The head of Queensland’s Industrial Court has recommended legislative change to simplify access to long service entitlements for public service employees facing hardship or need.
President Justice Peter Davis called for amendments to sections of Queensland’s Industrial Relations Act 2016 in the 2021-22 annual report covering the court and both the Queensland Industrial Relations Commission (QIRC) and Industrial Registry.
Justice Davis’s report – ‘2021-2022 Annual Report of the President of the Industrial Court of Queensland’ – was tabled in Parliament on Tuesday by Industrial Relations Minister Grace Grace.
In his opening remarks, Justice David said the widening jurisdictions of the court and QIRC since the passing of the Industrial Relations Act 2016 six years ago meant that the commission could no longer be said to be a purely “industrial tribunal”.
“Today, Members of the Commission exercise powers and functions under many pieces of legislation including the Industrial Relations Act 2016, the Workers’ Compensation and Rehabilitation Act 2003, the Public Service Act 2008, the Anti-Discrimination Act 1991, the Further Education and Training Act 2014, the Magistrates Courts Act 1921, Work Health and Safety Act 2011, the Human Rights Act 2019 and the Trading (Allowable Hours) Act 1990,” he said.
“The expanded jurisdiction reflects more than public sector, local government and other bodies with State responsibilities – it now includes a jurisdiction over constitutional corporations, mainly under the Anti-Discrimination Act 1991 and the Work Health and Safety Act 2011”.
Justice Davis said the number of matters filed in the commission during 2021-22 had risen by 11% (3302 cases) over the previous reported year (2978 cases). He said one of the biggest challenges confronting the jurisdiction was the “proliferation of public service appeals”.
“In particular those dealing with a promotion decision; a transfer decision; a conversion decision or fair treatment have significant implications on the Commission’s ability to focus on industrial matters requiring a hearing and determination,” he said.
“It impacts in a significant way the ability of the Commission to deal with the more time critical and complex matters expeditiously and raises a broader and more serious question concerning access to justice.”
Justice David said that, as a matter of general application, the Commission should only hear public service appeals against:
- disciplinary penalty decisions made under s188 of the Public Service Act 2008 (the PS Act) or disciplinary declaration decisions under s188A of the PS Act
- decisions under s175 of the PS Act to direct public service employees to attend an independent medical examination
- decisions under s137 to suspend public service employees without remuneration, and
- the equivalent of these matters for the prescribed agencies under the Public Service Regulation 2008.
“In our view, these are core ‘industrial matters’ which fit naturally within our industrial arbitration jurisdiction,” he said.
“Whilst it is a matter for the Executive Government, all other current appeals to the Commission, including, for example, conversions appeals and promotion appeals, should be determined by a government agency, like the Public Service Commission. Public Service appeals involving a disciplinary outcome should still come to the Commission for determination.
“If an employee has an entitlement to long service leave, and they are experiencing financial hardship, or require extra funds due to some unforeseen personal, family, or other circumstances; they may be entitled to have their long service leave paid out in part, or in a lump sum.
“Our experience over a long period of time suggests that in respect of these types of applications, the current arrangements place an unnecessary burden on the employer, an employee, and the Commission.”
Justice Davis said the current legislative requirements unnecessarily delayed payments to employees in situations where they were in financial hardship or had some unforeseen personal and family circumstance necessitating long service leave be paid out in part, or in a lump sum.
“Sections 110(3) and (4) of the IR Act should be amended to provide that if no industrial instrument or federal industrial instrument provides for an employee to be paid for all or part of an entitlement to long service leave (instead of taking the leave), then an employee with an entitlement to long service leave should be able to make application to his or her employer to be paid for the long service leave instead of taking the leave; and that if there is a dispute, the dispute can be conciliated and, if necessary arbitrated by the Commission.”
Read the report.