Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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

The Committee takes note of the oral and written information supplied by the Government to the Conference Committee in June 1998 and the detailed discussion that took place thereafter. The Committee notes the Government's detailed report, including various decisions of the Australian Industrial Relations Commission and the Federal Court of Australia annexed thereto. The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) and the Government's replies to these comments.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee had previously expressed the hope that simplified summaries of the Workplace Relations Act, 1996 (the Act), would be made available to employers and workers. The Committee observes with interest the Government's indication that "user guides" and "fact sheets" on the main elements of the Act have been published by the Department of Employment, Workplace Relations and Small Business.

Articles 1 and 4 of the Convention. The Committee notes that according to the documentation submitted by the ACTU, including case studies of practical difficulties faced by unions since the adoption of the Act, it appears that an employer can give preferential treatment to workers who agree to have their terms and conditions governed by non-union agreements rather than union agreements, and some employers are doing so with impunity. It also appears that some job positions are being designated as "Australian Workplace Agreement (AWA) only" positions, with no real opportunity for the workers to have their terms and conditions of employment governed by a collective agreement. In the view of the Committee, such situations could amount to anti-union discrimination, contrary to Article 1, and could not be said to encourage and promote voluntary collective bargaining, contrary to Article 4. The Committee, therefore, requests the Government to indicate in its next report any steps taken to ensure that under the Act as applied in practice, workers cannot be discriminated against for seeking to have their terms and conditions determined through collective bargaining. The Committee also requests the Government to comment on the question of whether the Act, in practice, results in the effective discouragement of collective bargaining.

Article 2 of the Convention. The Committee notes that the ACTU in its most recent comments raises a concern with respect to a recent decision of the Australian Industrial Relations Commission. In the view of the ACTU, this decision has demonstrated that in the case of enterprise unions, the Act has the effect of promoting the establishment of workers' organizations that are under the domination of employers. The Committee also notes the response of the Government on this point. The Committee requests the Government to forward a copy of the relevant decision as well as any other court or tribunal decisions addressing the issue of interference or domination of workers' organizations by employers.

Article 4 of the Convention. The Committee notes the comment of the ACTU that employers are using the Act to prevent the involvement of representative unions in bargaining, by allowing employers to "shop around" amongst unions to see whether they can gain an advantage by dealing with one union over another, or refusing to negotiate at all. The ACTU also states that with the adoption of the Act, the jurisdiction of the Australian Industrial Relations Commission to make orders requiring good faith bargaining was removed. In the context of encouraging and promoting voluntary collective bargaining, the Committee recalls the importance of the public authorities encouraging employers to recognize trade unions that can prove their representativeness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240). In order to encourage the harmonious development of collective bargaining and avoid disputes, the Committee considers it desirable to draw up and apply objective procedures which make it possible to determine the most representative trade unions for the purpose of collective bargaining when it is not clear which trade unions the workers would like to represent them (op. cit., paragraph 242). The Committee also recalls the importance it attaches to the principle that employers and trade unions should negotiate in good faith and endeavour to reach an agreement (op. cit., paragraph 243). The Committee, therefore, requests the Government to respond to these assertions of the ACTU.

The Committee notes from the Government's report that the number of Australian Workplace Agreements has increased rapidly. The Committee requests the Government to continue providing information as to the number of workers covered by AWAs, certified agreements and awards. The Committee also requests the Government to keep it informed of the status of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill, 1999, and to forward a copy once it is enacted into law.

State jurisdictions

The Committee requests the Government to provide information concerning the number of Queensland Workplace Agreements and how the "public interest" test under section 203 of the Industrial Relations Act, 1999 is interpreted. With respect to New South Wales, the Committee requests the Government to keep it apprised of any court or tribunal decisions interpreting the phrase "public or political activity" in section 210 of the Industrial Relations Act, 1996. In addition, noting the Government's indication that the categories of employees excluded from the unfair dismissal provisions of the Industrial Relations Act, 1996, are provided with adequate protection in accordance with Article 1 of the Convention through the Industrial Relations Amendment (Unfair Contracts) Act, 1998, and the Industrial and Commercial Training Act, 1989, the Committee requests the Government to forward a copy of these two Acts. The Committee also notes the Government's indication that the 65 per cent approval rate before an enterprise agreement can be made or registered only applies to the making of an enterprise agreement by employees without union involvement. Concerning Tasmania, the Committee notes that while the Industrial Relations Act, 1984, does not provide specific protection against discrimination based on participation in trade union activities, the Anti-Discrimination Act (which has not yet been proclaimed) appears to address this lacuna. The Committee requests the Government to forward a copy of the Anti-Discrimination Act once it has been proclaimed.