Keenan v State of Queensland

s 562C, s 564, s 567

Public Sector Act 2022 (Qld) s 4, s 81, s 114, s 115, s 131, s 132, s 133

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 02/23: Review of non-permanent employment cl 1, cl 4, cl 7, cl 10

Benson v State of Queensland (Department of Education) [2021] QIRC 152

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

IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

Katae v State of Queensland & Anor [2018] QSC 225

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

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

Palomino v State of Queensland (Department of Education) [2021] QIRC 129

Power v State of Queensland (Department of State Developments, Tourism and Innovation) [2021] QIRC 53

• [1] Mr Christopher Keenan (the Appellant) is currently employed as a Data Collection Coordinator in the Statistical Collections and Integration Unit within the Statistical Services Branch (SSB) of Queensland Health, by the State of Queensland (the Respondent).
• [2] The Appellant is engaged on a fixed-term temporary contract with an end date of 31 December 2023.
• [3] First commencing with the Respondent on 13 June 2020, the Appellant would have worked on consecutive fixed-term temporary arrangements for more than three years and six months at the time of the expiry of his current contract.
• [4] In correspondence dated 5 July 2023, Ms Trisha Johnston, Acting Executive Director, SSB, Healthcare Purchasing and System Performance (HPSP) (the decision-maker) advised the Appellant:
  • he will not be converted to permanent employment and will continue as a fixed-term temporary employee at this time;
  • the reason for this decision is that there is no continuing need for someone to be employed in the role, or a role that is substantially the same;
  • there is no continuing need for the Appellant to perform his current role because the substantive incumbent is returning to the role on a full-time basis;
  • there is no continuing need for the Appellant to perform a role that is substantially the same; and
  • he has demonstrated that he satisfies the suitability requirements of the role.

• [5] On 14 July 2023, the Appellant filed an appeal against the Decision not to convert the Appellant's fixed-term temporary employment to permanent.

• [6] Section 115 of the Public Sector Act 2022 (Qld) (PS Act) provides that the "Chief executive must review status after 2 years of continuous employment" and applies if "a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years." Pursuant to s 115(2)(b) of the PS Act, a subsequent review must be conducted after each additional year where an employee remains continuously employed. On 13 June 2023, the Respondent undertook a review of the Appellant's employment status in accordance with s 115(2)(b) of the PS Act.[1]
• [7] The Appellant commenced employment with the Respondent as an Assistant Project Officer, State Health Emergency Coordination Centre (SHECC), Interim COVID-19 Division. From his date of commencement on 13 June 2020, the Appellant was extended eight times through to 27 March 2022. Between 28 March 2022 and 30 June 2022, the Appellant was further engaged as a Senior Project Officer, Interim COVID-19 Division.
• [8] On 15 June 2022, the Appellant requested a review of his employment. A decision was made on 30 June 2022 by the Respondent not to convert the Appellant to permanent employment, on the basis that there was no continuing need due to the future reduction and cessation of SHECC.
• [9] On 1 July 2022, the Appellant commenced as a Data Collection Coordinator. His current contract end date is 31 December 2023.
• [10] The Appellant requested a review of his employment status on 15 February 2023 and 10 March 2023, which was considered by the Respondent under s 113 of the PS Act and Directive 02/23: Review of non-permanent employment (Directive 02/23).
• [11] A decision was made on 29 March 2023 not to covert the Appellant on the basis that there was no continuing need for someone to be employed in the role in which the Appellant is currently employed or a role that is substantially the same. That decision was not appealable, under s 132(1)(j) of the PS Act.
• [12] In accordance with s 115(2)(b) of the PS Act, following the Appellant's three-year anniversary of continuous employment, the Respondent again undertook a review of the Appellant's employment status. The decision maker once again decided not to convert the Appellant to permanent employment.

• [13] Section 131(1)(a) of the PS Act prescribes that an appeal may be made against a conversion decision.
• [14] Section 133 of the PS Act prescribes that "the public sector employee the subject of the decision" may appeal "against a conversion decision".
• [15] I am satisfied the Decision was made under s 115 of the PS Act and is able to be appealed by the Appellant.
• [16] There is no dispute between the parties that the decision is able to be appealed by the Appellant.

• [17] Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
• [18] The effective date of the Decision was 5 July 2023.
• [19] In accordance with s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 14 July 2023.
• [20] There is no dispute between the parties that the appeal was filed in time.

• [21] Section 562C(1) of the Industrial Relations Act 2016 (IR Act) prescribes that the Commission may determine to either:
  • confirm the decision appealed against;

• set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or

• set the decision aside and substitute another decision.

• [22] Sections 562B(2) and 562B(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
• [23] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process. [2]
• [24] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.
• [25] The issue for my determination is whether the decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[3]

Relevant Principles of the PS Act and Directive 02/23

The main purpose of this Act is to be achieved primarily by -

(a) ensuring the public sector is responsive to the community it serves by -

(iv) taking measures to promote the effectiveness and efficiency of public sector entities; and

(c) creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -

(i) providing for the key rights, obligations and employment arrangements of public sector employees; and

(ii) maximising employment security and permanency of employment; and

(iii) taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and

(iv) ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and

(v) ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

(d) establishing a high-performing, apolitical public sector by effective stewardship that -

(i) responds to the needs of the community and the government; and

(ii) maintains accountability, impartiality and integrity, while supporting the public interest, and when giving advice to the government; and

(iii) focuses on the delivery of services and government programs; and

(iv) supports the government in making and implementing decisions about public policy while harnessing creativity and innovation; and

(v) ensures public resources are managed efficiently and their use is accountable.

81 Basis of employment - generally on permanent basis

(1) Employment of a public sector employee is on a permanent basis unless the employee is employed on a non-permanent basis under this Act or another Act that enables the person to be employed on a non-permanent basis, including, for example -

(a) on a temporary basis for a fixed term; or

(b) on a casual basis.

(2) However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate.

(3) Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes -

(a) in relation to employment on a temporary basis for a fixed term -

(i) to fill a temporary vacancy arising because a person is absent for a known period; or

approved leave (including parental leave), a secondment

(ii) to perform work for a particular project or purpose that has a known end date; or

employment for a set period as part of a training program or placement program

(iii) to fill a position for which funding is unlikely or unknown; or

employment relating to performing work for which funding is subject to change or is not expected to be renewed

(iv) to fill a short-term vacancy before a person is employed on a permanent basis; or

(v) to perform work necessary to meet an unexpected short-term increase in workload;

an unexpected increase in workload for disaster management and recovery

(4) Without limiting subsection (3)(a), employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis.

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

(5) Without limiting subsection (3)(b), employment of a person on a permanent basis, or on a temporary basis for a fixed term, may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(b) on a regular or systematic basis.

an ongoing requirement to fill gaps in various work rosters, on a regular and systematic basis

(3) The employee's chief executive may decide to offer to convert the employee's employment to a permanent basis only if -

(i) there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and

(ii) the employee is suitable to perform the role; and

(b) any requirements of an industrial instrument are complied with in relation to the decision.

(4) If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

115 Chief executive must review status after 2 years of continuous employment

(1) If a public sector employee mentioned in section 112(1) has been continuously employed in the same public sector entity for at least 2 years, the employee's chief executive must decide whether to -

(a) continue the employee's employment according to the terms of the employee's existing employment; or

(b) offer to convert the employee's employment to a permanent basis.

(2) The employee'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 on a non-permanent basis in the public sector entity; and

(b) each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed on a non-permanent basis in the public sector entity.

(a) section 114(3) and (4) applies to the employee's chief executive; and

(b) the employee'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 114 in relation to the employee during the employee's period of continuous employment.

(4) If the employee's chief executive decides not to offer to convert the employee's employment to a permanent basis, the chief executive must give the employee a notice stating -

(b) the total period for which the employee has been continuously employed on a temporary basis for a fixed term or on a casual basis in the public sector entity; and

(c) how many times the employee's employment on a non-permanent basis has been extended; and

(d) 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.

1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.

4.2 Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.

4.3 Under section 81 of the Act, employment of a public sector employee is generally on a permanent basis unless it is not viable or appropriate.

4.4 Employment on a permanent basis may not be viable or appropriate if the employment is for any of the reasons provided for at section 81(3) of the Act.

4.7 Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.

4.8 In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

• [32] Clauses 7 and 10 of Directive 02/23 state:
  1. Employer obligation to undertake a review of non-permanent employment

7.5 When a chief executive starts a review of an employee's employment status under section 115 of the Act, the chief executive must notify the employee.

10.1. A public sector employee is to be considered suitable to perform the role where:

1. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
2. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
3. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.'

• [33] Directive 02/23 is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[4]
• [34] Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.

• [35] In accordance with the Directions Order issued, the parties filed written submissions.
• [36] Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.
• [37] I have carefully considered all submissions and annexed materials.
• [38] The Appellant submitted that his employment should be converted to permanent because:
  • He satisfies the conversion criteria set out in the PS Act and Directive 02/23.
  • The continuing need for the Appellant to be employed in the role is evidenced by the numerous, recurring contract extensions he has received.
  • There is a continuing need for the Appellant's role or one substantially the same, to assist with the ongoing management and analysis of records received by the Respondent. That work is ongoing, as the function ensures the delivery of Commonwealth funding to Queensland.
  • The department has made strong investment in both internal and external training to develop the Appellant's knowledge and skills.
  • The Appellant's skills, knowledge, and experience with data collection would be readily transferable to another team within the SSB Division, working on a different data collection.
  • The Appellant meets the 'suitability' criteria.
  • He is not subject to any unresolved and documented conduct or performance matters that have been put to him in writing.
  • Conversion to permanency is viable and appropriate, having regard to the genuine operational requirements of the Respondent.
  • Despite the substantive incumbent's expected return, it would be reasonable to assume that there will be similar work for the Appellant considering the increasing workload.
  • Another member of the Appellant's team previously applied for and was approved for conversion, with an application that was essentially the same.
  • The review undertaken by the SSB Business Services team states that there is no budget available to establish an additional AO5 conversion position.
  • There are no genuine operational requirements preventing conversion. Although the Appellant is currently backfilling an absent employee, he stated that:

The area I work in is currently under-resourced, and this year additional positions were requested to assist with the current and projected future workload. Given the increasing workload and the proposal to increase staffing in the Branch, it is reasonable to assume that there will be similar work for me to do even if the substantive incumbent returns.[5]

• [39] The Respondent does not dispute that the Appellant met the merit principle and is otherwise suitable.
• [40] The Respondent submitted the Appellant's employment should not be converted to permanent because:
  • There was no continuing need for someone to be employed in the role or a role that is substantially the same.
  • The role is not substantively vacant, and the incumbent is expected to return to the role on a full-time basis.
  • The Respondent reviewed current roles within the SSB and the HPSP Division which were the same or substantially the same, and concluded there were none available at the time of the review.
  • An additional review of Queensland Health within the Greater Brisbane Region was undertaken, "which resulted in no substantially the same permanent positions being available."[6]

• [41] I am required to decide this appeal by assessing whether or not the decision appealed against was fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.

• [42] Section 114(3) of the PS Act contains the mandatory decision criteria for temporary employment conversions to permanent, where the chief executive considers:
  • there is a continuing need for someone to be employed in the employee's role, or a role that is substantially the same as the employee's role; and

• the employee is suitable to perform the role; and

• any requirements of an industrial instrument are complied with in relation to the decision.

• [43] Section 114(4) of the PS Act states (emphasis added):

If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

• [44] Section 115(3)(b) of the PS Act provides that (emphasis added):

The employee'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 114 in relation to the employee during the employee's period of continuous employment.

Is there a continuing need for someone to be employed in the employee's role - or a role that is substantially the same as the employee's role?

• [45] There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same.

Pathway 1: Is there a continuing need for someone to be employed in the employee's role?

• [46] The decision maker determined that "there is no continuing need for (the Appellant) to perform your current role because the substantive incumbent is returning to the role on a full-time basis."[7]
• [47] That reasoning was relied on in the Respondent's submission that there was no 'continuing need' for Mr Keenan to be employed because:

... the role is not substantively vacant, and the incumbent is expected to return to the role on a full-time capacity.[8]

• [48] In his original Appeal Notice file don 14 July 2023, Mr Keenan stated:

I've been told that there isn't a continuing need for me in this position because the substantive incumbent will return. However, the incumbent has been gone since April 2022 and will not return until January 2024 at the earliest, if at all.[9]

• [49] The Appellant's assertion was not denied by the Respondent. I note that between the Decision Letter being issued on 5 July 2023 and the Respondent's submissions being filed on 9 August 2023, there appears to be change in the strength of certainty of the substantive incumbent's return, from "is returning" to "is expected to return".
• [50] Mr Keenan's current role is 'Data Collection Coordinator' with Queensland Health. While only one person typically would hold a 'position', several people may fulfill a 'role'. The Appellant's submissions contend that to be the case here.
• [51] Mr Keenan pointed to the continuing need for him to be employed in his current role (or a role substantially the same) - even if the substantive incumbent were to return - due to factors including an increase in current and projected workload, proposed staffing increase and ongoing need for the function to be performed. The Appellant submitted that:[10]

There is a continuing need for my role, or one like it, with these and other skills, to assist with the ongoing management and analysis of the millions of records received into these collections every year. This work will continue to be required in the public service as the data submitted to these collections requires ongoing management and maintenance to ensure that correct data is sent to the Independent Health and Aged Care Pricing Authority (IHACPA). This is turn ensures that the funding is sent from the Commonwealth to Queensland.

The area I work in is currently under-resourced, and this year additional positions were requested to assist with the current and projected future workload. Given the increasing workload and the proposal to increase staffing in the Branch, it is reasonable to assume that there will be similar work for me to do even if the substantive incumbent returns.[11]

• [52] Those assertions are not disputed by the Respondent, in its subsequent submissions.
• [53] I note that the Appellant's fixed-term temporary employment with Queensland Health has been extended fourteen[12] times since his commencement with the department on 13 June 2020.
• [54] As I found in Benson v State of Queensland (Department of Education),[13] although backfilling[14] may have constituted a reason for the Respondent to initially employ an employee on a temporary basis, after more than three years of meritoriously undertaking various roles[15] for extensive periods of time, I do not consider it reasonable for the Department to rely on that indefinitely.
• [55] Based on the previous, 'frequent or regular' recurring pattern of fixed term temporary engagements, I am persuaded that Mr Keenan's circumstances are consistent with that described in s 81(4)-(5) of the PS Act.
• [56] For all those reasons, I find it is likely there will be a continuing need to continue engaging the Appellant in his current role. That finding does not displace the substantive incumbent from returning to their position, should that transpire to be the case at some point in the future.

Pathway 2: Is there a continuing need for someone to be employed in a role that is substantially the same as the employee's role?

• [57] The Decision Letter stated that the two reviews conducted concluded there was no continuing need for the Appellant to "perform a role that is substantially the same":

A review was conducted within the Statistical Services Branch (SSB) and further to Health Purchasing and System Performance Division (HPSP) which determined that there were no other roles that were substantially the same which could be considered at the time of this review (Attachment 1).

A further review was conducted within Queensland Health of the greater Brisbane region which resulted in no substantially the same permanent positions being available (Attachment 2).

• [58] Clause 13.1 of Directive 02/23 requires:

Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:

1. set out the findings on material questions of fact, and

1. refer to the evidence or other material on which those findings were based.

• [59] The Decision Letter does not provide further detail to explain why there is no continuing need for the Appellant to perform a role that is substantially the same.

• [60] In Palomino v State of Queensland (Department of Education), Deputy President Merrell considered cl 8.4 of Directive 09/20 and concluded the following:

In my view, the decision to not comply with the requirements of section 27B of the Acts Interpretation Act, as required by clause 8.4 of the Directive, and did not comply with the other principles or the adequacy of reasons of administrative decision makers I have referred to above, in respect of the consideration by the decision maker as to whether there was a role that was substantially the same as Mr Palomino's role. It is not sufficient for decision makers, as occurred in the present case, to merely state that the decision maker has taken into consideration, "Whether there is a continuing need for someone to be employed in the role you are performing, or a role that is substantially the same as the role you are performing".[16]

In my view, decision makers must, where the matter of the availability of a role that is substantially the same as the employee's role is being considered, and a decision is made about that matter, set out the findings on material questions of fact, and refer to the evidence or other material in which those findings were based. Further, in my view, in giving reasons for the decision, as required by section 149B(6)(a) of the PS Act, the findings and reasons of that decision must deal with the substantial issues upon which the decision turned, so that the person aggrieved by the decision can understand why the decision went against him or her.[17]

• [62] In Power v State of Queensland (Department of State Developments, Tourism and Innovation), Industrial Commissioner Dwyer concluded the following:

[36] Further, even while the reference to 'the return of an incumbent' might adequately

address the particulars as to why Ms Power's current role is not ongoing, a broad

reference to 'all potential roles have been considered' is insufficient in my view to

explain the apparent absence of a role substantially the same.

[37] In my view, the decision needed to refer to evidence relied on to support this conclusion.

This would include e.g. details of other roles considered and why some might have been

rejected. It must be sufficient to inform Ms Power why the decision was made.[18]

• [63] In Benson v State of Queensland (Department of Education), I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.[19] I have formed a similar view here too.
• [64] It is relevant that s 114(3)(a)(i) of the PS Act requires consideration of the person's role, or a role that is substantially the same. The Department has stopped short of demonstrating its consideration of the entirety of the mandatory criteria.
• [65] I take into consideration the Respondent's submissions in which it submits two searches were conducted, that did not return any results. However, I am not satisfied with that response. At the very least, the Department should have expanded on other roles that were considered - and why they were rejected.

• [66] Surely a further impediment to identifying a role which is substantially the same as that performed by Mr Keenan is that there is no evidence before me that the decision-maker defined a role which is substantially the same in the Decision Letter. Nor has the Department's subsequent submissions adequately addressed this matter. The duty to do so must properly be discharged.
• [67] In addition to overlooking the key issue of defining a role which is substantially the same, the Department did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.
• [68] Most recently, Mr Keenan has worked in a Senior Project Officer role, and now as Data Collection Coordinator in Queensland Health. The Appellant is classified at AO5 classification and described the scope of his role thus:

My role involves the collection, processing, management, compilation and dissemination of non-admitted patient data across several collections. These collections continue to grow and develop with new data items and elements added year on year, all of which need to be interpreted, analysed and made available for consumption by users across the Department of Health and the Hospital and Health Services. It requires skills and experience across a variety of software packages and environments in the Microsoft platform including Excel, SharePoint, Power BI, Power Automate as well as knowledge of Oracle databases and the SQL language for data manipulation.[20]

• [69] Significant investment in training Mr Keenan "in numerous systems and in data analytics" has been made. I accept the Appellant's reasoning that "It does not follow that having invested this time and the resources; that the department would be willing to let me seek permanent employment elsewhere," in circumstances where Mr Keenan's "skills, knowledge, and experience with data collection would be readily transferable to another team within the SSB Division, working on a different data collection."
• [70] I have found that there is a continuing need for the Appellant to be employed in his current role. However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb.

• [71] Section 114(4) of the PS Act provides that when the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity."
• [72] 'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply.[21]
• [73] One relevant rule of statutory interpretation is the principle of 'beneficial legislation'. Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. That principle has been applied to equal opportunity legislation. In IW v City of Perth, it was held that such remedial materials are:

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".[22]

• [74] Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.
• [75] Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women). His Honour's explanation is also useful here (emphasis added):

[37] 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.

[38] 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.

[40] The phrase 'genuine operational requirements of the department' in s 149(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]

• [76] Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those.
• [77] If the inconveniences inherent to most if not all permanency conversions were sufficient to constitute genuine operational requirements, there would be few or no conversions. That interpretation would defeat the purpose of Directive 02/23 and the review.
• [78] In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.
• [79] Section 81(2) of the PS Act provides that a public sector employee may be employed on a non-permanent basis only if the employment of the employee on a permanent basis is not viable or appropriate.

• [80] Section 81(3)(a)(i) of the PS Act indicates employment of a person on tenure may not be viable or appropriate if the employment is for the purpose of filling "a temporary vacancy arising because a person is absent for a known period." While the Department contends the conversion decision was based on the 'expected' return[24] of the substantive incumbent to the role on a full-time basis - it did not refute Mr Keenan's advice that "the incumbent has been gone since April 2022 and will not return until January 2024 at the earliest, if at all".[25]
• [81] Section 81(3) of the PS Act does not prescribe that because an employee is filling a temporary vacancy that the employee should therefore be employed on a temporary basis. Rather, s 81(3) contemplates a range of purposes which may indicate that employment of a person on tenure may not be viable or appropriate. A reasonable decision-maker ought to first identify whether the employee's circumstances fall under one of the listed purposes and then consider the appropriateness and viability of that employee being made permanent in light of that purpose.
• [82] The decision-maker did not reasonably outline why permanent conversion of the Appellant would not be viable or appropriate, other than the return of the substantive incumbent. The matter of 'no budgeted vacancy' appeared in the attached review emails.
• [83] Whilst I acknowledge that is not the decision subject of this appeal, I note that the decision maker had observed in her previous correspondence to the Appellant only four months earlier that the genuine operational requirements preventing his conversion to permanent employment were "Specifically, there is no avenue to create an additional position outside the current budgeted establishment within the Branch or further within the Division."[26]
• [84] Here the Department has simply concluded the Appellant should be employed on a temporary basis because he is backfilling an absent incumbent. That is not sufficient in my view, particularly where I have also concluded that the Department failed to discharge the onus of evidencing consideration of roles that are substantially the same.
• [85] Without specific evidence indicating the Appellant's conversion would affect the efficient, effective and sustainable management of the Department, I am not convinced that an additional permanent staff member would pose a genuine operational requirement that justifies a fair and reasonable refusal to convert the Appellant.
• [86] A budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. There is no indication that the difficulties faced by the Department in this instance would be any different than those posed to most agencies converting employees.
• [87] Mr Keenan's submission on the 'budgeted vacancy' point is most persuasive:
  1. The review by the SSB Business Services team...states that there is no budget available to establish an additional AO5 conversion position. This would seem to be an unrealistically high bar to the success of a review as what business unit or area has a budget specifically set aside in case of a conversion review?

ii. The information provided in the HPSP email...notes that no budget is available, but as with the point made above, why would there be a budget specifically set aside in case of a successful conversion. It also notes that in the case of a successful appeal, that I would be put into a conversion position within the ODDG, implying that means to convert to a permanent position do exist.

There are currently approximately 15 long term contractors working in this branch, with some of them having worked here for over 5 years. If there are funds available to hire these contractors for such a length of time, why are no funds available for conversion positions.[27]

• [88] Considering the length of the Appellant's continuous temporary engagements, there is clearly a continuing need for an additional employee. In a situation where the need is constant and substantial, I do not accept that permanent conversion of the Appellant will have a negative impact on organisational viability. Rather, it appears from the evidence before me that permanent conversion may, to some extent, negate the need for circumstances like backfilling and / or report of quite extensive use of long term contractors, in the future.
• [89] Section 81(4) of the PS Act provides that "employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis." The length of time for which the Appellant has been engaged on temporary contracts suggests there is a need for another permanent employee and it would be unreasonable for the Department to refute the Appellant's request on the basis of the expected return of the substantive incumbent when he has continuously been paid and utilised in the roles extensively.
• [90] The issue is not whether it was appropriate to initially employ the Appellant on a temporary basis. Although the nature of temporary work can be unpredictable, in light of his continuous engagement, I accept the Appellant has been engaged frequently - this is evidence of regularity. I am satisfied Mr Keenan has undertaken such work been on a frequent and regular basis.
• [91] I have concluded that the Appellant's role is continuing and the continual pattern of engaging the Appellant for more than three years illustrates how the Department relies upon the Appellant on an continuing basis. A continuous pattern of temporary contracts indicate that the Appellant is engaged on a systematic basis.
• [92] I am satisfied the Appellant has been employed for a purpose mentioned in s 81(4)(5) of the PS Act on a regular and systematic basis and am satisfied that the Appellant's employment on tenure is viable and appropriate.
• [93] On the material before me, I have found that there is a continuing role, being the role the Appellant is currently undertaking, and that there is a continuing need for him to be employed in that role. In the alternative, I have outlined the unreasonableness of the Department's failure to identify a role that is substantially the same.
• [94] In arriving at this conclusion, I am conscious that the PS Act and Directive 02/23 are purposed with encouraging and maximising security of public sector employment. That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in Directive 02/23 and legislation. Those efforts allow for the achievement of the purpose of Directive 02/23.
• [95] For the reasons outlined above, I find it was not reasonably open to the decision-maker to refusal to convert Mr Keenan to permanent employment. I therefore conclude that the decision was not fair and reasonable in the circumstances.

• [96] There is no dispute that the Appellant satisfies the 'suitability' requirements.

• [97] Neither party presented submissions with respect to any requirements of an industrial instrument to be complied with in relation to the Decision.

• [98] Section 115(3) of the PS Act requires the decision-maker to have regard to the reasons for each decision previously made, or taken to have been made, in relation to the employee during the employee's period of continuous employment.
• [99] The Respondent's reasons for previously refusing the Appellant's conversion to permanent employment were contained in the Decision Letter,[28] as follows:

I note that your non-permanent employment has been previously reviewed two times and the reasons for remaining non-permanent are included below:

1. A review was conducted on 30 June 2022 under the Public Service Act 2008 and the decision for you to remain in non-permanent employment was due to no ongoing need as the Interim COVID19 Division was to be discontinued (Attachment 3).
2. A review was then conducted on 29 March 2023 under the Public Sector Act 2022 and the decision for you to remain in non-permanent employment was due to no ongoing need as the substantive incumbent was returning to the role (Attachment 4). In conducting a review of your non-permanent employment, I have taken this into consideration.

• [100] In my view, careful consideration of the reasons why the Appellant was denied conversion to permanency in the past, along with his employment history, given further weight to the appeal.
• [101] I have earlier dispensed with the 'no budget to create additional position' ground, that was asserted by the decision maker in her correspondence of March 2023.
• [102] The fact that the Appellant's conversion to permanent employment was declined twice before, yet he continued to be continuously employed in roles within the department, underscores the 'frequent and regular basis' of employment.

• [103] I find the Decision to maintain the Appellant on a fixed term temporary basis was not fair and reasonable.
• [104] There is a continuing need for the Appellant to continue working in his current role, or a role that is substantially the same.
• [105] The Respondent has not evidenced any genuine operational requirement that reasonably prevents conversion of the Appellant to permanent employment.
• [106] I order accordingly.

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1. The appeal is allowed;
2. The decision that the Appellant not have his employment converted to permanent is set aside and another decision is substituted; and
3. The Appellant's employment status be converted to permanent employment.

[1] The Respondent's submissions filed 9 August 2023, [1] incorrectly referred to s 113 of the PS Act as the provision under which the conversion decision subject of this appeal was made (rather than s 115).

[2] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) ss 562B(2), 567(1).

[3] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B(3).

[4] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[5] Appellant's submissions filed 24 July 2023, [18].

[6] Appeal Notice filed 14 July 2023, Attachment 1, page 2; Decision Letter dated 5 July 2023.

[7] Decision Letter dated 5 July 2023, 2.

[8] Respondent's submissions filed 9 August 2023, [6], [15].

[9] Appeal Notice filed 14 July 2023, Schedule 1, [4].

[10] Appellant's submissions filed 24 July 2023, [10], [11], [18], [22].

[12] Appeal Notice filed 14 July 2023, 4.

[13] [2021] QIRC 152, 25 [120].

[14] Or other reasons why employment on a permanent basis 'may not be' viable or appropriate, pursuant to Public Sector Act 2022 (Qld) s 81(3).

[15] Mr Keenan has held the roles of Assistant Project Officer, Senior Project Officer and now Data Collection Officer within the Department of Health.

[16] [2021] QIRC 129, 9-10.

[18] [2021] QIRC 53.

[19] [2021] QIRC 152, 27 [136].

[20] Appellant's submissions filed 24 July 2023, [8].

[21] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269.

[22] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 12.

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

[24] Respondent's submissions filed 9 August 2023, [6].

[25] Appeal Notice filed 14 July 2023, Schedule 1, [4].

[26] Correspondence from Ms T Johnston to Mr C Keenan dated March 2023.

[27] Appeal Notice filed 14 July 2023, Schedule 1, [4], [7].

[28] Decision Letter dated 5 July 2023, 2.