Overview of Industrial Relations Bill 2016

You may be aware that the Industrial Relations Bill 2016 (the Bill) was introduced into Parliament on 1 September 2016.

The Bill stems from an independent review undertaken in 2015 of the industrial relations system in Queensland. The review noted the effect of federal industrial relations reforms and that the Queensland state jurisdiction for industrial relations now consists of the public sector, local government and nominated statutory authorities, representing approximately 14 per cent of the employed Queensland workforce.

The review report recommended that new Queensland industrial relations legislation be drafted and made 68 recommendations. If passed, the Bill will replace and repeal the current Industrial Relations Act 1999.

There are a number of key changes in the Bill that, if passed, will directly affect the State of Queensland in relation to employment and workplace issues, including:

  • mutual trust and confidence in the employment relationship
  • introduction of anti-bullying provisions
  • new Queensland Employment Standards (QES)
  • new powers for the Queensland Industrial Relations Commission (QIRC) to deal with workplace related discrimination claims made under the Anti-Discrimination Act 1999
  • introduction of general protections and adverse action provisions.
Mutual trust and confidence in the employment relationship

The main purpose of the Bill will primarily be achieved, inter alia, by “promoting productive cooperative workplace relations including by recognising mutual obligations of trust and confidence in the employment relationship” (clause 4(e)).

However, there is no operative provision in the Bill which would impose a statutory obligation of trust and confidence. This proposed amendment follows from the High Court decision in Commonwealth Bank of Australia v Barker [2014] HCA 32. In that decision, the High Court concluded that there is no implied term of mutual trust and confidence in Australian employment contracts and that the decision to imply a term of this kind is more appropriate for the legislature than the judiciary.

Introduction of anti-bullying provisions

Chapter 7 of the Bill introduces new provisions regarding workplace bullying remedies for employees, similar to those protections available to eligible employees under the Fair Work Act 2009 (C’th) (FWA). The Bill addresses repeated instances of bullying in the workplace of current employees, rather than seeking redress for bullying after the employee has left their employment.

The Bill provides the QIRC with the power to issue orders to stop bullying behaviour. The new provisions do not provide the QIRC with powers to make orders for compensation.

This is significant because it will prevent the new anti-bullying provisions from becoming an alternative forum to prosecute compensation claims that have failed in other jurisdictions.

New Queensland Employment Standards (QES)

The Bill seeks to include new standards including:

  • an information statement to any new employee setting out workplace rights and basic entitlements (clauses 128 and 129)
  • a right to request flexible working arrangements for all employees in relation to their hours of work, where they work and how they work (clause 27). The QIRC will have jurisdiction to hear industrial disputes in relation to a request for flexible working arrangements.
  • domestic and family violence leave – up to 10 days’ full pay per year for employees other than casual employees (clause 52). Employees can also take up to 10 days’ sick leave on full pay (carer’s leave) to support or care for a person affected by domestic and family violence  with no requirement that the person be part of the employee’s family or household (clauses 42 and 43).

The Bill also seeks to amend the QES in relation to:

  • parental leave entitlements for the spouse of a pregnant employee and entitlements for adoption leave and surrogacy leave (see Chapter 2, Part 3, Division 8 of the Bill)
  • compassionate leave – entitlement for two days’ compassionate leave on full pay where a member of the employee’s immediate family or household contracts or develops a personal illness or sustains a personal injury that poses a serious threat to the person’s life. This is in addition to the entitlement to bereavement leave (see clauses 47 and 48 of the Bill).
New powers for the QIRC to deal with workplace related discrimination claims made under the Anti-Discrimination Act 1999

The Bill proposes that the QIRC will have exclusive jurisdiction to deal with “work-related” discrimination matters referred from the Anti-Discrimination Commission Queensland (ADCQ).

It is intended that complaints of breaches of the Anti-Discrimination Act 1991 will continue to be lodged with the ADCQ which will continue to try to resolve the complaints through conciliation.

However, if a work-related complaint remains unresolved, a referral will be made to the QIRC rather than the Queensland Civil and Administrative Tribunal (QCAT). The rationale for this change is that the QIRC has expertise in employment and workplace issues.

These proposed amendments are significant as it will see the jurisdiction for work-related discrimination matters wholly transferred from QCAT to the QIRC. The proposed amendments are also consistent with the new proposed general protections jurisdiction of the QIRC which prohibits adverse action that amounts to discrimination.

Introduction of general protections and adverse action provisions

Chapter 8 of the Bill proposes a general protections jurisdiction in Queensland for workers against adverse action during employment or dismissal from employment. The new proposed protections are significant and are similar to those in the FWA in relation to:

  • workplace rights and adverse action
  • freedom of association with industrial associations
  • workplace discrimination
  • providing effective relief for persons discriminated against, victimised or otherwise adversely affected.

A reverse onus of proof requirement is proposed which places the obligation on the respondent (i.e. the employer) to disprove adverse action was taken due to a workplace right.

The rationale for this is that the reason why the action was taken, whether for a prohibited reason or not, is within the knowledge of the decision-maker not the employee.

The reverse onus of proof requirement will mean that the evidence of the relevant decision-maker will be crucial in proceedings before the QIRC. The proposed remedies available under the general protections jurisdiction are varied and include reinstatement, compensation (uncapped), injunctions and pecuniary penalties.

Where to from here?

The Queensland Parliament’s Finance and Administration Committee tabled its report on the Bill on 28 October 2016. Accordingly, the Bill will now be set down for a second reading debate. It is anticipated that the second reading debate will occur in the last Parliamentary sitting week of 2016, namely 29 November 2016 to 1 December 2016. If the Bill is passed, it is likely that the changes will commence in March 2017.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 24 November 2016

Author: Fiona Black