The Industrial Relations and Other Legislation Amendment Act 2022 (Qld) (Amendment Act) gives effect to the Queensland Government's response to the Respect@Work Report by the Australian Human Rights Commission.
The amendments see the Industrial Relations Act 2016 (IR Act) adopt the established definitions of sexual harassment in the Anti-Discrimination Act 1991 (Qld) and Sex Discrimination Act 1984 (Cth). However, the concept of sex- or gender-based harassment is new to the Queensland statute book.
Sex- or gender-based harassment is defined as unwelcome conduct of a demeaning nature on the basis of the harassed person's sex or gender. The conduct must be engaged in with the intention of offending, humiliating or intimidating the harassed person or in circumstances in which a reasonable person would be offended, humiliated or intimidated by the conduct.
Sexual harassment now an 'industrial matter'
The definition of 'industrial matter' now includes sexual, sex- or gender-based harassment of an employee in the workplace or during the employee's employment.
This means complaints about workplace sexual, sex-based or gender-based harassment can be made directly to the Queensland Industrial Relations Commission (Commission) as an industrial dispute. Previously, the Commission could only hear complaints of workplace sexual harassment on referral from the Queensland Human Rights Commission (QHRC), where the complaint had not been resolved through the QHRC's conciliation process.
The Commission can now also grant injunctive relief to prevent or settle an industrial dispute involving allegations of sexual, sex-based or gender-based harassment.
Unlike other industrial disputes, the Commission can grant leave for legal representation in industrial matters that include allegations of sexual harassment or sex- or gender-based harassment.
Dismissal for sexual harassment
Section 320 of the IR Act sets out matters the Commission must consider when determining whether a dismissal was unfair, including whether the employee had been warned about the conduct and given an opportunity to respond to the claim. The section has been amended to allow the Commission to decide a dismissal was not unfair if the employee engaged in sexual, sex- or gender-based harassment.
The definition of 'misconduct' in section 120 of the IR Act, for the purpose of summary dismissal, has also been amended to include sexual, sex-based or gender-based harassment.
Restrictions on unregistered organisations
Amendments to the IR Act now clarify that an unregistered industrial association does not have the right to represent its members in the Commission. The right to represent members' industrial interests is limited to employee and employer organisations that are registered, or otherwise eligible for and seeking registration, under the IR Act.
Relevant amendments include:
- additional criteria for registration as an employee or employer organisation under chapter 12, which will prevent registration of an entity declared as not eligible for registration or which has an officer subject to an ancillary order
- a new power for the Commission to declare that an entity is not
eligible for registration under chapter 12 and make ancillary
orders to prohibit:
- an officer, employee or agent of the entity from representing a person in a matter before the Commission
- the entity from arranging an agent to represent a person in an industrial dispute
- the entity from holding out membership on the basis of being able to provide representation in stated industrial matters.
- a new civil penalty provision for making a false or misleading representation about having the right to represent a person's or group of persons' industrial interests
- a restriction on who may apply to the Commission for an interpretation of an industrial instrument.
Limitations on who can represent a party as an agent
Section 529 of the IR Act has been amended to require agents (other than employees or officers of a registered employee or employer organisation) be granted leave to represent a person or party in the Commission. Agents cannot be granted leave if they receive a fee for providing representation or are acting for an unregistered employee or employer association.
The amendments address concerns about underqualified or unskilled agents appearing in the Commission whilst charging unreasonable fees and some lawyers seeking to avoid regulatory requirements by providing representation under the guise of acting as an agent.
Flexibility for evidence supporting sick or carer's leave
An employee's entitlement to sick leave of more than two days has been conditional on providing either a doctor's certificate or other evidence to the employer's satisfaction. If an employer requires evidence to support carer's leave of more than two days, the evidence must be in the form of a doctor's certificate or statutory declaration.
Under these amendments, employees will only be required to provide evidence to support an absence of more than two days on sick leave or carer's leave if their employer requires it, and the evidence need only be sufficient to satisfy a reasonable person.
Other changes to the IR Act
The Amendment Act also introduces the following changes:
- parental leave provisions are aligned with prevailing federal standards. This includes flexibility in how unpaid parental leave is taken, including in cases of stillbirth and increasing the age limit for a child from 5 to 16 years old for adoption-related leave or cultural parent leave
- to promote gender pay equity in collective bargaining negotiations, a proposed agreement or bargaining instrument must include information about how equal remuneration for equal work will be achieved in practice and if it allows differential remuneration, the reasons must be stated in the accompanying affidavit
- arbitration is now available by a single Commissioner during enterprise bargaining negotiations
- unpaid wages owed to a former employee must now be paid to the Public Trustee, instead of the nearest clerk of the Magistrates Court.
Impacts for Queensland public sector and local government employers
As a result of these changes, Queensland public sector and local government employers should:
- review their employee complaints and sexual harassment policies to reflect the new avenue for complaints of workplace sexual harassment or sex- or gender-based harassment to be made directly to the Commission, as an industrial dispute
- update their personal leave policies and procedures to implement the changed evidence requirements for sick leave and carer's leave and changes to parental leave entitlements
- on receipt of a claim made on behalf of an employee by an entity purporting to represent the employee's industrial interests, consider whether the entity is registered under chapter 12 of the IR Act to understand the scope of the entity's right to represent the employee's interests
- where applicable, consider expressly identifying an employee's conduct as sexual harassment or sex- or gender-based harassment when dismissing an employee or defending an unfair dismissal claim
- review the agency's processes for collecting and analysing gender pay equity data, to inform enterprise bargaining negotiations.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.