Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

With reference to its observation, the Committee would also like to raise the following points.

Legislation. The Committee notes the information provided in the Government’s report, and in particular the recent harmonization of Workplace Health and Safety (WHS) laws and the development, by Safe Work Australia, of a National Compliance and Enforcement Policy, which aims to ensure that work health and safety regulators take a nationally consistent approach to compliance and enforcement. New South Wales. The Committee notes that the Workers Compensation Legislation Amendment Act 2012, which amends the Workplace Injury Management and Workers Compensation Act 1998, allows for inspectors to issue improvement notices to employers where they have contravened the workplace injury management provisions of the legislation (such as, for example, the employer obligation to provide suitable work to injured workers). Victoria. The Committee notes the adoption of the Child Employment Amendment Act 2010, which amends the Child Employment Act 2003, and improves the child employment permit process and strengthens compliance powers of Child Employment Officers. Western Australia. The Committee notes the adoption of the Industrial Legislation Amendment Act 2011, which amends the provisions of the Industrial Relations Act 1979 relating to Industrial Inspectors, and more specifically requires that identity cards must be produced by industrial inspectors upon request when exercising their powers, unless impracticable to do so and then at the first reasonable opportunity. South Australia. The South Australian Government is currently in the process of developing a new draft Child Employment Bill that would expand the role of the inspectorate by providing for more effective enforcement of industrial and health and safety protections for children. Tasmania. The Committee notes that on 1 January 2010 the industrial relations referral of powers to the Commonwealth came into operation, which had the effect of the Fair Work Ombudsman (FWO) assuming, under the Fair Work Act 2009, many of the functions previously undertaken under the Tasmanian Industrial Relations Act 1984, but does not include long service leave issues and applies only to private sector employees. In addition, the Committee welcomes the information provided by the Government that the Labour Inspection (Agriculture) Convention, 1969 (No. 129), will be tabled in the Australian Parliament by the end of 2012 with a view to ratification by mid-2013. The Committee asks the Government to continue to provide information on any relevant legislative developments in the country.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Government indicates that there has been no change since its previous report with respect to the status and conditions of service for Fair Work Inspectors. The Committee notes that all Fair Work Inspectors employed by the Fair Work Ombudsman are presently employed under the Office of the Fair Work Ombudsman Enterprise Agreement 2011–2014. In addition, the Committee recalls that section 700 of the Fair Work Act 2009 limits the appointment of Fair Work Inspectors to a period that must not exceed four years, although a Fair Work Inspector is eligible for reappointment. The Committee asks the Government to provide further information on the reasons for limiting the period of appointment of Fair Work Inspectors; to indicate the grounds for not reappointing a Fair Work Inspector at the end of their instrument of appointment; and to specify whether inspectors have access to any impartial or independent appeal mechanism to contest any decision not to reappoint. In addition, the Committee asks the Government to provide information on the application of section 700 of the Fair Work Act in practice.

Article 12(b). Enter by day any premises. The Committee notes the response provided by the Government, and in particular notes that section 163 of the model WHS Act, adopted by the Commonwealth, New South Wales, Queensland, the Northern Territory and the Australian Capital Territory and Tasmania, allows an inspector to enter, at any time, a place that is, or that the inspector reasonably suspects is, a workplace. Section 163(4) allows an inspector to enter any place if the entry is authorized by a search warrant and sections 167–169 specify the requirements for obtaining such a search warrant. The Government indicates that no applications for a search warrant have been made since the introduction of this new legislation in New South Wales. The Committee asks the Government to provide further information on the number of search warrants that have been issued under sections 167–169 of the WHS Act, in the jurisdictions that have adopted the model legislation; and, where such search warrants have been issued, to indicate the purpose for which they were issued, and the time frame involved in applying and executing the warrant by the inspector.

Articles 20 and 21. Publication and content of an annual report on the functioning of labour inspection services. Western Australia. The Committee notes that the Department of Commerce Annual Report 2010–2011 deals with the information required under Article 21 of the Convention, including the total number of businesses liable to inspection by workplace inspectors and the estimated number of workers employed by these businesses. Commonwealth. The Committee notes that the FWO does not generally include statistics in its annual report with respect to the number of workplaces liable to inspection and the corresponding number of workers employed within the national workplace relations system, as required by Article 21(c). The Government indicates however, that this information is collated and reported on by the Australian Bureau of Statistics (ABS). The most recent report published by the ABS indicates that, as at May 2010, 87 per cent of Australian employees fell within the national workplace relations system. Victoria. The Committee notes that the annual report by WorkSafe does not specifically report on the number of workplaces liable to inspection in Victoria or the number of workers employed, but that WorkSafe will consider whether these specific statistics could be included in future annual reports. South Australia. The Committee welcomes the ongoing efforts taken to improve information provided in labour inspection annual reports, and in particular the addition in the 2010–11 annual report of data relating to workplaces liable to inspection and the number of workers therein. The Committee recalls that annual reports on the work of the labour inspection services are an invaluable source of practical information and data not only for other public bodies and the ILO supervisory bodies, but also the employers’ or workers’ organizations who may make, on this basis, comments on ways to improve the functioning of the labour inspection system. In this regard, the Committee asks the Government to keep the Office informed of measures taken to ensure that the annual report published by the central inspection authority deals with the statistics of workplaces liable to inspection and the number of workers employed therein.

Part IV of the report form. Application in practice. The Committee notes the information provided by the Government in relation to assisted voluntary resolution (AVR), as well as statistics concerning the compliance and education activities of the FWO during the 2010–11 and 2011–12 financial years. The Government indicates that the top two types of complaints lodged with the FWO between 2010–12 concerned matters relating to wages and conditions and annual leave. Wages and conditions were also the major type of proceedings for which penalties were imposed by the courts over this period. The Committee also notes that the FWO continues to run proactive and targeted education and audit campaigns in addition to community engagement programmes. The Committee asks the Government to continue to provide information on the practical application of the Convention in the country, and in particular to indicate the measures taken by the FWO to address the compliance issues concerning wages and conditions and annual leave.