New industrial relations laws and award modernisation could pose immediate challenges for councils. McCullough Robertson Partner, Cameron Dean, outlines recent developments, their impact on local governments and charts the way forward in understanding and applying the changes to a council's workforce.

The modern award

After a stop/start process which saw the award terms scrutinised by successive State Governments and subjected to redrafting by the Queensland Industrial Relations Commission (QIRC) to meet government directives, the Queensland Local Government Industry Award – State 2014 (Modern Award) finally commenced on 28 February this year.

However, at least one further change is expected once section 995 of the Industrial Relations Act 2016 (Qld) (IR Act) is applied. That section requires the Modern Award to be split into three separate modern awards that will apply to different streams of workers. These new modern awards will apply in conjunction with any pre-existing certified agreements, with the agreement to prevail to the extent of any inconsistency.

Councils are advised to conduct an analysis of current industrial arrangements to ensure they are being correctly applied (in relation to the current Modern Award) including when it becomes three separate awards. Consideration of bargaining strategies should also commence, including whether it is desirable for one new certified agreement to cover the three separate award streams, or whether separate new agreements should be sought for each stream.

New IR laws

On 1 March 2017 – the day after the Modern Award commenced – the Industrial Relations Act 2016 (Qld) came into force. This Act has introduced a number of significant new concepts into Queensland public sector industrial relations law which will impact on local governments.

These changes include:

  • work-related discrimination matters are now being handled by the QIRC, rather than the Queensland Civil and Administrative Tribunal;
  • a new anti-bullying jurisdiction, which will allow employees to apply to the QIRC for orders to stop workplace related bullying;
  • a new general protections (or 'adverse action') jurisdiction, which will enable employees to commence proceedings to protect their rights if steps are taken to adversely affect them (whether in a monetary sense or any other way) because of their 'workplace rights' or a ground of protected discrimination, or which is taken because of the employee being involved in lawful industrial activity;
  • a statutory mutual obligation of 'trust and confidence' in the employment relationship, which will impact on all spects of the working relationship, including disciplinary processes and termination of employment; and
  • a new bargaining system which, among other things, will make it more difficult to move out of conciliation and into arbitration.

The Queensland Employment Standards have also been amended by the Act to include a new process allowing employees to request flexible work arrangements. The process requires that an employee's written request must be considered and responded to by the employer, in writing, within 21 days of receiving the request and any refusal must be based on 'reasonable grounds'.

New rights to domestic and family violence leave (DFV leave) have also been included. Employees, other than casuals, are entitled to ten paid DFV leave days per year where they have experienced domestic violence and need to take this leave as a result. Long-term casuals are entitled to ten unpaid DFV leave days per year, and short term casuals two unpaid days. The entitlement is subject to notification requirements and employers are entitled to seek relevant evidence to substantiate the leave requested.

Given the new rights and obligations created by the Act, it is incumbent on local governments to review their employment and industrial relations systems and processes for compliance and to update them as necessary. Staff and management training should also be considered so that inadvertent breaches can be avoided.

Conclusion

As with any significant changes, the devil is often in the detail and there will also be a need for QIRC decisions to clarify how some of the changes will be interpreted and applied. Our experienced Employment Relations team will continue to monitor the changes and provide updates, and can assist to ensure compliance.

This Act has introduced a number of significant new concepts into Queensland public sector industrial relations law which will impact on local governments.