Day v State of Queensland (Queensland Health) [2021] QIRC 172

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Day v State of Queensland (Queensland Health) [2021] QIRC 172 PARTIES: Day, Sue-Ellen Kerry (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/27 PROCEEDING: Public Service Appeal – Conversion of fixed term temporary employment DELIVERED ON: 24 May 2021 MEMBER: Industrial Commissioner Dwyer HEARD AT: On the papers ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: LEGISLATION: INDUSTRIAL LAW – Public Service Appeal fixed term temporary contract – application for permanent employment – genuine operational requirements – decision not to convert – decision fair and reasonable Directive 09/20 Fixed Term Temporary Employment cl 8.1 Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 149A, 149B -- 1 of 11 -- 2 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) 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 Reasons for Decision Background [1] Since 15 February 2017, Ms Sue-Ellen Day has been continuously employed as a fixed term temporary employee in the position of a Registered Nurse (NG7), Public Health Nurse in the Department, within Indigenous Sexual Health, Townsville Hospital and Health Service ('THHS'). She is employed by the State of Queensland through Queensland Health ('the Department'). This engagement is temporary and has an end date of 30 June 2021. [2] On 26 November 2020, Ms Day received correspondence from Mr Allan Parsons, Director of Human Resources and Engagement of THHS. The correspondence advised Ms Day that a review of her employment status was being conducted in accordance with clause 8.1 of the Directive 09/20 Fixed Term Temporary Employment ('the Directive'). [3] In correspondence from Mr Parsons dated 21 December 2020, Ms Day was advised that she would continue as a temporary employee with THHS ('the decision'). [4] The reasons for the decision were set out as follows: Assessment Elements Eligibility Evidence presented demonstrated that you had met the 2-year eligibility criteria as defined by the directive. -- 2 of 11 -- 3 Merit I am satisfied that your performance has been evidenced as satisfactory, so this would not prevent conversion of your employment. Continuing Need and Operational Requirement After reviewing the circumstances relevant to your temporary employment, I have determined that there is not a continuing need for a person to be employed in the role once the project 'Making Tracks Investment Strategy 2018-2021" the "North Queensland Aboriginal and Torres Strait Islander Sexually transmissible infections Action Plan 2016-2021" is completed. Funding for the project was allocated for the 2019/2020 & 2020/2021 financial years only. The evidence provided indicates that you have undertaken eight (8) separate employment contracts for a genuinely temporary purpose, specifically to undertake the project role of Public Health Nurse Indigenous Sexual Health. You were rehired on the 15/02/2017 to perform the above-mentioned temporary funded project role. You reduced your hours to also undertake a temporary secondment on 13/20/2020, however returned to the project role full time on the 16/11/2020. Following the conclusion of your temporary contract on 30/06/2021 the funding and temporary position will cease. [5] In response to the decision, Ms Day filed an Appeal Notice on 11 January 2021. In her appeal, she contended that: • THHS has not fulfilled their obligation under s 149A of the Public Service Act 2008 (Qld) ('the PS Act') and clause 8.1 of the Directive to convert her employment to permanent; • There is a continuing need for the role due to 'endemic rates of sexually transmitted infections disproportionately affecting Aboriginal and Torres Strait Islander people in North Queensland'; • She outlines other outbreaks which have increased in the group; • The funding for the NQ STI Action Plan ceases in June 2021 which will result in a significant loss of sexual health nursing capacity; • There was a request for ongoing funding by the BetterHealth NQ Alliance in November 2020; • The person responsible for clinical leadership of the NQ STI Action Plan was made permanent in 2020 on the basis of a continuing need; • The Public Health Nurse role works across three Hospital Health Services, servicing a critical public health function. The role undertakes statutory responsibilities which are a public health function including contact tracing, information sharing, linking support services to provide these functions; and -- 3 of 11 -- 4 • The outbreak is unlikely to be controlled before 2025 and continuing efforts are needed. What decisions can the Industrial Commissioner make? [6] 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) 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) 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. Nature of appeal [7] 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 [8] 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 [9] The issue for my determination in the matter before me is whether the decision to refuse to convert Ms Day's temporary employment was fair and reasonable.6 [10] For the reasons set out below, I have determined that the decision was fair and reasonable. Relevant sections of the PS Act and Directive [11] The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below. 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. -- 4 of 11 -- 5 [12] 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 (ii) the person is eligible for appointment having regard to the merit principle; 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. 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— -- 5 of 11 -- 6 (a) the reasons for the decision; and (b) the total period for which the person has been continuously employed in the department; and (c) for a fixed term temporary employee—how many times the person’s employment as a fixed term temporary employee or casual employee has been extended; and (d) each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person’s period of continuous employment. ... [13] 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. ... Submissions of the parties [14] The parties filed written submissions in accordance with a Directions Order dated 12 January 2021. The parties' submissions primarily concern the genuine operational requirements of the Department. Submissions of Ms Day [15] Ms Day contends, for reasons set out in her submissions dated 19 January 2021, that she should be permanently appointed to the Public Health Nurse position. In summary, she submits that: -- 6 of 11 -- 7 • The Department's review of her employment status did not comply with the requirements under the s 149(2)(a)(i) of the PS Act and clause 8.1 of the Directive; • In its decision, the Department "merely went through the motions of review" without adequate consideration of the specific role. She states the decision letter notes that although the position will cease on 30 June 2021, it also states a subsequent review will be undertaken each additional year of continuous service in the role. This is contended as being a routine paragraph indicating no actual consideration of Ms Day's employment context; • The Department did not adequately consider if there was a continuing need for a role that is substantially the same; • Despite the Action Plan funding ceasing on 30 June 2021, there is an ongoing need for the role to be undertaken by Ms Day due to endemic rates of STIs in NQ as well as outbreaks of syphilis and Hepatitis C. Without the role continuing beyond 30 June 2021, there will no longer be a coordinated response to the public health issues; • There is no other Public Health Nurse position which coordinates efforts, resources and treatment plans across the three Hospital and Health Services Submissions of the Department [16] The Department contends, for reasons set out in their submissions dated 17 February 2021, that genuine operational requirements preclude Ms Day' permanent appointment to the position. In summary, it submits that: • The reference to subsequent yearly reviews merely provides Ms Day information about the process in the event that her employment continues; • At the time of the decision there was a continuing need for Ms Day to be employed as a Public Health Nurse, but beyond 30 June 2021 there is not an ongoing need; • Per s 195(2) of the PS Act, Ms Day cannot call into question the merits of continuing the Action Plan beyond 2021 as this is a decision which decides the policy, strategy, nature, scope, resourcing or direction of the Department; • Referring to Ms Day's submission that "if the Public Health Nurse … is not converted to permanent after 30 June 2021…", the Commission is not vested with the power to consider conversion at a future date, only review the decision when it was made; -- 7 of 11 -- 8 • Ms Day's position of Public Health Nurse NG7 Indigenous Sexual Health and other roles of Public Health Nurse NG7 are similar, but are substantively occupied by other employees, so there is no need for her to be employed in these roles; and • The decision was fair and reasonable regarding the genuine operational requirements of the Department as she is employed to perform work for a project or purpose with a known end date, and fill a position that has unknown future funding. Reply Submissions of Ms Day [17] Ms Day responded to the Department's contentions in her reply submissions dated 10 March 2021. In summary, she submits that: • Beyond the Action Plan, there are broader goals which create a continuing current and future need for her position; • There was a need for the role or substantially the same role at the time of review, and there is a current and future need after the Action Plan ends, despite there being similar roles already currently filled; • There is a continuing need to manage the risk of STIs and blood borne viruses, as supported by the BetterHealth NQ High Level Concept Brief attached to her submissions; • She is not seeking conversion at a future date but there continues to be an ongoing need for the role, and a failure to convert her position to permanent will result in no continued coordinated public health response; and • Per a Department of Health Memorandum attached to her submissions, it states that although the funding is non-recurrent, there is acknowledgement of the high value and needs of the program, she contends this results in a continuing need for the role. Consideration [18] What is striking about this matter is that, but for a brief secondment (which she performed simultaneously with the position) Ms Day has been continuously employed in the same position since February 2017. At the time of the decision she had been in the position for almost 4 years. Over this period, the engagements were for terms ranging between 3 months to 14 months, but each new engagement ran consecutive with the last. -- 8 of 11 -- 9 [19] Each engagement is described in the decision as being a ‘Funded project’. While the decision refers only to funding that extends over a period 2019/2020 and 2020/2021, it is apparent that some form of funding for the position has periodically been in place continuously since as early as February 2017. [20] For this reason, I have enormous difficulty accepting the finding of the decision maker that that ‘there is not a continuing need for a person to be employed in the role…’. Ms Day’s submission about the endemic high rates of STIs amongst the indigenous community in the region are not disputed by the THHS. Neither is there any submission from the THHS to the effect that their role in addressing this issue is being de-prioritised or de-funded. [21] I hold serious doubts that it will be anything other than ‘business as usual’ for the THHS and Ms Day come 1 July 2021. I would fully anticipate that a new round of funding will be granted, and that Ms Day will continue on in the same position she has been in since 2017. Given the nature of the work Ms Day performs and its important role in indigenous community health services, I wholly anticipate that there will be work for Ms Day to do for some years to come. [22] Given the evidence of Ms Day’s tenure dating back to 2017, and the nature of the work she performs, I completely reject that there is any basis for the decision maker to have concluded that there will not be a continuing need for the role (or one substantially the same) beyond 30 June 2021. I would therefore conclude that, on that issue, the decision could not be considered fair and reasonable. However, that is not the end of the matter. The THHS also relies on genuine operational requirements. [23] While I might anticipate future funding for Ms Day’s position (or one like it) in light of past events, a decision maker considering an employment review for the purposes of conversion should not (and could not) make such a decision based on speculation. [24] At the time of the decision in this matter, there was no knowledge about what funding would be available for the position after 30 June 2021. In those circumstances, even where a candidate for conversion meets all other criteria, and even where all other indicators point to a compelling case for conversion, the PS Act and the Directive both contemplate ‘genuine operational requirements’ as a qualifying condition on conversion.7 [25] In my view, while the decision about the continuing need for the role was unsustainable on the facts, the decision citing genuine operational requirements is difficult to refute. An absence of confirmed funding, even where experience suggests it will eventually materialise, is a compelling factor that would understandably influence a decision maker to exercise caution. 7 Directive 09/20 Fixed Term Temporary Employment cl 8.2; Public Service Act 2008 (Qld) s 149A(3). -- 9 of 11 -- 10 [26] Deputy President Merrell held in Morison v State of Queensland (Department of Child Safety, Youth and Women):8 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. 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.' [27] The availability of funding is critical to the good management of the resources of the THHS. The submissions of Ms Day do not (in any definitive way) contradict the conclusion in the decision that the funding and the temporary position will cease on 30 June 2021. [28] In the absence of clear evidence to the contrary, the THHS reliance on genuine operational requirements is indisputable. [29] I have significant sympathy for Ms Day who, undoubtedly, has in every other respect earned her right to be converted. I am also more than a little concerned that, given the number of positions in the public sector that are similarly supported by temporary funding, the ubiquitous qualification on conversion afforded by ‘genuine operational requirements’ will continue to give rise to similarly unsatisfactory outcomes. However, that is a matter for those who form policy and for the legislature. 8 [2020] QIRC 203, 12 [37]-[40]. -- 10 of 11 -- 11 [30] In all of these circumstances, I must conclude the decision to be fair and reasonable. Order [31] In the circumstances I make the following order: 1. The decision appealed against is confirmed. -- 11 of 11 --