How the amendments to the Industrial Relations Act 2016 affect Local Government

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Published: 8th November 2022

Written by Troy Wild, Legal Practice Director, and Natalie Hope, Principal Workforce Advisor

Industrial Relations Act 2016 Amendments

On 28 October 2022, the Queensland Parliament passed amendments to the Industrial Relations and Other Legislation Amendment Bill 2022 (the Bill), with the Bill receiving royal assent on 7 November 2022. The Bill, absorbed 31 recommendations made by former Queensland Industrial Relations Commissioner John Thompson and former Attorney-General Linda Lavarch, following their engagement to undertake a five-year review of the Industrial Relations Act 2016 (the Act).

The major changes to the Act, that will impact Queensland local governments, are as follows:

strengthened protections for employees subject to workplace sexual harassment and sex or gender-based harassment by providing conciliation, arbitration and injunctive powers to the Queensland Industrial Relations Commission (QIRC);
expansion of domestic and family violence leave;
improvements to entitlements under the Queensland Employment Standards including parental and adoption leave, extension of entitlements to those who experience still birth and changes to evidence requirements for personal leave; and
enhanced requirements to ensure equal employment and gender pay equity for employees in collective agreements.

Key amendments proposed by the Bill include:

Sexual Harassment or Sex and Gender-based Harassment

The changes to the Act include provisions that support ‘preventing and eliminating sexual harassment and sex or gender-based harassment’ as follows:

Inclusion of sexual harassment and sex or gender-based harassment as a type of misconduct for the purposes of summary dismissal i.e. allowing dismissal without providing a period of notice or payment in lieu of notice;
Definition of ‘industrial matters’ to be extended to include sexual harassment and sex or gender-based harassment;
New definitions for ‘sexual harassment’, ‘discrimination’ and ‘sex or gender-based harassment’ which align with the definitions contained in the Anti-Discrimination Act 1991 (QLD);
Matters to be considered in deciding an application for reinstatement to include a new subsection that provides the 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;
QIRC power to grant injunctions that it considers appropriate to prevent or settle an industrial dispute involving allegations of sexual harassment or sex or gender-based harassment; and
Inclusion of a new section that permits the QIRC to grant leave for legal representation for proceedings before the QIRC, other than the full bench, where the matter involves allegations of sexual harassment or sex or gender-based harassment.

Improvements to the Queensland Employment Standards

Changes to the QES provisions and introducing Chapter 18, Part 6, within the Act is intended to align the Act with prevailing federal standards in the areas of parental leave and personal leave. Further, it also extends on domestic and family violence leave entitlements. Changes include:

Confirmation that sick leave taken is exclusive of a public holiday that falls during the leave period;
Removal of the reference to ‘doctor’s certificate’ or ‘statutory declaration’ from the evidence requirements for taking of sick or carers leave. The new requirement will be to give the employer sufficient evidence to satisfy a reasonable person;
Extension of parental leave in the cases of stillborn children, who has been gestated for 20 weeks or more and/or weighs 400g or more;
Additional flexibility in how unpaid parental leave is taken, including insertion of a new section that allows for a maximum of 30 days unpaid flexible parental leave, where an employee, who is entitled to the 52 weeks unpaid parental leave under the QES, has taken less than the 52 weeks leave;
Use of term ‘birth-related’ leave, as opposed to ‘maternity’ leave, and ‘employee’ rather than ‘she’, to ensure gender equality;
Changes to parental leave evidence requirements by removal of reference to ‘doctor’ and including ‘health practitioner’;
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
Extension of 10 days paid domestic and family violence leave to casual employees.

Enhancing equal remuneration in collective bargaining provisions

The Act amendments implement equal remuneration for work of equal or comparable value in collective bargaining which is largely not found in federal or other state jurisdictions. These changes include the following:

Clarify that a proposed agreement or bargaining instrument must include information setting out how equal remuneration for work of equal or comparable value is implemented or will be implemented;
Requirement for the employer to disclose as soon as practicable after commencing negotiations, information relevant to the gender pay gap under the proposed collective agreement, including:
- the distribution of the employees by gender;
- details of the gender pay gap;
- any major factors identified as contributing to the gender pay gap;
- if appropriate, the projected effect of the proposed instrument on the gender pay gap;
- other information relevant to the gender pay gap reasonably requested by another party to the negotiations; and
- other information relevant to the gender pay gap prescribed by regulation.

The Act clarifies that the ‘gender pay gap’ refers to the difference between the average weekly full-time equivalent earnings of male employees and female employees covered by the proposed instrument.

What does this mean for Councils?

The proposed changes to the Act, will impact employees and employers across local government, noting that the QES provisions are minimum entitlements. Councils are strongly encouraged to review their policies to ensure compliance with the introduced changes.

Further, the additional requirements placed on employers to provide EEO data during negotiations and to include information (a clause) into collective agreements regarding remuneration equality, will likely require further consideration, particularly in relation to those Councils who have reached in-principal agreement on a new collective agreement, commenced consultation and/or have undertaken a ballot, but have not yet made an application or achieved certification with the QIRC. Councils who are in this situation, are encouraged to contact Peak Services for guidance.

The Peak Services Legal Team encourages you to contact us on (07) 3000 2148 or as part of your member services phone the LGAQ IR Helpdesk on 1300 542 700.