Atkinson v State of Queensland (Queensland Health) [2022] QIRC 354

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Atkinson v State of Queensland (Queensland Health) [2022] QIRC 354 Atkinson, Maria (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/706 PROCEEDING: Public Service Appeal – Appeal against a conversion decision DELIVERED ON: 13 September 2022 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: Pursuant to s 562(C)(1) of the Industrial Relations Act 2016: (a) I return the matter to the decision-maker with a copy of this decision; (b) I direct that the decision-maker provide Ms Atkinson with a written offer of conversion to permanent as provided for at cl 8.3 of the Directive within seven (7) days of receipt of this decision; (c) I direct that the decision-maker include in the written offer: i. Reference to cl 7.4 of the Directive and the reasons for decision regarding the hours of work being offered; and -- 1 of 9 -- 2 ii. A statement that in accordance with cl 11.3 of Directive 09/20, Ms Atkinson may appeal an offer made under section 149B(3)(b) for conversion to permanent where the hours of work offered are less than the hours required to be offered by clause 7.4. CATCHWORDS: LEGISLATION: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – where the Appellant requested a review for conversion to permanent employment – where the Appellant challenges a deemed decision to deny conversion to permanent employment – where an offer of permanent part-time employment has been made Public Service Act 2008 ss 148, 149A, 149B, 194 Industrial Relations Act 2016 ss 562, 562C Directive 09/20: Fixed term temporary employment cls 4, 7, 8, 11 Reasons for Decision Appeal Details [1] Maria Atkinson (the Appellant) is currently employed by the State of Queensland (Queensland Health) as an Administration Officer, Patient Travel at Mossman Hospital. Ms Atkinson has been employed by the State of Queensland since 8 August 2007. [2] On 13 July 2022, Ms Atkinson became eligible for a review of her employment status under section 149B of the Public Service Act 2008 (the PS Act). [3] Ms Atkinson has completed two years of continuous service and section 149B(4)(b) requires a decision to be made within 28 days of the date she became eligible for review. If a decision is not made within that period, section 149B(7) provides that the decision is taken not to offer conversion and to continue her employment as a fixed-term temporary employee according to the terms of her existing employment. [4] Ms Atkinson says that she meets the merit requirement for the role and has not received adverse findings in respect to discipline or performance in the time she has been employed in the role. -- 2 of 9 -- 3 [5] Ms Atkinson appeals the deemed decision pursuant to section 194(1)(e)(i) of the PS Act as she does not believe the deemed decision is fair or reasonable. [6] Ms Atkinson filed this appeal notice with the Industrial Registry on 19 August 2022. I am satisfied that Ms Atkinson is a person who may appeal and the appeal was lodged within the 21-day appeal period. Legislative Framework [7] Section 149A of the PS Act provides: 149A Decision on review of status (1) The department’s chief executive must decide a request made under section 149 within 28 days after receiving it. (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. (3) If the matters in subsection (2) are satisfied, the department’s chief executive must decide to offer to convert the person’s employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department. … (5) If the department’s chief executive does not make the decision within the period required under subsection (1), 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. (6) The commission chief executive may make a directive about making a decision under this section. [8] Section 149B of the PS Act relevantly provides: 149B Review of status after 2 years continuous employment (1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more. (2) However, this section does not apply to a non-industrial instrument employee. (3) The department's chief executive must decide whether to – -- 3 of 9 -- 4 (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. … (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 … (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 148 of the PS Act states: 148 Employment of fixed term temporary employees (1) A chief executive may employ a person (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 section 98(1)(d). (2) Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes— (a) to fill a temporary vacancy arising because a person is absent for a known period; Examples of absences for a known period— approved leave (including parental leave), a secondment (b) to perform work for a particular project or purpose that has a known end date; Examples— employment for a set period as part of a training program or placement program (c) to fill a position for which funding is unlikely or unknown; Examples— employment relating to performing work for which funding is subject to change or is not expected to be renewed (d) to fill a short-term vacancy before a person is appointed on tenure; (e) to perform work necessary to meet an unexpected short-term increase in workload. Example— -- 4 of 9 -- 5 an unexpected increase in workload for disaster management and recovery (3) Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis. Example— an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments (4) The employment may be full-time or part-time. (5) A person employed under this section does not, only because of the employment, become a public service officer. (6) The commission chief executive may make a directive about employing fixed term temporary employees under this section. Directive 09/20: Fixed term temporary employment (the Directive) [10] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 7. Review by agency of the status of a fixed term temporary employee after two years or more of continuous service - section 149B (Appendix C) … 7.4 Unless there are exceptional circumstances, when deciding the hours of work to be offered when converting an employee under section 149B(3)(b), the chief executive should offer hours of work no less than the greater of the following amounts: (a) the hours worked by the employee in the continuing role or role that is substantially the same, in the week immediately before the chief executive’s decision (b) the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years. … 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. -- 5 of 9 -- 6 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: (c) 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). (d) 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. 11. Appeals … 11.3 In accordance with section 194(1)(e)(ii), a fixed term temporary employee may appeal an offer made under section 149B(3)(b) for conversion to permanent employment as a general employee on tenure or a public service officer in the circumstances where the hours of work offered are less than the hours required to be offered by clause 7.4. What decisions can the Commission make? [11] 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 … (c) 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. -- 6 of 9 -- 7 Respondent's submissions [12] The Respondent says that the Appellant commenced employment with the Cairns and Hinterland Hospital and Health Service on 8 August 2007 as a casual employee and agrees that the Appellant has been employed continuously for the requisite two years. [13] The Appellant is currently employed in a fixed-term temporary contract of 0.8 FTE until 2 October 2022. [14] The Respondent submits that on 29 August 2022, following a review of Ms Atkinson's eligibility for conversion to permanent employment pursuant to the Act, Ms Atkinson was offered a 0.5 FTE permanent role of AO3 Administration Officer, Mossman Multi- Purpose Health Service. At the time of filing this submission, the Respondent says that Ms Atkinson had not confirmed acceptance of the offer. [15] The Respondent says that the Mossman Multi-Purpose Health Service has 3.47 FTE of permanent AO3 Administration Officer on a continuing basis, of which 2.92 FTE is currently permanently occupied, leaving 0.5 FTE permanently vacant. [16] The Respondent says that Ms Atkinson has been working an additional 0.3 FTE in addition to the permanently vacant 0.5 FTE as a result of secondments and maternity leave backfill available, for which the fixed-term temporary hours have been allocated across the existing establishment, including to Ms Atkinson. [17] The Respondent says that the additional 0.3 FTE is of a fixed-term temporary nature and is not ongoing. [18] The Respondent seeks that the appeal be dismissed on the basis that Ms Atkinson has been offered a permanent position following a conversion review pursuant to the Act. Appellant's submissions [19] The Appellant submits that the review and offer of a 0.5 FTE permanent position occurred some 47 days after the Respondent commenced her review and says that she seeks to continue her appeal of the deemed decision. [20] Ms Atkinson contends that the Decision is unfair and unreasonable as the decision-maker has failed to properly consider the mandatory criteria in the PS Act for such a decision; did not provide written reasons for the decision including findings of material questions of fact and refer to evidence or other material on which those findings were based. [21] Ms Atkinson says that s 149B(6)(a) requires that written notice be provided to the person of the reasons their fixed-term temporary employment status has not been converted to permanent status. [22] With regard to the offer of 0.5 permanent FTE, Ms Atkinson says that the hours of work offered are less than the hours required in clause 7.4 of Directives 08/20 and 09/20. Ms Atkinson therefore contends that both the deemed decision and the subsequent offer by the Respondent are unfair and unreasonable. -- 7 of 9 -- 8 [23] Ms Atkinson says that section 148(2)(c) of the PS Act provides that employment of a person on tenure may not be viable or appropriate to fill a position for which funding is unlikely or unknown. Ms Atkinson says that the Department has failed to provide detail about the unlikelihood or uncertainty of the funding of the position and so she is placed at a disadvantage when trying to respond to this consideration. [24] Ms Atkinson points to a decision of the Commission in which it was determined that where someone has been repeatedly extended in a role and the return date of the substantive employee was uncertain, there was a continuing need for the employee to be employed in the role and the decision to the contrary was not fair and reasonable. [25] Ms Atkinson says that she has been employed in her role or a role substantially the same since August 2007 and has been extended or re-engaged numerous times. [26] Ms Atkinson contends that there are no genuine operational requirements to hinder her conversion to permanent status in accordance with s 149A(3) of the PS Act. [27] With regard to the Respondent's submission that the additional 0.3 FTE is of a fixed-term nature and not continuing, Ms Atkinson says that recurrent funding or issues with the 'establishment' are not valid reasons for withholding conversion. Ms Atkinson says that funding has been secured for her role in an ongoing way. Ms Atkinson says that there does not need to be a vacant position in order for her to be converted to permanent. [28] Ms Atkinson goes on to make further submissions regarding the unfairness of the offer of conversion to 0.5 FTE when she says that applying cl 7.4 of Directive 09/20, she should be offered 0.8 FTE. [29] Ms Atkinson says that there is an authentic need for someone to perform the role or a role that is substantially the same for the foreseeable future and that could be carried out by a permanent employee. [30] Ms Atkinson seeks that the decision be set aside and substituted granting her permanent employment status or that the matter be returned to the decision-maker with a copy of the decision on appeal and directions that the Respondent reconsider the request to be appointed in accordance with the PS Act and Directive 09/20. Consideration [31] The decision being appealed is the deemed decision which came about by the effluxion of time following Ms Atkinson becoming eligible for review. [32] Following the issuing of Directions in this appeal, Ms Atkinson has been offered conversion to permanent, albeit at 0.5 FTE when she has most recently been working in the position on a 0.8 FTE basis. [33] I find that the more recent offer of conversion to permanent employment has rescinded or replaced the deemed decision. As the decision offering Ms Atkinson 0.5 FTE is not -- 8 of 9 -- 9 the decision on appeal, I am not able to consider whether that decision was fair and reasonable. [34] I understand Ms Atkinson's arguments in favour of her permanent conversion, and by making the offer of conversion to permanent, the Respondent clearly agrees that there is a continuing need for Ms Atkinson to be employed in the role on an ongoing basis. [35] The issue is no longer, should Ms Atkinson be employed on a permanent basis, but: is it fair and reasonable, in the light of cl 7.4 of Directive 09/20, for Ms Atkinson to be converted to permanent at 0.5 FTE? [36] To that extent, I am returning the matter to the decision-maker with a copy of the decision on appeal and requiring that Ms Atkinson be provided with a written offer of conversion to permanent in accordance with cl 8.3 of Directive 09/20 within seven (7) days of receipt of this decision. [37] The written offer must make specific reference to cl 7.4 of the Directive and the reasons for decision regarding the hours of work being offered. The letter must also state that in accordance with cl 11.3 of Directive 09/20, that Ms Atkinson may appeal an offer made under section 149B(3)(b) for conversion to permanent where the hours of work offered are less than the hours required to be offered by clause 7.4. Order [38] I make the following order: Pursuant to s 562(C)(1) of the Industrial Relations Act 2016: (a) I return the matter to the decision-maker with a copy of this decision; (b) I direct that the decision-maker provide Ms Atkinson with a written offer of conversion to permanent as provided for at cl 8.3 of the Directive within seven (7) days of receipt of this decision; (c) I direct that the decision-maker include in the written offer: i. Reference to cl 7.4 of the Directive and the reasons for decision regarding the hours of work being offered; and ii. A statement that in accordance with cl 11.3 of Directive 09/20, Ms Atkinson may appeal an offer made under section 149B(3)(b) for conversion to permanent where the hours of work offered are less than the hours required to be offered by clause 7.4. -- 9 of 9 --