The new Industrial Relations Act 2016 (Qld) (IR Act) came into force on 1 March 2017, replacing the Industrial Relations Act 1999 (Qld) in its entirety. This article highlights the key changes to Queensland industrial relations regulation implemented by the new legislation, and the steps that all Queensland employers and state system employers should take to ensure they are prepared for them.

What are the key changes?

The two key changes effected by the IR Act are:

1. For all Queensland employers (i.e. those covered by the national and state workplace relations systems):

  • the Queensland Industrial Relations Commission (QIRC) will hear all work related anti-discrimination matters; and
  • Easter Sunday is now an additional public holiday.

2. For Queensland public sector employers, local government bodies and other businesses covered by the state system:

  • new legislative minimum employment standards apply, in particular enhanced employee entitlements to leave and requests for flexible work;
  • employees are now able to pursue a broader range of claims, in particular adverse action and bullying claims; and
  • collective bargaining processes have been revamped.

All Queensland employers should be prepared for…

New QIRC jurisdiction to hear anti-discrimination matters

The QIRC now has exclusive jurisdiction to hear work related anti-discrimination complaints after they have been investigated and referred to the QIRC by the Anti-Discrimination Commission Queensland.[1] The Queensland Civil and Administrative Tribunal will retain jurisdiction over all other discrimination matters.

This new anti-discrimination jurisdiction is likely to increase the workload of the QIRC.

Additional public holiday for Easter Sunday

Easter Sunday is now a designated public holiday in Queensland.[2] Queensland employers must ensure their practices relating to public holidays now extend to Easter Sunday.

State system employers should be prepared for…

New legislative employment standards

The IR Act brings the Queensland Employment Standards (QES) into further alignment with the National Employment Standards applicable to private sector employees nationally under the Fair Work Act 2009 (Cth) (FW Act).

To comply with the new standards, employers covered by the state system must, among other things:

  • Provide new employees with an information statement on commencement of their employment.[3] The statement must set out the employee’s workplace rights and entitlements.[4]
  • Ensure full-time employees are not asked to work more than 38 hours a week, plus reasonable additional hours.[5]
  • Provide employees with enhanced minimum leave entitlements, including:
    • new unpaid emergency services leave [6] (like the long service leave provisions, this leave also applies to federal system employees);
    • new 10 days’ paid domestic and family violence leave; [7]
    • enhanced parental leave entitlements - employees are now entitled to 8 weeks’ unpaid short leave (previously 1 week for a spouse giving birth and surrogacy, and 3 weeks for adoption) or 52 weeks’ unpaid long leave (previously 51 weeks for a spouse giving birth and surrogacy, and 49 weeks for adoption);[8]
    • enhanced bereavement leave entitlements (in the event a member of the employee’s household or family die or a pregnancy ends other than by birth of a living child);[9] and
    • new compassionate leave entitlements (in the event a member of the employee’s household or family contracts or develops a personal illness or sustains a personal injury that poses a serious threat to the person’s life).[10]
  • Ensure compliance with enhanced rules about flexible working arrangements, for example:
    • all employees have a right to request flexible working arrangements in relation to their hours of work, where they work and how they work;
    • a decision about such requests must be in writing and given within 21 days; and
    • a request can only be refused or conditions imposed by the employer on objectively ‘reasonable grounds’. [11]

New adverse action and bullying jurisdiction

The IR Act increases the ambit of possible employee claims by introducing a new framework of general protections, similar to those in the FW Act.[12]

For example, state system employees in Queensland are now able to bring ‘adverse action’ claims, including in respect of the exercise by the employee of a ‘workplace right’.[13] A ‘workplace right’ includes the right to make a complaint or enquiry about the employee’s employment.[14]

As in the federal system, employers who are faced with such claims are subject to a reverse onus of proof. Consequently, it will be critical for employers to put on evidence from the relevant decision-maker/s about the lawful reasons for taking any action that constitutes adverse action, if they are to successfully defend such claims.

The IR Act also introduces fresh provisions dealing with workplace bullying. Again, like the federal system, state system employees can now apply to the QIRC for orders that the alleged bullying stop (with the same exclusion for ‘reasonable management action’).[15]

State system employers should therefore ensure their policies and procedures dealing with bullying are up to date, and management and staff are trained in relation to workplace culture and unacceptable bullying conduct.

Changes to collective bargaining

Changes to the collective bargaining framework have the potential to impact the length and complexity of the enterprise bargaining process for state system employers.

  • Length and complexity

Bargaining can now commence 6 months (previously 60 days) prior to the nominal expiry date of an existing agreement,[16] and the parties are subject to enhanced good faith bargaining obligations (similar to those found in section 228 of the FW Act).[17]

Within the revised bargaining framework, a Peace Obligation Period begins once a notice of intention to bargain or a scope order is issued; and ends 21 days later, or (if sooner) upon the nominal expiry date of the current agreement.[18] During this period, the parties cannot take industrial action or seek QIRC conciliation for the proposed bargaining instrument.[19]

Consent arbitration remains an option for the parties in a collective bargaining dispute, however there is now a requirement to obtain approval from the QIRC.[20] Approval can only be granted if the Commission is satisfied that a negotiating party has tried to negotiate with the other parties, or the parties have been negotiating and have tried to reduce the scope of matters at issue.[21] Arbitrations on collective bargaining must be heard by a Full Bench of the QIRC,[22] and there can be no legal representation in these proceedings.[23]

In stark contrast to the former IR Act, the Full Bench can make orders to increase wages payable to employees prior to handing down a determination.[24] In making that determination, the Full Bench will no longer consider the extent to which the parties have negotiated in good faith or the public interest.[25] The decision will only address the merits of the case and the likely effect on employees and employers.[26]

  • Changes to the rules about industrial action

Industrial action can now be engaged in during a period of QIRC conciliation and the Minister no longer has the ability to terminate industrial action.[27] Rather, the QIRC has the sole power to suspend or terminate industrial action, and then only in the case of significant economic harm or danger to life, property, health or welfare.[28] A termination application to the QIRC may be brought by a negotiating party, the Minister or a prescribed person (no one has yet been prescribed for this purpose).[29]

The protected action ballot process has also been revamped, although unions still require approval from the Registrar to enable employees to engage in protected industrial action.[30] Prior to applying for approval, unions must conduct a process (to be approved by the Registrar) allowing members to express their ‘democratic views about proposed industrial action’.[31] If the Registrar is satisfied (among other things) that the union followed the approved process and this resulted in majority support for the proposed action, it must approve the application.[32]

  • Scope orders

There are also new provisions about scope orders, enabling a negotiating party (employer or union) to challenge coverage of a proposed bargaining instrument on the grounds that it is ‘inappropriate’.[33]

  • Bargaining awards

The IR Act introduces a new type of employment instrument being ‘bargaining awards’, which are negotiated agreements agreed by an employer, employees and the relevant unions. Unlike certified agreements that retain the Award as a safety net, a bargaining award replaces an otherwise relevant Award.

Other amendments include:

  • new rules about Public Service Commissioner Directives;
  • new provisions about sham contracting and misrepresentations about someone being an independent contractor;[34]
  • a new requirement for a certified agreement/bargaining award to include a consultation clause that requires the employer to consult with employees and relevant unions before making or implementing a final decision (for example, in relation to restructuring); [35] and
  • transitional arrangements for agreements awaiting certification and negotiations that have already commenced.

What steps should employers take now?

The IR Act brings about a number of significant changes.

National system and state system employers should ensure that they:

  • update their payroll systems and other processes to recognise the new Easter Sunday public holiday; and
  • understand the new jurisdiction of the QIRC to deal with bullying and work related discrimination complaints.

State system employers should:

  • understand the new ‘general protections’ afforded to state system employees and the corresponding ‘adverse action’ claims such employees can bring;
  • implement changes to ensure compliance with the QES, in particular the enhanced leave entitlements and requests for flexible work; and
  • understand the changes relevant to enterprise bargaining and be ready for enhanced union involvement in that process.