Employee M v State of Queensland (Department of Education) [2021] QIRC 170

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Employee M v State of Queensland (Department of Education) [2021] QIRC 170 PARTIES: Employee M1 (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO.: PSA/2021/70 PROCEEDING: Public Service Appeal - Conversion of fixed term temporary employment DELIVERED ON: 21 May 2021 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: INDUSTRIAL LAW - Public Service Appeal - Fixed term temporary employment review – where the appellant was reviewed under s 149B of the Public Service Act 2008 – consideration of the scope of a review under s 149B LEGISLATION: Industrial Relations Act 2016 (Qld), ss 539, 562B and 562C Public Service Act 2008 (Qld), ss 148, 149A and 149B Directive 09/20 Fixed term temporary employment, cl 8 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 1 The Appellant's name has been anonymised as discussed in paragraph [30] -- 1 of 11 -- 2 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for decision Introduction [1] Employee M (the Appellant), is currently employed by the State of Queensland (Department of Education) (the Respondent) in the casual position of Business Analyst (Financial), Digital Transformation within the Respondent's Information Technology Branch (ITB). [2] By Appeal Notice filed on 11 February 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) (the PS Act), appealed against a decision that her employment remain as temporary with the Respondent (the decision). Appeal principles [3] Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. [4] The appeal must be decided by reviewing the decision appealed against.2 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.3 An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,4 but involves a review of the decision arrived at and the decision making process associated therewith. [5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.5 The issue for determination is whether the decision by Ms Lisa Newbold, Director, Employment Review, Human Resources to deny conversion of the Appellant's employment to permanent was fair and reasonable in all of the circumstances. This requires a consideration of s 149B of the PS Act and of Directive 09/20 Fixed term temporary employment (the Directive). What decisions can the Industrial Commissioner make? [6] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: 2 IR Act s 562B(2). 3 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 4 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 5 IR Act s 562B(3). -- 2 of 11 -- 3 (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. Grounds of Appeal [7] In the Appeal Notice, the Appellant contends that the decision: • was based on the temporary appointment being for the primary purpose of the EQGlobal project and there being no continuing need for the Appellant's role and is incorrect; • does not account for additional implementation activities that will flow after 30 June 2021. The functions performed by the Appellant will continue to be necessary and the need for the Appellant's skills will continue; • for not converting the Appellant because there is no existing AO7 position to appoint the Appellant against is not a relevant consideration under the PS Act; • is incorrect in stating that there is no ongoing business/financial analyst role as the Corporate Services team structure distributed to the team has a business analyst role; and • does not take into consideration that the Appellant has been predominantly employed in a casual capacity. Relevant provisions of the PS Act and the Directive [8] 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 (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. -- 3 of 11 -- 4 (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 (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. … [9] Section 149A(2) of the PS Act provides: (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 (b) any requirements of an industrial instrument are complied with in relation to the decision. [10] Section 149A(3) of the PS Act provides: (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. [11] The Directive relevantly provides: 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. -- 4 of 11 -- 5 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 (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). … Submissions [12] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Appellant's submissions [13] The Appellant filed submissions in support of the appeal. In summary, the Appellant submits that: • the Appellant was never engaged by Education Queensland International (EQI) for the specific purpose of developing the financial requirements for the EQGlobal project (Project) and was requested to join the Project team in December 2020 to address major risks raised by the Project Board; • the absence of any discussion or analysis of any work the Appellant performed for Department of Education International (DEI) other than the Project tasks is a fundamental oversight in the decision which contributes to the decision being unfair and unreasonable; • the decision does not address a range of unfinished and outstanding necessary operational activities which are necessary for DEI's operations and EQI's ongoing viability, namely: • GO dashboard – The Global Opportunities area were advised this service could not be provided as Corporate Services is not resourced for this activity and so small parts were completed including as late as 18 January 2021. • Base Line costing model – This is needed for ongoing product costing. It is on hold due to my commitments to the Project. • Long term strategic model – This is a demand model, not a financial model. Training other members in its use has started. I still retain maintenance and update responsibilities, including new scenario development. Therefore, this role still exists and is performed by me. • Master Data generation from ISMS for Corporate Services use – I am still responsible for extracts and they are needed for the Project. Current standard operational reports -- 5 of 11 -- 6 generated in EQI by the Data team have proven to be unsuitable for the Project. This role still exists and rolls into Project role. • Documentation of business processes – not completed due to time constraints and no budget models or working documents updated. Role still exists and rolls into Project role. • the statement that there is no continuing need for the Appellant's role or a role substantially similar is incorrect. The short-term transfer to the Project continued the Appellant's role in a different team within the Respondent, which the Appellant believe is for operational purposes only; • the Appellant's work is ongoing as she continues to provide strategic analysis of data and models for the same business area but in another team in the same department; • the remainder of the Appellant's role coverage is now being performed by a contractor and another casual employee in DEI and the handover of the Appellant's responsibilities demonstrate that a continuing of the role is necessary; • the Respondent has not considered similar roles when making their decision. An AO6 vacant position in Corporate Services has been marked for a business analyst position and that there is not an occupant for this role. Further, an AO7 Business Analyst role is being included in the Pacific Scholarships Scheme budget for 2021- 22 and is a role that the Appellant has performed in until the program was put on hold due to COVID-19; and • the most recent team structure was distributed to the Corporate Services team on 30 July 2020 and was discussed in a recorded meeting on 25 August 2020 and included the Business Financial Analyst role in which the Appellant was performing. Respondent's submissions [14] The Respondent filed submissions opposing the appeal, summarised below: • on 9 January 2018, the Appellant was engaged as a contractor under an agency contract agreement as a Financial Analyst specifically tasked to assist with a project to develop and implement a full cost pricing framework for EQI commercial activities, assess the commercial viability of EQI programs/service products and develop a forecast model across all EQI programs of at least three years forward; • to reduce the costs of the project, on 7 January 2019, DEI made the decision to appoint the Appellant as a fixed term temporary employee in the role of Principal Project Officer, as the Project was still ongoing. The deliverables and the tasks to be performed on the Project is consistent with the position description of the Financial Analysts; • on 7 January 2021, the Appellant's employment was on a fixed term temporary basis as a Principal Project Officer in EQI, undertaking Financial Analyst duties for the period 1 September 2020 to 12 February 2021; -- 6 of 11 -- 7 • the Appellant's engagement as a Principal Project Officer in EQI concluded for the following key reasons: (a) the project role and associated financial analyst tasks are complete in DEI and have ended; (b) DEI is predominately a self-funded branch and COVID-19 has significantly impacted on the ability of the branch to fund not just the Financial Analyst role but many other roles within DEI. As a result, DEI have 'hibernated' several projects and roles (i.e. roles that have previously been funded have not been renewed once vacated); (c) the engagement of the Appellant for the period 1 September 2020 to 12 February 2021 was funded by using an AO7, Principal Project Officer position of another substantive employee whilst she was on leave. The substantive employee will return from leave on 25 February 2021; • following the conclusion of the fixed term temporary Principal Project Officer role in EQI, the Appellant was offered and accepted employment as a casual Business Analyst (Finance), Digital Transformation within the Respondent's ITB to undertake work on the EQGlobal Agresso project. Since November 2020, the Appellant had been assisting with this project as her own project deliverables had been finalised. DEI extended the Appellant's engagement to 12 February 2021 to assist her to take up the role in ITB and to ensure she would have continuity on the payroll system; • the duration of this current casual role is 15 February 2021 to 30 June 2021, after which time the role will cease to be required; • the Respondent disagrees with the Appellant's assertion that there are a range of unfinished and outstanding operational activities which are necessary to DEI's operations and EQI's ongoing viability. The Respondent submits that: (a) the Global Opportunities Dashboard is not a priority for DEI and will not be required on an ongoing basis; (b) the Baseline costing model is not a priority; (c) the Long term strategic model has been completed; and (d) the Master data generation extracts involved a new report created by the Appellant as part of her project deliverables; • during the Appellants employment within DEI, additional project tasks were added to the role, however, it was not envisaged that a Financial Analyst would operationally run these reports and models as part of an ongoing role. DEI considers all project tasks assigned to the Appellant to now be complete and the few remaining operational elements will be assigned to other public service officers within the Corporate Services team; • DEI Corporate Services team currently has a contractor engaged to 30 June 2021 to assist with the supervision of the Finance Operations team and internal budget -- 7 of 11 -- 8 and reporting. The Appellant was requested to include the contractor in training to ensure business continuity of knowledge and operations in the event that the Principal Project Officer is away; • the AO6 position referred to by the Appellant is currently a vacant position and has been flagged as a hibernated position. Further, DEI had previously determined that the establishment of a Financial Analyst position in an ongoing capacity was neither viable or necessary for the business; • in relation to the AO7 Business Analyst position referred to by the Appellant, the Respondent submits that there are no plans for that role for the Pacific Scholarships Scheme budget for 2021-22; • team structures for the Corporate Services team are usually updated upon change of personnel within the team and are then distributed. In the team structure, the Appellant's position was included in an orange box, indicating that this is a project role and not an approved establishment position within the team; and • the employment of the Appellant in DEI was consistent with s 148(1) of the PS Act as the employment was for a fixed term to perform work of a type ordinarily performed by a public service officer. Further, employment on tenure was not viable as the employment was for the purpose of performing work for a particular project or purpose that has a known end date, as provided for by s 148(2)(b) of the PS Act. Appellant's submissions in reply [15] The Appellant filed submissions in response to the Respondent's submissions, which have been summarised below: • the response by the Respondent includes no evidence of when, or even if, the decisions they claim to have made regarding the Appellant's employment and the DEI's needs were actually made; • the Respondent omits significant facts that do not support its position and presents a misleading outline of events to make it appear that the Appellant's role no longer exists. The Appellant submits that the Respondent's response retrofits unsubstantiated decisions to support a position not to fund the Appellant's role from EQI revenue rather than the role not existing; • the Respondent's submissions and documents offer differing versions of the Appellant's employment, role and reason for being embedded in the team for the EQGlobal project; • the Respondent's submission that the Appellant was hired under one position description in 2018 and that the business analyst function is not a DEI role, is misleading; • the Appellant was not appointed as a fixed term temporary in a Principal Project Officer role in January 2019 and was not appointed as a fixed term employee in -- 8 of 11 -- 9 DEI until the Appellant was placed against the substantive AO7 position in August 2020 to discourage the Appellant from accepting another role; • in relation to the Respondent's submission that the Appellant's position in the Corporate Services structure is 'in an orange box, meant to indicate … a project role', the Appellant submits that there is no legend on the structure indicating the meaning of the different colours. The role is described as a Business Analyst in the Corporate Services structure as provided; • the term 'operationalise' is used by the Rural, Remote and International Corporate Services Manager to represent those activities the Appellant performed that were intended to be used by the Corporate Services team and that not all tasks needed to be operationalised; • the Respondent's assertion that the move to the Project team occurred once the Appellant's deliverables were finalised denies that her work on the Project is intimately connected with delivering on DEI's immediate and longer-term operational requirements. Additionally, it fails to acknowledge the Project work generally was included in the Appellant's Performance Development Plan; • the Appellant refutes the Respondent's submissions with respect to the operational activities of the Global Opportunities Dashboard, Baseline costing model, Long term strategic model and Master data generation extracts; • the contractor functions identified by the Respondent are those of the two occupants of the AO7, Principal Project Officer role. The Appellant submits that extension timing and duration do not match the reason given and that if an extra resource is required, is because the Respondent could not absorb the Appellant's activities within the available public service resources; and • the Respondent does not acknowledge operational needs post 30 June 2021 for either the Appellant or the contractor and the Project is known to have a delayed go-live date to mid-August 2021 for a partial delivery. Consideration [16] To determine the outcome of this appeal, I am required to assess whether the decision appealed against was fair and reasonable. The decision determined that the Appellant's employment remain as fixed term temporary. [17] The reason given for the Respondent's decision, as outlined in the letter dated 9 February 2021, was that pursuant to s 149A(2)(a)(i) of the PS Act, there was not a continuing need for someone to be employed in the role the Appellant was performing or a role that is substantially the same. The decision maker states that the merit principle has been taken into consideration and as no further comment is made in relation to the requirement of s 149A(2)(a)(ii), it is assumed that the Appellant satisfies the merit principle. [18] The decision demonstrates that the Respondent took steps to identify roles that were substantially the same for which there may be a continuing need, however, no such roles were found. -- 9 of 11 -- 10 [19] The Appellant submits that there is a continuing need for someone to be employed in the role on the basis that there are a range of unfinished and outstanding operational activities that are necessary for DEI's operations and the ongoing viability of EQI. In response to a range of activities outlined by the Appellant, the Respondent has provided a clear explanation of the reasons that such initiatives are not being progressed, including the following: The GO Dashboard is not a priority for DEI and will not be required on an ongoing basis. The Baseline costing model is not a priority. The model requires a survey of schools to be conducted to determine student costs. Due to the impacts of COVID19 on revenue, DEI does not have the funding to conduct the survey. [20] The Respondent submits that all project tasks assigned to the Appellant are now complete and that the establishment of a Financial Analyst position in an ongoing capacity was neither viable nor necessary. Decisions as to which projects will continue and in what order of priority are those of the Respondent's. If the Respondent determines that particular projects will not proceed at this time and therefore the role will not continue, it is reasonable that a decision be made not to convert the employment to permanent. [21] The Appellant submits that a range of her duties have been handed over to other employees and that this demonstrates a continuing need for her role. I accept the Respondent's submission that whilst high level analyst skills were needed to create tools and models to assist in bringing about efficiencies, it was not envisaged that a Financial Analyst would operationally run these reports as part of an ongoing role. Following the development of these tools, they are handed over to other staff to use and run as part of their normal functions. The Appellant was requested to include the contractor in training, who is engaged until 30 June 2021, to ensure business continuity of knowledge and operations in the event the Principal Project Officer is away. This seems to me to be a reasonable management decision. [22] The Respondent's explanation that the inclusion of the Appellant's name in the structure presented to staff indicated workflows and reporting lines at that point in time only rather than an indication of future staffing arrangements is also reasonable. [23] I am satisfied that the Respondent demonstrated that they had considered whether there is a continuing need for the Appellant's role, or a role that is substantially the same. The Appellant is correct in her assertion that the existence of a vacancy is not a prerequisite for conversion, however, it may be considered as one indicia of workplace requirements. [24] Section 149B(6) of the PS Act require that where a decision is made not to offer to convert a person's employment, 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; and (c) for a fixed term temporary employee – how many times the person's employment as a fixed term temporary 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. [25] The reasons for the decision were adequate and outlined the basis upon which the decision had been made, in compliance with s 149B(6)(a). [26] In compliance with s 149B(6)(b), the decision outlined the total period for which the Appellant has been employed, being two years and one month. -- 10 of 11 -- 11 [27] In compliance with s 149B(6)(c) and (d), the decision stated that the Appellant's employment has been extended on six occasions and noted that no decisions had previously been made under this section in relation to the Appellant during the Appellant's period of continuous employment. [28] The decision notice has complied with the notice requirements of s 149B(6) of the PS Act. [29] In consideration of the material before me and the submissions made by the parties, I am satisfied that the Respondent has complied with the obligations under both the Directive and the PS Act. Consequently, the decision made by the Respondent was fair and reasonable. [30] I note the Appellant's submissions included a request that her name not be identified in this decision to protect the privacy of herself and her family. It is usually the case that parties seeking to suppress details in a matter must file an application in existing proceedings in the Commission seeking such an order. Given the limited timeframe in which a decision can be delivered in this matter and the Respondent's consent to the proposal, the requirement to submit an application in existing proceedings is waived, pursuant to s 539(e) of the IR Act, and the Appellant's request is accepted. Order [31] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 11 of 11 --