Da Silva Rocha v State of Queensland

Public Service Act 2008 (Qld), s 149A,

s 149B, s 197

Fixed Term Temporary Employment (Directive 09/20), cl 7

• [1] Ms Juliana Da Silva Rocha ("Ms Da Silva Rocha") is employed by the State of Queensland (Queensland Health) ("the Department") at the Sunshine Coast Hospital and Health Service ("SCHHS") in the Operational Support Services ("OSS") department as a Patient Support Assistant (OO2).

• [2] Ms Da Silva Rocha commenced employment with SCHHS on 9 September 2019 as a casual employee in the Patient Support Assistant Food Service Catering team. Soon after, Ms Da Silva Rocha commenced working temporary engagements. On or about 31 August 2019, Ms Da Silva Rocha was notified by the Department that it would conduct a review of her fixed term temporary employment in accordance with the Fixed term temporary employment directive 09/20 ("Directive 09/20").[1]

• [3] The Department advised Ms Da Silva Rocha that "the decision whether to convert your temporary employment to permanent status will be made by 29 September 2021."

• [4] By notice of appeal filed on 20 October 2021, Ms Da Silva Rocha, pursuant to Ch. 7 of the Public Service Act 2008 (Qld) ("the PS Act"), appealed a deemed decision dated 29 September 2021. The chief executive did not make a decision within 28 days of the commencement of the review. Consequently, pursuant to s 149(5) of the PS Act,

Ms Da Silva Rocha's employment was deemed to continue as fixed term temporary employment, with her current contract having ceased on 14 November 2021.

• [5] Ms Da Silva Rocha appeals the decision on the following grounds:

(a) Ms Da Silva Rocha meets the merit principle and SCHHS has failed to provide evidence that there is not a continuing need to employer her permanently;

(b) Ms Da Silva Rocha has been working in the position of Patient Support Assistant and for an average of 57 hours per week at SCHHS since her commencement of employment on 9 September 2019;

(c) Ms Da Silva Rocha contends that her primary role was to fill a work line that was supposed to be filled by a permanent employee, and that the only periods she was required to backfill was from 13 January 2020 to 9 February 2020 and 8 March 2021 to 9 April 2021;

(d) there is an average of 15 casual employees permanently working in the same role;

(e) Ms Da Silva Rocha is aware of two vacant positions which she could be converted to;

(f) Ms Da Silva Rocha is frequently asked to do extra shifts and to cover over time or other employee's tasks due to staff shortage issues;

(g) Ms Da Silva Rocha's coordinator requested that she cancel the ten days of leave she had booked at the end of October 2021 due to staff shortages and work demand; and

(h) the COVID-19 vaccine mandate for health workers became effective on 31 October 2021 which will probably increase the demand for more permanent jobs as some of her colleagues have advised her that they do not want to get the vaccine.

• [6] However, after filing the appeal notice, Ms Da Silva Rocha was advised by the Department, on or about 2 November 2021, that an offer of permanent employment was to be made, and a meeting was scheduled between the parties to discuss this offer on 5 November 2021.

• [7] On 5 November 2021, Ms Da Silva Rocha met with the Department and was advised of the offer of permanent employment at 0.47 FTE or 36 hours per fortnight, which was due to commence on 29 November 2021. During the course of the meeting,

Ms Da Silva Rocha requested an extension of time to determine whether she would accept that offer.

• [8] The Department submits that it acknowledges that Ms Da Silva Rocha's past average hours have exceeded 0.47 FTE or 36 hours per fortnight, however it contends that in accordance with cl 7.4 of Directive 09/20, exceptional circumstances existed when deciding the timing of conversion and hours of work to be offered as follows:

(a) consideration of cl 11.5 of the Queensland Public Health Sector Certified Agreement (No. 10) 2019 and the Queensland Health Responsible Workforce Management Approach and Guideline as discussed in the Departments first submissions;[2]

(b) operational roster requirements and available FTE's; and

(c) head count of eligible casual and temporary employees to be considered for conversion simultaneously.

• [9] On 12 November 2021, Ms Da Silva Rocha provided further submissions to the Commission which included the following:[3]

I am pleased to hear that the SCUH accepted my appeal and understood that under the Public Service Act 2008, Section 149.B, it is my right to be converted to a permanent working position.

Since both parties agree on the conversion, the only point of disagreement is over the number of hours offered by SCUH, given that an amount of 36 hours fortnightly is below the average of 57 hours that I have worked for the past two years. This offer does not follow Public Service Commission Directive 09/20 Section 7.4 (a) and (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 a role that is substantially the same, in the week immediately before the chief executive's decision, or (b) the average hours per week worked by the employee in the continuing role or a role that is substantially the same, over the last two years."

• [10] Given that it appears the decision which is the subject of the appeal notice is no longer the subject of a dispute between the parties, I requested that the matter be listed urgently for a telephone mention on 15 November 2021.

• [11] On 13 November 2021, Ms Da Silva Rocha wrote to the Commission stating that, as the parties had agreed that the appeal would proceed by way of written submissions, she did not wish to attend the mention on 15 November 2021. Further Ms Da Silva Rocha said that she did not have the "emotional conditions to attend this phone conference."

• [12] The telephone mentioned listed for 15 November 2021 was subsequently vacated. On 15 November 2021, the Industrial Registry wrote to the parties in the following terms:

We refer to the above matter and to the Appellant's correspondence received on 13 November 2021.

The purpose of listing the matter for telephone mention was to provide the parties with an opportunity to clarify their positions with respect to the matter in order to assist the Commission.

In addition to written submissions, the parties have sent correspondence to the Industrial Registry which appears to fall outside the terms of the Directions Orders issued by Commissioner Hartigan on 21 October 2021 and 5 November 2021.

It appears from some of the content of the correspondence, that the parties are attempting to negotiate a resolution of the matter, although there seems to be some disagreement with respect to the resolution, specifically the hours the Appellant has been offered under the permanent part-time contract.

The role of the Commission in an appeal of this nature is to review the decision which is the subject of the appeal to determine if that decision is fair and reasonable. The Commission's role in conducting the review is not to consider matters that go beyond the decision which is being appealed.

The Commission listed the matter for a telephone mention today in order to provide the parties with an opportunity to explain their respective positions as to whether the dispute surrounding the hours was relevant to the appeal of the decision received on 29 September 2021.

The parties are now requested to file in the Industrial Registry and serve on each other an outline of submissions of no more than two (2) pages addressing this matter by 4.00pm on Thursday, 18 November 2021.

• [13] As noted above, the Commission attempted to provide the parties with an opportunity to make submissions with respect to the subject matter of the appeal on the record in a telephone mention on 15 November 2021. However, following Ms Da Silva Rocha's request that the mention be vacated, and the matter proceeded on the papers. Further submissions were filed by both parties. I am left to determine the matter on the written submissions filed by the parties.

• [14] The appeal notice filed in this matter on 20 October 2021 relates to the deemed decision of the Department dated 29 September 2021. That is, that Ms Da Silva Rocha's employment not be converted from temporary to permanent.

• [15] The Department contends that the subsequent decision made on or around 5 November 2021 to offer permanent employment, but with reduced hours, is not the subject matter of this appeal. Ms Da Silva Rocha's submissions filed on 12 November 2021, address the substance of the decision to offer permanent employment with reduced hours, but does not address the Commission's inquiry as to whether the Commission has jurisdiction to consider that subsequent decision.

• [16] The subsequent decision conveyed, in the meeting between the Department and

Ms Da Silva Rocha on or about 5 November 2021, that the Department had made a decision to offer to convert Ms Da Silva Rocha's employment from temporary to permanent, but on lesser hours, is not the subject of the appeal before this Commission.

• [17] The decision that is the subject matter of the appeal is the deemed decision of 29 September 2021 that refused to convert Ms Da Silva Rocha's employment from temporary to permanent. Subsequently, the Department has taken steps to offer

Ms Da Silva Rocha permanent employment. Ms Da Silva Rocha's written submissions acknowledge that the parties are now in agreement with respect to the conversion of her employment to permanent. The only matter now in dispute between the parties arose because of a decision made subsequent to the filing of this appeal. That dispute relates to the number of hours offered by the Department. Accordingly, I do not consider that it is appropriate for the Commission to determine the decision when the subject matter of the appeal has been resolved.

• [18] It is clear from the submissions most recently filed by the parties, that the issue now in dispute is not whether Ms Da Silva Rocha should be offered permanent employment, but rather, the hours she is to be offered.

• [19] In addition to the fact that I consider that the Commission does not have jurisdiction to entertain that decision as part of this appeal, I further consider that there is no factual material before the Commission to form a view in relation to those matters in any event. Due to the manner in which the appeal has proceeded, I do not have the relevant factual information before me as to the reasons for the decision to offer Ms Da Silva Rocha permanent employment, but at reduced hours.

• [20] Having said that, it is noted that both s 149B(3)(b) of the PS Act and cl 7.4 of Directive 09/20 provides that the employer, when deciding the hours of work to be offered when converting an employee under s 149B(3)(b) of the PS Act, should offer hours of work no less than the greater of the following amounts, unless exceptional circumstances can be established:

(a) the hours worked by the employee in the continuing role or a role that is substantially the same, in the week immediately before the chief executive's decision; and

(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.

• [21] There is no material before this Commission, of a compelling nature, which would allow me to form a view as to whether such exceptional circumstances exist. However, it is clear that there must be a reasonable factual basis for the Department to assert that exceptional circumstances exist.

• [22] For completeness, I further note that, in accordance with s 194(1)(e)(ii) of the PS Act, a fixed term temporary employee may appeal an offer made under s 149B(3)(b) of the PS Act for conversion to permanent employee as a general employee on tenure or a public service officer, in the circumstances where the hours of work offered to the employee are less than the hours that a required to be offered by cl 7.4 of Directive 09/20. However, for the reasons already discussed, no such appeal has been filed in this matter to date.

Pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld), I decline to hear the public service appeal against the deemed decision of 29 September 2021.

[1] Respondent's submissions filed on 2 November 2021.