Observation (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. The Committee also notes that the Government has once again not included detailed information in its report concerning the application of the Convention in Victoria and the Australian Capital Territory, and urges the Government to forward this information.

Federal jurisdiction

The Workplace Relations Act, 1996. Noting the Government's indication that the Federal Workplace Relations Act (the Act) applies to the State of Victoria and the Northern Territory, the Committee's comments on the Act as set out below are also relevant with respect to those jurisdictions.

Article 1 of the Convention. The Committee notes that it has previously raised concerns with respect to the exclusion (or potential exclusion) of certain categories of workers from protection against dismissal based on trade union membership and activities (sections 170CK and 170CC); and inadequate protection against discrimination based on the negotiation of a multiple business agreement (sections 170MU, 170ML, 170LC, 298K, 298L). The Committee observes, as the Government points out, that while some categories of employees are excluded (or may be excluded by regulation) from obtaining access to the remedies available under section 170CK (which prohibits termination of employment on certain grounds, including trade union membership or participation in trade union activities), these persons are covered under section 298K (which prohibits dismissal or other prejudicial conduct for prohibited reasons, which include membership in an industrial association and specified activities related thereto). However, the Committee considers that the scope of the two anti-discrimination provisions is sufficiently different, in particular since the protection provided under section 170CK potentially applies to a wider range of trade union activities, and makes specific reference to refusing to negotiate an Australian Workplace Agreement (AWA) and that the exclusions from the protection under that section remain problematic. The Committee, therefore, requests the Government to take the necessary measures to amend the Act to ensure that all groups of workers are protected under the anti-union discrimination provisions of section 170CK. The Committee also requests the Government to keep it informed of the status of the Workplace Relations Amendment (Unfair Dismissals) Bill.

With respect to discrimination based on the negotiation of multiple business agreements, the Committee, while noting the Government's statement that section 298L would in some circumstances provide relevant protection, continues to have concerns regarding the clear wording of the Act (section 170LC(6)) excluding the negotiation of multiple business agreements from being considered "protected action" under section 170ML. The Committee, therefore, again 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. In a previous observation, the Committee raised the following issues of concern with respect to the Act: primacy is given to individual over collective relations through the AWA procedures, thus collective bargaining is not promoted; preference is given to workplace/enterprise-level bargaining; the subjects of collective bargaining are restricted; an employer of a new business appears to be able to choose which organization to negotiate with prior to employing any persons. The Committee notes the Government's report and its submissions before the Conference Committee setting out the various ways in which collective bargaining is still provided for and taking place, including concerning multiple businesses, and the various safeguards in the AWA procedure. Having closely considered the Government's explanations and observations, the Committee remains of the view that the Act gives primacy to individual over collective relations through the AWA procedures. Furthermore, where the Act does provide for collective bargaining, clear preference is given to workplace/enterprise-level bargaining. The Committee, therefore, again requests the Government to take steps to review and amend the Act to ensure that collective bargaining will not only be allowed, but encouraged, at the level determined by the bargaining parties.

On the issue of strike pay as a matter for negotiation, the mere fact that there are deductions for days on strike is not contrary to the Convention. The Committee notes, however, that it is incompatible with the Convention for legislation to impose such deductions in all cases (as under section 187AA of the Act). In a system of voluntary collective bargaining, the parties should be able to raise this matter in negotiations. The Committee requests the Government to amend the legislation accordingly.

Concerning the preselection by an employer of a bargaining partner before workers are employed ("greenfield agreements", section 170LL), the Committee notes that this is permissible only for the first agreement. However, since the Act permits the duration of the first agreement to be up to three years (section 170LT(10)), such a provision potentially prejudices the workers' choice of bargaining agent for a considerable period. The Committee requests the Government to review and amend the Act so that the choice of bargaining agent is made by the workers themselves, including in the case of a new business.

State jurisdictions

Queensland. Having commented in the past on the similarity between the Workplace Relations Act of Queensland and the Federal Workplace Relations Act, giving rise to the same concerns under the Convention as noted above, the Committee notes with interest that the Workplace Relations Act of Queensland has been repealed. The Government indicates that the Industrial Relations Act, 1999, which was based on recommendations of a task force involving both workers' and employers' representatives, came into force on 1 July 1999. The Committee notes in particular that the Government acknowledges that multi-employer agreements were difficult to make under the former Act, and states that the 1999 Act provides for a wider range of collective agreements to be made than was possible under the limited provisions for single-business agreements under the former Act. The Committee also notes with interest that an employer can no longer preselect the bargaining partner on behalf of potential employees.

South Australia. Noting the system of enterprise agreements that had been put into place, the Committee requested the Government to indicate whether and to what extent collective bargaining can and does take place at levels other than the enterprise level. The Committee notes that, while the Government provides some information concerning enterprise-level agreements, it does not address the Committee's query, and urges it to do so.

Western Australia. The Committee had noted that the Industrial Relations Act, 1979, as amended, contains no provision protecting workers against discrimination on the basis of trade union activities, contrary to Article 1 of the Convention. The Committee requests the Government to take the necessary measures to amend the legislation to ensure workers are protected against discrimination on the basis of trade union activities and to provide specific remedies and penalties where there has been anti-union discrimination. The Committee had also raised a concern that the Workplace Agreements Act, 1993, as amended, gives preference to individual agreements over collective agreements, thus not effectively promoting collective bargaining. Noting the Government's indication that the legislation does not encourage or promote one type of agreement over another, but merely provides the parties with a choice, the Committee recalls that, in ratifying the Convention, the Government undertook to take appropriate measures to encourage and promote the full development and utilization of machinery for the voluntary negotiation between employers and workers' organizations with a view to the regulation of terms and conditions of employment by means of collective agreements. By merely allowing collective agreements, along with other alternatives, rather than promoting and encouraging them, the requirements of the Convention are not met. The Committee, therefore, requests the Government to review and amend the legislation to ensure full conformity with the Convention.

The Committee is also addressing a request directly to the Government concerning the federal jurisdiction as well as Queensland, New South Wales and Tasmania.