Overhaul of Queensland's industrial relations laws

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1. Background

1.1 Queensland's Industrial Relations (“IR”) laws already bear many similarities to the federal legislation, including minimum core employment standards, right of entry provisions, an unfair dismissal regime and processes for the negotiation of collective agreements. However, there are differences, including the absence of regimes for bullying and adverse action.

1.2 The Industrial Relations Act 1999 (Qld) (“IRAQ”) (which commenced in 1999), was not significantly amended until 2012 (albeit 74 amending acts have been introduced since that time). Several amendments were introduced by the Newman Government that resulted in the IRAQ being more aligned to the Fair Work Act 2009 (Cth) (“FWAC”). Some changes were repealed in 2015.

1.3 On 20 August 2015, the Palaszczuk Government announced a review of Queensland’s IR jurisdiction and framework. In December 2015, a report was handed down (the “Report”) that included 68 recommendations (the “Recommendations”) which, if implemented, will affect Queensland’s IR framework, laws and tribunals.

1.4 The Government will probably adopt the Recommendations, and that a bill will be put to Parliament shortly.

1.5 A full examination of all of the Recommendations is beyond the scope of this paper. Rather, this paper examines 5 aspects of the Recommendations which government lawyers should consider when advising employers subject to the IRAQ.

2. Considerations for Lawyers

2.1 Lawyers can expect an entirely new “Industrial Relations Act” – while the Report doesn’t indicate what the new legislation might be called, we presume it will be called the “Industrial Relations (Fairness and Balance) Act 2016 (Qld)”, or something to that effect.

2.2 Most of the Recommendations will have a direct impact on the State and local government sectors and some statutory entities specifically excluded from the national system. Aspects of the Recommendations examined in this paper are as follows:

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(a) the inclusion of general protections and discrimination provisions;

(b) new leave and flexibility entitlements;

(c) anti-bullying provisions;

(d) express legislative requirement of mutual trust and confidence; and

(e) changes to collective bargaining

2.3 Another consideration for lawyers is that the Queensland Industrial Relations Commission will have exclusive jurisdiction to deal with appeal rights for a range of employment matters previously dealt with under the Public Service Act 2008 (Qld), and employment related anti-discrimination claims (although these are not examined in this paper).

3. General Protections and Adverse Action

3.1 Recommendation 44 provides for the inclusion of similar provisions to the “general protections” and “adverse action” provisions of the FWAC. These provide employees (and prospective employees and independent contractors) with an additional and robust cause of action, even if an employee’s employment has not been terminated.

3.2 Recommendation 44 provides:

“...That the Act provide for a consolidated mechanism in relation to proceedings dealing with ‘general protections’ matters including where the outcome is dismissal, and for ‘adverse action’ which does not lead to the dismissal of an employee”

3.3 Presently, the IRAQ provides a remedy for “unfair dismissal” in certain circumstances, including for “invalid reasons”. However, the ability for an employee to bring a claim of this nature is only available when an employee has been dismissed (except for section 107 IRAQ). These provisions have historically been reserved for conduct related to industrial association.

3.4 The categories of conduct will be expanded. The categories of employees who may bring claims are also expanded.

3.5 Remedies will now be available to employees for certain unlawful actions that do not result in a dismissal, based on the exercise (or non exercise) of “workplace rights”, including making complaints or enquiries in relation to their employment.

3.6 It is likely the only material difference from the FWAC regime is that disputes will be heard by the Queensland Industrial Relations Commission (“QIRC”), rather than a court (except for the Industrial Court of Queensland, on appeal from the QIRC).

3.7 The “general protections” and “adverse action” provisions are contained at sections 340 to 345 FWAC.

3.8 Section 341 FWAC provides this definition of “workplace right”:

(1) A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

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(ii) if the person is an employee--in relation to his or her employment.

3.9 It is imperative those who deal with performance management, disciplinary issues and terminations are trained and aware of the operation of these provisions. This is because “adverse action” (taken by an employer against an employee) is defined (under section 342 FWAC) as:

(a) dismissing an employee;

(b) injuring an employee in their employment;

(c) altering the position of an employee to their prejudice; and

(d) discriminating between an employee and other employees of the employer.

3.10 Adverse action therefore does not just include a dismissal or demotion. It can include:

(a) transferring an employee to another position;

(b) starting an investigation process;

(c) issuing a warning letter;

(d) altering a roster;

(e) suspension; or

(f) treating an employee less favourably than another employee.

3.11 One of the most important considerations arising from these provisions (and which has been the subject of much judicial attention) is the reverse onus of proof. This has the effect that an employer must “prove their innocence”. This operates as follows:

(a) Once an employee establishes that they held a workplace right or protected attribute, and that adverse action has been taken against them, there is a statutory presumption that the action was taken for a prohibited reason.

(b) To avoid liability, the employer must prove that the action was taken for a non-prohibited reason.

(c) If the adverse action was taken for several reasons, the employer must prove that none of the reasons was a prohibited reason.

(d) If the employer cannot prove the reason/s were not prohibited, the employee will succeed in their claim.

3.12 Evidence of the decision maker’s reasons for the adverse action will be critical for the employer to “prove their innocence” and usually managers will have to give evidence. Detailed record keeping will assist here.

3.13 Damages available to employees include injunctions, reinstatement, compensation (including for hurt and humiliation) and penalties. Employees can seek an order that any penalty imposed on an employer be payable to the employee.

3.14 Learning from cases litigated under the FWAC provisions, there are several risks that departments, local governments and other employers subject to the IRAQ changes will face if managers and decision makers are not appropriately trained. For example:

(a) uninformed decision making may lead to contraventions;

(b) performance management arising out of legitimate concerns and motivated by good management outcomes does not amount to unlawful conduct;

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(c) just because a decision maker knows of a fact when making their decision may not mean the decision was made because of that fact, although the decision maker must prove it;

(d) decision makers may be joined as an “accessory” to the alleged contraventions.

4. New Leave and Flexibility Requirements

Domestic Violence and Leave Recommendations

4.1 Domestic violence issues have been heavily publicised in Queensland over the past 12 months. To provide a “comprehensive workplace response” to domestic family violence, Recommendation 30 provides:

“…a new clause in the Queensland Employment Standards be inserted to provide up to 10 days paid domestic family violence (DFV) related leave annually for employees other than casual employees. Such leave is to be non-cumulative. An employee may access up to 10 days paid leave in each year for DFV related purposes for reasons including but not limited to:

(a) injury recovery

(b) attending medical, legal, police, counselling and other DFV related appointments

(c) court preparation

(d) attending court

(e) obtaining safe housing

(f) organising child care or education matters

(g) undertaking other DFV related activities.

If required by the employer, the employee may have to provide supporting information to demonstrate that leave for the purpose of attending to a DFV related matter is necessary…

Information disclosed by an employee in relation to DFV will be kept confidential except to the extent that disclosure is required or permitted by law”.

4.2 Recommendation 31 extends the DFV leave in unpaid form to long term casuals.

4.3 Recommendation 35 also prohibits dismissal on the grounds of DFV (and this would be linked to the general protections and adverse action provisions explained above).

4.4 The proposed domestic violence provisions will have several practical and legal issues for employers. For example:

(a) human resources staff must be well trained in effective management of confidential employment information, including information relating to domestic family violence;

(b) it is unclear from the Recommendation, but is likely that leave to address anticipated domestic family violence is covered, and human resources staff may need to consider duty of care issues; and

(c) unplanned leave management processes must be reviewed.

Right to Request Flexible Working Arrangements

4.5 Recommendation 41 is directed at providing minimum employment rights similar to those contained in the FWAC, not contained in the IRAQ. One of these is the right to request flexible working arrangements.

4.6 The “right to request” provisions under the FWAC are available where:

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(a) the employee is the parent, or has responsibility for the care, of a child of school age or younger;

(b) the employee is a carer (within the meaning of the Carer Recognition Act 2010 (Cth));

(c) the employee has a disability;

(d) the employee is 55 or older

(e) the employee is experiencing violence from a member of the employee’s family; and

(f) the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.

4.7 The FWAC provides that an employer may refuse the request only on reasonable business grounds. Reasonable business grounds include:

. matters relating to the costliness of the flexible working arrangements for the employer;

. there is no capacity or it is impractical to change working arrangements for other employees or to hire new employees;

. the new arrangements would cause a significant loss in efficiency and productivity; and

. there would be a significant negative impact on customer service.

4.8 The FWAC includes no capacity for an employee to seek a review of a decision by an employer to refuse to grant flexible working hours.

4.9 A similar right to request will now be provided, except with two key differences:

(a) the right to request wont be limited to statutorily prescribed circumstances; and

(b) employees aggrieved by the outcome of a request will have access to a disputes procedure and the QIRC to determine reasonableness, without ‘example grounds’ of reasonableness being included as in the FWAC.

4.10 Any refusal is likely to have to reflect the particular circumstances of the person requesting the flexible working arrangements, and the needs of the particular employer, or otherwise it might be reviewed by the QIRC.

5. Anti-bullying Provisions

5.1 To encourage organisations to review and upgrade their dispute resolution processes, Recommendation 32 provides:

That employees covered by the Act be given access to a similar anti-bullying jurisdiction through the Queensland Industrial Relations Commission as that provided through the Fair Work Commission.

5.2 Workers in the Queensland IR jurisdiction have protection from workplace bullying through the Work Health and Safety Act 2011 (Qld). The overarching principle is to ensure safe systems of work in order eliminate or reduce workplace bullying. Complaints are dealt with internally, and an applicant may lodge a complaint with Workplace Health and Safety Queensland.

5.3 Under the FWAC, an employee who “reasonably believes” they have been bullied at work can apply to the Fair Work Commission (“FWC”) for an order to stop the bullying.

5.4 Under the FWAC, the FWC has jurisdiction to conciliate individual complaints. There is no requirement that an internal process be followed before lodging an application, although that is a factor the FWC must consider

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before making an order. An employer will receive a copy of the complaint, may respond, and the FWC can deal with the complaint through mediation, conference or hearing.

5.5 A stop bullying order will be made when a worker has been bullied at work, unless the alleged bullying behaviour is “reasonable management action” carried out in a reasonable manner.

5.6 The FWC’s powers are broad and in effect it can regulate the inner workings of a workplace. Section 789FF FWAC provides:

(1) If:

(a) a worker has made an application under section 789FC; and

(b) the FWC is satisfied that:

(i) the worker has been bullied at work by an individual or a group of individuals; and

(ii) there is a risk that the worker will continue to be bullied at work by the individual or group

then the FWC may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the worker from being bullied at work by the individual or group. [emphasis added]

5.7 Examples of orders available could include:

(a) for an employee or other person to stop the conduct;

(b) for the employer to monitor conduct;

(c) for the employer to develop policies and procedures;

(d) for the employer to provide support or training to employees; or

(e) for workers to attend mediation, counselling, be transferred, or to apologise.

5.8 An important consideration in any claim is usually whether the alleged bullying was “reasonable management action”. Managers and legal teams should consider strategies to help identify and manage the risk of bullying, such as:

(a) refining policies and procedures and/or codes of conduct for dealing with:

(i) bullying and harassment;

(ii) grievance resolution (including an investigation process); and

(iii) disciplinary action,

(b) appoint and train internal contact officers;

(c) provide training to all staff on policies and procedures; and

(d) ensure complaints are investigated thoroughly and implement disciplinary action when required.

5.9 Making a bullying complaint amounts to exercising a “workplace right”. If an employee makes a complaint and is later treated negatively, employers must be able to prove the negative treatment was not because the employee made a complaint, to avoid a successful adverse action claim (discussed above).

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6. Express Legislative Requirement of Mutual Trust and Confidence

6.1 In Commonwealth Bank of Australia v Barker1, the High Court found there was no implied term of mutual trust

and confidence in employment contracts. The Court (per French CJ, Bell and Keane JJ) suggested that enshrining the implied term is a matter more appropriate for the legislature than the courts.

6.2 Recommendation 37 seeks to legislate to give effect to such an implied term. It provides:

….the legislation provide that the Queensland Industrial Relations Commission, in exercising a power or function, give effect to the need to observe mutual obligations of trust and confidence.

6.3 It is difficult to envisage circumstances where this will itself be a basis for a separate claim, rather it will most likely be raised as a matter for consideration in other claims where fairness is in issue, such as unfair dismissal claims, and public sector appeal rights. Employers should have regard to this in all dealings with employees, but specifically where:

(a) an employee may be suspended or is under investigation;

(b) an employee is undergoing performance management and counselling; or

(c) an employee is participating in the consultation or redeployment phase of a redundancy process.

7. Changes to Bargaining

7.1 The IRAQ sets out principles for good faith negotiations at section 146. The Report suggests these provisions provide limited detail and establish only basic safeguards - and that the good faith bargaining provisions under the FWAC should be included in the IRAQ.

7.2 Recommendation 22 provides:

That the Good Faith Bargaining provisions in the Act include the following minimum requirements:

(a) attending, and participating in, bargaining meetings;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association provisions or collective bargaining.

7.3 Employers should understand the potential reach of these obligations before the commencement of bargaining to avoid any claims being brought against them for non compliance.

7.4 Under the FWAC, the FWC has made orders for a failure respond to proposals made by other bargaining representatives in a timely manner in circumstances where an employer did not respond to a log of claims for over one month.

7.5 Genuine consideration of proposals must be given. Cases before the FWC have shown that it may be a breach to reject all proposals advanced for consideration and not offer any alternatives.

7.6 The requirement to refrain from “capricious or unfair conduct” has been interpreted broadly. Conduct that will not be unfair or capricious includes:

1 [2014] HCA 32

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(a) communicating directly with employees if the purpose is to influence them; and

(b) putting a proposed agreement to vote without the agreement of other bargaining representatives when bargaining has reached a stalemate.

7.7 Recommendation 24 includes other matters relevant to collective bargaining. Two matters of particular interest are:

(a) the power for the QIRC to make “scope orders” to deal with circumstances where negotiating parties cannot agree on the coverage of a proposed agreement (modelled on the FWAC, which have been the subject of considerable dispute in the FWC at times); and

(b) flexibility in the instrument which is the outcome of bargaining (the instrument can be a certified agreement or “bargaining award”). A “bargaining award” will entirely replace a pre-existing award, which would be cancelled, making the bargaining award the “new safety net”.

8. Conclusion

8.1 It is likely that all of the Recommendations will be passed through Parliament.

8.2 In relation to the general protections and adverse action provisions, employers must consider the reverse onus of proof when deciding adverse to the interests of an employee, especially where there is a “workplace right” issue which may be raised.

8.3 The changes to leave provisions and flexible work rights will raise several practical and legal issues for employers and care must be taken when dealing with employees exposed to domestic family violence, or responding to requests for flexible work.

8.4 The anti-bullying provisions will require a reconsideration of policies and complaints procedures, and employers should ensure management action is well documented, is motivated by legitimate reasons and is conducted appropriately.

8.5 It remains important for employers to exercise care and fairness when dealing with employees. The expanded roles for the QIRC, with the requirement for the QIRC to have regard to the mutual employment obligation of trust and confidence, may lead to increased attention being paid to the concept of fairness in decisions about promotion, transfer, deployment and performance management.

8.6 Good faith bargaining obligations add further “ground rules” to collective bargaining, and used appropriately can enhance a party’s bargaining position. The ability for the QIRC to make scope orders, and for collective agreements to be converted into bargaining awards, will be matters bargaining participants must consider when developing their collective bargaining strategies.

FOR MORE INFORMATION, PLEASE CONTACT:

MURRAY PROCTER // Partner

61 7 3001 9225

[email protected]

Acknowledgement is given to Ashlee Miller, Lawyer, ClarkeKann Lawyers, in compiling this paper.

The Employment, Industrial Relations and Safety Team of ClarkeKann Lawyers is a primary provider for the Workplace and Industrial category on the Queensland Government Whole of Government Legal Services Panel.

// Murray Procter, Partner

WWW.CLARKEKANN.COM.AU

THE INDUSTRIAL RELATIONS

FRAMEWORK REVIEW

What it means for government lawyers in a

period of change

INTRODUCTION

Introduction

Review

Changes to

collective

bargaining

New leave

and

flexibility

“General

Protections”

and “Adverse

Action”

Anti-bullying

provisions

Mutual trust

and

confidence

QIRC

jurisdiction

expanded

GENERAL PROTECTIONS & ADVERSE ACTION

General protections and adverse action

Workplace rights

Workplace right to make a complaint or enquiry

Workplace right to minimum entitlements

Workplace role or responsibility

Workplace right to engage in a process or proceeding

Adverse action in connection with unlawful discrimination eg race,

gender etc

Freedom of association

Adverse action because of a workplace right

General protections and adverse action

Dismissing

an

employee

“Injuring” an

employee in their

employment

Altering the

position of an

employee to their

prejudice

Discriminating

between an

employee and other

employees of the

employer

Adverse

action

General protections and adverse action

Examples of adverse action

Transferring an employee to another position

Starting an investigation process

Issuing a warning letter

Altering a roster

Suspension

Treating an employee less favorably than another employee

General protections and adverse action

Because of:

Requires a determination of fact as to the reasons which

motivated the person who took the adverse action (CFMEU v

BHP)

Even if one of the reasons for termination is a prohibited

reason – will be a breach:

Managers required to provide evidence of the reasons they took

the action

! Important consideration – the reverse onus of proof

General protections and adverse action

Remedies

Injunction

Reinstatement

Uncapped compensation (including for hurt and humiliation)

Penalties

Beware: decision

makers as accessories

General protections and adverse action

Adverse action – selection for redundancy

National Tertiary Education Union v Royal Melbourne Institute

of Technology

Professor who was “troublesome”

made complaints

Court satisfied part of reason she

was made redundant was for a prohibited reason (making the

complaints)

Professor reinstated as compensation would have been over

$2 million dollars

Discrimination (mental disability)

State of Victoria (Office of Public Prosecutions) v Grant

Depressed solicitor terminated for misconduct

FC found Victorian Office of Public Prosecutions took unlawful

adverse action against the solicitor when it dismissed him for

misconduct that "arose wholly" from his anxiety and depression

– over $90,000 compensation paid and

reinstatement

Overturned on appeal – FC finding that

mental illness could not be “disaggregated”

was unsafe

General protections and adverse action

Traps

Uninformed decision making

Is any part of a decision that will adversely affect an employee

connected with

A complaint?

Unlawful discrimination?

Union activity?

Decision makers may be joined as an “accessory” to

the alleged contraventions

General protections and adverse action

General protections and adverse action

Tips

Paperwork to

support decision

made – beware

disclosure

Clear

decision making

processes

Single

decision maker,

if appropriate

Quarantine

facts,

if appropriate

DOMESTIC FAMILY VIOLENCE

Domestic violence leave provisions

10 paid days

annually, non-

cumulative

DFV related

Confidentiality

Duty of care?

Management

processes

RIGHT TO REQUEST FLEXIBLE WORKING

ARRANGEMENTS

Right to request flexible working

arrangements

Entitlement

to request

No limit on

reasons for

request

Refusal

can only be

given on

reasonable

grounds

Appeal to

QIRC

ANTI-BULLYING PROVISIONS

Anti-bullying

A worker who reasonably believes they have been bullied

at work may apply to the QIRC for an order to prevent the

bullying

Worker makes an application

QIRC must start to deal with the application within 14 days

QIRC makes order preventing bullying

Anti-bullying

QIRC can make “stop bullying” orders:

Stop conduct; monitor conduct, development of policies/procedures,

require compliance with policy, employer to provide information/extra

support/training to workers, mediation, counselling, transfer of

bullier, written warnings, apology

Worker may seek a penalty if there is a contravention of a stop

bullying order

The

worker

HAS been

bullied

There is a

RISK it

will

continue

Order to

stop

bullying

Anti-bullying

A worker is NOT bullied:

Single incident

“Reasonable management action”

proper performance management

reasonable supervisory practices

allocation of work according to

employment practices

operational reasons (changes or restructuring)

Reasonableness of action taken by employer established objectively

(actual reasons of decision-maker are not relevant)

The test for

“unreasonableness”:

• The particular

circumstances

• Policies or procedures

followed

• Investigations in a

timely manner

MUTUAL TRUST AND CONFIDENCE

Mutual trust and confidence

High Court decision in CBA v Barker

Additional matter for QIRC to consider

Employers need to consider decisions about:

! suspension or investigation

! consultation or redeployment

! performance management or counselling

! promotion or transfer

CHANGES TO COLLECTIVE BARGAINING

Changes to collective bargaining

Bargaining awards

Good faith bargaining

Scope orders

CONCLUSION

QUESTIONS

CONTACT US

Murray Procter

Partner

D // 07 3001 9225

M // 0402 967 171

Brisbane

Level 7, 300 Queen Street, Brisbane 4000

T // 07 3001 9222

F // 07 3001 9299

EMPLOYMENT , INDUSTRIAL RELATIONS

AND SAFETY BRISBANE TEAM

A Primary Provider for Workplace and Industrial

on the Whole of Government Legal Services Panel