Neilsen v State of Queensland (Queensland Health)

The matter of Neilsen v State of Queensland (Queensland Health) involved the Appellant, who was employed under a series of fixed-term temporary contracts, seeking conversion to permanent employment. The Respondent, Queensland Health, denied the Appellant's application for conversion. The dispute was brought before the court to review the decision made by the Respondent under section 149B of the Public Service Act 2008. The primary legal issue the court needed to address was whether the decision maker had properly considered the Appellant's merit and the requirements of the relevant industrial instruments when determining the Appellant's eligibility for conversion to permanent employment.

The court examined whether the decision maker had properly considered the Appellant's merit over time and whether the decision maker had appropriately reviewed the relevant industrial instruments, specifically clause 11.5 of EB10, which pertains to closed merit selection for filling vacancies. The decision maker had considered the Appellant's merit and determined that she satisfied the merit requirements for the role. Regarding the industrial instruments, the court found that the requirements of clause 11.5 were distinct and separate from those of section 149A of the PS Act and the requirements of the Directive, and one did not prevail over the other. The court noted that the issue of compliance with industrial instruments was not determinative in the decision to deny conversion to permanency.

The court also considered the Respondent's argument that the Appellant's employment was justified on genuine operational requirements, which included filling temporary vacancies due to absences such as sick leave and training. The Respondent argued that converting the Appellant to permanent employment would disrupt the workforce strategy and result in budget overspends. However, the court found that the Appellant's engagement was based on sound operational and workforce planning reasoning, which supported employment on a casual and/or fixed term temporary basis as required.

Ultimately, the court set aside the Respondent's decision and substituted it with a decision that the Appellant's employment is to be converted to permanent. This decision was made under section 562C(1)(c) of the Industrial Relations Act 2016 (Qld).