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- Roberts v State of Queensland (Queensland Health)[2024] QIRC 269
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Roberts v State of Queensland (Queensland Health)[2024] QIRC 269
Roberts v State of Queensland (Queensland Health)[2024] QIRC 269
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Roberts v State of Queensland (Queensland Health) [2024] QIRC 269 |
PARTIES: | Roberts, Madeline (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/255 |
PROCEEDING: | Public Service Appeal – Appeal against a conversion decision |
DELIVERED ON: | 20 November 2024 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – casual employment review – appeal pursuant to the Public Sector Act 2022 (Qld) s 131(1)(a) – where appellant is employed by the respondent in a casual role – where appellant was offered conversion from casual to permanent role – where appellant disputes that hours offered reflected hours worked – where decision was fair and reasonable. |
LEGISLATION AND OTHER INSTRUMENTS: | Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Sector Act 2022 (Qld), s 116, s 129, s 131, s 133 Review of non-permanent employment (Directive 02/23), cl 1, cl 11, cl 15 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland [2018] QSC 319 Preston-Smith v State of Queensland (Queensland Health) [2021] QIRC 350 |
Reasons for decision
Introduction
- [1]Ms Madeline Roberts ('the Appellant') has been employed by the State of Queensland (Queensland Health) ('the Respondent') as an Assistant in Nursing at Baralaba Hospital since 26 July 2021 and as an Administrative Officer at BreastScreen Rockhampton since 9 November 2020.
- [2]The Respondent acknowledged the Appellant's request for review of her non-permanent employment under s 116 of the Public Sector Act 2022 ('the PS Act') on 18 September 2023. The Appellant did not receive a decision within the 21-day period, and subsequently filed an appeal notice with the QIRC to appeal the deemed decision on 6 November 2023.
- [3]Industrial Commission Pidgeon issued a decision on 1 December 2023 whereby the Respondent was ordered to provide a decision letter to the Appellant regarding her request for a review of her non-permanent employment within 28 days.
- [4]On or around 8 December 2023, the Appellant had a verbal conversation with Ms Melissa Poole, Service and Data Manager of BreastScreen, ('the decision maker') wherein she was offered a choice between AO2 0.2 FTE with BreastScreen, or AO2 0.5 FTE across the Central Queensland Hospital and Health Service ('CQHHS'), with 0.2 FTE at BreastScreen and 0.3 FTE within the Rockhampton Campus.
- [5]The Appellant declined the offer for 0.5 FTE and an offer was issued via email from the Respondent on 8 December 2023 offering to convert her employment to permanent AO2 0.2 FTE at BreastScreen ('the decision'). The Appellant accepted the 0.2 FTE offer.
- [6]On 22 December 2023, the Appellant filed an appeal notice appealing against the decision pursuant to s 131(1)(a) of the PS Act.
- [7]The issue for determination is whether the conversion decision was fair and reasonable.
Appeal principles
- [8]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.
- [9]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 that the Appellant's employment be converted to permanent for 0.2 FTE was fair and reasonable in all of the circumstances.
What decisions can the Industrial Commissioner make?
- [10]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)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
- [11]Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision.
- [12]Section 129 of the PS Act relevantly provides:
- 129Definitions for part
In this part—
conversion decision means a decision—
…
- (d)under section 116 to convert the employment of a public sector employee mentioned in section 113(1) to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis, if the employee's right to make the additional request for review under section 116 arose from a decision under section 115; or
…
- [13]Section 133 of the PS Act explains who may appeal a conversion decision:
- 133Who may appeal
The following persons may appeal against the following decisions—
- (a)for a conversion decision—the public sector employee the subject of the decision;
- [14]The relevant directive is the Review of non-permanent employment (Directive 02/23) ('the Directive'). The Directive provides:
- 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
- 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:
- 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
- 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.
- 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).
…
- 15. Appeal rights
- 15.1 In accordance with section 115(9)(b) of the [Public Sector Act 2022], 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.
- 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.
- [15]The purpose of the Directive is outlined as follows:
- 1 Purpose
- 1.1The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
- 1.2This directive supports and supplements the provisions of the Act with respect to the review of non-permanent employment.
- 1.3This 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
- [16]The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows:
…
I have performed my role for more than two years now without any adverse finding in respect of my performance or conduct. Therefore, I have demonstrated suitability with respect to s 114(3)(a)(ii) of [the Public Sector Act 2022].
…
I received an offer of a permanent position on 8 December 2023 via email … offering to convert my employment to permanent AO2 at 0.2FTE at BreastScreen. This is below the hours of work I have been regularly working over the last 2 years.
…
I seek for the decision to be set aside and substituted with a decision to convert my casual employment to permanent employment at 0.6FTE as per clause 11.1 of Directive 02/23, in accordance with s 562C of the Industrial Relations Act 2016.
Submissions
- [17]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
- [18]The Appellant's amended submissions are, in summary, as follows:
- a)The Appellant received an offer to convert her employment to permanent AO2 at 0.2 FTE at BreastScreen, which was 0.4 FTE below the hours that the Appellant has been regularly working for the last two years.
- b)The decision to offer 0.4 FTE less than the hours the Appellant has previously worked unreasonably disadvantages the Appellant financially.
- c)The Directive states at cl 11 that unless there are exceptional circumstances, when deciding the hours of work to be offered when making a decision to convert an employee's employment to permanent, the chief executive should offer hours of work no less than the greater of the amounts:
- i)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.
- ii)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.
- d)The Appellant worked 45 hours per fortnight over the 24-month period immediately preceding her request for review of non-permanent employment. This is 0.6 FTE.
- e)In the offer, the CQHHS advised that the reason for not offering permanency above 0.2 FTE is the need to roster shifts between both BreastScreen and CQHHS. The CQHHS further stated that once the mobile bus returns to Rockhampton, additional hours would become available, showing that there will be a continuing need for someone to be employed to undertake hours high than 0.2 FTE.
- f)The Appellant submits that the reasons provided do not constitute exceptional circumstances and do not accurately reflect how the Appellant came to be regularly working 0.6 FTE as a casual employee with BreastScreen Rockhampton.
- g)During the Appellant's employment with BreastScreen Rockhampton, she has been given work throughout the weeks which includes both rostered days and days in which she is given limited notice in order to attend. The Appellant's general week consists of at least three days a week.
- h)The Appellant submits that she generally gets more work (i.e. above 0.6 FTE) when the mobile is within an hour's drive of Rockhampton in towns such as Yeppoon, Emu Park, and Mt Morgan. The Appellant has also been asked to work in further places such as Baralaba, Moura, Theodore, Emerald, and Barcaldine when no staff from these locations have been available.
- i)Staffing arrangements while the Appellant has been working at BreastScreen Rockhampton have consisted of multiple permanent AO3 positions and multiple casual employees. When the mobile travels out west, other Queensland Health employees from undertake the position of administrator. A new AO3 and multiple new casuals have recently been hired as well.
- j)The Appellant has never worked at Rockhampton Hospital as part of her role with BreastScreen.
- k)Industrial Commissioner Pidgeon considered the meaning of exceptional circumstances in Preston-Smith to be:
The term 'exceptional circumstances' is not defined in the Directive, but given its ordinary meaning, the circumstances need to be unusual or extraordinary.
- l)The Appellant argues that the Respondent's reasons for offering only 0.2 FTE permanent hours are not exceptional circumstances when applying the ordinary meaning as considered by Pidgeon IC in Preston-Smith.
- m)The Commission held in Da Silva Rocha that the purpose of the previous Directive, Directive 09/20, "is 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.
- n)The Appellant argues that the Respondent's decision to convert her with fewer hours than the Appellant had previously worked is contrary to the purpose of the Directive.
Respondent's submissions
- [19]The Respondent's submissions are, in summary, as follows:
- a)The CQHHS has acknowledged in verbal and written communication to the Appellant that the permanent hours of work offered to the Appellant are fewer than the average hours worked over the last two years.
- b)The Respondent submits that on review of the Appellant's employment history, a number of organisational circumstances were identified which the decision maker determined to be exceptional, prompting the Appellant to work casual shifts averaging 45 hours a fortnight that she otherwise would not have been required to work.
- c)The CQHHS undertook a thorough review of the Appellant's employment history and a review of the service requirements of the mobile BreastScreen bus ('the bus') as part of the decision making associated with the Appellant's conversion of casual employment to permanent employment. The following information was identified:
- i)The bus operates at 23 locations across Central Queensland and Central West on a two-year rescreening cycle. The bus covers 25% of Queensland and operates for approximately 9-10 months of the year. It has been necessary for the CQHHS to maintain a casual AO2 Administration Officer position within BreastScreen to provide administration support to the bus.
- ii)The requirement to provide administration support to the bus has systematically seen the delivery of this service provided by casual Administration Officers from the local area, noting their local knowledge, contacts, and community involvement.
- iii)The CQHHS has identified that there is an ongoing requirement to provide administration support to the bus and that it is not appropriate to rely on casuals to provide this administration support.
- iv)Through the review, it has been identified that the administration support requirement for the bus, based on the current travel schedule, equates to 0.2 FTE. The Appellant has worked 2543.17 hours in the period from 20 September 2021 to 12 November 2023, but only 1029.67 of those hours provided administration support for the bus. However, approximately 373 hours were providing administration support when the bus was located outside of the immediate Rockhampton area, which would not ordinarily be required to be provided from Rockhampton BreastScreen.
- v)The Respondent acknowledges that the Appellant's averaged hours are greater than 0.2 FTE, however, it was identified that there were a number of exceptional circumstances that led to the Appellant's additional working hours, hours which were not ordinarily required.
- vi)It is anticipated that these exception circumstances have been resolved and are unlikely to result in a continuing need for additional administration support in the future.
- d)The Respondent identified the following exceptional circumstances that led to the Appellant working additional hours:
- i)There were significant staff shortages in some Central West locations in 2022 and 2023 which were mostly due to COVID-19. This made it necessary for the Appellant and other staff to travel and work on the bus, which is normally not required.
- ii)Changes to staff work arrangements, sick leave, and secondments made it necessary to increase administration support for the continuation and delivery of high-quality service to the clients.
- iii)During the period from 29 December 2022 to 24 November 2023, there was significant unplanned leave. This leave was not consistent, resulting in casual administration officers being required to work.
- a.BreastScreen's Health Promotion Officer ('HPO') was seconded to another role from January 2023 to September 2023, which resulted in additional administration support being needed to ensure the dissemination of promotional material within Rockhampton and other local mobile sites. The HPO has since returned to their substantive position at BreastScreen, and so this additional administration support is no longer needed.
- b.The substantive Service Manager had also been on long term sick leave month by month, which required additional administration support to be provided to the Data Manager. The substantive Service Manager has since returned to their position, and so this additional administration support is no longer needed.
- iv)BreastScreen also underwent accreditation in September 2022. The lead up to this required assistance in the preparation process, and so the Appellant provided support on reception to allow other staff to work offline as needed.
- e)The Respondent disputes the Appellant's position that there are no exceptional circumstances for not converting the Appellant to her averaged hours. The review identified that the hours worked by the Appellant over the two-year period are exceptional and there is no continuing requirement, excluding the ongoing administration support for the bus at 0.2 FTE.
- f)The CQHHS is therefore of the view that it would be unreasonable to convert the Appellant at her averaged hours, as it has been established that there is no ongoing need for her to work 45.6 hours a fortnight at BreastScreen.
- g)The Respondent instead offered the Appellant 0.5 FTE (38 hours a fortnight), which is closer to her averaged hours and would be substantially the same role across BreastScreen and the Rockhampton campus. The Appellant refused this offer.
- h)The Respondent is of the view that the offer of 0.5 FTE across BreastScreen and the Rockhampton campus was appropriate to ensure that meaningful work could be provided to the Appellant depending on where her services were required.
- i)The Respondent accepts that the offer of 0.5 FTE is less than the Appellant's averaged hours but believes that there are exceptional circumstances that justify this offer.
Appellant's submissions in reply
- [20]The Appellant's submissions in reply are, in summary, as follows:
- a)The Appellant submits that during the verbal conversation held on or around 8 December 2023, she was advised that the offer of AO2 0.5 FTE across the CQHHS would be 0.2 FTE at BreastScreen and the remaining 0.3 FTE would be at the Rockhampton Hospital. The decision maker further advised that the 0.3 FTE could be anywhere in the hospital.
- b)The Appellant declined the 0.5 FTE offer as she had never worked at the hospital and was nervous and anxious about being able to be placed anywhere in the hospital. The Appellant was worried about not being able to learn the new roles in the different areas of the hospital or having the stability that she had with BreastScreen.
- c)The Appellant argues that the offer to work across both BreastScreen and the Rockhampton Hospital was not an offer of a substantially the same role, as the Appellant has never been tasked with working at Rockhampton Hospital as part of her role with BreastScreen.
- d)The Appellant also notes that the AO2 0.5 FTE offer was still less than the 0.6 FTE that the Appellant had been working immediately preceding the review.
- e)In response to the Respondent's submissions about review of the mobile BreastScreen bus, the Appellant argues that the fact that the Respondent undertook a review of the bus following the request for review of the Appellant's casual employment status is a coincidence. The Appellant argues that a review of the bus was not part of the decision-making process required by the Respondent in this matter.
- f)The Respondent submitted that there were exceptional circumstances such as staff shortages due to COVID-19, changes in staff work arrangements, sick and other leave, and secondments. The Appellant argues that these are not exceptional circumstances but are business as usual considerations for CQHHS.
Consideration
- [21]The issue for determination in this appeal is whether the CQHHS's offer to convert the Appellant's employment to permanent on a 0.2 FTE basis was fair and reasonable.
- [22]There is no dispute that the Appellant worked for the CQHHS as an Administrative Officer commencing on 9 November 2020 and was eligible for conversion to permanency.
- [23]The Respondent submits that during a conversation with Ms Poole, two options were presented to the Appellant for consideration in order to progress a conversion of her causal employment to permanent employment. These options were as follows –
- AO2 0.2 FTE (15.2 hours a fortnight) with BreastScreen
- AO2 0.5 FTE (38 hours a fortnight) across the CQHHS, specifically a split of 0.2 FTE at BreastScreen and 0.3 FTE within Rockhampton campus.
- [24]The Appellant declined the offer of 0.5 FTE spread across BreastScreen and the Rockhampton campus.
- [25]The Respondent then wrote to the Appellant to offer conversion to permanent employment at AO2 FTE at BreastScreen. The Appellant appeals this decision on the grounds that the hours of work offered at BreastScreen are less than the hours that are required to be offered by cl 11.1 of the Directive.
- [26]The Respondent acknowledges that the hours offered are less than those worked by the Appellant as averaged over the preceding two years, however, states that exceptional circumstances exist to warrant conversion to fewer hours.
- [27]Clause 11.1 of the Directive provides that, unless there are exceptional circumstances, 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 not less than the greater of the following amounts:
- 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
- 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.
- [28]The Respondent submits that there is no ongoing need for the Appellant to work 45.6 hours per fortnight, being the average hours worked over the preceding two years, on the basis that exceptional circumstances existed over this period. These circumstances included a staff shortage over the COVID period, additional requirements in the lead up to accreditation of BreastScreen, and the absence of two staff. The Respondent contends that these circumstances resulted in the Appellant working significantly more hours than that which is now required by the service.
- [29]The decision maker outlined in the decision that permanency was offered for 0.2 FTE and that permanency above this level would involve shifts rostered between BreastScreen as well as within the Central Queensland Hospital and Health Service. The decision also stated that when the mobile returns to the Rockhampton area, additional hours will be offered commensurate with the increase in administrative needs as required.
- [30]The Appellant submits that the Respondent's statement that additional hours will be offered when the mobile returns to Rockhampton indicates that there is a continuing need for someone to be employed to undertake hours higher than 0.2 FTE. It seems to me that the Respondent has indicated that there will be additional hours available when the mobile is in Rockhampton, however, these hours will not be required when the mobile is servicing other areas. The Respondent submits that the bus covers 25% of Queensland and operates for approximately 9-10 months of the year. It was open to the decision maker to determine there will be no continuing need for additional casual administration support during the periods when the mobile is not in Rockhampton.
- [31]The Respondent has considered whether there are roles substantially the same in offering the Appellant permanency above 0.2 FTE level within the CQHHS, i.e. at Rockhampton Hospital. The Appellant submits that she has never been tasked with working at the Rockhampton Hospital and that the offer to work across both BreastScreen and the Rockhampton Hospital was not an offer of a role that was substantially the same. A role 'substantially the same' does not have to be a role in the exact same location or involving the exact same tasks as the role occupied by the Appellant. Whilst it is perhaps understandable that the Appellant was apprehensive about learning new processes in different areas of the hospital, I am not persuaded that AO2 administrative roles in the hospital are not substantially the same as those at BreastScreen.
- [32]The Respondent is required to review the position to determine if the role or a role substantially the same is ongoing. It was open to the Respondent to determine that conversion for a greater number of hours could be offered if the Appellant was to work in roles which were substantially the same within the CQHHS in circumstances where the Appellant was not required at BreastScreen for greater than 0.2 FTE.
- [33]The term 'exceptional circumstances' is not defined in the Directive, however, I concur with the decision by Industrial Commissioner Pidgeon in Preston-Smith in which she determined that the term should be given its ordinary meaning being circumstances that are unusual or extraordinary.
- [34]I accept that the history as outlined by the Respondent was unusual. It seems that the usual arrangements had been disturbed by staff shortages during Covid. It had been necessary for the Appellant to travel and work on the bus in Central West locations during this time, however, this would not usually be required. Greater casual hours were also required in preparation of accreditation where the Appellant provided support on reception allowing other staff to work offline. The absence of the two permanent staff also resulted in significantly greater hours required in casual administration support. The consequence of the return of the Health Promotion Officer and the Service Manager to their substantive positions was that there was no ongoing need for the Appellant to be engaged to provide administration support at the previous level of hours.
- [35]Rather than denying the application for conversion to permanency on the basis that there was no ongoing need to work 45.6 hours per fortnight at BreastScreen, CQHHS recognised that there was a continuing need for a level of administration support at the rate of 0.2 FTE. The Appellant's decision not to accept the offer of additional hours across the CQHHS was a matter for her, however, the offer demonstrates that the Respondent considered whether there was a continuing need in a role substantially the same.
- [36]I accept that it was fair and reasonable for the decision maker to determine that the circumstances of this matter were exceptional such that an offer of permanent employment for 0.2 FTE was appropriate.
- [37]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
- [38]I make the following order:
- 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).