Insights & News

October 10, 2024

With effect from 1 July 2025, Queensland employers will be required to comply with broadened anti-discrimination laws, including new attributes, definitions and an expanded positive duty to eliminate all discrimination, harassment and objectionable conduct.

The Queensland’s Respect at Work and Other Amendment Bill 2024 (Qld) (Respect@Work Bill) adopts a broader approach than the national standards, by introducing a new positive duty to take reasonable and proportionate measures to eliminate discrimination on the basis of all protected attributes, as well as sexual harassment.

Key legislative changes at a glance

The Respect@Work Bill introduces several critical changes to the Anti-Discrimination Act 1991 (Qld) (AD Act) and the manner in which discrimination matters are to be handled. At a glance, the legislative changes include:

• introduction of a broader positive duty, covering all forms of unlawful discrimination, harassment and objectionable conduct;
• introduction of new protected attributes of ‘expunged convictions’, ‘homelessness’, ‘irrelevant criminal record’, ‘irrelevant medical record’, ‘physical appearance’ and ‘subjection to domestic or family violence’;
• modernising existing attributes, such as replacing ‘pregnancy’ to ‘pregnancy and potential pregnancy’;
• protection for a combination of two or more attributes;
• shifts the burden of proof to the respondent in anti-discrimination applications. This means the complainant only needs to establish the asserted discrimination, then the burden shifts to the respondent to prove the reason for the conduct was not because of the attribute;
• introduction of investigative powers to the Queensland Human Rights Commission (QHRC) into systematic issues involving discrimination on the basis of sex and new enforcement powers to ensure employers’ compliance with positive duties;
• redefining ‘direct discrimination’, where the attribute causing discrimination need only be one of the reasons (as opposed to being the substantial reason) for the unfavourable treatment (as opposed to less favourable);
• redefining ‘indirect discrimination’ to imposing a condition, requirement or practice that has, or is likely to have the effect of disadvantaging another person because of the attribute and such imposition is not reasonable. This can include creating an environment in which a person with an attribute is disadvantaged. The considerations of reasonableness have been expanded;
• an aggravating sentencing factor where an adult offender has used violence or caused physical harm to a person in their workplace. This includes sexual assaults;
• extended timeframe to file a complaint regarding harassment and discrimination to two years;
• new prohibitions of harassment based on sex and hostile work environments; and
• permitting representative complaints which will commence on 1 December 2024.

Positive Duty: extending beyond sexual harassment

The Respect@Work Bill adopts the national standard of a positive duty, however expands it to cover all forms of unlawful discrimination, harassment and objectionable conduct. This means employers must take reasonable and proportionate steps to eliminate all unlawful discrimination, including direct and indirect discrimination.

The Explanatory Memorandum provides guidance on how an employer can comply with its positive duties, such as:

• implementing policies that promote respectful workplace behaviour;
• ensuring easily accessible information is available;
• conducting surveys to assess awareness and experiences of discrimination or harassment in the workplace;
• addressing disrespectful or unlawful behaviour through informal or formal disciplinary actions; and
• ensuring leaders regularly communicate and reinforce respectful behaviour expectations.

New QHRC Investigative Powers

Like the Australian Human Rights Commission, the Respect@Work Bill grants the QHRC expanded investigative powers, allowing it to intervene when it suspects non-compliance with positive duty obligations, or where there is, or suspected to be, systematic issues relating to a work-related contravention on the basis of sex.

In circumstances where the QHRC finds non-compliance with positive duties, the QHRC has the powers to:

• enter into enforceable undertakings with the duty holder;
• issue a compliance notice; and
• seek tribunal-ordered compliance.

For investigations into systematic work-related contraventions on the basis of sex, the QHRC may prepare a report to be provided to the Minister to be tabled within six sitting days of receiving it.

Prevention Plan

The new legislative requirements will also interact with the recent amendments to the Work Health and Safety Regulation 2011 (Qld) (WHS Regulation) which requires PCBUs to prepare, consult and implement a sexual harassment prevention plan by 1 March 2025.

The plan must outline and assess the risks related to sexual harassment, control measures to mitigate those risks and clear procedures for reporting and handling harassment incidents. The plan must be accessible to all employees, and reviewed regularly after an incident, requested by a WHS representative, or otherwise every three years.

Failure to comply can result in fines of up to $9,678 for an individual (or $48,390 for corporations).

We consider it possible that the obligation to prepare a prevention plan will be taken into account when considering whether an employer has met the positive duty under the Respect@Work Bill. Employers will need to consider preparing a prevention plan which not only deals with sexual harassment but all forms of unlawful discrimination.

Takeaways for 2025

With the commencement of the new legislative changes approaching, Queensland employers and any organisation that has Queensland operations must take immediate action to ensure compliance with the new laws. This will include:

1. Preparing a Prevention Plan, addressing the risks, control measures and reporting procedures in accordance with the WHS Regulation and regulations. Consider conducting workplace surveys and undertake risk assessment to tailor the plan to the business’ specific risks. This plan must be implemented by March 2025. 
2. Reviewing workplace environments to ensure that employees are not exposed to a hostile work environment on the basis of sex. 
3. Reviewing and updating workplace policies and trainings to ensure it aligns with the new AD Act, incorporating new protected attributes, distribution and training of the prevention plan and positive duties. Managers should actively promote and model respectful behaviour, setting a tone that aligns with the new legislative requirements. 
4. Preparing for QHRC oversight by training relevant employees to cooperate with any QHRC investigations and keep through documentation of preventive actions.

Given Queensland’s broader approach, it is possible that other states may follow suit, adopting similar measures to address discrimination and harassment more comprehensively. Employers across Australia will need to keep an eye on these developments, as the landscape of workplace compliance continues to evolve.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

The past few months have seen significant developments in workplace law, with one of the most notable being the administration of the Construction and General Division of the CFMEU. Mark Irving KC has taken on the formidable task of cleaning up Australia’s most notorious union, amidst shocking allegations of bribery, corruption, and links to outlaw motorcycle gangs.

These revelations have sparked widespread controversy, igniting urgent calls for reform, and exposing a troubling picture of union leadership plagued by criminal influence and self-interest. In response, the government introduced legislation to streamline the path to administration, ultimately resulting in:

1. approximately 280 officials being removed from their union positions;
2. an interim investigation by Geoffrey Watson SC revealing that the Victorian branch has been infiltrated by organised crime and embroiled in a “cycle of lawlessness” where violence has become a part of the culture; and
3. Mr Irving taking several key steps, including:
   • requesting Mr Watson to continue his investigation and submit a final report to Mr Irving by 1 December 2024;
   • establishing an anonymous whistleblower service; and
   • creating an integrity unit to investigate both existing and new allegations against the CFMEU.

These developments raise pressing questions about the state of workplace law in Australia, sparking renewed debate over union oversight and regulation, and reinforcing the need for stronger mechanisms to prevent and address misconduct within unions.

In addition to these headline events, several important legislative changes came into effect on 26 August 2024, including:

1. empowering the Commission to address disputes regarding the right to disconnect;
2. redefining casual employment and establishing a clear conversion pathway;
3. giving the Commission authority over ‘employee-like’ workers in the digital platform space, allowing it to set minimum standards and resolve disputes over unfair deactivation; and
4. expanding the Commission’s jurisdiction to tackle disputes concerning unfair contract terms for independent contractors.

Meanwhile, the Full Bench has initiated work on developing a standard working-from-home clause for the Clerks – Private Sector Award 2020, which will likely serve as a model term for other modern awards.

The Commission has also reviewed its procedures for paid agents, with President Hatcher endorsing all five recommendations from a working group, including a requirement for paid agents (and, oddly, lawyers) to disclose costs upfront before any conciliation or hearing.

Lastly, Professors Mark Bray and Alison Preston have been appointed to lead an independent statutory review of the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022. The review, due in January 2025, will assess the effectiveness of the amendments, identify any unintended consequences, and determine whether further legislative change is required.

As we approach the final months of 2024, it’s shaping up to be a busy period in the workplace law landscape. With many other significant developments unfolding, we’ll continue to keep you updated on the key issues impacting workplaces across Australia.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

Spruiked as unlocking a regime historically unused, heralded as creating efficiencies and promoting ease of transferability of skills, criticised as a punitive policy intervention that will make it substantially harder and more costly to do business, and now tested by the Full Bench of the Commission (Commission) in a heavily contested setting, multi-employer bargaining is off and racing.

After a reasonably slow (and mostly, non-adversarial) uptake, the recent decision involving four major black coal industry operators and the Association of Professional Engineers Scientists and Managers Australia (APESMA) has compelled the Commission to put Labor’s multi-employer bargaining provisions under the microscope in the first significant contested application of its kind since the commencement of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth).

Whilst the battle is not over (noting that three of the four employer respondents to APESMA’s application have lodged judicial review proceedings in the Federal Court on 20 September 2024), the Commission’s consideration and application of the single interest employer authorisation provisions set out in the Fair Work Act 2009 (Cth) (FW Act) gives some present guidance as to how these provisions will likely be applied in practice.

The battlelines are drawn…

The battlelines identified in the Commission’s 148 page decision in APESMA v Great Southern Energy Pty Ltd t/as Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd and Ulan Coal Mines Ltd[1] can best be summarised as a contest as to whether:

• a majority of the employees, who were employed by each of the respondent employers at a time determined by the Commission and who would be covered by the agreement, wanted to bargain for the agreement;
• each of the respondent employers had clearly identifiable common interests;
• it was not contrary to the public interest to make the authorisation;
• the operations and business activities of each of the respondent employers were reasonably comparable with those of the other employers that would be covered by the agreement;
• one of the respondent employers was excluded from the scope of the APESMA application as they had an enterprise agreement that has not yet passed its nominal expiry date.

In short, the Commission was not satisfied that any of these factors warranted a finding that the authorisation sought by APESMA should be dismissed.

Of particular note is the Commission’s consideration of the identifiable common interests and comparable business activities criteria set out in the FW Act.

What are “common interests” for the purposes of multi-employer bargaining?

Without a definition under the FW Act, the Commission found that the term “common interests” should be given its ordinary meaning. That is, “common” means “shared, joint, united” and “shared or joint” consistent with previous decisions. Similarly, “interests” means “concernment”, “business, concerns or cause”, “goals, principles and business concerns” and “characteristics or matters that impact or influence the organisation”.

That is to say that where the employers have shared or joint business, concern, goals or principles (among others), it will be difficult to argue against the common interest.

The Commission also identified that the “common interests” must be clearly identifiable, or plainly discernible or recognisable, however they need not be self-evident.

Despite the extensive evidence led by the respondent’s employers which articulated points of distinction by reference to location, mine life, mining method, equipment, transport considerations, geology, customers, production and conditions of employment, the Commission held that the respondent employers had not drawn the necessary connection between these distinctions and the facilitation of bargaining which would arise under the authorisation. The Commission went on to say that the claimed differences between them, such as conditions of employment, upon closer examination, revealed them to be attributes, rather than interests, and gave rise to interests that were common.

The outlier…

The outlier in this regard was the fourth employer respondent. That employer, by virtue of its sole commercial purpose of covering its costs of providing a reliable supply of thermal coal to one of its related bodies corporate in the generation of electricity, was found to be comprehensibly different to the commercial purpose of the other three employers who undertook their mining activities to make a profit from the sale of coal.

This, in turn, revealed different retention, attraction, price and bargaining priorities which distinguished its interests from the interests of the employers in a bargaining setting.

The reasonable comparability test

In respect of reasonable comparability, the Commission held that test is concerned with the respondent employer entities, and the enquiry is targeted at the ‘operations’ and ‘business activities’ of those specific entities. The Commission did, however, accept that the operational and business activities of the respondent employers may be influenced by their relationship within the broader corporate group structure and this context may have some relevance in understanding what the respondent employers do and why they do it.

Further, the Commission held that greater weight should be given to differences in operations and business activities of the respondent employers to the extent that these relate to the proposed coverage of the authorisation. In other words, greater weight should be attached to the operations and business activities of the respondent employers to the extent that they relate to the work performed by the employees proposed to be covered by the agreement and are connected to bargaining.

Distilling these points down, the interesting feature of the case is that the Commission took steps to anchor the considerations in new provisions to bargaining for the enterprise agreement which would occur under the proposed authorisation and the relevant employees who would be covered by the terms of any agreement which would be a product of that bargaining. As such, broader distinctions were able to be sidelined by the Commission once a focussing on bargaining with a particular group of employees occurred.

It was through this lens that the Commission was able to find that the authorisation by APESMA, in respect of 3 of the 4 employer respondents, should be granted.

Key takeaways for employers

If you are an employer who is faced with an application for a single interest authorisation, understanding the differences and similarities between you and your co-employers is important.

However, the next layer of that analysis needs to be on developing how these matters impact bargaining interests, goals and objectives such that it may be a point of distinction from another entity who may be at the bargaining table.

Through this approach, a more refined defence to an application, which not only goes to distinguish an employer from its counterparts, but also informs how those distinctions will impact an employer’s bargaining stance, interests, goals, objectives and drivers and ultimately militate against a finding that multi-employer bargaining should occur, will be possible.

Whether this line of reasoning prevails before the Federal Court is yet to be seen. However, Kingston Reid will keep you across the latest in this space as it unfolds.

Stay tuned to see whether the Federal Court walks back what some commentators have regarded as a return to centralised wage fixing not seen since the 1980s or whether enterprise level bargaining, focussed on single enterprise agreements as between employers and their employees, will remain as a core, primary objective in Australia’s industrial relation system.

[1] [2024] FWCFB 253

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

On 13 September 2024, the Full Bench of the Fair Work Commission (FWC) ruled on the jurisdictional scope of the FWC to deal with disputes under section 240 of the Fair Work Act 2009 (Cth) (FW Act) in Qube Ports Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union[1].

The decision sheds light on what the FWC will deem to be a dispute “about the agreement” for the purposes of section 240, and when it can be said that those parties are “unable to resolve the dispute”.

Defining Disputes: what does section 240 cover?

Section 240 of the FW Act allows bargaining representatives to apply to the FWC to deal with disputes about proposed enterprise agreements if they are unable to resolve the dispute themselves. Relevantly, section 240 gives the FWC jurisdiction to deal with a dispute “about the agreement”.

This naturally raises the question: what constitutes a dispute “about the agreement”? Until now, there has been a lack of clear authority which has considered this question.

What did the Full Bench have to say?

Qube Ports was engaged in bargaining for 19 proposed enterprise agreements, covering its stevedoring employees at various port facilities across Australia. Qube Ports insisted on a port-by-port bargaining method, which the union (MUA) argued was inefficient and costly. The MUA sought a unified approach to discuss common terms before addressing port-specific issues.

The MUA made an application to the FWC under section 240 of the FW Act, seeking assistance in resolving the dispute. At first instance, Deputy President Slevin held that the FWC had jurisdiction to hear the matter. Qube Ports appealed to the Full Bench of the FWC.

On appeal, Qube Ports contended that the FWC lacked the jurisdiction to deal with the dispute, because it was about the bargaining process, rather than the content of the proposed agreements. Additionally, Qube Ports asserted that the parties had not demonstrated that they were “unable to resolve the dispute”, a prerequisite to enliven the FWC’s jurisdiction under section 240.

The central issue before the FWC was whether the dispute was a dispute “about the agreement”. Qube Ports argued for a narrow interpretation that only disputes concerning the substantive content of an agreement, not the bargaining process, should be considered.

The FWC rejected the narrow interpretation advanced by Qube Ports, affirming that a dispute about the manner in which bargaining is conducted is indeed a dispute “about the agreement”. The FWC emphasised that the purpose of section 240 is to facilitate good faith bargaining and the making of enterprise agreements, which includes resolving procedural disputes that could impede the bargaining progress.

The FWC further observed that Qube Ports’ refusal to negotiate common terms collectively was a dispute about the agreement’s content, not just the bargaining process and that Qube Port’s refusal to negotiate was in breach of the good faith bargaining requirements under the FW Act.

On Qube Ports’ argument that the parties had not made sufficient efforts to resolve the dispute independently, the FWC found evidence to the contrary, noting that the parties had engaged in multiple bargaining meetings and correspondence without reaching a resolution. The FWC concluded that the requirement under section 240(1) was met, as the parties were unable to resolve the dispute at the time assistance was sought.

What’s the difference Between process and content?

The FWC distinguished between disputes about the bargaining process and the content of enterprise agreements. While Qube Ports argued the dispute was purely procedural, the FWC determined it was inherently linked to the agreement’s content, as the method of negotiation directly impacted the terms being discussed.

The evidence showed that Qube Ports’ insistence on port-by-port negotiations was driven by concerns about the applicability of the MUA’s claims to specific ports. This indicated that the dispute was not merely procedural but also related to the substantive content of the agreements.

Key takeaways for employers

Broad Interpretation of Section 240

The decision confirms that section 240 encompasses disputes about both the content and the process of bargaining.

Employers should be prepared for the possibility that disputes about the bargaining process, not just the content of agreements, can be brought before the FWC. This means that procedural disagreements, such as the method of bargaining, may be subject to the FWC’s intervention. However, it is important to note that the FWC can only make a recommendation and cannot arbitrate an outcome without the agreement of all parties.

Encouragement of Efficient Bargaining

By recognising procedural disputes as legitimate grounds for the FWC’s intervention, the decision encourages parties to make use of the section 240 process in complex negotiations involving multiple agreements and parties.

Employers will need to develop more comprehensive strategies to address both procedural and substantive differences in bargaining and consider where a section 240 application could be used as a strategic tool in negotiations.

Clarification of “Unable to Resolve”

The decision clarifies that demonstrating an “inability to resolve a dispute” does not require exhaustive efforts over an extended period. Instead, it is sufficient to show that the parties have made reasonable attempts to resolve the dispute without success.

[1] [2024] FWCFB 370

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.

There is a popular misconception within organisations and across industries that obtaining a work health and safety accreditation (such as ISO 45001) equates to compliance with health and safety legislation.

While an argument may be made that there is generally a correlation between organisations having their health and safety systems accredited and experiencing fewer workplace incidents, there is often an over reliance on, and false sense of security provided by ‘set and forget’ paper-based safety systems that accreditation requires.

What is accreditation?

In Australia, organisations can hold various health and safety accreditations, including:

1. ISO 45001: which is an international standard for occupational health and safety management systems;
2. AS/NZS 4801: An Australian / New Zealand standard for work health and safety management systems;
3. SafeWork Accreditation: Specific to certain industries such as construction;
4. Federal Safety Commissioner Accreditation: for companies working on Australian Government building and construction projects; and
5. WorkSafe Certification: state-based certifications such as through WorkSafe Victoria.

Generally, obtaining and maintaining these accreditations requires:

1. Implementation of Safety Management Systems: Structured approaches to managing safety risks;
2. Regular Audits and Inspections: Ensuring compliance and identifying potential hazards;
3. Employee Training and Engagement: Increasing awareness and promoting a safety culture;
4. Continuous Improvement: Encouraging ongoing evaluation and enhancement of safety practices.

The way these accreditations are generally obtained and maintained is through paper and desk top audits of the documentation that is rarely a true indication of the way hazards and risks are assessed and controlled.

The requirements of these accreditations treat all risks as equal and do not distinguish between those risks that are critical and those that are non-critical.

Why the misconception?

While the effort required to obtain and maintain a health and safety accreditation demonstrates a commitment to better health and safety outcomes, ultimately it is a demonstration of a paper-based system that often do not reflect what is practically happening on the ‘coal face’ (i.e. work as imagined versus work as done).

The requirements of accreditation are based off the words on the pages within the health and safety management system rather than the ways in which risks, and in particular critical risks, are actually and practically assessed, managed and controlled.

Work health and safety legislation is risk based and not outcome based. Put simply, an incident does not automatically equal non-compliance, but sans an incident having incomplete documentation that forms part of a health and safety management system will certainly demonstrate non-compliance.

An example of this, is the concept of Safe Work Method Statements (SWMS) for high-risk construction work. In theory, and from a regulatory compliance perspective, these documents are a tool for workers to assess and manage risks associated with particular work activities in the context of the specific workplace.

In practice, generic SWMS are provided as part of tender processes that get ‘signed onto’ by workers and never thought about again unless or until there is an incident or it is time for an audit to maintain accreditation. Not having a SWMS will generally be a regulatory breach (provided the workers have considered the risks and put controls in place) but having a generic SWMS that is not a true indication of the way the work was being done is generally a breach of the primary duty of care under the Model Work Health and Safety Act and in certain circumstances could lead to breaches and/or prosecutions.

A workplace would ultimately be safer where risks are proactively managed and controlled as part of the way work is done without the burden of an overly bureaucratic paper-based system of documents to be signed or forms to be filled out that relies on work being carried out in the way those sitting in the glass towers imagine.

Part of the problem is that when a regulator calls, it is almost always case that the first thing they do is demand to see the paper safety system rather than taking the time and effort to understand how hazards and risks are practically managed and controlled.

What can organisations do?

Organisations need to accept that the regulatory landscape has changed in recent years and accreditation is no longer the health and safety silver bullet it once may have been.

Hand in hand with accreditation, organisations can:

1. Adopt a less legalistic approach in the system documents and to adopt a more outcome / people focused approach that concentrates particularly on critical risks. Adopting a less legalistic, less is more approach to the documentation does not reduce overall compliance;
2. Make the safety management system less complex while focusing and relying less on documentation, and focusing on the systems and processes that underpin the content of the documents (i.e. work as imagined versus work as done);
3. Develop and implement the system in a way that does add unnecessary bureaucracy that ultimately leads to health and safety adding to the workloads of individuals; and
4. Clarify the connection between physical hazards, and psychological hazards, and their associated risks (e.g. acknowledging that a risk arising from a physical hazard may also create psychological risks that also need to be managed).

Key Takeaways

We are certainly not advocating organisations doing away with their accreditation/s or that accreditations are a wasted endeavour. Instead, organisations should not be lulled into a false sense of security that holding accreditation means their work or workplace are safe or compliant with risk-based health and safety legislation.

To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].

The views expressed in this article are general in nature only and do not constitute legal advice.

Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.