Smith v State of Queensland (Queensland Health)

[2025] QIRC 292

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

PARTIES:

Smith v State of Queensland (Queensland Health) [2025] QIRC 292

Smith, Karen
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)

CASE NO:

PSA/2025/79

PROCEEDING:

Public Sector Appeal – Conversion Decision

DELIVERED ON:

30 October 2025

MEMBER:

HEARD AT:

McLennan IC

On the papers

ORDERS:

That pursuant to s 562C(1)(c) of the Industrial Relations Act2016 (Qld):

1.     The appeal is allowed;

2.     The decision that Mrs Smith not have her employment converted to permanent is set aside and another decision is substituted; and

3.     Mrs Smith's fixed term temporary employment status as a Nurse Grade 7 be converted to permanent employment.

CATCHWORDS:

LEGISLATION AND OTHER INSTRUMENTS:

CASES:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – where respondent determined not to convert the appellant's employment to permanent under the Public Sector Act 2022 (Qld) – whether there is a continuing need for the appellant to be employed in the same role or a role which is substantially the same - consideration of genuine operational requirements – where decision was not fair and reasonable

Acts Interpretation Act 1954 (Qld) s 14A, s 27B

Industrial Relations Act 2016 (Qld) s 451, s 564, s 562B, s 562C, s 567

Public Sector Act 2022 (Qld) s 81, s 114, s 115, s 131, s 133

Statutory Instruments Act 1992 (Qld) s 7, s 14

Directive 02/23: Review of non-permanent employment cl 1, cl 4, cl 5, cl 7, cl 13

Directive 04/23: Appeals cl 6

Directive 08/17: Temporary employment cl 14

Borean v State of Queensland (Queensland Health) [2021] QIRC 295

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Holcombe v State of Queensland (Department of Housing and Public Works) [2020] QIRC 195

IW v City of Perth (1997) 191 CLR 1

Katae v State of Queensland & Anor [2018] QSC 225

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Stephens v State of Queensland (Queensland Health) [2022] QIRC 213

Smith v State of Queensland (Queensland Health) [2025] QIRC 071

Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260

Zhao v State of Queensland (Queensland Health) [2022] QIRC 185

Reasons for Decision

[1]Mrs Karen Smith ('Appellant') has been employed by State of Queensland, Queensland Health ('Respondent') at Mackay Hospital and Health Service ('MHHS') as a fixed term temporary employee at the Nurse Grade 7 classification since 27 December 2021 at 0.5 FTE.[1]

[1] Correspondence from Ms Peta-Maree France (Executive Director, People and Culture, MHHS) to Ms Karen Smith dated 11 April 2025, 1.

[2]Mrs Smith's temporary contract in the role of Clinical Nurse Consultant (CNC), Research and Teletrial Coordinator, Mackay Base Hospital, MHHS (NRG7) was extended several times between 27 December 2021 and 29 December 2024 – a three-year period.

First conversion decision

[3]On 14 November 2024, Ms Ngaire Buchanan (Interim Executive Director, People and Culture, MHHS) decided not to convert Ms Smith's temporary employment to permanent ('the first conversion decision'). 

[4]Mrs Smith filed an appeal against the first conversion decision on 10 December 2024 (PSA/2024/198), shortly before the expiry of her temporary contract on 29 December 2024.

[5]I note Mrs Smith was employed on a further temporary contract from 30 December 2024 until 7 December 2025, to "backfill a Nurse Grade 7 in Nursing and Productivity Services…to build your exposure to the management components required at that level."[2]

[2] Ibid 2.

[6]Industrial Commissioner Pidgeon issued her decision in Smith v State of Queensland (Queensland Health)[3] on 14 March 2025.  Pidgeon IC found the first conversion decision was not fair and reasonable because the Respondent failed to properly address the criteria of "continuing need".[4]  Pidgeon IC ordered the first conversion decision to be set aside and a fresh review conducted.

[3] [2025] QIRC 071.

[4] Public Sector Act 2022 (Qld) s 115(3)(a).

Second conversion decision

[7]The fresh review ordered by Pidgeon IC was conducted by Ms Peta-Maree France (Executive Director, People and Culture, MHHS). 

[8]On 11 April 2025, Ms France ('the Delegate') decided not to convert Mrs Smith's temporary employment to permanent ('the second conversion decision') because:

1.It was a "non-recurrent position" funded by an external organisation.[5]

[5] Correspondence from Ms Peta-Maree France (Executive Director, People and Culture, MHHS) to Ms Karen Smith dated 11 April 2025, 1.

2.The "Nurse Grade 7 position CNC Research and Teletrial (NRG7) was unfunded…"[6]

[6] Ibid 1.

3.The organisational structure has been reconsidered.[7]

[7] Ibid 2.

4."The position no longer exists as the position ceased on 29 December 2024."[8]

5."The CNC Research and Teletrial (NRG7) was designed short term to build clinical trial capability.  The changing service model…required a Nurse Unit Manager and not a Clinical Nurse Consultant role…"[9]

6.There is "no organisational need for the CNC Research and Teletrial position ongoing, and the Nurse Unit Manager responsibilities are not the same or substantially the same as the temporary CNC Research and Teletrial (NRG7) responsibilities."[10]

[8] Ibid 1.

[9] Ibid 2.

[10] Ibid.

[9]With respect to the mandatory consideration of "a role that is substantially the same", Ms France's decision stated:

In addition, there are not substantially the same or similar as roles that you are suitable for across the Health Service.  I understand from the Executive Director Nursing and Midwifery that you do not have transferable skills required at the Nurse Grade 7 Nurse Unit Manager level with management including human resource and fiscal management.[11]

[11] Ibid.

[10]Ms France further noted that Mrs Smith had been extended in another temporary contract to "backfill" at Nurse Grade 7 level for the period from 30 December 2024 to 7 December 2025, as "arranged by the Executive Director Nursing and Midwifery to build your exposure to the management components required at that level".[12]

[12] Ibid.

[11]Mrs Smith filed an appeal against the second conversion decision on 2 May 2025 (PSA/2025/79).

[12]The subject of this appeal is the second conversion decision, made by Ms France on 11 April 2025.

The Decision

[13]Section 131(1)(a) of the Public Sector Act 2022 (Qld) (PS Act) provides that an appeal may be made against "a conversion decision", defined as a decision not to convert the employment of a public sector employee to a permanent basis.[13]

[13] Public Sector Act 2022 (Qld) s 129.

[14]Section 133(a) of the PS Act prescribes that "the public sector employee the subject of the decision" may appeal "for a conversion decision".

[15]For those reasons, I am satisfied the decision made is able to be appealed by the Appellant.

[16]The right to appeal the Delegate's decision is not disputed between the parties.

Timeframe for appeal

[17]Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

[18]The effective date of the decision was 11 April 2025.

[19]In accordance with s 564(3) of the IR Act, the Appellant filed the Appeal Notice on 2 May 2025. Mrs Smith appointed her union – QNMU – to be her agent in this matter.

[20]There is no dispute between the parties that the appeal was filed in time.

What decisions can the Commission make? 

[21]Pursuant to s 562C(1) of the IR Act, in deciding a public service appeal, the Commission may determine to either:

·confirm the decision appealed against;

·set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate; or

·set the decision aside and substitute another decision.

Appeal principles 

[22]Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".

[23]The appeal is not conducted by way of re-hearing,[14] but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.[15] 

[14] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) s 567(1).

[15] Industrial Relations Act 2016 (Qld) s 562B(2).

[24]Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. 

[25]The issue for my determination is whether the decision not to convert the Appellant's employment status to permanent was fair and reasonable in the circumstances.[16]

Relevant provisions of the PS Act, Directive 02/23 and Directive 04/23 

[26] Sections 114 and 115 of the PS Act relevantly provides:

[16] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61]; Industrial Relations Act 2016 (Qld) s 562B.

114      Chief executive must make decision on employee’s request

(1)This section applies if a public sector employee makes a request under section 113.

(2)The employee’s chief executive must decide the request within 28 days after receiving the request.

(3)The employee’s chief executive may decide to offer to convert the employee’s employment to a permanent basis only if—

(a)       the employee’s chief executive considers—

(i)there is a continuing need for someone to be employed in the employee’s role, or a role that is substantially the same as the employee’s role; and

(ii)the employee is suitable to perform the role; and

(b)any requirements of an industrial instrument are complied with in relation to the decision.

(4)If the matters in subsection (3) are satisfied, the employee’s chief executive must decide to offer to convert the employee’s employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

(5)If the employee’s chief executive decides not to offer to convert the employee’s employment to a permanent basis, the chief executive must give the employee a notice stating—

(a)       the reasons for the decision; and

(b)the total period for which the employee has been continuously employed under section 113(3) in the public sector entity; and

(c)how many times the employee’s employment on a non-permanent basis has been extended.

(6)      Subsection (5)(c) does not apply in relation to employment on a casual basis.

(7)If the employee’s chief executive does not make the decision within the period required under subsection (2), the chief executive is taken to have decided not to offer to convert the employee’s employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment.

(8)The commissioner must make a directive about the making of a decision under this section.

(9)In this section—

suitable, in relation to an employee performing a role, has the meaning given under a directive.

[27]Section 81 of the PS Act relevantly provides:

81      Basis of employment—generally on permanent basis

(1)Employment of a public sector employee is on a permanent basis unless the employee is employed on a non-permanent basis under this Act or another Act that enables the person to be employed on a non-permanent basis, including, for example—

(a)      on a temporary basis for a fixed term; or
  (b)      on a casual basis.

(2)However, a public sector employee may be employed under this Act or another Act on a non-permanent basis only if employment of the employee on a permanent basis is not viable or appropriate.

(3)Without limiting subsection (2), employment of a public sector employee on a permanent basis may not be viable or appropriate if the employment is for any of the following purposes—

(a)      in relation to employment on a temporary basis for a fixed term—

(i)to fill a temporary vacancy arising because a person is absent for a known period; or

Examples of absence for a known period—
  approved leave (including parental leave), a secondment

(ii)to perform work for a particular project or purpose that has a known end date; or

Example—

employment for a set period as part of a training program or placement program

(iii)     to fill a position for which funding is unlikely or unknown; or
  Example—

employment relating to performing work for which funding is subject to change or is not expected to be renewed

(iv)to fill a short-term vacancy before a person is employed on a permanent basis; or

(v)to perform work necessary to meet an unexpected short-term increase in workload;

Example—

an unexpected increase in workload for disaster management and recovery

…

(4)Without limiting subsection (3)(a), employment of a person on a permanent basis may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(a) on a frequent or regular basis.

Example—

an ongoing requirement to backfill multiple absences because of approved leave (including parental leave) or secondments

[28]Directive: 02/23 Review of non-permanent employment (Directive 02/23) relevantly provides:

1.       Purpose

1.1 The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.

1.2 This directive supports and supplements the provisions of the Act with respect to the review of non-permanent employment.

1.3 This directive sets out procedures for reviews and requirements for decisions in the context of reviewing a non-permanent employee’s employment status.

…

4. Principles

4.1     Chief executives are responsible for making decisions on review of non-permanent employment, under chapter 3, part 9, division 1 of the Act.

4.2     Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees and maximising employment security and permanency of employment.

4.3 Under section 81 of the Act, employment of a public sector employee is generally on a permanent basis unless it is not viable or appropriate.

4.4 Employment on a permanent basis may not be viable or appropriate if the employment is for any of the reasons provided for at section 81(3) of the Act.

…

5.       Interpretation of directions

5.1     The Act sets out employee entitlements and chief executive responsibilities under chapter 3, part 9, division 1.

5.2     The Appendix identifies and summarises the relevant sections of the Act, to assist public sector employees and decision makers in understanding the legislative framework.

5.3     A decision maker, when considering a review of an employee’s non-permanent employment status, must make a decision by applying the relevant sections of the Act.

5.4     These directions:

(a) provide for the meaning of suitable

(b)provide for the matters a chief executive must consider in deciding the hours of work to be offered in converting an employee’s employment under section 115(1)(b)

(c) provide for the circumstances in which a person may appeal against the decision about the hours of work offered in converting the employee’s employment under section 115(1)(b)

(d)establish procedural requirements for conducting a review and making a decision under sections 114, 115, and 116 of the Act

(e)should be read in conjunction with the relevant section/s of the Act.

5.5 The requirements set out in these directions are binding and must be followed.

…

7. Employer obligation to undertake a review of non-permanent employment

7.1 A public sector employee who is eligible (or approaching eligibility) for a review of their employment status under section 115 of the Act may notify the employee’s chief executive of their requirement to commence a review under section 115 of the Act, and that the employee would like to be converted to permanent employment.

7.2     The notification provided for in clause 7.1 may be made by the employee or the employee’s representative, provided it is not more than three months before the review must be undertaken, in accordance with section of 115 of the Act.

7.3     An entity must set out information on its intranet, or in another way that is accessible to employees, about how to notify under clause 7.1.

7.4 Where an employee does not notify their entity in accordance with clause 7.1, the chief executive is still required to undertake the review in accordance with section 115 of the Act.

7.5 When a chief executive starts a review of an employee’s employment status under section 115 of the Act, the chief executive must notify the employee.

7.6 The notification must be in writing and include:

(a) the name and contact details of the entity contact for the review

(b) the date by which the decision must be made

(c)that the employee or their representative may choose to provide a written submission for consideration during the review process

(d) that if the chief executive does not make a decision within the required period, the chief executive is taken to have decided not to offer to convert the employee’s employment to a permanent basis

(e) information about any relevant appeal right and timeframe for appeal.

…

13. Obligations when a decision is made not to offer to convert an employee’s employment to a permanent basis and to continue the employee’s employment according to the terms of the employee’s existing employment

13.1 Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:

(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.

13.2 Any notice provided to the employee must include information about any relevant appeal rights available to the employee.

13.3 Where the chief executive decides under section 114 or 115 of the Act not to offer to convert the employee’s employment to a permanent basis because the person was not suitable to perform the role, any notice provided to the employee must also include information about an employee’s right to request an additional review under section 116 of the Act in the event the employee considers they have become suitable to perform the role.

[29]Directive 04/23: Appeals (Directive 04/23) relevantly provides:

6.       Conversion decision appeal
6.1 Section 131(1)(a) of the Act provides that a conversion decision may be appealed.

6.2 Section 129 of the Act provides for the definition of conversion decision (noting that the meaning is limited to specific types of decisions made under the relevant sections of the Act).

6.3 Who may appeal a conversion decision under section 133 of the Act: (a) the public sector employee the subject of the decision.

6.4     Decisions that cannot be appealed as a conversion decision, as provided for under section 132 of the Act:

(a) a decision under section 114 not to convert the employment of a public sector employee to a permanent basis

(b) a decision under section 120 not to appoint a public sector employee to a position at a higher classification level, if the employee has been acting at, or seconded to, the higher classification level for less than two years.

[30]The Directives are statutory instruments within the meaning of s 7 of the Statutory Instruments Act 1992 (Qld).[17]

[17] Katae v State of Queensland & Anor [2018] QSC 225, [26].

[31]Section 14 of the Statutory Instruments Act 1992 (Qld) provides that certain provisions of the Acts Interpretation Act 1954 (Qld) apply to statutory instruments. One of those is s 14A which provides that in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. Schedule 1 to the Acts Interpretation Act 1954 (Qld) provides that 'purpose', for an act, includes policy objective.

Submissions

[32]In accordance with the Directions Order issued in this matter, the parties filed written submissions.

[33]Pursuant to s 451(1) of the IR Act, no hearing was conducted in deciding this appeal. The matter was decided on the papers.

Appeal Grounds and the parties' submissions

[34]Mrs Smith's appeal grounds and submissions are as follows:

1.Inadequate consideration of "continuing need" criteria.[18]

[18] Appeal Notice filed 2 May 2025, Schedule One, 1-2.

[35]With respect to the first appeal ground, Mrs Smith stated:

a)Having been ordered to conduct a fresh review by Pidgeon IC, the Respondent still did not properly consider the "continuing need" criteria.[19]

[19] Ibid [6].

b)The Delegate decided there was no "continuing need" for the CNC Research and Teletrial (NRG7) role because:

·        It was "designed short term to build clinical trial capability";

·        The "changing service model…required a Nurse Unit Manager and not a Clinical Nurse Consultant role";

·        "Consideration of the organisational structure identified there was a need to strengthen the leadership and a full time Nurse Unit Manager (Nurse Grade 7) position was created";

·        The responsibilities of the new NUM role created "are not the same or substantially the same as the temporary CNC Research and Teletrial (NRG7) responsibilities."  That is because the NUM role includes: line management responsibilities; human resources; budget management; payroll; and rostering.[20]

[20] Appeal Notice filed 2 May 2025, Schedule One, [8].

c)Although the Delegate explained why there was a need for a full time NUM, that is not the same as explaining why there is not a continuing need for the CNC role.[21] 

[21] Ibid [9].

d)The Research and Teletrial Unit expanded in the relevant period.  Two extra Clinical Nurse roles were added in 2024 (in addition to the existing one) and a NUM was employed in January 2025.  That demonstrates a continuing need for the CNC role, but was not considered by the Delegate.[22]

e)There was a continuing need for the CNC role because it "delivered services that are not delivered by either the NUM (Nurse Grade 7) or the Clinical Nurse (Nurse Grade 6) in the Research and Teletrial Unit."[23] 

f)Mrs Smith addressed to the "continuing need" criteria in the 4 November 2024 review request as follows, however the Delegate's decision "failed to explain why those matters did not demonstrate a continuing need for the CNC role, particularly in the context of an expanding Research and Teletrial Unit":[24]

…there is a continuing need for someone to be employed in my role or a substantially similar role to ensure specific clinical nurse consultations continue and to guarantee the provision of clinical trials within [MHHS].  My role is fundamental to ensure the ongoing implementation and compliance with the National Safety and Quality Health Service (NSQHS) Standards, including the National Clinical Trials Governance Framework (NCTGF), clinical incident management, advanced practice clinical expertise to support staff conducting clinical trials within the MHHS and development and review of applicable policies and procedures.  Without my continued appointment to this role, there will be an absence in the management of NSQHS Standards and the specific actions required for clinical trials in the NCTGF.[25]

[22] Appellant's submissions filed 16 May 2025, [11]-[12].

[23] Appeal Notice filed 2 May 2025, Schedule One, [10]; Appellant's submissions filed 16 May 2025, [13]-[19].

[24] Appellant's submissions filed 16 May 2025, [19].

[25] Ibid [18].

[36]With respect to the first appeal ground, the Respondent stated:

a)"…the role was temporary…The requirement for a continuing need for the position was no longer required in the service model of Research and Innovation…"[26]

[26] Respondent's submissions filed 30 May 2025, [5].

b)The CNC "position" was "temporarily funded and there is no ongoing continuing need for the position to be filled due to genuine operational requirements as the temporary position relied on external funding to the Health Service.  It no longer exists and the non-recurrent position ceased on 24 December 2024…The Health Service can demonstrate there is no continuing need" as the CNC role is "not required and does not exist."[27]

[27] Ibid [15].

c)In 2024, the purpose and funding of the unit was reviewed.  A different organisational structure was determined by the Director of Medical Services, Research and Innovation at MHHS, that did not include a CNC (Nurse Grade 7) role.  The organisational structure of the unit "consists of 3 Clinical Nurses at the Nurse Grade 6 level, a Nurse Unit Manager and Pharmacist."[28] 

[28] Ibid [17]-[20].

d)"The purpose of the Research and Innovation Unit within Mackay Hospital and Health Service is collaboration with external partner for academic, clinical trials and governance."[29] 

[29] Ibid [8].

e)While the CNC role was initially advertised for a 6-month period,[30] Mrs Smith remained in the role until 30 December 2024.[31]

[30] Ibid [10].

[31] Ibid [13].

f)The Executive Director People and Culture determined "that there is not continuing need for the position to be filled. It is the Health Services responsibility to determine the positions and classification of the positions required to deliver health services to ensure resources of the public sector health system are used effectively and efficiently as outlined in the Hospital and Health Boards Act 2011…"[32]

[32] Ibid [22].

g)"The Health Service decision is in line with Public Sector Directive 03/23 not to convert Ms Smith permanently to a position that does not exist nor does the Health Service have an organisational requirement for a Clinical Nurse Consultant (Nurse Grade 7), Research and Teletrial with Research and Innovation."[33]

[33] Ibid 6.

h)Since the Delegate's decision was issued, Mrs Smith's temporary part-time contract as a Nurse Grade 7 was extended to 7 December 2025.  Mrs Smith is working "with James Cook University based at the Mater Private Hospital in Mackay" as arranged and agreed with the Executive Director Nursing and Midwifery, MHHS.[34]

i)"…there are not substantially same or similar as roles that you are suitable for across the Health Service.  I understand from the Executive Director Nursing & Midwifery that do not have transferable skills required at the Nurse Grade 7 level with management including human resources and fiscal management."[35]

j)"there were no permanent Nurse Grade 7 vacancies substantially the same or similar to role Ms Smith had previously performed."[36]

2.Non-compliance with s 27B of the Acts Interpretation Act (Qld) 1954 (AI Act) because the conversion refusal decision contained no evidence or other material to support the finding that there was "no organisational need for the CNC Research and Teletrial role" ongoing.[37]

[34] Ibid [6].

[35] Ibid [5].

[36] Ibid [15].

[37] Appeal Notice filed 2 May 2025, Schedule One, 2-3.

[37]With respect to the second appeal ground, Mrs Smith stated:

a)"The Decision provides no evidence or other material on which the finding that there was '…no organisational need for the CNC Research and Teletrial ongoing', was based."[38]

b)"The Respondent has also not provided any evidence or other material as to NUM and CN roles in the…Unit are permanently funded yet the CNC role is not."[39]

[38] Ibid [14].

[39] Appellant's submissions filed 16 May 2025, [22].

[38]With respect to the second appeal ground, the Respondent stated:

a)"The Health Service can demonstrate there is no continuing need…[for] the [CNC] position is not required and does not exist."[40]

[40] Respondent's submissions filed 30 May 2025, [15].

b)The organisational structure was reconsidered.  It was decided that a NUM was required, rather than a CNC.  The Respondent submitted that:

Having regard to the classification structure in the…[Award] and the work value associated with the duties that are required to be undertaken in the unit, it has been determined that there is not requirement for…[CNC] level duties to be undertaken.  The functions previously undertaken in relation to clinical trials and the future / ongoing needs of the unit mean that some of the functions have a work value that appropriately sit at the Clinical Nurse Grade 6 level, and then to ensure appropriate management of those nurses a…[NUM] was required.  The functions of the former Clinical Nurse Consultant Teletrial role has a different focus with aspects of led by the Nurse Unit Manager (Nurse Grade 7) and Nurturing Director (Nurse Grade 11) Research Support Unit…[41]

3.Non-current funding status is irrelevant.

[41] Respondent's submissions filed 30 May 2025, [21].

[39]With respect to the third appeal ground, Mrs Smith stated:

a)The Delegate noted that the CNC role "was temporary as the funding was provided short term by an external body to the Health Service.  The position no longer exists as the position ceased on 29 December 2024."

b)The Delegate did not provide any "further analysis or evidence as to why it is not viable or appropriate for it to source the funding for the position from elsewhere or to create and fund a permanent position for the employee's employment to be converted to permanent."[42]

c)Pidgeon IC had earlier observed that "whether there is a continuing need for Ms Smith to be employed in the role is a different question to whether there is continuing or recurrent funding for Ms Smith's role."  The Commission held that:

I would further note that if it is found that an employee is suitable for the role and that there is a continuing need for someone to perform the role, it is not sufficient to simply state that there is no recurrent funding for a position and therefore it is not viable or appropriate for conversion to occur.  A budgeted vacancy or recurrent funding is not a requirement for conversion to occur.  The Respondent needs to provide further analysis or evidence as to why it is not viable or appropriate for the Respondent to source the funding for the position from elsewhere or to create and fund a permanent position for the employee's employment to be converted to permanent.  The Respondent might also provide further specifics or evidence to support its contention that the funding will not continue or that the trial is coming to an end.[43]

[42] Appeal Notice filed 2 May 2025, Schedule One, [17].

[43] Smith v State of Queensland (Queensland Health) [2025] QIRC 071, [50].

[40]With respect to the third appeal ground, the Respondent stated:

a)The Research and Innovation Unit within MHHS "relies on revenue raising and own source funding."[44]

b)The external funding provider is Queensland Regional Clinical Trial Coordination Centre (QRCC).[45]  QRCC provided non-recurrent funding to support the CNC role.[46]

[44] Respondent's submissions filed 30 May 2025, [8].

[45] Ibid [9].

[46] Ibid [12].

Decision criteria

[41]I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process utilised and the decision arrived at.

[42]Section 114(3) of the PS Act contain the mandatory decision criteria for temporary employment conversions to permanent. The decision maker must consider:

·whether there is a continuing need for someone to be employed in the role, or a role that is substantially the same; 

·whether the employee is suitable to perform the role; and

·whether there are any requirements of an industrial instrument that need to be complied with, in relation to making the decision.

[43]Section 114(4) of the PS Act states (emphasis added):

If the matters in subsection (3) are satisfied, the employee's chief executive must decide to offer to convert the employee's employment to a permanent basis, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity.

[44]In making the conversion decision, s 115(3)(b) provides that the chief executive must also "have regard to the reasons for each decision previously made, or taken to have been made, under this section or section 114 in relation to the employee during the employee's period of continuous employment."

Suitable

[45]The parties do not dispute that Mrs Smith is suitable to perform the role.

Compliance with an industrial instrument

[46]The parties do not submit that there are any requirements of an industrial instrument that need to be complied with, in relation to making the decision.

Reasons for any decision previously made or deemed

[47]The PS Act prescribes that the chief executive must have regard to the reasons for each decision previously made, or deemed to have been made, in relation to the employee during their period of continuous employment.  Neither party have raised that as a matter in contention here.

Consideration

[55]My decision firstly turns on the question of whether there is a continuing need for Mrs Smith to be employed in the role, or a role that is substantially the same. 

[56]I will then go on to consider whether there are any genuine operational requirements that would make her conversion to permanent employment "not viable or appropriate".

[57]There are two potential pathways to conversion. The first pathway is the Appellant's current role. The second pathway is an alternative role which is substantially the same. 

Whether there is a continuing need for the person to be employed in the role - or a role which is substantially the same

Pathway 1:Is there a continuing need for someone to be employed in the employee's role?

[59]The PS Act mandates that the Delegate considers this precise question.

[60]The role is that of 'Clinical Nurse Consultant' (Nurse Grade 7) with the Research Support Unit, Mackay. 

[61]The HHS's considerations of the 'continuing need' for the role – and the Appellant's involvement in it – are both required.  They are not one and the same.  Circumstances may exist where the role is continuing, but the person's involvement in it is not.  In that sense, it is important to interpret the provisions holistically but also pay appropriate attention to the particular separate elements of the clause.

[62]The real controversy between the parties is whether (or not) there is a continuing need for "someone" to be employed in the role of 'Clinical Nurse Consultant' (Nurse Grade 7) with the Research Support Unit, Mackay. 

[63]In my view, there is not a continuing need for someone to be employed in the role.  The Respondent's submissions are persuasive on that particular limb.  The role Mrs Smith formerly occupied no longer exists – it ceased on 24 December 2024.  That is because the organisational structure was reconsidered and differently determined, such that further roles were added and the CNC role since replaced with a NUM.  While the duties and responsibilities of the CNC role (as expressed in the role description) are certainly different to that of the other roles now contained in the new structure, it is nonetheless open to the HHS to decide to provide a different service – in turn supported by a different mix of roles, that it considered better suited to that different delivery.

[64]I will now turn to consideration of the second pathway to permanent conversion of "substantially the same" roles.

Pathway 2:Is there a continuing need for the Appellant to be employed in a role which is substantially the same?

[65]The PS Act mandates that the Delegate considers this precise question.

[66]The prescribed definition of 'the same role' in the (Pre–Amendment) Directive 08/17 was deliberately broad and captured "…a role which has the same or substantially the same capability requirements…or a role with a generic role description involving a range of duties…"[47]  I note that no definition of 'the same role' is provided in the (now amended) Directive 02/23, however in the absence of the term being otherwise contemporaneously defined I will rely on the definition in the (Pre–Amendment) Directive 08/17.

[47] Directive 08/17 Temporary employment cl 14.

[67]In Katae v State of Queensland & Anor,[48] Crow J considered the definition of "same role" in the (Pre–Amendment) Directive 08/17.  His Honour noted that the legislation was remedial, and went on to find:

[48] [2018] QSC 225.

... through the expansive definition of "same role" in s 14 of Directive 08/17, "same role" may be interpreted to be quite different roles, as long as the roles have substantially the same capability requirements.

[68]It is entirely foreseeable that a requirement may be worded slightly differently between role descriptions, while still maintaining the same or substantially the same capability requirements.  It is the substance of the requirement, rather than merely the form, that is critical here.

[69]It is relevant that s 114(3)(a)(i) requires consideration of both the employee's role, and a role that is substantially the same (i.e. a 'Clinical Nurse Consultant' (Nurse Grade 7) working within MHHS).

[70]Following the decision of Pidgeon IC in the first appeal, the HHS's correspondence to Mrs Smith conveying the second conversion decision[49] have not demonstrated adequate regard to this mandatory criteria.  To the extent that this mandatory limb is referred to at all, the Delegate's decision only briefly stated that "there are not substantially same or similar as roles that you are suitable for across the Health Service.  I understand from the Executive Director Nursing & Midwifery that do not have transferable skills required at the Nurse Grade 7 level with management including human resources and fiscal management."[50]  The Delegate's assertion that Mrs Smith does not have the "transferable skills" to be placed into a NUM role does not address the specific legislative requirement of "a role substantially the same" – that is, a CNC (Nurse Grade 7) working within MHHS.

[49] 11 April 2025.

[50] Respondent's submissions filed 30 May 2025, [5].

[71]The Respondent further submitted that "there were no permanent Nurse Grade 7 vacancies substantially the same or similar to role Ms Smith had previously performed."[51]  The Delegate erred in only considering permanent roles that were vacant.  A budgeted vacancy is not required in order for a conversion to occur.  Pidgeon IC made that clear in her earlier Decision,[52] as the Commission has found in numerous other appeals of this kind.

[51] Ibid [15].

[52] [50].

[72]In Zhao v State of Queensland (Queensland Health),[53] Pidgeon IC decided to convert Ms Zhao's temporary employment to permanent, concluding that:

[53] [2022] QIRC 185.

I accept that Ms Zhao cannot be employed in the particular position she is currently backfilling as it has a substantive position holder with a right to return to work from parental leave.  I also accept that when the Respondent undertook a review of other positions, it did not find an existing vacancy to offer Ms Zhao.  However, an existing vacancy is not a requirement to enable conversion.  In this case, having established, based on her employment history, that there is a continuing need for Ms Zhao to perform the role, or a role substantially the same, and in the absence of genuine operational requirements precluding appointment on tenure, Ms Zhao's temporary employment should be converted to permanent.[54]

[54] Ibid [57].

[73]As Dwyer IC observed in Stephens v State of Queensland (Queensland Health),[55] MSHHS's decision was found not to be fair and reasonable because of its inattention to the mandatory consideration of "a role that is substantially the same".  He said:

[55] [2022] QIRC 213.

…the decision maker has failed to comply with a mandatory requirement to include findings and evidence on material findings of fact with respect to what efforts were undertaken to locate and consider roles that might be substantially the same, and why roles considered (if any) were excluded.
…
…the decision provides no information as to the extent, quality or genuineness of the efforts made to find a substantially similar role.  That is not to say that proper efforts were not made, but simply that there is no information about those efforts that would allow Ms Stephens to evaluate whether she had been treated fairly.

[74]Dwyer IC elaborated that the decision maker should:

…give consideration to any substantially similar roles that are available at the time of the fresh review.  If a permanent role cannot be found for Ms Stephens, I expect that any decision issued will set out the details of the efforts to identify substantially similar roles and (if applicable) why any identified were excluded.

[75]I have carefully considered each of those earlier Commission decisions and adopt the reasoning of Pidgeon IC and Dwyer IC here. 

[76]While I have not accepted Mrs Smith's contention that there is a "continuing need" for someone to be employed in the CNC role (Nurse Grade 7), Research and Teletrial, I do accept her argument that the Respondent was not compliant with s 27B of the AI Act because the conversion refusal decision contained no evidence or other material to support the Delegate's conclusion that there was no continuing need for Mrs Smith to be employed in a "role that is substantially the same as the employee's role." The scant reference to the mandatory second limb contained within the Delegate's decision does not fulfil the requirement, nor has the Respondent's submissions provided any elaborated consideration of the matter.

[77]For those reasons, I will convert Mrs Smith's employment to permanent, in "a role that is substantially the same" as the CNC (Nurse Grade 7) Research and Teletrial role with MHHS.

Genuine operational requirements

[78]The relevant provision is found at s 114(4) of the PS Act. When the other criteria are met, the chief executive must decide to convert an employee to permanent "unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity."

[79]'Operational requirements' are not defined in the PS Act, so the term must be given its ordinary meaning. Where some uncertainty exists in interpreting the words of a legislative instrument, a variety of statutory interpretation rules apply.[56]

[56] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269.

[80]One relevant rule of statutory interpretation is the principle of 'beneficial legislation'.  Legislative instruments which are remedial in character, namely intended to correct wrongs, are described as 'beneficial legislation'. That principle has been applied to equal opportunity legislation. In IW v City of Perth,[57] it was held that such remedial materials are:

[57] 1997) 191 CLR 1.

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".[58]

[58] Ibid 12.

[81]Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women) ('Morison'). ^[59] His Honour's explanation is also useful here (emphasis added):

[59] [2020] QIRC 203.

[37]     The phrase 'genuine operational requirements of the department' is not defined in the PS Act or in the Directive.  As a consequence, that phrase must take its meaning from the words used in it and the context in which it appears in the PS Act; and consideration of the context includes surrounding provisions, what may be drawn from other aspects of the instrument, the instrument as a whole and it extends to what the instrument seeks to remedy.  The same considerations apply to the construction of the same phrase in cl 6.2(a) of the Directive.

[38]     The adjective 'genuine' relevantly means '…being truly such; real; authentic.'  The phrase 'operational requirements of the department' is obviously a broad term that permits a consideration of many matters depending upon the particular circumstances of the department at a particular time….

[82]Deputy President Merrell's comprehensive exploration of the notion of genuine operational requirements in Morison is regularly cited in decisions of the Commission.  It is relevant though that the Morison decision was about a higher classification conversion, not a temporary employment conversion.  Different legislative provisions, different Directives and different mandatory decision criteria are applied in higher classification matters.  There is a particular nuance to the context of Deputy President Merrell's consideration of whether or not there was an 'authentic need' to appoint Morison to the higher classification level having regard to the effective, efficient and appropriate management of the public resources of the department because – as I found first in Holcombe v State of Queensland (Department of Housing and Public Works),[60] and later in Borean v State of Queensland (Queensland Health [61] – the employer does not need two people in one position.

[60] [2020] QIRC 195.

[61] [2021] QIRC 295.

[83]But temporary employment conversion appeals are different – here it is not about the consideration of conversion to a position, but rather to a role.

[84]Giving due consideration to the object, scope and purpose of the relevant legislative materials, any genuine operational requirements preventing conversion to permanency must not be trivial. Whenever a temporary employee is converted to permanency, there will commonly be managerial inconveniences and difficulties. 'Genuine' operational requirements must go beyond those.

[85]If the inconveniences inherent to most if not all permanency conversions were sufficient to constitute genuine operational requirements, there would be few or no conversions. That interpretation would defeat the purpose of Directive 02/23 and the review.

[86]In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's commitment to limiting temporary employment where possible.

[87]The HHS's submissions provided that the genuine operational reasons to deny conversion was effectively that the CNC (Nurse Grade 7) Research and Teletrial role had ceased and was subject of non-recurrent funding from an external body.  However, I have not converted Mrs Smith on the basis that there is a "continuing need" for her to be employed in the role – but instead, I have converted her to a role that is "substantially the same" for which a budgeted vacancy is not required.

[88]MHHS has not provided evidence to support the contention that converting Mrs Smith's employment to permanent would compromise the effective, efficient and appropriate management of the public resources of the HHS.  Rather, it appears that course would also most prudently guard the HHS's investment in Mrs Smith's skill development and clinical expertise.  In fact, it would certainly support, not detract from, the effective, efficient and appropriate management of the public resources.

[89]Considering Mrs Smith's lengthy temporary employment history with MHHS, I am persuaded that there is an authentic need for her to continue in a role that is substantially the same.  There are no genuine operational requirements that would make Mrs Smith's conversion to permanent employment "not viable or appropriate".

[90]I do not accept that funding is an impediment that would reasonably prevent the conversion of Mrs Smith to permanency.  The reality is that Mrs Smith has been working in the role for a lengthy period.  During this time, she has been engaged on successive fixed term temporary contracts.  Mrs Smith has clearly been paid for all those years of her work with the HHS already.  What particular wages line item in the budget her wages come from is not so significant a matter as to circumvent the government's commitment to maximising permanent employment.

[91]The interpretation that I have applied here does not frustrate the intent of government policy as articulated in the purpose and principles of the Directive; specifically to establish employment on tenure as the default basis of employment in the Queensland public service.

[92]On the material before me, I have found that there is a continuing need for Mrs Smith to be permanently employed in a role that is "substantially the same".  Importantly, a "role" is different to a "position".  The Respondent has rather conflated those terms, appearing to use the words almost interchangeably. 

[93]As I have disturbed the Respondent's contention that the reasons relied on for refusing conversion were "genuine operational reasons", the appropriate order is that Mrs Smith's employment now be converted to permanent.

[94]In addition to the explanation I have provided above regarding the default position and matters contained in the PS Act, there is also no requirement for there to first be a budgeted 'vacancy' to be converted into. 

[95]It follows that there are no genuine operational reasons that would otherwise prevent the Mrs Smith from being converted to permanent employment.

[96]In arriving at this conclusion, I am conscious that the PS Act and Directive are purposed with encouraging and maximising security of public sector employment.  That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in the Directive and legislation.  Those efforts allow for the achievement of its purpose.

[97]I order accordingly.

Orders:

That pursuant to s 562C(1)(c) of the Industrial Relations Act2016 (Qld):

1.       The appeal is allowed;

2.       The decision that Ms Smith not have her employment converted to permanent is set aside and another decision is substituted; and

3.       Ms Smith's fixed term temporary employment status as a Nurse Grade 7 be converted to permanent employment.