Industrial legislation in Australia in 2015

Abstract

This review article examines the impact of another year of tumult in federal politics on the Coalition Government’s workplace reform agenda. The article outlines the fortunes of the industrial relations bills the Government had introduced into Parliament in 2013–2014, and a number of others introduced in 2015. These include a bill to implement former Prime Minister Tony Abbott’s proposed dilution of the federally-funded paid parental leave scheme. In addition, the Productivity Commission’s proposals for changes to the federal workplace relations framework are examined and assessed, along with the Royal Commission into Trade Union Governance and Corruption Final Report, as these are shaping the reform debate in the lead-up to the forthcoming federal election. The article then examines significant legislative developments at state level. The article concludes by assessing the likely direction of labour law change under Prime Minister Malcolm Turnbull.

Keywords

Building and construction industry Fair Work Act greenfields bargaining paid parental leave Productivity Commission protected industrial action Queensland public sector trade unions penalty rates

Introduction

2015 was shaping as a year in which the Coalition Government would achieve little progress in implementing its legislative reform agenda in workplace relations. The Senate remained resolutely opposed to most of the Government’s policies under Prime Minister Tony Abbott. However, something of a shift occurred following Malcolm Turnbull’s assumption of the Prime Ministership on 14 September 2015. His more consultative leadership style offered the prospect of agreement being reached with Senate cross-benchers to ensure passage of government legislation – although the full extent of this transition is yet to be realised. This review article outlines the fortunes of the workplace reform bills introduced into Parliament by the Government in 2013–2014 (Sutherland, 2015), along with a number of others introduced in 2015. These include a bill to implement former Prime Minister Abbott’s proposed dilution of the federally funded paid parental leave (PPL) scheme. In addition, the Productivity Commission’s proposals for changes to the federal workplace relations framework are examined and assessed, along with a brief consideration of the Royal Commission on Trade Union Governance and Corruption Final Report, as these are framing the reform debate in the lead-up to the forthcoming federal election. The article then examines significant legislative developments in the states, including various reform measures implemented by new Labor governments in Queensland and Victoria. It concludes by assessing the likely direction of labour law change under Prime Minister Turnbull.

Federal legislative developments

Fair Work Amendment Act 2015

The Fair Work Amendment Act 2015 (Cth) (FW Amendment Act) is the only one of the numerous industrial relations (IR) bills introduced by the Government in 2013–2014 to have made it through the Parliament. Even then, the FW Amendment Act is a substantially watered-down set of measures compared with the original bill. The Government had to compromise in order to secure support from the Senate cross-benchers for the bill’s passage. The FW Amendment Act made the following changes to the Fair Work Act 2009 (Cth) (FW Act), with most of the amending provisions taking effect from 27 November 2015:

Greenfields agreement-making: the process for making enterprise agreements for new business projects or ventures (see FW Act, s 172(4)) has been changed, to overcome the concern that some unions frustrate such agreements by holding out for a deal on their terms (Edwards et al., 2012: 171–172). Under new s 178B, the process now includes an option for employers to notify any union bargaining representatives of the commencement of a six-month negotiation period (the period in the original bill was three months). If no greenfields agreement has been reached at the conclusion of the negotiation period, the employer may lodge its proposed agreement with the Fair Work Commission (FWC) for approval after giving the union(s) a reasonable opportunity to sign the agreement (new s 182(4)). FWC approval is subject to the agreement passing the better off overall test, and the requirement that it contains pay and conditions consistent with those prevailing in the relevant industry (new s 187(6)). In addition, the good faith bargaining requirements in s 228 of the FW Act have been extended to greenfields agreement negotiations. Overall, these new provisions significantly bolster the power of an employer in greenfields bargaining. It could simply ‘wait out’ the six-month negotiation period, then have the FWC approve its proposed agreement, although the need to offer industry-standard conditions will constrain this prospect to some extent (Forsyth, 2015). However, the new provisions do not mark a return to Work Choices-style employer greenfields agreements, which could be unilaterally determined by employers (Purdon, 2015).

Protected action ballot orders (PABOs): the Full Federal Court decision in JJ Richards and Sons Pty Ltd v Fair Work Australia (2012) 201 FCR 297 dealt with the options available to a union (or other employee bargaining representatives) to address an employer’s refusal to engage in collective bargaining. The effect of the decision was to enable a union to apply to the FWC for a PABO – the first step in organising protected industrial action under Part 3-3 of the FW Act – without first having to obtain a majority support determination (MSD) compelling a reluctant employer to bargain (under ss 236–237). The FW Amendment Act overrides that decision by preventing a union from seeking a PABO until the time when an employer is required to issue notices of representational rights to the employees who will be covered by a proposed agreement (new s 437(2A), combined with s 173(2)) – that is, when the employer has either initiated or agreed to bargain, or an MSD has been issued by the FWC. This is a significant change, as the JJ Richards ruling had reflected the consistent approach in the case law since the 1990s on the requirement that negotiating parties be ‘genuinely trying to reach agreement’ prior to taking protected industrial action (see now FW Act ss 413(3), 443(1)(b); and on the earlier case law see McCrystal, 2012: 115–118, 121–125). As a result of the FW Amendment Act, for the first time since the introduction of formalised enterprise bargaining in 1993, the ability of employees to take protected action in support of bargaining claims is dependent upon either an employer’s agreement to bargain or a majoritarian-based right to bargain (Stewart et al., 2015: 17–19, arguing that employers may therefore have more incentive to challenge union organising campaigns and MSD applications in future).

Unpaid parental leave: under the National Employment Standards in Part 2-2 of the FW Act, an employee has an entitlement to 12 months’ unpaid parental leave which may be extended for a further 12 months by agreement with their employer. Employers must now give an employee seeking the additional period of leave a reasonable opportunity to discuss this request (new s 76(5A)), rather than refusing it outright.

Unclaimed entitlements: interest is now payable on any unclaimed amounts recovered by the Office of the Fair Work Ombudsman on behalf of an employee in respect of their former employment with an employer (new s 559(3A)).

The provisions of the original bill which were abandoned to ensure its passage by the Senate included significant proposed limits on union right of entry to workplaces for discussion purposes; a range of measures to make it easier for employers to enter into individual flexibility arrangements with employees; and clarification that payment out of annual leave entitlements on termination of employment should be at the employee’s base rate of pay only.¹ Just before Parliament rose in December 2015, a new bill was introduced seeking to implement these changes (Fair Work Amendment (Remaining 2014 Measures) Bill 2015).

Remaining bills from 2013–2014

As for the other bills previously introduced by the Government, two of the key measures – the Fair Work Amendment (Registered Organisations) Bill 2014 (No. 2)² and the Building and Construction Industry (Improving Productivity) Bill 2013 – were rejected by Parliament in 2015. The proposed registered organisations changes sought to implement the Coalition’s 2013 election policy to increase the penalties for breaches of financial governance requirements for registered unions and employer associations; and to establish a new regulator, the Registered Organisations Commission (Liberal/National Coalition, 2013a). This bill was voted down in the Senate in mid-August (Workplace Express, 2015a), but in light of the Royal Commission on Trade Union Governance and Corruption Final Report, a new version of the bill will be brought before Parliament in 2016 (see further discussion later).

The construction industry legislation sought to re-establish the Australian Building and Construction Commission (ABCC), replacing Labor’s Fair Work Building Industry Inspectorate (FWBII) which is viewed by the Coalition as a weaker enforcement agency (see Goodwin, 2014 on the transition from the ABCC to FWBII under the Labor Government, and the Coalition’s bill). With the Government unable to attract enough cross-bench support for the bill in the Senate, it was defeated in August (Workplace Express 2015b). However, the Government had two ‘wins’ on construction industry regulation in 2015. First, the cross-benchers supported a bill to extend FWBII’s powers to compel the production of evidence and the attendance of witnesses for two years from their sunset date of 31 May 2015 (see Construction Industry Amendment (Protecting Witnesses) Act 2015 (Cth), and Fair Work (Building Industry) Act 2012 (Cth), ch. 7, part 1 (especially s 46); and Workplace Express 2015c). In making the case for this change, the Government relied heavily on the Trade Unions Royal Commission Interim Report’s finding (in late 2014) of a ‘culture of wilful defiance of the law which appears to lie at the core of the [Construction, Forestry, Mining and Energy Union]’ (quoted in Commonwealth Parliament, 2015a: vi). Further findings of that nature in the Royal Commission’s Final Report will inform new legislative proposals to be introduced by the Government in early 2016 (see later). Second, with effect from 16 October, the federal Building Code 2013³ was amended to require principal contractors covered by the Code to ensure that their workplace health and safety management systems include processes for drug and alcohol testing of employees and sub-contractors on building sites, and ensure that no worker on site is under the influence of drugs or alcohol (Building Code (Fitness for Work/Alcohol and Other Drugs in the Workplace) Amendment Instrument 2015; see also Fair Work Building and Construction (FWBC) 2015).

There was no progress on passage of the two other bills introduced in 2014: the Fair Entitlements Guarantee Amendment Bill, capping redundancy payments at 16 weeks’ pay under the federal Fair Entitlements Guarantee scheme (which enables recovery of unpaid entitlements on employer insolvency); and the Fair Work Amendment (Bargaining Processes) Bill, which proposes to require productivity discussions in the making of enterprise agreements and new requirements before the FWC can make a PABO. These would include further steps to demonstrate that the parties are ‘genuinely trying to reach agreement’ (FW Act, s 443(1)(b)), and to establish that the claims being pursued by a PABO applicant are not excessive or would not hamper workplace productivity. A Senate Committee reported on this bill in April, predictably dividing on party lines (The Senate, 2015a). Various employer groups argued in submissions to the Senate Committee that simply requiring productivity discussions in bargaining would not be sufficient to ensure productivity is actually increased in workplaces – a view shared by the Productivity Commission in its Final Report (Productivity Commission, 2015a: 691–694).

Further legislative proposals introduced in 2015

The Fairer Paid Parental Leave Bill 2015 (Fairer PPL Bill) seeks to implement the then Abbott Government’s 2015 Budget announcement of restrictions on access to the federal PPL scheme. Under this scheme, eligible employees are entitled to 18 weeks’ pay at the national minimum wage following the birth or adoption of a child. The Government stated in the Budget that it would remove access to the scheme for so-called ‘double-dippers’: employees who obtained PPL benefits under both the government scheme and employer-funded schemes (Coorey, 2015). This represented a third major shift of position on PPL by Prime Minister Abbott. Having famously declared in 2002 (when a Minister in the Howard Government) that publicly-funded PPL would happen ‘over this government’s dead body’, in 2010 he committed the Coalition to a major expansion of Labor’s proposed government PPL scheme (ABC, 2010). This was carried through to the 2013 election, with the Coalition promising 26 weeks’ PPL at an employee’s actual wage, capped at $75,000 (Liberal/National Coalition, 2013b). The first sign of wavering on this commitment came with a proposed reduction in the maximum payment from $75,000 to $50,000, due to the ‘budget emergency’ which the Government sought to address through its first Budget in 2014 (Workforce, 2014). However, the dramatic PPL changes proposed in the 2015 Budget were largely unexpected.

The Fairer PPL Bill includes the following specific measures, amending the Paid Parental Leave Act 2010 (Cth), which are intended to operate from 1 July 2016. An employee wishing to access the government-funded scheme would have to provide the Department of Human Services with information about any employer-provided PPL entitlement. The employee’s entitlement under the government scheme would then be reduced proportionately (e.g. if an employer provided six weeks’ PPL, then an employee would receive only 12 weeks’ pay under the government scheme). If the employer-provided PPL is equal to or greater than the 18 weeks’ pay under the government scheme, then the employee would not be entitled to any government-funded PPL (proposed ss 11A-11F of the Paid Parental Leave Act; see also Commonwealth Parliament, 2015b). Many employers are concerned about the impact of these proposals, and some may consider withdrawing their PPL schemes altogether or re-visiting employee remuneration packages to provide other benefits in place of PPL (such as return-to-work bonuses) (Mather and Han, 2015). The ACTU raised concerns that the changes would force many women back to work sooner and drive up demand for child care (Workplace Express, 2015d).

There is some doubt, though, whether the Fairer PPL Bill will be passed by the Senate. The bill was referred to the Senate Standing Committee on Community Affairs, which reported on 15 September 2015. Government members of the Committee endorsed the bill, with a recommendation that consultation be undertaken on the definitions of ‘primary carer pay’ and ‘primary carer leave’; and on the interaction between return-to-work payments and the new scheme. Labor and Greens members of the Committee issued dissenting reports opposing the bill (The Senate, 2015b). Given that a number of cross-bench senators are also understood to be opposed to the bill, it may be that Prime Minister Malcolm Turnbull will abandon his predecessor’s reversal of the Coalition’s position on PPL.

The Shipping Legislation Amendment Bill 2015 proposed far-reaching reforms to the regulation of the coastal shipping trade, including a new licensing and permit system for Australian and foreign vessels. The bill would also have provided foreign-flagged ships with a 183-day exemption from the regulation of wages and conditions for their crew under Part B of the Seagoing Industry Award 2010. However in late November the bill was voted down in the Senate, with cross-benchers, including Senator Lambie from Tasmania, concerned about its impact on the domestic shipping trade and employment in regional areas (Gramenz, 2015). The Australian Labor Party (ALP) had also argued the bill would enable foreign shipping companies to engage labour on sub-standard terms and conditions (Workforce, 2015a).

In October, Greens MP in the lower house, Adam Bandt, introduced a private member’s bill following the joint exposé by the ABC and Fairfax Media revealing widespread underpayments affecting employees in 7-Eleven franchises, many of whom are overseas students (e.g. Ferguson, 2015). Both the Chairman and CEO of 7-Eleven resigned, and the company established an independent panel to review and settle the claims of underpaid employees. The episode led some commentators to raise concerns that the franchising business model creates an incentive for franchisees to underpay workers and engage in visa breaches (e.g. Hardy, 2015). Through the Fair Work Amendment (Recovery of Unpaid Amounts for Franchisee Employees) Bill 2015, the Greens are seeking to insert a new Part 6-4AA into the FW Act. This would enable employees of a franchisee to recover any unpaid remuneration from the franchisor or head office entity (Bandt, 2015). In the absence of Government support for the bill, it will not become law.

This was just one of a number of proposed regulatory responses to the many media reports of worker exploitation which focused public attention on this issue in 2015. Another prominent example was that of poultry processing company Baiada, which was found by the Fair Work Ombudsman to have engaged in extensive breaches of workplace laws in respect of sub-class 417 working holiday visa-holders (Fair Work Ombudsman, 2015). At state level, the Victorian and South Australian Governments established separate inquiries into the labour hire sector following concerns that in some instances, exploitation of vulnerable workers occurs where they are engaged by third-party intermediaries. Victoria’s inquiry is examining not only labour hire, but also the broader issue of insecure work (Industrial Relations Victoria, 2015). At the federal level, the Turnbull Government established ‘a ministerial-level Working Group to consider a cross portfolio response to the issue of foreign worker exploitation, and to ensure a cohesive and coordinated approach’ (House of Representatives, 2015). The Government had also taken steps to address related issues through the Migration Amendment (Charging for a Migration Outcome) Act 2015 (Cth), passed by Parliament on 25 November and imposing new penalties for bribery and fraudulent conduct in relation to sponsorship of sub-class 457 skilled migration visas (Workforce, 2015b).

Productivity Commission review

Having the Productivity Commission undertake a review of the FW Act and related legislation formed a major component of the Coalition’s 2013 election policy (Liberal/National Coalition, 2013c), which was aimed at neutralising industrial relations as a political issue in the post-Work Choices era. The Commission released a series of issues papers in January 2015 and its draft report in August (Productivity Commission, 2015b). The Commission’s final report was provided to the Government on 30 November and publicly released on 21 December (Productivity Commission, 2015a).

Surprisingly to many observers, the Productivity Commission’s overall conclusion was that Australia’s industrial relations system is ‘not systemically dysfunctional. Many features work well – or at least well enough … The key message of this inquiry is that repair, not replacement should be the policy imperative’ (Productivity Commission, 2015a, vol. 1: 4). The Commission clarified a number of foundational (yet contested) issues in the debate over workplace regulation (Productivity Commission, 2015a, vol. 1: 2, 5, 14–15, 22):

that some level of regulation is necessary to address the inequality of bargaining power between an individual employee and their employer; and

that small increases in the minimum wage do not have serious adverse effects on employment.

The Productivity Commission recommended that a new institution – the Workplace Standards Commission (WSC) – be established to review and vary the minimum wage and modern awards, functions currently performed by the FWC. In these areas, the Productivity Commission considered that ‘the accepted culture of the [FWC], with its emphasis on court-like behaviours, appears inconsistent with the needs and approach of a modern regulator’ (Productivity Commission, 2015a, vol. 1: 159). The WSC would have members appointed from backgrounds in economics, commerce and social sciences, and would undertake data collection, research and stakeholder consultation to inform its decision-making processes (Productivity Commission, 2015a, vol. 1: 11–12, 160–161).

The FWC would therefore continue to carry out its existing dispute resolution functions and approval of enterprise agreements. However, the Productivity Commission recommended the introduction of a new process for appointment of members to address perceptions that the tribunal has been ‘stacked’ with former union and employer representatives at various times. An independent expert panel drawn from federal, state and territory governments would recommend candidates to the federal Employment Minister, who would select appointees from this list. Appointments would be for a maximum 10-year period or until the FWC member reaches 70 years of age (whichever is sooner) (Productivity Commission, 2015a, vol. 1: 161–167).

Modern awards, according to the Productivity Commission, provide an important floor of minimum employment conditions but they impose inflexibilities and costs upon employers. The Commission recommended retaining awards but having them reviewed by the WSC when required, rather than every four years as at present (Productivity Commission, 2015a, vol. 1: 330–331 and ch. 5).

One of the most contentious issues examined by the Productivity Commission was penalty rates for overtime, public holidays and weekend work (Productivity Commission, 2015a, vol. 1: chs 9–15). The Commission accepted the rationale for these special rates, including the need to address the health risks of night and shift work, and noted their acceptance among the community and their importance for emergency workers in particular. However, it considered that penalty rates for weekend work in the hospitality, entertainment, retailing, restaurant and café sectors no longer reflect societal norms and expectations. These include the growing demand for weekend supply of services, reduced religious observance on Sundays, and the fact that around four million Australians work at least a Saturday or Sunday every week. Taking these factors into account, the Commission recommended that the FWC – in the current four-yearly modern awards review process – should reduce Sunday penalty rates in the above-mentioned sectors to the level of Saturday rates (Productivity Commission, 2015a, vol. 1: 24–29).

The Commission considered that while most enterprise agreements are made without difficulty, there are a number of flaws in the FW Act arrangements for enterprise bargaining that should be addressed. Recommendations in this area (Productivity Commission, 2015a, vol. 2: ch. 20) included giving the FWC more discretion to overlook minor non-compliance with procedural steps when approving agreements; prohibiting agreement clauses which limit the ability of employers to utilise contractors, casuals and labour hire workers; and requiring non-union bargaining representatives to show support from, for example, at least five % of employees. The Productivity Commission also recommended replacing the current ‘better off overall test’ for agreements with a ‘no disadvantage test’, aimed at ensuring there is no net disadvantage to employees under an agreement compared with the relevant award.

Bargaining for proposed greenfields project agreements could be enhanced, according to the Commission, by a number of further changes in addition to those recently made by the FW Amendment Act (discussed earlier). These include reducing the negotiating period after which an employer can seek FWC approval of its proposed deal from six to three months; enabling the FWC to undertake ‘last offer arbitration’ at the conclusion of that period; and allowing greenfields agreements to operate for the duration of a greenfields project (Productivity Commission, 2015a, vol. 2: ch. 21).

The Commission also proposed a new instrument – the ‘enterprise contract’ (EC) – to give small and medium-sized businesses, in particular, another option for agreement-making (Productivity Commission, 2015a, vol. 2: ch. 21). An EC would enable an employer to vary the applicable award for classes of employees within an enterprise, without the need to negotiate individually with each employee or to engage in collective negotiations. An EC could be offered to new employees as a condition of employment. Existing employees could choose whether or not to adopt an EC, although no ECs could be offered if an enterprise agreement were in place. ECs would be lodged with the FWC but would not require the tribunal’s approval. They would be subject to the new no disadvantage test, although an employer could implement an EC without having it assessed against this test. ECs could operate for up to three years; employees would be able to withdraw from an EC and return to the award after 12 months.

The Turnbull Government has indicated that it will consult with the public on the Productivity Commission’s recommendations, and take any reform proposals to the forthcoming federal election. On the politically sensitive issue of penalty rates, the Employment Minister was careful – on releasing the Productivity Commission’s Final Report – to remind the public that the FWC is responsible for setting penalty rates, and indicated the Government has no plans to depart from this position (Cash, 2015). However a few months earlier, Prime Minister Turnbull had pointed to the higher Sunday penalty rate as a hallmark of the old economy, suggesting the only reason it differs from the Saturday rate ‘is history’. He then said it is inevitable that Sunday penalty rates will be reduced, but there would need to be widespread acceptance from workers that this would not leave them worse off (Bourke, 2015a). In light of this, and of the Productivity Commission’s recommendations, there will be considerable debate over reform of award penalty rates in the lead-up to the forthcoming election, with Labor and the union movement campaigning against penalty rate reductions (Bourke, 2015b).

It is likely that the EC proposal will also provide a major focus for political debate, as unions characterise these new instruments as a return to the Howard Government’s Australian Workplace Agreements (Hannan, 2016). The Productivity Commission proposed a number of safeguards for employees, including the provision to employees of a personal statement outlining how the EC meets the no disadvantage test; access by the Fair Work Ombudsman to an employer’s list of employees covered by ECs, where the employer has opted not to have the ECs tested for no disadvantage; and employer liability to repay employees if ECs are later found to be non-compliant with the no disadvantage test. However, these measures cannot make up for the absence of a rigorous approval process for ECs, which should include application of the no disadvantage test before they come into operation.

The proposal to establish the WSC seems very much like a reprisal of the creation of the Australian Fair Pay Commission under Work Choices – a short-lived initiative which has been followed by almost 10 years of re-integrating the wage-fixing role into the FWC, with added research support and stakeholder engagement now forming part of the annual wage review process. The Productivity Commission’s proposed appointment system for FWC members provides no guarantee of de-politicising appointments. The proposed limits on tenure have the potential to downgrade the stature of FWC members. A further proposal that FWC members should not have had significant involvement in representing employers and employees in the 10 years prior to appointment risks depleting the knowledge and experience base of the tribunal.

Royal Commission into Trade Union Governance and Corruption

After almost two years of hearings, the Final Report of the Royal Commission into Trade Union Governance and Corruption was released by the Government on 30 December 2015 (Heydon, 2015). Space does not permit a thorough examination of the extensive findings and recommendations of the Royal Commission. In summary, it identified widespread misconduct on the part of officials from a number of unions, including corruption, fraudulent payments, misappropriation of funds and the receipt of payments from employers in which the interests of union members were compromised. Ninety-three individuals and organisations were referred to relevant authorities for investigation of alleged criminal offences and civil breaches. The Royal Commission also made 79 law reform recommendations intended to address the systemic failures of union governance which it had discovered, including a range of new financial disclosure and accountability requirements, increased penalties and the establishment of a specialist regulator for registered organisations (many of these recommendations overlap with the Coalition Government’s legislative proposals that were rejected by Parliament earlier in 2015, discussed earlier). On releasing the Final Report, the Turnbull Government immediately committed to implementing the Royal Commission’s recommendations through legislation to be introduced into Parliament in February 2016 (Prime Minister et al., 2015).

Legislative developments in the states

New South Wales

The Baird Coalition Government, re-elected in March 2015, has not implemented any major changes to industrial legislation in New South Wales (NSW). The State Insurance and Care Governance Act 2015 (NSW) effected a name change and re-arrangement of the statutory bodies responsible for overseeing the state’s Work Health and Safety (WHS) and workers’ compensation systems. The WorkCover Authority of NSW was abolished and replaced by three agencies: Insurance and Care NSW, State Insurance Regulatory Authority, and SafeWork NSW, the latter becoming the WHS regulator under the Work Health and Safety Act 2011 (NSW) (Flores-Walsh and Curtain, 2015). The Retail Trading Amendment Act 2015 (NSW) brought the state’s regulation of Boxing Day shopping into line with most other states, by enabling shops across NSW to open on the public holiday – as long as their staff have freely elected to work, and are not coerced or harassed into working (see in particular ss 3A, 8A of the amended Retail Trading Act 2008 (NSW), and Berejiklian, 2015).

Queensland

The surprise election of the Palaszczuk Labor Government in January 2015 led to the passage of significant amendments to Queensland industrial legislation, and a review process that is likely to result in further reforms. With effect from 11 June 2015, the Industrial Legislation (Restoring Fairness) and Other Legislation Amendment Act 2015 (Qld) wound back the Newman LNP Government’s far-reaching changes to the state legislation (which mostly covers the public sector and local government).

The major features of the 2015 legislation include amendments to the Industrial Relations Act 1999 (Qld) (IR Act Qld) to:

restore award and agreement provisions for state employees which had been made unenforceable under the previous legislation, relating to matters such as job security, contracting out protections, union encouragement, and restrictions on termination, change and redundancy (see e.g. amended s 71LA of the IR Act Qld);

remove restrictions on right of entry to workplaces for authorised industrial officers (see amended ss 372–373 of the IR Act Qld);

re-establish the independence of the Queensland Industrial Relations Commission (QIRC) by removing provisions which directed it to consider the state’s financial position and fiscal strategy when considering, the public interest in the resolution of wage arbitrations (see amended s 149D of the IR Act Qld; Pitt, 2015a).

In April 2015, the Queensland Government announced that an Industrial Relations Reference Group would conduct a comprehensive review of the state’s industrial laws (Pitt, 2015b). Further details were announced in August: the review panel, chaired by Jim McGowan AM, would examine matters such as whether the IR Act Qld should be amended to reflect its reduced coverage since the shift to a national workplace relations system; whether local government is better regulated in the state or federal system; and the functions and powers of the QIRC (Workplace Express, 2015e). The Reference Group was due to report to the Government by December 2015 (although no report had been made public by the time of writing).

Further amending legislation – the Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2015 (Qld) – included provisions restoring administrative powers to the QIRC President which had been removed by the previous government. This legislation also reinstated common law rights for injured Queensland workers (Workplace Express, 2015f).

Victoria

The Andrews Labor Government elected to office in November 2014 moved quickly to repeal two measures introduced by its Coalition predecessor: the Victorian Code of Practice for the Building and Construction Industry, and the so-called ‘move-on laws’ which gave police greater powers to direct protesters to cease preventing entry to premises or threatening violence (Summary Offences and Sentencing Amendment Act 2014 (Vic)). The latter was described by the new Attorney-General as ‘an attack on the rights of Victorian workers to engage in industrial action’ (Pakula, 2015). Its repeal was effected by the Summary Offences Amendment (Move-On Laws) Act 2015 (Vic), with effect from 19 March 2015.

The Victorian Construction Code had been implemented in late 2014 to impose additional obligations (to those applicable under the federal Building Code 2013) on tenderers for Victorian Government building work and those undertaking such work. These requirements included ensuring that subcontractors complied with drug and alcohol testing and related requirements (Sutherland, 2015). The new Government announced the abolition of the Code, and the Construction Code Compliance Unit which enforced it, on 18 January 2015 (Department of Treasury and Finance, 2015).

Somewhat controversially, the Victorian Government implemented a new ‘Grand Final Friday’ public holiday, for the day before the Australian Football League Grand Final each year.⁴ Employer groups strongly opposed this measure, with concerns that businesses would have to pay penalty rates or close on the new holiday, while Premier Andrews argued some businesses and many families benefited (Gordon, 2015). The State Opposition has pledged to abolish the Grand Final Friday holiday if elected to office (Edwards, 2015).

Conclusion

This article has examined the major developments in federal and state industrial legislation in 2015. One of the major themes identified is the Coalition Government’s continued lack of progress in implementing its workplace reforms, although its prospects have clearly increased under Prime Minister Turnbull. Importantly, this has led to greater dialogue between the Government and a range of stakeholders, even including the union movement (Workplace Express, 2015g). The Prime Minister has set the Government the challenge of making the case for economic reform to the public. The tone he has adopted is significantly different from that of his predecessor:

I think the important thing is to seek to explore ways in which we can achieve more flexibility, higher levels of employment, higher levels of business activity and do so in a way that reassures … Australian workers in particular, that this is not threatening their conditions. … [T]he challenge for us is not to wage war with unions or the workers … but really to explain what the challenges are and then lay out some reform options. (Prime Minister Turnbull, quoted in Workplace Express, 2015h)

It was noted earlier in this article that the Prime Minister had sought to adopt this new approach to reform in respect of the politically contentious issue of reducing Sunday penalty rates. This issue will no doubt be a key focus for much of the pre-election debate on industrial relations, although it is unclear whether the Government will advocate the changes recommended by the Productivity Commission in the face of a union/Labor ‘scare campaign’. A much less fraught policy agenda for the Government will be that emanating from the recommendations of the Royal Commission into Trade Union Governance and Corruption. The Government will use the Final Report to place considerable pressure on Labor, the Greens and cross-bench senators to pass the revised registered organisations legislation, and another bill implementing recommendations to return to a stronger regulatory framework in the building and construction industry. These issues will dominate discussion of workplace reform in 2016, rather than the minutiae of the Productivity Commission’s proposals. Overall, it is likely that after several years of ‘blockage’ of federal industrial legislation, the Government will have more success with the passage of legislation in the year ahead.

Footnotes

Acknowledgement

Thanks to the Journal’s anonymous reviewers for their many suggested improvements to this article.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship and/or publication of this article.

Notes

Biographical note

Anthony Forsyth is Professor of Law at RMIT University in Melbourne. He is currently undertaking research on collective bargaining, the labour hire sector and the Royal Commission on Trade Union Governance and Corruption.

References

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