Australia: Queensland's industrial reform ramps up

The Palaszczuk Labor Government is progressing its proposals for major reform of the Queensland industrial relations system. The Queensland Finance and Administration Parliamentary Committee has reported to Parliament on its review of the industrial reforms proposed by the State Government in the Industrial Relations Bill 2016 (Qld) (Bill).

The Report, released on 28 October 2016, considers a number of concerns that have been raised about the Bill (see the report here).

Below, we provide a snapshot of the key provisions of the Bill, the concerns dealt with in the Report and what is likely to happen next.

  1. WHAT IS THE INDUSTRIAL RELATIONS BILL 2016 (QLD)?

The Bill was introduced to Parliament on 1 September 2016, and seeks to adopt all recommendations from the 2015 review of Queensland's workplace relations framework instigated by the Palaszczuk Government.1 Principally, the Bill will repeal and replace the current Industrial Relations Act 1999 (Qld) (IR Act).

According to the Minister for Employment and Industrial Relations, Grace Grace MP, the key defining features for the proposed industrial relations system include:

  • a set of minimum employment conditions and standards;
  • collective bargaining as the cornerstone for setting wages and conditions;
  • a set of individual rights to fair treatment;
  • effective, transparent and accountable governance and reporting obligations for all registered industrial organisations and employer associations; and
  • a strong and effective independent umpire.2

In its review, the Committee was not able to reach a majority decision on a motion to recommend the Bill and, therefore, the motion failed.

The Government members of the Committee concluded that: "the legislation should be passed as it is an important step in restoring fairness to Queensland workplaces."3

In contrast, the non-Government members concluded that: "[i]n short, this Bill is union-bullying, job-destroying legislation that should be re-worked and re-thought before it is presented to the Parliament again."4

  1. ISSUES IMPACTING ALL EMPLOYERS IN QUEENSLAND

If passed, the Bill will affect all employers in Queensland to some extent, but it will have most relevance to Queensland public sector employers and local government bodies regulated by the state system.

The following changes would impact all Queensland-based employers and employees.

2.1 QIRC TO HEAR ANTI-DISCRIMINATION MATTERS

The Bill seeks to grant the Queensland Industrial Relations Commission (QIRC) jurisdiction to hear all work-related anti-discrimination matters, including those under the Anti-Discrimination Act 1991 (Qld) (AD Act). Such matters are currently heard by the Queensland Civil and Administrative Tribunal (QCAT).

The Government has stated the new jurisdiction was recommended by the 2015 review panel to:

  • reduce red tape;
  • improve administration of the law; and
  • provide employees with greater clarity about their rights and remedies of redress.5

However, the Report raises a concern that the change would potentially develop two distinct jurisdictions and two sets of case law: in the QIRC, and in QCAT. During the public briefing on 12 October 2016, the Anti-Discrimination Commission of Queensland stated that: "I do not think we have a preference one way or the other, but we have a preference that it be one Tribunal."6

2.2 ADDITIONAL EASTER PUBLIC HOLIDAY

The Bill seeks to amend the Holidays Act 1983 (Qld) to make Easter Sunday a public holiday in Queensland from 2017. The estimated cost to the Queensland economy is said to be 'up to $80 million' and the additional wages cost to the public sector is estimated at the 'lower end' of $4.8 - $13.3 million.7

As well as highlighting a lack of consultation in respect of this change, the Report considers evidence indicating that the negative implications may outweigh any perceived cultural benefit.8 The negative implications are said to be:

  • giving away any competitive advantage to other States (that currently have the public holiday) in increasing business cost;9
  • 'the bulk of the $80 million' is cost borne by non-government hospitality businesses;10 and
  • March would potentially have five public holidays, making businesses unprofitable.11
  1. ADDITIONAL ISSUES IMPACTING PUBLIC SECTOR EMPLOYERS IN QUEENSLAND

3.1 NEW EMPLOYEE ENTITLEMENTS

The Bill seeks to amend the IR Act's minimum core employment standards to further align them with the National Employment Standards (NES) afforded to private sector employers nationally under the Fair Work Act 2009 (Cth) (FW Act). New standards include:

  • an information statement setting out workplace rights and entitlements, which must be given to any new employees upon commencement of employment;
  • maximum weekly hours of 38 hours for full-time employees;
  • unpaid emergency service leave;
  • up to 10 days' paid domestic and family violence leave from commencement of employment; and
  • the right to request flexible working arrangements.
  1. Domestic and family violence leave

The Bill seeks to introduce paid leave for victims of domestic and family violence, including 10 days' leave per year on full pay for full-time employees.12 Although there is broad support for this change, it was submitted to the Committee that further consideration should be given to the proposal in light of a lack of previous consultation, and the federal Fair Work Commission's current investigation of leave entitlements for those affected by domestic and family violence.13

  1. Flexible working arrangements

The Bill seeks to introduce a right for all workers to request flexible working arrangements.14 The employer must give a written decision on such a request within 21 days, and can only refuse or impose conditions on reasonable grounds.15 The QIRC would have jurisdiction to hear and decide a dispute over the request.16

The Bill does not state what constitute 'reasonable grounds' for refusal of a flexible work request. The 2015 review report indicated that the term is intended to give rise to an objective test, to be assessed according to the particular circumstances of the request.17

3.2 CHANGES TO COLLECTIVE BARGAINING

The Bill purports to strengthen the collective bargaining provisions of the IR Act by:

  • adding good faith bargaining obligations (similar to those found in section 228 of the FW Act);
  • introducing a Peace Obligation Period of 21 days, during which the negotiating parties cannot take industrial action or seek conciliation at the QIRC;
  • making arbitration available only as a last resort; and
  • introducing a new category of industrial instrument – a 'bargaining award'.
  1. Bargaining award

The introduction of "bargaining awards" is intended to provide flexibility in terms of the type of industrial instrument that can arise from collective bargaining.18 In the case of certified agreements, the relevant award applies concurrently as a safety net. In contrast, the proposed bargaining awards would replace an otherwise relevant award, but in each case must be agreed to by the employer, employees and relevant unions.

  1. Ceasing protected industrial action

The Bill seeks to remove the ability of the Minister for Employment and Industrial Relations to order that protected industrial action cease. Instead, the QIRC may make an order to suspend or terminate protected industrial action only in exceptional circumstances, such as significant damage to the economy and the community.19

3.3 GREATER AMBIT OF EMPLOYEE CLAIMS

The Bill seeks to introduce the following new types of employee claims for state/local government employees, both of which mirror those currently available under the FW Act:

  • 'adverse action' or 'general protections' claims, which allow employees to bring a claim for 'adverse action' taken by an employer because of an employee's exercise of a 'workplace right'; 20 and
  • anti-bullying claims, which allow employees to apply to the QIRC for stop bullying orders.21

3.4 DUTY OF TRUST AND CONFIDENCE

Clause 4 of the Bill states that the main purpose of the Bill is achieved, among other things, by 'promoting productive and cooperative workplace relations including by recognising mutual obligations of trust and confidence in the employment relationship'.22

This provision has been questioned in light of a 2014 High Court decision that Australian common law does not recognise a mutual obligation of trust and confidence in the employment relationship.23

In response, the Queensland Treasury, Office of Industrial Relations, has clarified that: "...it is anticipated that the practical implications of the inclusion of the term itself in the objects will be limited in that it is intended that the term supports rather than expands existing protections for employees."24

  1. WHAT HAPPENS NOW?

The Bill will soon return to Parliament for second reading and debate. In light of the concerns raised in the Report, it is likely that amendments will be made prior to the passing of the Bill.

The Government has stated that the Bill is a matter of priority and will be passed before the end of the year. However, the accompanying regulations must be finalised before the entirety of the new Act will be proclaimed into force.

To date, the aspects of the Bill that have caused greatest debate are those that deal with the proposed broadening of claims employees can bring, in particular the proposed adverse action or general protections provisions to mirror those in the Federal system. Whether or not that will also translate to an increase in claims remains to be seen.

Footnotes

1 Industrial Relations Legislative Reform Reference Group, A review of the Industrial Relations Framework in Queensland: A report of the Industrial Relations Legislative Reform Reference Group, December 2015.

2 Explanatory Speech: Industrial Relations Bill 2016, Legislative Assembly, 1 September 2016 (Grace Grace MP).

3 Finance and Administration Committee, Industrial Relations Bill 2016: Report No. 32, 55th Parliament (October 2016) p 46.

4 Ibid, p 49.

5 Ibid, p 19.

6 Ibid, p 19, cf Public briefing transcript, Brisbane, 12 October 2016, p 21.

7 Explanatory Notes for the Bill, p 4.

8 Finance and Administration Committee, Industrial Relations Bill 2016: Report No. 32, 55th Parliament (October 2016) pp 21–22.; Queensland Trucking Association, Submission 27, p 1; Chamber of Commerce and Industry Queensland, Submission 34, p 3.

9 Queensland Hotels Association, Submission 12, p 2.

10 Queensland Trucking Association, Submission 27, p 3.

11 Ibid.

12 Industrial Relations Bill 2016 (Qld), clause 42.

13 Ai Group, Submission 39, pp 5-6; Public hearing transcript, Brisbane 12 October 2016, p 19.

14 Industrial Relations Bill 2016 (Qld), clause 27.

15 Ibid, clause 28.

16 Ibid, clause 29.

17 Finance and Administration Committee, Industrial Relations Bill 2016: Report No. 32, 55th Parliament (October 2016) pp 7-8; cf Queensland Treasury, Office of Industrial Relations, Industrial Relations Bill 2016: response to the issues raised in stakeholder's submissions, 11 October 2016, vol 1/4, p 2; Industrial Relations Legislative Reform Reference Group, A review of the Industrial Relations Framework in Queensland: A report of the Industrial Relations Legislative Reform Reference Group, December 2015, p 103.

18 Industrial Relations Legislative Reform Reference Group, A review of the Industrial Relations Framework in Queensland: A report of the Industrial Relations Legislative Reform Reference Group, December 2015, pp 12, 16-17.

19 Industrial Relations Bill 2016 (Qld), clause 240.

20 Ibid, clause 285.

21 Ibid, clause 273.

22 Industrial Relations Bill 2016 (Qld), clause 4.

23 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169.

24 Finance and Administration Committee, Industrial Relations Bill 2016: Report No. 32, 55th Parliament (October 2016) p 5, cf Queensland Treasury, Office of Industrial Relations, Industrial Relations Bill 2016: response to the issues raised in stakeholder's submissions, 11 October 2016, vol 1/4, p1.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions