Queensland industrial laws have recently been amended in a move designed to strengthen worker protections post the enactment of the Federal Government’s Work Choices amendments to the Workplace Relations Act 1996 (Cth) (WRA). The Industrial Relations Act and Other Legislation Amendment Act 2007 (Qld) amends, amongst others, the following acts:
- Industrial Relations Act 1999 (Qld)
- Magistrates Courts Act 1921 (Qld)
- Child Employment Act 2006 (Qld)
- Workplace Health and Safety Act 1995 (Qld)
Industrial Relations Act and Other Legislation Amendment Act 2007 (Qld) (IROLA)
The IROLA is designed to reduce the impact of the Work Choices legislation on Queensland employees ‘to ensure that Queensland maintains a fair industrial relations system for Queensland employers and employees’. Interestingly, the passing of this Act coincides with the introduction by the Federal Government of its proposed ‘stronger safety net’ amendments to the WRA (including the new ‘fairness test’) and gives rise to some interesting questions about the supremacy of the Federal WRA over Queensland’s industrial laws. The explanatory memorandum for the IROLA provides that ‘the manner in which Work Choices overrides State laws has left jurisdictional boundaries unclear, necessitating adjustments to State legislation to clarify where State laws continue to apply’.
Queensland Workplace Rights Office
The IROLA inserts a new Chapter 8A into the Industrial Relations Act 1999 (Qld) (IRA) which establishes a Queensland Workplace Rights Ombudsman (Ombudsman) and the Queensland Workplace Rights Office (QWRO). The explanatory memorandum describes the purpose of the new office as being to ‘promote fair and equitable industrial relations and workplace practices in Queensland’. The second reading speech for the IROLA further describes the QWRO as a ‘one-stop shop service’ for the provision of industrial relations advice and information. The QWRO is composed of the Ombudsman and other officers.
The Ombudsman (currently, Queensland Industrial Relations Commissioner Don Brown) has various functions including:
- Consulting, informing, educating and promoting industrial relations and other work-related matters.
- Investigating, monitoring and reporting unlawful and unfair practices.
- Referring unlawful industrial relations and other work-related matters to appropriate authorities (this might include the Federal Workplace Ombudsman).
- Developing codes of practice in order to facilitate and encourage fair industrial relations and work practices.
The Queensland Ombudsman is not permitted to deal with a matter that is being, or has been, dealt with before an industrial tribunal.
The Government’s objective of countering the effects of WorkChoices is clearly expressed in section 399D of the new Chapter 8A, which requires the Ombudsman to inform the Minister about strategies to ‘mitigate the negative effects of legislation from any source about industrial relations and work-related matters’.
Changes to the Queensland Industrial Relations Commission (QIRC)
The IROLA amends the IRA with respect to the functions and organisation of the QIRC. Section 273(1) of the IRA has been amended to include the following additional QIRC functions:
- Dispute resolution, where functions are conferred on the QIRC by a referral agreement. In performing this function, the QIRC only has the powers conferred on it by a referral agreement, and is not capable of making a binding decision unless the agreement provides for that power. This function appears to be intended to work alongside the Federal WRA-mandated dispute mechanism and enable the QIRC to act as a dispute provider where nominated by the parties to a dispute.
- The making of declarations about industrial matters. An application for a declaration may be made by a person who may be directly affected by the declaration, an inspector, a trade union or an employer organisation.
- The power to certify an unsigned agreement, where the parties have agreed on the terms of the agreement and the application for certification is made within a reasonable time after the agreement was approved.
Breach of contract claims in the Magistrates Court
The IROLA inserts a new Part 5A into the Magistrates Courts Act 1921 (QLD) (MCA), which provides for an alternative, low-cost employment claim for low-income employees. Under this Part, employees who earn not more than $98,200 per annum, or another amount fixed by a regulation, may bring an ‘employment claim’ for loss arising out of breach of an employment contract. Part 5A also provides for compulsory conciliation. However, this avenue is not available where the matter is within the jurisdiction of the QIRC.
Section 42C(4) has the effect of extending the Part 5A process to a claim under the WRA for relief or the imposition of a penalty, where the person making the claim is also making an employment claim under Part 5A of the MCA.
Part 5A assists employee claimants in several respects:
- Section 42ZC imposes restrictions on the Court’s power to order the payment of another party’s costs.
- Lower court fees are prescribed.
- Parties are entitled to be represented by industrial organisations without having to seek special leave of the court (section 42ZA).
Parties are also entitled to be represented by an industrial organisation during conciliation, and may only be represented by another person where the other party agrees or the conciliator permits it.
The amendments to the MCA commence on 1 January 2008. The new Part 5A may represent an alternative to an unfair dismissal claim, particularly for those employees who are excluded from seeking relief for unfair dismissal under the WRA. However, an employee will need to establish a breach of the express or implied terms of the employment contract, which means that this option is likely to be more restrictive than the unfair dismissal jurisdiction.
Child worker protections
Section 16(3)(e) of the WRA provides that the states are still able to legislate in relation to ‘child labour’, as it is a non-excluded matter. Pursuant to that, the Child Employment Act 2006 (Qld) (CEA) has been amended with the object of strengthening minimum entitlements for child employees:
- The definition of ‘work’ in the CEA has been extended so as to include work experience, an apprenticeship, traineeship or vocational placement.
- A new Part 2A has been inserted which essentially applies the no-disadvantage test to federal agreements entered into by workers under the age of 18, where the employer is a constitutional corporation. Part 2A does not apply unless either:
- A state award or order exists which covers employees who are not employed by a constitutional corporation and who are performing similar work to the child.
- The entitlements provided for in Chapter 2 of the IRA apply to employees who are also not employed by a constitutional corporation and are performing similar work to the child.
Additionally, Part 2A does not apply to child employees who are employed on preserved state agreements which have been terminated and not replaced, or to child employees who are employed on awards or agreements which pre-date WorkChoices. The second reading speech indicates that the purpose of the limited coverage of Part 2A is to specifically target child employees who enter into post-WorkChoices agreements to which the former no-disadvantage test does not apply. However, as noted earlier, a more refined version of the old no-disadvantage test has now been re-introduced by the federal government in the form of a ‘fairness test’. It will apply to collective agreements and Australian Workplace Agreements entered into under the WRA.
- The CEA has also been amended to include a new Part 2B, which essentially extends state unfair dismissal laws to child workers, even where they are employed by a constitutional corporation. However, an unfair dismissal claim is only available where it relates to a dismissal which could have been the subject of an application under the IRA were the employer not a constitutional corporation.
The second reading speech for the IROLA indicates that the state government has received legal advice confirming that the IROLA amendments to the CEA comes within the area of ‘child labour legislation’ and therefore will not be overridden by WorkChoices. We suspect, however, that there may be some controversy over these changes, which represent a clear push by the state to exert authority over the remaining industrial relations jurisdiction available to it.
Dispute resolution procedure for workplace health and safety
The Workplace Health and Safety Act 1995 (Qld) now has a new Part 7A, Division 6, which establishes an ‘independent, transparent and efficient’ dispute resolution procedure for the QIRC in relation to the workplace health and safety powers exercisable by union representatives. The procedure includes notices of dispute and compulsory conferences. Provided that genuine attempts to settle the dispute have been made, a notice of a dispute may be given to the industrial registrar by a party to the dispute, a workplace health and safety inspector, or the chief executive.
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