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Wood v State of Queensland (Queensland Health)[2024] QIRC 173

Wood v State of Queensland (Queensland Health)[2024] QIRC 173

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wood v State of Queensland (Queensland Health) [2024] QIRC 173

PARTIES:

WOOD, Leanne

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/86

PROCEEDING:

Public Sector Appeal – Appeal against a conversion decision

DELIVERED ON:

19 July 2024

MEMBER:

Caddie IC

HEARD AT:

On the papers

ORDER:

  1. The decision appealed against is set aside.
  1. The matter is returned to the decision-maker along with a copy of this decision, and they are directed to conduct a fresh review of the Appellant's employment status within 28 days of the date of this decision, in accordance with the relevant provisions of the PS Act and the Directive.
  1. Upon completion of the fresh review, the decision-maker will issue a new notice of the Appellant's employment status in compliance with legislation and the Directive.
  1. The Appellant will be continued in her role as Administration Officer (AO3) DDHHS to enable the review to be undertaken and her appeal rights preserved in relation to any resultant decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where the appellant is employed by the respondent as a fixed term temporary administration officer (AO3) – where the appellant was reviewed for conversion to permanent employment under the Public Sector Act 2022 – where the respondent relies on no continuing need for someone to be employed in the employee's role or a role that is substantially the same – where respondent acknowledges a fresh review is appropriate – whether the decision is fair and reasonable – decision appealed against is set aside and a fresh review is to be conducted.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 27B.

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

Public Sector Act 2022 (Qld) ss 81, 114, 115, 129, 131, 133.

Public Sector Commission Directive 20/23 – Review of non-permanent employment cl 13.

Queensland Public Health Sector Certified Agreement (No. 11) 2022 cls 6.2, 6.3, 12.3.

CASES:

Clements v State of Queensland (Queensland Health) [2023] QIRC 204.

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.

Smith v State of Queensland (Department of Education) [2022] QIRC 398.

Stephens v State of Queensland (Queensland Health) [2022] QIRC 420.

Reasons for Decision

  1. [1]
    Ms Leanne Wood ('the Appellant') has been continuously employed by the State of Queensland (Queensland Health) ('the Respondent') since 8 March 2022 on a fixed term temporary basis, as an Administration Officer (AO3) at the Darling Downs Hospital and Health Service (DDHHS). She has performed this role in two departments at the Toowoomba Hospital – Medical Imaging and Geriatric Adult Rehabilitation & Stroke Service ('GARSS').
  1. [2]
    On 13 March 2024, DDHHS commenced a review for Ms Wood's non-permanent employment in accordance with s 115 of the Public Sector Act 2022 ('PS Act') and the Public Sector Commission Directive 20/23 – Review of non-permanent employment ('the Directive').
  1. [3]
    At the time of this review, the Appellant was engaged on a fixed term temporary basis in the role of Administration Officer (AO3) in the Medical Imaging Department TW with an end date of 30 June 2024. The engagement has been extended to 31 July 2024 by DDHHS, pending the outcome of this appeal.

The decision letter

  1. [4]
    On 24 April 2024, Ms Wood was sent a letter ('the decision letter') signed on 18 April 2024 by Ms Annette Scott, Chief Executive, DDHHS ('the decision-maker') in relation to the outcome of the review. The decision was that Ms Wood would remain employed on a non-permanent basis, with her employment continuing until 30 June 2024, when the substantive incumbent was due to return from secondment.
  1. [5]
    The letter relevantly states:

Ultimately, I have determined that there is no continuing need for you to be employed in the role you are currently employed in, or a role that is substantially the same, and therefore, I am unable to offer to convert your employment on a permanent basis. Specifically, my reasons relate to the secondment arrangements of one of the incumbents of the role. The purpose of your engagement is to fill this temporary vacancy.

The substantive incumbent is returning to the role on a full-time basis upon conclusion of their secondment on 1 July 2024; the role was temporary for a specified period and purpose which will cease at the end of your current contract term.

… You have demonstrated over this time that you satisfy the requirements for the role and my decision in no way relates to your performance in the role.

  1. [6]
    This is the decision that Ms Wood appeals.

Reasons for the appeal

  1. [7]
    The Appellant appeals the decision as being unfair and unreasonable on the basis that:
  • [The] Employer has failed to acknowledge what roles may be substantially the same/similar & whether there has been any search or consideration of these roles. This does not comply with Section 27B(b) of the Acts Interpretation Act 1954.
  • No genuine operational requirements exist that would prevent me from becoming permanent.
  • [The] Conversion outcome determines that there is no continuing need for me to be in the role I am currently in. However, [the] Employer fails to consider whether there is a continuing need for someone to be employed in the role, or a role that is substantially the same as per section 114(3)(a) of the Public Sector Act 2022.
  • It is not in contention that I am suitable for the role as per the conversion outcome letter.
  • I contend there is a continuing need for the role as Administration Officer – Medical Imaging (AO3).
  1. [8]
    For these reasons, the Appellant seeks that the decision be set aside and replaced with a decision converting her employment status to permanent; or alternatively, that a fresh review be conducted by way of returning the outcome to the decision-maker.

Is the Appellant entitled to appeal?

  1. [9]
    Section 131(1)(a) of the Public Sector Act 2022 ('PS Act') provides that an appeal may be made against a conversion decision. Section 133 provides that for conversion decisions, it is the public sector employee the subject of the decision who may appeal.
  1. [10]
    Section 129 of the PS Act relevantly provides:
  1. 129
    Definitions for part
  1. In this part—
  1. Conversion decision means a decision—
  1. (a)
    under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis;
  1. [11]
    Section 564(3) of the Industrial Relations Act 2016 ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
  1. [12]
    I am satisfied that the decision is one that may be appealed against, that Ms Wood is entitled to appeal, and that the appeal was lodged within the required time.

Appeal principles

  1. [13]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.' Appeals under ch 11 pt 6 div 4 of the IR Act are not by way of rehearing.
  1. [14]
    The issue for my determination is whether the decision to refuse to convert Ms Wood from fixed term temporary employment to permanent employment was fair and reasonable.[1]

What decisions can the Commission make?

  1. [15]
    In deciding this appeal, s 562C of the IR Act provides that the Commission may either confirm the decision appealed against, set the decision aside and substitute another decision, or 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.

Relevant provisions of the PS Act, the Directive and the Agreement

  1. [16]
    Section 81 of the PS Act provides:[2]
  1. 81
    Basis of employment – generally on permanent basis
  1. (1)
    Employment of a public sector employee is on a permanent basis unless the employee is employed on a non-permanent basis under this Act or another Act that enables the person to be employed on a non-permanent basis, including, for example—
  1. (a)
    on a temporary basis for a fixed term; or
  1. (b)
    on a casual basis.
  1. (2)
    However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate.
  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. …
  1. (4)
    Without limiting subsection (3)(a), 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.
  1. Example—
  1. An ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments
  1. …
  1. (7)
    To remove any doubt, it is declared that this section applies in relation to a public sector employee's employment on a temporary basis for a fixed term if the employment is extended under this Act or another Act.
  1. [17]
    Section 115 of the PS Act provides:
  1. 115
    Chief executive must review status after 2 years of continuous employment
  1. (1)
    If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to—
  1. (a)
    continue the employee's employment according to the terms of the employee's existing employment; or
  1. (b)
    offer to convert the employee's employment to a permanent basis.
  1. (2)
    The employee's chief executive must make the decision within the required period after—
  1. (a)
    the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and
  1. (b)
    each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.
  1. (3)
    In making the decision—
  1. (a)
    section 114(3) and (4) applies to the employee's chief executive; and
  1. (b)
    the employee's chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.
  1. (4)
    If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating—
  1. (a)
    the reasons for the decision; and
  1. (b)
    the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and
  1. (c)
    how many times the employee's employment on a non-permanent basis has been extended; and
  1. (d)
    each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment.
  1. [18]
    Section 114 of the PS Act relevantly provides:[3]
  1. 114
    Chief executive must make decision on employee's request
  1. …
  1. (3)
    The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if—
  1. (a)
    the employee's chief executive considers—
  1. (i)
    there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and
  1. (ii)
    the employee is suitable to perform the role; and
  1. (b)
    any requirements of an industrial instrument are complied with in relation to the decision.
  1. (4)
    If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.
  1. [19]
    Clause 13 of the Directive provides:
  1. 13.
    Obligations when a decision is made not to offer to convert an employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment
  1. 13.1
    Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:
  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. 13.2
    Any notice provided to the employee must include information about any relevant appeal rights available to the employee.
  1. 13.3
    Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role, and notice provided to the employee must also include information about an employee's right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.
  1. [20]
    Ms Wood is employed under the Queensland Public Health Sector Certified Agreement (No. 11) 2022 ('the Agreement'). It relevantly provides:
  1. 6.2
    Permanent Employment
  1. 6.2.1
    The parties recognise that permanent employment is the default basis of engagement under this agreement and are committed to maximising permanent employment where possible. Non-permanent forms of employment should only be utilised where permanent employment is not viable or appropriate. The employer will utilise workforce planning and management strategies to assist in determining the appropriate workforce mix for current and future needs.
  1. 6.3
    Permanent Employment for Fixed Term Temporary and Casual Employees
  1. 6.3.1
    The parties are committed to maximising permanent employment opportunities for non-permanent employees. The parties agree to implement the whole-of-government Directive and policy which implements section 114 of the Public Sector Act 2022 (PS Act).
  1. …
  1. 12.3
    Non-permanent employee conversion guideline

12.3.1

The parties agree to create a non-permanent employee conversion guideline to actively promote and manage permanent employment. The Guideline will outline activities to review non-permanent employment, encouraging conversion of employees, in accordance with clauses 6.2 and 6.3, unless the employer can provide compelling reasons not to offer conversion. When such conversion is less than 1FTE, the hours shall be calculated in accordance with the relevant directive.

Submissions of the parties

  1. [21]
    The parties filed written submissions in accordance with a Directions Order dated 16 May 2024. I have carefully considered all submissions and annexed materials.

Respondent's submissions

  1. [22]
    The Respondent provides details of Ms Wood's continuous engagement since 8 March 2022, on a fixed term temporary basis in the role of Administration Officer (AO3) within the Medical Imaging and GARSS Departments located at Toowoomba Hospital. The purpose of the original engagement was to meet a temporary increase in workload, followed by 12 extensions related to planned and unplanned leave relief and secondment cover for substantive position holders on secondment. At the time of the decision under appeal Ms Wood was working in the Medical Imaging Department as an Administration Officer (AO3) covering the position of a person seconded to another department. The secondment period was to conclude 30 June 2024.
  1. [23]
    The Respondent submits that the permanent establishment of the AO3 Admin Officer position has been set at 7.4 FTE in Medical Imaging since 1 July 2019 and 3 FTE in GARSS since 22 April 2019.
  1. [24]
    The Respondent submits the non-permanent employment review process commenced in accordance with s 115 of the PS Act and the Directive. On 13 March 2024, Ms Wood was notified of the review, the matters to be considered and the expectation that a decision would be made within 28 days of her eligibility date. Specifically, the correspondence advises the review will consider:
  • Whether there is a continuing need for you to be employed in your role, or a role which is substantially the same
  • If you are suitable to perform the role, as required under section 114(9) of the Public sector Act 2022 (PS Act)
  • Whether any requirements of an industrial instrument are complied with in relation to the decision
  • Whether it is not viable or appropriate to convert you to permanent employment, having regard to any genuine operational requirements of Queensland Health.
  1. [25]
    The Respondent details the process undertaken leading to the decision, including, completion of the conversion checklist by the local Medical Imaging Director to determine the recommendation to then be considered and endorsed by the Hospital Executive Director. The endorsed checklist was then returned to the Retention and Attraction Team. The recommendation was not to appoint on the basis that Ms Wood was performing the role whilst an employee was on secondment and that it was confirmed that employee would be returning to their substantive position on 1 July 2024.  Ms Wood would not be required in the role after this time. It is explained that due to the recommendation not to convert to the role of AO3 Admin Officer Medical Imaging TW, attention turned to an alternative role. This consisted of "a review of the AO3 – Administration Officer – GARSS position and it was identified that the role was fully occupied by substantive incumbents undertaking the duties of the position. Accordingly, it was determined, this position was not viable." Relevant material, a Briefing Note to explain the recommendation, and a draft letter were provided to the decision-maker -DDHHS Chief Executive – to make the ultimate decision.
  1. [26]
    In response to the reasons for the appeal, the Respondent:
  • Confirms the Appellant's suitability for the role is not contested and was not a reason for the decision not to convert;
  • Confirms the reason outlined in the decision letter is confined to the return of the substantive position holder and that the Appellant's employment in her current role was temporary for a specified period;
  • Acknowledges that further consideration of other roles should have formed part of the initial review to determine if a position with a continuing need was substantially the same;
  • Submits that no consideration of genuine operational requirements was necessary as the matters in s 114(3) were not satisfied; and
  • Submits that consideration was given to the position Ms Wood is temporarily employed in and acknowledging that there is an ongoing need for someone to undertake the functions of the position in Medical Imaging, however there is no continuing need for that someone to be Ms Wood after 30 June 2024.
  1. [27]
    The Respondent submits it would be inappropriate for the decision to be set aside and replaced with a decision to convert her employment to a permanent basis. The Respondent instead considers it appropriate for a fresh review to be conducted to enable a thorough review, fully compliant with s 115 of the PS Act; and consideration of roles substantially the same.

Submissions of Ms Wood

  1. [28]
    In response to the Respondent's submissions, Ms Wood notes the DDHHS' acknowledgement that there is a continuing need for someone to be employed in the role she is currently performing, but contends the mandatory consideration of 'a continuing need for someone to be employed in the role, or a role that is substantially the same,' has not been undertaken.
  1. [29]
    The Appellant then restates her view, citing Morison v State of Queensland[4] in a general sense, stating that no genuine operational requirements exist that would prevent her from becoming permanent in a role that is substantially the same.[5] While she concurs that her current position is substantively held by another person who is on secondment, the Appellant submits that should not be the 'salient' consideration in the decision not to convert.
  1. [30]
    The Appellant then reiterates the failure of the Respondent to undertake a proper review of roles that are substantially the same, and to provide details required by s 27B of the Acts Interpretation Act 1954 (Qld). She refers to the decision letter in which the sole consideration of this matter is contained in the following sentence:

Ultimately, I have determined there is no continuing need for you to be employed in the role you are currently employed in, or a role that is substantially the same, and therefore, I am unable to offer to convert your employment to a permanent basis.

  1. [31]
    The Appellant then submits there are two permanent AO3 vacancies being advertised which would be substantially the same as her role, which she attaches. While the Appellant reiterates that a position being advertised or a permanent vacancy existing are not criteria contemplated by the Act or Directive for conversion, she contends it is evidence of a continuing need for someone to be employed in a role that is substantially the same.
  1. [32]
    Finally, the Appellant submits she no longer considers it appropriate for there to be a fresh review at this time; instead the decision should be set aside and replaced with a decision to convert her employment status to permanent.

Respondent submissions in reply

  1. [33]
    In response, the Respondent reiterates earlier submissions:
  • That the continuing need for Ms Wood to undertake the role was appropriately considered during the review and outlined sufficiently in the decision letter;
  • The Respondent cites Pidgeon IC in Clements v State of Queensland[6] in support of their contention that it was not necessary to consider genuine operational requirements due to the criteria being set out in s 114(3) of the PS Act having not been satisfied;[7] and
  • That further consideration of other roles substantially the same should have formed part of the review.
  1. [34]
    The Respondent further submits that the Appellant cannot rely on positions advertised at the time submissions were made to dispute a decision made in April 2024, and that there is no evidence or argument provided as to why the roles should be considered substantially the same.
  1. [35]
    Finally, the Respondent confirms they still consider it appropriate for a fresh review to be conducted.

Consideration

The decision criteria

  1. [36]
    The PS Act and the Directive set out mandatory considerations for a chief executive in deciding whether an offer of permanent employment may be made.
  1. [37]
    In addition to complying with any requirements in an industrial instrument, a chief executive must consider there is an ongoing need for someone to be employed in the employee's current role or a role that is substantially the same; and that the employee is suitable to perform the role.
  1. [38]
    If these considerations are met, then the chief executive must decide to offer to convert the employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.[8]
  1. [39]
    Additionally, for an employer-initiated review the decision-maker must have regard to the reasons for each decision previously made during the employee's period of continuous employment.
  1. [40]
    In the decision letter, the decision-maker states there are two considerations for deciding whether to convert from non-permanent to permanent employment:
  • There is a continuing need for you to perform your role or a role that is substantially the same, and
  • You are considered suitable to perform the role.
  1. [41]
    For completeness, I will address all the required considerations, ending with the two considerations identified by the decision-maker. 

Requirements under an industrial instrument

  1. [42]
    The decision letter makes no reference as to whether there are any relevant requirements of an industrial instrument that must be complied with. The conversion checklist attached to the Respondent's submissions indicates there are no such requirements.
  1. [43]
    The relevant industrial instrument is the Queensland Public Health Sector Certified Agreement (No.11) 2022. The Agreement contains three provisions related to non-permanent employment as reproduced at [19] of this decision. The provisions commit the parties to maximising permanent employment as the default basis for employment under the agreement, including for non-permanent employees. It commits to the use of non-permanent employees only where permanent employment is not viable or appropriate. It also commits to establishment of a conversion guideline to actively promote and manage permanent employment, encouraging conversion unless compelling reasons not to offer conversion are provided.
  1. [44]
    These are agency commitments aligned to the requirements of the PS Act and Directive applied within the context of employment covered by the Agreement, rather than specific requirements to be considered. They do importantly set the agreed context within which the conversion process will be applied across Queensland Health including DDHHS.
  1. [45]
    Neither party has raised this as an issue in contention.

Regard to reasons for any previous decisions

  1. [46]
    The decision letter indicates the decision-maker has considered any previous review decisions, but provides no further detail. The conversion checklist contains information that a previous decision had occurred on 28 July 2023, with the decision not to convert based on no ongoing need. Again, what regard the decision-maker paid to this cannot be known as no details have been provided, despite the requirement that where a decision not to convert has been made, the notice must include each decision previously made.
  1. [47]
    Neither party has raised this as an issue in contention.

Suitability

  1. [48]
    It is not disputed that the Appellant meets the suitability requirements for the role.[9]

Continuation of the role

  1. [49]
    There are two limbs to this consideration. The first limb is that there is a continuing need for someone to be employed in the employee's role. The second, alternate limb, is a continuing need for someone to be employed in a role that is substantially the same as the employee's role. To be offered conversion a person must meet the first or second limb of this mandatory consideration.

Current role

  1. [50]
    The decision-maker, supported by the Respondent's submissions, determined there is no ongoing need for the Appellant to be employed in her current role beyond the date of her current fixed term temporary engagement, due to the substantive incumbent returning to the role upon conclusion of their temporary secondment. The decision-maker concludes, "the role was temporary for a specified period and purpose which will cease at the end of your current contract term." It is not correct to say that the role was temporary if the position being referred to is the one being performed by Ms Wood, aligned with the period of secondment of another employee. The position was ongoing – any requirement that Ms Wood be employed in that position beyond 30 June 2024 was not.
  1. [51]
    The role the Appellant has been employed in since 2022 is as an Administration Officer (AO3) within the Health Service. During her employment, as explained in the decision letter, Ms Wood has performed work against two positions – position number 30462315 Administration Officer – Medical Imaging, and position number 30463062 Administration Officer – GARSS. I am aware from Respondent submissions that these position numbers have multiple incumbencies 'permanently established'[10] at 7.4 FTE for Medical Imaging and 3.0 FTE for GARSS. As outlined in the decision letter: "Specifically, my reasons relate to the secondment arrangements of one of the incumbents of the role."
  1. [52]
    At the time of the review, material before the decision-maker demonstrates there were 13 employees performing work against the position number 30462315, ranging from 8 hours to 38 hours per week, or an occupancy of 9.84 FTE.[11] In the briefing note to the decision-maker, it states there is an approved FTE of 7.4 and a permanently appointed FTE of 7.0.[12] While not directly discussed in any of the material, this could be read to suggest there is 0.4 permanent FTE within the Department not appointed permanently, and 2.84 FTE within the Department employed on a non-permanent basis. It is not clear whether Ms Wood is employed against one of the 7.0 permanent FTEs. I raise this only to highlight that even though it might seem obvious to conclude that the return of one permanent incumbent into the mix means there is no ongoing requirement for the Appellant to perform work against the multiple incumbency positions – it may not be that simple. However, in the absence of the required findings of fact and evidence relied upon in the decision letter, it is not possible to know whether this broader consideration was undertaken.
  1. [53]
    There is a further consideration articulated by McLennan IC in Stephens v State of Queensland,[13] where successive fixed term appointments to a role, albeit backfilling various positions, will over a significant period of time evidence an ongoing need for someone to be employed in the current role. The Appellant in Stephens held the role of Radiation Therapist (HP3), and undertook successive backfills in different positions over a period of four to five years. McLennan IC held:[14]
  1. [83]
    While there may have been reason for the HHS to initially employ the Appellant on a temporary employment contract, there comes a time when it is no longer fair and reasonable to continue to extend a person's temporary contract arrangements on the basis of the particular reason(s) under s 148(2) that may have originally been relied upon in the first – or in this case, even in the second, third, fourth, fifth etcetera – fixed term temporary contract appointments. After four to five years of meritoriously undertaking the role at this time, I do not consider it reasonable for the HHS to rely on s 148(2) indefinitely.
  1. [54]
    This approach is consistent with the PS Act, whereby employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a fixed term temporary basis on a frequent or regular basis.[15]
  1. [55]
    At the time of the decision relevant to this appeal, Ms Wood had been employed continuously in the role of Administration Officer (AO3) DDHHS through successive appointments for two years. Following her initial review outcome on 28 July 2023 that she remain non-permanent due to 'no ongoing need,' she continued to be extended in her role a further eight times over 11 months. As outlined at [46] of this decision, when considering the requirement to have regard to previous review outcomes, there is no information to suggest this was considered. Indeed, it is clear the review of the ongoing need for someone to be employed in the 'current role' was confined to a consideration of one incumbency to the position being backfilled.
  1. [56]
    While there is a significant difference between two years and over four years of fixed term service, there is a similar conflation of the terms 'role' and 'position,' as identified by McLennan IC in Stephens, that is also clear in this case. As stated by McLennan IC:
  1. [128]
    Importantly, a "role" is different to a "position". The Respondent has rather conflated those terms, appearing to use the words almost interchangeably. It appears to me that the MSHHS has misdirected its own inquiry in this way. Foundationally, I accept that the MSHHS's decision had "misconstrue(d) a temporary employment review" because "the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number." That particular submission is precisely on point.
  1. [57]
    I note the Appellant does not dispute that she will not be required to be employed in her current position following the return of the position incumbent. However, I think this misunderstands the broader application of the test.
  1. [58]
    I cannot conclude for the reasons outlined above whether it was fair and reasonable for the decision-maker to form the view there was no ongoing requirement for someone to be employed in the employee's current role.
  1. [59]
    The Appellant does clearly contend, and I agree, that this is not where the decision-maker's consideration should have stopped – leading to the second limb of ‘continuing need.’

Substantially the same

  1. [60]
    The decision letter asserts there is no ongoing need for someone to be employed in roles that are substantially the same, despite not providing any of the information required to support that assertion. In submissions, the Respondent contends this review was limited to a consideration of the Administration Officer position located in GARSS, but acknowledges further consideration of other roles should have formed part of the initial review. The Respondent submits this should be remedied by a fresh review.
  1. [61]
    In my view, this acknowledgement understates the failure of the decision-maker to be satisfied in relation to this mandatory consideration when issuing the decision not to convert. It also again highlights the significant failure to comply with requirements of cl 13 of the Directive and s 27B of the Acts Interpretation Act 1954, set out above at [19] of this decision.
  1. [62]
    I agree with the Appellant that this failure renders the decision unfair and unreasonable.

Genuine Operational Requirements

  1. [63]
    I agree with the Respondent that the consideration of genuine operational requirements as a potential barrier to conversion is only enlivened at the point the mandatory considerations under s 114(3) of the PS Act have been satisfied, consistent with Pidgeon IC's position in Clements.[16] Even though in this case those considerations have been found wanting, at the time, there was no requirement to move to the next step.

Appropriate outcome

  1. [64]
    It is not disputed that the review undertaken did not comply with the requirements of s 115. I have found the issues with the process are not confined to the Respondent's admitted failure to consider roles that are substantially the same. It is also not disputed that the decision should be set aside.
  1. [65]
    What is disputed is whether the decision should be replaced with a new decision converting the Appellant to permanent employment, or returning it to the decision-maker for a fresh review.
  1. [66]
    I am conscious that as a result of the impugned decision, the Appellant continues to be employed on a non-permanent basis with an employment end date of 31 July 2024. The Appellant's rights in relation to a compliant fresh review, and any subsequent meaningful appeal rights[17] (if necessary), continue only while she maintains her status as a public sector employee.
  1. [67]
    A fresh review as proposed by the Respondent must be accompanied by the extension of employment to enable the Appellant to be able to enjoy the practical effect of that outcome.  Otherwise, the only other decision capable of addressing the impact of the unfair decision is that she be converted. However, the same reasons which support the decision being set aside also prevent me from being satisfied the considerations for permanent conversion could be met to the necessary standard.
  1. [68]
    On that basis, I have decided to set the decision aside, and replace it with a new decision. The decision is to be referred back to the decision-maker for a fresh review, fully compliant with all relevant requirements of the PS Act and the Directive. To be clear, this is not a review of the circumstances as they existed at the time of the previous decision, but as they apply when the fresh review is conducted. The review is to be conducted within 28 days of this decision. The Appellant will be continued in her role as Administration Officer (AO3) DDHHS to enable the review to be undertaken and her appeal rights preserved in relation to any resultant decision.
  1. [69]
    I order accordingly.

Order

1. The decision appealed against is set aside.

2. The matter is returned to the decision-maker along with a copy of this decision, and they are directed to conduct a fresh review of the Appellant's employment status within 28 days of the date of this decision, in accordance with the relevant provisions of the PS Act and the Directive.

3. Upon completion of the fresh review, the decision-maker will issue a new notice of the Appellant's employment status in compliance with legislation and the Directive.

4. The Appellant will be continued in her role as Administration Officer (AO3) DDHHS to enable the review to be undertaken and her appeal rights preserved in relation to any resultant decision.

Footnotes

[1] 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

[2] Emphasis added.

[3] Emphasis added.

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

[5] Although Morison considers the meaning of genuine operational requirements between [37]-[40], it is an appeal of a conversion decision regarding appointment to a position at a higher classification level. The decision not to convert in that case was confirmed, and the circumstances considered are broadly different to this case.

[6] Clements v State of Queensland (Queensland Health) [2023] QIRC 204.

[7] Ibid, [57].

[8] Refer to s 115, reproduced at [17] of this decision.

[9] Respondent's submissions filed 24 May 2024 ('Respondent's submissions'), [27].

[10] I draw attention to the term 'permanently established' as at cl 11.6.2 of the certified agreement, it states there is no intention that there will be a net reduction of Department or HHS staffing during the life of the agreement, notwithstanding the parties to the agreement recognise the employer does not maintain fixed establishment numbers.

[11] Respondent's submissions (n 9), 'Attachment 3'.

[12] Respondent's bundle of documents filed 24  May 2024, pp 1-3.

[13] Stephens v State of Queensland (Queensland Health) [2022] QIRC 420.

[14] Original emphasis.

[15] Refer to s 81, reproduced at [16] of this decision.

[16] n 6.

[17] It is not appropriate for the QIRC to deal with an appeal in relation to a conversion decision where the Appellant is no longer a public sector employee. See e.g. Smith v State of Queensland (Department of Education) [2022] QIRC 398, [7]-[13].

Close

Editorial Notes

  • Published Case Name:

    Wood v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Wood v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 173

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    19 Jul 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
Clements v State of Queensland (Queensland Health) [2023] QIRC 204
2 citations
Jump To
Cite 1 - [2023] QIRC 204
Cite 2 - [2023] QIRC 204
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
Smith v State of Queensland (Department of Education) (No. 2) [2022] QIRC 398
2 citations
Jump To
Cite 1 - [2022] QIRC 398
Cite 2 - [2022] QIRC 398
Stephens v State of Queensland (Queensland Health) [2022] QIRC 420
2 citations
Jump To
Cite 1 - [2022] QIRC 420
Cite 2 - [2022] QIRC 420

Cases Citing

Case NameFull CitationFrequency
Epong v State of Queensland (Queensland Health) [2025] QIRC 72 citations
1

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