The terms of reference have been released for the first comprehensive review of Queensland’s IR laws since 1998. It has a broad scope, and will allow the Government to consider the IR framework and recommendations for reform.
The review will impact on Queensland's Industrial Relations Act 1999, which applies to Queensland Government departments, local governments, statutory authorities and certain state bodies.
A comprehensive review is not unusual in IR law. There have been many Federal reviews, most recently with the former Government reviewing the operation of the Fair Work Act 2009 after three years of operation. The Productivity Commission is currently reviewing the operation of the IR regulatory framework federally following the release of Issues Papers in January this year. The Commission's draft report, released on 4 August 2015, suggests however:
“Contrary to perceptions, Australia’s labour market performance and flexibility is relatively good by global standards, and many of the concerns that pervaded historical arrangements have now abated. Strike activity is low, wages are responsive to economic downturns and there are multiple forms of employment arrangements that offer employees and employers flexible options for working.”
In the State, no such reviews have occurred.
Queensland's IR system
The IR Act, which commenced in 1999, was not significantly amended until 2012. During the same period, the Federal legislation changed considerably. After the Workplace Relations Act 1996 commenced, it was then significantly amended to become WorkChoices in 2006, and then reformed in 2009 to become the Fair Work Act.
During this period, the State law was relatively unchanged, save only for the breadth of the jurisdiction.
WorkChoices, relying on the Corporations Power in the Constitution, took trading corporations into the Federal jurisdiction in 2006. Queensland also referred IR matters for the unincorporated private sector to the Commonwealth in 2009, along with the majority of the other states.
These changes have meant that the vast majority of Australians, approximately 87% in 2010, are regulated by the Federal system.
Queensland's IR jurisdiction now accounts for approximately 15% of employees in Queensland.
However, Queensland's IR Act more recently also undertook considerable change. During 2012-2013, the Newman Government introduced significant changes to the Act across six rounds of amendments, including some amendments to "harmonise" the IR Act with the Fair Work Act:
- the adoption of minimum core employment standards, similar to the National Employment Standards;
- the creation and operation of modern awards, akin to the Federal model;
- restrictions on the content of certified agreements, including to prohibit provisions about job security, contracting out and union encouragement.
Some of the changes, such as the restrictions on the content of certified agreements, were repealed earlier this year. Other initiatives, such as the modernisation of awards, were varied and awards that were previously made will be reconsidered as part of the new wave of reform.
While looking at potential reform, the State Government has also established an Industrial Relations Legislative Reform Reference Group to carry out a review of Queensland’s IR laws.
Scope of the review of Queensland’s IR laws
The terms of reference for the review include the examination of:
- the best arrangements for IR regulation in Queensland;
- whether local government IR needs are better served in the State or Federal jurisdiction;
- potential areas for and benefits of further harmonising Queensland’s IR laws with the Fair Work Act 2009;
- the appropriate structure, role, functions, powers and independence of IR tribunals in Queensland;
- contemporary and emerging IR matters in the State jurisdiction such as workplace bullying, domestic and family violence, gender equality, work-life balance, and changes in standard working arrangements.
The review is due to report to Government by December 2015 with recommendations for legislative amendment.
According to the terms of reference, the review will involve broad consultation and the opportunity for stakeholders to make formal submissions, however details have not yet been released.
Further harmonisation with the Fair Work Act
The review foreshadows the potential for further harmonisation with the Fair Work Act.
Queensland's 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 agreements.
There are however differences, including the absence of regimes for bullying and adverse action.
What should employers do
The review will create opportunities for interested participants to get involved through consultation, with information about submissions and timeframes to be released shortly.