QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Rahman v State of Queensland (Department of Energy and Public Works) [2022] QIRC 015
	
PARTIES:	

	Rahman, Md Istehadur
(Appellant)

v

State of Queensland (Department of Energy and Public Works
(Respondent)	
CASE NO:	PSA/2022/22	
PROCEEDING:
	Public Service Appeal – Conversion of Fixed Term Temporary Employment
	
DELIVERED ON:	28 January 2022	
MEMBER:	Knight IC	
HEARD AT:	On the papers
Final submissions received 24 January 2022	
ORDER:	The decision appealed against is confirmed.	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant's employment was reviewed under s 149B of the Public Service Act 2008 after two years' continuous service – whether there is a continuing need for the appellant to be employed in the same role, or a role that is substantially the same – where the appellant's position in his current State Government department is being abolished – where the appellant has been offered further employment, in a similar role, in a different State Government department – decision confirmed – appeal dismissed	
LEGISLATION AND INSTRUMENTS:
	Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 25, 28, 148 149A, 149B, 197

Directive 09/20 Fixed term temporary employment cl 8	
CASES:	Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)	
Reasons for Decision

[1]	Mr Md Istehadur Rahman is employed by the State of Queensland as a Senior Integration Analyst (AO6) through the Department of Energy and Public Works ('the Department'), within the Reside Support Group ('the RSG'). Prior to this, Mr Rahman was a part of the Future of Property and Tenancy Systems ('FOPATS') unit, where he was undertaking the same role. It is not in dispute that he has been continuously employed by the Department since 2 December 2019.
[2]	Between July 2019 and 11 November 2020, Mr Rahman was continuously employed, on a fixed term temporary basis, within the former Department of Housing and Public Works ('the DHPW'). 
[3]	As a result of machinery of government changes, the DHPW was renamed the Department of Communities, Housing and Digital Economy ('the DCHDE') and the business unit in which the RSG was located was transferred to the Department.
[4]	On 2 June 2021, the Deputy-Director General of the DCHDE determined the RSG would be transitioned to DCHDE from 30 September 2021. This date was subsequently extended to 31 January 2022 to allow for the finalisation of a systems upgrade prior to the move taking place. Consequently, Mr Rahman's contract was extended from 1 October 2021 to 31 January 2022.
[5]	Mr Rahman has actively sought conversion to permanent employment since at least December 2020.
[6]	In support of his request for conversion, Mr Rahman provided submissions to the Department on 16 December 2021 in which he set out his roles and responsibilities and the reasons why he maintains there is a continuing need to employ him, on a permanent basis, in his current role.
[7]	In a decision letter dated 23 December 2021, which detailed the outcome of a review of Mr Rahman's fixed term temporary employment, Mr Peter Borserini, Manager Human Resources, informed Mr Rahman his employment would continue according to his current fixed term temporary contract ('the Decision').
[8]	Mr Rahman's present contract is due to expire on 31 January 2022, at the conclusion of which he will undertake a four-month fixed term temporary position with DCHDE. 
[9]	By appeal notice filed 12 January 2022, Mr Rahman 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). 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.
[10]	In my view, the decision was fair and reasonable.
[11]	My reasons follow.
The Decision
[12]	After setting out the background of Mr Rahman's request for conversion and the Department's obligations to conduct a review in accordance with s 149B of the PS Act, the Decision sets out the 'temporary circumstances' of Mr Rahman's role.
[13]	The decision-maker decided as follows:
Temporary review
...
On review of your fixed term temporary status, and having regard to your submissions dated 16 December 2021, the Deputy Director-General has determined that the temporary circumstances of your engagement are continuing and that your employment will continue on a fixed term temporary basis.
The reasons for the Deputy Director-General's decision are as follows:
•	The purpose of your current fixed term temporary engagement as an AO6, Senior Integration Analyst within BSS, TDS, Corporate, DEPW, is to perform work for a specific purpose with a known end date, specifically to allow for the finalisation of a system upgrade prior to the Reside Support services transitioning to DCHDE on 31 January 2022.
•	On finalisation of a system upgrade prior to the Reside Support services transitioning to DCHDE on 31 January 2022, there will no longer be a continuing need for you to perform the roles of AO6, Senior Integration Analyst within BSS, TDS, Corporate, DEPW. 
•	Enquiries have been undertaken by Human Resources in relation to the Corporate Division's establishment, and, at this time, no other roles with the same or substantially the same capability requirements as your current AO6, Senior Integration Analyst role within BSS, TDS, were identified that there is a continuing need for you to be employed in.
Grounds of Appeal
[14]	Mr Rahman's grounds of appeal are as follows:
(a)	The decision-maker erred by considering that the purpose of Mr Rahman's role is to perform work for a particular project or purpose that has a known end date in circumstances where the work is ongoing and not of a temporary nature; and
(b)	The decision-maker erred in determining that because the RSG is transitioning from the Department to DCHDE there is no longer a continuing need for Mr Rahman's role.
The Department's Submissions
[15]	The Department contends the Decision was fair and reasonable in the circumstances, and made in accordance with the PS Act and Directive 09/20 Fixed term temporary employment ('the Directive').
[16]	It submits Mr Rahman's current temporary engagement is to perform work for a specific purpose, with a known end date. 
[17]	Specifically, his employment is for the purpose of allowing the finalisation of a system upgrade prior to the RSG transitioning to DCHDE on 31 January 2022. After this time, it contends there will not be a continuing need to employ Mr Rahman in the same role and his current end date has been coordinated to coincide with the transition.
[18]	With respect to other roles that are the same or substantially the same, the Department contends enquiries were undertaken by its human resources team, however it was unable to identify any suitable roles where there is a continuing need to employ Mr Rahman.
[19]	Further, relying on s 148(2) of the PS Act, the Department argues it is not viable or appropriate to permanently employ Mr Rahman in circumstances where his skills are only temporarily required to perform work for a particular project or purpose. In this respect it notes s 148(1) of the PS Act recognises there are circumstances where temporary employment is appropriate.
[20]	In reply, the Department confirmed the transition of the RSG to DCHDE is not a machinery of government change involving a transfer, but rather a commercial decision that the DCHDE will no longer require the Department to provide DCHDE with Reside Support services. Further, when the RSG unit transitions back to DCHDE, Mr Rahman's role will not be transferred but rather abolished.
[21]	Whether there is a need to continue to employ Mr Rahman in a same or similar role in DCHDE, it submits, is a matter for the chief executive of DCHDE.
[22]	As the Department will no longer provide Reside Support services beyond 31 January 2022, it submits the decision that there was no need to employ Mr Rahman in the same or similar role within the Department was fair and reasonable.
Mr Rahman's Submissions
[23]	Mr Rahman contends his employment is not for a particular purpose or project. Referring to the role description for his position, Mr Rahman contends the duties he is required to undertake are 'business as usual' duties, and not duties required merely for the purpose of a set project. 
[24]	With respect to the current system upgrade for which his contract has been extended, he submits this is part of ad hoc work he is required to perform in addition to his usual duties.
[25]	Mr Rahman argues there is a continuing need to employ him in his role as he is required to undertake his usual duties to maintain the system using his analyst and security skills.
[26]	This skillset, he submits, is unique within the whole of Queensland Government. If his role were to cease, Mr Rahman submits there would be no one to perform the security and integration work currently undertaken by him, which would result in business information becoming inconsistent and unsecure, the consequence of which may be dire and include potential financial loss and data security breaches. Consequently, he submits the work he performs is not temporary in nature.
[27]	In this respect, Mr Rahman highlights he has been offered a four-month contract within DCHDE when the RSG transitions from the Department to DCHDE, during which he will undertake the same duties he currently performs. 
[28]	Further, he notes the contract with the vendor for the 'Reside Property and Tenancy Management system' has been extended for a further five years, such that there will be a continuing need for Mr Rahman to be employed once the RSG transitions to DCHDE.
[29]	Mr Rahman contends there could be no genuine operational requirements of the Department which would make conversion to permanent employment not viable or appropriate. This is so, he submits, because when the RSG transitions to DCHDE, so too will his employment such that there will be no impact on the Department. Further, Mr Rahman submits that, notwithstanding the fact the RSG sits within the Department, it has been continuously funded by DCHDE.
[30]	Finally, Mr Rahman submits that the refusal to convert him as a result of the RSG transition disadvantages his employment security and is contrary to the intention of s 25(2) of the PS Act which states that permanent employment is the default basis for public sector employment.
Relevant Principles
[31]	The PS Act relevantly provides:
149A	Decision on review of status
...
(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
		...
(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.
149B	Review of status after 2 years continuous employment
(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.
(2)	However, this section does not apply to a non-industrial instrument employee.
(3)	The department's chief executive must decide whether to—
(a)	continue the person's employment according to the terms of the person's existing employment; or
(b)	offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.
(4)	The department's chief executive must make the decision within the required period after—
(a)	the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and
(b)	each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.
(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.
(6)	If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating—
(a)	the reasons for the decision; and
(b)	the total period for which the person has been continuously employed in the department; and
(c)	for a fixed term temporary employee—how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and
(d)	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.
	(7)	If the department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.	
	...
(8)	The commission chief executive must make a directive about making a decision under this section.
(8A)	The directive must provide for—
(a)	the matters a department's chief executive must consider in deciding the hours of work to be offered in converting a person's employment under subsection (3)(b); and
(b)	the circumstances in which a person may appeal against the decision about the hours of work offered in converting the person's employment.
	...
(9)	In this section—
	...
required period, for making a decision under subsection (3), means—
...
(b)	... 28 days after the end of the period mentioned in subsection (4)(a) or (b).
[32]	Clause 8 of the Directive relevantly provides:
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 person to be employed in the role, or a role which is substantially the same 
•	the merit of the fixed term temporary employee for the role having regard to the merit principle in section 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 sections 149A or 149B in relation to the employee during their period of continuous employment. 
8.2	Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide 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.
...
8.5	Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).
8.6	Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
...
Was the Decision Fair and Reasonable?
[33]	It is not in dispute Mr Rahman was eligible to be converted having regard to his length of service and the merit criteria. In those circumstances, the Department was required to offer to convert Mr Rahman's temporary status to permanent, where there was a continuing need to employ him in the same role, or a role that is substantially the same. The only exception is where it is not viable or appropriate to do so, having regard to the genuine operational requirements of the Department.
Continuing need to be employed in the same role, or a role that is substantially the same
[34]	The Department maintains Mr Rahman was required to perform work for a specific purpose and end date, namely, to allow for the finalisation of a system upgrade prior to the RSG transitioning to DCHDE on 31 January 2022. 
[35]	In those circumstances it argues there is not a continuing need for Mr Rahman to be employed in his current role beyond 31 January 2022, which is the end date by which the system upgrade will be finalised and when the RSG will be transitioned out of the Department. 
[36]	Mr Rahman, on the other hand, contends there is an ongoing need for him to be employed in the same role. In support of his position, he has provided the Commission with copies of role descriptions relevant to those he performed for the Department, which he maintains can only lead to a conclusion that his current role includes a need to perform 'business as usual' duties, in addition to the work he is required to undertake for the Reside 6.22 Version Upgrade. 
[37]	Moreover, Mr Rahman submits that when he commences his new temporary contract with DCHDE, he believes he will be undertaking the same role, and the same duties he undertook while working for the Department. He is also of the view the role will continue beyond the four months that has been offered by DCHDE in circumstances where the contract with the vendor relevant to the Reside Property and Tenancy Management system has been extended for five years. 
[38]	One of the challenges for Mr Rahman, with this somewhat unusual set of circumstances, is that both the PS Act and the Directive require the 'the department's chief executive' or the 'chief executive' to consider if there is a continuing need for Mr Rahman to be employed in his role or a role that is substantially the same. 
[39]	In this matter, the decision-maker in respect of the decision as to whether to convert Mr Rahman to a permanent role, was Mr Borserini, Manager Human Resources for the Department. The decision to continue Mr Rahman in his temporary role was made on 23 December 2021 by the Department. 
[40]	It is clear the assessment has been conducted having regard to the temporary role Mr Rahman was undertaking at the Department, being the Department of Energy and Public Works, at the time of the review. In my view, this is the correct approach. 
[41]	I accept on the materials before the Commission that Mr Rahman's role, as a Senior Integration Analyst (AO6) with the Department will come to end once the system upgrade is finalised, and the RSG is transitioned out of the Department on 31 January 2022. 
[42]	Within the Department, I accept there is not a continuing need for Mr Rahman to be employed in the same role. Moreover, I am satisfied the Department have taken adequate steps to determine whether any other roles within its organisation, with the same or substantially the same capability requirements exist, and that none have been identified. 
[43]	Section 149A(2) of the PS Act provides the Department's chief executive may offer to convert Mr Rahman's employment under s 149B(3)(b) only if there is a continuing need for him to be employed in his role, or a role that is substantially the same as his role; and he is eligible for appointment having regard to the merit principle.
[44]	Although I am satisfied Mr Rahman meets the merit principle, I am not persuaded there is a continuing need for him to be employed in the Senior Integration Analyst (AO6) role with the Department. It is clear on the materials Mr Rahman's role will come to an end on 31 January 2022.
Conclusion
[45]	For the reasons given above, I consider the decision was fair and reasonable.
[46]	I order accordingly.

Order
The decision appealed against is confirmed.