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

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

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce and Industry (ACCI) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over the years in relation to the application of the Convention. The Committee also notes the Government’s statement that it is firmly committed to the ILO and to the implementation of ratified Conventions.

In particular, the Committee notes with interest that collective bargaining at the enterprise level is at the heart of the Government’s new workplace relations system. Statutory individual agreements cannot be made under the new system. There are provisions for the phasing out of existing statutory individual agreements – either Australian Workplace Agreements or Individuals Transitional Employment Agreements – which will continue to apply until they are terminated. This is in line with the Government’s prior policy commitments and honours commitments that were lawfully made when they were entered into. In relation to the building and construction industry and the Building and Construction Industry Improvement (BCII) Act, a comprehensive consultation process into the regulation of the industry was conducted by the Hon. Murray Wilcox, QC, and further consultation with stakeholders followed receipt of Mr Wilcox’s report by the Government in March 2009. The Government has accepted Mr Wilcox’s recommendations and has introduced legislation into the Parliament to replace the BCII Act and, in particular, to determine that the general compliance and penalty regimes of the Fair Work Act will apply to the industry.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In previous comments, the Committee raised the need to ensure that workers are adequately protected against anti-union discrimination, especially dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). The Committee notes with interest that section 347 of the Fair Work Act, 2009, defines protected industrial action and includes: (i) the organization or promotion of a lawful activity for, or on behalf of, an industrial association; or (ii) encouragement or participation in a lawful activity organized or promoted by an industrial association. In addition, section 772 of the Act prohibits termination of an employee due to their trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours. The Committee notes that the Government indicates in its report that, under the general protection provisions of the Fair Work Act, it is unlawful for a person to take adverse action, such as dismissal or refusing to employ or demoting a person, because that person is or is not a union member, or engages or does not engage in lawful industrial activity. In addition, it is prohibited to take adverse action against employees exercising a workplace right or acting as a representative of employees in the workplace. These protections extend to all employees in the national workplace relations system. The Committee understands that they will cover pattern bargaining to the extent that the parties are genuinely trying to reach an agreement. The Committee requests the Government to provide information on the manner in which industrial action related to pattern bargaining is protected in practice, including any relevant decisions from the FWA. The Committee further requests the Government to indicate the steps taken or envisaged to ensure protection against anti-union dismissals related to actions taken in respect of multiple business agreements.

Article 2. Protection against interference. The Committee previously raised the need to amend section 339 of the Workplace Relations Act, 1996, (WR Act) to ensure that the choice of a bargaining agent, even in new businesses, may be made by the workers themselves even if an “employer greenfields agreement” has been registered (enabling the employer to unilaterally determine the terms and conditions of employment in a new business including any new activity by a government authority, or a body in which a government has a controlling interest, or which has been established by law for a public purpose as well as a new project which is of the same nature as the employer’s existing business activities). The Committee notes with satisfaction that the Government indicates in its report that the Fair Work Act removes the capacity for “employer greenfields agreements” and provides that a greenfields agreement can only be made between the new employer and one or more employee organizations that are entitled to represent the majority of employees to be covered by the agreement.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to provide additional information on the provisions which will govern the transition from the previous system, based on Australian Workplace Agreements (AWAs), to the new system and to specify, in particular, the conditions under which workers covered by AWAs will be free to be represented in collective bargaining, as well as the relationship between AWAs already concluded and the new collective agreements. The Committee notes with satisfaction that the Government indicates that collective bargaining for enterprise agreements is at the heart of Australia’s new workplace relations system. Individual statutory agreements are not part of the new system; this is emphasized by the object of the Fair Work Act which states that statutory individual employment agreements of any kind can never be part of a fair workplace relations system. In line with the Government’s prior policy commitments, existing AWAs will continue to apply until they are terminated. The Committee requests the Government to provide information on the application of these provisions in practice.

In several of its previous comments, the Committee raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to a requirement of prior authorization at the discretion of the employment advocate. The Committee notes that the ACTU refers to the abilities of parties to negotiate multi-employer agreements by consent and that the FWA can facilitate multi-employer collective bargaining for low-paid employees, or employees who have not historically had access to the benefits of collective bargaining. The Committee notes that the Government indicates that the Fair Work Act allows employers who wish to voluntarily bargain together for a multi-enterprise agreement to do so with no public interest test and no requirement of FWA approval. In this instance, employers and employees do not have access to protected industrial action. The FWA will also facilitate multi-employer bargaining for low-paid employees. The Committee notes that section 186 of the Fair Work Act, 2009, requires FWA authorization of any enterprise agreement and that agency may only approve multi-employer agreements if it is satisfied that no person coerced, or threatened to coerce, any of the employers to make the agreement. In addition, sections 409 and 412 of that Act prohibit pattern bargaining unless the parties are genuinely trying to reach an agreement. Recalling that the Government should promote and encourage the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations, the Committee requests the Government to inform it of the application of these provisions in practice.

Building industry. The Committee recalls that it previously requested the Government to: (i) revise section 64 of the BCII Act to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or the decision of the administrative authority; and (ii) promote collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions on collective bargaining. The Committee notes with interest the Government’s indication that it has introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009, which amends the BCII Act, and which would: (i) repeal section 64 of the BCII Act with the effect that the level of bargaining would be determined in accordance with the Fair Work Act; and (ii) retain the capacity currently for the Minister to issue a Building Code though, to date, the Government has not issued a Building Code under section 27 of the BCII Act. The Committee requests the Government to indicate in its next report any progress made in this regard.

The Committee notes with interest that the Higher Education Workplace Relations Requirements (HEWRRs) upon which it had commented previously have been abolished by the Higher Education Support Amendment (Removal of the Higher Education Workplace Relations Requirements and National Governance Protocols Requirements and other matters) Act, 2008.