What has happened?
On 1 September 2016, the Palaszczuk Government introduced the long awaited Industrial Relations Bill 2016 (Bill) to the Queensland Parliament.
The Bill adopts almost all of the recommendations contained in the Industrial Relations Legislative Reform Reference Group Report (Reference Group Report) which recommended the introduction of a new Act to replace the current Industrial Relations Act 1999 (Qld) (IR Act).
The Bill is almost 800 pages and introduces some significant changes for Queensland employers.
What the proposed changes will mean for all employers in Queensland
If the Bill is passed in its current form, all employers (including private sector employers otherwise covered by the Fair Work Act) will be affected to some extent by the changes to be introduced by the Bill. In particular, all employers operating in Queensland should be aware that:
- all employees in Queensland will have the right to unpaid emergency service leave and jury service leave;
- all work-related discrimination claims will be heard by the Queensland Industrial Relations Commission (rather than the Queensland Civil and Administrative Tribunal).
The Bill maintains long service leave entitlements for Queensland employees. However, the drafters have not taken the opportunity to simplify these quite complex provisions and these are largely unchanged from current entitlements.
The Bill amends the Holidays Act 1983 to make Easter Sunday a public holiday from 2017.
Additional impacts for Queensland public sector employers
If the Bill is passed as is, Queensland public sector employers will also need to be aware of the following proposed changes:
New employee entitlements
- All employees will have the right to request flexible working arrangements and 10 days' domestic and family violence leave from day one of their employment (no qualifying length of service is proposed).
- All new employees must be provided with an information statement upon commencement of employment similar to the Federal Fair Work Information Statement.
- The Bill also proposes significant changes to the current framework where certain entitlements are provided via Directives made by either the Minister or Public Service Commission (PSC) Chief Executive. The Bill will remove PSC Directives completely – which is likely to have the effect of any entitlements currently recognised in Directives (including redundancy payments) being removed to less flexible sources, such as the statutory Queensland Employment Standards or Awards.
Changes to the collective bargaining process
- All parties will be required to meet good faith bargaining obligations. The Bill largely reflects the Fair Work Act's good faith bargaining provisions. These do not compel parties to reach agreement, but can result in bargaining orders if a party does not negotiate in good faith. This requires giving genuine consideration to offers, and providing information (other than confidential information) to other bargaining parties. For public sector agencies, these good faith bargaining obligations will apply within the constraints of government wage policies.
- The introduction of scope orders is likely to mean that Departments and Agencies may be required to negotiate a larger number of certified agreements covering smaller groupings of their employees – reversing the current consolidation trend.
- Bargaining will be able to start earlier (6 months before the nominal expiry date of a current agreement as opposed to 60 days before), and industrial action may be easier to take.
- The Bill introduces a new Peace Obligation Period of 21 days following the notice of intent to bargain or a scope order, during which parties must not:
- take industrial action to support or advance claims
- seek conciliation at the QIRC
- A new category of industrial instrument – the 'bargaining award' – will be introduced.
Unlike certified agreements (where, under the State legislation, awards continue to apply concurrently), a bargaining award will replace an otherwise relevant award. This has some attraction to employers, as all industrial entitlements would be contained in the one document.
However, unlike a certified agreement, a bargaining award must be consented to by the employer, employees and relevant unions. This means that if a bargaining deadlock is reached, the employer will not have the option of taking the best offer straight to an employee vote.
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- As well as the new discrimination jurisdiction, the QIRC is likely to face an increased workload as new employee protections are introduced in the Bill.
- The current freedom of association protections in the IR Act will be expanded to a new general protections section, which will give public sector employees the ability to bring 'adverse action' claims. As well as prohibiting adverse action because of the 'usual' protected attributes (including union involvement, other discriminatory reasons and temporary absence), it will also protect employees who have (or propose to) exercise a 'workplace right'. The proposed general protections provisions in the Bill largely mirror the Fair Work Act provisions, and employers defending an adverse action claim will essentially face a reverse onus of proof.
- As well as this, new anti-bullying orders will also be available. Again, the Bill provisions largely reflect the Fair Work Act anti-bullying regime and will enable a current employee to apply to the QIRC for an order to stop bullying.
What about trust and confidence?
- The main purpose of the Bill set out in clause 3 is to provide for a framework for cooperative industrial relations that is 'fair and balanced' and 'supports the delivery of high quality services, economic prosperity and social justice for Queenslanders.'
- Clause 4 then sets how the main purpose of the Bill is to be primarily achieved, including by 'promoting productive and cooperative workplace relations including by recognising mutual obligations of trust and confidence in the employment relationship'.
- The precise scope of this 'recognition' and its interaction with the High Court's 2015 decision in Commonwealth Bank v Barker, which found that Australian common law did not recognise any such mutual obligation in the employment relationship is unclear. That said, the drafters of the Reference Group Report clearly state the fundamental principles of fairness and balance were not merely cosmetic and should guide the decision making of both institutions and individuals. There will be significant scope for argument around the precise scope and content of the obligation if the Bill is passed as drafted.
The Bill has been referred to the Queensland Parliamentary Finance and Administration Committee, which is to report by October 28. If passed, it is anticipated that the changes will commence in March 2017.
Many of the proposed changes reflect the provisions of the Fair Work Act 2009 (Cth) and federal decisions regarding that Act will provide guidance as to how the provisions proposed by the Bill are likely to be interpreted.
As we said above, the Bill is almost 800 pages (796 to be precise) and the information above is only a glimpse at what is proposed.