Chiotakis v Queensland Museum Network [2022] QIRC 22

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Chiotakis v Queensland Museum Network [2022] QIRC 022 Chiotakis, Christina (Appellant) v Queensland Museum Network (Respondent) CASE NO: PSA/2021/379 PROCEEDING: Public Service Appeal – Appeal against a conversion decision DELIVERED ON: 31 January 2022 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed. 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 - whether there is a continuing need for the appellant to be employed in the role or a role substantially the same - whether there are genuine operational requirements preventing conversion - where employment on tenure is not viable or appropriate Public Service Act 2008, s 149B Industrial Relations Act 2016, s 562C Directive 09/20: Fixed term temporary employment -- 1 of 9 -- 2 Reasons for Decision Appeal Details [1] Ms Chiotakis (the Appellant) is currently employed by Queensland Museum Network (QNM) as a Technical Officer (Palaeontological Research Assistant, TO2) (the TO2 role) in the Geosciences Department located at Hendra. Ms Chiotakis has been continuously employed in this role in a casual capacity at 0.6 Full-Time Equivalent (FTE) since 23 April 2019. [2] According to the Respondent, the TO2 role was created to support Project DIG, a five year project to transform how the QMN continues to store, explore and share their collection with the world.1 The Respondent has provided a copy of the Project DIG contract2 and the Project DIG Work Plan for the 2021/2022 year.3 [3] On 25 May 2021, Ms Chiotakis was informed by the Human Resources team at QMN that her annual review date for permanency was 16 September 2021. [4] On 16 September 2021, Ms Chiotakis requested that she be considered for conversion to permanency and provided a submission supporting her request. [5] On 4 November 2021, Ms Amanda Pratt, HR Support Officer, QMN sent an email to Ms Chiotakis saying 'As per the directive, if no decision has been communicated within the 28-day period, it should be taken as declined.' By way of deemed decision, Ms Chiotakis continued to be employed as a casual employee in the TO2 role. [6] For completeness I note that initially Ms Chiotakis had filed appeal notices in relation to two separate roles she performs. I had initially determined that these two appeals would be heard together. Ms Chiotakis has been offered conversion to permanency in one of those roles and has accepted that offer. This appeal relates only to the TO2 role and I have not had regard to any submissions regarding the other role. [7] The issue for me to determine in this appeal is whether the deemed decision that Ms Chiotakis' casual employment not be converted to a general employee on tenure was fair and reasonable. Legislative Framework [8] Section 149B of the Public Service Act 2008 (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. 1 Submissions of the Respondent filed 24 November 2021, [12]. 2 Submissions of the Respondent filed 24 November 2021, Attachment B. 3 Submissions of the Respondent filed 24 November 2021, Attachment C. -- 2 of 9 -- 3 (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. … (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. Directive 09/20: Fixed term temporary employment (the Directive) [9] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions: 4. Principles 4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy. 4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B. 4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee. 4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate. 4.5 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. … … 8. Decision on review of status 8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria in section 149A(2): • whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same • the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act -- 3 of 9 -- 4 • 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). 8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5. 8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions. What decisions can the Commission make? [10] 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. Ms Chiotakis' reasons for appeal -- 4 of 9 -- 5 [11] Ms Chiotakis says that she has performed the TO2 role for a continuous period of greater than 2.5 years without any adverse findings in respect of her performance or conduct and she has therefore demonstrated merit with regard to s 27 of the PS Act. [12] Ms Chiotakis contends that there is a continuing need for her to be employed in the TO2 role or in a role that is substantially the same and that there is no genuine operational reason precluding her being offered permanent employment. [13] Employment on tenure is the default basis of employment in the Queensland Public Service and the decision that Ms Chiotakis remain insecurely employed is unfair and unreasonable. Submissions of the Respondent [14] The Respondent notes that on 5 March 2021, Ms Chiotakis requested that she be converted to permanent in the TO2 role. At that time, the decision maker determined that it was not appropriate or viable to convert Ms Chiotakis' employment at that time due to genuine operational requirements, specifically, …the Queensland Museum does not have ongoing funding for your position beyond the current end date of 30 June 2023. As you are aware, Project DIG is a five year partnership with BHP which aim is to transform how we store, explore and share the State's collection and research with communities, students and scientists across the world. The funding provided through this partnership directly supports your position.4 [15] The Respondent acknowledges that a deemed decision was made on 14 October 2021 and that Ms Chiotakis is eligible to appeal. After conducting a review of the facts and circumstances that were available at the time of the review period, the Respondent submits that the reasons outlined in the decision of 5 March 2021 remain unchanged. [16] The Respondent agrees the Ms Chiotakis meets the merit requirements of the PS Act. [17] At the point in time of the review, there is no continuing need for the engagement of the role on a permanent basis, and it is not viable or appropriate to convert because the funding is for a position specific role which performs work for a particular program (Project DIG) which has a known end date of 30 June 2023. [18] The Respondent points to s 149B(4) of the PS Act which states that the Chief Executive is responsible for, among other things: managing the department in a way that promotes the effective, efficient and appropriate management of public resources; and planning human resources, including ensuring the employment in the department of persons on a fixed term temporary basis or casual basis only if there is a reason for the basis of employment under the PS Act. [19] In the alternative, the Respondent contends that it may be that the nature and circumstances of Ms Chiotakis' employment engagement may no longer reflect a casual arrangement and may align with those envisaged under a fixed term temporary arrangement as contained in s 148(2)(b)-(c) of the PS Act. 4 Ibid n1 Attachment D. -- 5 of 9 -- 6 [20] The Respondent says that it is intended for a strategic workplace planning review to commence for all positions associated with Project DIG to ensure deliverables people and capability continue to achieve desired outcomes, along with an appropriate basis of employment.5 [21] The Respondent says that there are two casual TO2 positions which may be more appropriate to engage under a fixed term temporary engagement and that it is the Respondent's intention to offer a fixed term temporary engagement to Ms Chiotakis with an end date of 30 June 2023. [22] With regard to roles substantially the same to convert Ms Chiotakis, the Respondent says that the two TO2 positions were created specifically for Project DIG and are unique roles within QMN. There were no other substantially the same roles to convert Ms Chiotakis during the review period. [23] The Respondent says that at the time of making submissions to this appeal, there has not been, nor is it expected that there will be any ongoing commitments to support the TO2 role or one substantially the same, beyond 30 June 2023. [24] The Respondent appreciates Ms Chiotakis' view that there is very important work to be done. QMN is committed to ensure employment security and maximisation of permanent employment but strongly submits that it is not viable and/or appropriate to convert Ms Chiotakis' employment to permanent in the TO2 role or a role that is substantially the same. Ms Chiotakis submissions in reply [25] I have not repeated here the matters addressed in Ms Chiotakis' reasons for appeal. [26] Ms Chiotakis disputes the Respondent's submission that the end of Project DIG indicates that there is no continuing need for her role. Funding for the role [27] With regard to funding available for her role, Ms Chiotakis draws my attention to an unpublished decision where the employer relied on non-recurrent capital funding of the project to justify that there was no continuing need for the position at the conclusion of the non-recurrently funded program. In that decision, it was found that a point had been reached that it was no longer necessary that funding needed to be certain, only that it be likely for the role to be ongoing within the context of all of the information provided, such that it was no longer fair and reasonable for the employer to rely on using temporary employment. 5 Ibid n1, [20]. -- 6 of 9 -- 7 [28] Ms Chiotakis also refers to a decision where McLennan IC addressed the matter of budget provisions and said '…it is a somewhat superficial concern as to whether wages for a staff member come from a 'permanent' or 'temporary' line-item allocation'.6 [29] Ms Chiotakis says that although the funding end date of Project DIG is 30 June 2023, she contends that there is a continuing need for her role well past that date. In support of this submission, Ms Chiotakis attaches a draft of the QMN strategic plan for 2022-2026 which she says outlines objectives that evidence the continuing need for her role. Ms Chiotakis also says that the draft strategic plan states that one of the top priorities of QMN is Digital Evolution (as is currently being supported by Project DIG). As a result, work will necessarily continue past 30 June 2023 when the partnership with BHP concludes. [30] Ms Chiotakis says that when Project DIG originally started, it appeared that it was going to be best for staff to be brought in on a casual basis, however the workflow ended up being constant. [31] The current number of staff within the Geoscience team is minimal, that is, six in total, made up of four permanent staff and two casual TO2 positions. While Ms Chiotakis understands that QMN has specific workforce planning obligations to manage, the size of the collection is going to continue to grow with further field work taking place each year. Ms Chiotakis says that an unspecified number of new specimens are added to the collection every time a staff member goes on field number from one to up to hundreds of specimens for each field trip. According to QMN's strategic plan, the aim is to make all specimens available digitally to researchers and potentially the public so not to risk damage to specimens housed within the collection. [32] In order to continue the work of digitising records of specimens, Ms Chiotakis' current supervisor is applying for grants, including through the Australian Research Council and elsewhere. Roles substantially the same [33] Ms Chiotakis contends that QMN has failed to consider roles that are substantially the same and that it is insufficient to merely state that the two TO2 roles were created specifically for Project DIG and are unique roles within the QMN. [34] Ms Chiotakis says that she was not aware that QMN was considering offering her fixed term temporary employment status in the TO2 role until it was raised in submissions regarding this appeal and that she is uncertain to the genuineness of the statement. [35] Ms Chiotakis says that she believes that there are roles that are substantially the same within the Geoscience Team outside of Project DIG, though she recognises that positions may not be current or applicable. For example, Ms Chiotakis says that preparation, collection management, conservations and digitisation work still occurs across the department, though not specifically in relation to Project DIG. Ms Chiotakis also makes reference to a 1.0 FTE role which is available and unfilled because the work has, for the most part, been replaced by new technologies. 6 Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 397. -- 7 of 9 -- 8 [36] Ms Chiotakis contends that her TO2 role provides her with general skills that can be utilised for collection-based work for any QMN collection, despite having a focus on palaeontology. Consideration [37] It is not in dispute that Ms Chiotakis has standing to commence an appeal against the deemed decision. The parties also agree that Ms Chiotakis meets the merit requirement for conversion. Continuing need for 'the role' or a 'role substantially the same' [38] It is clear that the role Ms Chiotakis is undertaking is a part of Project DIG. It appears uncontroversial that Project DIG is a five-year project due to conclude in 2023. To that extent I accept that the TO2 role that Ms Chiotakis 'is currently undertaking' is not continuing. It is a role which exists as a result of the project and both the project and funding for the project have a known end date. [39] With regard to a 'role substantially the same', I agree with Ms Chiotakis, that had a review been undertaken, it would be reasonable for QMN to consider other TO2 roles in the Geosciences Team that require a similar skill set to the role Ms Chiotakis currently undertakes. However, there is no evidence before me that there was another TO2 role substantially the same as Ms Chiotakis' current role available at the time a review would have occurred, and Ms Chiotakis acknowledges this in her submissions. At the point of any future review being undertaken, other substantially similar roles in Geosciences should be considered. [40] I do not think that the decisions of the Commission Ms Chiotakis refers to are of assistance to her in relation to the Project DIG TO2 role. With regard to the decision referred to at [27] above, I am not satisfied that on all of the information available to me that it is likely that the TO2 role will be ongoing. The information available to me establishes that while it is agreed that the work is important and QMN aspires to continue digitising specimens, Project DIG is a five year project with a set end date and Ms Chiotakis' supervisor is currently seeking other funding to continue the work of digitising specimens. I am not satisfied that the role will continue in the absence of grant funding and there is no material before me to suggest that at the time the decision was made, other funding sources were available. [41] Similarly, with regard to the decision referred to at [28], the funding for Ms Chiotakis' role is currently coming from an external source and is provided for the purpose of the specific work Ms Chiotakis is performing. To substitute a decision converting Ms Chiotakis to permanent based on the material before me, would mean the permanent creation of a project-linked position to undertake work within a specific project that has an end date. It is unclear what the need for and the purpose of that permanent position would be when the project ends. [42] I note that the Respondent has identified that it may be appropriate for Ms Chiotakis' role to be fixed term temporary rather than casual. I also note that the Respondent is planning to undertake a strategic workplace planning review for all positions associated with -- 8 of 9 -- 9 Project DIG. This review may result in Ms Chiotakis being offered fixed term temporary employment (if this has not already happened). The review may also result in an alignment between the work Ms Chiotakis is currently performing and the draft strategic plan. However, the purpose of this appeal is to decide whether the deemed decision made when the review period expired on 14 October 2021 was fair and reasonable. Conclusion and Order [43] Based on the material before to me, given the circumstances and information available at the time of the review, it was fair and reasonable for Ms Chiotakis to remain employed in the TO2 role in a casual capacity. [44] The decision appealed against is confirmed. -- 9 of 9 --