On 1 December 2016, the Industrial Relations Act 2016 (IR Act) was passed by the Queensland Parliament. It introduces significant changes to the industrial relations regime for Queensland state and local government employers and employees.
The major changes include:
- up to 10 days’ paid leave per year for victims of domestic and family violence;
- a general protections jurisdiction to protect state and local government employees against adverse action during employment or dismissal from employment. An employer is prohibited from taking adverse action against an employee because:
- they have a workplace right, including the ability to complain about their entitlements;
- the employee is or is not a member of an industrial association, or engages in industrial activity;
- of a reason that would amount to discrimination i.e. because of the employee’s sex, relationship status, pregnancy, impairment etc;
- the employee is experiencing domestic violence; or
- the employee is temporarily absent due to illness;
- workplace bullying remedies for state and local government employees. An employee who reasonably believes they are being bullied can apply to Queensland Industrial Relations Commission for a stop bullying order;
- aligning Queensland’s minimum employment standards with the National Employment Standards for parental, carers and compassionate leave and the requirement to give an information statement to an employee upon the commencement of employment;
- a right to request flexible work arrangements. This is broader than the right to request flexible work arrangements under the Federal legislation. It is not limited to a need for flexible work arrangements as a result of family responsibilities or disability;
- giving the Queensland Industrial Relations Commission exclusive jurisdiction to deal with all workplace related anti-discrimination matters, including those taken under the Anti-Discrimination Act 1991;
- broadening the ability of a party to be legally represented in matters before the Industrial Court, the Queensland Industrial Relations Commission, the Industrial Magistrates Court; and
- making Easter Sunday in 2017 a public holiday.
The adverse action and workplace bullying provisions largely replicate those contained in the Federal Fair Work Act 2009 (Cth) (FW Act). An important effect of this is that an employer will bear the onus of proof in establishing that they did not take the action against the employee because of a prohibited reason.
The IR Act will commence in the near future.
Recommended action for employers
Employers who are covered by the IR Act should:
- review leave policies to ensure that they are consistent with the entitlements under the IR Act. In some cases, employers may need to develop new policies in relation to domestic and family violence leave;
- review and/or develop policies in relation to responding to requests for flexible working arrangements. An employer is not obliged to approve an employee’s request for a flexible working arrangement but is required to show that it had reasonable grounds for refusing a request;
- undertake training for managers and employees in relation to the new general protections and anti-bullying provisions. Experience shows that day to day management activities can easily give rise to claims of contravention of these provisions and that managers need training and guidance to give them the confidence to proceed lawfully; and
- ensure they can prove the reasons why action was taken in relation to an employee (for example, the reasons for a dismissal, demotion or transfer). Employers should expect that decision-makers will be required to give evidence as to the reason that they took the action. In most cases, it will assist to have corroborating evidence like a draft of the letter or accompanying briefing note, although obviously these documents will likely be required to be disclosed unless protected by legal professional privilege.