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  4. Battaglia v State of Queensland (Queensland Health) - [2023] QIRC 55

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Battaglia v State of Queensland (Queensland Health)[2023] QIRC 55

Battaglia v State of Queensland (Queensland Health)[2023] QIRC 55

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Battaglia v State of Queensland (Queensland Health) [2023] QIRC 055

PARTIES:

Battaglia, Linda

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/15

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – consideration of whether the respondent conducted review as required – consideration of whether review was conducted under s 149 or s 149B of the Public Service Act 2008 – where appellant is filling a temporary vacancy arising because a person is absent for a known period – where incumbent employee returned to position and then commenced another secondment – whether there is a continuing need for appellant to be employed in same role – whether respondent adequately considered continuing need for appellant to be employed in a role that is substantially the same – consideration of genuine operational requirements

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 27, s 147, 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 9, cl 10

CASES:

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

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

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

Palomino v State of Queensland (Department of Education) [2021] QIRC 129

Power v State of Queensland (Department of State Developments, Tourism and Innovation) [2021] QIRC 53

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

Reasons for Decision

Introduction

  1. [1]
    Mrs Linda Battaglia (the Appellant) is currently employed as a Senior Briefings Officer within the Office of the Deputy Director-General by the State of Queensland (Queensland Health) (the Respondent; the Department).
  1. [2]
    The Appellant is engaged on a fixed term temporary contract. At the time of filing this appeal, the Appellant's fixed term temporary contract was set to conclude on 3 February 2023 but has since been extended until 24 February 2023 to enable determination of the matter. 
  1. [3]
    In correspondence dated 19 January 2023, Ms Erin Graham, Acting Director at the Office of the Deputy-Director General (the decision-maker) advised the Appellant:
  • you are not being converted to permanent employment and will continue as a fixed term temporary employee at this time;
  • the reason for this decision is that there is no continuing need for you in the role due to genuine operational requirements which prevents the Appellant's conversion at this time;
  • there is no continuing need for the Appellant to perform her current role because the substantive incumbent is returning to the role on a full-time basis; and
  • there is surplus staff in addition to operational requirements within the Office of the Deputy Director-General.

(the Decision)

  1. [4]
    On 31 January 2023, the Appellant filed an appeal against the Decision in the Industrial Registry.

The review

  1. [5]
    Section 149B(1) of the PS Act provides for the "Review of status after 2 years continuous employment" and "applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the department for 2 years or more." Pursuant to s 149B(4)(b) of the Public Service Act 2008 (Qld) (the PS Act), a subsequent review must be conducted after each additional year where an employee remains continuously employed.
  1. [6]
    In correspondence dated 17 August 2021, the Department advised the Appellant that:
  • she is eligible for a review of her fixed term temporary employment to determine if she should be converted to permanent employment;
  • her review eligibility date is 12 August 2021; and
  • future reviews will be due annually from 12 August 2021.
  1. [7]
    The Appellant's employment history indicates she was engaged continuously under back-to-back temporary contracts during the period between 12 August 2021 and 12 August 2022. I have not been presented with evidence to suggest otherwise. On that basis, s 149B of the PS Act is applicable to the Appellant.
  1. [8]
    Section 149B(4)(a) and (9)(b) of the PS Act requires the Department's chief executive to make a conversion decision within 28 days from "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department". I have already established the Appellant was eligible for review under s 149B of the PS Act - therefore a review of her employment status ought to have occurred within 28 days from 12 August 2022.[1]
  1. [9]
    The Department conceded that it did not conduct a further review within 28 days from 12 August 2022.[2] On the material before me, it is unclear why a review was not conducted at that time. Rather, the Decision stemmed from the Appellant's request for review on 10 January 2023.
  1. [10]
    In email correspondence to the Industrial Registry, the Department states that the Decision stemmed from a s 149 conversion request. Section 149 of the PS Act provides:
  1. (1)
    This section applies 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 1 year or more.
  1. (2)
    However, this section does not apply to a non-industrial instrument employee.
  1. (3)
    The person may ask the department’s chief executive to 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.

  1. (4)
     A person can not make more than 1 request under subsection (3) in a 12-month period.

(4A)For working out how long the person has been continuously employed in the department—

(a)  all periods of authorised leave are to be included; and

(b)the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 6 weeks or less in the year occurring immediately before the time when the duration of the person’s continuous employment is being worked out.

  1. (5)
    In this section—

fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

  1. [11]
    Section 195(1)(i) of the PS Act provides that a person cannot appeal against "a decision under s 149 not to convert the employment basis of a fixed term temporary or casual employee…" Notwithstanding, the Department does not expressly submit that the Appellant is excluded from appealing the Decision on that basis. Instead, the Department submits the appeal is made under s 194(1)(e) of the PS Act which provides an appeal may be made against a decision under s 149B not to convert the basis of employment of an employee.
  1. [12]
    As outlined above, the Department did not undertake a review of the Appellant's fixed term temporary employment as it was required to on or about 12 August 2022. Following correspondence back and forth with her employer, the Appellant made a formal request for conversion on 10 January 2023.
  1. [13]
    A review under s 149 of the PS Act is triggered by an employee's request in contrast to   s 149B which automatically requires a decision after each one-year period following the two-year anniversary of continuous employment within the Department.[3] As the Department had not conducted a review when it should have from 12 August 2022, the Appellant's request on 10 January 2023 ought not be characterised as a s 149 request. 
  1. [14]
    I find that the review conducted by the Department from 10 January 2023 can appropriately be characterised as a review under s 149B of the PS Act due to the failure to conduct a review the year prior. That is the most fair and reasonable course in these circumstances. On that basis, I find that the Decision was made under s 149B of the PS Act and is appealable.

 What decisions can the Commission make?

  1. [15]
    Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

Appeal principles

  1. [16]
    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. [17]
    The appeal is not conducted by way of re-hearing,[4] but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.[5] 
  1. [18]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[6]
  1. [19]
    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.[7]

Relevant provisions of the PS Act and Directive 09/20

  1. [20]
    Section 148 of the PS Act states:

148  Employment of fixed term temporary employees

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

Examples of absences for a known period –

approved leave (including parental leave), a secondment

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

Examples—

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

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

Examples—

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

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

Example—

an unexpected increase in workload for disaster management and recovery

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

Example—

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

   …

  1. [21]
    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. [22]
    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. [23]
    Directive 09/20 relevantly provides:

8.  Decision on review of status

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

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

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

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

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

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

  1. [24]
    Directive 09/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[8]
  1. [25]
    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. [26]
    The purpose of Directive 09/20 is:
  1. Purpose

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

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

  1. [27]
    Further, Directive 09/20 relevantly provides:

4.   Principles

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

…

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

Submissions

  1. [28]
    In accordance with the Directions Order issued, the parties filed written submissions.
  1. [29]
    Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal.  The matter was decided on the papers.
  1. [30]
    I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this decision by summarising the entirety of those documents but will instead refer to the parties' key positions in my consideration of each question to be decided.

Consideration

  1. [31]
    I note at this juncture that the Appellant's submissions substantially refer to previous advice she received about there being no grounds to apply for temporary employment, her previous employment history and associated circumstances. However, I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at. Although prior mishaps may have occurred, I will not be referring to matters that are irrelevant to a review of the Decision subject of this appeal.
  1. [32]
    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. [33]
    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.[9]

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

  1. [34]
    There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same.

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

  1. [35]
    The Decision provides that there is no continuing need for the Appellant to be employed in her current role because the substantive incumbent is returning to the role on a full-time basis and there is surplus staff in addition to operational requirements within the Office of the Deputy Director-General, HPSP.
  1. [36]
    The Appellant submits that the incumbent employee of the role returned for one week before leaving to undertake a further secondment from 6 February 2023 for a period of up to three months. The Appellant alleges that the incumbent employee "did not want to come back to this role and had specifically requested that from the HPSP DDG in December 2022." The Respondent contends these claims are unsubstantiated and to the contrary, the substantive occupant requested to return to the role early. Further, the Respondent submits the substantive occupant accepted another secondment only after the Decision had been made not to convert the Appellant.
  1. [37]
    The original end date of the Appellant's temporary engagement was seemingly brought forward to coincide with the return date of the substantive employee. That substantive employee returned and then left to engage in another secondment. The Appellant submits that despite the substantive employee leaving for a period of up to three months, the Respondent has not extended the Appellant's temporary contract and she will be terminated on 24 February 2023.
  1. [38]
    I note that the Appellant's fixed term temporary employment has been extended in excess of 20 times since 25 March 2019. As I found in Benson v State of Queensland (Department of Education),[10] although backfilling may have constituted a reason for the Department to initially employ an employee on a temporary basis, after nearly four years of meritoriously undertaking various roles for extensive periods of time, I do not consider it reasonable for the Department to rely on that indefinitely.
  1. [39]
    It is peculiar that the Department placed the Appellant on a temporary contract with a specified end date – then brought forward that temporary contract end date to coincide with the return of the incumbent employee – only for the incumbent to then leave for another secondment shortly after her return. Based on the previous, repeated patterns of engagement as well as the fact the incumbent employee is undertaking another secondment, it appears likely there will be a continuing need to continue engaging the Appellant in her current role.

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

  1. [40]
    The Appellant submits she has been advised "there are many roles vacant and funding available in HPSP and the department and my understanding was that if converted from temp to perm the vacancy could be within the department, not just the current area you were working within."
  1. [41]
    The Appellant contends that when she first commenced in her current role, she received an offer to work "in another AO6 role" but declined because she had promised the incumbent employee she would stay for six months and has always been loyal when she has committed to an area.
  1. [42]
    The Appellant also annexed to her appeal notice two advertisements for "similar" roles to that which she is currently in – an AO5 or AO6 Departmental Liaison Officer and an AO6 Senior Briefing and Liaison Officer. The Respondent contends these roles are temporary, do not meet the definition of continuing need and are not relevant to the Decision.
  1. [43]
    The Respondent submits that a search was conducted on 8 February 2023 by the Recruitment Team of the Department of Health which indicated there were no roles at the AO5 or AO6 level that were the same or substantially the same as the temporary role occupied by the Appellant. The Appellant questions why this search was conducted after and not before the Decision and why a lack of vacancies impacted the Decision.
  1. [44]
    The Appellant refers to the role of a Department Liaison Officer for which she contends requires a very specific skillset. The Appellant submits she was merit listed for a Department Liaison Officer role that was advertised in July 2022. 
  1. [45]
    Clause 8.4 of Directive 09/20 requires:

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:

  1. (a)
    set out the findings on material questions of fact, and
  1. (b)
    refer to the evidence or other material on which those findings were based.
  1. [46]
    The Decision does not address whether there is a continuing need for the Appellant to perform a role that is substantially the same at all. The Respondent only addressed this matter following the Decision.
  1. [47]
    In Palomino v State of Queensland (Department of Education), Deputy President Merrell considered cl 8.4 of Directive 09/20 and concluded the following:

In my view, the decision to not comply with the requirements of section 27B of the Acts Interpretation Act, as required by clause 8.4 of the Directive, and did not comply with the other principles or the adequacy of reasons of administrative decision makers I have referred to above, in respect of the consideration by the decision maker as to whether there was a role that was substantially the same as Mr Palomino’s role. It is not sufficient for decision makers, as occurred in the present case, to merely state that the decision maker has taken into consideration, "Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing".[11]

  1. [48]
    Deputy President Merrell continued:

In my view, decision makers must, where the matter of the availability of a role that is substantially the same as the employee's role is being considered, and a decision is made about that matter, set out the findings on material questions of fact, and refer to the evidence or other material in which those findings were based. Further, in my view, in giving reasons for the decision, as required by section 149B(6)(a) of the PS Act, the findings and reasons of that decision must deal with the substantial issues upon which the decision turned, so that the person aggrieved by the decision can understand why the decision went against him or her.[12]

  1. [49]
    In Power v State of Queensland (Department of State Developments, Tourism and Innovation), Industrial Commissioner Dwyer concluded the following:

[35] Section 149A(4)(a) and s 149B(6)(a) require the chief executive to give the person a notice stating the reasons for the decision. Section 27B of the AI Act and Cl 8.4 of the Directive prescribe what such reasons must address. The decision in this instance fails to meet this standard in my view. I would, for example, expect that a decision of this nature would not simply refer to ‘genuine operational requirements’ without some degree of particulars relevant to Ms Power.

[36] Further, even while the reference to 'the return of an incumbent' might adequately address the particulars as to why Ms Power's current role is not ongoing, a broad reference to ‘all potential roles have been considered’ is insufficient in my view to explain the apparent absence of a role substantially the same.

[37] In my view, the decision needed to refer to evidence relied on to support this conclusion.This would include e.g. details of other roles considered and why some might have been rejected. It must be sufficient to inform Ms Power why the decision was made.[13]

  1. [50]
    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.[14] In this matter I similarly find the Department's failure to adequately address this limb itself renders the Decision not fair or reasonable.
  1. [51]
    I take into consideration the Department's submissions in which the Department submits they conducted a search that did not return any results. However, in light of the circumstances, I am not satisfied with that response. At the very least, the Department should have expanded on other roles that were considered and why they were rejected. Particularly in circumstances where the Appellant has presented submissions with respect to roles that she alleges are similar.
  1. [52]
    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 Department 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. [53]
    The fact of this case is that the decision-maker did not define a role which is substantially the same in the Decision. Nor has the Department's subsequent submissions adequately addressed this requirement. The duty to do so must properly be discharged. 
  1. [54]
    In addition to neglecting the key issue of defining a role which is substantially the same, the Department did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
  1. [55]
    I have found that there is a continuing need for the Appellant to be employed in her current role.  However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb.

Genuine operational requirements

  1. [56]
    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. [57]
    '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.[15]
  1. [58]
    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".[16]

  1. [59]
    Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.
  1. [60]
    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):

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

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

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

…

[40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'[17]

  1. [61]
    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. [62]
    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. [63]
    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. [64]
    Section 148(1) of the PS Act provides that a chief executive may employ a fixed term temporary employee for a fixed term if employment on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under s 98(1)(d) of the PS Act.
  1. [65]
    Section 148(2) of the PS Act indicates employment of a person on tenure may not be viable or appropriate if the employment is for the purpose of filling "a temporary vacancy arising because a person is absent for a known period." The Department contends the Decision is based on continuing staffing needs because the substantive incumbent is returning to the role on a full-time basis and there is surplus staff.
  1. [66]
    Section 148(2) of the PS Act does not prescribe that because an employee is filling a temporary vacancy 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. [67]
    The decision-maker did not reasonably outline why permanent conversion of the Appellant would not be viable or appropriate having regard to the alleged genuine operational requirement. The Department does not address why in their subsequent submissions either. Instead, it appears the Department has concluded the Appellant should be employed on a temporary basis because she is filling a temporary vacancy and there is surplus staff in addition to operational requirements within the Office of the Deputy Director-General. General reference to "surplus staff" is not sufficient in my view, particularly where I have also concluded that the Department failed to discharge the onus of evidencing consideration of roles that are substantially the same.
  1. [68]
    Without specific evidence indicating the Appellant's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that an additional permanent staff member would pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant.
  1. [69]
    A budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees.
  1. [70]
    Considering the substantial length of the Appellant's continuous temporary engagements, there is clearly a constant need for an additional employee. In a situation where the need is constant and substantial, I do not accept that permanent conversion of the Appellant will have a negative impact on organisational viability. Rather, it appears from the evidence before me that permanent conversion may, to some extent, negate the need for circumstances like backfilling in the future. 
  1. [71]
    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 for a purpose mentioned in subsection (2) on a frequent or regular basis." The considerable length of time for which the Appellant has been engaged on temporary contracts suggests there is a need for another permanent employee and it would be unreasonable for the Department to refute the Appellant's request on the basis of surplus staff when she has continuously been paid and utilised in the roles extensively.
  1. [72]
    The issue is not whether it was appropriate to initially employ the Appellant on a temporary basis. Although the nature of temporary work can be unpredictable, in light of her continuous engagement, I accept the Appellant has been engaged frequently - this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by the Appellant in a repetitive pattern, I am satisfied they have been undertaken on a regular basis.
  1. [73]
    I have concluded that the Appellant's role is continuing and the continual pattern of engaging the Appellant over the last four years illustrates how the Department relies upon the Appellant on an ongoing basis. A continuous pattern of temporary contracts indicate that the Appellant is engaged on a systematic basis.
  1. [74]
    I am satisfied the Appellant has been employed for a purpose mentioned in s 148(2) of the PS Act on a regular and systematic basis and am satisfied that the Appellant's employment on tenure is viable and appropriate. 
  1. [75]
    On the material before me, I have found that there is a continuing role, being the role the Appellant is currently undertaking, and that there is a continuing need for her to be employed in that role. In the alternative, I have outlined the unreasonableness of the Department's exploration for a role that is substantially the same.
  1. [76]
    In arriving at this conclusion, I am conscious that the PS Act and Directive 09/20 are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in Directive 09/20 and legislation. Those efforts allow for the achievement of the purpose of Directive 09/20.
  1. [77]
    For the reasons outlined above, I find it was not reasonably open to the decision-maker to determine that the operational requirements presented justify a refusal and therefore conclude that the decision was not fair and reasonable in the circumstances.

Merit

  1. [78]
    The decision-maker stated, "You have demonstrated over this time that you satisfy the merit requirements for the role." I am satisfied the Appellant satisfies the merit principle.

Any requirements of an industrial instrument

  1. [79]
    Neither party presented submissions with respect to any requirements of an industrial instrument that has not been complied with in relation to the Decision.

Reasons for each decision previously made

  1. [80]
    Section 149B(5) of the PS Act requires the decision-maker to have regard to the reasons for each decision previously made, or taken to have been made, under s 149B or 149A in relation to the person during the person's period of continuous employment. The Decision does not refer to reasons for each decision previously made, nor am I privy to those reasons.
  1. [81]
    This omission is another factor that supports the unreasonableness of the Decision. A careful consideration of the Appellant's employment history and the reasons for why she has been denied permanency in the past may have supported a different conclusion.

Conclusion

  1. [82]
    I find the Decision to maintain the Appellant on a temporary basis was not fair and reasonable. There is a continuing need for the Appellant to continue working in her current role or a role that is substantially the same and the Department has not evidenced a genuine operational requirement that reasonably prevents conversion of the Appellant to permanent employment.
  1. [83]
    I order accordingly.

Order:

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

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

Footnotes

[1] Public Service Act 2008 (Qld) s 149B(4)(a), (9)(b).

[2] Email from Ms D. O'Reilly, Queensland Health to Industrial Registry, 10 February 2023.

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

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

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

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

[7] 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.

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

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

[10] [2021] QIRC 152, 25 [120].

[11] [2021] QIRC 129, 9-10.

[12] Ibid.

[13] [2021] QIRC 53.

[14] [2021] QIRC 152, 27 [136].

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

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

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

Close

Editorial Notes

  • Published Case Name:

    Battaglia v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Battaglia v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 55

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    21 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
3 citations
Jump To
Cite 1 - [2021] QIRC 152
Cite 2 - [2021] QIRC 152
Cite 3 - [2021] QIRC 152
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [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
2 citations
Jump To
Cite 1 - [2018] QSC 225
Cite 2 - [2018] QSC 225
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
Palomino v State of Queensland (Department of Education) [2021] QIRC 129
2 citations
Jump To
Cite 1 - [2021] QIRC 129
Cite 2 - [2021] QIRC 129
Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53
2 citations
Jump To
Cite 1 - [2021] QIRC 53
Cite 2 - [2021] QIRC 53
Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260
2 citations
Jump To
Cite 1 - (2003) 201 ALR 260
Cite 2 - (2003) 201 ALR 260

Cases Citing

Case NameFull CitationFrequency
Epong v State of Queensland (Queensland Health) [2025] QIRC 74 citations
1

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