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Industrial Relations Amendment Bill 2005
Industrial Relations Amendment Bill 2005
Explanatory Notes
General outline
Short Title
Industrial Relations Act Amendment Bill 2005
Policy Objectives
The purpose of the Bill is to ensure that Queensland employees continue to
enjoy a fair and balanced industrial relations system regardless of
developments at the federal level. This will be achieved by building on the
industrial relations framework established under the Industrial Relations
Act 1999 (the Act).
The Bill will amend the Act to:
(a) encourage the adoption of wage structures that encourage the
development of employees' skills;
(b) ensure that apprentices who complete their apprenticeships are
paid at least the minimum trade rate relevant to their trade;
(c) ensure that the overall pay and conditions for outworkers are fair
and reasonable when compared with the pay and conditions of
workers who perform the same work at the employer's premises
under a relevant award; and
(d) provide particular categories of employees with the following
additional minimum entitlements:
(i) jury service make-up pay;
(ii) 38 hour ordinary working week;
(iii) paid overtime;
(iv) unpaid meal breaks of at least 30 minutes after 5 hours'
work;
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Industrial Relations Amendment Bill 2005
(v) annual leave loading of 17.5 per cent;
(vi) casual loading of 23 per cent;
(vii) shift loadings of 12.5 per cent for afternoon shift and 15
per cent for night shift;
(viii) overtime rates for working on public holidays;
(ix) weekend penalty rates of 25 per cent for Saturday work
and 50 per cent for Sunday work;
(x) redundancy payments; and
(xi) require employees to give at least one week's notice of
termination to their employers.
The entitlements in paragraph (d) will only apply to awards and agreements
(federal or State) made after 1 September 2005, and only if the award or
agreement does not exclude the relevant condition or make alternative
provision for it. In other words, these conditions will fill the gaps in future
awards and agreements created by the federal Government's proposals, for
example the gaps caused by the proposed removal of matters from federal
awards. The entitlements will not affect non-award employees.
Reasons for the policy objectives
These amendments are considered necessary in light of the Prime
Minister's announcement on 26 May 2005 that the federal Government will
remove four conditions from federal awards and remove the nexus between
federal awards and federal agreements.
The four conditions to be removed from federal awards are: notice of
termination, long service leave, jury service pay and superannuation. The
federal Government has justified removing these conditions on the basis
that they are enshrined in legislation and therefore superfluous in awards.
However, the removal of these matters from federal awards will
disadvantage some employees, because some federal awards provide
greater entitlements than those provided by statute and employees covered
by those awards will lose their superior entitlements. For example, jury
service will be removed from federal awards. Queensland provides a
statutory allowance to all persons summoned for jury service which varies
from $30 to $120 per day. Under many federal awards (about 42 per cent
of them), employees are also entitled to jury service make-up pay, being the
difference between the statutory allowance and their ordinary wages. Once
jury service is removed from federal awards, employees will lose their
award entitlement to make-up pay.
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Industrial Relations Amendment Bill 2005
The federal Government's proposal to remove the nexus between federal
awards and federal agreements is also likely to seriously disadvantage
employees. Currently, the federal legislation requires federal agreements
to pass the "no disadvantage" test, which involves an independent tribunal
(the Australian Industrial Relations Commission) comparing the agreement
against the relevant minimum safety net award to ensure that employees on
agreements are generally no worse off. Federal awards which operate as
this benchmark currently contain up to 20 employment conditions. The
federal Government proposes to replace the no disadvantage test with a
comparison between federal agreements and five bare minima, which will
be determined by the federal Government and the proposed Australian Fair
Pay Commission. In other words, federal agreements will be allowed to
contain just five bare minimum conditions and these agreements will take
legal precedence over federal awards, State awards and State protective
legislation, such as the parental leave standards in Queensland's Act. The
federal legislation allows these agreements to be presented to prospective
employees on a "take it or leave it" basis.
There is no indication, at this stage, whether the above federal proposals
will affect employees under State awards and agreements. However, the
federal Government has announced that it will attempt to create a national
industrial relations system based on the `corporations power' and, if it is
successful, it could attempt to extend the above proposals to all State
employees working for `constitutional corporations'.
The Queensland Government is committed to protecting Queensland
workers, regardless of whether they are covered by federal or State awards
or agreements.
How the policy objectives will be achieved
To the extent constitutionally possible, the Bill will protect employees who
lose entitlements as a result of the federal Government's removal of
particular entitlements from awards and the removal of current safeguards
in relation to agreement making. The Bill will do this by ensuring that
basic employment conditions continue to be available for employees,
regardless of whether they work under the Queensland or federal
jurisdictions.
The Act contains a set of minimum employment conditions which operate
as a fair safety net for employees. These minimum conditions will be
extended and improved upon so that they cover Queensland employees
who stand to lose employment conditions as a result of the federal
Government's policies.
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Industrial Relations Amendment Bill 2005
The amendments will not interfere with existing employment
arrangements, nor impede the making of awards and agreements to suit the
particular circumstances of the relevant workplace or industry. They will
apply to awards and agreements that are made after 1 September 2005, but
only if the award or agreement is silent with respect to the relevant
employment entitlement. For example, if an agreement provides an all-up
hourly rate for casual employees and states that no additional loadings or
penalties are to apply, then the agreement will override the loadings and
penalties applicable to casual employees in the Act.
The only two exceptions to this are new sections 8B, which deals with the
development of employees' skills; and 8C, which deals with the pay and
conditions of outworkers. These minimum entitlements will apply to all
employees, regardless of whether they are covered by an award or
agreement or when it was made.
Awards and agreements made after 1 September 2005 will be able to either
rely on the statutory entitlements or make alternative provision for them.
To protect parties who have negotiated certified agreements before 1
September 2005 but have not had them certified by that date, the Bill
provides that the new minimum entitlements (other than those providing
for skills development and outworkers) do not apply if the application to
certify the agreement was made on or before 1 September 2005.
Alternative means of achieving policy objectives
The options open to the States for responding to the federal Government's
proposals are limited, because of the federal Government's ability to
override State laws under section 109 of the Constitution of the
Commonwealth of Australia.
The Queensland Government has repeatedly requested the federal
Government to work cooperatively with the States on a harmonised
national industrial relations system. However, the federal Government has
ignored this request.
Estimated Administrative Cost to Government for
Implementation
There are no anticipated increases in costs for government arising from this
legislation.
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Industrial Relations Amendment Bill 2005
Consistency with Fundamental Legislative Principles
The Bill has been drafted in accordance with the fundamental legislative
principles prescribed by the Legislative Standards Act 1992.
Consultation
Consultation with government agencies, unions and employer
organisations has occurred on the Bill.
Notes On Provisions
Short title
Clause 1 sets out the short title of the Bill.
Commencement
Clause 2 provides that the Bill commences on 1 September 2005.
Act amended
Clause 3 provides that the Bill amends the Industrial Relations Act 1999
(Act).
Replacement of ch 2, pt 1, div 1A hdg
Clause 4 renumbers Chapter 2, Part 1, Division 1A to Chapter 2, Part 1,
Division 1AA.
Insertion of ch 2, pt 1, new divs 1AB and 1AC
Clause 5 inserts two new Divisions into the Act which provide minimum
entitlements for all employees.
Division 1AB Development of skills of employees
Division 1AB provides minimum entitlements to enhance the development
and recognition of the skills of employees.
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Industrial Relations Amendment Bill 2005
Section 8B (1) requires employers to structure the wages of employees in a
way that encourages the development of the employees' skills, where
appropriate to the employer's industry and the relevant employees' calling.
For example, this could be done by providing a wage structure based on an
employee's attainment of skills and knowledge.
Section 8B (2) provides that an employee, who completes an
apprenticeship in a trade and works in that trade, must be paid at least the
minimum trade rate specified in the relevant award.
Division 1AC Pay and conditions of particular
outworkers
Division 1AC provides minimum entitlements for outworkers who are not
covered by an award.
Section 8C(1) provides that the section applies to a person, not covered by
an award, who is engaged in the performance of work for someone else's
calling or business and performs that work in or about a private residence
or some other premises that are not business or commercial premises.
Section 8C(2) provides that the pay and conditions of the persons referred
to in 8C(1) must be fair and reasonable when compared with the pay and
conditions of employees who perform the same kind of work at an
employer's business premises under a State or federal award. A person
who considers their pay and conditions are not fair and reasonable could,
for example, seek redress by applying to the commission under section 276
(Power to amend or void contracts) of the Act to have the matter
determined.
Amendment of s 9 (Working time)
Clause 6 amends the heading to section 9 (Working time) to clarify that it
applies to employees under industrial instruments made on or before 1
September 2005. However, section 9 does not apply to employees under
certified agreements where the agreement was made prior to 1 September
2005, but the application to certify the agreement was made after 1
September 2005 (such employees will be subject to section 9A).
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Industrial Relations Amendment Bill 2005
Insertion of new s 9A
Clause 7 inserts a new section 9A into the Act to provide minimum
entitlements, such as overtime, loadings and penalty rates, for particular
employees.
Section 9A applies to employees under state industrial instruments made
after 1 September 2005 and federal awards, federal certified agreements
and Australian workplace agreements made, varied or approved after 1
September 2005. It does not apply to employees under State awards
amended after 1 September 2005. The provision also clarifies that section
9A does not apply to employees under either State or federal certified
agreements where the application to certify the agreement was made on or
before 1 September 2005.
However, section 9A does not apply if the relevant award, agreement or
instrument provides otherwise. For example, if the award, agreement or
instrument specifies a different rate for an entitlement to the rate specified
in section 9A, the rate in the award, agreement or instrument applies.
Section 9A(2) provides maximum ordinary working hours as follows:
(a) 6 days in any 7 consecutive days; or
(b) 38 hours in any 6 consecutive days; or
(c) 7.6 hours in any day.
Work outside these hours must be paid at the overtime rates specified in
section 9A(3). These rates are:
(a) for shiftworkers double time; and
(b) for other workers time and a half.
Section 9A(4) provides that if an employee is paid at a higher rate than the
minimum rate provided for in their award, agreement or instrument then
the overtime rate must be worked out on the higher rate.
Section 9A(5) provides rest pauses for employees. The section provides
that an employee is entitled to a rest pause of at least 10 minutes in each 4
hours of working time, where practicable.
Section 9A(6) provides that the rest pause is to be counted as part of the
employee's working time. Where continuity of work is necessary, the rest
pause must be taken when it does not interfere with the continuity of the
work.
Section 9A(7) provides meal breaks for employees. The section provides
that an employee is entitled to an unpaid meal break of at least 30 minutes
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Industrial Relations Amendment Bill 2005
when required to work for more than five hours. The break is to be taken
between the fourth and sixth hours of work.
Section 9A(8) provides that if an employee is required to work without a
meal break of at least 30 minutes after 5 hours, then the employee is
entitled to be paid double the rate they would have been entitled to for the
30 minutes of work.
Section 9A(9) provides rates for shift workers. `Shift work' is defined in
section 9A(12) as a system in which employees perform their ordinary
hours of work in separate shifts. The rates are as follows:
(a) for ordinary time worked from Monday to and including Friday
(i) at least 12.5% more than the shift worker's ordinary rate if the
shift worker works an afternoon shift (a shift finishing after 6
p.m. but at or before midnight if the majority of the ordinary
hours worked are between those times); and
(ii) at least 15% more than the shift worker's ordinary rate if the shift
worker works a night shift (a shift finishing after midnight and at
or before 8 a.m., or a shift where the majority of ordinary hours
worked are between those times); and
(b) for ordinary time worked on Saturdays at least 25% more than the
shift worker's ordinary rate; and
(c) for ordinary time worked on Sundays at least 50% more than the
shift worker's ordinary rate.
Section 9A(10) provides rates for weekend work performed by employees
who are not shift workers. The rates are as follows:
(a) for ordinary time worked on Saturdays at least 25% more than the
employee's ordinary rate;
(b) for ordinary time worked on Sundays at least 50% more than the
employee's ordinary rate.
Section 9A(11) provides the ordinary rate and overtime rate for casual
employees, as follows:
(a) ordinary rate - at least 123% of the ordinary rate for a permanent
employee for the work performed, worked out on an hourly basis.
(b) overtime rate at least the overtime rate specified in subsection
9A(3), worked out on the rate for casual employees in subsection
9A(11)(a).
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Industrial Relations Amendment Bill 2005
The rate in subsection 9A(11)(a) is to be used as the basis for calculating
the other rates that might be applicable to an employee under section 9A.
For example, if a casual employee's ordinary hours include working on a
Saturday, the minimum applicable rate is:
(i) 123% of the ordinary hourly rate of a permanent employee; plus
(ii) 25% more than (i).
Section 9A(12) provides definitions for afternoon shift, night shift,
overtime and shift work.
Insertion of new s 13A
Clause 8 inserts a new section 13A into the Act to provide a minimum
annual leave loading for employees.
It applies to employees under state industrial instruments made after 1
September 2005 and federal awards, federal certified agreements and
Australian workplace agreements made, varied or approved after 1
September 2005. It does not apply to employees under State awards
amended after 1 September 2005. The provision also clarifies that section
13A does not apply to employees under either State or federal certified
agreements where the application to certify the agreement was made on or
before 1 September 2005.
Section 13A does not apply if the relevant award, agreement or instrument
provides otherwise.
The annual leave loading provided by section 13A is at least 17.5% of the
ordinary rate being paid to the employee immediately before the leave is
taken. However, if the employee receives a bonus or similar payment in
addition to their annual leave entitlement, and the bonus or similar payment
is the same or more than the annual leave loading provided for by section
13A, the employee is not entitled to be paid the annual leave loading
specified in section 13A. If the bonus or similar payment is less than the
annual leave loading provided by section 13A then, the employee is
entitled to also receive the difference between the bonus or similar payment
and the annual leave loading specified in 13A.
Insertion of new ch 2, pt 1, div 3A
Clause 9 inserts a new Division 3A into the Act to provide jury service
leave for employees who are required to be absent from work to perform
jury service.
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Industrial Relations Amendment Bill 2005
Section 14A(1) provides that jury service leave applies to employees (other
than casual employees) under state industrial instruments made after 1
September 2005 and federal awards, federal certified agreements and
Australian workplace agreements made, varied or approved after 1
September 2005. It does not apply to employees under State awards
amended after 1 September 2005. The provision also clarifies that section
14A does not apply to employees under either State or federal certified
agreements if the application to certify the agreement was made on or
before 1 September 2005.
Section 14A does not apply if the relevant award, agreement or instrument
provides otherwise.
Section 14A(2) provides that if an employee is required to attend for jury
service, then the employee is entitled to jury service leave and must tell the
employer as soon as practicable, about the requirement to attend and the
period for which they are required.
Section 14A(3) provides that an employee who is given a document
relating to jury service must give the employer the document or a copy of
the document. This document will generally be a juror statement,
remittance advice or similar document provided to the employee by the
court evidencing the person's attendance for jury service, the number of
days the person attended and the amount received for the attendance.
Section 14A(4) provides that the employer must pay the employee the
difference between the amount the employee is entitled to receive as
remuneration and allowances (other than meal allowances) under the Jury
Act 1995 and the ordinary rate the employee would have been paid if the
employee had not taken jury service leave.
Section 14A(5) provides that the employer must pay the amount payable
under section 14A(4) on or before the first pay day practicable after the
employee gives the employer the document or copy under 14A(3).
Section 14A(6) provides that if an employee is not required to serve on a
jury after attending for jury service and the employee would ordinarily be
working on that day then the employee must present for work at the earliest
reasonable opportunity, if practicable.
Section 14A(7) defines a document relating to jury service as meaning a
document about the employee's attendance for jury service, the number of
days of attendance and the amount received as remuneration and
allowances, other than meal allowances, under the Jury Act 1995; employee
as not including a casual employee; jury service leave as the leave taken by
an employee required to attend for jury service; and required to attend for
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Industrial Relations Amendment Bill 2005
jury service as meaning that an employee is given a summons to attend for
jury service under section 28 of the Jury Act 1995 or is instructed to attend
for jury service under section 38 of the Jury Act 1995.
Amendment of s 15 (Public holidays)
Clause 10 expands the entitlement to public holidays in section 15 of the
Act to employees covered by federal awards and agreements made, varied
or approved after 1 September 2005. The section does not apply to
employees under federal certified agreements if the application to certify
the agreement was made on or before 1 September 2005.
Section 15(4), (5) and (10) are amended to refer to a relevant instrument
instead of an industrial instrument.
Amendment of s69 (Continuity of service - transfer of calling)
Clause 11 amends section 69 by inserting subsection 4A which clarifies
that a transferred employee is not entitled to a redundancy payment, under
the new Division 1AA in Part 4 of Chapter 3 of the Act, in relation to the
transfer, unless the instrument in section 85A provides otherwise.
Insertion of new ch 2, pt 7
Clause 12 inserts a new part 7 into Chapter 2 of the Act to provide for
minimum periods of notice to be given by employees to employers.
Section 71A(1) provides that the section applies to employees under state
industrial instruments made after 1 September 2005 and federal awards,
federal certified agreements and Australian workplace agreements made,
varied or approved after 1 September 2005. It does not apply to employees
under State awards amended after 1 September 2005.The provision also
clarifies that section 71A does not apply to employees under either State or
federal certified agreements where the application to certify the agreement
was made on or before 1 September 2005.
Section 71A does not apply if the relevant award, agreement or instrument
provides otherwise.
Section 71A(2) provides that an employee must give an employer at least 1
week's notice.
Section 71A(3) provides that if an employee does not give the notice
required in section 71A(2), the employer may deduct, from the employees
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Industrial Relations Amendment Bill 2005
wages, the amount that would have been payable to the employee at the
ordinary rate for the period for which notice was not given.
Amendment of s 84 (Minimum period of notice required)
Clause 13 amends the heading to section 84 of the Act, which currently
reads Minimum period of notice required. As amended, the heading will
read, Minimum period of notice required from employers.
Insertion of new ch 3, pt 4, div 1AA
Clause 14 inserts a new Division 1AA into Chapter 3 Part 4 of the Act to
provide redundancy payments for employees.
Section 85A(1) provides that redundancy payments must be paid to
employees under state industrial instruments made after 1 September 2005
and federal awards, federal certified agreements and Australian workplace
agreements made, varied or approved after 1 September 2005. It does not
apply to employees under State awards amended after 1 September 2005.
The provision also clarifies that section 85A does not apply to employees
under either State or federal certified agreements where the application to
certify the agreement was made on or before 1 September 2005.
Section 85A does not apply if the relevant award, agreement or instrument
provides otherwise.
Section 85A(2) exempts employers from paying redundancy payments if
the employer's employees work a total of less than 550 hours a week
(Monday to Sunday) excluding overtime, averaged over the previous 12
months.
Section 85A(3) defines an employer, which is a body corporate, as
including each body corporate that is related to the employer (a related
body corporate) because of section 50 of the Corporations Act.
Section 85B provides that if an employee is made redundant the employee
is entitled to the minimum redundancy payment set out in Schedule 3.
Section 85C provides that an employer may apply to the commission for
relief from the obligation to make a redundancy payment to an employee if
the employer has contributed to a fund and the contributions will result in
the employee receiving a benefit if the employee is made redundant.
Section 85C also provides that an employer may apply to the commission
for relief from making a redundancy payment if the employer is unable to
make such a payment.
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Industrial Relations Amendment Bill 2005
Amendment of s 160 (When an agreement passes the no-
disadvantage test)
Clause 15 amends section 160 of the Act to add the entitlement to a
redundancy payment to the conditions that must be met for a certified
agreement to pass the no-disadvantage test.
Amendment of s 209 (When does a QWA pass the no-
disadvantage test)
Clause 16 amends section 290 of the Act to add the entitlement to a
redundancy payment to the conditions that must be met for a QWA to pass
the no-disadvantage test.
Amendment of s 273 (Commission's functions)
Clause 17 amends section 273 (1)(j)(i) of the Act to give the commission
the power to hear matters arising under the new section 85C.
Insertion of new sch 3
Clause 18 inserts a new Schedule 3 to the Act which specifies the minimum
redundancy payment for employees covered by the new Division 1AA.
Amendment of sch 5 (Dictionary)
Clause 19 amends the Schedule 5 Dictionary definitions, as follows.
Clause 19(1) deletes the definition of Commonwealth award, which is no
longer referred to in the Act. It also deletes the definition of ordinary rate,
which is replaced by a new definition.
Clause 19(2) inserts the following new definitions into the Act:
(a) federal agreement means an Australian workplace agreement or a
certified agreement within the meaning of the Commonwealth Act;
(b) federal award means an award within the meaning of the
Commonwealth Act;
(c) ordinary rate for an employee under an industrial instrument, a
federal award or federal agreement, means the rate the award,
agreement or instrument states is payable for ordinary time;
(d) redundancy payment means the redundancy payment in section
85B;
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Industrial Relations Amendment Bill 2005
(e) weeks pay means the ordinary rate of pay for the relevant employee,
for a week, but does not include overtime, penalty rates, disability
allowances, shift allowances, special rates, fares and travelling time
allowances, bonuses and any other ancillary payments.
© State of Queensland 2005