Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations made in 2015 by the Australian Council of Trade Unions (ACTU), and the Government’s reply thereto. The Committee also notes the observations made by the ACTU received on 10 October 2018. The Committee requests the Government to provide its comments to the 2018 observations.

Article 3(1) of the Convention. Functions of the system of labour inspection. The Committee notes the Government’s reply in response to the concerns raised by the ACTU in 2012, concerning the measures taken by the Fair Work Ombudsman (FWO) to address the increase in the use of “sham contracting” and precarious work.

Labour inspection in the area of wages, working conditions and annual leave. The Committee notes the observations made by the ACTU received in 2015 concerning non-compliance issues found by the FWO with regard to the payment of wages (including underpayment and the failure to maintain time and wage records). It also notes the Government’s indication, in response to the Committee’s request, that the top two types of complaints lodged with the FWO between 2013 and 2014 continued to concern issues in relation to wages, working conditions and annual leave. It further notes the Government’s reference to the measures taken by the FWO to address these non-compliance issues (education and dispute resolution as a priority, and the issuance of compliance notices, the initiation of court procedures, and the total amount recovered).

Article 3(2). Additional functions of labour inspectors. Investigation into workers and trade unions. FWO, Fair Work Building Industry Inspectorate, and Australian Building and Construction Commission (ABCC). The Committee notes that the ACTU reiterates its concerns over the extent to which the FWO expends its time, effort and resources investigating whether workers and trade unions have breached workplace laws, and most notably whether they have taken industrial action contrary to the provisions regulating this activity in the Fair Work Act 2009. The ACTU indicates that these do not concern primary functions of labour inspectors. It notes the Government’s reply indicating that it is the duty of the FWO inspectors to ensure the application of the Fair Work Act, both with regard to employers’ and workers’ obligations.

The Committee also notes that the ACTU, in its 2015 observations, refers to the powers of the Fair Work Building Industry Inspectorate to compel workers to attend and face interrogation, noting that up to 35 per cent of annual investigations related to rules governing unions’ rights of entry to workplaces or allegations of unprotected industrial action, and states that the Inspectorate’s continued emphasis on the prosecution of workers is incompatible with the Convention. The Committee notes the Government’s indication in this respect that the Inspectorate used its compulsory examination powers as a last resort. Moreover, the Government indicates that in December 2016, the ABCC replaced the Fair Work Building Industry Inspectorate and became responsible for investigating and ensuring compliance with workplace relations laws in the building and construction industry. In this regard, the Committee notes that pursuant to section 29(2) of the Building and Construction Industry (Improving Productivity) Act 2016, the Office of the Fair Work Building Industry Inspectorate is renamed the ABCC and responsible for applying that Act. Pursuant to section 16, this includes investigating suspected contraventions of the Act, which the Committee observes includes unlawful industrial action (Chapter 5 of the Act). The Committee further notes that pursuant to section 61B(1) and (2) of the Act, ABCC inspectors have the power to issue notices requiring a person to provide information, produce documents and attend before the ABCC Commissioner to answer questions. Pursuant to section 62 of the Act, a person who fails to give information or produce a document in accordance with the notice, or to attend to answer questions, or to answer questions relevant to the investigation while attending an examination is subject to a penalty of imprisonment for six months.

The Committee recalls that it expressed reservations in its 2006 General Survey, Labour inspection, paragraph 80, regarding excessive use of close supervision of the activities of trade unions and employers’ organizations to ensure that they do not exceed the limits laid down by legal provisions, their own internal regulations and their by-laws to the extent that it takes the form of acts of interference in these organizations legitimate activities. The Committee requests the Government to provide information on the proportion of the FWO’s time and resources spent investigating workers and their organizations, as well as the proportion of violations found and penalties imposed for workers and their organizations, and to provide the same information in relation to the activities of the ABCC in the building and construction industry.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes the Government’s detailed information, in reply to its previous request on the collaboration between officials of the labour inspectorate and employers and workers or their organizations. Concerning the concerns raised by the ACTU in its 2012 observations with regard to the restrictions in the Fair Work Act in relation to the right of access by unions to workplaces, which according to that trade union significantly limits the capacity of unions to perform their monitoring and compliance activities, the Committee refers the Government to its direct request on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 6. Status and conditions of service of labour inspectors. The Committee previously noted that section 700 of the Fair Work Act limits the appointment of Fair Work Inspectors to a period not exceeding four years, although a Fair Work Inspector is eligible for reappointment. In response to the Committee’s request, the Government indicates that Fair Work Inspectors may be reappointed if they continue to fulfil the requirements of the Fair Work Act, and that inspectors have access to an appeal mechanism against a decision not to reappoint them through an independent and external review.

The Committee once again 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 requests the Government to provide information on the measures taken to ensure that Fair Work Inspectors are guaranteed stability of employment, in conformity with Article 6. It once again requests the Government to provide information on the reasons for limiting the period of appointment of Fair Work Inspectors, and indicate the possible grounds for not reappointing a Fair Work Inspector at the end of his or her appointment. It further requests the Government to provide information on the number of inspectors that were not reappointed in the years 2015–18, and the grounds for any such decisions.

Article 12(b). Entry by day of premises. The Committee notes the Government’s information in reply to the Committee’s request concerning the number of search warrants that have been issued under sections 167–169 of the Model Work Health and Safety (WHS) Act, in the jurisdictions that have adopted legislation based on the model WHS , in places that were not workplaces.

Article 18. Adequate penalties. The Committee notes that the ACTU reiterates its previous observations concerning high levels of non-compliance of workplace instruments by employers, especially in smaller enterprises, and its claims that increased fines are necessary for underpayment or non-compliance to ensure a deterrent effect. The Committee notes the information provided in the Government’s report concerning the increased fines in the Fair Work Act, as amended in 2017. The Committee also notes that the Government provides statistical information on the number and amount of penalties imposed, indicating that in 2016–17, 55 civil penalty litigations were initiated by the FWO, and that more than 4.8 million Australian dollars in penalties were ordered by the courts during that period. The Committee requests the Government to continue to provide information on the number and amount of penalties imposed, including information on instances under the 2017 Act penalties imposed for “serious contraventions” of the Fair Work Act and for record-keeping and payslip contraventions of the Fair Work Act.

Articles 20 and 21. Publication and content of an annual report on the functioning of labour inspection services. The Committee previously noted the absence of statistical data in some jurisdictions on the number of workplaces liable to inspection and the number of workers employed therein. In this respect, the Committee recalled 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.

The Committee notes the Government’s reiterated indications that in the Commonwealth, information on the number of workplaces liable to inspection and the number of workers employed therein is not contained in the annual report of the FWO, but that relevant information is published by the Australian Bureau of Statistics. The Committee is also unable to locate information on the number of workplaces liable to inspection and the workers employed therein in the annual reports containing statistics on labour inspection activities in Victoria, Queensland, Tasmania, Australian Capital Territory, and Northern Territory. The Committee welcomes however the information in the annual report of New South Wales, and particularly the information in this respect in the annual report of the Department of Commerce for Western Australia. The Committee requests the Government to continue to provide information on measures taken to ensure that the annual reports published by the central inspection authorities contain statistics of workplaces liable to inspection and the number of workers employed therein, as well as information on the other items as required under Article 21 of the Convention.