Hardie v State of Queensland (Department of Education)
[2021] QIRC 171
•24 May 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hardie v State of Queensland (Department of Education) [2021] QIRC 171 |
PARTIES: | Hardie, Laraine Betsy v State of Queensland (Department of Education) |
CASE NO.: PROCEEDING: | PSA/2021/6 Public Service Appeal – Appeal against a conversion decision |
| DELIVERED ON: | 24 May 2021 |
MEMBER: HEARD AT: | Power IC On the papers |
OUTCOME: | The appeal is dismissed for want of jurisdiction. |
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW - public service appeal - where the appellant requested a review for conversion from casual to permanent employment - where the appellant was not converted to permanent Public Service Act 2008 (Qld), ss 148A, 149, 149A, 149B and 195 Directive 08/20 Casual Employment, cls 6, 8 and 9 |
Reasons for Decision
Introduction
Mrs Laraine Betsy Hardie ('the Appellant') has been engaged by the State of Queensland (Department of Education) ('the Respondent') as a casual administration officer at the Respondent's Teacher Replacement and Contract Employment Register ('Tracer') Unit.
On 18 November 2020, the Appellant made a request that she be converted from a casual to permanent employee.
The issue to be determined in this appeal is whether the decision that the Appellant's employment is not to be converted from casual to a general employee on tenure was fair and reasonable.
In order to determine the appeal, it is necessary to consider the relevant provisions of the Public Service Act 2008 (Qld) ('the PS Act') and Directive 08/20 Casual Employment ('the Directive').
Relevant provisions of the PS Act and the Directive
Section 149B of the PS Act relevantly provides:
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.
…
(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
…
(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.
All the provisions of the Directive have been considered, with particular attention paid to the following provisions:
6. Casual employee may request review of employment status after being continuously employed for one year
6.1Section 149 of the PS Act (Appendix C) provides that a casual employee who has been continuously employed for one year or more may request a review for conversion to permanent employment. An employee may only make one request in a 12-month period.
6.2An agency must set out information on its intranet about how to request a review.
6.3Section 149(4A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
6.4Under section 149A(1), the chief executive must decide a request made under section 149 within 28 days after receiving it.
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 set out in section 149A(2):
·whether there is a continuing need for the employee to be employed in the role, or a role which is substantially the same
·the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act
·whether any requirements of an industrial instrument are complied with in relation to 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) of the PS Act provide that where the criteria above are met, the chief executive must decide, within 28 days, 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.
…
8.5Sections 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.
…
9. Appeals
9.1A casual 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.
9.2In accordance with section 195(1)(i) of the PS Act, a casual employee does not have a right of appeal in relation to a decision not to convert them in response to an application made under section 149.
9.3In accordance with section 194(1)(e)(ii), a casual employee may appeal an offer for conversion to permanent employment under section 149B(3)(b) as a general employee on tenure or a public service officer in the circumstances where the hours of work offered are less than the hours required to be offered by clause 7.4.
The Appellant's reasons for appeal
The Appellant outlined the following reasons for appeal, that:
·the Appellant has been a casual Tracer team member for four years;
·during that time, she worked shifts from 6am until 8am and occasionally until 9am during Term 1 and Term 4 and between 6am and 9am (or until required) during Term 2 and Term 3;
·during school closures and because of COVID-19, shifts varied during 2020, although there was some project work carried out during the periods the schools were closed;
·during October to November 2020, four Tracer team members, including the Appellant, requested conversion from casual to permanent part-time. The other staff members were advised they would be converted to permanent part-time and the Appellant was awaiting advice by 16 December 2020;
·the Appellant's manager, Ms Anthea O'Loughlan, contacted Workforce Planning and subsequently informed the Appellant that she was ineligible for conversion;
·the Appellant finds this confusing and inequitable as the other staff members who have worked the same shifts, approximately the same hours and the same leave as the Appellant were deemed eligible and was converted;
·casual staff members do not apply to take the leave, it is taken during the school holidays when no supply teachers are required to be contacted;
·a precedent has been established by converting the other three employees with the same work/leave criteria as the Appellant; and
·the only thing that sets the Appellant apart from the other three staff members is her age, which is both irrelevant and discriminatory.
Submissions
The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The Appellant advised that she had no additional information to add to her appeal notice.
Respondent's submissions
The Respondent, in response to the Appellant's appeal notice, submits that:
·the employment of the Appellant was made, and continues, pursuant to s 148A of the PS Act;
·the Appellant's duties involve activities supporting the sourcing of casual teaching employees to respond to emergent teachers' absences in schools across Queensland. This work is undertaken generally between 6am and 8am each day, but always concludes prior to the school commencement time of 9am;
·the work is not required, and not undertaken during school holiday periods;
·the Appellant's initial casual engagement complied with clause 6.2 of the then in-force Directive 01/17 Conversion of casual employees to permanent;
·the Appellant's casual employment remains consistent with section 148A(1) of the PS Act, the Directive and the Queensland Government's Employment Security Policy as contained within Appendix 5 of the Department of Education Certified Agreement 2019;
·in an email dated 17 December 2020, Ms O'Loughlin advised the Appellant that her "application for conversion from casual to permanent employment has been deemed ineligible";
·the authority to issue decisions under s 149A of the PS Act is currently delegated to and exercised by Ms Lisa Newbold, Director, Employment Review. Ms O'Loughlin did not have the authority to issue a decision in relation to the Appellant's application for conversion to permanent employment; and
·the Respondent submits that a deemed decision was made as provided for in clause 8.5 of the Directive.
The Respondent submits that the Appellant does not have the right to appeal the decision, in that:
·in her email dated 18 November 2020, the Appellant submitted an application to the Respondent requesting consideration for her casual hours to be converted to a permanent status of employment. This request was pursuant to s 149 of the PS Act;
·section 195(1)(i) of the PS Act provides that "a person can not appeal against any of the following decisions … a decision under s 149 not to convert the employment basis of a fixed term or casual employee…"; and
·the Directive provides at clause 9.2, in accordance with s 195(1)(i) of the PS Act, a casual employee does not have a right of appeal in relation to a decision not to convert their employment in response to an application made under s 149.
The Respondent submits that in the alternative, it is noted that Part B of the appeal notice indicates that the appeal is made against a conversion decision made under s 149B or of s 149C of the PS Act. With respect to consideration of the appeal in accordance with these sections, the Respondent submits that:
·in determining whether an employee has been employed for the requisite two years, pursuant to s 149B(1) of the PS Act, s 149B(7A) must be considered; and
·over the period from 27 November 2018 to 27 November 2020, the Appellant's employment had periods of non-employment totalling 21.6 weeks, clearly in excess of the 12 week limit imposed by s 149B(7A)(b) or the PS Act.
The Respondent attached to their submissions a document detailing the Appellant's casual employment over the previous two years, submitted that there was no requirement to review the Appellant's employment status as at no point during her employment had the Appellant worked continuously for the minimum two years as required by s 149B(1) of the PS Act.
In response to the Appellant's assertions that similar applications for conversion were submitted to the Respondent at essentially the same time, the Respondent submits that decisions regarding the outcomes of individual conversion requests must be considered individually and in accordance with the requirements of the PS Act and the Directive.
The Respondent submits that whilst there is an ongoing need for the Appellant to be employed in her current role for which she has demonstrated merit, permanent employment of the Appellant in her current role or any similar role is not viable.
The Respondent submits that the nature of the Appellant's role requires her to perform activities to support the replacement of absent teachers in schools. The work is undertaken prior to school commencing each day, specifically, only between the hours of 6am to 8am with the occasional requirement to work until 9am. The specific work undertaken by the Appellant is not required to be undertaken during the school vacation periods. As a result, there are approximately 16 weeks each calendar year that the Appellant's casual employment is not required.
The Respondent submits that there exists no other meaningful work that the Appellant could perform during these school vacation periods, or during other times of the day outside of 6am to 9am.
Consideration
The Appellant made a request pursuant to s 149 of the PS Act that her employment be converted from casual to permanent. I accept that the email from Ms O'Loughlin confirming that the application was 'ineligible' was not an authorised decision on the basis that the authority to issue decisions under s 149A is currently delegated to Ms Lisa Newbold. A decision was not made by the Respondent within the requisite 28 days as required by clause 6.4 of the Directive. Consequently, the Respondent is deemed to have made the decision that the Appellant's employment is not to be converted to permanent.
The Appellant cannot appeal a decision made following a request pursuant to s 149 as outlined in s 195(1)(i) of the PS Act:
195 Decisions against which appeals can not be made
(1) A person can not appeal against any of the following decisions—
…
(i)a decision under section 149 not to convert the employment basis of a fixed term temporary employee or casual employee;
…
The Appellant marked the box on the appeal notice indicating that the appeal was also filed pursuant to s 149B of the PS Act. Section 149B(1) outlines the following:
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.
In order to determine whether an employee has been employed for two years or more, s 149B(7A) provides:
(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 of the person's continuous employment is being worked out.
The Appellant's employment history from 27 November 2018 to 27 November 2020 includes 21.6 weeks of non-employment. This period of non-employment exceeds the threshold period of 12 weeks.
On the basis that the Appellant had not been continuously employed for two years or more, s 149B does not apply to her employment arrangement. The Respondent was not required to consider conversion of the Appellant's employment to a permanent role.
I note the Appellant's appeal notice included submissions that three other staff members with similar shifts and leave histories have been converted to permanent part-time, with these decisions setting a 'precedent'. The individual circumstances associated with the other employees are not known to me and do not form part of this appeal. Each decision with respect to conversion applications must be made in accordance with the requirements of the PS Act and the Directive. If the requirements of these statutory instruments are not satisfied, it is fair and reasonable for the decision maker to deny conversion. Similarly, if the criterion for consideration of a review is not satisfied, the Respondent is not required to conduct such a review.
The Appellant also makes reference to an attribute which sets her apart from the other staff members, that being her age. She correctly submits that this is irrelevant to the decision-making process. However, there is no evidence before the Commission indicating that this attribute was taken into consideration by the Respondent in this matter.
On the basis that the Appellant has not been employed continuously for the requisite two years, s 149B of the PS Act does not apply to her employment. Consequently, this appeal fails for want of jurisdiction.
Order
I make the following order:
The appeal is dismissed for want of jurisdiction.
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