Blanchette v State of Queensland (Queensland Health) [2021] QIRC 318

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Blanchette v State of Queensland (Queensland Health) [2021] QIRC 318 PARTIES: Blanchette, Luke (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/142 PROCEEDING: Public Service Appeal – Conversion of fixed term temporary employment DELIVERED ON: 14 September 2021 MEMBER: Dwyer IC HEARD AT: On the papers ORDERS: 1. The decision appealed against is set aside; 2. The matter is returned to the decision maker with a copy of this decision; and 3. The decision maker is directed to undertake a fresh review of Mr Blanchette’s application for conversion that complies with s 149B of the Public Service Act 2008 (Qld) and Directive 09/20 within 21 days of the date of this decision. CATCHWORDS: INDUSTRIAL LAW - PUBLIC SERVICE - appeal - fixed term temporary contract - application for permanent employment - genuine operational requirements - decision -- 1 of 12 -- 2 LEGISLATION: not to convert - decision not fair and reasonable Directive 09/20 Fixed term temporary employment cl 8 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 148, 149A, 149B CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188 Davies v State of Queensland (Queensland Health) [2021] QIRC 90 Finn v State of Queensland (Department of Health) [2021] QIRC 144 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Jones v State of Queensland (Queensland Health) (Queensland Industrial Relations Commission, McLennan IC, 15 October 2020) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Underwood v State of Queensland Department of Housing and Public Works) [2021] QIRC 22 -- 2 of 12 -- 3 Reasons for Decision Background [1] Since 4 March 2019, Mr Luke Blanchette has been continuously employed as a fixed term temporary employee in the position of Senior Project Officer (AO6), within the Digital Healthcare Portfolio ('DGP'), Sunshine Coast Hospital and Health Service ('SCHHS'). He is employed by the State of Queensland through Queensland Health ('the Department'). [2] This temporary engagement has been extended four times and, at the time of his application for conversion, had an end date of 28 November 2021. [3] On 2 March 2021, Mr Blanchette was advised that a review of his temporary employment with SCHHS was being undertaken. [4] On 30 March 2021, Mr Blanchette received correspondence from Mr Colin Anderson, Executive Director People and Culture at SCHHS, stating that a review of his employment status had been conducted in accordance with Directive 09/20 Fixed term temporary employment ('the Directive') and the Public Service Act 2008 (Qld) ('PS Act'). [5] Mr Anderson advised Mr Blanchette that he would continue as a temporary employee with SCHHS ('the decision'). [6] The reasons for the decision were set out as follows: There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below. Merit Thank you for your performance in the role. You have demonstrated over this time that you satisfy the merit requirements for the role. Continuing Need The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically the reason for this decision is that you are a fixed term temporary employee in a temporary position where the ongoing funding is uncertain. The Digital Healthcare Portfolio is a temporary organisational structure. This portfolio is 100% funded by capital associated with major infrastructure projects. There is no approved Digital Healthcare Portfolio Plan (including funding) beyond November 2021 for the SCUH Stage 3 Project. It is acknowledged that the Digital Health Strategy 2021 to 2024 has been developed and is under consultation, however the plan remains unfunded at this time and therefore the ongoing nature is uncertain. -- 3 of 12 -- 4 [7] In response to the decision, Mr Blanchette filed an Appeal Notice on 19 April 2021. In his appeal, he contended that: • He has been continuously employed on a temporary fixed term contract with SCHHS for over two years; • He challenges the statement in the decision that ongoing funding is not certain, as the PS Act or Directive do not require certainty; • There is a continuing need for his role or a role that is substantially similar. The Nambour General Hospital Redevelopment Project has an end date in 2023 and his role of Senior Project Officer will continue until at least December 2022; • The objectives and strategies in the SCHHS Operational Plan 2020-2021 and SCHHS Strategic Plan 2020-2024 highlight the implementation of digital technologies to enhance patient care and meet service demands of an increasing population. Accordingly, it is certain that there will be a continuing demand for the delivery of projects and there is a continuing need for his role to support this delivery; • Even if the DHP was removed, in his role he works on multiple initiatives which are temporary but the overall project delivery is a permanent function; and • The personal impacts of the temporary contract have included difficulty obtaining preferable rates on loans and mortgages, and that having little job security creates difficultly planning for the future and caring for his family. What decisions can the Industrial Commissioner make? [8] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the Commission may: (a) confirm the decision appealed against; or (b) for an appeal against a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or (c) for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. -- 4 of 12 -- 5 Nature of appeal [9] Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.1 The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.2 [10] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,3 but rather, it is a review of the decision and the decision-making process.4 The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.5 [11] The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Blanchette's temporary employment was fair and reasonable.6 [12] For the reasons set out below, I have determined that the decision was not fair and reasonable. Relevant sections of the PS Act and Directive [13] The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below. [14] The PS Act relevantly provides: 149A Decision on review of status ... (2) The department’s chief executive may offer to convert the person’s employment under section 149(3)(b) only if – (a) the department’s chief executive considers– (i) there is a continuing need for someone to be employed in the person’s role, or a role that is substantially the same as the person’s role; and … (3) If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department. 1 Industrial Relations Act 2016 (Qld) s 562B. 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 3 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 4 Ibid. 5 Industrial Relations Act 2016 (Qld) s 562B(3). 6 Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61. -- 5 of 12 -- 6 (4) If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the person a notice stating— (a) the reasons for the decision; and (b) the total period for which the person has been continuously employed in the department under section 149; and (c) for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee has been extended. … 149B Review of status after 2 years continuous employment (1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more. (2) However, this section does not apply to a non-industrial instrument employee. (3) The department’s chief executive must decide whether to— (a) continue the person’s employment according to the terms of the person’s existing employment; or (b) offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer. (4) The department’s chief executive must make the decision within the required period after— (a) the end of 2 years after the employee has been continuously employed as a fixed term temporary employee or casual employee in the department; and (b) each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department. (5) In making the decision— (a) section 149A(2) and (3) applies to the department’s chief executive; and (b) the department’s chief executive must have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment. (6) If the department’s chief executive decides not to offer to convert the person’s employment under subsection (3), the chief executive must give the employee a notice stating— (a) the reasons for the decision; and (b) the total period for which the person has been continuously employed in the department; and (c) for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and -- 6 of 12 -- 7 (d) each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment. ... [15] Clause 8 of the Directive provides as follows: 8. Decision on review of status 8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment. 8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency. ... (Emphasis added) Submissions of the parties [16] The parties filed written submissions in accordance with a Directions Order dated 21 April 2021. The parties' submissions primarily concern the genuine operational requirements of the Department. Submissions of the Department [17] The Department contends, for reasons set out in their submissions dated 18 May 2021, that genuine operational requirements preclude Mr Blanchette's permanent appointment to the position. In summary, it submits that: • Mr Blanchette meets the merit criteria for the temporary position; • Although the Nambour General Hospital Redevelopment Project is scheduled to continue for a number of months, its resourcing needs fluctuate depending on the stage of the project, approvals and funding. There is no certainty that the position -- 7 of 12 -- 8 will be required after his contract finishes on 28 November 2021, accordingly there is no need for Mr Blanchette to be employed in the same role; • There is no need for Mr Blanchette to be employed in a role substantially similar as the DHP is a temporary portfolio which has projects funded on a discrete basis. The six current projects run by the DHP are either anticipated to end or have funding until 30 June 2021 or September 2021. The temporary Senior Project Officer positions for the projects are funded on a discrete basis and will cease within the project lifespan when support is no longer required; • Citing the decision of Commissioner Pidgeon in Davies v State of Queensland (Queensland Health),7 the lack of ongoing funding is a relevant consideration but not the only consideration. Other relevant considerations include that the knowledge and experience of a Senior Project Officer may not match that required for other DHP projects; • The Digital Health Strategy for 2021-2024 cited by Mr Blanchette is currently unapproved and unfunded; • An organisational restructure is currently being considered to support the Digital Health Strategy and resourcing of future projects; and • In accordance with s 149A(3) of the PS Act and clause 8.2 of the Directive, the review of the organisational structure is a genuine operational reason which makes converting Mr Blanchette's employment not appropriate or viable. Submissions of Mr Blanchette [18] Mr Blanchette contends, for reasons set out in his submissions dated 16 June 2021, that he should be permanently appointed to the position. In summary, he submits that: • His circumstances are similar to the decision of Jones v State of Queensland (Queensland Health), where Commissioner McLennan found that refusing conversion of employment based on projects funded from non-recurrent uncertain capital funding that were likely to be ongoing was not fair and reasonable;8 • He has been working under his current contract in the role for 2.5 years, accordingly, it is not fair and reasonable for the Department decide not to employ him permanently; • Due to a 'change in circumstances', his contract has been renewed and now has an end date of December 2022, which demonstrates an ongoing need for the role. 7 [2021] QIRC 90. 8 Queensland Industrial Relations Commission, McLennan IC, 15 October 2020, 19 [58], 22 [86]-[88]. -- 8 of 12 -- 9 Similarly to the decision of Commissioner McLennan in Finn v State of Queensland (Department of Health),9 at the time of the decision, there was a continuing need for Mr Blanchette to be employed in the role until at least November 2021, which is likely to be ongoing; • Funding for DHP has been extended to June 2022. While it may be relevant for the decision-maker to consider circumstances in s 148(2) of the PS Act where permanent employment is not viable or suitable, these should not be considered in isolation from the broader circumstances of the appellant's employment and the history of their temporary engagements. He submits that the reasoning of Commissioner Power in the decision of Underwood v State of Queensland Department of Housing and Public Works) applies to his circumstances;10 • In response to the Department's contention that Senior Projects Officer's skills may not match the DHP projects, he states he has been employed by different ICT departments for over 19 years and his experience demonstrates that he is able to work across the multiple ICT domains in which DHP operates; • No attempt has been made by the decision-maker to consider other substantially similar roles as required by s 149A(2)(a)(i) of the PS Act and clause 8.1 of the Directive, and provide reasons of their considerations per s 149B(6)(a); and • The organisational restructure should not be a consideration of whether the decision given on 30 March 2021 was fair and reasonable, as it was not included in the reasons for the decision. In any case, citing the decisions of Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison') and Brew v State of Queensland (Office of the Public Guardian),11 the lack of approvals, sufficient progressing or finalisation of the change means that it cannot be considered as a genuine operational reason to refuse conversion. Consideration [19] The Department relies on uncertainty around funding to reject Mr Blanchette's request for conversion. On the one hand it is submitted the role is not ongoing. As an alternative the Department relies on genuine operational requirements. [20] Deputy President Merrell held in Morison:12 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 9 [2021] QIRC 144. 10 [2021] QIRC 22, [33]-[34]. 11 [2020] QIRC 203, [40]; [2021] QIRC 188 [38], [40], [42]. 12 [2020] QIRC 203, 12 [37]-[40]. -- 9 of 12 -- 10 provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive. The adjective 'genuine' relevantly means '... being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things: • managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and • planning human resources, including ensuring the employment in the department of persons on a fixed term temporary or casual basis occurs only if there is a reason for the basis of employment under the PS Act. … The phrase '... genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include 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.' [21] Decision-makers commonly conflate the notion of an 'ongoing' role with matters giving rise to genuine operational requirements. Perhaps it is a feature of the language of earlier directives, or perhaps it is simply a misunderstanding of the meaning of 'ongoing' as it has been developed in jurisprudence.13 It is an all too common misnomer to describe a role as not 'ongoing' simply because funding has not been confirmed at the time of the decision.14 [22] However, uncertainty of funding at the time a decision is made will (almost) always give rise to a genuine operational requirement. It will depend on the circumstances of each case, but where a decision maker cannot be confident that the role under consideration for permanent appointment will have funding after a nominated date, it would be highly irresponsible to make any other decision but to decline the request. [23] The uncertainty about funding needs to be genuine at the time of making a decision and not contrived e.g. where a decision-maker relies on the fact that a formal decision about future funding is not scheduled to be announced until a later date, but they have a genuinely held expectation that it will be granted. [24] In this instance, there is no evidence before me to suggest the decision-maker's belief about the uncertainty of funding was contrived. In these circumstances, the decision in respect to the role performed by Mr Blanchette is fair and reasonable. 13 Katae v State of Queensland & Anor [2018] QSC 225. 14 Ibid. -- 10 of 12 -- 11 [25] I hasten to add that developments post-decision (such as the extension of the project until December 2022) are not relevant to my considerations. As I noted above, my jurisdiction is limited a review of the decision. I do not have jurisdiction that allows me to have regard to evidence in respect of contract extensions or funding that may have arisen subsequent to the decision having been made. [26] The impact of genuine operational requirements with respect to Mr Blanchette's role is not the end of the matter though. There is an obvious deficiency in the decision. Section 149A(2)(a)(i) of the PS Act requires a decision maker to additionally consider inter alia the continuing need for someone to be employed in a role that is 'substantially the same as the persons role'. So too does cl 8.1 of the Directive. [27] There is no evidence that the decision-maker complied with this mandatory requirement and considered other roles that were substantially the same as required by s 149A(2)(a)(i) of the PS Act and the Directive.15 The decision makes no reference to consideration of any other roles other than the one being performed by Mr Blanchette. [28] A decision-maker who fails to take mandatory relevant considerations into account has not properly applied the law.16 [29] Further, the subsequent submission filed by the Department on other roles are largely an abstract discussion about what the Department perceives Mr Blanchette's skills to be. The submissions still fail to demonstrate what (if any) alternatives roles were considered with any specificity, or why (if they were considered) they were discounted. [30] In any event, I am reviewing the decision. Subsequently filed submissions might explain (to me) what roles were considered, but the obligation of the decision-maker is to provide Mr Blanchette with reasons for the decision that are sufficiently detailed when they issue the decision.17 The Department has failed to comply with this mandatory obligation. [31] In all of these circumstances, I consider that the decision is not fair and reasonable. In my view the matter ought to be returned to the decision maker to reconsider. [32] I hasten to add that I am not concluding that Mr Blanchette ought to be converted. My conclusion is entirely a reflection of the technical deficiency of the decision by reference to the obligations set out in the PS Act and the Directive, and the Department's failure to comply. 15 Directive 09/20 Fixed Term Temporary Employment cl 8.1. 16 Katae v State of Queensland & Anor [2018] QSC 225, [22]. 17 See Public Service Act 2008 (Qld) s 149B(6). -- 11 of 12 -- 12 Order [33] In the circumstances I make the following orders: 1. The decision appealed against is set aside; 2. The matter is returned to the decision maker with a copy of this decision; and 3. The decision maker is directed to undertake a fresh review of Mr Blanchette’s application for conversion that complies with s 149B of the Public Service Act 2008 (Qld) and Directive 09/20 within 21 days of the date of this decision. -- 12 of 12 --