Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

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 additional points.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Committee notes from the Government’s report that the Public Service Act 1999 sets out the conditions of service for all Australian Public Service (APS) employees, including engagement and termination provisions; and establishes the APS values which require APS employees to be apolitical, performing their functions in an impartial and professional manner. According to the Government, a change of government may not have any effect on the conditions of service or employment of APS employees, unless an administrative rearrangement occurs in line with the provisions of the Public Service Act 1999. The Government adds that the majority of fair work inspectors are employed under the Office of the Fair Work Ombudsman Enterprise Agreement 2010–11 (EA) with a very small number of inspectors covered by individual workplace agreements. The EA and other agreements do not assure stability of employment; however, they include clear provisions outlining conditions of service, redundancy entitlements, termination procedures, and dispute resolution. Finally, the Fair Work Ombudsman and the fair work inspectors are expected under the Fair Work Act (FWA) to perform their functions in an impartial manner and on the basis of procedural fairness. The inspectors are consistently reminded of their duties as public servants and as inspectors to uphold the Australian Public Service (APS) Code of Conduct.

The Committee recalls that, under the terms of Article 6 of the Convention, the inspection staff should 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 to the Fair Work Ombudsman and inspectors by sections 687 and 700 of the FWA as well as section 29 of the Public Service Act 1999 and the EA and individual workplace agreements on the basis of which most inspectors are employed. The Committee requests the Government to take measures so that the Fair Work Ombudsman and the fair work inspectors are guaranteed stability of employment according to Article 6 and to provide information on progress made in this regard.

In relation to the states and territories, the Government indicates that inspection staff are assured stability of employment in Victoria and Tasmania. While in Queensland inspectors have tenure, certain mining inspectors and some petroleum and gas inspectors are employed on a contract basis under section 122 of the Public Service Act 208 due to limitations on public service pay scales and the need to offer competitive salary packages to attract suitable inspectors. The Committee would be grateful if the Government would provide further information on the numbers of such inspectors and their functions, indicating the grounds for non-renewal.

Article 12. Right of labour inspectors to enter freely workplaces liable to inspection. New South Wales. With reference to its previous request for information, the Committee takes due note of the clarifications provided by the Government to the effect that under sections 51–58 of the Occupational Health and Safety (OHS) Act 2000, WorkCover inspectors in New South Wales have the power to enter and inspect workplaces at any time of the day or night when work is carried out or is usually carried out at the premises. An inspector may also apply for a search warrant if the inspector has reasonable grounds for believing that the OHS Act or the regulations have been or, are about to be, contravened in or about any premises that is a place of work. The Committee recalls that, under Article 12(1)(b) of the Convention, labour inspectors provided with proper credentials should be empowered to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. The Committee requests the Government to specify the conditions under which labour inspectors are empowered to enter premises which function as workplaces (e.g. whether a search warrant is required also for inspections by day and the procedure/conditions for obtaining one).

Articles 20 and 21. Annual labour inspection report.  With reference to its 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 the annual report of the Department of Commerce now provides information that is consistent with the provisions of Article 21. However, it has not been possible to access the report in question on the Government website. The Committee recalls that under Article 20, the annual general report on the work of the inspection services should be published, i.e. that it remains accessible. The Committee requests the Government to ensure that the annual labour inspection report is accessible and, if that is not the case, to furnish a printed copy of the excerpts relative to the application of Article 21.

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)) as well as on cases of occupational disease (Article 21(g)), the Committee notes from the Government’s report that, as far as the Commonwealth is concerned, the FWO relies upon inter-institutional cooperation for the gathering of relevant data to assist in the design and implementation of targeted campaigns, since relevant data are available in a number of government services. The FWO’s claims management system also contains information on workplaces that had had complaints filed against them, have been audited or have called the FWO for information.

At the level of the state jurisdiction, the Committee notes that the statistics in question are not reflected in the annual report but could be available through other sources, including the Australian Bureau of Statistics. Victoria and South Australia indicate that further consideration will be given to the issue. Western Australia reports that the annual report now provides information consistent with the provisions of Article 21.

The Committee notes that as the vast majority of Australian workplaces now fall within the jurisdiction of the FWO, it is possible to comply with the requirement of the Convention to publish an annual report containing information on the items listed in Article 21. This would enable the labour inspection authority to make a comprehensive assessment of the magnitude of the task entrusted upon the FWO in terms of the number of enterprises and workers’ activities carried out, results achieved, and possible improvements, notably in relation to the human and material resources placed at the disposal of the labour inspection system.

The Committee therefore once again requests the Government to take measures to ensure the inclusion of full data in annual labour inspection reports, and to keep the ILO informed of any progress in this regard.