QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Kay v State of Queensland (Queensland Health) [2022] QIRC 311

PARTIES:	
	Kay, Deborah 
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2022/536	
PROCEEDING:
	Public Service Appeal – Appeal against a conversion decision 

DELIVERED ON:
	9 August 2022 
	
MEMBER:

HEARD AT:	Hartigan IC

On the papers 

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

(a)	The deemed decision of the Respondent which is the subject of this appeal is set aside; and

(b)	In lieu thereof, it is ordered that Deborah Kay's employment status be converted from temporary to permanent. 

CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a conversion decision – where appellant's temporary employment was reviewed in accordance with s 149B of the Public Service Act 2008 (Qld) – where respondent determined to re-classify appellant's position that was being reviewed – where respondent determined not to convert appellant's employment from temporary to permanent on the basis that there is not a continuing need – where respondent appointed appellant to the re-classified position after the review – where decision does not refer to the appellant's appointment to the reclassified position – whether or not there is a continuing need for the appellant to perform the role or a role that is substantially the same - where decision not fair and reasonable – decision set aside and substituted with a decision to convert appellant from temporary to permanent
	
LEGISLATION:

CASES:	Acts Interpretation Act 1954 (Qld), s 27B
Industrial Relations Act 2016 (Qld), s 562B, s 562C
Public Service Act 2008 (Qld), s 149B, s 194
Fixed term temporary employment directive (Directive 09/20) cl, 8 

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)	

Reasons for Decision 
Introduction 

[1]	Ms Deborah Kay is employed by the State of Queensland (Queensland Health) ('the Department'), on a fixed term fulltime basis in the role of Program Manager, AO8, Redlands Hospital Expansion Project ('RHEP') within Metro South Health ('MSH'). Ms Kay was employed in the role of Principal Project Officer AO7, REHP at the time the appeal was filed. 

[2]	Ms Kay has been an employee of the Department since approximately 10 April 2017 and has been engaged in various positions prior to commencing the Principal Project Officer AO7, RHEP role on 30 July 2018. 

[3]	On 1 April 2022, the Department advised Ms Kay that it was conducting a review of her fixed term temporary employment in accordance with s 149B of the Public Service Act 2008 (Qld) ('the PS Act') and the Fixed Term Temporary Employment Directive ('Directive 09/20'). 

[4]	By letter dated 4 April 2022, Ms Kay was advised that she was not being converted to permanent employment and that she would continue to be engaged on a fixed term basis. The decision, inter alia, determined to refuse to convert Ms Kay's employment due to 'genuine operational requirements'. 

[5]	By appeal notice filed in the Industrial Registry on 27 April 2022, Ms Kay appealed the decision of the Department to not convert her fixed term employment to permanent employment and relies on the following grounds in support of her appeal:

…

7.	I submit that the decision made on 04 April 2022 by the Department Chief Executive that I am to remain a fixed term temporary employee is unfair and unreasonable for the following reasons:

(a)	There is a continuing need for someone to be employed in my current role of Principal Project Officer at the Infrastructure and Asset Directorate on a permanent basis given that:

i	increased workload ii. ongoing projects/work of a similar nature iii. positions within the project space have been made permanent

1.	Senior Director PCMO

2.	Project Support Officer PCMO 

8.	I submit that the decision of the Department that I am to remain a fixed term temporary employee is unfair and unreasonable for the following reasons:

(a)	The Department has engaged me through 1 FTE funding since the July 2018 and I am not aware of a specific end date of the current work I am performing. It is my understanding that that the nature of work is ongoing, and the Department has not adequately considered the need for a role that is substantially the same.

(b)	It is my understanding that the Department is constantly undertaking work which requires Principal Project Officers (or roles that are substantially the same) I believe it is unfair and unreasonable for the Department to not have adequately considered or communicated this in their conversion decision.

(c)	It is not appropriate to continue staff as temporary employees if the Department has need for ongoing work to be carried out by the current Principal Project Officer role or a role which is substantially the same.

(d)	The Departments notice of decision (see Attachment 1 — the conversion decision) does not appear to comply with the format or requirements of the Directive.

9.	I have performed as a Principal Project Officer in the Department in excess of 4 years without any adverse findings in respect of my performance or conduct, such that I have demonstrated merit with respect to s 27 of the PS Act, as required by s 149A(2)(a)(ii).

10.	I contend there is a continuing need for me to be employed in the Principal Project Officer or a role that is substantially the same, as per s 149A(2)(a)(i) PS Act, and there are no genuine operational reasons of the Department to preclude my being offered permanent employment. Subsequently, I should be converted to permanent employment status at 1 FTE as per s 149A(3) of the PS Act, such that the decision made by the chief executive of the Department that I remain a fixed term temporary employee is unfair and unreasonable. 

[6]	On 29 April 2022, the Commission issued directions for the filing and serving of written material in support of the appeal. Both parties complied with the directions.

[7]	On 8 June 2022, following a review of the written material filed, the Commission listed the matter for mention to seek clarification from the parties regarding the circumstances around the re-classification of the Principal Project Officer AO7, RHEP position and the establishment of the Program Manager AO8, RHEP position. Following the mention, the Commission issued further directions for parties to file additional material. Both parties complied with the further directions. 

[8]	The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.

[9]	Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act. Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. 

[10]	I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears. An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.

[11]	For the reasons contained herein, I have found that the decision was not fair and reasonable.

Relevant background 

[12]	Ms Kay commenced her employment with the Department as a Project Officer AO5 on 10 April 2017. On 30 July 2018, Ms Kay was employed within MSH in the position of Principal Project Officer, RHEP on a permanent fulltime basis. 

[13]	The RHEP is a is jointly funded project between the Queensland and Federal Government to deliver a new intensive care unit and a refurbishment of a number of areas within the Redlands Hospital. The project has an expected completion date of July 2024. 

[14]	On 27 January 2022, Ms Kay requested an evaluation of the Principal Project Officer AO7, RHEP on a number of grounds, including that there had been a substantial change in the existing role that it had been affected by significant organisational change, that the role was not previously evaluated and that a new role had been created.

[15]	On 23 March 2022, following a role evaluation of the Principal Project Officer, REHP position, the Department determined to reclassify the position to Program Manager AO8, RHEP and accordingly, on 5 April 2022, the AO8 Program manager role was created on a fixed term basis, namely until 30 June 2024. 

[16]	The Department submits that Ms Kay was not eligible to be directly appointed to the Program Manager AO8, RHEP position, as the role remained a true temporary position and she was not the substantive occupant of the position. The Department relies on cl 7.3 of the Human Resources Policy Recruitment and Selection BI (QH-POL-212) in this regard. The Department further refers to the combined effect of cls 6.6 and 6.8 of the Recruitment and Selection Directive (12/20) ('Directive 12/20') and submits that on the basis that the RHEP exceeds 12 months, the Department is required to advertise for the vacant Program Manager AO8, RHEP position.  

[17]	On 8 April 2022, an employee movement form was backdated to 4 April 2022 to appoint Ms Kay to the Program Manager AO8, REHP position on a fixed term basis whilst the recruitment process took place. The Principal Project Officer AO7, RHEP position was approved to be abolished on 26 June 2022. 

The decision 

[18]	By letter dated 4 April 2022, the Department determined to not offer Ms Kay permanent employment and advised Ms Kay that her current employment on a fixed term basis would continue. The decision maker provided the following reasons in support of the decision:

Conversion review decision 
I have conducted a review of your employment status and have determined that your employment will remain as fixed term temporary at this time. You will continue in the role of Principal Project Officer until 26 June 2022 when your temporary contract concludes. 

Considerations when making the decision 
I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment directive 09/20 and your employment history, including any previous conversion review decisions. 

There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below.

Merit 
Thank you for your performance in the role over the period 6 April 2020 to 1 April 2022. You have demonstrated over this time that you satisfy the merit requirements for the role. 

Continuing need 
I have considered the conditions for conversion in the PS Act and determined that you have demonstrated merit and there is a continuing need for you to fill the role or a role that is substantially the same. However, there are genuine operational requirements of the agency that mean it is not viable or appropriate to convert you at this time. Specifically, the Principal Project Officer position you are performing within the Metro South Health’s Redland Hospital Expansion Program (RHEP), relies on temporary funding related to the RHEP. As this funding is temporary, I am unable to convert your employment to permanent. 

Furthermore, there is no continuing need for you to perform a role that is substantially the same as the duties you were previously undertaking as all alternative roles have been considered.

Relevant legislation and directive 

[19]	Section 148 of the PS Act provides for the employment of fixed term temporary employees as follows:

148	Employment of fixed term temporary employees
(1)	A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
(2)	Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes—
(a)	to fill a temporary vacancy arising because a person is absent for a known period;
Examples of absences for a known period—
approved leave (including parental leave), a secondment
(b)	to perform work for a particular project or purpose that has a known end date;
Examples—
employment for a set period as part of a training program or placement program
(c)	to fill a position for which funding is unlikely or unknown;
Examples —
employment relating to performing work for which funding is subject to change or is not expected to be renewed
(d)	to fill a short-term vacancy before a person is appointed on tenure;
(e)	to perform work necessary to meet an unexpected short-term increase in workload.
Example —
an unexpected increase in workload for disaster management and recovery
(3)	Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.
Example —
an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments
(4)	The employment may be full-time or part-time.
(5)	A person employed under this section does not, only because of the employment, become a public service officer.
(6)	The commission chief executive may make a directive about employing fixed term temporary employees under this section.

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

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 person 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 mention 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 causal 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. 

[21]	Section 149B(5) of the PS Act states that s 149A(2) and (3) applies to the department's chief executive when making a decision. Relevantly, s 149A(2) and (3) states: 

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 
(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.
…

[22]	The phrase 'genuine operational requirements of the department' as referred to in 
s 149A(3) of the PS Act, is not defined in the PS Act.  The phrase, in the context of 
s 149C of the PS Act, was considered by Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women) as follows:

…that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

The adjective 'genuine' relevantly means '… being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

•	managing the department in a way that promotes the effective, efficient and appropriate management of public resources;
•	planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. (Citations omitted)

[23]	Directive 09/20 came into effect on 25 September 2020.  Directive 09/20 applies to public service employees who are employed on a full-time or part-time fixed term temporary basis under ss 147(2)(a) or 148 of the PS Act. 

[24]	Directive 09/20, amongst other things, highlights sections of the PS Act which deal with the employment and conversion of fixed term employees and sets out procedures for reviews and requirements for decisions. 

[25]	Clause 8 of Directive 09/20 relevantly requires a decision on a review of status to address certain matters as follows:

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.
…
8.4 	Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954,12 the decision must: 
(a)	set out the findings on material questions of fact, and 
(b) 	refer to the evidence or other material on which those findings were based. 
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).

[26]	Section 27B of the Acts Interpretation Act 1954 (Qld) ('the AI Act') is in the following terms:

27B	Content of statement of reasons for decision 
If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression ‘reasons’, ‘grounds’ or another expression is used), the instrument giving the reasons must also—
(a)	set out the findings on material questions of fact; and
(b)	refer to the evidence or other material on which those findings were base

Whether the decision was fair and reasonable 

[27]	Ms Kay appeals the decision of the Department on the following grounds, as relevantly summarised: 

(a)	the decision does not comply with the mandatory requirements as set out in the PS Act and Directive 09/20;

(b)	there is a continuing need for Ms Kay to be employed in a role or a role that is substantially similar; 

(c)	the Department's decision does not accord with the requirements of s 27B of the AI Act;

[28]	Ms Kay raises additional matters for consideration in her further submissions. These matters include:

(a)	Ms Kay's employment review was conducted early, and she has been distinctly disadvantaged by the employer's decision to initiate the review earlier than her anniversary date as the employer has not considered the role she was performing as at 4 April 2022; 

(b)	Ms Kay has been advised that that Project Manager AO8, RHEP position has been further funded until August 2024, illustrating a continuing need for the person to be employed in a role or a role that is substantially the same; 

(c)	Ms Kay has been advised that in the last six months, two other positions also under the Portfolio Management Officer, Infrastructure and Assets PMO have been made permanent which suggests there is ongoing funding available and disputes the claim the project-based roles are unable to be made permanent; 

(d)	the Queensland Government is committed to maximising permanent employment where possible and contrary to this, decision maker has artificially limited the scope of their decision making to focus solely on appointing Ms Kay to a specific position; and 

(e)	it was not fair and reasonable for the decision-maker to not consider the Program Manager AO8 role when reviewing Ms Kay's employment. 

[29]	The role of the Commission in an appeal of this nature is to determine if the decision is fair and reasonable. I will consider the extent to which the decision maker had regard to the matters that must be considered when making a decision as set out in s 149C of the PS Act and Directive 09/20. 

[30]	There is no dispute that Ms Kay was eligible for review pursuant to s 149B of the PS Act in respect of her temporary employment status. Similarly, it is not in dispute that Ms Kay satisfies the merit criteria for the position. 

Continuing need 

[31]	As noted above, the PS Act, together with cl 8 of Directive 09/20, requires the decision maker, when determining whether to convert an employee to permanent under s149B of the PS Act to consider, inter alia, whether there is a continuing need for the employee to be employed in the role or a role that is substantially the same. 

[32]	Rather curiously, the reasons for the decision did not detail any consideration of the role re-classification. The Department acknowledges this failure but states that as the A08 position had not been approved, it was not open to be considered. 

[33]	At the time the decision was issued, on 1 April 2022, the MSH had undertaken a role evaluation process with the Job Evaluation Outcome recommending that the role be reclassified to an A08 Program Manager, RHEP. This evaluation outcome was endorsed on 23 March 2022. On 28 March 2022, a position creation form was submitted to establish the A08 role. 

[34]	Significant steps had clearly been taken with respect to the reclassification of the role. The failure to consider this re-evaluation of the role in the decision is a failure to consider a material fact. Such failure has the potential to render a decision as not fair or reasonable. 

[35]	Further, whilst the decision maker determined that there was a continuing need for the appellant to fill the role or a role that is substantially the same, further within the decision, the decision maker concluded that, "there is no continuing need for you to perform a role that is substantially the same as the duties you were previously undertaking as all alternative roles have been considered."

[36]	Putting aside the irrelevance of whether alternative roles had been considered, the two statements above are inconsistent with one another. It leaves the reader of the decision as unsure as to whether or not there is a continuing need for the appellant to perform the role or a role that is substantially the same. The internal inconsistency within the reasons of the decision renders it as not fair and reasonable. 

[37]	Finally, the decision relies on genuine operational requirements of the agency to assert that it is not viable or appropriate to convert the Appellant's employment. The decision states, "the… position you are performing within 'the Metro South Health's Redland Hospital Expansion Program… relies on temporary funding… As this funding is temporary, I am unable to convert your employment to permanent." The decision does not identify the nature of the temporary funding in any detail. In its submissions, MSH states the funding is due to expire in July 2024, and that there is no guarantee of funding beyond that date. The expiration date nominated by MSH is just under 2 years away. 

[38]	Whilst s 148(2)(b) of the PS Act acknowledges that employment on tenure may not be viable, including if an employee is performing work for a particular project that has an end date, that must be considered in the context of the matter. In this matter, the Appellant has been engaged in multiple fixed term engagements since 30 July 2018. I do not consider that the purpose of s 149B of the PS Act or Directive 09/20 is achieved by placing an employee on rolling fixed term engagements for a period of at least six years (noting that funding is current until at least 30 July 2024). I consider the failure to convert Ms Kay's employment from temporary to permanent, in the circumstances of this matter, as not fair or reasonable. 

[39]	I am satisfied that there is a continuing need for someone to be employed in the Appellant's role; or a role that is substantially the same as the Appellant's role, and that there are no genuine operational requirements which would impede the conversion of the Appellant's employment status from temporary to permanent. 

Conclusion 

[40]	For the forgoing reasons, I have determined that the decision is not fair or reasonable and I will substitute it for a decision converting Ms Kay's employment status to permanent. 

Order

[41]	I make the following order:

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

(c)	The deemed decision of the Respondent which is the subject of this appeal is set aside; and

(d)	In lieu thereof, it is ordered that Deborah Kay's employment status be converted from temporary to permanent.