Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Labour Inspection Convention, 1947 (No. 81) - Australia (Ratification: 1975)

The Committee notes the Government’s report and the attached documentation on the implementation of the Convention at the Federal and state levels. It also notes that the report does not reply in full to the Committee’s previous requests concerning Article 21 and, as regards New South Wales, Article 6. Moreover, the Committee has not yet received information on the implementation of the Convention from the State of Victoria.

The Committee welcomes the Government’s indication that the system of data collection is being improved, particularly in the area of occupational diseases, as part of the National Occupational Health and Safety Strategy, 2002-12. It hopes that the Government will keep it informed of any developments in this regard and will provide information on the various subjects enumerated in Article 21 of the Convention.

Referring to paragraphs 272 to 276 of the General Survey of 1985 on labour inspection with regard to the objectives of an annual report on the work of the labour inspection services, the Committee asks the Government to take appropriate measures to ensure that the central authority complies with its obligation to communicate reports drawn up in the form and within the time limits prescribed by Article 20, and containing the information required under Article 21 of the Convention, and to supply more detailed information in accordance with Part IV of Recommendation No. 81.

Article 6 of the Convention. New South Wales. The Committee notes that the Government has not replied to the comments made in 2001 concerning inspectors employed on a contract basis, whose status, salaries and other conditions of service are determined by the Statutory and Other Officer Remuneration Tribunal. The Government is therefore once again asked to supply information on whether stability of employment is assured for these inspectors.

In addition, the Committee would also like to draw the Government’s attention to the following points.

Article 5. Queensland. The Committee notes with interest the information provided on labour inspection activities in accordance with the Industrial Relations Act and Article 5(a) of the Convention. It would be grateful if the Government would indicate whether any other private or public bodies are responsible for supervising the application of labour law in such areas as wages and employers’ registration obligations, and if it would provide a copy of any relevant legal provisions.

Article 6. Queensland. According to the Government of Queensland, within the Department of Natural Resources, Mines and Energy, certain mining inspectors are employed on a contractual basis. Referring to the above comment relating to the application of this provision in New South Wales, the Committee asks the Government to indicate the manner in which the stability of employment of such inspectors and their independence of changes of Government are ensured and to provide a copy of any relevant legal provision.

Article 12. 1. New South Wales. Under the terms of section 385 of the Industrial Relations Act, 1996, an inspector may inspect "at any reasonable time" any presumed premises of an employer and any work being done there. Emphasizing the need to provide a legal basis for the application of the principle of free access to any workplace liable to inspection without previous notice at any hour of the day or night, (paragraph 1(a)). If not, the Committee requests the Government to indicate the measures taken to give full effect to this provision of the Convention in law and practice.

2. Queensland. The Committee notes section 353(1) of the Industrial Relations Act, under which the inspector has to tell the occupier of the inspector’s intention to gain access to the workplace if it is practicable. In this regard, section 104(3), of the Workplace Health and Safety Act established that, if it is practicable to do so, tell the occupier of the inspector’s intention of gaining access to a workplace. Furthermore, under section 139 of the Electrical Safety Act, in urgent circumstances the inspector must make a reasonable attempt to tell the occupier the purpose of the entry.

The Committee emphasizes that the only distinction between formal workplaces and presumed workplaces made under Article 12, paragraph 1, concerning the right of free access consists of the period when inspection is authorized in relation to points (a) and (b). With regard to the principle of notification by inspectors to the employer or his/her representative of their presence on the occasion of an inspection, the Convention provides that inspectors should be allowed to refrain from such notification where they consider that it might be prejudicial to the performance of their duties (paragraph 2).

The Government is therefore asked to take the necessary measures to ensure that the law is in compliance with each of the provisions of Article 12 and to provide information on any progress achieved in this respect.

Moreover, the Committee would be grateful if the Government would provide explanations as regards the cases in which the occupier’s consent and the corresponding warrant, as referred to in the Workplace Health and Safety Act and the Electrical Safety Act, 2002, are compulsory for labour inspectors to be able to enter a workplace.

The Committee would also be grateful if the Government would provide information on the extent of the labour inspector’s right of entry, in accordance with the Workplace Health and Safety Act and the Industrial Relations Act, and in particular whether inspectors are authorized to enter workplaces liable to inspection at any hour of the day or night.

3.  Western Australia. The Committee asks the Government to indicate the extent to which labour inspectors can enter workplaces freely (Article 12, paragraph 1(a)) under the terms of the Industrial Relations Act and the Occupational Safety and Health Act and to provide information on the effect given to the relevant provisions in practice.

Noting that, pursuant to section 45(1) of the Occupational Safety and Health Act, the inspector shall take all reasonable steps to notify the employer of her or his presence on the occasion of an inspection visit, the Committee would be grateful if the Government would indicate the measures adopted in this respect and provide information on the application of Article 12, paragraph 2.

4. Northern Territory. The Committee notes that, under the terms of section 37 of the Work Health Act and 89L(1) of the Petroleum Act, work health officers or inspectors shall not conduct an investigation at the workplace until they have taken reasonable steps to notify the employer or the employer’s representative of their entry into the workplace.

Furthermore, under section 88(1) of the Petroleum Act, an inspector may, at all reasonable times, "enter and remain in an exploration permit or licence area, or inspect and test equipment. In this respect, the Committee recalls once again that, in accordance with Article 12(1)(a), labour inspectors shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. Moreover, under paragraph 2, inspectors should be authorized to decide whether they should refrain from notifying the employer or her or his representative of their presence where they consider that such notification may prejudice the effectiveness of the inspection. The Government is asked to provide information on any measure taken to give effect to these provisions of the Convention.

Articles 13 and 17. Queensland. Noting that, according to the Government, within the fields covered by the Department of Industrial Relations, the relevant national and state laws provide access to prompt legal proceedings in case of non-compliance. The Committee asks the Government to indicate the corresponding legislative provisions.

Article 15. Queensland. The Committee notes that, according to the Government, inspectors in the Department of Natural Resources, Mines and Energy, and the Department of Industrial Relations are covered by departmental codes of conduct which meet the requirements of this Article. The Committee asks the Government to indicate the legal status of these codes of conduct and to provide copies of them, and of any related legal provisions.

Article 16. Tasmania. The Committee notes with interest that, according to the Government of Tasmania, inspections relating to workers employed under terms and conditions set in awards by the Tasmanian Industrial Commission are performed on a reactive basis. Highlighting the importance of preventive inspections, the Committee would be grateful if the Government would indicate frequency with which preventive inspections are undertaken and the areas covered.

Article 17. Western Australia. The Committee notes the Government’s indication that cases of non-compliance are addressed by improvement notices, prohibitions notices, prosecutions and verbal instructions during inspections. The Committee would be grateful if the Government would provide details on whether it is left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings, as provided for in paragraph 2 of this Article, and if it would provide a copy of the relevant provisions.

Article 21. 1. Western Australia. The Committee notes the Government’s indication concerning the information contained in the annual report of the Department of Consumer and Employment Protection, including the lack of data on the number of workers employed in workplaces liable to inspection. It encourages the Government to continue its efforts to compile and publish all the information required by this Article of the Convention.

2. Northern Territory. The Committee notes the Government’s indication that some of the statistics required under Article 21 are missing in the annual report and that measures are being taken to improve reporting in this respect. The Committee encourages the Government to continue its efforts to compile and publish the data required under this Article of the Convention and to provide information on any development in this regard.