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[2023] QIRC 196
General information, not legal advice.
Queensland Industrial Relations Commission
2023-07-05
Original judgment source is linked above.
PUBLIC SECTOR - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - Public Sector Appeal - fixed term temporary employment review - appeal under s 131(1)(a) of the Public Sector Act 2022 (Qld) - where deemed decision - whether there is a continuing need to employ the appellant in the same role, or a role that is substantially the same - where the role is reliant on project funding - where the position will cease once the project is complete - where there is uncertainty about the future funding and direction of the project - whether there are genuine operational requirements which preclude conversion - decision confirmed
Public Sector Act 2022 (Qld) ss 81, 114, 115, 150
Directive 09/20: Fixed term temporary employment cl 8
Directive 02/23: Review of Non-Permanent Employment
Brew v State of Queensland (Office of the Public Guardian) [2021] QIRC 188
Goodall v State of Queensland [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
Murphy v State of Queensland (Queensland Health) [2021] QIRC 213
Underwood v State of Queensland (Department of Housing and Public Works) [2021] QIRC 22
[1] Ms Monique Morris is employed by the State of Queensland as an Administration Supervisor in the Cold Case Project Team, Homicide Investigation Unit, Crime and Intelligence Command through the Queensland Police Service ('QPS').[1]
[2] Ms Morris has been continuously employed by QPS on a fixed term temporary basis since 14 January 2019. Ms Morris initially commenced in the role of Administration Officer (AO2) but was subsequently appointed to the role of Administration Supervisor (AO3), albeit on a temporary basis.[2]
[3] QPS undertook a view of Ms Morris' employment status in January 2021. At that time, she was advised her employment status was unable to be converted to permanent due to operational reasons.[3] A subsequent review of Ms Morris' employment status was undertaken in January 2022. On this occasion, Ms Morris was offered a permanent position, albeit in a different division within the Crime and Intelligence Command. Ms Morris declined the role.[4]
[4] On 16 January 2023, Ms Julianna Leung wrote to Ms Morris advising she was eligible for a review of her fixed term temporary employment to determine if she should be converted to permanent employment. The nominated review eligibility date was 14 January 2023.[5]
[5] Ms Morris was advised the review was to be conducted in accordance with section 149B of the Public Service Act 2008 and Directive: 09/20 Fixed term temporary employment ('Directive 09/20').
[6] Directive 09/20 has since been superseded by Directive: 02/23 Review of Non-Permanent Employment ('Directive 02/23').
[7] Directive 09/20 required QPS to perform a review of Ms Morris' fixed term temporary employment and consider whether her temporary, fixed term status ought to be converted to permanent employment having regard to:
[8] A decision was not made within 28 days of her anniversary date resulting in a deemed decision that Ms Morris' employment continued according to its current terms.
[9] By appeal notice filed 2 March 2023, Ms Morris appeals the deemed decision under ch 3 pt 10 of the Public Sector Act 2022 ('the PS Act').
[10] Ms Morris filed her appeal one day after the commencement of the PS Act on 1 March 2023.
[11] Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[6] It is not by way of rehearing; but rather involves a review of the decision arrived at and the decision-making process therein.[7] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[8]
[12] In my view, the decision was fair and reasonable.
[14] The Cold Case Investigation Team (CCIT) was established by QPS in July 2017 to examine unsolved homicides and suspicious long-term missing persons investigations.[9] The team consists of 12 permanent Police Detectives who are responsible for examining previously unsolved homicides and other missing persons investigations.[10]
[15] The QPS 2019-2020 Annual Report provides that "the dedication and commitment of the CCIT demonstrates QPS's ongoing commitment to stopping crime, holding offenders accountable and providing some closure for the families and friends of the victims of these crimes."[11]
[16] Working alongside the CCIT is a Cold Case Project Team that consists of four temporary administration staff, including Ms Morris.[12]
[17] The Cold Case Project Team has been responsible for converting historical media held on VHS, C90s and micro cassettes into more suitable files which can be uploaded onto IMAC, the QPS document management system.[13]
[18] It is not in contention that once the materials have been digitised, the project will cease.
[19] In her appeal notice, Ms Morris relevantly contended:
[20] Ms Morris maintains her role and responsibilities have remained substantially the same since she commenced her temporary role in 2019, notwithstanding that the position has been reclassified.[15]
[21] Ms Morris submits it is unreasonable she is being denied conversion to a permanent position given:
[22] Ms Morris maintains that at the time of filing submissions for her appeal, there were approximately 482 boxes of un-digitised documents and media, and a further 200
un-digitised boxes currently stored across suburban and regional stations.[17]
[23] On Ms Morris' calculations, the digitisation process for one box is approximately 80 hours. Having regard to the number of un-digitised boxes, Ms Morris estimates it will take approximately six years for four full time staff to complete the digitisation objective.[18]
[24] While Ms Morris concedes her position is reliant on funding being allocated to the CCIT, she contends this should not be held up as a barrier to conversion, having regard to the large number of cold cases still to be resolved and the number of materials yet to be digitised.
[25] QPS maintains it is not viable or appropriate to convert Ms Morris' employment status to permanent in circumstances where the digitisation project is a finite piece of work and where funding will no longer be allocated once the project is complete. [19]
[26] It is argued this is not a case where there is uncertainty as to whether funding will cease at the conclusion of the project. Instead, QPS submits there is no question the funding will most definitely come to an end. Moreover, in response to changing organisational priorities, significant workplace reform and machinery of government changes, QPS contends there is now a strong likelihood the project may be paused, and funding repurposed earlier than the current project completion date.[20]
[27] In support of its position, QPS relies on section 81(3)(a)(ii) & (iii) of the PS Act.
81 Basis of employment - generally on permanent basis
(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
(ii) to perform work for a particular project or purpose that has a known end date; or
(iii) to fill a position for which funding is unlikely or unknown; or
(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;[21]
[28] QPS distinguishes between the two separate teams which work within the Homicide Investigation Unit that is responsible for cold case work, with the first being the CCIT which consists of Police Detectives; and the second being the Cold Case Project Team which consists of four temporary administration staff. It is submitted the Cold Case Project Team work with a finite number of historical hard copy investigative materials it is required to digitise.[22] Moreover, once those materials have been digitised, there will be no further need for the four temporary administrative roles.[23]
[29] In response to Ms Morris' estimates regarding the cold case team and the approximate period for cases to be resolved, QPS submits this is irrelevant and that Ms Morris has misunderstood her role in the Cold Case Project Team in circumstances where it is limited to the digitisation of records rather than the resolution of the historic cases.[24]
[30] QPS further submits the digitisation project may be paused or ceased at any time if funding is redirected, as the media files from cold cases can be stored and remain untouched without significant deterioration.[25]
[31] QPS contends the likelihood of the existing funding arrangement being redirected is increasing due to QPS implementing significant workforce reform in response to several recent inquiries.[26]
[32] In support of this submission, QPS provided the Commission with details of the inquiries, contending that of the 800 recommendations, the majority are required to be implemented within 12 months of the date of each report.[27]
Review of culture and accountability in the Queensland public sector: Let The Sunshine In
Women's Safety and Justice Taskforce Report: Hear Her Voice (Volumes 1, 2 and 3)
Independent review into investigations of police-related deaths, and domestic and family violence deaths in Queensland
Commission of Inquiry relating to the Crime and Corruption Commission
Commission of Inquiry into Queensland Police Service responses to domestic and family violence: A Call for Change
Coronial Inquest into the deaths of Brett Andrew Forte and Ricky Charles Maddison
[33] QPS argues the implementation of the 800 recommendations and other imminent organisational changes due to machinery of government changes will be prioritised over the digitisation of historical materials in circumstances where the Cold Case materials will still be accessible without undergoing the digitisation process.[28]
[34] Finally, QPS observes Ms Morris was previously offered permanent employment in January 2022, albeit within a different group in the Crime and Intelligence Command, in a role that was similar to her current position. However, Ms Morris declined the role.[29]
[35] QPS confirms that in January 2023, during the most recent review of Ms Morris' employment, it was unable to offer any similar permanent vacancies.[30]
[36] In reply submissions, Ms Morris relies on Underwood v State of Queensland (Department of Housing and Public Works) ('Underwood'),[31] where Power IC found:
To deny an employee conversion because the inherent nature of their work is project based, rather than continuous, would be to unfairly deny employees working in project-based work access to the benefit of the Directive.[32]
[37] Ms Morris argues conversion should not be denied simply on the basis that an employee is undertaking project-based work with a known end date.[33]
[38] Similarly, Ms Morris rejects the notion that funding for the CCIT is uncertain, given that the Cold Case Project Team has been continuously funded since its establishment in July 2017.[34]
[39] In response to QPS' submissions regarding Ms Morris being previously offered a permanent role in an earlier conversion review, she observes this role was not substantially the same, noting it was a role which did not include the supervisory functions currently being undertaken in the project role.[35]
What Decisions can an Industrial Commissioner make?
[40] In deciding this appeal, s 562C(1) of the IR Act provides that I may:
(a) confirm the decision appealed against; or
(b) set the decision aside and substitute another decision; or
(c) set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
[41] The PS Act relevantly provides:
(1) The chief executive of a public service entity may employ a person on a temporary basis for a fixed term to perform work of a type ordinarily performed by -
(2) However, subsection (1) applies only if employment of a person on a permanent basis is not viable or appropriate, having regard to the planning of human resources carried out by the chief executive under section 177(1)(f).
(4) A person employed under this section does not, only because of the employment, become a public service officer.
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 -
(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
(ii) to perform work for a particular project or purpose that has a known end date; or
(iii) to fill a position for which funding is unlikely or unknown; or
(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;
(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.
(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.
(5) Subsection (4)(c) does not apply in relation to employment on a casual basis.
(6) If the employee's chief executive does not make the decision within the required period, the chief executive is taken to have decided not to offer to convert the employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment.
(8) The commissioner must make a directive about the making of a decision under this section.
required period, for making a decision under subsection (1), means -
(a) the period stated in an industrial instrument within which the decision must be made; or
(b) if paragraph (a) does not apply - 28 days after the end of the period mentioned in subsection (2)(a) or (b).
[42] Clause 8 of Directive 09/20 relevantly provides:
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):
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.
8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).
8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
[43] In this appeal, I am required to determine whether the decision was fair and reasonable.[36]
[44] Ms Morris commenced employment on a temporary basis with QPS on 14 January 2019, initially at an AO2 level, whereafter her role was re-classified to a higher level. There appears to be no question that she was employed within the Cold Case Project Team for the purpose of digitising historical investigative materials. I accept that once the materials are digitised, the project and the funding for the project will come to an end.
[45] Ms Morris' temporary employment has been renewed over several years and in that period QPS undertook a review of her employment status in January 2021 and again in January 2022. On the latter occasion, Ms Morris was offered a permanent role, albeit at a lower level, in another division within the Crime and Intelligence Command.
[46] Ms Morris became eligible for a further review of her fixed term temporary status on 14 January 2023 and is now appealing the deemed decision which led to her temporary status continuing.
[47] Certainly, it is the case that employment of a public sector employee should generally be on a permanent basis unless an employee is employed on a non-permanent basis under the PS Act or another Act that enables a person to be employed on a non-permanent basis, including for example, on a temporary basis for a fixed period.[37]
[48] The PS Act provides that employment on a non-permanent basis can occur only if the employment of the employee on a permanent basis is not viable or appropriate. The PS Act outlines circumstances where employment on a permanent basis may not be viable.[38] For example, where an employee has been engaged to perform work for a particular project or purpose that has a known end date or where an employee is employed within a role where funding is unlikely or unknown.[39]
[49] QPS argues the conversion of Ms Morris' status to permanent at this time is not viable or appropriate for operational reasons, whereas Ms Morris maintains the decision not to convert is unreasonable, not only because she satisfies the conversion criteria but also because there are no genuine operational requirements that would preclude conversion.
[50] When deciding whether to convert Ms Morris' status to permanent, the decision-maker was required to consider the criteria set out in the relevant Directive at [7] above.
[51] It is not in dispute that Ms Morris was eligible for conversion and that she met the merit principle.
[52] Compliance or non-compliance with an industrial instrument is not an issue in this appeal.
Reasons for previous decisions where requests for conversion have been made
[53] There is no evidence before the Commission that indicates QPS did not consider the reasons for each decision previously made or deemed to have been made. I accept Ms Morris has previously rejected the offer of a permanent role, albeit not at the level she currently holds and within another area of the Crime and Intelligence Command, following an earlier review process.
Continuing need to be employed in a role the same or substantially the same
[54] The chief executive must consider whether there is a continuing need for Ms Morris to be employed in the role or a role which is substantially the same.
[55] QPS submits there is not an ongoing need for Ms Morris to be employed in her current temporary role given it is known that once the investigative materials are digitised, both the project and the role will come to an end. In the wake of several inquiries leading to substantial organisational reform, QPS relies on uncertainty in respect of not only the project's funding but its future direction, as a barrier to conversion.
[56] In support of her appeal, Ms Morris has provided estimates of the period of time required for the project team to digitise the hard copy records; and is critical of what she considers to be a lack of supporting materials about the potential workplace changes that will take place within QPS in response to several inquiries and recommendations; and how this will impact the future funding, direction and progress of the Cold Case Project Team.
[57] It seems to me, having reviewed the materials filed with the Commission, that there is certainly a continuing need for Ms Morris to be employed in her existing role for the foreseeable future, or at least until 30 September 2023 which is the date to which funding has been confirmed. There is also no question the funding for the project has been renewed year on year since Ms Morris was first appointed to the role.
[58] The difficulty for Ms Morris in this Appeal is that QPS has submitted it is not viable or appropriate to convert her status to permanent having regard to several operational requirements of the agency, namely:
[59] The phrase 'genuine operational requirements of the public sector entity' is not defined in the PS Act or the Directive. In Morison v State of Queensland (Department of Child Safety, Youth and Women)[40] Merrell DP observed, albeit in the context of s 149C of the Public Service Act 2008 (Qld)[41]:
[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.
[60] His Honour concluded the phrase would at least include a consideration as to whether there was 'an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the Department' to convert the employee's employment.[42]
[61] The issue therefore in this appeal is whether there are genuine or real considerations related to the management of QPS and its workforce, that preclude Ms Morris' status from being converted from temporary to permanent.
[62] Notwithstanding the sizeable amount of sympathy I have for Ms Morris' circumstances, I am persuaded the matters raised by QPS preclude conversion of her employment status to permanent on this occasion, for several reasons.
[63] First, the circumstances of the current appeal are sufficiently different from the decision of Power IC in Underwood v State of Queensland (Department of Housing and Public Works) ('Underwood').[43]
[64] The employee in Underwood, who was seeking to be appointed to a higher classification rather than permanent conversion, was appointed to a higher duties role over a period of time to perform work in a building and construction environment where much of the work he undertook, was largely project-based. The Commissioner, having regard to the culmination of multiple projects Mr Underwood was involved in over several years, concluded there was a genuine need for the project work to continue.[44]
[65] In the present matter, it is not in contention that Ms Morris has been appointed to the Cold Case Project Team to work on a singular project, namely the digitisation of historical investigative records. When those records are digitised, the project will conclude. These arrangements are distinguishable from the events in Underwood.
[66] Secondly, the circumstances of the current case are also sufficiently different from Brew v State of Queensland (Office of the Public Guardian) ('Brew'),[45] which is relied on by Ms Morris in her submissions. In Brew, I determined there was an absence of materials which supported a conclusion that an external review being undertaken would imminently impact the future of the temporary position.
[67] In this matter I accept, after considering QPS' submissions about the above-mentioned Inquiries and their recommendations in combination with recent machinery of government changes, that funding for the Cold Case digitisation project team will not only come to an end but that the current funding could well be repurposed earlier than the project completion date due to organisational reform.
[68] Even if that wasn't the case, I accept that it may be necessary for QPS, having worked through the 800 recommendations arising out of the Inquiries, to conduct a fresh review of its existing resources for the purpose of determining workforce priorities in the future.
[69] In my view, the circumstances described above fall squarely within the examples set out in s 81(3)(a)(ii) and (iii) of the PS Act.
[70] That is, the conversion of Ms Morris' status to permanent is neither viable nor appropriate, having regard to not only the finite funding arrangement but the high level of uncertainty around the future funding and direction of the project, due to significant workforce reform and machinery of government changes within the QPS.
[71] Finally, I accept the Department took steps to locate other suitable roles, that are the same or substantially the same, that Ms Morris could be converted into outside her existing team, but that during the most recent review, no positions were able to be offered.
[72] As touched on earlier in this decision, a review of the deemed decision, which is the subject of this Appeal, is not by way of rehearing; but instead involves consideration of the decision arrived at and the decision-making process therein.[46] Findings made in the decision which are reasonably open to the decision-maker on the relevant material or evidence should not be expected to be disturbed on appeal. Where those circumstances exist, it is not for the Commission to inject itself into the decision-making process and issue a decision that it might have otherwise favoured.
[73] For the reasons given above, my view is that the decision is fair and reasonable.
[74] The issue for determination in this appeal was whether the decision appealed against, namely, the deemed decision not to convert Ms Morris' fixed term temporary status to permanent was fair and reasonable.
[75] In the present appeal, it is not in dispute QPS has committed to the digitisation of historical documents and media, relevant to cold case files until at least September 2023.
[76] What is less clear in this case, is whether the project will receive guaranteed funding in the long term given the uncertainty of newer higher priority projects that may be introduced, along with any certainty as to whether Ms Morris' role will continue once the project is finalised.
[77] The uncertainty in future funding allocation and project priority is a genuine operational matter which, in my view, presently precludes Ms Morris from having her employment status converted to permanent.
[78] Notwithstanding the sympathy I have for Ms Morris' predicament, for the reasons I have set out above, I consider the decision was fair and reasonable.
[1] QPS' submissions filed 8 May 2023 [1].
[2] Ms Morris' submissions filed 12 April 2023 [9].
[3] QPS' submissions filed 8 May 2023 [24].
[6] Public Sector Act 2022 (Qld) s 134.
[7] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland [2018] QSC 319, 5.
[9] Ms Morris' submissions filed 12 April 2023 [13].
[10] QPS' submissions filed 8 May 2023, citing The State of Queensland, Queensland Police Service 2017-2018 Annual Report, (Report, 2018), 36.
[11] The State of Queensland (Queensland Police Service), Queensland Police Service 2019-2020 Annual Report, (Report, 2020), 36.
[12] Ms Morris' submissions filed 12 April 2023 [15].
[15] Ms Morris' submissions filed 12 April 2023 [11], [20].
[19] QPS' submissions filed 8 May 2023 [7].
[21] Public Sector Act 2022 (Qld) s 81(3)(a) (emphasis added).
[22] QPS' submissions filed 8 May 2023 [9]-[10].
[33] Ms Morris' reply submissions filed 23 May 2023 [8].
[39] Ibid s 81(3)(a)(ii)-(iii).
[41] I note this provision was repealed in March 2023 and effectively replaced by the Public Sector Act 2022 (Qld) s 132.
[46] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland [2018] QSC 319, 5.
Morris
State of Queensland