Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

Scope of collective bargaining. The Committee had previously noted that section 353 of the Fair Work (FW) Act, 2009 prohibited an industrial association, or an officer, or member of an industrial association, not only 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, but also from including a provision allowing for bargaining agent fees in a collective agreement. According to the Government, the retention of the prohibition on clauses requiring the payment of bargaining service fees in the FW Act reflected a decision of the High Court of Australia which ruled that such fees did not pertain to the employment relationship. While taking due note of this explanation, the Committee had requested the Government to provide information on the developments in the review of this section with the social partners.

The Committee had also noted that while section 172(1) of the FW Act provided that an agreement may be made on matters pertaining to the employment relationship, deductions from wages, and the operation of the agreement, the exact scope of the term “matters pertaining to the employment relationship” was elusive and sections 186(4) and 194, as well as sections 353 and 470–475, exclude from collective bargaining as “unlawful terms” any terms relating to the extension of unfair dismissal benefits to workers not yet employed for the statutory period, the provision of strike pay, the payment of bargaining fees to a trade union, and the creation of a union’s right to entry for compliance purposes more extensive than under the provisions of the FW Act. It had therefore requested the Government to review the abovementioned sections in consultation with the social partners so as to broaden the scope of collective bargaining.

The Committee notes the Government’s indication that the review panel considered that the prohibition on clauses requiring the payment of bargaining services fees was not a general matter of concern. Furthermore, the panel observed that current rules about matters that can be included in an enterprise agreement “accord a fair balance between the prerogative of management to manage and the reasonable desire of employees to jointly govern their terms and conditions of employment” and that any further refinement of the matters should be left to the Fair Work Commission (FWC).

The Committee notes that the Australian Council of Trade Unions (ACTU) in its communication dated 30 August 2013 regrets that the Government has not reviewed the relevant sections of the FW Act in consultation with the social partners, with a view to broadening the scope of collective bargaining.

The Committee recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. It further recalls that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties. The Committee once again requests the Government to review the abovementioned sections in consultation with the social partners so as to broaden the scope of collective bargaining and asks the Government to provide information on the measures taken or envisaged in this regard.

State jurisdictions. New South Wales (NSW). The Committee had previously requested the Government to provide its observations on the ACTU’s allegation that the adoption of the Industrial Relations (IR) Amendment (Public Sector Conditions of Employment) Act 2011, requiring the NSW Industrial Relations Commission to give effect to the Government’s public sector policies when making or varying awards or orders relating to the remuneration or other conditions of employment of public sector employees, removed the right of the public sector unions to bargain effectively for wages and conditions of employment for its members across the State.

The Committee notes the Government’s indication that the validity of the above legislation and the accompanying Industrial Relations (Public Sector Employment) Regulation 2011 was tested in the High Court in December 2012. The Court found both the legislation and regulation to be valid, and in particular, that their application by the NSWIRC and the NSW Industrial Court does not undermine the institutional integrity of these bodies. The Government points out that the NSW jurisdiction is not a bargaining jurisdiction in the same sense that the federal jurisdiction is. The outcomes of negotiations between parties are usually codified in terms of variations to existing accords, or by making new awards, where appropriate. The legislation and regulation merely provide for a framework within which outcomes must be negotiated and in this sense, they are no different to the rest of the legislative framework regulating industrial activities in the NSW public sector.

The Committee notes that in its 2013 communication the ACTU, referring to the regulation, indicates that this instrument sets out aspects of the Government’s policy that are to be given effect by the NSWIRC pursuant to the IR Act. According to the ACTU, the key features of the regulations include the following: (i) increases in remuneration or other conditions of employment are limited to 2.5 per cent per annum (increases above this cap are only permitted where “sufficient employee-related cost savings have been achieved to fully offset the increased employee-related cost”); and (ii) policies “regarding the management of excess public sector employees” are not permitted to be “incorporated into industrial agreements”. The Committee requests the Government to provide information on the measures taken to review restrictions on certain collective bargaining subjects in the legislation, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State.

Western Australia. The Committee notes the observations provided by the Government in its report on the allegations previously submitted by the ACTU and ITUC concerning the recommendations made by the Western Australian Government to review state industrial relations so as to give employers the power to insist their employees sign individual contracts and to remove unfair dismissal protections for employees in small businesses. The Committee notes the Government’s indication that on 14 November 2012, the draft Labour Relations Legislation Amendment and Repeal Bill 2012 was tabled in the Western Australian Parliament. The draft proposes to amend the Industrial Relations Act 1979 so as to broadly harmonise its unfair dismissal provisions with those of the Commonwealth FW Act (for example, employees will only be able to claim unfair dismissal if they have worked for a minimum period of 12 months for a small business employers, or six months for any other employer). According to the Government, the draft Bill does not contain changes to existing provisions concerning Employers–Employee Agreement (EEAs): it remains unlawful for an employer to make the signing of an EEA a condition of employment. While noting the Government’s explanation that the Bill was tabled as a Green Bill, meaning that it is for public comments and does not necessarily represent the Government’s settled position, the Committee recalls that the Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination throughout their employment, including at the hiring stage. The Committee requests the Government to ensure that workers are protected against acts of anti-union discrimination in accordance with this principle and to report on any measures taken to modify the above Bill.

Queensland. The Committee notes the ACTU’s allegation that measures introduced in Queensland through the Public Service and Other Legislation Amendment Act 2012 amending the Industrial Relations Act 1999 contravene Article 4 of the Convention. The Committee requests the Government to provide its observations thereon.

Building industry. The Committee notes the comments provided by the ACTU regarding procurement guidelines applicable to the building and construction industries adopted in New South Wales, Queensland and Victoria. The Committee notes, in particular, that according to the ACTU, in May 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) successfully challenged the Victorian Guidelines on the basis that they were inconsistent with freedom of association protection in the federal FW Act. The Committee notes with interest that the court decisions have subsequently gave rise to the revision of the Guidelines in the three States. The Committee notes the ACTU’s allegation that the Victorian Government has expressed its intention to appeal the court decisions. It requests the Government to provide information on any further developments in this regard.