Breed v State of Queensland (Queensland Health) [2021] QIRC 163

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Breed v State of Queensland (Queensland Health) [2021] QIRC 163 Breed, Christopher Ross (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/32 PROCEEDING: Public Service Appeal - Conversion Decision DELIVERED ON: 14 May 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 requests appointment to higher classification level - where the appellant was not appointed due to genuine operational requirements of the department - whether the decision was fair and reasonable. 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] Mr Breed is employed by the State of Queensland (Queensland Health) as a fixed term Technology Officer (AO3) in the Customer Services Branch of eHealth Queensland. -- 1 of 9 -- 2 Mr Breed's original temporary contract commenced on 13 November 2018 followed by a break in service from 17 June 2019 - 7 July 2019. Between 8 July and present, Mr Breed has operated in two different Technology Officer positions within eHealth, with the current engagement set to end 30 June 2021. [2] In a decision dated 21 December 2020 regarding the outcome of a review of Mr Breed's fixed term temporary employment status, Executive Director Michael Berndt ("the decision maker") gave the following reasons: There is no continuing need for you to perform your current role beyond 30 June 2021 as the substantive occupant of that role is scheduled to return. I have considered whether there is a continuing need for you to be employed in the same or similar role in other Digital Partnership Teams. The role you are currently performing is substantively occupied by another employee. An additional person is not required to undertake that role. Additionally, after considering all the current needs and requirements in eHealth Queensland, I have not been able to identify an ongoing role which is the same, or substantially the same, as the roles you have undertaken with eHealth Queensland. In further consideration of the process, I have reviewed the operating management for this Digital Partnership Team and confirmed that there is no funding available to support an additional role at the Norther Digital Partnership Team nor is there the workload in place to justify an additional role in the team. This team can be supported, when and if required via remote Statewide support and, therefore, there is no requirement to cover any shortfall in skills or workload. I have determined that a lack of ongoing workload and available funding constitute general operational requirements as to why I would not be able to offer you permanent employment. [3] Mr Breed states as the grounds of his appeal I'm aware that there is significant planned FFS [fee for service] project work that will be undertaken by our project team over the next few years. I am also aware that the staff member I am backfilling is a member of that same project team, and likely to continue to be required hence I believe I would still be required in my current role. Another eligible temporary staff member within my team was recently approved for conversion to permanent status. I'm wondering why at that time there was a continuing need to perform a similar role that I perform but in my circumstance there is now no ongoing requirement. Regarding the WSR [workstation replacement] program, it is my understanding that this workload will return in the next financial year, which will then require additional staff. … As part of a Customer Services Branch statewide review we are moving towards what's being called more "generalist technicians", encompassing voice/network communications, server and storage infrastructure in addition to the more specific scope of support that is "End User Computing". [4] Attached to Mr Breed's Appeal Notice is a form titled 'Conversion of Temporary Employee to Permanent Status'. This form demonstrates that Mr Breed's manager, Gary Jui, recommended the conversion from temporary to permanent status. Under the 'Delegate Approval' section, Mr Berndt did not approve the conversion. Relevant sections of the Act and Directive [5] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 09/20 Fixed Term Temporary Employment ("the Directive"). -- 2 of 9 -- 3 [6] 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 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 -- 3 of 9 -- 4 (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 [7] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 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: -- 4 of 9 -- 5 (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). 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? [8] 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. Grounds for Appeal/Submissions of the Appellant [9] With regard to the delegate's decision that there is no ongoing need for him to perform his current role after 30 June 2021, Mr Breed submits the following: • Since joining the Townsville Digital Partnership Team (DPT) in November 2018 I have been in both the End User Computing team and the Workstation Replacement Team and meet the criteria outlined in section 149A of the Public Service Act 2008; • as an AO3 Technology Officer within the Townsville DPT we are required to undertake different positions either backfilling a substantive officer on secondment or as part of funded operations of work; • I believe there was a review undertaken across eHealth Queensland's Customer Services Branch whereby a recommendation was made to cross-skill DPT technical staff so we would become more 'generalist' technicians rather than specialists. This recommendation enables technical staff to undertake other roles within the DPT as workload demands and resource availability dictates; and -- 5 of 9 -- 6 • from what I understand there will be a significant volume of work within the Northern DPT as workload demands and resource availability dictates. [10] Mr Breed also submits that he is currently backfilling a substantive employee who has been on secondment to the Northern DPT Project Team for a number of years. Mr Breed says that that work requires additional DPT technical resources in order to replace not only the targeted workstations for next financial year but also to replace the backlog of workstations that didn't get replaced this financial year and that there are hundreds of workstations requiring replacement. [11] Mr Breed attaches the Queensland Health Responsible Workforce Management Approach, January 2021 which he says outlines the following key principles for frontline positions (including his position): a. Maximising the existing Queensland Health workforce by filling vacancies using surplus pools and conversion opportunities (e.g. temporary to permanent and casual to permanent conversions, higher duties conversions). b. Employment security and prioritising the employment of existing Queensland Health and Queensland public sector employees and limiting external recruitment. [12] In response to Mr Berndt's decision stating that 'there is no funding available to support an additional role within the Norther Digital Partnership Team…' Mr Breed says that it is his understanding that there is no requirement for additional funding as the substantive officer whose position he is backfilling, is funded by the projects that they deliver. [13] Mr Breed believes that the substantive officer will be required to continue in his role for the foreseeable future which subsequently requires him to continue in his role. [14] Further, Mr Breed says that the increasing operational ICT (Information and Communication Technologies) workloads (normal ICT support to frontline clinical services, COVID testing and vaccination clinics and the workstation replacement program recommencing) which all require additional technical support mean that there is a need for him to be converted from temporary to permanent. Submissions of the Respondent [15] The Respondent reiterates the decision letter stating that Mr Breed is employed to backfill until 30 June 2021. At this time there is no approval or expected need for the substantive occupant to continue to perform the fixed term temporary higher duties position beyond 30 June 2021. When the substantive occupant returns to their substantive position, Mr Breed will no longer be required to backfill the position. [16] Part 5, Chapter 5 of the PS Act applies to the present matter. Section 148 allows the employment of a fixed term temporary employee to 'perform work of a type ordinarily performed by a public service officer…if employment of a person on tenure is not viable or appropriate…'. Section 148(2)(a) states that the employment of a person on tenure may not be viable or appropriate if the employment is for a number of stated purposes, including where the employment is to fill a temporary vacancy arising because a person is absent for a known period. -- 6 of 9 -- 7 [17] The Respondent says that at the time of making the decision (and writing the submissions for this matter), Mr Breed's employment is planned to cease on 30 June 2021, when the substantive position holder is expected to return. At that time, there will be no need for Mr Breed to continue to be employed. For this reason, the employment of Mr Breed on tenure is not viable or appropriate as the role is ordinarily performed by a public service officer currently on secondment. [18] The decision letter Mr Berndt wrote to Mr Breed:1 • Provided an analysis of the Appellant's employment history with the Respondent; • identified gaps in service; • considered whether or not there was an ongoing need for the Appellant to be employed in the Appellant's role, or a role which is substantially the same as the Appellant's role; • made findings of fact in relation to the above; • advised the Appellant that for reasons stated in the letter and generally reproduced above, there was not continuing need for the Appellant to be employed in the role, or a role which is substantially the same; and • advised the Appellant that in addition to the above, genuine operational reasons prevent the Appellant being employed outside of the role performed by the Appellant (i.e. lack of ongoing work and budget to justify an additional employee over and above existing arrangements). [19] In response to Mr Breed's submissions that there is significant planned Fee for Service project work to be undertaken over the next few year, the Respondent says: • It has taken into account the actual needs of the Respondent as known at the time of undertaking the review and again at the time of writing submissions; • there is currently no requirement for the Appellant to continue to be employed beyond 30 June 2021; • there is no certainty or guarantee about when or if an increase in work will arise; and • as a matter of practicality, statements made in Parliament about programs of work often take many years before becoming operational and requiring support. [20] In response to Mr Breed's submissions that another staff member in his team had a successful employment review outcome, the Respondent says that the outcome of a different employee's review cannot be used to infer that this review should have been successful. Each review is undertaken in relation to the specific circumstances of the individual employee and associated role. [21] In response to Mr Breed's submissions about the WSR, the Respondent says that this program has been suspended and is not currently in place. The Respondent is not able to confidently say when the program will recommence and when it does, what additional (if any) labour will be required to complete the program. If the program recommences, 1 Respondent Submissions filed on 5 February 2021 -- 7 of 9 -- 8 the allocation of government funding and geographic region in Queensland varies from year to year. Even if the program recommences, it may be that funding is provided for additional resources and fixed term temporary employees for the WSR program in other parts of the state, not necessarily where the Appellant is currently employed. [22] With regard to Mr Breed's submission regarding a state-wide review of the Customer Services Branch, the Respondent says that Mr Breed should be aware that the review of the Customer Services Branch was paused in early 2020 and currently not expected to proceed in the near future. In any event, if and when the review of the Customer Services Branch resumes, role modification is unlikely to result in additional labour needs and does not impact on the review of employment status undertaken by the Respondent in December 2020. Consideration of submissions [23] The decision letter dated 21 December 2020 states that genuine operational requirements preclude Mr Breed from being converted to permanent. In determining that there is no continuing need for Mr Breed to perform his role, Mr Berndt states that Mr Breed is backfilling a staff member relieving in higher duties. [24] Further to this, the letter states that there is no workload in place to justify an additional role in the team. Mr Berndt says in the letter that he has not been able to identify an ongoing role that is the same or substantially the same as roles Mr Breed has undertaken with eHealth Queensland. [25] It is a requirement that the decision must set out the findings on material questions of fact, and refer to the evidence or other material on which those findings were based.2 As outlined in the Respondent's submissions above and on the basis of my review of the letter itself, the decision communicated to Mr Breed provided detailed information about the things considered by Mr Berndt and a comprehensive set of reasons for the decision. [26] The decision letter also addressed the required information regarding Mr Breed's employment history and merit for the role.3 [27] I note Mr Breed's submissions about what he expects to be a growing workload and ongoing projects or programs to be undertaken. However, I also note the advice of the Respondent that it has no certainty or guarantee about an increase in work to be done. Further to this, the Respondent says that if projects do recommence, it is unknown what funding will be available and other resourcing decisions including where staff undertaking work will be located and how many staff may be required to do the work. I accept that at the time of the review, it was reasonable for the Respondent to determine that upon the return to the position of the substantive employee, that there is no continuing need for Mr Breed to be employed. I also note that the decision maker attempted to identify ongoing roles that are the same or substantially the same and was unable to identify such a role. 2 Directive cl 8.4, Acts Interpretation Act 1954 s27B. 3 PS Act, s 149B(6). -- 8 of 9 -- 9 [28] The expected return of a substantive employee who is elsewhere acting in higher duties is a scenario contemplated by the legislation as a reason that it may not be viable or appropriate to offer Mr Breed permanent employment. I accept that this is a genuine operational reason not to convert Mr Breed's employment. [29] I note Mr Breed's submission that a colleague was recently converted to permanent as a result of a review of their employment status. The Respondent says that each review is undertaken based on the specific circumstances of the individual employee and associated role. In this appeal, I am required to consider the decision made pertaining to Mr Breed's employment. The submissions and decision letter before me are specific to Mr Breed and it is on the basis of these submissions that I have made my decision. [30] My role is to decide whether the decision appealed against was fair and reasonable. Having considered the notice of appeal, the decision letter and all submissions, I have determined that it was. [31] The decision appealed against is confirmed. -- 9 of 9 --