Burnside v State of Queensland (Queensland Health) [2023] QIRC 81

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Burnside v State of Queensland (Queensland Health) [2023] QIRC 081 PARTIES: Burnside, Caroline (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/747 PROCEEDING: Public Sector Appeal - Conversion to higher classification level DELIVERED ON: 14 March 2023 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant was reviewed under the Public Service Act 2008 – where the Public Service Act 2008 has since been repealed – where the outcome of the review was that the Appellant was not permanently appointed - consideration of genuine operational requirement – where decision was fair and reasonable. LEGISLATION: Acts Interpretation Act 1954 (Qld), s 27B Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Sector Act 2022 (Qld), ss 120, 129, 131, 177, 289 and 324 Public Service Act 2008 (Qld), ss 98 and 149C -- 1 of 12 -- 2 CASES: 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) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Reasons for decision Introduction [1] Ms Caroline Burnside ('the Appellant') is substantively employed by the State of Queensland (Queensland Health) ('the Respondent') as a CA3, Allied Health Assistant, Allied Health Rehabilitation, Medical Services Group within the Sunshine Coast Hospital and Health Service ('SCHHS'). [2] The Appellant has been engaged to act in a higher classification position as a CA4, Advanced Allied Health Assistant, Community Chronic Conditions Service on a full time temporary basis until 25 June 2023 ('the CA4 position'). [3] On 26 July 2022, the Appellant submitted a request to be permanently appointed to the position, pursuant to s 149C of the Public Service Act 2008 (Qld) and Directive 13/20 Appointing public service employee to a higher classification level. [4] On 24 August 2022, the Appellant was issued a letter dated 23 August 2022 from Ms Joanne Shaw, Chief Operating Officer, SCHHS, advising the Appellant that she had decided not to appoint the Appellant to the position due to the genuine operational requirements of the agency ('the decision'). [5] By appeal notice filed on 7 September 2022, the Appellant appealed against the decision. [6] The Public Sector Act 2022 ('PS Act') commenced operation on 1 March 2023. Pursuant to s 289 of the PS Act, the Public Service Act 2008 has been repealed. Section 324 of the PS Act provides the following: (1) This section applies if— (a) before the commencement, a person appealed against a decision under the repealed Act, section 194; and (b) immediately before the commencement, the appeal had not been decided. (2) From the commencement, the appeal must be heard and decided under chapter 3, part 10. [7] The Appellant filed an appeal against the decision in the Industrial Registry prior to the commencement of the PS Act. In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act. -- 2 of 12 -- 3 [8] Section 131 of the PS Act outlines the categories of decision 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'. Appeal principles [9] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 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,3 but involves a review of the decision arrived at and the decision making process associated therewith. [10] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 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? [11] 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 [12] Pursuant to s 129(e) of the PS Act, a 'conversion decision' means a decision: Under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years. [13] The decision maker considered s 149C of the Public Service Act 2008 (Qld) which was operative at the time. The equivalent provision is s 120 of the PS Act which provides: (1) If the public sector employee has been acting at, or seconded to, a higher classification level for a continuous period of at least 1 year, the employee may ask the employee's chief executive to employ the employee in the position at the higher classification level on a permanent basis, after— (a) the end of 1 year of acting at, or being seconded to, the higher classification level; and (b) the end of each subsequent 1-year period. (2) The employee's chief executive must decide the request within the required period. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 12 -- 4 (3) The employee's chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role. (4) In making the decision, the employee's chief executive must have regard to— (a) the genuine operational requirements of the public sector entity; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of acting at, or secondment to, the higher classification level. (5) If the employee's chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and (c) how many times the employee's acting arrangement or secondment has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the employee during the employee's continuous period of acting at, or secondment to, the higher classification level. (6) If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have refused the request. (7) The commissioner must make a directive about employing an employee at a higher classification level under this section. (8) In this section— continuous period, in relation to an employee acting at, or seconded to, a higher classification level, has the meaning given under a directive. required period, for making a decision under subsection (2), means— (a) the period stated in an industrial instrument within which the decision must be made; or (b) if paragraph (a) does not apply—28 days after the request is made. suitable, in relation to an employee performing a role, has the meaning given under a directive. [14] Directive 03/23 Review of acting or secondment at higher classification level ('the Directive') became operative on 1 March 2023 and supersedes Directive 13/20.5 Directive 03/23 provides: 7. Decision-making 7.1 When making a decision in consideration of the factors provided for in section 120(4) of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity. … 12. Appeals 12.1 Appeal rights relating to the review of acting or secondment at higher classification level are provided for in section 131(1)(a) of the Act. 5 clause 3.5. -- 4 of 12 -- 5 [15] The purpose of Directive 03/23 is outlined as follows: 1. Purpose 1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector. 1.2 This directive supports and supplements the provisions of the Act with respect to the review of public sector employees acting at, or seconded to, a higher classification level. 1.3 This directive sets out procedures for reviews and requirements for decisions in the context of reviewing an employee acting, or seconded to, a higher classification level. Reasons for Appeal [16] The Appellant appeals the decision on the basis that the decision to refuse the Appellant's request for appointment to the position was unfair and unreasonable, as: (a) the position is vacant; (b) the Appellant has been acting in the position since 22 May 2017; (c) there is a continuing need for the position to be performed; and (d) the decision is based solely on the ground that the position is funded via the Commonwealth Home Support Program ('CHSP') which is non-recurrent funding is not a relevant consideration. Submissions [17] 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 [18] The Appellant contends that the decision is unfair and unreasonable as the Respondent has not provided sufficient particulars and supporting evidence of the genuine operational requirements of the agency. The Appellant submits that no particular genuine operational reasons were identified. [19] The Appellant outlines that the position was first funded approximately ten years ago through a state-wide falls prevention program 'Stay On Your Feet' which included the roll out of the Otago Exercise Program across the state and SCHHS. The Appellant highlights the following with respect to the position: In the role of an Advanced Allied Health Assistant CA4 in the Community Chronic Conditions Service (CCCS) I deliver the Otago Exercise Program out in the community under the guidance of the Physiotherapists in the CCCS. They refer their patients to me for follow up and review of the Physiotherapists and or the Occupational Therapists recommendations. This allows the Allied Health Professional to be able to see more patients instead of being bogged down in the delivery and implementation of their interventions. -- 5 of 12 -- 6 This saves the SCHHS money by using an Advanced Allied Health Assistant (Advanced Clinical Assistant) to perform these duties rather than an Allied Health Professional, allowing them the Allied Health Professional see more patients and reduce waitlist times within the services for patients. Gympie is an ageing rural community that is over an hour away from the SCHHS and an hour from Nambour General Hospital depending on where patients live in Gympie. There is an ongoing need for the role that I am in to be performed to prevent increased presentations for falls to the Gympie Hospital and the other hospitals in the SCHHS. [20] The Appellant submits that it is imperative to consider the circumstances of her higher duties engagement in the context of the Respondent's commitment to employment security and to employment on tenure as the default basis of employment in the public service. [21] The Appellant further contends that the decision is unfair and unreasonable as the Respondent have relied on the source of funding in making the decision which is an irrelevant consideration and not part of the criteria under the Directive. The Appellant submits that there are no reasons available to the decision maker that would support the decision not to permanently appoint her to the position. In support, the Appellant submits that she has been performing in the position for over five years demonstrating that there is a continuing need for the position to be performed and that permanent appointment is viable and appropriate in the circumstances. [22] The Appellant submits that she continues to demonstrate merit in the position by applying the merit criteria under s 28 of the PS Act. The Appellant has had no performance or disciplinary issues during the previous two plus years and further, have received frequent positive performance feedback to date. Respondent's submissions [23] The Respondent submits the decision should be confirmed as the position is being reviewed, and consideration is being given to abolishing the position due to the cessation of Commonwealth funding on the 30 June 2023. The Respondent outlines that decision maker determined this to be a genuine operational requirement of the department not to appoint the Appellant to the position, submitting that: (a) the Appellant was temporarily engaged in the position in accordance with the principles as outlined under cl 4.2 of the previous Directive; (b) the position has a known end date; (c) the position is fully funded by the Commonwealth Home Support Program Funding (CHSP), which is due to expire on the 30 June 2023; and (d) from 1 July 2023, the CHSP will cease. [24] The Respondent highlights that a new 'Support at Home' program for in-home care will be introduced commencing July 2023 and submits the following: On the 31 August 2022 a reforming in-home aged care and regulatory update webinar was held updating the sector on the status of reforming in-home age care, the proposed regulatory model and the new aged care Act. Following this webinar the Department of Health updated their website with the following information, "The Australian Government is returning to the timeframe put forward -- 6 of 12 -- 7 by the Royal Commission to deliver a reformed and improved in-home aged care program by 1 July 2024. This represents an extension from July 2023". Despite the extension …, there has been no communication from the Department of Health advising that the Commonwealth Home Support Program funding will extend to cover this 12-month extension. The new Support at Home program will reform the delivery of in-home aged care and is designed to merge the existing Home Care Package program and the Community Home Support Program services into once large offering, which allows clients a greater choice of services and freedom of movement between providers. Individual budgets will be allocated to care recipients who have the opportunity to "purchase" services within their assessed needs band, from a menu of providers. The new program removes block funding and activity will rely on competitiveness within the broader market. There are currently 20 in-home care providers in the Maroochydore area alone. As the current cost of the Health Service's Home Support Program far exceeds the proposed market benchmark, it is unlikely that the Health Service could compete nor sustain operating in this environment. The cessation of the Commonwealth Home Support Program funding and the introduction of the new Support at Home program is likely to result in the abolishment of the position of Advanced Allied Health Assistant, CA4 within Community Chronic Conditions. Should Ms Burnside be appointed to this position on a permanent basis in accordance with the Directive, and the position is abolished, Ms Burnside will become an Employee Requiring Placement. Progression to a formal organisational change process, including consultation with Unions and employees, has not yet occurred as initial discussions were with regard to consideration service delivery requirements. The Service intends to undertake its organisational change and consultation requirements in accordance with clause 91 of the Health Practitioners and Dental Officers (Queensland Heath) Certified Agreement (no.3) 2019. Whilst having regard to Directive 18/20: Supporting employees affected by workplace change, review of the position whilst vacant is in the interest of employees to prevent displacement from a permanent position. [25] The Respondent submits that SCHHS is committed to reviewing positions as vacancies occur to meet the requirement of the s 98(1)(b) of the Public Service Act 2008 (Qld)6 and to ensure the correct workforce composition to allow for optimal service delivery to the public. Appellant's submissions in reply [26] In reply, the Appellant outlined the following with respect to the CHSP: The Commonwealth Home Support Programme (CHSP) is a government program that supports older people who are still managing well at home, but want some extra assistance, such as home help, delivered meals, personal care or home maintenance, and support from service providers to help them maintain their independence. The CHSP is the result of a consolidation of the following Commonwealth-funded aged care programs: a. The Commonwealth Home and Community Care (HACC) Program. b. Planned respite services under the National Respite for Carers Program (NRCP) c. The Day Therapy Centres (DTC) Program d. The Assistance with Care and Housing for the Aged (ACHA) Program. To be eligible for the CHSP, you must be aged 65 years or older (50 years or older for Aboriginal or Torres Strait Islander people) or be aged 50 years or older (45 years or older for Aboriginal and Torres Strait Islander people) on a low income and homeless, or at risk of being homeless. 6 PS Act s 177(1)(b), (repealed). -- 7 of 12 -- 8 [27] The Appellant notes the long history of Commonwealth funding and submits that, although there may have been changes in name and policy, the funding has been in place in some form for many years. [28] The Appellant submits that, given the funding has been extended to 1 July 2024 as outlined by the Respondent, relying on cl 4.2(c) of the Directive to support the Appellant's temporary engagement to the position is inaccurate. Further, the Appellant submits that there is nothing to suggest that the funding will end, rather, that the funding will be replaced with a different scheme. [29] The Appellant highlights that commitment to community health services across the Sunshine Coast region is a core component of the SCHHS 2022 – 2026 Strategic Plan, which continues to demonstrate the continuation of the work performed by the Appellant for almost five and a half years. [30] The Appellant submits that the Respondent's contention that the cessation of the CHSP is likely to result in the abolishment of the position is speculation and is not supported by any evidence. The Appellant submits that: (a) by the Respondent's own submissions, no business case for change has been progressed, nor has there been an actual review of the position and the impacts of the CHSP, or new Support at Home program commenced; (b) to rely upon hypotheticals, and to disregard the facts that exist at the specific point in time of the Appellant's request to be appointed to the position, renders the decision unfair and unreasonable; (c) the work is ongoing with current funding source. There is no tangible information provided which would indicate that the Commonwealth will cease funding the Respondent's home care programs; and (d) in circumstances where Commonwealth funding changes, access to community services similar to what is currently provided would be considered a core business function which would continue to be funded, either by the Commonwealth, the State or a combination of both. [31] The Appellant further submits that the Respondent's contention that there are 20 in-home care providers in the Maroochydore area is irrelevant given that: (a) the Appellant works in the Gympie area; and (b) it is not evidence that the need for the position will decrease and is simply an observation of the number of providers currently in the Maroochydore area. [32] The Appellant, therefore, submits that the employment on tenure at the higher classification level is viable and appropriate in the circumstances where the position is substantively vacant, funded to at least June 2024 and work is required for the foreseeable future. -- 8 of 12 -- 9 Consideration [33] 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. [34] The decision did not outline any performance concerns and it was not in dispute that the Appellant was eligible for appointment having regard to the merit principle at the time of the decision. Section 120(3) of the PS Act provides that a 'chief executive may decide to employ the employee in the position at the higher classification level on a permanent basis only if the chief executive considers the employee is suitable to perform the role'. The decision did not outline any concerns regarding the Appellant's suitability to perform the role and accordingly it is accepted that the Appellant satisfies this criterion. Compliance with requirements of s 120(5) of the PS Act [35] Section 120(5) of the PS Act provides the following: If the employee’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total continuous period for which the employee has been acting at, or seconded to, the higher classification level in the public sector entity; and (c) how many times the employee's acting arrangement or secondment has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the employee during the employee's continuous period of acting at, or secondment to, the higher classification level. [36] The decision confirmed the reasons for the decision in accordance with s 120(5)(a). The decision also stated that the Appellant was employed in the position for a total of sixty- three months and that the Appellant's engagement in the position has been extended eleven times in accordance with the requirements of s 120(5)(b) and (c). [37] The decision maker was not required to state each decision previously made, or taken to have been made, in relation to the Appellant during the Appellant's continuous period at the higher classification level as no previous decision has been made. [38] Clause 10.1 of the Directive requires that the notice provided pursuant to s 120(5) must be made in accordance with s 27B of the Acts Interpretation Act 1954 (Qld). I am satisfied that the reasons provided in the notice, albeit brief, gave a sufficiently clear explanation as to the reasons for the decision. -- 9 of 12 -- 10 Matters to which chief executive must have regard in accordance with s 120(4) [39] Section 120(4) provides the following: (4) In in making the decision, the employee’s chief executive must have regard to (a) the genuine operational requirements of the public sector entity; and (b) the reasons for each decision previously made, or taken to have been made, under this section in relation to the person during the person's continuous period of acting at, or secondment to, the higher classification level. Reasons for previous decisions [40] Section 120(4)(b) of the PS Act provides that the Department must consider the reasons for each decision previously made or taken to have been made under that section in relation to that person during their period of employment at the higher classification level. [41] The decision does not address this criteria, however the Respondent submits that this is the Appellant's first application for conversion. On that basis, I am satisfied that there were no previous decisions to be considered. Genuine operational requirements [42] The Respondent outlined the following explanation of a genuine operational requirement preventing the conversion of the Appellant’s employment to the higher classification: I have considered your request and have determined that, due to the genuine operational requirements of the agency you will not be appointed permanently to the position of Advanced Allied Health Assistant, Allied Health CCCS. Accordingly, you will continue to be engaged according to the terms of your existing secondment/higher duties arrangement as the position is temporarily established with no recurrent funding identified. You have been engaged in higher duties in a temporarily established position that is funded via the Commonwealth Home Support Program with no recurrent funding or substantive vacancy. Currently, you have been engaged at the higher classification level as an Advanced Allied Health Assistant, Allied Health CCCS for a total of 63 months. Your engagement at this higher classification has been extended eleven (11) times. As a result of this decision not to convert you to the higher classification level, you will continue in the role of Advanced Allied Health Assistant, Allied Health CCCS until 25 June 2023. [43] Deputy President Merrell outlined in Morison v State of Queensland (Department of Child Safety, Youth and Women),7 the phrase '…genuine operational requirements', construed in context, would at least include consideration of the following: … whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '…the position at the higher classification level.'8 7 [2020] QIRC 203. 8 Ibid [40]. -- 10 of 12 -- 11 [44] The genuine operational requirements relied upon by the decision maker relate to the proposed cessation of the CHSP and implementation of the new Support at Home Program (SAH). The CA4 position is funded through the CHSP and the Respondent submits that this funding is due to expire on 30 June 20239 following which the position is likely to be abolished. [45] The Appellant's engagement has been extended eleven times since 2017. In my view this is an extraordinary length of time to engage an employee in a position on a temporary basis. If it had been the case that the employee sought conversion prior to the announcement of the proposed changes to the program, I would have had little difficulty in converting the Appellant's employment to the higher classification position. The issue the Appellant now has is that it appears there are authentic operational requirements which reasonably prevent conversion to the CA4 position. [46] The Appellant submits that the funding source is a consolidation of a number of other Commonwealth-funded aged care programs including the Commonwealth Home and Community Care Program, the National Respite for Carers Program, the Day Therapy Centres Program, and the Assistance with care and Housing for the Aged Program. The Appellant also submits that the CA4 position was first funded approximately ten years ago for a falls prevention program which included the Otago Exercise Program rolled out across the state and through the SCHHS. [47] The Appellant's contention is that there is a long history of Commonwealth funding in this area, and although the name or policy may have changed over time, there has been support for care at home for the elderly community in place for many years. I accept this submission, and if the proposed new structure was simply a different name or consolidation of other programs, I would not consider this to be an impediment to conversion. [48] The difficulty for the Appellant is that the proposed new structure and associated funding appears to be fundamentally different to previous arrangements. The Respondent submits that the new SAH program removes block funding and provides individual budgets to care recipients who will have the opportunity to 'purchase' services within their assessed needs band from a menu of providers. The submission by the Respondent states that it is unlikely that the Respondent could compete in this competitive market, noting that there are currently twenty in-home care providers in the Maroochydore area alone. The Respondent submits that this change is likely to result in the abolishment of the CA4 position. [49] I note the Appellant's submissions that Gympie is an ageing rural community and that there is an ongoing need for the CA4 position. I have no doubt that this assessment is correct. The issue however is not whether there is an ongoing need for the service provided by the CA4 position, rather it is which organisation will be responsible for delivering that service. If the Respondent is not one of the organisations offering the service in that market, it is not unreasonable to determine that the CA4 position will likely be abolished. 9 Noting the reference on the Australian Government website stating that the reformed aged care program will be implemented by 1 July 2024, representing an extension from July 2023. The Respondent notes that there has been no communication advising that the 12 month extension will be funded by the CHS program. -- 11 of 12 -- 12 [50] I accept the Appellant's submission that a defined source of permanent funding is not a requirement under the PS Act or the Directive. However, after having regard to the effective, efficient and appropriate management of the public resources of the Respondent, I accept that it is not viable for the Appellant to be appointed permanently to the position in circumstances where the position is unlikely to exist leaving the employee as an Employee Requiring Placement. [51] Where the Respondent indicates that the position will likely be abolished in circumstances where it will not compete in the proposed competitive market-based structure, it was reasonable to determine that the genuine operational requirements of the SCHHS do not require a permanent appointment to the position. Conclusion [52] In consideration of the material before me and the submissions made by the parties, I am of the view that the decision was fair and reasonable. Order [53] I order accordingly. That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 12 of 12 --