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

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

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Legislative reform process. The Committee notes the Government’s indication that numerous industrial relations reforms were adopted since its last report. The Committee notes, in particular: (i) the adoption of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022 (assessed in more detail in its direct request); (ii) the adoption of the Industrial Relations and Other Legislation Amendment Act, 2022 (Queensland) (assessed in more detail in its direct request); (iii) the adoption of the Human Rights (Workers Rights) Amendment Act, 2020 (Australian Capital Territory), which introduces section 27B to the Human Rights Act, setting out the right to work and other work-related rights, including the right to protection against anti-union discrimination in employment; and (iv) legislative reforms in government procurement (Australian Capital Territory) aimed at including fair and safe conditions for workers and improving employment standards in procurement contracts, including the right to collective bargaining. The Committee welcomes the objectives of the legislative reforms related to the Convention and hopes that their implementation will contribute to its full application.

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act (FWA). In its previous comment, the Committee requested the Government once again to review sections 186(4), 194 and 470-475 of the FWA, which impose restrictions on the content of collective bargaining by excluding certain “unlawful terms” from collective bargaining (any terms relating to the extension of unfair dismissal benefits to workers not yet employed for the statutory period, the provision of strike pay, the payment of bargaining fees to a trade union and the creation of a union’s right to entry for compliance purposes more extensive than under the provisions of the FWA). The Committee notes the Government’s indication that there have been no changes to these provisions. The Government adds, however, that the Secure Jobs, Better Pay Act amended the FWA to extend, in some aspects, the content of collective bargaining (sections 172A and 195(5), which confirm that “special measures to achieve equality” can form part of an enterprise agreement). While welcoming these amendments, the Committee observes that restrictions on the content of collective bargaining remain valid as per sections 186(4), 194 and 470–475 of the FWA and recalls the importance of leaving the greatest possible autonomy to the parties in collective bargaining to determine the content of such negotiations. The Committee therefore requests the Government once again to review these provisions, in consultation with the social partners, to align them with the Convention.

The Committee is raising other matters in a request addressed directly to the Government.