Industrial Relations and Other Legislation Amendment Bill 2022

Introduction

The Queensland Government introduced the Industrial Relations and Other Legislation Amendment Bill 2022 (Bill) into Parliament on 23 June 2022. The Bill proposes various amendments to the Industrial Relations Act 2016 (QLD) (IR Act) in response to the recommendations of an independent five-year review into the IR Act.

The changes to Queensland’s industrial laws proposed in the Bill include:

• strengthened protections for employees subject to workplace sexual harassment and sex and gender-based harassment;
• the introduction of minimum entitlements and conditions for independent courier drivers;
• improvements to the Queensland Employment Standards;
• enhancing effective representation of employers and employees by organisations registered under the IR Act; and
• enhanced equal remuneration in collective bargaining provisions.

This article provides a brief overview of the proposed changes.

Sexual harassment protections

There has been a strong emphasis on sexual harassment reforms in various Australian jurisdictions in recent years. The Bill proposes amendment to Queensland’s industrial laws to strengthen protections and expand access to remedies for employees subject to workplace sexual harassment and sex and gender-based harassment. The objective of the amendments is to deter and eliminate sexual harassment and sex or gender-based discriminatory conduct in Queensland workplaces. Key amendments include:

• Section 4(i) of the IR Act (How the main purpose is primarily achieved) to include the prevention and elimination of sexual harassment, sex or gender-based harassment;
• Section 121 of the IR Act (What employer must do to dismiss employee) to include sexual harassment or sex or gender-based harassment as a type of misconduct for the purposes of summary dismissal;
• Schedule 1 of the IR Act (Industrial Matters) to be extended to include sexual harassment and sex or gender-based harassment in the definition of ‘industrial matter’;
• Schedule 5 of the IR Act (Dictionary) to include new definitions for ‘sexual harassment’, ‘discrimination’ and ‘sex or gender-based harassment’ which align with those definitions contained in the Anti-Discrimination Act 1991 (QLD);
• Section 320 of the IR Act (Matters to be considered in deciding an application) to include a new subsection that provides the Queensland Industrial Relations Commission (QIRC) with the ability to decide that a dismissal was not harsh, unjust or unreasonable if the dismissed employee engaged in sexual harassment or sex or gender-based harassment;
• Section 473 of the IR Act (Power to grant injunctions) to include a provision that permits the QIRC to grant an injunction that it considers appropriate to prevent or settle an industrial dispute involving allegations of sexual harassment or sex or gender-based harassment; and
• Section 530 of the IR Act (Legal Representation) to include a new subsection that permits the QIRC to grant leave for legal representation for industrial matters that include allegations of sexual harassment or sex or gender-based harassment when a matter is before the Commission.

Summary of other amendments

Other than an increase to sexual harassment protections, there are several other amendments being proposed that will change the current landscape of Queensland’s industrial laws.

Introduction of minimum entitlements and conditions for independent courier drivers

There has recently been a strong emphasis on providing greater protections to those individuals working in insecure areas of employment. This Bill introduces a new Chapter 10A into the IR Act which empowers the QIRC to, on application or its own initiative, determine the minimum remuneration and working conditions for independent couriers.

The definition of independent courier in the proposed Chapter 10A captures all drivers of vehicles engaged in transporting goods and are acting as individuals, or members of a partnership, or a company where the individual driving the vehicle is an executive office of the company or a member of an executive officer’s family.

Improvements to Queensland’s employment standards

The Bill also updates Queensland’s Employment Standards (QES), through the introduction of a Chapter 18, part 6 to the IR Act, to ensure personal and parental leave provisions in the IR Act are aligned with prevailing federal standards. This includes the provision of evidence for taking leave, flexibility in how unpaid parental leave is taken including in cases of still birth, increasing the age limit for a child from 5 to 16 years of age for the purposes of adoption-related leave or cultural parent leave, and removing language that implies gendered divisions in parental care.

Enhancing the effective representation of employers and employees by organisations registered under the IR Act

The Bill also amends some terminology used in the IR Act to provide greater clarity about the rights and responsibilities of employee and employer organisations registered under the IR Act to represent employees and employers.

Under the proposed changes, employees and employers remain free to choose whether or not to become a member of an employee or employer organisation, including ineligible or unregulated entities. However, it is made clear that ineligible entities cannot lawfully represent their members’ industrial interests under the IR Act and civil penalties can be ordered against any entity which misrepresents its registration status or ability to lawfully act on behalf of a person’s industrial interests under the IR Act.

Enhancing equal remuneration in collective bargaining provisions

The Bill introduces a new mechanism to further enshrine equal remuneration for work of equal or comparable value in collective bargaining which is a unique feature in Australia’s industrial relations jurisdictions. These changes are set out in Clauses 29-65 of the Bill and include the following:

• Section 201 of the IR Act to be amended to clarify that a proposed agreement or bargaining instrument must include information setting out how equal remuneration for work of equal or comparable value will be achieved in practice;
• Section 290 of the IR Act to be amended (meaning of ‘engages in industrial activity’) to replace the term ‘industrial association’ with ‘industrial organisation’; and
• Further amendments to section 290 of the IR Act to be amended to insert a new subsection (c) which highlights when a person engages in ‘industrial activity’.

Conclusion

The proposed changes to the IR Act will have an impact on employees and employers once passed. Most notably, employers will be able to summarily dismiss employees who engage in sexually or sex or gender-based harassing conduct, and sexual harassment matters will be able to be litigated in the QIRC.

Gadens has extensive experience in advising and assisting employers on various sexual harassment matters, including workplace investigations involving allegations of sexual harassment and representing employers in industrial disputes, as well as providing expert and tailored legal advice to employers to meet their obligations.

To enquire how Gadens may be able to assist, please contact Jonathon Hadley, who leads the employment relations team in Brisbane.

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Authored by:

Jonathon Hadley, Partner
Melissa Sydney, Solicitor