Review of non-permanent employment (Directive 02/23)

1. Purpose

1. The Public Sector Act 2022 (Act) establishes employment on a permanent basis is the default basis of employment in the Queensland public sector.
2. This directive supports and supplements the provisions of the Act with respect to the review of non-permanent employment.
3. This directive sets out procedures for reviews and requirements for decisions in the context of reviewing a non-permanent employee’s employment status.

2. Authorising provisions

2. Sections 114, 115, 116 and 222 of the Act.

3. Application

3. This directive applies to:
   1. public sector employees as provided for in section 112(1) of the Act
   2. public sector entities as provided for in section 8 of the Act
   3. chief executives of public sector entities as provided for in sections 16 and 17 of the Act, in their capacity as the chief executive of a public sector entity or of public sector employees.
4. This directive does not apply to the types of public sector employees provided for in section 112(2) of the Act.
5. Any requirement to advertise a role in a directive dealing with recruitment and selection does not apply to the conversion of an employee from non-permanent employment to permanent employment under this directive.
6. Section 229 of the Act outlines the relationship between a directive and an industrial instrument, including where an industrial instrument will prevail over a directive to the extent of any inconsistency.
7. Commission Chief Executive (CCE) Directive 09/20: Fixed term temporary employment and CCE Directive 08/20: Casual employment are repealed and superseded by this directive.

4. Principles

4. Chief executives are responsible for making decisions on review of non-permanent employment, under chapter 3, part 9, division 1 of the Act.
5. 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.
6. 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.
7. 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.
8. Under the Human Rights Act 2019, decision makers have an obligation to:
   1. act and make decisions in a way that is compatible with human rights
   2. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
9. Under chapter 1, part 3 of the Act reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. Under section 21, the chief executive of a reframing entity is responsible for ensuring the entity fulfils this role. Chief executives must consider these responsibilities when applying and making decisions under the Act and Commissioner directives.
10. Under chapters 2 and 3 of the Act chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
11. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.

5. Interpretation of directions

5. The Act sets out employee entitlements and chief executive responsibilities under chapter 3, part 9, division 1.
6. The Appendix identifies and summarises the relevant sections of the Act, to assist public sector employees and decision makers in understanding the legislative framework.
7. 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.
8. These directions:
   1. provide for the meaning of suitable
   2. 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)
   3. 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)
   4. establish procedural requirements for conducting a review and making a decision under sections 114, 115, and 116 of the Act
   5. should be read in conjunction with the relevant section/s of the Act.
9. The requirements set out in these directions are binding and must be followed.

6. Employee initiated request for review of non-permanent employment

6. A request made under section 113(1) of the Act must be made to the chief executive in writing unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
7. Where a reasonable adjustment is required, the employee must make it clear in the request that they are making the request under these provisions.
8. An entity must set out information on its intranet, or in another way that is accessible to employees, about how to request a review under section 113(1) of the Act.

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

7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. The notification must be in writing and include:
    1. the name and contact details of the entity contact for the review
    2. the date by which the decision must be made
    3. that the employee or their representative may choose to provide a written submission for consideration during the review process
    4. 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
    5. information about any relevant appeal right and timeframe for appeal.

8. Additional reviews of non-permanent employment

8. A request made under section 116 of the Act must be made to the chief executive in writing unless circumstances exist where an employee requires reasonable adjustments to make the request in another way.
9. Where a reasonable adjustment is required, the employee must make it clear in the request that they are making the request under these provisions.
10. An entity must set out information on its intranet, or in another way that is accessible to employees, about how to request a review under section 116 of the Act.
11. The additional request rights provided for in section 116 of the Act are in addition to, and separate from, the request rights and employer obligations provided for in sections 113 and 115 of the Act. Accordingly, a request made under section 116 of the Act does not affect when an eligible public sector employee may make a request under section 113 of the Act or when the chief executive must undertake a review under section 115 of the Act.
12. The chief executive must notify the employee when they start a review of the employee’s employment status under section 117 of the Act.
13. The notification must be in writing and include:
    1. the name and contact details of the entity contact for the review
    2. the date by which the decision must be made
    3. that the employee or their representative may choose to provide a written submission for consideration during the review process
    4. 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
    5. information about any relevant appeal right and timeframe for appeal.
14. A review conducted under section 117 of the Act is separate to, and does not affect when an eligible public sector employee may make a request under section 113 of the Act, or when a chief executive must conduct a review under section 115 of the Act.

9. Decision-making

9. When making a decision in consideration of the relevant decision-making criteria provided for under sections 114, 115, 116 or 117 of the Act, a chief executive is responsible for determining the genuine operational requirements of the public sector entity.

10. Meaning of suitable

10. A public sector employee is to be considered suitable to perform the role where:
    1. the employee has provided evidence of possessing any relevant mandatory qualification/s (as reflected in the role description), and
    2. the employee meets any relevant mandatory condition/s of the role (as reflected in the role description), and
    3. the employee is not subject to any unresolved and documented conduct or performance matters that have been put to the employee in writing and, where required, managed in accordance with a relevant directive, such as the directives relating to positive performance management or discipline.

11. Deciding the hours of work to be offered when a decision is made to offer to convert an employee’s employment to a permanent basis

11. Unless there are exceptional circumstances, when deciding the hours of work to be offered when a decision is made to offer to convert an employee’s employment to a permanent basis under chapter 3, part 9, division 1 of the Act, the chief executive should offer hours of work no less than the greater of the following amounts:
    1. the hours worked by the employee in the continuing role, or role that is substantially the same, in the employee’s work cycle or rostering period, whichever is applicable, immediately before the chief executive’s decision
    2. the average hours per week worked by the employee in the continuing role or role that is substantially the same, over the last two years.
12. In making a decision under clause 11.1, a chief executive cannot offer hours that would unreasonably disadvantage the employee in the circumstance (for example, where an employee is ordinarily a full-time employee, however worked part-time hours during the eligibility period subsequent to returning to work from parental leave).
13. Nothing in this clause prevents a chief executive from offering above the hours worked by the employee under either 11.1(a) or 11.1(b).

12. Obligations when a decision is made to offer to convert an employee’s employment to a permanent basis

12. Where a chief executive decides to offer to convert an employee’s employment to a permanent basis, they must provide written notice of the decision.
13. The written notice provided for in clause 12.1 must include:
    1. the terms and conditions of the offer to convert to employment on a permanent basis (e.g. full-time or part-time, days and hours of work, pay, location of employment, and any changes to entitlements or conditions)
    2. where the employee is offered part-time employment on a permanent basis, an explanation of the days and hours of work being offered.
14. The chief executive cannot convert a public sector employee to employment on a permanent basis unless the employee accepts the terms and conditions of the offer of employment.

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. Any notice provided to the employee must comply with section 27B of the Acts Interpretation Act 1954 to:
    1. set out the findings on material questions of fact, and
    2. refer to the evidence or other material on which those findings were based.
14. Any notice provided to the employee must include information about any relevant appeal rights available to the employee.
15. 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.

14. Deemed decisions

14. A deemed decision refers to circumstances where a chief executive does not make a decision in the relevant timeframe provided for under the Act, and consequently, the chief executive is taken to have decided not to offer to convert the employee’s employment to a permanent basis, and to continue to the employee’s employment according to the terms of the employee’s existing employment.
15. A written notice is not required to be prepared to support a deemed decision.
16. However, within 14 days of a deemed decision occurring, a chief executive must inform the employee in writing of:
    1. the employee’s right to make an additional request for employment on a permanent basis under section 116 of the Act, if the deemed decision occurred under section 114(7) or 115(6) of the Act, and
    2. any relevant appeal right available to the employee.
17. Chief executives are expected to undertake each review as required by the Act and must not make an intentional decision to rely on a deemed decision to determine a review outcome.

15. Appeal rights

15. In accordance with section 115(9)(b) of the Act, a public sector employee may appeal an offer made under section 115(1)(b) to convert the employee’s employment to a permanent basis in the circumstances where the hours of work offered unreasonably disadvantage the employee in the circumstances.
16. A public sector employee may be able to lodge an appeal with the Queensland Industrial Relations Commission in relation to a decision on review of their non-permanent employment, as provided for under chapter 3, part 10 of the Act.

16. Reporting

16. Each public sector entity must, upon request, give the Commissioner a report about the number of requests and decisions made under sections 113, 114, 115, 116 and 117 of the Act.
17. Each public sector entity must, upon request, give the Commissioner a report about the number of deemed decisions occurring by operation of sections 114(7), 115(6), 116(6) and 117(5) of the Act.
18. Public sector entities must record, communicate and store requests and decisions made under sections 113, 114, 115, 116 and 117 of the Act in accordance with any applicable legislative obligations, in addition to any obligations provided for under the Act.

17. Transitional arrangements

17. Section 317 of the Act sets out the transitional arrangements for persons who asked a chief executive to review their employment status under section 149 of the repealed Act.
18. Section 318 of the Act sets out the transitional arrangements for reviews commenced under section 149B of the repealed Act.

CCE directive means a directive issued by the Commission Chief Executive under the repealed Public Service Act 2008.

Commissioner has the meaning provided for under section 212 of the Act.

Mandatory qualification/s has the meaning provided for in the directive relating to Recruitment and selection.

Mandatory condition/s has the meaning provided for in the directive relating to Recruitment and selection.

Non-permanent employment means employment on a non-permanent basis, as provided for under schedule 2 of the Act.

Permanent basis has the meaning provided for under schedule 2 of the Act.

Reframing entity has the meaning provided for under section 20 of the Act.

Repealed Act means the repealed Public Service Act 2008.

Summary of PS Act framework

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

Employee initiated request for review of non-permanent employment

• A public sector employee may ask their chief executive to decide whether to offer to convert the employee’s employment to a permanent basis if they meet the eligibility requirements set out in section 113(1) of the Act.
• An eligible public sector employee can make a request under section 113(1) in the circumstances provided for under section 113(2) of the Act.
• For working out how long the employee has been continuously employed in the public sector entity, refer to section 113(3) of the Act.

Employer obligation to undertake a review of non-permanent employment

• An employee’s chief executive must decide to either continue the employee’s employment according to the terms of the employee’s existing employment or offer to convert the employee’s employment to a permanent basis in the circumstances provided for in sections 115(1) and 115(2) of the Act.
• For working out how long the employee has been continuously employed in the public sector entity, refer to section 115(7) of the Act.

Additional reviews of non-permanent employment

• There are two circumstances where a public sector employee may make an additional request for the employee’s chief executive to decide whether to offer to convert the employee’s employment to a permanent basis, provided for in section 116 of the Act, as summarised in the below table:

• The number of additional requests an employee can make under section 116 of the PS Act is provided for in section 116(7) of the Act.
• The circumstances where a chief executive has discretion to conduct an additional employer-initiated review are provided for in section 117 of the Act.

Decision-making

• Where a chief executive is required to make a decision under chapter 3, part 9, division 1, they must make the decision in accordance with the relevant requirements set out in the Act, as summarised below:

Meaning of suitable

• The meaning of ‘suitable’ must be provided for in the directive, as required under section 114(9) of the Act.

Deciding the hours of work to be offered when a decision is made to offer to convert an employee’s employment to a permanent basis

• The matters a chief executive must consider in deciding the hours of work to be offered in converting a person’s employment under section 115(1)(b) must be provided for in the directive, as required under section 115(9) of the Act.

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

• Where a chief executive decides not to offer to convert an employee’s employment to a permanent basis under chapter 3, part 9, division 1, they must give the employee a written notice which complies with requirements of the PS Act, as summarised below:

Deemed decisions

• A deemed decision occurs where a chief executive does not make a decision in a timeframe required under chapter 3, Part 9, Division 1 of the Act, as summarised below:

Appeal rights

• The definition of conversion decision in relation to appeal rights is provided for in section 129 of the Act.
• Appeals may be made against a conversion decision as provided for in section 131 of the Act.
• Who may appeal against a conversion decision is provided for in section 133(a) of the Act, summarised below in relation to reviews of non-permanent employment:

• A person can not appeal against a decision under 114 not to convert the employment of a public sector employee to a permanent basis, as provided for in section 132(1)(j) of the Act.