Swan v State of Queensland

Public Service Act 2008 (Qld) ss 25, 149A, 149B

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Cassilles v State of Queensland (Queensland Health) [2021] QIRC 210

Gilmour v Waddell & Ors [2019] QSC 170

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

Kelly v State of Queensland (Queensland Health) [2021] QIRC 55

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

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

• [1] Since 1 February 2019, Mr Swan has been casually employed in the position of Protective Services Officer (003) within Integrated Security Services ('ISS') at the Gold Coast Hospital and Health Service ('GCHHS') through Queensland Health ('the Department').

• [2] On 30 April 2021, Mr Swan submitted a request for his employment to be converted to permanent pursuant to Directive 09/20 Fixed term temporary employment ('the Directive'). At the time of his request, Mr Swan had been fulfilling temporary employment contracts for over two years.

• [3] On 26 May 2021, Mr Swan received correspondence from Mr Grant Brown, Acting Executive Director, People and Corporate Services at GCHHS. It stated that a review of his employment status had been conducted in accordance with the Directive and the Public Service Act 2008 (Qld) ('the PS Act'). Mr Brown advised Mr Swan that he would continue as a temporary employee with GCHHS ('the decision').

• [4] The reasons for the decision were set out as follows:

The following factors must be considered when deciding whether to convert an employee to permanent employment. I have addressed these considerations below.

The decision not to permanently appoint you is based on continuing staffing needs and the genuine operational requirements of Integrated Security Services at this time. The roles within Security Services at GCHHS fundamentally requires adhoc shifts, and the work available to Security Staff continuously fluctuates. This is particularly due to 'specialling' that occurs when GCHHS has particular patients that can require additional Security Staff for unknown periods of time.

In October 2019, a Memorandum of Understanding (MOU) was reached with The Australian Workers' Union (AWU) and became operational on 24 October 2019. This agreement requires additional ordinary hours to be allocated to permanent part time employees in the first instance. It also details any further gaps in the roster which become available as a result of adhoc arrangements, emergent leave or additional service requests may be filled by casual employees. The MOU, and the parties to the MOU, acknowledge requests made to Security Services are done to ensure the immediate safety of staff, patients and visitors to its facilities and are inherently unscheduled, emergent and on demand. I have attached a copy of the MOU for your information.

In considering your application, a review was undertaken of the fixed term temporary contracts you engaged in. Since your commencement at Gold Coast Health, you have been provided twelve (12) fixed term engagements in addition to your casual shifts. For a period during 2020 and 2021, you were backfilling vacant roles due to people in those positions backfilling fulltime lines or seconded to higher duties. This occurred after the implementation of the MOU and subsequent roster review. Currently, there are no vacant roles in Integrated Security Services.

The backfilling noted in your employment history above was a series of 32-hour contracts in which you were allocated to cover the rostered shifts of a permanent employees (sic) who were engaged to backfill fulltime rostered lines or seconded to higher duties. While it is acknowledged there may be a need to provide backfill for permanent employees who access emergent leave or may be off work on work-related injuries, this requirement is unpredictable and fluctuating in nature.

As there are no vacant roles available currently, Integrated Security Services has undertaken a review of ongoing long-term illness, other leave arrangements and 'specialling' to determine whether there is a genuine operational need to create further permanent roles in the unit. A review of your history indicates you have filled a number of temporary engagements to cover permanent employees accessing leave. A review has been undertaken to assess whether there is an ongoing operational need to create further permanent roles to cover emergent and planned leave. However, after a careful review, it has been concluded that no further permanent roles are required at this time as employees off work on work-related injuries are expected to return, emergent leave arrangements are unpredictable and temporary in nature and security specials are inherently emergent, unpredictable and temporary. A holistic review of Integrated Security Services, and the nature of the casual Security Officer roles, demonstrates there is no ongoing certainty to determine to what further extent, beyond the current permanent roster requirements, security services are needed in the immediate, medium or long term due to the specific nature of these roles and the unpredictable need for security services, which fluctuates. If there is a need that arises in the future to expand the current permanent roles within Integrated Security Services, any vacancies created will be filled in accordance with the applicable industrial instrument.

.... Therefore, while there may be temporary vacancies due to specialling, emergent leave, or other uncontrollable factors, this does not equate to an ongoing role. As particular instances of specialling are completed, there will inevitably be a reduction in the number of hours that need to be covered. Therefore, after considering the information detailed above, there is no continuing need to create a new role based on the genuine operational requirements within Integrated Security Services.

Thank you for your performance in the role since 1 February 2019. I am satisfied that you meet the merit requirements for the role having regard to the merit principle. Your consistent engagement in temporary contracts is a testament to you fulfilling the merit requirement.

Conversion is not viable or appropriate - genuine operational requirements

Collectively, the inherently emergent and unpredictable nature of your work makes your appointment to permanent status not available at this time. While opportunities may arise for employees to fill temporary contracts, the nature of this need is driven by adhoc business needs, including emergent leave and adhoc specialing requests. As such, while there may be future opportunities for you to fill temporary contracts, and you have demonstrated merit, conversion is not appropriate or viable at this time due to genuine operational requirements of Integrated Security Services at Gold Coast Health.

As detailed above, the Integrated Security Services department within Gold Coast health often requires employees to perform work necessary to meet an unexpected temporary increase in workload. This can be evidenced by the 'specialising' Protective Services Officers engage (sic) in relating to patients and/or circumstances requiring temporary increase in security presence.

To confirm, the Integrated Security Services department of Gold Coast Health does not currently have a genuine operational need to create further roles within Integrated Security Services and is committed to the MOU which requires adhoc roster gaps to be allocated to permanent part time employees in the first instance. Should an operational need arise to create further vacancies within the unity, these will be filled in accordance with the applicable industrial instrument.

• [5] In response to the decision, Mr Swan filed an Appeal Notice on 16 June 2021 with the Queensland Industrial Relations Commission ('the Commission'). In his appeal, he contended that:

• Citing the decision of Ryan J in Gilmour v Waddell & Ors,[1] unreasonableness of a decision must be considered by reference to the subject matter, scope and purpose of the statute conferring the power. The Department erred by failing to consider all relevant factors within the objects and nature of the relevant legislation;

• The factors not considered included: the State's commitment to employing staff permanently where possible, agencies' responsibility to reduce reliance on temporary and casual staff, the extensive review process of employment and the appeal process to the QIRC;

• Citing the decision of Pidgeon IC in Kelly v State of Queensland (Queensland Health) ('Kelly'),[2] the genuine operational requirements listed by the Department are being used to subvert its obligations pursuant to s 25(2)(d) of the PS Act to ensure employment on tenure is the default;

• Mr Swan's regular and consistent employment since March 2019 demonstrates that there is an ongoing need and sufficient work to justify his conversion to permanent, which is reasonable and appropriate in the circumstances. This is evidenced by payslips attached to his Appeal Notice; and

• Citing Kelly,[3] the Directive does not require a budgeted vacancy to allow conversion to occur and will often involve creation of a new position.

What decisions can the Industrial Commissioner make?

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

(b) for an appeal against a promotion decision - set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted; or

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

• [7] Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[4] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[5]

• [8] An appeal under Chapter 11, of the IR Act is not a rehearing of the matter,[6] but rather, it is a review of the decision and the decision-making process.[7] The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable.[8]

• [9] The issue for my determination in the matter before me is whether the decision to refuse to convert Mr Swan's temporary employment was fair and reasonable.[9]

• [10] For the reasons set out below, I have determined that the decision was fair and reasonable**.**

Relevant sections of the PS Act and Directive

• [11] The relevant provisions of the PS Act and the Directive for consideration in this appeal are set out below.

• [12] The PS Act relevantly provides:

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if -

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

(3) If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

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

(b) the total period for which the person has been continuously employed in the department under section 149; and

(c) for a fixed term temporary employee - how many times the person's employment as a fixed term temporary employee has been extended.

149B Review of status after 2 years continuous employment

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

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

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

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

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

(4) The department'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 as a fixed term temporary employee or casual employee in the department; and

(b) each 1-year period after the end of the period mentioned in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the department.

(a) section 149A(2) and (3) applies to the department's chief executive; and

(b) the department'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 149A in relation to the person during the person's period of continuous employment.

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

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

(c) for a fixed term temporary employee - how many times the person's employment as a fixed term temporary employee or casual employee has been extended; and

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

• [13] Clause 8 of the Directive provides as follows:

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):

• whether there is a continuing need for the person to be employed in the role, or a role which is substantially the same
• the merit of the fixed term temporary employee for the role having regard to the merit principle in section 27 of the PS Act
• whether any requirements of an industrial instrument need to be complied with in relation to making the decision, and
• the reasons for each decision previously made, or deemed to have been made, under sections 149A or 149B in relation to the employee during their period of continuous employment.

8.2 Sections 149A(3) and 149B(5) 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.

• [14] The parties filed written submissions in accordance with a Directions Order dated 22 July 2021. The parties' submissions primarily concern the genuine operational requirements of the Department.

• [15] The Department contends, for reasons set out in their submissions dated 23 July 2021, that genuine operational requirements preclude Mr Swan's permanent conversion. In summary, it submits that:

• Following an industrial dispute filed in the Commission in September 2018, an agreement was reached between the Australian Workers' Union and the GCHHS regarding rostering of staff;

• The GCHHS has complied with the agreement reached and the roster has since remained static with no genuine operational requirement to offer Mr Swan or any other temporary employee permanent employment;

• Considering the requirements of ISS, the nature of casual Security Officer roles and the unpredictable and fluctuating nature of work, there is not ongoing certainty of the future need of security services;

• There is no dispute as to Mr Swan's merit to be appointed in accordance with s 149A(2)(a)(ii) of the PS Act;

• The decision is fair and reasonable as the decision letter has complied with the legislative requirements. It clearly articulated that there are no further permanent roles available as permanent employees currently on leave are expected to return;

• Citing the decision of Merrell DP in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'),[10] there is no genuine operational requirement to convert Mr Swan due to the unpredictable and temporary nature of the workplace;

• In accordance with s 25 of the PS Act, GCHHS must responsibly manage public resources and appointing each Security Officer on tenure is not fiscally responsible as the GCHHS cannot guarantee an ongoing need, and casual staff are required to respond to unscheduled, emergent and temporary operational requirements;

• Citing the decision of Pidgeon IC in Cassilles v State of Queensland (Queensland Health) ('Cassilles'),[11] there is an operational requirement for casual and temporary staff due to the unique, genuine and uncontrollable requirement of ISS; and

• As the roster has been negotiated with the assistance of the Commission and is now at capacity, should the Commission decide to convert Mr Swan, the Department would seek the Commission's further assistance.

• [16] Mr Swan contends, for reasons set out in his reply submissions dated 12 August 2021, that he should be converted to permanency. In summary, he submits that:

• The industrial dispute should not undermine the request for permanency, there remains sufficient work and there is recorded need of constant hours and demand for the appellant to support conversion;

• The reason given of 'genuine operational requirements' is used to subvert the Department's obligation to prioritise employment on tenure as the default basis per s 25(2)(d) of the PS Act;

• The Department has unreasonably exaggerated the individual impact of Mr Swan's conversion application on the GCHHS's ability to manage its resources efficiently and responsibly;

• The decision of Cassilles regarding the memorandum of understanding between the Australian Workers' Union and the GCHHS was not intended to be interpreted in a manner which would prevent casual staff with legitimate merit from being successfully converted. This interpretation would be contrary to the purpose of the Directive and the requirements in s 25 of the PS Act; and

• The genuine operational requirements relied on are not genuine, unique or beyond the control of the GCHHS. Mr Swan's payslips are evidence that his engagement has been predictable, and he has consistently worked an average of 58.14 hours per fortnight for the last 26 weeks.

• [17] The Department contends, for reasons set out in its reply submissions dated 31 August 2021, that the decision not to convert Mr Swan was fair and reasonable. In summary, it submits that:

• The Department does not dispute the hours which Mr Swan has worked, however notes that the engagements were in response to adhoc and varying fluctuations in emergent clinical and operational demand;

• The delegate undertook a full review of the current and ongoing needs and confirmed there is currently no genuine operational need to create further permanent roles in the unit and Mr Swan's role has variable and unpredictable work patterns and demands;

• The Department commits to its obligations in s 25(2)(d) of the PS Act, however the genuine operational requirements of the ISS are so unpredictable, unique and genuine, they displace the principle that employment on tenure is the default. Appointing Mr Swan on tenure would be contrary to the responsibilities detailed in s 25; and

• It maintains the relevance of Cassilles to this appeal and maintains its commitment to converting employees where appropriate in accordance with the Directive.

• [18] The PS Act and the Directive each set out certain mandatory requirements for decision-making in matters of this nature. While consideration as to whether a role is ongoing, or whether there are substantially similar roles that are ongoing is mandatory, each of these considerations will be considered in the context of whether there genuine operational requirements that preclude conversion.

• [19] In short, regardless of the ongoing nature of the role or a substantially similar role, the PS Act and the Directive both recognise genuine operational requirements as a barrier to conversion.

• [20] With respect to the mandatory considerations, I am satisfied that the decision-maker has given thorough consideration to the ongoing nature of Mr Swan's role. I am further satisfied that consideration has been given to the availability substantially similar roles.[12]

• [21] I am satisfied that the mandatory considerations of the PS Act and the Directive have been considered and the reasons are more than informative in this regard.

• [22] Merrell DP considered the meaning of the term 'genuine operational requirements' in Morison:[13]

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.

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.

The phrase '... genuine operational requirements of the department' in s 149C(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '...the position at the higher classification level.'

• [23] Having regard to Morison, I am similarly satisfied that the decision-maker has gone to considerable effort to outline the genuine operational requirements precluding conversion. I do not consider that the Department is trying to subvert the PS Act and the Directive with respect to the overall objectives around permanent employment.

• [24] The parties referred to the decisions of Kelly and Cassilles. As Pidgeon IC correctly observed in Cassilles each appeal under the PS Act is decided on its own unique facts. I would add that while the matter of Cassilles involved an employee in near identical circumstances to Mr Swan, my decision in this matter has been made entirely independent of any influence of the reasoning applied in Cassilles.

• [25] There are comprehensive and cogent submissions from the Department explaining the circumstances of the genuine operational requirements precluding on Mr Swan's conversion. 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 operational reason that may preclude conversion in the unique circumstances of any particular matter.

• [26] 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. That is not the case here.

• [27] I am satisfied that the reasons cited by the decision-maker, namely the ad hoc and unpredictable availability of hours, are genuine operational requirements that preclude Mr Swan's conversion. The particular operational circumstances of ISS require a flexible pool of casual employees to be available at all times to fill emergent and other unpredictable absences in an ad hoc fashion.

• [28] While I can sympathise with Mr Swan's desire to achieve conversion to permanent employment, on this occasion I consider that there was good reason to refuse his request. I would anticipate that there is no barrier in Mr Swan applying for any permanent positions that become available in the future. I would also note that, provided he continues to be employed and remains a meritorious employee, Mr Swan will have further opportunities to apply for conversion in the future. Mr Swan should not feel deterred by this decision from making further applications for conversion when he is eligible to do so.

• [29] In all of the circumstances I consider the decision was fair and reasonable.

• [30] In the circumstances I make the following order:

1. The decision appealed against is confirmed.

[1] [2019] QSC 170, 33 [207]-[210].

[2] [2021] QIRC 55, 10-11 [45].

[4] Industrial Relations Act 2016 (Qld) s 562B.

[5] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[6] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[8] Industrial Relations Act 2016 (Qld) s 562B(3).

[9] Page v John Day and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, 60-61.

[10] [2020] QIRC 203.

[11] [2021] QIRC 210, [48].

[12] Unhelpfully the decision does not explicitly refer to consideration of 'substantially similar roles' however, the details of the exercise undertaken in reviewing the available roles for Mr Swan satisfy me that the mandatory requirement has been met.

[13] [2020] QIRC 203, 12 [37]-[40].