QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:	
	
Woodhouse v State of Queensland (Queensland Health) [2021] QIRC 290

Woodhouse, Robert
(Appellant)

v

State of Queensland (Queensland Health) 
(Respondent)
	
CASE NO:
	PSA/2021/181
	
PROCEEDING:
	Public Service Appeal – Casual employment conversion
	
DELIVERED ON:
	25 August 2021	
MEMBER:

HEARD AT:
	McLennan IC

On the papers	
  ORDERS:	That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1.	The appeal is allowed; 

2.	The decision that Mr Woodhouse not have his casual employment converted to permanent employment is set aside and another decision is substituted; and

3.	Mr Woodhouse's casual employment status be converted to permanent employment in accordance with cl 7.4 of Directive 08/20 Casual employment.	

CATCHWORDS:

LEGISLATION AND OTHER INSTRUMENTS:

CASES:
	
PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – casual employment – where the appellant was reviewed for conversion to permanent employment under the Public Service Act 2008 – where the deemed outcome of the review was that the appellant was not permanently appointed – where appeal filed out of time – consideration of whether to determine appeal out of time – consideration of genuine operational requirements – whether appellant engaged 'on a regular and systematic basis' – where deemed decision was not fair and reasonable 

Acts Interpretation Act 1954 (Qld) s 14A

Directive 01/17 Conversion of casual employees to permanent employment cl 12

Directive 08/17 Temporary employment cl 14

Directive 08/20 Casual employment cl 1, cl 4, cl 5, cl 9, cl 7, cl 8

Financial Accountability Act 2009 (Qld) 

Hospital and Health Boards Act 2011 (Qld) 

Hospital and Health Service General Employees (Queensland Health) Award - State 2015 cl 15

Industrial Relations Act 2016 (Qld) s 451, s 564, 
s 562B, s 562C, s 567

Public Service Act 2008 (Qld) s 147, s 148A, s 149, s 149A, s 149B, s 194, s 196

Queensland Public Health Sector Certified Agreement (No. 10) 2019 cl 5, cl 11

Statutory Instruments Act 1992 (Qld) s 7, s 14

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Clair v State of Queensland (Department of Housing and Public Works) [2020] QIRC 220

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

House v The King (1936) 55 CLR 499

Katae v State of Queensland & Anor [2018] QSC 225

Kelly v State of Queensland (Queensland Health) [2021] QIRC 055

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Roger Carter Paterson v Medical benefits Fund of Australia Limited (1998) 159 QGIG 232
	
Reasons for Decision

Introduction

[1]	Mr Robert Woodhouse (the Appellant) has filed an appeal against a conversion decision made by Queensland Health, State of Queensland (the Department; the Respondent). 

[2]	Mr Woodhouse is substantively employed as an OO2 Operational Services Officer (Cleaner) within the Casual Pool at Maryborough Hospital. 

[3]	Mr Woodhouse has been employed by the Respondent on a casual basis and in various temporary contracts since 15 February 2019. 

[4]	On 14 February 2021, Mr Woodhouse wrote to the Department seeking to be converted from casual to permanent employment under Directive 08/20 Casual employment (Directive 08/20) and s 149B of the Public Service Act 2008 (Qld) (PS Act).

[5]	On 5 March 2021, the Department issued a letter to Mr Woodhouse advising his review eligibility date was 11 February 2021 and a review would be conducted in accordance with Directive 08/20 and the PS Act.

[6]	On 3 May 2021, the Department issued a letter to Mr Woodhouse outlining the reasoning for the conversion decision.

[7]	On 19 May 2021, the Australian Workers' Union (the AWU) on behalf of Mr Woodhouse filed an Appeal Notice seeking to appeal the decision contained in the 3 May 2021 correspondence. 

The decision

	What constitutes the decision subject of this appeal?

[8]	Clause 9.1 of Directive 08/20 provides that "A casual employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert." 

[9]	Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee". 

[10]	In the Appeal Notice, Mr Woodhouse states that he received the decision subject of the Appeal Notice in the 3 May 2021 correspondence - however that is not the case. Section 149B(4)(a) and (9)(b) of the PS Act requires the Department's chief executive to make the decision within 28 days from "the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department". 

[11]	Mr Woodhouse submitted he commenced employment with the Department on 15 February 2019. Notwithstanding, the Department submitted that Mr Woodhouse's review eligibility date was 11 February 2021 which suggests he commenced employment with the Department on 11 February 2019. It is unclear why there is a slight discrepancy between dates, however it may be the case that Mr Woodhouse became an employee of the Department on 11 February 2019 but did not actually commence work until 15 February 2019. As the Department specifically stipulated the review eligibility date, I will proceed on the basis that 11 February 2021 is the correct date. 

[12]	The Department's chief executive was required to make a conversion decision within 28 days from 11 February 2021. No decision was forthcoming by the Department, and so a decision rejecting conversion was deemed to have occurred 28 days later on 11 March 2021 in accordance with s 149B(7) of the PS Act. That is the decision that forms the subject of this appeal. Any written correspondence subsequent to that deemed decision is simply explanation for the prior deemed refusal. 

			Respondent's submission

[13]	Mr Woodhouse's appeal seeks a decision to convert his employment status from casual to permanent pursuant to s 149B of the PS Act. However, in its submissions the Department stated that s 194(2) of the PS Act provides that "A person can not appeal against, or in an appeal call in question in any way, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the public service or a department." Further, that the decision to decline Mr Woodhouse's application for conversion "is a decision about the resourcing of the operational services at the Hospital within a framework of accountability underpinned by numerous legislation…"

[14]	The Department's submission in this regard is vague and it is unclear whether the Department is alleging the conversion decision cannot be appealed. If that is the case and the Department's assertion on this point were to be accepted, the inclusion of an invitation for Mr Woodhouse to appeal the decision under s 194(1)(e) of the PS Act in the 5 March 2021 and 3 May 2021 correspondence issued to him would be quite inexplicable.

[15]	Further, any attempted argument by the Department to adopt this errored interpretation would seemingly result in prohibiting most staffing conversion determinations from ever being challenged through a Public Service Appeal process. Clearly, this is not the intention of either the PS Act or Directive 08/20. 

		Conclusion

[16]	Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision".  

[17]	For the reasons outlined above, I am satisfied the deemed decision was made under 
s 149B of the PS Act and is able to be appealed by Mr Woodhouse. 

Timeframe for appeal

[18]	Section 564(3) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given. 

[19]	The deemed decision was given on 11 March 2021. To accord with s 564(3) of the IR Act, an Appeal Notice should have been filed with the Industrial Registry on or by 1 April 2021. 

[20]	The Appeal Notice was filed with the Industrial Registry on 19 May 2021 - 48 days out of time.  

Should this appeal be heard out of time?

[21]	I am empowered by the IR Act to extend the time for filing an Appeal Notice. The IR Act does not provide any criteria against which I am to determine whether or not to extend time. 

[22]	Mr Woodhouse bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal. However, the issue of the appeal being filed out of time was not raised by either Mr Woodhouse nor the Department. Further, in its submissions filed 1 June 2021, the Department indicates the decision included reasoning and refers to "the decision letter". However, a deemed decision does not come with reasoning, which indicates the Respondent may also consider the decision is contained within the 3 May 2021 correspondence. 

[23]	The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion. Several factors inform the exercise of my discretion. 

[24]	In Breust v Qantas Airways Ltd, Hall P set out the following considerations:

•	The length of the delay; 

•	The explanation for the delay;

•	The prejudice to the Appellant if the extension of time is not granted;

•	The prejudice to the Respondent if the extension of time is granted; and

•	Any relevant conduct of the Respondent.

Length of delay

[25]	The appeal was filed 48 days out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act. I appreciate 48 days is not an insubstantial amount of time. 

Explanation for the delay
[26]	The Appeal Notice indicates Mr Woodhouse believes he was within the required timeframe for filing. Although no explanation was provided, I note that in correspondence to Mr Woodhouse dated 5 March 2021, the Department relevantly stated the following (emphasis added):

A decision will be made within 28 calendar days after the review eligibility date. If a decision is not made within this timeframe, it is deemed that you will not be converted to permanent employment.
…

Under the PS Act, a decision needs to be made within 28 days of your eligibility date. While the delegate is expected to make a decision within this timeframe, if they do not, a decision will be taken to have been made that you will not be permanently appointed. You will be advised in writing of the outcome of your request.

[27]	I acknowledge that Mr Woodhouse ought to have known that a deemed decision was given 28 days after his review eligibility date. That was clearly explained to him in correspondence from the Department on 5 March 2021. Notwithstanding, that correspondence from the Department may have confused Mr Woodhouse into believing the appeal period commenced from the date he received the 'written' outcome of his request, particularly because of the wording, "You will be advised in writing of the outcome of your request".  

	Prejudice to Mr Woodhouse
[28]	The obvious prejudice is that Mr Woodhouse would lose the opportunity for an independent review of the decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment. 

		Prejudice to the Respondent
[29]	I note the Department did not raise that Mr Woodhouse's appeal was filed out of time and therefore no submissions were presented with respect to prejudice. Notwithstanding, delay itself is considered to give rise to a general presumption of prejudice to the Respondent. Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time. 

[30]	For those reasons, I find that the Respondent would also suffer prejudice should I decide to exercise my discretion to hear the appeal out of time.

		Conduct of the Respondent
[31]	The Department's conduct appropriately comprised advising Mr Woodhouse of his review eligibility date, when a decision would be deemed and his appeal rights. Notwithstanding, the Department's indication that Mr Woodhouse would receive a written outcome of his request may have confused Mr Woodhouse and inclined him to wait for a written decision. 

		Prospects of success 
[32]	Mr Woodhouse's prospects of success at a substantive hearing are a relevant consideration. However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed): 

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.
[33]	In my preliminary view of the substantive matter, the merits (or lack thereof) are not clear cut at this stage - this warrants further consideration of the matter. 

[34]	In light of the reasoning above, I will consider this appeal out of time.

	What decisions can the IRC Member make?

[35]	Section 562C(1) of the IR Act prescribes that the Commission may determine to either:

•	Confirm the decision appealed against; or

•	Set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or

•	Set the decision aside and substitute another decision.

Appeal principles

[36]	Section 562B(2)(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". 

[37]	The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Department and the associated decision-making process.  

[38]	Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.

[39]	The issue for my determination is whether the decision not to convert Mr Woodhouse's employment status to permanent was fair and reasonable in the circumstances.

Relevant provisions of the PS Act and Directive 08/20
[40]	Section 148A of the PS Act states (emphasis added):

(1)	A chief executive may employ a person on a casual basis to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive, if employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.

(2)	A person employed under this section does not, only because of the employment, become a public service officer.

(3)	The commission chief executive must make a directive about the employment of casual employees employed under this section or section 147, including the circumstances in which employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate.

[41]	Section 149B of the PS Act relevantly provides:

(1)	This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.
…

(5) 	In making the decision-
(a)	section 149A(2) and (3) applies to the department's chief executive; and
(b) 	the department'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 149A in relation to the person during the person's period of continuous employment.

[42]	Section 149A(2)-(3) of the PS Act provides (emphasis added):

(2)	The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-
(a)	the department's chief executive considers-
(i)	there is a continuing need for someone to be employed in the person's role, or a role that is substantially the same as the person's role; and
(ii)	the person is eligible for appointment having regard to the merit principle; and
(b)	any requirements of an industrial instrument are complied with in relation to the decision.
(3)	If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.
[43]	Directive 08/20 relevantly provides:

5. 	Employment of casual employees
5.1 	Section 148A of the PS Act (Appendix A) provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate.
5.2 	Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and causal employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:

(a)	backfilling tenured or fixed term temporary staff on short-term emergent leave
(b)	covering short gaps in work rosters of tenured and fixed term temporary employees
(c)	in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone
(d)	where needed to work irregular, informal, flexible, occasional or non-rostered hours. 

5.3	Employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis. 
	…
5.5 	An agency should periodically review the use of casual employees to appropriately limit casual employment in accordance with the provisions of the PS Act and to proactively manage its workforce planning.
		…
 
7.4	Unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee under section 149B(3)(b), 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 a role that is substantially the same, in the week immediately before the chief executive's decision, or
	(b)	the average hours per week worked by the employee in the continuing role or a role 	that is substantially the same, over the last two years. 
8.	Decision on review of status
8.1	When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2):
•	whether there is a continuing need for the employee to be employed in the role, or a role which is substantially the same
•	the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
•	whether any requirements of an industrial instrument are complied with in relation to the decision, and
•	the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment. 
8.2		Sections 149A(3) and 149B(5) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, to offer to convert the person's employment o permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.  
[44]	Directive 08/20 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld). 

[45]	Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments.  One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.

[46]	The purpose of Directive 08/20 is:

1.	Purpose 

1.1	The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees and sets out the circumstances where employment on tenure is not viable or appropriate. 
[47]	Further, Directive 08/20 relevantly provides:

4.  	Principles 
4.1 	Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees.  This section gives full effect to the government's employment security policy. 
…
Submissions

[48]	In accordance with the Directions Order issued on 25 May 2021, the parties filed written submissions.

[49]	Pursuant to section 451(1) of the IR Act, no hearing was conducted in deciding this Appeal.  The matter was decided on the papers.

[50]	I have carefully considered all submissions and annexed materials. I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.

Consideration

[51]	I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at. 

[52]	Section 149A(2) of the PS Act and cl 8.1 of Directive 08/20 contain the mandatory decision criteria for casual employment conversions to permanent.  The decision maker must consider:

•	whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same;

•	the merit of the casual employee for the role having regard to the merit principle in s 27 of the PS Act;

•	whether any requirements of an industrial instrument need to be complied with in relation to making the decision; and

•	the reasons for each decision previously made, or deemed to have been made, under ss 149A or 149B of the PS Act in relation to the employee during their period of continuous employment.

[53]	Clause 8.2 of Directive 08/20 provides that (emphasis added):

…where the criteria above are met, the chief executive must decide, within 28 days, to offer to convert the person's employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency.

[54]	The criterion regarding merit is not in dispute and as no other decision has been made under ss 149A or 149B of the PS Act with respect to Mr Woodhouse's employment, that criterion will not be considered. Therefore, my decision firstly turns on the question of whether there is a continuing need for Mr Woodhouse to be employed in the role, or a role which is substantially the same. I will then consider whether any genuine operational requirements reasonably prevent permanent conversion of Mr Woodhouse and whether any relevant requirements of an industrial instrument have been complied with in relation to making the decision.

[55]	In light of the objects and nature of the relevant legislative materials as outlined above, when determining the issue of what is 'reasonable', I will take into consideration the following relevant factors: 

•	The Department should engage employees permanently wherever possible and limit the use of casual employment; 

•	Casual employment should only be used when permanent employment is not viable or appropriate;

•	Agencies should proactively manage their workforce planning to reduce their reliance upon casual employees;

•	An extensive review process was created to facilitate the conversion of casual employees to permanency and limit inappropriate use of casual employment; and 

•	That process is subject to appeal in the QIRC, to ensure compliance.

Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
[56]	There are two potential pathways to conversion. The first pathway is Mr Woodhouse's current role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for Mr Woodhouse to be employed in the current role?
[57]	The Department submitted "it is difficult to predict whether there will be a continuing need to engage" Mr Woodhouse in accordance with the circumstances outlined in cl 5.2 of Directive 08/20. The Department submitted that is because the circumstances prescribed rely upon permanent staff being unable to work their permanent rostered shifts for reasons such as emergent sick leave or carers leave which is not planned in advance. 

[58]	Notwithstanding the above, the Department concluded "it is likely there will be a continuing need to engage" Mr Woodhouse in accordance with the circumstances outlined in cl 5.2 of Directive 08/20 "to enable to (sic) WBHHS to fulfill its requirements in regard to the Certified Agreement." 

[59]	In support of the Department's ultimate conclusion, Mr Woodhouse argued that although he was initially employed for the circumstances outlined in cl 5.2 of Directive 08/20, his services are ongoing. 

[60]	I agree with both parties that there is a continuing need for Mr Woodhouse to be employed in his current role. For the sake of completeness, I will also consider the second pathway to permanent conversion.

Pathway 2: Is there a continuing need for Mr Woodhouse to be employed in a role which is substantially the same?

[61]	In early April 2021, Mr Woodhouse was offered a permanent part time position as a Renal Cleaner to undertake 36 hours per fortnight on night shift at Maryborough Base Hospital. 

[62]	Mr Woodhouse declined that offer because he submits the position involves significantly less hours than his 57.53 casual hours a fortnight (calculated as an average over the last 44-week period). The Department disagreed with that contention generally on the basis Mr Woodhouse's casual hours are substantially varied and his current role has no guarantee of hours. Nevertheless, Mr Woodhouse also contended the night shift arrangement would conflict with his parental duties to young children. 

[63]	I note that cl 7.4 of Directive 08/20 requires a minimum number of hours of work to be offered when converting an employee under s 149B(3)(b) of the PS Act. However, that offer was made subsequent to the deemed decision on 11 March 2021. Therefore, it is not an offer to convert under s 149B(3)(b) of the PS Act because the Department had already decided to continue Mr Woodhouse's employment on a casual basis pursuant to s 149B(3)(a).

[64]	The term "same role" was defined in the superseded Directive 01/17 Conversion of casual employees to permanent employment and Directive 08/17 Temporary Employment as including:

a role which has the same or substantially the same capability requirements, either at level or at a higher classification (e.g. a payroll officer may provide a service to different client groups), or a role with a generic role description involving a range of duties (e.g. rotation through financial and payroll processing duties under a generic entry-level role description).

[65]	In Katae v State of Queensland & Anor, Crow J noted that the legislation was remedial, and went on to find: 

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.

[66]	It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements. It is the substance of the requirement, rather than merely the form, that is relevant. 

[67]	Although the Department has not evidenced any express consideration of the capability requirements, it appears that the Department considered there to be a continuing need for Mr Woodhouse to be employed in the role of a cleaner, albeit during a night shift. I find it more probable than not that the capability requirements of a night shift cleaner are substantially the same as that of other hospital cleaners. Further, the guidance on a definition of the 'same role' indicates that the fact a role comprises less hours or alternative shift periods does not render it to be different. The key factor is whether the capability requirements are shared and I accept that to be the case here. 

[68]	As such, I find there is a continuing need for Mr Woodhouse to be employed in a role that is substantially the same as his current role - the Department reasonably considered that role and offered it to Mr Woodhouse. Despite Mr Woodhouse's determination not to accept that permanent part-time position due to his family caring responsibilities; the Department has nonetheless complied with s 149A(2)(a)(i) of the PS Act.  

Genuine operational requirements

[69]	Clause 8.2 of Directive 08/20 provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate having regard to the genuine operational requirements of the agency."

[70]	'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply. 'Genuine operational requirements' is a very broad term. 

[71]	One relevant rule of statutory interpretation is the principle of 'beneficial legislation'.  Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. That principle has been applied to equal opportunity legislation. In IW v City of Perth, it was held that such remedial materials are:

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".

[72]	Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation. 

[73]	Giving due consideration to the object, scope and purpose of the relevant legislative materials, including those outlined in paragraph [46] and [47] above, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a casual employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those. 

[74]	If the inconveniences inherent to most if not all permanency conversions were sufficient to constitute genuine operational requirements, there would be few or no conversions. That interpretation would defeat the purpose of Directive 08/20 and the review.

[75]	In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting casual employment where possible. 

[76]	The Department argued there are 'genuine operational requirements' that prevent the conversion of Mr Woodhouse to permanent employment. In essence, the reasons are:

•	Mr Woodhouse's employment falls under the circumstances outlined in cl 5.2 of Directive 08/20 and his employment on tenure is therefore not viable or appropriate; 

•	Conversion to permanent would result in resourcing and budgetary issues; and

•	Use of casual employees is integral to the management of staffing requirements, including rostering requirements.

[77]	I will deal with each of those reasons in turn. 

Employment on tenure is not viable or appropriate 

[78]	The Department reasoned that Mr Woodhouse's employment falls under the circumstances outlined in cl 5.2 of Directive 08/20 because Mr Woodhouse's employment has been:

… short term, or to meet unpredictable, irregular or variable demand or in emergent situations; and you have been engaged to backfill tenured or fixed term temporary staff on short-term emergent leave, cover short gaps in work rosters of tenured and fixed term temporary employees, in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone, and/or where needed to work irregular, informal, flexible, occasional or non-rostered hours. 

[79]	The Department submitted that the nature of Mr Woodhouse's engagement includes:

… ad hoc casual call in shifts, and when required, you are engaged on fixed term temporary contracts, to backfill the leave of substantive employees. 

[80]	In response, Mr Woodhouse submitted he:

is required to meet 'unpredictable, irregular or variable demand or in emergent situations', if it can be said that he is doing this as part of his current employment it can also be further observed that he is doing so on a regular and systematic basis.

[81]	The issue is not whether it was appropriate to initially employ Mr Woodhouse on a casual basis. The question is whether that should continue. Mr Woodhouse relevantly pointed to cl 5.3 of Directive 08/20 which states that "employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis."

[82]	In Kelly v State of Queensland (Queensland Health), Commissioner Pidgeon stated:

With regard to cl 5.3 of the Directive, Ms Kelly's employment is not short-term. She has worked for the Respondent over three years. While Ms Kelly is employed to address the circumstances set out in cl 5.2 of the Directive, it appears to be uncontroversial that her services will be required in an ongoing way. If Ms Kelly is required to meet 'unpredictable, irregular or variable demand or in emergent situations', she is doing so on a regular and systematic basis and it seems to me that this makes her employment on tenure viable and appropriate.

[83]	That reasoning can be applied to Mr Woodhouse's circumstances for the reasons that follow. Mr Woodhouse has been engaged to undertake the circumstances prescribed in cl 5.2 of Directive 08/20 for over two years. Although the nature of casual work itself can be unpredictable, in light of his calculated average number of hours, I accept Mr Woodhouse has been engaged frequently - this is evidence of regularity. Further, the circumstances listed may be of an irregular nature but because they have been carried out by Mr Woodhouse in a repetitive pattern, I am satisfied they have been undertaken on a regular basis. 

[84]	The admission that Mr Woodhouse's role is continuing and the continual pattern of engaging Mr Woodhouse over the last two years illustrates how the Department relies upon Mr Woodhouse on an ongoing basis. A continuous pattern of allocated hours, albeit unpredictable, indicates that Mr Woodhouse is engaged on a systematic basis. 

[85]	I accept that over the last two years Mr Woodhouse has been employed on a casual basis to undertake the circumstances listed in cl 5.2 of Directive 08/20. It is possible that the work undertaken by Mr Woodhouse could be done on a casual basis. That is not in issue. A finding that the work could be done on a casual basis is not tantamount to evidencing a genuine operational requirement preventing conversion to permanent.

[86]	I am satisfied Mr Woodhouse has been employed for a purpose mentioned in cl 5.2 of Directive 08/20 on a regular and systematic basis. In the absence of any genuine operational requirement to the contrary, I am satisfied that Mr Woodhouse's employment on tenure is viable and appropriate.  

Resourcing and budgetary issues

[87]	Further to the above, the Department submitted that the following factors constituted genuine operational requirements preventing conversion of Mr Woodhouse:

•	The service area in which Mr Woodhouse is engaged currently has a set budgeted establishment, and all permanent positions are currently filled, with the exception of the vacancy that he has declined. 

•	Cases including Holcombe v State of Queensland (Department of Housing and Public Works) and Clair v State of Queensland (Department of Housing and Public Works) are authority for the proposition that there is not a requirement for more than one person in any given role. Therefore, the Department submits that to convert an employee like Mr Woodhouse in such circumstances would be unviable and inefficient. 

•	The Department referred to provisions of the Financial Accountability Act 2009 (Qld), particularly those relating to efficient, effective and economical management. Those principles are similarly prescribed in the Hospital and Health Boards Act 2011 (Qld) in addition to that of sustainability. 

[88]	In response, Mr Woodhouse contended:

•	The Department's submissions regarding the effect his conversion would have on the Department "is a gross over exaggeration". 

•	The Respondent has not provided any specific information to indicate that conversion of Mr Woodhouse would lead to the chief executive being unable to manage public resources properly. 

•	It is not the case that upon Mr Woodhouse's conversion there will be two people employed in the same position. 

[89]	Mr Woodhouse correctly pointed out that the Department has omitted to relate the relevant requirements under various legislative frameworks back to Mr Woodhouse's specific circumstances. Rather, the Department has broadly referred to various provisions without referencing the material facts or evidencing how Mr Woodhouse's conversion would go against the objectives of those provisions. This indicates that the Department may have taken a blanket approach to Mr Woodhouse's conversion request and without specific evidence indicating Mr Woodhouse's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that resourcing and budgetary issues pose a genuine operational requirement that justifies a deemed refusal to convert Mr Woodhouse. 

[90]	Mr Woodhouse also correctly pointed out that a budgeted vacancy is not required for a casual conversion to permanent employment. I accept that the creation of a new permanent position is to be expected in such circumstances. Further, it is an inherent requirement of converting any casual employee to permanency that there will be budgetary re-allocations and the like. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees. Within any staffing budget provision, it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent' or 'casual' line item allocation.  Those operational reasons are therefore not reasonable in this context. 

[91]	Mr Woodhouse submitted that his circumstances are analogous to that in Kelly v State of Queensland (Queensland Health), "in that the rejection was based purely on a lack of 'budgeted vacancies' and the Respondent has not put forward any different reasoning as to why this Appellant should not be converted to permanency." However, I have found that the Department did consider the nature of Mr Woodhouse's work with regard to cl 5.2 of Directive 08/20 and therefore disagree that a lack of budgeted vacancies was the sole reason for the refusal to convert. 

[92]	It does not follow that the permanent conversion of Mr Woodhouse's position would have meant there would be two people employed in the same role. My decision in Holcombe v State of Queensland (Department of Housing and Public Works) was about a higher classification conversion under s 149C of the PS Act. The reasoning in that decision was specific to the wording of s 149C and has no relevance to this matter. Further, the Department argued that Mr Woodhouse's engagement falls under all circumstances listed in cl 5.2 of Directive 08/20. If that is the case, then it seems improbable that he has been covering the workload of just one employee but rather a number of employees for a range of reasons.

[93]	In light of the reasoning above, I conclude that the budgetary and resourcing issues raised by the Department do not constitute genuine operational requirements that could reasonably prevent permanent conversion of Mr Woodhouse. 

Use of casual employees integral to management of staffing requirements

[94]	Further to the above, the Department submitted that the following factors constituted genuine operational requirements preventing conversion of Mr Woodhouse:

•	The nature of Mr Woodhouse's engagements align with the workforce strategy for his service area, ensuring flexibility and an appropriate workforce mix. The workforce strategy would be impacted by Mr Woodhouse's conversion because it will cause an over establishment and require other casual or temporary employees to backfill the ongoing leave of Mr Woodhouse. Further, it would remove the Respondent's workforce and rostering flexibility and create inefficiencies contrary to s 98 of the PS Act which requires management in a way that promotes the "effective, efficient and appropriate management of public resources". 

•	Engaging casual and temporary staff is required in accordance with the Department's workforce management strategy to enable the Department to fulfill its requirements outlined in the Queensland Public Health Sector Certified Agreement (No. 10) 2019 (the Certified Agreement). 

[95]	In response, Mr Woodhouse contended:

•	Section 98 of the PS Act requires the chief executive to manage the operational needs and ensure the financial sustainability of the service and "effective, efficient and appropriate management of public resources". Mr Woodhouse contends his employment history "clearly shows that there is an on-going genuine operational need to employ him on a consistent and systematic basis." 

•	Section 25 of the PS Act requires the management of public resources in an efficient, responsible and fully accountable way while ensuring promotion of employment on tenure as the default basis. Mr Woodhouse contends there is no reason to suppose that his conversion would affect these requirements. 

[96]	As concluded above with respect to resourcing and budgetary issues, the Department has failed to link the various instruments referenced back to Mr Woodhouse's specific circumstances. Further, there appears to be a clear lack of balance between weight given by the Department to operational requirements and weight given to the principle that employment on tenure is the default basis of employment. 

[97]	I accept that the nature of Mr Woodhouse's role necessitates a degree of flexibility within the workforce mix. However, in considering the relevant provisions of the Hospital and Health Service General Employees (Queensland Health) Award - State 2015 (the Award), I note that rosters are required to be made available to employees "…at least one calendar week in advance of the roster cycle". Further, that changes to the roster "…shall be by agreement between the employer and the employee concerned but, failing agreement, 24 hours' notice of any change in the roster must be given by the employer..." 

[98]	Such industrial instrument requirements are neither unique nor new conditions for the Department to come to terms with.  These requirements do necessitate forward planning and consultation but are certainly not onerous. Nor are they beyond what would be expected of most agencies converting a casual staff member to permanency. 

[99]	The Department also states that Mr Woodhouse's conversion to permanent employment would create difficulty in backfilling staff. Again, that is to be expected in the ordinary course of converting any casual staff member to permanency. Were that a sufficient reason, it is foreseeable that very few or no casual conversions would occur. 

[100]	I would first observe that the parties have consented to the inclusion of a workload management clause within the Certified Agreement, including backfilling absent staff to avoid excessive workloads.  Presumably the parties have come to terms with this as part of a package of negotiated outcomes and are prepared to abide by the provisions agreed. In light of the Department's submission, seemingly there are other casual staff members available to backfill an unplanned absence aside from Mr Woodhouse - or indeed there may be other part time staff who would welcome an additional shift or perhaps even a full time employee prepared to swap a rostered shift. As such, I do not consider that such an inherent reality of converting virtually any casual employee to permanency constitutes a reasonable genuine operational reason.  

[101]	Therefore, those genuine operational requirements relied upon by the Department are not reasonable in this context.
Compliance with industrial instrument

[102]	With regard to the Certified Agreement, the Department took into consideration cl 5.2 'Process to Address Absences within Operational Services'. Specifically, cl 5.2.1 states:

All absences (planned and unplanned) within Operational Services will be backfilled. The options to backfill may include but are not limited to:

(a)	Offering additional ordinary hours to Part-Time employees, 
(b)	Offering additional work to casual employees, 
(c)	The application of Relief Pool staff, the use of Overtime,
(d)	Utilisation of temporary engagement (e.g. extended period of absence). 

[103]	The Department contends, and I agree, that the Certified Agreement recognises the use of casuals as one strategy to mitigate workload and continue service provision in the event of staff absences. However, when employment on tenure is the default basis of employment in the public service, other considerations must be taken into account and for the reasons outlined above, I am not convinced there are genuine operational requirements that justify the use of casual employment in Mr Woodhouse's circumstances.  

[104]	Further to the above, the Department argued it complied with the requirements under cl 11.5 of the Certified Agreement which outlines the closed merit selection process for filling vacancies. Clause 11.5.6 of the Certified Agreement states:

If vacant hours still remain unfilled, the remaining vacant hours will be offered by a closed merit process, restricted to those casual and temporary employees working at the site (example: Hospital) who have two years or more continuous service for base grade or non-base grade roles. Preference for base grade roles will be given to those employees with more than four years continuous service.
[105]	The Department offered Mr Woodhouse a position under cl 11.5.6 of the Certified Agreement that Mr Woodhouse submitted is less than his current working hours as a casual and "was not practical or desirable" due to commitments to young children. Nevertheless, I find that the Department has complied with cl 11.5.6 by offering the position to Mr Woodhouse.

[106]	I find that cl 5.2 and cl 11.5 of the Certified Agreement pose no impediment to the appeal being decided by the Commission. 

Conclusion

[107]	For the reasons detailed above, I find the decision to maintain Mr Woodhouse on a casual basis was not fair and reasonable. There is a continuing need for Mr Woodhouse to continue working in his current role or a role that is substantially the same and the Department has not evidenced a genuine operational requirement that reasonably prevents conversion of Mr Woodhouse to permanent employment.

[108]	I order accordingly. 

Order: 

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1.	The appeal is allowed; 

2.	The decision that Mr Woodhouse not have his casual employment converted to permanent employment is set aside and another decision is substituted; and

3.	Mr Woodhouse's casual employment status be converted to permanent employment in accordance with cl 7.4 of Directive 08/20 Casual employment.