Late amendments to Industrial Relations Bill expand public service appeal rights

The Industrial Relations Bill 2016 was passed by the State Parliament early in the morning of 1 December 2016. As you would be aware, it will introduce a number of new concepts into Queensland public sector industrial relations law including:

• an anti-bullying jurisdiction
• general protections (or adverse action) rights
• mutual obligations of trust and confidence in the employment relationship
• a new bargaining system
• work-related discrimination matters to be handled by the Queensland Industrial Relations Commission (QIRC), rather than the Queensland Civil and Administrative Tribunal, and
• a number of other changes.

During the period prior to the Act commencing operation, we will provide a number of specific detailed updates about some of these issues.

However, the purpose of this update is to alert you to amendments to the Bill that were made before it was passed by Parliament.

Review of the casual status of an appealable matter

The original Bill included a provision to be inserted into the Public Service Act 2008 (PS Act) requiring the Public Service Commission Chief Executive to make a directive relating to reviewing the status of casual employees (in a similar way to the existing provisions relating to the review of the status of temporary employees).

The amendments to the Bill passed on 1 December insert a new public service appeal right allowing employees to appeal decisions about whether the employee will remain as a casual employee. Importantly, if the allotted time for such a decision passes without a decision being made about the employee’s casual status, a decision to keep the employee as a casual will be deemed to have been taken.

Therefore, as with decisions regarding the status of a temporary employee, a casual employee will be able to bring a public service appeal about an actual decision made relating to their casual status. However, entities covered by the PS Act need to be aware that, if the allotted time for a casual status decision passes without a decision being made, the casual employee may also appeal that ‘decision’ as a public service appeal. If no consideration has been given to the casual status of the employee, this will make defending such an appeal very difficult.

PS Act employers should therefore put in place processes and procedures which ensure that the casual status of their casual employees is proactively reviewed and decided prior to the time frame allotted by the directive.

‘Fair treatment decisions’ – open to public service appeals

In addition to the existing list of decisions which can form the basis of a public service appeal, the Act will introduce an ability for public service employees to appeal any decision they believe is ‘unfair and unreasonable’, other than a decision:

• made under chapter 5, part 7 of the Public Service Act 2008 (Qld) (relating to mental or physical incapacity, including medical examinations and medical retirement)
• decisions made under chapter 6, part 2 relating to disciplinary action, other than:
  • a finding that a disciplinary ground exists, or
  • a decision to suspend a person without pay.
• a decision relating to the recruitment or selection of a public service employee
• a decision relating to a person’s work performance (other than formally recorded decisions in periodic performance reviews)
• a decision relating to the resolution re grievance under an industrial instrument, other than a decision about the outcome of a grievance, or
• a decision relating to the development or performance management of a chief executive or senior executive.

This significantly broadens the public service appeal rights of public service employees.

Harder and slower to move from conciliation to arbitration

In its original form, the Bill provided that a member of the QIRC who was conciliating a collective bargain could cease conciliating and refer the matter directly to arbitration (where industrial action would become unprotected) if they considered there was no reasonable likelihood that further conciliation or negotiation would result in the parties reaching agreement within a reasonable period (regardless of how long the conciliation had been proceeding or the period of time since the expiry of the previous agreement).

Amendments to the Bill made on 1 December mean that, unless all negotiating parties agree to refer the matter to arbitration, the conciliating Commissioner must also be satisfied that the negotiating parties have been negotiating for the later of:

• six months from the nominal expiry date of the certified agreement or bargaining award that applies, or
• three months from the date conciliation commenced.

In effect, this means that (unless all negotiating parties agree to request the QIRC to arbitrate) the QIRC will be unable to commence arbitrating a disputed enterprise bargain in the public sector until at least six months have passed since the nominal expiry date of the existing applicable instrument. This could therefore expose the relevant public service employer to a minimum six month period of protected industrial action if agreement cannot be reached or all parties do not agree to request the QIRC to arbitrate.

The McCullough Robertson employment relations team, who are experts in public sector industrial relations matters, will be giving a breakfast seminar in relation to the new bargaining regime under the new Act on 15 February 2017. Details are on our website.

If you would like to discuss any of the matters outlined in the Bill, please contact us.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.