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

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) and the International Trade Union Confederation (ITUC) contained in communications dated 30 August 2013.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In its previous comments, the Committee referred to the need to ensure that workers were adequately protected against anti-union discrimination, especially against dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (that is, 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). Pursuant to sections 347 and 772 of the Fair Work (FW) Act, 2009, and to information provided by the Government, the Committee understood that protection against anti-union discrimination, including against dismissals, covered pattern bargaining to the extent that the parties were genuinely trying to reach an agreement. The Committee requested the Government to provide information on any relevant decisions emanating from Fair Work Australia (FWA) and the steps taken to ensure protection in relation to action aimed at achieving multiple business agreements. The Committee notes the Government’s indication that the provisions of the FW Act relating to pattern bargaining have been before the review panel, which, having considered various submissions from stakeholders, concluded that the current provisions were appropriate and did not recommend any change. The Government also indicates that there have been no decisions given by courts or other tribunals that have restricted the ability of unions and employees to take industrial action on the grounds that they were engaged in pattern bargaining.

Article 4. Promotion of collective bargaining. The Committee had previously noted that individual statutory agreements were not part of the new system established under the FW Act but that, in line with the Government’s prior policy commitments, existing Australian Workplace Agreements (AWAs) would continue to apply until they are terminated. The Committee requested the Government to provide information on the application and impact in practice of section 172 of the FW Act regulating the making of enterprise agreements between employers and relevant employee organizations, as well as on the current situation with regard to AWAs and Individual Transitional Employment Agreements (ITEAs), including statistical data on the number of AWAs and ITEAs terminated since the entry into force of the FW Act, the number of remaining AWAs and ITEAS applicable and their expected termination dates.

The Committee notes the Government’s indication that under section 172 of the FW Act, when seeking to make an enterprise agreement other than a greenfields agreement, bargaining representatives must comply with the good faith bargaining requirements of the Act. Employers seeking to deal directly with employees in relations to a proposed enterprise agreement are required to recognise and bargain with relevant employee organizations including by providing them with all relevant information about the proposed enterprise agreement. The Committee notes the statistical data provided by the Government demonstrating that single-enterprise agreements and multi-enterprise agreements that are not greenfields agreements represent the majority of agreements made under the FW Act. With regard to the number of the remaining AWAs and ITEAs, the Government indicates that while there is no current available data on the subject, such agreements have now passed their nominal expiry dates and are able to be terminated on application by either the employer or the employee to the Fair Work Commission (FWC), which replaced the FWA.

As regards the termination of protected industrial action under sections 423, 424 or 431 of the FW Act, the Committee had previously noted that bargaining representatives had a negotiating period of 21 days (extendable to 42 days by FWA) in which to resolve the matters at issue and that, if the parties were unable to reach an agreement, the FWA must make a binding industrial action related workplace determination which has the effect of an enterprise agreement. It had also noted that under section 240 of the Act, a bargaining representative could request the FWA to deal with a dispute about a proposed enterprise agreement if the bargaining representatives were unable to resolve the dispute and that the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement had agreed to the making of the application if the proposed agreement was a single-enterprise agreement or a multi-enterprise agreement in relation to which a low-paid authorization was in operation. The Committee recalled that arbitration imposed by the authorities at the request of one party was generally contrary to the principle of voluntary negotiation of collective agreements and requested the Government to clarify the role of FWA in case of continuing disagreement between the parties and whether the parties remained able to resume negotiations at any point.

The Committee notes that the Government explains that the termination of protected industrial action under sections 423, 424 or 431 of the FW Act commences a formal workplace determination process overseen by the FWC. The parties have a final opportunity to resolve all outstanding matters within 21 days (which can be extended to 42 days by agreement). If this occurs, the parties apply to the FWC for approval of an enterprise agreement in the agreed terms. If there is no agreement, FWC must proceed to make a workplace determination which must include any terms that were agreed between the parties after the 21 (or 42) day negotiating period expired. The determination must deal with any matters still at issue at that time. The FWC made seven workplace determinations under the FW Act. The Government refers to two such decisions: in the first, the FWC stated its intention to exercise caution in accepting disputed claims that would alter longstanding and agreed arrangements, finding these were properly a matter for future bargaining; in the second, the FWA gave effect to the agreement reached by the parties after the end of the post-industrial action negotiating period (but before a workplace determination was made).

Building industry. The Committee recalls that it had previously requested the Government to: (i) revise section 64 of the Building and Construction Industry Improvement (BCII) Act to ensure that the determination of the bargaining level was left to the discretion of the parties and was not imposed by law or decision of the administrative authority; and (ii) promote collective bargaining, especially by ensuring that there were no financial penalties or incentives linked to undue restrictions on collective bargaining. In this respect, it had noted the Government’s indication that it had introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009 in order to amend the BCII Act so as to, in particular, repeal section 64 of the BCII Act with the effect that the level of bargaining would be determined in accordance with the FW Act. The Committee had therefore requested the Government to provide information on the developments in this respect as well as on the progress made in the development of the guide to good faith collective bargaining in the building and construction industry.

The Committee notes with interest the Government’s indication that the abovementioned Bill, which repealed section 64 of the BCII Act in its entirety, was passed by Parliament on 20 March 2012, and that the Fair Work (Building Industry) Act 2012 and the Fair Work Building Industry Inspectorate, operating as Fair Work Building and Construction (FWBC), commenced operation on 1 June 2012. Finally, the Government indicates that the FWBC is expected to release further guidance material later in 2013. The Committee requests the Government to provide information on all progress made in this respect. The Committee notes with interest the information submitted by the ACTU regarding a National Code made pursuant to the FW (Building Industry) Act 2012, and in particular, that the terms of the Code are subject to parliamentary scrutiny; that it is expressed to be a comprehensive statement of the workplace practices required of building industry participants; and that State Government Guidelines cannot include additional requirements relating to those matters.

The Committee notes the observations provided by the Government in its report on the allegations previously submitted by the ACTU and ITUC concerning the intention of the Government of South Australia to unilaterally cut entitlements of public sector workers, which had been agreed upon through collective agreements. It notes with interest that according to the Government, in South Australia, the matters have been resolved through negotiations between the South Australian Government and the Public Service Association (Community and Public Sector Union, SA Branch).

The Committee raises other matters in a request addressed directly to the Government.