Smith v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	Smith v State of Queensland (Queensland Health) [2025] QIRC 071 Smith, Karen (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2024/198
PROCEEDING:	Public Sector Appeal – Appeal against a conversion decision
DELIVERED ON:	14 March 2025
MEMBER: HEARD AT:	Pidgeon IC On the papers
OUTCOME:	The orders contained in paragraph [53] of these reasons for decision
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is substantively employed by the respondent as a Clinical Nurse Consultant Research and Teletrial Coordinator (NRG7(4)) – where the appellant's request for permanent appointment was rejected – where the appellant has been employed on a temporary basis for 34-months – where there where the respondent relies on its genuine operational requirements – whether the decision is fair and reasonable – decision appealed against is set aside – where the decision appealed against is returned to the decision-maker for reconsideration
LEGISLATION AND OTHERINSTRUMENTS:	Acts Interpretation Act 1954 (Qld) s 27B Industrial Relations Act 2016 (Qld) ss 562C(1) Public Sector Act 2022 (Qld) ss 113, 114, 115, 129, 131, 133

Reasons for Decision

Introduction

Mrs Karen Smith ('the Appellant') has been employed by the State of Queensland (Queensland Health) ('the Respondent') in the fixed-term temporary position of Clinical Nurse Consultant Research and Teletrial Coordinator (NRG7(4)) since 27 December 2021. Mrs Smith has been engaged in this role for 34-months as a result of (as at the time of the decision-letter) five extensions.
On 4 November 2024, pursuant to s 113(1) of the Public Sector Act 2022 (Qld), ('the PS Act'), Mrs Smith wrote to the Respondent requesting a review of her non-permanent employment status.
On 14 November 2024, Ms Ngaire Buchanan, Acting Executive Director People and Culture ('the decision-maker') wrote to Mrs Smith informing her that a review had been undertaken and that her employment would not be converted and she would remain a non-permanent employee. It is this decision that Mrs Smith appeals.
The decision letter
On 14 November 2024, the decision-maker wrote to Mrs Smith advising her, relevantly,
that:[1]
[1] Appellant’s Notice of Appeal filed 10 December 2024, 5–6.
Considerations when making the decision
There are two considerations for deciding whether to convert. These are that there is a continuing need to perform the role or a role that is substantially the same AND you satisfy the suitability for the role principle. I have addressed these two aspects below.
Suitability for the role
You have backfilled CNC Research & Teletrial since 27.12.2021. You have demonstrated over this time that you satisfy the suitability for the role requirements.
Continuing need
As there are genuine operational requirements of the MHHS, it is not viable or appropriate to convert you at this time. Specifically, the Research Support Unit as the role is temporary and is currently funded by QRCCC (non-recurrent) and therefore at this stage a permanent role is
not viable.
Furthermore, there are currently no vacancies that are substantially same or similar as roles that you have previously performed in. We have determined this by reviewing the current MHHS vacancies. There are currently no permanent available roles within the Health Service facility that are at an appropriate level and discipline that would be suitable for consideration.
Based on the information currently available, if you remain employed with Mackay HHS, your next eligibility review of your employment for permanent conversion will be considered on 13th November 2025. If a position becomes permanently available in the meantime, you are
encouraged to apply for it.
Appeal principles
Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(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.
Legislative framework and other instruments
The PS Act
Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(a) provides that an appeal may be made against a conversion decision.
Section 129 of the PS Act relevantly provides:
129 Definitions for part
In this part—
conversion decision means a decision—
…
(e)under section 120 or 121 not to employ a public sector employee at a higher classification level, if the employee had been acting at, or seconded to, the higher classification level for a continuous period, as defined for the employee in a directive made under section 120(7), of at least 2 years.

Section 133 of the PS Act explains who may appeal a conversion decision:
133 Who may appeal
The following persons may appeal against the following decisions—
(a)for a conversion decision—the public sector employee the subject of the decision

Section 113 of the PS Act states:
113 Employee may request review of status after 1 year of continuous employment
(1) A public sector employee who has been continuously employed on a non-permanent basis in the same public sector entity for at least 1 year, may ask the employee's chief executive to decide whether to—
(a) continue the employee's employment according to the terms of the employee's existing employment; or
(b) offer to convert the employee's employment to a permanent basis.
(2) The employee cannot make more than 1 request under subsection (1) in each 12 month period starting on the day the request is made.
(3) For working out how long the employee has been continuously employed in the public sector entity—
(a)all periods of authorised leave are to be included; and
(b)the employee is to be regarded as continuously employed even if there are periods during which the employee is not employed in the entity, if the periods of non-employment in the entity total 6 weeks or less in the year occurring immediately before the time when the duration of the employee's continuous employment is being worked out.
Section 114 of the PS Act states:
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.
Mrs Smith's reasons for appeal

Mrs Smith filed her appeal in the Industrial Registry on 10 December 2024. Her appeal grounds are that:[2]
[2] Notice of Appeal filed 10 December 2024, 4.
… the notice of decision provided to me by the MHHS failed to:
1.       Set out the findings on material questions of fact: The only finding provided in the decision is that there is no operational needed specification for my role. I consider this reasoning inadequate and further material questions of fact should have been considered as part of the decision making.
2.       Did not refer to the evidence or other material on which those findings were based: The decision outlined there is no operational need specification the Research Support Unit as the role is temporary and is currently funded by the QRCCC (non-recurrent) and therefore at this stage a permanent role is not viable. The decision did not refer to any evidence of why there is no operational need for that unit nor any reference to when funding may end. As it currently stands, there is a need for my role to ensure specific clinical nurse consultant provision of clinical trials within the MHHS.
3.       Did not refer to the evidence or other material on which those findings were based: the decision outlined there are no current permanent roles vacant that are substantially same or similar roles that I have performed in. The decision did not refer to which roles I was reviewed against or how it has been determined that I am not suitable for these roles.

In addition to the above, the notice failed to provide information about any relevant appeal rights available to the employee, which is necessary pursuant to section 13.3 of Directive 02/03.
I would like to emphasise that I have been continuously employed with the Department on a non-permanent basis since 27 December 2021. The Public Sector Act 2022 (Act) (sic) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector. This means there should be considerable effort (sic) made by MHHS to covert (sic) my permanent employment as a priority. The default should not be continuing to place me on a temporary contract.

Respondent's submissions

The Respondent filed submissions in reply in the Industrial Registry on 22 January 2025.
The Respondent submits that Mrs Smith met with the Human Resources team on 5 September 2024 to discuss conversion to permanency where it was explained to her that she was unable to be 'converted to the Nurse Grade 7 position as this was temporarily funded'.[3]
[3] Respondent’s submissions filed in the Industrial Registry on 22 January 2025, [7].
Following this discussion, on 4 November 2024, Mrs Smith formally applied for conversion to permanency. The Respondent submits that the standard review process was conducted in order to ensure due diligence.
The Respondent reiterates the reasons provided in the decision-letter that:[4]
· the position in question was temporarily funded and there would be no ongoing requirement for the position.
· there were no permanent Nurse Grade 7 vacancies substantially the same or similar to role Ms Smith had previously performed in. (Att. 3)
[4] Respondent’s submissions filed in the Industrial Registry on 22 January 2025, [9].

Mrs Smith's submissions in reply

Mrs Smith filed submissions in reply in the Industrial Registry on 24 February 2025. Mrs Smith's submissions refine and expand upon the appeal grounds set out in her appeal notice:
a.       The Decision did not refer to the Respondent's previous one of decisions (sic) declining to convert the Appellant's employment to permanent after a review of her non-permanent employment.
b.       The Decision did not provide evidence of consideration of substantially the same or similar roles that were considered in the review of the Appellant's non-permanent employment.
c.       The Decision did not provide evidence of why the Appellant's non-permanent employment couldn't be funded on a permanent basis.
d.       The Decision did provide (sic) information about the Appellant's appeal rights.
e. The Respondent in reaching their decision did not comply with section 27B of the Acts Interpretation Act 1954.

Reference to previous decision
Mrs Smith points to s 115(4)(d) of the PS Act and notes that the decision was required to state, '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'.
While the decision states that previous permanent conversion review decisions had been considered in the review, Mrs Smith notes that the decision of March 2024 is not referenced.
Evidence of same or similar roles that have been considered
Mrs Smith notes that the decision states that a review of current vacancies that are substantially the same or similar had been undertaken but says that the decision provided no evidence of vacancies that were considered and why they weren't considered suitable.
Mrs Smith also says that there is no evidence of any analysis of the capability requirements of the role she is undertaking.
Mrs Smith says that the decision-maker erred in only considering roles that are vacant. Mrs Smith notes decisions of this Commission that have confirmed that a budgeted vacancy is not required and that if conversion occurs, the creation of a new permanent position is to be expected.
Mrs Smith says that the decision does not 'recount specific search efforts that were undertaken to ascertain whether there were other roles that may be suitable’ to convert her employment.
Determining a continuing need for the role
Mrs Smith notes that the decision states that the role is temporary and has non-recurrent funding and that there is no continuing need for the position. This is stated to be the genuine operational requirement preventing her permanent appointment to the role.
Mrs Smith says that no evidence has been provided that there is no continuing need for her role.
Mrs Smith says that there is a continuing need for her role and submits as evidence to support this submission:
a. The Research and Teletrial Unit where the Appellant was employed increased in the number of employees during the time she was employed on a non-permanent basis This included:
i.two additional non-permanent Clinical Nurses (Nurse Grade 6) being employed on 4 November 2024 and 11 November 2024, in addition to the permanent Clinical Nurse (Nurse Grade 6) employed in the Research and Teletrial Unit.
ii.A Nurse Unit manager (Nurse Grade 7) commencing in January 2025.
iii.Ongoing recruitment being advertised for the Research and Teletrial Unit.
Mrs Smith submits that the decision does not address the additional roles being appointed to the Research and Teletrial Unit. Mrs Smith says that in her role as Clinical Nurse Consultant (Nurse Grade 7), in the Research and Teletrial Unit, she delivered services that are not delivered by the Nurse Unit Manager (Nurse Grade 7) or the Clinical Nurse (Nurse Grade 6) in the Research and Teletrial Unit, including:
a.       "To support the development, strategic management and implementation of the Queensland Health research agenda by providing well developed research knowledge and skills. Working at the local Health Service level and as part of a collaborative (sic) to enhance the research capacity in Queensland Health. The position (Nurse Grade 7, Clinical Nurse Consultant) will provide supervision, training, education, mentoring and assistance to staff and research students for research activities."
b.       "Implement the Australian Tele trial Model (ATM) within MHHS by:
i.To champion the Australian Tele trial Program, implement the ATM, and act as the central point of contact for tele trials within the MHHS to support access to, and participation in, clinical trials for rural, regional and remote patients in Queensland.
ii.To undertake the role of clinical research coordinator, where required, to support conducting clinical trials implemented under the ATM delivering clinical trials to regional, rural, and remote patients".
c.       "The role requires clinical expertise as well as clinical research coordinator expertise and will work autonomously within the MHHS and closely with Queensland RCCC and HIIRO."[5]
[5] The Clinical Nurse Consultant (Grade 7) role description Appendix G of Appellant’s submissions.

Mrs Smith provides the role descriptions of two other roles in her team and states that she is delivering specific services, demonstrating an ongoing need for her role. Ms Smith says that the Respondent has not provided any evidence as to why the Nurse Unit Manager (Grade 7) and Clinical Nurse (Grade 6) in the Research and Teletrial Unit are funded but her role is not.
Ms Smith says that the Respondent has contravened s 27B of the Acts Interpretation Act 1954 (Qld).
No information regarding appeal rights
Ms Smith says that the letter does not contain information about her appeal rights as required by Review of non-permanent employment (Directive 02/23).
Consideration
Ground of appeal – The decision did not contain information about Ms Smith's appeal rights

At the outset, I will dispose of Mrs Smith's ground of appeal that the decision did not provide her with information about her appeal rights. I have reviewed the decision and I note that on page two, it specifically states: I have included additional information about the process and appeal rights at the end of this letter. Attached to the letter is a document titled "Additional Information". That document contains a section headed 'Appeal rights'. I am satisfied that the decision-maker has fulfilled the requirement to provide information about appeal rights.

Ground of appeal – the decision did not contain any reference to previous decisions

With respect to this ground of appeal, Ms Smith's concern here is that the decision does not make specific reference to the previous review of her non-permanent employment undertaken. Ms Smith's submissions refer to s 115(4)(d) of the PS Act, however, it appears that Ms Smith made the request for review pursuant to s 113 and therefore, s 114 is the applicable section. Section 114(5) sets out the mandatory contents of a decision not to offer to convert the employee's employment to a permanent basis.
The requirements of a decision arising from an employee initiated request under s 113 differ from those required for a review of status after two-years continuous employment under s 115 of the PS Act.
Unlike s 115 of the PS Act, which has been cited by Ms Smith, s 114 does not require the decision to make reference to 'each decision previous 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'. Section 114(5) is set out above, but for ease of reference I will set out the relevant requirements of a notice relating to a s 113 request here:
(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.

The notice was not required to refer to the previous review undertaken on 1 March 2024. That the notice did not specifically refer to the previous review does not serve to make the decision not fair or reasonable.
Ground of appeal – the decision did not provide evidence of consideration of substantially the same or similar roles that were considered in the review
Ms Smith submits that the decision letter does not 'recount specific search efforts that were undertaken to ascertain whether there were other roles that may be suitable' to convert her employment.
The decision letter informs Ms Smith of the action undertaken to identify roles substantially the same or similar as the role she has been performing in. Specifically, the decision states that a review of current MHHS vacancies was undertaken. Further, the decision states that there are no permanent available roles at an appropriate level and discipline that are suitable for consideration.
It seems to me that the decision letter informs Ms Smith of the specific search efforts undertaken, that is that a review of current vacancies was undertaken. It appears that the criteria to determine whether another role may be suitable were 'appropriate level' and 'discipline'. I am of the view that this information provides a sufficient explanation as to the search undertaken and the way in which it was determined that there were no other suitable roles available.
I note Ms Smith's submission that the decision-maker erred in only considering permanent roles that are vacant and that a budgeted vacancy is not required in order for conversion to occur. This submission is best addressed below.
Appeal ground – the decision does not provide evidence that there is no continuing need for the role
Section 113 provides that where there is a continuing need for someone to be employed in the same role, or a role that is substantially the same as the employee's role, and that the employee is suitable to perform the role, the employee's employment must be converted unless 'it is not viable or appropriate to do so having regard to the genuine operational requirements of the public sector entity'.
A consideration of s 114(3) requires the decision-maker to work through several steps. The first is to determine whether there is a continuing need for someone to be employed in the role. The second is to determine whether the person is suitable to perform the role. Finally, it is necessary to consider whether any requirements of an industrial instrument are complied with in relation to the decision.
The decision-maker rightly notes that these are the relevant considerations to be addressed and firstly states that Ms Smith is suitable for the role. This satisfies s 114(3)(ii).
Under the heading 'continuing need', the decision-maker provides an explanation about the genuine operational requirements preventing permanent conversion. There is reference to non-recurrent funding and the need for the role to remain temporary. In my view, those reasons for decision do not address the question that needs to be asked in s 114(3)(a)(i). Instead, it skips that consideration and jumps to s 114(4) to discuss the genuine operational requirements of the Mackay Hospital and Health Service.
In her request under s 113(1) of the PS Act, Ms Smith sets out a range of reasons why there is a continuing need for someone to be employed in her role or a role substantially similar. Ms Smith stated:[6]
I believe 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 the Mackay Hospital and Health Service (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.
[6] Appellant's submissions in reply filed in the Industrial Registry on 24 February 2025, letter to Ms Gannon
The decision was provided in response to Ms Smith's request within 10 days of her request for review. It is curious that it did not address Ms Smith's submissions about the continuing need for her role.
Neither the decision, nor the Respondent's submissions in this appeal have properly addressed the question of whether there is a continuing need for someone to perform the role being undertaken by Ms Smith and the specific duties she is undertaking. This is especially important in circumstances where she has been performing the same 'temporary' role for 34-months.
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.
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.
If it is found that there is a continuing need for Mrs Smith to perform the role, or a role substantially the same as the role, and that she is suitable for the role, then at this point, the decision-maker may give consideration to whether genuine operational requirements make it not viable or appropriate for her employment to be converted to a permanent basis.
For reasons I have provided from paragraphs [33] to [51] of this decision, the decision appealed against is not fair and reasonable.
Orders
Accordingly, I make the following orders:
1.The decision appealed against is set aside; and
2.The matter is returned to the decision-maker for reconsideration within 28-days following the publication of this decision.

[2025] QIRC 71

14 March 2025