Strategic Plan for 2022 – 2026 outlines objectives that evidence the continuing need for Miss Chiotakis' role.  Specifically, one of QMN's top priorities is Digital Evolution (as is currently being supported by Project DIG).  That work will necessarily continue past 30 June 2023 when the partnership with BHP concludes.  According to QMN's Strategic Plan, the aim is to make all specimens available digitally to researchers and potentially the public so not to risk damage to specimens housed within the QMN collection.

QMN's Collection Policy evidences continuing need

  1. The QMN's Collection Policy states at cl 5.9 that:

QNM has a responsibility to preserve its Collection in perpetuity…This includes Objects (both digital and non-digital) in storage, on display, use din programs and research, on loan and in transit.

  1. To preserve the collection in perpetuity, Miss Chiotakis contends that there will be an ongoing need for roles the same or similar to her current role.

Project DIG Work Plan evidences continuing need

  1. Miss Chiotakis asserts that the Project DIG Work Plan provides for the continuing need for her TO2 role, beyond the 30 June 2023 end date of the project:
  1. Data storage.  There are currently 25 hard drives with in excess of 30 terabytes (TB) of data to be uploaded.  Currently the 30TB I am working on is a backlog, however as new scans of specimens are made there will be more of it to go through and upload to the new drive.
  1. There are still hundreds of specimens in foils or jackets from the South Waller Creek that require preparation for research.  Currently they are stored in the collection and are not accessible due to the mould remediation that needs to occur.  Specimens, depending on their size and fragility, can take anywhere from hours to months to complete.  The preparation of these specimens will not be finalised by June 2023 due to the number and characteristics of the specimens.
  1. Digital and photogrammetry – 3D scanning of collection specimens, objects and artifacts.  There are millions of specimens and well over 100,000 of them are numbered (registered and mostly published) as priority specimens to scan.  This involves boxing and labelling and in some cases conservation prior to scanning being able to be completed.  This work is being done as part of Project DIG and I believe it will be years before this work is completed on the current specimens.
  1. Cox Donation.  The Cox Donation was first brought to the Queensland Museum for assessment in April 2021.  There are 400 specimens, with the potential for the donors to donate more of their collection.  I am currently working on accessioning this collection.  (Accessioned items are objects, specimens or specimen lots that have been incorporated into the State Collection through the formal process of Registration (numbering) and Accessioning (recording locality and other contextual information in an electronic database).  So far, I have imaged them all, and started with the labelling of the specimens.  We are still waiting for further advice on when they will be accessioned into the collection.  These specimens will also need to be scanned for further research (though I cannot confirm I think some of the specimens may be used for the Predators and Prey project as part of Project DIG).  The accessioning of the specimens will still need to be finalised and a number of the specimens require preparation and conservation.  After this, if publication of the specimen occurs, they will then also need to be further and appropriately boxed and stored in the State Collection.[26]

Collections and Research Centre (CRC) opening

  1. Miss Chiotakis noted that the opening of the new CRC also brings "a need for staff to showcase the work occurring back of house to planned visitors in the space."

Continuing field collection of specimens means continuing need for digitisation

  1. "An unspecified number of new specimens are added to the collection every time a staff member goes on field, numbering one up to hundreds of specimens for each field trip."  QMN's objectives mean that the work of digitising its collection will be continuing, as collecting is itself continuous - that is, "every time something new is added to the QMN collection, it is required to be digitised."
  1. The current Geosciences Team of seven staff comprises: Four permanent staff; two fixed-term temporary TO2 Palaeontological Research Assistants; and one fixed-term temporary Assistant Collection Manager.  Four permanent staff is insufficient to care for, research and facilitate external researchers of the Geoscience collection – thus a continuing need for the TO2 Technical Officer role is established.

Continuing need to be employed in a role which is substantially the same

  1. [56]
    The Appellant submitted there to be a continuing need for Miss Chiotakis to be employed in a role which is substantially the same, for the following reasons:

Preparation, Collection Management, Conservation and Digitisation work still occurs across the department, though not in relation to Project DIG specifically.

I contend that my role as a TO2 Palaeontological Research Assistant provides me with general skills that can be utilised for collection-based work for any QMN collection despite having a focus on palaeontology.[27]

No genuine operational requirements

  1. [57]
    Miss Chiotakis submitted that there were no genuine operational requirements that would otherwise prevent conversion to permanency:

QMN's obligations no impediment to permanent conversion

  1. Miss Chiotakis appreciates that QMN "has specific workforce planning obligations to manage, and must manage, operate and deliver services in a commercially viable and appropriate way, however the size of the collection is going to continue to grow with further field work taking place each year." 

Project DIG end date and funding

  1. Miss Chiotakis stated that her "appointment to fixed-term temporary employment in January 2022 was to the role of Technical Officer, Collections and Research, Queensland Museum Network.  The appointment letter contains no reference to Project DIG…"[28]
  1. The funding end date of Project DIG is 30 June 2023, despite the continuing need for work in her TO2 role well past that date.

Respondent's submissions

No continuing need to be employed in the role

  1. [58]
    The Respondent contends that:

…at the point in time of the review, there is no continuing need for the engagement in the TO2 role on a permanent basis, and therefore it is not viable or appropriate for conversion as:

  1. as an Arts Statutory Authority, QMN is only able to offer Research Assistant roles (the TO2 position) when external funding and partnerships are available;
  1. the funding for the position has a defined end date of 30 June 2023; and
  1. the specific role performs work for a particular program (Project DIG) which has a known end date of 30 June 2023;
  1. the position does not form part of QMN's core establishment as it is not business critical or business as usual;
  1. the position assists Curators and Program Heads, and is not responsible for the delivery of strategic and operational plan outcomes;
  1. there is no need for someone to be employed in the same or similar role as these duties will cease on 30 June 2023.[29]
  1. [59]
    The Respondent further stated that:
  1. the end date of Miss Chiotakis' fixed-term temporary contract is 30 June 2023;
  1. QMN finalised an organisational review on 23 May 2022, confirming Miss Chiotakis' fixed-term temporary (0.6 FTE) arrangement "against the position of TO2 Research Assistant, Project DIG.  The final organisational chart confirms the position as a fixed-term temporary, project funded role";[30] and
  1. QMN provided Miss Chiotakis with correspondence dated 21 July 2022 about the organisational review, confirming that her existing employment status will not be affected but updating her position details as "TO2, Research Assistant, Project DIG."

No continuing need to be employed in a role which is substantially the same

  1. [60]
    The Respondent submitted there was no continuing need for Miss Chiotakis to be employed in a role which is substantially the same because:

…there are two (2) TO2 Research Assistant, Project DIG positions, both of which are fixed term temporary engagements with an end date of 30 June 2023.

In considering substantially the same roles available to convert Ms Chiotakis, the two (2) TO2 Research Assistant, Project DIG positions were created specifically for Project DIG and are unique roles within the QMN.  Accordingly, there were no other substantially the same roles available to convert Ms Chiotakis during the review period.[31]

Genuine operational requirements

Funding

  1. [61]
    The Respondent submitted that the genuine operational requirements that earlier prevented Miss Chiotakis' conversion to permanency remain unchanged, that is:

There is no ongoing funding for the position beyond the current end date of 30 June 2023.  The funding provided by BHP directly supports Miss Chiotakis' TO2 project position.[32]

  1. [62]
    The Respondent further stated:

Further, at this time, there has not been any ongoing commitments to support Miss Chiotakis' role, or one substantially the same, beyond 30 June 2023.[33]

Chief Executive responsibilities

  1. [63]
    The Respondent noted that:

…the chief executive is responsible for, among other things:

  1. managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  1. 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 Act.[34]
  1. [64]
    The Respondent referred to a previous Commission decision about a year earlier, in which Miss Chiotakis was seeking conversion to the same role, and the decision appealed against was confirmed.[35]

Consideration

  1. [65]
    My decision firstly turns on the question of whether there is a continuing need for Miss Chiotakis to be employed in the TO2 role, or a role which is substantially the same.[36]
  1. [66]
    I will then go on to consider whether any genuine operational requirements fairly and reasonably prevent Miss Chiotakis' conversion to permanency.

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

  1. [67]
    There are two potential pathways to conversion. The first pathway is Miss Chiotakis' current TO2 Technical Officer role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for Miss Chiotakis to be employed in the current role?

  1. [68]
    In Katae v State of Queensland & Anor ('Katae'), Crow J considered the decision criteria.[37] In that matter, Ms Katae was engaged in a series of temporary contracts from July 2014 until 31 December 2018.  His Honour found that there was plainly a continuing need for Ms Katae to be employed in her role, effectively because her contract had not yet concluded.  It was the question of whether the role was likely to be ongoing that formed the primary basis for argument.
  1. [69]
    In that regard, his Honour's findings are particularly relevant to these proceedings (emphasis added):

It is the second element of the 9.6(a) directive which is in issue, that is, whether "the role is likely to be ongoing". Whilst the Vice President acknowledged that the department was unable to guarantee that the end of the project would have been its set end date (30 June 2018), that is an insufficient basis upon which one could fairly and reasonably conclude that the role was not likely to be ongoing. What was required was an objective analysis of whether the role was likely to be ongoing, which depends upon the meaning given to the word "ongoing" and each of the circumstances which might affect the likelihood of the role being ongoing.

As discussed with counsel, the word "ongoing" is defined in the Shorter Oxford English Dictionary as "the action of going on; proceeding; continued movement." Where reference is had to the Shorter Oxford English Dictionary, or any other dictionary, it must be concluded that the word "ongoing" is most imprecise. Whilst it certainly does not mean "permanent" neither does it mean "temporary". It is noteworthy that within Directive 08/17 the words "permanent" and "temporary" are used. Given that s 149 is remedial, it seems to me that the directive ought to be read in a remedial manner, and the meaning prescribed to the word "ongoing" ought to be its ordinary dictionary meaning; that is, "going on" or "proceeding" or "continuing".

…

It was shown in evidence that Ms Katae was a capable person, having been in receipt of numerous temporary contracts for a period of over 3.5 years at the time of the decision. Importantly, while the project had an end date of 30 June 2018, it ought not be presumed that it would end at that date, that is, not all projects end on time. That is a matter of common experience, both in private and public enterprises. Similarly when one is considering the broad definition of "roles", it can be taken into account that prior to the decision, the experience of Ms Katae had been for a period of more than 3.5 years and throughout that period she has found similar roles within the department. A fair and reasonable conclusion on the then-available evidence was that the "role" was likely to be "ongoing". It follows that it has been shown that the appealed decision was not fair and reasonable.

Paragraph 9.7 of the directive evinces a presumption that temporary employees will be converted to permanent employees in the ordinary case. That is, ordinarily, where a person has been employed on a temporary basis for more than 2 years, there is a likelihood for the employment on an "ongoing basis". It is important to note that the criteria in paragraph 9.6(a) speaks of a role "likely to be ongoing" rather than a role being "permanent". In the present case, the materials placed before Linnane VP in respect of the senior project officer's role, show there was a continuing need for the applicant to be employed in that role or in a substantially similar role, and that role was likely to be ongoing.

  1. [70]
    Miss Chiotakis has had a longstanding commitment to the QMN broadly – and to the Geosciences Team in particular.  A brief chronology is a useful starting point:
  • at [9] above, it is asserted that Miss Chiotakis has "volunteered with the team since 2010, (as) there has never been a shortage of work that needs to be completed".  That claim was not denied by the Respondent;
  • Miss Chiotakis' volunteering significantly predates the commencement of her casual employment as a TO2 in April 2019;
  • when Miss Chiotakis asked for a review of her (then) casual employment status on 5 March 2021, it was refused by QMN on the grounds that it "does not have ongoing funding for your position beyond the current end date of 30 June 2023" and it further stated that "Project DIG is a five year partnership with BHP which aim is to transform how we store, explore and share the State's collection and research with communities, students and scientists across the world.  The funding provided through this partnership directly supports your position."  I note that such a s 149 request was not able to be appealed;
  • some six months later, Miss Chiotakis was notified that a review of status after two years continuous employment was now required, under s 149B of the PS Act.  No decision was made by QMN within 28 days, so it was deemed to be a refusal to convert.  That s 149B decision was appealable – and Miss Chiotakis indeed took that step; and
  • before the release of the Commission's decision in PSA/2022/948, QMN converted Miss Chiotakis' TO2 role from casual to fixed-term temporary employment, conceding that the nature of her engagement may no longer reflect a casual arrangement and may better align with a fixed-term temporary arrangement. 
  1. [71]
    Miss Chiotakis is clearly a highly capable person with an ability to perform a range of work within her area of expertise.  She has had a longstanding involvement with the Geosciences Team (in both paid and unpaid capacities) since 2010.  Miss Chiotakis has worked a regular and systematic pattern of employment on 0.6 FTE (that is, six shifts on the same days each fortnight) since April 2019 – more than 3.5 years before filing this appeal.
  1. [72]
    Miss Chiotakis' current fixed-term temporary contract expires on 30 June 2023.  In that sense, there is a continuing need for her to be employed in her current TO2 role for the coming months at least. 
  1. [73]
    The central issue in this appeal, as it was in Katae, is the pertinent consideration of whether there is a continuing need for her to do so beyond that time.
  1. [74]
    The Respondent has submitted that "no ongoing funding" beyond the current contract end date of 30 June 2023 – together with the project having a specified period and purpose - confirmed the appropriateness of the temporary nature of Miss Chiotakis' current role, consistent with s 148(2)(b)(c) of the PS Act whereby:

…employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –

…

  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. [75]
    I note that the provision at s 148(2) indicates only that employment on tenure may not be viable or appropriate if it is "to perform work for a particular project or purpose that has a known end date" and / or "to fill a position for which funding is unlikely or unknown" – and that neither of those circumstances are precisely met in this case. 
  1. [76]
    While Miss Chiotakis' current contract expires as at 30 June 2023, the evidence before me supports her contention that there are many ongoing initiatives within QMN's Strategic Plan, Project Work Plan and Collection Policy that will continue to require her involvement beyond 30 June 2023.  Miss Chiotakis has argued that the continuing need for her to be employed in the role is demonstrated by a work program of planned project implementation, ongoing field work resultant in an ever growing collection of specimens required to be digitised, and has pointed to the release of the QMN's Strategic Plan to illustrate the operational mandate in place. 
  1. [77]
    For instance, whilst Miss Chiotakis' contract end date is 30 June 2023, that is at odds with the "Project DIG Work Plan 1 July 2022 – 12 August 2023".  That Work Plan's title and timeline contained therein both indicate work to be done up to 12 August 2023 at least.  Elsewhere within that document, reference is made to "Key Components 2022-23" of the Work Plan occurring in 2024.  It is rather curious that the Respondent has submitted the project to have a definitive end date with funding only up to 30 June 2023, whilst work has been programmed beyond that date with apparently no ongoing FTE available to undertake it.
  1. [78]
    Specifically, as in Katae, the suite of project initiatives underway will not neatly conclude simply as a matter of convenience to coincide with Miss Chiotakis' contracted arrangements.  Nor is it conceivable that some of the existing four permanent staff of the Geosciences team referred to will seamlessly absorb such increased workload in a technically specialised content area.  It cannot be true.
  1. [79]
    I would observe that the claimed twin objectives of 'maximising permanent employment' and 'efficient management of public resources' need not be at odds.  Where work is required to be performed, public sector workers will be required to be paid regardless of whether they are employed on a permanent or temporary basis.  Further, while the PS Act and Directive 09/20 are in place, there is a mandatory criteria to decide conversion reviews at prescribed intervals that must be faithfully applied.
  1. [80]
    In adopting the rationality of Crow J, it ought not be assumed that the current engagement will conclude on time in circumstances where continuing work in a TO2 role is evident in the Strategic Plan, Collection Policy and Project Work Plan – and where there has already been a significant amount of industry investment over many years.
  1. [81]
    The insecure nature of the funding source for a role may be a valid reason for utilising temporary employment, pursuant to s 148(2)(c). So too may be performing work for a particular project or purpose with a known end date, under s 148(2)(b).  In that sense, those matters can also remain relevant in considering conversions to permanency. However, while it may perhaps be considered an appropriate reason for an initial temporary engagement, after more than three and a half years of casual and temporary engagements said to be based on such insecurity, there a comes a point where it is no longer fair and reasonable to rely on such a reason not to convert Miss Chiotakis to permanent employment. That point has now been reached. It is not necessary that a role is certain to be continuing – nor that it must indefinitely continue. That is not the test to be applied in these circumstances, rather it is the much lower bar of whether there is a continuing need.
  1. [82]
    I have carefully considered the Respondent's submission regarding QMN's organisational review and its correspondence[38] to Miss Chiotakis confirming that her existing employment status will not be affected but updating her position details as "TO2, Research Assistant, Project DIG."  I note that QMN correspondence went on to state that "The expectation is that new Role Descriptions and PPPs will be in place for all staff by 30 June 2023.  You will be consulted as these documents are developed…"[39]  The Respondent submitted a copy of the most recent "Technical Officer (Geosciences)" role description, explaining "As part of the organisational review implementation, all QMN position descriptions will be updated by 30 June 2023.  This TO2 role supports Project DIG, a five (5) year project to transform how the QMN continues to store, explore and share their collection with the world."[40]  QMN's foreshadowed engagement with Miss Chiotakis about an updated Role Description and PPPs by 30 June 2023 (the nominal end date of her current contract) makes sense only in circumstances where the role is continuing.  If the role were in fact ceasing on 30 June 2023, there would be no utility in updating those documents or consulting Miss Chiotakis about it.
  1. [83]
    In considering all of the material before me, and bearing particular mind to Miss Chiotakis' history of volunteering, subsequent casual engagement and now temporary employment with the Respondent in same or similar roles, I find that the decision maker's conclusion regarding s 148(2) was unfair and unreasonable. There is a continuing need for Miss Chiotakis' to be employed in her (0.6 FTE) TO2 Technical Officer (Geosciences) role.
  1. [84]
    It is on that basis, and in the absence of any genuine operational reasons to the contrary, that I will convert Miss Chiotakis to permanency.

Pathway 2: Is there a continuing need for Miss Chiotakis to be employed in a role which is substantially the same?

  1. [85]
    If I am wrong on that point, I will now consider whether there is a continuing need for the Appellant to be employed in a role which is substantially the same.
  2. [86]
    While the matters under s 148(2) are certainly factors that may inform QMN's considerations of whether there is a continuing need for Miss Chiotakis to be employed in the role, it is not the exclusive consideration. 
  1. [87]
    It appears to me that the Respondent has stopped short of considering the remaining element of the mandatory criteria in s 149A(2)(a)(i) simply on the basis of Miss Chiotakis' temporary engagement in a project where there is "no ongoing funding" beyond the current end date of 30 June 2023, in circumstances where the "BHP funding directly supports Miss Chiotakis' position". 
  1. [88]
    In its submissions, the Respondent asserted that the two (0.6 FTE) TO2 positions were created specifically for Project DIG and are unique roles within QMN.  The Respondent thus simply concluded that there were no other substantially the same roles to convert Miss Chiotakis during the review period.
  1. [89]
    But that is not the test.  The PS Act and Directive 09/20 contain no requirement that one be converted into a 'vacant position' or one available within the Respondent's currently budgeted permanent FTEs. 
  1. [90]
    In Katae v State of Queensland & Anor, Crow J considered the definition of "same role" in the previous TE Directive.  His Honour noted that the legislation was remedial, and went on to find:

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.[41]

  1. [91]
    I acknowledge that the current Directive 09/20 does not contain a definition of 'same role'; however, in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the previous Directive to which Katae refers:[42]

The same role includes a role which has the same or substantially the same capability requirements, either at level or at a higher classification (e.g. a payroll officer may provide a service to different client groups), or a role with a generic role description involving a range of duties (e.g. rotation through financial and payroll processing duties under a generic entry-level role description).

  1. [92]
    It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is relevant.
  1. [93]
    However, the Respondent's submissions did not define the role currently performed by Miss Chiotakis, nor demonstrate the Respondent's analysis of the capability requirements. 
  1. [94]
    No specific search efforts undertaken by the Respondent to ascertain whether there were other roles that may be suitable to convert Miss Chiotakis into were referred to in the material before me. 
  1. [95]
    The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same within the Respondent that Miss Chiotakis may be converted into.
  1. [96]
    In considering whether there is a continuing need for Miss Chiotakis to be employed in a role which is substantially the same, I am mindful of the extensive program of work to be undertaken and the public expression of its significance in the Strategic Plan 2022-26. 
  1. [97]
    At the time of the Commission's previous consideration of Miss Chiotakis' earlier conversion appeal a year ago, I note that the status of QMN's Strategic Plan was only a 'draft'.  That is no longer the case.  I have carefully considered the released document.  It announces QMN's six priorities for the 2022 – 2026 period, that self-evidently does not conclude neatly on 30 June 2023[43].  Those QMN priorities include two that are particularly relevant to Miss Chiotakis' claim that there is a continuing need for her current TO2 role (or one substantially the same), beyond the nominated end date of BHP funding for Project DIG (my emphasis):
  1. The archive is alive and well:  We will shine a spotlight on Queensland's priceless collections, keep them safe, and bring back of house to front of house to demonstrate the importance of our natural, cultural and geological treasures.

…

  1. Digital evolution:  We will harness new and emerging technologies to expand our reach , personalise experiences, deepen our impact and be more efficient and flexible in the way we work.[44]
  1. [98]
    The Strategic Plan then elaborates its objectives and measures of success, relevantly including to:

Objectives

  1. 1.1
    Enhance collection development through a relevant, responsible and sustainable approach.
  1. 1.2
    Future-proof Queensland's collection by investing in best-practice collection care, management and storage solutions.
  1. 1.3
    Bring Queensland's collections to life, enhance research outcomes and visitor experiences through enhanced digital technology.

…

Measures of success

…

  • Number of collection items available and accessed online.[45]

And further to measure success of 'Experiences and Engagement' by:

  • Visitor growth (onsite and online)[46]
  1. [99]
    The Strategic Plan makes several references to QMN's plan to pursue further partnerships and funding, in these terms:

Objectives

…

  1. 2.2
    Build research capacity through partnerships and collaboration with universities, centres of excellence, funding bodies and industry partners.

…

Measures of success

…

  • Growth in partnerships and competitive research grants sought and received.[47]

And further sets one of the later '160 years young' objectives to be:

  1. 4.1
    Grow commercial partnerships, philanthropic capacity and an entrepreneurial culture to increase own-source revenue to sustain operations and seed new initiatives.[48]
  1. [100]
    As is often observed, words mean things.  The QMN's Strategic Plan clearly says it will focus on growing, storing, digitising and sharing its collections – and will continue to actively build capacity to do so through industry partnerships.  That speaks to both the ambitious program of work to be done and QMN's approach to securing funding by which to do so. 
  1. [101]
    Further, while the Respondent has submitted that the position "does not form part of QMN's core establishment as it is not business critical or business as usual", "assists Curators and Program Heads, and is not responsible for the delivery of strategic and operational plan outcomes" and that "the duties will cease on 30 June 2023", I do not agree.  It is fanciful to suggest that the ambitious priorities and work program QMN has committed to in its Strategic Plan can be foisted on just 4 permanent staff members.  Nor is it reasonable to suggest that the delivery of its stated priorities is anything other than core business. 
  1. [102]
    While I do accept that by working in a TO2 role, Miss Chiotakis is "not responsible for the delivery of strategic and operational plan outcomes" but rather "assists Curators and Program Heads" in that endeavour – the fact remains that there is a significant body of work to be done at a technical officer level that is well within her remit and area of expertise.  Coupled with circumstances whereby the "Project DIG Work Plan 1 July 2022 – 12 August 2023" includes activities beyond 30 June 2023, the Project DIG partnership contract with BHP specifies an alignment of end date as 12 August 2023,[49] and the Strategic Plan expresses the need for work to be done of the type currently performed by Miss Chiotakis through to 2026, it seems to me to be quite unlikely that the continuing need for a role substantially the same will neatly dissolve on 30 June 2023.
  1. [103]
    Section 98(1)(a) of the PS Act states the chief executive is responsible for "establishing and implementing goals and objectives in accordance with Government policies and priorities."  Appropriately, such things as QMN's priorities, objectives and measures of success are all contained in its Strategic Plan 2022 - 2026.  Those goals and objectives are to be delivered in accordance with Government policies and priorities.  That clearly includes the establishment of employment on tenure as the default basis of employment for Queensland public sector workers, as enunciated in s 25(2)(d) of the PS Act:
  1. (2)
    Public service employment is to be directed towards promoting –

…

  1. (d)
    employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.
  1. [104]
    In Benson v State of Queensland (Department of Education), I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.[50] In this matter I similarly find the Respondent's failure to adequately address this limb in subsequent submissions renders the Decision not fair or reasonable.
  1. [105]
    It is relevant that s 149A(2)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Respondent has stopped short of 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. [106]
    The fact of this case is that the Respondent has not defined a role which is substantially the same and the duty to do so must properly be discharged. 
  1. [107]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by Miss Chiotakis. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [108]
    I have found that there is a continuing need for Miss Chiotakis to be employed in the role.  However, in the alternative and for the reasons above, I also find that the refusal to convert Miss Chiotakis was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb. On that basis and noting the need for a similar role to be filled, I find that there is a continuing need for Miss Chiotakis to be employed in a role that is substantially the same.

Whether there are genuine operational reasons why conversion to permanency is not viable or appropriate

  1. [109]
    Clause 8.2 of Directive 09/20 provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency."
  1. [110]
    'Operational requirements' are not defined in the PS Act, 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.[51]
  1. [111]
    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, 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".[52]

  1. [112]
    Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):
  1. [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.
  1. [38]
    The adjective 'genuine' relevantly means '…being truly such; real; authentic.'  The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time.  In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
  • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
  • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

…

  1. [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.'[53]
  1. [113]
    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. [114]
    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 Directive 09/20 and the review.
  1. [115]
    In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.
  1. [116]
    Upon review of the Respondent's submissions, it appears QMN contends that the genuine operational requirements preventing conversion of Miss Chiotakis to permanent broadly pertain to:
  • statutory obligations and associated workforce strategies;
  • funding; and
  • the purpose of the Appellant's temporary employment.
  1. [117]
    I will deal with each of those matters in turn.

Statutory obligations and associated workforce strategies

  1. [118]
    The Respondent submits it has obligations under the PS Act to:
  • manage public resources efficiently, responsibly and in an accountable way;[54] and
  • plan human resources, including ensuring the employment in the Respondent of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under this Act.[55]
  1. [119]
    A budgeted vacancy is not required for conversion to permanent employment. It is an inherent requirement of converting any casual or temporary employee to permanency that there will be budgetary re-allocations and the like. There is no indication that the difficulties faced by the Respondent in this instance would be any different to those posed to most agencies converting employees. As I observed in Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),[56] within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent', 'temporary' or 'casual' line item allocation.  Therefore, in full consideration of the facts and circumstances in this case, I do not believe QMN's concern about the "appropriate use of public resources" with respect to budgetary allocation to be reasonable here.  The Respondent has referred me to an earlier Commission decision,[57] in which Taylor was raised by the Appellant in her submissions - and I accept that also has relevance in this matter.
  1. [120]
    While it is necessary to plan a human resources strategy, a permanent workforce is structured and organised, which in-turn makes budgeting and expenditure more predictable, thereby reducing the potential for labour expenditure budget overspend. That is a factor that the Respondent ought to have considered.
  1. [121]
    Without specific evidence indicating Miss Chiotakis' conversion would affect the efficient, effective and sustainable management of the Respondent's public resources, I am not convinced that such issues pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant.
  1. [122]
    In light of the reasoning above, I conclude that the human resource planning issues and statutory obligations raised by the Respondent do not constitute genuine operational requirements and are not genuine, authentic reasons that could reasonably prevent permanent conversion of the Appellant.

Funding

  1. [123]
    Going now to the Respondent's contention that as the BHP partnership directly funds Miss Chiotakis' current TO2 role it will not continue after the contract end date, I have also observed that as at November 2018 there had already been a "decade-long relationship" between QMN and BHP.  Settlement of the Project DIG partnership expanded that timeframe to 15 years.[58]  That is a significant period of time. 
  1. [124]
    The enduring partnership between QMN and BHP was also referred to in the Project DIG Work Plan 1 July 2022 – 12 August 2023 document, as follows:

In 2018, the QMN and BHP celebrated a decade of collaboration with a new $7.6M partnership called Project DIG (Digital Infrastructure Growth).[59]

  1. [125]
    While the BHP partnership funding may not be 'permanent' as such, neither can it be said that Miss Chiotakis' current role – or a role substantially the same – comes from funding which is "unlikely or unknown."[60]
  1. [126]
    The Respondent has referred me to an earlier Commission decision,[61] in which an unpublished decision was submitted in support of Miss Chiotakis' claim for conversion to permanency.  The Appellant's argument is persuasive and directly relevant to this matter, as it provides that non-recurrent funding of a project ought not be used to justify no continuing need for the role.  It is not fair and reasonable for the employer to rely on using temporary employment indefinitely, where an ongoing need for the role is demonstrated – and where funding is likely, though not certain.  I accept that to be the case here.  After a now longstanding 15 year partnership with BHP, and a clear commitment to further build capacity through industry funding as contained in QMN's Strategic Plan 2022-26, it appears to me more likely than not that funding will be sourced.
  1. [127]
    It is sometimes observed that reasonable minds may differ.[62]  Unlike the conclusion reached in Chiotakis v Queensland Museum Network,[63] one year later, I find there is now sufficient evidence in the current appeal indicating a continuing need for the Appellant to be employed in the role or in a role that is substantially the same.

Purpose of the Appellant's employment

  1. [128]
    The Respondent contended that employment of the Appellant on tenure is not viable or appropriate because she has been employed for the purpose of performing work necessary for Project DIG, under s 148(2)(b) of the PS Act.
  1. [129]
    My first observation is that the Appellant's involvement with the Geosciences team is longstanding. That has been well chronicled earlier in this decision.  As Miss Chiotakis so neatly expressed "there has never been a shortage of work that needs to be completed."  That certainly appears to have been the case.
  1. [130]
    Section 148(2) of the PS Act does not prescribe that because an employee is performing work for a particular project that the employee should therefore be employed on a temporary basis. Rather, s 148(2) contemplates a range of purposes which may indicate that employment of a person on tenure may not be viable or appropriate. A reasonable decision-maker ought to first identify whether 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. [131]
    The Appellant's submissions highlight that Miss Chiotakis' original letter of appointment is to a TO2 Technical Officer (Geosciences) role and that no reference was made at that time to Project DIG.  The direct pairing of her TO2 role to the project came after the organisational review conducted by QMN, subsequent to the Appellant filing the earlier conversion to permanency appeal.
  1. [132]
    Further, the issue is not whether it was appropriate to initially employ the Appellant on a casual or temporary basis. The Appellant has been engaged to undertake the circumstances prescribed in s 148(2) of the PS Act for more than three and a half years. Section 148(3) of the PS Act provides that employment on tenure may be viable or appropriate if a person is required to be employed under such circumstances on a frequent or regular basis. Miss Chiotakis has submitted that since commencing as a casual TO2 in April 2019, she has had regular and systematic shifts, working approximately 0.6 FTE (that is, six shifts on the same days each fortnight).  That has not been denied by the Respondent and so I accept it to be true.
  2. [133]
    The continual pattern of engaging Miss Chiotakis in paid employment for more than three and a half years illustrates how the Respondent relies upon her on an ongoing basis. A continuous pattern of allocated hours on a casual arrangement and then temporary contract, indicates the Appellant is engaged on a systematic basis.
  1. [134]
    I am satisfied Miss Chiotakis has been employed for purposes mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that her employment on tenure is viable and appropriate. 
  1. [135]
    For the reasons outlined above, I disagree that the genuine operational requirements presented by the Respondent justify a refusal to convert and therefore conclude the Decision was not fair and reasonable in the circumstances.

Conclusion

  1. [136]
    For the reasons detailed above, I conclude the Decision to maintain Miss Chiotakis on a fixed-term temporary basis is not fair and reasonable. There is a continuing need for her to continue working in the role, or a role that is substantially the same.  The Respondent has not evidenced a genuine operational requirement that reasonably prevents Miss Chiotakis' conversion to permanent employment.
  1. [137]
    I order accordingly.

Order:

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

  1. 1.The appeal is allowed;
  2. 2.The decision that Miss Chiotakis not have her (0.6 FTE) TO2 Technical Officer employment converted to permanent is set aside and another decision is substituted; and
  3. 3.Miss Chiotakis' employment status as a (0.6 FTE) TO2 Technical Officer be converted to permanent employment.

Footnotes

[1]Respondent's Submissions, 10 November 2022, 2 [6].

[2]As required under s 149B of the Public Service Act 2008 and Directive 09/20 Fixed Term Temporary Employment.

[3]Public Service Act 2008 (Qld) s 149B(6)(a).

[4]Respondent's Submissions, 10 November 2022, 3 [9].

[5][2022] QIRC 022.

[6][2021] QIRC 152, [80] – [88].

[7]Public Service Act 2008 (Qld) s 149B(7).

[8]Directive 09/20 Fixed term temporary employment cls 8.5 and 8.7.

[9]Permanent part time (0.4 FTE) OO2 Visitor Experience Officer.

[10]Benson v State of Queensland (Department of Education) [2021] QIRC 152, [65] – [79].

[11]Respondent's Submissions, 10 November 2022, 1 [1], [3].

[12]Appellant's Submissions, 4 November 2022, 5 [28].

[13]Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[14] Ibid; Industrial Relations Act 2016 (Qld) s 562B(2).

[15]Industrial Relations Act 2016 (Qld) s 567(2).

[16]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.

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

[18]This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).

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

[20]Respondent's Submissions, 10 November 2021, 2 [1] – [2].

[21][2022] QIRC 022.

[22]That is in fact what occurred. 

[23]Chiotakis v Queensland Museum Network [2022] QIRC 022, [14] – [23].

[24]Appellant's Submissions, 4 November 2022, Attachment 2, 1; Letter from Miss Chiotakis detailing reasons why her TO2 role should be converted to permanent, 17 September 2022.

[25]Letter from Mr P. Denham (Director, Collections and Research, QMN) to Miss C. Chiotakis, 18 February 2022.

[26]Appellant's reply submissions filed 17 November 2022, [2], pages 1 – 2.

[27]Appellant's submissions filed 4 November 2022, [23] – [24], page 4.

[28]Appellant's Submissions, 4 November 2022, 2 [12].

[29]Respondent's Submissions, 10 November 2022, 4 [13].

[30]The relevance of that submission is that the Respondent appears to be invoking s 148(2)(b) of the PS Act, in arguing there to be no continuing need for the role.  That issue is addressed later in this Decision.

[31]Respondent's submissions, 10 November 2022, 4 [15] – [16].

[32]Ibid 2 [2].

[33]Ibid 4 [17].

[34]Ibid 4 [14]; Public Service Act 2008 (Qld) s 98(1)(b), (d).

[35]Chiotakis v Queensland Museum Network [2022] QIRC 022.

[36]Directive 09/20 Fixed term temporary employment cl 8.1.

[37][2018] QSC 225.

[38]Dated 21 July 2022.

[39]Correspondence from QMN to Miss Chiotakis, 21 July 2022.

[40]Respondent's Submissions, 10 November 2022, 2 [7] – [8].

[41][2018] QSC 225.

[42]Temporary Employment Directive 08/17 cl 14.

[43]The end date of Miss Chiotakis' current (0.6 FTE) TO2 fixed-term temporary contract.

[44]QMN Strategic Plan 2022-26, 5.

[45]Ibid 7.

[46]Ibid 9.

[47]Ibid 8.

[48]Ibid 10.

[49]Queensland Museum Project DIG, Schedule A - Contract Specifics, 14.

[50][2021] QIRC 152, 27 [136].

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

[52]IW v City of Perth (1997) 191 CLR 1, 12.

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

[54]Respondent's Submissions, 10 November 2022, 4 [14]; Public Service Act 2008 (Qld) s 25(1)(e).

[55]Respondent's Submissions, 10 November 2022, 4 [14]; Public Service Act 2008 (Qld) s 98(1)(d).

[56][2021] QIRC 397.

[57]Chiotakis v Queensland Museum Network [2022] QIRC 022.

[58]Queensland Museum Project DIG, Schedule B – Project Plan, 15.

[59]Page 3.

[60]Public Service Act 2008 (Qld) s 148(2)(c).

[61]Chiotakis v Queensland Museum Network [2022] QIRC 022, [27] and [40].

[62]Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611, [131].

[63][2022] QIRC 022.

Close

Editorial Notes

  • Published Case Name:

    Chiotakis v Queensland Museum Network

  • Shortened Case Name:

    Chiotakis v Queensland Museum Network

  • MNC:

    [2023] QIRC 34

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    07 Feb 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
4 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Cite 4 - [2021] QIRC 152
Chiotakis v Queensland Museum Network [2022] QIRC 22
8 citations
Jump To
Cite 1 - [2022] QIRC 22
Cite 2 - [2022] QIRC 22
Cite 3 - [2022] QIRC 22
Cite 4 - [2022] QIRC 22
Cite 5 - [2022] QIRC 22
Cite 6 - [2022] QIRC 22
Cite 7 - [2022] QIRC 22
Cite 8 - [2022] QIRC 22
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
IW v City of Perth (1997) 191 CLR 1
2 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Katae v State of Queensland [2018] QSC 225
4 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
Cite 3 - [2018] QSC 225
Cite 4 - [2018] QSC 225
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
2 citations
Jump To
Cite 1 - (2010) 240 CLR 611
Cite 2 - (2010) 240 CLR 611
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
Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 397
2 citations
Jump To
Cite 1 - [2021] QIRC 397
Cite 2 - [2021] QIRC 397
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 1902 citations
1

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