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  4. Barnes v State of Queensland (Queensland Health) - [2024] QIRC 107

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Barnes v State of Queensland (Queensland Health)[2024] QIRC 107

Barnes v State of Queensland (Queensland Health)[2024] QIRC 107

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Barnes v State of Queensland (Queensland Health) [2024] QIRC 107

PARTIES:

Barnes, Katrina

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/180

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

10 May 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where a request was made under a Certified Agreement to increase the Appellant's substantive hours – where the request was denied – whether the request was unjustifiably refused – consideration of whether decision was fair and reasonable in the circumstances – where decision was fair and reasonable.

LEGISLATION:

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

Public Sector Act 2022 (Qld), ss 81 and 131

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Queensland [2018] QSC 319

Reasons for Decision

Introduction

  1. [1]
    Ms Katrina Barnes ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Radiographer with Atherton Hospital Medical Imaging ('AHMI') within the Cairns and Hinterland Hospital and Health Service.
  1. [2]
    A Notice of Appeal was filed by the Appellant pursuant to s 131(1)(d) of the Public Sector Act 2022 ('PS Act') following a decision by the Respondent to reject the Appellant's request to increase her substantive hours from 0.5 FTE to 0.6 FTE under cl 12.5.1 of the Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No.4) 2022 ('the HPDO Agreement').

Appeal principles

  1. [3]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [4]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the decision by the Respondent to reject the Appellant's request to increase her substantive hours from 0.5 FTE to 0.6 FTE was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [5]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [6]
    In the appeal notice, the Appellant states that the decision to refuse her request was unfair and unreasonable on the basis that she has been working the same roster pattern including the additional hours for approximately 44 months and so her substantive hours of 0.5 FTE should be amended to 0.6 FTE to reflect the hours she has been working since January 2020.

Submissions

  1. [7]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [8]
    The Appellant's submissions are summarised as follows:
  1. (a)
    Since approximately January 2020, the Appellant has been employed by the Respondent at AHMI as a permanent part-time Senior Radiographer (HP4) ('the permanent position').
  1. (b)
    The Appellant continues to be engaged on an ongoing part-time 38 hours per fortnight contract (0.5 FTE) in the permanent position.
  1. (c)
    Since January 2020, the Appellant has been engaged under a consecutive series of temporary contracts to work an additional 7.6-hour shift per fortnight (0.1 FTE) at AHMI as a Senior Radiographer (HP4) ('the temporary position').
  1. (d)
    Since January 2020, the Appellant has been working the following roster in the permanent position –

Week 1

Week 2

Day

Start

Finish

Hours

Day

Start

Finish

Hours

Tuesday

0830

1630

7.6

Tuesday

0830

1630

7.6

Wednesday

0830

1630

7.6

Wednesday

0830

1630

7.6

Thursday

0830

1630

7.6

Thursday

0830

1630

7.6

Total Weekly Hours

22.8

22.8

Total Fortnightly Hours

45.6

  1. (e)
    The Appellant's engagements in the permanent position and temporary position are covered by the HPDO Agreement.
  1. (f)
    Clause 12.5.1 of the HPDO Agreement provides the following –

Part-time employees, following approval, may work more than their substantive (contracted hours) on an ad-hoc or temporary basis. Where an employee works more than their substantive (contracted hours) on a regular basis over a 12 month period, the employee may request an amendment to their substantive part-time hours to reflect the increased hours worked. Such requests should not be unreasonably refused.

  1. (g)
    On 13 July 2023, the Appellant raised with her Line Manager, Mr Locos, that her 7.6 hours in the temporary position be made permanent. Mr Lucos responded that this was not possible on the grounds that AHMI does not have vacant FTE and the Appellant was backfilling a Flexible Working Arrangement ('FWA'). A Human Resources Consultant, Ms O'Neil, informed the Appellant that she would not be eligible under Directive 02/23 to make an application for review of Mr Lucos' decision as she was not a temporary employee given she already holds 0.5 FTE permanent hours. However, she could make an application under clause 12.5 of the HPDO Agreement
  1. (h)
    On 25 July 2023, United Workers Union (UWU), on behalf of the Appellant, informed Ms O'Neil that the Appellant had made a request pursuant to cl 12.5 of the HPDO Agreement as guided and that Mr Lucos had refused that request on the grounds that "there are currently no FTE available". The Appellant disagreed with the decision and sought for her request to be actioned upon the grounds that it was evident that there was a continuing need for the Appellant to keep working the 0.6 FTE in the permanent position and the temporary position.
  1. (i)
    On 25 August 2023, Mr Locos confirmed in an email to UWU that the decision to refuse the Appellant's request was upon the grounds that AHMI had a permanent staffing level of 1.5 FTE which was currently filled.
  1. (j)
    The Appellant submits that she is entitled to have her substantive hours of 0.5 FTE amended to 0.6 FTE to reflect the hours she has been working since January 2020 on the basis that she has been continuously employed to work the roster for approximately 44 months and that she meets the merit principle.
  1. (k)
    The Appellant has undertaken multiple consecutive temporary fixed term contracts in the permanent position. Her employment history demonstrates that she has been extended in the temporary position on a number of occasions and was recently extended until 8 October 2023. Clause 12.3.3 of the HPDO Agreement provides that fixed term temporary contracts should reflect the actual duration of the engagement and the reasons for the engagement being temporary. The 'Comments' section of the current temporary fixed term contract states, "… has extended his flexible working arrangement at 0.6 FTE (PRN 13483231), so Katrina has agreed to flex up to support service continuity".
  1. (l)
    The decision not to amend the Appellant's substantive part-time hours (0.5 FTE) to reflect the increased hours worked (0.6 FTE) is unfair and unreasonable because -
  1. i)
    The employment of the Appellant may be on a non-permanent basis only if employment on a permanent basis is not viable or appropriate (s 81(2) of the PS Act). The Appellant submits that it is viable and appropriate to add the 0.1 FTE in the temporary position to her substantive hours as for the previous approximate two years, the respondent has temporarily funded 0.7 FTE in the AHMI in addition to the permanent 1.5 FTE to address a requirement of employees to perform additional duties whilst on call. This additional 0.7 FTE has been predominantly worked by locums (i.e. agency staff) with the Appellant and [Employee X] being the only permanent employees engaged to work the permanent 1.5 FTE. It appears unlikely that there will not be an ongoing need for the additional temporary 0.7 FTE.
  1. ii)
    Although amending the Appellant's substantive hours by 0.1 FTE in the permanent position may not be viable or appropriate because the temporary contracts were to fill a temporary vacancy arising due to a person being absent for a known period (s 81(3)(a)(i)), the amendment may be viable or appropriate if the Appellant has been required to be employed in the temporary position for the purpose on a frequent or regular basis (s 81(4)). The Appellant submits that the amendment is viable and appropriate because she has been working in the temporary position for approximately 44 months and for the foregoing reasons.
  1. (m)
    There are no genuine operational requirements presented by the Respondent to justify a refusal to amend the Appellant's substantive hours as sought and therefore the Commission ought to conclude that the decision was not fair and reasonable in the circumstances.

Respondent's submissions

  1. [9]
    The Respondent's submissions are summarised as follows:
  1. (a)
    The Appellant has been employed with the Respondent as a Radiographer since 18 September 2009.
  1. (b)
    On 16 December 2019, the Appellant was permanently appointed as a Radiographer Senior in Atherton (position 30464150) to 0.5 FTE (by way of temporary to permanent conversion) under Directive 08/17 Temporary Employment.
  1. (c)
    From 13 to 26 January 2020, the Appellant's hours were temporarily increased to 1.0 FTE to backfill a period of leave.
  1. (d)
    From 27 January to 26 April 2020, the Appellant's hours were temporarily increased to 0.6 FTE to backfill an employee's temporary reduction in hours.
  1. (e)
    On 27 April 2020, the Appellant returned to her permanent substantive hours of 0.5 FTE.
  1. (f)
    Subsequently and leading up to lodgement of the Appeal, the Appellant engaged in a series of discrete appointments with the Respondent to temporarily increase to 0.6 FTE so as to backfill an employee's temporary reduction in hours over the following periods:
  1. i)
    30 November 2020 to 28 November 2021
  1. ii)
    29 November 2021 to 26 June 2022
  1. iii)
    27 June 2022 to 25 June 2023
  1. iv)
    26 June to 8 October 2023
  1. (g)
    On each occasion, the Appellant executed the requisite appointment with an acknowledgement that the appointment was of a temporary nature and may be ended by the line manager with the appropriate notice in accordance with award provisions.
  1. (h)
    On 12 July 2023, the Appellant requested a review under Direction 02/23 Conversion.
  1. (i)
    On 13 July 2023, the Respondent advised the Appellant she was not eligible to be considered under Directive 02/23 as she already held a permanent position.
  1. (j)
    On 13 July 2023, the Appellant emailed her line manager in relation to amending her contract to include the additional hours she had been working. The Appellant's line manager confirmed that: … Currently Atherton does not have vacant FTE, you are backfilling a flexible working arrangement …
  1. (k)
    On 25 July 2023, the Appellant via the UWU confirmed her request should be actioned on the basis that there is a continuing need for the Appellant to keep working 0.6 FTE.
  1. (l)
    On 25 August 2023, the Appellant's line manager advised: … Atherton Hospital Medical Imaging has a permanent staffing level of 1.5 FTE which is currently permanently filled. I am sorry to say that I am unable to permanently appoint above this level. Should permanent FTE become available I would have no hesitation in offering (the Appellant) the extra 0.1 FTE permanently in Atherton.
  1. (m)
    Clause 12.5.1 of the HPDO Agreement relevantly provides –

Part-time employees, following approval, may work more than their substantive (contracted hours) on an ad-hoc or temporary basis. Where an employee works more than their substantive (contracted hours) on a regular basis over a 12 month period, the employee may request an amendment to their substantive part-time hours to reflect the increased hours worked. Such request should not be unreasonably refused.

  1. (n)
    The Radiographer Senior Atherton (position 30464150) is permanently funded for 1.5 FTE. The Appellant permanently holds 0.5 FTE and 1.0 FTE is substantively held by another employee (Employee X).
  1. (o)
    Employee X has entered a series of FWA which temporarily reduces Employee X's hours from 1.0 FTE to 0.6 FTE. Each FWA has created a temporary vacancy in position 30464150 of 0.4 FTE.
  1. (p)
    Since 30 November 2020, the Appellant's hours have been temporarily increased by 0.1 FTE to 0.6 FTE to backfill a portion of the FTE left vacant due to Employee X's engaging in the FWA. The remaining hours have been filled by other employees of the Respondent and Locums where required.
  1. (q)
    The decision to refuse the Appellant's request for a permanent increase to her substantive part-time hours was reasonable as:
  1. i)
    The Appellant's increase in hours is due of Employee X's FWA which by its nature could be rescinded by either Employee X or the Respondent at any time. Should this occur, there would be no operational requirement for the Appellant to work the additional 0.1 FTE; and
  1. ii)
    A permanent increase in the Appellant's hours would result in an over establishment of 0.1 FTE which would compromise the effective management of the Respondent's resources.

Appellant's submissions in reply

  1. [10]
    In reply, the Appellant made the following submissions –
  1. (a)
    As previously submitted, since January 2020, the Appellant has been engaged under a consecutive series of temporary contractors to work an additional 7.6 hour shift per fortnight (0.1 FTE) at AHMI as a Senior Radiographer (HP4).
  1. (b)
    The Appellant denies the Respondent's submissions that "subsequently and leading up to lodgement of the Appeal, the Appellant engaged in a series of discrete appointments with the Respondent to temporarily increase to 0.6 FTE … over the following periods … 30 November 2020 to … 8 October 20203".
  1. (c)
    The Appellant maintains that she remained engaged under a consecutive series of temporary contracts to work an additional 7.6-hour shift per fortnight (0.1 FTE) during the period from 27 April 2020 to 29 November 2020 (the relevant period).
  1. (d)
    The Appellant acknowledges that temporary contracts covering the relevant period were not included in attachment 'KB2' to the Appellant's submissions. The Appellant submits that both parties appear unable to locate the temporary contracts covering the relevant period.
  1. (e)
    The Appellant submits that her payslips related to the relevant period indicate that she continued to work at least the additional 0.1 FTE during the relevant period.
  1. (f)
    The Appellant submits that even if she was not engaged under temporary contracts during the relevant period, which is denied, she still worked at least the additional 0.1 FTE on, at least, an ad hoc basis which satisfied the requirement of clause 12.5.1 of the HPDO Agreement. Noting that clause 12.5.1 of the HPDO Agreement states 'work[ing] more than their substantive (contracted hours) on an ad-hoc or temporary basis'.
  1. (g)
    The Appellant repeats the submission that "…the Respondent has temporarily funded 0.7 FTE in the AHMI additional to the permanent 1.5 FTE to address a requirement of employees to perform additional duties whilst on call … It appears unlikely that there will not be an ongoing need for the additional temporary 0.7 FTE". The Appellant maintains this submission and notes that the Respondent has not addressed this submission in the Respondent's submissions.

Consideration

  1. [11]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [12]
    The Appellant holds a substantive position as a Radiographer at the Atherton Hospital at 0.5 FTE. The owner of the substantive 1.0 FTE position (Employee X) engaged in a flexible working arrangement with the Respondent that temporarily reduced their position to 0.6 FTE. The Appellant performed an additional 0.1 FTE over a period of time to backfill a portion of Employee X's remaining 0.4 FTE.
  1. [13]
    There appears to be disagreement as to the length of time that the Appellant has been performing an additional 0.1 FTE on temporary contracts. The Appellant submits that she has been working an additional 0.1 FTE on temporary contracts since January 2020. However, the Respondent submits that the Appellant worked 0.6 FTE from 27 January 2020 to 26 April 2020, before returning to her 0.5 FTE position in the period between 27 April 2020 and 30 November 2020.
  1. [14]
    The Appellant submits that whilst she is unable to produce the temporary contracts covering the disputed period, the pay slips submitted indicated that the Appellant had worked the additional 0.1 FTE (7.6-hour shift) from 27 April 2020 to 30 November 2020. In the absence of a temporary engagement covering this period, it is accepted that at the very least the Appellant worked the additional 0.1 FTE on an ad-hoc basis during this time.
  1. [15]
    It is otherwise agreed between the parties that the Appellant worked the additional 0.1 FTE pursuant to temporary contracts over the following dates between 27 January 2020 and 26 April 2020, and 30 November 2020 to 8 October 2023.
  1. [16]
    On 13 July 2023, the Appellant requested an amendment to her permanent contract to include the additional 0.1 FTE pursuant to cl 12.15.1 of the HPDO Agreement.
  1. [17]
    This increase to the Appellant's permanent hours was refused by the Appellant's line manager, Mr Locos. Mr Locos advised that the request could not be approved on the basis that there was no vacant FTE available as the Appellant was backfilling a flexible working arrangement.
  1. [18]
    Clause 12.5.1 of the HPDO Agreement relevantly provides –

Part-time employees, following approval, may work more than their substantive (contracted hours) on ad ad-hoc or temporary basis. Where an employee works more than their substantive (contracted hours) on a regular basis over a 12 month period, the employee may request an amendment to their substantive part-time hours to reflect the increased hours worked. Such request should not be unreasonably refused.

  1. [19]
    The Appellant has worked the additional 0.1 FTE for a continuous period of at least 3 years, either on the basis of continuous temporary contracts or a majority of temporary contracts and ad hoc arrangements. On the basis that this employment history exceeds the 12 months outlined in cl 12.5.1 of the HPDO Agreement, it was open to the Appellant to request an amendment to her substantive part-time hours to reflect the increased hours worked.
  1. [20]
    The question to be determined is whether Mr Locos' decision was fair and reasonable. In circumstances involving a request under cl 12.5.1 of the HPDO Agreement, this question requires consideration of the whether the Appellant's request had been 'unreasonably refused'.
  1. [21]
    The Appellant is employed on a permanent part-time basis and whilst this is not an appeal regarding a conversion decision, the principles guiding temporary engagements in the PS Act provide assistance in considering the circumstances that may give rise to reasonable refusal of a request for temporary additional hours to be made permanent.
  1. [22]
    Section 81(2) of the PS Act provides that employment is to be permanent unless it is not viable or appropriate. Section 81(3) is outlined as follows -
  1. (3)
    Without limiting subsection (2) , employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes—
  1. (a)
    in relation to employment on a temporary basis for a fixed term—
  1. (i)
    to fill a temporary vacancy arising because a person is absent for a known period; or
  1. Examples of absence for a known period—
  1. approved leave (including parental leave), a secondment
  1. (ii)
    to perform work for a particular project or purpose that has a known end date; or
  1. Example—
  1. employment for a set period as part of a training program or placement program
  1. (iii)
    to fill a position for which funding is unlikely or unknown; or
  1. Example—
  1. employment relating to performing work for which funding is subject to change or is not expected to be renewed
  1. (iv)
    to fill a short-term vacancy before a person is employed on a permanent basis; or
  1. (v)
    to perform work necessary to meet an unexpected short-term increase in workload;
  1. Example—
  1. an unexpected increase in workload for disaster management and recovery

…

  1. [23]
    The Appellant's temporary engagements for the additional 0.1 FTE can be considered as arising out of the circumstances outlined in s 81(3)(a). The temporary 0.1 FTE arose because Employee X was absent for a known period. The known period is each temporary contract, and it is not unusual for each known period to reflect an extension in the time that the substantive employee is not working the vacant FTE. As outlined in s 81(3)(a), employment on a permanent basis in these circumstances may not be considered viable or appropriate.
  1. [24]
    Section 81(4) states that employment of a person on a permanent basis "may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis." The circumstances of the Appellant's employment indicate that the temporary engagements occurred on a frequent or regular basis. As such, a permanent increase in the Appellant's substantive hours may be viable and appropriate at some point.
  1. [25]
    The absence of an employee from a permanent position through secondment or on approved leave, such as parental leave, has regularly been determined by this Commission as a reasonable basis upon which to decline to appoint a temporary employee on a permanent basis. This is not an absolute proposition, with the outcome of each matter turning on its own facts. The difficulty with this matter is that there is no information before the Commission as to the likely duration of Employee X's FWA. I note the Respondent's submission that Employee X's FWA could be rescinded at any time, resulting in an over-establishment of 0.1 FTE if the Appellant's employment was increased to 0.6 FTE.
  1. [26]
    Continued extensions of each 'known period' during which Employee X will be engaged on a FWA indicate a lack of certainty regarding the date of the employee's return to their full-time hours. This is often not unusual given the nature of these agreements. It may be the case that Employee X will return to their full FTE in the near future, or it may be that the FWA continues for an extended period of time. Employee X has the right to return to their full FTE at any time given the full-time permanent nature of their employment. If the Appellant's request had been granted and Employee X returned to their full FTE soon after, the Respondent would have an unnecessary surplus in that position. This outcome would be an inefficient use of resources in circumstances where two employees would be engaged to cover the same 0.1 FTE.
  1. [27]
    There is no requirement to consider whether genuine operational reasons existed for the decision to not convert the temporary 0.1 FTE to permanent hours for the Appellant as this decision relates to the application of a clause in the HPDO Agreement rather than a conversion decision. However, to assist in determining whether the decision in this matter was reasonable, I consider that the existence of a permanent employee on a FWA temporarily not undertaking the 0.1 FTE provides a genuine operational reason to not permanently allocate that 0.1 FTE to the Appellant. This genuine operational reason forms a reasonable basis for the Respondent's decision.
  1. [28]
    The Appellant submits that the Respondent has temporarily funded 0.7 FTE in addition to the permanent 1.5 FTE to address a requirement of employees to perform additional duties whilst on call. There is no information before the Commission as to the length of time over which this additional FTE has been funded or whether the duties of this additional FTE are equivalent to that of the 0.1 FTE.
  1. [29]
    On the material before the Commission, I am satisfied that the decision was fair and reasonable on the basis that the Appellant's request was not unreasonably refused. Accordingly, the decision is confirmed.

Order

  1. [30]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

Close

Editorial Notes

  • Published Case Name:

    Barnes v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Barnes v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 107

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    10 May 2024

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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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