Employee B v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 143

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Employee B v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 143 PARTIES: Employee B (Appellant) v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (Respondent) CASE NO.: PSA/2021/7 PROCEEDING: Public Service Appeal - Conversion of fixed term temporary employment DELIVERED ON: 29 April 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 – where the appellant was reviewed under s 149B of the Public Service Act 2008 – where decision is deemed under s 149B(7) – consideration of 'genuine operational requirement' LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B, 562C and 564 Public Service Act 2008 (Qld), ss 27, 149, 149A and 149B Public Service and Other Legislation Amendment Act 2020 (Qld) Directive 09/20 Fixed term temporary employment, cl 8 -- 1 of 13 -- 2 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Grant v State of Queensland (Queensland Health) [2020] QIRC 228 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 King-Koi v State of Queensland (Department of Education) [2020] QIRC 209 Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Readman v State of Queensland (Queensland Police Service) [2020] QIRC 222 Reasons for decision Introduction [1] Employee B (the Appellant), is currently employed by the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (the Respondent) in the position of PO3, Caseworker, Inala New Directions. [2] By appeal notice filed on 5 January 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) (the PS Act), appealed against a deemed1 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. 1 PS Act s 149B(7). -- 2 of 13 -- 3 [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 deemed decision to deny conversion of the Appellant's employment to permanent was fair and reasonable in 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: (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: • she has been employed on fixed term contracts continuously for more than two years; • she meets the merit and performance requirements; • the project will continue for another three years; and • there is no one substantive for the Caseworker position. 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 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). -- 3 of 13 -- 4 (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- (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 -- 4 of 13 -- 5 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. 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. Respondent's submissions [13] The Respondent filed submissions opposing the appeal, summarised below: • the Appellant commenced temporary employment within the Respondent as a PO4, Team Leader on 10 September 2018. This engagement ended on 27 October 2019, having been extended three times between 10 September 2018 and 27 October 2019; -- 5 of 13 -- 6 • from 28 October 2019, the Appellant was temporarily employed as a PO3 Caseworker, Inala New Directions, with an end date of 31 December 2019. This temporary contract has been extended seven times since 28 October 2019, with the current end date being 30 June 2021; • the Caseworker role arose as part of the South Brisbane and Logan Cross Agency Senior Leadership group initiative (the Initiative). The Initiative required the Respondent, along with other participating departments, to contribute a full-time equivalent employee. As such, there is only one Caseworker, Inala New Directions role within the Respondent; • the intended duration of the Initiative and ongoing resourcing arrangement is unknown and will be subject to a review, which was initially planned for 2020 but could not be conducted at that time. The review will now occur during 2021. There is no certainty that the position of Caseworker will continue for another three years as submitted by the Appellant in her Appeal; • on 15 October 2020, the Appellant sent an email to Mr Craig Jenkins, Regional Director, Moreton Region: (a) requesting a review be undertaken regarding conversion of the Appellant's employment pursuant to s 149 of the PS Act; and (b) notifying the Respondent of the requirement to commence the review under s 149B of the PS Act and that she be converted to permanent employment; • the Respondent did not make a decision with respect to the Appellant's s 149 request by 12 November 2020, which was 28 days after it received the request. Therefore, pursuant to s 149A(5), it was deemed the decision was made not to offer to convert her employment. There is no right of appeal in relation to a decision not to convert in response to a s 149 application and the decision under s 149 is not the subject of the current Appeal; • the Respondent submits that no decision was made in relation to the Appellant's eligibility under s 149B of the PS Act within the required period, and therefore pursuant to s 149B(7), it was deemed the decision was made not to offer to convert the Appellant's employment; • the Respondent submits the Commission ought to confirm the decision appealed against on the basis that it is not viable or appropriate to convert the Appellant's employment from temporary to permanent having regard to the genuine operational requirements of the Respondent; • the Respondent concedes that the Appellant is eligible for appointment having regard to the merit principle, and that at this time there is a continuing need for the Appellant to be employed in the role, but submits conversion is not viable or appropriate having regard to the genuine operational requirements of the Respondent; -- 6 of 13 -- 7 • from 25 November 2019 onwards, funding for the Appellant's temporary position has been offset by a permanent PO3, Court Coordinator position based at the Brisbane North Youth Justice Service Centre, which is substantively vacant. This funding arrangement cannot continue indefinitely and is subject to change pending the outcome of the review of the Initiative. If it is determined on review that the Initiative and resourcing arrangement will continue indefinitely, the Respondent would need to create a permanent Caseworker, Inala New Directions position with an appropriate funding arrangement. At the moment, there is no ongoing funding for the Caseworker position; • the Respondent relies on the case of Readman v State of Queensland (Queensland Police Service) (Readman),6 where the decision appealed against was one denying a request made by the appellant pursuant to s 149C(3) of the PS Act that she be appointed to a higher classification level. The decision maker in Readman denied this request citing genuine operational requirements of the agency, as the structure of the unit in which the appellant was employed was subject to an ongoing review. • the Respondent submits that while Readman concerned s 149C of the PS Act, it has been accepted that similar considerations apply in the application of s 149A(3) of the PS Act;7 • the Respondent submits that the review of the Initiative will consider the duration of the Initiative and ongoing resourcing requirements, including the requirement for the role currently occupied by the Appellant. The Respondent submits these considerations are reasonably part of any consideration of genuine operational requirements; • the Respondent submits that the outcome of the review of the Initiative is only one part of the consideration of whether there is a continuing need for the person to be employed in the role. There must also be funding available. Even if the review identifies an ongoing need for the position, there is no guarantee the Respondent would identify or secure funding for the position on an ongoing basis; • the Respondent has also considered whether there is a continuing need for someone to be employed in a role substantially the same as the Appellant's current role. While the permanent PO3, Court Coordinator role being used to offset the Appellant's engagement is substantively vacant, the Respondent submits this role is not substantially the same as the role currently performed by the Appellant on the basis that the two roles have materially different duties and responsibilities; • at present, there is no need for the Respondent to add to the current establishment of permanent Caseworkers. In addition, a number of Caseworkers (at the PO2 and PO3 levels) are currently engaged by the Respondent in the Moreton Region on a temporary basis. As such, when permanent vacancies arise, the Respondent will have to consider the priority of a number of temporary employees eligible for conversion to permanent employment. These matters concern the effective, 6 [2020] QIRC 222. 7 citing King-Koi v State of Queensland (Department of Education) [2020] QIRC 209 [23]. -- 7 of 13 -- 8 efficient and appropriate management of the public resources of the Respondent and the planning of human resources; and • the Respondent submits it would not be fair and reasonable to convert the Appellant to permanent employment in the current Caseworker role with the Initiative. This is because the ongoing requirement for the position to which the Appellant is currently appointed on a temporary basis is unclear pending the review of the Initiative and the associated ongoing resourcing requirements. Furthermore, the operational requirements of the Respondent do not support the permanent employment of the Appellant at this time. [14] The Respondent further submits that the Commission should decline to hear the appeal pursuant to s 564 of the IR Act as the appeal notice was filed out of time, in that: • the decision was deemed to have been made on the expiry of the 28 day review period from 14 September 2020 (i.e. on 12 October 2020). Therefore, an appeal against the decision was required to be filed by 2 November 2020. However, the appeal notice was filed on 5 January 2021, which is 64 days out of time; • even if the review period commenced on the date the Appellant emailed Mr Jenkins notifying the Respondent of the requirement to commence the review under s 149B of the PS Act and that she would like to be converted to permanent employment (i.e. 15 October 2020), a decision in relation to the Appellant's employment was required to be made by 12 November 2020; • if the deemed date of the decision is 12 November 2020, the appeal notice was required to be filed by 3 December 2020, which is 33 days out of time; and • the Appellant's delay of 64 days (or alternatively 33 days) is significant, and the Appellant has not provided acceptable and compelling reasons for the delay.8 Appellant's submissions in reply [15] The Appellant filed submissions in response to the Respondent's submissions, which have been summarised below: • whilst the Appellant acknowledges that there will be a review of the current project, the Appellant has now been extended until 30 June 2021. The Appellant has communicated with the primary project partner, the Queensland Police Force representative, Chief Inspector Brian Swan, who has confirmed that 'we are still full steam ahead'; • the Appellant's current position is offset by a permanent PO3, Court Coordinator position based at the Brisbane North Youth Justice Service Centre; • the Appellant submits that given her extensive experience within the Respondent, holding positions at PO3 and above, the Appellant has all the necessary skills to meet the requirements of the project position or the permanent Court Coordinator 8 citing Grant v State of Queensland (Queensland Health) [2020] QIRC 228. -- 8 of 13 -- 9 role. The Appellant submits that the Respondent has not taken into consideration of her qualifications and expertise in this regard; and • the Explanatory Notes for the Public Service and Other Legislation Amendment Bill 2020 (Qld) evince a clear intention that the only matters to be considered are the genuine operational requirements of the Respondent. The Explanatory Notes state that '[a] primary objective of the Bill is to drive more effective and consistent application of the existing commitment to maximise employment security…'. [16] In relation to the out of time submissions of the Respondent, the Appellant made the following submissions: • the Appellant acknowledges that the appeal was filed on 5 January 2021, which was out of time; • the Appellant submits that she held good faith that the Respondent would meet the required timeline for response to the Appellant's request for review for permanency; • the Appellant requested a review on the 15 October 2020 and became aware that the Respondent had not made a decision within the required timeframe of 28 days upon seeking advice from her union. The Appellant also became aware that she was out of time to lodge an appeal; • on 22 December 2020, the Appellant's union contacted Ms Courtney Jeffries, Principal Advisor, Industrial Relations, Safety and Human Resource, People and Culture, for advice. The Appellant submits that Ms Jeffries' advice with respect to the timeline for decision making was incorrect; • the Appellant subsequently made a submission in good faith, given the transitional arrangements; and • the Appellant submits for the submissions made, despite its status of being out of time and the circumstances leading up to it, be considered on its merits. Consideration [17] The first issue to be considered with respect to this appeal is whether it was filed within the 21-day time period pursuant to s 564 of the IR Act. A member of the Commission may allow for an appeal to be started within a longer period.9 [18] In an email dated 15 October 2020, the Appellant requested a review be undertaken regarding conversion of her employment pursuant to s 149 of the PS Act and notified the Respondent of the requirement to commence the review under s 149B of the PS Act. [19] The Respondent did not make a decision with respect to the Appellant's s 149 request by 12 November 2020, which was 28 days after it received the request. Pursuant to s 149A(5) of the PS Act, it was deemed the decision was made not to offer to convert the 9 IR Act s 564(2). -- 9 of 13 -- 10 Appellant's employment. There is no right of appeal under s 194(1)(e) of the PS Act in relation to a decision not to convert employment in response to a s 149 application. [20] The Appellant was entitled to have her employment reviewed pursuant to s 149B of the PS Act on the basis that she had been continuously employed in the same department for two years or more. A decision was not made in relation to the Appellant's eligibility under s 149B within the required period, and pursuant to s 149B(7), it was deemed the decision was made not to offer to convert the Appellant's employment. This deemed decision is the subject of this appeal. [21] The Respondent submits that the appeal against either the deemed decision in response to the s 149 review or the s 149B review was filed outside of the statutory timeframe of 21 days. [22] The Appellant's entitlement to the decision pursuant to s 149B accrued upon the commencement of the Public Service and Other Legislation Amendment Act 2020 (Qld) on 14 September 2020.10 A decision was required to be made by 12 October 2020, with an appeal against this deemed decision required to be filed by 2 November 2020. The Appellant's notice of appeal was filed on 5 January 2021, 64 days out of time. [23] In exercising discretion to extend time to lodge an application or appeal, there are a number of principles that have been used for guidance. Those principles commonly include the applicant's explanation for the delay, actions taken by the applicant, and any prejudice to the respondent in defending the proceedings occasioned by the delay.11 [24] The Appellant's delay in filing this appeal of 64 days is significant, however I accept that the Appellant has provided a reasonable explanation for the delay. The Appellant followed up on the outcome with an email to her Union to query the progress of the review, who in turn contacted Ms Jeffries. Ms Jeffries responded to this inquiry with an email stating that the delegate had until 12 January 2021 to make a determination, and that the Appellant can expect an outcome from the delegate by this date. This information was erroneous and misled the Appellant as to the timeline for both the decision and appeal. The Respondent has not identified any prejudice it will suffer if this appeal is heard and consequently, after considering the fairness of the matter, I will allow the appeal to be proceed. Clause 8 of the Directive [25] Clause 8.1 of the Direction and section 149B(5)(b) of the PS Act provide that the Respondent must have regard to the reasons for each decision previously made, or taken to have been made, under s 149B of the PS Act in relation to the person during the person's continuous period at the higher classification level. 10 The Appellant was not entitled to a review prior to this amendment as she had not performed in the same role for a continuous two year period, as required by the PS Act prior to the amendment. As the relevant date is the end of two years of continuous employment which occurred before the commencement of the amended PS Act, the transitional provisions do not apply in this matter. 11 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, 348 (Wilcox J) and Brodie-Hanns v MTV Publishing Limited (1995) 67 IR 298, 299-300 (Marshall J). -- 10 of 13 -- 11 [26] On the basis that s 149B of the PS Act only commenced operation on 14 September 2020, no previous decisions were made under this section of the PS Act, hence, no reference to previous reasons is required. [27] There is no dispute that the Appellant satisfies the requirement of cl 8.1 of the Directive and s 27 of the PS Act with regard to merit. [28] Clause 8.1 of the Directive outlines the criteria to be considered by the decision maker, including whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same. [29] I am satisfied that that Respondent has considered this criteria and determined that there is a continuing need for the Appellant to be employed in the role until 30 June 2021, however appointment on tenure is not viable or appropriate due to the genuine operational requirements of the Department. [30] The Respondent has also complied with the requirement that substantially similar roles had been considered and confirmed that there is no continuing need for additional caseworkers at either the PO2 or PO3 levels. The Respondent specifically considered the Court Coordinator (PO3) role, however, determined that the two roles have materially different duties and responsibilities and so could not be considered substantially similar. Genuine operational requirements [31] As outlined by Deputy President Merrell in Morison v State of Queensland (Department of Child Safety, Youth and Women),12 the phrase '… genuine operational requirements of the department', construed in context, would at least include consideration of the following: … 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.'13 [32] In considering the genuine operational requirements of the Department, it was relevant for the Respondent to consider the review of the Initiative as part of having regard to 'the effective, efficient and appropriate management of the public resources of the department'. [33] As submitted by the Respondent, the review of the Initiative in 2021 will consider the duration of the Initiative and ongoing resourcing requirements, including the requirement for the role currently occupied by the Appellant. These considerations are reasonably part of any consideration of genuine operational requirements. Compliance with requirements of s 149B(6) of the PS Act [34] In circumstances where a decision is made under a review pursuant to s 149B of the PS Act, the Respondent is required to comply with s 149B(6), which provides: 12 [2020] QIRC 203. 13 Ibid [40]. -- 11 of 13 -- 12 (6) If the department’s chief executive decides to refuse the request, the chief executive must give the employee a notice stating— (a) reasons for the decision; and (b) the total continuous period for which the person has been acting at the higher classification level in the department; and (c) how many times the person’s engagement at the higher classification level has been extended; and (d) each decision previously made, or taken to have been made, under this section in relation to the person during the person’s continuous period of employment at the higher classification level. [35] However, s 149B(7) of the PS Act and clause 8.5 of the Directive contemplate circumstances in which a decision has not been made with respect to a conversion. In these circumstances, the employment continues according to the terms of the existing arrangement. [36] Section 149B(7) of the PS Act provides: 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. [37] Clause 8.5 of the Directive provides: 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). [38] A 'decision' is a specific action associated with subsection (5) that invokes the provisions under s 149B(6) of the PS Act. The requirement for a notice pursuant to subsection (6) applies only when a decision has been made to refuse the request for conversion. The specific requirements that are mandatory following a decision do not apply to subsection (7) as the 'decision' has not been made. [39] In consideration of s 149B(7) of the PS Act, the Respondent was not obliged to provide the Appellant with a written notice in these circumstances. [40] Although I am of the view that there is no statutory requirement that reasons be furnished if the decision is deemed in accordance with s 149B(7) of the PS Act, a fair appeal process relies upon the Appellant being made aware of the Respondent's determinations for the outcome of the employment review. I am satisfied that the Appellant has had the opportunity to examine the Respondent's submissions, outlining the considerations of the employment review and was afforded the opportunity to provide submissions in reply. [41] In consideration of the material before me and the submissions made by the parties, I am satisfied that the Respondent has adhered to their obligations pursuant to both the Directive and s 149B of the PS Act, and consequently the decision made by the Respondent was fair and reasonable. -- 12 of 13 -- 13 Order [42] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 13 of 13 --