Jones v State of Queensland

Public Service Act 2008 (Qld) ss 148, 149A, 149B

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

• [1] Since 15 October 2018, Ms Judith Jones has been employed as a fixed term temporary employee in three AO2 Administrative Officer positions within Finance and Document Services, Service Delivery, Queensland Shared Services ('QSS'). She is employed by the State of Queensland through the Department of Housing and Public Works ('the Department').

• [2] The timeline for each position is as follows:

• AO2 Administrative Officer (76020935) from 15 October 2018 - 20 December 2019 to backfill the substantive employee;

• AO2 Administrative Officer (76019712) from 21 December 2019 - 25 September 2020 to perform work to meet an unexpected increase in workload; and

• AO2 Administrative Officer (76019596) from 26 September 2020 - 31 March 2021 to perform work to meet an unexpected increase in workload.

• [3] The engagements were all temporary and the latest position was due to end on 31 December 2020. In correspondence received from the Department on 4 December 2020, Ms Jones' engagement was extended to 31 March 2021 'to perform work necessary to meet an unexpected short-term increase in workload' which was a continuation of the temporary circumstances.

• [4] On 15 October 2020, Ms Sharon Dickman, Executive Director of Service Delivery in QSS advised Ms Jones by email that she was eligible for a review of her fixed term temporary status.

• [5] On 21 October 2020, Ms Jones requested a review of her fixed term temporary status.

• [6] On 12 November 2020, Ms Jones received correspondence from Mr Andrew Spina, Deputy Director General of Services Delivery and Operations of the Department. The correspondence advised Ms Jones that a review of her employment status had been conducted in accordance with s 149B of the Public Service Act 2008 (Qld) ('PS Act') and Directive 09/20 Fixed Term Temporary Employment ('the Directive').

• [7] She was advised that while there was no issue as to the merit of her application for review, her employment would continue on a fixed term temporary basis with the Department ('the decision').

• [8] The reasons for the decision were set out as follows:

Having considered the information available to me, I have determined that the temporary circumstances for your engagement are continuing and that your employment will continue on a fixed term temporary basis. The reasons for my decision are as follows:

• The purpose of your current placement in the position of AO2, Administrative Officer, Finance and Document Serv ices, Service Delivery, QSS, position number 76019596, is to perform work necessary to meet an unexpected short-term increase in workload.
• QSS are currently undertaking several projects to automate manual data entry processes by 30 June 2021. The projects currently underway include:
  • - General ledger automation
  • - Electronic form review and improvement
  • - Categorisation of incoming documents in ServiceNow.
• The implementation of the abovementioned projects will reduce the requirement for transactional data processing undertaken by QSS staff, which is currently undertaken by the AO2, Administrative Officer roles, including the role you are performing.
• As a result of the QSS projects end date of 30 June 2021, should your fixed term employment as an AO2, Administrative Officer, Finance and Document Services, Service Delivery QSS be extended beyond your current end date of 31 December 2020, your fixed term employment as an AO2, Administrative Officer, Finance and Document Services, Service Delivery QSS will not be extended beyond 30 June 2021.
• No other roles with substantially the same capability requirements have been identified that there is a continuing need for you to perform.

• [9] In response to the decision, Ms Jones filed an Appeal Notice on 1 December 2020. In her appeal, she contended that:

• She worked in the latter two AO2 positions (76019712 and 76019596) not due to an unexpected increase in workload but because the positions became available due to the retirement of the substantive employees;

• She is hoping this clarification will assist in a favourable change of outcome of the decision;

• Despite QSS undertaking business improvements, there is a need for an operational procurement officer to create purchase orders and goods receipts for the Department's 21 client agencies; and

• She has performed at a very high level for many years and has a variety of skills and abilities which will transfer easily to an AO3 position when her AO2 role may be phased out.

• [10] Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]

• [11] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[5]

• [12] The issue for my determination in the matter before me is whether the decision to refuse to convert Ms Jones's temporary employment was fair and reasonable.[6]

• [13] For the reasons set out below, I have determined that the decision was fair and reasonable**.**

What decisions can the Industrial Commissioner make?

• [14] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:

(b) set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or

(c) 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.

Relevant sections of the PS Act and Directive

• [15] The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.

• [16] The PS Act relevantly provides:

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if -

(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.

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.

(a) section 149A(2) and (3) applies to the department's chief executive; and

(b) the department's chief executive must have regard to the reasons for 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.

(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 -

(b) the total period for which the person has been continuously employed in the department; and

(c) for a fixed term temporary employee - how many times the person's employment as a fixed term temporary employee or casual employee has been extended; 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.

• [17] Clause 8 of the Directive provides as follows:

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.

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.

• [18] The Department filed written submissions in accordance with a Directions Order dated 10 December 2020. Ms Jones did not file submissions in reply.

• [19] The Department contends, for reasons set out in their submissions filed 14 January 2021, that genuine operational requirements preclude Ms Jones' permanent appointment to the position. In summary, it submits that:

• Since 15 October 2018, Ms Jones has been extended as a fixed term temporary employee 11 times by the Department;

• Ms Jones' temporary engagement as an AO2 Administrative Officer (position number 76019596) is to perform work necessary to meet an unexpected short-term increase in workload, there will not be a continuing need for her to be employed in the position once the workload decreases;

• Per s 148(1) of the PS Act, employment may be fixed term temporary to perform work ordinarily performed by a public service officer, if employment on tenure is not viable, having regard to human resources planning;

• Per s 148(2)(e) of the PS Act, a person may be employed for a fixed term to perform work necessary to meet an unexpected short-term increase in workload;

• Mr Jones should not be appointed permanently having regard to sections 148(1) and 148(2)(e);

• QSS are undertaking projects which will automate manual data entry processes by 30 June 2021 and perform work which is predominantly currently undertaken by AO2 Administrative Officers such as Ms Jones;

• When the load of work decreases, there will no longer be a continuing need for Ms Jones to be engaged in the AO2 position; and

• After enquiring with human resources, it was found that there were no other positions with the same or substantially the same capability requirements as Ms Jones' current position.

• [20] The submission of the Department regarding the automation of Ms Jones' current role and others like it was not contradicted by Ms Jones.

• [21] I am satisfied that the role is not ongoing. I am equally satisfied that there are no other roles that are substantially the same that are ongoing.

• [22] Deputy President Merrell held in Morison v State of Queensland (Department of Child Safety, Youth and Women):[7]

The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive. As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy. The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

The adjective 'genuine' relevantly means '... being truly such; real; authentic.' The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst 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 or casual basis occurs only if there is a reason for the basis of employment under the PS Act.

The phrase '... genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '...the position at the higher classification level.'

• [23] The redundancy of the positions as a consequence of the automation creates a compelling and genuine operational requirement that would preclude conversion. The reliance on this ground by the Department is sound in my view.

• [24] I have significant sympathy for Ms Jones who undoubtedly has earned her right to be converted in every other respect. In their submissions the Department said of Ms Jones:[8]

The Appellant has performed at a very high level for many years and has a variety of comprehensive skills that are transferable to any AO3 positions if and when the AO2 Administrative Officer position they are temporarily engaged in is phased out.

• [25] Given the strength of this accolade, I would expect that the Department will make every effort to ensure that Ms Jones' ambition to secure a permanent position is realised sooner rather than later. The provisions of s 148 of the PS Act and the principles set out in clause 4 of the Directive should not be regarded as idle words. They establish that employment on tenure is the intended default position for public service employees, and that temporary employment should be the exception and not the rule.

• [26] Notwithstanding my sympathy for Ms Jones, in all of these circumstances of this appeal, I conclude the decision is fair and reasonable.

• [27] In the circumstances I make the following order:

1. The decision appealed against is confirmed.

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

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3] Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[5] Industrial Relations Act 2016 (Qld) s 562B(3).

[6] Page v John Jones and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[7] [2020] QIRC 203, 12 [37]-[40].

[8] Respondent's Submissions filed 14 January 2021, p 2.