Transport and Main Roads Industrial Relations Act 2016 - Public Service Appeals - Casual / Permanent Conversion Transport and Main Roads Michael Moy Partner March 2017

Overview Department level issues Employee issues New bargaining regime (bargaining awards, scope orders, PABO process, disputes) Directives (casual/temp conversion) Expansion of public service appeals Employee issues Anti-bullying Adverse action (general protections) Mutual duty of trust and confidence Discrimination QES changes (DVO leave, other leave, request flexible work arrangements)

Public Service Appeals

Appeals prior to 1 March 2017 A decision to take, or not take, action under a directive Aggrieved employee if has reasonably used department’s complaint process A decision to discipline (after decision on disciplinary action) a person (other than by termination of employment), including the action taken in disciplining the person a former PS employee Promotion decision – PS officer or tenured PS employee Transfer decision – PS officer A decision that a temporary general employee’s employment carry on as temporary

Appeals prior to 1 March 2017 Appeals could not be made under the Public Service Act 2008 against a decision of the Governor or of a Minister a decision about superannuation benefits or workers’ compensation a decision about probation (or to terminate a PS officer on probation) a decision about the classification level of employment a decision to promote, transfer, redeploy or second a person as a chief executive, senior executive or senior officer a non–appealable appointment not a promotion remuneration > AO8 role exempt from advertising entry-level role

Appeals prior to 1 March 2017 Appeals could not be made under the Public Service Act 2008 against Policy, strategy, nature, scope, resourcing or the direction of the public service or a department A promotion decision if: the public service officer had been redeployed within 1 year before the promotion and the promotion level is not higher than the officer’s classification level immediately before the redeployment A decision if parties would include the PSC, PSC Chief Exec or PSC staff member or it is a matter already heard by the IRC.

New Public Service Appeal rights post 1 March 2017 Casual employment decision - a decision that a casual employee’s employment continues as casual Fair treatment decision - a decision that a public service employee believes is unfair and unreasonable If an appeal can be brought other than as ‘fair treatment appeal’, it must not be brought as a fair treatment appeal Nothing taken out of Public Service Act, only new insertions. Casual employment decision: appeal can be made by a casual employee or a casual general employee who is the subject of the decision. Fair treatment decision: a public service employee who is aggrieved by the decision. general appeal right that is subject to exceptions under s 195(3A) – at next slide. Generally, the employee is to comply with the agency’s complaints management process prior to lodging an appeal. However, an IRC member has discretion to hear an appeal where it woould be unreasonable to comply with the requirement. Correctly categorised: New s194(2) makes it clear that if an appeal can be made under s194 (1) other than for unfair and unreasonable treatment, the appeal cannot be made under unfair and unreasonable treatment. Who can appeal: As per old provisions under the Act, if a person is eligible to appeal by reason of section 55 of the PSA they may also lodge a public service appeal. Appeals officers have had their titled changed to IRC Members.

New Public Service Appeal rights post 1 March 2017 Cannot appeal fair treatment decisions made under PS Act re mental or physical incapacity, including medical examinations and medical retirement made under PS Act re disciplinary action, other than a finding that a disciplinary ground exists or a decision to suspend a person without pay relating to the recruitment or selection of a PS employee relating to a person’s work performance (other than formally recorded decisions in periodic performance reviews) relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of a grievance relating to the development or performance management of a chief executive or senior executive Exceptions to a fair treatment decision appeal: discipline decisions are generally excluded from a fair treatment appeal (as employee can already appeal a decision to take disciplinary action against then under s 194(1)(b) of PSA). The Public Service Commission Directive states that a fair treatment appeal can be made for a disciplinary finding decision or a decision to suspend an employee without remuneration as per a finding under section 187 of the PSA that a disciplinary ground exists or under section 189 of the PSA to suspend a person from duty w/out pay.

New Public Service Appeal rights post 1 March 2017 QIRC or PS appeal Generally, QIRC and QIC cannot deal with matter subject of PS appeal One exception - bullying New Appeals Directive 03/17, effective last Wednesday 1 March Replaced Directive 02/14 Old section 195(4): if the parties to the appeal would include the commission, a commissioner, or staff member of the commission; or a matter already heard by the IRC The Public Service Commission Directive on Appeals states that an appeal in relation to bullying can be heard by the QIRC in both its industrial relations jurisdiction and its public service appeal jurisdiction.

Timing of appeals An appeal notice must be received by the industrial registrar 21 days from the day the decision is publicly notified for a promotion decision or the employee receives notice of the decision made against them QIRC member can grant extensions of time to make an appeal Once appeal is lodged, QIRC member can stay the decision against which the appeal is being made Generally happen quickly and generally on the papers, so must move fast to prepare evidence and submissions Not new but a reminder. IRC Member staying decision – existence of a right of an appeal does not stay a decision unless determined by an IRC member under section 199. to allow for situations where the time taken to comply with procedures may have an unreasonable impact on an appellant e.g.: where the decision being appealed against is a discipline decision, a suspension w/out pay decision or where the person has already followed a grievance process under an industrial instrument (PSC Directive).

Conversion of Casuals to Permanent Employment

Position prior to 1 March 2017 Section 149 Public Service Act Temporary Employment Directive 20/10 Requires TMR to decide whether to convert a temporary employee to a general employee on tenure or a public service officer Review must occur at end of two years employment, and each subsequent 12 months, or as per industrial instrument

New position as at 1 March Conversion of Temporary Employees Conversion of Casual Employees Section 149 Public Service Act Section 149A Public Service Act Directive 20/10 New Directive 01/17 Conversion of casual employees to permanent

Process and requirements Casual employees now have right to apply to have employment converted Casuals employed on a regular and systematic basis for at least two years Chief executive must decide whether a casual employee’s employment is to continue as casual employee on same terms be a general employee on tenure or public service officer make the decision within time frame and on criteria set by new directive decide to convert to permanent with employee’s consent If decision not made within time frame, chief executive taken to have decided not to convert the employee’s employment Section 149(6) Casual employee has right to apply if employed on a regular and systematic basis

Process and requirements Application by employee must be in writing Department must notify employee in writing date application was received name and contact details of agency contact for application date the decision must be made by (28 days from receipt) that if no decision is made in time frame, decision taken to be not to convert right to commence an appeal within 21 days of decision being received in accordance with section 197 of Public Service Act Right to appeal as PS appeal

Criteria for decision Is the person employed as a casual? Is the basis of their employment regular and systematic? Have they been employed on that basis for at least two years? includes periods of temp and casual employee with breaks less than three months Has the employee met the performance objectives of the role? If yes to all, are there any genuine occupational reasons not to convert? continuing need for role minimum hours if converted will not suit operational requirements closed merit selection process is more appropriate for order of merit selection

Criteria for decision Regular Systematic usual, normal or customary recurs at fixed time or periodically repetitive pattern frequent though unpredictable engagements regular days, hours or shifts Systematic pattern of engagements fixed roster (or predictable hours) unpredictable hours may also be evidence of pattern of engagement degree of certainty about hours ongoing reliance on person’s services

Outcome of application If decision is not to convert, written notification must include reasons If decision is to convert, written notice must include terms and conditions of offer (FT, PT, days, hours, pay, location) any changes to entitlements Decision does not take effect unless employee accepts the terms and conditions of the offer within period stated in notice Probationary period following conversion under section 126 only to be used in exceptional circumstances 12 months transitional arrangement in place – all applications received during period must be finalised by 29 March 2018

Contact Michael Moy Partner T +61 7 3233 0270 E mmoy@mccullough.com.au Lydia Daly Senior Associate T +61 7 3233 8697 E ldaly@mccullough.com.au Disclaimer: This presentation covers legal and technical issues in a general way.  It is not designed to express opinions on specific cases.  This presentation is intended for information purposes only and should not be regarded as legal advice.  Further advice should be obtained before taking action on any issue dealt with in this presentation.