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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973)

The Committee takes note of the Government’s report. It also notes the comments of the Australian Council of Trade Unions (ACTU) dated 13 October 2003, the comments of the Australian Chamber of Commerce and Industry (ACCI) dated 10 November 2003 as well as the Government’s observations thereon dated 13 November 2003.

Article 1 of the Convention. The Committee notes that in its previous comments it had requested the Government to keep it informed of the status of the Workplace Relations Amendment (Unfair Dismissals) Bill. The Committee notes from the Government’s report that the Bill was blocked by the Senate and was not enacted into law; the subsequent Workplace Relations Amendment (Termination of Employment) Act 2001 (No. 100 of 2001) amended the termination provisions of the Workplace Relations Act (WR Act) as of 30 August 2001 so as to enhance disincentives for unmeritorious and speculative claims, remove the unnecessary procedural burdens that unfair dismissal applications place on employers and introduce greater rigour into unfair proceedings before the Australian Industrial Relations Commission (AIRC). The Committee requests the Government to transmit in its next report information on the exact provisions which have been amended and their content.

Article 2. In a previous direct request the Committee had requested the Government, in the context of a claim by the ACTU that the WR Act had the effect of promoting the establishment of workers’ organizations that are under the domination of the employer, to forward a copy of the relevant decisions addressing the issue of interference or domination of workers’ organizations by employers. The Committee notes that according to both the Government and the ACTU, despite the fact that the AIRC decided to reject an application by the Sucorp-Metway Queensland Enterprise Union (SMQEU) for registration as an enterprise association (inter alia because members of the SMQEU (including members of its committee of management) held shares in the employer), it did not rely on the fact that the SMQEU was a trade union established and entirely funded by the employer in reaching its decision. The AIRC found that the issue of funding did not mean that the association had failed to meet the independence criteria set out in paragraphs 189(4)(a) and (b) of the WR Act because the employer had no discretion to refuse the funding and no power to direct the association as to how to spend the money under the deed whereby the company agreed to fund the association. The Committee notes that, according to the Government, the AIRC’s conclusion relied on the particular circumstances of the case and is not general authority for the proposition that the provisions of the WR Act permit the registration of unions which are funded by the employer; this is borne out by a more recent decision which rejected a registration application on the basis of evidence that the applicant association had received payments from the employer. The Committee recalls that under Article 2 of the Convention, acts which are designed to support workers’ organizations by financial or other means with the object of placing such organizations under the control of employers or employers’ organizations are deemed to constitute acts of interference. It requests the Government to ensure that this Article is fully implemented in the future.

Article 4. 1. The Committee notes from the Government’s report that section 170MW of the WR Act was amended by the Workplace Relations Amendment (Genuine Bargaining) Act, 2002 so as to encourage genuine bargaining at the enterprise level. A new section 170MWA empowers the AIRC to make orders to prevent the initiation of a new bargaining period or to order that conditions be attached to any such bargaining period where an earlier bargaining period has ended because the initiating party has given notice to withdraw the bargaining period under section 170MV(b). The Committee notes that according to the Government, the new section reinforces the AIRC’s ability to end protected industrial action by suspending or terminating bargaining periods if a party is not genuinely bargaining about their claims at the enterprise level. The amendment was based on the decision of the AIRC in Australian Industry Group v. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (16 October 2000) which involved a party withdrawing bargaining periods, ostensibly as a cooling off period, whenever the other party sought to suspend or terminate a bargaining period through an application to the AIRC; a short time later a new bargaining period was re-instigated which allowed further protected industrial action to be taken. The AIRC found that these tactics showed that the negotiating party was not genuinely trying to reach agreement. The Committee recalls that the parties should be given every opportunity to bargain collectively, during a sufficient period, with the help of independent facilitators (mediator, conciliator, etc.) and machinery and procedures designed with the foremost objective of facilitating collective bargaining (see General Survey on freedom of association and collective bargaining, 1994, paragraph 259). The Committee requests the Government to keep it informed of the decisions taken by the AIRC in the future on the basis of section 170MWA of the WR Act.

2. Collective bargaining in the higher education sector. The Committee takes note of the comments of 13 October 2003 made by ACTU to the effect that, through section 33-15 of the Higher Education Support Bill, the Government provides economic incentives to universities, the employees of which are not government employees, to apply specific workplace relations policies (the Higher Education Workplace Relations Requirements (HEWRRs)) which inter alia: (1)  allow an AWA signed at any time to override a certified collective agreement which is still in force; (2) provide that staff involvement in negotiations on key workplace issues should not be restricted to union representation but should include direct employee involvement. The Committee takes note of the comments of 10 November 2003 communicated by the ACCI to the effect that the Government does not prescribe the way that a higher education institution must conduct its workplace relations, but rather is setting a framework to extend the scope for bargaining so as to allow for individual bargaining agreements. The Committee finally notes that, according to the Government’s observations dated 13  November 2003, the workplace relations policies that it promotes do not express a preference for one form of agreement over another and emphasize choice for employees and universities so as to tailor working arrangements to their particular needs and circumstances. The Committee notes however that section 33-15 of the Higher Education Support Bill along with the HEWRRs seem to raise obstacles to collective bargaining first by granting economic incentives so as to influence the content of collective bargaining in a way that exceptions can be conceded in favour of AWAs and, second, by allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit. The Committee therefore requests the Government to indicate in its next report any steps taken or contemplated to amend section 33-15 of the Higher Education Support Bill or the HEWRRs so as to eliminate any obstacles to collective bargaining and bring them into conformity with Article 4 of the Convention.

3. Union fees. The Committee notes from the Government’s report that the Workplace Relations Amendment Act (Prohibition of Compulsory Union Fees) 2003 amended the WR Act to prevent the AIRC from certifying an agreement containing a clause requiring payment of bargaining services fees and that the Full Bench of the AIRC has rejected the suggestion that disallowing bargaining agency fee clauses would offend against the principle of voluntary collective bargaining. The Committee considers that bargaining agency fees should be a matter for the parties to decide and that the law should not prevent them from reaching an agreement on payment of such fees, if they so decide. Moreover, the Committee considers that the prohibition of agency fees should be read in conjunction with section 170NB(1)(a) of the WR Act which effectively expands the outcome of collective bargaining to all workers in a unit regardless of trade union affiliation (as it obliges an employer not to discriminate between trade union members and non-members during the negotiation of a collective agreement). The Committee observes that these provisions lead to a situation where non-trade union members benefit from advantageous provisions in collective agreements without having to affiliate to trade unions and without having to pay any agency fees in return for such benefits, thereby effectively discouraging trade union affiliation and involvement in trade union activities. The Committee therefore requests the Government to amend the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 so that the matter of agency fees can be freely negotiated by the parties themselves and not be legislatively imposed.

4. Statistical data. The Committee takes note of the statistical data provided by the Government according to which, between 1 January 1997 and 30 June 2003, a total of 40,789 collective agreements (certified agreements) were finalized under the WR Act with an estimated 1,671,000 employees covered by federal certified agreements. As for AWAs, according to statistics provided by the Office of the Employment Advocate, over 352,531 AWAs were approved in the period between March 1997 (when the AWA provisions came into effect) and the end of June 2003. The Committee also notes that 20.5 per cent of non-farm employees had their pay set by awards, 36 per cent through a registered collective enterprise agreement, 2.2 per cent through an unregistered collective enterprise agreement, 2  per cent through a registered individual agreement and 39 per cent through an unregistered individual agreement. The Committee notes on the basis of the above information that AWAs seem to have been applied to 2 per cent of the non-farm employees since their introduction six years ago and requests the Government to keep it informed in this respect.

South Australia. The Committee takes note of the information provided by the Government of South Australia in its report. It also notes, however, that the Government does not provide any information with regard to the Committee’s previous request concerning the percentages of workers covered respectively by enterprise agreements and awards. The Committee once again requests the Government to provide information on the percentages of workers covered respectively by enterprise agreements and awards.