QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Reid v State of Queensland (Queensland Health) [2021] QIRC 216

PARTIES:	
	Reid, Frederick
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2021/51
	
PROCEEDING:
	Public Service Appeal – Conversion of Casual Employment 

DELIVERED ON:
	16 June 2021
	
MEMBER:

HEARD AT:	Knight IC

On the papers

ORDERS:
	1.	The appeal is allowed.
2.	Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
3.	Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Mr Reid's request in accordance with Directive 01/17 Conversion of casual employees to permanent employment and these reasons.	
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – where the appellant requested his casual status be converted to permanent – where the request was refused – whether there were genuine operational reasons not to convert – appeal allowed
	
LEGISLATION AND INSTRUMENTS:

	Directive 01/17 Conversion of casual employees to permanent employment cl 6, cl 7 and cl 8

Directive 08/20 Casual employment cl 10.3

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

Public Service Act 2008 (Qld) s 149A
(as at 31 August 2020) 

Public Service Act 2008 (Qld) s 197 
(as at 14 September 2020)
	
CASES:	Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

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

Reasons for Decision

[1]	Mr Frederick Reid is employed on a casual basis as a Wardsperson (OO2) at the Maryborough Hospital within the Wide Bay Hospital and Health Service ('WBHHS'). He has been employed by WBHHS in this role since 29 September 2007.
[2]	On 22 September 2020, the Australian Workers' Union ('the AWU'), on Mr Reid's behalf, requested his employment be converted to permanent pursuant to Directive 01/17 Conversion of casual employees to permanent employment ('Directive 01/17').
[3]	In a decision letter dated 7 January 2021, Ms Debbie Carroll, Chief Executive of WBHHS informed Mr Reid that his employment would not be converted to permanent employment having regard to genuine operational reasons ('the decision').
[4]	By appeal notice filed 28 January 2021, Mr Reid appeals the decision under ch 7, pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein. Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.
[5]	In my view, the decision was not fair and reasonable.
[6]	My reasons follow.
The Decision
[7]	The decision relevantly provided:
Genuine Operational Requirements
Section 8.2 of the Directive states that in line with the Employment Security Policy, the chief executive should convert the casual employee to a permanent employee at level, unless there are genuine operational reasons not to do so.
I have determined that there is likely to be a continuing ... need for you to be engaged in accordance with the circumstances as outlined in 6.2 of the Directive and that you have demonstrated merit. However, conversion is not appropriate or viable at this time as there are genuine operational reasons not to do so.
As Chief Executive, I am required to manage and resource the full time equivalent (FTE) establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within section 98 of the Public Service Act 2008, and within the current Service Delivery Agreement for Wide Bay Hospital and Health Service.
Notwithstanding there are currently no budgeted vacancies within the area in which you are engaged, I have determine that there is likely to be a continuing need for you to be engaged in accordance with the circumstances as outlined in 6.2 of the Directive; specifically that the nature of your engagement is required where the service operates in a regional area and in a twenty-four hour, seven day per week service where flexibility in the type of engagement is required to enable the WBHHS to fulfil its requirements outlined in the Certified Agreement.
It is neither viable nor appropriate in this case to convert to permanent.
I therefore find that there is a genuine operational reason not to convert your employment to permanent at this time.
WBHHS's Submissions
[8]	WBHHS argues it is a genuine operational requirement that it maintain casual employees in order to staff a 24/7 roster whilst also allowing for various leaves and absences of permanent staff.
[9]	Although not reflected in the decision provided to Mr Reid, WBHHS submits that over the past two years Mr Reid has only been contracted to fill roles where the incumbent position holder has been absent due to recreation leave, sick leave, QSuper, WorkCover, training, graduated return to work or where a position was undergoing recruitment. 
[10]	If it were to convert Mr Reid, WBHHS contends it would be obliged to engage another casual or temporary employee to backfill any leave or absence taken by Mr Reid.
[11]	Relying on cl 5.2 of Directive 08/20 Casual employment ('Directive 08/20'), WBHHS refers to the circumstances in which tenured or fixed term employment may not be viable or appropriate. Although it concedes Mr Reid's employment could not be characterised as short-term, WBHHS highlights other circumstances where it is appropriate to engage casuals, for example, "to meet unpredictable, irregular or variable demand or in emergent situations". 
[12]	Having regard to those circumstances, WBHHS contends the nature of Mr Reid's engagement is unpredictable, irregular or variable in demand or in emergent situations such that it is a true casual position. Moreover, it submits the nature of Mr Reid's engagement aligns with the workforce strategy implemented by WBHHS, which in turn aligns with its obligations under the Queensland Public Health Sector Certified Agreement (No. 10) 2019 ('the certified agreement').
[13]	It further submits Mr Reid's casual engagement is consistent with the State's employment security policy which not only makes a commitment to permanent employment but also encourages workforce planning that is efficient and flexible.
[14]	Referring to Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'), WBHSS notes that the term "genuine" has been construed to mean "authentic". 
[15]	In determining whether the operational reasons relied upon are "authentic", WBHHS submits it is relevant to understand the legislative framework within which it made its decision. In doing so it relies on several instruments under which it has certain obligations, namely the:
(a)	PS Act which requires a chief executive to manage a department in a way that promotes the "effective, efficient and appropriate management of public resources" including, inter alia, human resources;
(b)	certified agreement which requires WBHHS to backfill permanent staff and recognises the use of casual staff for that purpose;
(c)	Financial Accountability Act 2009 (Qld) and related subordinate legislation which sets out strategic legal obligations and a financial management framework which WBHHS must comply with; and
(d)	Hospital and Health Boards Act 2011 (Qld) under which WBHHS provides services with key performance indicators linked to efficient and sustainable workforce management.
Mr Reid's Submissions
[16]	Mr Reid contends the decision is not fair and reasonable and as such seeks that it be set aside and a decision substituted in lieu thereof that he be converted to permanent. The legal standard of reasonableness, he submits, is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power and its real objective.
[17]	Consequently, Mr Reid argues the decision-maker erred by failing to consider all relevant factors, specifically the:
(a)	State's commitment to permanent employment and limiting the use of casual employment, which should only be used where permanent employment is not viable or appropriate;
(b)	requirement for agencies to proactively manage their workforce planning to reduce their reliance on casual and temporary employees;
(c)	existence of an extensive review process designed to facilitate conversion of casual and temporary employees to permanent positions, which is subject to appeal to ensure compliance.
[18]	Mr Reid also notes WBHHS's obligation to convert his employment in the absence of genuine operational reasons that would otherwise bar conversion. Where those reasons do exist, Mr Reid contends they must be evidenced and not trivial. Rather, a "reasonable" genuine operational reason is one which is sufficiently substantial as to warrant overcoming the State's commitment to permanency and should not be interpreted to included inconveniences which are inherent to most, if not all, conversions.
[19]	Referring to comments in the decision regarding the lack of a substantive vacancy, Mr Reid maintains (correctly in my view) that the existence of a vacant position is neither a mandatory consideration nor a pre-requisite to conversion.
[20]	Referring to WBHHS's reliance on the certified agreement, Mr Reid also highlights that cl 5.2 of the certified agreement provides that any additional hours of work are to be offered to current part-time employees in the first instance, followed by casual staff, then relief pool staff.
[21]	In his reply submissions, Mr Reid notes that he already takes periods of leave from work (albeit unpaid) during which WBHHS is obliged to backfill his position. He therefore resists WBHSS's submission that converting him would have any significant impact on WBHSS's workforce strategy.
What Decisions can the Industrial Commissioner make?
[22]	In deciding this appeal, s 562C(1) of the IR Act provides that I 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 it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
Relevant Principles
[23]	As Mr Reid made his request for conversion prior to the commencement of Directive 08/20, and notwithstanding WBHHS took more than fifteen weeks to make a decision, the decision-maker was required to have regard to s 149A of the PS Act as it applied prior to amendment on 14 September 2020, which provided as follows:
149A	Commission chief executive must make directive about casual employees
(1)	The commission chief executive must make a directive about reviewing the status of casual employees for the purpose of deciding whether or not to convert their employment to permanent employment.
(2)	The chief executive of the department in which a casual employee the subject of the directive is employed must, within the period provided for in the directive, decide whether the person's employment in the department is to—
(a)	continue as a casual employee according to the terms of the existing employment; or
(b)	be as a general employee on tenure or a public service officer.
(3)	In making the decision, the chief executive must consider any criteria for the decision fixed under the directive by the commission chief executive.
(4)	If the chief executive does not make the decision within the period, the chief executive is taken to have decided that the person's employment in the department is to continue as a casual employee according to the terms of the existing employment.
(5)	A person's employment can not be converted without the person's consent.
(6)	A person may apply to have the person's employment converted if the person has been employed as a casual employee on a regular and systematic basis for at least—
(a)	2 years; or
(b)	if a shorter time is decided by the commission chief executive—the shorter time.
[24]	Directive 01/17 relevantly provides:
6.	Principles
6.1	The Employment Security Policy outlines the government's commitment to permanent employment where possible and limiting the use of casual employment.
6.2	Casual employment should only be used when permanent employment is not viable or appropriate. Examples of viable and appropriate casual employment include where the casual employee:
•	backfills permanent or temporary staff on short-term emergent leave;
•	covers short gaps in work rosters of permanent and temporary employees;
•	is engaged in an ad hoc or "on demand" nature, each engagement standing alone; or
•	works irregular, informal, flexible, occasional or unrostered hours.
6.3	An agency should periodically review the use of casual employees to limit casual employment and to proactively manage its workforce planning.
7.	Application for conversion of casual employee to permanent employment
7.1	A casual employee may apply to have their employment converted to permanent employment if the person has been employed as a casual employee on a regular and systematic basis for at least 2 years, as provided by section 149A of the PSA.
7.2 	Casual employees may apply in writing to the chief executive.
...
8.	Criteria for a decision
8.1 	When making a decision about an application of a casual employee for conversion to permanent employment, the chief executive must consider the following criteria:
a)	Is the person employed as a casual employee?
b)	Is the basis of the casual employment both regular and systematic?
The chief executive must look at the engagement as a whole and consider each application on a case by case basis.
Circumstances that may indicate the casual employment is regular and systematic include (but are not limited to):
Regular	Systematic	
•	Usual, normal or customary
•	Recurs at a fixed time or periodically
•	Observes fixed times or habits

Evidence might include:
•	Repetitive pattern
•	Frequent though unpredictable engagements
•	Regular days or hours of work or provided with shifts regularly
	Having, showing or involving a system, method or plan

Evidence might include:
•	Pattern of engagement
•	A fixed roster (or predicable hours)
•	Unpredictable hours may also be evidence of a pattern of engagement
•	Degree of certainty about work hours
•	Ongoing reliance upon the worker's services
	
Note: The evidence listed above are examples only. Other evidence may support a finding that the basis of the casual employment is regular and systematic.
c) 	Has the person been employed on a regular and systematic basis as a casual employee for at least two years?
Employment on a regular and systematic basis as a casual employee for at least two years includes:
•	non-continuous service, where a casual employee has performed a cumulative total of two years' service in the same role in an agency, including periods of temporary and casual service, provided that the breaks in employment do not exceed a total of three months in the cumulative two year period.
d)	Has the casual employee satisfactorily met the performance objectives of the role during their employment?
e)	If all of the above criteria are satisfied, the chief executive must then consider:
Are there genuine operational reasons not to convert the casual employee? These may include (but are not limited to):
•	whether there is a continuing need for the person to be employed in the role, or in a role which is substantially the same, and the role is likely to be ongoing;
•	where the minimum hours set out in an industrial instrument if the casual is converted will not suit operational requirements; or
•	where a closed merit selection process is more appropriate to determine an order of merit for casual conversions.
8.2 	In line with the Employment Security Policy, the chief executive should convert the casual employee to a permanent employee at level, unless there are genuine operational reasons not to do so.
Was the Decision Fair and Reasonable?
[25]	WBHHS maintains the decision not to convert Mr Reid should be confirmed by the Commission, noting it "has evidenced genuine operational requirements for not converting [Mr Reid]" and further, "along with [Mr Reid's] engagement falling squarely within the confines of the examples in cl 5.2 of the Directive 08/20, this is evidence that WBHHS has genuine operational requirements … for not converting [Mr Reid] to permanent". 
[26]	I have some difficulties with these submissions for several reasons.
Submissions predicated on incorrect directive
[27]	Firstly, WBHSS has relied on an incorrect directive throughout its submissions. That is, WBHHS refers in its submissions to the provisions of Directive 08/20, which do not apply in respect of this appeal, in circumstances where:
(a)	Mr Reid submitted his request for conversion prior to the commencement of Directive 08/20; and 
(b)	the decision-maker arrived at a conclusion about the conversion request having regard to Directive 01/17. 
[28]	In this appeal, I am required to review the decision arrived at and the decision-making process therein. Although there are many similarities between Directive 01/17 and Directive 08/20, the reliance, for example, by WBHHS on circumstances which might warrant the ongoing engagement of casuals, as provided for within cl 5.2 of Directive 08/20, is not overly helpful in this appeal. 
Genuine operational reasons
[29]	As is clear from cl 8(e) of Directive 01/17, the decision-maker must have regard to "genuine operational reasons not to convert" when considering an application for conversion from casual to permanent status. Here, the decision-maker relies on genuine operational reasons as a bar to converting Mr Reid.
[30]	The phrase "genuine operational reasons" is not defined in the PS Act, and, although cl 8(e) of Directive 01/17 identifies some circumstances which may be a reason not to convert, that list is not exhaustive. In Morison Merrell DP observed the following with respect to the phrase "genuine operational requirements":
[37]	The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.
[38]	The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:
•	managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and
•	planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act.
[31]	His Honour then found that the phrase would at least include a consideration of whether there was "an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department" to convert the employee's employment.
[32]	Although the term "requirements" arguably imposes a different test to the term "reasons", the above is still useful in considering the extent to which a department or agency must establish its reasons for refusing to convert an employee.
[33]	Although I accept the decision-maker relied on the correct directive when she decided not to convert Mr Reid, I consider there are limited, if any, accompanying materials within her correspondence or WBHHS's submissions, that support its claims about the unpredictable nature of Mr Reid's employment or the genuine operational reasons which precluded his conversion. For example, very limited details have been provided to the Commission in respect of Mr Reid's casual hours of work, the circumstances in which they are performed or the context in which he has undertaken temporary appointments.
[34]	In those circumstances, I am unable to conclude whether or not the operational reasons highlighted by WBHHS preclude Mr Reid from conversion. 
Conclusion
[35]	For the reasons given above, I consider the decision was not fair and reasonable. Another review should be undertaken. 
[36]	Having regard to Mr Reid's fifteen years of service, the paucity of detailed reasons in the decision, the lack of materials highlighting the unpredictable nature of his employment and the reliance by WBHHS on Directive 08/20 when making its submissions, the appropriate course is to set aside the decision dated 7 January 2021. 
[37]	The issue of Mr Reid's casual employment status is returned to the decision-maker for determination.
[38]	I order accordingly.
Orders
1.	The appeal is allowed.
2.	Pursuant to s 562C(1)(c) the decision appealed against is set aside and returned to the decision-maker with a copy of these reasons.
3.	Within 21 days of receipt of these reasons, the respondent must undertake a fresh review of Mr Reid's request in accordance with Directive 01/17 Conversion of casual employees to permanent employment and these reasons.