Correia v State of Queensland (Queensland Health) [2022] QIRC 449

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Correia v State of Queensland (Queensland Health) [2022] QIRC 449 PARTIES: Correia, Dafne da Conceicao Mateus (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2022/603 PROCEEDING: Public Service Appeal - Conversion of fixed term temporary employment DELIVERED ON: HEARING DATE: 18 November 2022 28 September 2022 MEMBER: HEARD AT: Merrell DP Brisbane DATES OF WRITTEN SUBMISSIONS: Appellant's written submissions filed on 28 June 2022 and Respondent's written submissions filed on 26 August 2022. ORDER: Pursuant to s 562B(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived. CATCHWORDS: PUBLIC SERVICE - APPOINTMENT UNDER PUBLIC SERVICE AND SIMILAR ACTS - Appellant employed on a casual and fixed term temporary basis in various administration positions in the Cairns and Hinterland Hospital and Health Service - whether Appellant has the requisite continuous employment for there to be a compulsory review of the Appellant's employment status - whether 'deemed' decision was made by the chief executive of the Health Service not to convert the Appellant's employment to permanent employment - appeal against 'deemed' decision - whether Appellant was continuously employed for a period of two years which required the chief executive of the Health Service to review the -- 1 of 10 -- 2 Appellant's employment status pursuant to s 149B of the Public Service Act 2008 - Appellant had not been continuously employed for a period of two years - no requirement for chief executive of the Health Service to review Appellant's employment status - no decision taken to have been made pursuant to s 149B(7) of the Public Service Act 2008 - Appellant's appeal misconceived - decision not to hear Appellant's appeal STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - principles of statutory construction - construction of s 149B of the Public Service Act 2008 - meaning of 'continuously employed' in s 149B of the Public Service Act 2008 - meaning of 'casual employee on a regular and systematic basis during the period' LEGISLATION: Industrial Relations Act 2016, s 562B Public Service Act 2008, s 98, s 147, s 148, s 148A and s 149B CASES: Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019; (2020) 302 IR 48 WorkPac Pty Ltd v Rossato [2021] HCA 23; (2021) 271 CLR 456 Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339 APPEARANCES: Mr C. Hackett of Together Queensland, Industrial Union of Employees for the Appellant. Ms K. Wieden of the Cairns and Hinterland Hospital and Health Service for the Respondent. Reasons for Decision [1] Ms Dafne da Conceicao Mateus Correia, is currently employed by the State of Queensland, through the Queensland Health ('the Department') as a fixed term temporary employee. Ms Correia is employed in the Cairns and Hinterland Hospital and Health Service ('the Health Service'). Since 2020, Ms Correia, at various times, has been -- 2 of 10 -- 3 employed in the Health Service as a casual employee and as a fixed term temporary employee. [2] By email dated 20 April 2022 from Ms Renee O'Neill, Senior Employment and Reporting Officer of the Health Service, Ms Correia was advised that despite the two year anniversary of her employment, she may not be eligible for a review of her employment status pursuant to s 149B of the Public Service Act 2008 ('the PS Act') and Directive: 09/20 - Fixed term temporary employment. The reason given by Ms O'Neill for that uncertainty was that Ms Correia had a period of non-employment between 10 May 2021 and 31 October 2021 of more than 12 weeks. Ms Correia was advised that she could provide any further information in relation to her break in service and that if the Health Service did not hear from her within seven calendar days the Department '… will deem that you have decided not to progress with your review.' [3] By appeal notice filed on 6 June 2022, Ms Correia appealed against a decision she says was taken to have been made pursuant to s 149B(7) of the PS Act. That section provides that, in circumstances where a chief executive is required to review the employment status of a fixed term temporary employee or casual employee, and the chief executive does not make the decision within the required period, namely, 28 days after the end of two years after the employee had been continuously employed as a fixed term temporary employee or casual employee in the department, the chief executive is taken to have decided not to offer to convert the person's employment to permanent employment. [4] In her appeal notice, Ms Correia relevantly states: 2. I commenced my continuous casual employment within Cairns & Hinterland Hospital & Health Service ("the Department") as an AO3 Administration Officer in the COVID19 Relief Pool on 17 April 2020. 3. My casual employment has since been extended multiple times, and I have also held engagements with the Department as a fixed term temporary employee at various points. 4. On 20 April 2022 I received correspondence via email from the Department's People & Engagement Team indicating that they would commence the process of reviewing my employment status due to my 2 year anniverary [sic] date having passed. 5. I received a further response from Renee O'Neill of People & Engagement on 24 April 2022 indicating that my temporary employment review was not being considered and a decision would not be made. 6. As I have not received a written notice of the decision within the required period of 28 days of my anniversary date on 17 April 2020, which expired on 15 May 2022, it is a deemed decision by the Department Chief Executive that I am to continue as a temporary employee. [5] The order sought by Ms Correia is that she be appointed as a permanent employee. [6] The Department contends that as Ms Correia has not been employed continuously for the requisite two years as required by s 149B(1) of the PS Act, such that there was no requirement for the chief executive of the Department to review her employment status, the consequence of which is that because no decision was required to be made, s 149B(7) of the PS Act has no application. -- 3 of 10 -- 4 [7] The question for my determination is whether s 149B of the PS Act applied to Ms Correia as at the date she said it applied to her, namely, 17 April 2022. That question requires the determination of the issue of whether, as at 17 April 2022, Ms Correia had been '… continuously employed' in the Department for two years within the meaning of s 149B(1) of the PS Act. [8] For the reasons that follow, as at 17 April 2022, Ms Correia had not been continuously employed in the Department for two years such that, as at that date, s 149B of the PS Act did not apply to her and, therefore, the Chief Executive of the Department was not required to review her employment status pursuant to that section. The consequence is that, pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 ('the IR Act'), I decide not to hear Ms Correia's appeal because it is misconceived. Ms Correia's submissions [9] Ms Correia was represented by Mr Hackett of her agent, Together Queensland, Industrial Union of Employees. [10] In relation to the question of whether or not she had been continuously employed in the Department for two years, in written submissions, Ms Correia contended that: • it is unfair and unreasonable for the Department to conclude that she was not eligible for conversion simply on the basis that the time between her casual shifts was an unauthorised break in employment; and • such a conclusion is contrary to the recorded start and end dates of her engagements and does not consider the broader circumstances of her employment with the Department over the full period of time. [11] In further written submissions, Ms Correia relevantly submitted: Continuously Employed 27. Section 149B(7A) of the PS Act specifies that for working would [sic] how long a person has been continuously employed in the Department all periods of authorised leave are to be included. 28. I contend that I have been an employee for the entirety of my employment period with the Department. I have had no unauthorised periods of leave or unauthorised breaks in employment. 29. Schedule 4 of the PS Act defines: continuously employed, in relation to a person employed in a department for a period, means the person is employed in the department- (a) continuously as a fixed term temporary employee for the period; or (b) as a casual employee on a regular and systematic basis during the period; or (c) continuously as an employee mentioned in subparagraphs (i) and (ii) for the period. 30. I contend that as per Attachment 1, I have been engaged continuously as a casual employee on a regular and systematic basis or as a fixed term temporary employee for my period of employment. -- 4 of 10 -- 5 31. If the Department's position is that time between casual shifts represents an unauthorised break in employment, I believe this means that many casual employees would never become eligible for conversion, as each weekend or temporary gap in a roster would quickly add up to exclude the employee from conversion. If we follow the Department's logic, there are roughly 104 weekend-days per year, which would constitute a total of more than 12 weeks break in employment for a casual employee who does not work weekends. I do not believe this aligns with the PS Act's intent. [12] In oral submissions, Mr Hackett submitted that: • despite the fact that Ms Correia was engaged by the Department as a casual employee, but then was not offered work as a casual employee for periods of time before and after periods of actual casual employment and fixed term temporary employment, that did not mean that there was a break in her employment by the Department; and • the Department's contention that Ms Correia was not continuously employed for two years because she was engaged as a casual employee, but then did not actually work as a casual employee for periods of time before and after periods of actual casual employment and fixed term temporary employment, would defeat the purpose of s 149B of the PS Act in that someone in Ms Correia's situation would never be eligible for review under that section. The Department's submissions [13] The Department relevantly submitted that: 7) In considering employment for the purpose of eligibility under section 149B, the Respondent had regard to the Appellant's temporary and casual engagements as well as periods of authorised leave. This demonstrated the Appellant had periods of non-employment throughout the two-year period totalling more than 12 weeks. In this regard: a) The Appellant commenced with the Cairns and Hinterland Hospital and Health Service as a casual assigned to the COVID-19 Response team on 17 April 2020. b) From 17 April 2020 to 13 August 2020, a 16-week period, the Appellant did not work any shifts. c) On 14 August 2020, the Appellant was assigned a fixed-term temporary contract with the Patient Safety and Quality Unit for a 10-week period until 11 October 2020. d) From 12 October 2020 to 3 May 2021, a 29-week period, the Appellant did not work any shifts. e) Between 4 May 2021 to 15 May 2022, the Appellant worked a combination of casual and fixed-term temporary contracts across different work units, including Health Information Services and Child and Youth Mental Health Service. f) During the period between 4 May 2021 to 15 May 2022, the Appellant had a total of 10 weeks of breaks in engagements. 8) The Respondent submits that at no point in time has a decision been made under section 149B of the Act, whether deemed or otherwise, as the Appellant was not eligible to have her employment reviewed pursuant to section 149B of the Act. -- 5 of 10 -- 6 [14] In oral submissions, Ms Wieden of the Health Service, on behalf of the Department, clarified these written submissions, submitting that: • between 17 April 2020 and 13 August 2020, for that 16-week period, Ms Correia did not work any shifts as a casual employee or as a fixed term temporary employee; • between 12 October 2020 and 3 May 2021, for that 29-week period, Ms Correia did not work any shifts as a casual employee or as a fixed term temporary employee; and • between 4 May 2021 and 15 May 2022, there were 10 separate weeks, namely, over a period from Monday to Sunday, where Ms Correia did not work any shifts as a casual employee or as a fixed term temporary employee. [15] Ms Correia did not dispute the facts referred to in paragraphs [13] and [14] of these reasons as submitted and as clarified by the Department. Was Ms Correia continuously employed for two years as at 17 April 2022? The PS Act [16] 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. … (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 (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 -- 6 of 10 -- 7 2 years occurring immediately before the time when the duration of the person’s continuous employment is being worked out. [17] Schedule 4 to the PS Act defines the phrase 'continuously employed'. That definition provides: continuously employed, in relation to a person employed in a department for a period, means the person is employed in the department- (a) continuously as a fixed term temporary employee for the period; or (b) as a casual employee on a regular and systematic basis during the period; or (c) continuously as an employee mentioned in subparagraphs (i) and (ii)1 for the period. [18] The determination of whether or not a person has been continuously employed in the same department for 2 years or more will require a consideration of the combined effect of s 149B(1) and the definition of the phrase 'continuously employed' contained in sch 4 to the PS Act. Having regard to the periods of Ms Correia's actual work as a casual employee and as a fixed term temporary employee, the issue is whether Ms Correia has been '… continuously employed in the same department for 2 years or more' within the meaning of s 149B(1) of the PS Act. [19] The definition of 'continuously employed' in sch 4 to the PS Act recognises that an employee, to whom s 149B of the PS Act applies, may have had a combination of casual employment and fixed term employment. Section 149B(7A) is to the effect that a person's continuity of employment is not broken if there are periods of non-employment of 12 weeks or less in the two years occurring immediately before the time when the duration of the person's continuous employment is being worked out. On Ms Correia's case, that time is 17 April 2022. It is in the application of these provisions that the answer lies as to whether or not Ms Correia has been continuously employed in the Department for two years as at 17 April 2022. [20] Having regard to the circumstances of Ms Correia's casual employment up to 17 April 2022, the question is whether that casual employment meant Ms Correia met the description of '… a casual employee on a regular and systematic basis during the period' such that her casual employment, together with her fixed term temporary employment in the same period, meant that she was continuously employed in the Department for two years within the meaning of s 149B(1) of the PS Act. [21] The following may be said about the construction of the combined effect of s 149B(1) of the PS Act and the definition of 'continuously employed' in sch 4 to the PS Act. [22] First, the phrase 'casual employee' is defined in sch 4 to the PS Act to mean a person employed under s 147 of the PS Act on a casual basis, or a person employed under s 148A of the PS Act. Section 147(1) of the PS Act provides that a chief executive may employ a person as a general employee to perform work of a type not ordinarily performed by a public service officer; and s 147(2) of the PS Act provides that employment may be on a casual basis. Section 148A of the PS Act relevantly provides that a chief executive may employ a person on a casual basis to perform work of a type 1 This can only be a reference to paragraphs (a) and (b) of the definition of 'continuously employed.' -- 7 of 10 -- 8 ordinarily performed by a public service officer, other than a chief executive or senior executive, if employment of a person on tenure or as a fixed term temporary employee is not viable or appropriate. [23] Secondly, the phrase 'fixed term temporary employee' is defined in sch 4 to the PS Act by reference to s 148(1) of the PS Act. Section 148(1) of the PS Act provides that a chief executive may employ a person, referred to as a fixed term temporary employee, for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under s 98(1)(d) of the PS Act. [24] Thirdly, as the High Court held in WorkPac Pty Ltd v Rossato,2 casual employment involves an absence of a firm advance commitment as to the duration of the employee's employment or the days (or hours) the employee will work.3 There is no reason to conclude that this description of casual employment is not apt to apply to the employment of a person as a casual employee under either s 147 or s 148 of the PS Act. [25] Fourthly, having regard to the circumstances in which a chief executive may employ a person on a casual basis or a fixed term temporary basis as set out in s 147, s 148 and s 148A of the PS Act, my view is that the use of the word 'employed' in the phrase 'continuously employed' in s 149B(1) of the PS Act connotes a casual employee actually performing work as opposed to making themselves available to accept an offer of work. While it has been held that '[t]hey also serve who only stand and wait',4 such a principle is in respect of the concept that it is service that earns wages, not work.5 The different issue in s 149B(1) of the PS Act is the length of a person's continuous employment in the same department. Thus, having regard to paragraph (b) of the definition of 'continuously employed' in sch 4 to the PS Act, it is the employment of the person, on a casual basis, that must be on a regular and systematic basis during the period under consideration. [26] Fifthly, my view is that the adjectives 'regular' and 'systematic', that make up the phrase '… on a regular and systematic basis', should be given their ordinary meaning in the context in which they are used.6 The ordinary meaning of 'regular', as used in the present context, is '… recurring at fixed times; periodic'.7 The ordinary meaning of 'systematic', as used in the present context, is '… having, showing or involving a system, method or plan'8 or '… characterised by system or method; methodical.'9 Adopting such a construction of these adjectives, as they are used in paragraph (b) of the definition of 'continuously employed' in sch 4 to the PS Act, is generally consistent with the way those 2 [2021] HCA 23; (2021) 271 CLR 456. 3 Ibid [32]-[33] and [105]-[106] (Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ) and [118] (Gageler J). 4 Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435, 466 (Dixon J) 5 Ibid 467. 6 See Yaraka Holdings Pty Limited v Giljevic [2006] ACTCA 6; (2006) 149 IR 339 ('Yaraka'), [90]-[91] (Madgwick J). 7 Macquarie Dictionary (7th ed, 2017) 'regular' (def 4). 8 Macquarie Dictionary (7th ed, 2017) 'systematic' (def 1). 9 Macquarie Dictionary (7th ed, 2017) 'systematic' (def 2). -- 8 of 10 -- 9 words have been construed in the phrase '… on a regular and systematic basis' used to describe particular types of employment in different statutes for different purposes.10 Ms Correia had not been continuously employed in the Department for two years as at 17 April 2022 [27] On the basis of the facts before me, as accepted by Ms Correia: • on 17 April 2020, Ms Correia was assigned as a casual employee to the Health Service's COVID-19 Response team and, in that regard, I infer that on that date, Ms Correia and the Department agreed that the Department may offer her work, as a casual employee, to work in that team on or after that date; • between 17 April 2020 and 13 August 2020, Ms Correia was not offered any work as a casual employee by the Department in the Health Service's COVID-19 Response team or in any other team or work unit; • between 14 August 2020 and 11 October 2020, Ms Correia was employed by the Department on a fixed term temporary basis in another work unit of the Health Service; • between 12 October 2020 and 3 May 2021, Ms Correia was not employed by the Department to work any shifts as a casual employee or as a fixed term temporary employee in any team or work unit of the Health Service; and • between 4 May 2021 and 15 May 2022, Ms Correia: - was employed by the Department to work as a casual employee and as a fixed term temporary employee across different work units of the Health Service; and - during that period, there were 10 separate weeks, over the days Monday to Sunday, where Ms Correia was not employed by the Department to work any shifts as a casual employee or as a fixed term temporary employee. [28] While Ms Correia, on 17 April 2020, was assigned to the Health Service's COVID-19 Response team, she was not employed by the Department to work any hours as a casual employee (in any work unit of the Health Service) until sometime after on or about 4 May 2021. [29] In fact, the first time Ms Correia worked as an employee, which was as a fixed term temporary employee, was on 14 August 2020. That employment lasted until 11 October 2020. Ms Correia was not employed after 12 October 2020 until 4 May 2021 from which time she worked as a casual employee and as a fixed term temporary employee across different work units of the Health Service. 10 See Yaraka (n 6), [68] and [69] (Crispin and Gray JJ) and [90]-[91] (Madgwick J) and see Greene v Floreat Hotel Pty Ltd [2020] FWCFB 6019; (2020) 302 IR 48, [19] (Vice President Hatcher, Deputy President Millhouse and Commissioner Wilson). -- 9 of 10 -- 10 [30] These facts mean that Ms Correia, between 17 April 2020 and 17 April 2022, was not continuously employed in the Department within the meaning of s 149B(1) of the PS Act. This is because: • Ms Correia did not commence actual employment until 14 August 2020, which was fixed term temporary employment and that fixed term temporary employment continued until 11 October 2020; • after 12 October 2020, Ms Correia had a period of non-employment of more than 12 weeks until 4 May 2021; and • even assuming that Ms Correia's employment as a casual employee between on or after 4 May 2021 and 17 April 2022 was regular and systematic, in the two years occurring immediately before 17 April 2022, Ms Correia: - was not actually employed until 14 August 2020; and - her period of non-employment between 12 October 2020 and 4 May 2021, a period of more than 12 weeks, broke her continuity of employment as from 14 August 2020. [31] For these reasons, as at 17 April 2022, Ms Correia had not been continuously employed in the Department for two years such that, as at that date, s 149B of the PS Act did not apply to her. The Chief Executive of the Department was not required to review her employment status pursuant to s 149B of the PS Act within 28 days of 17 April 2022. The consequence is that there could be no decision taken to have been made by the Chief Executive of the Department within the meaning of s 149B(7) of the PS Act. [32] Pursuant to 562A(3)(b)(ii) of the IR Act, I will not hear Ms Correia's appeal because it is misconceived. Conclusion [33] For the reasons given, I decline to hear Ms Correia's appeal because it is misconceived. Order [34] I make the following order: Pursuant to s 562B(3)(b)(ii) of the Industrial Relations Act 2016, the Appellant's appeal will not be heard because it is misconceived. -- 10 of 10 --