QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Quinn v State of Queensland (Queensland Health) [2023] QIRC 024
	
PARTIES:	
	Quinn, Naomi 
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2022/954
	
PROCEEDING:
	Public Service Appeal – Appeal against a conversion decision  

DELIVERED ON:
	25 January 2023	
MEMBER:
	Dwyer IC
	
HEARD AT:	On the papers
	
ORDER:
	1.	The decision appealed against is set aside and is substituted with a decision that the Appellant's employment be converted to permanent.  
	
CATCHWORDS:

	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a conversion decision – where Ms Quinn had been working on fixed term temporary engagements – where a deemed decision was made not to convert Ms Quinn to permanent employment – whether the deemed decision was fair and reasonable – consideration of whether existence of a permanent position is prerequisite for conversion – decision not fair and reasonable – decision set aside 
	
LEGISLATION:	Industrial Relations Act 2016 (Qld) ss 562B,  562C

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

Directive 09/20 Fixed term temporary employment 
	
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

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

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

Stephens v State of Queensland (Queensland Health) [2022] QIRC 213

Reasons for Decision

	Background

[1]	Ms Naomi Quinn ('Ms Quinn') is employed by Queensland Health at Cairns and Hinterland Hospital and Health Services ('CHHHS') and currently performs the role of AO3 Administration Officer Medical Receptionist at the Innisfail Hospital. 

[2]	On 6 September 2022, Ms Quinn requested that CHHHS convert her employment status from a fixed term temporary employee to a permanent employee in accordance with s 149B(3)(b) of the Public Service Act 2008 (Qld) ('PS Act') ('the request'). 

[3]	By 4 October 2022, Ms Quinn had not received a response from CHHHS within the 28-day period prescribed under the PS Act. Accordingly, CHHHS made a deemed decision in accordance with s 149B(7) of the PS Act not to convert Ms Quinn's employment status from a fixed term temporary employee to a permanent employee ('the deemed decision').
 
[4]	On 6 October 2022, Mr Mark Moorhead, an Industrial Officer employed by Together Queensland, emailed CHHHS on Ms Quinn's behalf to enquire whether it would provide Ms Quinn with a written decision in respect of the request.
[5]	On 6 October 2022 and in response to Mr Moorhead's email of the same date, CHHHS informed Mr Moorhead that by 11 October 2022, it would provide a written decision to Ms Quinn in respect of the request. 

[6]	Despite Mr Moorhead following up twice via email (once on 12 October 2022 and once on 19 October 2022), CHHHS did not provide Ms Quinn with a written decision in respect of the request.  

[7]	On 25 October 2022, Ms Quinn filed an appeal notice in respect of the deemed decision with the Queensland Industrial Relations Commission ('the Commission').

What decisions can the Industrial Commissioner make?
[8]	Section 562C(1) of the Industrial Relations Act (Qld) ('the IR Act') relevantly provides that in deciding a public service appeal, the Commission may: 

(a)	confirm the decision appealed against; or

…

(c)	for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

         Nature of appeal

[9]	Under Chapter 11 of the IR Act, the Commission must decide the appeal by reviewing the decision appealed against. The term 'review' is not defined by the IR Act, but will take its meaning from the context in which it appears.

[10]	An appeal under Chapter 11 of the IR Act is not a rehearing of the matter. Instead, it is a review of the decision and the process through which the decision was made.  The issue for my determination in the matter before me is whether CHHHS' deemed decision to refuse to convert Ms Quinn's employment status from a fixed term temporary employee to a permanent employee was fair and reasonable.

Relevant legislation

[11]	With respect to fixed term temporary employees, Section 148 of the Public Service Act 2008 (Qld) ('the PS Act') provides: 

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 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. 

Examples—
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. 

Examples—
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. 

…

[12]	Section 149A of the PS Act outlines factors the department's chief executive must provide consideration to when deciding to offer to convert a person's employment: 

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.

[13]	Section 149B of the PS Act applies where a person who is a fixed term temporary employee has been continuously employed in the same department for 2 years or more. It further provides: 

149B Review of status after 2 years continuous employment 

…

(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.

… 

[14]	The Fixed term temporary employment 09/20 ('the Directive') became effective as of 25 September 2020. The Directive, consistent with s 25(2) of the PS Act, establishes employment on tenure as the default basis of employment in the Queensland public service and sets out the circumstances where employment on tenure is not viable or appropriate.

[15]	Clause 8 of the Directive relevantly provides: 

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.

8.3.	If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment: 

(a)	the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements)
 
(b)	where the employee is part-time, an explanation of the days and hours of work offered in the decision, and

(c)	the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert. 

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, 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). 

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. 

8.7.	Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.

Submissions of the parties

[16]	In accordance with a Directions Order dated 27 October 2022, the parties filed written submissions. Ms Quinn filed submissions twice, once on 2 November 2022 and again on 5 December 2022. Ms Quinn's submissions are essentially identical (save for some additional attachments that were included in her submissions dated 5 December 2022). 

Submissions of CHHHS

[17]	CHHHS opens its submissions by agreeing that Ms Quinn had been continuously employed in the same department for 2 years or more in accordance with s 149B of the PS Act. It also agrees that Ms Quinn meets the merits principle referred to in s 149A(2)(a)(ii) of the PS Act. 

[18]	CHHHS submits there is not a continuing need for Ms Quinn to be employed in her role, or a role that is substantially the same as her role.

[19]	CHHHS submits the role Ms Quinn currently performs exists on account of a return-to-work program and ongoing rehabilitation in accordance with an accepted statutory workers' compensation claim. That is, Ms Quinn is not currently performing an existing role, but rather, she is performing duties that are ordinarily performed by other administrative officers that have been allocated to her to accommodate her return-to-work program and rehabilitation. 

[20]	CHHHS submits Innisfail Hospital had 11 permanent FTE allocated across 12 employees when the submissions were filed. At the time, 2.2 FTE required backfill to cover maternity leave, which was undertaken by other fixed term temporary and casual employees. CHHHS submits all other roles were occupied by permanent employees and did not require backfill at the time. 

[21]	With respect to Ms Quinn's extensive employment history, CHHHS submits in the preceding two years, Ms Quinn had been employed in fixed term temporary roles, including roles that were established to assist in the response to the COVID-19 pandemic. CHHHS submits that these roles are no longer required and are not currently being performed by any other Administration Officer AO3 throughout the department.

[22]	CHHHS closes their submissions by contending that there were genuine operational reasons for not converting Ms Quinn's employment, namely that it would involve establishing a new role that was not required, needed and/or funded or budgeted for. CHHHS submits that establishing such a role would compromise the effective management of resources within CHHHS. 

Submissions of Ms Quinn 

[23]	Ms Quinn submits that she was entitled to have her employment status reviewed in accordance with s 149B of the PS Act as she had been continuously employed in the same department for 2 years or more. 

[24]	Ms Quinn contends that she meets the merits principle on account of the positive feedback she had received throughout the term of her employment with CHHHS and Queensland Health. 

[25]	Ms Quinn submits that there is a continuing need for her to be employed in her role, or a role that is substantially the same as her role. However, she does not provide any submissions or documentary evidence that would go towards establishing such a continuing need. 

[26]	Ms Quinn closes her submissions by contending that the deemed decision made by CHHHS was not fair and reasonable as her employment history indicates that, in Ms Quinn's circumstances, employment on tenure is viable and appropriate. On that basis, Ms Quinn considers that she ought to be converted from a fixed term temporary employee to a permanent employee. 

Reply submissions of CHHHS

[27]	In its reply submissions filed on 7 December 2022, CHHHS seek to clarify certain points made by Ms Quinn in her submissions and by itself in its own submissions dated 15 November 2022. 

[28]	CHHHS refers to page 10 of Attachment 2 to Ms Quinn's submissions and submits that the Movement Reason of 'Backfill – Other Leave' was chosen by Ms Quinn's line manager because there was no other suitable entry available and 'Backfill – Other Leave' was the most appropriate in the circumstances. 

[29]	CHHHS refers to paragraphs 12 and 17 of its submissions dated 15 November 2022 and submits that noting the end of Ms Quinn's fixed term temporary contract as 10 January 2023 was an error as the end date of Ms Quinn's fixed term temporary contract is 15 January 2023.

Consideration 

[30]	Ms Quinn has provided continuous and meritorious service to the CHHHS for 12 years. If ever there was an employee entitled to conversion to permanent employment, it is Ms Quinn. 

[31]	It is entirely understandable that the CHHHS might adopt a simplistic approach in their response and regard the absence of an available permanent position at a small facility as a barrier to Ms Quinn's conversion, but such a view is misconceived. 

[32]	Nothing in the PS Act or the Directive provides that the existence of a permanent position is an essential prerequisite for conversion. I have previously observed that the absence of a permanent position is a relevant consideration in the refusal of conversion for 'genuine operational requirements' within the meaning of the PS Act and the Directive. But the absence of a permanent position alone is not a satisfactory response to a conversion request. This is especially so where the length of continuous service of the temporary or casual employee is significant.  

[33]	It is something of a stretch for the CHHHS to submit that, after 12 years of continuous service, there is no ongoing need for Ms Quinn to perform her current role or a role substantially the same. While it is accepted that Ms Quinn has been largely backfilling or performing temporary roles throughout her tenure, it would seem fairly obvious from the consistently available work over 12 years that e.g. backfilling might be a role in itself, at least in the interim.  However, it is not the role of this Commission to descend into the logistical matters as to how Ms Quinn will be permanently employed. Suffice to say, I have no doubt that the CHHHS will find work for Ms Quinn despite the absence of a permanent position in their current organisational structure. 

[34]	Further, given that the allegedly constrained budget has accommodated the continued employment of Ms Quinn for 12 continuous years, I reject entirely the suggestion the budget will be adversely impacted by this appointment. 

[35]	As a final observation I note that, after 12 years of continuous service (where merit is not in dispute) the CHHHS failed to respond to Ms Quinn's request for conversion. Further to this, despite a subsequent undertaking to Ms Quinn's union to provide reasons on 6 October 2022, 'radio silence' was immediately resumed by the CHHHS and Ms Quinn was left with no information about the decision refusing to convert her.   

[36]	While I am conscious that deemed decisions are very much a routine and acceptable response to conversion requests, I would have thought the CHHHS could have troubled itself to give Ms Quinn the courtesy of a written decision given her lengthy tenure. One can readily imagine the advanced state of Ms Quinn's aspirations for the security of permanent employment after 12 years. To simply not respond to her formal request for conversion, while an acceptable approach under the PS Act, was a communication failure by the CHHHS it should strive not to repeat. 

[37]	In all of the circumstance I consider the decision not to convert Ms Quinn's employment to permanent was not fair and reasonable.     

Order

[38]	In the circumstances I make the following order:

1.	The decision appealed against is set aside and is substituted with a decision that the Appellant's employment be converted to permanent.