Cassilles v State of Queensland (Queensland Health) [2021] QIRC 210

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Cassilles v State of Queensland (Queensland Health) [2021] QIRC 210 Cassilles, Joshua (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/161 PROCEEDING: Public Service Appeal - Conversion Decision DELIVERED ON: 14 June 2021 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: The decision appealed against is confirmed CATCHWORDS: LEGISLATION: INDUSTRIAL LAW - PUBLIC SERVICE APPEAL - where the appellant was reviewed for conversion to permanent employment - whether there was a continuing need for the Appellant to be employed - where conversion not viable or appropriate having regard to genuine operational requirements of the agency. Public Service Act 2008, s 148, s 149, s 149B Industrial Relations Act 2016, s 562C Directive 09/20 Fixed term temporary employment Reasons for Decision Appeal Details -- 1 of 11 -- 2 [1] Mr Cassilles is employed by the State of Queensland (Queensland Health) at Gold Coast Hospital and Health Service (GCHHS) as a Protection Services Officer, Operational Services at OO3 classification at Gold Coast University Hospital (GCUH). Mr Cassilles has been employed in the role since 8 May 2018. [2] Mr Cassilles received a decision with regard to a review of his employment on 13 April 2020. The decision notes that while Mr Cassilles' application requested conversion from casual to permanent employment in accordance with Directive 01/17 Conversion of casual employees to permanent employment, that Directive was superseded by Directive 08/20 Casual employment on 25 September 2020. The decision maker also states that at the time of the application, Mr Cassilles was employed as a temporary employee rather than a casual employee and as such, his eligibility for conversion to permanent status was considered in accordance with Directive 09/20 Fixed term temporary employment (the Directive). [3] The three page decision letter provides detailed information about the matters considered and why Mr Cassilles' request for conversion to permanent was declined. Essentially, the Respondent notes that Mr Cassilles meets the merit requirements and then addresses the continuing need for Mr Cassilles to undertake the role and the genuine operational requirements precluding conversion. As the reasons provided are extensive and are addressed in submissions, I will not set them out here. [4] Mr Cassilles' reasons for appeal as included in Part C of his appeal notice are brief: The Appellant has received correspondence on 13 April 2021 state that their request for permanency has been rejected, and the Appellant submits that the Respondent has erred in their decision and that he should have been made permanent. [5] As the reasons for appeal provided no detail as to why the Appellant believes the decision was not fair and reasonable, I requested that Mr Cassilles make initial submissions with the Respondent replying and then a short additional period for either party to provide any further submissions for my consideration. Relevant sections of the Act and Directive [6] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 (the PS Act) and the Directive. [7] Section 149B of the PS Act relevantly provides 149B Review of status after 2 years continuous employment (1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same Department for 2 years or more. (2) However, this section does not apply to a non-industrial instrument employee. (3) The Department's chief executive must decide whether to — (a) Continue the person's employment according to the terms of the person's existing employment; or -- 2 of 11 -- 3 (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 person 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 mention 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 causal employee has been extended; and (d) Each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment. (7) If the Department's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment. (7A) For working out how long the person has been continuously employed in the Department — (a) All periods of authorised leave are to be included; and (b) The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non- employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration of the person's continuous employment is being worked out. The Directive [8] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles -- 3 of 11 -- 4 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. 4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B. 4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee. 4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate. 4.5 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. … … 8. Decision on review of status 8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act • whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and • the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment. 8.2 Sections 149A(3) and 149B(5) provide that where the criteria above are met, the chief executive must decide to offer to convert the person’s employment to permanent employment as a general employee on tenure or a public service officer unless it is not viable or appropriate having regard to the genuine operational requirements of the agency. 8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment: (a) the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements). (b) where the employee is part-time, an explanation of the days and hours of work offered in the decision; and (c) the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert. 8.4 Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must: (a) set out the findings on material questions of fact, and -- 4 of 11 -- 5 (b) refer to the evidence or other material on which those findings were based. 8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days). 8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5. 8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions. What decisions can the Commission make? [9] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; or … (b) 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. Submissions of the Parties Submissions of the Appellant [10] The Australian Workers' Union (AWU) made submissions on behalf of Mr Cassilles. [11] As Mr Cassilles is required to work regular and consistent hours and has been employed for two and half years, there should be no impediment to Mr Cassilles holding a permanent position as the hours would be sustained post permanency. In support of this, Mr Cassilles' most recent payslips and roster are attached.1 [12] In the matter of Kelly v State of Queensland (Queensland Health) QIRC 55 (Kelly) in which the Commission considered the Appellant's service of over three years and established that there was a continuing need. The AWU says that in this case, there has been a constant demand from the Respondent and that Mr Cassilles could be transferred into a permanent position. [13] Also in the matter of Kelly the Commission said that there does not need to be a budgeted vacancy to enable conversion and that conversion of employment will often involve the creation of a new permanent position. Submissions of the Respondent [14] GCHHS is committed to maximising permanent employment and that it has converted eligible employees to permanent status provided the principles are met, and there is a genuine operational need to support their conversion based on the specific circumstance of each matter. 1 Submissions filed by the Appellant 14 May 2021, JC-02; JC-03. -- 5 of 11 -- 6 [15] The application was denied for valid reasons in accordance with s 149 of the PS Act, the Directive and GCHHS Procedure PRO1664. [16] By way of background, GCHHS explains that in September 2018, the AWU lodged an industrial dispute with regard to the Health Service's decision not to convert 16 Security Officers to permanent employment. At conference, the parties acknowledged that they have a long-standing disagreement in relation to Integrated Security Services (ISS) staff rosters at GCUH and Robina Hospital, which was impacting on the Health Service's ability to determine its genuine staffing requirements. [17] The Respondent provides some information about a practice called 'security specialling' which it says is used when a work area requires a dedicated security resource to be rostered to an individual service outside and in addition to the core Security roster. With regard to security specialling, the Respondent says: • These requests result from an emergent clinical decision made by the treating team; • the decision is made if the treating team believes there is a sufficiently high risk that the patient is likely to cause harm to themselves or someone else; • it is not uncommon for ISS to receive a request for a special one day, six the following day and then none for the remainder of the week; • as decisions depend on observations at any given time, security special requested for a short period can turn into a lengthy period, likewise, a security special ordered for a longer time can be terminated at any moment; and • security specials are not funded by ISS but the department authorising the special; and • ISS as a department has minimal control over the demand for security specials. [18] The impact of 'security specials' on casual employees is that they appear to be working regularly and systemically but the Health Service in not able to predict or control these situations. [19] The Respondent attaches a document outlining agreement reached on a number of matters which it says it continues to comply with and resulted in the dispute being withdrawn in May 2020: • An agreed roster for both facilities which incorporated all staff affected by the dispute and which meets the genuine operational requirements of the Health Service; • Offers of permanent part time employment for employees affected by the industrial dispute; • the nature of 'security specialling' is that it is unpredictable and does not contribute to or reflect the ongoing operational requirements of ISS; -- 6 of 11 -- 7 • acknowledgement that 'security specials' are a response to emergent matters including clinical decisions made by multidisciplinary teams based on the presentation and safety of staff and patients at a particular time, lockdowns, or other adhoc matters; and • the Health Service would ensure permanent part-time employees are offered additional hours in the first instance and before any other employee cohort. [20] Over the past two years, there has been very little attrition and very few resignations or retirements in ISS. The roster remained static with no genuine operational requirement to offer permanent employment to Mr Cassilles or any other temporary Security Officer. [21] The Respondent submits that: A holistic review of ISS and that nature of casual security officer roles, demonstrates that there is no ongoing certainty to determine to what further extent beyond the current permanent roster requirements, security services are needed in the immediate, medium or long term due to the specific nature of these roles and the unpredictable and fluctuating need for security services.2 [22] With regard to Mr Cassilles' situation, the Respondent says that despite any perception of predictability, regularity or systemic need, Mr Cassilles' engagements have been in response to adhoc increases in emergent clinical and operational demand. The Respondent has no way of knowing whether this trend will continue into the foreseeable future. [23] A review of ISS current and ongoing requirements was undertaken and confirmed that no further permanent roles are available as permanent employees accessing leave are expected to return to the workplace following conclusion of their leave, security specials are inherently emergent, unpredictable and temporary in nature. [24] There is no need to create further permanent roles or hours within the unit and therefore conversion of Mr Cassilles' employment is not appropriate at this time. [25] By way of example, the Respondent describes a current special where ISS is temporarily providing a minimum of three Security Officers 24 hours a day, seven days a week, for one patient to meet clinical and workplace health and safety needs. The Respondent has advice that this particular patient has caused a significant increase in hours offered to Security Officers but is due to be discharged by early June 2021. [26] In accordance with s 25 of the PS Act, it is responsible for providing responsive, effective and efficient services and managing public resources efficiently, responsibly and in a fully accountable way. Converting Mr Cassilles' employment to permanent status would be in contravention of this responsibility due to the specific circumstances surrounding the need for a casual workforce within ISS to response to unscheduled, emergent and temporary operational requirements. Appointing each Security Officer upon tenure is not fiscally responsible as the Health Service cannot provide any guarantee of an ongoing need. [27] With regard to the AWU's reference to the decision in Kelly, the Respondent submits that it has specifically undertaken a review and that there are no genuine operational 2 Para 11 Respondent subs -- 7 of 11 -- 8 requirements to create permanent positions in ISS. The genuine operational requirements of the Respondent due to the unique, genuine and uncontrollable requirements of ISS are such that they displace the principle that employment on tenure is the default basis of employment in the public service. [28] It is relevant for the Commission to be aware that Mr Cassilles is not the only Security Officer seeking conversion to permanent employment and that there are an estimated 12 further applications which may be filed. [29] If Mr Cassilles is converted to permanent, a full roster review and consultation process will need to be undertaken to amend all roster line patterns and this is likely to be a long and protracted process as the roster is currently at full capacity. Appellant in reply [30] The AWU does not disagree with the Respondent's submissions regarding the industrial dispute but says that this should not undermine Mr Cassilles' request to be made permanent. [31] There has been a recorded need for the Appellant and there is sufficient work for the Appellant to be converted to permanency. Despite the Appellant's casual status, he has had constant hours and demand from the Respondent. This is evidenced by his current roster and payslips. [32] The Appellant reiterates that the Directive does not stipulate that there must be an available permanent position for the Appellant to be converted to a permanent position with the respondent. [33] The Appellant meets the set criteria of the Directive and as such, should be converted to permanent. [34] With regard to the Respondent's submissions that there are an estimated 12 further Security Officer applications which may be lodged in the QIRC, the Appellant says that it is deeply concerning that the Respondent has already pre-empted decisions despite not receiving any applications and conducting the due process for each potential application. [35] With regard to the Respondent's submissions about the impact on the roster should Mr Cassilles be converted to permanent status, the Appellant submits that this is essentially a 'cause and effect' that would be expected to occur should there be any staff changes. Consideration of submissions [36] At the outset, I note that each matter that comes before the Commission must be considered on its own merits. While previous decisions of the Commission can provide a guide or some context for parties to consider, the context and factual circumstances will be different in each appeal, even where the appeal relates to a person in a similar role in a similar workplace. -- 8 of 11 -- 9 [37] To that end, the Respondent's submissions regarding the potential of more appeals being made to the Commission following reviews of employment status is not something I am taking into account in this decision. [38] The information provided to me about an industrial dispute involving employees in roles such as Mr Cassilles is relevant to the extent that a MOU was made between the parties following conciliation of that dispute in the Commission and the Respondent says that complying with that MOU impacts on the genuine operational requirements of the Respondent. [39] There is no dispute that Mr Cassilles is eligible for review. Mr Cassilles has worked in his role in either a casual or a temporary capacity since 8 May 2018, almost three years at the time of the review. [40] It is also agreed that Mr Cassilles meets the merit requirement for conversion of his employment. [41] The Respondent says that it has no way of knowing whether the trend requiring Mr Cassilles to be employed in the way that he has been over the past two years will continue. It is clear to me that there is a continuing need for Mr Cassilles to be employed in some capacity in his role or in a role substantially the same. Past employment patterns are a reasonable indicator of continuing need, particularly when they establish that Mr Cassilles' employment has been extended on more than 32 occasions since he commenced. [42] With regard to the arrangements made arising from the industrial dispute (withdrawn in May 2020), I note that one of the agreements between the parties was that the Health Service would ensure permanent part-time employees were offered additional hours in the first instance and before any other employee cohort. The Respondent points to Mr Cassilles' work history and says that there were periods of time before that arrangement came into place where Mr Cassilles was employed to backfill a 'vacant position', however, after the agreement, these hours were offered to permanent part-time workers and Mr Cassilles' temporary engagements were for the purpose of backfilling members of staff who were on leave. [43] The Appellant submits that there is no need for a budgeted vacancy to enable conversion. However, the Respondent's submissions do not appear to reflect that it holds such a belief. In fact, the Respondent says that it has reviewed the need for the creation of a new permanent role for Mr Cassilles and has determined that there is no operational need to do so as it as Mr Cassilles' engagements have been in response to adhoc increases in emergent clinical and operational demand. [44] The Memorandum of Understanding signed by the parties on 18 October 2019 states that: Additional ordinary hours shifts for security officers may become available because of reasons including: • Planned and unplanned leave; • Emergent circumstances; and/or • Adhoc requests from other areas of the Health Service for additional resources. -- 9 of 11 -- 10 The Health Service will, wherever possible, offer available additional ordinary hours shifts to part time employees in the first instance. If part time employees are not available for an available additional ordinary hours shift, the Health Service may engage casual employees on an adhoc or emergent basis to fill gaps in the roster or to meet additional service requirements. The parties to the MOU acknowledge adhoc requests made to Integrated Security Services by other areas of the Health Service to ensure the immediate safety of staff, patients and visitors to its facilities are inherently unscheduled, emergent and on demand. To support employees' work-life balance, the Health Service will proactively manage planned leave as part of its rostering practices. 2.1 Priority order for offering additional shifts to part time employees Additional ordinary hours shifts will be offered to part time staff with the least number of contracted hours for the roster period as a priority. In circumstances where shift commencement is imminent, consideration will be given to operational requirements and the availability of all staff. … [45] This Agreement appears to have the result that when a staff member goes on leave, their shifts will be offered to permanent part time staff in the first instance. It seems that over the most recent period of Mr Cassilles' employment to backfill permanent part time staff members, other permanent part-time employees must have been unavailable to pick up the shifts of these members of staff who were on leave. This may be because they had reached their maximum working hours through allocation of available shifts due to leave or emergent circumstances, were meeting adhoc requests from other areas of the Health Service or were themselves on leave. [46] The evidence demonstrates that despite the Memorandum of Agreement being in operation and the ad hoc nature of demands on Integrated Security Services, Mr Cassilles has undertaken continuing work with the Health Service. Some of this has been temporary in nature – as it was at the time Mr Cassilles made his application for review – and some of it has been casual employment. For example, Mr Cassilles was employed on multiple temporary engagements from 19 May 2019 through until 19 September 2020. There was then a period where I gather he worked on a casual basis before being engaged to backfill an employee from 21 March 2021 until 3 April 2021. [47] There is a continuing need for Mr Cassilles to be employed in some capacity in the role, or a role substantially the same. However, it seems that the Memorandum of Understanding serves to create a situation where it is genuinely unknown from day to day how much work is available for temporary or casual staff members to be allocated given that permanent part-time workers will be offered the available work first. [48] I accept that there is a genuine operational requirement for the Health Service to maintain a casual workforce in Integrated Security Services due to the changing nature of needs across the hospital and that clinical decisions can lead to a spike in demand which may go on for some months or be only short term in nature. This is envisaged in the legislation and Directive which indicate circumstances in which casual or temporary engagements may be appropriate. -- 10 of 11 -- 11 [49] The above consideration makes it difficult for Mr Cassilles to overcome the argument put forward by the Health Service that genuine operational requirements precluded his conversion to permanent employment at the time the review was undertaken. While I note the reference made by the Appellant to my decision in Kelly, I note that the genuine operational requirements relied upon in this matter are different to those put forward in Kelly. In that matter, the Respondent raised issues such as: there being no budgeted vacancies; full time equivalent establishment numbers; and the nature of 24/7 rostering in the area Ms Kelly worked. [50] The letter provided to Mr Cassilles provides an extensive explanation of the genuine operational requirements relied upon by the Respondent and why it is not viable or appropriate to convert his employment. [51] I note that the Respondent says that due to an oversight, the letter does not indicate how many times Mr Cassilles' employment has been extended, however I consider that Mr Cassilles' work history has been outlined adequately on page two of the letter. [52] The decision appealed against is confirmed. -- 11 of 11 --