Industrial Relations Act 2016 and amendments to the Public Service Act 2008

 

Early in the morning on Thursday 1 December, the Industrial Relations Bill 2016 passed in the Queensland Parliament with the support of the ALP, Katter’s Australia party and independents and opposed by the LNP. This Bill is the result of a 2015 election commitment and independent review of the Queensland industrial relations system and will result in a new Industrial Relations Act for Queensland and key amendments to the Public Service Act. The new provisions will take effect from a date to be set in early 2017.  

The Industrial Relations Act 2016 will apply to employees of the Queensland Government and local councils and provide a range of improvements to the IR system for these employees. 

The main purpose of this Act is to provide for a framework for co-operative industrial relations that is fair and balanced and supports the delivery of high-quality services, economic prosperity and social justice for Queenslanders. The Act also established the Queensland Industrial Relations Consultative Committee to provide a forum for State, local government and union representatives to consult on achieving these aims, including the legislation, policies, strategies and other instruments.


Employee Entitlements

The Act expands the minimum employment standards for employees under the Queensland Employment Standards (QES). The new QES provides a right for employees to seek flexible working arrangements, and to receive a written response to this request that must be made on reasonable grounds and can be disputed to the independent industrial umpire – the Queensland Industrial Relations Commission (QIRC).

The new QES entrenches in the legislation a range of minimum entitlements already contained in public service industrial instruments and directives into the act itself such as leave entitlements and also introduces a legislative entitlement for paid domestic and family violence leave per year, the first such provisions in Australia.

These new provisions provide for employees who have experienced Domestic and Family Violence to access 10 days paid leave for employees other than casual employees as well as unpaid leave, subject to employer agreement, for all employees including casual employees.


Collective Bargaining

The Act provides for strengthened collective bargaining arrangements with greater capacity for union members to take industrial action in pursuit of improvements to wages and conditions, including during conciliation. The provisions requiring members seeking to take industrial action to vote in a postal ballot run by the Electoral Commission have been removed. This process has been a debacle, constantly under criticism both from union members denied a say in the process due to its inherent flaws and due to the significant time and cost impost on employers and unions as well as the government agencies forced to administer it. The new Act will allow the Industrial Registrar to approve applications for protected action including the process used for member decision making. The Minister will no longer have the power to suspend industrial action, instead the Act will give the QIRC a power to suspend or terminate protected action only in certain exceptional circumstances.  

However the Act will also provide a greater emphasis on reaching agreement between the parties with arbitration as a last resort and the capacity to start negotiations earlier. The requirements for the parties to negotiate in good faith have been strengthened.


Protection against discrimination and adverse action

The Act will establish an anti-bullying jurisdiction in Queensland and provides that an employee is bullied in the workplace if while at work an individual or group of individuals repeatedly behave unreasonably towards the employee, or a group of employees and that behaviour creates a risk to the employees’ health and safety. The bullied employee can apply to the QIRC for an order to stop the bullying and penalties apply if the order is subsequently breached.

The proposed anti-bullying provisions are modelled on those contained in the FW Act and will apply to those employees who do not have access to the FW Act protections.

The Act also creates a new general protections jurisdiction with the purpose to protect workplace rights, protect freedom of association, provide protection from workplace discrimination and provide relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of the general protections.

The Act provides protection against adverse action taken against an employee or a prospective employee on the basis of:

  • Discrimination (e.g., sex, relationship status, pregnancy, parental status, breastfeeding, age, race, impairment, religious belief or religious activity, political belief or activity, trade union activity, lawful sexual activity, gender identity, sexuality, family responsibilities)
  • An employee seeking to access a workplace right,
  • An employee undertaking industrial activities, including being a member of the union, being a delegate of the union, undertaking or promoting lawful union activity, representing or advancing the views, claims or interests of the union, or seeking to be represented by the union.
  • An employee taking domestic and family violence leave or being temporarily absent from work due to illness or injury

This provides union members in the Queensland jurisdiction with the equivalent protections and remedies that are available to the private sector and those referred to the Fair Work jurisdiction.

This provision is subject to a reverse onus of proof so that the employer must show that they did not take action for the reason alleged and it is not up to the aggrieved employee to try and prove the reason or intent of the employer’s actions as this is only within the knowledge of the person who took the action. Without this reversal, it could prove disproportionately difficult for an applicant to establish the reason why adverse action has been taken against them by the respondent.

The Act will also rationalise the different jurisdictions and give the QIRC exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991.


Fairness

The Bill passed in parliament will also amend the Public Service Act to provide greater fairness to Queensland public servants. The amended PS Act will provide that only the Minister for Industrial Relations can issue directives in relation to wages and conditions of employment, that consultation occur with public sector agencies and unions before directives are issued; and most importantly, that directives cannot be used to reduce or provide for wages and conditions of employment which are less favourable than those contained in awards or agreements.

The PS Act has also been amended to provide for a new fair treatment appeal. This is a new provision in the act that allows a public service employee to appeal a decision they believe is unfair and unreasonable. There are some exclusions (e.g., recruitment and selection, a decision of the Governor in Council or a Minister; etc) but it provides a great step forward in your protection at work and your rights to be treated fairly. The PS Act now also requires a directive to be issued relating to complaint management which will also support fairness at work and appeal rights.


Secure employment

One of the most significant aspects of this Act will be the improvement for employment security for temporary and casual employees. Together members campaigned extensively for these amendments to the original Bill through the IR Taskforce, the committee process, and MP lobbying activities. Under the pre-amended legislation a review of the temporary status of an employee was required to be undertaken but the criteria for the review were subject to change by the Public Service Commission and the appeals rights lacked teeth with the appeals officer only able to refer the decision back to the same decision maker, if the decision was badly made.

The amended Public Service Act will provide that safety net criteria are contained in a directive but that members can bargain with their employer for criteria for conversion in their industrial instruments, like their certified agreement or award. These negotiated arrangements will take precedence over the directive if they provide better arrangements. This protects the entitlement from unilateral change and allows for renegotiation and improvement over time. 

Most importantly the Act will now provide for an appeal to be made that can result in a decision to be made by the appeals officer that the employee should be permanent rather than temporary. 

The amendments to the PS Act also provide a mechanism to enable casuals who have been employed on a long-term or systematic basis to be converted to permanent employment and an appeal against that decision.


Easter Sunday Public Holiday

Easter Sunday is being declared as a public holiday because of its significance as a religious and cultural day. It was considered that work on Easter Sunday should be treated and remunerated in the same way as the Good Friday, Easter Saturday and Easter Monday public holidays that surround it. Declaration of Easter Sunday as a public holiday will make Queensland consistent with public holiday arrangements in New South Wales, Victoria and the Australian Capital Territory where Easter Sunday is already a public holiday.


Union Governance

The IR Act will remove the unnecessarily bureaucratic reporting requirement of the previous act which applied only to union and were designed to make it harder for unions to represent members and undertake political activity about industrial issues.

The new IR Act will have similar financial reporting, training and accountability requirements of the federal jurisdiction (prior to the amendments passed in November 2016). The penalties for breaching these requirements will increase from 40 penalty units to 100 penalty units.

Unions will no longer need to report all credit card statements and cab charge transactions on the internet at the end of each month but rather the Act will require unions to have policies that meet requirement set in regulation about reporting requirements for credit card expenditure.

The Act will also change the reporting obligation that interfere with the unions ability to campaign and undertake political activities, with the reporting of political party affiliation fees and the identification of political party affiliation in political advertising no longer a mandatory requirement, the current requirement to report and publish within five business days any political purpose spending of more than $10,000 per occasion is also removed.

These requirements will be replaced by an obligation to disclose to the organisation’s members and the Industrial Registrar a statement of all loans, grants and donations (including political donations) above as part of the annual reporting and filing process. Organisations must also continue to comply with the Electoral Act for the public disclosure of political purpose expenditure of more than $1,000. The requirement to file and publish twice-yearly on the internet the details of the organisation’s ten highest paid officials will be replaced with a requirement to provide all members with an annual operating report which details, amongst other matters, the remuneration of the organisation’s five highest paid officials. The annual operating report will also require the organisation to detail changes in its financial and other affairs, and declare all loans, grants and donations above $1000. Similar reporting obligations are in the FWRO Act.

The existing legislative obligations to have financial policies over a range of matters including the organisation’s credit cards; contracting activities; delegations; spending on hospitality and gifts; will continue. Organisations will also continue to maintain registers for gifts, hospitality and other benefits given and received, however, this information will be available to members upon request rather than required to be published on a website. The reportable benefits threshold is to be $150 per occasion (currently an annual threshold of $500 applies).  

As a proudly democratic organisation, Together operates with the highest degree of transparency and accountability. Details of the unions financial disclosures can be found here and in our audited accounts.