Overhaul of Queensland industrial relations laws: Queensland state government agencies and public sector human resources and legal staff need to know

1. ClarkeKann is a commercial law firm with offices in Brisbane and Sydney. Our expertise covers commercial & corporate transactions, employment & IR, financial services, litigation, risk
management and insolvency, property transactions and resources projects, across a range of industries. For a full list of our legal services, please visit our website at
www.clarkekann.com.au. To update your contact details or unsubscribe to any of our publications, email us at publications@clarkekann.com.au.
This bulletin is produced as general information in summary for clients and subscribers and should not be relied upon as a substitute for detailed legal advice or as a basis for formulating
business or other decisions. ClarkeKann asserts copyright over the contents of this document. This bulletin is produced by ClarkeKann. It is intended to provide general information in
summary form on legal topics, current at the time of publication. The contents do not constitute legal advice and should not be relied upon as such. Formal legal advice should be sought
in particular matters. Liability limited by a scheme approved under professional standards legislation. Privacy Policy
1. Background
1.1 On 1 September 2016 the Palaszczuk Government introduced the Industrial Relations Bill 2016 (Bill). The Bill
adopts several recommendations of the report published in December 2015 into Queensland's Industrial
Relations (“IR”) laws.
1.2 Queensland's IR laws already bear many similarities to the federal legislation, including minimum core
employment standards, right of entry provisions, an unfair dismissal regimeand processes for the negotiation of
collective agreements. However, there are differences, including the absence of regimes for bullying and adverse
action.
1.3 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 Some changes were repealed in 2015.
1.4 This paper examines five aspects of the Bill which, when enacted, will become important matters for government
lawyers and HR/IR practitioners to consider when advising employers and agencies subject to the IRAQ.
2. Considerations for lawyers and HR/IR practitioners
2.1 Lawyers and HR/IR practitioners can expect an entirely new “Industrial Relations Act”.
2.2 Once enacted, the changes will have a direct impact on State and local government sectors and some statutory
entities specifically excluded from the national system. Aspects of the Bill examined in this paper are as follows:
(a) the inclusion of general protections and discrimination provisions;
(b) new leave and flexibility entitlements;
(c) anti-bullying provisions;
Changes to Queensland Industrial Relations Laws:
What Government lawyers and HR/IR practitioners need to know
Author // Murray Procter September 2016

2. - 2 -
(d) express legislative recognition of mutual trust and confidence; and
(e) changes to collective bargaining.
2.3 Another consideration for lawyers and HR practitioners is that the Queensland Industrial Relations Commission
will have exclusive jurisdiction to deal with appeal rights for a range of employment matters previously dealtwith
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 The Bill 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 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.
3.3 The categories of conduct will be expanded. The categories of employees who may bring claims are also
expanded.
3.4 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.
3.5 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).
3.6 The “general protections” and “adverse action” provisions are contained at Part 1 of Chapter 8 of the Bill.
3.7 Relevantly, the description of a “workplace right” is as follows:
(1) A person has a workplace right if the person:
(a) has a right has a right to the benefit of, or has a role or responsibility under, an
industrial law, industrial instrument or order made by an industrial body; or
(b) is able to start, or participate in, a process or proceedings under an industrial law
or industrial instrument; or
(c) is able to make a complaint or inquiry—
(i) to an entity having the capacity under an industrial law to seek
compliance with that law or an industrial instrument; or
(ii) if the person is an employee—in relation to his or her employment.
3.8 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 or
agency, against an employee) is defined (under section 282 of the Bill) as:
(a) dismissing an employee;
(b) injuring an employee in their employment;
(c) altering the position of an employee to their prejudice; and

3. - 3 -
(d) discriminating between an employee and other employees of the employer/agency.
3.9 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.
3.10 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 (or agency) 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 (or agency) must prove that the action was taken for a non-prohibited
reason.
(c) If the adverse action was taken for several reasons, the employer (or agency) must prove that none of
the reasons was a prohibited reason.
(d) If the employer (or agency) cannot prove the reason/s were not prohibited, the employee will succeed in
their claim.
3.11 Evidence of the decision maker’s reasons for the adverse action will be critical for the employer or agency to
“prove their innocence” and usually managers will have to give evidence. Detailed record keeping will assist here.
3.12 Damages available to employees include injunctions, reinstatement, compensation (including for hurt and
humiliation) and penalties. Employees can seek an order that any penalty imposed be payable to the employee.
3.13 Learning from cases litigated under the FWAC provisions, there are several risks that departments, local
governments and other employers and agencies 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;
(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 Family Violence Leave
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, the Bill provides for up to 10 days paid
domestic family violence (DFV) related leave annually for employees other than casual employees. DFV leave is

4. - 4 -
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.
4.2 Also, if required by the agency, the employee may have to provide supporting information to demonstrate that
leave for the purpose of attending to a DFV related matter is necessary.
4.3 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”.
4.4 The proposed domestic violence provisions may have several practical and legal issues for agencies. 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) the leave is for people who “have experienced” domestic family violence, however it may be that
anticipated domestic family violence needs to be considered, and human resources staff may need to
consider duty of care issues; and
(c) unplanned leave management processes should be considered.
Right to request Flexible Working Arrangements
4.5 Whilst the Bill is directed at providing several minimum employment rights similar to those contained in the
FWAC, one of these is the right to request flexible working arrangements.
4.6 The “right to request” provisions under the FWAC are available where:
(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 or agency may refuse the request only on reasonable business grounds.
Reasonable business grounds include:

5. - 5 -
. matters relating to the costliness of the flexible working arrangements for the employer/agency;
. 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 (or agency) 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 agency, or otherwise it might be reviewed by the
QIRC.
5. Anti-bullying provisions
5.1 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.
5.2 Once the Bill is enacted, an employee who “reasonably believes” they have been bullied at work can applyto the
QIRC for an order to stop the bullying.
5.3 There is no requirement that an internal process be followed before lodging an application, although that is a
factor the QIRC must consider before making an order. The employer (or agency) will receive a copy of the
complaint, may respond, and the QIRC can deal with the complaint through mediation, conference orhearing.
5.4 A stop bullying order will be made when a worker has been bullied at work, unless the allegedbullying behaviour
is “reasonable management action” carried out in a reasonable manner.
5.5 The QIRC’s powers are broad and in effect it can regulate the inner workings of a workplace. If the QIRC the
FWC is satisfied that:
(a) the worker has been bullied at work by an individual or a group of individuals; and
(b) there is a risk that the worker will continue to be bullied at work by the individual or group
then the QIRC 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.
5.6 Examples of orders available could include:
(a) for an employee or other person to stop the conduct;
(b) for the employer or agency to monitor conduct;
(c) for the employer or agency to develop policies and procedures;

6. - 6 -
(d) for the employer or agency to provide support or training to employees; or
(e) for workers to attend mediation, counselling, be transferred, or to apologise.
5.7 An important consideration in any claim is usually whether the alleged bullying was “reasonable management
action”. Managers, legal and HR 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.
5.8 Making a bullying complaint amounts to exercising a “workplace right”. If an employee makes a complaint and is
later treated negatively, employers or agencies 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).
6. Express legislative recognition of mutual trust and confidence
6.1 In Commonwealth Bank of Australia v Barker
1
, the High Court found there was no implied term of mutual trust
and confidence in employment contracts. The Court (per French CJ, Bell and KeaneJJ) suggested that
enshrining the implied term is a matter more appropriate for the legislature than the courts.
6.2 The Bill seeks to legislate to give effect to such an implied term. The Bill provides that its purpose is to promote
and recognise the mutual obligation of trust and confidence in the employment relationship.
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. Agencies 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 collective bargaining
7.1 The IRAQ sets out principles for good faith negotiations at section 146. The Bill adds to these. Essentially, the
good faith bargaining provisions under the FWAC have been adopted.
7.2 The Bill provides that bargaining parties must:
(a) attend and participate in bargaining meetings;
(b) disclose relevant information, other than confidential or commercially sensitive information, in a timely
way;
1
[2014] HCA 32

7. - 7 -
(c) genuinely consider proposals made by other parties and—
(i) respond in a timely way; and
(ii) give reasons for the party’s response;
(d) not engage in capricious or unfair conduct that undermines freedom of association or the collective
bargaining process.
7.3 Agencies 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:
(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 The Bill 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 the Bill will be passed through Parliament.
8.2 In relation to the general protections and adverse action provisions, employers and agencies 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 agencies
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 agencies
should ensure management action is well documented, is motivated by legitimate reasons and is conducted
appropriately.
8.5 It remains important for employers and agencies to exercise care and fairness when dealing with employees. The
expanded roles for the QIRC, with the purpose of the laws to promote 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

8. - 8 -
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
07 3001 9225
m.procter@clarkekann.com.au
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.