Australia: A level playing field for Queensland industrial relations?

The 2006 Howard Government Work Choices reforms meant Queensland's private sector workforce became covered by the federal system, while state and local government employees, sole traders, partnerships, unincorporated and not-for-profit entities remained under the state system.

The federal industrial relations (IR) system has seen several significant developments, while the Queensland framework many fewer. This caused a disjunct between the workplace protections available to the Queensland public sector and those available to private sector employees.

Following an independent review of the Queensland IR system, released earlier this year1, the Palaszczuk Government has introduced into Parliament an almost 800-page long Industrial Relations Bill 2016 (the Bill). If passed, the Bill will more closely align the Queensland and federal systems, and provide state and local government employees with new workplace protections similar to those available to employees under the federal system.

Changes to current IA legislation

In addition to repealing the existing IR Act, if passed in its current form, the Bill will amend other state laws including the Workers' Compensation and Rehabilitation Act 2003, the Anti-Discrimination Act 1991 (Anti-Discrimination Act) and the Public Service Act 2008 (PS Act). Significant changes will be seen across many areas including:

  • changes to the Queensland Employment Standards
  • the introduction of anti-bullying protections
  • the introduction of general protections for workers
  • the transfer of jurisdiction for all work­related anti-discrimination claims, including claims against private sector employers, to the Queensland Industrial Relations Commission (QIRC).

Changes to the Queensland employment standards

The Palaszczuk Government intends to keep minimum core employment standards—a concept modeled on the National Employment Standards in its 2012-2013 IR reforms. However, a number of changes are proposed under the Bill, including:

  • prohibiting employers from asking or requiring full-time employees to work more than 38 hours a week2
  • entitlements for employees to ask their employer for workplace adjustments, such as changes to ordinary hours of work, place of work, or the use of different equipment to accommodate a disability or injury3
  • extending personal leave provisions to include compassionate leave, and introducing domestic and family violence leave.4

Workplace bullying

The Bill seeks to introduce anti-bullying protections, with the proposed regime to mirror the current protections under the Fair Work Act 2009 (Cth) (FW Act) while allowing for jurisdictional adjustments. The definition of an 'employee' is to be broadened for the purpose of anti-bullying protections to include contractors, subcontractors, volunteers, employees, apprentices and work experience students.5 Similar to the federal system, the definition of bullying specifically excludes "reasonable management action carried out in a reasonable manner".6

Workers will be able to apply to the QIRC for an order to stop bullying against them in the workplace.7 The commission may make any order to prevent future bullying, however, it cannot order the payment of a pecuniary amount.8

General protections

The Bill introduces new workplace protections, which will reflect the general protections provisions under the FW Act and provide protections from:

  • adverse action taken by an employer as a result of the exercise or proposed exercise of a workplace right
  • coercion (taking action to prevent the exercise of a workplace right)
  • misrepresentation about the exercise of workplace rights
  • discrimination (enforceable by a claim for adverse action taken in the QIRC)
  • dismissal due to a temporary absence
  • undue influence or pressure on an employee to make a decision about an industrial agreement or instrument (widely defined)
  • adverse action because someone has committed domestic violence against an employee.

The Bill also mirrors the FW Act in facilitating the protection of workplace rights by:

  • reversing the onus of proof for establishing an adverse action claim
  • prescribing that the prohibited reason for taking adverse action needs only one unlawful reason (amongst other lawful reasons)
  • making industrial associations subject to the general protections laws
  • allowing for preventative and remedial orders to stop or improve the adverse action
  • providing money compensatory orders.

It is likely the parameters of the new rights and protections will be robustly asserted and defended in early test cases.

Transfer of jurisdiction to the QIRC

The Bill contains a new framework for workplace discrimination proceedings under the Anti-Discrimination Act. The QIRC will have jurisdiction over all work-related anti-discrimination claims, including claims against private sector employers, and the Queensland Civil and Administrative Tribunal will retain jurisdiction over non-work-related discrimination matters.

The PS Act will also be amended to:

  • formally recognise the transfer of public service appeals functions to the QIRC and the role of commission members to hear and decide public service appeals
  • introduce a requirement to consult public agencies and employee organisations when a proposed directive affects a public service agency or public service employees who are entitled to be represented by an employee organisation.

Modern awards

The Palaszczuk Government suspended the Newman Government's award modernisation process and sought to remodel it. The Government has re-introduced certain allowable award content, including award provisions relating to workload management and workforce planning.

The Bill further signals Queensland Labor's commitment to removing the restrictions placed on award content by the Newman Government. It is set to relax the Newman Government's crackdown on union disclosure requirements, notably the publication of credit card and cab fare receipt stipulations.

Rights of entry powers

In 2015, the Palaszczuk Government removed the requirement that unions provide 24-hour notification to inspect suspected safety breaches and re-empowered permit holders to direct employees to cease unsafe work (a power removed by the Newman Government).

Under the Bill, authorised officers will continue to be able to enter a workplace during business hours to review time and wage records and speak to members (or individuals eligible to be members) about matters under the IR legislation without prior notice, provided the authorised officer signals their presence and produces a copy of their authorisation if requested.

Health care

Provisions introduced by the Newman Government to assist with recouping overpayments in the health care sector will be retained. Queensland Health and Hospital and Health Services will continue to be able to recoup overpayments made to employees by deducting amounts in installments.

Responses to the proposed Bill

While the Bill has generally received a positive response, not all stakeholders are pleased with the changes. The Local Government Association of Queensland (LGAQ) has been particularly vocal in its criticism, claiming the Bill further sidelines the independent QIRC and its ability to make decisions relating to local government workers' future pay and conditions under local government awards.9

Additionally, Queensland's Chamber of Commerce and Industry has taken issue with the QIRC's exclusive jurisdiction to deal with workplace discrimination matters.10

Implementation timeline

Parliament is due to complete all submissions and hearings processes and receive the Finance and Administration Committee's report by the end of 2016. The Palaszczuk Government will initiate steps to pass the Bill. If successful, these changes are expected to commence in March 2017.

Next steps for Queensland employers

The amendments are significant and Queensland's industrial landscape will be noticeably different soon after the Bill passes in its present form.

State system employers should update and implement policies and procedures to reflect the new IR framework, as well as train their staff on these changes. State system employers should also look to national employers and the existing federal system for guidance on practices that comply with FW Act protections.

This article was originally published in the December 2016 issue of Proctor and is republished here with their kind permission. Click here to read the article.

Footnotes

1 'A review of the Industrial Relations framework of Queensland', published 4 March 2016.

2 Sections 23-26 of the IR Bill.

3 Sections 27-29 of the IR Bill.

4 Sections 47-49 of the IR Bill sections 52-54 of the IR Bill.

5 Workers will be as defined under section 7 of the Work Health and Safety Act 2017 (Qld). Industrial Relations Bill 2016 s8(2).

6 Section 272(2) of the IR Bill.

7 Section 275 of the IR Bill.

8 Section 275 of the IR Bill.

9 See http://www.abc.net.au/news/2016-09-02/new-queensland-public-sector-ir-laws-slug-ratepayers-lgaq/7807750 (subscription required).

10 theaustralian.com.au/national-affairs/%20industrial-relations/local-councils-hitout-%20at-queensland-ir-Bill/news-story/%20fb41cc15384dad88909ba8b477130ecb (subscription required).

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