Smith v State of Queensland

Industrial Relations Act 2016, s 562A and s 562C

Public Service Act 2008, s 149B and s 194

Workers' Compensation and Rehabilitation Act 2003, s 545

Capuano v Q-Comp [2004] QSC 333; [2005] 1 Qd R 242

Chen v State of Queensland (Queensland Health) [2022] ICQ 15

Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126

Smith v State of Queensland (Department of Education) [2022] QIRC 345

• [1] This decision assumes familiarity with the related decision in Smith v State of Queensland (Department of Education) ('Smith No. 1').[1] The background to this matter is set out in that decision. These reasons for decision should be read with paragraphs [1]-[4] of Smith No. 1.

• [2] The question for my determination is whether, pursuant to s 562A(3) of the Industrial Relations Act 2016 ('the IR Act'), I should decide not to hear Mr Smith's appeal against the decision, taken to have been made by the Chief Executive of the Department of Education ('the Department') pursuant to s 149B(7) of the PS Act, not to offer to convert Mr Smith's fixed term temporary employment to employment as a general employee on tenure or a public service officer ('the decision').

• [3] For the reasons that follow, pursuant to s 562A(3)(b)(iii) of the IR Act, I decide not to hear Mr Smith's appeal.

• [4] Mr Smith, who is represented by his agent, Together Queensland, Industrial Union of Employees, relevantly submits that:

• there should be no limit on the remedies available to the Commission in deciding a validly commenced appeal, irrespective of any changes to the Appellant's employment status at any point in time following the commencement of the appeal;

• he is not seeking from the Commission re-appointment or reinstatement but that he applies to the Commission to exercise its discretion and substitute a fresh decision that his employment status be converted to permanent;

• he is seeking such a substituted decision because the Department's actions, in managing his fixed term temporary employment status, were not fair or reasonable in that the Department did not uphold the Queensland Government's commitment to maximising employment security and establishing permanent employment as the default basis of employment for public sector employment; and

• the circumstances that existed, when he commenced his appeal, were:

• - he was employed on a fixed-term temporary basis in the Department;

• - the position he had performed for two years with the Department was substantively vacant and had been vacant for 12 months, and that employment on tenure was viable and appropriate in the circumstances; and

• - on his case, there are no genuine operational requirements to prevent his conversion to permanent employment status.

1. In light of the above, Mr Smith believes that there are no compelling reasons not to hear his appeal. He seeks for the Commission to use its discretion to hear the appeal.

1. The Appellant contends that, due to the Respondent's actions in managing his fixed‑term temporary employment status and the failure to comply with their commitment to employment security, he should not be denied the same relief as existing employees who appeal a conversion decision pursuant to s. 194(1)(e)(i) of the Public Service Act 2008 (the PS Act).

1. As it has been held that this is a validly commenced appeal, Mr Smith is seeking for the appeal to be decided in the same way had he been able to continue his employment with the Respondent. He is respectfully seeking a substituted decision that his fixed-term temporary employment status be converted to permanent employment status in accordance with s562C of the IR Act.

• section 562C(1) of the IR Act does not permit the Commission to reinstate Mr Smith after his employment has ended;

• Mr Smith has not sought reinstatement by filing a reinstatement application in the Commission;

• the factual circumstances of Mr Smith's appeal are distinguishable from those in Chen v State of Queensland (Queensland Health)[2] as the appellant in that case had a reinstatement application on foot, as well as a general protections application, at the same time as his conversion appeal;

• in the absence of Mr Smith having a concurrent reinstatement application on foot, the Commission '... is barred by law from reinstating the Appellant in this proceeding'; and

• the decision sought by Mr Smith, that his temporary employment status be converted to permanency, can have no utility in these circumstances and where he has not sought reinstatement.

• [7] In Scott v State of Queensland (Department of Communities, Housing and Digital Economy),[3] I held, by reference to the decision of Philippides J in Capuano v Q-Comp,[4] that the phrase 'substitute another decision' in s 562C(1)(c) of the IR Act is to be interpreted so that the substituted decision concerns the same decision as that under appeal.[5]

• [8] In the present appeal, the only substituted decision that I may make could only concern the decision, taken to have been made by the Chief Executive of the Department, not to offer to convert Mr Smith's employment and to continue Mr Smith's employment as a fixed term temporary employee according to the terms of his existing employment. That is, if I found that the decision was not fair and reasonable, then the only substituted decision I could make would be that Mr Smith be employed as a general employee on tenure or as a public service officer.

• [9] The clear purpose of s 149B of the PS Act is to compel a review of the status of continuing employees who are employed on a fixed term temporary basis or on a casual basis. A related policy objective of s 149B of the PS Act is to confer power on the chief executive of a department to offer to convert the employment of such continuing employees to employment as general employees on tenure or as public service officers when particular circumstances are met. It is not the purpose or a policy objective of s 149B of the PS Act to confer power on the chief executive of a department to reinstate or re‑employ a former fixed term temporary employee or casual employee in any circumstance.

• [10] The consequence is that s 562C(1)(c) of the IR Act does not confer power on the Commission in an appeal such as this, to, in effect, order the reinstatement or re‑employment of a former fixed term temporary employee by substituting a decision that the appellant be employed as a general employee on tenure or as a public service officer. This is the case even if the decision actually made or taken to have been made under s 149B(7) of the PS Act - to continue an appellant's fixed term temporary or casual employment according to the terms of their existing employment (before their employment came to an end) - was not fair and reasonable.

• [11] Mr Smith is not employed in the Department in the role in which he was formerly employed. There is no evidence or suggestion, from either party, that Mr Smith has commenced any proceeding, in any court or tribunal, that may result in him being reinstated to his previous role or being re-employed in a similar role.

• [12] Given the above considerations, there can be no practical utility in me hearing and determining Mr Smith's appeal. Even if I found that the decision appealed against was not fair and reasonable, I could make no order that could have any practical effect in respect of Mr Smith's former employment.

• [13] I have discretion, pursuant to s 562A(3) of the IR Act, not to hear Mr Smith's appeal. For the reasons given above, I will not hear Mr Smith's appeal for the compelling reason that there is no practical utility in me hearing and deciding Mr Smith's appeal.

• [14] For the reasons I have given, pursuant to s 562A(3)(b)(iii) of the IR Act, I decide not to hear Mr Smith's appeal.

Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the Commission decides not to hear the Appellant's appeal.

[1] [2022] QIRC 345.

[2] [2022] ICQ 15.

[3] [2021] QIRC 126.

[4] [2004] QSC 333; [2005] 1 Qd R 242, [20].

[5] This was in respect of a provision analogous to s 562C(1)(c) of the IR Act being s 545(1)(c) of the Workers' Compensation and Rehabilitation Act 2003.