Nasavanh v State of Queensland (Department of Education)
[2022] QIRC 65
•4 March 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Nasavanh v State of Queensland (Department of Education) [2022] QIRC 065 |
PARTIES: | Nasavanh, Natasha (Appellant) v State of Queensland (Department of Education (Respondent) |
CASE NO: | PSA/2021/295 |
PROCEEDING: | Public Service Appeal – appeal against a conversion decision |
DELIVERED ON: | 4 March 2022 |
MEMBER: HEARD AT: | Hartigan IC On the papers |
ORDER: | Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal. |
| CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – conversion decision – where appellant requested to have fixed term temporary employment converted to permanent employment under s 149 of the Public Service Act 2008 (Qld) – where respondent rejected appellant's request by deemed decision – where respondent raises jurisdictional objection on the basis that the decision can not be appealed against – where decision is excluded from being appealed against by operation of s 195(1)(i) of the Public Service Act 2008 (Qld) – where Commission declines to hear the appeal |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 562A |
Reasons for Decision
Introduction
Ms Natasha Nasavanh ('Ms Nasavanh') is employed by the State of Queensland (Department of Education) ('the Department'), as a teacher aide (002) at the Jamboree Heights State School ('the school'). Ms Nasavanh is employed by the school as both a part-time general employee on tenure, at 0.36 FTE, 27.5 hours per fortnight and as a part-time general employee on a temporary basis for a fixed term at 0.17 FTE, 12.5 hours per fortnight. It is Ms Nasavanh's employment on a part-time temporary fixed term basis which will be considered in this appeal.
Ms Nasavanh has been continuously employed with the Department at the school since 2015.
On 4 June 2021, Ms Nasavanh requested that the Department conduct a review of her temporary fixed term employment pursuant to s 149 of the Public Service Act 2008 (Qld) ('the PS Act'). Ms Nasavanh did not receive a response to her request by 2 July 2021 and therefore a deemed decision was taken to have been made by the Department on 2 July 2021 to reject Ms Nasavanh's request for conversion of her temporary hours to permanent hours.
On 19 August 2021, Ms Nasavanh filed an appeal notice in the Industrial Registry and relies on the following grounds in support of her appeal:
(a) I am appealing the decision made by the Employment Review not offering to convert my temporary hours to permanent based on a lack of response from my Business Manager within the required timeframe. This was due to Lauren Cawcutt – Business Manager stating an extremely busy end of financial year workload and a period of long service leave for her. She also apologised to me by email for not responding. I believe this decision was not fair and reasonable as now I have been informed I have to wait another 12 months to reapply.
(b) This decision should have been solely based on my previous employment history at the school where I have been working consistent hours for more than 2 years and employed by the school for more than 5 years, My permanence in which I am entitled to should not be affected by something I have no control over.
On 20 August 2021, I issued directions for the parties to file and serve written submissions. In response to Order 1 of those Directions Orders, where Ms Nasavanh was to provide written submissions in support of her appeal, Ms Nasavanh sent correspondence attaching the following:
(a) a word document containing emails between Ms Nasavanh and the Employment Review Team within the Department dated 4 June 2021 to 13 August 2021;[1]
[1] The emails appear to be copied into a table that the Appellant has seemingly created in the Microsoft Word application.
(b) as best I understand, a copy of the 2021, Teacher Aide general allocation of permanent hours and targeted funding;
(c) Department of Education roster variation form dated 17 May 2021; and
(d) Ms Nasavanh's payslips for various periods of work in 2019, 2020 and 2021.
The Department filed its submissions on 3 September 2021 and Ms Nasavanh did not file any submissions in reply.
Jurisdictional objection
Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. The Department contends that the appeal made by Ms Nasavanh is not against such a decision.
The Department, in its submissions, provided the following relevant background to the appeal:
(a) The Appellant is a Teacher Aide (OO2) at Jamboree Heights State School employed as a part-time general employee on tenure at 0.36 FTE (27.5 hours per fortnight) and additionally, as a part-time general employee on a temporary basis for a fixed term at 0.17 FTE (12.5 hours per fortnight).
(b) On 20 July 2016, the Appellant completed 1 year of continuous employment within the meaning of section 149(1) of the Public Service Act 2008 (PS Act).
(c) On 20 July 2017, the Appellant completed 2 years of continuous employment within the meaning of section 149B(4)(a) of the PS Act.
(d) On 4 June 2021 the Appellant discharged her right to apply for a review under section 149 of the PS Act.
(e) On 2 July 2021 (being 28 days after 4 June 2021), a decision (the subject of this appeal) was taken to be made under section 149 of the PS Act.
(f) On 17 August 2021, (being 28 days after 20 July 2021), a decision (not the subject of this appeal) was taken to be made under section 149B of the PS Act.
The Department submits that there is an absence of jurisdiction to hear the appeal on the basis that Ms Nasavanh made the request for conversion pursuant to s 149 of the PS Act, and therefore the deemed decision is not a decision which can be appealed against by operation of s 195(1)(i) of the PS Act.
On 25 February 2022, the Industrial Registry wrote to the parties and invited
Ms Nasavanh to make further written submissions addressing whether she had an arguable case for appeal by 12 noon on Tuesday, 1 March 2022. No further submissions were filed by Ms Nasavanh.
Relevant legislation
Section 149 of the PS Act is set out in the following terms:
149 Fixed terms temporary employees casual employees may ask for review of status after 1 year of continuous employment
(1)This section applies 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 1 year or more.
(2)However, this section does not apply to a non-industrial instrument employee.
(3)The person may ask the department’s chief executive to 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)A person can not make more than 1 request under subsection (3) in a 12-month period.
(4A)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 6 weeks or less in the year occurring immediately before the time when the duration of the person’s continuous employment is being worked out.
(5)In this section—
fixed term employee includes a general employee employed under section 147 on a temporary basis for a fixed term.
Section 149A of the PS Act provides for decisions made following a request for conversion and is in the following terms:
149A Decisions on review of status
(1)The department’s chief executive must decide a request made under section 149 within 28 days after receiving it.
…
(5)If the department’s chief executive does not make the decision within the period required under subsection (1), 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.
Section 195 of the PS Act provides decisions against which appeals can not be made and relevantly states:
195 Decision 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 to not convert the employment basis of a fixed term temporary employee or casual employee;
…
The Fixed Term Temporary Employment Directive 09/20 ('Directive 09/20') commenced on 25 September 2020 and, amongst other things, highlights the provisions in the PS Act which deal with the employment and conversion of fixed term employees. Clause 6 of Directive 09/20 provides for the application by an employee for conversion of fixed term temporary employment to permanent employment after one or more years and is in the following terms:
6. Application by employee for conversion of fixed term temporary employment to permanent employment after one or more years of continuous service - sections 149 and 149A
6.1 Section 149 of the PS Act establishes that a fixed term temporary 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.
6.2 An agency must set out information on its intranet about how to request a review.
6.3 For a review under section 149, section 149(4A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
6.4 Under section 149A(1), the chief executive must decide a request made under section 149 within 28 days after receiving it.
Clause 11 of Directive 09/20 provides for a fixed term temporary employee's appeal rights under the PS Act. Relevantly, cl 11.2 states:
11.2 In accordance with section 195(1)(i) of the PS Act, a fixed term temporary employee does not have a right of appeal in relation to a decision not to convert in response to an application made under section 149.
The Department, in its submissions, refers to cl 9.2 of the Department of Education Teacher Aides' Certified Agreement 2018 ('the Agreement'). Clause 9.2 of the Agreement is in the following terms:
(a) Temporary and permanent Teacher Aides are entitled to have all ‘Temporary Hours’ considered for temporary to permanent conversion under the Temporary Employment Directive as amended from time to time.
(b) These hours are still known as Other Hours and are subject to fluctuation.
(c) Temporary Hours are defined as hours provided to schools, other than permanent hours (i.e. at present Day 8 enrolment-based hours and SEP hours), which may be allocated to either temporary or permanent Teacher Aides.
(d) The Parties agree that Temporary Teacher Aides can be engaged to backfill a Teacher Aide who is on a form of approved leave. Permanent Teacher Aides who have been re-allocated Temporary Hours are entitled to have their Temporary Hours reviewed and considered for conversion to permanent status at level:
(i)once the Teacher Aide has completed 2 consecutive years’ service in the same role at the school; and
(ii)in accordance with the other provisions of the Temporary Employment Directive as amended from time to time.
'Other hours' are defined in cl 1.12 of the Agreement as follows:
means hours that are not allocated as part of the formal allocation process and may form part of the temporary to permanent conversion process. These hours are temporary in nature and are subject to fluctuations up and down dependent on funding.
The Department concedes that an email sent to Ms Nasavanh on 4 August 2021 contained an ambiguity in its reference to Directive 09/20. However, given that the decision is a deemed decision, I do not consider the email sent after the date of the deemed decision to be relevant.
Consideration
Prior to determining whether a decision is fair and reasonable, I, firstly, must be satisfied that I have jurisdiction to determine the appeal.
On 4 June 2021, Ms Nasavanh made a request, pursuant to s 149 of the PS Act, that her temporary hours be converted to permanent hours. Ms Nasavanh did not receive a response from the chief executive by 2 July 2021, and the failure to respond is taken to be a deemed decision to reject the request in accordance with s 149A(5) of the PS Act.
Section 195(1)(i) of the PS Act, which is restated in cl 11.2 of Directive 09/20, excludes Ms Nasavanh from making an appeal against a decision made under s 149 of the PS Act.
Ms Nasavanh was invited to provide further submissions addressing the Department's jurisdictional objection, however, no further submissions were filed by Ms Nasavanh.
Pursuant to s 195 of the PS Act, the decision, which is the subject of this appeal, is a decision against which an appeal can not be made.
Accordingly, the Commission does not have jurisdiction to hear the appeal and pursuant to s 562A(3)(b)(ii) of the IR Act, the Commission declines to hear the appeal on the basis that it is misconceived and lacks substance.
Order
Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the Commission declines to hear the appeal.
I certify that the preceding [24] paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Hartigan
C.M. Hartigan, Industrial Commissioner: ………………………………
Dated: 8 March 2022
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