QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Williams v State of Queensland (Queensland Health) [2023] QIRC 059
	
PARTIES:
	Williams, Bridgette
(Appellant)

v

State of Queensland (Queensland Health) 
(Respondent)
	
CASE NO.:
	PSA/2022/739
	
PROCEEDING:
	Public Service Appeal - Conversion of fixed term temporary employment 
	
DELIVERED ON:
	23 February 2023	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER: 	1.	The decision is set aside; 

2.	The matter is returned to the decision maker to conduct a fresh review in accordance with the terms of Sections 149A and 149B of the Public Service Act 2008, and in accordance with the Fixed Term Temporary Employment Directive 09/20 within 28 days of the date of this decision.
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – fixed term temporary employment review – where the appellant’s employment was reviewed under s 149B of the Public Service Act 2008 (Qld) – consideration of the scope of a review under s 149B – irrelevant considerations – decision not fair and reasonable	

LEGISLATION:	
Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 148, 149A, 149B and 194
	
CASES:
	Benson v State of Queensland (Department of Education) [2021] QIRC 152

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

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

Reasons for decision

Introduction

[1]	Ms Bridgette Williams ('the Appellant'), is currently employed by the State of Queensland (Queensland Health) ('the Respondent') as a fixed term AO6 Principal Web and Communications Officer, Media and Communications with Metro South Hospital and Health Service ('MSHHS') until 31 December 2023.

[2]	On 1 July 2022, the Appellant was notified by the Respondent that a review of the Appellant's fixed term temporary employment status had commenced in accordance with s 149B of the Public Service Act 2008 (Qld) ('the PS Act') and Directive 09/20 Fixed term temporary employment ('the Directive'). The Appellant was informed that, as required by the Directive, the review would be completed within 28 calendar days and where the Appellant does not receive a decision within the required timeframe, it will be deemed that her employment not be converted to permanent.

[3]	The Appellant did not receive notification within the required timeframe and accordingly her employment status was deemed to remain as fixed term temporary ('the decision').

[4]	By appeal notice filed on 5 September 2022, the Appellant appealed against the decision pursuant to s 194(1)(e) of the Public Service Act 2008 (Qld) ('the PS Act').

Appeal principles

[5]	The appeal must be decided by reviewing the decision appealed against. Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing, but involves a review of the decision arrived at and the decision making process associated therewith.

[6]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances.

What decisions can the Industrial Commissioner make?

[7]	In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(a)	confirm the decision appealed against; or

(b)	set the decision aside and substitute another decision; or

(c)	set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant provisions of the PS Act and the Directive

[8]	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 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.
…

[9]	Section 149A(2) of the PS Act provides:

(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.

[10]	Section 149A(3) of the PS Act provides:

(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.

[11]	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.

8.3 	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).
…

Reasons for Appeal

[12]	The Appellant appeals the decision on the basis that she believes she has met both the length of service and performance requirements to be converted to permanent and further, that the decision maker failed to:

(a)	properly consider the mandatory criteria in accordance with the PS Act;

(b)	provide written reasons of the decision, including findings on material questions of fact; and

(c)	refer to the evidence or other material on which those findings were based.

Submissions

[13]	The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below. 

Appellant's submissions

[14]	In support of her appeal, the Appellant contends that, even if the Respondent believes that the work performed in the Appellant's current role is temporary in nature, the Respondent has not adequately considered whether there is a requirement for someone to be employed on a frequent or regular basis in accordance with s 148(3) of the PS Act for a purpose mentioned in s 148(2) of the PS Act.

[15]	The Appellant contends that the circumstances surrounding her conversion is akin to the circumstances in Benson v State of Queensland (Department of Education) ('Benson'), submitting the following:

…I have been in my current role or a role substantially the same since June 2020 and have been extended or re-engaged numerous times by the Department. I have also had my previous service from November 2018 to March 2020 with West Moreton Hospital and Health Service recognised by the Department as per the Public Service Commission's Recognition of Previous Service (Directive 12/18).

[16]	The Appellant submits that there is a continuing need for her to be employed in the role or a role that is the same or substantially the same and has demonstrated merit, meeting the mandatory criteria under ss 149A(2)(a)(i) and (ii) of the PS Act. The Appellant further submits that there are no genuine operational requirements preventing the Appellant from being converted to permanent in accordance with s 149A(3) of the PS Act.

[17]	The Appellant relies on the decision of Kay v State of Queensland (Queensland Health) and submits that the purpose of s 149B of the PS Act or the Directive is not achieved by failing to convert her employment status to permanent in circumstances where there is an obvious continuing need for the role or a role which is substantially the same. The Appellant submits that the Respondent's decision is contradictory by simultaneously implying that there is no continuing need for the Appellant's employment or role, but also that the role is continuing and ongoing in nature.

[18]	The Appellant further highlights the following with regard to the continuing need for the role:

…between the dates of July 2022 – December 2022 the Department extended my employment despite the incumbent having returned from Parental Leave, and I believe this implies that the Department has a continuing need for an employee to perform a role that is substantially the same as my current role consistent with s 148(3) of the PS Act. I also note that my employment has been extended until December 2023 to cover another colleague who is taking Parental Leave. These circumstances are exactly the type of circumstances catered for in s 148(3) of the PS Act, and I believe means that it is viable and appropriate to convert my employment status to permanent.

[19]	The Appellant submits, with respect to the genuine operational requirements of the Respondent, that there is an authentic need for someone to perform the role or a role that is substantially the same for the foreseeable future. The Appellant submits that the Respondent is utilising a fixed-term temporary arrangement to populate a role that could be carried out by a permanent employee and further, that no evidence appears to have been presented to dispute the genuine operational need of the role or a role which is substantially the same.

[20]	The Appellant refers to the Respondent's Conversion of temporary employees to permanent status HR Policy B52 ('the Policy') and submits that the Policy provides that an employee is not converted to a specific position which implies that there is no genuine operational requirement that prevents the Respondent from converting the Appellant to permanent.

Respondent's submissions

[21]	The Respondent notes the Appellant was previously employed by the Respondent with West Moreton Hospital and Health Service between 5 November 2018 to 29 March 2020 before separating from the Respondent on 29 March 2020. The Appellant subsequently recommenced employment with the Respondent on 27 July 2020. The Respondent submits that, for the purpose of the fixed term temporary employment conversion review, the Appellant's anniversary date is 27 July 2020.

[22]	The Respondent submits that the Appellant is engaged to backfill hours made vacant by permanent employees who have temporarily reduced their hours on return from parental leave, and another employee who is proceeding on parental leave. The Respondent submits that it has 'pieced together' available hours from other roles to create a full time equivalent role.

[23]	The Respondent submits that the Appellant's circumstances significantly differ from those in Benson, as the Appellant has been engaged to backfill permanent employees who are entitled to, and intend to, return to their substantive hours. The Respondent further submits that this circumstance is specifically contemplated under s 148(2) of the PS Act and is a genuine operational reason not to convert the Appellant to permanent.

[24]	The Respondent submits that cl 8.1 of the Directive was considered before a decision was made regarding the Appellant's employment status, outlining that:

(a)	the Appellant has completed two years cumulative fixed term temporary service and is eligible for conversion subject to any genuine operational reasons;

(b)	the Appellant has merit;

(c)	consideration was given to whether there was, at the time, a continuing need to place the Appellant in a role and the likelihood of the role to be ongoing. As the substantive position holders will return to their substantive hours, there is no continuing need for the Appellant beyond her fixed term temporary contract; and

(d)	during the conversion review, opportunities within other work areas, and within other facilities at MSHHS in the same or similar role were also explored, however, there were no permanent ongoing roles available that were suitable for the Appellant, when accounting her profession, skills, qualifications, and experience.

Appellant's submissions in reply

[25]	In reply to the Respondent's submissions, the Appellant submits that, whilst the anniversary date of 27 July 2020 is relevant to the Appellant's eligibility for a conversion review, her previous service with the Respondent as a fixed-term temporary employee is a material fact that should be considered when determining whether to convert the Appellant.

[26]	The Appellant reiterates that the PS Act expressly provides that employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned under s 148(2) of the PS Act on a frequent or regular basis and submits that, due to the Appellant's employment history and currently being contracted for over 14 months, she has clearly been engaged on a frequent and regular basis to backfill multiple absences. The Appellant further submits that the Respondent does not clarify why s 148(3) of the PS Act does not apply to the Appellant's circumstances.

[27]	The Appellant highlights that the Respondent appears to have misinterpreted and conflated the term 'ongoing' with 'permanent', referring to Katae v State of Queensland & Anor.

[28]	The Appellant submits that accounting for the Appellant's 'profession, skills, qualifications, and experience' is not a consideration outlined in the Directive or the PS Act and should not be a consideration in this matter as the Respondent has confirmed that the Appellant has met merit.

[29]	The Appellant outlined several colleagues of which she is aware that will be working part time after returning from parental leave and submits that this is further evidence the Respondent will require someone to backfill multiple absences for the foreseeable future, indicating that there is no genuine operational requirement to prevent the Appellant from being converted to permanent. In the Appellant's view, the Respondent is using a temporary employee to perform a role that could be performed by a permanent employee, which is inconsistent with the Queensland Government's Employment Security Policy.

Consideration

[30]	To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable having regard to the requirements of the Directive and the PS Act. 

[31]	The Appellant submits that the Respondent has failed to provide the Appellant with written reasons of the decision, including findings on material questions of fact and has failed to refer to the evidence or other material on which those findings were based.

[32]	Section 149B(7) of the PS Act and cl 8.5 of the Directive contemplate circumstances in which a decision has not been made with respect to a conversion. In circumstances that a decision is not made within 28 days after the employee's anniversary date, it is deemed that the Appellant's employment continues according to the terms of the existing arrangement. 

[33]	A 'decision' is a specific action associated with s 149B(3) that invokes the provisions under ss 149B(5) and (6) of the PS Act. The requirement for a notice pursuant to subsection (6) applies only when a decision has been made to refuse the request for conversion. The specific requirements that are mandatory following a decision do not apply to s 149B(7) of the PS Act.  

[34]	Although there is no statutory requirement that reasons be furnished if the decision is 'deemed' in accordance with s 149B(7) of the PS Act, a fair appeal process relies upon the Appellant being made aware of the Respondent's reasons for the outcome of the decision. I am satisfied that the Appellant has had the opportunity to examine the Respondent's submissions outlining the considerations of the review and was afforded the opportunity to provide submissions in reply. 

Merit

[35]	It is not in dispute that the Appellant satisfies the merit requirements for the role consistent with the requirements of s 149A(2)(a)(ii) of the PS Act. 

Is there a continuing need for the Appellant to be employed in the role, or a role which is substantially the same?

[36]	The Respondent submits that the Appellant is currently engaged to backfill hours made vacant by permanent employees who have temporarily reduced their hours on return from parental leave, and another employee who is proceeding on parental leave. The Respondent contends that it has pieced together available hours from other roles to make one full time equivalent role. 

[37]	Section 148(2) of the Act provides a list of circumstances that indicate an appointment should be on a fixed term temporary basis rather than permanent. This list includes circumstances where an employee is engaged to fill a vacancy arising because a person is absent for a known period. The Appellant in this matter was engaged to backfill permanent employees who are entitled to return to their substantive roles. Accordingly, it was open to the Respondent to determine that there is not a continuing need for the Appellant to be employed in the role when the incumbent employees return from leave. 

[38]	The Appellant takes issue with the Respondent's consideration of the word 'permanent', submitting that it has been conflated with the term 'ongoing'. The Appellant refers to the consideration of the term 'ongoing' in Katae v State of Queensland & Anor however I note that the consideration in that matter was in the context of the previous Directive.

[39]	The Directive does not require consideration of whether there is a continuing need for the Appellant to be employment in a 'permanent' role which is substantially the same, rather it requires consideration of whether there is a continuing need to be employed in the role or a role which is substantially the same. The practical effect of this requirement is that consideration must be given to whether there is a 'continuing need' rather than a temporary need. In this context I consider the Respondent's use of the word 'permanent' as equivalent to a 'continuing need' in that it examines whether there are other continuing roles available. I am satisfied that the use of the word 'permanent' is consistent with the purpose of the review which is to consider if an employee's employment may be converted to permanent rather than to another temporary role. 

[40]	Section 149A(2) requires the Respondent to also consider if there is a continuing need for the Appellant to be employed in a role which is substantially the same. The Respondent submits that during the conversion review, opportunities within other work areas under the control of the MSHHS in the same or similar role were explored, however there were no ongoing roles of a permanent nature available that were suitable for the Appellant ''when accounting for her profession, skills, qualifications, and experience.''

[41]	I accept the Appellant's submission that consideration of her 'profession, skills, qualifications, and experience' is not a consideration outlined in the Directive or the Act. The suitability of the Appellant for conversion to permanency is determined through consideration of merit. In circumstances where the Respondent has confirmed the Appellant's merit, as is the case in this matter, there are no other requirements to consider the Appellant's particular 'profession, skills, qualifications, and experience'. Following the determination that the Appellant is meritorious, the only consideration is whether there is a continuing need for the Appellant to be employed in the role or a role substantially the same. On the basis that the Appellant satisfies the merit criteria for her current role, it is taken that she satisfies the merit criteria for a role substantially the same. Matters such as profession, skills, qualifications and experience are irrelevant considerations, with the only consideration required being whether there are any other roles 'substantially the same.'

[42]	The Appellant was entitled to be considered for any continuing roles which are substantially the same as the one in which she is currently employed. The inclusion of an additional requirement that consideration of these roles be limited to those that were suitable 'when accounting for her profession, skills, qualifications and experience' places an unreasonable limitation upon the Appellant's opportunity for conversion. 

[43]	On the basis that irrelevant considerations were taken into account in determining the Appellant's review, the decision was not fair and reasonable. 

[44]	Accordingly, the decision is set aside and the Respondent is directed to conduct a fresh review in accordance with the Directive within 21 days of this decision.

Order

[45]	I make the following order:

1.	The decision is set aside; 

2.	The matter is returned to the decision maker to conduct a fresh review in accordance with the terms of Sections 149A and 149B of the Public Service Act 2008, and in accordance with the Fixed Term Temporary Employment Directive 09/20 within 28 days of the date of this decision.