Part 3 of 3 - Key employment framework of Queensland’s Public Sector reforms

Background

Part 1 of 3

In a alert titled Key employment framework of Queensland’s Public Sector reforms - Part 1 of 3  Partner, Andrew Tobin outlined key new legislative changes to the Public Service Act 2008 (Qld) (PS Act) and the Industrial Relations Act 2016 (Qld) (IR Act) relating to positive performance management, discipline, suspension, workplace investigations and appointment to a higher classification.

Part 2 of 3

In a second alert titled Key employment framework of Queensland’s Public Sector reforms - Part 2 of 3Andrew Tobin outlined key new legislative changes to the PS Act and the IR Act relating to appeals, independent medical examinations and individual employee grievances. 

In this third and final alert, we address:

• recruitment and selection;
• fixed-term temporary employment; and 
• casual employment. 

We also provide some food for thought as to how agencies can best prepare and respond to the increased complexities and challenges ahead in the management of their most important resource, its people.

Recruitment and selection

Chapter 5, part 5 ‘General and Temporary Employees’ PS Act was repealed and a new part 5 introduced ‘General, fixed-term temporary and casual employees’. In addition to terminology change (from ‘temporary employee’ to ‘fixed-term temporary employee’) there were substantive changes, which will be outlined in the upcoming discussions on fixed-term temporary employees and casual employees. 

Section 29 of the PS Act outlines that the CCE may make a directive on how selection for an appointment or secondment is carried out under the merit principle. 

The Recruitment and selection directive has been updated.

 When does it start?

• It applies from the commencement date of this directive, namely 25 September 2020.
• The superseded directive (15/13) applies where an employee vacancy has been filled prior to 25 September, such that it may be filled for a further period of up to six months without the vacancy being advertised.

Who does it apply to?

• All public service employees as defined in section 9 PS Act, including public service officers (which includes chief executives (CE) and senior executives), general employees, fixed-term temporary employees and casuals. 

Salient points of the directive

• Establishes the new proposition that employment on tenure is the default basis for public service employment, excluding non-industrial instrument employees, and sets out the circumstances where employment on tenure is not viable or appropriate.
• Outlines the new Queensland Government commitment to employment security and maximising permanent employment of existing employees.
• Changes to vacancy advertisement and exemptions from advertising: vacancies are not required to be advertised if they are to be filled for a period up to six months (reduced from 12 months); appointments ongoing for up to 12 months also need not be advertised where it had been expected that the original appointment would not exceed six months.
• A new part added to merit assessment and decisions - in an effort to ‘promote integrity in recruitment’, selection panel documentation must include, from each panel member and the decision maker, a statement that identifies:
  • any actual, potential or reasonably perceived conflicts of interest between the panel member or decision maker and the applicants for the role; or
  • the absence of a conflict of interest as per above.
• Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

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Fixed-term temporary employment

The new part 5 PS Act made changes that impact significantly on temporary and casual employees:

1. New section 148 PS Act ‘Employment of fixed-term temporary employees’ now provides that such employees may only be employed on a temporary basis where their employment on tenure is ‘not viable or appropriate’. Section 148 (2) outlines the conditions where this may not be viable or appropriate namely:
   • to fill a temporary vacancy because a person is absent for a known period e.g. approved leave (including parental leave), a secondment;
   • to perform work for a particular project or purpose that has a known end date e.g. employment for a set period as part of a training program or placement program;
   • to fill a position for which funding is unlikely or unknown e.g. employment relating to performing work for which funding is subject to change or is not expected to be renewed;
   • to fill a short-term vacancy before a person is appointed to tenure;
   • to perform work necessary to meet an unexpected short-term increase in workload e.g. an unexpected increase in workload for disaster management and recovery. 
   • Previously, section 148 provided that a chief executive may employ someone on a temporary basis to perform the work of a public service officer. 
2. New section 149 provides that fixed-term temporary employees can ask their department’s chief executive to review their status and convert them to employment on a permanent basis, after only 12 months in the same department (Note, does not say in the same role).
   • Previously, section 149 provided that a temporary employee could only be converted to employment on tenure after two years of continuous employment in the same role. 
3. New section 149A sets out how the chief executive is to decide a request under section 149. New section 195(1)(i) provides that decisions under section 149 not to convert fixed-term temporary and casual employees to general employees or permanent employees are not appealable. 
4. New section 149B provides that the chief executive must review the employment status of fixed-term temporary and casual employees who have been continuously employed in the same department for two years (Note, does not say in the same role), to determine whether they should be converted to a general employee on tenure or a public service officer.  
5. New section 149B(7A) provides that, for working out how long a person has been continuously employed (whether as a temporary or casual employee), the following are to be included:
   • all periods of authorised leave; and
   • other absences of up to 12 weeks in the two-year period prior to the two-year review.
6. New section 194(1)(e)(ii) provides that decisions under section 149B not to convert fixed-term temporary employees or casuals are appealable.

The Fixed-term temporary employment directive has been significantly updated.  

When does it start?

• It applies to conversion reviews from the commencement date of the directive, 25 September 2020.
• The superseded directive applies where conversion reviews commenced before 25 September 2020.

Note, however transitional arrangements:

• Section 293 sets out transitional arrangements for existing temporary or casual employees who may now be eligible to request a 12-month conversion review under section 149(3).
• Section 294A sets out the transitional arrangements for existing temporary or casual employees who are eligible for review of their status after two years continuous employment under section 149B.

Who does it apply to?

• Public service employees who are employed on a full-time or part-time fixed-term temporary basis under section 147(2)(a) or section 148 PS Act, but not public service employees currently employed on a casual basis under section 147 or 148A of PS Act who should refer to the casual employment directive. 

Salient points of the directive

• Provides the circumstances in which an employee may appeal against a decision on the hours of work they are offered if a decision is made to convert their employment (as per section 149B (8A) PS Act).
• Sets out the performance management requirements including the application of positive performance management principles to employees engaged at a minimum for a period of three months.
• Elaborates on the amendments to sections 149, 149A and 149B PS Act.
• Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

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Casual employment

The new part 5 PS Act makes changes that impact significantly on temporary and casual employees:

1. New section 148A PS Act ‘employment of casual employees’ now provides that such employees may only be employed on a casual basis where their employment on tenure or as a fixed-term temporary employee is ‘not viable or appropriate’.
2. New changes relating to the right of casual employees to request conversion to permanent employment and their rights to appeal such decisions have been addressed in the previous section.

The Casual employment directive has been significantly updated.

When does it start?

• It applies to conversion reviews from the commencement date of the directive, 25 September 2020.
• The superseded directive (1/17) applies where conversion reviews commenced before 25 September 2020.

Note, however transitional arrangements:

• Section 293 sets out transitional arrangements for temporary or casual employees who may now be eligible to request a 12-month conversion review under section 149(3).
• Section 294A sets out the transitional arrangements for temporary or casual employees who are eligible for review of their status after two years continuous employment under section 149B.

Who does it apply to?

• Public service employees who are employed on a casual basis under section 147(2)(b) or section 148A PS Act, but not public service employees currently employed on a fixed-term temporary basis under section 147 or 148A of PS Act who should refer to the fixed-term temporary employment directive. 

Salient points of the directive

• As addressed in previous section.
• Provides parameters for use of casual employment, including examples of circumstances where casual employment is appropriate.
• Employee can request a conversion review after 12 months of continuous casual employment on a regular and systematic basis or a combination of casual and fixed-term temporary employment.
• CE of agency required to conduct a mandatory conversion review after two years of continuous employment, and then annually if the employee remains continuously employed:
  • Section 149B(7A) sets out the matters to be considered when working out how long the employee has been continuously employed in the agency.
  • Under section 149B(3) the CE must decide within 28 days whether to offer to convert the employment as a general employee on tenure or a public service officer or to continue according to the terms of the existing employment.
  • When deciding hours of work to be offered to the converting employee, unless in exceptional circumstances, the CE should offer hours of work no less than the greater of either:
    • the hours worked by the employee in the week immediately before the CE’s decision, or
    • the average hours per week worked by the employee over the last two years.
• In considering conversion, the CE must consider the criteria in section 149A(2) as to whether to offer permanent employment, including:
  • whether there is a continuing need for the employee to be employed in the role, or a role that is substantially the same; and
  • the merit of the casual employee for the role having regard to the merit principle in section 27 of the PS Act.
• Conversion decisions are to be made within 28 days, whether following a conversion request or upon review of the employment status after two years. Sections 149A(5) and 149B(7) provide for a deemed decision not to convert if not made within that timeframe.
• New appeal rights at two-year review and regards hours of work offered for conversion to permanent employment:
  • A casual employee eligible for review under section 149B has a right to appeal provided for in section 194(1).
  • A casual employee does not have a right of appeal in response to an application made under section 149.
  • A casual employee may appeal an offer for conversion under section 149B(3)(b) in circumstances where hours of work offered are less than the hours required to be offered.
• Requires decisions to be made in a way compatible with human rights under the Human Rights Act 2019.

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Key takeaways

We hope the series of publications have provided you with a better understanding of the ways in which the legislative changes to the PS Act, supported by the new and amended directives, have significantly amended the public service employment framework. 

The changes represent a significant shift in favour of public sector employees in terms of job security and performance management processes. Having been introduced during a time of significant political and economic uncertainty, public sector agencies will need to become conversant with the changes and focus on timely implementation. The complexities and nuances of both the legislative changes and the directives carry new and increased compliance risks. 

Our Workplace and Employment team can help with advice and assistance in developing and implementing best practice employment strategies that support and comply with the new arrangements. 

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