Schroeder v State of Queensland (Department of Communities, Disability Services and Seniors)
[2021] QIRC 81
•5 March 2021
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Schroeder v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 081 |
PARTIES: | Schroeder, Timothy v State of Queensland (Department of Communities, Disability Services and Seniors) |
CASE NO: | PSA/2020/257 |
PROCEEDING: | Public Service Appeal – Temporary Employment |
DELIVERED EX TEMPORE ON: | 5 March 2021 |
| HEARING DATE: | 5 March 2021 |
MEMBER: HEARD AT: | Industrial Commissioner Dwyer Brisbane |
ORDER: | 1. The decision appealed against is dismissed for want of jurisdiction. |
CATCHWORDS: LEGISLATION: | INDUSTRIAL LAW – Public Service Appeal – fixed term temporary employment review – conversion granted – dispute as to adequacy of hours offered – jurisdiction to deal with conversion appeal – no jurisdiction – consideration of merits – decision fair and reasonable Directive 01/17 Conversion of casual employees to permanent employment cl 9.3 Directive 08/20 Casual employment cl 7.4 Public Service Act 2008 (Qld) s 149A, 194(1)(ea), 194(1)(eb), 297 |
| APPEARANCES: | Mr A Santelises for the appellant. Ms C Laird instructed by Ms J Pullum for the Respondent. |
Reasons for Decision
The following reasons are taken from the transcript of the decision delivered ex tempore on 5 March 2021. The reasons have been subjected to minor editing.
Background
Mr Timothy Schroeder is a Residential Care Officer with the Department of Communities, Disability Services and Seniors ('the Department'). He is employed at a OO3 to OO4 classification level. At the time of his application for conversion, he had been employed on either a temporary or a casual basis for a period in excess of two years.
On 27 August 2020, Mr Schroeder applied for conversion of his casual employment to permanent pursuant to s 149A of the pre-amendment Public Service Act 2008 (Qld) ('PS Act'). It is worthy of note at this point that Mr Schroeder’s application occurred at a period immediately preceding significant amendments to the PS Act and to the applicable directives in relation to the conversion of casual employment.
It is uncontroversial that Mr Schroeder made his application for conversion pursuant to s 149 of the pre-amendment PS Act.
On 22 September 2020, a decision was issued by the Department under the hand of Ms Sandy Cooper, granting the conversion to permanent employment (‘the decision’).
The decision set out that consideration had been given by Ms Cooper to Mr Schroeder’s application in accordance with Directive 01/17 Conversion of casual employees to permanent employment ('Directive 01/17'). I note that this directive has subsequently been superseded by Directive 08/20 Casual employment ('Directive 08/20') on 25 September 2020.
The decision offers Mr Schroeder a conversion to permanent employment and the role is described as "permanent part time shift worker". Significantly, the offer of conversion offers engagement at 72 hours per fortnight. Mr Schroeder appeals this decision.
Submissions of the parties
The Commission issued directions on 13 October 2020 for the provision of written submissions and the parties have provided those written submissions in addition to further oral submissions at the hearing of this matter on 5 March 2020.
Submissions of Mr Schroeder
Turning to the grounds of the appeal, in the Appeal Notice filed on 12 October 2020, Mr Schroeder attached written submissions. In his submissions Mr Schroeder contends that, in granting conversion of his employment, the Department did not comply with clause 7.4 of Directive 08/20. I note again that Directive 08/20 did not commence operation until 25 September 2020, that is to say, a period of four days after the decision was issued.
Mr Schroeder contends that the Department ought to have regard to the pay records and the fact that he works, on his submission, 80 hours and overtime (presumably each fortnight - although it’s not specifically clear in the submission that that is the assertion).
In support of his appeal, Mr Schroeder provided a group of payslips for the periods ending 28 August 2020, 11 September 2020 and 25 September 2020. I note that the last of those two apply to a period that postdates the application for conversion, but to the extent that they are relevant, those three payslips indicate working a range of hours of 76 hours to 80 hours per fortnight.
Mr Schroeder further contends in his reply submissions filed 8 December 2020, that he was encouraged to apply in August of 2020 and that this "shows" that the Department may have undermined his position. No further submission is made in respect of this assertion with respect to particularising how it "shows" it and how it has "undermined" his position.
Further, his reply submissions urge me to have regard to a hypothetical claim that should be taken into account in my overall consideration of the matter.
Finally, in his reply submissions, Mr Schroeder submits that even if Directive 01/17 is the correct directive to apply, he says that the Department should offer him 76 hours, to be consistent with his payslips applicable at the time.
It is plain that Mr Schroeder seeks a substitution of an amount of 76 hours for the 72 hours in the offer of conversion. That much was clear also from the oral submissions made at hearing by his representative.
Submissions of the Department
The Department has provided a response in the form of written submissions on 10 November 2020 and also in oral submissions at hearing. In the written submissions, the Department essentially says that, having regard to the timeline of Mr Schroeder’s application for conversion, Directive 01/17 was the correct directive to apply.
Further, on the question of the hours offered to Mr Schroeder, the Department says that they had regard to clause 9.3 of Directive 01/17. The Department says that the 72 hours offered arises from an "averaging hours process" applied to all casual employees. The Department says that due to the irregular hours worked by casuals, the majority of casual conversions are offered permanent part-time employment.
It is notable in this matter that no evidence of any method of the "averaging hours process" or calculations relevant to Mr Schroeder’s hours of work have been offered by either party. There were references in oral submissions to disputes around the content of spreadsheets and so forth but, until the hearing, no party had sought to bring those matters to my attention. A fuller appreciation of the fairness or otherwise of the decision might have been achieved if such evidence had been before me.
Parties' submissions at hearing
In terms of the oral submissions at the hearing before me there were further significant submissions made by the Department and in reply by Mr Schroeder. In oral submissions in the hearing, the Department contends that the appeal made by Mr Schroeder is jurisdictionally incompetent because the proceedings are being dealt with under s 194 of the pre-amendment PS Act and that this is not an appeal against a conversion decision i.e. a refusal to convert.
Mr Schroeder responded to this further submission by offering a submission that if the Departments jurisdictional challenge were correct, then the appeal could also be considered under s 194(1)(eb) of the PS Act i.e., a fair treatment appeal.
The effect of this submission, in my view, is that Mr Schroeder seeks to amend or expand the scope of the appeal that he filed on 12 October 2020 from the bar table, though I note that no leave was specifically sought to do that.
Jurisdiction
With respect to the question of jurisdiction, the timeline of events relevant to this appeal for conversion places this matter squarely within the operation of the (now superseded) Directive 01/17, and the pre-amendment PS Act.
The events relevant to Mr Schroeder’s appeal perfectly straddle the pre-amendment and the post-amendment PS Act. However, it is of note that the Directive 01/17 was in force at the time he made his application and remained in force at the time that the decision was issued on 22 September 2020. For that reason, I am satisfied that the now superseded directive was the appropriate directive under which to consider the application by Mr Schroeder.
Further, with respect to the applicable legislation, the transitional provisions of the current PS Act contain provisions dealing with the conduct of appeals in circumstances such as those affecting Mr Schroeder. I am satisfied, by reference to s 297 of the post amendment PS Act, that Mr Schroeder’s appeal is considered in the context of chapter 7 of the pre-amendment PS Act.
I note that Mr Schroeder’s Appeal Notice nominates (at Part B) that he is appealing a conversion decision. Section 194 of the pre-amendment PS Act establishes jurisdiction for this commission to deal with certain types of matters that are listed therein. In particular, s 194(1)(ea) of the pre-amendment PS Act is the only category of appeal listed in that section that bears any resemblance to the appeal identified in the Appeal Notice.
Section 194(1)(ea) of the pre-amendment PS Act relevantly provides jurisdiction for this commission to deal with:
a decision under section 149A of the PS Act, that the employment of a casual employee in a Department is to continue as a casual employee
(underlining added)
Clearly, this does not apply in circumstances where Mr Schroeder has in fact been successful in his application for conversion and the effect of the decision is that he is not to continue as a casual employee.
While this distinction might be regarded as a mere technical failing in the pleading of the Appeal Notice, in my view, it is a critical failing. I am satisfied that the facts of this case do not meet the requirements to give jurisdiction for me to hear this appeal under s 194(1)(ea) of the PS Act or at all.
Further, I am not prepared to consider the appeal pursuant to section 194(1)(eb) of the pre-amendment PS Act foreshadowed or referred to by Mr Schroeder in submissions this morning, because this alternative ground was not raised until today and, only then, in response to the jurisdictional issues raised by the Department. Further, and probably more significantly, I’m not satisfied that the decision was unfair or unreasonable in any event. I set out my reasons for this below.
Consideration
I consider it prudent for completeness to consider the merits of the matter in relation to the appeal. If I am incorrect in my conclusions on the jurisdictional issue, I further or alternatively conclude that I am not satisfied the decision was inconsistent with the obligation of the Department set out in clause 9.3 of Directive 01/17.
An offer of 72 hours per fortnight was made in circumstances where Mr Schroeder says that he can show that he works 77 to 80 hours per fortnight. If I assume, for argument’s sake, that Mr Schroeder is correct in those calculations, the question still remains (having regard to clause 9.3 of Directive 01/17) whether or not 72 hours reflects "the regular and systematic casual employment".[1]
[1] Directive 01/17 Conversion of casual employees to permanent employment cl 9.3(b).
The wording of clause 9.3(b) is relevant in that regard, in that it provides that if the Department has decided to convert a casual employee, the days and hours of work in the offer to convert to permanent employment "should reflect the regular and systematic casual employment, unless otherwise agreed".[2]
[2] Ibid.
In my view, the term "reflect" is not synonymous with the term "matches" or "equal to". I appreciate that the provisions of clause 7 of the current Directive 08/20 are more consistent with such an interpretation. But in this situation, we are dealing with the content and the provisions of the now superseded Directive 01/17.[3]
[3] I note also that ‘should’ does not impose the same absolute obligation as e.g. ‘must’ and is more in the nature of a discretion.
In my view, provided that any disparity between the hours worked as a casual and the hours offered on conversion is not unreasonably vast, a lesser amount of hours offered could still "reflect" the hours worked as a casual. For that reason, were I required to consider the merits of the matter, or to have considered it as a fair treatment appeal, I would not have regard to the decision as being unfair and unreasonable.
For completeness, I would observe that had I been required to offer any adverse observation with respect to the decision, it would be that perhaps the reference to 72 hours per fortnight could have been accompanied with some clearer detail with respect to how that figure was arrived at.
In all of the circumstances, I consider that I do not have jurisdiction to deal with this appeal.
Order
In the circumstances I make the following order:
1.The decision appealed against is dismissed for want of jurisdiction.
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