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Comments adopted by the CEACR: Australia

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Articles 2, 3 and 5 of the Convention. Right of workers to form and join organizations of their own choosing without previous authorization and of these organizations to elect their officers, freely organize their activities and formulate their programmes without undue interference. In its previous comment, the Committee noted the deep and serious concern expressed by the ITUC regarding the attempt by the Government to pass the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 into law, which it considered was contrary to the Convention. Having noted with concern the numerous proposals raised in the Bill which would broaden the possibilities of intervention in the internal functioning of workers’ organizations, the Committee had called upon the Government to review the proposals in the Bill with the representative workers’ and employers’ organizations concerned so as to ensure that any measures adopted were in full conformity with the Convention and to keep it informed in this regard. The Committee notes from the Government’s report that, on 26 May 2020, the Prime Minister announced that the Government would not pursue a further vote in the Parliament on the Ensuring Integrity Bill. The Prime Minister indicated that this decision was made in good faith in order to maximise the opportunity for genuine negotiation, compromise and cooperation as part of an industrial relations reform process designed to create jobs and chart a path back to mutually beneficial prosperity following the COVID-19 pandemic. The Committee requests the Government to provide information in its future reports on any legislative developments or proposals concerning the industrial relations reform process.
Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take all appropriate measures, in consultation with the social partners, to review: (i) the provisions of the Competition and Consumer Act prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act (FWA) relating to suspension or termination of protected industrial action in specific circumstances; (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and (iv) boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade; and to provide detailed information on the application of these provisions in practice with a view to bringing them into full conformity with the Convention.
The Committee notes the Government’s reiteration that the 2015 reports of all three independent bodies, which had examined the operation of secondary boycott provisions under the Competition and Consumer Act, found that a strong case remained for retaining their prohibition. As regards the Crimes Act, the Committee notes the Government’s indication that there have been no referrals for prosecution of an offence contrary to section 30J since the 1980s and that there has only been one prosecution of an offence contrary to section 30K in 1988. The Government therefore does not consider that these offences are being used in a manner contrary to the right of workers’ organizations and does not consider that a review of these provisions is necessary at this time.
While duly noting the absence of prosecution under the Crimes Act in recent times, the Committee, observing the chilling impact that these provisions may nevertheless have on the right of workers’ organizations to organize their activities and carry out their programmes in full freedom, once again requests the Government, to continue to keep the above-mentioned provisions under review, in consultation with the social partners, so as to ensure that they are not applied in a manner contrary to this right. It further requests the Government to continue providing detailed information on the application of these provisions in practice.
In its 2019 report, the Government indicated that it considers the above provisions dealing with industrial action to be necessary, reasonable and proportionate to support the objects of the FWA, which is to provide a balanced framework for cooperative and productive industrial relations that promotes national economic prosperity and social inclusion for all Australians. While protected industrial action is legitimate during bargaining for a proposed enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease, at least temporarily. The Government adds that a variety of factors must be taken into account when considering an application under section 423 of the FWA and that such applications are rare, with two applications lodged in 2016–17 and one application lodged in 2017–18. As regards section 424, there have been relatively few applications with only nine in 2017–18, in contrast to 579 applications for a protected action ballot order during the same period. Finally, there were only two applications made under section 426 in 2017–18.
The Government indicates that no decisions were made under sections 423 and 426, while it provides some examples of decisions taken by the FWC under section 424 either to suspend or terminate protected industrial action or to refuse to issue such an order. Cases concerning the termination or suspension of industrial action included: (a) terminated action in an oil refinery that would cause significant damage to the Western Australian economy estimated at nearly 90 million Australian dollars per day as well as to the Australian economy as a whole; (b) suspension for two months of industrial action by employees of court security and custodial services where the action threatened to endanger the personal safety, health and welfare of part of the population; (c) the suspension in the form of an indefinite ban on a work stoppage in railway transport which threatened to endanger the welfare of a part of the population and threated to cause significant damage to the Sydney economy; and (d) termination of industrial action affecting the Australian Border Force. An application requesting termination of industrial action in independent schools was however refused noting that, while the action was causing “inconvenience”, it was “not as yet causing significant harm”.
The Committee appreciates the information transmitted by the Government concerning the practical application of these provisions in the FWA. The Committee notes that some of the services concerned in the cases where industrial action was either suspended or terminated (such as border control, court security and custodial services) may be understood to be essential services in the strict sense of the term or public servants exercising activity in the name of the State where strike action may be restricted. The Committee recalls however that it does not consider oil refinery or railway transport to constitute services in which this right may be fully restricted, although the Government may consider the establishment of negotiated minimum services.
In the light of the above comments, the Committee requests the Government to keep it informed of any steps taken within the framework of the overall industrial relations reform process to review these provisions of the FWA.
The Committee is raising other matters in a request addressed directly to the Government.

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Protected action ballots. In its previous comments, the Committee noted the observations of the Australian Council of Trade Unions (ACTU) that the amendment to section 437 of the Fair Work Act (FWA) overturned the right to take industrial action prior to the commencement of bargaining. The ACTU further indicated that the obligation to obtain a majority support determination (pursuant to section 236 of the FWA, a determination by the Fair Work Commission that a majority of employees that will be covered by the agreement want to bargain with the employer) where the employer refuses to bargain, prior to seeking a protected industrial action ballot order, was a significant restriction on the right to strike, constituting a prohibition on strikes related to recognition disputes.
The Committee notes the Government’s reiteration that this amendment was considered necessary, reasonable and proportionate to achieving the legitimate objectives of: promoting the integrity of the collective bargaining framework, including by giving primacy to negotiations voluntarily entered into and conducted in good faith; balancing the right to voluntary collective bargaining with the requirement to bargain where a majority of employees wish to do so; and providing greater certainty as to the circumstances in which protected industrial action can be taken. The Government adds that applications for majority support determinations pursuant to section 236 have not significantly changed since the amendment came into force and provides statistical information in this regard. The Government also provides some examples of decisions of the Fair Work Commission in relation to notification time.
The Committee once again requests the Government to review section 437(2A) of the FWA in consultation with the social partners within the framework of the industrial relations reform process to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom. It further requests the Government to continue supplying information on the application of this provision in practice.
Fair Work (Registered Organisations) Amendment Bill. In its previous comments, the Committee noted the observations of the ACTU that the Fair Work (Registered Organisations) Amendment Bill would further regulate the activities of unions and increase the penalties for officials of registered organizations, which includes unions, including the introduction of criminal offences related to financial management. The Committee notes the Government’s indication that the Fair Work (Registered Organisations) Amendment Act 2016 amended the FWA and the Fair Work (Registered Organisations) Act 2009 to ensure better governance and financial accountability of registered organizations (unions and employer groups). Major changes included: the establishment of the Registered Organisations Commission on 1 May 2017 to regulate registered organizations with enhanced investigation and information gathering powers; new accounting and disclosure requirements; new criminal offences for serious breaches of officers’ duties; and increased civil penalties, including penalties for breaches of officers’ duties. The Government states that the reforms were introduced following high profile instances of financial misconduct within registered organisations and were supported by the findings and recommendations of the Royal Commission into Trade Union Governance and Corruption. The Registered Organizations Commissioner has concluded ten Federation Court proceedings with one pending proceeding. The misconduct alleged in these cases concerned: the failure by an organization to lodge prescribed information to enable the conduct of elections for over a decade; artificial inflation of membership numbers over a five year period; accepting payments for the organization in exchange for failing to seek better terms and conditions for certain members; failure to lodge financial returns over a number of years and failing to keep proper financial records.
The Committee requests the Government to continue to provide detailed information on the activities of the Commission, investigations undertaken and any penalties or fines issued.
Building industry. In its previous comments, the Committee noted the observations of the ACTU concerning the Building and Construction Industry (Improving Productivity) (BCIIP) Act and the Building and Construction Industry (Consequential and Transitional Provisions) Act. As regards restrictions on picketing in section 47 of the BCIIP Act, the Committee recalled that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, while it is also necessary to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises, and that penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed. The Committee notes the Government’s indication that the prohibition on unlawful picketing is necessary in the interests of public safety, public order, and the protection of the rights and freedoms of others and does not of itself affect the engaging in or taking of protected industrial action under the FWA. The BCIIP Act allows the Australian Building and Construction Commissioner (ABCC) to make an application to a court against parties who engage in unlawful picketing so as to act as a disincentive and to change the culture of the industry for the better, thereby protecting the rights and safety of all workers and employers. The Government indicates that as of 8 September 2020 the Federal Court had imposed penalties ranging from 96,000 to 255,000 AUD for the breach of unlawful picketing provision in three cases. The Committee also observes that the Committee on Freedom of Association has reviewed this matter within the framework of Case No. 3278 and requested it to ensure that the prohibition of unlawful picketing is applied in a manner consistent with the principles of freedom of association and the effective recognition of the right to collective bargaining, and to provide detailed information on the manner in which section 47 is applied in practice across the next three years including copies of any relevant court decisions that might touch on the interpretation of this section during that period. Recalling that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, the Committee requests the Government to review the application of this section, in consultation with the social partners, with a view to ensuring that its provisions are in conformity with the above-mentioned considerations and to continue to provide information on its application in practice.
In its previous comments, the Committee requested the Government to provide information on measures taken to introduce sufficient safeguards to ensure that the functioning of the ABCC did not lead to interference in the internal affairs of trade unions and to ensure that penalties are proportional to the gravity of the offence. The Committee notes the Government’s indication that it has provided detailed comments to the Committee on Freedom of Association within the framework of Case No. 3278 and that important safeguards have been put in place to ensure that examination notices are used appropriately and to protect persons required to give information under an examination notice. The Government indicates that only 3 union officials have been summoned for examination since 2 December 2016 and there have been no criminal prosecutions to date of trade union representatives or any witness for failure to comply with the examination powers. The Review of the BCIIP Act released in October 2018 noted that the current arrangements for exercising oversight of the compulsory examination powers are generally appropriate. Observing that the Committee on Freedom of Association requested the Government to keep it informed of any use of these penal sanctions against trade unions over a period of three years, the Committee requests the Government to continue to provide information on any measures taken or envisaged to further safeguard the rights of workers’ organizations in exercising their legitimate activities and to ensure that any penalties inflicted for failure to provide information requested are proportional to the gravity of the offence.
In its previous comments, the Committee requested the Government to review the application of provisions in the BCIIP Act which defined unlawful industrial action as including action that is engaged in concert with one or more persons (or the organizers of the action include persons) that are not “protected persons”. Protected persons are defined as an employee organization that is a bargaining representative for the proposed enterprise agreement; a member of such an organization who is employed by the employer and who will be covered by the enterprise agreement; an officer of such an organization; and an employee who is a bargaining representative for the proposed enterprise agreement. The Committee notes the Government’s indication in its 2019 report that these provisions are reasonable, necessary and proportionate to legitimate aims, including that sympathy action (i.e. by persons not directly engaged in bargaining for an enterprise agreement) is not used as a means to place unreasonable pressure on employers in the building industry during enterprise bargaining. The Government added that these adjustments were based on recommendations by the Cole Royal Commission to address undesirable practices that were more common in the building industry than in other industries. The Committee further notes the indication in the Government’s latest report that it had released a discussion paper on 18 February 2020 on the Code for the Tendering and Performance of Building Work 2016, welcoming views from stakeholders, including social partners, on its operation and potential areas for strengthening to ensure it remains fit for purpose. As a result of COVID-19, the consultation process has been paused. Recalling once again that workers’ organizations should be able to call for industrial action in support of multi-employer contracts, the Committee requests the Government to provide information on any further measures taken to review the application of these provisions with the social partners, and to provide information on any developments in this regard including the consultation process paused in early 2020 as a result of COVID-19.
State jurisdictions. New South Wales (NSW). The Committee recalls that its previous comments concerned the need to amend section 226(c) of the Industrial Relations Act (IRA), 1996, which provides that the registration of an organization may be cancelled where it or its members engage in industrial action having a major and substantially adverse effect on the provision of any public service. The Committee notes from the Government’s latest report that there has still not been any action taken to cancel the registration of a registered organization on the grounds set out in section 226(c) and that the 1996 IRA has no effect beyond the NSW public sector and local government. It further observes the Government’s indication that workers in state-owned corporations delivering essential services such as electricity, water, transport, etc., lie outside the NSW industrial relations jurisdiction and are therefore not covered under the IRA but rather under the provisions of the FWA 2009. Moreover, the Government stresses that this section has not been used to cancel the registration of any registered organization. The Committee requests the Government to provide information should this provision be used in the future to cancel the registration of a registered organization.
Queensland. The Committee previously noted that the Industrial Relations Act (IRA), 1999 had been amended to provide the Minister (Attorney-General) with the power to terminate protected industrial action in relation to a proposed agreement, if the Minister is satisfied that the action is being engaged in, or is threatened, intending or probable, and that the action is threatening or would threaten to cause or has caused, significant damage to the economy, community or local community, or part of the economy (section 181B(1)(a) and (b)(ii)). While noting with interest that, following the review of the IRA, section 241 of the 2016 Act relating to Industrial Relations in Queensland now grants this authority to the Queensland Industrial Relations Commission (QIRC) (established as a court of record), the Committee observes that the new Act retains the provision for suspension or termination of industrial action which threatens to cause significant damage to the State’s economy or part of it. The Committee further notes the Government’s indication that the QIRCs power to suspend threatened industrial action under section 240 has not been used to date, while the power under section 241 has been used five times since the section’s commencement (four of the five concerning corrective services officers and only two of these applications for suspension being granted). While it would appear from the information made available to it that the suspension orders related to industrial action under section 241 concerned essential services in the strict sense of the term, the Committee recalls that economic damage, as also allowed for in sections 240 and 241(1)(b), does not in itself render a service essential. The Committee requests the Government to continue to provide information on any instances where the commission may have suspended or terminated industrial action under this provision.
Western Australia. The Committee had previously raised the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid, and requested the Government to indicate any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. Observing from the Government’s report that there has been no change in this respect, the Committee once again requests it to take action so that the state government will review this provision with the social partners in order to ensure that provisions relating to trade union membership and subscriptions are removed from the law and regulated by the internal rules of the organizations concerned.

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Building industry. With reference to its previous comment, the Committee recalls that section 11 of the Code for the Tendering and Performance of Building Work 2016 (the Code), accompanying the Building and Construction Industry (Improving Productivity) (BCIIP) Act, prohibits certain types of clauses in collective agreements, including: the reference to the type of contractual arrangement offered by the employer (such as a limitation of casual or daily hire employees) or requiring consultation in relation to the engagement of subcontractors; the terms and conditions of employment for subcontractors or limiting employer decisions about redundancy, demobilization or redeployment of employees based on operational requirements; and providing for the establishment or maintenance of an area which is intended to be designated for use by members, officers, delegates or other representatives of a building association.
The Committee notes that the Government specifies with respect to some of these exclusions that the Code does not ban consultation with unions, but only prohibits the inclusion of clauses requiring consultation on specified matters. The Government considers that the measures in section 11 of the Code are necessary to enable effective and productive business management, given the circumstances within the building and construction industry, such as evidence that unions use the clauses in question to apply undue pressure for employers to give preference to union subcontractors and workers. Clauses not permitted by the Code can still be included in agreements with builders who do not wish to undertake taxpayer-funded work and thus do not need to comply with the Code. However, the inclusion of these restrictions in the Code enables the Government through its purchasing power to use one of its strongest levers to change the culture of disregard for the law that has pervaded parts of the building and construction industry.
The Committee notes the Government’s reference to the examination of this legislation by the Committee on Freedom of Association (CFA) within the framework of Case No. 3278 (see 388th Report, March 2019, paragraphs 109–165). The Committee, like the CFA, once again recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and underlines that, in light of the increasing impact on conditions of employment of the diversification of contractual work arrangements, parties should not be penalized for deciding to include such issues in their negotiations. The Committee notes the latest information provided by the Government that it had released a discussion on the Code in February 2020, welcoming the views of the stakeholders, including the social partners, on its operation and potential areas where it could be strengthened to ensure it remains fit for purpose. As a result of COVID-19, however, the consultation process has been paused. The Committee requests the Government to inform of the review process of the Code once it has been recommenced and to indicate the progress made within this framework, in particular to review section 11, in consultation with the social partners, with a view to removing restrictions on collective bargaining matters.
Greenfields agreements. The Committee recalls that section 182(4) of the Fair Work Act (FWA) establishes a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements) which enable an employer to apply to the Fair Work Commission for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months.
The Committee notes the information provided by the Government relating to the 2017 independent Greenfields Agreement Review, which received submissions from Australia’s social partners and a range of other workers’ and employers’ organizations. The Government indicates that the review specifically supported the retention of the mechanism to resolve greenfields bargaining impasses (Recommendation 6). The Review was satisfied with the protections provided in this regard and in fact noted that, in the context of all the information provided to it, a six-month negotiation period represented a substantial possible delay and could very likely jeopardize either a final project approval decision or a contractor’s capacity to participate in a project. The Review also considered that the application of the prevailing pay and conditions test would most likely extend the normal approval time for a greenfields agreement. For all these reasons, including the employment significance of the successful negotiation of greenfields agreements, the Review was satisfied that a capacity to resolve disagreements about greenfields agreements was necessary and further recommended the reduction of the six-month period for negotiation, which it considered to be too long (Recommendation 7). The Government indicates however that it has not implemented the recommendation to reduce the bargaining period. In response to the Australian Council of Trade Unions (ACTU) allegation that employers may seek to withhold consent to an agreement to take advantage of these provisions, the Government recalls that the requirements for bargaining in good faith also extend to the negotiation of greenfields agreements and that the Fair Work Commission may make bargaining orders if it is satisfied that one or more of the bargaining representatives for the proposed agreement have not met or are not meeting the good faith bargaining requirements. The Fair Work Commission advised the Review that no applications had been made up to that point for a bargaining order in relation to a greenfields agreement. The Government adds that no agreements have so far been approved by the Commission under section 182(4). The Government adds that a greenfields agreement is not imposed on negotiating parties but rather all parties have an opportunity to present their case and the Commission must be satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions with the relevant industry for the equivalent work (section 187(6)). Finally, the Government indicates that on 26 May 2020, the Prime Minister announced the establishment of five industrial relations working groups comprising of employer representatives and employee representatives to develop proposals for a reform agenda aimed at job creation, one of which is considering potential reforms to current greenfields agreements arrangements. Recalling that compulsory arbitration may be permissible in the case of first collective agreements so as to promote collective bargaining where the first steps to sound industrial relations in new contexts may be difficult, the Committee requests the Government to continue providing information on any cases in which the Fair Work Commission has approved agreements pursuant to section 182(4), as well as on the outcome of the working group considering potential reforms to greenfields agreements.
Individual flexibility arrangements (IFA). In its previous comments, the Committee noted that, pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an individual flexibility arrangement varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs. The Committee took note of the concerns of the ACTU that employers frequently use individual flexibility arrangements to undercut the terms contained in a collective agreement or modern award and apply pressure to employees to accept unfair arrangements while the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would give primacy to inferior individual agreements over collective agreements, expand the range of matters subject to individual agreements and modify the operation of the better off overall test to enable non-monetary benefits to be taken into account.
The Committee notes the Government’s indication that the FWA provides safeguards to address the ACTU’s concerns, including that an employee must be better off overall under any IFA (section 203). The Government adds that both parties must genuinely agree to an IFA, an employee cannot be forced to sign an IFA to secure a job, and an employee has a right to refuse to agree to an IFA. If an employer were attempting to exert undue influence or pressure on an employee to agree to an IFA, an employee would have recourse to the general protections provisions of the FWA. If an employee and employer agree to an IFA, the IFA is taken to be a term of the agreement, and the usual remedies for breach of the terms and conditions of an agreement would apply. While the Government considers that the measures in the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would have allowed employees and employers greater capacity to tailor working arrangements to suit their individual needs, it informs the Committee that the Bill lapsed at the prorogation of the Parliament on 15 April 2016.
As regards the application of IFA provisions in practice, the Government indicates that, between 1 July 2015 and 30 June 2018, 9 per cent of employers who responded to the Commonwealth’s Survey of Employer’s Recruitment Experiences reported that they had made at least one IFA. Of these, the highest proportion of employers indicated that the IFA varied a condition of employment in a modern award (36 per cent), while 25 per cent of respondents indicated that the IFA varied an enterprise agreement. Twenty-nine per cent indicated that they had made IFAs which varied both a modern award and an agreement. The Government recalls that an IFA can be made at any time after the employee has started working for the employer and ended at any time by written agreement between an employer and employee. In the event there is not agreement, an IFA can be ended by giving the other party appropriate notice (13 weeks’ notice under an award, no more than 28 days as specified in enterprise agreements).
Duly noting that the flexibility term in an enterprise agreement must require the employer to ensure that any individual flexibility arrangement results in the employee being better off overall, a notion which may be difficult to objectively define, the Committee requests the Government to continue providing information on the application of the provisions of the FWA concerning individual flexibility arrangements in practice, as well as any supervision or complaints submitted in relation to these arrangements.
Conclusion of an enterprise agreement with a group of employees.  The Committee’s previous comments concerned the practice raised by the ACTU which permitted under the FWA the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee recalled that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, and that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. It requested the Government to take measures to ensure that collective bargaining with workers’ organizations is not undermined in practice and to provide detailed information on the application of these provisions.
The Committee notes the Government’s indication that the provisions in the FWA that deal with genuine agreement (including with respect to agreements voted on by small voter cohorts) are currently operating as intended and are reasonable and proportionate to support the objectives of Fair Work and the Australian industrial environment. In particular, the provisions in conjunction with the developing case law provide adequate protections regarding genuine agreement, including avenues available to parties to seek review of approval decisions. The Government adds that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give Notice of Employee Representational Rights (NERR) to each employee that will be covered by the proposed enterprise agreement, as soon as practicable, and no later than 14 days after the notification time. Provision of the NERR ensures that employees are aware of their rights around appointing bargaining representatives, including in workplaces where there is no union member and hence no union as a default bargaining representative. The provision of the NERR to employees also assists the Fair Work Commission to determine who is proposed to be covered by the enterprise agreement. The Fair Work Act also contains a requirement for the Fair Work Commission to be satisfied that an agreement has been genuinely agreed to by the employees employed at the time who will be covered by it. Moreover, the Explanatory Memorandum of the Fair Work Bill 2008 indicates that, when an agreement contains a large number of classifications in which employees are not employed, there may be a question as to whether the agreement was genuinely agreed to under section 188 of the Fair Work Act. While the High Court of Australia has made clear that enterprise agreements with broad coverage can properly be made with small cohorts of employees, some agreements have not been approved due to concerns that the small voting cohort in those particular matters could not have genuinely agreed to an agreement that covers a large number and variety of classifications. Finally, the Government indicates that, before approving an enterprise agreement, the Fair Work Commission must be satisfied that each award covered employee and prospective award covered employee will be better off overall under the proposed enterprise agreement than if the relevant modern award applied (section 186(2)(d)). The Committee requests the Government to provide statistics on the number of agreements concluded by small voter cohorts and information on any cases observed of such agreements interfering with established workers’ organizations or of having been found to extend to a large coverage of workers that could not be considered to represent genuine agreements.
State jurisdictions. New South Wales (NSW). In its previous comments, the Committee requested the Government to provide information on the measures taken to review the restriction imposed by clause 6(1)(f) of the 2014 Industrial Relations (Public Sector Conditions of Employment) Regulation, 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.
The Committee notes the Government’s indication that the NSW Government is committed to consulting with its employees in relation to the terms and conditions of their employment. While clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (the Regulation) states that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments, the policy is enacted through Premier’s Memorandum M2011-11, alongside other mechanisms by which the Government consults its employees. The Government also refers to Premier’s Memorandum M2016-02 (Transfer of Government Sector services or functions to the Non-Government Sector) and the NSW Government Guidelines on Change Management, which require agencies to consult with employees and the relevant union(s) on the content of a change management plan, including details of employee services and any proposed voluntary redundancy programme. While these policies sit outside the Regulation, agencies are obliged to consult with public sector employees and their representatives according to the provisions in industrial instruments, such as awards. For example, the major award covering public sector employees, the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2009, contains obligations that departments consult with unions, both formally and informally, regarding change.  Recalling the importance placed in Article 4 of the Convention on promoting collective bargaining on all matters related to terms and conditions of employment, the Committee requests the Government to indicate the precise categories of public servants covered by the 2014 Regulation, and in particular whether they may cover public servants not engaged in the administration of the State, such as teachers or those working in state institutions or enterprises.

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.
Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act (FWA). In its previous comments, the Committee noted that sections 186(4), 194 and 470–475 of the FWA 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 FWA. It had observed the concerns expressed by the Australian Council of Trade Unions (ACTU) with respect to the restrictions in the FWA on the content of agreements and requested the Government to review these sections, in consultation with the social partners, so as to bring them into accordance with the Convention.
The Committee notes that the Government considers these provisions to be appropriate to Australia’s national conditions (as permitted by Article 4) and that the formulation “matters pertaining to the employment relationship” in section 172(1) in relation to permissible content in enterprise agreements is a long-standing part of Australia’s industrial relations framework developed through extensive tripartite negotiation and consultation with the social partners, including the ACTU. The Government adds that the post-implementation review of the FWA by an independent expert panel (the Review Panel) was informed by submissions from various stakeholders (including the social partners) and supported the FWA content rules. Finally, the Government concludes that the current provisions dealing with permitted matters in enterprise agreements are necessary, reasonable and proportionate to support the objects of the FWA.
Emphasizing that the measures adapted to the national conditions referred to in Article 4 of the Convention should aim to encourage and promote the full development and utilization of machinery for collective bargaining, and recalling that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention, while tripartite discussions for the voluntary preparation of guidelines for collective bargaining are a particularly appropriate method of resolving such difficulties (see the 2012 General Survey on the fundamental Conventions, paragraph 215), the Committee once again requests the Government to review the above-mentioned sections of the FWA, in consultation with the social partners, so as to leave the greatest possible autonomy to the parties in collective bargaining.
The Committee also notes the supplementary information provided by the State of Queensland that as part of the health workforce response to the COVID-19 pandemic, a set of industrial relations principles and supporting documents were developed in partnership between Queensland Health and the relevant unions. These principles form an overarching employment framework in addition to the existing Certified Agreements and Awards, to allow for the rapid and respectful consultation required to make rapid temporary changes, while ensuring that industrial obligations continue to be met. The principles enshrined a commitment to flexibility on both the part of the employer and staff and ensure that the union rights of entry and right to organize continued to be met throughout the pandemic in a safe manner. The Committee welcomes these efforts to ensure broad-ranged consultation and effective and safe union access to defend workers’ interests in the challenging context of the COVID-19 pandemic.
The Committee is raising other matters in a request addressed directly to the Government.
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