By Christy Miller (Partner) of Clayton Utz.
Queensland’s public sector should brace themselves for the significant changes and new responsibilities that will be brought in overnight by the new Industrial Relations Act 2016 (Qld) (IR Act 2016), which commences from tomorrow, 1 March 2017.
Longer lead times, and scope orders in new collective bargaining framework
The new collective bargaining framework is a key area that has the potential to significantly impact public sector bargaining processes both in terms of the time taken to bargain and the number of Agreements required.
The new bargaining process largely reflects the good faith bargaining provisions of the Fair Work Act 2009 (Cth) (Fair Work Act). Bargaining can commence six months before the nominal expiry date (as opposed to the current 60 days) resulting in a more protracted negotiating period. This will only be slightly curtailed by the introduction of a Peace Obligation Period of 21 days, following the notice of intent to bargain or a scope order. During this time no protected industrial action can be taken.
The introduction of scope orders means that agencies potentially will have to negotiate a larger number of certified agreements covering smaller groups of employees, in circumstances where a union, or representative group is able to outline the appropriateness of limiting the proposed scope.
There are also transitional provisions for agencies who have existing applications for certification on foot at the time of commencement of the Bill. Proposed agreements awaiting certification will be taken to be certified under the IR Act 2016 if certain conditions are met and collective bargaining negotiations that have already commenced will also be subject to transitional provisions affecting protected industrial action, protected action ballots and conciliation. Ensuring you are up to speed with the new changes will be essential to conclude any ongoing bargaining processes.
New protections against workplace bullying
New protections in relation to workplace bullying have been introduced, similar to those available under the Fair Work Act.
Their aim is to prevent bullying of current employees, with Queensland Industrial Relations Commission (QIRC) having the power to issue stop bulling orders within 14 days of an application being made. Bullying and harassment policies and procedures will need to be reviewed to ensure they provide a mechanism to appropriately respond to and minimise these types of complaints while at the same time recognising the increased oversight role given to the QIRC, and how this can be managed accordingly.
Access to “general protection claims” has also been included, such that public sector employees will have the right to make adverse action claims during their employment or in relation to termination of employment. There are also new protections for freedom of association claims and workplace discrimination.
There is a new statutory right to request flexible working arrangements, which can only be refused on reasonable grounds. What amounts to reasonable grounds is not defined in the IR Act 2016, however guidance can be obtained from the prescribed list of matters in the Fair Work Act, including financial impact, no capacity to change, impracticality, loss of efficiency or productivity and/or negative impact on customer service.
These new protections may increase the number of employee grievances and external claims that the public sector will need to manage and as such it will be prudent to ensure that your agency has an effective employee grievance procedure in place that not only accommodates the mandatory employee complaints directive, as required under the Public Service Act 2008 (Qld) (Public Service Act), but is also flexible enough to accommodate these new types of employee claims and provides a clear framework to manage and resolve disputes.
In addition to managing these new protections, agencies must be mindful of how these claims will impact other rights and obligations unique to the public sectors such as public interest disclosures, right to information claims and Crime and Corruption Commission referrals. There is a high likelihood that bullying / general protections claims, will also need to be treated as a PID ‒ bringing with it enhanced statutory obligations on the employer, confidentiality restrictions, further rights to claim reprisal, and the need for consideration of protection plans. Policies should be read side by side to identify and reduce the complexity of managing complaints across these statutory regimes
Mutual trust and confidence
The Bill maintained the inclusion of the recognition of the mutual obligations of trust and confidence as a factor of how the main purpose of the IR Act 2016 is to be achieved. In light of the 2014 High Court decision that this obligation does not form part of Australian law, and in response to stakeholder submissions, the Office of Industrial Relations has clarified that the intention is to support rather than expand existing protections for employees. However this will still be an opportunity to push the boundaries and may give rise to further claims.
Anti-discrimination matters and other procedural matters
Despite early predictions that this may be amended, the QIRC will have exclusive jurisdiction to deal with all workplace related anti-discrimination matters. The Queensland Civil and Administrative Tribunal will retain jurisdiction over other discrimination matters.
Some of the other procedural matters which were changed prior to the Bill being passed include:
- inclusion of further detail regarding where legal representation is permitted, which is generally to be by consent of the parties, and only by leave of the QIRC in matters before the full bench of the QIRC (other than collective bargaining arbitration where no legal representation is permitted);
- enabling the QIRC at any stage of proceedings, or a party to the proceedings before the hearing starts, to refer a matter to the full bench of the QIRC; and
- providing the minister with the power to appeal against a decision of the QIRC.
Converting casual employees to permanent under the Public Service Act
In relation to the process introduced to convert long-term casuals to permanent employees, temporary employees in the public sector have a right to be advised of the chief executive decision within 28 days of the review date, or as provided in the industrial instrument.
A note was added to the Bill which provides that the failure by the chief executive to make a decision is taken to be a decision that the employee’s employment in the department is to continue as a temporary employee according to the terms of the existing employment.
Appeal rights under the Public Service Act
In relation to appeals:
- a casual employee can bring an appeal in relation to a casual review of status decision; and
- a public service employee who is aggrieved by a fair treatment decision can also bring an appeal against such decision.
However, perhaps in an attempt to avoid opening the floodgates, there are provisions preventing multiple appeals made on the same issue and enabling QIRC members to decline to hear certain appeals unless they are satisfied that the appellant has used procedures required to be used under the employee complaints directive, unless it would be unreasonable to do so (for example, according to the explanatory memorandum, due to procedural fairness or timing issues).
Getting your agency ready for the Industrial Relations Act 2016
There are significant new rights that will be afforded to employees under the Bill. Once the new IR Act 2016 commences tomorrow, all public sector employers need to:
- understand those rights;
- minimise complexity by ensuring policies don’t duplicate effort or provide for conflicting avenues to address these rights; and
- ensure that a clear paper trail for grievance resolution is in place, on the understanding that the QIRC will have the power to monitor bullying / adverse action claims and make decisions that may impact managerial prerogative.
These changes will take place overnight and all provisions of the IR Act 2016 not already in force will commence from tomorrow, 1 March 2017.
This article first appeared on the Clayton Utz website and has been reproduced with permission.
Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.