Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

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

Article 4 of the Convention. 1. Collective bargaining in the higher education sector. The Committee’s previous comments, pursuant to an observation made by the Australian Council of Trade Unions (ACTU), concerned the need to amend Section 33-5 of the Higher Education Support Bill or the Higher Education Workplace Relations Requirements (HEWRRs) which: (1) granted economic incentives so as to influence the content of collective bargaining in a way that exceptions could be conceded in favour of Australian Workplace Agreements (AWAs); and (2) allowed for negotiations with non-unionized workers even where representative trade unions existed in the unit.

The Committee notes from the Government’s report with regard to what has now become the Higher Education Support Act, 2003, that the Government does not believe it necessary to make any amendments and emphasizes choice for employees and universities. The Government also indicates that the Federal Court of Australia upheld the legality of funding incentives to stimulate reform in higher education workplaces.

The Committee recalls once again that the Higher Education Support Act 2003 and the HEWRRs raise obstacles to collective bargaining similar to those raised by the Workplace Relations Act 1996 (WR Act) on which the Committee has been commenting for a number of years, recalling that Article 4 of the Convention establishes the principle of the promotion of collective bargaining between employers or their organizations and workers’ organizations. The Committee expresses the hope that the Government will take the necessary measures without delay so as to bring these instruments into conformity with the Convention and requests the Government to indicate in its next report any measures taken or contemplated in this respect.

2. Union fees. The Committee’s previous comments concerned the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 which amended the WR Act so as to prevent the Australian Industrial Relations Commission (AIRC) from certifying agreements which contain clauses requiring payment of bargaining services fees.

The Committee notes from the Government’s report that in the case Electrolux Home Products Pty. Ltd v. Australian Workers’ Union [2004] HCA 40 (2 September 2004), the High Court affirmed that in order for an agreement to be certified, every substantive clause must pertain to the employment relationship and a clause providing for bargaining agency fees, payable to a negotiating union by all employees, does not pertain to the employment relationship. Thus, any certified agreement that contains such clauses is invalid. Moreover, industrial action taken to support claims for bargaining agency fees do not qualify as "protected action" under the WR Act. While the Government introduced the Workplace Relations Amendment (Agreement Validation) Act 2004 to retrospectively validate certain certified agreements whose validity had been brought into question following this decision, this Act did not affect the invalid status of bargaining agency fees clauses in certified agreements.

The Committee once again recalls 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 this issue. Moreover, the prohibition of agency fees, 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, leads 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 contribute any fees, thereby discouraging trade union affiliation and involvement in trade union activities. The Committee therefore once again requests the Government to amend the Workplace Relations Amendment Act (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.

3. Statistical data. The Committee takes note of the statistical data provided by the Government and requests it to continue to provide such information in its next report.

South Australia. The Committee once again requests the Government to provide information on the percentages of workers covered respectively by enterprise agreements and awards.