Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Labour Inspection Convention, 1947 (No. 81) - Australia (Ratification: 1975)

Previous comment

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) communicated with the Government report.

Articles 3(1), 7(3) and 10 of the Convention. Functions of the system of labour inspection. Training and number of inspectors. Occupational safety and health (OSH). The Committee notes that the Government report does not contain a reply to the points raised by ACTU in its 2018 observations. The Committee notes that in these observations the trade union indicated that the Government: (i) fails to develop effective and nationally consistent strategies to ensure compliance with Australia’s Workplace Health and Security Model Laws, particularly for workers in non-standard working arrangements; (ii) has an insufficient number of OSH inspectors to ensure safe workplaces; and (iii) does not provide sufficient training for inspectors, particularly in relation to complex labour force structures and the challenges of precarious work. The Committee requests the Government to provide information on the measures adopted to address these matters.

Article 3(2). Additional functions of labour inspectors. Investigation into workers and trade unions. 1. Fair Work Ombudsman (FWO) and Australian Building and Construction Commission (ABCC). Following its previous comment, the Committee notes the Government’s information in its report that the investigation of matters into workers and their organizations is a small percentage of the overall number of compliance activities undertaken by the FWO. From 1 July 2018 to 30 June 2022, the FWO completed 9 investigations into workers’ organizations out of a total of 88,362 investigations.

The Committee notes that the ABCC was abolished in February 2023, along with the Registered Organizations Commission, the former regulator of unions and employer groups, taking effect from 6 March 2023. Powers and functions of these agencies were transferred to the FWO. The Committee notes that the ACTU considers the abolition of the ABCC as a substantial step toward achieving greater compliance with the Convention. The Committee requests the Government to continue to provide information on the proportion of the FWO’s time and resources spent investigating workers and their organizations, as well as the proportion of FWO violations found and penalties imposed that apply to workers and their organizations. In addition, the Committee requests the Government to provide information on the activities of the FWO in relation to tasks that were previously under the competence of the ABCC in the building and construction industry.

Article 6. Status and conditions of service of labour inspectors. Following its previous comment regarding the appointment period not exceeding four years of Fair Work Inspectors, the Committee notes the Government’s indication that all Fair Work inspectors were reappointed during the years 2015–18, other than where they resigned from the agency. The Government also states that a Fair Work inspector may not be reappointed in instances where the Fair Work Ombudsman is no longer satisfied that the person is of good character. The FWO provides training and support to its Fair Work inspectors to assist them to demonstrate ongoing suitability in their role during each four-year appointment period. The Committee recalls once again that under the terms of Article 6 of the Convention, the inspection staff should be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. Therefore,the Committee requests once again the Government to provide information on the reasons for limiting the period of appointment of Fair Work inspectors, and to indicate the grounds for not reappointing a Fair Work inspector at the end of his or her appointment, including the meaning of “good character”. It also requests the Government to continue to provide information on the number of inspectors that were not reappointed and the grounds for any such decisions. In addition, the Committee requests the Government to provide comparative information on the periods of appointment, and grounds for non-appointment, for public officials performing similar functions, such as tax inspectors or police officers.

Article 18. Adequate penalties. The Committee notes that in 2018 observation the ACTU reiterated its previous observations concerning high levels of non-compliance with workplace instruments by employers, especially in smaller enterprises, and its claims that increased fines by the 2017 amendment to the Fair Work Act are not sufficient to deter non-compliance. The trade union also indicated that inspectors are reluctant to take enforcement action, particularly court action, against non-compliant employers.

The Committee notes the Government’s indication that, since the ‘Protecting Vulnerable Worker’ (PVW) provisions under the Fair Work Act 2009 came into effect in September 2017 and up to 30 June 2022, the FWO commenced 33 litigations using the PVW provisions, including eight litigations using the ‘serious contraventions’ provisions contained in section 557A of the Fair Work Act. In the same time period, the FWO secured penalties in each of the 15 decisions handed down by the court, totalling 2,442,147 Australian dollars. Moreover, from 1 July 2018 to 30 June 2022, there were 2,171 infringement notices issued. While noting the information already provided, the Committee requests the Government to continue to provide information on the number and amounts of penalties imposed, including information on instances of penalties imposed for “serious contraventions” of the Fair Work Act, and also on instances of any penalties imposed in connection with workers killed at work.

Articles 20 and 21. Publication and content of an annual report on the functioning of labour inspection services. Following its previous comment, the Committee notes the Government’s indication that, according to statistics kept by the Australian Bureau of Statistics, the FWO estimates it regulates approximately 12 million works and 2 million businesses across Australia. The Committee also notes the link to the relevant data of the Australian Bureau of Statistics, including the number of active businesses and the number of employed persons, disaggregated by industries and jurisdictions. The Committee notes the information provided by the Government which addresses its previous comment.