Burchall v State of Queensland (Queensland Health) [2025] QIRC 183

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Burchall v State of Queensland (Queensland Health) [2025] QIRC 183 Burchall, Emma (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2025/6 PROCEEDING: Public Sector Appeal – Conversion DELIVERED ON: 17 July 2025 MEMBER: HEARD AT: McLennan IC On the papers ORDERS: Order: That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The appeal is allowed. 2. The decision that Ms Burchall not be converted to permanent in the CNC (NRG7) role is set aside and another decision is substituted. 3. Ms Burchall is permanently appointed to the CNC (NRG7) Organ and Tissue Donation role for 0.5 FTE – and continue as a permanent CN (NRG6) in the Intensive Care Unit for the remaining 0.5 FTE. -- 1 of 27 -- 2 CATCHWORDS: LEGISLATION AND OTHER INSTRUMENTS: CASES: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant was employed in concurrent permanent and temporary contracts – where the appellant sought to be permanently employed in the temporary contract role – where the respondent failed to conduct a mandatory review after two years – consideration of 'genuine operational requirements' – whether the decision was fair and reasonable – where the decision was not fair and reasonable Acts Interpretation Act 1954 (Qld) s 14A Industrial Relations Act 2016 (Qld) s 562B, s 562C, s 564, s 567 Public Sector Act 2022 (Qld) s 81, s 113, a 114, s 115, s 120, s 129, s 131, s 132, s 133, s 134, s 149 Statutory Instruments Act 1992 (Qld) s 7, s 14 Directive 02/23 Review of non-permanent employment cl 1, cl 3, cl 4, cl 7, cl 14 Directive 03/23 Review of acting or secondment at a higher classification level cl 6, cl 8 Benson v State of Queensland (Department of Education) [2021] QIRC 152 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 Joshi v State of Queensland (Queensland Health) [2021] QIRC 212 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 -- 2 of 27 -- 3 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Riddiford v State of Queensland (Department of Education) [2021] QIRC 064 Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) and Ors (No. 3) [2024] QIRC 150 Royle v State of Queensland (Department of Health) [2021] QIRC 142 Taylor v Queensland (Department of Transport and Main Roads) [2022] QIRC 053 Reasons for Decision [1] On 10 January 2025, Ms Emma Burchall (the Appellant) filed an appeal against a decision of the Gold Coast Hospital and Health Service (CHHHS; the Department; the Respondent) not to permanently appoint her to the higher classification level of NRG7, as a Clinical Nurse Consultant (CNC) in Organ and Tissue Donation (the higher classification position; the temporary Position Number 30476514). [2] Ms Burchall commenced in the higher classification position / CNC on 19 September 2022.1 That temporary part-time contract position was at 0.5 FTE hours. [3] Ms Burchall's substantive role is a Clinical Nurse (CN) in the Intensive Care Unit. That is a permanent, 0.9 FTE role at NRG6 classification level.2 [4] During the time that Ms Burchall worked in the higher classification position (0.5 FTE), the hours in her substantive role were adjusted to 0.5 FTE, to enable her to perform both concurrently.3 Dates of the temporary contracts – and surrounding circumstances [5] Ms Burchall's temporary contract dates for the higher classification position were:4 1 Appeal Notice, Attachment 1, [2]. 2 Ibid [1]-[2]. 3 Appellant's submissions filed 22 January 2025, [3]. 4 Ibid [4]. -- 3 of 27 -- 4 First temporary contract: 19 September 20225 – 30 June 2023 Second temporary contract: 1 July 2023 – 30 June 2024 (extended to 29 September 2024) [6] The Respondent explained that Ms Burchall's second temporary contract end date was to cease on 30 June 2024 but was only "administratively extended until 29 September 2024" (with her consent) to ensure Ms Burchall received her paid parental leave entitlements at the higher classification position rate. The Respondent submitted "This was communicated to the Appellant on 28 March 2024 by payroll…"6 [7] Ms Burchall stated she had advised Ms Kerin Walters (Acting Nurse Unit Manager) of her intention to take parental leave in February 2024, and submitted two parental leave application forms (for both the CN and CNC positions) on 15 February 2024.7 [8] Ms Burchall stated that she was "advised by Ms Walters that backfill would be arranged to cover the CNC role during the period of parental leave. A new contract extension with an end date of 2 February 2025 was completed by Ms Walters in line with the Appellant's parental leave application which also ended on 2 February 2025."8 Ms Burchall originally intended to conclude a period of parental leave on 2 February 2025.9 I note an Employee Movement document described another employee, Ms Claire Murphy, as "backfilling maternity leave"10 in the CNC position. [9] When Ms Burchall queried the email from payroll on 28 March 2024 with her supervisors, Ms Walters replied a few days later11 advising that there was "a new reduction in hours for your CN role [the substantive role] and a contract extension for your CNC role [the higher classification position]"; and further added that "The maternity leave form for CNC role is in my inbox pending new contract" and "The new contract for CNC role is currently with myHR as there seems to be an issue with the position number…" [10] Ms Burchall took those assurances on face value, and started her parental leave on 7 May 2024.12 5 The Appellant submitted Ms Burchall commenced in the CNC position on 19 September 2022 in the Appeal Notice, Attachment 1, [2] and Appellant' submissions [3], but then submitted she commenced in the position on 22 September 2022 in the Appellant's submissions [4]. I note the Respondent's submissions state Ms Burchall commenced in the position on 19 September 2022, as contained in the Respondent's submissions [13]. 6 Respondent's submissions filed 29 January 2025, [24]; Appeal Notice filed 10 January 2025, Attachment 4. 7 Appellant's submissions filed 22 January 2025, [7]. 8 Ibid [8]. 9 Appeal Notice filed 10 January 2025, Attachment 1, [4]. 10 Ibid Attachment 2. 11 Email from Ms Walters to Ms Burchall (cc Payroll Services and ICU ANUM) dated 2 April 2024; Appeal Notice filed 10 January 2025, Attachment 4. 12 Appeal Notice filed 10 January 2025, Attachment 1, [4]. -- 4 of 27 -- 5 [11] After the commencement of her period of parental leave, Ms Burchall was on 24 May 2024: …in Emergency due to medical complications, [when] she received a phone call from Acting Associate Nurse Unit Manager, Ms Rickki Webster who advised the paperwork for the parental leave had not been completed correctly. [Ms Burchall] was asked on the call to accept a new contract in the MyHR system. [Ms Burchall] was focused on her personal circumstances and did not pay too much attention to the contract, however, this contract had an end date of 29 September 2024. On the phone, Ms Webster had advised [Ms Burchall] that the purpose of the contract was to cover the paid parental leave and it was for payroll purposes only. [Ms Burchall] advises that the previous contract through to 2 February 2025 remained in the MyHR system, and therefore, she felt confident the second contract to 29 September 2024 was only for payroll purposes as described by Ms Webster. [Ms Burchall] was not advised by Ms Webster that the contract to 2 February 2025 would be withdrawn, and it is noted it was not withdrawn from the MyHR system until 17 July 2024.13 [12] Ms Burchall submitted that "It is unreasonable that the Respondent asked [her] to agree to a varied contract extension after [she] had commenced parental leave and under circumstances where she was receiving emergency treatment relating to the imminent birth of her child. [Ms Burchall] gave birth on 31 May 2024."14 [13] Ms Burchall was unaware that she no longer held the CNC position until 12 October 2024, when she contacted her employer "to arrange training as part of her keeping in touch days under the CNC role…Due to [her] password expiring and other IT complications, [Ms Burchall] had no access to MyHR to verify this. On or about 31 October 2024, [Ms Burchall] attended the workplace for a social visit and with assistance from IT, was able to access MyHR and saw that the contract extension from 1 July 2024 to 2 February 2025 was withdrawn on 17 July 2024."15 Continuous period in the CNC position [14] Setting aside the surrounding circumstances, and whether or not the situation ought to have unfolded as it did, the parties have appeared to accept that Ms Burchall's first temporary contract in the higher classification position commenced on 19 September 2022 and the second temporary contract in the position ceased on 29 September 2024.16 [15] That means that Ms Burchall held the higher classification position for 2 years and 1 week. That is because her absence on authorised parental leave counted towards her continuous service, "for the purposes of this directive".17 13 Appellant's submissions filed 22 January 2025, [10]-[12]. 14 Ibid [13]. 15 Ibid [16]-[17]. 16 Ibid [4]; Respondent's submissions filed 29 January 2025, [9]. 17 Directive 03/23 Review of acting or secondment at higher classification level cl 8.1. -- 5 of 27 -- 6 [16] The period of Ms Burchall's consecutive temporary contracts is also 2 years and 1 week, according to Directive 02/23: Review of Non-Permanent Employment. That is because the Appendix states that the employer's obligations to undertake a review of non- permanent employment are informed by "how long the employee has been continuously employed in the public sector entity", with reference to s 115(7) of the PS Act. That provides that "all periods of authorised leave are to be included". [17] That explanation is relevant because Ms Burchall was engaged under a temporary contract for a period of 2 years and 1 week in both scenarios. Nature of this appeal [18] Ms Burchall filed an appeal against a "Higher classification" conversion decision, noting the date the decision was received was "20 December 2024". The relevant Directive to that inquiry is Directive 03/23 Review of acting or secondment at higher classification level. [19] In the Appeal Notice, Ms Burchall asserted that: • The Respondent's 20 December 2024 decision (given in a Teams meeting) to refuse her conversion "into the CNC role on a permanent basis…" was not fair and reasonable;18 and • The Respondent's decision was influenced by Ms Burchall's pregnancy - and thus breached the Queensland Health Parental Leave policy C26.19 [20] I note that documents evidencing Ms Burchall's application and follow up inquiries about her request for "conversion of non-permanent employees to permanent status"20 were then attached to the Appeal Notice. The relevant Directive to that inquiry is Directive 02/23 Review of non-permanent employment. [21] The Respondent reasonably expressed its uncertainty as to whether Ms Burchall's appeal related to either a higher classification conversion - or alternatively, a temporary to permanent conversion. The Respondent's submissions helpfully addressed both possibilities, as I will also do in this Decision. 18 Appeal Notice filed 10 January 2025, Attachment 1, [17]-[18]. 19 Ibid [21]; See also Rolfe v State of Queensland (Children's Health Queensland Hospital and Health Service) and Ors (No. 3) [2024] QIRC 150. 20 Ibid Attachments 2-3. -- 6 of 27 -- 7 [22] The Respondent further denied that changes were made to Ms Burchall's contract because she was pregnant.21 Consideration - Higher classification conversion, if CNC contract ended on 29 September 2024 [23] As earlier observed, the parties appear to accept that Ms Burchall's second temporary contract in the CNCN position ceased on 29 September 2024.22 I agree. [24] In the period between 12 October 2024 and (on or about) 31 October 2024, Ms Burchall became aware that she no longer held the CNC position as her contract extension to 2 February 2025 was withdrawn on 17 July 2024 (after her commencement on parental leave).23 Ms Burchall only discovered the change when she tried to arrange training as part of her keeping in touch days under the CNC role. [25] A few weeks later, Ms Burchall raised her concerns with Ms Renee Woodfield (Nurse Director) and Ms Walters (Acting Nurse Unit Manager) on 16 November 2024. [26] It was then about 6 weeks24 after discovering she no longer held the CNC contract position, that Ms Burchall finally "emailed a request for permanent conversion to my A/NUM (Attachment 2), and a meeting was held on 20 December 2024 during which I received the decision that I would not be made permanent in the CNC role (Attachment 3)."25 That time lapse between becoming aware of the matter and taking some action was significant. [27] Relevantly, the "request for permanent conversion" that was submitted by Ms Burchall to Ms Walters was an "Application Form: Non-permanent employment to permanent employment", pursuant to Directive 02/23 Review of non-permanent employment. It was not an application to be permanently appointed to the higher classification position. [28] Although the CNC contract end date was now 29 September 2024, Ms Burchall stated that she had "still held the CNC role for over two years, and I was eligible to apply for higher duties conversion to the CNC role pursuant to Directive 3/23 – Review of acting or secondment at higher classification level…"26 [29] Ms Burchall could have put in a written request27 asking her employer to permanently appoint her to the CNC position "at the end of 1 year" at the higher classification level - 21 Respondent's submissions filed 29 January 2025, [24]. 22 Appellant's submissions filed 22 January 2025, [4]; Respondent's submissions filed 29 January 2025, [9]. 23 Appellant's submissions filed 22 January 2025, [16]-[17]. 24 On 12 December 2024. 25 Appeal Notice filed 10 January 2025, Attachment 1, [6]-[7]. 26 Ibid. 27 Directive 03/23, cl 6.1. -- 7 of 27 -- 8 and then again "at the end of each subsequent 1-year period."28 Ultimately though, she did neither. [30] If Ms Burchall had acted to apply for higher classification conversion after two years in the CNC position, recourse to appeal a refusal decision may have been available under s 132(1)(k) of the PS Act. [31] Even if a wide and generous interpretation of Ms Burchall's written application for conversion provided to Ms Walters on 12 December 2024 could be taken, the fact remains that she was not eligible to be permanently appointed under s 120 of the PS Act because by that time she was no longer "in the position."29 That is because the CNC contract ended on 29 September 2024 and another employee was backfilling the position as at 12 December 2024. [32] I agree with the section of the email dated 19 December 2024 from Ms Sarah Field, HR Advisor, that explained the eligibility requirements for appointment to the higher classification position, specifically that: …The employee must also currently occupy the higher duties role, an employee cannot lodge an application for higher duties direct appointment in a position they do not currently hold. As Emma is currently not in the role and has reverted to her substantive position this would make Emma not eligible if she was to lodge an application for higher classification as she does not currently hold the higher duties position in question.30 [33] I note that information was given to Ms Burchall in the 20 December 2024 meeting held, as the Conversation Record notation succinctly records: "19/12/2024 SF – KW/RW – assessment outcome received…Not suitable for higher duties due to end of contract."31 [34] The Respondent's submissions cite my earlier decision in Holcombe,32 in which I explained the significance of "the position" (emphasis added): …The power afforded to the department to permanently appoint Mrs Holcombe is confined to the position into which she has been seconded at the time of the review. That can be contrasted with the entitlement to request a review, which merely requires that, amongst other things, a person be engaged in a higher classification level for a period. The term 'the position' is inherently more specific than 'higher classification level'; many positions can be described as being of a higher classification level. In that way, it can be said that an employee may be entitled to a review after engaging in a number of positions, but the review must be conducted against a precise position.33 28 Public Sector Act 2022 (Qld) s 120. 29 Public Sector Act 2022 (Qld) s 120(3). 30 Appeal Notice filed 10 January 2025, Attachment 3. 31 Ibid. 32 Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195. 33 Ibid [48]-[49]. -- 8 of 27 -- 9 [35] I note the Appellant's submission that Ms Burchall did not make application for conversion to the higher classification position because she accepted her line managers' assurances that her contract would be extended to cover her parental leave (after receipt of the email from payroll on 2 April 2024) and that she expected to return to the CNC role at the conclusion of her parental leave. Ms Burchall stated that if she had been aware that her contract was not being extended for her entire parental leave period, she would have made an earlier application prior to 29 September 2024. It is clear is that Ms Burchall's expectations were not met. I am critical of the conduct of the Respondent in altering the end date of her contract from 2 February 2025 to 29 September 2024. That is because of: the misrepresentation of the reason for the change in the conversation on 24 May 2024, when Ms Burchall was in Emergency; the inappropriateness of the timing / location of the conversation that occurred about it, when Ms Burchall was seeking medical treatment; and the fact the change was made in the MyHR system about 2 months later,34 when Ms Burchall no longer had access to the work systems and without otherwise advising her that action had occurred. [36] However, the culmination of the Respondent's unsatisfactory conduct does not change the fact that Ms Burchall did not make a written application for permanent conversion to the higher classification position after 2 years acting in "the position." Neither can the Respondent's conduct dispel the mandatory requirements for permanent appointment under the authorising provisions of the PS Act and Directive 03/23. [37] For those reasons, Ms Burchall's appeal against a 'higher classification conversion decision' cannot succeed. [38] As Ms Burchall did not make a written application whilst in the position, after acting in the higher classification level for 2 years, there was no requirement for the chief executive to decide the matter using the mandatory decision criteria contained at s 120(3)-(4) of the PS Act. It follows there is no utility in considering submissions about whether or not there were genuine operational requirements preventing permanent appointment to the higher classification position.35 Consideration – Higher classification conversion, if CNC contract ended on 30 June 2024 [39] In the alternative, the Respondent has also argued that Ms Burchall was not entitled to seek permanent conversion because she "ceased her role on 30 June 2024…[so] had less than 2 years' service in the position [so it] is not an appealable decision per s 132(k) of the Act."36 34 The contract end date of 2 February 2025 was “withdrawn” in the myHR system on 17 July 2024, after Ms Burchall was on parental leave and after the birth of her baby; Appellant's submissions filed 22 January 2025, Attachment A. 35 Respondent's submissions filed 29 January 2025, [19]-[23]. 36 Ibid [18]. -- 9 of 27 -- 10 [40] The Respondent stated that the contract extension to 29 September 2024 represented an "administrative arrangement" only to ensure Ms Burchall's paid parental leave was paid correctly.37 [41] The Appellant objected to those assertions, positing that Ms Burchall's contract was actually extended until 29 September 2024, and there was no capacity for characterisation as an "administrative" extension alone.38 [42] The Appellant noted that given Ms Burchall was on a period of authorised parental leave from 7 May 2024,39 that time counts as "continuous period" pursuant to Directive 03/23.40 On that basis, the Appellant asserted that Ms Burchall had reached the 2 year eligibility threshold. [43] As I have concluded in the section above, if Ms Burchall had made a written request to be permanently appointed to the CNC position, after 2 years in the position and while she was still in the position, she may have an opportunity to appeal any subsequent refusal decision under s 132(1)(k) of the PS Act. [44] However, Ms Burchall simply did not take that step, so her appeal against a 'higher classification conversion decision' cannot succeed, in circumstances where the eligibility threshold tests have not been met. Consideration – 'Review of non-permanent employment' Conversion Decision [45] On 12 December 2024, Ms Burchall did make a written application request for "conversion of non-permanent employees to permanent status."41 That application was made pursuant to Part 9, Division 1 Review of non-permanent employment of the PS Act and Directive 02/23 Review of non-permanent employment. [46] The Respondent submitted that the Application Form signed by Ms Burchall on 5 December 2024 was a conversion request "In accordance with section 113 of the Public Sector Act 2022."42 Section 113 provisions set out that an "Employee may request review of status after 1 year of continuous employment" – and s 132(1)(j) of the PS Act makes clear that a decision on such request is not appealable. [47] The Respondent stated that s 113(1) of the PS Act requires an employee making such request for conversion to have been "continuously employed on a non-permanent basis 37 Ibid [20]. 38 Appellant's reply submissions filed 13 February 2025, [17]. 39 Appellant's submissions filed 22 January 2025, [9]. 40 Directive 03/23 cl 8. 41 Appeal Notice filed 10 January 2025, Attachments 2-3. 42 Application Form signed by Ms Burchall on 5 December 2024; Appeal Notice filed 10 January 2025, Attachments 2. -- 10 of 27 -- 11 in the same public sector entity for at least 1 year". The chief executive would then decide whether to "continue the employee's employment according to the terms of the employee's existing employment; or offer to convert the employee's employment to a permanent basis." As Ms Burchall's CNC contract ended on 29 September 2024 "at the very latest", the Respondent contended that she "was not engaged in the position at the time of application; and had not been 'continuously employed' on a non-permanent basis at the time of making the application. Rather, the Appellant was engaged in a NRG6 permanent role at the time of making the application."43 [48] The Appellant submissions asserted that Ms Burchall: • made her application prior to obtaining advice from her Union and that she "should not be disadvantaged or have her request for conversion denied because she referred to section 113…"44 • "acted promptly to review the Queensland Health policy and requested conversion…" as soon as the Appellant realised she no longer held the temporary CNC position;45 • "did not view a request for conversion as a priority, as she was confident she would continue in the CNC role under temporary contracts...Had the Appellant known that her contract extension would end on 29 September 2024, and not 2 February 2025, she would have applied for conversion prior to 29 September 2024";46 and • "was advised to lodge two parental leave application forms – one for the CN position and second for the CNC role. These were lodged on 15 February 2024."47 It was suggested that "the circumstances of a continuous period of service and the Appellant commencing parental leave, should also be considered…"48 [49] A number of issues flow from the parties' respective arguments, that I will proceed to address. [50] Firstly, with respect to the Application Form submitted by Ms Burchall via email on 12 December 2024, the Respondent correctly observed that requests made under section 113 of the PS Act are not able to be appealed. (While the Respondent made further submissions about its view of the interpretation of 113(1) of the PS Act, those matters need not be determined because it is sufficient that I have accepted the Respondent's submission that requests made under s 113 are non-appealable). I am unmoved by the 43 Respondent's submissions filed 29 January 2025, [8]-[10]. 44 Appellant's reply submissions filed 13 February 2025, [4]. 45 Ibid [5]. 46 Appellant's submissions filed 22 January 2025, [20]-[21]. 47 Ibid [7]. 48 Appellant's reply submissions filed 13 February 2025, [20]. -- 11 of 27 -- 12 Appellant's argument that the express provision of the legislation should be cast aside because Ms Burchall did that without first seeking her Union's advice. While that was clearly most unfortunate, Ms Burchall's appeal cannot succeed on the basis of that argument. [51] Secondly, the Appellant submitted a mitigating factor was that Ms Burchall acted promptly to request conversion upon realising she no longer held the temporary CNC contract position. I do not accept that argument either. Ms Burchall first became aware there was a problem on 12 October 2024, when she spoke with Ms Sheena Kunnath (Acting Associate Nurse Unit Manager) about arranging training under her 'keeping in touch' days.49 She waited until "on or about 31 October 2024" before she "attended the workplace for a social visit and with assistance from IT, was able to access myHR" to verify that. More than a fortnight passed before Ms Burchall raised her concerns with Ms Woodfield and Ms Walters. It was not until 12 December 2024 that Ms Burchall acted to request conversion to permanency in the CNC position by submitting a written application. Objectively, the clear timeline set out in the Appellant's own submissions do not support its contention that Ms Burchall acted promptly, once becoming aware of the altered CNC contract end date. [52] Thirdly, the Appellant submitted that Ms Burchall "did not view a request for conversion as a priority, as she was confident she would continue in the CNC role under temporary contracts." While time has revealed Ms Burchall's confidence and trust was misplaced, that does not advance her claim under the legislative tests. [53] Fourthly, the final point regarding Ms Burchall's exclusion from "assessment [for] conversion to permanent [in the CNC position] due to holding substantive CN position" requires further consideration. That is the fatal flaw in the Respondent's case.50 [54] While I have earlier agreed with the Respondent that there is no right to appeal a conversion request made under s 113 of the PS Act, Ms Burchall's email to Ms Walters on 12 December 2024 clearly explains her intent in providing the signed Application Form - it was a prompt to the employer to conduct the mandatory assessment, as the 2 year anniversary date had well passed. Ms Burchall's cover email stated: … I'm writing to request a copy of my assessment outcome letter for conversion of non-permanent employees to permanent status. According to PRO1664 Section 3.2.8 a request does not need to be completed once an employee passes the 2 year mark in a role (my anniversary date was 19/9/24) however I have attached a request in the event the Conversion assessment has not be completed.51 … 49 Appeal Notice filed 10 January 2025, [13]. 50 Ibid Attachment 3. 51 Ibid. -- 12 of 27 -- 13 [55] Ms Walters then acted to obtain advice on the matter from Ms Field, HR Advisor. Ms Field replied on 19 December 2024, expressing the Respondent's view that Ms Burchall could not be assessed for conversion of non-permanent to permanent status because "she is in a permanent Clinical Nurse ICU position. Conversion to permanent status provisions only applies to casual and fixed term employees…"52 That advice was repeated to Ms Burchall in her meeting with Ms Walters and Ms Woodfield on 20 December 2024, as contained in the Conversation Record as "Not suitable for assessment conversion to permanent due to holding a substantive CN position."53 While I recognise that argument has not been again ventilated in the Respondent's submissions to this appeal, Ms Field's email dated 19 December 2024 and the Conversation Record notes of meeting held on 20 December 2024 make clear that belief was the reason why the required assessment of Ms Burchall's status in the CNC role was not done at the 2 year anniversary. [56] Relevantly also, the Respondent required Ms Burchall to lodge two parental leave application forms – one for the CN position and second for the CNC role – and she did so.54 [57] Previous Commission decisions have considered circumstances where an employee holds two concurrent contracts – one permanent and one temporary – and have determined an employee is eligible for review in their temporary contract, even where they already hold permanency in their other role. I refer the parties to Joshi v State of Queensland (Queensland Health) ('Joshi'),55 Royle v State of Queensland (Department of Health),56 and Benson v State of Queensland (Department of Education)57 that remain apposite here, despite the fact that an earlier iteration of the current s 115 applied when those cases were decided (specifically, s 149B Review of status after 2 years continuous employment). [58] My reasons are explained in Joshi as follows: Is Dr Joshi eligible for review, given he already holds permanent employment with GCHHS? [41] Section 147(2)(a) of the PS Act indicates that a general employee to which s 149B applies, may be employed on tenure or a temporary basis. At first blush, this appears to support the Children's HHS's contention that Dr Joshi cannot be employed both on tenure and on a temporary basis. However, that is not the correct interpretation. [42] In my view, s 147(2)(a) properly means that for any particular engagement an employee may either be on tenure or fixed term temporary or casual (but that a combination of these is not 52 Ibid. 53 Appeal Notice filed 10 January 2025, Attachment 3. 54 Appellant's submissions filed 22 January 2025, [7]. 55 [2021] QIRC 212. 56 [2021] QIRC 142. 57 [2021] QIRC 152. -- 13 of 27 -- 14 permitted within the one engagement). This interpretation does not deny the reality that many Queensland public service workers are engaged on separate and concurrent contracts. [43] The fact remains that Dr Joshi's employment with GCHHS in his 0.5 FTE hours was certainly 'permanent', whilst the undertaking of the additional fixed term temporary contract for 0.5 FTE hours with Children's HHS was not. The two employment contracts constituted separate and distinct engagements. [44] The decision letter dated 12 March 2021 identified that the pre-existing tenured employment arrangement with GCHHS was the precise reason why it was determined Dr Joshi was not eligible for review in his fixed term temporary engagement with Children's HHS. See excerpt at paragraph [6]. Mr Wood's decision was based on an errored interpretation of the relevant provisions of the PS Act and TE Directive. [45] I note Dr Joshi's reply submissions attach an email exchange between Together Union and Mr Kane Ryalls, Director - Industrial Relations and Policy, Employment Relations, Human Resources Branch, Queensland Health on 9 and 16 December 2020. In response to the union's advocacy on this point, Mr Ryalls confirmed that "…it is Queensland Health's position that whilst an employee is engaged as a temporary or casual employee they will be eligible for review. This includes where the employee may have multiple engagements in the form of aggregate or concurrent employment, and as part of those engagements they may be permanent in one role and either temporary or casual in another role." Mr Ryalls' recount of Queensland Health's position is the correct interpretation of the relevant provisions of the PS Act and TE Directive as it applies to Dr Joshi in these circumstances. [46] Further, the interpretation that I have outlined at paragraph [42] does not frustrate the intent of government policy as articulated in the purpose and principles of the TE Directive; specifically to "establish employment on tenure as the default basis of employment in the Queensland public service" [47] The TE Directive relevantly provides: 4. Principles 4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government's Employment Security Policy. … [48] The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld). [49] Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective. [50] The purpose of the TE Directive is: 1. Purpose -- 14 of 27 -- 15 1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer. The legislation indicates where employment on tenure may not be appropriate. … [51] For over two years, the Children's HHS was content to concurrently employ Dr Joshi on a fixed term temporary basis, understanding that he was also permanently employed with the GCHHS in the same period. The Children's HHS has accepted that Dr Joshi holds two different roles, with the two 'Employment Confirmation' documents for each of the Children's HHS and GCHHS attached to the Children's HHS's submissions. I am satisfied that the two contracts are separate and distinct. [52] Having accepted that Dr Joshi's employment with the Children's HHS is currently on a fixed term temporary contract arrangement, it follows that he remains open to have that status reviewed under s 149B in the usual course. [53] I agree with Industrial Commissioner Power, where she has previously reasoned: [30] It is possible for a permanent employee to work hours in addition to their permanent roles through a number of arrangements such as through a higher duties arrangement, a casual arrangement, or a temporary arrangement. If the intention was for the Appellant to work occasional additional hours 'from time to time', a casual arrangement attracting commensurate remuneration may have been appropriate. As indicated above, this was not the character of the Appellant's systematic continued engagement and presumable remuneration over two years. [31] As a consequence of determining that the Appellant's additional hours were temporary, pursuant to s 148, this employment arrangement is to be subject to the Directive 08/17 -Temporary Employment. [32] Neither the Directive nor the Act contain exclusions or caveats relating to temporary conversions on the basis that the employee already has tenure for a lesser number of hours, or any other permanent role with the State Government. There are no prohibitions on an employee with part-time tenure having their temporary role also converted to permanent. [33] There also does not appear to be any prohibition on the chief executive of the department from offering a tenured part time public service employee additional work under either s 147 or s 148 of the Act. In my view, an employee performing additional work pursuant to either of these sections is not prevented from accessing the benefits of the Directive. [34] Section 149 of the Act outlines the right to a review of temporary status, conferring a right on an employee who has at the end of two years been continuously employed as a temporary employee in a department. Both temporary employees engaged under -- 15 of 27 -- 16 s 147 and s 148 of the Act are entitled to conversion upon satisfaction of particular conditions. [35] The determination to be made pursuant to s 149 of the Act is whether a person's employment is to continue as a temporary employee or whether the person's employment should be tenured. In my view the person's 'employment' refers to the particular employment arrangement that is the subject of the review and not any other employment arrangement the person may have… [54] I have adopted the same interpretation in recent decisions, including Benson v State of Queensland (Department of Education) and Royle v State of Queensland (Department of Health), in similar circumstances of separate but concurrent employment contracts. [55] I find that the 12 March 2021 decision that Dr Joshi was ineligible for review by Children's HHS, on the basis that he already held permanent status with GCHHS, was incorrect. The fact of Dr Joshi's permanent employment contract with GCHHS does not limit Children's HHS's ability or requirement to review his separate temporary engagement under s 149B. [59] As in Joshi, it remains the case that s 149(2) of the PS Act indicates that a general employee to which s 115 applies, may be employed on a permanent or a temporary basis. That properly means that for any particular engagement an employee may either be on permanent, temporary for a fixed term, or casual (but that a combination of these is not permitted within the one engagement). Directive 02/23 has superseded the Directive in place when Joshi was decided, however it remains the case that employment on tenure is the default basis of employment in the public service.58 [60] As in Joshi, Ms Burchall's employment with GCHHS was permanent in her NRG6 role, whilst the additional temporary contract CNC position for 0.5 FTE hours was not. The two employment contracts constituted separate and distinct engagements. That reality is further underscored by the Respondent's requirement for Ms Burchall to submit two parental leave applications – one for each of the two separate contracts she held. [61] For the foregoing reasons, the advice provided to Ms Burchall in the 20 December 2024 meeting that she could not be assessed for conversion to permanent due to holding a substantive CN role was incorrect. Therefore, the 20 December 2024 decision that was based on that false premise could not be fair and reasonable. [62] In light of the above, the Respondent was required to decide whether or not to convert Ms Burchall's temporary CNC contract to permanent, under s 115(1) of the PS Act. That is because Ms Burchall had a contract that was "temporary for a fixed term"59 with the department "for at least 2 years."60 Ms Burchall commenced in the CNC position on 19 September 2022, so the Respondent was required to review the status of her employment on 19 September 2024 (the date she was "continuously employed…for at 58 Directive 02/23 Review of non-permanent employment cl 1.1. 59 Public Sector Act 2022 (Qld) s 149(2)(b). 60 Ibid s 115(1). -- 16 of 27 -- 17 least 2 years")61 and decide whether she will continue as 'temporary' or be converted to 'permanent' in the CNC role. That did not occur because the Respondent had wrongly interpreted the requirements of s 115(1) of the PS Act (as earlier referenced in Ms Field's email and the Conversation Record document). [63] While it was open for Ms Burchall to remind the Respondent of her impending 2 year anniversary in the position and her desire to be converted to permanent in it,62 the fact that she did not do so does not relieve the Respondent of the mandatory requirement to conduct its own assessment.63 The Directive also prescribes that an employee should be notified at the time the review is initiated, with information including the possibility of a "deemed decision" and appeal rights.64 That did not occur either. [64] With respect to the possibility of a "deemed decision", that means a decision is taken to be a refusal to convert to permanency if an affirmative decision is not otherwise advised to an employee "28 days after the end of the [2 year anniversary] period".65 While I do note that the temporary CNC contract ended on the 29 September 2024 – before the 28 day deadline for the Respondent to make a decision, or instead rely on a deemed refusal decision – that does not absolve the Respondent from its failure to comply with the requirement to provide written notification to Ms Burchall of its intention to commence the s 115 review, in terms set out in cl 7.6 of the Directive 02/23 Review of non-permanent employment. [65] The impact of the Respondent's failure is amplified because in the period between when the mandatory review should have commenced (19 September 2024) and the deadline by which a decision should have been made or a "deemed decision" to refuse assumed (17 October 2024), Ms Burchall had only just become aware that she may not still be in the position (12 October 2024). [66] If the Respondent had complied with the mandatory requirements relevant to notification of an imminent review, that would have (or ought to have) put Ms Burchall on notice, with respect to the relevant timeframes. Significantly, that would have included the requirement to provide a written notice to her "within 14 days of a deemed decision occurring" of her right to appeal the deemed refusal decision.66 As it happens, "within 14 days of a deemed decision occurring" was 31 October 2024 – the date that Ms Burchall arrived at the workplace for a social visit, had her work email access restored by IT, and "verified" what she had been told by Ms Kunnath about her CNC contract having ended. My point is that if the Respondent had done what was required of it under the PS Act and Directive, Ms Burchall would have been in time to exercise her appeal rights and would 61 Ibid s 115(1). 62 Directive 02/23 Review of non-permanent employment cl 7.1 63 Ibid cl 7.4. 64 Ibid cl 7.5, 7.6, 14. 65 Public Sector Act 2022 (Qld) s 115(11)(b); Directive 02/23 Review of non-permanent employment cl 14.1. 66 Directive 02/23 Review of non-permanent employment cl 14.3. -- 17 of 27 -- 18 have known how to do it. (Clearly, the requirement to notify Ms Burchall that a deemed decision had been made and her appeal rights did not happen, in circumstances where the Respondent was unaware of its obligations to conduct the review of the temporary contract after 2 years). In this case, it appears that the conduct (by omission) of the Respondent is directly and solely responsible for Ms Burchall's inability to exercise her appeal rights of a 'deemed decision' in time. For the sake of completeness, I would exercise my discretion to hear the appeal 'out of time' in such circumstances. [67] The Respondent submitted Ms Burchall's conversion claim under 'Review on non- permanent employment' provisions was also problematic because she "was not engaged in the position at the time of the application…[but] rather, the Appellant was engaged in a NRG6 permanent role at the time of making the application."67 I agree that is the case with respect to Ms Burchall's written application lodged on 12 December 2024 – but it is not the case with respect to date the Respondent was required to conduct a review at the 2 year anniversary mark, under s 115 of the PS Act. At the time the Respondent should have conducted its own review, Ms Burchall was under the temporary contract, even though she was absent on authorised parental leave. It does not matter that Ms Murphy was backfilling in "the position" – because that particular language relates only to higher classification conversion provision s 120(1). (As I have explained, this matter pertains to conversion assessment under s 115(3) – in which the language refers to "the role"). Only one person can be in "the position", as designated by a particular position number identifier – but many can be in "a role". [68] I am persuaded that Ms Burchall would have remained in the CNC position, but for her period of absence on parental leave because: • the "Movement Details" documentation attached to Ms Burchall's Application Form clearly stated the "Current Occupant" in the CNC Organ & Tissue Donation position was Ms Claire Murphy as the reason for that was "Temporary contract extension for maternity leave…Claire Murphy is backfilling maternity leave;"68 • the surrounding circumstances outlined above show Ms Burchall's contract end date was first 2 February 2025, in order to align with her intended return from parental leave at that time. That was apparently supported by Ms Walters in her email clarification dated 2 April 2024, sent after and in response to Ms Burchall's inquiry after receipt of payroll's email on 28 March 2024; and • Ms Burchall's email advice that she has now returned to work in "a new temporary contract in the organ donation role and my permanent contract in the clinical nurse position remains in place."69 67 Respondent's submissions filed 29 January 2025, [9]-[10]. 68 Appeal Notice filed 10 January 2025, Attachment 2. 69 Email from Ms Burchall to the Industrial Registry dated 1 July 2025. -- 18 of 27 -- 19 [69] Although the Respondent did not conduct the required review under s 115 of the PS Act at the appropriate time because it misinterpreted the requirements to do so, the parties have now made submissions about the mandatory decision criteria. [70] Section 114(3)-(4) of the PS Act prescribe that an employee's conversion to a permanent basis can occur if: • there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same; and • the employee is suitable to perform the role; and • any requirements of an industrial instrument are complied with; and • if the above criteria are satisfied, then conversion to permanent must occur "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity." [71] In brief, I have found that Ms Burchall is eligible to have her status as a temporary employee reviewed in the CNC role. That ought to have been done by the Respondent at the time of her 2 year anniversary date, without need for any application or reminder by her. Suitability [72] There has been no suggestion that Ms Burchall is not "suitable" to perform the CNC position. That does not present any impediment to conversion to permanency. Any requirements of an industrial instrument [73] The parties have not identified any requirements of an industrial instrument that need to be complied with in this case. Further, cl 3.3 of Directive 02/23 states that "Any requirement to advertise a role…does not apply to the conversion of an employee from non-permanent employment to permanent employment under this directive." Continuing Need [74] With respect to whether or not there is a continuing need for the CNC role to be performed, the Respondent submitted that:70 70 Respondent's submissions filed 29 January 2025, [22]. -- 19 of 27 -- 20 There is no genuine operational demand for this role to be filled or occupied on an ongoing basis which resulted in the contract not being extended and the Appellant returning to their substantive role. [75] The Respondent submitted that Ms Burchall began parental leave on 7 May 2024, "formally ceased" in the role on 30 June 2024, but her contract was administratively extended until 29 September 2024 to ensure no issue with correct parental leave payment. [76] In my view, the following observations are pertinent to my finding that there is a "continuing need for someone to be employed" in the CNC role: • In Ms Burchall's absence on parental leave, the Respondent decided that the role was required to be "backfilled" by Ms Murphy – it was not left vacant. That indicates that it was required to be occupied on an ongoing basis. • Upon her return to work after parental leave, Ms Burchall has now returned to the CNC position under a further temporary contract.71 That reality appears to contradict the Respondent's assertion that "There is no genuine operational demand for this role to be filled or occupied on an ongoing basis…"72 • The duration of Ms Burchall's consecutive temporary contracts exceeded 2 years, and periods of authorised paid leave count towards the calculation of that continuous period.73 That means the Respondent was required to conduct an assessment under s 115, though did not, as earlier noted. [77] The Respondent argued that the CNC position was funded until 30 June 2026. As that has been presented as a "genuine operational requirement" that would prevent Ms Burchall's conversion to permanency, I have considered that particular matter fully under that separate heading. For the purposes of whether or not there is a "continuing need" for Ms Burchall to be employed in the CNC role (or a role that is substantially the same as the CNC role), it is sufficient to conclude that funding provided until 30 June 2026 is a strong indicator that "someone" is required in the role, until that time at least. From commencement, that is a period of almost 4 years. [78] For those reasons, I am persuaded that there is a "continuing need for someone to be employed" in the role to perform that work. [79] If that is not accepted by the Respondent, the second limb succeeds. That is because there is a continuing need for Ms Burchall to be employed in a role that is "substantially the same" as the CNC (NRG7) 0.5 FTE role – the Respondent has provided no evidence to the contrary. 71 Email from Ms Burchall to the Industrial Registry dated 1 July 2025. 72 Respondent's submissions filed 29 January 2025, [22]. 73 See the explanation provided in the section ‘Continuous period in the CNC position', earlier in this Decision. -- 20 of 27 -- 21 Genuine Operational Requirements [80] What remains then is consideration of whether or not conversion to permanency is prevented by "genuine operational requirements". [81] The Respondent submitted that: • The CNC role is funded by the Federal Government, through Donate Life. • The CNC "role was created to facilitate duties distinct to the project funded by Donate Life." • "The funding and this project will cease on 30 June 2026 at which time the role will no longer exist." and • The Commission's decision in Riddiford v State of Queensland (Department of Education)74 supports its stance that there is no "authentic need" to permanently convert Ms Burchall to the CNC position because it is "a genuine temporary project position…[so] no need to employ any person in the position at the conclusion of the project on its projected end date…"75 [82] The Appellant submitted that:76 • "…a colleague in a similar position in the same unit…was made permanent"; and • "The Respondent has provided no evidence that the CNC Donate Life role will end on 30 June 2026." [83] Consideration of several matters inform my determination that there are no genuine operational requirements that prevent Ms Burchall's conversion to permanent in the CNC role: Purpose and Principles 74 [2021] QIRC 064. 75 Riddiford v State of Queensland (Department of Education) [2021] QIRC 064, [25]. 76 Appellant's submissions filed 13 February 2025, [19]. -- 21 of 27 -- 22 [84] The Purpose of Directive 02/23 begins with the establishment of "employment on a permanent basis [as] the default basis of employment in the Queensland public sector."77 [85] The Principles of Directive 02/23 includes the requirement "to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment."78 [86] The Directive is a statutory instrument within the meaning of Section 7 of the Statutory Instruments Act 1992 (Qld). Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective. [87] In deciding this appeal, I note the significance of the legislative provisions identified above. [88] In summary, the status of Directive 02/23 as a statutory instrument provides that the interpretation that will best achieve the purpose and / or policy objective of Directive 02/23 is to be preferred to any other interpretation. Section 81 Basis of employment generally on permanent basis [89] Section 81(2) confirms an employee may be employed "on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate." [90] Section 81(3) provides that: (3) Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes – … (iii) to fill a position for which funding is unlikely or unknown; or Example – employment relating to performing work for which funding is subject to change or is not expected to be renewed … 77 Directive 02/23 cl 1.1. 78 Ibid cl 4.2. -- 22 of 27 -- 23 [91] The Respondent's submissions do not explain why it contends the Commission's decision in Riddiford is analogous to the present case. Though I note that Riddiford considered the matter of temporary engagement for the purpose of project work – not funding uncertainty, as is argued by the Respondent in the present case. [92] Section 81(3)(iii) indicates only that employment on tenure may not be viable or appropriate if it is to fill a position for which funding is unlikely or unknown, including where funding is subject to change or is not expected to be renewed. It does not say employment on tenure is not appropriate in those circumstances. While that is certainly one factor that may inform whether such genuine operational requirements exist that would prevent conversion to permanent employment, it is not the sole consideration. Change in circumstances [93] Further, there seems to have been a change of circumstances since the Appeal was filed. The Respondent did not know when its submissions were filed on 29 January 2025 that Ms Burchall would be returned to the CNC position in a further temporary contract upon her return to work after parental leave, but that is what has occurred. That appears to contradict the Respondent's assertion at [74] of this Decision. Meaning of 'genuine operational requirements' [94] Section 114(4) states: …the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity. [95] 'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. [96] Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).79 His Honour's explanation is also useful here (emphasis added): [37] The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, 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. [38] 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 79 [2020] QIRC 203. -- 23 of 27 -- 24 consideration of many matters depending upon the particular circumstances of the department at a particular time… [97] In Taylor v Queensland (Department of Transport and Main Roads),80 I observed (emphasis added): Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those. Funding [98] The Respondent's submissions assert that the genuine operational reasons to deny conversion are effectively that funding will cease on 30 June 2026. I agree. [99] The Appellant asserted the Respondent provided no evidence that the CNC Donate Life role will end at that time. [100] I note the default position of s 81 is that a temporary employee should be converted to permanency. I have considered the Respondent's submissions that the absence of guaranteed funding after 30 June 2026 is a reason to deny conversion to permanency. I reject that argument s 81(3) does not say conversion cannot occur in the listed scenarios, only that it may not be viable or appropriate. Section 81(4) relevantly provides the caveat that even in scenarios listed (including funding uncertainty) conversion to permanency may yet be viable or appropriate if "a person is required to be employed for a purpose mentioned…on a frequent or regular basis" that best reflects the circumstances in this case, in my view.81 Significantly, it is important to differentiate conversions to permanency made under the respective provisions in the PS Act – the language and intent of s 115 and s 120 are not interchangeable. That is because conversions under s 115 are to a "role" – not to a "position", as is the case for conversions under s 120. It is often the case that funding is set until a particular date, reapplied for and extended. By 30 June 2026, the Organ and Tissue Donation role subject of this Decision will have been occupied for almost 4 years. On the face of it, one imagines demand for such important services to the community would not reduce in the next twelve months. Though even if the Respondent's concerns about funding cessation as at 30 June 2026 were realised, I have earlier determined there would also be a continuing need for Ms Burchall to be employed in a role "substantially the same", under the second limb of s 114(3)(a)(i) of the PS Act. Ms Burchall may still perform a CNC role at 0.5 FTE within the GCHHS operations. That is not an onerous commitment, when weighed against the other factors considered. Finding 80 [2022] QIRC 053. 81 Public Sector Act 2022 (Qld) s 81(4). -- 24 of 27 -- 25 [101] The documentary evidence of Ms Field's email and the Conversion Record shows that the Respondent's real reason for refusing to convert Ms Burchall to permanent in the CNC role was that it mistakenly considered s 115 did not apply in her circumstances, as her substantive role was as a permanent CN NRG6. I have explained why that assumption was incorrect. [102] Despite assertions that there was no need for Ms Burchall to continue in the CNC role, I have been advised by the Appellant that she has now returned to that role under a further temporary contract upon her return from parental leave. Those changed circumstances since the Respondent's submissions are noted. [103] I have considered, but rejected, the Respondent's argument that funding uncertainty prevents conversion of Ms Burchall to permanent in the CNC role, for the reasons outlined above. Several commission decisions have supported conversion to permanency in circumstances of funding uncertainty, though they were not referred to in the parties' submissions but ought to have been.82 [104] In the absence of any genuine operational reasons, I find that provision contains no impediment to permanent conversion in this case. [105] In arriving at this conclusion, I am conscious that the PS Act and Directive 02/23 are purposed with encouraging and maximising security of public sector employment. That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the legislation. Those efforts allow for the achievement of the purpose of the PS Act. [106] In my view, by virtue of the absence of genuine operational reasons evidenced in the Respondent's submissions made subsequent to its failure to undertake the mandatory review of non-permanent employment after 2 years, the appropriate order is that Ms Burchall be converted to permanency in the CNC role. Jurisdiction Decision against which an appeal may be made [107] The decision subject of this appeal is the Respondent's refusal to permanently appoint Ms Burchall to the CNC role at 0.5 FTE. 82 McCarthy v Queensland Building and Construction Commission [2021] QIRC 266; Tyson v State of Queensland (Department of Health) [2021] QIRC 184; Beves v State of Queensland (Department of Tourism, Innovation and Sport) [2021] QIRC 178; Stewart v State of Queensland (Department of State Development, Infrastructure, Local Government and Planning) [2021] QIRC 168. -- 25 of 27 -- 26 [108] Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(a) of the PS Act provides that an appeal may be made against "a conversion decision", in this case a decision "under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis."83 [109] Section 134 of the PS Act allows for public sector appeals to be heard and decided by the Commission. An appeal is initiated by providing the Industrial Registrar with an Appeal Notice stating the details of the decision being appealed against and the reasons for the appeal. [110] Section 133 of the PS Act prescribes that the employee the subject of the conversion decision may appeal. The Appellant meets that requirement. [111] I am satisfied that the decision is able to be appealed. Timeframe for appeal [112] Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [113] As the decision was given on 20 December 2024 and the Appeal Notice was filed on 10 January 2025, I am satisfied that the appeal was filed by the Appellant within the required timeframe. Appeal principles [114] Section 562B(2)(3) of the Industrial Relations Act 2016 (Qld) (IR Act) provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". [115] The appeal is not conducted by way of re-hearing,84 but rather involves a review of the decision arrived at by the Department and the associated decision-making process.85 Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. [116] The issue for my determination is whether the decision was fair and reasonable in the circumstances.86 83 Public Sector Act 2022 (Qld) s 129(a). 84 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1). 85 Industrial Relations Act 2016 (Qld) s 562B(2). 86 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B. -- 26 of 27 -- 27 What decisions can the Commission make? [117] Section 562C of the IR Act prescribes that the Commission may determine to either: • confirm the decision appealed against; • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or • set the decision aside and substitute another decision. Conclusion [118] For the foregoing reasons, the Respondent's failure to convert Ms Burchall to permanent in the CNC role at 0.5 FTE after 2 years was not fair and reasonable. [119] I will set aside the decision appealed against and substitute another decision. [120] I order accordingly. Order: That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The appeal is allowed. 2. The decision that Ms Burchall not be converted to permanent in the CNC (NRG7) role is set aside and another decision is substituted. 3. Ms Burchall is permanently appointed to the CNC (NRG7) Organ and Tissue Donation role for 0.5 FTE – and continue as a permanent CN (NRG6) in the Intensive Care Unit for the remaining 0.5 FTE. -- 27 of 27 --