Edwards v State of Queensland (Department of Health) [2021] QIRC 160

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Edwards v State of Queensland (Department of Health) [2021] QIRC 160 Edwards, Penny (Appellant) v State of Queensland (Department of Health) (Respondent) CASE NO: PSA/2021/81 PROCEEDING: Public Service Appeal - Conversion Decision DELIVERED ON: 13 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 is employed on a fixed term temporary contract - where employment reviewed pursuant to s 149B of the Public service Act 2008 - where the decision was not to convert - whether the decision was fair and reasonable. Public Service Act 2008 Directive 08/17 – Temporary Employment Reasons for Decision Appeal Details [1] Ms Edwards is employed by the State of Queensland (Queensland Health) ("the Respondent") at Cairns and Hinterland Hospital and Health Service (CHHHS). Following a decision of the Commission released on 18 December 2020 ordering that a fresh review be conducted pursuant to the provisions of the pre-amendment Public Service Act 2008 (Qld)1 (the PS Act) and the now superseded Public Service Commission Directive 08/17 – Temporary Employment (the Directive) a review was undertaken. 1 The outcome of the Commission directed that the review be undertaken based on the legislation as it stood prior to the commencement of the Public Service and Other Legislation Amendment Act 2020 on 14 September -- 1 of 8 -- 2 [2] In a decision made 1 February 2021 (however I believe incorrectly dated 2 January 2020) regarding the outcome of a review of Ms Edwards' fixed term temporary employment status, Executive Director, Medical Services, Donald Mackie ("the decision maker") gave the following reasons: Conversion review decision I have conducted a review of your employment status and have determined that your employment will remain as fixed term temporary at this time. You will continue in the role of Data Project Manager – Sexual Health with Tropical Public Health Services until 30 June 2021 when the funding for your role is reviewed. Considerations when making the decision I have considered the requirements of the Public Service Act 2008 (PS Act), the temporary employment directive 08/17 and your employment history. There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same, and whether the role is ongoing AND you satisfy the merit principle. I have addressed these two aspects below. Merit Thank you for your performance in the role since 2 July 2018. You have demonstrated over this time that you satisfy the merit requirements for the role. Continuing need The decision not to permanently appoint you is based on continuing need for you to be employed in the role, and whether the role is likely to be ongoing. Specifically, Clause 7 of Directive 08/17 states: 7.2 Circumstances that indicate an appointment should be on a temporary rather than permanent basis include, but are not limited to: • Where funding for a project or program after a specific date is uncertain; As you are aware, your role as Data Project Manager – Sexual Health with Tropical Public Health Services is dependent on funding for the Sexually Transmitted Infections (STI) Action Plan which sought to address the issue of increasing rates of syphilis infections and other STI infections in the Aboriginal and Torres Strait Islander communities. This funding was provided to four North Queensland Hospital and Health Services for a five year period and ends in June 2021. To date, there has been no certainty that funding will be extended. In response to the ending of the present funding, and as outlined in your letter dated 13 October 2020, a high-level concept brief was submitted in September 2020 by Better Health North Queensland; a group representing the Chief Executives of the HHSs involved. The brief is entitled "A North Queensland response to managing the risk of Sexually Transmissible Infections and Blood Borne Viruses amongst Aboriginal and Torres Strait Islander peoples. The aim of the brief was to provide a case for recurrent funding at the current levels for the STI Action Plan and to support a codesign process to determine a revised model to be implemented from July 2022. It was proposed that any future funding be managed through the BHNQ who would act as commissioners and that any future funding be distributed for 12 months to the same four HHSs but that allocation could then change to other organisations in line with the redesigned model. If further funding is procured, it will be for a fixed-term temporary period of up to 12 months. Further funding for the role may be allocatee to another organisation to deliver the plan. The functions performed by your role in that case would not sit within the TPHA or the CHHHS to deliver. 2020. This amendment caused for Public Service Appeals to now be dealt with under the Industrial Relations Act 2016. -- 2 of 8 -- 3 Having regard to the nature of funding for the role, and possible impacts on the delivery of services, there is no continuing need for you to be employed in the role as the role is not likely to be ongoing. You are not being converted to permanent employment and will continue as a fixed term temporary employee at this time. [3] For the reasons that follow, I have decided that the decision to not convert Ms Edwards from temporary to permanent is upheld and the appeal is dismissed. The PS Act (pre-amendment) – Review of status of temporary employees [4] Section 149 of the PS Act relevantly provides 149 Review of status of temporary employee (1) This section applies – (a) at the end of 2 years after a temporary employee has been continuously employed as a temporary employee in a department; and (b) at the end of each 1 year period, after the period mentioned in paragraph (a), that a temporary employee has been continuously employed as a temporary employee in the department. (2) The department's chief executive must, within the required period, decide whether the person's employment in the department is to – (a) continue as a temporary employee according to the terms of the existing employment; or (b) be as a general employee on tenure or a public service officer. (3) In making the decision, the chief executive must – (a) consider any criteria for the decision fixed under – (i) a directive by the commission chief executive; and (ii) an industrial instrument; and (b) if an industrial instrument provides for the way the decision must be made – comply with the industrial instrument. The Directive (now superseded) [5] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 9. Review of the status of a temporary employee 9.1 A temporary employee can be converted to permanent following a review of their status as a temporary employee by the agency. 9.2 An agency must review the status of a temporary employee's employment (including an entry level temporary employee) where the employee has been continuously employed as a temporary employee for two years in the same role in an agency. 9.3 The requirement to review an employee's temporary status also applies where a temporary employee has performed a cumulative total of two years' service in the -- 3 of 8 -- 4 same role, provided that the breaks in employment do not exceed a total of three months in the previous two year period. 9.4 Where an employee remains temporary, a subsequent review must be conducted after each additional year of continuous service in the same role in accordance with section 149 of the PS Act and this directive. An agency can review earlier than this date if the agency considers it appropriate. … 9.6 When reviewing the status of a temporary employee's employment and deciding whether their employment is to be converted to permanent, the chief executive of an agency must consider the following criteria: (a) Whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same, and the role is likely to be ongoing; and (b) the merit of the temporary employee for the role by applying the merit criteria in section 28 of the Act. 9.7 A temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent. Submissions of the Appellant [6] Ms Edwards points out that in deciding the previous decision not to convert her employment was not fair or reasonable, the Commissioner stated a preliminary view that the role, given its nature and context, is likely to be ongoing and that there may have been a number of factors, in addition to the funding status of the role, which CHHHS did not consider when making the decision. [7] With regard to this appeal, Ms Edwards says that her reasons for appeal are: a) Dr Mackie has not provided any evidence that there will not be further funding for this role post June 2021; and b) The assertion that there is no continuing need for her to be employed in the role because there is no guaranteed funding is incorrect. [8] Ms Edwards attaches letters from Medical Officers and a Manager at the Tropical Public Health Service (TPHS) which she says support the ongoing need for her role and that there will be an ongoing requirement for data management and analysis in the area. Ms Edwards also attaches the formal registering by the Director of Cairns Public Health Service of the absence of data support for the monitoring and management of the North Queensland syphilis outbreak as a high and likely workforce risk.2 [9] Ms Edwards says that the National Multi-Jurisdictional Syphilis Working Group (MJSO) has acknowledged that the syphilis outbreak in First Nations people across Australia is unlikely to be controlled before 2025. Given the diversion of significant public health and clinical health service resources to the ongoing response to the COVID-19 pandemic, the timeline for the control of the syphilis outbreak is likely to extend beyond 2025. [10] Ms Edwards submits that without this STI Data Project Manager position, public and clinical health services across North Queensland will not have the capacity to provide the 2 Attached to the notice of appeal filed 22 February 2021. -- 4 of 8 -- 5 data and epidemiological support required for effective public health responses to current and emerging outbreaks. [11] Ms Edwards says that a 12-month extension for funding to the STI Action Plan has been granted to support the development of a long term co-designed strategy for the management of STIs is developed in partnership with Community Controlled Aboriginal and Torres Strait Islander and other Health Services. [12] Ms Edwards also says that a case for recurrent Commonwealth funding at current levels to be implemented from July 2022 has also been submitted and whilst it is anticipated that funding after July 2022 would be allocated both to Queensland Health and other non- government health services, due to the highly specialised nature of the data and epidemiological support required to monitor the syphilis outbreak and the prevalence of other STIs in north Queensland, this work would continue to be undertaken by TPHS. [13] Ms Edwards asserts that based on her submissions and the statements of senior medical and epidemiological staff in the TPHS, there is clear evidence of the need for ongoing support for STI surveillance, data management and outbreak reporting to evaluate and target the response to the infectious syphilis outbreak in North Queensland. [14] Ms Edwards says that as per the decision of the Commission in her previous appeal, guaranteed funding for the position is not a factor that should be looked at in isolation when determining whether this role is likely to be ongoing, and that just because a position is externally funded does not mean that the State would not fund the role if the external funding was to cease. [15] Following submission of her appeal notice and reasons for appeal, Ms Edwards provided the Commission with a memorandum and emails dated 23 and 24 February 2021 indicating that funding to support the Sexually Transmitted Infections Action Plan has been provided until 2021-22. I note that these materials post-date the decision I am being asked to review. Submissions of the Respondent [16] The Respondent confirms that the fresh review of the decision ordered by the Commission was undertaken pursuant to the provisions of the Act and the Directive that were in place at the time of the first appeal. [17] The Respondent does not dispute that Ms Edwards met the merit criteria in s 28 of the PS Act at the time of the decision of 1 February 2021. Clause 9.6(a) of the Directive [18] At the time of making the decision: a) Ms Edwards' role was dependent on funding which was scheduled to end on 30 June 2021; and -- 5 of 8 -- 6 b) whilst a "High Level Concept Brief"3 had been submitted so as to provide a case for recurrent funding at the current levels, the immediate proposal of that brief was simply for funding of a revised model of the STI Action Plan. [19] The Respondent says that this meant that at the time of making the decision: a) there was uncertainty with respect to the ongoing funding which Ms Edward's role was dependent on; and b) even if the proposal in the High Level Concept Brief was to be accepted: i) the funding was only going to be granted for a period of 12 months; and ii) the current STI Action Plan would be revised meaning that: (1) the funding, including the level of funding and who it would be allocated to, was uncertain; and (2) the nature of the current model would be reviewed in full including the ongoing need for positions currently incorporated into the present model. [20] The Respondent accepts that at the time of making the decision there was an immediate need for Ms Edwards to continue in her role until 30 June 2021, but that when considering the above at [18] and [19]. There was not a continuing need for Ms Edwards to be employed in her role or a role which is substantially the same, nor was the role likely to be ongoing pursuant to cl 9.6(a) of the Directive. [21] Since making the decision, the Deputy Director-General has approved funding of the STI Action Plan on the current levels for 12 months non-recurrently whilst the co-design process to determine the revised STI Action Plan is carried out. [22] The Respondent also says that the High Level Concept Brief says that the co-design process will involve discussions with various stakeholders with the expected co-design process to be undertaken by August 2021. [23] The Respondent says that even if the revised model of the STI Action Plan included the need for data management in line with Ms Edwards' role (which cannot be definitively determined until after the co-design process), it is presently unclear whether that role would be funded and positioned with the Respondent. [24] Further, the Respondent says that the decision is consistent with cl 7 of the Directive which states that circumstances that indicate an appointment should be temporary rather than permanent include where funding for a project or program after a specific date remains uncertain. Genuine operational reasons not to convert 3 Attached to the submissions of the Respondent filed 9 March 2021. -- 6 of 8 -- 7 [25] Clause 9.7 of the Directive states that a temporary employee should have their employment converted to permanent unless there are genuine operational reasons not to do so or the temporary employee does not consent. [26] While the Respondent reiterates that Ms Edwards did not meet the criteria set out at cl 9.6(a) of the Directive, it submits that at the time of making the decision there were genuine operational reasons not to convert Ms Edwards' employment status to permanent. [27] The Respondent submits that at the time of making the decision, funding had not been granted and even if it was granted, it was only going to result in a further 12 months of funding whilst a revised model of the STI Action Plan was developed. [28] If the funding ceases or is no longer positioned with the Health Service, this would most likely result in Ms Edwards being placed as an employee requiring placement which the Respondent says has obvious business and workforce consequences for it. [29] With reference to the letters of support provided by Ms Edwards mentioned above at [8], the Respondent says that the letters do not override the submissions of the Health Service and should therefore be given little weight by the Commission when deciding the Appeal. Ms Edwards' submissions in reply [30] Ms Edwards made submissions in reply but they largely reflected the submissions accompanying her appeal notice. Consideration of submissions [31] At the outset, I note the Respondent's submissions that Ms Edwards was employed in a role where the project/funding had a known end date and that according to the Directive, this constitutes a situation where temporary employment may be appropriate. [32] It appears that there is no dispute that the work that Ms Edwards is undertaking forms an essential part of the program of work with regard to STIs being undertaken by the TPHS and that at the time of the decision both her position and the program were going to continue until June 2021. To this extent, there was a continuing need for Ms Edwards to perform the role or a role which was substantially the same. [33] Ms Edwards is right to point out that guaranteed funding for the position should not be considered in isolation as to whether the role is likely to be ongoing. However, at the time the decision was made, the High Level Concept Brief had not been accepted and the current STI Action Plan was to be revised, meaning that it was unclear what the level of funding would be or where it would be allocated. The current model was being reviewed in full, including the need for ongoing positions represented in the present model. For these reasons I believe it was fair and reasonable for the decision maker to determine that the role was not likely to be ongoing. [34] In such a circumstance, Ms Edwards did not meet the criteria for conversion and genuine operational reasons did not need to be considered. However, submissions were made on this point and I have considered them. While the letters of support Ms Edwards provided demonstrate that the work she is doing is an important aspect of the program, they do not -- 7 of 8 -- 8 provide evidence that the role will be ongoing in its current form. The Department submitted that if the funding for the program was to cease or be allocated in a way that meant that Ms Edwards role was no longer placed with the Health Service, Ms Edwards would become an employee requiring placement. This represents a genuine operational reason to not convert an employee from temporary to permanent. [35] The decision of 1 February 2021 not to convert Ms Edwards' employment was fair and reasonable. [36] The decision appealed against is confirmed. -- 8 of 8 --