Industrial Relations Act 2016

Section 6 sends the reader to the Schedule 5 dictionary. Section 7 defines "employer" and section 8 defines "employee". An employer is a person who is not a national system employer within the meaning of the Commonwealth Fair Work Act and who employs, or usually employs, one or more individuals. The definition extends to outworker principals, former employers in proceedings for an offence or for payment or recovery, and persons declared to be employers under section 465. An employee is an individual employed or usually employed by an employer, plus outworkers, apprentices and trainees, and (for chapter 7) workers under section 7 of the Work Health and Safety Act 2011 other than those who can apply under chapter 6 part 6-4B of the Commonwealth Fair Work Act for bullying orders.

Section 9 defines an "industrial matter" expansively: any matter affecting or relating to work done or to be done, the privileges, rights or functions of employers or employees, or any matter the court or commission considers has been a cause of industrial action or industrial dispute. Section 9(2) excludes proceedings for indictable offences and public service appeals. Section 9(3) and Schedule 1 list specific industrial matters.

Section 14 defines "applicable industrial instrument" as a modern award, certified agreement or bargaining award, or arbitration determination. Chapter 2 carries the Queensland Employment Standards (the QES). Section 21 sets out what the QES are: a national-style minimum-conditions safety net comprising minimum wage, maximum weekly hours, flexible working arrangements, annual leave, personal leave, domestic and family violence leave, parental and related leave, long service leave, public holidays, emergency service leave, jury service leave, notice of termination and redundancy, superannuation, and information statements. Section 18 forbids industrial instruments from undercutting QES, with section 19 establishing the primacy of certified agreements over modern awards and section 20 establishing the primacy of modern awards over individual contracts to the extent of inconsistency.

Section 5 binds all persons including the State, but the State cannot be prosecuted for an offence.

The Act reaches Queensland public sector employees, local government employees, and any private sector employees not covered by the Fair Work Act 2009 (Cth). It also reaches private sector employers and employees who are covered by the Fair Work Act 2009 (Cth) for the limited purposes of long service leave, jury service leave and emergency service leave under chapter 2 part 3 (section 13(1)) and for civil remedies under chapter 11 part 3 division 4 in respect of contraventions of the general protections regime in chapter 4 part 4-1 of the Commonwealth Fair Work Act (section 13(2)).

Industrial organisations registered under chapter 12 are reached as registered associations of employees or employers, with the registrar (chapter 11) regulating registration, rules, mergers, accounts, financial reporting, elections and member rights. Authorised officers under sections 337 and 338 are union officials authorised by the registrar to enter workplaces and inspect records under sections 348 and 349.

Chapter 2 part 3 sets the core employment standards. Section 22 mandates the Queensland minimum wage. Section 23 caps maximum weekly hours at 38 plus reasonable additional hours, with sections 24, 25 and 26 governing averaging and reasonableness. Section 27 lets employees request flexible working arrangements, with section 28 setting the employer's response obligations and section 29 deeming refusal where the employer does not respond. Sections 30 to 38 set annual leave entitlements (paid annual leave, leave loading, cashing out conditions, payment on termination). Sections 39 to 76 cover personal leave (sick, carer's, compassionate). Sections 77 to 83 cover domestic and family violence leave, including support obligations and protection from discrimination. Sections 84 to 92 cover parental leave (pre-natal, primary, secondary, adoption, return-to-work guarantee). Sections 93 to 110 cover long service leave (entitlement at completed service threshold, proportionate payment under section 95(3) where service is at least seven years, calculation under section 103 by reference to total hours worked since the start of the period). Sections 111 to 119 cover public holidays. Sections 120 to 124 cover emergency service leave. Sections 125 to 127 cover jury service leave. Sections 128 to 130 cover notice of termination and redundancy. Section 130A to 130C cover superannuation. Sections 131 to 134 cover information statements and continuity of service.

Chapter 3 sets the modern award framework: section 142 requires minimum wages, sections 143 to 161 set the content (terms, types, dispute settlement, machinery), and sections 162 to 173 cover making, varying and revoking modern awards. Coverage and operation are set in sections 174 to 181. Reviews under sections 182 to 187 happen at four-yearly intervals.

Chapter 4 covers collective bargaining: notice of intention, representational rights, good faith bargaining, scope orders, certifying agreements, the protected industrial action machinery and conciliation and arbitration by the commission. Chapter 5 sets the equal remuneration regime: instruments affecting wages (sections 244 to 261), equal remuneration orders (sections 262 to 273), and miscellaneous matters (sections 274 to 277).

Chapter 8 contains the heart of the Act for individual disputes. Part 1 (sections 278 to 314) is the general protections regime. Section 282 defines adverse action by employers, prospective employers, employees, and industrial organisations. Section 283 defines "process or proceedings under an industrial law or industrial instrument", which includes commission and court hearings, court proceedings, protected industrial action, the section 235(2) democratic-views process, certifying or amending bargaining instruments, agreeing to cash out paid annual leave, and making a request under chapter 2 part 3 division 4. Section 284 defines a workplace right. Section 285 prohibits adverse action because of a workplace right or because of exercising or proposing to exercise a workplace right. Sections 286 to 314 deal with coercion, false or misleading representations, undue influence or pressure, freedom of association, industrial activity, sham contracting, and remedies including compensation under section 314 and reinstatement orders.

Chapter 8 part 2 (sections 315 to 335) deals with dismissals. Section 316 declares a dismissal unfair if it is harsh, unjust or unreasonable. Section 315 excludes employees in the first three months (the probationary period), short term casual employees, employees engaged for a specific period or task (with anti-avoidance carve-out), and employees not under an industrial instrument and not on tenure under the Public Sector Act 2022 whose annual wages equal or exceed the high income threshold under section 333 of the Fair Work Act 2009 (Cwlth). Sections 317 to 322 set the application timeline (21 days, extendable), conciliation, arbitration, the section 320 factors (notice of reasons, conduct or operational grounds, prior warnings, opportunity to respond), reinstatement and compensation. Section 322(2) caps compensation at six months' wages (or for non-instrument employees the lesser of that amount and half the high income threshold). Section 323 lets the commission impose 50 penalty unit orders for wilful contravention of reinstatement orders.

Chapter 9 covers employer records (sections 336 to 355). Section 339 (industrial instrument employees) and section 340 (non-industrial instrument employees) require time and wages records covering name, address, date of birth, designation, instrument, hours each day and week, breaks, wage rates, gross and net wages, deductions, superannuation contributions, sick leave, dates of starting and stopping employment, and additional particulars showing compliance with hours of work and wage rates. Section 339(4) and section 340(4) require records to be kept for six years. Maximum penalties are 40 penalty units. Section 341 requires an employee register with index for employers of more than 100. Section 348 lets authorised officers enter workplaces, with section 349 setting limits on the entry power. Sections 358 to 376 cover wages and occupational superannuation, including section 393 priority of mine wages.

Chapter 10 covers private employment agents and the labour hire and contracting framework. Chapter 11 establishes the courts and Industrial Registry: the Industrial Court of Queensland (sections 407 to 424), the Industrial Relations Commission (sections 425 to 514), the Industrial Magistrates Court (sections 515 to 530) and the Industrial Registry (sections 531 to 569).

The commission has wide power to conciliate and arbitrate industrial disputes. Section 240 lets the commission settle and arbitrate disputes after conciliation. Section 241 lets the commission suspend or terminate protected industrial action that endangers life, property, health or welfare. Sections 318 and 319 govern unfair dismissal conciliation and arbitration. Section 462 lets the commission make general rulings about minimum wages.

The Industrial Court has the role of a superior court of record under chapter 11 part 2. The President of the commission is appointed under section 434 and the Vice President and Deputy Presidents under successive sections, with appellate jurisdiction in part 5. Section 558 lists what the court may do on appeal. The Industrial Magistrates Court hears civil penalty applications.

The Minister can make modern awards, declare employers, declare cooperative federalism arrangements, and table directions and instruments. Chapter 16 deals with declarations about Commonwealth Fair Work Act coverage.

Section 465 lets a regulation declare a person to be an employer or a class to be employees. Chapter 12 governs industrial organisations of employees and employers. Section 691 lets the commission authorise the registrar to investigate organisations. Section 791 deals with disclosure of information acquired in inspections.

The Act uses a mixed civil penalty and offence regime. Maximum penalties are stated against each section. The general protections regime in chapter 8 part 1 attracts civil penalties recoverable in the Industrial Magistrates Court and the commission under chapter 11 part 3. Failure to keep time and wages records under sections 339 and 340 attracts 40 penalty units. Failure to surrender an authorised officer's authority under section 337(5) attracts 16 penalty units. Failure to respond to a section 27 flexible working request attracts a 40 penalty unit cap. Wilful breach of a reinstatement order attracts 50 penalty units under section 323.

Section 1041 carries forward an old offence relating to breach of a demarcation dispute undertaking. Authorised officers under section 348 can enter workplaces; abuse of power triggers a section 338 application to revoke or suspend authority.

Section 5(2) protects the State from being prosecuted for an offence (the Act binds the State, but criminal liability is excluded). Civil remedies for general protections under chapter 11 part 3 division 4 also apply to employers and employees who are otherwise covered by the Commonwealth Fair Work Act for the purposes of contraventions of chapter 4 part 4-1 of that Act (section 13(2)).

The unfair dismissal application clock is 21 days from the dismissal taking effect (section 317(2)), extendable on application. Conciliation must occur before a hearing (section 318), with the commission able to issue a section 318(3) certificate when reasonable attempts to settle have been unsuccessful. The application lapses if the applicant takes no action within six months after that certificate.

Flexible working requests under section 27 must be responded to in writing within 21 days (section 28(1)). Failure to respond is a deemed refusal under section 29. Time and wages records must be kept for six years (sections 339(4) and 340(4)) and an employee register must be maintained (section 341). Long service leave under section 95(3) gives a proportionate payment on termination after at least seven years' continuous service.

Modern awards run on a four-yearly review under section 182. Bargaining periods, pre-bargaining declarations, ballot orders, scope orders and protected industrial action follow the chapter 4 timetable. Equal remuneration applications under section 262 and the equal remuneration test under section 406ZK frame the merits inquiry.

Public service appeals (defined to exclude indictable offence proceedings from "industrial matter" under section 9(2)) run separately under the Public Sector Act 2022.

The Act sits in tight co-existence with the Commonwealth Fair Work Act 2009. Section 7(2)(a) allows the Queensland Act's chapter 2 part 3 divisions 9 (long service leave), 11 (emergency service leave) and 12 (jury service leave) to operate against national system employers under sections 14 and 30N of the Commonwealth Fair Work Act. Section 8(2)(a) extends the same scope to national system employees under sections 13 and 30M of that Act.

The Queensland referral Act (the Fair Work (Commonwealth Powers) and Other Provisions Act 2009) is the constitutional pivot. The Public Sector Act 2022 governs public service tenure and high income threshold treatment under section 315. The Anti-Discrimination Act 1991 (Qld) and the Public Interest Disclosure Act 2010 (Qld) often run in parallel for the same factual substratum (Braun v St Vincent's Private Hospital Northside Ltd makes the point that all three Queensland Acts can be added to a Federal Court proceeding alleging Fair Work Act 2009 (Cth) and Corporations Act 2001 (Cth) contraventions if the matters share a common substratum and accrued federal jurisdiction is engaged).

Other named statutes include the Education (General Provisions) Act 2006, the Long Service Leave Act 1976 (ACT), the Long Service Leave Act 1955 (NSW), the Long Service Leave Act 1981 (NT), the Long Service Leave Act 1976 (Tas), the Long Service Leave Act 2018 (Vic), the Long Service Leave Act 1958 (WA), the Work Health and Safety Act 2011, and the Public Sector Act 2022. The Industrial Relations Act 2016 is also engaged as a counter-part long service leave statute under section 113 of the Fair Work Act 2009 (Cth) where applicable award-derived long service leave terms exist.

The high income threshold under section 333 of the Commonwealth Fair Work Act 2009 cuts off both the section 316 unfair dismissal and the section 322 compensation regime for non-instrument employees. The carve-out is repeated in section 315(1)(e) and section 315(4)(f). Practitioners must check the threshold each year before advising on jurisdiction.

The general protections regime does not run in parallel with chapter 3 part 3-1 of the Commonwealth Fair Work Act under section 281: where the Commonwealth provision applies, the Queensland chapter 8 part 1 does not. A Federal Court applicant raising a Fair Work Act general protections claim cannot also run a section 285 IR Act claim unless it falls outside the Commonwealth Fair Work Act's chapter 3 part 3-1 reach.

The unfair dismissal jurisdiction is narrow on multiple axes: probationary period (default three months), short term casual cut-off, fixed term and task-specific engagements (with anti-avoidance carve-out), and the high income threshold. Compensation is hard-capped at six months' wages.

Long service leave under section 95(3) is not a payment "in relation to the performance of work" within the meaning of section 323(1) of the Commonwealth Fair Work Act. The Full Court in Murphy v Chapple [2022] FCAFC 165 held that an unpaid section 95(3) long service leave entitlement does not also constitute a section 323(1) breach.

The independent contractor sham contracting analysis runs through chapter 8 part 1 division 6 plus the Commonwealth Fair Work Act sections 357, 358 and 359 by reference. The High Court in CFMMEU v Personnel Contracting Pty Ltd [2022] HCA 1 (which is named in the database citation list) reframes the contract-of-service test for the analogous Commonwealth provisions.

Authorised officer authority under section 337 can be revoked or suspended by the commission under section 338 if abused, including by entering workplaces other than under section 348, contravening section 348(2), or making unreasonable use of inspection-derived information.

A Queensland local government employee is dismissed for misconduct after 18 months of service. The employee has 21 days from the date the dismissal takes effect to apply to the Queensland Industrial Relations Commission under section 317. The commission must consider, under section 320, whether the employee was notified of the reasons, whether the dismissal related to operational requirements or to conduct, capacity or performance, whether the employee was warned and given an opportunity to respond, and any other matters. If the commission finds the dismissal unfair, it may order reinstatement under section 321 or, if reinstatement is impracticable, compensation under section 322 capped at six months' wages.

A Queensland public sector employee with eight years of continuous service resigns. Section 95(3) gives the employee a proportionate long service leave payment on termination. The amount is calculated under section 103 by reference to total hours worked, other than overtime, since the start of the period. Failure to pay can be enforced through chapter 11 civil remedy proceedings, but the employee cannot obtain a parallel section 323(1) Commonwealth Fair Work Act remedy because section 95(3) is not a payment in relation to the performance of work.

A casual hospital employee believes they were dismissed because they made a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld) and made internal complaints about workplace conduct. They can run a chapter 8 part 1 general protections claim under sections 282 to 285 in addition to claims under the Anti-Discrimination Act 1991 (Qld) and the Public Interest Disclosure Act 2010, all of which are capable of being heard together with Commonwealth Fair Work Act and Corporations Act 2001 (Cth) whistleblower claims in the Federal Court if the substratum of facts is common and federal jurisdiction is engaged under section 39B of the Judiciary Act 1903 (Cth).