Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

With reference to its observation, the Committee would like to draw the Government’s attention to the following points.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Committee notes that in accordance with section 687 of the Fair Work Act (FWA), the Fair Work Ombudsman is to be appointed by the Governor-General by written instrument after the Minister has been satisfied that the person has suitable qualifications or experience and is of good character. The Ombudsman holds office for a period specified in the instrument of appointment which must not exceed five years. The Ombudsman is eligible for reappointment. In accordance with section 700, fair work inspectors are appointed by the Fair Work Ombudsman for a period which may not exceed four years. They are also eligible for reappointment.

The Committee recalls that, under the terms of Article 6 of the Convention, the inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. The Committee notes that stability of employment is not assured by sections 687 and 700 of the FWA, since the appointments of the Ombudsman and the inspectors are limited to renewable terms of five and four years respectively. The Committee requests the Government to indicate the ways in which the Fair Work Ombudsman and the fair work inspectors are ensured stability of employment and independence from improper external influences as provided for in Article 6 of the Convention. For instance, the Committee would like to request information on the reasons for the non-renewal of appointments.

Article 12, paragraph 1(a). Right of labour inspectors to enter freely workplaces liable to inspection. Queensland. With reference to its previous request for information, the Committee notes from the Government’s report that workplace health and safety inspectors have the right to enter workplaces at any time.

New South Wales. With reference to its previous request for information, the Committee notes that under sections 51–58 of the Occupational Health and Safety Act 2000, WorkCover inspectors in New South Wales have the power to enter and inspect workplaces generally at a reasonable time when work is usually carried out on the premises. However, under certain circumstances they can attend a workplace without notice and gain entry by “use of force” in emergency situations. Finally, they can apply for a search warrant if there are reasonable grounds for believing that a provision of the legislation has been or is being or is about to be contravened in or about any work premises.

The Committee recalls that, under the terms of Article 12(1)(a), labour inspectors with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. It also notes that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped (see General Survey of 2006 on labour inspection, paragraph 270). The Committee requests the Government to indicate in its next report any measures taken or envisaged to enable labour inspectors to carry out inspections at any hour of the day or night, where this is warranted.

Articles 20 and 21. Annual labour inspection report. 1. With reference to the Committee’s previous comments on the need to include additional information in the annual inspection reports of Western Australia, the Committee notes from the Government’s report that consultations have taken place with the staff responsible for compiling the relevant annual reports and efforts are underway to include additional information in the 2007–08 annual report and to implement systems that will collect the remaining data required for future reports. The Department of Consumer and Employment Protection will endeavour to include additional information as set out in Article 21 of the Convention in future annual reports. The Committee requests the Government to indicate in its next report the progress made in this regard.

2. With reference to its previous comments on the need to include statistics in annual reports on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)) and on cases of occupational disease (Article 21(g)), the Committee notes from the Government’s report that, as far as the Commonwealth is concerned, it will inform the Committee of any developments as they occur. The Committee also notes that most other jurisdictions have not commented on this question. With regard to the Northern Territory, the Committee notes that, according to the Government, the reports cover all the information required by Article 21, except for items (b) on the staff of the labour inspection service and (c) on statistics of workplaces liable to inspection and the number of workers employed therein. However, information on all of the above statistics is provided to the Office of the Australian Safety and Compensation Council, Department of Employment and Workplace Relations. The information provided by all the Australian jurisdictions is compiled in the Comparative Performance Monitoring (CPM) report of the Workplace Relations Ministers’ Council, which provides trend analysis on occupational health and safety and workers’ compensation schemes in Australia and New Zealand.

In its previous comments, the Committee took due note of the availability on the web sites indicated by the Government of abundant information and numerous legislative texts and activity reports by the bodies engaged in labour inspection activities. The Committee once again observes that statistics on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)), as well as on cases of occupational disease (Article 21(g)), are not included in the annual reports available. It recalls the interest of having available all the data required by Article 21 for inclusion in the annual inspection report so that it reflects as faithfully as possible the effectiveness of the labour inspectorate throughout the country and enables the social partners in particular, as well as any interested party, to express their views and to make proposals for its progressive improvement. The Committee therefore once again requests the Government to indicate in its next report any measure taken or envisaged, and any progress made in this regard.