Holt v State of Queensland (Queensland Health)
[2022] QIRC 60
•2 March 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Holt v State of Queensland (Queensland Health) [2022] QIRC 060 Holt, Matthew v State of Queensland (Queensland Health) |
CASE NO: | PSA/2021/439 |
| PROCEEDING: | Public Service Appeal – Appeal against a conversion decision |
| DELIVERED ON: | 2 March 2022 |
MEMBER: HEARD AT: | Pidgeon IC On the papers |
| OUTCOME: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appeal against is confirmed. |
CATCHWORDS: LEGISLATION: | PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - where the appellant requested a review for conversion to permanent employment - whether there is a continuing need for the appellant to be employed in the role or a role substantially the same - whether there are genuine operational requirements preventing conversion - where employment on tenure is not viable or appropriate Public Service Act 2008, s 149B Industrial Relations Act 2016, s 562C Directive 09/20: Fixed term temporary employment |
Reasons for Decision
Appeal Details
Mr Holt (the Appellant) is currently employed by the State of Queensland (Queensland Health) as a Technology Officer Infrastructure (AO4.4) in the Information Services and Information Communication Technology Operations Infrastructure (IS ICT Ops Infrastructure) at the Sunshine Coast Hospital and Health Service (SCHHS). Mr Holt has been employed in this role since 2 December 2019.
In a decision dated 24 December 2021 (but provided to Mr Holt on 23 December 2021 prior to commencing leave), Colin Anderson, Executive Director People and Culture advised Mr Holt's employment will remain on a fixed term temporary basis due to the following reasons:
The decision not to permanently appoint you is based on continuing staffing needs at this time. Specifically the reason for this decision is that you are fixed term temporary employee for the purposes of backfilling an existing employee who is absent from their substantive role due to secondment and has an expected date of return.
During your review period, the SCHHS has actively reviewed any available ongoing roles to determine if they are considered substantially the same. This involved consideration of all approved position change requests and no available ongoing roles with similarities to the Technology Officer Infrastructure (AO4) were identified for an assessment to be undertaken to determine whether they are substantially the same.
Mr Holt filed his appeal with the Industrial Registry the day after he received the decision. I am satisfied that he is a person who may appeal and that his appeal was lodged within the 21 day appeal period.
Legislative Framework
Section 149B of the Public Service Act 2008 (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
…
(c)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.
148 Employment of fixed term temporary employees
(1) A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).
(2) Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes—
(a)to fill a temporary vacancy arising because a person is absent for a known period;
Examples of absences for a known period—
approved leave (including parental leave), a secondment
(b)to perform work for a particular project or purpose that has a known end date;
Examples—
employment for a set period as part of a training program or placement program
(c)to fill a position for which funding is unlikely or unknown;
Examples—
employment relating to performing work for which funding is subject to change or is not expected to be renewed
(d)to fill a short-term vacancy before a person is appointed on tenure;
(e)to perform work necessary to meet an unexpected short-term increase in workload.
Example—
an unexpected increase in workload for disaster management and recovery
(3) Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.
Example—
an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments
(4) The employment may be full-time or part-time.
(5) A person employed under this section does not, only because of the employment, become a public service officer.
(6) The commission chief executive may make a directive about employing fixed term temporary employees under this section.
Directive 09/20: Fixed term temporary employment (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(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
(a) confirm the decision appealed against; 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.
Mr Holt's grounds of appeal
Mr Holt believes that the position he is filling is required and ongoing. He believes that pursuant to s 148(3) of the PS Act his employment on tenure is viable or appropriate due to his secondment being on a frequent or regular basis.
Mr Holt says that he 'is now on at least my third contract renewal (to 30 June 2022) backfilling this position due to renewed secondments of the substantive employee – this expected to continue past June 30 2022'.[1]
[1] Appeal notice filed in the Industrial Registry on 23 December 2021.
Mr Holt submits that a temporary Advanced Technology Officer Infrastructure position was recently advertised and filled. He says that this 'points to an increased continuing need in the infrastructure area'.
Mr Holt says that he understands that in a different HHS, at two years, a fixed term temporary employee will be converted.
Respondent submissions
Merit
The SCHHS does not dispute Mr Holt's merit for the role of Technology Officer and this is reflected in the decision letter dated 24 December 2021.
Continuing Need
The SCHHS says that there is a continuing need for Mr Holt to be employed in the role but that this is limited to the period of the fixed term contract to backfill the 'seconded substantive postholder'.
At the time of the review, there was no continuing need for Mr Holt to be employed in a role which is substantially the same.
Genuine operational requirements of the department
The delegate determined that it was not viable or appropriate to convert Mr Holt's employment to permanent, having given regard to the genuine operational requirements of the department.
Mr Holt is employed on a fixed term temporary basis for the purpose of backfilling the substantive postholder. At the time the review was undertaken, Mr Holt's fixed term contract had an end date of 30 June 2022, which is in line with the expected return of the substantive postholder.
The SCHHS says that during the period of the review, it actively reviewed any available ongoing roles to determine if they are considered substantially the same. No available ongoing roles with similarities to the role of Technology Officer Infrastructure were identified for an assessment to be undertaken to determine if they were substantially the same.
There is no obligation under the Directive for the SCHHS to create an additional substantive position where there is no continuing need or where the employment on tenure is not viable or appropriate.
Additional information and Response to Mr Holt's Reasons for Appeal
The temporary Advanced Technology Officer role Mr Holt refers to is an AO5 position which is not deemed to be substantially the same as the role of Technology Officer Infrastructure.
The SCHHS does not suggest that there is no ongoing need in the Infrastructure team but says that at this time, there is no need for an additional AO4 role.
The SCHHS cannot comment on the protocol followed by another Health Service but maintains that it has met the requirements of the Directive when undertaking Mr Holt's review.
Following the review, Mr Holt was matched with a permanent position
Mr Holt's review was to be undertaken by 24 December 2021. Mr Holt requested that he be provided with the outcome of the review on 23 December 2021 as he was commencing a period of leave. On 24 December 2021 (after Mr Holt had been provided with his outcome letter), Mr Holt was matched against the permanent position of Technology Officer (AO4) in the Information Services Information and Communication Technology Operations Delivery Team.
As the role descriptions for the abovementioned available permanent role, and Mr Holt's temporary role were very similar, it was deemed that the permanent role was substantially the same.
Mr Holt was notified verbally, on 24 December 2021 that he had subsequently been matched against the role and was offered the permanent role.
On 10 January 2022, Mr Holt confirmed that he had declined the offer of permanent employment in the role.
The SCHHS therefore submits that the requirements of the Directive were met, with Mr Holt being offered a permanent role which is substantially the same as the fixed term temporary position he was occupying at the time of the review.
Mr Holt's submissions in reply
Mr Holt maintains that as he is on his third contract renewal backfilling the position due to renewed secondments of the substantive employee and that this is expected to continue past 30 June 2022, his employment on tenure is viable and appropriate under the Directive.
With regard to the offer of permanent employment described by SCHHS above at [21]-[25], Mr Holt says he declined the offer as it was not suitable or appropriate.
By way of explanation for his assessment that the role was not suitable or appropriate, Mr Holt says that in October 2021, he initiated a review of fixed-term temporary status under the Directive. On 11 November 2021, he received correspondence advising he was not being made permanent.[2]
[2] Attached to submissions of the Appellant filed with the Industrial Registry 1 February 2022.
Mr Holt says that at the time there were two permanent positions reviewed against his Infrastructure role: Technology Administration Officer (AO3) and Advanced Technology Officer (AO5). Whilst these positions had similarities to the Infrastructure Technology Officer position (AO4) he was undertaking, SCHHS deemed that the technology domains of Infrastructure and Service Delivery are significantly different and that Infrastructure needs a broader range of specific technical skills.
Mr Holt says that based on the SCHHS's own earlier assessment Service Delivery was a 'substantially different domain' to Infrastructure Delivery, he decided that the offer was not suitable or appropriate and declined it.
Consideration
I have considered the submissions made regarding the verbal offer of employment made to Mr Holt on 24 December 2021 and his subsequent refusal of that offer. I have determined that those submissions are not relevant to the task before me, which is to consider whether the decision dated 24 December 2021, communicated to Mr Holt on 23 December 2021 was fair and reasonable.
The submissions regarding the characterisation of roles in Service Delivery and Infrastructure as 'substantially different' in November 2021 but being apparently considered differently in the context of the offer made on 24 December 2021 may be relevant had the decision of 24 December 2021 identified roles 'substantially the same' and discounted those as not applicable to Mr Holt. However, that is not the case. The decision letter indicates that a review of available roles was undertaken and that no role the same or substantially the same was identified. The emails provided to me indicate that the permanent role offered to Mr Holt following the decision under review was identified on (or at least brought to the attention of the relevant employees) 24 December 2021 and communicated to these employees via email at 4.46pm.
I am therefore considering the decision as written dated 24 December 2021 and provided on
The decision states that the delegate has determined that there was currently a continuing need to engage Mr Holt on a fixed term temporary basis until the expected return of the substantive employee. Mr Holt does not appear to dispute that the purpose of his fixed term engagement is to backfill that employee. While Mr Holt says that he expects that he will be required to continue backfilling the employee beyond 30 June 2022, he provides no evidence of this.
In the absence of evidence to the contrary, I accept SCHHS's submissions that at the time of the review, there was a substantive postholder of the role Mr Holt was backfilling and that Mr Holt's contract end date was aligned with the expected return of that employee.
What I understand from the submissions is that when the substantive position holder returns from their secondment, there will no longer be a need for Mr Holt to be employed in that position.
I understand the frustration for all involved when secondments continue to be extended or have no clear end date. However, s 148(2)(a) of the PS Act states 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. One of the examples provided under the subsection is 'secondment'. In this case, at the time of the decision, an end date existed and I find that it was open to the decision maker to determine that there was no continuing need for Mr Holt to be employed in the role.
I note Mr Holt's submission that s 148(3) of the PS Act enables employment on tenure where the person is required to be employed on a frequent or regular basis. It appears that Mr Holt has been engaged on a fixed-term temporary basis to replace the same employee who is on secondment and the expected return date was approximately six months from the decision. There is no material before me, aside from Mr Holt saying that he expected there would be a need for him beyond 30 June 2022, to indicate that at the time of the review decision, there was any evidence that the seconded employee would not return to the role on the expected date.
I find that it was reasonable for the delegate to determine at the time of the review, that there was no continuing need for Mr Holt to be employed in the role beyond 30 June 2022.
The decision letter makes it clear that SCHHS has fulfilled the expectation under the Directive that it will seek to identify ongoing roles considered substantially the same. I find that the explanation provided to Mr Holt in the letter regarding the steps undertaken by SCHHS in seeking such roles provided enough detail for him to understand the process.
While Mr Holt points to another temporary role created in his team during the time of the review, he has not pointed to any ongoing available roles substantially the same that should have been considered by the delegate.
I accept that the creation of the AO5 temporary role in the team Mr Holt works in demonstrates an indication that there is a continuing need for such work to be done, however, I accept the SCHHS submission that there is not a continuing need for the creation of an additional AO4 permanent role.
Finally, I note the submissions regarding the approach taken by another Health Service with regard to temporary to permanent conversion reviews. This appeal requires me to consider whether the review was undertaken in accordance with the requirements of the Directive. To that extent, the approach taken in a different Health Service is not relevant. I am satisfied that the delegate has complied with the requirements of the Directive.
For the foregoing reasons, I find that the decision dated 24 December 2021 provided to Mr Holt on 23 December 2021 was fair and reasonable. The decision is confirmed and the appeal is dismissed.
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