Christian v State of Queensland (Department of Environment and Science)
[2021] QIRC 166
•14 May 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Christian v State of Queensland (Department of Environment and Science) [2021] QIRC 166 Christian, Laura v State of Queensland (Department of Environment and Science) |
CASE NO: | PSA/2021/107 |
| PROCEEDING: | Public Service Appeal - Conversion Decision |
| DELIVERED ON: | 14 May 2021 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
OUTCOME: | The decision appealed against is confirmed |
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW - PUBLIC SERVICE APPEAL - where the appellant was reviewed for conversion to permanent employment - whether there was a continuing need for the appellant to be employed - where the substantive incumbent returns to the role on a known date. Public Service Act 2008, s 148, s 149, s 149B. Industrial Relations Act 2016, s 562C Directive 09/20 Fixed term temporary employment |
Reasons for Decision
Appeal Details
Ms Christian is now permanently employed by the State of Queensland (Department of Environment and Science) ("the Department"), in an AO5 role in Queensland Parks and Wildlife. At the time that the review of her employment status was undertaken Ms Christian was temporarily employed in the role of an AO6 Principle Policy Officer
In a decision dated 19 February 2021 regarding the outcome of a review of Ms Christian's fixed term temporary employment status, Deputy Director-General Karen Hussey ("the decision maker") gave the following reasons:
Conversion review decision
I have conducted a review of your employment status and have determined that your employment will remain as fixed term temporary at this time. You will continue in the role of Principal Policy Officer until 30 June 2021 when the substantive incumbent returns to the role.Considerations when making the decision
I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed term temporary employment Directive 09/20 and your employment history, including previous conversion review decisions.There are two considerations for deciding whether to convert. These are that there is a continuing need for you to perform your role or a role that is substantially the same AND you satisfy the merit principle. I have addressed these two aspects below.
Merit
Thank you for your performance in your current role, Principal Policy Officer from 1 January 2020 to present, as well as the variety of other roles you have performed within DES. You have demonstrated over this time that you satisfy the merit requirements for the Policy Officer role.Continuing need
The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically, my reasons area) there is no continuing need for you to perform your current role (PN#76031072) as the substantive occupant is returning to the role on a full-time basis from 1 July 2021; and
b) there is no continuing need for you to perform a role that is substantially the same:
·in assessing this, the department considered what roles may be substantially the same as your current role and determined it was appropriate to assess the continuing need for Policy Officers at the AO5/PO3/AO6/PO4 classification levels; and
·a review of the department's establishment determined that there were no substantively vacant funded roles that were substantially the same and that there is not continuing need for any additional roles. This is also reflected in the EPP [Environmental Protection Policy] Workforce Plan.
Ms Christian has an earlier Public Service Appeal Decision where I determined to uphold the delegate's decision as there was no continuing need for Ms Christian to be employed in a role that is substantially the same.[1]
[1] Christian v State of Queensland (Department of Environment and Science) [2021] QIRC 21.
Ms Christian submits the following in her grounds of appeal:
· The decision did not articulate findings of material questions of fact and references to the evidence being relied on; and
· The lack of a clear and fair process makes it difficult to assume that the decision was fair and reasonable.
Since Ms Christian submitted her appeal notice, she has been applying for other permanent positions. On 31 March 2021, she was offered a permanent AO5/1 position in Queensland Parks and Wildlife.
The Department submitted that the appeal be dismissed on the basis that Ms Christian is now a permanent employee.
Ms Christian disagrees with the request to dismiss the appeal on such a basis saying that the appeal is based on the decision of 19 February 2021 being fair and reasonable and at that time she was still a temporary employee.
Had Ms Christian secured a permanent position at the same level as the position she was previously temporarily appointed to, I would have sought further submissions from her as to why her appeal should be heard now that she is a permanent employee. However, in circumstances where she is now permanently employed as an AO5 and had she been successful in being appointed in the review undertaken on 19 February 2021 she would have been converted to permanent as an AO6, I have determined to hear the appeal.
For the reasons that follow, I have decided that the decision to not convert Ms Christian from temporary to permanent is upheld and the appeal is dismissed.
Relevant sections of the Act and Directive
In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 ("the PS Act") and Directive 09/20 Fixed Term Temporary Employment ("the Directive").
Section 149B of the PS Act relevantly provides
149 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 person 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 mention in paragraph (a) during which the employee is continuously employed as a fixed term temporary employee or casual employee in the Department.
(5) In making the decision —
(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 —
(a)The reasons for the decision; and
(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 causal 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.
(7) If the Department'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 person's employment and to continue the person's employment as a fixed term temporary employee or casual employee according to the terms of the employee's existing employment.
(7A) For working out how long the person has been continuously employed in the Department —
(a)All periods of authorised leave are to be included; and
(b)The person is to be regarded as continuously employed even if there are periods during which the person is not employed in the Department, if the periods of non-employment in the Department total 12 weeks or less in the 2 years occurring immediately before the time when the duration nof the person's continuous employment is being worked out.
The Directive
While all the provisions of the Directive have been considered, particular attention is paid to the following provisions:
4. Principles
4.1 Section 25(2) of the PS Act provides that employment on tenure is the default basis of employment in the public service, excluding non-industrial instrument employees. This section gives full effect to the Government’s Employment Security Policy.
4.2 Chief executives who are managing and deciding the employment or conversion of fixed term temporary employees must consult and comply with the relevant provisions of the PS Act, including sections 148 to 149B.
4.3 Section 148(1) of the PS Act (Appendix A) defines a fixed term temporary employee.
4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.
4.5 Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights. …
…
8. Decision on review of status
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.
8.3 If the outcome is a decision to offer to convert the fixed term temporary employee to permanent employment:
(a)the written notification must include the terms and conditions of the offer to convert to permanent employment (e.g. full-time or part-time, days and hours of work, pay, location of the employment and any other changes to entitlements).
(b)where the employee is part-time, an explanation of the days and hours of work offered in the decision; and
(c)the chief executive cannot convert the fixed term temporary employee unless they accept the terms and conditions of the offer to convert.
8.4 Notice of a decision not to convert a person’s employment must comply with section 149A(4) for applications under section 149 or 149B(6) for reviews under section 149B. In accordance with section 27B of the Acts Interpretation Act 1954, the decision must:
(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.
8.5 Sections 149A(5) and 149B(7) of the PS Act provide for a deemed decision not to convert where a decision is not made within the required timeframe (28 days).
8.6 Agencies are expected to undertake each review as required by the PS Act and this directive and must not make an intentional decision to rely on a deemed decision referred to in clause 8.5.
8.7 Each agency must, upon request, give the Commission Chief Executive a report about the number of known deemed decisions.
What decisions can the Commission make?
In deciding this appeal, s 562C of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
(a) confirm the decision appealed against; or
…
(b) 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.
Submissions of the Appellant
Continuing need for Ms Christian in her current role, or a role that is substantially the same
Ms Christian says her frequent and regular extensions demonstrate that there will be a continuing need for her to fill temporary vacancies and that employment on tenure would be appropriate.
The Department has mainly considered roles that are substantively vacant rather than the mandatory consideration of whether there is a continuing need for someone to be employed in her role or a role that is substantially the same. Conversion is not dependent on the existence of a substantive vacancy.
Ms Christian does not believe that sufficient detail has been provided to justify the decision that there is no continuing need for any additional roles.
Ms Christian questions why there was reference to there being no continuing need for any additional roles in this decision when it was not included in her previous decision. She questions whether the two reviews were conducted differently.
Ms Christian says that it would be fair and reasonable for the Department to explain to her what impact the return of the incumbent would have on the need for her to continue in a role that is substantially the same.
Identification of a suitable position
Ms Christian submits that the Department have applied a narrow definition of 'substantially the same', particularly when looking across different divisions for available positions.
Ms Christian would like the Department to implement a clear definition of what is considered 'substantially the same'.
Ms Christian asks that the Department provided her with a list of positions available at the time of her review and to explain how they are not 'substantially the same'.
Ms Christian also asks that the Department confirm in writing that the same definition of 'substantially the same' has been applied to all employment reviews undertaken by the Department since the Directive became effective.
Ms Christian does not consider it reasonable that an employee should have to file a public service appeal in order to seek an adequately detailed justification as to why their employment status cannot be converted.
Notice of decision
Ms Christian says that although the notice of decision contains more detail than her first review, no details were provided on what positions were available at the time of the review, and how it was decided that would not be suitable for the positions.
Although an EPP Workforce Plan is referenced in the notice as an explanation as to why she cannot be appointed permanently, the workforce plan is not attached, and she cannot find it on the Department's intranet.
Ms Christian considers that the decision maker did not provide the material findings of fact and the evidence relied upon in coming to the decision as is required by cl 8.4 of the Directive and s 27 of the Acts Interpretation Act 1954.
Submissions of the Respondent
At the outset, I note that the Department does not dispute that Ms Christian was is eligible to lodge the appeal at the time of filing, however the Department also notes that Ms Christian was permanently appointed on 9 April 2021 after being successful in a recruitment process for a different position within the Department.
The Department explains that Ms Christian's first review was completed when she became eligible for a review following the introduction of the Directive. and that as she As Ms Christian commenced working for the Department on 6 February 2017, she became eligible for a further review on 6 February 2021.
Continuing need in the current role
The Department says that Ms Christian is employed until 30 June 2021 to backfill an employee who is undertaking a relieve at level opportunity.
The Department submits that it is not financially appropriate for the Department to appoint Ms Christian to a position that has a substantive owner, nor would it be appropriate for the Department to create an additional Full-Time Equivalent (FTE) and assume the risk of a supplementary resource which is not required.
Ms Christian was appropriately employed under s 148(1) of the PS Act for the purpose of filling a temporary vacancy arising because a person is absent for a known period.
The Department points to the decision letter where it says 'there is no continuing need for any additional roles' and says that this is sufficient detail.
When considering if there are any additional roles required, the Department must contemplate the current FTE, budget and risk to determine if a supplementary resource would be appropriate and in the current circumstances, it would not.
Identification of a role that is substantially the same
The Department says that in accordance with the PS Act and Directive, it undertook a search for any continuing and vacant roles that were substantially the same. The Department says the search:
·Looked at all positions at the AO5/PO3/AO6 and PO4 classification levels to find any positions that may be substantially the same;
·did not identify any vacant roles that were substantially the same;
·was only required to consider roles that are substantially the same as the role Ms Christian is currently performing; and
·can only consider roles that are continuing and vacant at the point in time the review is being undertaken.
The Department respectfully disagrees with Ms Christian that there was an intention to widen the scope of 'same role' by not defining it in the Directive. The delegate has reviewed all vacant and ongoing roles and determined that none are the same or substantially the same.
It would not be appropriate for the Department to define or create a definition for 'substantially the same' as Ms Christian requests as the Directive and overarching legislation is a Whole of Government process. It is up to each delegate to consider the role the employee is currently performing and any other roles which may be available to determine if they are substantially the same.
The Department will respectfully not comment on Ms Christian's question regarding other employee reviews as this appeal is in relation to her review only.
The workforce plan referenced in the letter was attached and provided to Ms Christian, the plan indicates that although policy and legislation development is a specialist skillset/critical role, the position of Principal Policy Officer is not listed.
Conclusion of Department submissions
In conclusion, the Department submits:
·the review of Ms Christian's employment complied with the requirements for the PS Act and the Directive and appropriate consideration was provided;
·there is no continuing need for Ms Christian to be employed in the role, or a role which is substantially the same; and
·the Department requests that the Commission exercise its powers to dismiss the appeal on the basis that Ms Christian is now a permanent employee of the Department.
Appellant's submissions in reply
Ms Christian says that on 30 March 2021 12 new permanent positions were announced for recruitment in her branch, ranging from AO4 to AO8, with four AO6 positions included. This seems at odds with the reason provided to not convert her employment.
Ms Christian says that the 28 day period for her review was from 5 February 2021 until 5 March 2021 and that it is difficult to understand that no additional resources could be justified during this period but less than four weeks later the Department considered the current FTE, budget and risk appropriate to announce the creation of twelve new positions and to commence recruitment to fill them.
Ms Christian reiterates her earlier submissions that the existence of a vacant role is not required to enable conversion and that it would be fair and reasonable for the decision maker to inform the applicant of what impact the return of the incumbent would have on the need for the applicant to continue in the role.
Ms Christian says that an understanding of roles that are 'substantially the same' is not shared across Departments and that when different departments and divisions are interpreting and applying provisions differently, she can't see how any decision being made can be considered fair and reasonable.
Ms Christian says that the EPP workforce plan referenced in her decision letter was never provided to her and that the notice of decision provide to her does not contain enough detail regarding evidence or other material on which those findings were based.
Ms Christian points to recent decisions of the Commission regarding review decisions that don't address the mandatory criteria. Ms Christian says that she has continued to undertake appeal processes so that clear and proper process is followed to ensure a fair and reasonable outcome.
Ms Christian says that being employed in a temporary capacity for over four years has significantly impacted on the quality of both her personal and professional life, and she does not believe the stress that these processes have on the employee is well-acknowledged by the Department.
Consideration of submissions
Continuing need for the role
The decision letter informs Ms Christian that the substantive occupant of the role she is undertaking is returning to the role on a full-time basis from 1 July 2021. It goes on to say that 'there is no continuing need for any additional roles'. It seems to me then, that the work Ms Christian is undertaking will be undertaken by the substantive occupant of the role upon their return and that there is no continuing need for an additional role to do this work. This explains the impact that the return of the substantive employee will have on the continuing need for Ms Christian to do the job.
Section 148(2)(a) of the PS Act identifies that employment on tenure may not be viable or appropriate if the employment is for the purpose of filling a temporary vacancy arising because a person is absent for a known period. Based on the decision letter and the submissions before me, it appears that Ms Christian is employed for this purpose.
Ms Christian's submissions asked why the reference to the need for 'additional roles' was not included in her previous decision and asked whether this meant that the reviews were conducted differently. I cannot see that either of these factors would stand to render the decision unfair. Each decision letter will be written based on the process undertaken and the requirements of the Directive. In fact, I would be concerned if Ms Christian was provided with identical letters, notwithstanding the reviews being undertaken only months apart. Reviews must address the factors set out in the Directive but do not have to be undertaken in the same way as previous reviews.
I note Ms Christian's submissions that four weeks after her review decision was provided to her, a number of permanent positions were announced in her area. However, in this appeal, I have to consider the review decision as at the day it was undertaken, 19 February 2021. The new roles were not announced until 30 March 2021 and there is no information before me to suggest that at the time of the decision, any of these roles were established and available to convert Ms Christian into.
A role that is substantially the same
The letter clearly sets out that in considering what roles may be substantially the same as Ms Christian's current role, an assessment was undertaken of the continuing need for Policy Officers at the AO5/PO3/AO6/PO4 classification levels. The decision goes on to state that it was determined that there were no substantively vacant funded roles that were substantially the same.
Ms Christian submits that she should be provided with a list of positions that were available at the time of the review and how they were considered not 'substantially the same'. I do not think that such a level of detail is necessary in a review decision. I do note that in its submissions for this matter, the Department attached a list of vacant roles considered.
While it is not the case that there has to be a substantive vacancy in order to convert an employee from temporary to permanent, there does have to be a continuing need for the employee to undertake the role or a role that is substantially the same. The decision letter demonstrates that there was no vacant role that was substantially the same, but also that there was no continuing need for an additional role. I take additional role to mean a role created for the purpose of making Ms Christian permanent. This was considered and the delegate determined it was unnecessary.
While Ms Christian raises some interesting points of a policy nature for the whole of government. It is not possible appropriate for me to address them in her particular appeal. I would note though, that decisions about the continuing nature of a role and what other roles may be substantially the same will depend on the particular facts of each case. Guidance may be provided by decisions of this Commission, policy documents and guidelines issued by the Public Service Commission, but essentially, matters will be considered on a case-by-case basis against the set criteria.
If the EPP Workforce Plan document referred to in the decision letter was not attached to the decision letter and Ms Christian was unable to locate it on the Department's intranet, I think it was open to her to request a copy. In this particular circumstance, not attaching a document that is referred to in the letter does not render the decision deficient.
I note that the letter lists information about Ms Christian's employment history and previous review. I find that the information provided to Ms Christian is sufficient for her to understand the steps taken by the Department and the reasons for the decision as required.
I note Ms Christian's submissions about the impact of temporary employment on her professionally and personally. I also note that Ms Christian is now employed permanently in a different role within the Department and I wish her well in this position.
The decision of 19 February 2021 not to convert Ms Christian's employment was fair and reasonable.
Pursuant to s 562C(1)(a) of the IR Act the Decision appealed against is confirmed.
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