Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

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

The Committee notes the information provided in the Government's report, in particular regarding the extensive legislative changes at the federal and state levels. The Committee also notes the comments submitted by the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI) regarding the recently enacted Workplace Relations Act, 1996, which has considerably altered the legislative foundation of industrial relations at the federal level.

The Committee notes that information regarding the application of the Convention in Victoria, Tasmania and the Australian Capital Territory has not been included in the Government's report, and requests the Government to forward this information. The Committee further requests the Government to forward any court or commission decisions regarding the recently enacted legislation. The Committee received a further communication from the Government of Australia but it was received too late to be considered.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee observes firstly that this major restructuring of the law governing workplace relations is enshrined in a long and complicated statute. The Committee hopes that simplified summaries will be available to the employers and especially to the workers concerned. Its aims are to promote cooperative workplace relations and its principal objects in this respect are set out succinctly and with clarity in section 3. The Act establishes an Australian Industrial Relations Commission which is to have an important role in overseeing the application of the statute and dealing with problems and disputes that arise.

Article 1 of the Convention. 1. The Committee notes that protection against dismissal is provided for under section 170CK(2)(b) of the Act based on trade union membership or participation in trade union activities outside working hours or, with the employer's consent, within working hours. Pursuant to section 170CC(1), however, regulations may exclude certain employees from specified termination of employment provisions, including employees on contracts of employment for a specified period of time or a specified task, employees on probation or engaged on a casual basis or those "in relation to whom the operation of the provisions causes or would cause substantial problems because of (i) their particular conditions of employment, or (ii) the size or nature of the undertakings in which they are employed". Section 170CC(3) and (4) appear to provide that where employees pass a threshold of remuneration (now set at A$64,000 pursuant to Regulation 30BB), they can be disqualified from protection under the termination of employment provisions. The Committee also takes note of a recent amendment proposed to the Act through the Workplace Relations Amendment Bill, 1997, that excludes new employees of small businesses (employing 15 employees or less) from the unfair dismissal provisions.

2. The Committee recalls that under Article 6 of the Convention only public servants engaged in the administration of the State may be excluded. The Committee requests the Government to indicate in its next report how the above-noted legislative provisions have been applied and which groups of workers, if any, have been excluded from which provisions of the Act. It would appreciate receiving information as to whether and how adequate protection in accordance with Article 1 of the Convention is provided for these workers in other legislation. The Committee also requests clarification regarding the relationship between section 170CC(1) and sections 170CC(3) and (4), and recalls that the protection of Article 1 cannot be restricted due to the rate of remuneration received prior to the termination. The Committee also requests the Government to keep it informed of the status of the Workplace Relations Amendment Bill, 1997. The Committee requests the Government to ensure that employees of small businesses are adequately protected as required by the Convention, and to inform it of any steps taken in this regard.

3. The Committee notes that further protection from discrimination on the ground of trade union activities is provided under sections 170MU and 298K of the Act. Pursuant to Part IVB, Division 8, in particular section 170MU, an employer is prohibited from dismissing or otherwise prejudicing an employee in his or her employment on the basis of the employee's participation in "protected action". "Protected action", as defined in section 170ML, is industrial action taken regarding the negotiation of a single-business certified agreement, and does not extend to a multiple-business agreement due to section 170LC(6) which excludes multiple-business agreements from the scope of Division 8. Section 298K also protects employees from discrimination in employment, in this case where such discrimination is based on "prohibited reasons", which are defined in section 298L to include membership in an industrial association and some specific activities, but does not appear to cover the negotiation of multiple-business agreements. In short, it appears to the Committee that the full scope of trade union activities is not covered. The Committee requests the Government to take the necessary measures to ensure that workers are adequately protected against discrimination based on trade union activities, including negotiating a collective agreement at whatever level the parties deem appropriate.

Article 4.4. The Committee notes that one of the principal objects of the Act, as set out in section 3(b), is "ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level". This emphasis on direct employee-employer relations is particularly evident in Part VID of the Act regarding Australian workplace agreements (AWAs), which are defined in section 170VF: "an employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee". This Part promotes AWAs, which are essentially individual in nature, over collective agreements, through simpler filing requirements in comparison with the collective certification procedure, the advice and assistance of the Employment Advocate and giving AWAs primacy over federal awards and state awards or agreements, and over certified agreements, unless the certified agreement is already in operation when the AWA comes into operation (section 170VQ). Once there is an AWA in place, a collective agreement certified under the Act cannot displace it. In addition, under Part XV of the Act, providing for the extension of the provisions of the Act to the State of Victoria, when a collective employment agreement ceases to be in force, it is replaced by "an individual employment agreement with the same terms" (section 516). The Committee concludes that primacy is clearly given to individual over collective relations through the AWA procedure. The Committee considers that the provisions of the Act noted above do not promote collective bargaining as required under Article 4 of the Convention. It, therefore, requests the Government to indicate in its next report any steps taken to review these provisions of the Act and to amend it to ensure that it will encourage collective bargaining as required by Article 4 of the Convention.

5. The Committee notes that with respect to the levels of bargaining, a clear preference is given in the Act to workplace/enterprise-level bargaining, as evidenced in section 3(b), as noted above, as well as section 88A(d) which charges the Australian Industrial Relations Commission with exercising its functions and powers regarding awards in a manner "that encourages the making of agreements between employers and employees at the workplace or enterprise level". Regarding certified agreements, Part VIB of the Act sets out a series of provisions facilitating single-business agreements, and giving them priority over multiple-business agreements. Section 170L states that the object of the part "is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business". Preference for enterprise-level bargaining is also evidenced in sections 170ML and 170MU which, as noted above, provide some protection in the case of industrial action taking place during the bargaining period for certified agreements. However, due to section 170LC(8), this protection is not afforded with respect to the negotiation of multiple-business agreements. The Committee also notes that a multiple-business agreement can only be certified pursuant to section 170LC if it is found to be "in the public interest to certify the agreement" taking into consideration whether the matters could be more appropriately dealt with in a single-business agreement. In short, the determination of what level of bargaining is considered appropriate is placed in the hands of the Commission, which is mandated to give primary consideration to single-business agreements and to use the criterion of "the public interest". The Committee is of the view that conferring such broad powers on the authorities in the context of collective agreements is contrary to the principle of voluntary bargaining.

6. The Committee recalls that, since the Convention contemplates voluntary collective bargaining, the choice of the bargaining level should normally be made by the partners themselves, and the parties "are in the best position to decide the most appropriate bargaining level" (see General Survey on freedom of association and collective bargaining, 1994, paragraph 249). The Committee requests the Government to review this issue and amend the legislation in the light of the requirements of the Convention.

7. Regarding the subjects of negotiation, the combined effect of sections 166A, 187AA and 187AB prohibit the issue of strike pay being raised as a matter for negotiation. Considering that in general the parties should be free to determine the scope of negotiable issues (see General Survey, op. cit., paragraph 250), the Committee requests the Government to review and amend these provisions to ensure conformity with the Convention.

8. With reference to the provisions of the Act in Part VIB requiring majority approval of a certified agreement, the Committee recalls that where no trade union represents a majority of the workers, the unions should be able to negotiate an agreement at least on behalf of their own members (see General Survey, op. cit., paragraph 241).

9. The Committee requests clarification regarding section 170LL of the Act which appears to permit an employer of a new business to choose which organization to negotiate with prior to employing any persons. The Committee recalls that the choice of bargaining agent should be made by the workers themselves; section 170LL appears to allow the employer to preselect the bargaining partner on behalf of the potential employees, regardless of whether or not that union will ultimately be truly representative of the workers finally employed.

10. The Committee considers that it is obvious that the impact of the legislation will not be fully clear for several years. The role of the Industrial Relations Commission will be crucial in this development. It is important that such natural evolution be carefully monitored to ensure that the spirit of the Convention is maintained. The Committee would welcome regular reports on future developments.

Queensland

The Committee notes the recent adoption of the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997. As affirmed in the Government's report, the Committee notes that the Workplace Relations Act of Queensland is closely based on the Federal Workplace Relations Act. While there are differences between some of the provisions of the Queensland legislation and the provisions referred to above by the Committee in relation to the federal legislation, they are sufficiently similar, that the Committee recalls its above comments in the context of the Queensland legislation. The Committee refers in particular to the corresponding provisions in the Workplace Relations Act, 1997, in Chapter 2 on certified agreements and Queensland Workplace Agreements, Chapter 5 on dismissals, and Chapter 6 on industrial disputes, and in the Industrial Organizations Act, 1997, in Part 14 on freedom of association.

New South Wales

The Committee notes that certain categories of employees are excluded, or permitted to be excluded through regulation, from the unfair dismissal provisions under Part 6 of the Industrial Relations Act, 1996 (sections 83(1)(a) and 83(2)). These exclusions and potential exclusions are set out in similar terms as section 170CC(1), (3) and (4) of the Federal Workplace Relations Act, 1996, referred to above; the Committee, therefore, refers to its comments above on this matter. Also with reference to Article 1 of the Convention, the Committee requests the Government to indicate in its next report how the phrase "public or political activity" in section 210 has been defined, and if, in particular, protection from victimization on this basis protects workers from discrimination on the basis of trade union activities.

Regarding the system of enterprise agreements provided for under the Act, the Committee requests the Government to indicate in its next report whether and to what extent collective bargaining can and does take place at levels other than the enterprise level. The Committee notes that pursuant to section 36(4), an enterprise agreement has no effect until, inter alia, it is approved by 65 per cent of employees who are to be covered by the agreement. The Committee recalls that where no union or group of unions has majority support, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members, and requests the Government to indicate in its next report whether and to what extent unions can and do bargain collectively when the 65 per cent approval rate is not attained.

South Australia

The Committee notes the recent amendments to the Industrial and Employee Relations Act, 1994. Regarding the system of enterprise agreements provided for under the Act, the Committee, as in the context of New South Wales, requests the Government to indicate in its next report whether and to what extent collective bargaining can and does take place at levels other than the enterprise level.

Western Australia

The Committee notes the recent adoption of the Labour Relations Legislation Amendment Act, 1997, which amends the Industrial Relations Act, 1979, the Workplace Agreements Act, 1993, and the Minimum Conditions of Employment Act, 1993.

Industrial Relations Act, 1979, as amended. The Committee notes that pursuant to Part VIA of the recently amended Industrial Relations Act of Western Australia, while there is some protection against discrimination on the basis of trade union membership, no provision addresses discrimination based on trade union activities, as required under the Convention. The Committee recalls that specific remedies and penalties against anti-union discrimination are needed to ensure the effective application of Article 1 of the Convention.

The Workplace Agreements Act, 1993, as amended. The Committee notes that the Act, as recently amended, establishes a system of contracts between an employer and an employee or a group of employees. The preference given through this system to individual agreements over collective agreements is evidenced in a number of provisions: (i) the Act overrides the Industrial Relations Act, 1979, generally (section 4) and the awards system specifically (section 6); (ii) although the Act contemplates agreements with a group of employees (collective workplace agreements), trade unions may be party to such an agreement in a limited sense, for example a trade union is not a party in determining the provisions to be included in the agreement (sections 11(3) and 16(2)); (iii) specific provision is made to allow individual workplace agreements to override collective workplace agreements, but not the converse; (iv) protection from common law liability under tort and contract conferred concerning workplace agreements (section 77) is denied in the context of the Industrial Relations Act, 1979 (section 97B). The Committee concludes that the Workplace Agreements Act, and its interrelation with the Industrial Relations Act, does not create a system whereby collective bargaining is effectively promoted.

The Committee requests the Government to take the necessary measures to ensure the full application of the Convention at the federal and state levels, and to keep it informed of any progress.