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Australia – Amendments To Queensland’s Industrial Relations System And Laws.

6 November, 2013

 

Legal News & Analysis – Asia Pacific – Australia – Labour & Employment

 

WHAT YOU NEED TO KNOW

 

  • The Industrial Relations (Fair Work Act Harmonisation No.2) and Other Legislation Amendment Bill 2013 proposes to amend the existing industrial relations framework under the Industrial Relations Act 1999 (Qld) in some significant respects.
  • The proposed amendments will impact on the existing workplace arrangements for employers and employees operating within the Queensland industrial relations jurisdiction – predominantly the Queensland government, Queensland government owned authorities and local governments.
  • The Bill is currently before the Legal Affairs and Community Safety Committee for review, with the majority of the proposed amendments due to commence on 1 December 2013.

 

Background


On 17 October 2013, the Attorney General tabled before the Queensland Parliament the Industrial Relations (Fair Work Act Harmonisation No. 2) and Other Legislation Amendment Bill 2013 (the Bill).


The Bill proposes to reform Queensland’s industrial relations framework by amending the Industrial Relations Act 1999 (Qld) (IR Act), the Hospital and Health Boards Act 2011 (Qld), the Trading (Allowable Hours) Act 1990 (Qld) and the Superannuation (State Public Sector Act) 1990 (Qld).


The Bill is currently before the Legal Affairs and Community Safety Committee for consideration. There was a public briefing on the Bill on 30 October 2013 and a public hearing of the Bill on 1 November 2013. The Committee is due to report back to Parliament by 14 November 2013.


If the Bill passes, the majority of the proposed amendments are set to commence on 1 December 2013.


Why Amend The IR Act?


The proposed amendments contained in the Bill arise in response to recommendations made by the Queensland Commission of Audit and the Blueprint for better health care in Queensland.


The Bill seeks to address three of the recommendations made by the Queensland Commission of Audit. These were that:

 

  • The IR Act be updated to ensure it is modern, flexible and relevant to the public sector (Recommendation 130).
  • Awards continue to provide the basis for public sector wages and conditions, but should only include matters not covered by legislation or public service directives. Further, that the number of awards that apply in the public sector should be significantly reduced (Recommendation 131).
  • Certified agreements only contain wages and conditions of employment for specific groups of employees which are outside award conditions and which are linked to improvements in productivity and performance. All certified agreements are to be approved by the Public Service Commission (Recommendation 132).

The Attorney General has said that the proposed amendments are essential for providing a ‘modern flexible and responsive industrial relations framework’.


The Proposed New IR Act Framework


The Bill proposes to amend the existing industrial relations framework by:

 

  • Implementing a new set of core employment standards;
  • Putting in place a process to modernise awards;
  • Amending existing laws regulating the content of certified agreements;
  • Amending existing arrangements for bargaining and the taking of protected industrial action; and
  • Implementing employment contracts for high-income senior employees.

Queensland Employment Standards


The Queensland Employment Standards (QES) will be a new set of core employment standards. They are based on the existing IR Act minimum conditions and the National Employment Standards (NES) as set under the Fair Work Act 2009 (Cth) (Fair Work Act).
The QES consist of minimum standards relating to:

 

  • Minimum wage;
  • Annual leave, personal leave (including sick leave, carer’s leave, bereavement leave and cultural leave), parental leave, jury service leave and long service leave;
  • Public holidays;
  • Notice of termination and redundancy pay.

Although the QES are much more detailed than the NES, they do not mirror the NES and so, for example, do not make provision for maximum weekly hours of work or requests for flexible working arrangements.


Award Modernisation


The Bill also proposes to modernise and rationalise the 83 existing state and local government awards. The Queensland Industrial Relations Commission (QIRC) is tasked with carrying out the process of award modernisation.


The Bill sets out the what content can and can’t be included in a modern award. So, for example, modern awards must include consultation provisions, dispute resolution provisions and individual flexibility arrangement provisions.


Modern awards must not include any provisions regarding training arrangements, workload management, delivery of services or workforce planning.


Further, modern awards may include other permitted content such as, for example, allowances, overtime and penalty rates and superannuation (so long as those matters are not non-allowed matters).


Certified Agreements


The Bill also narrows the scope of permitted matters that can be included in a certified agreement. Certified agreements can in future only contain terms in relation to wages and conditions directly linked to the employment relationship.
Certified agreements must not include provisions that:

 

  • Provide for an engagement or classification that is inconsistent with the relevant underpinning awards;
  • Conflict with the IR Act’s provisions regarding industrial action;
  • Conflict with the IR Act’s provisions regarding freedom of association;
  • Require an employer to manage workloads in a particular way;
  • Restrict access to training arrangements; or
  • Restrict the efficient delivery of services.

In addition a certified agreement must not include provisions about unfair dismissal or any remedy arising from termination of employment other than as provided for in the IR Act as to notice and redundancy pay.


Other Non-Allowable Content


The Bill also sets out a range of non-allowable matters that cannot be included in any certified agreement or modern award, such as provisions that:

 

  • Restrict contracting out;
  • Provide for employment security or maximising permanent employment;
  • Encouragement provisions, such as those which encourage a person to join or maintain membership of an industrial association;
  • Require an employer to notify or consult an entity in relation to making a decision about organisational change;
  • Incorporate a policy document;
  • Provide for a right of entry;
  • Discriminate against an employee; or
  • Displace a provision of the QES (unless the provision is no less favourable than the QES).

 

Changes To The Bargaining Process.


Another proposed change in the Bill is the introduction of specific timeframes in which assisted conciliation and arbitration (by the QIRC) can occur.


During the conciliation and arbitration periods, industrial action taken by a negotiating party is not protected industrial action.


Conciliation


Following the expiry of the “peace obligation period” (ie, 21 days after the proposer of the certified agreement has advised the other parties of the proposal to make a certified agreement) the QIRC must help the negotiating parties make a new certified agreement if:

 

  • All of the negotiating parties agree to ask the QIRC for help to negotiate a new agreement;
  • At least one negotiating party tells the QIRC that negotiations have broken down and the QIRC considers further negotiations will not result in an agreement being made within a reasonable time; or
  • At least one negotiating party asks the QIRC for help to negotiate a new agreement and the QIRC considers that a negotiating party is organising, engaging, or threatening, relevant industrial action.

Relevant industrial action is limited to industrial action that:

 

  • Has been protracted; or
  • Has caused, is causing or is threatening to cause, damage to: the economy, the local community, a single enterprise or the employees;
  • Has endangered, is endangering or threatens to endanger the health, safety or welfare of the community;
  • Affects, or threatens to affect, directly or indirectly, access to or delivery of, services to the community or part of it; or
  • Cumulatively has affected, or threatens to affect, directly or indirectly, access to or delivery of, services to the community or part of it.

It does not include an application for a protected action ballot order.


Arbitration


When conciliation is unsuccessful a written conciliation report must be provided to the Vice President of the QIRC within 14 days.


The Full Bench of the QIRC must then determine the matter by arbitration within 90 days (which can be extended by another 90 days if required).


When determining a matter the Full Bench must consider (among other factors) the merits of the case and the public interest.


In terms of the public interest, this includes a consideration of matters such as:

 

  • The likely effect of the proposed arbitration determination on the economy and the community or a part of the economy or community;
  • The employer’s efforts to improve productivity in the enterprise or industry concerned;
  • Flexibility of work practices to meet the operational requirements of the enterprise or industry concerned;
  • The employer’s ability to enter into a high income guarantee contract with individual employees; and
  • Where a matter involves a public sector entity, the state’s financial position and fiscal strategy and the financial position of the public sector entity and the likely effect of the arbitration determination.

Arrangement For High-Income Senior Employees

The Bill also provides for statutory individual employment contracts for high-income senior employees.


A high-income senior employee is defined as a person engaged in a high-income position, which is a position:

 

  • Where the person is remunerated more than $129,300 (the high-income threshold); and
  • Prescribed under a regulation as a high-income position; or
  • Not covered by an award; or
  • Of a senior health service employee under the Hospital and Health Boards Act 2011 (Qld).

The Bill provides that on and from 1 December 2013, a person who has a contract of employment, and who holds a high-income position, is engaged under a high-income guarantee contract.


The result is that certain provisions of the IR Act do not apply to those employees, such as:

 

  • The unfair dismissal provisions of the IR Act if a dismissal is harsh, unjust or unreasonable; and
  • Certain provisions of the IR Act regulating awards, modern awards, certified agreements and protected industrial action.

Other Matters


Other relevant points of note:

 

  • The President of the Industrial Court (David Hall) has retired. The new President is to be a Supreme Court Judge appointed on a part-time basis.
  • Certain powers relating to the regulation of industrial organisations, as previously under the jurisdiction of the Industrial Court, are to be transferred to the jurisdiction of the QIRC.
  • The Queensland Workplace Rights Office is to be decommissioned and the position of Ombudsman disbanded.
  • Right of entry powers and powers to require information as possessed by inspectors are to be broadened to cover unions.
  • Employers are prohibited from facilitating deductions of industrial association membership fees from an employee’s wages.

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For further information, please contact:

 

Vince Rogers, Partner, Ashurst
[email protected]


Shannon Chapman, Ashurst
[email protected]


Mitchell Robertson, Ashurst
[email protected]

 

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