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Weidner v State of Queensland (Queensland Health)[2024] QIRC 249

Weidner v State of Queensland (Queensland Health)[2024] QIRC 249

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Weidner v State of Queensland (Queensland Health) [2024] QIRC 249

PARTIES:

Weidner, Susanne

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/178

PROCEEDING:

Public Sector Appeal – Conversion Decision

DELIVERED ON:

15 October 2024

MEMBER:

IC Power

HEARD AT:

On the papers

ORDERS:

  1. The appeal is dismissed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – fixed term employment review – appeal pursuant to the Public Sector Act 2022 (Qld) s 131(1)(a) – where appellant is employed by the respondent in a fixed-term temporary  role – where appellant was offered  conversion from fixed-term to permanent role – where appellant disputes that hours offered reflected hours worked – whether work performed at AO4 level was substantially the same as appellant's ongoing AO3 role – where decision was fair and reasonable.

LEGISLATION AND OTHER INSTRUMENTS:

Hospital and Health Service General Employees (Queensland) Health Award – State 2015

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

Public Sector Act 2022 (Qld), s 113, s, 114, s 115, s 129

Review of non-permanent employment (Directive 02/23), cl 1, cl 11

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Goodall v State of Qld & Anor [2018] QSC 319

Reasons for Decision

  1. [1]
    Ms Susanne Weidner ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a non-permanent Administration Officer & Ward Clerk (AO3) at the Cairns & Hinterland Hospital and Health Service ('CHHHS').
  1. [2]
    On 24 August 2023, the Appellant received correspondence from Linda Bailey, Acting Executive Director, Rural and Remote Services (CHHHS) ('the decision maker') offering to convert the Appellant to permanent status in two positions ('the decision'). The Appellant submits that she had previously been working for a greater number of hours in her non-permanent roles than the 53.44 hours per fortnight determined by the Respondent.

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 is whether the decision to offer conversion of the Appellant's employment to permanent at 53.44 hours per fortnight was fair and reasonable in all of the circumstances.

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.

Relevant provisions of the PS Act and the Directive

  1. [6]
    Pursuant to s 129(e) of the Public Sector Act 2022 (Qld) ('the PS Act'), a 'conversion decision' means a decision:

In this part—

conversion decision means a decision—

  1. under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years.[5]
  1. [7]
    The decision maker considered s 115 of the Public Sector Act 2022 (Qld) which provides:

115 Chief executive must review status after 2 years of continuous employment

  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. The employee's chief executive must make the decision within the required period after—
  1. the end of 2 years after the employee has been continuously employed on a non‑permanent basis in the public sector entity; and
  2. 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. In making the decision—
  1. section 114(3) and (4) applies to the employee's chief executive; and
  2. 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. 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. the reasons for the decision; and
  2. 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
  3. how many times the employee's employment on a non-permanent basis has been extended; and
  4. 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. Subsection (4)(c) does not apply in relation to employment on a casual basis.
  1. If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the 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. For working out how long the employee has been continuously employed in the public sector entity—
  1. all periods of authorised leave are to be included; and
  2. the employee is to be regarded as continuously employed even if there are periods during which the employee is not employed in the entity, if the periods of non‑employment in the entity total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out.
  1. The commissioner must make a directive about the making of a decision under this section.
  1. The directive must provide for—
  1. the matters a chief executive must consider in deciding the hours of work to be offered in converting a person's employment under subsection (1)(b); and
  2. the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person's employment under subsection (1)(b).
  1. This section does not limit or otherwise affect section 113.
  1. In this section—

required period, for making a decision under subsection (1), means—

  1. the period stated in an industrial instrument within which the decision must be made; or
  2. if paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (2)(a) or (b).
  1. [8]
    The relevant directive is the Review of non-permanent employment (Directive 02/23) ('the Directive'). The Directive provides:
  1. 11.
    Deciding the hours of work to be offered when a decision is made to offer to convert an employee's employment to a permanent basis
  1. 11.1
    Unless there are exceptional circumstances, when deciding the hours of work to be offered when a decision is made to offer to convert an employee's employment to a permanent basis under chapter 3, part 9, division 1 of the Act, the chief executive should offer hours of work no less than the greater of the following amounts:
  1. a.
    the hours worked by the employee in the continuing role, or role that is substantially the same, in the employee's work cycle or rostering period, whichever is applicable, immediately before the chief executive's decision
  1. b.
    the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years.
  1. 11.2
    In making a decision under clause 11.1, a chief executive cannot offer hours that would unreasonably disadvantage the employee in the circumstance (for example, where an employee is ordinarily a full-time employee, however worked part-time hours during the eligibility period subsequent to returning to work from parental leave).

…

  1. Appeal rights
  1. 15.1
    In accordance with section 115(9)(b) of the Act, a public sector employee may appeal an offer made under section 115(1)(b) to convert the employee's employment to a permanent basis in the circumstances where the hours of work offered unreasonably disadvantage the employee in the circumstances.
  1. 15.2
    A public sector employee may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non‑permanent employment, as provided for under chapter 3, part 10 of the Act.
  1. [9]
    The purpose of the Directive is outlined as follows:
  1. Purpose
  1. 1.1
    The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
  1. 1.2
    This directive supports and supplements the provisions of the Act with respect to the review of non-permanent employment.
  1. 1.3
    This directive sets out procedures for reviews and requirements for decisions in the context of reviewing a non-permanent employee's employment status.

Reasons for Appeal

  1. [10]
    The Appellant outlined the following reasons for appeal –

…

On 24 August 2023 I received two items of correspondence via email from Linda Bailey, Acting Executive Director, Rural and Remote Services (CHHHS) … offering me conversion to permanent status in two positions. The relevant positions and associated hours of work are as follows:

  • Ward Clerk (PID: 32108046) 15.44 hours per fortnight
  • Administration Officer (PID: 32108059) 38 hours per fortnight

These hours amount to only 53.44 hours per fortnight, which is significantly less than the relevant hours of work I have been performing.

…

For the purpose of clause 11.1(a) of the Directive, the greater amount is the hours I worked across both concurrent engagements during the first complete rostering period immediately before the decision, namely Monday, 7 August 2023 to Sunday, 20 August 2023

…

The total hours worked during this fortnightly rostering period was 76 hours (not including ADO accrued). I have attached recent payslips for this fortnight confirming the working of these hours. … For completeness and relevant to clause 11.1(b) of Directive 02/23, I have included a summary of the fortnightly hours I have worked in the past 2 years, which shows that the average hours I have worked over the 2 years prior to the decision is approximately 74.3 hours per fortnight. This also demonstrates that the amount of working hours during this fortnight was by no means out of the ordinary.

I contend that the decision is unfair and unreasonable, as the decision has not been made in accordance with clause 11.1 of Directive 02/23. Clause 11.1 of Directive 02/23 provides that no less than the greater amount of hours should be offered unless there are exceptional circumstances. There have been no exceptional circumstances identified. The Department should have offered no less than 76 hours per fortnight.

I contend that the correct decision is that I should have been offered permanent employment status at 76 hours per fortnight.

Submissions

  1. [11]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [12]
    The Respondent's submissions are summarised as follows –
  1. a.
    The Respondent submits that at the date of the Appellant's anniversary and the commencement of the employer-initiated review, the Appellant was engaged in an AO3 fixed-term temporary part-time contract of 55 hours per fortnight (0.72 FTE).
  1. b.
    The Respondent disputes that the hours that the Appellant worked in AO4 contracts during the two years prior should be included in the consideration of hours to offer the Appellant under cl 11.1 of the Directive as the AO4 position is not substantially the same as the AO3 position. Schedule 3, General Statements for Administrative Stream of the Hospital and Health Service General Employees (Queensland Health) Award – State 2015 provides evidence that AO3 and AO4 positions are not substantially the same.
  1. c.
    With consideration of the above, the Respondent submits that under cl 11 of the Directive, the Appellant's hours should be calculated as follows:
  1. Under 11.1(a) of the Directive, the Appellant was contracted to work 55 hours (0.72 FTE) in the position of AO3 Admin Officer MPHS Mossman in the fortnightly rostering period immediately preceding the decision, that being the period from 7 August 2023 up to and including 20 August 2023.
  2. Under 11.1(b) of the Directive, the Appellant was contracted to work fixed-term temporary contracts in AO3 positions of an average of 57 hours per fortnight (0.75 FTE) over the last two years.
  1. d.
    Of the two periods outlined above, the greater of the two is 57 hours per fortnight (0.75 FTE). The Respondent therefore disputes that the Appellant should be offered permanent employment status at 76 hours per fortnight (1.0 FTE).

Appellant's submissions

  1. [13]
    The Appellant's submissions are summarised as follows –
  1. a.
    The Appellant agrees that the relevant rostering period for cl 11.1(a) of the Directive is from 7 August 2023 to 20 August 2023, however the Appellant argues that she worked 76 hours.
  1. b.
    The Appellant further argues that the Respondent did not raise any exceptional circumstances that warranted offering a lower amount of hours under cl 11.1 of the Directive.
  1. c.
    The Commission has previously held in Da Silva Rocha v State of Queensland (Queensland Health) (No 2) that the purpose of Directive 09/20, which was replaced by the Directive, was 'to ensure that when a fixed term temporary employee is converted to permanent employment, that they continue to be employed to work hours similar to those that they had been working prior to the conversion.' The Appellant submits that the Directive contains no express or implied intention to disturb this purpose.
  1. d.
    The Appellant argues that the Respondent has advanced the position that she should be converted to permanent employment with fewer hours of work than the amount she worked prior to the decision. The Appellant further argues that the Respondent has not identified any exceptional circumstances to justify this and as such, the Respondent's submissions are contrary to the purpose of the Directive.
  1. e.
    The hours counted in cl 11.1(a) and (b) of the Directive are the hours worked by the employee in the continuing role or a role that is substantially the same.
  1. f.
    The Respondent only considered whether the role was substantially the same but did not consider the work done in the Appellant's continuing role.
  1. g.
    The Appellant argues that it is open to the Commission to find that the hours that she worked in the AO4 ESO position were hours worked in her continuing role. This is supported by the general condition of employment that employees may be directed by their employer to perform higher duties to backfill an absence, and in doing so, are entitled to a higher duties payment.
  1. h.
    But for the hours that the Appellant performed in the AO4 ESO position, she would likely have worked similar hours in her AO3 engagement. This can be inferred from the Appellant's rostering history from the past two years.
  1. i.
    The hours that the Appellant worked in the AO4 ESO position were backfilling an absence from 31 July 2023 to 13 August 2023. The Appellant argues that whether she voluntarily assumed the hours or whether she was directed is not material. What is material is that the Appellant could have been directed to perform the work. The Appellant's liability to be subject to such a direction causes the working of the AO4 hours to form part of her continuing role. Given the relatively brief nature of the engagement, the hours worked and remunerated at the AO4 classification level should be treated as hours worked in the Appellant's continuing role.
  1. j.
    The Appellant argues that excluding the AO4 hours risks opening the door to the Respondent directing the performance of higher duties to frustrate the intention of the Directive.
  1. k.
    Performance of higher duties should not be allowed to become a vehicle for the Respondent to disadvantage employees in their conversion entitlements under the Directive.
  1. l.
    In regard to the Respondent's submissions about the Appellant working in a role that is substantially the same, the Appellant submits that the Respondent's submission is supported only by an oblique reference to generic level statements contained in the Award. The Respondent has not identified which generic level statements apply to the positions worked in and has not referred to the relevant Role Descriptions.
  1. m.
    The Appellant refers to Crow J in Katae v State of Queensland when he stated that "'same role' may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements." The Appellant argues that it is therefore open to the Commission to find that the AO3 and AO4 roles are substantially the same if the roles have the same capability requirements.
  1. n.
    The Appellant states that the Respondent's argument suggests that roles at different classification levels cannot be substantially the same. The Appellant then refers to the document titled 'Public Sector Commission's FAQ – review of non‑permanent employment' to argue that it is open to the Commission to find that the hours that she worked in the AO4 ESO position formed a part of her continuous role.
  1. o.
    The Appellant argues that alternatively, the Commission may find that the role identified by the AO4 ESO position is substantially the same as the role identified by the positions in which the Appellant was working during the relevant period.
  1. p.
    The Appellant argues that the Respondent's submission, summarised above in paragraph [12] c. i., appears premised on the relevant enquiry being as to the average of the contracted hours only. However, cl 11.1(b) does not refer to contracted hours, it refers to hours worked.
  1. q.
    The Appellant argues that the relevant question is how many hours the person worked on average in the 2-year period in the continuing role or a role that is substantially similar and that the Respondent's submission does not answer the relevant question and does not have regard to the hours that the Appellant worked in excess of her contracted hours. Accordingly, the Respondent's submission should be rejected.
  1. r.
    In the event that the Commission finds that the hours that the Appellant worked in the AO4 ESO position do not count for the purpose of cl 11.1 of the Directive, the Appellant submits that the amount of hours worked in the AO3 roles must include the hours worked in excess of the contracted hours in the Appellant's AO3 engagements. The average fortnightly hours worked in the last 2 years excluding AO4 hours and including over-contract AO3 hours is approximately 68-69 hours per fortnight.

Respondent's submissions in reply

  1. [14]
    The Respondent's submissions in reply are summarised as follows –
  1. a.
    The Respondent refutes the relevance of the Appellant's references to Directive 09/20 as this directive was superseded by the Directive.
  1. b.
    The Respondent refutes that the AO4 ESO position meets the definition of being a continuing role, or a role substantially the same as the AO3 positions in which the Appellant has been permanently converted.
  1. c.
    Section 114(3)(a)(i) of the PS Act provides that the decision maker may decide to offer to convert the employee's employment to a permanent basis if the delegate considers that 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.
  1. d.
    As of 15 August 2023, when the Appellant became eligible for review, the Appellant did not hold a contract in the AO4 ESO position, nor any other AO4 positions within the Respondent.
  1. e.
    The Appellant did not hold a contract in the AO4 ESO position as the substantive incumbent had returned to their position, thus there was no continuing need for someone to be employed in the role. The periods in which the Appellant worked in higher duties in the AO4 ESO position were to backfill periods of leave and were not continuing in nature.
  1. f.
    The Respondent refutes the Appellant's claim that the AO4 ESO position should be considered substantially the same as the AO3 positions in which the Appellant has been converted to permanency.
  1. g.
    Section 12.2(b) of the Hospital and Health Service General Employees (Queensland Health) Award – State 2015 ('the Award') provides that the Award's generic level statements reflect the degree of complexity and responsibility of duties, skills and knowledge for the classification levels. The Respondent reaffirms their relevance in the consideration as to whether an AO3 position is substantially the same as an AO4 position. The role descriptions in the Award also reflect that the AO3 Ward Clerk and AO3 Ward Administration Officer positions do not have the same capacity requirement as the AO4 ESO position.
  1. h.
    The AO4 ESO position has a higher capacity requirement as the position is responsible for providing high level administrative support directly to Mossman's Director of Nursing and Medical Director. This includes provision of administrative support in highly confidential and sensitive matters and significant involvement with the medical cohort of Mossman including coordinating recruitment, facilitating placements, and coordination of relocation of Senior Medical Officers.
  1. i.
    In comparison, the AO3 Ward Clerk and AO3 Administration Officer positions are responsible for providing generalised administration support to staff and wards across the Mossman facility, including patient registration, processing of admissions and discharges, reception duties, and daily clerical support.
  1. j.
    Clause 11.1 of the Directive provides that the hours worked in a continuing role, or a role that is substantially the same, should be considered in the determination of hours to offer. With consideration of the above, the Respondent refutes the Appellant's claim that the time worked in the AO4 ESO position meets the definition to be considered under cl 11 of the Directive.

Consideration

  1. [15]
    The Appellant commenced employment with the Respondent on 15 August 2018 as a fixed-term temporary employee in the Operational Services stream. On 22 July 2019, the Appellant obtained a casual position in the Administrative Officer Mossman casual pool and was engaged in a casual capacity in the Administrative stream until 28 February 2021. Over the following two years, the Appellant was employed on fixed-term temporary AO3 and AO4 engagements.
  1. [16]
    On 15 August 2023, the Respondent commenced a review of the Appellant's non‑permanent employment. On 24 August 2023, the Respondent advised the Appellant that the outcome of the review of her non-permanent employment was to offer her permanent employment totalling 53.44 hours per fortnight (0.70FTE) comprising of the following –
  1. a)
    AO3 Ward Clerk – 15.44 hours (0.20FTE)
  1. b)
    AO3 Administration Officer – 38 hours (0.5FTE)
  1. [17]
    The Appellant appeals the decision primarily on the grounds that the hours of work offered are less than the hours that are required to be offered by cl 11.1 of the Directive.
  1. [18]
    The Respondent submits that the appeal should be dismissed on the basis that the AO4 Executive Support Officer (ESO) position does not meet the definition of a continuing role, or a role substantially the same as the AO3 positions in which the Appellant has been permanently converted. 
  1. [19]
    Clause 11.1 of the Directive provides that, unless there are exceptional circumstances, when deciding the hours of work to be offered when a decision is made to offer to convert an employee's employment to a permanent basis under chapter 3, part 9, division 1 of the PS Act, the chief executive should offer hours of work no less than the greater of the following amounts:
  1. a)
    the hours worked by the employee in the continuing role, or role that is substantially the same, in the employee's work cycle or rostering period, whichever is applicable, immediately before the chief executive's decision; or
  1. b)
    the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years
  1. [20]
    At the date of the Respondent's review, the Appellant was engaged in an AO3 fixed-term temporary part-time contract of 55 hours per fortnight (0.72FTE).
  1. [21]
    The Appellant contends that the hours worked in AO4 contracts during the two years prior to the review should be included in the consideration of hours in accordance with cl 11.1 of the Directive. The Appellant submits that the AO4 and AO3 roles can be considered substantially the same if they have the same capability requirements.
  1. [22]
    It does not appear that the AO3 role is in fact substantially the same as the AO4 role undertaken by the Appellant. The Hospital and Health Service General Employees (Queensland) Health Award – State 2015 ('the Award') provides that the generic level statements reflect a different degree of complexity and responsibility of duties, skills, and knowledge for each of the classification levels.
  1. [23]
    The role descriptions provided to the Commission for the roles of AO3 Ward Clerk and AO3 Ward Administration Officer outline different capacity requirements to that outlined in the AO4 ESO role description. I accept the Respondent's following summary of the role description differences - 

The AO4 ESO position [has] a higher capacity requirement as the position is responsible for providing high level administrative support directly to Mossman's Director of Nursing and Medical Director. This includes provision of administrative support in highly confidential and sensitive matters and significant involvement with the medical cohort of Mossman including coordinating recruitment, facilitating placements and coordination of relocation for Senior Medical Officers.

In comparison, the AO3 Ward clerk and AO3 Administration Officer positions are responsible for providing generalised administration support to staff and wards across the Mossman facility, including patient registration, processing of admissions and discharges, reception duties and daily clerical support.

  1. [24]
    The AO4 position was not substantially the same as the AO3 roles or the Appellant's continuing role. In accordance with cl 11.1 of the Directive, it was open to the Respondent to disregard these hours for the purpose of determining the hours to be offered to the Appellant. The Respondent's decision to only consider the hours performed in the AO3 role was fair and reasonable.
  1. [25]
    The Appellant submits that but for the hours performed in the AO4 ESO position, she would likely have worked similar hours in her AO3 engagement. The Directive does not allow for consideration of hours that would ‘likely’ have been worked in a continuing role or a role substantially the same. There is no basis for the submission that because the Appellant 'could' have been directed by the Respondent to perform the AO4 work, the work should be considered part of her continuing role. The submission that, given the brief nature of the AO4 engagement (from 31 July 2023 to 13 August 2023), the hours should be treated as hours worked in the continuing role is also without basis. The Directive outlines a clear criterion that the hours to be considered are those hours in 'a continuing role or a role substantially the same' and hours outside of those categories cannot be included, regardless of how brief the engagement or whether an employee was directed to undertake the other role.
  1. [26]
    The Appellant’s submission that the Respondent could order employees to complete higher duties to interrupt their hours in a continuing role is entirely speculative, with no evidence before the Commission that the Appellant’s hours in the AO4 position were offered for such a purpose.
  1. [27]
    Clause 11.1(a) of the Directive provides that consideration must be given to the hours worked by the employee in the continuing role, or role that is substantially the same, in the employee's work cycle or rostering period, whichever is applicable.
  1. [28]
    It is not in dispute that the relevant rostering period for the purpose of cl 11.1(a) is 7 August 2023 to 20 August 2023.
  1. [29]
    The Respondent submits that the Appellant was contracted to work 55 hours (0.72FTE) in the fortnightly rostering period immediately preceding the decision in the AO3 roles. The Appellant submits that she performed 76 hours of work during this rostering period. At a mention held on 20 September 2024, the Appellant's representative confirmed that the 76 hours submitted included hours worked at the AO4 level and did not dispute that 55 hours were worked at the AO3 level.
  1. [30]
    Clause 11.1(b) of the Directive provides that consideration be given to the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years. The Respondent submits that the Appellant worked an average of 35.46 hours per fortnight in the 2 years prior to the decision, excluding AO4 hours. The Appellant submitted that she performed an average of 74.3 hours of work during this period. At the mention held on 19 September 2024, the Appellant's representative confirmed that the 74.3 hours submitted included hours worked at the AO4 level and did not dispute that 35.46 hours were worked at the AO3 level.
  1. [31]
    The Appellant appears to rely upon the phrase 'hours worked' by the employee to support the inclusion of the AO4 hours in the calculation, however, these words must be read in the context of the entire sentence in the Directive which states 'hours worked by the employee in the continuing role, or role that is substantially the same, in the employee's work cycle or rostering period, whichever is applicable'.[6] In circumstances where it has been determined that the AO4 role was not a role that was substantially the same or part of the continuing role, it was appropriate for the Respondent to determine that the hours worked in AO4 role should not be included for the purposes of calculating the hours required to be offered to the Appellant.
  1. [32]
    After considering all of the material submitted, I am satisfied that it was open to the decision maker to make the decision that the Appellant should be offered permanent employment for the hours outlined in the decision. The decision was made in accordance with the Directive and was fair and reasonable.

Order

  1. [33]
    I make the following order:
  1. The appeal is dismissed.

Footnotes

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

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

[4] Industrial Relations Act 2016 (Qld) s 562B(3)

[5] Public Sector Act 2022 (Qld) s 129(e)

[6] Review of non-permanent employment (Directive 02/23) Cl 11.1

Close

Editorial Notes

  • Published Case Name:

    Weidner v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Weidner v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 249

  • Court:

    QIRC

  • Judge(s):

    IC Power

  • Date:

    15 Oct 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 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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