Graham v State of Queensland (Queensland Health)
[2023] QIRC 38
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Graham v State of Queensland (Queensland Health)[2023] QIRC 38
- Add to List
Graham v State of Queensland (Queensland Health)[2023] QIRC 38
Graham v State of Queensland (Queensland Health)[2023] QIRC 38
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Graham v State of Queensland (Queensland Health) [2023] QIRC 038 |
PARTIES: | Graham, Samantha (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/1015 |
PROCEEDING: | Public Service Appeal – Conversion of casual employment |
DELIVERED ON: | 10 February 2023 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
ORDER: | In accordance with s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – casual employment – where the Appellant requested to convert their employment to permanent – where the request was denied – where the Appellant was not converted – consideration of the genuine operational requirements of the Respondent – appeal dismissed |
LEGISLATION AND OTHER INSTRUMENTS | Casual Employment Directive 08/20 cls 5, 7, 8 Industrial Relations Act 2016 ss 562B, 562C Public Service Act 2008 ss 28, 98, 148, 149A, 149B |
CASES: | Cameron v State of Queensland (Queensland Health) [2021] QIRC 226 Johnson v State of Queensland (Queensland Health) [2022] QIRC 289 King v Workers’ Compensation Regulator [2019] QIRC 134 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 |
Reasons for Decision
Background
- [1]Ms Samantha Graham (the Appellant) is substantively employed by the State of Queensland (Queensland Health) (the Respondent) as a casual Operational Services Officer (Cleaner) (002) at the Bundaberg Hospital within the Wide Bay Hospital and Health Service (WBHHS).
- [2]On 9 December 2022, Ms Graham filed an appeal against a deemed decision not to convert her from casual to permanent. On 13 December 2022, the Respondent acknowledged the appeal notice and stated that due to a systems error, Ms Graham was not identified as eligible for a review of her employment status. The parties subsequently agreed to place the matter in abeyance pending a review of Ms Graham’s employment.
- [3]On 22 December 2022, Ms Debbie Carroll, Chief Executive, WBHHS, wrote to Ms Graham to inform her that a review of her employment had been undertaken and that she was not being converted to permanent employment and will continue as a casual employee.
- [4]It is the decision of 22 December 2022 that Ms Graham appeals.
Appeal principles
- [5]Section 562B(3) of 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'.
- [6]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.
- [7]A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
- [8]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (the IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)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 structure
- [9]The relevant provisions of the PS Act and the Casual Employment Directive 08/20 (the Directive) for consideration in this appeal are set out below.
- [10]The PS Act relevantly provides:
149ADecision on review of status
- (1)The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
- (2)The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if –
- (a)the department’s chief executive considers–
- (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
- (ii)the person is eligible for appointment having regard to the merit principle; and
- (b)any requirements of an industrial instrument are complied with in relation to the decision…
- (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…
149BReview of status after 2 years continuous employment
- (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.
- (2)However, this section does not apply to a non-industrial instrument employee.
- (3)The department’s chief executive must decide whether to—
- (a)continue the person’s employment according to the terms of the person’s existing employment; or
- (b)offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer.
- (4)The department’s chief executive must make the decision within the required period after—
- (a)the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
- (b)each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
- (5)In making the decision—
- (a)section 149A(2) and (3) applies to the department’s chief executive; and
- (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.
- (6)If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the employee a notice stating—
- (a)the reasons for the decision; and
- (b)the total period for which the person has been continuously employed in the department; and
- (c)for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and
- (d)each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment…
- [11]The Directive relevantly states:
5.Employment of casual employees
5.1 | Section 148A of the PS Act (Appendix A) provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate. |
5.2 | Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include: |
- (a)backfilling tenured or fixed term temporary staff on short-term emergent leave
- (b)covering short gaps in work rosters of tenured and fixed term temporary employees
- (c)in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
- (d)where needed to work irregular, informal, flexible, occasional or non-rostered hours.
5.3 | Employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis. |
7. | Requirement to review employment status of a casual employee after being continuously employed for two years |
7.1 | Section 149B of the PS Act (Appendix C) provides that an agency must review the employment status of a casual employee for conversion to employment as a general employee on tenure or a public service officer: |
- (a)under section 149B(4)(a), at the end of two years after the employee has been continuously employed as a casual employee, and
- (b)under section 149B(4)(b), annually after the end of the initial two years during which the employee remains continuously employed.
8.Decision on review of status
8.1 | When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): |
- whether there is a continuing need for the employee to be employed in the role, or a role which is substantially the same
- the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
- whether any requirements of an industrial instrument are complied with in relation to the decision, and
- the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.
8.2 | Sections 149A(3) and 149B(5) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency. |
…
8.4 | Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must: |
- (a)set out the findings on material questions of fact, and
- (b)refer to the evidence or other material on which those findings were based.
8.5 | Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe. |
Grounds of appeal
- [12]The basis of the appeal set out in ‘Amended Attachment 1’ filed on 23 December 2022 is:
The Appellant is making the appeal on the basis that they have satisfied the Directive, in all criteria, and can established (sic) that there is a continuing need for her role in a permanent capacity and there is no operation (sic) requirement to prevent the same as they have provided no substantive evidence about the said issue, as such, she should be converted to permanency.
Approach to the appeal
- [13]It is clear that Ms Graham satisfies the conditions contained in cl 7.1 of the Directive and was eligible for a review of her employment status after being continuously employed for two years.
- [14]Clause 8 of the Directive sets out the matters that must be considered per s 149A(2) of the PS Act. With regard to these matters, I note that the decision of 22 December 2022: recognised that there was a continuing need for Ms Graham to be employed in the role; stated that Ms Graham satisfies the merit criteria required by s 28 of the PS Act; addressed the requirements of the industrial instrument with regard to the decision and noted that there have been no decisions previously made regarding Ms Graham’s employment.
- [15]The decision not to convert Ms Graham’s employment has been made on the basis that conversion is not viable or appropriate having regard to the genuine operational requirements of the agency per cl 8.2 of the Directive.
- [16]The question before me in this appeal is therefore whether it was fair and reasonable for the Respondent to determine that the genuine operational requirements of the Health Service made conversion not viable or appropriate.
Was it fair and reasonable to decide that conversion was not viable and appropriate with regard to the genuine operational requirements of the agency?
Respondent's submissions
Ms Graham's work history
- [17]WBHHS says that over the last two years, Ms Graham has been engaged as a casual to cover emergent leave, and when engaged on temporary fixed-term contracts, these have been for the purposes of backfilling the leave of substantive employees, backfilling temporarily vacant roles while recruitment is being undertaken, or to meet temporary increases in demand. Ms Graham’s casual hours have varied from week-to-week depending on the service’s requirements at the time. The Respondent attaches 'WB-01', a schedule of Ms Graham’s employment history for the two-year period.
Genuine operational requirements
Workforce strategy
- [18]WBHHS says there is a legitimate and genuine need for the use of casual and temporary employees as a contingent workforce within Operational Services at the Bundaberg Hospital. WBHHS says that the use of a contingent workforce is a strategy utilised to ensure resourcing across the various shift rosters within the different positions and areas of the hospital, allowing for the various types of leave taken by permanent employees.
- [19]WBHHS says that it employs a fixed, permanent and budgeted establishment of full-time equivalent (FTE) employees aligning with the operational requirements of each Department, and a contingent workforce of casual staff to backfill emergent leave and to engage in fixed-term temporary contracts as required to backfill other forms of planned leave or to meet temporary increases in demand.
Impact of conversion
- [20]WBHHS contends that it is funded to deliver services, is allocated funding to appropriately staff those services, and the service is rostered accordingly. Converting Ms Graham to permanent would have the effect of requiring the service to create an entirely new permanent position in the roster, above the required and approved level of staff to deliver services. WBHHS also says that converting Ms Graham to permanent would not negate the requirement to backfill the existing permanent FTEs by other casual or temporary employees when these employees access leave.
- [21]WBHHS further submits that in effect, converting Ms Graham to permanent removes the Respondent’s workforce and rostering flexibility and creates inefficiencies, and that this would be contrary to s 98 of the PS Act which requires the Chief Executive to manage their department in a way that promotes the ‘effective, efficient and appropriate management of public resources’.
- [22]WBHHS says that the requirement to backfill substantive FTEs is variable and the use of the contingent workforce to manage fluctuations in staffing needs is critical to ensure the required level of services are able to be delivered across the various shifts.
- [23]WBHHS has converted numerous employees to permanent, however says that this is a case where it relies on genuine operational requirements in denying the application for conversion.
- [24]WBHHS therefore says that the decision complies with s 148(2)(a), (c) and (e) of the PS Act.
- [25]In response to Ms Graham’s submission that there is a continuing need for her to be employed, WBHHS agrees, but says that this is but one factor to consider. The Respondent cites Cameron v State of Queensland (Queensland Health),[1] where the Commission considered the ‘the need to maintain the availability of a flexible workforce on a 24 hours per day/7 days per week basis is a compelling and genuine operational requirement’.[2] In that decision, it was also found that ‘the structure of both the PS Act and the Directive is such that even where all other mandatory considerations and criteria fall in favour of a candidate for conversion, it may still be refused in the presence of genuine operational requirements’.[3]
- [26]WBHHS says that the Directive and the Act set out situations where the use of tenured employment is generally not viable and includes circumstances in which Ms Graham has been engaged, such as ‘to fill a temporary vacancy for a known period’. WBHHS says that it does not have a genuine operational need to permanently employ two people in the same position at the same time, performing the same role, and that it is not viable or appropriate to do so. In each case of ‘leave backfill’, the substantive incumbent has returned to their position, their full-time hours or funding for a particular project has ceased and Ms Graham is no longer required.
- [27]In the absence of a definition of the term ‘genuine operational requirements’ in the Directive or relevant legislation, WBHHS relies on the approach taken in Morison v State of Queensland (Department of Child Safety, Youth and Women),[4] where Merrell DP considered 'genuine' to mean 'authentic' and also addressed the legislative responsibilities of chief executives under PS Act to manage '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’.
- [28]WBHHS says it has a permanent establishment of the required number of full-time equivalent staff to deliver the level of services required in the roles in which Ms Graham has been engaged to backfill leave as part of the contingent workforce of casual on call and temporary employees to supplement the permanent workforce and provide flexibility and continuity. WBHHS says that an order to convert Ms Graham to permanent would leave it in a position of attempting to factor a surplus employee into the roster each day and where the Respondent has no workforce need to create a new roster line position. WBHHS says that it would, in essence, be required to either attempt to match Ms Graham’s converted hours in accordance with the Directive to work that may or may not be available each day, or alternatively work two people into one rostered position where it is unable to achieve an appropriate match.
- [29]WBHHS says that it is fair and reasonable for it to staff its services in accordance with approved establishment relevant to the workforce needs of the service and in a regional setting in which it operates a 24/7 operation, it is essential to supplement its permanent workforce with contingent staff.
Appellant’s submissions
- [30]Ms Graham has grouped her submissions under four headings: 'Insufficient evidence'; 'Absence of roles'; 'Operational requirements'; and 'Continuing need'.
Insufficient evidence
- [31]Ms Graham submits that WBHHS has provided no evidence but for the list of positions she has backfilled from 26/10/2020 through to 17/10/2022.[5]
- [32]Ms Graham says that WBHHS has provided no evidence of what the effect would be on the contingent if the Appellant would be converted to a permanent position, or in the alternative, the Respondent has not provided any evidence as to the potential effect of the permanency conversion.
- [33]On this basis, and with reference to a workers’ compensation appeal case where it was said that the rules of evidence are ‘a method of inquiry best calculated to prevent error and elicit truth’,[6] Ms Graham submits that the submissions of WBHHS are without evidence or basis and should be dismissed.
Absence of roles
- [34]Ms Graham notes that there is no requirement for a budgeted vacancy or pre-existing position in order for her to be converted to permanency and that any submission of WBHSS to this effect should be dismissed as it is without basis or merit.
Operational requirements
- [35]Ms Graham refers to a matter where the Commission converted a person to permanent on appeal when similar reasons were provided by WBHHS for deciding not to convert employment from casual to permanent.[7] In that decision, the Commission rejected the submissions of WBHHS on the basis that the issues raised were superficial concerns; a permanent workforce makes budgeting and expenditure more predictable; the Respondent did not reference material facts, calculations or evidence as to how conversion conflicts with legislative frameworks and said that the effect on the roster is not a reason to prevent conversion.[8]
- [36]Ms Graham says that WBHHS has not provided any material or submissions to differentiate this from the case relied upon above and so, as occurred in that matter, she should be converted. Ms Graham notes that in that decision, the Commissioner referred to a number of cases in which conversion appeals had been successful in analogous circumstances.[9]
Continuing need
- [37]With regard to the WBHHS's position that there is an ongoing need for Ms Graham, but that there is no certainty regarding the hours she may be required, Ms Graham refers to 'WB-01' and says that it shows her average weekly hours over two years were 18.53 and this shows a consistent pattern of hours over a long period of time.
- [38]Ms Graham submits that she would be seeking conversion to full-time hours and that this would be practical on the basis that there is a need for her. Ms Graham says that on the basis of her evidence, she has a ‘substantial pattern of work’ with WBHHS.
Consideration
- [39]Ms Graham meets the merit requirement for conversion and it has been established that there is a continuing need for her to be employed. As stated above, the matter to be considered in this appeal is whether it was fair and reasonable for Ms Carroll to determine that conversion was not viable or appropriate on the basis of the genuine operational requirements of WBHHS.
- [40]Ms Graham has calculated that she has worked ‘average weekly hours’ over the two-year period of 18.53. I have reviewed WB-01 and while I agree with the calculation, it is clear that this average is not arrived at on the basis of a regular pattern of hours worked on a week-to-week basis. The hours worked by Ms Graham persistently vary and are not representative of a proven need for her to be converted to permanent on the full-time basis she requests or that to do so would be ‘practical on the basis that there is a need for her with the Respondent’.
- [41]I have considered cl 5.3 of Directive 08/20 which says that employment on tenure may be viable and appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis. An analysis of the hours worked by Ms Graham throughout the two-year period demonstrates to me that she has been employed on a continuing basis, and her temporary and casual engagements have genuinely been for the purpose of backfilling permanent employees who are on leave in order to cover gaps in the work roster. However, as noted above, the number of hours she is required to be engaged fluctuates from week-to-week from a low of 5.5 hours to a high of 56 hours,[10] and so while the engagements have been regular, I do not find that this demonstrates evidence of a reliable pattern of hours or shifts worked which would make the work systematic to an extent warranting conversion.
- [42]I note Ms Graham’s submissions that the WBHHS has not provided evidence of the impact of conversion on the roster or the potential effect of conversion. However, Ms Graham does not articulate what evidence would be satisfactory in demonstrating points made in WBHHS’s submissions with regard to this. WB-01 is evidence that Ms Graham is a part of the contingent workforce maintained by WBHHS to supplement the permanent establishment and maintain continuity of services on 24/7 basis. I accept the WBHHS's submissions that an order to convert Ms Graham would necessitate the creation of a new roster line. It has been observed many times in matters such as these that this is natural outcome of conversion and is not, in itself, a reason to deny conversion. However, I accept the WBHHS's submissions that it is currently maintaining a permanent workforce which meets its rostering requirements and that to add Ms Graham to the roster would necessitate finding her work each day, or to have two people working in the one rostered position.
- [43]I agree with Ms Graham’s submission that there is no need for a budgeted permanent vacancy to be available in order for conversion to occur. This has been confirmed by the Commission on many occasions. The effect of the WBHHS's submissions in this regard appears to be not that conversion cannot occur in the absence of a budgeted vacancy, but that: the hospital is funded to deliver services, an assessment has been made as to how many permanent operational officer cleaners are required to deliver those services, the hospital is funded to employee those staff, and that there is a need to backfill those staff with a contingent pool of casual and temporary employees.
- [44]I note Ms Graham’s submission that ‘the cost of converting a permanent employee would cost less than a casual employee, and they have provided no evidence as to how the Respondent would suffer a detriment’. However, Ms Graham does not elaborate on this submission or provide any further information in support of the first part of that submission. With regard to the second part of that submission, and for the reasons given above, I have accepted that the detriment to the Respondent relates to its capacity to backfill permanent staff with a casual workforce.
- [45]Ms Graham has referred to other decisions of this Commission where conversion has been ordered. I am aware of these decisions, specifically those which were matters before me. While decisions of the Commission relating to similar matters may provide a guide for parties in preparing their submissions, reference to previous outcomes and reasons is not a substitute for submissions specific to the decision under appeal.
- [46]As stated in Cameron,[11]‘the structure of both the PS Act and the Directive is such that even where all other mandatory considerations and criteria fall in favour of a candidate for conversion, it may still be refused in the presence of genuine operational requirements’
- [47]I accept that Ms Graham has been employed to fill temporary vacancies arising from absences of permanent staff in circumstances of variable demand and that this is a factor which may mean that tenured employment is generally not viable or appropriate and that casual employment may appropriately be used to meet staffing needs per cl 5.2 of Directive 08/20. WBHHS has adequately explained that it has a genuine and compelling operational requirement for Ms Graham to remain a part of the casual or temporary pool available to maintain continuity of service. I find that 'WB-01' demonstrates a continuing need for Ms Graham to work as a casual or temporary employee to backfill for differing hours on a week-to-week basis depending on what leave is taken by the permanent workforce.
- [48]I find that it was open to Ms Carroll to determine that having regard to the genuine operational requirements of WBHHS, it was not viable or appropriate to offer to convert Ms Graham’s employment to permanent. The decision of 22 December 2022 is confirmed.
Order
- In accordance with s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
Footnotes
[1][2021] QIRC 226 ('Cameron').
[2]Ibid [25].
[3]Ibid [27].
[4][2020] QIRC 203.
[5]Respondent's submissions filed 30 January 2023, attachment 'WB-01'.
[6]King v Workers’ Compensation Regulator [2019] QIRC 134, [25].
[7]Johnson v State of Queensland (Queensland Health) [2022] QIRC 289.
[8]Ibid [81]-[84].
[9]Ibid [86].
[10]I note that there are several weeks where the listed number of hours engaged is '0', however it is unclear to me whether these were weeks when Ms Graham had made herself unavailable or where the employer had no need to engage her.
[11]Cameron (n 1).