Direct Request (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 (ACC) 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.

The Committee previously requested the Government to provide information on provisions which: (i) prevent the Australian Industrial Relations Commission from certifying agreements which contain clauses requiring payment of bargaining services fees; (ii) prohibit industrial organizations from demanding bargaining services fees from a worker unless the fee is payable under a contract for provision of bargaining services directly with the non-member who is to be covered by the agreement; and (iii) void terms in collective agreements requiring or permitting the payment of bargaining services fees.

The Committee notes that section 353 of the Fair Work Act, 2009, which prohibits an industrial association, or an officer or member of an industrial association, from demanding payment of a bargaining services fee, defined as a fee payable to an industrial organization or to someone in lieu of an industrial organization, other than membership fees, wholly or partly for the provision, or purported provision, of bargaining services. The Committee notes that the Government indicates in its report that the Fair Work Act provides that parties cannot include unlawful terms in a collective agreement, including a provision allowing for bargaining agent fees. The Committee once again requests the Government to provide information on the practical application of these provisions and any reported impact they may have on collective bargaining, and requests it to review section 353, in full consultation with the social partners concerned, with a view to its amendment in the light of the Committee’s comments.

Finally, the Committee notes the concerns raised by the ACTU concerning certain unlawful terms that may not be included in collective agreements, such as: to extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay; to pay bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior to those contained within the Act (section 409(3)). The Committee requests the Government to inform it of the practical application of these provisions as well as on any steps taken or envisaged to further broaden the potential scope of collective bargaining.