Hsueh v State of Queensland

Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360

Keenan v State of Queensland (Queensland Health) [2023] QIRC 297

Quinn v State of Queensland (Queensland Health) [2023] QIRC 24

• [1] Ms Yu-Shan Hsueh ('the Appellant') is employed as a Clinical Nurse (NG6) with the Cairns and Hinterland Hospital and Health Service ('CHHHS') on a temporary basis in the role of Clinical Nurse Immunization Program, Community Child Youth and Family unit.

• [2] On 1 October 2025, Ms Hsueh was informed that she would not be converted to permanency.

• [3] Ms Hsueh appeals the decision of her employer, the State of Queensland (Queensland Health) ('the Respondent') not to convert her to permanency.

• [4] Ms Hsueh's union submits that from the date of the decision, she has been temporarily or casually employed by the Respondent for a period of over 8-years.[1] The decision letter received by Ms Hsueh acknowledges that she has been engaged in a non-permanent role for a total of 96-months. The decision also acknowledges that Ms Hsueh's fixed-term temporary engagement with the CHHHS has been extended seven times.
• [5] I am required to review the decision appealed against[2] and decide whether the decision appealed against was fair and reasonable.[3] For the following reasons, I find that the decision not to convert Ms Hsueh to permanency was fair and reasonable.

• [6] For completeness, while not directly related to the decision under appeal, I note that during the course of this appeal, Ms Hsueh has been offered permanent appointment to a Registered Nurse position.[4]

• [7] Contained within Ms Hsueh's Appeal Notice is the decision appealed against. Namely, the decision letter dated 30 September 2025 contains the considerations of the delegate when deciding not to convert Ms Hsueh:[5]

I have considered the requirements of the Public Sector Act 2022 (the Act), the Review of non-permanent employment (Directive 02/23) and your employment history, including any previous conversion review decisions.

There are two considerations for deciding whether to convert from non-permanent fixed term temporary employment to permanent employment:

• there is a continuing need for you to perform your role or a role that is substantially the same, and
• you satisfy being suitable to perform the role.

I have determined that there is no continuing need for someone to be employed in the role you are currently employed in, or a role that is substantially the same.

As such I have decided that I am unable to offer to convert your employment to a permanent basis. Specifically, my reasons are:

• there is no continuing need for you to perform your current role because the substantive incumbent is returning to the role on a full-time basis.

A review with the Nursing Support Unit was conducted and as of 19 September 2025, there are no permanent positions in their unit to convert you into.

Thank you for your performance in a non-permanent fixed-term capacity over the period 4 September 2017. You have demonstrated over this time that you satisfy the requirements for the role.

As a result of this decision not to convert you to permanent, you will continue in the role of Clinical Nurse Immunization Program, Community Child Youth and Family until 21 December 2025 when your current temporary contract concludes.

Is there a continuing need for Ms Hsueh to be employed in her role?[6]

• [8] Ms Hsueh submits that the decision-maker's assertion that there is not a continuing need for her to remain in her role or a role that is substantially the same is misguided on the following bases:[7]

1. Ms Hsueh has information that the substantive position holder has no intention of returning to the role and has moved to a different location.

1. After 8 years and 26 days, it is abundantly clear that is need for permanent continuing backfill and that if Ms Hsueh is not converted, she will likely be offered further temporary extensions.

1. Ms Hsueh's role is not limited to the temporary engagement, with her often being requested to perform additional casual work within the immunization program and wider unit. This is because Ms Hsueh understands there are funding difficulties regarding the divvying up of her role.

• [9] Ms Hsueh's role is located out of the Cairns North community health clinic, however, Ms Hsueh is required to travel and visit members of the community '... within a geographic region spanning from Palm Cove (in the North) to Gordonvale (to the South), but not West over the Range which divides the Cairns Region from the Tablelands'.[8] Ms Hsueh also provides coverage for staffing shortages across various other community health clinics as well as the School Immunisation Programme.[9] Ms Hsueh sets out a range of responsibilities as required by her role, which include:[10]

1. Record verification: Double-checking client immunisation status against the Australian Immunisation Register (AIR).

1. Case management: Engaging with families through calls, letters, and text message reminders to facilitate appointments.
2. Schedule planning: Calculating the required vaccines and creating individualised catch-up schedules based on the child's age, group, and country of origin (for example assessing the different requirements for new arrivals from countries like South Africa).

1. Serving a diverse client Base: Serving a diverse community, including First Nation families (a core client group), new immigrants, and the general public.

• [10] Ms Hsueh's role includes the following specific duties:[11]

1. Conducting Outreach Immunisation to families experiencing barriers (e.g., transport difficulties, limited support) or those unresponsive to repeated contact attempts.

1. Performing home visits to assess families who may be vaccine-hesitant or anti-vaccination, providing evidence-based information, collecting their feedback, and documenting it for immunisation surveillance and data tracking.

1. Participating in public health responses to disease outbreaks (e.g., measles), which includes assessing exposure risk and administering prophylactic treatments, such as Immunoglobulin, to prevent community spread.

• [11] Ms Hsueh submits that she is often requested to perform her duties through a split structure, which she understands to be as a result of the funding for her role deriving from both Immunisation Outreach funding and Child Health Funding. Ms Hsueh submits that she performs work as a fixed-term temporary employee and as a casual, in relation to what is the same role or work. She provides the example of a four-shift week where she may work two-days under a temporary contract and two-days as casual hours, with each being processed under different payroll numbers.[12]

• [12] In her Appeal Notice, Ms Hsueh notes that she knows the substantive position holder and is of the understanding that this employee has relocated to Kuranda and does not intend to return to the role. Further, Ms Hsueh submits that this employee is currently employed in the Kuranda Clinic where she performs '... many of the same tasks and duties across the Tablelands region that Ms Hsueh provides in the Cairns Region'.[13]

• [13] Ms Hsueh submits that the substantive position holder has publicly informed other staff members that she does not intend to return to her position and that, in light of this, that the CHHHS has not '... conducted a fulsome review as to whether there is a continuing need for Ms Hsueh to remain in the role or one that is substantially similar'.[14] She says that the CHHHS has taken a '... bare approach where it says the incumbent is returning because her secondment is ending'.[15] She submits that the Respondent has decided not to convert her to permanent on the basis that it has identified the rationale for Ms Hsueh's current contract extension as being to backfill this secondment in circumstances where it is due to come to an end.

• [14] Ms Hsueh submits that the approach of the Respondent as canvassed above is not fair and reasonable. Ms Hsueh says that, as is the case with all temporary absences, '[t]he original reason for appointment will always eventually come to an end, however, there remains the question of whether there is a continuing need beyond the ending of the original reason for the temporary engagement'.[16]

• [15] Ms Hsueh submits that in circumstances where the substantive position holder has relocated and is employed by the clinic in that location, that the continuing need is 'obvious'. Further, Ms Hsueh says in the alternative that even if the substantive position holder returned to her position, that she has had her temporary engagement extended seven times and that the CHHHS will likely source further temporary work for her.[17]

• [16] The Respondent agrees with Ms Hsueh that she has been employed for the requisite two-years.[18] Notwithstanding this length of service, the Respondent submits that there is not a continuing need for Ms Hsueh to be employed as a Clinical Nurse.[19] The Respondent makes this submission in circumstances where the position that Ms Hsueh is currently temporarily employed in is for the purposes of filling another employee who is currently on secondment.[20]

• [17] The Respondent submits that the substantive role holder's secondment is temporary and that she is backfilling a part-time parental leave return to work arrangement within another position within the service which will conclude 21 December 2025.[21] The Respondent disputes the Appellant's submissions that the substantive position holder does not intend on retuning to her role, submitting that '[o]n 31 October 2025, the substantive incumbent advised, she has no intention to resign from her substantive role of Clinical Nurse Immunisation Program'.[22] The Respondent submits that 'it is not uncommon for CHHHS staff to reside outside of Cairns (i.e. in Atherton, Mareeba Kuranda, Port Douglas etc)'.[23]

• [18] The Respondent submits that there is '... no ambiguity of the intentions of the substantive role holder and argues there is a compelling reason to find that there is not a continuing need for the Applicant (sic) to fill the role of Clinical Nurse Immunisation Program on an ongoing basis as it is not a permanent vacancy'.[24]

Is there a continuing need for Ms Hsueh to perform a role substantially the same as her role?[25]

• [19] Ms Hsueh says that the only other reason why the Respondent has decided not to convert her temporary employment to permanent is the decision-maker's comment that '[a] review with the Nursing Support Unit was conducted and as of 19 September 2025, there are no permanent positions in their unit to convert you into'.[26] Ms Hsueh goes on to question whether the review was potentially inferior:[27]

In circumstances where the Health Service has declined to convert Ms Hsueh because a secondment is coming to an end, it follows, the review as to available permanent positions is realistically the extent of Mr Boothey's consideration of whether there was a continuing need for Ms Hsueh to continue performing the role or one which is substantially [the same].

• [20] Ms Hsueh draws a parallel to the decision of Quinn,[28] decided by Industrial Commissioner Dwyer. She submits that the decision-maker appears to have fallen into error in deciding not to convert her employment to permanent because he has determined that there are no permanent positions in the unit into which Ms Hsueh can be converted into.[29]

• [21] With respect to whether funding and genuine operational requirements may prevent Ms Hsueh's conversion to permanent, Ms Hsueh notes that the decision-maker did not raise this as an issue in the decision letter.[30] With respect to this issue, Ms Hsueh cites my decision of Catterall.[31]

• [22] Ms Hsueh summarises her position, noting specifically that the CHHHS:[32]

... has failed to heed the principles of the PS Act in temporarily employing Ms Hsueh for a period of 8 years and 26 days. It has then failed to properly comply with its obligations in making a decision about her conversion to permanent employment, dubiously relied on the fact that the substantive position holder is returning to the role and then has asked itself the wrong question with respect to continuing need, possibly incorporating hidden funding considerations in circumstances where that is not a genuine operational requirement preventing conversion. This is all worsened because the Health Service was well aware of what it needed to properly consider given the Quinn decision.

• [23] With respect to the Respondent's submissions that the substantive role holder did not have an intention to resign, Ms Hsueh submits that the CHHHS is asking the incorrect question and, instead, the correct question is whether, '... on those circumstances is there a continuing need for somebody in the role, or in a role that is substantially the same'.[33] With respect to this point of contention, Ms Hsueh says that the Respondent has failed to adequately address this point.

• [24] Ms Hsueh cites the decision of Industrial Commissioner McLennan in Keenan,[34] wherein it was decided that there is a continuing need for an Appellant in their current role where it '... does not displace the substantive incumbent from returning to their position, should that transpire to be the case at some point in the future'.[35]

• [25] Furthermore, Ms Hsueh disputes that converting her to permanent would result in 'the establishment of an ongoing role which is not required, needed and/or currently not funded or budgeted for...' nor would it result in any compromise of the effective management of resources within the [CHHHS]'.[36] Ms Hsueh submits that a conversion to permanency would not result in the above in circumstances where:[37]

1. The Health Service has not established, in any substantive way, that Ms Hsueh's role is not required or that there is no continuing need for somebody to remain in her role or in one that is substantially the same.

1. It appears the Respondent has given no consideration to whether there might be another role available that is substantially the same, noting that the offer made is at a lower classification level.[38]

1. As outlined in paragraphs 32-34 of the Appellant's submissions filed on 16 October 2025, funding or budgetary constraints do not constitute a genuine operational reason preventing conversion in these circumstances.

1. In Dean v State of Queensland (Queensland Health) [2025] QIRC 283 a near identical unsuccessful submission was made by the Respondent with respect to an A05 Quality & Safety Officer. Similarly, here, the submissions on this point are brief and not supported by any additional information or documents.

1. Given the above matters and that these reasons were not included in the decision subject to appeal, it is submitted they should be given little weight.

• [26] The CHHHS submits that genuine operational requirements exist which prevent the Respondent from converting Ms Hsueh's employment to permanent in circumstances where it would '... result in the establishment of an ongoing role which is not required, needed and/or currently not funded or budgeted for, compromising the effective management of resources within the [CHHHS]'.[39]

• [27] Regarding the historical status of Ms Hsueh's employment. The Respondent says that Ms Hsueh has '... historically been employed in a casual capacity within the School Immunisation Program to deliver immunisations in high schools'. The CHHHS says that shifts are offered on an intermittent basis with various unstable factors including, for example, the size of the year level being vaccinated. The Respondent submits that considering the variability of work, '... there are no permanent roles in this program except for the Program Co-ordinator'.[40] Further, the Respondent submits that casual shifts within the child health immunisations clinic are not currently being offered.

• [28] The CHHHS also submits that '[o]n 29 October 2025, the Respondent offered the Applicant (sic) permanent employment as a Registered Nurse'.[41]

• [29] The Respondent also submits that Clinical Nurse roles are specialised and require specific qualifications and experience pursuant to the Nurses and Midwives (Queensland Health) Award.[42] The Respondent says that it is on the basis that the role is specialised and requires '... differing specialised qualification/s and/or experience, it was determined a role substantially the same as the Clinical Nurse Immunisation Program, could not be identified'.[43]

• [30] I have considered Ms Hsueh's submission that that the notice did not contain information about 'each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment' has not been complied with and that the decision-maker does not provide this required information.[44] Neither Ms Hsueh nor the CHHHS have provided me with submissions as to how many previous reviews have been undertaken. I am unable to determine whether the information has been omitted or whether it is the case that no previous reviews have been undertaken. The decision letter does address the history of Ms Hsueh's temporary employment, and I am satisfied that this is something the decision-maker considered.

• [31] The letter should have referred to decisions previously made or taken to be made in relation to Ms Hsueh's employment. However, I will not set the decision aside on that basis as I do not believe the inclusion of that information, if it exists, would have changed the outcome of the review. In circumstances where the temporary appointment is due to end on 21 December 2025, there is no utility in directing the decision be reissued.

• [32] I understand that at the time of filing her appeal, Ms Hsueh believed the substantive role holder she is backfilling was not returning to the role and had announced this intention to other employees.

• [33] Ms Hsueh may still believe that the substantive role holder is not returning to her role, however, there is nothing before me to undermine the Respondent's submission that it has confirmed with the substantive role holder that they do not intend to resign from their position.

• [34] I understand Ms Hsueh's reference to Keenan in which it was stated that a permanent conversion of a person to a role would not stop a substantive role-holder from returning to their position. In that decision that it was determined by the Commission that there was a continuing need for Mr Keenan to undertake the duties he was fulfilling and that the need for him to undertake those duties would not be displaced by the return of the substantive role holder. In this case, Ms Hsueh has been quite specifically fulfilling 0.42 of the 1.0 FTE Program Co-ordinator role. Ms Hsueh has been engaged in a temporary fixed term capacity for the purpose of backfilling a substantive role holder and I accept that there is not a continuing need for her to be employed in that role following the expected return of the substantive role holder.

• [35] It is not controversial that Ms Hsueh has been employed in either a temporary or casual capacity over an extended period of time. This may point to a continuing need for her to be employed in a role substantially the same as the one she is currently temporarily employed in in a backfilling capacity.

• [36] It is well-established that while a lack of permanent funding or vacancy may provide an operational reason precluding conversion to permanent, there is no requirement that a role be substantively vacant or that funding exist before appointment to a permanent role can occur. While the Respondent has addressed the matter of operational requirements in its submissions, this was not the basis for the decision under appeal. The matter before me is whether it was fair and reasonable for the decision-maker to determine that there was no continuing need for Ms Hsueh to be employed in the role, or a role substantially the same as the role she has been temporarily engaged in.

• [37] The Respondent has identified that the additional casual work Ms Hsueh has undertaken with the Clinical Nurse Immunisation Program has been in response to a particular need, for example, the size of a year level cohort being immunised. In those circumstances, while they may be the intermittent or occasional need for someone to be employed in a role substantially the same, I accept that there is not a continuing need for someone to be permanently employed in a role substantially the same. In fact, the Respondent submits that there are also no casual shifts being offered in the clinic.

• [38] The Respondent submits that it has reviewed other roles that are substantially the same. To that end, the Respondent points to the Clinical Nurse Child Health role. The Respondent notes that this role requires the successful applicant to hold specific qualifications and/or experience and a post-graduate qualification in Community and Child Health Nursing. This is an important matter, as the PS Act requires not only that there be a continuing need for someone to be employed in the role, or a role substantially the same, but also that the employee is suitable to perform the role.[45]

• [39] It was based on the differing specialised qualifications and/or experience required of other Clinical Nurse roles that the CHHHS says it could not identify a role substantially the same as the one she is currently backfilling. Ms Hsueh is not suitable for appointment to those roles as she does not hold the specialised qualifications or experience required for those roles.

• [40] While not included in the letter, throughout the course of submissions, the Respondent has explained that other continuing work for Clinical Nurses in the Child Health area, should it be available, carries specific suitability requirements. While it may have been ideal for the Respondent to include this detail in the decision, rather than to provide it after Ms Hsueh felt compelled to appeal the decision, I am not minded to require the Respondent to re-issue the decision with that inclusion in circumstances where it will have no impact on the outcome of the review.

• [41] I have had regard to cases Ms Hsueh has drawn to my attention. I understand why it is that Ms Hsueh believes Quinn to be particularly on point. Ms Hsueh has been working in a casual or temporary capacity for over 8-years. In Quinn, the employee had been working in a non-permanent capacity for over 12-years. In Quinn, the employee was an administrative officer, and the decision-maker did not turn to the question of suitability or qualifications/experience for permanent employment in other roles substantially the same.

• [42] The decision states that a review had been undertaken and that there were no available permanent positions to convert Ms Hsueh into. While Ms Hsueh argues that this was an insufficient investigation on the part of the Respondent, it is a sensible step to be undertaken by an employer. If there is a permanent vacancy, that may be an indication that there is a continuing need for someone to perform the work, and this may lead to the permanent appointment of the employee to that role.
• [43] A review of Ms Hsueh's employment history indicates that she has worked in both Clinical Nurse and Registered Nurse positions. There may be a continuing need for Ms Hsueh to perform nursing duties at the CHHHS, however, I accept that the return of the substantive role holder means that there is not a continuing need for Ms Hsueh to perform Clinical Nurse duties in the Immunisation role she has been filling.

• [44] I accept that a Clinical Nurse Child Health role may be 'substantially the same' but that Ms Hsueh is not suitable to perform that role on a permanent basis as she does not hold the requisite qualifications and/or experience. I am unwilling to order the appointment of Ms Hsueh to a Clinical Nurse Child Health position in circumstances where it would mean the Respondent would have a permanently employed Clinical Nurse who was not suitable to undertake the duties of the role.

• [45] It was fair and reasonable for the Respondent to determine that there was not a continuing need for Ms Hsueh to be employed in the role or a role substantially the same.

• [46] Because there is no continuing need for Ms Hsueh to perform the role or a role substantially the same, it was not necessary for the Respondent to consider the matter of whether there were genuine operational requirements preventing her appointment. That the decision did not explore the operational requirements of the Respondent does not render it unfair or unreasonable.

• [47] For the reasons given from paragraphs [32]-[46] of these reasons for decision, the decision of 30 September 2025 declining to convert Ms Hsueh's employment to permanent was fair and reasonable. The decision is confirmed.

• [48] While not directly related to the decision under appeal, I note that the CHHHS has offered Ms Hsueh permanent employment in the position of a Registered Nurse working 64-hours per fortnight. The letter of offer provides Ms Hsueh with seven-days to consider the offer. While that seven-day period has now passed, it seems to me that it would be fair and reasonable for the CHHHS to keep that offer open for Ms Hsueh's consideration.

• [49] Accordingly, I make the following orders:

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

[1] Appeal Notice filed in the Industrial Registry on 16 October 2025, [2].

[2] Industrial Relations Act 2016 (Qld) s 562B(2).

[3] Ibid s 562B(3).

[4] Correspondence dated 29 October 2025 attached to Respondent's submissions filed in the Industrial Registry on 31 October 2025.

[5] Appeal Notice (n 1), decision letter.

[6] Public Sector Act 2022 (Qld) ('PS Act'), s 114(3)(a)(i).

[18] Respondent's submissions (n 4), [14].

[21] Respondent's submissions in reply filed in the Industrial Registry on 27 November 2025, [5].

[22] Respondent's submissions (n 4), [18].

[24] Respondent's submissions in reply (n 21), [7].

[25] PS Act s 114(3)(a)(i).

[28] Quinn v State of Queensland (Queensland Health) [2023] QIRC 24 ('Quinn').

[31] Catterall v State of Queensland (Queensland Police Service) [2021] QIRC 360 ('Catterall'). I have considered Catterall, which was an appeal of a deemed decision. The decision was not about any deficiency of written reasons given as not written notice was provided to Mr Catterall.

[33] Appellant's submissions in reply filed in the Industrial Registry on 13 November 2025, [10].

[34] Keenan v State of Queensland (Queensland Health) [2023] QIRC 297 ('Keenan').

[36] Appellant's submissions in reply (n 33), [12].

[38] This is a reference to an offer of permanency made during the course of this appeal.

[39] Respondent's submissions (n 4), [20].

[42] Respondent's submissions in reply (n 21), [8].

[45] PS Act, s 114(3)(a)(ii).