The Commission held that while the return of a substantive incumbent to a specific position constitutes a genuine operational requirement preventing conversion under the first pathway (the employee's current role), the employer must still adequately discharge its obligation under the second pathway by properly defining and searching for roles that are 'substantially the same' across the broader public sector entity — not merely within the employee's immediate organisational unit. The Commission found the Respondent's second pathway analysis was foundationally flawed because it failed to define a role that was substantially the same, did not analyse the capability requirements of the Appellant's role, and improperly confined its search by requiring permanent designation, budgeted vacancies, and limitation to a single Hospital and Health Service. The Appellant's employment was converted to permanent as Principal Business Analyst (AO7) within Queensland Health, with the Commission substituting its own decision after finding the Respondent had failed to comply with mandatory requirements of Directive 02/23 and the PS Act despite a prior remittal order directing lawful compliance.
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