Smith v State of Queensland

Public Sector Act 2022 (Qld) ss 81, 113, 114, 115, 116, 117, 129, 131, 133

Directive O2/23 Review of non-permanent employment

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

Jones v State of Queensland (Department of Housing and Public Works) [2021] QIRC 177

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

Stephens v State of Queensland (Queensland Health) [2022] QIRC 420

Swan v State of Queensland (Queensland Health) [2021] QIRC 346

Wood v State of Queensland (Queensland Health) [2024] QIRC 173

Zhao v State of Queensland (Queensland Health) [2022] QIRC 185

[1] Ms Bettina Smith ('Ms Smith') appeals a deemed decision made pursuant to s 115(6) of the Public Sector Act 2022 ('PS Act'), by the Department of Women, Aboriginal and Torres Strait Islander Partnerships and Multiculturalism ('the Department') not to convert her fixed term employment to permanent following at least two years of continuous service.

• [2] Attached to the Appeal Notice is a written decision dated 1 July 2025, received by Ms Smith on 11 July 2025, that confirms Ms Smith's employment will remain on a temporary basis due to the Department undergoing significant workforce changes resulting in funding for multiple positions, including Ms Smith's position, ceasing.
• [3] Ms Smith's fixed term employment was due to conclude on 29 August 2025, but the Department agreed to extend the employment until 12 September 2025 to enable the Commission to determine the matter whilst Ms Smith remains employed.
• [4] For the reasons that follow, I have determined that the decision appealed against was not fair and reasonable due to procedural issues and the ongoing need for someone to be employed in a role that is substantially the same.

• [5] Ms Smith, who identifies as Aboriginal,[1] originally worked for the Department (or its predecessor organisations) as a permanent Administration Officer Level 3 (AO3) between 1993 and 1998 before proceeding on maternity leave. Ms Smith was re-employed on 11 February 2019 and has completed a series of fixed term AO3 roles since her return.
• [6] The following table summarises Ms Smith's employment history following her return to the Department in 2019:[2]

• [7] Relevantly, a break in service occurred between 2 May 2020 and 2 April 2023. I conclude that the continuous service relevant to this appeal is the period of employment that commenced on 3 April 2023.[4] Ms Smith was initially employed on a three-month fixed term basis to work in an AO3 Executive Assistant role in the Local Thriving Communities, Strategic Policy Legislation and Program Reform area. The AO3 Executive Assistant role has continued to be extended however the organisational unit names have changed over that time.
• [8] There is a factual dispute about whether the employment has been extended four or seven times. There are clearly four direct mentions of contract extension in the employment record, but at each of the seven entries the contract continues. The number of extensions does not alter the uncontested total period of continuous employment.
• [9] On 31 May 2024, after being employed for over 12 months, Ms Smith applied to the Acting Executive Director Ms Minniecon for a review of her temporary employment status pursuant to s 113(1)(b) of the PS Act. The delegate acknowledged the request for review on 13 June 2024 but Ms Smith did not receive a formal outcome, resulting in a deemed decision that confirmed the status quo of temporary employment status.
• [10] On 3 April 2025, Ms Smith attained two years of continuous employment, triggering the Department's obligation in s 115 of the PS Act to review the temporary employment status and ascertain if she should be converted to permanent employment.
• [11] The submissions made by both parties as to what occurred next is conflicting and somewhat confusing.
• [12] What is clear is that Ms Smith was eager for the Department to undertake the review required by s 115 at 24 months of continuous employment. On 7 May 2025, Ms Smith emailed Ms Minniecon to inform her that 12 months had passed since her last request for review and she had attained 24 months of employment, so a review was due.[5]

Following the CEP Business Support Officer's training that I attended yesterday, our Senior Business Support Officer...advised that you (my Executive Director) would have received an email potentially a fortnight ago from HR advising that my term has reached 24 months. This would assist in consideration for my temporary to permanent conversion 12 months after I applied, should there be a circulating A03 permanent position circulating in ATSIP. May I ask if you've received the email from HR?

• [13] Ms Minniecon responded on 8 May 2025:[6]

The only email that I am aware of where we track temp to permanent conversions is on the PSC report but this report is always from the previous quarter, so the current report is from January to March 2025.

Can you book a time in the calendar on my return from leave so that you and I can discuss? The reason why your temp to perm was not approved last year was because there were no permanent opportunities in CtGPM.

• [14] Later on 8 May 2025, Ms Minniecon was the recipient of an email from Ms Jess Pullum ('Ms Pullum'), Principal Advisor for HR and Ethical Standards for the Department. Ms Pullum confirmed that 'if Bettina has met two years' temporary service, then a conversion review will need to be completed, even if there isn't a permanent AO3 role available...'.[7]
• [15] Ms Minniecon responded as follows, also on 8 May 2025: [8]

...I was advised last year that I was not able to approve her temp to permanent conversion last year as I had no permanent positions for her to convert to.

I do understand though at two years a review must be completed.

• [16] Ms Smith emailed Ms Pullum, cc'ing in Ms Minniecon, on 16 May 2025, where she appears to again prompt the Department to undertake the review required under s 115 by attaching her application (albeit under s 113 of the PS Act) from 2024:[9]

As per my below email, could Rhiannon kindly reach out to you at 12.30pm -12.45pm on Monday 19 May (if possible for you), just before Rhiannon and I have our 24 month review and completed PDA meeting at 12.45pm - 1.45pm re my Temp to Permanent Conversion status?

Please find attached my 12 month Temporary to Permanent Conversion application paperwork submitted on 31 May 2024, as a kind reminder from last year as you may recall.

Also please be advised I reached 24 months on 3 April 2025 in my temporary position (... - EA AO3 under Closing the Gap Program Management) but I moved across to Regional Services Delivery (RSD) along with ED Rhiannon in February this year.

• [17] It is clear from this email that a meeting on 19 May 2025 was scheduled between Ms Smith and Ms Minniecon to discuss the status of the conversion request.

• [18] On 11 July 2025, Ms Smith received a letter from Ms Minniecon (dated 1 July 2025) purporting to be a written decision in response to Ms Smith's application of 31 May 2024.[10] However, the decision featured an apparent typo where it referred to the application made by Ms Smith on '31 May 2025'. The correct statutory underpinning of this letter is contested and will be addressed later in this Decision when I deal with procedural issues relevant to the appeal.
• [19] The decision confirmed that Ms Smith would not be converted to permanent employment for the reasons that follow:[11]

... The review has determined that the department is not able to offer you a permanent role, or covert (sic) you from your fixed term temporary appointment to permanent for the reasons provided below.

Since April 2023, your performance has demonstrated your suitability for the role. However, this role was only temporarily funded until 30 June 2025, and the department is undergoing significant workforce changes. As part of this process, the role has been identified as one of several temporary positions that will not receive ongoing funding. A review of AO3-level vacancies across the department has also been conducted, and it has been determined that there is no continuing need for you to perform this role or a similar one. Consequently, I am unable to offer the conversion of your employment to a permanent basis.

• [20] Ms Smith received advice from Together Union on 18 July 2025 as follows:

... To appeal the conversion decision, an appeal must be submitted before 4.00pm on Monday 21 July 2025.

From the next business day after a review request is received, the agency has 28 days to conduct a review. Your review request was dated 31 May 2025 - a Saturday. The first day of the 28 day period therefore commenced on Monday 2 June 2025. A decision was required by Monday 30 June 2025.

The decision letter dated 1 July 2025 is considered a decision after the fact - not the actual decision, as it arrived too late for the 28 day timeframe.

Where a decision is not made within the 28 day timeframe it is referred to as a deemed decision. Under Section 115(6) of the Public Sector Act 2022, a deemed decision has the effect of a decision not to convert the employee to permanent employment.

An appeal to the QIRC of a deemed decision must occur within 21 days of the deemed decision. As the deemed decision occurred on 30 June 2025, the deadline for an appeal of that decision is 21 July 2025...

• [21] Ms Smith filed her Form 89 Appeal Notice on 21 July 2025, within 21 days of the apparent deemed decision.

• [22] Ms Smith characterises her appeal as relating to the apparent deemed decision arising from an application she made on 31 May 2025, and of the written decision she received 11 July 2025.
• [23] It is not clear that Ms Smith made an application for conversion on 31 May 2025 under s 115 of the PS Act. It is clear Ms Smith made an application under s 113 of the PS Act on 31 May 2024, and it is also clear that Ms Smith has consistently requested the Department comply with their obligations for review pursuant to s 115 of the PS Act.
• [24] The Department agree Ms Smith made an application on 31 May 2024 and explain that this resulted in a deemed decision. The Department acknowledge that under s 115 of the PS Act, Ms Smith's temporary employment became due for a review by the Department on 3 April 2025.[12] At this time, 'significant machinery of government change' resulted in the implementation of workforce planning to monitor vacancies and requests for filling positions.[13] It was unclear which positions would remain ongoing and receive funding beyond 30 June 2025.[14] The Department state that they did not make a decision under section 115(2)(a) of the PS Act, resulting in a deemed decision.[15]
• [25] The Department explain the written decision as follows:[16]

Acknowledging the deemed decision for the April 2025 review, Ms Minniecon reconsidered Ms Smith's original application of 31 May 2024 as a new application under section 116(1)(b) of the PS Act. After review, Ms Minniecon determined that Ms Smith could not be converted to a permanent AO3 Executive Assistant role or a substantially similar position.

Ms Smith was formally advised of this decision by letter dated 1 July 2025, delivered via email on 11 July 2025.

• [26] It is contended by the Department that the decision letter accords with s 114(5) of the PS Act and constitutes a notice outlining reasons for the decision, the total period of the continuous temporary employment with the Department and confirmation that the temporary engagement had been extended four times.[17]

• [27] The Industrial Relations Act 2016 (Qld) ('IR Act') stipulates an appeal must be lodged within 21 days of the decision appealed against being given.[18]
• [28] The written decision, although dated 1 July 2025, was given to the Appellant on 11 July 2025. The apparent deemed decision manifested when no conversion decision was issued by 30 June 2025.[19] In either case, the appeal was lodged on 21 July 2025 and is within time. The Department takes no issue with the appeal being within time.
• [29] A conversion decision is defined as follows by s 129 of the PS Act:

(a) Under section 115 not to convert the employment of a public sector employee mentioned in section 112 to a permanent basis; or

(b) Under section 115 to convert the employment of a public sector employee mentioned in section 112 to a permanent basis in circumstances provided for under a directive made under section 115(8) about the hours of work offered when offering to convert the employment basis to a permanent basis; or

(c) Under section 116 not to convert the employment of a public sector employee mentioned in section 113(1) to a permanent basis, if the employee's right to make the additional request for review under section 116 arose from a decision under section 115, or

• [30] A conversion decision is capable of being appealed.[20] Ms Smith, as the employee subject of the decision, is entitled to appeal.[21]

• [31] The IR Act relevantly provides:

562B Public service appeal to commission is by way of review

(1) This section applies to a public service appeal made to the Commission.

(2) The commission must decide the appeal by reviewing the decision appealed against.

(3) The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

• [32] The Commission, when determining appeals, must assess whether the decision appealed against was fair and reasonable. This is not determined by 'rehearing' the matter; rather, the Commission must review the decision and the associated decision-making process.[22]
• [33] Section 562C sets out that the Commission, when determining an appeal, may:
  • confirm the decision appealed against;[23] or
  • set aside the decision and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate;[24] or
  • set the decision aside and substitute another decision.[25]
• [34] Ms Smith asks the Commission to:
  • set the decision aside and substitute it with another decision that converts Ms Smith's employment status to permanent in either the same role or another similar role;[26] or
  • set aside the decision and return it to the decision maker with directions, namely, that the Department consider the request to be employed at the AO3 classification level in a position that is the same or similar to the role currently performed.[27]
• [35] The Department seeks that the decision be confirmed as fair and reasonable and the appeal be dismissed.[28]

Relevant provisions of the PS Act and Directive

• [36] Section 81 of the PS Act provides that the basis of employment in the public sector is generally to be permanent:

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

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

(i) to fill a short-term vacancy arising because a person is absent for an unplanned or unexpected period; or

(ii) to perform work for a short period to fill a gap in a work roster for employees employed on a permanent basis, or on a temporary basis for a fixed term; or

(iii) to fill a position for which work patterns or work demand is variable and difficult to predict; or

(iv) to fill a position for which work hours are irregular, informal, flexible, occasional or non-rostered.

(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

(6) Subsections (2), (3), (4) and (5) apply despite another Act.

(7) To remove any doubt, it is declared that this section applies in relation to a public sector employee's employment on a temporary basis for a fixed term if the employment is extended under this Act or another Act.

• [37] Part 9, Division 1 of the PS Act provides for 'Review of non-permanent employment'.
• [38] Section 113 provides that non-permanent employees may request the chief executive review their status after 1 year of continuous employment, with the available outcomes consisting of continuation of the existing arrangement,[29] or an offer being made to convert the employee to permanent employment.[30]
• [39] Section 114 obliges the chief executive to reach a decision on the request by the employee as follows:

114 Chief executive must make decision on employee's request

(1) This section applies if a public sector employee makes a request under section 113.

(2) The employee's chief executive must decide the request within 28 days after receiving the request.

(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.

(5) 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 under section 113(3) in the public sector entity; and

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

(6) Subsection (5)(c) does not apply in relation to employment on a casual basis.

(7) If the employee's chief executive does not make the decision within the period required under subsection (2), 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.

suitable, in relation to an employee performing a role, has the meaning given under a directive.

• [40] Section 115 prescribes that the chief executive must review the employee's status following 2 years of continuous employment:

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 -

(a) the reasons for the decision; and

(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.

• [41] Section 116 goes on to provide a right for the employee to make an additional request for review,[31] and s 117 confers discretion upon the chief executive to conduct an additional review.[32]

116 Employee's right to make additional request for review

(1) This section applies in relation to a public sector employee mentioned in section 113(1) if -

(i) the employee's chief executive has decided under section 114 or 115 not to offer to convert the employee's employment to a permanent basis because the chief executive considered the employee was not suitable to perform the role;

(ii) the employee considers the employee may have become suitable to perform the role; or

(i) the employee's chief executive is taken to have made a decision under section 114(7) or 115(6) not to offer to convert the employee's employment to a permanent basis;

(ii) the employee has not appealed against the decision under section 130.

(2) The public sector employee may ask the employee's chief executive to 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.

(3) The public sector employee must make the request -

(a) for subsection (1)(a) - within 3 months after the employee considers the employee may have become suitable to perform the role; or

(b) for subsection (1)(b) - within 3 months after the chief executive is taken to have made the decision mentioned in subsection (1)(b)(i).

(4) The employee's chief executive must decide the request within 28 days after receiving the request.

(a) if the decision relates to a request arising from a decision under section 114 - section 114(3), (4), (5) and (6) applies to the employee's chief executive; and

(b) if the decision relates to a request arising from a decision under section 115 - section 115(3), (4) and (5) applies to the employee's chief executive.

(6) If the employee's chief executive does not make the decision within the period required under subsection (4), 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.

(7) The employee may make only 1 request under this section in relation to each separate decision made, or taken to have been made, under section 114 or 115.

(8) The commissioner must make a directive about the making of a decision under this section.

117 Chief executive's discretion to conduct additional review

(1) This section applies in relation to a public sector employee mentioned in section 115(1) if the employee's chief executive -

(a) has made a decision under section 115(2) not to offer to convert the employee's employment to a permanent basis; and

(b) considers the circumstances justify the making of another decision mentioned in section 115(1) before the start of the next 1-year period mentioned in section 115(2)(b).

(2) 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.

(3) The employee's chief executive must make the decision within 28 days after forming the opinion mentioned in subsection (1)(b).

(4) In making the decision, section 115(3), (4), (5), and (7) applies to the employee's chief executive.

(5) If the employee's chief executive does not make the decision within the period required under subsection (3), 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.

• [42] Directive 02/23 Review of non-permanent employment is relevant as follows:

4.1 Chief executives are responsible for making decisions on review of non-permanent employment, under chapter 3, part 9, division 1 of the Act.

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.

4.5 Under the Human Rights Act 2019, decision makers have an obligation to:

(a) act and make decisions in a way that is compatible with human rights

(b) give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

4.6 Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.

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.

5.3 A decision maker, when considering a review of an employee's non-permanent employment status, must make a decision by applying the relevant sections of the Act.

(b) provide for the matters a chief executive must consider in deciding the hours of work to be offered in converting an employee's employment under section 151(1)(b)

(c) provide for the circumstances in which a person may appeal against the decision about the hours of work offered in converting the employee's employment under section 151(1)(b)

(d) establish procedural requirements for conducting a review and making a decision under sections 114, 115 and 116 of the Act

(e) should be read in conjunction with the relevant section/s of the Act.

5.5 The requirements set out in these directions are binding and must be followed.

1. Employer obligation to undertake a review of non-permanent employment

7.1 A public sector employee who is eligible (or approaching eligibility) for a review of their employment status under section 115 of the Act may notify the employee's chief executive of their requirement to commence a review under section 115 of the Act, and that the employee would like to be converted to permanent employment.

7.2 The notification provided for in clause 7.1 may be made by the employee or the employee's representative, provided it is not more than three months before the review must be undertaken, in accordance with section of 115 of the Act.

7.3 An entity must set out information on its intranet, or in another way that is accessible to employees, about how to notify under clause 7.1.

7.4 Where an employee does not notify their entity in accordance with clause 7.1, the chief executive is still required to undertake the review in accordance with section 115 of the Act.

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.

7.6 The notification must be in writing and include:

(a) the name and contact details of the entity contact for the review

(c) that the employee or their representative may choose to provide a written submission for consideration during the review process

(d) that if the chief executive does not make a 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

(e) information about any relevant appeal right and timeframe for appeal.

9.1 When making a decision in consideration of the relevant decision-making criteria provided for under sections 114, 115, 116 or 117 of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.

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

(a) the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and

(b) the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and

(c) 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.

1. Obligations when a decision is made not to offer to convert an employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment

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

(a) set out the findings on material questions of fact, and

(b) refer to the evidence or other material on which those findings were based.

13.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

13.3 Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee's employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee's right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.

14.1 A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, 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.

14.2 A written notice is not required to be prepared to support a deemed decision.

14.3 However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:

(a) the employee's right to make an additional request for employment on a permanent basis under section 116 of the Act, if the deemed decision occurred under section 114(7) or 115(6) of the Act, and

(b) any relevant appeal right available to the employee.

14.4 Chief executives are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.

15.2 A public sector employee may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non-permanent employment, as provided for under chapter 3, part 10 of the Act.

• [43] In the Appeal Notice Ms Smith identifies the following grounds of appeal:

... I have performed my role for more than two years now without any adverse finding in respect of my performance or conduct. Therefore, I have demonstrated that I am suitable to perform the role with respect to Clause 10 of Directive 02/23 Review of non-permanent employment ...as required by s 115(3)(a) of the PS Act.

...it is clearly demonstrated that I am suitable, I have identified a similar AO3 role to be appointed to, and there are no genuine operational reasons to hinder such an outcome.

Compliance with Act and Directive: Procedural Issues

• [44] Ms Smith raises concerns that the procedures established by the Directive pursuant to the PS Act were not complied with by the Department. The Department broadly acknowledge that not all aspects of the Directive were complied with.
• [45] As outlined above, cl 7 of the Directive sets out the obligations of the Employer to undertake a review of non-permanent employment under section 115 of the Act. That obligation exists whether or not the employee has requested that the review be undertaken.
• [46] Ms Smith identifies that cl 7.6, which requires the chief executive to notify the employee of the review, was not complied with as she did not receive the requisite notification and therefore submits that no review of her non-permanent employment was conducted by the Department.[33]
• [47] The Department acknowledges that no such review was undertaken and address the issue as follows:[34]

As outlined, significant changes occurred within the Department due to machinery-of-government changes, which introduced new leadership and workforce planning processes. While the Department recognises that the conversion review should have been conducted in April 2025, it was delayed because the delegate was attempting to determine whether the AO3 Executive Assistant (P/N 747148) position would be funded beyond 30 June 2025.

• [48] Ms Smith also points to the requirement imposed by cl 14.3 of the Directive upon the chief executive to notify an employee who has been the subject of a deemed decision of their additional request and appeal rights.[35]
• [49] Ms Smith submits that as she received no notice within the specified time, and in the absence of evidence from the Department that such review was conducted, that the Department did not meet the requirements imposed by cl 14.3.
• [50] Finally, Ms Smith argues that having failed to conduct the required review under section 115 of the PS Act, 'Ms Minniecon's actions in conducting an additional review were provided for under section 117 of the PS Act'.[36]
• [51] The Department say that the additional review was conducted under s 116(1)(b) of the PS Act 'based on Ms Smith's conversion application dated 31 May 2024'.[37]As the requirements of s 115 of the PS Act had not been complied with, the Department explain that the purpose of the additional review was to assess Ms Smith's employment and provide her with a written decision.[38]
• [52] Having reviewed the submissions of both parties, I am not persuaded that any of the PS Act sections referred to adequately underpin the process leading to the written decision issued by Ms Minniecon dated 1 July 2025.
• [53] What is clear is that a deemed decision under s 115(6) of the PS Act has occurred at some stage in this matter. The Department argues (in retrospect) that it occurred prior to the email exchange commenced by Ms Smith on 7 May 2025. It is clear in the email exchange (and other contemporaneous emails attached to the Department's submissions detailed earlier in this Decision) that Ms Smith is seeking the commencement of her 24-month review under s 115 while the Department contends this is a s 116 request for an additional review due to the deemed decision.
• [54] The Department contend the deemed decision existed at the conclusion of 28 days after Ms Smith became eligible for conversion if no decision had been made, so that by 7 May 2025, the deemed decision existed. The evidence provided by the Department shows Ms Smith is not aware that this is the case. She is seeking the commencement of the s 115 review and providing the information she had submitted for the 12-month review request in 2024 as a prompt for some action and of assistance to the decision-maker. The emails show a meeting was to occur on 19 May 2025 to discuss her review, following Ms Minniecon's leave. The email to Ms Minniecon from Ms Pullum of HR is talking about the s 115 review required for Ms Smith, not a s 116 review initiated by her. In the decision-letter itself there is no sign that the decision-maker thought she was making a decision pursuant to s 116 of the PS Act.
• [55] In submissions, Ms Smith confirms it was not until the written decision was received on 11 July referring (incorrectly) to her review request dated 31 May 2025 that she is aware that the review had happened and the conversion was declined. Receiving the letter leads Ms Smith to contact her union who then calculate the date of the apparent deemed decision in reference to the 31 May 2025 request date as 1 July 2025. This is the deemed decision subject to the appeal along with the written decision dated 1 July and received 11 July 2025.
• [56] The Department's serial process failures (since the request for the 12-month review in 2024) of not conducting the review as and when required, of failing to notify Ms Smith of the deemed decision/s they say existed in early May 2025, or notice that a review had commenced, or provision of the specified particulars regarding the outcome, is the cause of this confusion.
• [57] I am not persuaded that the most recent review was a review at Ms Smith's request under s 116 of the PS Act. If the reminder and request for the review to be undertaken on 7 May 2025 was the commencement of the s 116 review there was a requirement that it be concluded within 28 days. The decision notice must have contained the required information set out in s 115(3), (4) and (5). The letter dated 1 July, delivered 11 July 2025, fell outside the bounds of the required timeframe and did not contain all of the required information. Despite the Department's submissions that the letter complied with s 114(5), s 115(4) mandates more information than just the number of previous conversion requests. It requires that the notice states each decision previously made, or taken to have been made under s 115 and s 114 in relation to the employee during their continuous employment. This information was not provided.
• [58] For these reasons I agree with Ms Smith that there was no section 116 review. I will now turn to Ms Smith's submissions that the letter arose from a s 117 review at the initiative of the Department.
• [59] Section 117 requires the decision-maker to have made an active decision under s 115(2) not to convert and consider that the circumstances justify the making of another decision prior to the expiry of a further 12 months. The decision to commence a review must be notified to the employee. The decision needs to be made within 28 days following the decision to conduct the review and be made in accordance with the requirements in s 115(3), (4), (5) and (7). The process and 1 July decision letter do not conform with s 117.
• [60] The only type of decision that logically does not require mandatory information to be provided as part of the decision is a deemed decision. Even in that case the Directive provides mandatory requirements to follow a deemed decision having occurred. Within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of the ability to request an additional review under s 116 and any relevant appeal rights. It is not contested that no such information was ever provided to Ms Smith.
• [61] For active decisions including under s 115, s 116 and s 117 of the PS Act, the PS Act and Directive prescribes information that must be included within the decision.
• [62] Commissioner Dwyer's statement in Power v Queensland is relevant:

An evaluation of whether a decision is 'fair and reasonable' within the meaning of s 562B of the IR Act may be informed by any number of matters. Each matter will turn on its own peculiar facts. However, where the PS Act now compels mandatory content in such decisions, the presence of that content is an incontrovertible prerequisite for a conclusion that the decision is fair and reasonable.[39]

• [63] I agree. On any view of the facts in this matter, mandatory process and content requirements have not been met. On the basis of the decision-making process the decision reached is not fair and reasonable.
• [64] I will now turn my consideration to reviewing the decision itself.

• [65] The PS Act, and the Directive set out mandatory considerations for a chief executive (or delegate) in determining whether a conversion to permanent employment may be made:
  • 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;
  • the employee is suitable to perform the role; and
  • any requirements of an industrial instrument.
• [66] If these considerations are met, then the chief executive must decide to offer to convert the 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.

• [67] This issue has not been addressed by either party, or as part of any review of Ms Smith's non-permanent status.

• [68] It is agreed between the parties that Ms Smith meets the definition of suitability contained within cl 10 of the Directive. Ms Smith is suitable to perform the role of AO3 Executive Assistant.[40]
• [69] Consideration of suitability against higher level roles is not relevant in the context of s 115 conversion. I will not address Ms Smith's submissions in that regard any further.

Continuing need for someone to be employed in the role or role that is substantially the same

• [70] The first limb of this consideration is whether there is a continuing need for someone to be employed in the employee's role. The second and alternate limb asks whether there is a continuing need for someone to be employed in a role that is substantially the same as the employee's role. A person must meet one of these limbs to be offered conversion.[41]
• [71] Ms Smith submits there is a continuing need for someone to be employed in the AO3 Executive Officer/Business Support Officer role, or in a role that is substantially the same.[42] Ms Smith identified specific positions that she considers might be vacant or permanent that she could assume. She also identifies higher level positions, but that is not relevant to my review of the decision under appeal.
• [72] The role that Ms Smith currently holds is as an Administration Officer Level 3 - Executive Assistant. Her current position is located within RSD.[43] The role sits within the ATSIP Division of the Department of Women, Aboriginal and Torres Strait Islander Partnerships and Multiculturalism. This role would be substantially the same as other AO3 roles across the Department.
• [73] Ms Smith argues that the ongoing requirement for work to be performed in her role is evidenced by the multiple extensions of her position. The extensions have seen the employment continue for a period of more than two years. I note also, in her previous period of employment from 2019 Ms Smith was engaged in successive AO3 roles on a fixed term basis. The Department's submissions indicate there are multiple fixed term AO3 roles within the ATSIP division. It is not clear on the evidence why fixed term employment of these level 3 administrative roles, including Ms Smith's role, was appropriate non-permanent employment. In the case of Ms Smith, the Letter of Engagement indicates the employment was on the basis of a 'temporary or urgent need for skills'.[44]
• [74] The Department has an ongoing responsibility under the PS Act to ensure non-permanent employment is only utilised in appropriate circumstances. The Act also specifically contemplates circumstances where frequent or regular fixed term engagement would warrant permanent employment. The temporary or urgent need for skills in Ms Smith's case continued for more than two years.
• [75] The Department acknowledge the extensive skillset of Ms Smith but submit that there exists no ongoing need for the role, stating that the funding for this position will cease.[45]
• [76] The Department explain:

The decision is part of broader workforce changes following a budgetary re-evaluation to align resources with funding availability. Seven temporary positions in CtGPM and RSD, including Ms Smith's position, have been identified as not receiving ongoing funding.[46]

• [77] Ms Smith's position has not been allocated ongoing funding. Ms Smith does not contest this is the case. In relation to the current position being performed by Ms Smith I accept there is no continuing need for someone to be employed in that position.
• [78] As regards to roles that are substantially the same, this should consider the requirement for ongoing employment in AO3 roles across the Department. That is not the same as needing to identify a vacant position in order for the employment conversion to be offered. The conversion is not the conversion of a position, or to a position - it is a conversion of the employment status of the fixed term employee on the basis of continuing need for employment in the role.
• [79] I note the stated reason for not completing the 2024 review of Ms Smith's fixed term employment was that Ms Minniecon had been told there could not be conversion unless a vacant permanent position was identified.[47] No vacant permanent position existed.
• [80] In the letter dated 1 July 2025 Ms Minniecon states there was a review of AO3 vacancies across the Department and as a result of that review there is no continuing need for Ms Smith to perform her current role or similar one. This is clarified in submissions by the Department when they contend Ms Minniecon's review determined that there are no ongoing AO3 or equivalent positions within the ATSIP division in Brisbane.[48] That is not the test.
• [81] The distinction between 'role' and 'position' drawn by McLennan IC in Stephens is relevant to the case at hand regarding the question of 'ongoing need':[49]

[128] Importantly, a "role" is different to a "position". The Respondent has rather conflated those terms, appearing to use the words almost interchangeably. It appears to me that MSHHS has misdirected its own inquiry in this way. Foundationally, I accept that the MSHHS's decision had "misconstrue(d) a temporary employment review" because "the review is conducted against not only the present role, but a role which is substantially the same, and any appointment is not inherently tied to a particular position identified by a number." That particular submission is precisely on point.

• [82] Pidgeon IC's comments in Zhao v State of Queensland (Queensland Health) are relevant here:[50]

I accept that Ms Zhao cannot be employed in the particular position she is currently backfilling as it has a substantive position holder with a right to return to work from parental leave. I also accept that when the Respondent undertook a review of other positions, it did not find an existing vacancy to offer Ms Zhao. However, an existing vacancy is not a requirement to enable conversion. In this case, having established, based on her employment history, that there is a continuing need for Ms Zhao to perform the role, or a role substantially the same, and in the absence of genuine operational requirements precluding appointment on tenure, Ms Zhao's temporary employment should be converted to permanent.

• [83] The particular positions identified by Ms Smith as alternate options are addressed by the Department as follows:[51]
  • the AO3 role in the Culture and Economic Participation Team, which Ms Smith identified as permanent, is currently occupied by a temporary employee and once vacated will be 'reprioritised' following Workforce Planning; and
  • the Department submit overall that all Departments are considering their funding allocations, and there are currently no permanent AO3 roles vacant in the ATSIP division in Brisbane.
  • The AO4 permanent role said to be vacant in the South Brisbane/Ipswich Regional Office is not substantially the same as the AO3 Executive role and is not permanently vacant; and
  • the Department submit that Ms Smith's experience with RSD is not as an AO4 Business Support Officer Role.
• [84] While I agree with the views of the Department in relation to the higher-level roles nominated, the general response that AO3 roles will be reviewed and re-prioritised and there being no current vacant permanent roles does not demonstrate there is no continuing need for employment in AO3 roles across the Department.
• [85] Jones v State of Queensland (Department of Housing and Public Works) ('Jones') is said by the Department to be analogous to the current factual circumstances.[52] The Appellant in Jones was engaged on temporary fixed term contracts and sought to become a permanent employee. In that case, regard was had to the genuine operational requirements of the Respondent, given that the position was to be automated so that there was no continuing need for someone to be employed in the role. Dwyer IC held that the role was not ongoing, and there were no other roles substantially the same that were ongoing.
• [86] Ms Smith distinguishes the circumstances of Jones from her own case:[53]

[11] In this matter the Respondent does not contend that my work is not ongoing, but that the position will be "reprioritised to align with the Department's priorities following workforce planning".

[12] I submit that the inference drawn from this statement is that the role of an AO3 with the same or similar skills, will be ongoing, as an AO3 position with the Respondent. This is substantially different from the circumstances in Jones.

• [87] The Department do not accept that characterisation, submitting that a role cannot be considered 'ongoing' if it is no longer funded.[54]
• [88] I agree with Ms Smith that the circumstances in Jones are different as the automation meant no continuing need for someone to be employed in the role.[55] I further note the comments of Dwyer IC in Swan v State of Queensland (Queensland Health) in relation to the need for a budgeted position:[56]

I accept that the Directive does not require a budgeted position to be available to allow for conversion (as observed by Pidgeon IC in Kelly). However, this does not mean that the absence of a budgeted position cannot be a compelling genuine reason that may preclude conversion in the unique circumstances of any particular matter.

In different circumstances it might be the case that an appellant could demonstrate that the lack of a budgeted position is not a barrier to conversion. It will depend on the circumstances of each case.

• [89] Deciding to reprioritise the funding may mean there is no continuing need for someone to be employed in the position occupied by Ms Smith but I do not accept that means there is no capacity to convert Ms Smith's employment due to the continuing need for someone to be employed in AO3 roles that are substantially the same within the Department. On this basis Ms Smith would be eligible for conversion.
• [90] I will now consider whether there are genuine operational requirements that would render conversion not appropriate.

• [91] The Department submits that, given the temporary nature of the position, and the fact that funding for the position ceases at 29 August 2025, then the genuine operational requirements of the Department render the possibility of conversion for Ms Smith neither viable nor appropriate.[57]
• [92] The PS Act establishes employment on a permanent basis is the default basis of employment in the Queensland Public Sector. This is confirmed in the Directive.
• [93] Ms Smith has been extended on a number of occasions and has been employed for more than two years on a non-permanent basis.[58] Other temporary staff have also been engaged and undertaking this work. It seems improbable at the entity level that there would not be a continuing requirement for employment to continue in administration roles that are substantially the same as Ms Smith's role.
• [94] It would not be a genuine operational reason for an agency to be preferencing non-permanent forms of employment to maintain maximum flexibility so that resourcing may be 'reprioritised' more easily. Not reviewing or converting eligible employees' employment unless a permanent vacancy is identified is not consistent with the PS Act and Directive.
• [95] In this case, the loss of an experienced Indigenous employee from a lead agency seems unnecessary. While funding might be being reprioritised, that is not a compelling reason to not convert Ms Smith's employment to a permanent basis.

• [96] The process deficiencies in the review, coupled with the absence of genuine operational reasons, renders the decision subject to appeal as unfair and unreasonable. Ms Smith is suitable to be converted to an Administration Officer Level 3 role on a permanent basis.
• [97] I order accordingly.

1. The appeal is allowed;
2. The decision that Ms Smith not have her employment converted to permanent is set aside and another decision substituted; and
3. That Ms Smith's fixed term temporary employment status as an Administration Officer Level 3 be converted to permanent employment.

[1] Submissions of the Appellant, filed 30 July 2025, [3].

[2] Details summarised from the third Attachment (Employment History Report) to the Form 89, filed 21 July 2025.

[3] Expressed in the Employment History Report as 'ClosngtheGapProgmMgmmtOff'. It is not contested that Closing the Gap is the new name given to the Local Thriving Communities Program as a result of a MOG change.

[4] Section 115(7) of the Public Sector Act 2022 (Qld) prescribes how to establish continuous service for the purpose of determining two years continuous service.

[5] Submissions of the Respondent, filed 6 August 2025, Attachment 4.

[6] Submissions of the Respondent, filed 6 August 2025, Attachment 4.

[10] Submissions of the Respondent, filed 6 August 2025, [8].

[11] Letter from Ms Minniecon, dated 1 July 2025.

[12] Submissions of the Respondent, filed 6 August 2025, [6].

[18] Industrial Relations Act 2016 (Qld) s 564.

[19] First Attachment to Form 89 filed 21 July 2025; Correspondence including union advice.

[20] Public Sector Act 2022 (Qld) s131(1)(a).

[21] Public Sector Act 2022 (Qld) s133(a).

[22] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J), 5.

[23] Industrial Relations Act 2016 (Qld) s 562C(1)(a).

[24] Industrial Relations Act 2016 (Qld) s 562C(1)(c).

[26] Form 89, Public Sector Appeal Notice, filed 21 July 2025, 4.

[27] Submissions of the Appellant, filed 30 July 2025, [25].

[28] Submissions of the Respondent, filed 6 August 2025, [22].

[29] Public Sector Act 2022 (Qld) s 113(1)(a).

[30] Public Sector Act 2022 (Qld) s 113(1)(b).

[31] Public Sector Act 2022 (Qld).

[33] Submissions of the Appellant in Reply, filed 15 August 2025, [2]-[3].

[34] Further Submissions of the Respondent, filed 21 August 2025, [1].

[35] Submissions of the Appellant in Reply, filed 15 August 2025, [5].

[36] Submissions of the Appellant in Reply, filed 15 August 2025, [7]-[8].

[37] Further Submissions of the Respondent, filed 21 August 2025, [2].

[39] Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53, [44].

[40] Submissions of the Respondent, filed 6 August 2025, [15].

[41] Wood v State of Queensland (Queensland Health) 2024 QIRC 173.

[42] Submissions of the Appellant, filed 30 July 2025, [14].

[43] Submissions of the Appellant, filed 30 July 2025, [17c].

[44] Submissions of the Respondent, filed 6 August 2025, Attachment 2.

[45] Submissions of the Respondent, filed 6 August 2025, 10.

[47] Submissions of the Respondent, filed 6 August 2025; Attachment 4, Email from Ms Minniecon to Ms Pullum of 8 May 2025.

[48] Submissions of the Respondent, filed 6 August 2025, [11].

[49] Stephens v State of Queensland (Queensland Health) [2022] QIRC 420.

[50] [2022] QIRC 185, [57].

[51] Submissions of the Respondent, filed 6 August 2025, 5.

[52] [2021] QIRC 177; Submissions of the Respondent, filed 6 August 2025, [17].

[53] Submissions of the Appellant in Reply, filed 15 August 2025.

[54] Further Submissions of the Respondent, filed 21 August 2025, [4].

[55] [2021] QIRC 177.

[56] Swan v State of Queensland (Queensland Health) [2021] QIRC 346, [25]-[26].

[57] Submissions of the Respondent, filed 6 August 2025, [4].

[58] 3 April 2024-30 June 2025. This excludes the extension the Department asserts was to find alternate employment and to have her appeal concluded.