Chiotakis v Queensland Museum Network

Case [2023] QIRC 34

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Chiotakis v Queensland Museum Network [2023] QIRC 034

Chiotakis, Christina
(Appellant)

v

Queensland Museum Network
(Respondent)

CASE NO:

PSA/2022/948

PROCEEDING:

Public Service Appeal – Conversion Decision

DELIVERED ON:

7 February 2023

MEMBER:

HEARD AT:

McLennan IC

On the papers

  ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act2016 (Qld):

1.         The appeal is allowed;

2.          The decision that Miss Chiotakis not have her (0.6 FTE) TO2 Technical Officer employment converted to permanent is set aside and another decision is substituted; and

3.          Miss Chiotakis' employment status as a (0.6 FTE) TO2 Technical Officer be converted to permanent employment.

CATCHWORDS:

LEGISLATION AND OTHER INSTRUMENTS:

CASES:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where respondent gave a deemed decision not to convert the appellant's employment to permanent under the Public Service Act 2008 – whether there is a continuing need for the appellant to be employed in the same role or a role which is substantially the same - consideration of genuine operational requirements – where decision was not fair and reasonable

Acts Interpretation Act 1954 (Qld) s 14A

Industrial Relations Act 2016 (Qld) s 451, s 564,
s 562B, s 562C, s 567

Public Service Act 2008 (Qld) s 26, s 27, s 148,
s 149, s 149A, s 149B, s 194, s 195, s 196

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 11

Benson v State of Queensland (Department of Education) [2021] QIRC 152

Chiotakis v Queensland Museum Network [2022] QIRC 022

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

IW v City of Perth (1997) 191 CLR 1

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

Minister for Immigration and Citizenship v SZMDS [2010] 240 CLR 611

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

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

Taylor v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 397

Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260

Reasons for Decision

Introduction

  1. Miss Christina Chiotakis (the Appellant) is employed by the Queensland Museum Network (QMN), Department of Communities, Housing and Digital Economy (the Department), State of Queensland (the Respondent).

  2. Miss Chiotakis currently has two separate and distinct engagements with the Queensland Museum Network. 

  3. Firstly, Miss Chiotakis is employed on a permanent part time basis (0.4 FTE), as a OO2 Visitor Experience Officer. 

  1. Initially commencing in this role as a casual on 16 September 2014, she was subsequently converted to permanent employment on 24 November 2021.

  2. The conversion from casual to permanent part time employment in the Visitor Experience Officer role occurred only after Miss Chiotakis filed a public service appeal against the earlier deemed decisions not to convert (PSA/2021/379), in…

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Details
AGLC
Chiotakis v Queensland Museum Network [2023] QIRC 34
Case
[2023] QIRC 34
Decision Date

CaseChat Overview and Summary

In the matter of Chiotakis v Queensland Museum Network, the Queensland Industrial Relations Commission considered an appeal by Miss Chiotakis against the Queensland Museum Network's (QMN) decision not to convert her fixed-term temporary employment as a Technical Officer to permanent under the Public Service Act 2008. The central issue for the court was whether the QMN's decision was fair and reasonable, particularly in light of the genuine operational requirements cited by the respondent. The Commission had to determine if the QMN's decision was made in accordance with the criteria set out in the Public Service Act 2008 and Directive 09/20.

The court found that the decision was made under section 149B of the PS Act and was eligible for appeal under section 194(1)(e) of the same Act. The Commission noted that the QMN's reliance on a deemed decision not to convert Miss Chiotakis' employment was not fair and reasonable, as it did not adequately consider the continuing need for her role and the genuine operational requirements of the agency. The Commission was also mindful of the need for agencies to guard against over-reliance on deemed decisions. The Commission found that the decision was not made in accordance with the relevant legislative and directive criteria and that the QMN had not adequately considered the continuing need for Miss Chiotakis' role and the genuine operational requirements of the agency.

The Commission allowed the appeal and set aside the decision not to convert Miss Chiotakis' employment to permanent. It substituted the decision with an order that her employment as a (0.6 FTE) TO2 Technical Officer be converted to permanent employment. The Commission directed that Miss Chiotakis' employment status be converted to permanent employment, thereby recognising her ongoing contribution and the necessity of her role within the QMN.

Orders

Orders of the court

That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):

1. The appeal is allowed;

2. The decision that Miss Chiotakis not have her (0.6 FTE) TO2 Technical Officer employment converted to permanent is set aside and another decision is substituted; and

3. Miss Chiotakis' employment status as a (0.6 FTE) TO2 Technical Officer be converted to permanent employment.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

However, Directive 09/20 also cautions that (my emphasis):8.6Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.8.7Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions. Self-evidently then, QMN should guard against what may well be perceived as an over-reliance on deemed decisions.Eligibility to appeal Clause 11.1 of Directive 09/20 provides that "A fixed term temporary employee eligible for review under section 149B has a right of appeal provided for in section 194(1)(e) of the PS Act in relation to a decision not to convert." Section 194(1)(e)(i) of the PS Act provides that an appeal may be made against "a decision (each a conversion decision) – under section 149B not to convert the basis of employment of an employee". Section 196(e) of the PS Act prescribes that "the employee the subject of the decision" may appeal "for a conversion decision". I am satisfied the Decision was made under s 149B of the PS Act and is able to be appealed by the Appellant. For the sake of completeness, Miss Chiotakis is eligible to appeal the decision even though she has already been converted to permanent in one of the two separate and distinct engagements.[9] QMN's earlier decision to convert Miss Chiotakis' casual engagement as a OO2 Visitor Experience Officer to permanent part time (0.4 FTE) does not limit its ability to review her separate fixed-term temporary engagement in the TO2 role under s 149B. My reasoning is explained in Benson.[10][9] Permanent part time (0.4 FTE) OO2 Visitor Experience Officer.[10] Benson v State of Queensland (Department of Education) [2021] QIRC 152, [65] – [79]. Miss Chiotakis' eligibility to appeal the deemed decision is not in dispute.[11][11] Respondent's Submissions, 10 November 2022, 1 [1], [3].Timeframe for appeal Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. The Decision was deemed to have been given on 14 October 2022. In accordance with s 564(3) of the IR Act, Miss Chiotakis filed the Appeal Notice on 21 October 2022. Miss Chiotakis seeks the Decision be set aside and substituted with a decision to permanently appoint her to the role of TO2 Technical Officer, or a role substantially the same.[12][12] Appellant's Submissions, 4 November 2022, 5 [28]. Pursuant to s 562C(1) of the IR Act, in deciding a public service appeal, the Commission may determine to either:·confirm the decision appealed against; ·set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or·set the decision aside and substitute another decision. Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

Ratio Decidendi

Legal Principle Established

Clause 8.2 of Directive 09/20 states (emphasis added):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.[18][18] This is also mirrored in s 149A(3) of the Public Service Act 2008 (Qld).Merit The parties agree that there were no issues with respect to 'merit' that would otherwise prevent Miss Chiotakis' conversion to permanent.Requirements of an industrial instrument Neither party has submitted there to be any requirements of an industrial instrument that need to be complied with in relation to the Decision.[19] [19] Public Service Act 2008 (Qld) s 149A(2)(b).Reasons for each decision previously made, or deemed to have been made Earlier decisions have been made under ss 149A and 149B of the PS Act with respect to Miss Chiotakis' employment in the TO2 role. With respect to a prior review, the Respondent submitted:On 5 March 2021, in response to Ms Chiotakis' request under section 149 of the Act, the chief executive made a decision not to convert Ms Chiotakis.The decision maker considered that it was not appropriate or viable at this time, due to genuine operational requirements, specifically:a. There is no ongoing funding for the position beyond the current end date of 30 June 2023. The funding provided by BHP directly supports Ms Chiotakis' TO2 project position.[20][20] Respondent's Submissions, 10 November 2021, 2 [1] – [2]. In the Commission's earlier decision in Chiotakis v Queensland Museum Network,[21] the Respondent's reasons for the previous decisions made were recorded as follows:[21] [2022] QIRC 022. [14] The Respondent notes that on 5 March 2021, Ms Chiotakis requested that she be converted to permanent in the TO2 role. At that time, the decision maker determined that it was not appropriate or viable to convert Ms Chiotakis' employment at that time due to genuine operational requirements, specifically,…the Queensland Museum does not have ongoing funding for your position beyond the current end date of 30 June 2023. As you are aware, Project DIG is a five year partnership with BHP which aim is to transform how we store, explore and share the State's collection and research with communities, students and scientists across the world. The funding provided through this partnership directly supports your position. Unsurprisingly perhaps, one year later the Respondent has relied on similar reasons when its most recent deemed decision not to convert Miss Chiotakis' TO2 arrangement to permanent was again appealed.Summary of Findings For the reasons that follow, I find that: Miss Chiotakis submitted that she undertakes the following range of tasks in the current TO2 role with Project DIG:Collection Management:-Data management of specimens on Vernon and Excel as required-Boxing and reboxing as needed, including updating labels and cradling specimens for transport or storage-Accessioning of collections and donations-AuditsPreparation of Fossils:-Physical preparation of specimens with the use of microjacks-Knowledge of appropriate glues and consolidants to be used, varies according to individual specimen requirements-Conservation-Cradling with the use of foam, plasters or fibreglass cradles