Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

The Committee takes note of the Government’s report as well as the oral and written information provided by the Government representative to the Conference Committee in June 2005 and the discussion that followed (Provisional Record No. 22 - Part Two, 93rd Session, June 2005, pp. 52-56). The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) concerning proposed legislation on the right to organize and bargain collectively, as well as the comments made by the International Confederation of Free Trade Unions (ICFTU), with regard to issues previously raised by the Committee on the provisions of the Workplace Relations Act (WR Act) concerning Australian Workplace Agreements (AWAs) and collective bargaining. The Committee recalls from previous comments that AWAs are agreements on the relationship between an employer and an employee, which are essentially individual in nature and put emphasis on direct employee-employer relations over collective negotiations with trade unions aimed at concluding collective agreements. The Committee requests the Government to transmit in its next report its observations on the comments made by the ACTU and the ICFTU. The Committee finally takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409-457) concerning several discrepancies between the Building and Construction Industry Improvement Act 2005, and the Convention. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to bring this Act into conformity with the Convention.

Western Australia. In its previous comments the Committee had noted the absence of provisions prohibiting acts of discrimination for trade union activities in the Industrial Relations Act, 1979, and had requested the Government to indicate in its next report any measures taken or contemplated so as to afford full protection against anti-union discrimination. The Committee notes with satisfaction from the Government’s report that in August 2002, the scope of the existing objects of the Industrial Relations Act, 1979, was widened to include six additional objects, one of which was to promote the principles of freedom of association and the right to organize.

Federal jurisdiction. The Committee takes note of the conclusions reached by the Conference Committee in June 2005 with regard to certain provisions of the WR Act concerning the exclusion from the scope of application of the Act of certain categories of workers, the limitations on the scope of union activities covered by protection against anti-union discrimination, and the relationship between individual contracts and collective agreements. The Committee notes that in its conclusions the Conference Committee noted the Government’s statement concerning the complexity of the situation and its wish to continue a constructive dialogue on the questions under examination.

Noting that the WR Act applies also to the State of Victoria, the Northern Territory and the Australian Capital Territory, the Committee’s comments on the WR Act as set out below are also relevant with respect to these jurisdictions.

Articles 1 and 4 of the Convention. Protection against anti-union discrimination in the framework of collective bargaining. 1. The Committee recalls that its previous comments concerned the need to amend section 170CC of the Workplace Relations Act, 1996 (WR Act) which had the effect of excluding wide categories of workers from the protection provided in section 170CK of the WR Act, against anti-union dismissals if they refused to negotiate an AWA.

The Committee notes with interest that according to the Government, the interaction between sections 170CK and 170CC of the WR Act has been removed with the introduction of the Workplace Relations Amendment (Fair Termination) Act 2003, so that no class of employees is excluded from the anti-union discrimination protections conferred by section 170CK. The Committee notes that the Workplace Relations Amendment (Fair Termination) Act 2003 repeals the provisions of section 170CC of the WR Act which effectively excluded from the scope of section 170CK of this Act, employees on contracts of employment for a specified period of time or a specified task, employees on probation or engaged on a casual basis, as well as those whose remuneration falls below a certain threshold. Nevertheless, the Committee also notes that the exclusions concerning employees "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", remain in force. The Committee notes from the Government’s report that these classes of employees would be indirectly protected against anti-union discrimination in case they refused to negotiate an AWA, by section 298L(1)(h) of the WR Act which prohibits discriminatory action taken because an employee is entitled to the benefit of an industrial instrument. The Committee requests the Government to provide information as to the particular classes of employees covered by section 170CC of the WR Act.

2. The Committee recalls that in its previous comments it had also raised the following issues:

-  the need to amend sections 298L and 170WG(1) of the WR Act which did not seem to afford adequate guarantees against anti-union discrimination to the extent that they allowed offers of employment to be conditional on the signing of an AWA (AWA-or-nothing);

-  the need to amend section 170LC(6) of the WR Act which excludes workers who negotiate multiple business agreements from protection against anti-union dismissals if they undertake industrial action, thereby placing obstacles to negotiation at the multi-employer level.

The Committee notes with regret in this respect that the Government refers to the views it expressed in previous reports and adds that AWAs are not inherently anti-union and that parties may choose to enter into these individual agreements while being active members of a union. The Committee once again expresses the hope that the Government will take the necessary measures to afford sufficient legal protection against all acts of anti-union discrimination at the time of recruitment against workers who refuse to negotiate an AWA and to ensure that workers are adequately protected against discrimination for negotiating a collective agreement at whatever level the parties deem appropriate, having a free choice in this respect. The Committee requests the Government to indicate in its next report any measures taken or contemplated to this effect.

Articles 2 and 4. Protection against acts of interference in the framework of collective bargaining. The Committee’s previous comments concerned issues previously raised by the ACTU to the effect that there was a need to amend section 170LJ(1)(a) of the WR Act so as to guarantee adequate protection against acts of employer interference in the framework of collective bargaining, in particular, prevent the possibility for an employer to "shop around" amongst unions. The Committee recalls that section 170LJ(1)(a) enables an employer to make an agreement with one or more organizations of employees where each organization has "at least one member" in the enterprise.

The Committee notes that according to the Government: (1) employers are not allowed excessive discretion in choosing a bargaining partner as, in order to be certified, a proposed agreement must have the support of a valid majority of the employees to which it will apply (section 170M); (2) section 170MI enables an organization of employees to initiate a bargaining period to negotiate a proposed agreement; (3) the Australian Industrial Relations Commission (AIRC) may conciliate matters arising during negotiations for a certified agreement (section 170NA) and employers are prevented from discriminating between union members and non-members, which facilitates the full participation of all relevant employees in the agreement-making process.

The Committee recalls that in its previous observation it had suggested the establishment of a mechanism to undertake the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner, given that section 170LJ(1)(a) gives employers wide discretion in this respect. The Committee requests the Government to provide information in its next report on whether such a mechanism exists, or the measures taken or contemplated with a view to setting it up.

Article 4. Measures to promote free and voluntary collective bargaining. The Committee’s previous comments concerned the need to amend:

-  section 170VQ(6) of the WR Act which gives prevalence to AWAs over collective agreements;

-  section 170LK(6)(b) of the WR Act which allows for negotiations to take place directly with non-unionized workers instead of representative trade unions in the enterprise and does not preclude the possibility for employers to abandon negotiations with a worker where the latter requests trade union representation;

-  section 170LC(4) of the WR Act which requires the Australian Industrial Relations Commission (AIRC) to refuse the certification of multiple-business agreements unless certification is in the public interest;

-  section 187AA of the WR Act which excludes negotiations over strike pay from the scope of collective bargaining;

-  section 170LT(10) of the WR Act which excessively restricts the opportunity for workers in a new business to choose their bargaining agent.

The Committee takes note of the information contained in the Government’s report, according to which:

-  section 170VQ(6) of the WR Act provides additional machinery to facilitate individual bargaining as an alternative to collective bargaining, where that is what the parties want; AWAs are not inherently anti-union as they allow workers to enter into individual agreements and also be active members of a union as well as to have a union act as their bargaining agent in negotiating an AWA; the purpose is to provide the parties with a choice, taking into account the fact that collective bargaining has been and continues to be the norm in Australia for more than a century and that Article 4 contains a qualified obligation based on "national conditions"; statistics on trade union membership from 1998 onwards indicate that trade union membership declined by 5.1 per cent since 1998;

-  under the WR Act, collective bargaining can take place without trade union involvement, directly between employers and employees; safeguards exist to ensure that employers may not arbitrarily change the scope of negotiations under section 170LK of the WR Act so as to avoid trade union involvement (additional certification criteria under section 170LU(8) of the WR Act to ensure that employees are not unfairly excluded from the scope of an agreement and the possibility for an employees’ association to notify a bargaining period if an employer no longer wishes to pursue an agreement under section 170LK);

-  section 170LC(4) of the WR Act reflects the Government’s commitment to ensuring that primary responsibility for determining matters affecting the employment relationship rests with employers and employees at the workplace level;

-  section 187AA of the WR Act is in line with the Government’s view that demands for strike pay are contrary to public policy;

-  section 170LT(10) of the WR Act sets out the maximum term for greenfields agreements which is the same as for other certified agreements; the actual term of certified agreements is otherwise left for determination between the parties.

The Committee notes that most of the information provided by the Government was already given in previous reports and recalls that Article 4 of the Convention aims at the promotion of free and voluntary collective bargaining between employers or their organizations and workers’ organizations. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated with a view to ensuring that:

-  AWAs are not given primacy over collective agreements;

-  negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise;

-  multiple business agreements are not subject to the requirement of prior approval by the AIRC;

-  the scope of collective bargaining is not restricted with regard to negotiations over strike pay;

-  workers are given more leeway in choosing their bargaining agent in new businesses.

The Committee finally notes from the Government’s report that on 26 May, the Prime Minister announced legislative reforms for the purpose of giving greater freedom and flexibility to employers and employees to negotiate at the workplace level. The Government wishes to encourage the spread of workplace agreements whilst providing people with the choice of remaining under the awards system if they so desire and protecting freedom of association and the right to trade union representation in the workplace. The proposed legislative reforms contain elements relevant to the Convention such as: a simplified process for agreement making; simplification of Australia’s complex award system; a range of reforms to procedures for bargaining, the taking of industrial action and the right of union officials to enter workplaces. The Committee finally notes that with regard to the request of the Conference Committee for copies of all draft laws that might relate to the application of the Convention, the Government indicates that it is not possible to provide a copy of draft legislation prior to its formal public release or introduction into federal Parliament, as this would contravene cabinet-in-confidence rules and is prohibited by law. The Committee requests the Government to transmit the texts of the draft laws as soon as they are legally available, so that the Committee may examine their conformity with the Convention.

A request on certain other points is being addressed directly to the Government.