Novak v State of Queensland (Queensland Health) [2023] QIRC 195 (3 July 2023)

CATCHWORDS:

LEGISLATION AND OTHER INSTRUMENTS:

CASES:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – temporary employment – appeal against conversion decision – consideration of whether the respondent conducted review as required – whether there is a continuing need for appellant to be employed in same role – whether there is a continuing need for appellant to be employed in a role that is substantially the same – consideration of genuine operational requirements – the appeal is allowed

Acts Interpretation Act 1954 (Qld) s 14A

Industrial Relations Act 2016 (Qld) s 451,

s 562B, s 562C, s 567

Public Sector Act 2022 (Qld) s 4, s 81,

s 114, s 115, s 289, s 318

Public Service Act 2008 (Qld) s 3, s 148,

s 149A, s 149B

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

Directive 02/23 Review of non-permanent employment cl 1, cl 4, cl 7, cl 10, cl 13, cl 14

Directive 09/20 Fixed term temporary employment cl 1, cl 4, cl 8, cl 9

Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019

Queensland Health Policy Conversion of Temporary Employees to Permanent Status B52 (QH-POL-119) cl 1

Benson v State of Queensland (Department of Education) [2021] QIRC 152

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

IW v City of Perth [1997] HCA 30; (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

Power v State of Queensland (Department of State Developments, Tourism and Innovation) [2021] QIRC 53

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

[1] Dr James Novak (the Appellant) is currently employed as a Senior Research Fellow (Health Practitioner HP5), Surgical and Perioperative Services at the Royal Brisbane and Women's Hospital (RBWH), Herston Biofabrication Institute (HBI), Metro North Hospital and Health Service (MNHHS), by the State of Queensland (Queensland Health) (the Respondent; the Department).^[1]

[2] The Appellant is engaged on a fixed-term temporary contract, with current end date of 19 May 2024.^[2]

[3] First commencing with MNHHS on 24 May 2021, the Appellant will have worked on consecutive fixed-term temporary arrangements for three years as at the expiry of his current contract - with the process of extending that out further now underway, to a five-year arrangement.^[3]

I am writing to request your assistance in my pursuit of permanent positions at Metro North Hospital and Health Service (MNHHS) as a Health practitioner 5 (Senior Research Fellow). I have been employed on a temporary contract for 2 years, and although I have requested for conversion to permanent (which is meant to occur at two-years), I am yet to receive any clear response to my request. Additionally, I have been asked to renew my contract early and extend my employment for an additional two years beyond my current contract, suggesting there is an ongoing need for my employment.

[5] This is an appeal against the decision not to convert the Appellant's fixed-term temporary employment to permanent.

[6] Section 149B(1) of the Public Service Act 2008 (Qld) (PS Act 2008) (now repealed) provided for the "Review of status after 2 years continuous employment" and "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 department for 2 years or more."

[7] As the Appellant commenced his employment on 24 May 2021, a s 149B^[5] review was due two years later.

[8] On 7 November 2022, five HP5 (Senior Research Fellows, temporary contracts) collectively submitted a letter to the management team of the Herston Biofabrication Institute "outlining their concerns over temporary contracts not being converted to permanent."^[6] As that collective submission was made more than three months before the Appellant's review was required under the PS Act 2008 (now repealed)^[7] this cannot be considered to be a notification of review request made under the Directive.^[8]

[9] The Appellant then set out a detailed chronology of affected colleagues' collective efforts to subsequently engage with management at local level regarding their conversion concerns.^[9]

[10] Between 7 November 2022 and 20 February 2023, the Appellant and his affected colleagues raised the matter of their temporary contracts not being converted to permanent employment. Those endeavours included both email correspondence and in-person meetings. During that period, management variously advised that they were "consulting with the appropriate resources", that "there was no clear pathway for temporary research contracts to convert to permanent" and that it was otherwise "unlikely due to a lack of financial resources and prioritisation of clinical activity rather than research" and finally, that management was "looking at solutions, but it would take time". However the trail went cold just after 20 February 2023, when the Appellant and affected colleagues suggested a further meeting time - and no reply was received.^[10]

[11] The Appellant submitted that "Throughout March 2023, research programs in HBI conducted their 6-month annual reviews. Senior Research Fellows received the same feedback about temp-to-perm conversion - that MNHHS are still looking into it".^[11]

[12] In submissions, the Appellant elaborated that in the most recent 6-month review of the Cranio-Facial program, "it was formally documented in the minutes that budget exists for my contract to be extended 2 years beyond its initial end-date to June 2026. I have been asked to begin the process for extending my contract now."^[12] He later added that "As detailed in my original appeal, I am 2 years into a 3-year contract but am already in the process of a contract extension to June 2026 (5 years) at the request of our management team."^[13]

[13] While neither party specified the precise date in March 2023 that the above review occurred, it is nonetheless clear that management made a determination at that time for the Appellant's employment to continue on a fixed-term temporary contract basis; albeit subject to a further two-year extension.

[14] The Respondent raised no jurisdictional objections at all to the Commission deciding this appeal "pursuant to s 149B of the PS Act".^[14]

[15] The Respondent submitted that the applicable legislation in the relevant period was the PS Act 2008,^[15] Directive 09/20 Fixed term temporary employment (Directive 09/20)^[16] and Queensland Health Policy Conversion of Temporary Employees to Permanent Status B52 (QH-POL-119).^[17]

[16] The Public Sector Act 2022 (PS Act 2022) commenced operation on 1 March 2023. Management decided to extend the Appellant's fixed-term temporary employment by a further two years in that month.

[17] Pursuant to s 289 of the PS Act 2022, the former PS Act 2008, was repealed.

[18] This appeal was filed on 14 April 2023, after the PS Act 2008 was repealed and the PS Act 2022 commenced.

[20] It follows then that this appeal is to be decided under the PS Act 2022, Directive 02/23 Review of non-permanent employment (Directive 02/23) and QH-POL-119.

[21] While the Respondent asserted the decision was made in accordance with the PS Act 2008, Directive 09/20 and QH-POL-119, I have explained that is not the case.

[22] Having determined then to continue the Appellant's employment on a fixed-term temporary basis in March 2023, management was required to provide notice of his appeal rights under the Directive.^[18]

[23] If the Respondent had in fact issued any 'notice' to the Appellant, in the terms required, I would have expected those documents to be attached to its submissions or otherwise at least referred to. That did not occur.

[24] For those reasons, the Respondent's decision was not taken in accordance with the PS Act, Directive and QH-POL-119.

[25] The Respondent's apparent failure to comply with the mandatory requirement contributes to my finding that the decision subject of this appeal was not fair and reasonable.

[26] It appears to me that the Respondent first turned its mind to the mandatory decision criteria only at the point of this appeal being filed.

What decisions can the Commission make?

[28] Sections 562B(2) and 562B(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".

[29] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.^[19]

[30] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.

[31] 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.^[20]

Relevant provisions of the PS Act 2008 (now repealed) and Directive 09/20 (now repealed)

(1) A chief executive may employ a person (a fixed term temporary employee) for a fixed term to perform work of a type ordinarily performed by a public service officer, other than a chief executive or senior executive officer, if employment of a person on tenure is not viable or appropriate, having regard to human resource planning carried out by the chief executive under section 98(1)(d).

(2) Without limiting subsection (1), employment of a person on tenure may not be viable or appropriate if the employment is for any of the following purposes –

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

(3) Also, without limiting subsection (1), employment on tenure may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (2) on a frequent or regular basis.

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

(2) The department's chief executive may offer to convert the person's employment under section 149(3)(b) only if-

(3) If the matters in subsection (2) are satisfied, the department's chief executive must decide to offer to convert the person's employment basis to employment as a general employee on tenure or a public service officer, unless it is not viable or appropriate to do so having regard to the genuine operational requirements of the department.

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):

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.

1.1 The Public Service Act 2008 (PS Act) establishes employment on tenure as the default basis of employment in the Queensland public service, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate. The PS Act also sets out the matters a chief executive must consider when deciding whether to offer to convert the employment of a fixed term temporary employee to employment as a general employee on tenure or a public service officer.

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.

4.4 Sections 148(2) and 148(3) list purposes where employment of a person on tenure may not be viable or appropriate.

(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—

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

(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.

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

(5) Without limiting subsection (3)(b), employment of a person on a permanent basis, or on a temporary basis for a fixed term, may be viable or appropriate if a person is required to be employed for a purpose mentioned in subsection (3)(b) on a regular or systematic basis.

an ongoing requirement to fill gaps in various work rosters, on a regular and systematic basis

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

(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.

(2) The employee's chief executive must make the decision within the required period after—

(a) the end of 2 years after the employee has been continuously employed on a non-permanent basis in the public sector entity; and

(6) If the employee'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 employee's employment to a permanent basis and to continue the employee's employment according to the terms of the employee's existing employment.

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.

[47] 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.

[48] In accordance with the Directions Order issued, the parties filed written submissions.

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

[51] The Appellant submitted that his employment should be converted to permanent because:

[52] The Respondent does not dispute that the Appellant met the merit principle and is otherwise suitable.

[53] However, the Respondent submitted the Appellant's employment should not be converted to permanent because:

Title	Status	Classification	Reason for contract	Start date	End date
Senior Research Fellow	Full time Neurosurgery Research	HP5 (01)	Initial hire	24/05/2021	19/05/2024^[31]
Senior Research Fellow	Full time Neurosurgery Research	HP5 (02)	Contract extension to June 2026 now in progress, further to Minutes of 6-month review	-	June 2026

[55] The Respondent submitted that "The Appellant remains employed with the Health Service as a Senior Research Fellow on a temporary full-time basis."^[32]

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

[57] Section 114(3) of the PS Act 2022^[33] contains the mandatory decision criteria for temporary employment conversions to permanent, where the chief executive considers:

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.^[34]

The employee'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 114 in relation to the employee during the employee's period of continuous employment.^[35]

Is there a continuing need for someone to be employed in the person's role - or a role that is substantially the same as the person's role?

[60] 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.

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

[61] The Appellant submitted that the continuing need for him to be employed in the Senior Research Fellow role is demonstrated by various strategic plans and documents.

[62] The Appellant asserted that MNHHS is committed to conducting research that improves patient outcomes and promotes health equity, as outlined in the MNHHS Research Strategy 2023 – 2027. That document states that MNHHS will: "retain, train and attract a world class research active workforce"; "embed integrated research career pathways across Metro North that promote professional development and career-progression, enabling us to retain and leverage the expertise of a highly skilled research workforce"; "Recruitment and retention strategies that recognise the valuable contributions this workforce makes to clinical care and research must be integrated within professional workforce development structures"; and "Establishing integrated career pathways for this highly skilled workforce will address systemic inequalities regarding professional development and career progression."^[36]

[63] In addition, the Appellant noted that MNHHS's own long-term strategic plan (MN32 #Nextcare) includes research, innovation and knowledge translation as a key pillar with 2032 targets including: integrated research institutes; embedded academics in all clinical services; and 3000 research journal articles published per year.^[37] Similar needs for ongoing research across Queensland Health and MNHHS are expressed in various other strategic plans and documents.^[38]

[64] The Respondent's submissions have not refuted the importance of research to the long-term strategy of Metro North Health.

[65] The Appellant stated that he has contributed to MNHHS's research activities including securing research funding; designing and conducting studies; supervising students; disseminating research findings through peer-reviewed publications and presentations. The Appellant argued that there is a continuing need for him to be employed in the role because there is a continuing need for those functions to be performed.

[66] The Appellant submitted that research has focused on improving patient outcomes and has already enhanced patient care through the provision of patient-matched anatomic models (ARTG listed) and PET/MRI fusion.^[39]

[67] The Respondent's position was that the Appellant's conversion to permanency is not viable or appropriate:

... having regard to the genuine operational requirements of the Health Service. The Appellant's role of a Senior Research Fellow is part of a Project that is in the process of being wound down, which is demonstrated by the reduction of work available. At the conclusion of the Project there will no longer be a continuing need for the Appellant to be engaged in the role.^[40]

[68] However, the Appellant rebutted the Respondent's contentions, emphasising several inaccuracies in such submissions:

... The Respondent stated in my letter that I am part of the Burns Biofabrication Unit – however...I am part of the Neurosurgery department.

The Respondent stated that the project commencement date was August 2018 – however, this is not true. My project and employment commenced in 2021. Therefore, the project summary and further points made by the Respondent, such as "the project is in the process of being wound down" and "the Project did not achieve its desired outcomes not produce a growing research base" are substantially inaccurate and without evidence. If indeed my project is being "wound down" without my knowledge, this is unsettling, and I request clarification.

The Respondent emphasised that each appellant was hired on projects with fixed end dates, on fixed contracts. However, as evidenced by multiple appellants having contract extensions, the "fixed" nature of their employment is not accurate. As detailed in my original appeal, I am 2 years into a 3-year contract but I am already in the process of a contract extension to June 2026 (5 years) at the request of our management team. This also evidences the inaccuracy of the previous point.

As a result of these inaccuracies, I am not confident that the Respondent has considered my individual role at Metro North Health, nor the merit of my application for temporary-to-permanent conversion.^[41]

[69] The Appellant further submitted that "ongoing funding" for the role is evidenced by being asked to "... renew my contract early and extend my employment for an additional two years beyond my current contract, suggesting there is an ongoing need for my employment."^[42] He asserted this to be indicative of the ongoing value of his role to the research activities of MNHHS. I agree with the Appellant's contention that this contract extension has effectively demonstrated the continuing need for him to be employed in the role well beyond the initial intended end date of 19 May 2024 - and until June 2026 at least.

[70] The Respondent denied that there were any extensions provided to the funding for the role since the Appellant was initially appointed. However I agree with the Appellant's submission that the Respondent does appear to have relied upon the different circumstances of another colleague with respect to factors of unit/department, contract end date and project work reduction.

[71] Under the Respondent's own submission, the Appellant commenced with the HHS in May 2021 even though "... funding for the Project was reallocated until the end of the financial year in 2024."^[43] However, the Appellant's initial contract had an expiry date of 19 May 2024 - not 30 June 2024. Or even "14/01/2024" as the Respondent had elsewhere submitted.^[44] While the Appellant's latest contract now concludes in June 2026. So it appears either that MNHHS must have got additional funding extensions after all - or that although funding was provided for 5 years (from 2021 until 2026), the Appellant's first fixed-term temporary contract was for 3 years and so did not reflect that entire period.

[72] As the project is funded until mid-2026^[45] it is clear that the role is continuing until that time at least. That then raises the question of why the Appellant's fixed-term temporary contract had a much earlier end date of either 14 January 2024^[46] or 19 May 2024^[47] - rather than 30 June 2026 - if that is indeed the case.

[73] A further curiosity is that although the Appellant was recruited in May 2021 (after the budget variation for the five-year project was approved in October 2020)^[48] he was only placed on a three-year temporary contract at that time. The expiry date of the Appellant's initial full-time temporary contract does not align with the project end dates nominated by the Respondent in its submission. That is difficult to reconcile then with the Respondent's submission that the Appellant was employed for the purpose of completing a particular project with a known end date.

[74] While the Respondent submitted that there was "no continuing need for the Appellant's current role as the Project had limited funding and a specific end date which has not changed since the position was established ... the Project in itself is not ongoing in nature."^[49] For the reasons explained above, that cannot be true.

[75] In addition, the Respondent also stated that "... funding was not expected to be renewed ... when the Appellant commenced the role."^[50] That does not evince a definitive position that either the project has a known end date - or that funding is unlikely.

[76] I note that the Appellant's fixed-term temporary employment has been extended and that he has been continuously employed for a period of two years. As I found in Benson v State of Queensland (Department of Education),^[51] although employment for any of the purposes outlined in the PS Act^[52] may have constituted a reason for the Respondent to initially employ an employee on a non-permanent basis, I do not consider it reasonable for the Respondent to rely on that indefinitely.

[77] For those reasons, it appears most likely that there will be a continuing need for the Respondent to engage the Appellant in his current role. The real objection to doing so appears to be the matter of how that can be provided for, within budget and funding parameters.

Pathway 2: Is there a continuing need for someone to be employed in a role that is substantially the same as the person's role?

[78] The Appellant submitted there is also a continuing need for him to be employed in a role that is substantially the same. He asserted that:

The skills used by the appellants are highly specialised yet transferable for research positions in a health service at a HP5 level or higher, and are not limited to the specific project each appellant was initially hired to lead. Therefore, the appellants would be suitable for filling substantially similar roles, which we note are advertised externally for new recruitment at both MNH, as well as QLD Health (eg Research Manager, Principal Project Manager).^[53]

The Appellants are disappointed that the Respondent does not value broader application of their skills developed over substantial academic and industry careers as well as their time with the health service. All appellants hold PhDs that evidence expertise in research, and are also accomplished project managers (evidenced by their leadership of the multi-million dollar projects at HBI), are skilled in the submission and upholding of ethically responsible studies within the health system, are capable team-builders evidenced by numerous internal and external collaborations among other transferable skills.^[54]

One appellant (Novak) was merit listed for a similar HP5 Research Manager position (permanent) in Metro North Health in the Clinical Skills Development Service, interviewed in 2023. This evidences that: (i) similar positions have been externally advertised and recently available with the employer, and (ii) the Appellant was deemed suitable for the advertised role (the position was filled by an existing internal employee who had been performing the role on a temporary contract)...

Examples of similar HP5 roles in Metro North include: two permanent HP5 positions held by colleagues in HBI (Research Coordinator and Advanced Biomedical Engineer), most large departments within the RBWH have Research Coordinators / Managers, the Metro North Office of Research team, Rehabilitation Engineering Centre (eg Advanced Rehabilitation Engineer). These are all examples of similar roles within the health service where the Appellants would be qualified and experienced to contribute at the conclusion of their specific projects.

Furthermore, since 2018, the Herston Biofabrication Institute has initiated multiple new projects, and programs which has resulted in the recruitment of the appellants over several years. Since there has been no mention that Metro North Health plans to close HBI at the conclusion of the last appellant's contract, it is feasible that new roles within HBI will continue to occur in which the Appellants could be suitable candidates.^[55]

... considered similar roles with substantially the same capability requirements that the Appellant held, however determined there was not a continuing need for the Appellant to perform a role that is substantially the same based on the highly specialised and unique engineering skills that the Appellant possessed. The Appellant was engaged specifically for the Project which is a unique role and encompassed a particular skill set and there were no other substantially the same roles to convert the Appellant to within the Health Service.^[56]

[80] In Power v State of Queensland (Department of State Developments, Tourism and Innovation),^[57] Industrial Commissioner Dwyer concluded the following:

[36] Further, even while the reference to 'the return of an incumbent' might adequately
address the particulars as to why Ms Power's current role is not ongoing, a broad
reference to 'all potential roles have been considered' is insufficient in my view to
explain the apparent absence of a role substantially the same.

[37] In my view, the decision needed to refer to evidence relied on to support this conclusion.
This would include e.g. details of other roles considered and why some might have been
rejected. It must be sufficient to inform Ms Power why the decision was made.

[81] In Benson v State of Queensland (Department of Education),^[58] I found that a failure to give appropriate weight to this relevant factor rendered the decision in that matter unfair and unreasonable.^[59] In this matter I similarly find the Respondent's failure to adequately address this limb itself contributed to its decision not being fair or reasonable.

[82] I take into consideration the Respondent's submissions in which it stated that although some consideration occurred, it did not return any results. In light of the circumstances, I am not satisfied with that response. At the very least, the Respondent should have expanded on other similar roles that were considered and why those particular roles were rejected - especially where the Appellant has made submissions about roles he alleged are similar within MNHHS.

[83] It is relevant that s 114(3) of the PS Act 2022^[60] requires consideration of the employee's current role, or a role that is substantially the same. The Respondent has stopped short of adequately demonstrating its consideration of the entirety of the mandatory criteria. Although regrettable, inattention to evidencing consideration of the second pathway to conversion is not altogether unusual in these types of appeals.

[84] The fact of this case is that the decision-maker did not define a role that is substantially the same in its submissions. The duty to do so must properly be discharged.

[85] In addition to neglecting the key issue of defining a role that is substantially the same, the Respondent did not demonstrate they had analysed the capability requirements of the role performed by the Appellant. The combination of those failures has resulted in foundationally flawed efforts to identify another role which may be substantially the same.

[86] I have found that there is a continuing need for the Appellant to be employed in his current role. However, in the alternative and for the reasons above, I also find that the refusal to convert the Appellant was unreasonable because fairness and reasonableness requires that appropriate weight be given to the consideration of this limb.

[87] The PS Act 2022 provides that when the other criteria are met, the chief executive must decide to offer 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."^[61]

[88] 'Operational requirements' are not defined in the PS Act 2022, 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.^[62]

[89] 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,^[63] it was held that such remedial materials are:

to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical".^[64]

[90] Even so, that construction must still be reasonable and natural given the particular words of the statute itself. It is not an opportunity to depart from the legislative material. Quite the opposite; it is designed to uncover the most accurate interpretation of that material. What is a 'reasonable' genuine operational requirement should be considered in concert with that principle of statutory interpretation.

[91] Deputy President Merrell considered 'genuine operational requirements' in Morison v State of Queensland (Department of Child Safety, Youth and Women).^[65] His Honour's explanation is also useful here (emphasis added):

[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. In considering the context of s 149C(4A)(a) of the PS Act, the chief executive of a department, under the PS Act, is responsible for, amongst other things:

[40] The phrase 'genuine operational requirements of the department' in s 149(4A)(a) and in cl 6.2(a) of the Directive, construed in context, would at least include whether or not there was an authentic need, having regard to the effective, efficient and appropriate management of the public resources of the department, to appoint an employee, who has been assuming the duties and responsibilities of a higher classification level in the department for the requisite period of time, to '...the position at the higher classification level.'

[92] 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.

[93] 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 the Directive and the review.

[94] The PS Act 2022 establishes employment on a permanent basis as the default basis of employment in the Queensland public sector, unless it is not viable or appropriate.^[66]

[95] Chief executives are required to act in a way that is compatible with the main purpose of the PS Act 2022, including providing for the rights and obligations of public service employees; and promoting equality of employment opportunity in the public service and in other particular agencies in the public sector.^[67]

[96] In my view, a 'reasonable' genuine operational reason is one which is sufficiently substantial as to warrant overcoming the government's significant commitments to limiting non-permanent employment where possible, given the above.

[97] Section 81(3) of the PS Act 2022 indicates 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":

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

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

[98] Section 81(3) of the PS Act 2022 does not prescribe that because an employee is performing work for a purpose stated at paragraph [97] that the employee should therefore be employed on a non-permanent basis. Rather, s 81(3) contemplates a range of purposes which may indicate that employment of a person on a permanent basis may not be viable or appropriate. A reasonable decision-maker ought to first identify whether or not the employee's circumstances fall under one of the listed purposes - and then consider the appropriateness and viability of that employee being made permanent in light of that purpose.

[99] The Respondent submitted the Appellant's employment should not be converted to permanent because he was employed for the purpose of completing a particular project, with a known end date. It stated that the Project "commenced with the recruitment of the HP5 Senior Research Fellow role in February 2020 and the total remaining funding for the Project was reallocated until the end of the financial year in 2024."^[68]

[100] Further, the Respondent submitted that funding for the Project is not expected to be renewed, beyond the end of the financial year in 2024.^[69] It stated that "The Project end date aligns with the funding end date being a period of five years and funding was not expected to be renewed in accordance with sections 148(2)(b) and (c) of the PS Act when the Appellant commenced in the role."^[70]

[101] The Respondent asserted that there is no funding source available to convert the Appellant to permanency and MNHHS is currently in a deficit position. The Respondent stated that there has been limited grant funding generated to assist "self-sustaining of the Projects."^[71] It submitted that it is:

...not viable or appropriate to convert the Appellant on a permanent basis at a time where no funding is available, and the Project did not achieve its desired outcomes nor produce a growing research base.^[72]

[102] In reply, the Appellant noted that "As Senior Research Fellows with significant experience applying for grants, we assert that grant funding rarely covers the salary of recipients and suggest that this issue is separate to the appeal for temporary-to-permanent conversion."^[73] I agree with the Appellant's assessment. The permanent employment of public sector workers is not conditional on one's ability to self-fund their role. The Respondent's assertion that presents a barrier to the Appellant's conversion to permanency is neither fair and reasonable nor consistent with the mandatory decision criteria under the PS Act 2022.

[103] In the Appellant's particular circumstances, the Respondent had also concluded that the conversion of his employment to permanent would "result in actual costs being higher than budgeted costs, resulting in a labour expenditure budget overspend ..."^[74]

[104] The Respondent noted its obligations under the PS Act directing "public service management to managing public resources efficiently, responsibly and in a fully accountable way."^[75]

[105] The Appellant refuted the Respondent's claim that the efficient, effective and sustainable management of the MNHHS would be negatively impacted by his conversion to permanent employment. Rather, he argued that given the ongoing need for research, it is critical to ensure the continuity and stability of research roles such as this through conversion to permanency:

It is known that establishment of career pathways for clinical researchers is a challenge that has led to systemic inequalities that need to be addressed (MN Health Research Strategy). Further, conversion to permanent employment will enable the appellants to do their jobs more effectively ...^[76]

[106] As the continuing need for the research role (or one substantially the same) has been established, it follows that there must also be a corresponding provision for that to occur. The Appellant stated that:

... the decision to terminate each Appellant's employment at the conclusion of their project, after training a person over 3-5 years within the health system, could itself be seen as an irresponsible use of public funding, when the researcher's health service specific experience could be redirected into another project and/or department within the health system. As noted previously, MNH has recently been recruiting substantially similar positions which were advertised externally.^[77]

[107] I find the Appellant's analysis of how the purpose of the PS Act 2022 ought be achieved most persuasive. It is not disputed that the Respondent should be taking measures to promote the effectiveness and efficiency of public sector entities, and to ensure public resources are managed efficiently and their use is accountable.

[108] However, it does not follow that those obligations are best met by failing to retain experienced, skilled and suitable staff. Neither do the Respondent's arguments give appropriate weight to the management and employment principles and purpose of the PS Act.

[109] In my view, it is not fair and reasonable for the Respondent to cherry-pick which of its obligations under the PS Act, Directive and QH-POL-119 it will mind for the purposes of cost cutting - whilst brushing aside its equal responsibilities to safeguard the rights of employees, such as the Appellant.

[110] The Appellant submitted that a pathway has been described by the Director-General of Queensland Health for researchers to be converted as a permanent research role inside the health service rather than against a particular project.

[111] However, the Respondent asserted that the Director-General's commentary on research role conversion pertained to circumstances where funding has been ongoing and renewed year after year, arguing that was not so in the Appellant's case as the funding for a particular project has a defined end date.

[112] The Appellant stated that Mr Drummond outlined a mechanism for managing a central pool of individuals converted to permanent appointments, allowing for suitability assessments and transfer against available permanent roles. Conversion to permanent is emphasised in quotes such as:

I would like to confirm again, if you are in a research role and it is an annual renewal of your temporary contract, you are absolutely entitled to be permanent. And I think there's a real misunderstanding, particularly in this research space, because it's temporary funding, but where that funding has been ongoing and renewed year after year after year. We should be fulfilling our obligations to you and converting you to permanent. You can't be converted permanent against that project, but it can be converted as a permanent research role inside the health service.^[78]

[113] The Appellant asserted that supports the conversion of research roles to permanent, in circumstances where there is temporary funding but that has been ongoing and renewed year after year.

[114] I find the comments attributed to the Director-General to be apposite in this case.

[115] A budgeted vacancy is not required for conversion to permanent employment. Creation of a new permanent position is to be expected in such circumstances. There is no indication that the difficulties faced by the Respondent in this instance would be any different than those posed to most departments in which employees are so converted.

[116] Considering the length of the Appellant's continuous temporary engagements, there is clearly a constant need for an additional employee. In a situation where the need is constant and substantial, I do not accept that permanent conversion of the Appellant will have a negative impact on organisational viability. Rather, it appears from the evidence before me that permanent conversion may, to some extent, negate the need for circumstances like the employ of several more non-permanent employees in the future.

[117] Section 81(4) of the PS Act 2022 provides that "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." The considerable length of time for which the Appellant has been engaged on fixed-term temporary contracts suggests there is a need for another permanent employee and it would be unreasonable for the Respondent to refute the Appellant's desire to convert to permanency on the basis of budget and funding matters, when he has continuously been paid and utilised in the Senior Research Fellow roles.

[118] The issue is not whether it was appropriate to initially employ the Appellant on a fixed-term temporary basis - but whether it is fair and reasonable to continue to do so. Although the nature of project work can be less predictable, in light of both his continuous engagement and the expansion of application of his skills and experience within the department, I cannot accept that the funding and budget matters raised by the Respondent are at all sufficient to prevent his conversion to permanent employment.

[119] I have concluded that the Appellant's role is continuing - and the continual pattern of engaging the Appellant illustrates how the Respondent relies upon the work performed by the Appellant on an ongoing basis. Such continuous pattern of fixed-term temporary contracts persuades me that the Appellant is engaged on a frequent or regular basis.

[120] I am satisfied the Appellant has been employed for a purpose mentioned in s 81(3) of the PS Act 2022 on a frequent or regular basis and am satisfied that the Appellant's permanent employment is viable and appropriate.

[121] On the material before me, I have found that there is a continuing role, being the role the Appellant is currently undertaking, and that there is a continuing need for him to be employed in that role. In the alternative, I have outlined the unreasonableness of the Respondent's consideration of a role that is substantially the same.

[122] In arriving at this conclusion, I am conscious that the PS Act 2022 and Directive are purposed with establishing employment on tenure as the default basis of employment in the Queensland public service. That purpose is furthered by the undertaking of careful reviews of factual circumstances in the context of the relevant criteria prescribed in legislation. Those efforts allow for the achievement of the purpose of the Directive.

[123] For all the reasons outlined above, I find it was not reasonably open to the decision-maker to determine that the operational requirements submitted did justify a conversion refusal. I therefore conclude that the decision was not fair and reasonable in the circumstances.

[124] The Respondent confirmed that the Appellant met the merit principle.^[79] There is no dispute that the Appellant is suitable to perform the role.

[125] The Appellant submitted there are requirements of an industrial instrument that ought to have been complied with in relation to the decision.

[126] The Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 (HPDO3) states that:

The parties are committed to maximising permanent employment opportunities for long term temporary employees. The parties agree to implement the conversion of temporary employees consistent with legislative provisions and whole-of-government policy ...^[80]

... job security for employees assists in ensuring workforce stability, cohesion and motivation and hence is central to achieving the objectives of this Agreement HPDO ...^[82]

[127] Further, the Appellant asserted that he has been employed on consecutive contracts, notwithstanding the funding duration of the five-year project he was initially employed to undertake is longer. However, HPDO3 states that:

Where employees are engaged on a temporary basis, contracts of employment should reflect the actual duration of the engagement ...^[83]

[128] For these reasons, the industrial instrument provisions are of assistance to the Appellant's claim for his employment status to be converted to permanent.

[129] Section 115(3) of the PS Act 2022 requires the decision-maker to have regard to the reasons for each decision previously made, or taken to have been made, in relation to the employee during the employee's period of continuous employment.

[130] In the chronology provided in the Appellant's submissions, he recounted that management had advised verbally that his conversion to permanent employment was:

... unlikely due a lack of financial resources and prioritisation of clinical activities rather than research ...^[84]

... MNH are still looking into it, budgets are tight, and the temp-to-perm pathway typically only applies to clinical staff ...^[85]

... The Project was funded for a specific duration with an end date being the financial year in 2024 and the funding was not expected to be renewed ...

The Appellant has been aware of the finite budget and fixed schedule relating to the project...

... research roles are entitled to be converted to a permanent basis in accordance with the PS Act. However ... there is distinction between Mr Shaun Drummond's advice where funding has been ongoing and renewed year after year and funding for a particular project with a defined project and funding end date, which falls under the Appellant's circumstances.^[86]

[132] The Respondent's earlier representations to the Appellant that his conversion to permanency was unlikely because of the "prioritisation of clinical activities rather than research" and "the temp-to-perm pathway typically only applies to clinical staff" were not correct. The remaining matters of "funding" and "project end date" have been considered and rejected, for the reasons I have explained above.

[133] I find the decision to maintain the Appellant on a fixed-term temporary basis was not fair and reasonable.

[134] The process was not conducted in accordance with either the PS Act, Directive or QH-POL-119. The Appellant was not provided with a notice advising of his appeal rights and other such requirements under cl 13 of Directive 02/23.

[135] I have found that there is a continuing need for someone to be employed in the Appellant's role. In the alternative, I have also found there is a continuing need for the Appellant to be employed in a role that is substantially the same.

[136] The Respondent has not disputed that the Appellant is suitable for appointment having regard to the merit principle.

[137] Relevant provisions of the industrial instrument pertaining to the Appellant's employment also supports his claim for permanent employment in such circumstances.

[138] The Respondent has not evidenced any genuine operational requirement that reasonably prevents conversion of the Appellant to permanent employment.

^[1] Appeal Notice filed 14 April 2023, 1.
^[2] Ibid 2; However, the Respondent's submissions filed 8 May 2023 state the Appellant's current contract end date is 14 January 2024. Whichever is correct, that now appears to be superseded given the further 2-year contract extension now underway.
^[3] Appellant's submissions filed 15 May 2023, 1.
^[4] Appeal Notice filed 14 April 2023, 4.
^[5] Public Service Act 2008 (Qld).
^[6] Appeal Notice filed 14 April 2023, 7.
^[7] Public Service Act 2008 (Qld) s 149B; Public Sector Act 2022 (Qld) s 115.
^[8] Directive 09/20 Fixed term temporary employment cl 9; Directive 02/23 Review of non-permanent employment cl 7.
^[9] Appeal Notice filed 14 April 2023, 7.
^[10] Ibid.
^[11] Appeal Notice filed 14 April 2023, 8.
^[12] Appellant's submissions filed 26 April 2023, 1.
^[13] Appellant's submissions filed 15 May 2023, 1.
^[14] Respondent's submissions filed 8 May 2023, 1.
^[15] I note this act has since been repealed and replaced with the Public Sector Act 2022 (Qld).
^[16] Directive 09/20 Fixed term temporary employment has since been superseded by Directive 02/23 Review of non-permanent employment.
^[17] Respondent's submissions filed 8 May 2023, 1 [2]-[4].
^[18] Directive 02/23 Review of non-permanent employment cls 13, 14.
^[19] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016 (Qld) ss 562B(2), 567(1).
^[20] 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(3).
^[21] Katae v State of Queensland & Anor [2018] QSC 225, [26].
^[22] Appeal Notice filed 14 April 2023, 4.
^[23] Respondent's submissions filed 8 May 2023, 3 [18].
^[24] Ibid 4 [21].
^[25] Ibid 5 [24].
^[26] Ibid 3 [17].
^[27] Ibid 5 [24].
^[28] Ibid 4 [22].
^[29] Ibid 4 [23].
^[30] Appellant's submissions filed 26 April 2023, 1; Note that the Respondent's submissions contain a different contract end date of "14/01/24".
^[31] Appellant's submissions filed 26 April 2023, 1; Respondent's submissions filed 8 May 2023, 2 [6] instead stated the contract end date was "14/01/2024".
^[32] Respondent's submissions filed 8 May 2023, 2 [7].
^[33] This is similar to Public Service Act 2008 (Qld) s 149A(2).
^[34] This is similar to Public Service Act 2008 (Qld) s 149A(3).
^[35] This is similar to Public Service Act 2008 (Qld) s 149B(5)(b).
^[36] Appellant's submissions filed 26 April 2023, 4.
^[37] Ibid 3.
^[38] Including My health, Queensland's future: Advancing health 2026, Metro North Health Strategic Plan 2020 - 2024, MN Health Service Strategy 2021 - 2026, and Queensland Advancing Health Research 2026; Appellant's submissions filed 26 April 2023, 4.
^[39] Appellant's submissions filed 26 April 2023, 3.
^[40] Respondent's submissions filed 8 May 2023, 4.
^[41] Appellant's submissions filed 15 May 2023, 1.
^[42] Appeal Notice filed 14 April 2023, 4.
^[43] Respondent's submissions filed 8 May 2023, 2 [6].
^[44] Ibid.
^[45] Or until the end of the financial year in 2024 – whichever of those two dates nominated by the Respondent is correct.
^[46] Respondent's submissions filed 8 May 2023, 2 [6].
^[47] Appellant's submissions filed 26 April 2023, 1.
^[48] Respondent's submissions filed 8 May 2023, 2 [11].
^[49] Ibid 3 [18].
^[50] Respondent's submissions filed 8 May 2023, 3 [17].
^[51] [2021] QIRC 152, 25 [120].
^[52] As currently reflected in the Public Sector Act 2022 (Qld) s 81(3).
^[53] Appellant's submissions filed 26 April 2023, 3.
^[54] Appellant's reply submissions filed 15 May 2023, 2.
^[55] Ibid 2-3.
^[56] Respondent's submissions filed 8 May 2023, 4.
^[57] [2021] QIRC 53.
^[58] [2021] QIRC 152.
^[59] Ibid [136].
^[60] Similar to the Public Service Act 2008 (Qld) s 149A(2).
^[61] Public Sector Act 2022 (Qld) ss 114(4), 115(3)(a).
^[62] Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269.
^[63] [1997] HCA 30; (1997) 191 CLR 1.
^[64] Ibid 12.
^[65] [2020] QIRC 203.
^[66] Public Sector Act 2022 (Qld) s 81.
^[67] Appellant's submissions filed 26 April 2023, 2.
^[68] Respondent's submissions filed 8 May 2023, 2.
^[69] Ibid 5.
^[70] Ibid 3.
^[71] Ibid 4.
^[72] Ibid.
^[73] Appellant's reply submissions filed 15 May 2023, 3.
^[74] Respondent's submissions filed 8 May 2023, 4.
^[75] Ibid.
^[76] Appellant's submissions filed 26 April 2023, 4.
^[77] Appellant's reply submissions filed 15 May 2023, 3.
^[78] Appeal Notice filed 14 April 2023, 6; Appellant's submissions filed 26 April 2023, 5.
^[79] Respondent's submissions filed 8 May 2023, 3.
^[80] Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No. 3) 2019 cl 96.1.
^[81] Ibid cl 95.1.
^[82] Ibid cl 94.2.
^[83] Ibid cl 95.2.
^[84] Appellant's submissions filed 26 April 2023, 5.
^[85] Ibid.
^[86] Respondent's submissions filed 8 May 2023, 5.

CITATION: PARTIES:	Novak v State of Queensland (Queensland Health) [2023] QIRC 195 Novak, James (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2023/73
PROCEEDING:	Public Service Appeal – Conversion Decision
DELIVERED ON:	3 July 2023
MEMBER: HEARD AT:	McLennan IC On the papers

Queensland Industrial Relations Commission

Novak v State of Queensland (Queensland Health) [2023] QIRC 195 (3 July 2023)