QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Peters v State of Queensland (Queensland Health) [2022] QIRC 066

PARTIES:	
	Peters, Peter 
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2021/356	
PROCEEDING:
	Public Service Appeal – appeal against a conversion decision 

DELIVERED ON:
	4 March 2022

MEMBER:

HEARD AT:	Hartigan IC

On the papers 

ORDERS:
	1.	Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.

2.	Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 1 October 2021 be revoked. 

CATCHWORDS:	PUBLIC SERVICE – EMPLOYEE AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where appellant requested to be converted from temporary to permanent employment – where appellant filed the appeal notice before the respondent had determined the request – where no decision made – where Commission declines to hear appeal – stay of decision revoked 
	
LEGISLATION:

	Industrial Relations Act 2016 (Qld), ss 562A and 566
Public Service Act 2008 (Qld) ss 149, 149A, 149B and195
Fixed Term Temporary Employment Directive 09/20 cls, 6, 7, and 11	

Reasons for Decision 

Introduction 

[1]	Dr Peter Peters ('Dr Peters') is employed by the State of Queensland (Queensland Health) ('the Department'), as a Senior Medical Officer in the Dermatology and Cancer Services Department within the Gold Coast Hospital and Health Service ('GCHHS'). 
Dr Peters, at the time of the commencement of this appeal, was employed on a fixed term temporary basis. 

[2]	Dr Peters commenced employment with the Department on 4 February 2013 and has been employed at the GCHHS since 2 February 2015. 

[3]	On 24 September 2021, Dr Peters, through his union representative, the Australian Salaried Medical Officers' Federation Queensland, Industrial Organisation of Employees ('ASMOFQ'), requested that Dr Peters' employment be converted from fixed term temporary to permanent pursuant to s 149 of the Public Service Act 2008 (Qld) ('PS Act'). The ASMOFQ also requested that the GCHHS provide a response to the request for conversion by 5.00pm on Monday, 27 September 2021. 

[4]	By reply email dated 24 September 2021, the GCHHS advised the ASMOFQ that the request for review had been received and that the Medical Officers Permanent Conversion Oversight Committee ('the Committee') was working to provide an outcome, however no timeframe for the review could be provided. 

[5]	On 1 October 2021, the ASMOFQ on behalf of Dr Peters, filed an appeal notice in the Industrial Registry and relies on the following grounds in support of the appeal:

1.	The Appellant is appealing a against a decision not to convert him from temporary to permanent employment. 

2.	The Appellant is eligible to be converted to permanent employment under the Public Service Directive 9/20. 

3.	On 24 September 2021, the Appellant, through his union, requested that his employment be converted…

4.	The employer, Gold Coast Hospital and Health Service (GCHHS), advised on 1 October 2021 that a decision would not be forthcoming until after 6 October 2021…

5.	The Appellant's contract expires on 3 October 2021, a fact known to the employer. By delaying the issuing of a decision on the Appellant's conversion until after his contract expires, the employer is effectively deciding not to convert the Appellant's appointment. 

6.	The Appellant therefore appeals this decision. 

7.	The Appellant has been employed as a Senior Medical Officer (SMO) with the Gold Coast Hospital and Health Service since approximately 2016. The Appellant meets the one year or more of continuous employment eligibility requirement. 

8.	There is an ongoing need for the Appellant to be employed in the same role, or substantially the same role. 

9.	In all the circumstances, the employer's decision not to convert the Appellant's employment was harsh, unjust and unreasonable. 

[6]	On 1 October 2021, this Commission issued directions for the filing of written submissions in support of the parties' position with respect to the appeal and also ordered that the decision the subject of the appeal be stayed pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act'). 

[7]	Both parties complied with the directions. 

Jurisdictional objection

[8]	The Department raises two jurisdictional objections to the appeal as follows: 

a.	No decision was made regarding the Appellant's application in accordance with Sections 149 and 149A of the Act and Directive 09/20 Fixed Term Temporary Employment;

b.	In the event it is determined the Respondent declined the Appellant's request, the decision cannot be appealed against in accordance with Section 195(1)(i) of the Act; and 

[9]	The Department submits that, following receipt of the request for conversion, the Department commenced a review of Dr Peters' service in accordance with ss 149 and 149A of the PS Act and the Fixed Term Temporary Employment Directive 09/20 ('Directive 09/20'). 

[10]	On 1 October 2021, the ASMOFQ made a further request to the Department that the decision be provided before 12 noon that day. The Department, in its response to the ASMOFQ, advised that the Committee was scheduled to meet on 6 October 2021 and that the ASMOFQ could expect a response to the conversion request shortly after that meeting. 

[11]	The ASMOFQ submits that on the basis that Dr Peters' contract was due to expire on 3 October 2021 and that the Department had advised that a decision would not be made until after 6 October 2021, the Department effectively decided to not convert the Appellant's employment. 

[12]	The Department submits that, pursuant to s 149A(1) of the PS Act, it was not required to make a decision until 28 days after the conversion request was received and therefore, at the time the appeal notice was filed on 1 October 2021, no decision had been made in respect of the request for conversion. 

[13]	In the alternative, the Department submits that if it is determined the Department 'effectively rejected the Appellant's decision by delaying a decision until after the Appellant's current contract expired', then that decision is excluded from being appealed against by operation of s 195(1)(i) of the PS Act.

[14]	On 25 February 2022, the Industrial Registry wrote to the parties and invited Dr Peters to file further submissions with respect to whether he has an arguable case for appeal. On 1 March 2022, Dr Peters' representative advised that no further submissions would be filed. 

Relevant legislation 

[15]	Section 149 of the PS Act is set out in the following terms:

149 	Fixed term temporary employees casual employees may ask for review of status after 1 year of continuous employment
(1)	This section applies 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 1 year or more.
(2)	However, this section does not apply to a non-industrial instrument employee. 
(3)	The person may ask the department’s chief executive to 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)	A person can not make more than 1 request under subsection (3) in a 12-month period.
(4A)	For working out how long the person has been continuously employed in the department—
(a)	all periods of authorised leave are to be included; and 
(b)	the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 6 weeks or less in the year occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
(5)	In this section—
fixed term employee includes a general employee employed under section 147 on a temporary basis for a fixed term.

[16]	Section 149A of the PS Act provides for decisions made following a request for conversion and is in the following terms:

149A 	Decisions on review of status 
(1)	The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
…
(5)	If the department’s chief executive does not make the decision within the period required under subsection (1), 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.
…

[17]	Section 149B of the PS Act provides for the review of a fixed term or casual employees' employment status after two years continuous employment in the following terms:

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)	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.
(7A)	For working out how long the person has been continuously employed in the department—
(a)	all periods of authorised leave are to be included; and
(b)	the person is to be regarded as continuously employed even if there are periods during which the person is not employed in the department, if the periods of non-employment in the department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
(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 —
fixed term temporary employee includes a general employee employed under section 147 on a temporary basis for a fixed term.
required period, for making a decision under subsection (3), means—
(a)	the period stated in an industrial instrument within which the decision must be made; or
(b)	paragraph (a) does not apply—28 days after the end of the period mentioned in subsection (4)(a) or (b).

[18]	Section 194 of the PS Act sets out the decisions against which appeals may be made as follows:

194 	Decisions against which appeals may be made
(1)	An appeal may be made against the following decisions: 
(a)	a decision to take, or not take, action under a directive;
(b)	a decision under a disciplinary law to discipline—
(i)	person (other than by termination of employment), including the action taken in disciplining the person; or
(ii)	former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;
(ba)	a decision of the commission chief executive under section 88IA to give a direction about rectifying a defect in the procedural aspects of the handling of a work performance matter, to the extent the direction affects the employee the subject of the work performance matter;
(bb)	a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);
(c)	a decision to suspend a public service employee without entitlement to normal remuneration under section 137 (a suspension without pay decision);
(d)	a decision to transfer a public service officer (a transfer decision);
(e)	a decision (each a conversion decision)—
(i) 	under section 149B not to convert the basis of employment of an employee; or
(ii) 	under section 149B to convert the basis of employment of an employee in a circumstance provided for under a directive made under section 149B(8A); or
(iii)	under section 149C not to appoint an employee to a position at a higher classification level, if the employee has been seconded to or acting at the higher classification level for a continuous period of at least 2 years;
(eb)	a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);
(f)	a decision about anything else against which another Act allows a person to appeal.
(2)	However —
(a)	if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb); and
(b)	as appeal can not be made against a decision if section 195 applies to the decision.
(3)	In this section—
temporary employee—
(a)	includes a general employee employed on a temporary basis; but
(b)	does not include a person employed under section 147 or 148 on a casual basis.

[19]	Section 195 of the PS Act sets out decisions against which appeals can not be made and relevantly states: 

195 	Decision against which appeals can not be made 
(1)	A person can not appeal against any of the following decisions—
…
(i)	a decision under section 149 to not convert the employment basis of a fixed term temporary employee or casual employee;
…

[20]	Directive 09/20 commenced operation on 25 September 2020 and, amongst other things, highlights the provisions in the PS Act which deal with the employment and conversion of fixed term employees. Clause 6 of Directive 09/20 provides for the application by an employee for conversion of fixed term temporary employment to permanent employment after one or more years and is in the following terms:

6.1 	Section 149 of the PS Act establishes that a fixed term temporary employee who has been continuously employed for one year or more may request a review for conversion to permanent employment. An employee may only make one request in a 12-month period.
6.2 	An agency must set out information on its intranet about how to request a review.
6.3 	For a review under section 149, section 149(4A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
6.4 	Under section 149A(1), the chief executive must decide a request made under section 149 within 28 days after receiving it.

[21]	Clause 7 of Directive 09/20 provides for the agency-initiated review of a fixed term temporary employee under s 149B of the PS Act and is in the following terms:

7.1	Section 149B of the PS Act requires and establishes criteria for an agency’s chief executive to review the status of a fixed term temporary employee’s employment where the employee has been continuously employed for two years or more in the same agency.
7.2 	For a review under section 149B, section 149B(7A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
7.3 	Under section 149B(3), the chief executive must decide within 28 days whether to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, or continue the person’s employment according to the terms of the person’s existing employment.
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 role that is substantially the same, in the week immediately before the chief executive’s decision
(b)	the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years.
7.5 	Under section 149B(4)(b), a subsequent review must be conducted after each additional year where an employee remains continuously employed.

[22]	Clause 11 of Directive 09/20 provides for a fixed term temporary employee's appeal rights under the PS Act. Relevantly, cl 11.2 states:

11.2 	In accordance with section 195(1)(i) of the PS Act, a fixed term temporary employee does not have a right of appeal in relation to a decision not to convert in response to an application made under section 149.

Consideration 

[23]	Prior to determining whether a decision is fair and reasonable, I must, firstly, be satisfied that I have jurisdiction to determine the appeal. 

[24]	The relevant issue with respect to whether the Commission's jurisdiction to hear the appeal has been enlivened, is whether the GCHHS has issued a decision which is capable of being appealed pursuant to the PS Act. 

[25]	As noted above, the GCHHS contends that no relevant decision has been made, or in the alternative, the decision is one which can not be appealed pursuant to s 195(1)(i) of the PS Act. 

[26]	Relevantly, Dr Peters, through ASMOFQ, requested that his fixed term temporary employment be converted to permanent employment. That request was made on 24 September 2021. 

[27]	Pursuant to the PS Act, the chief executive must decide a request within 28 days after receiving it.

[28]	Dr Peters' request was made within nine days of his contract expiring on 3 October 2021. It can be inferred that the expiration of his contract was clearly on the Appellant's mind as he, through the ASMOFQ, sought a response to his request sent on Friday, 24 September 2021 by 5.00pm on Monday, 27 September 2021. 

[29]	Further, it appears from the material filed by the GCHHS, that Dr Peters attended a meeting on 18 June 2021, wherein he was advised by the GCHHS that he was being offered a contract renewal for three months, after which a new model of service would be introduced. 

[30]	On 24 September 2021, a representative of the GCHHS wrote to ASMOFQ and stated:

…

The Health Service is working to provide an outcome correspondence as soon as possible. However, I cannot guarantee the timeframe you specify below can be met. 

[31]	On 1 October 2021, the GCHHS wrote the following email to ASMOFQ:

…

Correspondence has been drafted as per your request on behalf of Dr Peters, however our standard process for Medical Officer reviews is that they are tabled at our Medical Officer Permanent Conversion Oversight committee for discussion and recommendation of an outcome to the delegate. Following this the delegate will make a final decision. 

The committee meets every second Wednesday and is next scheduled to meet on Wednesday 6 October 2021. I anticipate that you will receive an outcome shortly after the committee meets. 

[32]	It is this email of 1 October 2021, that Dr Peters seeks to appeal.

Is the email of 1 October 2021 a decision that may be appealed? 

[33]	The email of 1 October 2021 advises Dr Peters that the GCHHS' relevant delegate intends to determine his request shortly after the Committee meets on 6 October 2021. 

[34]	The email of 1 October 2021 does not make a determination of the request made by 
Dr Peters, rather, it provides an indication as to when Dr Peters can expect to receive such a decision. 

[35]	It appears that Dr Peters contends that because his temporary contract expired on 3 October 2021, the advice that a decision would be made shortly after 6 October 2021 was 'the employer effectively deciding not to convert the Appellant's employment'. 

[36]	I do not accept that submission. 

[37]	The expiration of a fixed term temporary contract due to the effluxion of time is not a 'decision' capable of being appealed. The two should not be conflated as they are distinct and separate. Further, the terms of the email of 1 October 2021 clearly state that a conversion decision will be made in due course. I do not consider that the email of 1 October 2021 could be construed as a conversion decision. 

[38]	Relevantly, the appeal was filed by Dr Peters before any such decision could be made. For these reasons, it is unnecessary for me to consider the GCHHS' alternative argument.

[39]	It is clear that Dr Peters made the application very late in the day. Dr Peters and his representatives were clearly aware of the approaching expiration date of the contract. It was also clear that the GCHHS was attempting to expediate its consideration of the request and foreshadowed that it would do so shortly after 6 October 2021, well within the 28 days provided for it to do so in the PS Act. 

[40]	The fact that Dr Peters' contract expired shortly after he made the request is unfortunate, but, in these circumstances, it does not enliven an appeal avenue. 

[41]	The email of 1 October 2021 is not a decision capable of being appealed. Consequently, the Commission declines to hear the appeal pursuant to s 562A(3)(b)(ii) of the IR Act on the basis that it is misconceived or lacks substance. 

[42]	On the same basis, I will also issue an order for the stay issued to be revoked. 

Orders

1.	Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal. 

2.	Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 1 October 2021 be revoked.