Owen v State of Queensland (Department of State Development, Tourism and Innovation)
[2021] QIRC 73
•8 March 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Owen v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 073 Owen, Annette v State of Queensland (Department of State Development, Tourism and Innovation) | |
CASE NO: | PSA/2020/414 | |
| PROCEEDING: | Public Service Appeal - Conversion Decision | |
| DELIVERED ON: | 8 March 2021 | |
MEMBER: HEARD AT: | Pidgeon IC On the papers | |
OUTCOME: |
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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 25, 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 Owen is employed by the State of Queensland (Department of State Development, Tourism and Innovation) ("the Department").
In a decision dated 16 November 2020 regarding the outcome of a review of Ms Owen's fixed term temporary employment status, Deputy Director-General Michael McKee ("the decision maker") told Ms Owen that he had determined that her employment would remain as fixed term temporary at this time. He gave the following reasons for the decision:
Considerations when making the decision
I have considered the requirements of the Public Service Act 2008 (PS Act), the Fixed Term Employment Directive 09/20 and your employment history, including any previous conversion review decisions where applicable.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 with my reasons being that:
a) I have considered the conditions for conversion in the PS Act and determined that you have demonstrated merit for you to fill the role in a fixed term capacity. However, there are genuine operational requirements of the agency that mean it is not viable or appropriate to convert you permanently at this time.
b) There is no continuing need for you to perform your current role because the substantive incumbent is returning to the role on a full-time basis.
c) Further, there is no continuing need for you to perform a role that is substantially the same. All potential roles have been considered and there are no vacant positions available that are substantially the same role.
Ms Owen submits the following in her grounds of appeal:
· The decision did not address whether there is a continuing need for someone to be employed in the role.
· The decision does not say or is not clear as to what are the genuine operational requirements of the agency that mean it is not viable or appropriate to convert me.
· The decision proceeds on the basis that there must be a vacant position in a role that is substantially the same.
· The decision does not provide what was done to identify such roles, what roles were considered, or any evidence, findings or analysis as to whether there was a continuing need for me to be employed in a role which is substantially the same.
· There are at least 18 vacant roles in Investment Facilitation and Partnerships according to the organisational chart and the resourcing spreadsheet for my area shows vacant roles at an AO6 and AO8. Roles can be substantially the same despite being at different classification levels.
· The decision therefore falls into error in the application of the criteria and fails to provide findings of facts, evidence and conclusions relating to substantial issues upon which the decision turned, or which are in dispute.
· These above errors make the decision arrived at by the decision maker unfair and unreasonable.
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
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.
(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. …
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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
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(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.
Submissions of the Appellant
Ms Owen commenced her temporary employment as a fixed term temporary employee with the Department on 23 October 2017 and has not had a break in her temporary employment since that time.
Ms Owen's circumstances are exactly what is contemplated in s 148(3) of the PS Act. Her employment history demonstrates that she has been extended in her various temporary roles a number of times including in her current Principal Project Officer role where she has recently been extended until 30 June 2021.
Ms Owen's frequent and regular extensions demonstrate that there will be a continuing need for her to fill temporary vacancies and employment on tenure would be appropriate.
The decision maker did not adequately consider whether there is a continuing need for her to perform a role which is substantially the same. While the decision letter states: "All potential roles have been considered and there are no vacant positions available that are substantially the same role", it fails to provide what was done to identify such roles, what roles were considered, or any evidence, findings or analysis as to whether there was a continuing need for her to be employed in a role which is substantially the same.
The decision maker did not provide the material findings of fact and the evidence relied upon in coming to the decision. This is required by cl 8.4 of Directive 9/20 and s 27B of the Acts Interpretation Act 1954.
Ms Owen says that the decision is unfair and unreasonable as it did not articulate the findings of material questions of fact and references to the evidence relied on.
The decision does not state what the 'genuine operational requirements' it refers to are. Given the public service principles in s 25 of the PS Act and the purpose of the Directive 9/20 include that "employment on tenure is the default basis of employment in the public service" and that she has met the eligibility criteria for conversion under the directive, Ms Owen submits that it is unreasonable to decline conversion without articulating the genuine operational requirements which are purported to displace the default position.
Ms Owen attaches an organisational chart she says shows that there are at least 18 vacant roles across Investment Facilitation and Partnerships.[1] She also attaches a resourcing spreadsheet for her area which she says shows vacant roles at the A06 and A08 classification. She says that this refutes the decision letter statement that there are "no vacant positions available that are substantially the same role".
[1] Submissions of Ms Owen filed 18 December 2020.
Ms Owen says that unlike the superseded Directive 8/17, Directive 9/20 does not define what the 'same role' or a role that is substantially the same is to mean. Ms Owen suggests that this indicates an intentional widening of the scope for which roles can be considered and accordingly that some of the available roles at the A06 and A08 classification could also be options for her to be converted into.
The decision maker has failed to consider these relevant considerations and the decision should be regarded as not being fair and reasonable.
Ms Owen therefore asks that the decision denying her request for conversion be set aside and returned to the decision maker to conduct a proper review, or that a substituted decision be made to permanently appoint her to the AO7 Principal Project Officer role.
Submissions of the Department
The Department says that at the time of conducting the review, Ms Owen was employed with the Department of State Development, Tourism and Innovation. Subsequently, the Investment Facilitation and Partnerships Unit where Ms Owen is currently employed has transitioned to Queensland Treasury following Machinery of Government changes.
With reference to the decision letter of 16 November, the Department says that while Ms Owen 'demonstrated the merit principle', there were genuine operational requirements that meant it was not viable or appropriate to convert Ms Owen from temporary to permanent employment at that time. There was no continuing need for Ms Owen to perform the current role because she was backfilling the substantive incumbent who was expected to return to the Investment Transactions Team from higher duties on 31 December 2020.
Ms Owen commenced with the Department on 23 October 2017 and has been temporarily employed in a number of differing fixed term temporary roles to backfill incumbents who have been absent on higher duties arrangements. There has been no ongoing need to permanently appoint Ms Owen to any of those roles as the substantive position owners have either returned to their role or are currently scheduled to return to the role Ms Owen is temporarily appointed to.
At the time of the review, Ms Owen was engaged from 15 February 2020 until 31 December 2020. Ms Owen's engagement in the same position number has been extended until 30 June 2021 to backfill the incumbent who is on internal secondment.
The Department says that the decision was consistent with the requirements of the PS Act and the Directive and was entirely fair and reasonable in the circumstances.
With regard to Ms Owen's appeal ground that the decision maker did not communicate what was done to identify roles substantially the same and any evidence, findings or analysis as to whether there was a continuing need for her to be employed in a role which is substantially the same, the Department says that suitable alternative roles were considered. No suitable alternative role was identified that was the same or substantially the same, for consideration.
With regard to Ms Owen's submissions regarding the 18 vacant roles she says are available across Investment Facilitation and Partnerships, the Department does not agree with her submissions and says that these roles are not true vacancies. The Department says that the majority of these roles have permanent occupants who are either on secondment, leave arrangements or performing higher duties.
With regard to Ms Owen's submission that roles can be substantially the same despite being at different classification levels, the Department says that this is not an accurate or correct statement. The job evaluation process assesses each role's work value which determines its classification level. Accountabilities vary and differ based on the work value (classification), purpose, duties and work deliverables. Roles across classification levels are not substantially the same.
The Department says that in making the decision, the delegate:
·assessed the availability of any ongoing role in the Department which was the same or substantially the same;
·considered that Ms Owen's engagement involves backfilling the permanent occupant of the role;
·reviewed broader workforce planning requirements and budget considerations;
·took into account dynamic workforce planning arrangements, resourcing, funding, work priorities and operational requirements;
·considered workforce measures including budget, full time equivalent staffing level, sources and limits of project funding; and
·the requirement to manage human resources to meet fluctuating and changing strategic objectives and service delivery requirements.
The Department says that Ms Owen knows that she has been engaged to backfill the substantive occupant who is performing higher duties. The Department considers that the circumstances of Ms Owen's employment reflect those in s 148(2)(a) and (b) of the PS Act.
The Department says that the Delegate's decision dated 18 November 2020 was consistent with the requirements under the Directive and was lawful under the PS Act, and fair and reasonable.
Ms Owen – Submissions in Reply
Ms Owen points to s 148(3) of the PS Act and says that as she has been regularly backfilling against a number of different temporary vacancies arising because incumbents have been absent for a known period, permanent employment would be appropriate.
Ms Owen remains concerned that the Department has only considered roles that were substantively vacant, rather than the mandatory consideration of whether there was a continuing need for someone to be employed in her role or a role that is substantially the same.
With regard to the above, Ms Owen says that conversion of a fixed term temporary or causal employee to permanent employment is not dependent on the existence of a substantive vacancy.
In response to the Department's submissions about the funded vacancies within the organisation, Ms Owen says that the fact that the Department has chosen to utilise the FTE of those vacant roles for other purposes does not displace the requirement to consider her for conversion into them if the need for the role is ongoing.
Ms Owen says that contrary to the Department's submission that the decision complied with the requirements of s 149B(6)(c) of the PS Act, the letter failed to comply with the requirements of the Act in that it did not specify how many times her employment as a fixed term temporary employee has been extended.
Consideration of submissions
Decision makers are required to comply with the requirements of s 149B(6) in preparing the notice of decision regarding conversion of employment. Directive 9/20 sets out the requirements for a notice of a decision.
Ms Owen is correct in identifying that the decision letter did not comply with the requirements set out in s 149B(6)(b) and (c) of the PS Act.
The decision letter does not state the total period for which Ms Owen has been continuously employed in the Department and how many times Ms Owen's employment as a fixed term temporary employee has been extended.
The decision refers to the return of the substantive incumbent to the role and says that "all potential roles have been considered and there are no vacant positions available that are substantially the same role".
The decision also says that there are "genuine operational requirements of the agency that mean it is not viable or appropriate to convert" at this time.
I do not find that the decision contains enough detail regarding "evidence or other material on which those findings were based".[2]
[2] Acts Interpretation Act 1954 s 27B.
The submissions of the Department set out with some detail the circumstances which it says gives rise to the 'genuine operational requirements' indicating that it is not viable or appropriate to convert Ms Owen from temporary to permanent. While I do not expect that a letter providing notice of decision should include the same level of detail as submissions in a public service appeal process, I do find that if an appellant is to understand the nature of the genuine operational requirements precluding their conversion, some level of particulars should be provided in the letter.
Likewise, in circumstances where the information available to Ms Owen and provided with her submissions in this appeal indicates that there are currently a number of vacant funded positions available in the Department, I find that it would be reasonable for the decision maker to provide some further detail about the steps undertaken to consider potential roles which are substantially the same as the one Ms Owen is currently 'backfilling'. This may include information about vacant roles which were identified and the reasons why the Department has decided those roles are not available.
While the letter omitted to state how long Ms Owen has been employed by the Department or how many times her temporary employment has been extended, the submissions of Ms Owen dated 18 December 2020 and the Department dated 15 January 2021 state that she commenced with the Department on 23 October 2017. It is not disputed that Ms Owen has not had a break in her temporary employment since that time.
The decision letter offers no analysis as to whether there is a continuing need for Ms Owen to be employed in a role which is substantially the same. The letter simply informs Ms Owen that the incumbent is returning and that no other vacant roles are available. Given that the existence of a vacant role is not required to enable conversion, it would be fair and reasonable for the decision maker to inform Ms Owen of what impact the return of the incumbent will have on the need for her to continue in the role or one which is substantially the same.
Ms Owen has been employed by the department in a temporary capacity for over three years. The opportunity to have one's basis of employment reviewed is no doubt highly anticipated, particularly in circumstances where the legislation establishes employment on tenure as the basis of employment in the Queensland public service, excluding non-industrial instrument employees.
One should not have to file a public service appeal in order to seek adequately detailed reasons for a decision not to convert their employment.
I am ordering that the decision of 18 November 2020 be set aside and that a fresh review be undertaken within 14 days of receipt of this decision.
A fresh review may not result in a changed outcome for Ms Owen, but it will ensure she is furnished with a notice of decision which complies with the requirements of the Act and the Directive.
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