Transport and Main Roads Industrial Relations Act 2016 - Flexible work arrangements - Workplace discrimination Transport and Main Roads Lydia Daly Senior Associate March 2017

Overview Department level issues Employee issues New bargaining regime (bargaining awards, scope orders, PABO process, disputes) Directives (casual/temp conversion) Expansion of public service appeals Employee issues Anti-bullying Adverse action (general protections) Mutual duty of trust and confidence Discrimination QES changes (DVO leave, other leave, request flexible work arrangements)

Flexible Work Arrangements

Industrial Relations Act 2016 Achieving the purpose of the Act s 4(k) Promoting diversity and inclusion in the workforce, including by providing a right for employees to request flexible working arrangements to help balance their work and family responsibilities Chapter 2, Part 3, Division 4 - Queensland Employment Standards Employees now have a right to request changes in the way they work Part 3 – minimum standards of employment that apply to employees and which cannot be displaced except under Chapter 2

Step 1 – Employee asks for change in the way they work Summary of process Step 1 – Employee asks for change in the way they work Step 2 – Employer has 21 days to consider the request and make a decision

Summary of process Step 3 – Employer issues written notice of decision or if no notice is issued, employer deemed to have refused the request Step 4 – If request refused (whole or part), or no decision made, Employee can make an application for a dispute in QIRC Dispute under Chapter 6 IR Act

Request by employee – s 27 Employee may ask for flexible work arrangements ordinary hours of work place where employee works change to way the employee works e.g. different equipment Request must be in writing provide sufficient detail to allow the employer to make a decision state reason(s) for change s 27(1) is not an exhaustive list of changes that an employee can request, just examples

When is a request made? Vandeven v Virgin Blue Airlines [2013] FCCA 981 at [325-343] employee enjoyed flexible work arrangements under ‘loose arrangements’ of old supervisor until arrival of new manager directed to be in office between 9 am and 5:30 pm, with no work emails or phone calls after hours employee brought a general protections claim alleging denial of flexible working arrangements (unilateral change to agreed hours of work), and lost benefit of dropping son to school held process under section 65 had not been invoked, only verbal complaint Held: Virgin’s directive to Ms  Vandeven  to attend work during regular hours constituted a workplace right, then the directive was one which altered the applicant’s position to her prejudice. However, I do not accept that the directive injured her in her employment or discriminated against her in her employment, as it simply reinstated the contractual position. Action taken by company was purely for operational reasons in order to advance the better management of staff in the office and not for the alleged reason.

Decision by employer – s 28 Employer may decide to grant the request grant the request in part or subject to conditions refuse the request Employer must give the employee written notice of its decision within 21 days of receiving the quest If no decision is made, or decision is not communicated to the employee within 21 days, taken as a refusal

Decision by employer Employer must have reasonable grounds if it makes a decision other than to grant the request Act is silent on what are ‘reasonable grounds’ Written notice must state reasons for the decision reasonable grounds for granting the request in part, with conditions or refusing the request that QIRC has jurisdiction to hear and decide a dispute over the request

What constitutes a request and response? Poppy v Service to Youth Council [2014] FCA 656 employee on maternity leave sought to return part-time email said As stated in my maternity leave letter, I would like to return to work on July 5, 2010. In discussions with XX prior to me going on maternity leave, it was discussed that I could return to my role 3 days in the office and 2 days at home. However, if possible I would like to come back part-time – 4 days per week (3 in the office and 1 from home split over 2 days) to my role. employer responded two days later simply noting employee’s preference employer advised 22 days after request that employee’s position was not required employer advised of redundancy in writing 27 days after request made Employee was employed as Marketing Coordinator for just over 4 years in July 2010. She gave birth to her first child in March 2010. Employer is a not for profit org providing training, employment, accommodation and well-being services to youth. Her request

What constitutes a request or response? Poppy v Service to Youth Council [2014] FCA 656, held circumstances in which a request may be made are diverse employee’s request must be construed objectively in the circumstances in which it was conveyed likely employees will not have legal training and will act with degree of informality employer cannot avoid compliance with legislation due to technical deficiency in way a request is framed if nature and purpose is known to employer minor contravention of NES established, penalty $2,500 Max penalty for contravention of NES at time was $33,000

Reasonable Grounds AMACSU v Mildura Rural City Council [2012] FWC 4308 employee sought to vary hours from 7:30 am start and 4 pm finish to 8:30 am start and 5pm finish arrangements to apply for 12 months employer refused request on operational and WHS reasons reasonable grounds, held reasons by employer cannot be artificial or capricious both request and refusal must be genuine onus on employer to demonstrate why refusal reasonable Employee represented by Australian Municipal, Administrative, Clerical and Services Union. This was a dispute over refusal to enter into an IFA under employer’s EA, (rather than under s 65 FW Act), but FWC took into account object of act which requires balancing of employee’s work and family responsibilities by providing for flexible work arrangements. Employee worked outdoors in a team that did slashing work. Work varies throughout the year and is at different locations, sometimes up to 100km from town Employer argued work and supervision was structured on strict timeframes, and if he started an hour later, employee would miss morning debrief/tool box meetings and have to be specially transported to the work site. It would also mean he would be working alone without traffic management support for the extra hour at the end of the day, which raised WHS concerns. Practice of part of business to cease at 4 pm unless OT is required. FWC also accepted evidence of employer that it had previously supported 32/34 requests for flexible work arrangements by employees

Reasonable Grounds Hanina Rind v Australian Institute of Superannuation Trustees [2013] FWC 3144 employer had an enterprise agreement that mirrored section 65 FW Act employee requested to return to work part-time after maternity leave employer refused saying position was full-time, and part-time arrangements initiated by employer in her absence had not been successful including pressure on other staff to do extra work and causing staff dissatisfaction while employee on maternity leave, employer had contracted a labour hire service to cover 15 hours a week of the employee’s full-time role employee claimed she had been constructively dismissed Reasons by employer: not being able to reschedule impromptu meetings with issues arise in the workplace unavailability of staff results in delays in deployment of projects not having replacement staff to backfill role means delay in development of projects role is an internal customer service role and is pivotal to ongoing development and success of business, and requires full-time role to maximise output of work Employer also offered employee to apply for additional eight week’s unpaid leave

Reasonable grounds Hanina Rind v Australian Institute of Superannuation Trustees grounds for refusal must be objectively based and objectively judged necessary for employer to establish reasonableness of refusal on objective basis what is sensible and reasonable having regard to contemporary views, which afford importance to role of parenting and family formation Refusal to agree to part-time work was not reasonable part-time labour hire arrangement was to continue labour hire arrangement cost more than if employee had returned part time likely employee would have provided greater number of hours in part time role than being delivered in unsatisfactory manner by contractor

Different types of requests - to work from home / be near facilities Huntley v State of NSW, Dept of Police and Justice (Corrective Services NSW) [2015] FCCA 1827 upon return to work Huntley’s GP stated she needed to be near the bathroom and could not perform home visits for that reason after medical assessment Huntley was seconded but due to her continued fatigue she requested and was denied being able to work from home Discrimination and failure to provide reasonable adjustments found: failure by employer to undertake a workplace adjustment assessment upon return to work Huntley could have fulfilled role by working from home Damages awarded were about $175,000 Claim of discrimination under Disability Discrimination Act 1992 (Cth) Huntley diagnosed with Crohn’s disease and took period of leave. Upon return to work, employee provided medical certificate with RTW restrictions that she needed to be near a bathroom and could not travel more than certain distances. Employer agreed to an informal arrangements for Huntley to do case load from the office and not to undertake home visits. Arrangement was in place for seven months. Huntley was then told that this arrangement could no longer continue and she was directed to an IME the result of which was either she opted for medical retirement or redeployment. She opted for redeployment and was seconded into another role, whilst in that role she suffered serious fatigue and requested to work from home. This was denied on the basis she had people that reported to her however it was found that in reality she had no direct supervisosry duties. The Dept of Police argued that they did not have to make reasonable adjustments because Huntley could not perform the inherent requirements of the role. The Dept of Police was found to have erred in that they took every part of the role description as necessary. No assessment was made to identify these inherent requirements and whether reasonable adjustments could be made. Failure by Dept of Police to view Huntley as a person with a disability but instead viewed her as a person with an illness who required time away from work. Damages award: $99,000 for economic loss and $75,000 as general damages (breach of contract and pain and suffering)

Different type of requests - to not work night shifts Chivers v State of Queensland [2014] QCA 141 graduate Nurse suffered non-work related head injury upon commencement of employment she did not have to work nightshifts and wanted this to continue after her probation period she was not offered employment as her employer took the position that ‘nigh shift duty was an important part of working as a nurse’ Exemption under s25 of Anti-Discrimination Act 1991 upheld working night shifts was a genuine occupational requirement the imposition of this requirement was reasonable The court noted that in relation to rostered work places: The appellant overlooked that her employment is one that provides services to patients 24/7 and that in order to provide these services it is necessary that nurses are rostered to work shifts and that in order for shifts to be allocated equitably, it is a requirement that all employed nurses participate in any one of the shift periods. If the appellant did not have to work night shifts then a ‘special position’ would have to be created for her.

Employment discrimination claims

Current position Anti-Discrimination Act 1991 (Qld) Section 164 – If a complaint is not resolved at conciliation, a complainant may request the ADCQ refer their complaint to QCAT Section 166 – If the ADCQ has advised the parties a complaint cannot be resolved by conciliation, the complainant can request the ADCQ refer their complaint to QCAT Section 167 – Party may request ADCQ refer the complaint to QCAT after six months QCAT decides complaint Costs – ordered if settlement offer made/rejected Request by complainant under s 166 AD Act must be made within 28 days of receipt of notification by QIRC

New Position Anti-Discrimination Act 1991 (Qld) work-related matter (relating to or including work or the work-related area) QIRC work-related matter and another matter QIRC Section 1106 IR Act amends definition in AD Act to insert new definition of ‘work-related matter’ means ‘a complaint or other matter relating to, or including, work or the work-related area’. Section 1102 IR Act 2016 amends section 193A of the AD Act, to enable QIRC to refer back to QCAT a complaint that involves work and non-work related matters. QCAT can then deal with the complaint as if it didn’t contain a work-related matter. Alternatively, if a complaint is referred to QIRC that has both work and non-work related matters, it can retain and deal with the complaint. Otherwise QCAT

New Position Section 174B – New functions of QIRC hear and decide complaints grant exemptions from Act regarding work-related matters opine about application of Act to work-related matters wide powers incidental to exercise of jurisdiction will apply Costs: Schedule 2 IR Act each party to a proceeding bears own costs QIRC can order costs against a party (representative or Attorney-General intervening) in interests of justice QIRC can order costs in other circumstances e.g. offer made but not accepted Currently, Section 174C of the IR Act 2016 confirms section 539 IR Act general powers of QIRC apply to work-related discrimination matters eg make directions, allow amendment of claims, correct/waive irregularities Sch 2, ss 4 and 5 and 6 – QIRC may order party to pay all or some costs of other party if interests of justice require Factors QIRC will consider: party acted in way that unnecessarily disadvantages the other party nature and complexity of the proceeding relative strengths of each party’s case financial circumstances of the parties anything else that is relevant

Contact Michael Moy Partner T +61 7 3233 0270 E mmoy@mccullough.com.au Lydia Daly Senior Associate T +61 7 3233 8697 E ldaly@mccullough.com.au Disclaimer: This presentation covers legal and technical issues in a general way.  It is not designed to express opinions on specific cases.  This presentation is intended for information purposes only and should not be regarded as legal advice.  Further advice should be obtained before taking action on any issue dealt with in this presentation.