Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes with regret that the Government’s report does not contain a reply to the Committee’s previous comments, which read as follows.

Article 4 of the Convention. Union fees. In its previous comments, the Committee referred to provisions which prevented the Australian Industrial Relations Commission (AIRC) from certifying agreements which contained clauses requiring payment of bargaining services fees. This provision was adopted as a result of the High Court decision in Electrolux Home Products Pty Ltd v. Australian Workers’ Union [2004] HCA 40 (2 September 2004), according to which collective agreements containing clauses on bargaining services fees were null and void as such clauses did not pertain to the employment relationship but rather to the relationship between a negotiating union and the employees.

The Committee notes that, pursuant to the adoption of the Workplace Relations Amendment (Work Choices) Act, 2005 (the Work Choices Act), which substantially amended the Workplace Relations Act, 1996, industrial associations are prohibited from demanding bargaining services fees from another person unless the fee is payable under a contract for the provision of bargaining services directly with the non-member who is to be covered by the agreement (section 801) and provides that provisions in collective agreements requiring or permitting the payment of bargaining services fees are void (sections 810(1)(e) and 811(2)).

The Committee requests the Government to provide information on the practical application of these provisions and any reported impact they may have on collective bargaining, as well as on the Government’s intentions concerning these provisions.