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]

2. 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]

3. 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.

(a) 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]

(b) 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’.

(a) 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.

(b) 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]

4 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.