Kelly v State of Queensland

Holcombe v State of Queensland (Department of Housing and Public Works [2020] QIRC 195.

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

• [1] Ms Kelly has been employed by the State of Queensland (Queensland Health) ("Queensland Health") since 19 June 2017.

• [2] Ms Kelly is currently substantively employed as a casual (OO2-1) Operational Services Officer (Cleaner) at the Hervey Bay Hospital, with the Wide Bay Hospital and Health Service (WBHHS).

• [3] A schedule of Ms Kelly's employment history shows that over the last two years she has been engaged in various temporary contracts as well as engaged on a casual basis.

• [4] On 9 October 2020, the Australian Workers' Union made a request on behalf of Ms Kelly that she be converted from a casual to permanent employee.

• [5] In a decision letter dated 1 December 2020, the Chief Executive of WBHHS wrote to Ms Kelly stating that she was to continue as a casual employee at this time. In summary, the letter informed Ms Kelly that she was eligible for review, meets the merit requirements for the role and that there is a continuing need for her to be engaged in accordance with the circumstances as outlined in cl 5.2 of the Directive but that conversion was not appropriate or viable at this time due to genuine operational requirements of the agency. Specifically,

As the Chief Executive, I am required to manage the full-time equivalent (FTE) establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined in section 98 of the Public Service Act 2008, and within the current Service Delivery Agreement for Wide Bay Hospital and Health Service.

Notwithstanding there are currently no budgeted vacancies within the area in which you are engaged, I have determined that there is likely to be a continuing need for you to be engaged in accordance with the circumstances as outlined in 5.2 of the Directive; specifically that the nature of your engagement is required where the service operates in a regional area and in a twenty-four hour, seven day per week service where flexibility in the type of engagement is required to enable the WBHHS to fulfil its requirements outlined in the certified agreement.

It is neither viable nor appropriate in this case to convert to permanent.

• [6] In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 08/20 Casual Employment ("the Directive").

• [7] Section 149B of the PS Act relevantly provides

149B Review of status after 2 years continuous employment

(1) This section applies in relation to a person who is a fixed term temporary employee or casual employee if the person has been continuously employed in the same department for 2 years or more.

(2) However, this section does not apply to a non-industrial instrument employee.

(3) The department's chief executive must decide whether to -

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

(b) offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer.

(6) If the department's chief executive decides not to offer to convert the person's employment under subsection (3), the chief executive must give the employee a notice stating -

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

(d) each decision previously made, or taken to have been made, under this section or section 149A in relation to the person during the person's period of continuous employment.

• [8] While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:

• 1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees and sets out the circumstances where employment on tenure is not viable or appropriate.

(a) highlights key sections in the PS Act dealing with the employment and conversion of casual employees

(b) provides for the circumstances in which employment on tenure or a fixed term temporary employee is not viable or appropriate

(c) sets out procedures for reviews and requirements for decisions

5.1 Section 148A of the PS Act (Appendix A) provides that casual employment should only be used when tenured or fixed term temporary employment is not viable or appropriate.

5.2 Use of tenured or fixed term temporary employment is generally not viable or appropriate where there is a need for short term employment, or to meet unpredictable, irregular or variable demand or in emergent situations, and casual employment may appropriately be used to meet these staffing needs. Examples of these types of circumstances include:

(a) backfilling tenured or fixed term temporary staff on short-term emergent leave

(b) covering short gaps in work rosters of tenured and fixed term temporary employees

(c) in a role where work patterns or work demand is variable and difficult to predict, with each engagement standing alone

(d) where needed to work irregular, informal, flexible, occasional or non-rostered hours.

5.3 Employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in clause 5.2, such as covering gaps in various work rosters, on a regular and systematic basis.

5.5 An agency should periodically review the use of casual employees to appropriately limit casual employment in accordance with the provisions of the PS Act and to proactively manage its workforce planning.

8.1 When deciding whether to offer permanent employment under section 149A or 149B, a chief executive must consider the criteria set out in section 149A(2):

• whether there is a continuing need for the employee to be employed in the role, or a role which is substantially the same
• the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
• whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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.

• [9] In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:

(c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [10] Ms Kelly filed an appeal notice with the Industrial Registry on 7 December 2020, on the grounds that there is a genuine operational reason to convert her to a permanent position, on the basis that:

• There is a continuing need for the person to be converted into the role or in a role which is substantially the same, and will be ongoing; and

• The hours would meet Ms Kelly's relevant industrial instrument.

• [11] Further submissions were provided by Ms Kelly on 11 December 2020.

• [12] Ms Kelly says that on the basis that she is required to work regular and consistent hours, there should be no impediment to her holding a permanent position as the hours would be sustained post permanency.

• [13] Ms Kelly is aware that she could hold a cleaner position that would be permanent, as she is aware that another employee is most likely moving to an alternative position.

• [14] Ms Kelly says that she should be converted to permanent employment or in the alternative, allocated first in line or highest priority for the next permanent role.

• [15] The case for the Respondent is, in summary:

• Over the last two years, Ms Kelly has only been contracted to cover in roles where the incumbent position holder is temporarily absent due to recreation leave, sick leave, QSuper, training, graduated return to work, WorkCover, or for a short-term vacant position while the position underwent recruitment. Ms Kelly has never been contracted to cover either a long term vacant or unfunded position. In each case the substantive incumbent has returned to their position and Ms Kelly is no longer required;

• There is a legitimate and genuine need for the use of casual and temporary employees within the operational services unit of the Hervey Bay Hospital. It is a workforce strategy utilised to ensure resourcing across a 24/7 roster allowing for the types of leave mentioned above;

• Converting Ms Kelly to permanent will impact the workforce strategy by creating another permanent member of staff who will then require backfilling for any of the reasons above;

• The Respondent would not only have Ms Kelly as an FTE over establishment, but also must engage another casual or temporary employee to backfill the ongoing leave of the newly converted Ms Kelly;

• These reasons are not trivial, nor are they managerial inconveniences or simply difficulties; and

• The Respondent has converted numerous employees who have made an application for conversion and have met the criteria under the relevant Directives. This is a case where the Respondent relies on the genuine operational requirements of the agency.

• [16] The Respondent submits that the Directive is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld)[1] and that s 14 of that Act 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 a policy objective.[2]

• [17] The Respondent says that the stated purpose of the Directive is twofold: it establishes employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees and sets out the circumstances where employment on tenure is not viable or appropriate (Respondent emphasis). The nature of the Appellant's engagements falls squarely within the confines of the examples in cl 5.2 of the Directive.

• [18] With regard to the Employment Security Policy the department says the policy outlines the government's commitment to permanent employment where possible, however the policy also sets out a commitment to 'developing and maintaining a responsive, impartial and efficient government workforce' and 'with workforce planning, career planning and skills development will ensure that the government workforce has the flexibility and mobility to meet future needs'...and "Agencies are encouraged to utilise workforce planning, career planning and management strategies to assist in determining the appropriate workforce mix for current and future needs."[3] (Respondent emphasis)

• [19] The Respondent says that the nature of the Appellant's engagements aligns with the workforce strategy for the Operational Services Department at the Hospital, ensuring flexibility and an appropriate workforce mix. It is also consistent with the requirements for backfilling under the Certified Agreement which recognises the use of casual and temporary employees as a legitimate workforce strategy for backfilling.

• [20] The Respondent submits that Ms Kelly satisfies the merit requirements for the role and the qualifying conditions at cl 7.2 of the Directive.

• [21] In reviewing Ms Kelly's employment history, it was determined that she was engaged in accordance with the circumstances set out in cl 5.2; specifically to backfill and/or cover short gaps in work rosters of tenured or fixed term employees, and/or where her work pattern or demand is variable and difficult to predict, with each engagement standing alone, and/or where needed to work irregular, informal, flexible, occasional or non-rostered hours. It was further determined by the decision maker that there is a continuing need to engage Ms Kelly in accordance with cl 5.2 of the Directive.

• [22] The Respondent makes reference to the decision letter which informs Ms Kelly that "there is likely to be a continuing need for her to be engaged in accordance with the circumstances as outlined in cl 5.2 of the Directive to enable WBHHS to fulfil its requirements in regard to the Certified Agreement".

• [23] The Respondent also quotes the letter with regard to there being no budgeted vacancies in the area Ms Kelly is engaged in and the nature of her engagement.

• [24] In a decision of McLennan IC in Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 (Holcombe) the Respondent submits that the authority to determine the review lies squarely with the delegate or decision maker. It is not a question of merit or whether there is work to be done. The question is only whether the genuine requirements relied upon by the Respondent to deny the Appellant's request for fair and reasonable.

• [25] The Respondent refers to Holcombe and says that in that decision, "just as is the case here, it is a situation where only one person may occupy a numbered position at any one time, where the incumbent's return is not speculative or there is no incumbent".

• [26] The Respondent says that it does not have a genuine operational need to employ two people in the same position. In each case, the substantive incumbent has returned to the position and the Appellant is no longer required.

• [27] The Respondent says that it does not have a genuine operational need to permanently employee two people in the same position. Nor is it appropriate or viable to do so.

• [28] The Respondent points out that Ms Kelly's submissions refer to genuine reason and operational reason and that this is terminology from the now superseded Directive 01/17. The new Directive refers to 'genuine operational requirements'.

• [29] The Respondent refers to the decision in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 where Merrell DP considered the phrase 'genuine operational requirements'. In that decision, the Respondent says that His Honour considered 'genuine' to mean 'authentic' and considered the legislative responsibilities required of chief executives.

• [30] The Department says that determining whether the WBHHS Chief Executive's reasons support a finding that there is a genuine operational reason; and whether it is fair and reasonable, it is relevant to understand both the financial management and performance and accountability frameworks within which such decisions are made:

• Queensland Public Health Sector Certified Agreement (No. 10) 2019 sets out the process to address absences within operational services and requires the WBHHS to backfill all absences (planned and unplanned) within Operational Services and provides options to backfill which include, relevantly, (b) offering additional work to casual employees.

• The Financial Accountability Act 2009 (Qld) (FA Act) was enacted to govern public sector financial administration in Queensland and sets out strategic legal obligations with which agencies must comply.

• Subordinate legislation, consisting of the Financial and Performance Management Standard 2019 and the Financial Accountability Regulation 2019 have the aim of establishing board requirements within which agencies must operate to meet their obligations under the FA Act.

• The financial management framework is underpinned by concepts of "efficient", "effective", "economical" and "value for money".

• Section 61 of the FA Act requires "the accountable officer or statutory body to achieve reasonable value for money by ensuring the operations of the department or statutory body are carried out efficiently, effectively and economically".

• Section 11 FPMS requires agencies to "establish and maintain management systems for efficiently, effectively and economically managing their financial resources."

• The HHS is required to deliver the health services outlined in the Service Agreement for which funding is provided. Service Agreements are established with each HHS under the National Health Reform Agreement.

• The Service Agreement contains KPIs and other measures of performance against which the HHS will be assessed.

• Under the WBHHS Service Agreement the relevant KPI states 'Efficient - available resources are maximised to deliver sustainable, high quality health care; avoid waste; minimise financial risk, maximise available resources, sustainable/productive, average sustainable Queensland Health FTE, Capital expenditure performance".

• Section 19(2) of the HHB states that an HHS has the following function: 'to ensure the operations of the Service are carried out efficiently, effectively and economically' and 'to manage the performance of the Service against the performance measures stated in the Service Agreement.'

• Section 98 of the PSA requires that a Chief Executive manages their department in a way that promotes the 'effective, efficient and appropriate management of public resources**'...'planning human resources, including ensuring the employment here 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 this Act'.** These responsibilities are delegated to the WBHHS Chief Executive via the Delegations Manual.

• Section 25(1) of the PSA requires that public service management be directed towards a) providing responsive, effective and efficient services to the community and the Government; and (3) managing public resources efficiently, responsibly and in a fully accountable way.

• [31] The Respondent says that its genuine operational requirements along with the Appellant's engagement falling squarely within the confines of the examples in cl 5.2 of the Directive are reasons why the Respondent respectfully submits that the Appeal be dismissed.

• [32] Ms Kelly understands that the Respondent's position is that there is no continuing need to convert her to a permanent position/employment.

• [33] Ms Kelly rejects this on the basis that:

(a) the Respondent has not provided sufficient evidence for Ms Kellly to consider that there is not a continuing need to convert to permanent employment.

(b) There is a continuing need for Ms Kelly within the organisation; and

(c) There is a genuine position for Ms Kelly within the organisation.

• [34] Ms Kelly submits that upon review of the Respondent's response, there is not sufficient evidence for Ms Kelly to consider that there is no need for her to be converted to a permanent position.

• [35] The Respondent has outlined the process utilised by them to not convert Ms Kelly but has not substantiated the process with any material/evidence to reinforce this except for the list of positions Ms Kelly has been employed in.

• [36] Ms Kelly fails to see how the Respondent's response has justified the rejection of conversion, even with the list of the positions Ms Kelly has held.

• [37] Ms Kelly would expect to review financial documents or similar to reinforce the Respondent's position that her conversion to permanency cannot be accommodated, however the Respondent has not provided any material for consideration.

• [38] Ms Kelly submits that the employment record provided by the Respondent shows that from 19 June 2017 to 24 August 2020, Ms Kelly was in a position of full-time hours with WBHHS during the majority of the time.

• [39] When considering the constant demand from the Respondent for her to act in full-time roles, it is evident that there is an operational need within the organisation for Ms Kelly to have a permanent role as she has been consistently provided full-time hours for more than two years with the Respondent.

• [40] With regard to the Respondent's submission regarding consideration of the term 'genuine' in Morison, Ms Kelly submits that there is an authentic need for her to hold a permanent position on the basis that there has been a constant need from the Respondent to provide Ms Kelly full time hours in the same or similar roles.

• [41] Ms Kelly notes that the Respondent has made no submissions about the potential availability of the cleaner position raised in paragraph three of submissions filed on 11 December 2020. Ms Kelly submits that the lack of any real or substantial response to the 'open position' means that there is no resistance to the said position and Ms Kelly should be placed in it.

• [42] Ms Kelly's claim regarding an employee potentially moving on and creating a vacancy is not addressed by the Respondent's submissions. While the existence of a vacant position may be an argument in favour of conversion, it has been well rehearsed in a number of decisions of the Commission that a funded and vacant substantive position is not a requirement for conversion to occur.

• [43] I note the Respondent states that Ms Kelly meets the merit requirement for conversion and that it has been assessed that there is an ongoing need for her to be employed for the types of circumstances set out at cl 5.2 of the Directive which describes circumstances which make tenured or fixed term employment 'generally not viable or appropriate'.

• [44] With regard to cl 5.3 of the Directive, Ms Kelly's employment is not short-term. She has worked for the Respondent over three years. While Ms Kelly is employed to address the circumstances set out in cl 5.2 of the Directive, it appears to be uncontroversial that her services will be required in an ongoing way. If Ms Kelly is required to meet 'unpredictable, irregular or variable demand or in emergent situations', she is doing so on a regular and systematic basis and it seems to me that this makes her employment on tenure viable and appropriate.

• [45] The Respondent says that the reason Ms Kelly cannot be made permanent is 'genuine operational requirements' and refers the decision in Holcombe. That decision addressed a different part of the PS Act and a different set of circumstances. Based on the submissions of the Respondent, Ms Kelly is regularly employed to replace a number of people who are away from their regular position for a range of reasons at any one time. It is not the case that if Ms Kelly is made permanent there will be two people employed in one position. There are a number of employees employed under the cleaner position and classification.

• [46] The phrase 'genuine operational requirements' is defined in neither the PS Act nor the Directive. The phrase was considered in Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 where Deputy President Merrell stated:

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 including 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 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.[4]

• [47] The decision letter and submissions of the Respondent state that the Chief Executive is required to manage the full-time equivalent establishment taking into account workforce planning considerations, the operational needs of the service and ensuring financial sustainability as outlined within s 98 of the PS Act and within the current Service Delivery Agreement for WBHHS. The decision letter states:

Notwithstanding there are currently no budgeted vacancies within the area in which you are engaged in the circumstances as outlined in section 5.2 of the Directive; specifically that the nature of your engagement is required where the service operates in a regional area and in a twenty-four hour, seven day per week service where flexibility in the type of engagement is required.

• [48] The Directive does not require there to be a budgeted vacancy to enable conversion. Converting a person's employment from casual to permanent will often involve the creation of a new permanent position and this is to be expected where the requisite criteria are met.

• [49] The Respondent correctly points out that it is necessary for the Chief Executive to work within financial management and performance and accountability frameworks. Section 25 of the PS Act sets out the management and employment principles for the public service in Queensland. The section requires the management of public resources in an efficient, responsible and fully accountable way. However, that same section also states that public service employment is to be directed towards promoting employment on tenure as the default basis of employment for employees in the public service, other than for non-industrial instrument employees.

• [50] The Respondent has not submitted any detailed or specific information to indicate that the conversion of Ms Kelly will lead the Chief Executive to not manage public resources in an efficient, responsible or fully accountable way. The information I have been provided with by the Respondent includes a list of documents, policies and agreements described at a high level. Nothing provided to me serves to prioritise the 'no budgeted vacancies' over the requirement for workforce planning or consideration of the principle established in the PS Act establishing employment on tenure as the default basis of employment in the public service.

• [51] The implications of conversion set out by the Respondent as genuine operational requirements would apply to any casual conversion decision where there was not an existing vacant and funded position.

• [52] The shift work rostering provisions set out in the relevant Award do allow for changes to be made by agreement, or failing agreement, with 24 hours notice provided by the employer.[5] Given the regularity with which Ms Kelly has been employed since 2017, I do not think it should be beyond the capacity of the Respondent to continue to roster Ms Kelly as appropriate to ensure the 24/7 roster can operate. I note that cl 5.2 of the Certified Agreement headed "Process to Address Absences within Operational Services" states that all absences (planned and unplanned) will be backfilled. However, cl 5.2.2 acknowledges that not all positions will be backfilled on all occasions, and cl 5.2.3 acknowledges that for unplanned absences there may be some circumstances where roles may not require immediate backfill.

• [53] Adjustments to staffing allocations, budgets and workforce planning will be necessary if casual workers are to have a genuine capacity to request conversion under the Directive and relevant legislation.

• [54] Ms Kelly has been working for WBHHS for over three years. There is a recognised need for her to be employed in a continuing way. I am not satisfied that the operational requirements relied upon by the Respondent are genuine to an extent that serves to displace the principle that employment on tenure is the default basis of employment in the public service.

• [55] The decision not to offer Ms Kelly permanent employment as a general employee on tenure was not fair and reasonable in the circumstances.

• [56] Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision is set aside and substituted with a decision that Ms Kelly's employment is to be converted to permanent.

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

[2] Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195 [31]-[33].

[3] Employment Security Policy, Department of Premier and Cabinet, paras 2, 3 and cl.4.1.

[4] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 [37]-[38].

[5] Hospital and Health Service General Employees (Queensland Health) Award - State 2015.