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

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

The Government representative expressed his Government's deep concern that it had been called before the Committee because there had been serious and fundamental flaws in the processes culminating in that situation. He would not address the observation of the Committee of Experts because it had been the result of a flawed process. While the Committee of Experts' observations were the basis of the Conference Committee's work, the observation on Australia in that case did not take into account the Government's submissions, which was extremely disappointing and completely inappropriate. As the observation was unbalanced and contained factual errors, it was a totally inappropriate and unacceptable starting point for consideration by the Committee.

At its 2006 session, the Committee had asked the Government to report to the Committee of Experts on the provisions of Australia's workplace relations reform legislation and its impact in law and in practice on its obligations under Conventions Nos 87 and 98. Responding to that request had been a mammoth task, given the magnitude of the legislative reforms in question, some of the largest in Australian history. The Government had made every effort to meet the very short timetable set by the Committee and kept the ILO fully informed of progress regarding the development of the report and the possibility of a delay in submitting it. On three occasions, between August and November 2006, the Government had written to the Office, and Government officials had met senior ILO officials in November 2006, again emphasizing the possibility of a slight delay in reporting. Remarkably, a detailed report had been provided in December 2006. However, it was regrettable that the Committee of Experts' observation did not take the information provided by the Government into account. His Government did not believe that it had been necessary or appropriate for the Committee of Experts to make observations on Australia's laws. The Committee of Experts had been prepared to defer the consideration of cases where relevant documents or reports had been received late and could not be examined with necessary care, due to lack of time. The Government could not understand why the Committee of Experts had not taken the same approach in its case.

The Government representative stated that the Committee of Experts' observation that the Government had not replied to the comments made by the National Tertiary Education Union (NTEU) was factually wrong. The Government's response to those comments had been provided to the ILO in mid-November 2006, and the Office had acknowledged that it failed to forward it to the Committee of Experts. Thus, a procedural failure had led to an error in the Committee of Experts' observation.

The Government representative stated that, in view of those failures of process, it would be inappropriate for the Conference Committee to engage in a substantive discussion on an observation which was critical of Australia without having considered the information provided by the Government. Having been in the public domain for more than four months, the observation gave the false impression that Australia had simply failed to provide information. That flaw could only be rectified by way of a new observation by the Committee of Experts, which would take the submission of the Australian Government into account. Australia remained willing and keen to explain its workplace relations laws to the Conference Committee and to discuss the ways in which those laws complied with international obligations. An appropriate course of action for the Committee would be to note that the Committee of Experts' observation was based on incomplete information and to refer the matter to the Committee of Experts for consideration at its 2007 session, at which time the Government's submission should be considered. Australia would be happy to appear before the Conference Committee in 2008, if necessary.

The Government representative rejected the view that, despite procedural flaws, the case was sufficiently important to warrant immediate consideration by the Committee. Australia was a country with high labour standards that had undergone 15 years of sustained economic growth. It was ironic that the Government had been criticized for implementing reforms that were central to the delivery of significant economic benefits, particularly to workers and employers. In that regard, the Government representative stated that Australia had the second highest minimum wage in relation to median earnings in the Organisation for Economic Co-operation and Development (OECD). Since the workplace relations reforms in March 2006, 358,700 new jobs had been created in Australia, of which 94.8 per cent had been full-time jobs. In May 2007, the unemployment rate stood at 4.2 per cent, its lowest level since November 1974. Wages had increased by 4.7 per cent in the 12 months after the reforms had come into effect. In conclusion, the Government representative stated that the failure of fair and proper process weakened the credibility of international labour standards, the supervisory procedures, and the ILO.

The Worker members pointed out that the Government was not justified in criticizing the report of the Committee of Experts. The Government had neither communicated the requested information within the prescribed deadlines so as to allow it to be analyzed; nor had the Government provided details as to the errors that it attributed to the Committee of Experts. The labour legislation of Australia, be it the initial act of 1996 (Workplace Relations Act) or the Workplace Relations Amendment (Work Choices Act), 2005, remained in blatant violation of Convention No. 98 in at least three respects: (i) it favoured individual rather than collective bargaining, just as it favoured bargaining at enterprise level rather than other forms of bargaining; (ii) it allowed employers to select their bargaining partners themselves; and (iii) it considerably restricted the number of matters open for negotiation.

Since 1996, the legislation provided for two types of agreements: collective agreements and individual agreements between a worker and an employer - known as "AWA" (Australian Workplace Agreements). The AWAs prevailed over collective agreements. Moreover, workers preferring to be covered by a collective agreement rather than by an AWA were exposed to discrimination at the hiring stage or in the course of employment. The situation constituted a flagrant violation of Articles 1 and 4 of Convention No. 98. The Amendment Act of 2005 had only aggravated the situation: an AWA could henceforth replace a collective agreement in force, which meant that the employer was completely free to impose the AWA on the workers; and the substitution of a collective agreement by an AWA was irrevocable, thus marginalizing the workers' organizations.

Under the Act of 1996, the multi-employer agreements, i.e. sectoral collective agreements, were subjected to previous approval by a public quasi-judicial body, which favoured agreements with a single employer and refused authorization to negotiate multi-employer agreements unless it could be demonstrated that this was in the public interest. The Workplace Relations Act provided for two types of "Greenfield agreements", those made with a union, and those made unilaterally by an employer. Such agreements can last for 12 months.

The Act of 1996 prohibited negotiating the payment of wages in respect of strike days. Yet, the Committee of Experts had always stated that, while the deduction of strike days from wages was not in itself contrary to the Convention, making such deduction compulsory infringed the principle of free bargaining. The Act of 2005 even expanded the number of matters that were henceforth excluded from bargaining; such as deduction of union fees at source; payment of wages for time spent in union meetings or union training; access of trade unions to workplaces; union intervention in case of conflict; remedy in case of abusive dismissal and subcontracting.

The Employer members recalled that the Committee of Experts had examined Australia's application of the Convention at its 2006 session because the Conference Committee had requested it to do so. Because the Government's report was received late, the Committee of Experts could not analyse the new legislation. It was therefore difficult to reach substantive conclusions in this case beyond those of June 2006, while keeping in mind that at the current session, Australia was discussed in relation to Convention No. 98. The Government had explained why it had not been able to comply with the conclusions of the Conference Committee and given that Australia had a long tradition of cooperation with the Committee, those explanations should be taken in good faith. The Committee should await the analysis of the Committee of Experts. The Employer members further noted the Government's willingness to appear before the Committee in 2008.

The Worker member of Australia recalled that the Committee was dealing with Australia for the third consecutive time. In the light of the fact that new laws had come into force in March 2006, the Committee had requested the Government, at its previous session, to prepare a detailed report to the Committee of Experts for examination at its November-December 2006 session. Regrettably, the Government's report had been submitted after the Committee of Experts had concluded its work. While time did not permit a comprehensive explanation of the substance and impact of the industrial relations laws, he argued that the Workplace Relations Act, as amended, continued to breach the Convention because it relegated collective agreements to an inferior status as compared to individual statutory contracts, the Australian Workplace Agreements (AWAs). The Act unduly restricted bargaining by limiting the subject matter of bargaining. The Minister responsible for workplace relations could declare the matter a prohibited bargaining matter. Once prohibited, parties faced fines of AUS$33,000 for bargaining on such matters. Prohibited content included, among others, unfair dismissal remedies, attendance at paid meetings of union members, leave to attend training conducted by a union, restrictions on the use of independent contractors or involving a delegate in a grievance process. The Minister could declare prohibited content retrospectively. If a clause in an agreement became illegal, there was no recourse. Clearly, the legislation did not provide the broad scope for bargaining envisaged under the Convention. Further, the new laws imposed new restrictions on multi-employer bargaining, and removed the requirement that authorization of a multi-employer agreement, in the limited circumstances in which it was permitted, or refusal of an application for authorization, be conducted in an open and transparent forum. Where a party pursued a common claim across two or more agreements, industrial action could not be authorized and any such action would not be protected. Strike pay was illegal and subject to sanctions. Moreover, employers were required to dock four hours' pay, even if employees only stopped work for ten minutes. Employers may insist on the signing of an AWA as a condition of employment or promotion, or accessing a wage increase. Those laws breached the Convention. The argument that Australia was not required to promote collective bargaining because such bargaining was already prevalent should be rejected. The extent of the coverage of different industrial instruments was irrelevant in terms of assessing the way laws functioned and their consistency with the Convention. A quarter of the workforce fell outside the minimum conditions available as a safety net. Thousands of workers had already lost the arbitration award conditions that originally had been intended to underpin AWAs. In any case, the rights and obligations under the Convention were not alleviated by the quality of labour standards and the favourable economic situation, as suggested by the Government representative, which was not relevant to the issue of compliance with the Convention. In conclusion, there was no right to bargain collectively, as the choice rested with the employer. The laws in question were not consistent with the promotion of collective bargaining as required by the Convention.

The Employer member of Australia stated that the Committee of Experts' observation was incomplete, meaning that the Conference Committee could not engage in a substantive discussion. It was even difficult to maintain the previous year's conclusions. In cases that involved complex questions of law, such as the current case, the Committee should base itself on full and correct facts in order to maintain its credibility. The Employer members were greatly interested in having an assessment by the Committee of Experts, taking into account any additional information the Government may wish to provide.

The Worker member of the United Kingdom said that the Committee of Experts' report gave a long list of matters explicitly excluded from collective bargaining and noted that these were traditionally issues which would be included in collective bargaining between employers and unions. These restrictions could only be seen as closely paired to the introduction of Australian Workplace Agreements (AWAs), which bribed workers to give up their union membership and rights in return for short-term benefits in increased pay or better conditions. These had emerged some years ago in the United Kingdom until they were banned by the European Court of Human Rights and outlawed as anti-union agreements in breach of Article 11 of the European Convention on Human Rights, which had similar protections to those in Convention No. 98.

In introducing AWAs, the Government first encouraged employers to move towards individually bargained contracts in order to exclude the influence of trade unions. The Government had now taken the next step and brought in measures to restrict even those employers who understood the benefits of collective bargaining. An employer who wished to develop strong and meaningful bargaining mechanisms would henceforth be restricted from doing so. The Government had included even more areas which could not be bargained on in future, many of which were related to trade union membership. For example, agreements which supported workers joining a trade union or those which facilitated payroll deduction of union dues or provided leave to join a trade union meeting were all outlawed. In particular, it was not possible for employers and unions to reach a collective agreement that restricted introduction of AWAs, either directly or indirectly.

The pursuit of collective bargaining was fundamental to the purposes of trade unions and a government which restricted collective bargaining was undermining the ability of the trade unions to represent members on workplace issues. This was a clear attack on collective bargaining and an attack on trade unionism in Australia.

The interests of trade unions could not be divorced from the interests of their members, and the purpose of collective bargaining was to establish fair, equal and transparent collective terms across the workplace. By limiting the scope of bargaining, the Government was limiting the extent to which Australian workers could benefit from improvements to the most basic statutory provisions which applied. It also hindered those employers who sought to promote strong collective relationships.

She concluded by saying that the provisions struck at the heart of the right to organize and bargain collectively, and requested the Committee to call upon the Government to amend the laws immediately.

The Worker member of the United States focused on the Committee of Experts' observation that giving primacy to AWAs over collective agreements was contrary to Article 4 of the Convention. In fact, she said, AWAs were coercive and experience in the United States had shown that employers' attempts to deal directly with employees and bypass the union were common and in some instances unlawful; yet this was one of the many devices that US employers used to defeat collective bargaining. The National Labor Relations Board had found the conduct of one particular company to violate the National Labor Relations Act, which forbade interference in the right of employees to bargain collectively. However, this employer's conduct would be perfectly legal in Australia. The Work Choices Act allowed not only to offer individual contracts but also to require such contracts as a condition for recruitment, even if the contracts offered inferior wages. This completely undermined the integrity of any collective bargaining process and contravened the Convention.

It was extremely troubling that workers in Australia had fewer protections than those in the United States. She therefore asked the Government to amend the law to bring it into compliance with the Convention.

The Worker member of Japan stated that the Committee of Experts' report had observed that the Work Choices Act breached Convention No. 98 in many aspects and she claimed that legislative amendments made in 2005 seemed to target union busting. She was concerned by the primacy granted to individual contracts over collective bargaining and that there was no obligation on an employer to negotiate a collective agreement with employees even if 100 per cent of the workforce were union members and sought a collective agreement.

Employers were using this legislation to undermine collective bargaining and promote individual contracts. More and more workers were being pushed into individual contracts and their working conditions were changed without appropriate compensation. According to the Government's own report, individual contracts were cutting pay and conditions; for example, 52 per cent of AWAs cut shift work loadings, 64 per cent cut annual leave loadings and 46 per cent cut incentive-based payments and bonuses. Furthermore, companies dismissed workers because they refused to sign the individual contract that would have cut their wages by over 25 per cent.

Referring to the refusal to bargain collectively, she said that an aircraft-related company had consistently refused to negotiate a collective agreement which led to a lengthy strike. But the Australian Industrial Relations Commission could only acknowledge that it had no power to assist employees if their employer refused to bargain collectively.

The Worker member of India observed with great concern that the Government had chosen to introduce retrograde legislation and blamed the spread of globalization as it affected the world's workers. The Convention had been reduced to a piece of paper: the legislation gave preference to individual contracts over collective bargaining and could even supersede the terms of collective agreements. Not only was this contrary to the Convention but was aimed at depriving the working class of a fundamental right to organize trade unions. The new legislation encouraged employers to impose AWAs and make collective bargaining almost impossible. Jobs could be conditional on AWAs which could be thrust upon workers. The result was more work and less pay. The Australian Confederation of Trade Unions (ACTU) was convinced that job security in the country would be reduced. Many workers had already lost protection from being dismissed unfairly since the new legislation came into effect in 2006; he was apprehensive that private sector employers with 99 or fewer employees were exempted from all unfair dismissal laws.

The Government had failed to comply with the recommendations of the Committee of Experts. He requested the Committee to take such steps as necessary to protect and strengthen the right of Australian workers to organize and bargain collectively.

The Worker member of New Zealand said that it was clear that despite the previous advice of the Committee of Experts, the Government had seriously compounded its breaches of the Convention by passing the further Work Choices amendments to its Workplace Relations Act. This was a travesty of ILO fundamental principles.

The primacy of individual employment agreements (AWAs) over collective agreements was contrary to Article 4 of the Convention, as the Committee of Experts had noted. Section 48 of the Workplace Relations Act specifically provided that a collective agreement had no effect while an AWA operated in relation to an employee; that there would no longer be a "no disadvantage test" thereby increasing the incentive to employers to use AWAs to reduce wages and conditions of employment; that award conditions could be displaced by specific provision in an AWA; and that an AWA could be required as a condition of employment.

The ACTU had observed that it "makes the purported ability of unions to bargain collectively on behalf of their members nugatory in any practical sense". But the Government argued that the Act did not promote one form of agreement over another.

He recalled that the Convention required governments to promote collective bargaining and collective agreements over individual agreements, but the Australian Government was doing the exact opposite through section 348.

He said that when similar legislation had been adopted in New Zealand in the 1990s, collective bargaining had been reduced by almost half and the extension of collective bargaining on an industry basis had come to an end. Enterprise collective bargaining and individual employment contracts had become almost universal, and union density had fallen from 56 per cent of the labour force to 21 per cent by 1999. A major contributing factor had been the primacy in law and practice of individual bargaining and employment contracts, and the restrictions and impediments imposed on unions seeking to engage in collective bargaining. The result had gone beyond the negative impact on wages and conditions of work; legal protection had been weakened and there had been a negative effect on productivity and occupational safety and health.

A similar effect was being seen in Australia where a Government survey showed that in a single three-month period, more than 1,000 workers a day were being transferred from collective agreements to AWAs. He found it ironic that, at a time when governments, including Australia, were reaffirming commitment to ILO principles as reflected in the Decent Work Agenda, the Government had moved legislation to compound serious breaches of the Convention. He said that the Government was displaying an almost contemptuous disregard for the Committee of Experts and that for it to claim that the Committee of Experts had got its jurisprudence wrong was not an adequate response. In all, the Government had demonstrated at the very least an indifference to the decisions of the Committee, and he called for strong conclusions.

The Government representative said that his Government should not be expected to make a response to a process that he considered flawed.

The Worker members requested the Office to provide clarifications on the exact status of the reports supplied by the Government, before they made their final statement.

The representative of the Secretary-General informed the Committee that there had been a long exchange of correspondence between the Office and the Government of Australia, beginning with a letter of 7 August 2006 sent by the Office in the framework of the follow-up to the conclusions of the Conference Committee of 2006, up until a letter by the Government dated 11 May 2007. The Government had informed the Office in a communication dated 29 November 2006 that it was unable to submit a report. This communication had been brought to the attention of the Committee of Experts and was reflected in the second paragraph of its report. A substantive reply containing the Government's report was finally received on 10 January 2007.

The Worker members were astonished that the Government had invoked the report's complexity to justify non-respect of the deadline set and considered this as a pretext to avoid dialogue with the Committee of Experts. The Government maintained that Australian legislation was neutral vis-à-vis collective bargaining while the Convention foresaw that collective bargaining should be promoted and encouraged. According to the Government, neither this Committee nor the Committee of Experts had understood the real sense of the Convention with respect to Australia, despite the fact that the Committee of Experts itself had certain Australian expertise. And yet it was clear that there was discrimination against trade unions, obstacles to collective bargaining and a disquieting primacy granted to individual contracts over collective agreements. In addition, an explicit prohibition existed for negotiations on a multitude of issues, which were heavily sanctioned if the parties negotiated them. Indeed, this case was of particular importance to the fundamental principles defended by the ILO and trade unions all over the world, which made it imperative to support the Committee of Experts' requests for modification of legislation that was out of line with the Convention. The Worker members deeply regretted that despite the requests made at last year's Conference the Government had not presented its report on time. Such a trick should not be used to postpone the discussion of a case by the Conference. A detailed report should be communicated by the Government before September this year, if not, the Worker members would ask for the establishment of a fact-finding mission to examine all legal aspects of the case, as well as the real impact of the new legislation on workers and on social dialogue in Australia.

The Employer members noted that the discussion had not been satisfactory as there was a need for an analysis by the Committee of Experts of the information provided by the Government. The Committee now had this information at its disposal. With the exception of any information on intervening legislation and information on the impact of the legislation, which concerned the implementation of the Convention in practice, the Committee of Experts would be in a position to make a more complete assessment of the situation. Thus, this Committee's conclusions should mirror the conclusions of the previous year with an additional request that the Government make sure to bring to the attention of the Committee of Experts all information on the current legislative situation in Australia, so that the latter could appreciate the full situation with regard to the application of the Convention.

The Worker member of France considered that the conclusions of this case should reflect the unacceptable and outrageous manner in which the Australian Government had treated the Committee of Experts, which was a far cry from the customary diplomatic manners in international organizations.

The Committee noted the statement made by the Government representative and the debate that followed. The Committee recalled that the Committee of Experts had been making comments for several years on certain provisions of the Workplace Relations Act (now as amended by the Work Choices Act), in particular those relating to the exclusion from protection against anti-union discrimination, the relationship between Australian Workplace Agreements (AWAs) and collective agreements. The Committee of Experts had also noted discrepancies between the Building and Construction Industry Improvement Act 2005 and the provisions of the Convention.

The Committee noted the Government's statement which did not address the substantive issues of the case, but rather referred to what it esteemed to be procedural errors in the examination carried out by the Committee of Experts, particularly in respect of its analysis of the application of the Convention without the benefit of the Government's report.

Noting that the Workplace Relations Act had been amended by the Workplace Relations Amendment (Work Choices Act), 2005, and that the Government's report on the latest amendments had unfortunately not been received in time for examination by the Committee of Experts, the Committee trusted that all relevant information relating to the application of the Convention, in both law and practice, would be transmitted to the Committee of Experts in time for it to examine the Government's report - received at the end of December 2006 - and any additional information.

The Committee once again requested the Government to pursue full and frank consultations with the representative employers' and workers' organizations regarding the impact of the Workplace Relations Act, as amended by the Work Choices Act, on the rights afforded by the Convention, in particular regarding the promotion of the effective recognition of the right to collective bargaining. It requested the Government to report to the Committee of Experts in this regard so that it could undertake a full appreciation of the application of the Convention in law and practice in its 2007 report.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

A Government representative said that since 1998 the Committee of Experts had published a number of comments on Australia's federal workplace relations legislation and the implementation of the Convention, which had been the subject of ongoing dialogue between the Government and the Committee of Experts. Given the lengthy consideration by the Government of the issues raised by the Committee of Experts, it was disappointing that more progress had not been made towards resolving them. He added that the comments of the Committee of Experts related to detailed technical issues regarding the interpretation of Australia's federal workplace relations legislation and the scope of the Convention. The Committee of Experts considered that Article 4 imposed an unqualified obligation to promote collective bargaining at the expense of all other forms of bargaining. He said that his Government did not agree with that view. Article 4 required measures for the encouragement and promotion of collective bargaining to be taken "where necessary" and such measures were to be "appropriate to national conditions". He emphasized, in this regard, that collective bargaining had been the norm in Australia for more than a century and continued to be so. The Workplace Relations Act did not give primacy to individual bargaining over collective bargaining, but provided for additional machinery to facilitate individual bargaining as an alternative to collective bargaining where the parties so wished. Under the Act, individual agreement making, like collective agreement making, was at the top of an award safety net of minimum wages and conditions negotiated through a process involving collective bargaining. Access to individual bargaining provided the parties with another choice. He indicated that there was nothing in the Convention to suggest that this was inappropriate. The promotion of collective bargaining did not entail restricting the availability of individual bargaining. It should be noted in this respect that Australian employees were predominantly covered by collective agreements, with 20 per cent of all Australian employees relying on the award safety net, 40.9 per cent being covered by collective agreements, and 39.1 per cent being covered by individual agreements. He added that Australia's system of conciliation and arbitration had a well-established and substantial element of collective bargaining, supported by several features. Firstly, participation in the formal system set up by the Act was voluntary, which meant that workers, employers and their representative organizations were free to negotiate and make agreements outside the formal system. Secondly, the Australian industrial relations system had been and continued to be predominantly based on collective bargaining. Thirdly, the system continued to provide machinery for the negotiation of collective agreements. Fourthly, Australia had mature, sophisticated and well-resourced trade unions and employers' organizations able to inform members of their rights and obligations and to represent these members in collective bargaining or individual bargaining with equal facility. Finally, an employee who chose to bargain individually could arrange to be represented by a bargaining agent, such as a trade union, during negotiations. He concluded that, as collective bargaining was the historical norm in Australia, the availability of individual agreements as a choice among several forms of bargaining instruments could not reasonably be considered to contravene the Convention. Accordingly, in the language of Article 4 of the Convention, the Act was consistent with Australian "national conditions" and Australia was not in breach of the Convention.

He added that the ongoing criticism by the Committee of Experts of individual workplace agreements illustrated its particular interpretation of the Convention and its opposition to individual bargaining arrangements. In its observation, the Committee of Experts had considered that the provisions of the Workplace Relations Act concerning individual agreements and collective certified agreements might operate to create disincentives for workers to join trade unions. In making this observation, the Committee of Experts had mistakenly believed that collective bargaining could only take place with union involvement. Under the provisions of the Workplace Relations Act, collective bargaining could and did take place between employers and their employees, whether or not they were union members, and whether or not unions were involved. Many of the comments of the Committee of Experts in relation to individual agreements implied that the latter were inherently anti-union. Specifically, the Committee of Experts considered that the offer and acceptance of individual agreements was an act of anti-union discrimination, in breach of Article 1 of the Convention. He emphasized that this was not the case. The parties might choose to enter into individual agreements and be active members of a trade union. Individuals could also make use of a trade union as their bargaining agent in negotiating an individual agreement.

As reflected in Australia's various reports to the ILO, the Workplace Relations Act provided protection against acts of anti-union discrimination. Account needed to be taken of the overlap between freedom of association provisions and the provisions of section 170CK of the Workplace Relations Act, which prohibited termination of employment on the grounds of trade union membership. Although the Committee of Experts considered that termination due to refusal to negotiate an individual agreement was not covered by the freedom of association provisions, he emphasized that this was not the case. While there was no express reference to this situation in the Act, the freedom of association provisions prohibited discriminatory action on the grounds that an employee was entitled to the benefit of an industrial instrument. Terminating the employment of an employee for refusing to negotiate an individual agreement was a breach of these provisions, the remedies for which included reinstatement and the payment of compensation. The freedom of association provisions also provided protection against dismissal or otherwise being prejudiced for engaging in union activities, consistent with Article 1. In conclusion, the Workplace Relations Act provided protection against anti-union discrimination through extensive provisions in accordance with Article 1 of the Convention.

He added that certain comments made by the Committee of Experts took little account of the context in which developments had occurred. One example was the reference made to the Container Terminals Case before the Australian Industrial Relations Commission (AIRC). The Committee of Experts had failed to explain that this was an unfair dismissal case involving a trade union official who had frequently absented himself from work. In this case, the AIRC had ordered the reinstatement of the employee in question. The Committee of Experts had also considered that the absence of protected action in pursuit of a multi-employer agreement amounted to anti-union discrimination. Once again, this was not the case. Agreements were not reached only as a result of industrial action. Where parties, including employers, could take protected action, they could still avail themselves of other remedies under the Workplace Relations Act if they considered they were discriminated against in relation to the negotiation of a multiple business agreement.

He reiterated that the Workplace Relations Act did not give primacy to individual bargaining over collective bargaining. It simply provided additional machinery to facilitate individual bargaining as an alternative to collective bargaining where that was what the parties wanted. His Government considered that individual workplace agreements played an important role in providing workplace flexibility and a greater range of agreement options for employers and employees. He called upon the Committee of Experts to reconsider its opposition to individual agreements in the light of the information provided and the arguments advanced concerning the interpretation of the Convention. He recognized that the matters raised by the Committee of Experts reflected the difficulties inherent in understanding the technical complexity of Australia's workplace relations framework, which was unique. His Government therefore stood ready to work with the ILO with a view to resolving outstanding issues by helping it understand Australia's industrial arrangements.

The Employer members thanked the Government representative for the information provided. They indicated that there were a number of aspects to the case. The first concerned what the Committee of Experts considered to be a lack of protection against the dismissal of certain categories of workers under section 170CK of the Workplace Relations Act, 1996. However, the Employer members considered that some of the comments made by the Committee of Experts on this issue needed to be further clarified before the matter could be pursued. They indicated that the heart of the case related to Article 4 of the Convention which, in the view of the Committee of Experts, appeared to overlap to a certain extent with Articles 1 and 2 of the Convention. However, it was the belief of the Employer members, based on the preparatory work for the Convention, that Articles 1, 2 and 3 of the Convention addressed the issue of the protection of the right to organize and protection against acts of anti-union discrimination, while Article 4 was more closely related to the promotion of voluntary negotiation. The terms of Article 4, which provided that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers' organizations and workers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements", offered a dual flexibility. This was based on measures that were both "appropriate to national conditions" and which were to be adopted "where necessary". This requirement meant that there had to be effective recognition of the right to collective bargaining, but as long as such recognition existed, it did not exclude individual or other types of bargaining, nor did it specify the level at which bargaining should take place. This provision was designed to be adapted to a broad variety of national situations in which bargaining took place at different levels and in different forms. In the view of the Employer members, the Committee of Experts was endeavouring, through its reading of Article 4, to impose a very narrow meaning on what was essentially a very flexible clause.

The Worker members thanked the Government representative for the information provided. The case of Australia was very clear.

In the first place, the Committee of Experts had noted that the Workplace Relations Act, 1996, did not seem to offer sufficient protection from acts of anti-union discrimination against workers who refused to negotiate an Australian workplace agreement and insisted that their conditions of work should be regulated by collective agreements. This discrimination could take place at the time of recruitment, during employment or in relation to dismissal and was contrary to Convention No. 98, particularly Article 1 (anti-union discrimination) and Article 4 (obstacles to collective bargaining). Firstly, with regard to discrimination at the time of recruitment, the Australian courts had found that there was no discrimination in a case in which an employer had made a job offer conditional upon the signature by the future employee of an Australian workplace agreement on the grounds that in that case there was no pre-existing relationship between the parties concerned. In this respect, the Committee of Experts had recalled that the protection provided for in the Convention covered both the time of recruitment and the period of employment, including cessation of the employment contract. With regard to discrimination during employment, the courts had once again found no anti-union discrimination in a case in which employees had been required to sign an Australian workplace agreement in order to receive a wage increase, thereby giving up their right to collective bargaining. The Committee of Experts recalled, in this regard, that Article 1 of Convention No 98 covered all acts which "otherwise" prejudiced a worker in any manner, and not only in relation to dismissal. With regard to discrimination in relation to termination of employment, the Workplace Relations Act, 1996, prohibited the dismissal of workers who refused to negotiate an Australian workplace agreement. However, broad categories of workers were excluded from the scope of the Act, and particularly, employees on contracts of employment for a specified period of time or a specified task, employees on probation or engaged on an occasional basis.

Secondly, the Committee of Experts had pointed out that the Workplace Relations Act, 1996, did not provide protection against antiunion discrimination in the case of the negotiation of multiple enterprise agreements. In this respect, the Government admitted that the provisions of the Act were intended to facilitate the negotiation of agreements at the enterprise or workplace level. The parties were nevertheless free to negotiate and conclude agreements covering several enterprises outside the formal system, if they so wished. However, according to the Committee of Experts, the choice of the level of negotiation should be for the partners themselves to decide and the parties were best placed to decide on the most appropriate level of negotiation.

Thirdly, the Workplace Relations Act, 1996, allowed an employer to conclude an agreement with one or more workers' organizations, where each organization had at least one member employed in the enterprise. The employers could therefore choose the union with which they wished to negotiate. In this respect, the Committee of Experts concluded that this procedure enabled employers to interfere in the functioning of trade unions, which was contrary to Article 2 of Convention No. 98.

Fourthly, the Workplace Relations Act, 1996, provided that an individual employment contract excluded the application of a subsequent collective agreement, even where the latter was more favourable to the worker. The Committee of Experts considered this to constitute antiunion discrimination.

Fifthly, certain provisions of the Workplace Relations Act, 1996, allowed workers to be represented by trade unions, but employers could easily avoid this by unilaterally modifying the scope and object of negotiations or by simply stating that they no longer wished to seek an agreement. In the view of the Committee of Experts, under the terms of this Act, a request for trade union representation could lead to the partial or total abandonment of negotiations, which implied that the Act dissuaded workers from seeking such representation. On the other hand, an employer could directly conclude agreements with its employees without going through trade unions. On this point, the Committee of Experts had recalled that effective protection needed to be provided for the right to trade union representation and that negotiations with non-unionized workers could take place only where there was no representative trade union in the enterprise.

Sixthly, the Workplace Relations Act, 1996, provided for the deduction of remuneration in the event of a strike. In this respect, the Committee of Experts felt that, even if it was not contrary to the Convention to deduct remuneration for strike days, it was incompatible with the Convention for the Act to impose such deductions in all cases. Indeed, in a system of voluntary collective bargaining, the parties should be able to negotiate on this point.

Seventhly, the Workplace Relations Act, 1996, provided that a new employer could choose the organization with which he or she wished to negotiate. The Act provided that any agreement could be applied for three years, during which period collective agreements were not applicable. According to the Committee of Experts, such agreements should only be concluded in special circumstances and should not last as long as regular collective agreements, which could not exceed three years.

The Worker members indicated that the Committee of Experts' observations were overwhelming. The Government should accept the recommendations of the Committee of Experts and amend the Workplace Relations Act, 1996. They urged the Government to provide a report containing detailed information on the measures taken to amend the Act and to request the Office's advice before adopting any new provisions.

The Worker member of France commended the work of the Committee of Experts, the conclusions of which were once again complete and precise, and allowed an understanding of the spirit and letter of the Australian labour legislation. With regard to the substance of the issue, it was disturbing to note that the provisions of the Workplace Relations Act, 1996, in practice violated the rights of workers to organize and bargain collectively. The Act had to be amended, especially considering the current economic situation, as it seriously challenged the mandate of the ILO. The discussion on the General Survey on hours of work had demonstrated the danger of using a flexible notion or concept in respect of labour standards. In that debate it had been recalled that, taking into account recent experience, especially in Europe, the promotion, at the request of certain employers and governments, of negotiation at the local, or even individual, level, commonly referred to as the "opt-out" clause, weakened the ability of workers to defend their rights. The promotion of negotiation at the enterprise or individual level, to the detriment of sectoral collective agreements, encouraged a form of blackmail in a context of increasing unemployment and precariousness. It was not infrequent to hear an employer say: "either accept my conditions, or I will subcontract the work or delocalize the enterprise". The consequences of the Australian labour legislation on the workers concerned, however, went even further. Indeed, it grouped together a wide range of conditions, resulting in the de facto denial of the right of workers to organize. This was the case when, in law, the promise of a job or pay rise was dependent on the employee renouncing her or his right to collective bargaining, which could then be used by the employer and interpreted as the worker having forever renounced the right to engage in union activities. According to the Government, nothing was compulsory. But what freedom did an employee have when isolated in the labour market and considered to be a simple commodity? According to information on the Australian workplace agreement provided to employees by employment agencies, workers could choose their work schedule. However, to what extent did an employee on her or his own have any choice other than to accept?

The Preamble of the ILO Constitution of 1919, recalled in the General Survey on hours of work, stated that "the regulation of the hours of work" was among the measures urgently required to improve conditions of labour. But for regulations to effectively take into account the needs of workers, they had to provide for collective bargaining. Collective bargaining, however, could only exist if workers were guaranteed freedom of association. The Australian Workplace Relations Act did exactly the opposite. This was the case when, under the Act, a collective action by workers to negotiate a sectoral agreement covering several enterprises was considered illegal. The Government had indicated that workers were free to negotiate sectoral collective agreements, but any action to demand such agreements could be considered illegal. This was a one-way concept of freedom. He concluded by urging the Government to recognize the legal basis of the comments of the Committee of Experts and the Conference Committee.

The Worker member of the United Kingdom recalled the discussion by the Committee in 1996 of a very similar case concerning the application of Articles 1 and 4 of the Convention by his own country, where trade unionists had been subject to inducements and pressures to relinquish the protection of collective agreements in favour of the total lack of protection provided by individual contracts. In that same year, the Australian Government had adopted its infamous Workplace Relations Act, constituting an import from his country that should have been immediately turned back. He recalled that in 1996 the Committee of Experts had noted that an amendment to the legislation in the United Kingdom prevented industrial tribunals from redressing situations in which employees who refused to give up the right to collective negotiation had been deprived of a pay rise and therefore raised significant problems of compatibility with the principles of freedom of association. The Committee on Freedom of Association had commented that such a provision could hardly be said to constitute a measure to encourage voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided in Article 4 of the Convention. The Committee of Experts had concluded that section 13 of the United Kingdom Trade Union and Labour Relations Act, 1992, was likely to result in a situation wherein collective bargaining would be easily and effectively discouraged and that the Act failed to protect the right of a union member to make use of the union's essential services, such as collective bargaining.

In that year, the Conference Committee had noted the insufficiency of the protection afforded by the legislation to workers against acts of anti-union discrimination. It had called upon the Government to reexamine the situation so that its law and practice gave unambiguous effect to the principles contained in the Convention, and particularly to guarantee respect for the protection against acts of anti-union discrimination and to promote collective bargaining.

The 1992 Act in the United Kingdom had been amended in 1999 to make it clear that action short of dismissal on grounds of union membership or activities did include acts of omission. Yet in 2002, the European Court of Human Rights had found in the Wilson/Palmer case that trade union law in the United Kingdom was still not compatible with Article 11 of the European Convention on Human Rights on freedom of association. In particular, the European Court had found that workers had the right not to be bribed by employers not to be union members, not to access the services of a union or not to be collectively represented by a union through collective bargaining. It had also ruled that union members should be free from discrimination on grounds that they made use of union services, including collective bargaining. The Employment Relations Act, 2004, had revised the law in the United Kingdom in the light of that judgement and in compliance with it.

He said that he had drawn attention to the 1996 discussion of the case of the United Kingdom for the very simple reason that all three of the ILO's key supervisory mechanisms had been here before and made their views very clear on precisely the matters that were now being discussed. The law and practice in Australia was therefore explicitly and knowingly in violation of Convention No. 98 and constituted a determined attempt to destroy the right to collective bargaining in the country, which gave true grounds for nightmares.

The Worker member of Australia said that it gave her no pleasure to represent the Australian workers, who were now being forced to watch the systematic dismantling of a civilized industrial relations system in which employees had rights. It was a shocking reality to know that this was a deliberate act by the Government of a democratic nation and to witness its impact on the lives of Australian workers. There was no pretence that Australian laws promoted collective bargaining, even when an overwhelming majority of employees had expressed the desire to stand up for each other and bargain collectively. Instead, it was the employer who decided whether bargaining would occur or an employee would be forced to sign an individual contract.

It was no exaggeration to state that there was no right to bargain collectively in Australia. It was now legal for the employer to make it a precondition of employment that an employee sign an individual contract. The effect was to prevent employees being covered by a collective agreement for up to three years. As noted by the Committee of Experts, such situations could amount to anti-union discrimination, contrary to Article 1 of the Convention, and could not be said to encourage and promote voluntary collective bargaining, as required under Article 4. Indeed, there was no question that Australian legislation was in violation of Convention No. 98, as it permitted employers to make the obtaining of a job, the obtaining of a benefit of employment, and the continuation of a job, dependent upon employees abandoning their right to bargain collectively. This was not an unintended consequence of Australian legislation. It was Government policy that individual bargaining should prevail over collective bargaining to the exclusion of collective agreements.

It was difficult to believe that a Government in a democratic nation could be so determined to dismantle collective bargaining. Nevertheless, it threatened universities and technical colleges with loss of funding unless they ignored the fact that their employees were organized and offered them individual contracts. The same was true for state government projects and private sector infrastructure projects which involved national Government financing. The Government did not prohibit collective agreements in universities, but insisted that every collective contract must contain a clause giving precedence to individual bargaining. It did the same within its own departments. The outcomes were becoming very clear as wages and conditions were driven down. All of these cases were in violation of Convention No. 98, because they failed to encourage collective bargaining, actively discouraged collective bargaining and restricted the autonomy of the parties to reach agreements independently and without interference by government. Moreover, where the parties at the workplace opted to conclude a collective agreement, they were constrained in what they could agree to. The law placed restrictions on both the content of agreements and the levels at which agreements could be pursued. In addition, a decision of the High Court last year has the effect that a number of other provisions have been determined to be outside the scope of lawful bargaining, including the voluntary agreement of employers to payroll deductions of union fees.

If the right to Collectively Bargain is not guaranteed as an unenforceable right, then Freedom of Association and the Right to Organize is similarly fictitious.

With respect to activities to advance the interests of members, the Australian laws are very restrictive.

For example, it has been found that, (once an employer has successfully signed all the employees onto individual agreements), a union no longer enjoys the statutory right to visit employees in the workplace, in order to hold discussions with the employees, regardless of union membership at that workplace. (ALDI Foods v NUW)

And, at the same time that the High Court decision last year limited the matters which may be included in an enforceable collective contract, it also limited the matters about which workers may take industrial action with immunity.

Multi-employer agreements were effectively subject to prior approval, as they could only be enforced if they met a public interest test. Australian law prohibited employers and employees from freely negotiating matters which, in the opinion of the Committee of Experts, should be left to the parties. For example, it was prohibited to negotiate strike pay and a law was currently before Parliament to prohibit the inclusion in collective contracts of provisions governing the right of entry of unions into workplaces.

Recent examples were provided highlighting cases where employees were dismissed for refusing individual contracts that reduced their pay significantly, workers who hold a formal ballot in support of collective bargaining and whose employer refused and began discriminating against union members. Recent academic research highlighting the impacts was mentioned.

For over a century, Australian labour law had been based on the assumption that the Government's powers were limited to settling industrial disputes through an independent process of conciliation and arbitration. Yet, the Government was now set upon shifting the very constitutional basis upon which it legislated. As the power of corporations prevailed, labour was coming to be defined through its relationship with the corporation and was being left with no independent status or dignity. The Government's recent announcements showed that it had no regard for its obligations under the Conventions that it had ratified and even intended to deny those obligations even further at a time when, paradoxically, it had sought and obtained membership of the ILO Governing Body. She could only conclude that it was high time to call the Government of Australia to account.

The Employer member of Australia expressed his total and strong support for all the statements made on behalf of the Government of Australia. He recalled that, as had already been pointed out, Article 4 of the Convention was subject to two important qualifications which were contained in the words "where necessary" and "appropriate to national conditions". It was clear that Article 4 required certain measures to be taken only where necessary or when appropriate to national conditions. In this respect, it was important to note that the Australian system of industrial relations was a hybrid system of bargaining and compulsory conciliation and arbitration. The whole system encouraged and promoted collective agreements between employers and employers' organizations and workers' organizations, while at the same allowing other forms of agreement, including individual agreements.

He emphasized that Article 4 of the Convention did not require the encouragement and promotion of one form of agreement to the exclusion of other forms of agreement, as the Committee of Experts appeared to believe. If Article 4 had so required, it was reasonable to expect that this would have been stated, in clear terms. In fact, an examination of the preparatory work carried out for this Convention showed that the flexibility provided for in Article 4 was intended and deliberate, and that there was no basis for the restrictive approach adopted by the Committee of Experts. The words "where necessary" had been added to the Office draft following a proposal made by the Australian Government; the words "appropriate to national conditions" had been added by a working party of the Conference Committee that drafted the Convention. He added that the Reporter of that Committee had said, in presenting his report to the members of the Conference, that "Articles 3 and 4 were drafted in terms designed to take account of the widely divergent conditions in various countries". In this respect, he reiterated his statement that the Australian system, taken as a whole, did indeed encourage and promote certain forms of collective agreement, while allowing other forms of agreement. There was no requirement in Article 4 to exclude these other forms of agreement, nor was there a requirement for every provision in the legislation to encourage and promote a certain form of agreement.

Finally, with respect to " Greenfield agreements", he pointed out that these related to a special form of collective agreement, which was common in the building industry, where a project might well start with a very small workforce, which could grow quickly to a large workforce, and then disappear with the completion of the project after a relatively short period of time. He asserted that the Committee of Experts' had constructed hypothetical argument that these agreements may be made for a period of three years, and that this potentially prejudiced the workers' choice of a bargaining agent for a considerable period of time. However, the Committee of Experts had ignored the fact that such an agreement could only be made with one or more organizations of employees entitled to represent the interests of the workers whose employment was likely to be subject to the agreement. They had also ignored the benefits to all concerned of the stability of such agreements. It was therefore difficult to understand how it could be argued that the legislative provisions did not comply with Article 4 of Convention No.98.

With regard to the comment of the Committee of Experts concerning the freedom of choice of the level of bargaining, he indicated that the possibility of industrial action to force the adoption of a particular waiver of bargaining would make nonsense of the concept of freedom of choice.

In conclusion, he reiterated his support for the statement made by the Australian Government, in particular with respect to the Committee of Experts' comments related to anti-union discrimination. It was clear from the Government's statement that the legislation did provide adequate protection in this respect, as required by Article 1 of the Convention.

The Worker member of Pakistan took note with appreciation of the observation made by the Committee of Experts on the application by Australia of Convention No. 98, concerning the obstacles faced in implementing the principles and basic right of collective bargaining and the need to amend the Workplace Relations Act, 1996. He questioned the interpretation made by the Employer members of Conventions Nos. 87 and 98, especially as it had been clearly stated by the Committee of Experts that the national legislation of Australia was in conflict with the Convention.

Coming from Pakistan, he had great respect for a country such as Australia, which was well advanced in terms of its democratic, social and economic development. He emphasized that, under the Convention, the Government should also respect the right of employers to freedom of association, and that Article 2 of Convention No. 98 clearly stated that "workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration". This meant that employers should not impose conditions on workers with respect to their right to bargain collectively. He added that many lacunae existed in the Workplace Relations Act which denied the right to collective bargaining to newly recruited workers and workers on probationary contracts, which amounted to an anti-union attitude.

Referring to Article 1 of Convention No. 98, he stated that the legislation in Australia constituted a disincentive to becoming a union member, that it did not protect workers against anti-union discrimination and that it did not promote collective bargaining. He hoped that the Government would bring its law and practice into conformity with the Convention, and would refer in this regard to the case of the United Kingdom, which had also been the subject of a discussion by the Committee.

The Worker member of New Zealand stated that he had followed with great concern the application of the Australian Workplace Relations Act, 1996, which was having the same negative impact on workers as the highly criticized Employment Contracts Act of 1991 in New Zealand, and which was perhaps even worse than the New Zealand legislation. The ILO had rightfully questioned the Workplace Relations Act because it was not in conformity with the provisions of Convention No. 98 and it undermined trade union activity and organization on several levels. It also severely deterred, rather than promoted collective bargaining, from the very beginning of a worker's career. In addition, collective membership and support was effectively denied in favour of individualized arrangements by forcing employees into the individualized Australian workplace agreement. The Workplace Relations Act, therefore, had a considerable impact in preventing collectivization and unionization.

This was illustrated by the fact that state sector employers, who were well aware of the possibilities under the existing legislation, had reportedly forced workers to declare that they would not join a union. In his view, this was effectively asking workers to contract out of fundamental human rights and he expressed concern that these cases might only be the tip of the iceberg, as workers might be too afraid to speak up.

He said that it was no coincidence that, despite the criticism, the Government had not taken any remedial action, since it was well aware of the impact of its policies. In his view, the Government was disregarding workers' rights in its desperation to destroy any form of political opposition, including Australian organized labour. The Government was very well aware that trade union membership in New Zealand had been decimated to the point that within a decade several long-standing unions had collapsed and overall union density had shrunk from 56 per cent to 21 per cent of New Zealand's wage and salary earners. The Government also knew that terms and conditions of employment for many workers previously covered by collective agreements had greatly deteriorated. Pay increases, penal rates, overtime rates - in fact genuine negotiations had become something of the past in New Zealand. More importantly, workers, especially non-unionized workers, had become less confident in themselves at negotiating with employers on a range of issues, whether or not they were included in collective agreements. Unions had become more narrow in their focus, moving away from being involved in wider employment and social issues on behalf of workers, in favour of being simple bargaining agents concerned with trying to survive by negotiating employment agreements in a hostile environment.

He emphasized that under this kind of legislation, decent work was impossible and tripartism and social dialogue would be a thing of the past, with workers becoming more vulnerable. The policies mentioned were the antithesis of the ILO's decent work programme and had to be challenged if the ILO was to be serious about decent work. Recalling that employment equity had suffered, as the New Zealand task force on Pay and Employment Equity (PAEE) had discovered that discretionary pay systems and an absence of collective bargaining fostered pay and employment inequity, he said that this would also be the immediate and ongoing impact of the implementation of the Workplace Relations Act in Australia. Moreover, he felt that even if more favourable legislation were to be adopted, as had been the case in New Zealand in 2001, significant damage would already have been done to the union movement in particular, and to workplace relations in general. Employers and workers would not easily embark once again on a constructive relationship based on mutual respect and an ability to engage in social dialogue.

Australia should be made to realize that this type of law was unacceptable to the ILO. However, the Australian Government appeared to have a different view, as it believed that the current Workplace Relations Act did not go far enough in denying workers' collective rights and it was drawing up new legislation. The Australian Government had also recently stated to the Governing Body that its record on Convention No. 98 was of no consequence to it, nor was it a source of embarrassment.

He concluded that this situation could not continue. It was time that the Australian Government was brought into touch with real democracy and fundamental rights. The Conference Committee should act decisively, and he urged the Australian Government to amend the Act immediately so that it complied with the requirements of Convention No. 98.

The Government representative thanked all those who had contributed to the discussion, although he indicated that he did not share all the views expressed during the debate. Moreover, a number of the statements made had been inaccurate and had gone beyond the scope of the comments made by the Committee of Experts. He reaffirmed the willingness of his Government to work with the Committee of Experts to help in gaining an understanding of the Australian industrial relations system and in resolving the issues raised in its comments.

The Employer members noted the divergent views expressed by members of the Committee. One of the issues that had been raised during the discussion concerned the protection afforded to certain categories of workers from dismissal on the basis of trade union activities. The Employer members recalled that two types of protection were provided by Australian legislation in relation to trade union membership, depending on the category of worker. The protection provided for under section 170CK of the Workplace Relations Act, 1996, applied to a wide range of trade union activities. The expression employed by the Committee of Experts in this respect, namely, that the sections "do not seem to provide adequate protection against anti-union discrimination", betrayed a certain caution. In the view of the Employer members, the Australian legislation afforded effective protection for the right to collective bargaining. They also considered that Article 4 of the Convention was an intentionally flexible provision and that nothing in it could be interpreted as limiting the type of agreement to be concluded or the level of bargaining. It would, therefore, be necessary for the members of the Committee to find common ground in a context of differing views.

The Worker members indicated that divergent legal views had been expressed in the discussions on the case of Australia. Some members were of the opinion that there was a violation of Convention No. 98, while others thought that it was a question of a difference of interpretation of the Convention. The Government representative had stated that the Workplace Relations Act, 1996, did not hinder the organization of collective bargaining. It was, therefore, important to recall that Convention No. 98 provided for the promotion of free collective bargaining, which was not the case in Australia. Referring to the comments of the Committee of Experts, the Worker members called on the Government to supply a report containing detailed information on the measures taken to amend the Workplace Relations Act, 1996, and to request the opinion of the Office before adopting new legal provisions.

The Committee noted the statement by the Government representative and the debate that followed. The Committee recalled that the Committee of Experts had been making comments for several years on certain provisions of the Workplace Relations Act, particularly in relation to 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 noted the Government's statement that there was an extensive system of collective bargaining and that individual negotiation was not given priority over collective bargaining, but that the system offered an alternative for both employees and employers. The Committee also noted the Government's statement concerning the complexity of the situation and its wish to continue a constructive dialogue with the Committee of Experts.

The Committee requested the Government to provide a detailed report to the Committee of Experts on all elements relating to the application of the Convention, in both law and practice, including the discussion held in the present Committee, taking into account all matters relating to the impact of the legislation on the effective recognition of the right to collective bargaining, and the measures adopted or envisaged by the Government. The Committee also requested the Government to provide copies of all draft laws that might relate to the application of the Convention. The Committee requested the Committee of Experts to examine the elements of the debate on this case. The Government should consider requesting the advice of the Office in this respect.

Individual Case (CAS) - Discussion: 2000, Publication: 88th ILC session (2000)

A Government representative stated that the Government was surprised that this Committee, given its charter to examine the more serious matters raised by the Committee of Experts, sought to examine observations raised by the Committee of Experts on his Government's application of Convention No. 98. In his Government's view, the observations of the Committee of Experts went to technical issues regarding the interpretation of national legislation. To enable this Committee to consider these technical matters, he wished to provide some background to Australia's somewhat unique labour laws.

For nearly 100 years, Australia had had a system of conciliation and arbitration which, while compulsory, was intended to, and had in practice, maintained a substantial element of collective bargaining both within and outside the formal systems established by legislation. Traditionally, collective bargaining took a number of forms:

-- Pure collective bargaining without recourse to federal or state industrial tribunals. This was formerly quite common in remote locations but the advent of rapid travel and communications had led to its decline.

-- Enforceable awards of industrial tribunals made "by consent", where the parties entered into negotiations and reached agreement on matters in dispute between them and had presented the resultant agreement to the tribunal to be formalized as an award.

-- Awards of industrial tribunals made by arbitration and covering any matters not already agreed upon by the parties. The resultant award would be characterized as the product of arbitration but was, in a very real sense, the product of a process of collective bargaining.

-- The negotiation of "over-award" terms and conditions. It had never been permissible to derogate by common law agreement from award standards set by consent or arbitration, but it had always been permissible to treat those standards as minima and negotiate to improve upon them (this had been and remained a common feature of Australia's industrial relations).

The ILO's supervisory bodies had never found these historical aspects of Australia's system of industrial relations to be in breach of the Conventions concerning freedom of association and collective bargaining in any fundamental way. New federal laws had been introduced from the beginning of 1997 by way of the Workplace Relations Act. In 1997, in its report on Australia, the Committee of Experts stated "that it is obvious that the impact of legislation will not be fully clear for several years. The role of the Industrial Relations Commission will be crucial in this development. It is important that such natural evolution be carefully monitored to ensure that the spirit of the Convention is maintained. The Committee would welcome regular reports on future developments". The Government had provided such reports, explaining fully the operation of the system. The observations brought to the attention of this Committee relied on the Committee of Experts' interpretation and not that of the courts. Unfortunately, these observations substantially ignored the material provided by the Government and, in a number of respects, the interpretations drawn were clearly wrong or not sustainable. In taking such a strong position, the Government representative drew the Committee's attention to two of the matters raised by the Committee of Experts in its observations, by way of example.

Firstly, in its observation, the Committee of Experts recommended that the Government take measures to amend section 170CK of the Workplace Relations Act to ensure that remedies under this section were available to all employees. The observation was based on the premise that section 170CK offered broader protections than part XV of the Workplace Relations Act. Although the Committee had noted the Government's point that persons excluded from a remedy under section 170CK of the Workplace Relations Act could obtain a remedy under part XVA, its suggestion that the protections available under part XVA were fewer than those contained in section 170CK of the Workplace Relations Act was fundamentally wrong. While the explanation was technical in nature, it was necessary to go into some detail for this Committee's consideration. Section 170CK of the Workplace Relations Act applied only where a worker's employment had been terminated at the initiative of his or her employer. The only remedies that the Federal Court could provide to a worker were reinstatement and compensation, and any other orders that the court thought necessary to remedy the effect of the termination. Section 170CK did not apply to workers who were not in an employment relationship -- that was, independent contractors. In contrast, part XVA provided protections to a broader group of people. As well as offering protections to employees, part XV also offered protections to workers who were not in an employment relationship. Unlike section 170CK, part XVA applied to a far broader range of conduct and situations concerning freedom of association and victimization in employment generally. Part XVA applied to actual, as well as threatened, conduct. For example, part XVA prohibited an employer or a principal from acting prejudicially towards an employee or independent contractor (or threatening to do so) because that employee or independent contractor was a member of a union. Part XVA also safeguarded the right of a worker to join a union of his or her choice. Its provisions prohibited an employer or principal, or another union, from acting prejudicially towards an employee or independent contractor, merely because that employee or independent contractor was a member of another union. Part XVA also offered protection for those employees who wished to bargain collectively, and this had been demonstrated in the interpretation of part XV by the Australian courts.

The second issue that the Government representative wanted to cover concerned Article 4 of Convention No. 98. The Committee had reiterated its view that the Workplace Relations Act gave primacy to individual over collective relations through the procedures for Australian Workplace Agreements (AWAs). AWAs were agreements made between employers and individual employees. His Government reiterated its view that the provisions concerning AWAs must be considered in the context of the Australian industrial relations system as a whole and when that was done the provisions in question would be seen to comply with the Convention. The speaker noted that the Committee of Experts did not say the Act was discouraging or inhibiting collective bargaining. Rather, it said that the Act did not promote collective bargaining. This was because of the view the Committee of Experts took of the provisions concerning AWAs. His Government noted, however, that the Act continued to provide for collective bargaining as well as for AWAs. The Act, and its predecessor, had always provided for collective bargaining. The result of that collective bargaining had been either an award made by the Australian Industrial Relations Commission or an agreement approved by the Commission. In his Government's view, the provisions concerning individual agreements did not detract from those provisions of the Act which had previously been accepted as complying with the Convention. It was true that the Act now provided additional machinery to facilitate individual bargaining as an alternative to collective bargaining where that was what the parties wanted. His Government believed that, having regard to national conditions in Australia, this was consistent with Article 4 of the Convention.

In this regard, his Government noted that Article 4 did not impose an unqualified obligation to promote collective bargaining. Article 4 required measures for the encouragement and promotion of collective bargaining to be taken where necessary and that such measures were to be appropriate to national conditions. His Government drew attention to the following features of the Australian industrial relations system:

-- at the federal level, Australia had a formal industrial relations system for almost a century and at the state level for longer than that;

-- participation in the formal system was voluntary: workers, employers and their representative organizations were free to negotiate and make agreements outside the formal system;

-- the formal system had and continued to be, based on collective bargaining and, AWAs must be underpinned by awards. The ILO had accepted for many years that awards were instruments made through a process of collective bargaining;

-- in the terms of Article 4, the system continued to provide machinery for the negotiation of collective agreements while also providing for individual bargaining for those who did not wish to bargain collectively;

-- there were penalties for coercing a person to enter into an AWA;

-- collective bargaining remained the norm in Australia -- almost 2 million employees were covered by collective agreements made under the Act, compared with approximately 90,000 employees covered by AWAs;

-- if the number of employees covered by awards was taken into account, then some 6 million Australian workers were covered by arrangements made by collective bargaining compared with 90,000 covered by individual agreements;

-- Australia had mature, sophisticated and well-resourced trade unions and employer organizations able to inform members of their rights and obligations and to represent their members in collective bargaining or individual bargaining with equal facility;

-- an employee who chose to bargain individually could arrange to be represented by a trade union during negotiations.

Against that background, his Government maintained that, in the language of Article 4, national conditions in Australia meant that the current legislation was consistent with the Article. His Government found support for that view in the preparatory work for Convention No. 98. The text of Article 4 which emerged from the first discussion, referred to measures to "induce" the social partners to engage in collective bargaining. During the second discussion, the word "induce" was replaced by the words "encourage and promote" which had a somewhat different connotation. It was clear that in adopting those words, the text of Article 4 substantially followed a draft proposed by the Government member of the United Kingdom during the second discussion of Article 4. The preparatory work contained the statement of the representative of the Government of the United Kingdom who stated that "the object of this Article should be to lay down the obligation to encourage the progressive development of collective bargaining, having regard to the actual conditions of the country in question". He suggested a change of terminology which seemed to him more appropriate to the object in view. He therefore proposed, as a sub-amendment, the following draft of Article 4: "Measures shall be taken as appropriate and necessary to encourage and promote the progressive development of negotiation between employers and employers' organisations on the one hand, and workers' organisations on the other, with a view to the regulation of terms and conditions of employment by means of collective agreements." The representative of the United Kingdom had referred to "the actual conditions of the country in question". The actual conditions in Australia made it unnecessary to continue to promote and encourage collective bargaining. As explained earlier, the reasons for this were presented earlier by the speaker.

The Committee of Experts stated that the Workplace Relations Act gave primacy to individual over collective relations. That was true only to a very limited extent and, in any case, was largely a matter over which the parties had control. An AWA would prevail over a collective agreement only where either: the collective agreement expressly permitted the AWA to prevail; or the collective agreement was made while an AWA was still in operation and had not passed its specified expiry date; or the AWA was made after the collective agreement had passed its specified expiry date. In all other circumstances, the collective agreement would prevail; that was: a collective agreement would prevail over an AWA made during the life of the agreement, and which was inconsistent with the agreement, unless the agreement expressly permitted an inconsistent AWA to prevail; or a new collective agreement would prevail over an existing AWA that had passed its specified expiry date.

Those provisions, in effect, gave the parties control over whether an AWA would prevail over a collective agreement or vice versa. In his Government's view, they could not be said to give individual agreements primacy over collective agreements except where that was the wish of the parties.

It should also be noted that AWAs were subject to the so-called "no disadvantage test". This meant that an AWA must be tested against an award or other law of the Commonwealth or a state that was relevant to the employment of the worker to be covered by the AWA. With some specified exceptions, the AWA must not result in a reduction in the overall terms and conditions of employment of the employee as provided for in the relevant award or other instrument.

In summary, under the Workplace Relations Act:

-- collective bargaining was provided for;

-- collective bargaining continued to be the norm in Australia;

-- a substantial majority of Australian workers were covered by collective agreements;

-- a worker negotiating an individual agreement might be represented by a trade union;

-- as a general rule, an individual agreement could not disadvantage a worker by reducing the terms and conditions of employment that workers would otherwise be entitled to.

In those circumstances, his Government believed that the provisions of the Act concerning individual agreements were consistent with Article 4 of the Convention. As the speaker had stated earlier, these and other matters raised in the observations of the Committee of Experts were technical in nature, their understanding requiring a clear knowledge of Australia's unique industrial arrangements. His Government agreed with the 1997 observation of the Committee of Experts that the "natural evolution" of Australian laws be monitored. In that regard, the Government would continue to report on all relevant Conventions. It did record, however, that it was disappointed that such dialogue to date had been through the publishing of observations rather than the alternative, and in his Government's view, more appropriate, direct request approach.

The Worker members indicated generally that Convention No. 98 was not about tolerating collective bargaining but promoting it. In 1998, some members of this Committee had criticized the Committee of Experts for having made its observations too quickly without having all the relevant information and in particular, the observations of the Government. Two years later, in addition to the comments of the Australian Chamber of Trade Unions (ACTU), the Australian Chamber of Commerce and the Government's detailed observations, the Committee of Experts had made its comments based on the detailed discussion that took place in this Committee two years ago, the decisions of the Australian Industrial Relations Commission and the Federal Court of Australia, the further comments of the ACTU and the Government's reply thereto. Finally, the tripartite Committee on Freedom of Association had issued relevant conclusions and recommendations (Case No. 1963) at its March 2000 meeting (320th Report of the Committee on Freedom of Association, paras. 143-241). As a result, nobody could claim in this Committee that the discussion was not taking place on a solid basis.

A number of issues were raised by the Committee of Experts in its observations this year. First of all, it had considered that there was insufficient protection for workers against anti-union discrimination based on trade union membership and activities. The Committee of Experts had thus concluded that the exclusion (or potential exclusion) of these workers from the protection of the Workplace Relations Act, 1996, remained problematic and had accordingly recommended that the Government amend the Act. The Committee of Experts had also considered that there was inadequate protection for workers against discrimination based on the negotiation of multiple business agreements and continued to have concerns regarding the clear wording of the Act, which excluded the negotiation of multiple business agreements from being considered as "protected action". The Committee of Experts had requested the Government to amend the Act accordingly.

Furthermore, the Committee of Experts had previously expressed concern over the following issues: that primacy was given to individual over collective relations through AWA procedures; that preference was given to workplace/enterprise-level bargaining; that the subjects of collective bargaining were restricted; and that an employer of a new business appeared to be able to choose which organization to negotiate with before employing any persons. Having closely considered the Government's observations, the Committee of Experts remained of the view that the Act gave primacy to individual over collective relations through the AWA procedures. Furthermore, it remained of the view that preference was given to workplace/enterprise-level bargaining where the Act provided for collective bargaining. The Committee of Experts had therefore once again requested the Government to take steps to review and amend the Act to ensure that collective bargaining would not only be allowed, but encouraged, at the level determined by the negotiating parties.

The Worker members assumed that the members of the Committee of Experts were competent and impartial, yet the Government rejected both the observations and the recommendations of the Committee of Experts, just as it did two years ago. In 1998, the Government had said that some of the concerns expressed by the Committee of Experts appeared to have been based on a misunderstanding of the legislation. The Government then had been very confident that, viewed in the light of their proper context, the arrangements criticized by the Committee of Experts would not detract from the provisions in the Act which promoted and encouraged collective bargaining. Basically the Government was stating what it had stated two years ago. This point brought the Worker members to address the issue of how this case had been dealt with by the Government. The Worker members explained that the ILO's supervisory system was characterized on the one hand by careful, impartial, independent, objective and legal analysis and interpretation of all relevant points by a group of eminent experts in labour law from all over the world, including from Australia; and on the other hand, by constructive tripartite discussion and collaboration, not necessarily purely of a legal nature in this Committee, in order to contribute to the finding of solutions for problems identified by the Committee of Experts. Indeed, this was in line with the expression "dialoguer pour progresser" as was often said by the former Belgian spokesperson for the Workers' group, Mr. Jef HOUTHUYS.

Two years ago the Worker spokesperson had expressed concern about the tone and approach of the Australian Government with regard to dialogue in this case. That tone was polemical and inflexible and did not suggest any openness to different viewpoints and opinions than the Government's own. The Worker members had heard the same tone and approach today and they deeply deplored it. The Worker members were confident that the Committee of Experts had made an extra effort in understanding the Australian case over the past two years. They were also confident that the Committee of Experts had in particular sought the experience, the insight and the intellect of its Australian member who probably knew the situation in her own country well. They therefore could not accept the argument that the Committee of Experts had not understood the Australian context correctly. Nor could they understand the reaction of the Government. In any event, if the Government did not do anything, the Committee of Experts would repeat its observations as long as there was no change in the situation. Moreover, if the Committee on Freedom of Association had to issue decisions in cases similar to Case No. 1963, it would probably also reach the same conclusions and recommendations. This would bring the Government and the supervisory system to an unfortunate deadlock, which would have serious consequences for the system as a whole.

Since the Worker members were seeking ways and means for the Government to put an end to this deadlock, in this respect the Government could seek out comparisons in other countries' approaches, like New Zealand, which had tried similar policies in the recent past but which was re-examining them now. It was important that the Government seek some contact or collaboration with the Office, preferably in Australia. The results of this sort of contact of cooperation could help all parties to analyse the situation in a dispassionate way. This was the appeal of the Worker members, and they sincerely hoped that the Government would show at least some goodwill in accepting this modest and careful proposal.

The Employer members noted that this case had been discussed in the Committee in 1998 but that the discussions would be different this year since there were quite a few differences with regard to the information available. Referring to the comments made by the Committee of Experts this year, they noted that different aspects were raised. Firstly, the question was raised with respect to the exclusion or potential exclusion of certain categories of workers from protection against dismissal based on trade union membership and activities. They noted the explanations given by the Government to the effect that there were two different types of provisions relating to anti-union discrimination and that the worker who was not covered by one of these provisions would automatically be covered by the other provision. They further noted that the Committee of Experts considered that the scope of the two anti-discrimination provisions was sufficiently different, in particular since a protection provided under section 170CK of the Workplace Relation Act, 1996, applied to a wider range of trade union activities, and that the exclusions from the protection under that section remained problematic. The Employer members indicated that this comment was not very clear. They noted that the Committee of Experts normally was very specific in naming violations of the Convention; perhaps it was exercising caution in this instance.

With regard to discrimination based on the negotiation of multiple business agreements, they stated, based on the wording of the comments by the Committee of Experts, that the latter had not detected a clear violation of the Convention on this point either. It was surprising however, that the Committee of Experts had not requested information concerning the impact of the relevant provisions in practice, for it was of crucial importance to ask for such information in the event that there was disagreement on the protection provided by such provisions. The request for additional information in order to ascertain the compatibility of national practice, and not only legislation, with the Convention was an important element of the supervisory machinery. In this context, the Employer members noted the Government representative's statement that the Committee of Experts had not given adequate consideration to the court decisions on these issues. They emphasized the importance of court decisions providing a realistic picture of the impact of provisions in practice.

The second issue of concern in respect of the Workplace Relations Act, 1996, raised by the Committee of Experts, concerned the primacy given to individual over collective relations through the AWA procedures, which had not promoted collective bargaining, as well as the preference given to workplace/enterprise-level bargaining. In this respect, the Employer members recalled that in many countries enterprise-level bargaining was preferred to sectoral-level bargaining. However, this situation had not been criticized by the Committee of Experts.

The Employer members then referred to the position of the Committee of Experts that Convention No. 98 should promote collective bargaining. In this regard, they recalled their initial statement in the general discussion in respect of globalization where they had emphasized new mega trends and the phenomena of the increase in individual, more targeted, solutions and the rejection of a collective approach to problems. This could be seen as one of the several trends emerging as a result of globalization. The issue was therefore not one of whether preference was given to workplace/enterprise-level bargaining over industry-level bargaining, but whether or not workers could choose freely the level at which negotiations with the employers could take place. Moreover, in general, individual agreements should be allowed if workers and employers had agreed on this point. Hence, the Employer members had not noted a violation of the Convention in this respect. They further referred to Article 4 of the Convention according to which national conditions should be taken into consideration in the implementation of the Convention. Hence, Article 4 of the Convention did not give preference to collective agreements over individual agreements or sectoral-level bargaining over enterprise-level bargaining.

Regarding the issue of strike pay as a matter for negotiation, the Employer members recalled a fundamental principle of civil law concerning "no work no pay". However, they pointed out that the right to strike was not to be dealt with under Convention No. 98, but under Convention No. 87. They therefore considered that this particular issue had been inappropriately raised in the context of Convention No. 98, the aim of which was to promote voluntary collective bargaining.

Regarding the reference made by the Worker members to the Committee on Freedom of Association (CFA), the Employer members recalled that it was not the mandate of the CFA to interpret Conventions.

In conclusion, the Employer members considered that still more information was needed with respect to the practical implementation of the provisions which had been the subject of the Committee of Experts' comments. To this end, dialogue and contact with the Government should be continued in order to assess practice in the country. On the basis of more information, this interesting case could be reviewed at the Committee's next session.

The Worker member of Australia commended the Committee of Experts on its detailed analysis of this case, noting that the expertise, impartiality and competence of the Committee of Experts was widely accepted. He was therefore concerned by the response of the Australian Government to the Committee of Experts' comments. At the time that these became public, the Government issued a media release rejecting the findings of the Committee of Experts and questioning the Committee of Experts' integrity. The Government had accused that body of ignoring information provided, then accused it of ignorance. He cited the statement made by the Australian Government in the media release that "in requiring the Australian Government to amend its legislation, the ILO needs to realize that it is the Federal Parliament, elected by the Australian people, who decide Australian law -- and not the ILO". The speaker raised these issues because he considered that the Committee was facing a potentially serious breakdown in the supervisory system, since here was a Government which apparently did not accept the integrity of the Committee of Experts and did not understand the supervisory processes. He cautioned that the Government's response would need to be taken into account in drawing up the conclusions of the Committee.

The Worker member noted that, in ratifying Convention No. 98 and in undertaking to follow the principles set forth in the 1998 Declaration, which include the principles of the right to organize and to collectively bargain, the Australian Government undertook to encourage and promote the principles of the Convention. Australian legislation did not comply with the essential requirements of the Convention for a number of reasons. First, employers alone were able to determine the level at which collective bargaining could take place. Lawful industrial action was only available in support of single-enterprise bargaining and not collective bargaining situations across multiple workplaces. Any action on the part of workers to defend their rights across multiple workplaces was unlawful. Moreover, individual agreements were given primacy over collective agreements. The speaker noted that, two days ago, a government agency had stated that individual agreements "could override award provisions". He clarified that award provisions were in fact collective agreements. He considered this to be a deliberate strategy for the promotion of individual agreements, noting that the agency did not have either a strategy, plan or budget to promote collective bargaining as required by the Convention. It was therefore clear that the preference of the government agency was for individual agreements. The Committee of Experts had therefore correctly determined that the Government was not in compliance with the Convention.

The speaker expressed his concern at the gap in understanding of the supervisory processes between the Committee of Experts and the Australian Government. In light of this divergence, he agreed with the Employer members' suggestion that, to further a spirit of dialogue and cooperation and to provide an opportunity for increased understanding between the ILO and the Government, serious consideration be given to having the ILO conduct a visit to Australia. Such a visit might provide a way forward and permit the Conference Committee, the Committee of Experts and this Office to better comprehend how the legislation was being applied in practice in the country.

The Employer member of Australia expressed his support of the statements made by the Employer members and the Government representative. He agreed with the Government representative that the Committee of Experts was mistaken in its understanding of section 170CK of the Workplace Relations Act, 1996. Noting that the Government had already provided detailed explanations on this point, he hoped that the Committee of Experts would take these clarifications into account. He also concurred with the Government's statements on the situation in Australia relative to collective bargaining and urged the Committee of Experts to take those statements into consideration. The Australian labour relations system had traditionally relied on collective negotiation.

It was not particularly useful to examine the labour legislation of a particular country without placing it in the context of the labour relations system as a whole. Noting that Australia had a unique labour relations system, he pointed out that it rested on legislation adopted at both the federal and state levels. Australian labour legislation was based on certain basic principles, some of which continued to apply in full and some of which had been modified. He focused on three aspects of this legislation. First, workers continued to enjoy full freedom of association rights and almost full protection against intrusion into their privacy regarding their membership, through the Australian system of voluntary registration. Second, there were restrictions on the right to strike and lock-outs and workers or employers taking unlawful action in this regard were subject to prosecution. Finally, disputes between employers and workers that were not resolved through collective negotiation would be subject to legally binding arbitration at the election of either party. The speaker noted that the system was in a period of transition, moving towards a less centralized labour relations system and less regulated system, but the old system was still in effect.

The Employer member disagreed with the Committee of Experts' findings in certain respects, stating that it had failed to understand Australia's system which was in transition, had failed to place its comments on specific provisions within the context of the legislation as a whole, had sought to impose its own interpretation of the legislation and had failed to understand certain portions of the legislation. He noted that Australia's labour relations system was no different from that of other countries in that it sought to strike a balance between the interests of employers and workers. The important issue was the manner in which that balance was struck.

In conclusion, he noted that all the speakers had generally admitted that this case involved complex issues and detailed legislation of difficult interpretation. Accordingly, he believed that there was room for continuing dialogue with the Committee of Experts and the Conference Committee. An ongoing dialogue should take place on the issues identified and additional information should be sought and considered.

The Worker member of Finland supported the statements made by the Worker members as well as by the Worker member of Australia. He expressed his surprise that an industrialized and developed country like Australia had not met its basic obligations under the Convention, particularly with regard to collective bargaining. His comments focused on the Australian Workplace Agreement, noting that the Australian case bore interesting similarities to the situations of the United Kingdom and New Zealand in the 1990s. In the case of the United Kingdom, legislation had been introduced limiting the rights of trade unions to bargain collectively. In New Zealand, the enactment of the Employment Contracts Act had reduced the coverage of collective bargaining agreements. He considered that the Australian legislation had a similar effect in that the AWA gave precedence to individual agreements over collective agreements. Under the Workplace Relations Act, 1996, an AWA, which was essentially an individual agreement, took precedence over collective agreements in the particular sector concerned. The AWA could not be displaced, even if the collective agreement established terms and conditions of employment that were preferential to those contained in the individual agreement.

Citing a study on AWAs conducted by the Australian Council of Trade Unions (ACTU), he stated that it demonstrated the negative effect of AWAs on workers. Under the Australian legislation, employers could apparently give preferential treatment to workers who agreed to regulate the terms and conditions of their employment under individual agreements. Some jobs in Australia were in fact being advertised as AWA-only jobs, which prevented workers from collectively bargaining at all. In light of the ACTU study and other information available, it was clear that the Australian legislation was not in compliance with the requirements of Article 4 of the Convention. He characterized the legislation as a short-term solution that did not serve the interests of either employers or workers. The provisions of the legislation should therefore be amended as requested by the Committee of Experts to guarantee the encouragement and promotion of collective bargaining. He expressed the hope that the Government would soon be able to report progress in this regard.

The Worker member of New Zealand cited, as a contribution to the consideration of the Australian case, the Employment Contracts Act enacted by her country in 1991 as an example of the negative impact that the Australian legislation would have on workers. The Employment Contracts Act did not promote collective bargaining and favoured individual over collective relations. The dramatic negative effect of this legislation on New Zealand workers had resulted in the most vulnerable workers receiving the least protection in the employment relationship. Those workers in less skilled jobs were most affected and the legislation had had a disproportionate negative impact on the indigenous Maori and Pacific Island people, women and the young, who were concentrated in lower-paid, part-time and precarious jobs. The promotion of individual contracts in New Zealand had also undermined other basic ILO principles such as the standards on equality of opportunity and treatment. In 1998, the UN Committee on the Convention on the Elimination of Discrimination Against Women, considering New Zealand's situation, expressed serious concern that the emphasis on individual rather than collective agreements in the Employment Contracts Act was a major disadvantage to women in the labour market because of their dual work and family responsibilities.

She cited the problem of cleaners and supermarket workers forced to work family-hostile split shifts for very low pay as well as figures reflecting a decrease in real wage rates from 1987 to 1997. In some cases real income decreased by 11 per cent and in other cases up to 33 per cent. With regard to young workers, they reported being offered inferior individual contracts on a take-it-or-leave-it basis without being given the opportunity to seek the advice of a third party. Barriers to the right to organize had reduced union membership and effectiveness in various sectors and, as a result, had reduced the effective representation of workers' interests. At best, the legislation had impaired constructive working relationships at the enterprise level. At worst, it had introduced an element of fear in some workplaces, with most unions in the public and private sectors maintaining secret lists of members who did not want their employer to know their union status. She cited the example of primary school principals employed in 2,300 schools in New Zealand who, under the current law, were denied the right to strike in pursuit of a collective multi-employer agreement. Since 1992, systematic attempts had been made to entice these principals out of the union-negotiated collective contract and into individual contracts by offering them financial incentives. Those who chose to remain with the collective agreement were financially penalized.

The Employment Contracts Act had forced a significant segment of the labour market into highly precarious employment circumstances. The speaker noted that the number of people working more than one job had increased by 25 per cent since the law was enacted in 1991. Noting that the undermining of bargaining agreements had created great unfairness in the labour market, she stated that the measures taken by the new Government to repeal the Employment Contracts Act were very welcome and she expressed the hope that Australia would follow suit.

A Worker member from France said that the Worker members' statements showed they had a thorough grasp of the Australian system of deregulating collective bargaining. Convention No. 98 provided that voluntary collective bargaining between employers' and workers' organizations should be promoted and encouraged. This was not the case in Australia. By failing to give trade union representatives adequate protection, the Government was in breach of its duties under Conventions Nos. 98 and 135. Moreover, the fact that employers were free to choose before recruiting a single employee which organization they wished to bargain with, threatened the workers' right to set up organizations of their own choosing. It was for the social partners alone to choose which level to bargain at (local, national or by sector), and the Government had no business favouring one or the other. By the same token, the Government should not interfere with, and much less, prohibit agreements on strike pay that employers and workers might reach.

The speaker pointed out that in the State of Queensland progress had been made in line with comments by the Committee of Experts, and that too showed those comments were well founded. By ratifying Convention No. 98, Australia committed itself to ensuring the effective implementation of each of the Convention's provisions. But by narrowing the scope and modalities of collective bargaining, the Government had failed to live up to its commitments. Collective bargaining was a fundamental principle of the Organization and had been enshrined in the 1998 Declaration. An ILO mission to Australia could shed light on the matter and help ensure that worker representatives were better protected and collective bargaining effectively promoted.

The Government representative agreed with the Worker member that the Convention did not mean tolerate, and that the word "promote" was in the Convention. However, he indicated that the word "promote" had to be considered in context, and that context was measures appropriate to national conditions, where necessary. Having regard to the totality of Article 4, he considered Australia was in compliance with that provision of the Convention.

The Government representative indicated his Government's wish to continue the dialogue with the Conference Committee, particularly in light of the unique and complex nature of the Australian labour relations system. Noting that the legislation in question was fairly recent, he stated that there was so far little jurisprudence interpreting its provisions. In this respect, the ACTU study cited by the Worker member of Finland contained no more than allegations and was unsupported by any court decisions. He pointed out that the references to the United Kingdom and New Zealand made by other speakers were not relevant to Australia's situation and reminded the Conference Committee that only Australia was before it today.

The issues raised in the comments of the Committee of Experts arose from fine points of interpretation of complex legislation and there were no cases yet before the courts interpreting the application of the law. The speaker cited the Committee of Experts' 1997 comments stating that the impact of the legislation would not be fully clear for several years, and that its natural evolution should be carefully monitored to ensure that the spirit of the Convention was maintained.

The Government representative rejected the statement made by the Worker member of Australia that his Government intended any disrespect to the Committee of Experts, noting that Australia had willingly appeared today before the Conference Committee to continue the dialogue on the points raised. However, he considered that more information and ongoing dialogue was necessary and committed his Government to providing all assistance required towards that end.

The Worker members, in response to the Government representative's statements, indicated that the Australian Government apparently considered the reference in Article 4 of the Convention to "measures appropriate to national conditions" and "where necessary" to constitute a flexibility clause. While some Conventions contained clauses allowing for flexible interpretation, Convention No. 98 had no such clause. The Government apparently considered this clause to mean that if such measures were not appropriate and not necessary, it should not be obligated to promote collective bargaining. This was a misconception on the part of the Government. They stated that this kind of reasoning stressing the uniqueness of the national situation, which could not be judged by a universal standard, reminded them of the same arguments made by then communist governments that they should be measured by a different standard because their labour relations systems were different from those of capitalist systems. Some developing countries had also put forward this argument.

The Worker members interpreted the clause "where necessary" in Article 4 to mean that promotional activities might not be necessary in countries where the collective bargaining system was highly developed. They did not consider this to constitute a flexibility clause, but requested the Committee of Experts to clarify this point and the former one in its future comments on this case.

The Australian system was admittedly complex, but the Worker members saw no reason for Australia to be treated differently from other countries. In response to the Government's statement that the impact of the legislation would not be seen for a few years, the Worker members agreed with the Employer members that there were two factors in compliance, law and practice, and there must be balance between the two. First, the correct legislation must be in place and then the courts could examine its application in practice. There was no reason to wait for changes in legislation until there were court judgements since the Committee of Experts had identified contradictions with the Conventions and called for the law to be amended now.

The Worker members requested that the Committee's conclusions recommend that the development of law and practice in Australia be monitored. Responding to the Employer members' statement that there were grey areas in the Committee of Experts' comments, the Worker members stated that the Committee of Experts' comments were unambiguous and on three out of five points stated that the Government must amend its legislation. With regard to the Committee of Experts' references to Australian Workplace Agreements and its statements expressing concern on the wording of the Workplace Relations Act, 1996, the Worker members acknowledged that there might be some nuances in the Committee of Experts' comments not categorically calling for changes in the law, but stressed that it was clear that the Government must amend its legislation.

The Worker members indicated their disagreement with the Employer members' statement that a preference expressed in the law for a particular level of collective bargaining would not be a violation of the Convention. The Committee of Experts' comments clearly stated that the level of collective bargaining should be determined by the bargaining parties, not by the Government. The Worker members therefore requested that this point be included in the conclusions of the Committee. To avoid polemic over the right to strike, he did not wish to raise the question of strike pay, but expressed his surprise at the difference of the position taken by the Employers within the present Committee, as compared to the unanimous position taken in the Tripartite Committee on Freedom of Association on cases regarding the right to strike.

The Employer members recalled that this long and mostly fair discussion had been between the Committee and the Government and it therefore should not end in a discussion on the Employers' and Workers' general positions on freedom of association and collective bargaining. However, they noted that there had been general agreement in the Committee with regard to the need to obtain further information, in particular with regard to the effect of legislation in practice. They further noted that the legislation in question had only been adopted two years ago, and that it would therefore take some time for the new legislation to take effect and for its impact to be clear. Consequently, concrete results were not yet available.

Turning to the question of whether or not Article 4 of Convention No. 98 contained flexibility clauses, the Employer members stated that this was a theoretical issue which they did not wish to discuss in this context. However, if Article 4 provided for "measures to be taken appropriate to national conditions", this would indicate that the Article left a margin of manoeuvre to governments with respect to legislation.

With reference to statements made by the Worker members, they recalled that the positions of the Committee on Freedom of Association were taken unanimously. Nevertheless, the CFA did not have the mandate to provide interpretations of Conventions. Furthermore, the Employers' position concerning the right to strike had remained the same for the past 18 years.

They agreed that the dialogue commenced with the Government should be continued. For that purpose, the Government should provide, as requested by the Committee of Experts, further information, in particular on the effect of the legislation in question in practice.

The Worker members requested the Government to react to their proposal regarding cooperation between the Office and the Government.

The Committee noted the statement by the Government representative, as well as the discussion which took place in the Committee. The Committee recalled that according to the Committee of Experts several provisions of the 1996 Federal Workplace Relations Act called into question the application of Articles 1 and 4 of the Convention by excluding certain categories of workers from the scope of the legislation and limiting the scope of trade union activities covered by the provisions concerning anti-union discrimination, as well as giving primacy to individual contracts over collective relations through the Australian Workplace Agreements procedure. The Committee expressed the firm hope that the Government would supply a detailed report to the Committee of Experts on the application in law and practice of the Convention and on any measures taken. The Committee recalled to the Government that the International Labour Office was available to dialogue with all the parties concerned on all the issues raised in the Experts' comments. The Committee expressed the firm hope that the Government would find the way to maintain a confirmed dialogue with the supervisory bodies of the ILO and remain in cooperation with the Office in this respect.

Individual Case (CAS) - Discussion: 1998, Publication: 86th ILC session (1998)

The Government has supplied the following information:

Introduction

1. By letter dated 27 August 1997, the Director of the International Labour Standards Department communicated to the Australian Government comments submitted by the Australian Council of Trade Unions (ACTU) on the application in Australia of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

2. The President of the ACTU wrote to the Director-General of the International Labour Office on 6 August 1997 expressing the view that "... the preference given to individual over collective bargaining rights in the Workplace Relations Act 1996 ... constitutes a serious breach of Convention No. 98".

3. The Australian Government's comments on the various issues raised by the ACTU are provided below. In summary, the Government considers that the ACTU's claim that the relevant provisions of the Workplace Relations Act (the WR Act) are in breach of Convention No. 98 is unfounded.

Background

4. The ACTU's comments are primarily directed towards Part VID of the WR Act which provides for the negotiation and approval of Australian workplace agreements (AWAs). These are agreements made directly between employers and individual employees. (Endnote 1) Part VID of the WR Act commenced on 12 March 1997. These provisions were part of a major overhaul of the Commonwealth industrial relations legislation initiated by the Government when it took office in March 1996. The previous legislation, the Industrial Relations Act 1998 (the IR Act), was substantially amended by the Workplace Relations and Other Legislation Amendment Act 1996 (the WROLA Act), and the amended Act was renamed the Workplace Relations Act 1996.

5. The provisions of the WR Act relevant to Convention No. 98 are explained in detail in Australia's article 22 report on Convention No. 98 for the period 1 July 1995 to 30 June 1997.

Scope of the ACTU's comments

6. The ACTU claims that the WR Act gives "preference" to AWAs over awards and collective agreements, and that the relevant provisions of the Act constitute a breach of Convention No. 98. The ACTU also asserts that employees are being disadvantaged by AWAs. The Australian Government points out that there is no basis for these claims.

7. The Australian Government notes that the ACTU relies on the findings of the ILO Committee on Freedom of Association (CFA) in respect of a complaint against the Government of New Zealand presented by the New Zealand Council of Trade Unions. (Endnote 2) For reasons explained later in these comments, the Australian Government does not believe that the New Zealand case is relevant to the Australian legislation in question.

Australian Government's response

General

8. The Australian Government ("the Government") rejects the assertion that the provisions of Part VID of the WR Act are inconsistent with Article 4 of the Convention. Article 4 states:

Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

9. For most of this century, Australia has had a system of conciliation and arbitration which, while ostensibly compulsory, was intended to, and has, in practice, maintained a substantial element of collective bargaining both within and outside the formal systems established by legislation. Traditionally, collective bargaining took a number of forms:

-- "pure" collective bargaining without recourse to federal or state industrial tribunals. This was formerly quite common in remote locations but the advent of rapid travel and communications has led to its decline;

-- enforceable awards of industrial tribunals made "by consent", that is, where the parties entered into negotiations and reached agreement on matters ostensibly in dispute between them and have presented the resultant agreement to the tribunal to be formalized as an award;

-- awards of industrial tribunals made by arbitration and covering any matters not already agreed upon by the parties. The resultant award would be characterized as the product of arbitration but was, in a very real sense, the product of a process of collective bargaining;

-- the negotiation of "over-award" terms and conditions. It has never been permissible to derogate by common law agreement from award standards set by consent or arbitration, but it has always been permissible to treat those standards as minima and negotiate to improve upon them (this has been, and remains, a common feature of Australia's industrial relations);

-- the making of "paid rates awards", i.e. awards setting out the actual as opposed to the minimum terms and conditions of employment which left no scope for over-award bargaining. Such awards were common in the public sector. Where they existed in the private sector, they were almost invariably made only with the consent of the parties. The WR Act does not now permit paid rates awards. (Endnote 3)

10. The ILO's supervisory bodies have never found Australia's system of industrial relations to be in breach of the Conventions concerning freedom of association and collective bargaining in any fundamental way. There have been 12 complaints presented to the Governing Body Committee on Freedom of Association in relation to various aspects of state and federal labour legislation. Apart from Case No. 1559, none of these resulted in a clear and unequivocal finding that any aspect of federal law and practice was inconsistent with the principles of freedom of association and collective bargaining. Even in Case No. 1559 it was only the "very high minimum membership requirement" for registration under the IR Act that was found to be inconsistent with the principles of freedom of association.

11. In this context, reference is made to Case No. 1511, which concerned alleged infringements of Conventions Nos. 87 and 98 arising out of an industrial dispute in 1989 involving domestic airline pilots. The Committee considered that the events complained of did not disclose any breach of the principles of freedom of association and stated that:

Registration under the 1988 Act is optional. The ...(complainant union) ... had elected to register and to accept the advantages which derive therefrom. The Committee considers that it is reasonable for the legislation and the ... (Australian Industrial Relations Commission) ... to require adherence to the norms of the system of conciliation and arbitration as part of the quid pro quo for these benefits. This does not appear to be in any way inconsistent with the guarantees provided by Articles 2 and 3 of Convention No. 87, or by Article 4 of Convention No. 98. Workers can form and join the union of their own choosing. That union can then elect to register under the federal Act if it wishes. Alternatively, it may register under one or more of the state Acts or it may remain unregistered. Whether registered or not, it may formulate its programmes in full freedom. It may also engage in free collective bargaining. If that bargaining takes place within the framework of the Industrial Relations Act, the outcome must conform to the current National Wage Principles. If it takes place outside the legislative framework, then the parties may strike their own bargain. (Endnote 4)

12. It will be seen from the foregoing that collective bargaining, in various forms, has been firmly entrenched in Australia for many years and that this has been accepted by the ILO's supervisory bodies. Collective bargaining, both within and outside the formal systems established by federal and state legislations, is one of the norms of industrial relations in Australia. In addition, the trade union movement in Australia, which is, in general, well established, sophisticated, well organized and well resourced, has successfully engaged in collective bargaining within and outside the formal systems.

13. The long history and general acceptance of collective bargaining in Australia, as well as the established nature of the trade union movement, form part of the national conditions which are relevant for the purposes of compliance with Convention No. 98. The AWA provisions of the WR Act must be seen in the context of the wider range of bargaining arrangements which operate within and outside the federal industrial relations system: the Act continues to encourage and promote collective bargaining. (Endnote 5) AWAs do not replace collective bargaining. They simply provide an alternative for those who do not wish to bargain collectively which was not previously available within the formal system established by the IR Act and its predecessors. However, it is also important to recognize that individual agreements are not a new feature of the federal system -- as a matter of law, every employment contract is an individual contract. (Endnote 6) Part VID simply puts in place a formal scheme for the making and approval of individual agreements which complement the provisions for making awards and for certifying collective agreements.

14. The introduction of Part VID of the WR Act was one element of a wider strategy aimed at shifting the emphasis of the federal industrial relations system towards increased bargaining at the workplace or enterprise level: see paragraph 3(b) of the WR Act. On this point, it is relevant to note that despite Australia's recent history of legislative and policy reforms directed towards increasing agreement making at the workplace or enterprise level, the employment conditions of approximately 40 per cent of workers within the federal system are regulated under the Act by an award only: for a variety of reasons, formal agreements have not been made in a significant proportion of Australian workplaces. (Endnote 7)

15. The Government considers it essential to accelerate the shift towards workplace/enterprise bargaining to increase productivity and thereby improve the living standards of Australian workers. Accordingly, the WR Act has provided for a wider range of bargaining choices and a simplified award system which makes awards more clearly minima underpinning agreements.

16. It is important to note the provisions relating to collective agreements. Part VIB of the WR Act allows for collective agreements to be made which, subject to satisfying certain objective criteria, are certified by the Australian Industrial Relations Commission (the AIRC) and are thereby enforceable under the Act. Such agreements may be made between an employer and a representative registered union (or unions) or between an employer and employees of that employer (but provision is made for union members to be represented by their registered union and for such a union to become a party to the agreement). (Endnote 8)

17. The WR Act provisions relating to collective agreements give particular emphasis to the views of employees by providing that agreements under Part VIB must be approved by a "valid majority" of employees whose employment will be subject to the agreement. (Endnote 9) In addition, there are provisions which are intended to prevent discrimination, including against employees on the grounds of their membership (or non-membership) of a registered union. (Endnote 10) It must be emphasized, however, that registered unions continue to have the right and capacity under the Act to initiate and pursue (including by industrial action) collective agreements covering their members. (Such agreements may cover existing and future employees.) (Endnote 11)

18. An additional safeguard under the WR Act is the requirement for agreements (certified agreements and AWAs) to be underpinned by awards. As discussed elsewhere, awards provide minimum terms and conditions. Federal awards (i.e. those made by the AIRC) are now normally limited to a range of specified allowable award matters. (Endnote 12) These relate to the most important aspects of pay and conditions of employment. There is, however, no restriction on the matters pertaining to the relationship between an employer and an employee which may be included in an agreement, apart from discriminatory provisions which are excluded by the WR Act. (Endnote 13)

19. Awards are particularly important in the context of the "no-disadvantage test" which applied under the Act. This is discussed later, but it is to be noted that, with some limited exceptions, agreements must not reduce the overall terms and conditions of employment of the employees concerned under relevant awards or applicable Commonwealth, state or territory laws.

20. Another significant change under the WR Act which reinforces the emphasis on bargaining is the recognition in the Act's principal object (section 3) of the need to encourage not only agreements under the Act, but also outside the Act, e.g. under state laws or by over-award bargaining.

21. Against that background, the Government considers that the provisions of the WR Act concerning the making of awards and certified agreements, and the availability of collective bargaining outside the formal system, give effect to Article 4 of the Convention. The introduction of an additional form of regulating terms and conditions of employment, by individual agreement underpinned by the award system, adds choice for employers and employees under the Act but does not alter the other basic characteristics of the federal industrial relations system.

The making and approval of AWAs

22. The provisions of Part VID of the WR Act dealing with the making and approval of AWAs are outlined in the Commonwealth report on Convention No. 98. In summary, the key elements of the AWA scheme are as follows:

(a) Division 3 of Part VID deals with the making, variation or terminating of an AWA. An AWA may be made between an employer and an employee. (Endnote 14) An AWA must provide for a number of specified matters, including anti-discrimination provisions and a dispute resolution procedure (Endnote 15) and, other than in specified exceptional cases, must pass the no-disadvantage test. (Endnote 16)

(b) An employee with whom an AWA is proposed to be made must be given a copy of the AWA at least the required number of days before signing the AWA (five days for a new employee and 14 days for an existing employee) and the employer must explain its effect to the employee. (Endnote 17)

(c) The employee concerned must genuinely consent to making the AWA (Endnote 18) and it is unlawful to dismiss an employee for refusing to negotiate in connection with, make sign, extend, vary or terminate an AWA. (Endnote 19)

(d) If the employer has not offered an AWA in the same terms to all comparable employees (i.e. employees engaged in the same kind of work), the employer must not have acted unfairly in failing to do so. (Endnote 20)

(e) An employer or an employee may appoint a person to be his or her bargaining agent for the purposes of the making, approval, variation or termination of an AWA. (Endnote 21) An employer or employee must recognize a bargaining agent duly appointed by the other party. (Endnote 22) An employer or employee must not coerce, or attempt to coerce, another party to appoint or not to appoint a particular person as a bargaining agent or to terminate such an appointment. (Endnote 23) An individual or a group of persons (including a trade union) may be appointed as a bargaining agent. (Endnote 24)

(f) An employer must provide to an employee with whom an AWA is proposed to be made a copy of an information statement prepared by the Office of the Employment Advocate (Endnote 25) (see below). The information statement sets out the provisions of the Act relating to the making and approval of AWAs.

(g) Part IVA of the Act establishes the statutory office of Employment Advocate whose responsibilities include functions relating to the filing and approval of AWAs, investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs and providing free legal representation to a party to a proceeding under Part VID if the Employment Advocate considers that would promote the enforcement of the provisions of that Part. (Endnote 26)

(h) Division 8 of Part VID provides limited immunity for industrial action taken in relation to the making of an AWA, subject to some qualifications specified in the Act. (Endnote 27) The Act also provides protection against dismissal or other prejudicial conduct for members of employees engaging, or intending to engage, in AWA industrial action.

The no-disadvantage test

23. Apart from the other requirements relating to AWAs, employees are protected by the requirement that an AWA must pass the no-disadvantage test (other than in exceptional circumstances). An AWA passes the no-disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment. Subject to some specified exceptions, (Endnote 28) an agreement disadvantages employees in relation to their terms and conditions of employment:

... only if its approval or certification would result, on balance, in a reduction in the overall terms and conditions of employment of these employees under:

(a) relevant awards or designated awards; and

(b) any other law of the Commonwealth or of a State or Territory, that the Employment Advocate or the Commission (as the case may be) considers relevant.

A "relevant award" is an award (made by the AIRC or a state tribunal) regulating any term or condition of employment of a person to whom an agreement will apply. A "designated award" means an award determined by the Employment Advocate or the AIRC to be appropriate for the purpose of deciding whether an agreement passes the no-disadvantage test. (Endnote 29) The Employment Advocate is required to designate awards when there is no relevant award applying to the employment of a person or persons whose employment is to be covered by an AWA. (Endnote 30)

24. The no-disadvantage test is applied by the Employment Advocate, (Endnote 31) and if the Advocate has any unresolved concerns about whether a particular agreement passes the test, the agreement must be referred to the AIRC. (Endnote 32) The AIRC is then responsible for determining whether the test is met and, if not, whether to approve the agreement on public interest grounds. (Endnote 33) Before commenting on the ACTU's claims, it is worth noting that as of 5 December 1997, AWAs had been approved for 4,177 employers while 1.74 million employees are covered by certified agreements. (Endnote 34)

Comments on the ACTU's claims

25. At paragraph 6(a) of its letter, the ACTU states that "An AWA wholly displaces a federal or state award which would otherwise apply to the employment concerned." The ACTU asserts that "collectively negotiated conditions may be totally replaced by different arrangements determined on an individual basis." At paragraph 6(b), the ACTU states that "An AWA wholly displaces a certified agreement or other collective instrument made pursuant to state legislation." The ACTU appears to have overlooked some important features of the legislative scheme.

26. Under the WR Act, a number of interrelated provisions operate to ensure an appropriate balance between voluntary collective bargaining and voluntary individual agreements. Importantly, when a collective agreement has been certified and is in operation, that agreement prevails over an inconsistent AWA which takes effect during that period unless the certified agreement expressly permits the AWA to prevail. (Endnote 35)

27. If an AWA is in operation before a certified agreement takes effect, the certified agreement prevails if the AWA has passed its nominal expiry date. If the AWA has not passed that date, then it will exclude the certified agreement, (Endnote 36) but once it passes its nominal expiry date, the AWA may be terminated on application to the AIRC. (Endnote 37) Once the AWA is terminated, any certified agreement applicable to the employee will operate according to its terms.

28. The ACTU expresses concern that after a certified agreement has passed its nominal expiry date, an AWA may be made which prevails over the certified agreement. The Government considers that it is unexceptional for an agreement that has passed the period chosen by the parties for its operation as (effectively) a "closed" (Endnote 38) agreement, to be replaced by another agreement, whether collective or individual.

29. The ACTU comments that an AWA wholly displaces:

(a) a certified agreement;

(b) agreements made under state law; and

(c) federal or state awards.

30. The relationship between an AWA and a certified agreement has been discussed in paragraphs 26 and 27 above. The ACTU's claim that an AWA displaces a certified agreement is only correct in the circumstances outlined therein.

31. During its period of operation, an AWA does exclude state awards and agreements, and, subject to limited exceptions, federal awards. (Endnote 39) However, before an AWA takes effect, it must satisfy the no-disadvantage test. In other words, the employee must not, overall, be worse off than he or she would be under relevant or designated awards and other relevant laws.

32. It should also be noted that it is an ordinary effect under Australia's constitutional arrangements for a federal law or an instrument made under a federal law to prevail over inconsistent state laws (see section 109 of the Australian Constitution). An important (and for constitutional reasons, carefully framed) exception is provided by subsections 152(3)-(5) of the WR Act. These expressly provide for agreements made under state industrial laws to displace federal awards. Under section 152(5), a state agreement may only have this effect if it meets a no-disadvantage test, is genuinely made by consent and it covers all employees whom it would be reasonable to cover.

33. In the Government's view, these provisions operate as a reasonable balance between voluntary collective bargaining and voluntary individual agreements. In addition, they emphasize that awards provide an underpinning for agreements, thereby giving proper emphasis to bargaining.

The role of trade unions in the AWA process, etc.

34. At paragraph 6(d) of its letter, the ACTU states that "(t)he limited role for trade unions in the AWA process, together with the lack of any public hearing associated with approval, makes them an attractive option for unscrupulous employers."

35. The legislation does not result in a situation where unions are excluded from effectively representing their members, however few members there may be at a particular workplace. Although a trade union cannot be a party to an AWA (reflecting its nature as an individual agreement between an employer and an employee), an employee may appoint a trade union to represent that employee during the bargaining process. (Endnote 40) As previously noted, an employer must not refuse to recognize a bargaining agent duly appointed by an employee and must not coerce, or attempt to coerce, an employee to appoint or not to appoint a particular bargaining agent, or to terminate such an appointment. Also relevant in this context are the employee protections afforded by Part XA of the WR Act which prohibit victimization on the basis of union membership. The WR Act, therefore, provides for and protects the right of individual employees to be represented by trade unions in negotiations for AWAs.

36. As noted earlier in this response, the trade union movement in Australia is well established and organized; it is therefore well-equipped to ensure that employees are aware of their right to be represented by a union for the purposes of negotiating AWAs and that its services are available to those employees who want them. It is relevant in this context that the statutory employee information statement referred to in paragraph 22 above sets out employees' rights in relation to the appointment of bargaining agents. As previously noted, employers must provide this information statement to employees with whom they wish to make AWAs. In addition, as parties to awards, unions can have a significant role in relation to maintaining the benchmarks against which AWAs are assessed for the purposes of the no-disadvantage test.

37. It is also relevant to note that section 170WF of the WR Act, which prohibits the use of threats or intimidation with the intention of hindering AWA negotiations, makes clear that the prohibition does not apply to conduct authorized under the Act by or on behalf of a registered trade union for the purpose of negotiating a certified agreement.

38. As to the absence of public hearings in relation to the approval of AWAs, the Government notes, first, that the principles of collective bargaining do not require any form of public hearing in relation to the making of collective agreements (although this is provided for under the WR Act). Given the individual nature of AWAs, no need is seen for a public hearing. An AWA does not confer rights or obligations on a person other than a party to the AWA (apart from the rights and duties of the Employment Advocate). Secondly, Division 5 of Part VID of the WR Act contains specific and detailed requirements for the approval of an AWA by an independent statutory officer, the Employment Advocate, or, in appropriate cases, the AIRC. Unless those requirements are met, an AWA will not be approved. The Employment Advocate is an independent and impartial person appointed by the Governor-General under Part IVA of the WR Act. He or she is not subject to direction by the Government in respect of the approval of AWAs: see section 83BC. Similarly, the AIRC is an independent and impartial tribunal established by the Act.

39. The functions of the Employment Advocate include providing assistance and advice to employees about their rights and obligations under the WR Act, providing advice to employers and employees, in connection with AWAs, about the relevant award and statutory entitlements and about the relevant provisions of the WR Act and securing compliance with agreements. The Employment Advocate is required to have particular regard to the needs of workers in a disadvantaged bargaining position (for example, women, people from non-English-speaking backgrounds, young people, apprentices, trainees and outworkers).

Lack of requirement to bargain collectively

40. At paragraph 6(e) of the ACTU's letter, it states that "(t)here is no requirement in the Act for employers to bargain collectively, even if this is the desire of the workplace". At paragraph 7 of its letter, the ACTU claims that employers can, in effect, refuse to negotiate collectively and the fact that the legislation permits this is inconsistent with Article 4 of the Convention.

41. In fact, the WR Act establishes a framework which facilitates collective bargaining. In relation to awards, as noted, registered organizations are able to seek to have collectively bargained agreements made by the AIRC as consent awards (with arbitration being available where parties remain in dispute). Registered organizations are also able to make collective agreements with employers and to have them certified under the WR Act. They may organize and take industrial action in pursuance of an agreement with an employer (or employers), and such action, taken in accordance with Part VIB of the Act, is protected from civil liability. (Endnote 41)

42. During a bargaining period under the Act (in which immunity from civil liability applies), the AIRC may not arbitrate, but it is able to assist bargaining by exercising compulsory powers of conciliation.

43. Registered organizations are also free to bargain collectively outside the Act. (Endnote 42)

44. Whilst the WR Act does not require collective bargaining for AWAs, it does not prohibit or prevent collective bargaining for that purpose. Collective bargaining is supported by the availability of the right to engage in industrial action free from civil liability. In addition, section 170VE clearly envisages that AWAs may be negotiated by a process of collective bargaining. The section provides, in part, that:

... 2 or more agreements that have been negotiated collectively may be included in the same document if the same employer is a party to all the agreements. The agreements need not be in the same terms.

45. In the Government's view, it is misleading to suggest that employees who do not wish to participate in collective bargaining should be denied access to an enforceable individual agreement, where they genuinely wish to be party to such an agreement. Such an arrangement could not reasonably be regarded as incompatible with Article 4 of Convention No. 98.

Senate Economics References Committee -- Inquiry into the Workplace Relations and Other Legislation Amendment Bill 1996 (the WROLA Bill)

46. At paragraph 9 of its letter, the ACTU reproduces an extract from a submission by the International Centre for Trade Union Rights to the Senate Inquiry into the Workplace Relations Bill. The thrust of that extract is that the legislation "gives primacy to individual representation and individual agreements".

47. The Government does not agree that the WR Act gives primacy to individual representation and individual agreements, and refers to the discussion of the AWA scheme and the relationship between AWAs and collective instruments above.

48. It is also important to note that the WROLA Bill was extensively amended by the Senate following the Senate Inquiry to which the ACTU refers. Substantial amendments were made to the AWA provisions, notably the inclusion of the no-disadvantage test. The provisions relating to certified agreements were also substantially amended. The Senate amendments were agreed to by the House of Representatives and the Bill was passed in its amended form. Any views expressed by members of the Senate Committee or persons making submissions to the Committee should be treated with particular caution given that they relate to the Bill as introduced in its unamended form.

Case No. 1698 (New Zealand)

49. In support of its contention that Part VID of the WR Act is inconsistent with Convention No. 98, the ACTU refers to the finding by the Committee on Freedom of Association that the New Zealand Employment Contracts Act (the NZ Act) breached ILO principles on collective bargaining.

50. The Australian and New Zealand systems are difficult to compare because each country has markedly different law and practice. The Australian situation does not come within the principles referred to in Case No. 1698. Among other things, it should be noted that:

-- under the WR Act, AWAs are underpinned by awards (through the "no-disadvantage test" described above), whereas the NZ Act provides no such protection: in the absence of a collective contract, employers and employees may enter into such individual contracts as they think fit (subject to statutory requirements concerning such matters as minimum wages, holidays and discrimination);

-- unlike the NZ Act, the WR Act provides for the voluntary registration of organizations of employers and employees; registration gives an organization various benefits under the Act, including corporate status which facilitates collective bargaining by enabling a registered organization:

-- -- to be a party to an award or certified agreement in its own right;

-- -- to exercise legal rights to bargain with assistance (including compulsory arbitration) from the AIRC; and

-- -- to enforce those awards and agreements. (Endnote 43)

51. Consequently, the Government does not agree with the assertion made by the ACTU at paragraph 15 of its letter that the findings of the Committee on Freedom of Association in Case No. 1698 are "even more relevant to the Australian system". Nor does the Government agree with the assertion in paragraph 15 that the WR Act "actually favours individual over collective agreements". The legislation does not favour AWAs over collective agreements. As noted earlier, the provisions for AWAs do not replace voluntary collective bargaining for individuals which is underpinned by awards which are themselves the product of a form of collective bargaining.

Bell Bay Case

52. At paragraph 16 of its letter, the ACTU refers to the decision of a Full Bench of the AIRC in Re Aluminium Industry (Comalco Bell Bay Companies) Award 1983 (1994) 56 IR 403 (the Bell Bay Case) in which the commission rejected an attempt by the employer to introduce a system of individual contracts. The commission found, in the circumstances of the case, that the measure was "... one which is at variance with our system of industrial relations, a system which, since its inception, has been based upon collective processes ... in which registered organizations of employers and employees acting as parties principal are an integral part of the collective processes which operate under the Act".

53. In the Government's view, that case is not relevant to the current legislation. At that time, the relevant legislation (the IR Act) was quite different in a number of fundamental respects. Among other things, it relied upon a narrower range of constitutional powers (hence the AIRC's reference to the nature of the system). The IR Act made no provision for individual agreements of any kind and, in addition, the employer in that case was seeking completely to exclude trade unions from the process of negotiating such contracts. As explained earlier, Part VID of the WR Act enables an employee to appoint a trade union as a bargaining agent for his or her AWA and such an appointment must be accepted by the employer. Similarly, a member of a registered union is entitled to insist on the involvement of the union in negotiating a certified agreement if a union is not already involved.

54. It is, however, relevant to note that the AIRC has accepted individual contracts in a number of cases under the IR Act. (Endnote 44)

Australian Centre for Industrial Relations Research and Training (ACIRRT) study

55. The ACTU asserts that "there is some evidence that employees are being disadvantaged by AWAs" and, in paragraph 23 of its letter, refers to an examination of a number of AWAs by the Australian Centre for Industrial Relations Research and Training (ACIRRT) at the University of Sydney. ACIRRT released their findings on 6 July 1997 in a report entitled the Agreements Database and Monitoring (ADAM) Report 13. The Government has examined the report and does not consider that it provides reliable evidence that employees are being disadvantaged by AWAs. The Government notes, in particular, that;

-- the report was based on as few as ten AWAs, only five of which were believed to have been approved by the Employment Advocate;

-- the report's examination of particular AWAs does not take into account any undertakings that may have been given in connection with the operation of those AWAs (Endnote 45) and therefore may not represent an analysis of all relevant employment conditions.

-- that figure represents less than 1 per cent of the AWAs approved at the time the report was released;

-- the report refers to some agreements as "fixed price contracts for wages" but provides no information about the quantum of initial changes in rates of pay for the employees moving to those agreements, nor does it acknowledge the similarity of such arrangements to the "no extra claims" provisions which are found in almost 70 per cent of certified agreements; and

-- the report identifies a focus on hours of work and flexible work arrangements in AWAs, but the Government notes that focus is not unique to AWAs and simply highlights the importance of such issues to employers and employees, continuing the trend that has been evident in certified agreements for some time and which is acknowledged in the report (in the March quarter 1997, around 82 per cent of certified agreements contained matters pertaining to hours or work).

Other matters

56. At paragraph 18 of its letter, the ACTU asserts that there is evidence that AWAs are being used to weaken or eliminate the role of trade unions and to reduce terms and conditions of employment. A similar assertion is made in paragraph 21 of the ACTU's letter. These assertions lack foundation. They are not supported by any analysis of AWAs that have been made and approved by the Employment Advocate.

57. The Government notes that the Office of the Employment Advocate is undertaking a research project on AWAs. The project will examine trends in AWAs and their content, and the experience of employers and employees in making and implementing them. It will include a number of case-studies in workplaces that have made AWAs, examining issues such as how the AWAs were developed, their content and effect, including on employees in a disadvantaged bargaining position, and participants' assessments of the process. A copy of the Employment Advocate's media release announcing the project is attached. Further information can be provided, if required, when the results of that research become available.

58. At paragraph 22 of its letter, the ACTU states that, because AWAs are not made public, it is difficult to obtain accurate information about their contents. The Government draws attention to section 83BS which provides that information about an AWA that would identify the parties to the AWA must not be disclosed by an "AWA official" (i.e. the Employment Advocate or official authorized by the Employment Advocate) except as permitted by subsection 83BS(2). Subsection (2) permits disclosure when, amongst other things, it is authorized in writing by the party or it is authorized by the regulations. In that regard, regulation 8D of the Workplace Relations Regulations authorize disclosure for the purpose of:

-- providing analysis of trends in agreement making; or

-- preparing reports on enterprise bargaining for the purposes of section 358A of the WR Act.

Subject to section 83BS, the Employment Advocate may publish or make available copies of, or extracts from, AWAs. It should also be noted that the prohibitions on disclosure do not apply to the parties to AWAs -- parties are free to disclose the content of their agreements as they wish.

59. Section 358A requires the preparation of biannual reports (except for the first report, which is to cover the period from the commencement of the legislation to 31 December 1997) to the Minister for Workplace Relations and Small Business about:

-- developments in bargaining for the making of agreements under Parts VIB and VID of the Act; and

-- in particular, the effects of such bargaining on the employment of women, part-time employees, persons from non-English-speaking backgrounds and young persons.

60. In addition to the statutory reporting requirements, the Office of the Employment Advocate has also published statistical information relating to AWAs.

Conclusion

61. The Australian Government considers that the ACTU's claim that the AWA provisions of the WR Act are incompatible with Article 4 of Convention No. 98 is without foundation. As emphasized in the foregoing comments, AWAs do not replace collective bargaining, but simply provide an alternative within the formal federal system for those parties who do not wish to bargain collectively. The WR Act continues to promote voluntary collective bargaining, and confers significant enforceable rights upon registered organizations and their members, including protection when bargaining collectively.

In addition a Government representative stated that the Government was most disappointed with the Committee of Experts' observation in relation to the application of the Convention. It was concerned about both the process and the conclusions reached, and its concerns were now compounded by the requirement to appear before the Conference Committee. The circumstances in which it was called to appear were a matter of serious concern because the Government had met the reporting requirements and the Committee of Experts had yet to complete its consideration of the material submitted by the Government. The Government expressed the hope that this would not become an entrenched practice of the Conference Committee. He pointed out that Australia was a federation comprising various States and territories with their own legislative systems. The Committee of Experts' observation related not only to the Commonwealth legislation, that is, the legislation passed by the national Parliament, but also to the industrial relations legislation in several Australian States, namely Queensland, New South Wales, South Australia and Western Australia. He pointed out that the observation had been referred to the relevant state governments for their comment. Proposed legislation in Western Australia had also been the subject of correspondence between the Australian Council of Trade Unions (ACTU) and the Office. The Western Australian Government submitted the following statement: "On 13 June 1997, the International Labour Office provided a direct response to the ACTU on its request for comments on the Western Australian Labour Relations Legislation Amendment Bill, 1997. The advice was provided without the benefit of input from the Western Australian Government on the specific legislative provisions. The Western Australian Government has serious concerns as to the appropriateness as to the ILO providing such direct comments and considers comments should only be made as part of the normal reporting process."

The Government representative emphasized that his Government was committed to meeting its obligations as an ILO Member. This was achieved through consultation with state and territory governments and the main representative bodies of employers and workers. The Government was concerned that this practice could not be properly implemented where there was a premature and necessarily incomplete examination of the observation. The Government disagreed with the Committee of Experts' comments. It noted that, in examining the Government's report, the Committee had had before it comments of the ACTU, but the Government considered those comments to be without foundation, and it had responded to them in a submission to the Committee of Experts which supplemented the information already given in the usual article 22 report form. However, the Committee of Experts had dealt with the report without taking into account the Government's supplementary submission, as was specifically acknowledged in the observation. The Government's supplementary written comments had now been circulated for the information of this Committee. The speaker emphasized that this document had been prepared in response to the ACTU's comments and was intended to be read by the Committee of Experts in conjunction with Australia's report on the application of the Convention. It was not Australia's response to the Committee of Experts' comments.

The Government representative pointed out that the Commonwealth legislation was new and complex, requiring careful and detailed consideration. The provisions addressed in the observation should be examined in their proper context. This would necessitate a careful analysis of the relationship between the various provisions of the Commonwealth legislation, the application of legislation by the Australian courts and tribunals, as well as the relationship with relevant state legislation and the common law. The Government intended to provide the Committee of Experts with further information to assist it to undertake this analysis. The many important changes that the legislation had made to strengthen freedom of association and collective bargaining included the fact that it was now easier for new workers' organizations to become registered and to gain the benefits of registration under federal law. Registration was voluntary and was not a precondition to the formation or operation of a workers' organization. For those organizations wishing to register, the requirements were easier to satisfy than those of the previous Act. It was also easier for registered organizations to alter their rules relating to eligibility for membership. In addition, the legislation utilized a wider range of constitutional powers than the previous Act. In doing so, it broadened the scope of the freedom of association provisions so that employees were now protected in a wider range of circumstances than had been the case under the previous Act. The new provisions were easier to enforce because civil rather than criminal standards of proof now applied. They also provided for more effective remedies than those previously available, including higher penalties, injunctions, compensation and reinstatement. Specific provision was made to prohibit an employer from dismissing or engaging in other prejudicial conduct against an employee because the employee had engaged in protected industrial action. These provisions appeared to have been overlooked by the Committee of Experts in its examination of the legislation.

The use of a wider range of constitutional powers also made it easier for unions registered under the Act to enter into collective agreements with employers. Previously a collective agreement made by a union could be certified under the Act only in settlement of an industrial dispute. This involved complex legal rules. The legislation also strengthened the powers of the independent Australian Industrial Relations Commission (AIRC) to assist parties to bargaining who were unable to reach agreement. Parties were able to ask the AIRC to conduct hearings and make recommendations, binding on the parties, about particular issues to facilitate bargaining. Like the previous Act, the new legislation gave special encouragement to the making of agreements at the workplace or enterprise level. Certain other arrangements applied to the certification of agreements to which several employers were parties. However, the requirements to be met were not onerous: the AIRC simply had to be satisfied that it was in the public interest to certify such an agreement. Experience with the operation of the Act demonstrated that applications for those agreements had been readily granted in appropriate circumstances. It was also relevant that parties were free to bargain outside the formal system. The Commonwealth legislation, for the first time, expressly recognized the capacity of parties to bargain outside as well as within the formal system.

He pointed out that the legislation put in place a formal scheme for making individual agreements called "Australian workplace agreements". This scheme was a matter of some concern to the Committee of Experts, but those concerns appeared to have been based on a misunderstanding of the legislation. The written reply submitted by the Government in response to the ACTU's comments explained the arrangements for individual agreements in some detail. The Government was confident that, viewed in their proper context, these arrangements would not be seen to detract from the provisions of the Act that promoted and encouraged collective bargaining. Individual agreements did not replace collective bargaining, but simply provided a new alternative within the formal system for those who did not wish to bargain collectively. He stressed that almost 2 million employees were covered by collective agreements certified under the Act. There were also significant numbers of employees covered by other forms of collective instruments, such as agreements under state legislation, agreements made outside the formal system and awards, which were collective instruments made by independent industrial tribunals by consent or by arbitration. Since the provisions for Australian workplace agreements had taken effect, 17,500 employees had chosen to make such agreements. The Act prohibited duress in making them. Every Australian workplace agreement made under the Act was underpinned by an award, itself a collective instrument. Awards bound employers and unions. An Australian workplace agreement was not permitted to disadvantage an employee when compared with wages and working conditions in relevant awards. Another significant feature of the scheme was the nature of the relationship between Australian workplace agreements and collective agreements certified under the Act, a relationship that was not recognized by the Committee of Experts. The Act provided that when a collective agreement had been certified and was in operation, it prevailed over an inconsistent Australian workplace agreement which took effect during that period. An Australian workplace agreement could prevail only if the certified collective agreement expressly permitted this. If an Australian workplace agreement was in operation before a certified collective agreement took effect, the latter prevailed when the Australian workplace agreement had passed its specified expiry date. The Act also provided that once an Australian workplace agreement passed its specified expiry date, it could be terminated on application to the AIRC. Any certified agreement applicable to the employee would then operate.

The Government looked forward to the Committee of Experts' reconsideration of the legislation. However, the Government considered it inappropriate and premature that it should be required to appear before the Conference Committee before the Committee of Experts had been able to give the legislation the detailed consideration which was required. Moreover, although the Government regarded the matters raised as important, it submitted that, when viewed objectively, they were not of such seriousness as to warrant urgent consideration in this forum. It intended to respond to the Committee of Experts' observation in accordance with normal procedures in its next report on the Convention. Noting that the Committee of Experts had stated that the impact of the legislation would not be fully clear for several years and that it would welcome regular reports on future developments, the Government undertook to provide these reports in accordance with its normal constitutional obligations. It was confident that the practical operation of the legislation would demonstrate that it was fair and balanced, and that the ACTU's apprehensions about its operation were without foundation.

The Workers' members thanked the Government representative for the information as well as the written document provided. It was important that the Committee of Experts had been able to draft its observation on the basis of the report received from the Government and especially on the basis of the legislation. The Committee of Experts had also received comments from the ACTU and the Australian Chamber of Commerce and Industry. It had thus been able to analyse the case using different sources of information. That was an important point for the discussions in the present Committee. In other cases, the Conference Committee was at times obliged to base its discussion and its conclusions on more fragmented sources of information. The Workers' members were therefore surprised that the Government complained that this case was being examined in the present Committee since the Committee of Experts had taken account of the Government's report. In the written information supplied, the Government only reacted to the ACTU's comments submitted on 6 August 1997, and which had been transmitted to the Government on 27 August 1997. Apparently the Government had not replied within a reasonable time, because the Committee of Experts had received it too late -- probably during the Committee of Experts' meeting in December -- to be considered. The Workers' members deeply deplored this negligence on the part of the Government. The replies given in the written document submitted were complex and long, and the Workers' members, while awaiting a fresh examination by the Committee of Experts, limited themselves to four comments. First, the Government appeared to have forgotten that the Committee of Experts raised many issues in its report. The Government did not reply to the questions put concerning specific points in the legislation. Second, the Committee of Experts had noted that the legislation contained shortcomings, particularly in relation to the scope of persons protected against anti-union discrimination. The report did not supply additional information on these points. Third, the reply was limited to a very theoretical overview of the operation and practical effects of the legislation. What was, for example, the percentage of workers who used a negotiating agent to assist the worker or workers during negotiation of a workplace agreement? Was not the new legislation having the effect in practice that employers were seeking an alternative to collective bargaining, even in the enterprises where trade unions had been established for a long time, instead of simply complementing the collective bargaining system? The media and the international community had been able to follow the dispute at Patrick Stevedores. The Federal Court and the High Court had confirmed that the company in question had tried to use individual workplace agreements in combination with other instruments to avoid collective bargaining. Fourth, the Workers' members were uneasy with the tone and the approach of the reply. It appeared that instead of looking for dialogue and collaboration with the supervisory bodies and the social partners, the Government was bent on controversy with the unions and wanted to win no matter what.

The Committee of Experts had analysed the new legislation. The Acts were available to everyone and were sources of objective information. Nobody could doubt that. The Committee of Experts was comprised of eminent and highly qualified lawyers, and its working methods were based on the principles of impartiality, neutrality and objectivity. In this regard, they referred to paragraph 8 of the Committee of Experts' general report. The Committee of Experts observed that the Workplace Relations Act was long and complicated; they doubted whether the workers and employers involved knew of the Act, its machinery and its balances.

The Committee of Experts noted at the outset that the Act excluded from its scope major categories of workers concerning adequate protection against acts of anti-union discrimination. This was particularly the case for workers in small and medium-sized enterprises and for employees whose remuneration passed a certain threshold and for fixed-term workers. Such exclusions were not foreseen in Article 6 of the Convention. Moreover, according to the Act, protection against anti-union discrimination was only partial in the case of bargaining on multiple-business agreements. Such a distinction was not foreseen in the Convention. The Act sought indirectly to discourage multiple-business collective agreements. On these two points, the Committee of Experts asked the Government to take the necessary measures and this Committee ought to repeat these requests.

The Workers' members requested that their concerns appear in the conclusions. The new system, even taking into account the Government's explanations, favoured generally the conclusion of individual work contracts and weakened the bargaining of collective agreements even in enterprises where trade unions had had a long presence. The Workers' members had received information that, in practice, the system was eroding collective bargaining and was not of a complementary nature as suggested by the Government. Intervening in a specific case (Pacific Access v. Community and Public Sector Union), the Minister of Industrial Relations had specifically stated that the new Act permitted an employer to choose whether to accept collective bargaining and to choose with which union to bargain. And yet, in practice, new and young workers had the choice between an individual agreement or unemployment. The Committee of Experts observed that the AIRC could determine the level of bargaining and that it favoured enterprise-level bargaining. However, the General Survey on Freedom of Association and Collective Bargaining of 1994 had confirmed that it was for the parties to decide the level of bargaining. The parties should also be free to decide on the scope of the issues to be negotiated. This Committee as a whole had agreed with this point of view. On this point too, the Committee of Experts rightly asked the Government to indicate in its report all the measures taken to change the legislation so as to ensure the promotion of collective bargaining in conformity with Article 4 of the Convention. In addition, the Committee of Experts requested changes in the legislation and initiatives from the Government in this direction. The Workers' members asked that these points be taken into account in the conclusions of the present Committee. The Government should also supply detailed information, including statistics, on the practical effects of the new legislation as a whole, at the level of the states as well. This information should enable the Committee of Experts to observe how in practice and to what extent the new legislation favoured collective bargaining and the development of fair industrial relations.

The Employers' members noted that the case concerned extensive legislative changes at the federal and state levels. Australian trade unions considered that the new legislation, in particular the Workplace Relations Act, 1996, had considerably altered the legislative foundation of industrial relations at the federal level. The Committee of Experts' observation, however, was grounded only on trade union allegations. In contrast, the Government had had no opportunity to express its opinion on the matter which was, in the Employers' members' view, a violation of the principle that all parties involved should be heard before final conclusions could be drawn. The Employers' members thought that this case embodied various interesting problems, but that the main problem consisted in the Australian workplace agreements which had been introduced by the Workplace Relations Act. According to the Committee of Experts, one of the Act's principal objectives, set out in section 3(b), was to ensure that primary responsibility for determining matters affecting the relationship between employers and workers rested with the employer and worker at workplace or enterprise level. The Employers' members, however, noting the following subsection of the same section 3, emphasized that any clear preference for workplace or enterprise-level bargaining, as seemed to be evidenced in section 3(b), was not in fact there. They pointed out that in assessing whether the Australian legislation was not in compliance with the Convention, the pertinent Article 4 of the Convention should be read attentively. Since it provided for appropriate measures to encourage and promote the full development and utilization of machinery for voluntary negotiations between employers' and workers' organizations, it consequently could be applied through all sorts of collective agreements. In addition, Article 4 called for measures appropriate to national conditions. The Employers' members were of the opinion that the matter needed to be clarified before a final conclusion could be drawn. This Committee should follow its own working methods, namely not to evaluate the matter before the Committee of Experts had examined all information available on the case. In this respect they recalled that the Government had supplied some information to this Committee in a document. They also wondered why, when the Committee of Experts acknowledged that the impact of the legislation would not be fully clear for several years, it already went ahead with proposing amendments to the new legislation. The Employers' members emphasized that the observation of the Committee of Experts was based only on the allegation of Australian trade unions and that, accordingly, an opportunity should be given to the Government to supply detailed information on the matter. This should be reflected in this Committee's conclusions.

The Worker member of Australia stated that it was regrettable that the Australian workers had to appear before this Committee to complain against the legislation and actions of their Government. Australian governments of varying political persuasions had traditionally respected the ILO and its standards; today, however, he could no longer make such proud assertions about the present Government. He considered that the enactment of the Workplace Relations Act in 1996 and the subsequent implementation of its provisions contravened the Convention. He explained that on 6 August 1997, the ACTU had written to the ILO bringing a number of provisions of the Act to the notice of the Committee of Experts. At its November-December 1997 session, the Committee of Experts had made a number of comments about the legislation, including that the provisions did not promote collective bargaining as required under Article 4 of the Convention. Immediately this finding was known in the country, the Minister for Industrial Relations publicly described the Committee of Experts' decision as being incorrect and gratuitous, but did not give any supporting evidence or reasoning to substantiate his views. The legislation breached the Convention in four main ways: Australian workplace agreements wholly displaced pre-existing collective instruments which had traditionally been of legal force (known as "awards") and also displaced pre-existing enterprise-specific collective agreements (known as "certified agreements") in certain circumstances; unions only had a limited role in the negotiation of individual work agreements and there was no public scrutiny of such agreements; there was no requirement that employers bargain collectively, even when that was the wish of the employee; and an employer could require an employee to sign an Australian workplace agreement as a condition for commencing employment and for obtaining job promotion. Indeed, the May 1997 speech of the Minister of Industrial Relations had made it clear that the Government supported strategic decision-making between collective and individual agreements. Even at the time of the adoption of the Act, a senate inquiry had indicated that the proposed legislation did not encourage and promote collective bargaining and therefore was not in compliance with the Convention. In disregarding the Senate's view, the Government had followed the approach taken in New Zealand's Employment Contracts Act. He highlighted three sectors where the signing of Australian workplace agreements had become mandatory for employees to keep or gain employment: in the government agency Employment National; in the giant mining company Rio Tinto; and during the nationwide maritime dispute at Patrick Stevedores.

The Employer member of Australia observed that, although the Committee of Experts commented on a variety of matters, the real substance of its concerns related to the alleged preference given by the federal Workplace Relations Act, 1996, to individual agreements over collective agreements and collective bargaining rights. On this issue he supported the statement of the Government representative and of the Employers' members. The new stream of agreements, known as Australian workplace agreements, coexisted with two other traditional instruments of the Australian industrial relations system, namely industry-based awards made by the AIRC as a result of collective processes, and certified agreements which were collective agreements applicable to one or more establishments. He considered that the Committee of Experts' observation was misconceived and that the provisions of the Act were in conformity with the requirements of the Convention. The Experts might have come to that conclusion themselves had they had the benefit of perusing the written information submitted. He stressed that Australian workplace agreements could also be the outcome of collective bargaining, particularly in small and medium enterprises. The Act deliberately provided for current certified agreements to prevail over them unless the certified agreement provided to the contrary. Federal awards, which were collective, industry-based instruments of general application, laying down minimum wages and conditions, also prevailed over workplace agreements unless the AIRC decided that it was in the public interest for the workplace agreement to prevail. There was also a very strict and extensive test against which they had to be assessed before they could be approved to operate: the "no disadvantage" test meant that if an Australian workplace agreement, when compared to a relevant award, was found to provide for a reduction in the general terms and conditions of employment as set out in the award, that agreement would not be approved until the parties either amended it or gave undertakings to remove the disadvantage. He stated that unions had an important role to play in relation to certified collective agreements and workplace agreements where they had members and where those members authorized them to act. While there was no obligation to bargain, unions and employees did have the right to initiate formal bargaining periods and to seek collective or individual agreements as they wished. Individual bargaining might now be permitted by the 1996 Act, but it was clearly not promoted in the legislation to the same extent as collective bargaining was. He emphasized that a system that allowed for individual agreements could not be said, for that reason alone, to be in conflict with the provisions of the Convention, particularly when they could themselves also be instruments giving effect to a collective bargaining outcome. Balance, in the context of the whole industrial relations system, was the critical issue. He asked that the Committee's conclusions reflect these points.

The Worker member of New Zealand stated that the Committee of Experts was unequivocal that the Workplace Relations Act and related legislation gave preference to individual agreements over collective agreements and that the Act and its interrelation with the Industrial Relations Act did not create a system whereby collective bargaining was effectively promoted. The Government was in breach of its obligations under the Convention. In its written response to this Committee, the Government had used comparisons with the New Zealand Employment Contracts Act to refute claims that its industrial relations legislation violated the Convention. She agreed, however, with the Australian Government up to a point: the New Zealand Act was undoubtedly in total breach of the Convention and of the fundamental principles to which all Members of the ILO subscribed by virtue of their membership of the Organization. The Australian industrial relations regime -- as did that of New Zealand -- gave preference to individual contracts over collective contracts. The intention of the Australian legislation -- as that of the New Zealand Act-- was to promote single enterprise and workplace agreements over multi-employer awards. There was also a parallel with New Zealand concerning the issue of "protected action" in cases of strikes and other industrial action, which only applied in negotiations towards a single business certified agreement. But the Australian scheme went beyond New Zealand in one area: workers and employers could not determine by mutual agreement that they would negotiate and sign a multi-employer agreement, as it was only the AIRC that could so determine. She added that, according to the Government's written information, paid rates awards (awards setting out actual as opposed to minimum terms and conditions of employment) were no longer permitted, and that too went well beyond the New Zealand legislation which theoretically allowed any form of agreement. The claim that there was a safety net through the underpinning awards and the "no disadvantage" test was naive at best and certainly misleading. National, multi-employer and industry-wide collective agreements or awards rapidly lost their relevance as employers opted out of them and refused to participate in their renewal. Neither the Australian nor the New Zealand legislation placed any requirement on the employer to negotiate a collective agreement even where every employee to be covered had voted for a collective contract. Both the Australian and New Zealand legislation shifted the balance of power in the workplace to the employer. She could not agree with the proposal of the Employers' members to await the Committee of Experts' further examination of the Government's latest information because measures should be taken before the damage was done; the New Zealand experience demonstrated that action had to be taken swiftly.

The Employer member of the United States stated that this case had several features affecting the credibility of the standards supervisory process. First, the report of the Committee of Experts had been supplemented by a written document from the Government offering sound and credible information, which had to be considered carefully by the Experts. Second, the Experts' conclusion that the 1996 Act did not promote collective bargaining was premature and one-sided. He could vouch that, as demonstrated in the written document and by experience of American companies having affiliates in the country, Australia had for a long time actively encouraged, supported and enforced the right to organize and bargain collectively. Third, Conventions Nos. 87 and 98 were closely linked and employees should be able to choose freely and, as stated in Article 4 of the Convention, bargain voluntary agreements. Fourth, it was clearly established within the ILO that employees also had the right to choose not to associate and not to be represented by unions. The Australian legislation appeared to recognize this right while still encouraging and promoting collective bargaining, but the Committee of Experts ignored this point. He recalled that, in 1982 during tripartite discussions of the Termination of Employment Convention, it had been stated that Convention No. 87 contemplated freedom not to be represented; the Committee of Experts needed to consider that point in this case. Fifth, the Australian legislation recognized the evolving diversity of work relationships. The focus on workplace and enterprise-level bargaining was a successful emerging approach in many countries. It was important to note that the emphasis on workplace bargaining could result in an increase in productivity and improve the living standards of workers. Basic, in this case, is the paramount principle of employee free choice, whether it is for workplace level collective bargaining or for individual self-representation. Both approaches are effective. The Committee of Experts therefore needed to consider carefully the written information provided by the Government, failing which its conclusions were premature and one-sided and weakened the credibility of the supervisory system.

The Worker member of Japan expressed his strong resentment at the Workplace Relations Act and at attempts at trade union busting. The Government had defended the legislation, arguing freedom of choice and a fair balance, but the Act undermined equality and real freedom. Respect for genuine labour relations and trade union rights was the vital issue. Recalling the historical background of the right to bargain collectively and freedom of association, he considered that it was important to review the situation. He did not agree with the Government's statement that the situation did not warrant urgent consideration in this forum. It was precisely because of the urgency of the situation that the Experts had asked for a review and amendment of the Act. Regarding the Government's reference to the Committee of Experts' statement that the impact of the legislation would not be fully clear for several years, he wondered why this Committee should wait and for how many years. The Committee should not remain complacent. The Committee of Experts had made a careful analysis of the legislation and he urged the Government to recognize this. Noting that globalization also affected labour-relations systems, he pointed to the importance of Australia in the Asia-Pacific region and warned that if the situation was not dealt with, it could spread throughout that region. He called on the Government to acknowledge that a problem existed and to take steps immediately to review the Workplace Relations Act.

The Employer member of South Africa had listened with great interest but also with disquiet to the discussion of this case, which was a significant one for the country and for collective bargaining in numerous industrialized countries. He warned, however, that if this Committee arrived at inappropriate conclusions, that bode badly for its role as a custodian of international labour standards and for the process for their supervision. The Employers' members had already stated that they were puzzled by the findings in the report of the Committee of Experts; it was perhaps because the Experts had not considered all the elements. The Government's written document was closely argued and the observation of the Committee of Experts referred to specific provisions of the Act in isolation. For example, the Experts mentioned section 3(c) but not section 3(b) or (e), which also were relevant to the aim of the legislation. Similarly, they referred to section 88A(d) of the Act, but failed to mention subsection (b). As regarded the level of bargaining, the approach of the Committee of Experts could have unintended consequences for other countries, including his own. He insisted that all the parties needed to be heard and their arguments properly considered, although the Committee of Experts did not appear to have done so. For countries not having ratified the Convention, the approach of the present Committee was helpful. The way it was seen to arrive at its conclusions was important, so there should be no decision here until the Committee of Experts had received further information from the Government and the social partners. Until then it was premature to treat the case.

The Government representative noted that the Employers' members had endorsed the points he had made earlier. He added that the Government had not been negligent regarding its reporting obligations; its written document had been provided to the Committee of Experts to enable them to understand the law better and constituted a response to the ACTU; since the waterfront dispute mentioned by two speakers was currently before the courts he could make no comment on it; the Australian workplace agreements did not replace collective bargaining. The Act encouraged collective bargaining and free choice. His Government would provide more detailed information so that the Committee of Experts would fully understand that it was complying with the Convention.

The Workers' members noted that the intervention by the Employers' members had referred more to procedures than to substance. Regarding the plea to hear all sides in this case, they pointed out that the Committee of Experts had done just that, basing its comments on information from the ACTU and the Australian Chamber of Commerce and Industry. It had been in possession of the text and had analysed it thoroughly in paragraphs 1, 2, 3 and 4 of the observation. Regarding its statement in paragraph 10 that the impact of the legislation would not be fully clear for several years, this could be said of many other pieces of legislation as well. They stressed that the process adopted in this case was identical to that used in other cases, namely written information was noted and transferred to the Committee of Experts for analysis and further information requested to clarify the situation. The fact that there was both written and oral information had never prevented this Committee from drawing conclusions.

The Employers' members emphasized that in this Committee the views were completely different, not only in respect of certain aspects, but all essential questions on the case. They pointed out that the Committee of Experts had not observed the principle of hearing all parties involved. This fact, however, had no influence on the content of the questions which had been discussed and evaluated differently in this Committee. Since it was not possible to vote upon the conclusions, the fact that contrary views were held should be reflected in the conclusions. It would not be correct to state in the conclusions that this Committee was of the opinion that the Convention had been violated by the legislation. The only conclusion which could be drawn was that this case was a very important one, that this Committee's views were completely different as regards its evaluation, and that additional information should be provided by the Government.

The Committee noted the written information communicated by the Government and the statement made by the Government representative, as well as the discussion which took place in the Committee. The Committee took due note of the observation of the Committee of Experts in which it pointed out that several provisions of the 1996 Federal Workplace Relations Act called into question the application of Articles 1 and 4 of the Convention by excluding certain categories of workers from the scope of the legislation and limiting the scope of trade union activities covered by the provisions concerning anti-union discrimination, as well as giving primacy to individual contracts over collective relations through the Australian workplace agreements procedure. The Committee of Experts further recalled that certain state legislation similarly called into question the application of the Convention. The Committee expressed the hope that the Government would supply a detailed report to the Committee of Experts on the questions put in its observation. If necessary, the Committee would pay attention to this case next year.

Endnote 1

Whilst AWAs are essentially individual agreements, they may be negotiated collectively -- see s. 170VE of the WR Act.

Endnote 2

Committee on Freedom of Association, Case No. 1698 (see 292nd and 295th Reports of the Committee on Freedom of Association at paras. 675-741 and 132-262 respectively).

Endnote 3

However, provision is made for the conversion of existing paid rates awards to minimum rates awards without loss of the additional entitlements to remuneration: see Part 2 of Schedule 5 to the WROLA Act.

Endnote 4

Committee on Freedom of Association, 277th Report, para. 229.

Endnote 5

See Part VIB of the Act.

Endnote 6

Awards and formal agreements made under federal or state law prevail over those contracts, but do not form part of them -- see Byrne v. Australian Airlines (1995) 185 CLR 410.

Endnote 7

However, some of these may be subject to informal over-award bargaining.

Endnote 8

Subsections 170LK(4) and (5) and 170M(3) of the Act.

Endnote 9

Subsections 170LJ(2), 170LK(1) and section 170LR. The term "valid majority" is defined in section 170LE of the Act. The valid majority approval requirement reinforces the voluntary nature of collective bargaining under the Act.

Endnote 10

Section 170NB of the Act.

Endnote 11

Sections 170LJ, 170LL and 170LO of the Act.

Endnote 12

Subsections 89A(1) and (2). Awards made by the Queensland Industrial Relations Commission are similarly limited.

Endnote 13

Subsection 170LU(5) of the Act.

Endnote 14

Section 170VF.

Endnote 15

Section 170VG.

Endnote 16

Subsection 170VPB(1).

Endnote 17

Subsection 170VPA(1).

Endnote 18

Paragraph 170VPA(1)(d).

Endnote 19

Paragraph 170CK(2)(g).

Endnote 20

Paragraph 170VPA(1)(e).

Endnote 21

Subsection 170VK(1).

Endnote 22

Subsection 170VK(2).

Endnote 23

Subsection 170VK(4).

Endnote 24

Subsection 170VK(5).

Endnote 25

Subparagraph 170VO(1)(b)(ii).

Endnote 26

Section 83BB.

Endnote 27

Sections 170WB and 170WC.

Endnote 28

The exceptions are AWAs for employees eligible for the Supported Wage System (section 170XB); employees undertaking approved traineeships (section 170XC); and employees undertaking approved apprenticeships (section 170XD) in respect of whom modified arrangements apply.

Endnote 29

Section 170X.

Endnote 30

Section 170XE.

Endnote 31

Section 170VPB.

Endnote 32

Subsection 170VPB(3). As of 5 December 1997, 200 AWAs had been referred to the AIRC. It is also noted that the Employment Advocate has refused to approve 141 AWAs.

Endnote 33

Section 170VPG.

Endnote 34

The most recent figures for employees covered by certified agreements relate to the December quarter for 1996. Figures for 1997 are not yet available.

Endnote 35

Subsection 170VQ(6).

Endnote 36

Subsection 170VQ(6).

Endnote 37

Section 170VM. Note that under that section an AWA may be terminated at any time by agreement between the parties.

Endnote 38

That is, variable on only limited grounds.

Endnote 39

Section 170VQ. An AWA is of no effect if it is made after the commencement and before the nominal expiry date of an award made by arbitration under section 170MX of the WR Act. These are awards made in accordance with specified criteria following the termination of a bargaining period in the circumstances provided for in subsections 170MW(3) and 170MW(7) of the Act. That is, where a bargaining period has been terminated in circumstances in which industrial action being taken is threatening to endanger the life, the personal safety or health or the welfare of the population or a part of it or cause significant damage to the Australian economy or an important part of it (subsection 170MW(3)) or in specified circumstances where a paid rates award applies, or would have applied to the employment of employees and there is no reasonable prospect of a certified agreement being reached during the bargaining period (subsection 170MW(7)).

Endnote 40

Section 170VPA.

Endnote 41

Division 8 of Part VIB.

Endnote 42

Such agreements as being consistent with the objects of the Act -- see s.3(c).

Endnote 43

It is also relevant to note that changes made by the WROLA Act to the criteria for registration under the Act make registration easier and thereby expand the scope for collective bargaining.

Endnote 44

See for example, Comalco Aluminium (Bell Bay) Enterprise Flexibility Agreement, 20 May 1996, Print N1679.

Endnote 45

Sections 170VPB and 170VPG of the Act provide for the acceptance of undertakings from employers in connection with the operation of AWA. Any such undertakings are taken to be included in the relevant AWA and are enforceable in the same way as other AWA provisions: see section 170VPJ.

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

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Article 4 of the Convention. Promotion of collective bargaining. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act enhances the enterprise bargaining framework by: (i) removing unnecessary complexity, ensuring bargaining is genuine, fair and conducted in good faith, and making “the better off overall test” simple, flexible and fair; (ii) encouraging bargaining for single-enterprise agreements by making it easier to bargain and simplifying approval requirements; (iii) removing unnecessary limitations on access to “the supported bargaining stream” and “the single-interest employer authorisation stream”, and providing enhanced access to the Fair Work Commission (FWC) for employees and their employers who require assistance to bargain; and (iv) restoring balance and fairness to the system by ensuring the process for agreement terminations is fit for purpose and fair, and sunsetting outdated and unfair collective agreements (“zombie agreements”). The Committee understands from the above and from publicly available information, that the reforms aim to promote and facilitate collective bargaining, both with a single employer and multi-enterprise bargaining. This includes simplification of approval requirements for an enterprise agreement (the FWC must be satisfied of workers’ “genuine agreement”), simplified initiation of bargaining for replacement agreements (reduced use of “the majority support determination” under section 236 of the FWA), changes to provisions on unilateral termination of outdated agreements by employers, increased role of trade unions to veto a multi-enterprise agreement, facilitated bargaining of multiple employers with a common interest, and increased role of the FWC to assist in collective bargaining, whether in industries with low agreement coverage (“supported bargaining”) or in protracted negotiations (“intractable bargaining”), and to resolve bargaining disputes, including through easier access to arbitration. Taking due note of the numerous legislative amendments introduced aimed at enhancing collective bargaining, the Committee requests the Government to provide information on the application in practice of these changes, in particular on: (i) the application of the simplified initiation and approval of collective bargaining agreements; and (ii) the recourse to facilitation abilities of the FWC in the context of “supported bargaining” or “intractable bargaining” and their effect on collective bargaining coverage. The Committee also requests the Government to indicate whether the FWC may, under certain circumstances, have recourse to arbitration with compulsory effect requested by one of the parties or the authorities.

Scope of collective bargaining. Building industry. With reference to its previous comment, the Committee recalls that section 11 of the Code for the Tendering and Performance of Building Work 2016 (the Code), accompanying the Building and Construction Industry (Improving Productivity) (BCIIP) Act, prohibits certain types of clauses in collective agreements (the reference to the type of contractual arrangement offered by the employer, requirement to consult in relation to the engagement of subcontractors, the terms and conditions of employment for subcontractors, limiting employer decisions about redundancy, demobilization or redeployment of employees based on operational requirements, and providing for the establishment or maintenance of an area which is intended to be designated for use by members, officers, delegates or other representatives of a building association). The Committee therefore requested the Government to provide information on the discussion and review process of the Code (initiated in February 2020 but halted by the COVID-19 pandemic) and to indicate the progress made to review section 11, in consultation with the social partners, with a view to removing restrictions on collective bargaining matters. The Committee notes with satisfaction the Government’s indication that the Code, including section 11 on restrictions on the content of enterprise collective agreements, was repealed by the Secure Jobs, Better Pay Act. The Government adds that there are no ongoing court cases relating to the Code.

Greenfields agreements. The Committee recalls, from its previous comment, that section 182(4) of the FWA establishes a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements) which enables an employer to apply to the FWC for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months. The Committee requested the Government to continue providing information on any cases in which the FWC approved agreements pursuant to section 182(4), as well as on the outcome of the working group mentioned by the Government, which was considering potential reforms to greenfields agreements. The Committee notes the Government’s indication that since 2019, one agreement was approved under section 182(4) in relation to a wharf project. The Government further states that the industrial relations working groups contributed to the development of the Fair Work Legislation Amendment (Supporting Australia’s Jobs and Economic Recovery) Act, 2021, which in its draft version included reforms to greenfields agreements but which are not reflected in the Act, as adopted. Taking note of the above and recalling that compulsory arbitration may be permissible in the case of first collective agreements so as to promote collective bargaining where the first steps to sound industrial relations in new contexts may be difficult, the Committee requests the Government to continue to provide information on collective bargaining agreements adopted pursuant to section 182(4) of the FWA, as well as on any measures taken to discuss or review the use of greenfields agreements.

Individual flexibility arrangements (IFAs). In its previous comment, the Committee noted that, pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an IFA, varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs, while ensuring that the employee is better off overall than if no IFA had been agreed to (section 203(4)). The Committee requested the Government to continue providing information on the application of this and other relevant provisions of the FWA in practice, as well as any supervision or complaints submitted in relation to these arrangements. The Committee notes the information provided by the Government that the General Manager’s report on the use of IFAs from 2018 to 2021 found that the prevalence of IFAs was low but occurred in a range of industries and the respondents involved in the survey generally indicated to have concluded between two and ten IFAs, even though the survey method does not allow for reliable calculations. The Government adds that it is not aware of any significant considerations by the FWC or the relevant courts of any provisions relating to IFAs except for one decision in the aviation sector (a dispute in which the employer unilaterally terminated pilots’ IFAs under an enterprise agreement in response to the COVID-19 pandemic; the parties agreed to a settlement by providing new IFAs to the pilots). Taking note of the above, the Committee requests the Government to continue to provide information on the application of this and other relevant provisions of the FWA in practice, as well as any supervision or complaints submitted in relation to these arrangements.

Conclusion of an enterprise agreement with a group of employees. The Committee’s previous comments concerned the practice which permitted, under the FWA, the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee requested the Government to provide detailed information on the application of these provisions, including on any cases observed of such agreements interfering with established workers’ organizations. The Committee notes the Government’s indication that there are no statistics on the exact number of agreements concluded by small voter cohorts. The Government further informs that: (i) the Secure Jobs, Better Pay Act simplified the approval requirements for enterprise agreements by providing one broad requirement that the FWC must be satisfied that an enterprise agreement has been genuinely agreed to by the employees; (ii) the Act also directly addressed the issue of small voter cohorts by amendments to section 188 of the FWA, which now stipulates that the FWC can only be satisfied that an enterprise agreement has been genuinely agreed to by employees if the employees who requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative, having regard to the employees the full agreement is expressed to cover; and (iii) the FWC published a statement of principles setting out matters that it must take into account in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees. The Committee takes due note of these amendments. Recalling that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective bargaining level, the Committee requests the Government to take further measures to: (i) gather information on the number of enterprise agreements signed with small cohort workers; and (ii) ensure that such agreements do not interfere with the actions of established workers’ organizations.

State jurisdictions. New South Wales. The Committee had previously noted the restriction imposed by clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation, 2014 on the content of collective bargaining (policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments) and requested the Government to indicate the precise categories of public servants covered by the 2014 Regulation. The Committee notes the Government’s indication that the 2014 Regulation was automatically repealed in September 2023 and will have no further application. The Government also informs about the establishment of an Industrial Relations Taskforce, which will work, among other activities, on adding a new, more consultative interest-based bargaining stream to allow frontline workers and their representatives to engage with Government agencies to identify savings and productivity gains in exchange for pay increases. It will also ensure that the Industrial Relations Commission is independent, properly resourced and with real powers to prevent and settle industrial disputes. The Committee requests the Government to provide updates on the functioning of the Taskforce and, in particular, to provide information on any decisions or measures taken which have an effect on the application of the Convention.

Victoria. The Committee notes the adoption of the Victorian Public Service Agreement, 2020, which the Government indicates is the key industrial instrument for public service covering 35,000 employees. The Government also emphasizes that the Public Sector Workplace Relations Policies, 2015 (no changes), read together with the Wages Policy and Enterprise Bargaining Framework, 2023 set out the position of the Victorian Government on a number of workplace relations matters arising in the public sector and covering approximately 260,000 employees. These include, among others, the Government’s promotion of free choice of union representatives in collective bargaining and a proposal to develop a Best Practice Employment Commitment on matters of collective bargaining.

Queensland. The Committee notes the Government’s indication that the 2021 review of Queensland’s Industrial Relations Act, 2016 pointed to a lack of clarity as to which organizations could act in industrial matters, resulting from some organizations purporting to be trade unions but not complying with any registration or reporting requirements of the Act. In reply, the Industrial Relations and Other Legislation Amendment Act, 2022 was adopted, which includes amendments to the definition of registered organizations and introduces civil penalties for misrepresentations. It also introduces amendments allowing a single Commissioner of the Industrial Relations Commission to mediate or arbitrate one or more matters in dispute in bargaining negotiations, at the joint request of the parties; and amendments providing a framework for good faith collective bargaining. The Committee also notes that the Act aims to regulate working conditions of independent couriers, including their right to collective bargaining. While taking due note of the Government’s indication that the amendments were introduced to address concerns of entities misrepresenting themselves as trade unions, the Committee requests the Government to ensure that the amendments are applied in line with the Convention so as not to restrict the exercise, by legitimate trade union organizations, of the rights protected by the Convention. The Committee requests the Government to provide information on the practical application of these amendments.

Application of the Convention in practice. The Committee notes the Government’s reference to the report of the General Manager of the FWC on developments in enterprise agreements, which indicates that between 2018 and 2021 fewer enterprise agreements were approved and fewer employees were covered by these agreements than in the previous reporting period. The Government further informs that the Victorian Equal Opportunity and Human Rights Commission (State of Victoria) received 456 enquiries about discrimination on the basis of industrial activity and 439 formal complaints of discrimination on this basis between 2019 and 2023, industrial action ranking high in the most common complaints received, compared to previous years. Taking note of this information, the Committee encourages the Government to continue to provide information on the application of the Convention in practice.

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

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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.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Building industry. With reference to its previous comment, the Committee recalls that section 11 of the Code for the Tendering and Performance of Building Work 2016 (the Code), accompanying the Building and Construction Industry (Improving Productivity) (BCIIP) Act, prohibits certain types of clauses in collective agreements, including: the reference to the type of contractual arrangement offered by the employer (such as a limitation of casual or daily hire employees) or requiring consultation in relation to the engagement of subcontractors; the terms and conditions of employment for subcontractors or limiting employer decisions about redundancy, demobilization or redeployment of employees based on operational requirements; and providing for the establishment or maintenance of an area which is intended to be designated for use by members, officers, delegates or other representatives of a building association.

The Committee notes that the Government specifies with respect to some of these exclusions that the Code does not ban consultation with unions, but only prohibits the inclusion of clauses requiring consultation on specified matters. The Government considers that the measures in section 11 of the Code are necessary to enable effective and productive business management, given the circumstances within the building and construction industry, such as evidence that unions use the clauses in question to apply undue pressure for employers to give preference to union subcontractors and workers. Clauses not permitted by the Code can still be included in agreements with builders who do not wish to undertake taxpayer-funded work and thus do not need to comply with the Code. However, the inclusion of these restrictions in the Code enables the Government through its purchasing power to use one of its strongest levers to change the culture of disregard for the law that has pervaded parts of the building and construction industry.

The Committee notes the Government’s reference to the examination of this legislation by the Committee on Freedom of Association (CFA) within the framework of Case No. 3278 (see 388th Report, March 2019, paragraphs 109–165). The Committee, like the CFA, once again recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and underlines that, in light of the increasing impact on conditions of employment of the diversification of contractual work arrangements, parties should not be penalized for deciding to include such issues in their negotiations. The Committee notes the latest information provided by the Government that it had released a discussion on the Code in February 2020, welcoming the views of the stakeholders, including the social partners, on its operation and potential areas where it could be strengthened to ensure it remains fit for purpose. As a result of COVID-19, however, the consultation process has been paused. The Committee requests the Government to inform of the review process of the Code once it has been recommenced and to indicate the progress made within this framework, in particular to review section 11, in consultation with the social partners, with a view to removing restrictions on collective bargaining matters.

Greenfields agreements. The Committee recalls that section 182(4) of the Fair Work Act (FWA) establishes a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements) which enable an employer to apply to the Fair Work Commission for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months.

The Committee notes the information provided by the Government relating to the 2017 independent Greenfields Agreement Review, which received submissions from Australia’s social partners and a range of other workers’ and employers’ organizations. The Government indicates that the review specifically supported the retention of the mechanism to resolve greenfields bargaining impasses (Recommendation 6). The Review was satisfied with the protections provided in this regard and in fact noted that, in the context of all the information provided to it, a six-month negotiation period represented a substantial possible delay and could very likely jeopardize either a final project approval decision or a contractor’s capacity to participate in a project. The Review also considered that the application of the prevailing pay and conditions test would most likely extend the normal approval time for a greenfields agreement. For all these reasons, including the employment significance of the successful negotiation of greenfields agreements, the Review was satisfied that a capacity to resolve disagreements about greenfields agreements was necessary and further recommended the reduction of the six-month period for negotiation, which it considered to be too long (Recommendation 7). The Government indicates however that it has not implemented the recommendation to reduce the bargaining period. In response to the Australian Council of Trade Unions (ACTU) allegation that employers may seek to withhold consent to an agreement to take advantage of these provisions, the Government recalls that the requirements for bargaining in good faith also extend to the negotiation of greenfields agreements and that the Fair Work Commission may make bargaining orders if it is satisfied that one or more of the bargaining representatives for the proposed agreement have not met or are not meeting the good faith bargaining requirements. The Fair Work Commission advised the Review that no applications had been made up to that point for a bargaining order in relation to a greenfields agreement. The Government adds that no agreements have so far been approved by the Commission under section 182(4). The Government adds that a greenfields agreement is not imposed on negotiating parties but rather all parties have an opportunity to present their case and the Commission must be satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions with the relevant industry for the equivalent work (section 187(6)). Finally, the Government indicates that on 26 May 2020, the Prime Minister announced the establishment of five industrial relations working groups comprising of employer representatives and employee representatives to develop proposals for a reform agenda aimed at job creation, one of which is considering potential reforms to current greenfields agreements arrangements. Recalling that compulsory arbitration may be permissible in the case of first collective agreements so as to promote collective bargaining where the first steps to sound industrial relations in new contexts may be difficult, the Committee requests the Government to continue providing information on any cases in which the Fair Work Commission has approved agreements pursuant to section 182(4), as well as on the outcome of the working group considering potential reforms to greenfields agreements.

Individual flexibility arrangements (IFA). In its previous comments, the Committee noted that, pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an individual flexibility arrangement varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs. The Committee took note of the concerns of the ACTU that employers frequently use individual flexibility arrangements to undercut the terms contained in a collective agreement or modern award and apply pressure to employees to accept unfair arrangements while the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would give primacy to inferior individual agreements over collective agreements, expand the range of matters subject to individual agreements and modify the operation of the better off overall test to enable non-monetary benefits to be taken into account.

The Committee notes the Government’s indication that the FWA provides safeguards to address the ACTU’s concerns, including that an employee must be better off overall under any IFA (section 203). The Government adds that both parties must genuinely agree to an IFA, an employee cannot be forced to sign an IFA to secure a job, and an employee has a right to refuse to agree to an IFA. If an employer were attempting to exert undue influence or pressure on an employee to agree to an IFA, an employee would have recourse to the general protections provisions of the FWA. If an employee and employer agree to an IFA, the IFA is taken to be a term of the agreement, and the usual remedies for breach of the terms and conditions of an agreement would apply. While the Government considers that the measures in the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would have allowed employees and employers greater capacity to tailor working arrangements to suit their individual needs, it informs the Committee that the Bill lapsed at the prorogation of the Parliament on 15 April 2016.

As regards the application of IFA provisions in practice, the Government indicates that, between 1 July 2015 and 30 June 2018, 9 per cent of employers who responded to the Commonwealth’s Survey of Employer’s Recruitment Experiences reported that they had made at least one IFA. Of these, the highest proportion of employers indicated that the IFA varied a condition of employment in a modern award (36 per cent), while 25 per cent of respondents indicated that the IFA varied an enterprise agreement. Twenty-nine per cent indicated that they had made IFAs which varied both a modern award and an agreement. The Government recalls that an IFA can be made at any time after the employee has started working for the employer and ended at any time by written agreement between an employer and employee. In the event there is not agreement, an IFA can be ended by giving the other party appropriate notice (13 weeks’ notice under an award, no more than 28 days as specified in enterprise agreements).

Duly noting that the flexibility term in an enterprise agreement must require the employer to ensure that any individual flexibility arrangement results in the employee being better off overall, a notion which may be difficult to objectively define, the Committee requests the Government to continue providing information on the application of the provisions of the FWA concerning individual flexibility arrangements in practice, as well as any supervision or complaints submitted in relation to these arrangements.

Conclusion of an enterprise agreement with a group of employees.  The Committee’s previous comments concerned the practice raised by the ACTU which permitted under the FWA the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee recalled that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, and that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. It requested the Government to take measures to ensure that collective bargaining with workers’ organizations is not undermined in practice and to provide detailed information on the application of these provisions.

The Committee notes the Government’s indication that the provisions in the FWA that deal with genuine agreement (including with respect to agreements voted on by small voter cohorts) are currently operating as intended and are reasonable and proportionate to support the objectives of Fair Work and the Australian industrial environment. In particular, the provisions in conjunction with the developing case law provide adequate protections regarding genuine agreement, including avenues available to parties to seek review of approval decisions. The Government adds that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give Notice of Employee Representational Rights (NERR) to each employee that will be covered by the proposed enterprise agreement, as soon as practicable, and no later than 14 days after the notification time. Provision of the NERR ensures that employees are aware of their rights around appointing bargaining representatives, including in workplaces where there is no union member and hence no union as a default bargaining representative. The provision of the NERR to employees also assists the Fair Work Commission to determine who is proposed to be covered by the enterprise agreement. The Fair Work Act also contains a requirement for the Fair Work Commission to be satisfied that an agreement has been genuinely agreed to by the employees employed at the time who will be covered by it. Moreover, the Explanatory Memorandum of the Fair Work Bill 2008 indicates that, when an agreement contains a large number of classifications in which employees are not employed, there may be a question as to whether the agreement was genuinely agreed to under section 188 of the Fair Work Act. While the High Court of Australia has made clear that enterprise agreements with broad coverage can properly be made with small cohorts of employees, some agreements have not been approved due to concerns that the small voting cohort in those particular matters could not have genuinely agreed to an agreement that covers a large number and variety of classifications. Finally, the Government indicates that, before approving an enterprise agreement, the Fair Work Commission must be satisfied that each award covered employee and prospective award covered employee will be better off overall under the proposed enterprise agreement than if the relevant modern award applied (section 186(2)(d)). The Committee requests the Government to provide statistics on the number of agreements concluded by small voter cohorts and information on any cases observed of such agreements interfering with established workers’ organizations or of having been found to extend to a large coverage of workers that could not be considered to represent genuine agreements.

State jurisdictions. New South Wales (NSW). In its previous comments, the Committee requested the Government to provide information on the measures taken to review the restriction imposed by clause 6(1)(f) of the 2014 Industrial Relations (Public Sector Conditions of Employment) Regulation, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State.

The Committee notes the Government’s indication that the NSW Government is committed to consulting with its employees in relation to the terms and conditions of their employment. While clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (the Regulation) states that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments, the policy is enacted through Premier’s Memorandum M2011-11, alongside other mechanisms by which the Government consults its employees. The Government also refers to Premier’s Memorandum M2016-02 (Transfer of Government Sector services or functions to the Non-Government Sector) and the NSW Government Guidelines on Change Management, which require agencies to consult with employees and the relevant union(s) on the content of a change management plan, including details of employee services and any proposed voluntary redundancy programme. While these policies sit outside the Regulation, agencies are obliged to consult with public sector employees and their representatives according to the provisions in industrial instruments, such as awards. For example, the major award covering public sector employees, the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2009, contains obligations that departments consult with unions, both formally and informally, regarding change.  Recalling the importance placed in Article 4 of the Convention on promoting collective bargaining on all matters related to terms and conditions of employment, the Committee requests the Government to indicate the precise categories of public servants covered by the 2014 Regulation, and in particular whether they may cover public servants not engaged in the administration of the State, such as teachers or those working in state institutions or enterprises.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act (FWA). In its previous comments, the Committee noted that sections 186(4), 194 and 470–475 of the FWA exclude from collective bargaining as “unlawful terms” 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. It had observed the concerns expressed by the Australian Council of Trade Unions (ACTU) with respect to the restrictions in the FWA on the content of agreements and requested the Government to review these sections, in consultation with the social partners, so as to bring them into accordance with the Convention.

The Committee notes that the Government considers these provisions to be appropriate to Australia’s national conditions (as permitted by Article 4) and that the formulation “matters pertaining to the employment relationship” in section 172(1) in relation to permissible content in enterprise agreements is a long-standing part of Australia’s industrial relations framework developed through extensive tripartite negotiation and consultation with the social partners, including the ACTU. The Government adds that the post-implementation review of the FWA by an independent expert panel (the Review Panel) was informed by submissions from various stakeholders (including the social partners) and supported the FWA content rules. Finally, the Government concludes that the current provisions dealing with permitted matters in enterprise agreements are necessary, reasonable and proportionate to support the objects of the FWA.

Emphasizing that the measures adapted to the national conditions referred to in Article 4 of the Convention should aim to encourage and promote the full development and utilization of machinery for collective bargaining, and recalling that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention, while tripartite discussions for the voluntary preparation of guidelines for collective bargaining are a particularly appropriate method of resolving such difficulties (see the 2012 General Survey on the fundamental Conventions, paragraph 215), the Committee once again requests the Government to review the above-mentioned sections of the FWA, in consultation with the social partners, so as to leave the greatest possible autonomy to the parties in collective bargaining.

The Committee also notes the supplementary information provided by the State of Queensland that as part of the health workforce response to the COVID-19 pandemic, a set of industrial relations principles and supporting documents were developed in partnership between Queensland Health and the relevant unions. These principles form an overarching employment framework in addition to the existing Certified Agreements and Awards, to allow for the rapid and respectful consultation required to make rapid temporary changes, while ensuring that industrial obligations continue to be met. The principles enshrined a commitment to flexibility on both the part of the employer and staff and ensure that the union rights of entry and right to organize continued to be met throughout the pandemic in a safe manner. The Committee welcomes these efforts to ensure broad-ranged consultation and effective and safe union access to defend workers’ interests in the challenging context of the COVID-19 pandemic.

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

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Building industry. With reference to its previous comment, the Committee recalls that section 11 of the Code for the Tendering and Performance of Building Work 2016 (the Code), accompanying the Building and Construction Industry (Improving Productivity) (BCIIP) Act, prohibits certain types of clauses in collective agreements, including: the reference to the type of contractual arrangement offered by the employer (such as a limitation of casual or daily hire employees) or requiring consultation in relation to the engagement of subcontractors; the terms and conditions of employment for subcontractors or limiting employer decisions about redundancy, demobilization or redeployment of employees based on operational requirements; and providing for the establishment or maintenance of an area which is intended to be designated for use by members, officers, delegates or other representatives of a building association.

The Committee notes that the Government specifies with respect to some of these exclusions that the Code does not ban consultation with unions, but only prohibits the inclusion of clauses requiring consultation on specified matters. The Government considers that the measures in section 11 of the Code are necessary to enable effective and productive business management, given the circumstances within the building and construction industry, such as evidence that unions use the clauses in question to apply undue pressure for employers to give preference to union subcontractors and workers. Clauses not permitted by the Code can still be included in agreements with builders who do not wish to undertake taxpayer-funded work and thus do not need to comply with the Code. However, the inclusion of these restrictions in the Code enables the Government through its purchasing power to use one of its strongest levers to change the culture of disregard for the law that has pervaded parts of the building and construction industry.

The Committee notes the Government’s reference to the examination of this legislation by the Committee on Freedom of Association (CFA) within the framework of Case No. 3278 (388th Report, paragraphs 109–165). The Committee, like the CFA, once again recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and underlines that, in light of the increasing impact on conditions of employment of the diversification of contractual work arrangements, parties should not be penalized for deciding to include such issues in their negotiations. The Committee requests the Government to indicate the measures taken or envisaged to review section 11 of the Code, in consultation with the social partners, with a view to removing these restrictions on collective bargaining matters.

Greenfields agreements. The Committee recalls that section 182(4) of the Fair Work Act (FWA) establishes a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements) which enable an employer to apply to the Fair Work Commission for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months.

The Committee notes the information provided by the Government relating to the 2017 independent Greenfields Agreement Review, which received submissions from Australia’s social partners and a range of other workers’ and employers’ organizations. The Government indicates that the review specifically supported the retention of the mechanism to resolve greenfields bargaining impasses (Recommendation 6). The Review was satisfied with the protections provided in this regard and in fact noted that, in the context of all the information provided to it, a six-month negotiation period represented a substantial possible delay and could very likely jeopardize either a final project approval decision or a contractor’s capacity to participate in a project. The Review also considered that the application of the prevailing pay and conditions test would most likely extend the normal approval time for a greenfields agreement. For all these reasons, including the employment significance of the successful negotiation of greenfields agreements, the Review was satisfied that a capacity to resolve disagreements about greenfields agreements was necessary and further recommended the reduction of the six-month period for negotiation, which it considered to be too long (Recommendation 7). The Government indicates however that it has not implemented the recommendation to reduce the bargaining period. In response to the Australian Council of Trade Unions (ACTU) allegation that employers may seek to withhold consent to an agreement to take advantage of these provisions, the Government recalls that the requirements for bargaining in good faith also extend to the negotiation of greenfields agreements and that the Fair Work Commission may make bargaining orders if it is satisfied that one or more of the bargaining representatives for the proposed agreement have not met or are not meeting the good faith bargaining requirements. The Fair Work Commission advised the Review that no applications had been made up to that point for a bargaining order in relation to a greenfields agreement. The Government adds that no agreements have so far been approved by the Commission under section 182(4). Recalling that compulsory arbitration may be permissible in the case of first collective agreements so as to promote collective bargaining where the first steps to sound industrial relations in new contexts may be difficult, the Committee requests the Government to continue providing information on any cases in which the Fair Work Commission has approved agreements pursuant to section 182(4).

Individual flexibility arrangements. In its previous comments, the Committee noted that, pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an individual flexibility arrangement varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs. The Committee took note of the concerns of the ACTU that employers frequently use individual flexibility arrangements to undercut the terms contained in a collective agreement or modern award and apply pressure to employees to accept unfair arrangements while the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would give primacy to inferior individual agreements over collective agreements, expand the range of matters subject to individual agreements and modify the operation of the better off overall test to enable non-monetary benefits to be taken into account.

The Committee notes the Government’s indication that the FWA provides safeguards to address the ACTU’s concerns, including that an employee must be better off overall under any individual flexibility arrangements (IFA) (section 203). The Government adds that both parties must genuinely agree to an IFA, an employee cannot be forced to sign an IFA to secure a job, and an employee has a right to refuse to agree to an IFA. If an employer were attempting to exert undue influence or pressure on an employee to agree to an IFA, an employee would have recourse to the general protections provisions of the FWA. If an employee and employer agree to an IFA, the IFA is taken to be a term of the agreement, and the usual remedies for breach of the terms and conditions of an agreement would apply. While the Government considers that the measures in the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would have allowed employees and employers greater capacity to tailor working arrangements to suit their individual needs, it informs the Committee that the Bill lapsed at the prorogation of the Parliament on 15 April 2016.

As regards the application of IFA provisions in practice, the Government indicates that, between 1 July 2015 and 30 June 2018, 9 per cent of employers who responded to the Commonwealth’s Survey of Employer’s Recruitment Experiences reported that they had made at least one IFA. Of these, the highest proportion of employers indicated that the IFA varied a condition of employment in a modern award (36 per cent), while 25 per cent of respondents indicated that the IFA varied an enterprise agreement. Twenty-nine per cent indicated that they had made IFAs which varied both a modern award and an agreement. The Government recalls that an IFA can be made at any time after the employee has started working for the employer and ended at any time by written agreement between an employer and employee. In the event there is not agreement, an IFA can be ended by giving the other party appropriate notice (13 weeks’ notice under an award, no more than 28 days as specified in enterprise agreements).

Duly noting that the flexibility term in an enterprise agreement must require the employer to ensure that any individual flexibility arrangement results in the employee being better off overall, a notion which may be difficult to objectively define, the Committee requests the Government to continue providing information on the application of the provisions of the FWA concerning individual flexibility arrangements in practice, as well as any supervision or complaints submitted in relation to these arrangements.

Conclusion of an enterprise agreement with a group of employees. The Committee’s previous comments concerned the practice raised by the ACTU which permitted under the FWA the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee recalled that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, and that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. It requested the Government to take measures to ensure that collective bargaining with workers’ organizations is not undermined in practice and to provide detailed information on the application of these provisions.

The Committee notes the Government’s indication that the provisions in the FWA that deal with genuine agreement (including with respect to agreements voted on by small voter cohorts) are currently operating as intended and are reasonable and proportionate to support the objectives of Fair Work and the Australian industrial environment. In particular, the provisions in conjunction with the developing case law provide adequate protections regarding genuine agreement, including avenues available to parties to seek review of approval decisions. The Government adds that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give Notice of Employee Representational Rights (NERR) to each employee that will be covered by the proposed enterprise agreement, as soon as practicable, and no later than 14 days after the notification time. Provision of the NERR ensures that employees are aware of their rights around appointing bargaining representatives, including in workplaces where there is no union member and hence no union as a default bargaining representative. The provision of the NERR to employees also assists the Fair Work Commission to determine who is proposed to be covered by the enterprise agreement. The Fair Work Act also contains a requirement for the Fair Work Commission to be satisfied that an agreement has been genuinely agreed to by the employees employed at the time who will be covered by it. Moreover, the Explanatory Memorandum of the Fair Work Bill 2008 indicates that, when an agreement contains a large number of classifications in which employees are not employed, there may be a question as to whether the agreement was genuinely agreed to under section 188 of the Fair Work Act. While the High Court of Australia has made clear that enterprise agreements with broad coverage can properly be made with small cohorts of employees, some agreements have not been approved due to concerns that the small voting cohort in those particular matters could not have genuinely agreed to an agreement that covers a large number and variety of classifications. Finally, the Government indicates that, before approving an enterprise agreement, the Fair Work Commission must be satisfied that each award covered employee and prospective award covered employee will be better off overall under the proposed enterprise agreement than if the relevant modern award applied (section 186(2)(d)). The Committee requests the Government to provide statistics on the number of agreements concluded by small voter cohorts and information on any cases observed of such agreements interfering with established workers’ organizations or of having been found to extend to a large coverage of workers that could not be considered to represent genuine agreements.

State jurisdictions. New South Wales (NSW). In its previous comments, the Committee requested the Government to provide information on the measures taken to review the restriction imposed by clause 6(1)(f) of the 2014 Industrial Relations (Public Sector Conditions of Employment) Regulation, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State.

The Committee notes the Government’s indication that the NSW Government is committed to consulting with its employees in relation to the terms and conditions of their employment. While clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (the Regulation) states that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments, the policy is enacted through Premier’s Memorandum M2011-11, alongside other mechanisms by which the Government consults its employees. The Government also refers to Premier’s Memorandum M2016-02 (Transfer of Government Sector services or functions to the Non-Government Sector) and the NSW Government Guidelines on Change Management, which require agencies to consult with employees and the relevant union(s) on the content of a change management plan, including details of employee services and any proposed voluntary redundancy programme. While these policies sit outside the Regulation, agencies are obliged to consult with public sector employees and their representatives according to the provisions in industrial instruments, such as awards. For example, the major award covering public sector employees, the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2009, contains obligations that departments consult with unions, both formally and informally, regarding change. Recalling the importance placed in Article 4 of the Convention on promoting collective bargaining on all matters related to terms and conditions of employment, the Committee requests the Government to indicate the precise categories of public servants covered by the 2014 Regulation, and in particular whether they may cover public servants not engaged in the administration of the State, such as teachers or those working state institutions or enterprises.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act (FWA). In its previous comments, the Committee noted that sections 186(4), 194 and 470–475 of the FWA exclude from collective bargaining as “unlawful terms” 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. It had observed the concerns expressed by the Australian Council of Trade Unions (ACTU) with respect to the restrictions in the FWA on the content of agreements and requested the Government to review these sections, in consultation with the social partners, so as to bring them into accordance with the Convention.

The Committee notes that the Government considers these provisions to be appropriate to Australia’s national conditions (as permitted by article 4) and that the formulation “matters pertaining to the employment relationship” in section 172(1) in relation to permissible content in enterprise agreements is a long-standing part of Australia’s industrial relations framework developed through extensive tripartite negotiation and consultation with the social partners, including the ACTU. The Government adds that the post-implementation review of the FWA by an independent expert panel (the Review Panel) was informed by submissions from various stakeholders (including the social partners) and supported the FWA content rules. Finally, the Government concludes that the current provisions dealing with permitted matters in enterprise agreements are necessary, reasonable and proportionate to support the objects of the FWA.

Emphasizing that the measures adapted to the national conditions referred to in Article 4 of the Convention should aim to encourage and promote the full development and utilization of machinery for collective bargaining, and recalling that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention, while tripartite discussions for the voluntary preparation of guidelines for collective bargaining are a particularly appropriate method of resolving such difficulties (see 2012 General Survey on the fundamental Conventions, paragraph 215), the Committee once again requests the Government to review the above-mentioned sections of the FWA, in consultation with the social partners, so as to leave the greatest possible autonomy to the parties in collective bargaining.

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

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Building industry. The Committee notes the observations of the Australian Council of Trade Unions (ACTU) alleging that the Building and Construction Industry (Fair and Lawful Building Sites) Code, which will apply to construction projects funded by the federal Government, restricts the content of collective agreements and discourages the application of existing agreements freely concluded between parties. It notes that the Government intends to formally issue the Code following the passage of the Building and Construction Industry (Improving Productivity) Bill. In this regard, the Committee understands that the Bill was passed into law on 2 December 2016. Pursuant to section 11 of the proposed Code, an entity within the remit of the Code must not be covered by an agreement that contains clauses pertaining to a number of subjects, including clauses: (i) prescribing the number of employees or subcontractors that may be employed or engaged for a particular site, work area, or time; (ii) restricting the employment or engagement of persons by reference to the type of contractual arrangement offered by the employer (such as a limitation of casual or daily hire employees); (iii) requiring consultation with, or seeking the approval of, a building association or an officer, delegate or other representative of the building association in relation to the source or number of employees to be engaged, or type of employment offered to employees or in relation to the engagement of subcontractors; (iv) prescribing the scope of work of subcontractors or terms and conditions of employment for subcontractors; (v) limiting or having the effect of limiting the right of an employer to make decisions about redundancy, demobilization or redeployment of employees based on operational requirements; (vi) providing for the rights of an official of a building association to enter premises other than as provided in the Fair Work Act (FWA); and (vii) providing for the establishment or maintenance of an area which is intended to be designated to be used by members, officers, delegates or other representatives of a building association in that capacity.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2326 (338th Report, paragraphs 433–457), in its examination of an earlier Australian Code on the building and construction industry, in which it considered that matters which might be subject to collective bargaining, including the type of agreement to be offered to employees, as well as matters such as selection criteria in the case of redundancy and the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation, should not be excluded from the scope of collective bargaining by law or by financial disincentives. In addition, the Committee underlines that, in light of the increasing impact on conditions of employment of the diversification of contractual work arrangements, parties should not be penalized for deciding to include these issues in their negotiations. The Committee requests the Government to review the abovementioned provisions of the Building and Construction Industry (Fair and Lawful Building Sites) Code, in consultation with the social partners, with a view to removing these restrictions on collective bargaining matters. It requests the Government to provide information on the measures taken or envisaged in this regard.

Greenfields agreements. The Committee notes the Government’s statement that the amendments to the FWA of 2015 established a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements), providing that an employer can apply to the Fair Work Commission for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months (pursuant to section 182(4) of the FWA). The Government indicates that approval of such agreements would be subject to the existing criteria in the FWA, and agreements would be required to be consistent with prevailing industry standards. It also indicates that the effect of these amendments will be subject to independent review by November 2017.

The Committee notes the observations of the ACTU that these amendments allow employers to have an agreement imposed on union negotiating parties (and employees who are later employed under the terms of such agreements) at the end of a six-month negotiating period, irrespective of the views of those parties. The ACTU states that employers may also be encouraged to withhold consent to an agreement on the basis that the industrial tribunal is required under the legislation to impose an agreement on the parties provided it meets certain minimum requirements. The Committee recalls that under Article 4 of the Convention, measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation, and that, as a consequence, compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises. Noting that an independent review will be undertaken in 2017, the Committee requests the Government to review section 182(4) of the FWA, on the approval of a greenfields agreement without the agreement of the parties, as indicated above, in consultation with the social partners.

Individual flexibility arrangements. The Committee notes that pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an individual flexibility arrangement varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs. Such agreements must not include terms that would be unlawful in an enterprise agreement, and the flexibility term must require the employer to ensure that any individual flexibility arrangement results in the employee being better off overall (section 203). It notes that the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would amend the FWA to specify that, if the enterprise agreement includes terms that deal with certain subjects (particularly arrangements about when work is performed; overtime rates; penalty rates; allowances; and leave loading), the flexibility term must provide that the effect of those terms may be varied by an individual flexibility arrangement agreed to under the flexibility term.

The Committee notes the observations of the ACTU that employers frequently use individual flexibility arrangements to undercut the terms contained in a collective agreement or modern award and apply pressure to employees to accept unfair arrangements. The ACTU alleges that the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 will give primacy to inferior individual agreements, over collective agreements, expand the range of matters subject to individual agreements and modify the operation of the better off overall test to enable non-monetary benefits to be taken into account. Recalling that employers and workers bound by a collective agreement should be able to include in contracts of employment stipulations which depart from the provisions of the collective agreement only if these stipulations are more favourable to the workers, the Committee requests the Government to provide its comments on the observations of the ACTU, and to provide information on the application of the provisions of the FWA concerning individual flexibility arrangements in practice.

Conclusion of an enterprise agreement with a group of employees. The Committee notes the observations of the ACTU concerning the practice permitted under the FWA of the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee recalls in this respect that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, and that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. The Committee considers that direct bargaining between the enterprise and its employees with a view to avoiding sufficiently representative organizations, where they exist, may undermine the principle of the promotion of collective bargaining set out in the Convention (see 2012 General Survey on the fundamental Conventions, paragraph 239). In the light of Article 4 of the Convention, the Committee requests the Government to take measures to ensure that collective bargaining with workers’ organizations is not undermined in practice and to provide detailed information on the application of the provisions of the Fair Work Act on the approval of enterprise agreements in this respect.

State jurisdictions. New South Wales (NSW). The Committee previously noted the observations of the ACTU that the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 of NSW, and the accompanying Industrial Relations (Public Sector Employment) Regulation 2011, required the NSW Industrial Relations Commission to give effect to the Government’s public sector policies when making or varying awards or orders relating to the remuneration or other conditions of employment of public sector employees and removed the right of the public sector unions to bargain effectively for wages and conditions of employment for its members across the State.

The Committee notes that the 2011 Regulation was superseded in 2014 by the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014. Clause 6 of the 2014 Regulations provides that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments (clause 6(1)(f)). The Committee notes the Government’s statement that there have been no changes to the 2014 Regulations since their adoption. In this respect, it notes the conclusions and recommendations of the CFA in Case No. 3118 (377th Report, paragraphs 177–185), referring the legislative aspects of the case to this Committee. The CFA considered that, with respect to clause 6(1)(f) of the 2014 Regulations, public servants not engaged in the administration of the State should enjoy the right to bargain collectively on all matters related to terms and conditions of their employment, including on the rights of employees on termination, and that rationalization and staff reduction processes should involve consultations or attempts to reach agreement with the trade union organizations. Furthermore, where a staff reduction programme is undertaken, negotiations should take place between the relevant trade union and the employer. The Committee requests the Government to provide information on the measures taken to review the restriction imposed by clause 6(1)(f) of the 2014 Regulations, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State. The Committee requests the Government to ensure that in the future, any questions or proposed legislation affecting workers’ rights are brought, at an early stage of the process, to the attention of the Industrial Relations Advisory Council or any other appropriate forum so as to permit the attainment of mutually acceptable solutions.

Western Australia. The Committee previously noted the observations of the ACTU and the ITUC concerning recommendations made by the Western Australian government to review state industrial relations so as to give employers the power to insist that their employees sign individual contracts and to remove unfair dismissal protections for employees in small businesses. It also noted the Government’s indication that the draft Labour Relations Legislation Amendment and Repeal Bill was tabled in the Western Australian Parliament in 2012. The Committee notes the Government’s statement that the Western Australian government has not progressed with the Labour Relations Legislation Amendment and Repeal Bill and that the Industrial Relations Act 1979 has not been amended.

Queensland. The Committee notes the information provided by the Government in reply to its previous request concerning the observations of the ACTU that amendments to the Industrial Relations Act 1999 contravened Article 4 of the Convention. In particular, the Committee notes the Government’s indication that the amendments of the Industrial Relations Act 1999 were reversed in 2015, through the Industrial Relations (Restoring Fairness) and Other Legislation Amendment Act 2015.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 1 September 2014 and 31 August 2016, concerning issues examined in the present observation and corresponding direct request.

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act. In its previous comments, the Committee noted that section 172(1) of the Fair Work Act (FWA) provides that an enterprise agreement may be made on matters pertaining to the employment relationship, deductions from wages, and the operation of the agreement, and that sections 186(4), 194 and 470–475 of the FWA exclude from collective bargaining as “unlawful terms” 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. Section 353 of the FWA prohibits the inclusion of a provision allowing for bargaining services fees in collective agreements and prohibits an industrial association, or an officer, or member of an industrial association from demanding payment of such a fee. The Government indicated in this respect that the prohibition on clauses requiring the payment of bargaining services fees in the FWA reflected the fact that such fees did not pertain to the employment relationship.

The Committee notes that the ACTU once again reiterates its concerns with respect to the restrictions in the FWA on the content of agreements. It also notes the Government’s statement that the Productivity Commission undertook an inquiry into the workplace relations framework, and that it is considering the recommendations contained in the Commission’s final report released in December 2015. The Committee notes that the Commission’s report considered submissions from both workers’ and employers’ organizations, and recommended that the FWA be amended to specify that an enterprise agreement may only contain terms about permitted matters. The Committee recalls that, legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention, and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties (see the 2012 General Survey on the fundamental Conventions, paragraph 215). The Committee once again requests the Government to review the abovementioned sections of the FWA, in consultation with the social partners, so as to bring them into accordance with the Convention and requests the Government to provide information on the measures taken or envisaged in this regard.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Scope of collective bargaining. The Committee had previously noted that section 353 of the Fair Work (FW) Act, 2009 prohibited an industrial association, or an officer, or member of an industrial association, not only from demanding payment of a bargaining services fee, defined as a fee payable to an industrial organization or to someone in lieu of an industrial organization, other than membership fees, wholly or partly for the provision, or purported provision, of bargaining services, but also from including a provision allowing for bargaining agent fees in a collective agreement. According to the Government, the retention of the prohibition on clauses requiring the payment of bargaining service fees in the FW Act reflected a decision of the High Court of Australia which ruled that such fees did not pertain to the employment relationship. While taking due note of this explanation, the Committee had requested the Government to provide information on the developments in the review of this section with the social partners.

The Committee had also noted that while section 172(1) of the FW Act provided that an agreement may be made on matters pertaining to the employment relationship, deductions from wages, and the operation of the agreement, the exact scope of the term “matters pertaining to the employment relationship” was elusive and sections 186(4) and 194, as well as sections 353 and 470–475, exclude from collective bargaining as “unlawful terms” 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 FW Act. It had therefore requested the Government to review the abovementioned sections in consultation with the social partners so as to broaden the scope of collective bargaining.

The Committee notes the Government’s indication that the review panel considered that the prohibition on clauses requiring the payment of bargaining services fees was not a general matter of concern. Furthermore, the panel observed that current rules about matters that can be included in an enterprise agreement “accord a fair balance between the prerogative of management to manage and the reasonable desire of employees to jointly govern their terms and conditions of employment” and that any further refinement of the matters should be left to the Fair Work Commission (FWC).

The Committee notes that the Australian Council of Trade Unions (ACTU) in its communication dated 30 August 2013 regrets that the Government has not reviewed the relevant sections of the FW Act in consultation with the social partners, with a view to broadening the scope of collective bargaining.

The Committee recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention. It further recalls that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties. The Committee once again requests the Government to review the abovementioned sections in consultation with the social partners so as to broaden the scope of collective bargaining and asks the Government to provide information on the measures taken or envisaged in this regard.

State jurisdictions. New South Wales (NSW). The Committee had previously requested the Government to provide its observations on the ACTU’s allegation that the adoption of the Industrial Relations (IR) Amendment (Public Sector Conditions of Employment) Act 2011, requiring the NSW Industrial Relations Commission to give effect to the Government’s public sector policies when making or varying awards or orders relating to the remuneration or other conditions of employment of public sector employees, removed the right of the public sector unions to bargain effectively for wages and conditions of employment for its members across the State.

The Committee notes the Government’s indication that the validity of the above legislation and the accompanying Industrial Relations (Public Sector Employment) Regulation 2011 was tested in the High Court in December 2012. The Court found both the legislation and regulation to be valid, and in particular, that their application by the NSWIRC and the NSW Industrial Court does not undermine the institutional integrity of these bodies. The Government points out that the NSW jurisdiction is not a bargaining jurisdiction in the same sense that the federal jurisdiction is. The outcomes of negotiations between parties are usually codified in terms of variations to existing accords, or by making new awards, where appropriate. The legislation and regulation merely provide for a framework within which outcomes must be negotiated and in this sense, they are no different to the rest of the legislative framework regulating industrial activities in the NSW public sector.

The Committee notes that in its 2013 communication the ACTU, referring to the regulation, indicates that this instrument sets out aspects of the Government’s policy that are to be given effect by the NSWIRC pursuant to the IR Act. According to the ACTU, the key features of the regulations include the following: (i) increases in remuneration or other conditions of employment are limited to 2.5 per cent per annum (increases above this cap are only permitted where “sufficient employee-related cost savings have been achieved to fully offset the increased employee-related cost”); and (ii) policies “regarding the management of excess public sector employees” are not permitted to be “incorporated into industrial agreements”. The Committee requests the Government to provide information on the measures taken to review restrictions on certain collective bargaining subjects in the legislation, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State.

Western Australia. The Committee notes the observations provided by the Government in its report on the allegations previously submitted by the ACTU and ITUC concerning the recommendations made by the Western Australian Government to review state industrial relations so as to give employers the power to insist their employees sign individual contracts and to remove unfair dismissal protections for employees in small businesses. The Committee notes the Government’s indication that on 14 November 2012, the draft Labour Relations Legislation Amendment and Repeal Bill 2012 was tabled in the Western Australian Parliament. The draft proposes to amend the Industrial Relations Act 1979 so as to broadly harmonise its unfair dismissal provisions with those of the Commonwealth FW Act (for example, employees will only be able to claim unfair dismissal if they have worked for a minimum period of 12 months for a small business employers, or six months for any other employer). According to the Government, the draft Bill does not contain changes to existing provisions concerning Employers–Employee Agreement (EEAs): it remains unlawful for an employer to make the signing of an EEA a condition of employment. While noting the Government’s explanation that the Bill was tabled as a Green Bill, meaning that it is for public comments and does not necessarily represent the Government’s settled position, the Committee recalls that the Convention provides that workers shall enjoy adequate protection against acts of anti-union discrimination throughout their employment, including at the hiring stage. The Committee requests the Government to ensure that workers are protected against acts of anti-union discrimination in accordance with this principle and to report on any measures taken to modify the above Bill.

Queensland. The Committee notes the ACTU’s allegation that measures introduced in Queensland through the Public Service and Other Legislation Amendment Act 2012 amending the Industrial Relations Act 1999 contravene Article 4 of the Convention. The Committee requests the Government to provide its observations thereon.

Building industry. The Committee notes the comments provided by the ACTU regarding procurement guidelines applicable to the building and construction industries adopted in New South Wales, Queensland and Victoria. The Committee notes, in particular, that according to the ACTU, in May 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) successfully challenged the Victorian Guidelines on the basis that they were inconsistent with freedom of association protection in the federal FW Act. The Committee notes with interest that the court decisions have subsequently gave rise to the revision of the Guidelines in the three States. The Committee notes the ACTU’s allegation that the Victorian Government has expressed its intention to appeal the court decisions. It requests the Government to provide information on any further developments in this regard.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) and the International Trade Union Confederation (ITUC) contained in communications dated 30 August 2013.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In its previous comments, the Committee referred to the need to ensure that workers were adequately protected against anti-union discrimination, especially against dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (that is, negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). Pursuant to sections 347 and 772 of the Fair Work (FW) Act, 2009, and to information provided by the Government, the Committee understood that protection against anti-union discrimination, including against dismissals, covered pattern bargaining to the extent that the parties were genuinely trying to reach an agreement. The Committee requested the Government to provide information on any relevant decisions emanating from Fair Work Australia (FWA) and the steps taken to ensure protection in relation to action aimed at achieving multiple business agreements. The Committee notes the Government’s indication that the provisions of the FW Act relating to pattern bargaining have been before the review panel, which, having considered various submissions from stakeholders, concluded that the current provisions were appropriate and did not recommend any change. The Government also indicates that there have been no decisions given by courts or other tribunals that have restricted the ability of unions and employees to take industrial action on the grounds that they were engaged in pattern bargaining.

Article 4. Promotion of collective bargaining. The Committee had previously noted that individual statutory agreements were not part of the new system established under the FW Act but that, in line with the Government’s prior policy commitments, existing Australian Workplace Agreements (AWAs) would continue to apply until they are terminated. The Committee requested the Government to provide information on the application and impact in practice of section 172 of the FW Act regulating the making of enterprise agreements between employers and relevant employee organizations, as well as on the current situation with regard to AWAs and Individual Transitional Employment Agreements (ITEAs), including statistical data on the number of AWAs and ITEAs terminated since the entry into force of the FW Act, the number of remaining AWAs and ITEAS applicable and their expected termination dates.

The Committee notes the Government’s indication that under section 172 of the FW Act, when seeking to make an enterprise agreement other than a greenfields agreement, bargaining representatives must comply with the good faith bargaining requirements of the Act. Employers seeking to deal directly with employees in relations to a proposed enterprise agreement are required to recognise and bargain with relevant employee organizations including by providing them with all relevant information about the proposed enterprise agreement. The Committee notes the statistical data provided by the Government demonstrating that single-enterprise agreements and multi-enterprise agreements that are not greenfields agreements represent the majority of agreements made under the FW Act. With regard to the number of the remaining AWAs and ITEAs, the Government indicates that while there is no current available data on the subject, such agreements have now passed their nominal expiry dates and are able to be terminated on application by either the employer or the employee to the Fair Work Commission (FWC), which replaced the FWA.

As regards the termination of protected industrial action under sections 423, 424 or 431 of the FW Act, the Committee had previously noted that bargaining representatives had a negotiating period of 21 days (extendable to 42 days by FWA) in which to resolve the matters at issue and that, if the parties were unable to reach an agreement, the FWA must make a binding industrial action related workplace determination which has the effect of an enterprise agreement. It had also noted that under section 240 of the Act, a bargaining representative could request the FWA to deal with a dispute about a proposed enterprise agreement if the bargaining representatives were unable to resolve the dispute and that the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement had agreed to the making of the application if the proposed agreement was a single-enterprise agreement or a multi-enterprise agreement in relation to which a low-paid authorization was in operation. The Committee recalled that arbitration imposed by the authorities at the request of one party was generally contrary to the principle of voluntary negotiation of collective agreements and requested the Government to clarify the role of FWA in case of continuing disagreement between the parties and whether the parties remained able to resume negotiations at any point.

The Committee notes that the Government explains that the termination of protected industrial action under sections 423, 424 or 431 of the FW Act commences a formal workplace determination process overseen by the FWC. The parties have a final opportunity to resolve all outstanding matters within 21 days (which can be extended to 42 days by agreement). If this occurs, the parties apply to the FWC for approval of an enterprise agreement in the agreed terms. If there is no agreement, FWC must proceed to make a workplace determination which must include any terms that were agreed between the parties after the 21 (or 42) day negotiating period expired. The determination must deal with any matters still at issue at that time. The FWC made seven workplace determinations under the FW Act. The Government refers to two such decisions: in the first, the FWC stated its intention to exercise caution in accepting disputed claims that would alter longstanding and agreed arrangements, finding these were properly a matter for future bargaining; in the second, the FWA gave effect to the agreement reached by the parties after the end of the post-industrial action negotiating period (but before a workplace determination was made).

Building industry. The Committee recalls that it had previously requested the Government to: (i) revise section 64 of the Building and Construction Industry Improvement (BCII) Act to ensure that the determination of the bargaining level was left to the discretion of the parties and was not imposed by law or decision of the administrative authority; and (ii) promote collective bargaining, especially by ensuring that there were no financial penalties or incentives linked to undue restrictions on collective bargaining. In this respect, it had noted the Government’s indication that it had introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009 in order to amend the BCII Act so as to, in particular, repeal section 64 of the BCII Act with the effect that the level of bargaining would be determined in accordance with the FW Act. The Committee had therefore requested the Government to provide information on the developments in this respect as well as on the progress made in the development of the guide to good faith collective bargaining in the building and construction industry.

The Committee notes with interest the Government’s indication that the abovementioned Bill, which repealed section 64 of the BCII Act in its entirety, was passed by Parliament on 20 March 2012, and that the Fair Work (Building Industry) Act 2012 and the Fair Work Building Industry Inspectorate, operating as Fair Work Building and Construction (FWBC), commenced operation on 1 June 2012. Finally, the Government indicates that the FWBC is expected to release further guidance material later in 2013. The Committee requests the Government to provide information on all progress made in this respect. The Committee notes with interest the information submitted by the ACTU regarding a National Code made pursuant to the FW (Building Industry) Act 2012, and in particular, that the terms of the Code are subject to parliamentary scrutiny; that it is expressed to be a comprehensive statement of the workplace practices required of building industry participants; and that State Government Guidelines cannot include additional requirements relating to those matters.

The Committee notes the observations provided by the Government in its report on the allegations previously submitted by the ACTU and ITUC concerning the intention of the Government of South Australia to unilaterally cut entitlements of public sector workers, which had been agreed upon through collective agreements. It notes with interest that according to the Government, in South Australia, the matters have been resolved through negotiations between the South Australian Government and the Public Service Association (Community and Public Sector Union, SA Branch).

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

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Bargaining fees. The Committee had previously noted that section 353 of the Fair Work Act, 2009 prohibits an industrial association, or an officer or member of an industrial association, from demanding payment of a bargaining services fee, defined as a fee payable to an industrial organization or to someone in lieu of an industrial organization, other than membership fees, wholly or partly for the provision, or purported provision, of bargaining services. The Committee had further noted that parties could not include unlawful terms in a collective agreement, including a provision allowing for bargaining agent fees. The Committee had requested the Government to provide information on the practical application and any reported impact of section 353 on collective bargaining and to review this section, in full consultation with the social partners concerned, with a view to its amendment in the light of the Committee’s comments.

The Committee notes that the Government explains that the retention of the prohibition on clauses requiring the payment of bargaining service fees in the Fair Work Act reflects a decision of the High Court of Australia which ruled that such fees do not pertain to the employment relationship. The Committee takes note of the information and requests the Government to provide information on any further developments in the review of this section with the social partners.

Unlawful terms in collective agreements. The Committee had previously noted the concerns raised by the Australian Council of Trade Unions (ACTU) concerning certain unlawful terms that may not be included in collective agreements, such as: to extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay; to pay bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior to those contained within the Act and requested information on the practical application of these provisions as well as on any steps taken or envisaged to further broaden the potential scope of collective bargaining.

The Committee notes that the Government indicates that the Fair Work Act broadens the scope of the agreement content compared to the Workplace Relations Act as enterprise agreements can include terms relating to deduction of union fees, trade union training leave, renegotiation of workplace agreements, consultation with unions about change in the workplace and the role of unions in dispute settlement procedures. According to the Government, it has always been a feature of Commonwealth workplace relations law that industrial instruments should deal with matters pertaining to the employment relationship although such matters have evolved over time and terms that would be within the scope of matters pertaining to employers’ relationships with employees or unions under the Fair Work Act now include terms relating to: (1) staffing levels (particularly where the aim is to protect the health, safety and wellbeing of employees); (2) conditions or requirements on employment of casuals or engagement of contractors if the terms sufficiently relate to the job security of employees (such as terms requiring that the conditions of engagement of casuals or contractors will not undercut employees’ terms and conditions in the enterprise agreement); (3) conversions of casual employment to permanent employment; (4) restrictions on employers seeking contributions or indemnities from employees in relation to personal injuries caused by and to the person in the course of the employment; (5) paid leave for union meetings or activities; (6) methods for providing union information to employees. The Committee notes that the Government confirms that section 194 of the Fair Work Act defines the meaning of “unlawful terms” which cannot be included in enterprise agreements reflecting developments in Australian law on the question of matters pertaining to the employment relationship, and gives primacy to the Act as the source of rights and obligations in relation to general protections, unfair dismissal, right of entry and industrial action.

The Committee takes note of the application made by Fair Work Australia (FWA) of these provisions in the decisions provided by the Government, which is consistent with the Government’s approach and prevents parties to collective bargaining from including terms considered “unlawful” in their negotiations and agreements. The Committee notes that a decision of the full court of the Federal Court upheld a decision finding that a term that required the employer to obtain income protection insurance for its employees was a matter pertaining to the employment relationship and therefore not “prohibited content”. The Committee further notes in the ACTU comments that a full bench of FWA refused to approve a proposed collective agreement which contained a term entitling an authorized trade union representative to enter the employer’s premises at all reasonable times to interview employees, but not so as to interfere unreasonably with the employer’s business, on the basis that this term was “unlawful” even though it reflected consensual arrangements reached between the employer and the union concerning entry onto the employer’s premises. The Committee further observes that, according to the ACTU, the jurisprudence has proven confusing and inconsistent making it difficult for parties to identify whether a matter does or does not pertain to the employment relationship, and is therefore lawful or unlawful to negotiate over. The ACTU indicates that the jurisprudence has the effect of excluding from bargaining many matters over which workers and employers may legitimately wish to bargain including, for example, an employer’s environmental practices, restrictions on the proportion of contractors or labour hire workers used at an enterprise and provisions requiring an employer to take out private health insurance cover for employees and their families.

Finally, the Committee draws attention to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2698 (357th Report, paragraphs 213–229) which, noted in this respect, that, while section 172(1) of the Fair Work Act provides that an agreement may be made on matters pertaining to the employment relationship, deductions from wages, and the operation of the agreement, the exact scope of the term “matters pertaining to the employment relationship” remains elusive and sections 186(4) and 194, as well as sections 353, 470–475, exclude from collective bargaining as “unlawful terms” 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 right to entry for compliance purposes more extensive than under the provisions of the Fair Work Act. The Committee on Freedom of Association recalled that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties. The Committee requests the Government to review the abovementioned sections in light of the above and in consultation with the social partners, and to broaden the scope of collective bargaining. The Committee further requests the Government to provide information in its next report on any steps taken or envisaged in this regard.

State jurisdictions. New South Wales. The Committee notes that the Government indicates in its report that, on 16 June 2011, the New South Wales Parliament passed amendments to the Industrial Relations Act 1996 requiring the NSW Industrial Relations Commission to give effect to the Government’s public sector policies when making or varying awards or orders relating to the remuneration or other conditions of employment of public sector employees and that, on 20 June 2011, the Industrial Relations (Public Sector Employment) Regulation 2011 was issued and declared the public sector policies that the Commission must give effect to, including the NSW Public Sector Wages Policy 2011. The Committee observes that the ACTU indicates that the adoption of the Industrial Relations Amendment (Public Sector Conditions of Employment) Act 2011 removed the right of the public sector unions to bargain effectively for wages and conditions of employment for its members across the state. The Committee requests the Government to provide its observations on these matters in its next report.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2011 and the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 on the application of the Convention, in particular as regards: (1) the alleged intention of the Government of South Australia to unilaterally cut entitlements of public sector workers which had been agreed upon in good faith through collective agreements; and (2) the recommendations of the review of state industrial relations made by the Western Australian Government to give employers the power to insist their employees sign individual contracts and to remove unfair dismissal protections for employees in small businesses. The Committee requests the Government to provide its observations on these matters in its next report.

The Committee notes that the Government indicates that from 1 January 2010, all States other than Western Australia referred their industrial relations powers to the Commonwealth, essentially creating a new national industrial relations system for the private sector known as the national system. Pursuant to the Fair Work Act 2009, the Fair Work Regulations 2009, the Fair Work (Registered Organizations) Act 2009 and the Fair Work (Registered Organizations) Regulations 2009, the national system covers constitutional corporations, the Commonwealth and its authorities, employers who employ flight crews, maritime employees or waterside workers in connection with interstate or overseas trade and commencer, all employers in Victoria, the Northern Territory and the Australian Capital Territory, private sector employers in New South Wales, Queensland, South Australia and Tasmania and local government employers in Tasmania. The Committee notes that the following employers are not covered by the Fair Work Act: (1) State public sector or local government employment or employment by non-constitutional corporations in the private sector in Western Australia; (2) State public sector and local government employment in New South Wales, Queensland and South Australia; and (3) State public sector employment in Tasmania.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In its previous comments, the Committee raised the need to ensure that workers are adequately protected against anti-union discrimination, especially against dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). Pursuant to sections 347 and 772 of the Fair Work Act, 2009, and to information provided by the Government, the Committee understood that protections against anti-union discrimination, including against dismissals, covered pattern bargaining to the extent that the parties were genuinely trying to reach an agreement. The Committee requested the Government to provide information on the manner in which industrial action related to pattern bargaining was protected in practice, including any relevant decisions from Fair Work Australia. The Committee further requested the Government to indicate the steps taken or envisaged to ensure protection against anti-union dismissals related to actions taken in respect of multiple business agreements.

The Committee notes that the Government indicates in its report that the industrial activity protection under Part 3-1 of the Fair Work Act only prohibits adverse action being taken against a person who engages in lawful activity and that industrial action related to pattern bargaining is not considered to be a lawful industrial activity under the Act unless the parties are genuinely trying to reach an agreement. As the Government has not provided any further information in relation to protection of industrial action related to pattern bargaining, the Committee once again requests the Government to provide information on any relevant decisions emanating from FWA and the steps taken to ensure protection in relation to action aimed at achieving multiple business agreements.

Article 4. Promotion of collective bargaining. The Committee previously noted with satisfaction that individual statutory agreements were not part of the new system established under the Fair Work Act but that, in line with the Government’s prior policy commitments, existing Australian Workplace Agreements (AWAs) would continue to apply until they are terminated. The Committee requested the Government to provide information on the application of these provisions in practice.

The Committee notes that the Government reiterates that the Fair Work Act does not allow for “employer greenfields agreements” and that the making of greenfields agreements between employers and relevant employee organizations is regulated by section 172(2)(b) of the Act. The Government indicates that as of 31 December 2010, greenfields agreements represented 6.1 per cent of all Fair Work Act agreements (551 out of 9,077) and reaffirmed that AWAs and Individual Transitional Employment Agreements (ITEAs) can no longer be made but AWAs lodged on or before 27 March 2008 and ITEAs lodged on or before 31 December 2009 continue to operate until they are terminated or replaced: they can be terminated by common agreement of the employer and employee at any time, or unilaterally when they reach their nominal expiry date and, once terminated, any new enterprise agreement that covers the employee will then apply. Unilateral conditional termination can also be made pending the making of a new enterprise agreement to enable the employee to participate in collective bargaining for an enterprise agreement.

The Committee draws the attention to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No 2698 (357th Report, paragraphs 213–229) regarding the possibility for employers pursuant to the Fair Work Act to enter into agreements directly with employees, even where a union exists. The Committee underlines that the Committee on Freedom of Association recalled that direct negotiation between an undertaking and its employees, bypassing representative organizations where these exist, might, in certain cases, be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, and requested the Government to ensure respect for this principle and to provide detailed information on the application of section 172 of the Fair Work Act in practice. The Committee requests the Government to continue to provide information on the application and impact of section 172 in practice, as well as, on the current situation with regard to AWAs and ITEAs, including further statistical data on the number of AWAs and ITEAs terminated since the entry into force of the Fair Work Act, the number of remaining AWAs and ITEAS applicable and their expected termination dates.

In several of its previous comments, the Committee had raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the Workplace Relations Act so as to ensure that multiple business agreements were not subject to a requirement of prior authorization at the discretion of the employment advocate. The Committee had noted that section 186 of the Fair Work Act requires that any enterprise agreement be authorized by the FWA and that FWA may only approve multi-employer agreements if it is satisfied that no person coerced, or threatened to coerce, any of the employers to make the agreement. The Committee had further noted that the Fair Work Act allowed employers who wish to voluntarily bargain together for a multi-enterprise agreement to do so with no public interest test and no requirement of FWA approval but that, in this instance, employers and employees would not have access to protected industrial action.

The Committee notes that the Government indicates in its report that during the period of 1 July 2009 to 31 December 2010, 56 per cent of the agreements approved by FWA were multi-enterprise agreements. The Committee further notes that the FWA provides a special stream of bargaining for multi-enterprise agreements for low paid workers who have not historically participated in enterprise level bargaining: FWA must make a low paid authorization if it is satisfied that making the authorization is in the public interest pursuant to section 243 of the Fair Work Act. The Committee observes that the Government states that the first low paid authorization was made by FWA on 5 May 2011 and will cover aged care employees. As regards pattern bargaining, the Committee notes that the Government reaffirms that the Fair Work Act does not prevent employer and employee representatives from engaging in discussions at the industry level and provides examples of cases in which parties have been involved in discussions at the industry level including in universities and independent schools, in the offshore oil and gas industry as well as in the metal and in the construction and building industries. The Committee notes that FWA took into account the factors listed under section 412(3) to determine whether a bargaining representative was genuinely trying to reach an agreement and was willing to negotiate claims at each enterprise.

The Committee further draws the attention to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2698 (357th Report, paragraphs 213–229) in this respect.

Finally, the Committee observes that the Government explains that the effect of terminating protected industrial action under sections 423, 424 or 431 is that bargaining representatives have a negotiating period of 21 days (extendable to 42 days by FWA) in which to resolve the matters at issue and that, if the parties are unable to reach agreement, FWA must make a binding industrial action related workplace determination which has effect as an enterprise agreement (sections 266–268 of Part 2–5 of Division 3 of the Fair Work Act). The Committee notes that no such determination has yet been made. The Committee further observes that under section 240 of the Act, a bargaining representative may request FWA to deal with a dispute about a proposed enterprise agreement if the bargaining representatives are unable to resolve the dispute and that the application may be made by one bargaining representative, whether or not the other bargaining representatives for the agreement have agreed to the making of the application if the proposed agreement is a single-enterprise agreement or a multi-enterprise agreement in relation to which a low-paid authorization is in operation. The Committee recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established under the Convention, and thus the autonomy of bargaining partners and that, based on the premise that a negotiated agreement, however unsatisfactory, is to be preferred to an imposed solution, the parties should always retain the option of returning voluntarily to the bargaining table (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 257 and 259). The Committee requests the Government to clarify the role of FWA in case of continuing disagreement between the parties and whether the parties remain able to resume negotiations at any point.

Building industry. The Committee recalls that it previously requested the Government to: (i) revise section 64 of the Building and Construction Industry Improvement (BCII) Act to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or the decision of the administrative authority; and (ii) promote collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions on collective bargaining. The Committee had previously noted with interest the Government’s indication that it has introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009 in order to amend the BCII Act and it would: (i) repeal section 64 of the BCII Act with the effect that the level of bargaining would be determined in accordance with the Fair Work Act; and (ii) retain the capacity currently for the Minister to issue a Building Code though, to date, the Government has not issued a Building Code under section 27 of the BCII Act.

The Committee notes that the Government indicates in its report that the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009, introduced into the Parliament on 17 June 2009, was not adopted before the Parliament was prorogued when the 2010 federal election was called, and has been placed on the legislative agenda to be reintroduced in the 2011 spring sitting of Parliament. The Committee further notes the Government’s indication that the ABC Commissioner is engaged with the social partners about the content and production of a Guide to Good Faith Collective Bargaining in the Building and Construction Industry to be published in 2011. The Committee takes note of the information and expresses once again the firm hope that the undertaken legislative reform in the building and construction industry will soon be completed in full conformity with the Convention. The Committee requests the Government to provide information in this respect in its next report as well as information on the progress made in the development of the Guide to Good Faith Collective Bargaining in the building and construction industry.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce (ACC) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over the years in relation to the application of the Convention. The Committee also notes the Government’s statement that it is firmly committed to the ILO and to the implementation of ratified Conventions.

The Committee previously requested the Government to provide information on provisions which: (i) prevent the Australian Industrial Relations Commission from certifying agreements which contain clauses requiring payment of bargaining services fees; (ii) prohibit industrial organizations from demanding bargaining services fees from a worker unless the fee is payable under a contract for provision of bargaining services directly with the non-member who is to be covered by the agreement; and (iii) void terms in collective agreements requiring or permitting the payment of bargaining services fees.

The Committee notes that section 353 of the Fair Work Act, 2009, which prohibits an industrial association, or an officer or member of an industrial association, from demanding payment of a bargaining services fee, defined as a fee payable to an industrial organization or to someone in lieu of an industrial organization, other than membership fees, wholly or partly for the provision, or purported provision, of bargaining services. The Committee notes that the Government indicates in its report that the Fair Work Act provides that parties cannot include unlawful terms in a collective agreement, including a provision allowing for bargaining agent fees. The Committee once again requests the Government to provide information on the practical application of these provisions and any reported impact they may have on collective bargaining, and requests it to review section 353, in full consultation with the social partners concerned, with a view to its amendment in the light of the Committee’s comments.

Finally, the Committee notes the concerns raised by the ACTU concerning certain unlawful terms that may not be included in collective agreements, such as: to extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay; to pay bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior to those contained within the Act (section 409(3)). The Committee requests the Government to inform it of the practical application of these provisions as well as on any steps taken or envisaged to further broaden the potential scope of collective bargaining.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce and Industry (ACCI) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over the years in relation to the application of the Convention. The Committee also notes the Government’s statement that it is firmly committed to the ILO and to the implementation of ratified Conventions.

In particular, the Committee notes with interest that collective bargaining at the enterprise level is at the heart of the Government’s new workplace relations system. Statutory individual agreements cannot be made under the new system. There are provisions for the phasing out of existing statutory individual agreements – either Australian Workplace Agreements or Individuals Transitional Employment Agreements – which will continue to apply until they are terminated. This is in line with the Government’s prior policy commitments and honours commitments that were lawfully made when they were entered into. In relation to the building and construction industry and the Building and Construction Industry Improvement (BCII) Act, a comprehensive consultation process into the regulation of the industry was conducted by the Hon. Murray Wilcox, QC, and further consultation with stakeholders followed receipt of Mr Wilcox’s report by the Government in March 2009. The Government has accepted Mr Wilcox’s recommendations and has introduced legislation into the Parliament to replace the BCII Act and, in particular, to determine that the general compliance and penalty regimes of the Fair Work Act will apply to the industry.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination in respect of employment. In previous comments, the Committee raised the need to ensure that workers are adequately protected against anti-union discrimination, especially dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). The Committee notes with interest that section 347 of the Fair Work Act, 2009, defines protected industrial action and includes: (i) the organization or promotion of a lawful activity for, or on behalf of, an industrial association; or (ii) encouragement or participation in a lawful activity organized or promoted by an industrial association. In addition, section 772 of the Act prohibits termination of an employee due to their trade union membership or participation in trade union activities outside working hours or, with the employer’s consent, during working hours. The Committee notes that the Government indicates in its report that, under the general protection provisions of the Fair Work Act, it is unlawful for a person to take adverse action, such as dismissal or refusing to employ or demoting a person, because that person is or is not a union member, or engages or does not engage in lawful industrial activity. In addition, it is prohibited to take adverse action against employees exercising a workplace right or acting as a representative of employees in the workplace. These protections extend to all employees in the national workplace relations system. The Committee understands that they will cover pattern bargaining to the extent that the parties are genuinely trying to reach an agreement. The Committee requests the Government to provide information on the manner in which industrial action related to pattern bargaining is protected in practice, including any relevant decisions from the FWA. The Committee further requests the Government to indicate the steps taken or envisaged to ensure protection against anti-union dismissals related to actions taken in respect of multiple business agreements.

Article 2. Protection against interference. The Committee previously raised the need to amend section 339 of the Workplace Relations Act, 1996, (WR Act) to ensure that the choice of a bargaining agent, even in new businesses, may be made by the workers themselves even if an “employer greenfields agreement” has been registered (enabling the employer to unilaterally determine the terms and conditions of employment in a new business including any new activity by a government authority, or a body in which a government has a controlling interest, or which has been established by law for a public purpose as well as a new project which is of the same nature as the employer’s existing business activities). The Committee notes with satisfaction that the Government indicates in its report that the Fair Work Act removes the capacity for “employer greenfields agreements” and provides that a greenfields agreement can only be made between the new employer and one or more employee organizations that are entitled to represent the majority of employees to be covered by the agreement.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to provide additional information on the provisions which will govern the transition from the previous system, based on Australian Workplace Agreements (AWAs), to the new system and to specify, in particular, the conditions under which workers covered by AWAs will be free to be represented in collective bargaining, as well as the relationship between AWAs already concluded and the new collective agreements. The Committee notes with satisfaction that the Government indicates that collective bargaining for enterprise agreements is at the heart of Australia’s new workplace relations system. Individual statutory agreements are not part of the new system; this is emphasized by the object of the Fair Work Act which states that statutory individual employment agreements of any kind can never be part of a fair workplace relations system. In line with the Government’s prior policy commitments, existing AWAs will continue to apply until they are terminated. The Committee requests the Government to provide information on the application of these provisions in practice.

In several of its previous comments, the Committee raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to a requirement of prior authorization at the discretion of the employment advocate. The Committee notes that the ACTU refers to the abilities of parties to negotiate multi-employer agreements by consent and that the FWA can facilitate multi-employer collective bargaining for low-paid employees, or employees who have not historically had access to the benefits of collective bargaining. The Committee notes that the Government indicates that the Fair Work Act allows employers who wish to voluntarily bargain together for a multi-enterprise agreement to do so with no public interest test and no requirement of FWA approval. In this instance, employers and employees do not have access to protected industrial action. The FWA will also facilitate multi-employer bargaining for low-paid employees. The Committee notes that section 186 of the Fair Work Act, 2009, requires FWA authorization of any enterprise agreement and that agency may only approve multi-employer agreements if it is satisfied that no person coerced, or threatened to coerce, any of the employers to make the agreement. In addition, sections 409 and 412 of that Act prohibit pattern bargaining unless the parties are genuinely trying to reach an agreement. Recalling that the Government should promote and encourage the full development and utilization of machinery for voluntary negotiation between employers or their organizations and workers’ organizations, the Committee requests the Government to inform it of the application of these provisions in practice.

Building industry. The Committee recalls that it previously requested the Government to: (i) revise section 64 of the BCII Act to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or the decision of the administrative authority; and (ii) promote collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions on collective bargaining. The Committee notes with interest the Government’s indication that it has introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009, which amends the BCII Act, and which would: (i) repeal section 64 of the BCII Act with the effect that the level of bargaining would be determined in accordance with the Fair Work Act; and (ii) retain the capacity currently for the Minister to issue a Building Code though, to date, the Government has not issued a Building Code under section 27 of the BCII Act. The Committee requests the Government to indicate in its next report any progress made in this regard.

The Committee notes with interest that the Higher Education Workplace Relations Requirements (HEWRRs) upon which it had commented previously have been abolished by the Higher Education Support Amendment (Removal of the Higher Education Workplace Relations Requirements and National Governance Protocols Requirements and other matters) Act, 2008.

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

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.

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

The Committee notes with interest the general statement made in the Government’s report to the effect that the new Australian Government acknowledges that the aspects of federal workplace relations laws, previously commented on by the Committee, did not, in a number of important respects, meet the key requirements of ILO standards ratified by Australia relating to collective bargaining and freedom of association. These aspects related primarily, but were not limited to, amendments made in 2005 to the Workplace Relations Act 1996 (WR Act) by the Workplace Relations Amendment (Work Choices) Act 2005 (Work Choices Act). A critical component of the new Government’s legislative programme is to enact new laws governing workplace relations in Australia having due regard to the issues canvassed in the report of the Committee of Experts. The first stage of the Government’s legislative programme is now in place following the entry into force of the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Transition Act) on 28 March 2008. The Transition Act amends the WR Act and provides for a measured transition to the Government’s new workplace relations system which will be fully operational from 1 January 2010.

The Committee notes with interest that according to the Government, key changes introduced by the Transition Act include: (i) preventing the making of further Australian Workplace Agreements (AWAs – a form of statutory individual agreement putting emphasis on direct employee–employer negotiations over collective negotiations with trade unions aimed at concluding collective agreements); since the Transition Act took effect on 28 March 2008, no new AWAs can now be made; AWAs have been used to undermine the safety net set by awards and are the least used industrial instrument in Australian workplaces, estimated by the Government at fewer than 10 per cent of Australian employees; (ii) providing for Individual Transitional Employment Agreements (ITEAs) to be available in limited circumstances during the transition period, until 31 December 2009; the aim is to provide employers and employees with time to work through their transition to the new system without major disruption or confusion; (iii) enacting a new “no disadvantage” test for all workplace agreements which provides better protection to employers’ terms and conditions of employment in relation to the provisions of the applicable collective agreement, or in the absence of a collective agreement, the applicable award and the Australian Fair Pay and Conditions Standard; in other words, ITEAs must pass a no-disadvantage test which ensures that they cannot be used to reduce the wages and conditions of employees covered by them; (iv) enabling the Australian Industrial Relations Commission to create new, modern awards.

The Committee also notes with interest that, according to the Government, collective bargaining will be placed at the centre of the new workplace relations system, which is being developed through wide consultations with union and business representatives. The current complex agreement-making process will be replaced with a simple, flexible and fair system, and the current onerous, complex and legalistic restrictions on agreement content will be removed. In the new workplace relations system, Fair Work Australia will be responsible for a range of functions including the following: (i) assisting the parties to resolve grievances; (ii) resolving unfair and unlawful dismissal claims; (iii) facilitating collective bargaining and enforcing good faith bargaining; giving bargaining parties reliable advice in order to make collective agreements and assisting employees, particularly those who are not unionized, to understand how to collectively bargain; (iv) reviewing and approving collective agreements; (v) adjusting minimum wages and award conditions; (vi) monitoring compliance with and ensuring the application of workplace laws, awards and agreements; and (vii) regulating registered industrial organizations.

The Committee also notes with interest from the Government’s report that the new laws will recognise that freedom of association is vital for the proper functioning of a fair workplace relations system built on the concept of democracy in the workplace. It will be unlawful for anyone to try to stop a working person (whether by threat, pressure, discrimination, victimization or termination) from exercising their free choice to join and be represented by a union, or participate in collective activities. The Government will ensure that the new industrial arbiter, Fair Work Australia, has the power to make orders to ensure freedom of association is protected. The Committee requests the Government to communicate with its next report a copy of any draft legislation under consideration, so as to examine its conformity with the Convention.

A. Federal jurisdiction. 1. In its previous comments, the Committee raised the need to amend sections 659 and 693 of the WR Act so as to ensure that there is no possibility of introducing exemptions from the right to be protected against anti-union dismissal for particular classes of employees (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 undertaking in which they are employed”). The Government indicates that, as no regulations have been made under section 693 of the WR Act to exclude certain classes of employees from protection, all Australian employees continue to be protected against anti-union dismissal. The Committee notes, however, that the issue raised in its previous comments relates to the possibility of introducing exemptions to protection against anti-union discrimination by regulation. The Committee hopes that the substantive workplace relations reform will address the need to amend sections 659 and 693 of the WR Act so as to ensure that there is no possibility of introducing exemptions from the right to be protected against anti-union dismissal for particular classes of employees. It requests the Government to indicate in its next report the measures taken in this regard.

2. In its previous comments, the Committee raised the need to amend section 643 of the WR Act so as to ensure that establishments with less than 100 employees are not excluded from protection against harsh, unjust or unreasonable dismissals. The Government indicates that the exemption of workplaces with less than 100 employees from unfair dismissal laws will be removed; protection against harsh, unjust or unreasonable dismissals will be restored, subject to a 12-month qualifying period for employees who work in a small business with fewer than 15 employees and six months for employees who work in large businesses. The Committee notes that dismissals on anti-union grounds (which is a narrower category in relation to harsh, unjust or unreasonable dismissals) should be available to all workers at all times and should not be subject to a qualifying period. The Committee therefore hopes that the substantive workplace relations reform will address the need to ensure that protection against anti-union discrimination is available to all workers at all times and is not subject to a qualifying period. It requests the Government to indicate in its next report the measures taken in this regard.

3. In its previous comments, the Committee raised the need to amend sections 400(6), 793 and 400(5) of the WR Act so as to ensure that workers are adequately protected against any discrimination at the time of recruitment related to their refusal to sign an AWA. The Committee notes that the Transition Act prevents new AWAs from being made and that, until the end of 2009, sections 400(6), 793 and 400(5) of the WR Act apply in relation to ITEAs instead of AWAs. The Committee also notes with interest that, according to the Government, there will be no place for any form of statutory individual employment agreement in the new workplace relations system and thus the question of discrimination will not arise. The Committee expresses the hope that the substantive workplace relations reform will address the need to ensure that workers are adequately protected against discrimination at the time of recruitment related to their refusal to sign any form of statutory individual employment agreement. It requests the Government to indicate in its next report the measures taken in this regard.

4. In its previous comments, the Committee raised the need to amend sections 423 and 431 of the WR Act so as to ensure that workers are adequately protected against anti-union discrimination, especially dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). The Government indicates that it is committed to continuing provisions for protected industrial action authorized by a secret ballot during bargaining for a collective agreement; it will be unlawful for an employer to dismiss an employee wholly or partly because the employee is proposing to engage, is engaging, or has engaged, in protected industrial action.

In this regard, the Committee notes the comments made by the Australian Congress of Trade Unions (ACTU) in a communication dated 1 September 2008 to the effect that the Government has indicated its intention to retain the existing provisions rendering action in favour of “pattern bargaining” illegal. The Committee once again recalls that action related to the negotiation of multiple business agreements and “pattern bargaining” is legitimate trade union activity for which adequate protection should be afforded in the law and that the choice of the bargaining level should normally be made by the parties themselves. The Committee therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 423 and 431 of the WR Act, so as to ensure that workers are adequately protected against acts of anti-union discrimination, in particular dismissal, for acts linked to negotiating collective agreements at whatever level deemed appropriate by the parties.

5. In its previous comments, the Committee raised the need to establish a mechanism for the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner in the enterprise; this was considered necessary, given that under section 328(a) of the WR Act, an employer had the widest possible discretion to select a bargaining partner and to negotiate with organizations which had “at least one member” in the enterprise. Moreover, the Committee had taken note of comments made by the International Trade Union Confederation (ITUC) in 2007 on the possibility for employers to bypass unions in negotiations, even when the workers wished to be represented by their union, and had raised the need for measures to ensure that “employee collective agreements” did not undermine workers’ organizations and their ability to conclude collective agreements and that, therefore, negotiations with non-unionized workers took place only where there was no representative trade union in the enterprise. Finally, the Committee had raised the need to address various provisions of the WR Act which gave preference to individual agreement-making over collective bargaining and, in particular, to amend section 348(2) of the WR Act so as to ensure that statutory individual agreements (AWAs) might prevail over collective agreements only to the extent that they were more favourable to the workers.

The Committee notes with interest that, according to the Government, since the Transition Act took effect on 28 March 2008, no new AWAs can be made, while ITEAs may be concluded in limited circumstances until 31 December 2009; moreover, a new no-disadvantage test has been put in place for all new workplace agreements, which provides better protection to employees. In addition to this, the Committee notes the Government’s commitment that under the new system, at the commencement of bargaining, employers will be obliged to inform employees of their right to be represented. Employees will be free to choose who represents them in collective bargaining. Employees who are union members will be able to be represented by a union that is eligible to represent them. All bargaining participants must respect that choice and bargain in good faith with all other bargaining participants. An independent arbiter, called “Fair Work Australia”, will be able to determine the level of support for collective bargaining amongst employees in a workplace. Where a majority of employees at a workplace want to bargain collectively, their employer will be required to bargain collectively with them in good faith.

The Committee also notes, however, that in its latest comments the ACTU regrets the fact that the Transition Act did not immediately abolish statutory individual agreements. The ACTU also draws attention to recent cases in which employers have sought to take advantage of the transitional arrangements to impose non-union collective agreements containing AWA-like conditions on their workforce so as to prevent them from being covered by collective agreements negotiated with representative unions for years to come. This is significant in light of the fact that when AWAs expire, workers will potentially be covered by these non-union agreements. The ACTU urges the Government to ensure that enforceable “agreements” cannot be made applicable to existing employees without them having participated in the decision to endorse the agreements.

Finally, the Committee notes that the Government does not make any observation as to the incident communicated by the ITUC in its previous comments concerning a call centre which had allegedly forced workers out of a collective agreement and into AWAs, and the related investigation by the Workplace Rights Advocate of the State of Victoria.

The Committee requests the Government to provide additional information on the provisions which will govern the transition from the previous system, based on statutory individual agreements (AWAs), to the new system which will have collective bargaining at its centre and to specify, in particular, the conditions under which workers covered by AWAs will be free to be represented in collective bargaining, as well as the relationship between AWAs already concluded and new collective agreements. The Committee hopes that in the framework of the substantive labour reform, measures will be taken to ensure that: (i) there is no possibility of acts of interference by the employer in the context of the selection of a bargaining partner; and that (ii) “employee collective agreements” may not be used to undermine workers’ organizations and their ability to conclude collective agreements. The Committee requests the Government to indicate in its next report the measures taken in this regard.

6. In its previous comments, the Committee raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to a requirement of prior authorization at the discretion of the employment advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Committee notes that, according to the Government, under the new system Fair Work Australia will be able to facilitate multi-employer collective bargaining for low paid employees or employees who have not historically had access to the benefits of collective bargaining. Further, the Government’s policy is that where more than one employer and their employees or unions with coverage in the workplaces voluntarily agree to collectively bargain for a single agreement, they will be free to do so. Nevertheless, the Committee also notes that according to the ITUC, the Government has indicated its intention to retain the prohibition of “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers, which might therefore lead to a form of multi-employer business agreement).

The Committee once again recalls that the level of collective bargaining should be decided by the parties themselves and not be imposed by law and that legislative provisions which make the entry into force of a collective agreement subject to prior approval by the administrative authority at its discretion, is incompatible with the Convention. The Committee hopes that in the framework of the substantive labour reform under way, all types of multiple business agreements, including “pattern bargaining”, will be allowed so that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Committee requests the Government to indicate in its next report any measures taken in this regard.

7. In its previous comments, the Committee raised the need to amend section 330 of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves so that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an “employer greenfields agreement” has been registered (enabling the employer to unilaterally determine the terms and conditions of employment in a new business including any new activity by a government authority, or a body in which a government has a controlling interest, or which has been established by law for a public purpose as well as a new project which is of the same nature as the employer’s existing business activities). The Committee notes that, according to the Government, under the new system where an employer commences a genuinely new business or undertaking and they have not yet engaged any employees, the employer and a relevant union may bargain for a collective greenfields agreement for the new business. The Committee requests the Government to specify the modalities according to which an employer may negotiate with a union the terms and conditions of employment in a new business before engaging any employees and the safeguards which ensure protection against employer interference in this framework. The Committee also requests the Government to indicate whether it is still possible to conclude “employer greenfields agreements” which enable the employer to determine unilaterally the terms and conditions of employment in a new business; if that is the case, the Committee requests the Government to indicate the measures taken or contemplated in the framework of the substantive labour reform, to ensure that workers in new businesses are able to choose the bargaining agent themselves, and that they are not prohibited from negotiating their terms and conditions of employment even if an “employer greenfields agreement” has been registered.

B. Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409–457), had raised the need to rectify several discrepancies between the Building and Construction Industry Improvement (BCII) Act and the Convention.

The Committee recalls that, according to the comments previously made by the ACTU, section 64 of the BCII Act prohibits project agreements, which have been a common feature of the building industry and are particularly suited to the industry’s nature as an efficient means of ensuring that all employees on a building site, who may be employed by a large number of small subcontractors, are covered by one agreement setting standard wages and conditions.

The Committee notes that the Government has commenced a process of extensive consultation in relation to the BCII Act and the regulatory arrangements that will apply after 31 January 2010. The Government’s policy is that collective bargaining will be based at the enterprise level using a well understood definition of “enterprise” which may include a single business or employer, a group of related businesses operating as a single business or a discrete undertaking, site or project. However, pattern bargaining and industry-wide bargaining will not be permitted. The new system contemplates multi-employer bargaining in the circumstances delineated above.

Taking note of the extensive comments made by the ACTU on this issue, under the Committee’s comments concerning Convention No. 87, and also noting that, according to the Government, under the new workplace relations system there will be no place for any form of statutory individual agreements, which means that certain provisions of the BCII operating in conjunction with the WR Act may be substantially modified in the future, the Committee regrets that the Government has not provided more detailed information on the specific steps contemplated to bring the BCII into full conformity with the Convention.

The Committee therefore once again urges the Government to indicate in its next report the measures taken or contemplated so as to bring the BCII Act into conformity with the Convention with regard to the following points: (i) the revision of section 64 of the Act so as to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority; (ii) the promotion of collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions on collective bargaining (sections 27 and 28 of the Act authorize the Minister to deny Commonwealth funding to contractors bound by a collective agreement that, although lawful, does not meet the requirements of the building code; the latter: (i) excludes a wide range of matters from the scope of collective bargaining; and (ii) contains financial incentives to ensure that statutory individual agreements may override collective agreements).

C. Higher education sector. In its previous comments the Committee raised the need to amend section 33-5 of the Higher Education Support Act 2003, as well as the Higher Education Workplace Relations Requirements (HEWRRs) which raised obstacles to collective bargaining similar to those raised by the WR Act and the BCII Act, by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit. The Committee notes with interest that the Government has introduced into the Australian Parliament draft legislation to abolish the HEWRRs. The Committee requests the Government to indicate in its next report progress made in the adoption of legislation aimed at abolishing the HEWRRs.

A request on another point is being addressed directly to the Government.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes 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.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards in June 2006 and June 2007 and notes that, in its conclusions, the Conference Committee requested the Government to pursue full and frank consultations with the representative employers’ and workers’ organizations regarding the impact of the Workplace Relations Act 1996 (the WR Act) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act), on the rights afforded by the Convention, in particular regarding the promotion of the effective recognition of the right to collective bargaining, and to report to this Committee in 2007 in this regard.

The Committee notes the information provided in the Government’s reports dated 22 December 2006 and 15 January, 13 July, 20 September and 5 and 18 October 2007, including the Government’s observations on the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 17 May 2006, which were examined in the Committee’s previous observation. The Committee also takes note of the comments made by the International Trade Union Confederation (ITUC) in a communication dated 27 August 2007 with regard to issues already raised by the Committee and the Government’s reply thereto dated 18 October 2007.

On issues concerning the education industry, the Committee takes due note of the Government’s communication of 16 November 2006 containing the Government’s observations on the comments made by the National Tertiary Education Industry Union (NTEU).

On issues concerning the building and construction industry, the Committee notes the comments made by the ACTU in communications dated 9 October 2006 on the Building and Construction Industry Improvement (BCII) Act as well as the comments made by the Trade Unions International of Workers of the Building, Wood and Building materials Industries (UITBB) in support of the ACTU submission. It further notes the Government’s observations in this respect contained in a communication dated 13 July 2007 as well as the communication of 18 April 2007 on the tripartite consultations which have taken place on this subject. The Committee also notes the comments made by the ITUC in its communication dated 27 August 2007 as well as the Government’s reply to certain of these comments. The Committee finally notes the ACTU comments dated 14 September 2007 on this subject as well as the Government’s communication of 1 November 2007 indicating that the upcoming elections prevent it from responding to the ACTU comments at this time, and requests the Government to provide its observations at the appropriate time.

A. Federal jurisdiction. 1. In its previous comments, the Committee raised the need to rectify the possible exclusion from protection against anti-union dismissals (section 659 of the WR Act) of the particular classes of employees covered by section 693 of the WR Act (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 undertaking in which they are employed”). The Committee notes that according to the Government, this section allows the Government to make regulations excluding specific classes of employees in certain limited circumstances; as no regulations have been made under this section, all Australian employees are protected from termination. The Committee notes that section 693 of the WR Act does not preclude future regulations excluding particular classes of employees from protection against anti-union dismissals. Recalling once again that the Convention requires that all workers be protected from anti-union dismissals, the Committee requests the Government to indicate in its next report the measures taken or contemplated with a view to amending section 693 of the WR Act so as to ensure that there is no possibility of introducing exceptions from the right to be protected against anti-union dismissal.

2. The Committee also notes that the new section 643 introduced in the WR Act by the Work Choices Act excludes from protection against harsh, unjust or unreasonable dismissals establishments with less than 100 employees. The Committee notes that according to the ITUC, this means that around two-thirds of private sector workers have lost their right to challenge an unfair dismissal. The Committee also notes that the ITUC refers to dismissals of trade union leaders and members – including migrant workers – because of legitimate trade union activities, such as expressing concerns about health and safety issues at a company meeting, or simply joining a union. Noting that the Government has not provided specific replies to these comments and recalling that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and that the persons responsible for such acts should be punished, the Committee requests the Government to provide its observations on the above comments by the ITUC.

3. In its previous comments, the Committee raised the need to repeal section 400(6) and amend sections 793 and 400(5) of the WR Act so as to ensure sufficient protection against anti-union discrimination at the time of recruitment and, in particular, rectify situations where offers of employment conditional on the signing of an Australian Workplace Agreement–(AWA) (“AWA or nothing”) are considered by the courts as not amounting to duress. The Committee notes that according to the Government, section 400(6) which was recently introduced in the WR Act by the Work Choices Act so as to explicitly provide that offering an “AWA or nothing” does not amount to duress, did nothing more than confirm the position established by the Federal Court in Schanka v. Employment National (Administration) Pty Ltd ([2001] FCA 579); in that case, the Federal Court of Australia held that merely offering employment conditions upon acceptance of an AWA was not duress because an employee remained free to refuse that employment; according to the Government, this situation is not different from an employee declining an offer of employment because the conditions of employment provided for by an award or collective agreement were either inadequate and/or unacceptable to the individual. The Government adds that, on the contrary, it was found in Schanka that an employer that required a transferring employee to enter into an AWA as a condition of engagement in a transmission of business situation applied illegitimate pressure and therefore, the WR Act, as amended by the Work Choices Act, introduced substantial pecuniary penalties for persons applying duress in connection with an AWA in such situations. Moreover, according to the Government, in general, offering an “AWA or nothing” does not amount to discrimination because AWAs are not anti-union and can be negotiated with workers irrespective of whether they are union members. Workers may even appoint a union official as bargaining agent to negotiate an AWA on their behalf.

The Committee once again emphasizes that workers who refuse to negotiate an AWA at the time of recruitment do not appear to enjoy adequate legal protection against acts of anti-union discrimination and that their right to join the organization of their own choosing with the objective of determining their conditions of employment through collective bargaining, does not appear to be fully protected. It therefore once again requests the Government to indicate in its next report the measures taken or contemplated to repeal section 400(6) of the WR Act and to amend sections 793 and 400(5) of the WR Act so as to ensure that workers are adequately protected against any discrimination at the time of recruitment related to their refusal to sign an AWA.

4. In its previous comments, the Committee had raised the need to amend sections 423 and 431 of the WR Act so as to ensure adequate protection against anti-union discrimination, especially dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). The Government indicates that pattern bargaining and multiple business agreements would have the effect of diminishing the focus of Australia’s workplace relations system on agreement-making at the workplace level and therefore, the restrictions established in the WR Act with regard to industrial action in pursuance of pattern bargaining or multiple business agreements are reasonable. According to the Government, the jurisprudence has tightly confined the elements of the definition of “pattern bargaining” so that where a person seeks common wages and conditions in two or more proposed collective agreements, the expression “common” has been held to mean “same” or “identical”. The Full Bench of the Australian Industrial Relations Commission (AIRC) in Trinity Garden Aged Care and another v. Australian Nursing Federation ((PR973718), 21 August 2006) held that a range of alternative meanings of “common” such as “frequent” “similar” or “prevalent”, were too broad and would introduce a substantial element of judgement into the application of section 421(1)(b) of the WR Act, which would cause the parties to be unsure of their rights and would “substantially deny employees access to protected industrial action in the real industrial context in which common market circumstances and common bargaining objectives (such as at least maintaining the real value of wages) will naturally result in claims for similar wages and conditions”.

The Committee once again recalls that action related to the negotiation of multiple business agreements and “pattern bargaining” is legitimate trade union activity for which adequate protection should be afforded in the law and that the choice of the bargaining level should normally be made by the parties themselves. The Committee therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 423 and 431 of the WR Act, so as to ensure that workers are adequately protected against acts of anti-union discrimination, in particular dismissal for negotiating collective agreements at whatever level deemed appropriate by the parties.

5. In its previous comments, the Committee raised the need to establish a mechanism for the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner in the enterprise under section 328(a) of the WR Act, if one did not already exist. The Government indicates that it has not established such a mechanism. It adds that regardless of which union, if any, the employer chooses to make an agreement with, its employees have an ultimate right of veto over that decision because under subsection 340(2) of the WR Act, a collective agreement is approved only if it has the support of a majority of employees to which it will apply. The Committee recalls that section 328(a) of the WR Act gives an employer the widest possible discretion to select a bargaining partner as it enables it to negotiate with organizations which have “at least one member” in the enterprise. It also considers that the possibility to put the outcome of negotiations to a vote does not afford a sufficient safeguard against interference, as the employer has the ability to abandon negotiations altogether if the collective agreement is not approved, thereby excluding any real choice for the workers. The Committee once again requests the Government to indicate in its next report measures taken or contemplated with a view to setting up safeguards against acts of interference by the employer in the context of the selection of a bargaining partner in the enterprise.

6. In its previous comments, the Committee raised the need to address various provisions of the WR Act which give preference to individual agreement-making over collective bargaining and in particular, amend section 348(2) of the WR Act so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers.

The Committee takes note in this respect of the request made by the Conference Committee for information on the impact of the amendments introduced by the Work Choices Act into the WR Act on the Government’s obligation to ensure the promotion of the effective recognition of the right to collective bargaining in law and in practice, as well as the holding of full and frank consultations with the representative employers’ and workers’ organizations in this regard.

The Committee notes the detailed information contained in the Government’s report on the economic justification of the successive reforms of the workplace relations framework introduced since 1996. The aim of these reforms has been, according to the Government, to promote more jobs and better pay through improvements in productivity so as to maintain Australia’s economic prosperity and strength. The reforms ensured that the primary focus of the workplace relations system is agreement-making at the workplace level, gave Australian employers and employees greater choice in negotiating working conditions and simplified overly prescriptive awards. The object of the WR Act does not preference one form of agreement-making over another. Rather, the WR Act enables employers and employees to choose the most appropriate form of agreement for their particular circumstances. Indeed, the latest data from the Australian Bureau of Statistics shows that more employees are employed under collective agreements than any other arrangement. In particular, as of May 2006, 41.2 per cent of employees nationally were employed under collective agreements; 19.0 per cent under awards; 34.6 per cent under individual agreements; and 5.1 per cent as working proprietors. Moreover, since the commencement of the 27 March 2006 workplace relations reforms, over 8,300 collective agreements have commenced covering about 735,000 employees. In addition to this, at the federal level, as at 31 August 2007, AWAs regulated the terms and conditions of an estimated 830,000 employees, whereas collective agreements covered some 1,773,600 employees, a fact which clearly demonstrates that collective agreements continue to be the norm in Australia. The Committee also notes that the Government reiterates its position on its obligations under Article 4 of the Convention to the effect that measures for the encouragement and promotion of collective bargaining should be taken only “where necessary” and only where they are “appropriate to national conditions”. The Government maintains that the key components of Article 4 are all reflected in Australia’s federal workplace relations system in a way which is appropriate to national conditions. Specifically, the WR Act promotes bargaining since this constitutes one of the principal objects of the Act; it provides that bargaining is voluntary so that under the WR Act an employer cannot compel an employee to enter into an agreement; and does not prefer one form of agreement over another in light of the fact that collective bargaining continues to be the norm in Australia. The Committee also notes from the summary record of the consultations held with representatives of the ACTU and the Australian Chamber of Commerce and Industry (ACCI) on 20 August 2007 – communicated by the Government – that the consultations did not lead to any new element as all sides appear to maintain their respective positions.

The Committee notes with deep regret that the Government’s report is confined to largely reiterating the position it has already stated on numerous occasions. The Committee further notes with concern that although the statistical information provided by the Government as to the number of employees covered by AWAs and collective agreements as at 31 August 2007 (830,000 and 1,773,600 employees respectively) shows that collective agreements continue to be the norm in Australia, it also shows that the number of employees covered by AWAs has increased exponentially since the introduction of these instruments in 1986 (in 2004, the Government had reported 352,531 AWAs in force in the first seven years since their introduction (1997–2003); see 2004 direct request, 75th Session). Moreover, as will be seen in the next section, one quarter of collective agreements are concluded with non-unionized workers regardless of whether trade unions exist in an enterprise. The Committee considers that these statistics are not unrelated to the legal provisions of the WR Act which promote AWAs over collective agreements negotiated with trade unions, and also correlate with the information noted under Convention No. 87, according to which trade union membership has been halved in the last 20 years. The Committee once again recalls that giving primacy to AWAs, which are individual agreements, over collective agreements, is contrary to Article 4 of the Convention which calls for the encouragement and promotion of voluntary negotiations with a view to the adoption of collective agreements. As noted in the Committee’s previous observation, although the expressions “where necessary” and subject to “national conditions” found in Article 4 of the Convention allow for a wide range of different national practices in the implementation of measures for the encouragement and promotion of collective bargaining, they were not intended to authorize in any way the introduction of disincentives, obstacles to and even prohibitions of negotiations (as will be seen further below) amounting to a negation of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.

The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated so as to promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, as called for by Article 4 of the Convention. Considering that full and frank consultations with the social partners could be particularly appropriate in this regard, and while noting that the consultations already held have not led to any outcome, the Committee requests the Government to indicate in its next report any further consultations held and the impact they may have in ensuring greater respect for the effective exercise of the right to collective bargaining.

With regard to the specific request of the Committee for an amendment to section 348(2) of the WR Act, so that AWAs prevail over collective agreements only to the extent that they are more favourable to the workers, the Committee notes that according to the comments made by the ITUC, the incentives for employers to prefer AWAs instead of collective agreements have been greatly increased as a result of the Australian Fair Pay and Conditions Standard; AWAs must now include only five minimum conditions (minimum wage, annual leave, sick leave, unpaid parental leave and maximum weekly working hours) rather than being measured against comprehensive industrial awards, meaning that they can substantially undercut employees’ previous wages and working conditions. The ITUC also refers to one incident – on which the Government has not provided comments – concerning pressure put on workers to renounce their collective agreement before its expiration and sign individual contracts under which they faced pay cuts and penalties for taking sick leave or career’s leave; the incident is under investigation by the Workplace Rights Advocate for the State of Victoria. The Committee also recalls the extensive comments made by the ACTU on this issue, which were summarized in the Committee’s previous observation, to the effect that: (i) the previously applicable “no disadvantage test” has been replaced by a “fairness test”; (ii) AWAs can now override collective agreements irrespective of whether they were made before or after the collective agreement; (iii) award conditions can be displaced by inferior AWAs not only for new employees but also for existing employees so that their acquired rights are not protected; (iv) the primacy given to AWAs makes the purported ability of unions to bargain collectively nugatory.

The Committee notes that the Government indicates that it is difficult to objectively determine what constitutes an “inferior” AWA compared to a collective agreement, as individual agreements may contain terms and conditions which might appear at first sight to be less beneficial (variations in the payment or type of penalty rates for work undertaken at certain times) but might be accompanied by other terms considered as being superior or more generous by the employee (higher base rate of pay, more flexible working hours at the request of the employee, leave arrangements and the opportunity to receive performance-based pay and incentives) to those contained within a collective agreement. Furthermore, a fairness test has been introduced by the Australian Fair Pay and Conditions Standard to provide a safety net of minimum terms and conditions that all employers must provide, regardless of the industrial instrument applicable to employees. The Act requires the Workplace Authority to apply the fairness test to ensure that workplace agreements provide fair compensation in lieu of protected award conditions such as penalty rates; it is not the intention of the Government to have protected award conditions traded off without proper compensation.

The Committee once again recalls that employers and workers bound by a collective agreement should be able to include in contracts of employment stipulations which depart from the provisions of the collective agreement only if these stipulations are more favourable to the workers. The Committee observes that the “fairness test” presumes a comparison between two instruments of the same nature; however, AWAs are not collectively negotiated and therefore should not be subject to an evaluation of the whole instrument and all of its specific parts as if they were part of a negotiated trade-off. AWAs should rather be re-adjusted to the provisions of the collective agreement, where one is in force, so as to allow those specific conditions that are more favourable in the collectively negotiated instrument to prevail. The Committee therefore once again requests the Government to amend section 348(2) of the WR Act so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers. It further requests the Government to provide information/observations on the incident under investigation by the Workplace Rights Advocate of the State of Victoria mentioned by the ITUC in its comments.

7. In its previous comments, the Committee raised the need to ensure that “employee collective agreements” do not undermine workers’ organizations and their ability to conclude collective agreements, and that negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise (sections 326–327 of the WR Act). The Committee notes the comments of the ITUC to which the Government has not responded, according to which, the WR Act does not require employers to negotiate with unions at all, even when all the employees are union members and wish to be represented in bargaining by their union. The Committee requests the Government to provide its observations in this regard.

The Committee notes that according to the Government, in a context of declining trade union density, the WR Act balances the right of employees to be represented by a trade union and an employer’s right to pursue their preferred form of industrial instrument. Since the implementation of the reforms in March 2006, 64 per cent of employees covered by new federal workplace agreements were covered by collective agreements (as at the end of August 2007); 49 per cent of employees were covered by agreements negotiated with unions and 15 per cent by agreements negotiated by employers directly with their employees; in other words, over three-quarters (76 per cent) of employees covered by collective agreements, made following the workplace relations reforms, are covered by union collective agreements.

The Committee once again recalls that Article 4 of the Convention refers to voluntary negotiations between employers or employers’ organizations and workers’ organizations. It therefore once again requests the Government to take measures to ensure that employee collective agreements do not undermine workers’ organizations and their ability to conclude collective agreements, and to indicate in its next report the measures taken or contemplated with a view to ensuring that negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise.

8. In its previous comments, the Committee raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to a requirement of prior authorization at the discretion of the employment advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Government indicates that from the commencement of the workplace relations reforms in March 2006 to July 2007, there were 22 applications for authorization to make a multiple business agreement. Of these, six were approved, two were approved in principle (subject to amendments reflecting the provisions of the Fair Pay and Conditions Standard and the removal of prohibited content), five have been abandoned, and four were being assessed. Five applications were refused. Furthermore, with regard to “pattern bargaining” (which might lead to a form of multi-employer business agreement), the Government indicates that this form of bargaining is prohibited if there are no genuine attempts to negotiate an agreement which takes into account the individual circumstances of the employer in determining wages and conditions of employment.

The Committee once again recalls that the level of collective bargaining should be decided by the parties themselves and not be imposed by law and that legislative provisions which make the entry into force of a collective agreement subject to prior approval by the administrative authority at its discretion, is incompatible with the Convention and a violation of the principle of the autonomy of the parties. The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act, so as to ensure that multiple business agreements are not subject to the requirement of prior authorization at the discretion of the employment advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Committee also requests the Government to keep it informed of any regulations adopted in relation to this matter.

9. In its previous comments, the Committee raised the need to amend the Workplace Relations Regulations 2006 so as to ensure that any “prohibited content” of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining and to consider in this context, tripartite discussions for the preparation of collective bargaining guidelines. The Government indicates that the provisions on “prohibited content” are based on the fact that some content is not germane to the employment relationship and therefore inappropriate to be included in workplace agreements; such restrictions are a continuation of the limits that the Australian workplace relations system has always placed on the content of binding industrial instruments.

The Committee recalls that the issues listed in the Workplace Relations Regulations 2006 as constituting “prohibited content” (e.g. provisions which require a person to encourage trade union membership or indicating support for such membership; or requiring or permitting payment of a bargaining services fee; payroll deduction systems for union dues; leave to attend training provided by a trade union; paid leave to attend union meetings; process for renegotiating the agreement on its expiry; right of entry to the premises for union officials; union representation rights in disputes procedures, unless specifically requested by the employee; restrictions on the use of contractors and labour hire; forgoing of annual leave other than in accordance with the Act; encouragement or discouragement of trade union membership; allowing of industrial action; remedies for unfair dismissal; direct or indirect restrictions on AWAs); represent to a large extent the type of matters that have traditionally been subjects for collective bargaining. As a general rule, negotiation over such matters should be left to the discretion of the parties. Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and the free and voluntary nature of collective bargaining. In the event of doubt as to the matters falling within the purview of collective bargaining, tripartite discussions for the preparation on a voluntary basis, of guidelines for collective bargaining could be a particularly appropriate method for resolving such difficulties. The Committee once again requests the Government to consider tripartite discussions for the preparation of collective bargaining guidelines and to indicate in its next report any measures taken or contemplated to amend the Workplace Relations Regulations 2006, and to ensure that any “prohibited content” of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.

10. In its previous comments, the Committee raised the need to amend section 330 of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves and that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an “employer greenfields agreement” has been registered (enabling the employer to unilaterally determine the terms and conditions of employment in a new business including any new activity by a government authority, or a body in which a government has a controlling interest or which has been established by law for a public purpose as well as a new project which is of the same nature as the employer’s existing business activities). The Government indicates that “employer greenfields agreements” aim at allowing the employer to unilaterally establish a set of terms and conditions of employment that will operate in new projects or enterprises for a maximum of 12 months, during which time, negotiations can take place for subsequent workplace agreements. Even if the employer determines the terms and conditions unilaterally, the “agreement” should comply with the Australian Fair Pay and Conditions Standard and is subject to a fairness test. Moreover, the Government indicates that the definition of “new business” recently introduced in the WR Act by the Work Choices Act, did not aim at expanding the definition of new business where greenfields agreements may be made, but rather clarifying a situation of legal uncertainty as to what constitutes a new business, due to various decisions taken on this subject by the AIRC. As for the concern expressed by the ACTU that employees may be moved to AWAs during the life of greenfields agreements, the Government highlights the substantial protections contained in the WR Act against an employer applying duress to employees to make them enter into an AWA.

The Committee once again observes that the provisions on employer greenfields agreements in combination with the total exclusion of any attempts at good-faith bargaining, the much enlarged definition of new business to further include the very broad concept of “new activity”, and the greater primacy accorded to AWAs, would appear to seriously hinder the possibility of workers in such circumstances to negotiate their terms and conditions of employment. It therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 323 and 330 of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves and that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an employer greenfields agreement has been registered.

B. Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409–457), had raised the need to rectify several discrepancies between the BCII Act and the Convention.

The Committee notes the comments made by the ACTU according to which the BCII Act is framed so as to operate in conjunction with the uniquely harsh measures introduced under the WR Act by the Work Choices Act. In particular, in addition to restrictions introduced in parallel with the WR Act, section 64 of the BCII Act also prohibits project agreements which have been a common feature of the building industry and are particularly suited to its nature as an efficient means of ensuring that all employees on a building site, who may be employed by a large number of small subcontractors, are covered by one agreement setting standard wages and conditions. The ACTU finally indicates that the BCII Act purports to grant the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by Ministerial Decree through a device referred to as a building code which escapes parliamentary scrutiny. In fact, the code which has been applicable in the industry since 1999 is inconsistent with the Convention on several points as noted by the Committee in its previous comments. This system is now combined with an accreditation scheme (foreseen in Chapter 4 of the BCII Act) for contractors who wish to enter into Commonwealth contracts so as to ensure that they apply the code.

The Committee notes that according to the Government, the focus of the BCII Act is on bargaining at the enterprise or workplace level. Thus, it is not appropriate to have project agreements negotiated between head contractors and unions that impose common arrangements on any subcontractor working on the project, as the employer and employees who will be covered by a workplace agreement have the right to determine the content of their working arrangements themselves. Subcontractors providing at least 90 per cent of all labour in the building and construction industry should not be denied the possibility to determine themselves whether particular terms and conditions should apply. According to the data provided by the Government, 84 per cent of employees covered by federal collective agreements in the construction industry have been employed under union negotiated collective agreements. Since the Work Choices amendments, 68 per cent of construction employees covered by new federal collective agreements were employed under union negotiated collective agreements. The remaining 32 per cent were employed under the other agreement-making options available under the WR Act such as employee collective agreements or employer greenfields agreements. Finally, the Government indicates with regard to the absence of parliamentary scrutiny over the provisions of the National Code of Practice for the Construction Industry, that the Code can be challenged before the Federal Court and any sanctions imposed under the Code are subject to judicial review or an internal administrative review, or a complaint to the Commonwealth Ombudsperson.

Noting with regret that the Government reiterates the same position in respect of the issues raised under both the WR Act and the BCII Act with regard to collective bargaining, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to bring the BCII Act into conformity with the Convention with regard to the following points: (i) the revision of section 64 of the Act so as to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority; (ii) the promotion of collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions of collective bargaining (sections 27 and 28 of the Act authorize the Minister to deny Commonwealth funding to contractors bound by a collective agreement that, although lawful, does not meet the requirements of the building code; the latter: (i) excludes a wide range of matters from the scope of collective bargaining; and (ii) contains financial incentives to ensure that AWAs may override collective agreements).

C. Higher education sector. In its previous comments, the Committee noted the need to amend section 33-5 of the Higher Education Support Act 2003, and the Higher Education Workplace Relations Requirements (HEWRRs) which raise obstacles to collective bargaining similar to those raised by the WR Act and the BCII Act, by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit.

The Committee notes the Government’s reply to the comments made by the NTEU, which were summarized in the Committee’s previous observation. With regard to the relationship between collective agreements and AWAs, the Committee notes that the Government reiterates its position on its obligations under Article 4 of the Convention. As to the example of impediments to collective bargaining provided by the NTEU, the Government describes it as an isolated incident which bears no relevance to the HEWRRs.

Noting with regret that the Government reiterates once again its position on questions of collective bargaining, the Committee can only request the Government once again to indicate in its next report the measures taken or contemplated to amend section 33-5 of the Higher Education Support Act 2003, and the HEWRRs which raise obstacles to collective bargaining similar to those raised by the WR Act and the BCII Act, by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit.

The Committee has been informed by the Government of Australia, newly elected on 24 November 2007, that it is committed to making substantial amendments to Australia’s workplace relations legislative framework and to addressing issues the Committee has raised with regard to the Building and Construction Industry Improvement Act 2005. The Committee expresses the hope that its comments will prove useful to the Government in its deliberations on legislative revision.

A request on another point is being addressed directly to the Government.

[The Government is asked to report in detail to the present comments in 2008.]

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

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 now 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.

South Australia. The Committee once again requests the Government to provide information on the percentages of workers covered respectively by enterprise agreements and awards.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards in June 2006 and notes that, in its conclusions, the Conference Committee requested the Government to provide a detailed report to this Committee for examination this year on the provisions of the Work Choices Act and its impact, both in law and in practice, on the Government’s obligation to ensure respect for freedom of association. It further notes the Conference Committee’s request to the Government to engage in full and frank consultations with the representative employers’ and workers’ organizations with respect to all the matters raised during the debate and to report back to this Committee in this regard.

The Committee observes that the report requested from the Government has not been received, nor has the Government replied to the extensive comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 17 May 2006 with regard to the passage of the Work Choices Act and the National Tertiary Education Industry Union (NTEU) in a communication dated 19 April 2006, as well as the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 12 July 2006. In a communication dated 29 November 2006, the Government of Australia explains the range of factors that significantly impeded its efforts to provide a report to the Committee. In particular, the Government refers to the constitutional challenge to the Work Choices Act, which was only concluded on 14 November 2006, when the High Court dismissed the challenge in its entirety. The Committee further notes the Government’s indication that, in dismissing the challenge, the High Court made no findings concerning the merit of the Work Choices Act, but merely held that the Australian Government had the legal authority to enact the legislation.

The Committee notes the extensive legislative changes introduced at the federal and state levels pursuant to the amendment of the Workplace Relations Act, 1996 (the WR Act), by the Workplace Relations Amendment (Work Choices) Act, 2005 (the Work Choices Act). These amendments concern, in particular, collective bargaining and Australian workplace agreements (AWAs). 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.

Federal jurisdiction. Articles 1 and 4 of the Convention. Protection against anti-union discrimination in the framework of collective bargaining. 1. Exclusion from protection. The Committee recalls that, in its previous comments, it had noted that section 170CC of the WR Act (now section 639 of the WR Act, as amended by the Work Choices Act) effectively excludes from protection against anti-union dismissals under section 170CK of the WR Act (now section 659 of the WR Act, as amended by the Work Choices Act), 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”. Recalling that the Convention requires that all workers be protected from anti-union dismissals, the Committee once again requests the Government to provide information as to the particular classes of employees covered by this exclusion and to provide detailed information as to the manner in which this provision has been applied in practice.

2. Protection at the time of recruitment. The Committee recalls that, in its previous comments, it had also addressed the need to amend sections 298L and 170WG(1) of the WR Act (now sections 793 and 400(5) respectively of the WR Act, as amended). These sections 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”) without this being considered as duress by the courts. The Committee observes that section 400(6) of the WR Act, as amended by the Work Choices Act, now further strengthens the previous provisions by explicitly specifying that offering an “AWA or nothing” does not amount to duress. The Committee once again emphasizes that workers who might refuse to negotiate an AWA at the time of recruitment should be afforded legal protection against acts of anti-union discrimination relative to such refusal and emphasizes that the right of workers to join the organization of their own choosing, combined with the legitimate objective of determining their conditions of employment through collective bargaining, should be fully protected. It therefore requests the Government to indicate in its next report the measures taken or contemplated to repeal section 400(6) of the WR Act and to amend sections 793 and 400(5) so as to ensure that workers are adequately protected against any discrimination at the time of recruitment related to their refusal to sign an AWA.

3. Protection in the context of negotiations of multiple business agreements. The Committee further recalls that its previous comments concerned the need to amend section 170LC(6) of the WR Act, which excluded workers who negotiated multiple business agreements from protection against anti-union dismissals if they undertook industrial action. The Committee notes that this section is not reproduced in the WR Act, as amended by the Work Choices Act. However, section 423(1)(b)(i) provides that a “bargaining period” cannot be initiated with regard to a multiple business agreement unless an employer – not a trade union – obtains authorization from the Employment Advocate in relation to making or varying such an agreement (section 332 of the WR Act, as amended). The Employment Advocate must not grant the authorization unless he or she is satisfied that it is in the public interest to do so (section 332(3)). The Committee notes that, in the absence of a bargaining period, industrial action is not protected (section 437 of the WR Act, as amended) and therefore workers continue not to be protected under the WR Act against acts of anti-union discrimination, in particular, dismissals, if they organize or participate in industrial action in support of multiple business agreements.

The Committee also takes note of the ACTU’s comments, according to which the Work Choices Act introduces further restrictions concerning “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company) by prohibiting industrial action in relation to this type of bargaining (section 439 of the WR Act, as amended) and requiring the Australian Industrial Relations Commission (AIRC) to suspend or terminate the bargaining period where pattern bargaining is occurring, thereby preventing the taking of lawful, protected industrial action (sections 431(1)(b) and 437 of the WR Act, as amended).

The Committee once again recalls that action related to the negotiation of multiple business agreements and “pattern bargaining” represents legitimate trade union activity for which adequate protection should be afforded by the law. The Committee further emphasizes that the choice of the bargaining level should normally be made by the parties themselves who are in the best position to decide this matter (see 1994 General Survey on freedom of association and collective bargaining, paragraph 249). The Committee therefore requests the Government to indicate in its next report any measures taken or contemplated to amend sections 423 and 431 of the WR Act, as amended by the Work Choices Act, so as to ensure that workers are adequately protected against acts of anti-union discrimination, in particular, dismissal, for negotiating collective agreements at whatever level deemed appropriate by the parties.

Articles 2 and 4. Protection against acts of interference in the framework of collective bargaining. In its previous comments, the Committee, recalling that section 170LJ(1)(a) of the WR Act (now section 328(a) of the WR Act, as amended) gave employers wide discretion in selecting a bargaining partner (as it enabled an employer to make an agreement with one or more organizations of employees where each organization had “at least one member” in the enterprise), 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. The Committee once again requests the Government to provide information in its next report on whether such a mechanism exists or, if not, the measures taken or contemplated with a view to setting one up.

Article 4. Measures to promote free and voluntary collective bargaining. 1. Relationship between AWAs and collective agreements. The Committee’s previous comments concerned the need to amend section 170VQ(6) of the WR Act, which gave prevalence to AWAs over collective agreements. The Committee recalls from its previous comments (prior to the adoption of the Work Choices Act) that an AWA did not operate to the exclusion of a collective agreement if the latter was already in operation and until its expiry unless the collective agreement expressly allowed a subsequent AWA to operate to its exclusion. At that time, the Committee had criticized the fact that a collective agreement that was subsequent to an AWA did not prevail over the AWA until the expiration of the AWA; in the Committee’s view, this prevented workers who wished to join a union later in their employment from profiting from any favourable provisions in a subsequently negotiated collective agreement. It also raised a special problem with regard to the possibility provided by the WR Act to offer an “AWA or nothing” to new employees who were thereby unable to benefit from the provisions of the collective agreement until the expiry of their AWA.

The Committee takes note of the ACTU’s comments, according to which the amendments introduced by the Work Choices Act give further primacy to AWAs over collective agreements. In particular: (i) section 348(2) of the WR Act now provides that a collective agreement has no effect while an AWA operates in relation to an employee, irrespective of whether the AWA was made before or after the collective agreement and irrespective of the period of operation of the collective agreement; (ii) the incentive for employers to use AWAs in order to reduce wages and conditions of employment has been substantially increased by the repeal of the requirement that an AWA should not disadvantage employees in comparison to the terms of an applicable award; the previously applicable “no disadvantage test” has been replaced with a requirement only that the agreement not exclude the Australian Fair Pay and Conditions Standard setting forth key minimum entitlements relating to pay, hours of work, annual and other types of leave (sections 171-173 of the WR Act); (iii) moreover, the award conditions which apply to existing (not new) employees can be displaced by specific provision in the AWA (section 354), so that acquired rights are not protected; (iv) in the case of new employees, an AWA substantially inferior to the collective agreement can be required as a condition of employment (“AWA or nothing”). According to the ACTU, the primacy given to AWAs under the Work Choices Act makes the purported ability of unions to bargain collectively on behalf of their members nugatory in any practical sense, given that individual AWAs are likely to expire on different dates and their permitted period of operation has been extended from three to five years (section 352 of the WR Act – this provision also concerns the permitted period of operation of collective agreements), meaning that there is never a time when all employees are in a position to bargain collectively.

The Committee considers that giving primacy to AWAs, which are individual agreements, over collective agreements, is contrary to Article 4 of the Convention which calls for the encouragement and promotion of voluntary negotiations with a view to the adoption of collective agreements. The Committee further recalls that, according to the Collective Agreements Recommendation, 1951 (No. 91), employers and workers bound by a collective agreement should not be able to include in contracts of employment stipulations contrary to those contained in the collective agreement; such stipulations should be regarded as null and void and automatically replaced by the corresponding stipulation of the collective agreement, unless they are more favourable to the workers (Paragraph 3). The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated to amend section 348(2) of the WR Act so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers.

2. Negotiations with non-unionized workers. The Committee’s previous comments concerned the need to amend section 170LK(6)(b) of the WR Act, which allowed for negotiations to take place directly with non-unionized workers instead of representative trade unions in the enterprise. The Committee notes that Part 8, Division 2, of the WR Act, as amended by the Work Choices Act, places on an equal footing various types of agreements, such as union collective agreements (section 328), AWAs (section 326) and “employee collective agreements” (section 327), the latter being agreements in writing with employees whose employment will be subject to the agreement in a single business. Furthermore, section 4 of the WR Act defines a “collective agreement” as either an “employee collective agreement” or a “union collective agreement”.

The Committee once again recalls that Article 4 of the Convention requires the encouragement and promotion of voluntary negotiations between employers or employers’ organizations and workers’ organizations. It therefore once again requests the Government to take measures to ensure that employee collective agreements do not undermine workers’ organizations and their ability to conclude collective agreements, and to indicate in its next report the measures taken or contemplated with a view to ensuring that negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise.

3. Authorization of multiple business agreements. The Committee’s previous comments concerned the need to amend section 170LC(4) of the WR Act, which required the AIRC to refuse the certification of multiple business agreements unless certification was in the public interest. The Committee notes that, pursuant to its amendment by the Work Choices Act, the WR Act now enables the Employment Advocate – and no longer the AIRC – to authorize the making or varying of multiple business agreements as a condition for their entry into operation (sections 151(1)(h) and 347(3) of the WR Act). Whereas the AIRC is a quasi-judicial body, the Employment Advocate is part of the administration, appointed by the Governor-General, and subject to the directions of the Minister for Employment and Workplace Relations (the Minister) with which he or she “must” comply (section 152 of the WR Act). The Employment Advocate must not grant authorization to make or vary a multiple business agreement unless satisfied that it is in the public interest to do so, having regard to whether the matters could be dealt with more appropriately in a collective agreement other than a multiple business agreement and to any other matter specified in regulations (section 332(3) of the WR Act). Authorization can be granted only at the request of the employer (section 332); trade unions do not appear to be able to request authorization. Any employer who lodges an unauthorized agreement with the Employment Advocate incurs a heavy penalty (sections 343 and 407 of the WR Act). Moreover, regulations may set a procedure for applying for authorization to the Employment Advocate and the Employment Advocate “need not consider an application if it is not made in accordance with the procedure” (section 332(2) of the WR Act). Finally, multiple business agreements are identified not only as agreements relating to one or more single businesses, but also relating to one or more parts of a single business (section 331(1)(a)(ii) of the WR Act), thus obliging the parties to carry out fragmented negotiations within single businesses. Similar authorization requirements are set in relation to variations of multiple business agreements (section 376).

Furthermore, the Committee notes that, according to the ACTU, the additional exclusion of “pattern bargaining” from protected action introduced in the WR Act by the Work Choices Act (see above) prevents parallel bargaining on a multi-employer basis, or even on the basis of several subsidiaries of the same parent company, thereby forcing an even greater focus on the single business, even in cases where the business might be part of a larger group of enterprises with common ownership and management.

The Committee recalls that the level of collective bargaining should be decided by the parties themselves and not be imposed by law (see General Survey, op. cit., paragraph 249). It further observes that legislation, which makes the entry into force of collective agreements subject to prior approval by the administrative authority, at the latter’s discretion, is incompatible with the Convention and a violation of the principle of autonomy of the parties (see General Survey, op. cit., paragraph 251). The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to the requirement of prior authorization at the discretion of the Employment Advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Committee also requests the Government to keep it informed of any regulations adopted in relation to this matter.

4. Restrictions on the content of collective bargaining. The Committee’s previous comments concerned the need to amend section 187AA of the WR Act, which excluded negotiations over strike pay from the scope of collective bargaining. The Committee observes that section 507 of the WR Act, as amended by the Work Choices Act, prohibits payments for days off work due to industrial action. It also notes that, according to the ACTU, the WR Act now extends the list of subjects over which negotiations are excluded, by forbidding negotiations and the reaching of an agreement over “prohibited content”. The range of matters constituting “prohibited content” are to be specified in regulations (sections 436 and 356 of the WR Act). The Workplace Relations Regulations, 2006, specify in a non-exhaustive manner what is prohibited content: matters that do not pertain to the employment relationship; objectionable provisions, including provisions which require a person to encourage trade union membership or indicating support for such membership, or requiring or permitting payment of a bargaining services fee; payroll deduction systems for union dues; leave to attend training provided by a trade union; paid leave to attend union meetings; process for renegotiating the agreement on its expiry; right of entry to the premises for union officials; union representation rights in disputes procedures, unless specifically requested by the employee; restrictions on the use of contractors and labour hire; forgoing of annual leave other than in accordance with the Act; encouragement or discouragement of trade union membership; allowing of industrial action; remedies for unfair dismissal; direct or indirect restrictions on AWAs; and discriminatory terms. In addition to prohibiting these matters from being negotiated, the WR Act, as amended by the Work Choices Act, also introduces a substantial financial penalty for a person who seeks to include prohibited content in an agreement, or who is reckless as to whether a term contains prohibited content (sections 365 and 407 of the WR Act). Moreover, by allowing for the identification of prohibited content to be carried out through regulations in a non-exhaustive manner, the law allows for the exclusion from bargaining in the future of an unlimited number of matters as determined by the Minister. Finally, according to the ACTU, the prohibition of pattern bargaining noted above constitutes an additional restriction on the content of collective bargaining (common claims pursued against more than one business).

The Committee observes that the issues listed above as constituting “prohibited content” represent to a large extent the type of matters that have traditionally been subjects for collective bargaining. As a general rule, negotiation over such matters should be left to the discretion of the parties. In this respect, the Committee draws the Government’s attention to its General Survey on freedom of association, 1994, where it has indicated that measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and the free and voluntary nature of collective bargaining. In the event of doubt as to the matters falling within the purview of collective bargaining, tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining could be a particularly appropriate method for resolving such difficulties (see General Survey, op. cit., paragraph 250). The Committee requests the Government to consider tripartite discussions for the preparation of collective bargaining guidelines and to indicate in its next report any measures taken or contemplated to amend the Workplace Relations Regulations, 2006, and to ensure that any “prohibited content” of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.

5. Greenfields agreements. The Committee’s previous comments concerned the need to amend section 170LT(10) of the WR Act, which excessively restricted the opportunity for workers in a new business to choose their bargaining agent by enabling the employer to pre-select a bargaining partner prior to the employment of any persons in the new business. The Committee now notes that section 352(1)(a) of the WR Act, as amended by the Work Choices Act, reduces the period of operation of greenfields agreements from three years to one.

The Committee also notes however that, according to the ACTU, pursuant to its amendment, the WR Act has removed the requirement for an agreement to be made with a trade union, thus enabling the employer to unilaterally determine the terms and conditions of employment through an “employer greenfields agreement” (see section 330 of the WR Act). Moreover, the WR Act has also extended the scope of “greenfields agreements” beyond the establishment of a new business, project or undertaking to cover any new activity proposed to be carried out by a government authority, a body in which a government has a controlling interest or which has been established by law for a public purpose. The law has also been clarified to specify that the reference to a new project which is of the same nature as the employer’s existing business activities is included in the definition of “greenfield” (section 323 of the WR Act; Explanatory Memorandum, paragraphs 798-801). The effect of these changes, according to the ACTU, is that employees on each of an employer’s construction sites, for example, could be employed under a unilateral employer agreement for 12 months, during which time AWAs could be introduced to ensure that collective bargaining never became a practical reality.

The Committee observes that the inclusion of employer greenfields agreements, to the total exclusion of any attempts at good-faith bargaining, within the context of a much enlarged definition of new business to further include the very broad concept of “new activity”, coupled with the greater primacy of AWAs, would appear to seriously hinder the possibilities of workers in such circumstances from negotiating their terms and conditions of employment. The Committee therefore requests the Government once again to indicate in its next report any measures taken or contemplated to amend the relevant provisions of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves and that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an employer greenfields agreement has been registered.

6. Building industry. The Committee recalls that in its previous comments it took 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. These discrepancies concern similar issues to those noted above with regard to the WR Act.

The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to bring the Building and Construction Industry Improvement Act, 2005, into conformity with the Convention, in particular with regard to the following points: (i) the revision of section 64 of the Act so as to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law, by decision of the administrative authority; (ii) the promotion of collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions of collective bargaining (sections 27 and 28 of the Act authorize the Minister to deny Commonwealth funding to contractors bound by a collective agreement that, although lawful, does not meet the requirements of a building code; the latter: (i) excludes a wide range of matters from the scope of collective bargaining; and (ii) contains financial incentives to ensure that AWAs may override collective agreements).

7. Higher education sector. In a previous direct request, the Committee addressed the need to amend section 33-5 of the Higher Education Support Act, 2003, and the Higher Education Workplace Relations Requirements (HEWRRs) which raise obstacles to collective bargaining similar to those raised by the Workplace Relations Act, 1996 (the WR Act), by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit.

The Committee notes the detailed comments raised by the NTEU in this regard. In particular, the NTEU indicates that the Higher Education Support Act was amended in November 2005 to give effect to the HEWRRs, which are linked to valuable additional government funding. According to the NTEU, the HEWRRs now mandate that all university institutions must offer AWAs to all staff. In addition, the Government has insisted that all institutions insert the following clause into university collective agreements: “the present agreement expressly allows for AWAs to operate to the exclusion of the certified agreement or prevail over the certified agreement to the extent of any inconsistency”. The NTEU provides examples of the impact the recent legislative changes have had on collective bargaining in higher education, including significant delays in being able to even enter into negotiations upon the expiration of a collective agreement. The NTEU concludes that the Government has been seriously hindering collective bargaining as a process for determining terms and conditions of employment.

The Committee regrets that the Government has not replied to the comments made by the NTEU in respect of the application of the Convention, and in particular Article 4, to those in higher education. It requests the Government to provide a detailed reply in this respect in its next report. It further requests once again the Government to indicate the measures taken or contemplated so as to bring the above instruments relating to higher education into conformity with the provisions of the Convention and to ensure that AWAs are not used to impede the collective bargaining process.

8. Discussion at the Conference Committee. The Committee notes the comments made by the Government representative before the Conference Committee according to which:

The Committee of Experts had chosen not to respond to the argument presented by the Government to the Committee at its 2005 session, concerning the appropriate interpretation of Convention No. 98. The point at issue was the view of the Committee of Experts that Article 4 of the Convention imposed an unqualified obligation to promote collective bargaining, and excluded the possibility of any other form of bargaining. Australia facilitated collective bargaining, but believed that parties should be permitted to pursue other forms of bargaining if they freely chose to do so. … Article 4 required measures for the encouragement and promotion of collective bargaining to be taken “where necessary”, and that such measures were to be “appropriate to national conditions”. … collective bargaining had been the norm in Australia for more than a century … as collective bargaining had been the historical norm in Australia, the availability of individual agreements as a choice among several industrial instruments could not be reasonably considered to contravene Convention No. 98. It was not appropriate to prohibit the availability of other forms of bargaining. Accordingly, in the language of Article 4, the legislation that was the subject of the Committee’s comments was consistent with Australian “national conditions” and Australia was not in breach of that provision.

The Committee observes, as it has already done on numerous occasions in the past, that a large number of provisions of the WR Act have the effect of preventing the negotiating parties from exercising a free choice between different forms of bargaining. The Committee is particularly concerned by the primacy accorded to individual contracts (AWAs) over collective agreements in the WR Act, the obstacles contained in this Act with regard to bargaining at any level above that of the workplace, and the express prohibition of bargaining over a very wide range of matters which normally constitute common topics in free and voluntary negotiations, as well as the heavy penalties incurred in case the parties try to negotiate such subjects. The Committee observes that the above measures can in no way be seen as measures to encourage and promote collective bargaining as they deny the parties any choice and restrict their bargaining autonomy and free will. In the Committee’s view, although the expressions “where necessary” and subject to “national conditions” found in Article 4 of the Convention allow for a wide range of different national practices in the implementation of measures for the encouragement and promotion of collective bargaining, they do not authorize in any way the introduction of disincentives, obstacles to and downright prohibitions of negotiations which amount to a negation of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention. Recalling, as it has above, that tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method to resolve any difficulties in the implementation of the Convention, the Committee requests the Government to indicate in its next report any measures taken or contemplated so as to give effect to the request of the Conference Committee for full and frank consultations with the representative employers’ and workers’ organizations with respect to all the matters raised above.

The Committee further requests the Government to provide, in its next report, its comments or observations in respect of the May and October 2006 communications of the ACTU, the NTEU communication of April 2006 and the ICFTU communication of July 2006.

Statistical data. The Committee requests the Government to provide with its next report detailed statistical data on the impact of the Workplace Relations Act, and its most recent amendments, upon the number and coverage of collective agreements in the country.

A request on another point is being addressed directly to the Government.

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

Article 4 of the Convention. 1. Collective bargaining in the higher education sector. The Committee’s previous comments, pursuant to an observation made by the Australian Council of Trade Unions (ACTU), concerned the need to amend Section 33-5 of the Higher Education Support Bill or the Higher Education Workplace Relations Requirements (HEWRRs) which: (1) granted economic incentives so as to influence the content of collective bargaining in a way that exceptions could be conceded in favour of Australian Workplace Agreements (AWAs); and (2) allowed for negotiations with non-unionized workers even where representative trade unions existed in the unit.

The Committee notes from the Government’s report with regard to what has now become the Higher Education Support Act, 2003, that the Government does not believe it necessary to make any amendments and emphasizes choice for employees and universities. The Government also indicates that the Federal Court of Australia upheld the legality of funding incentives to stimulate reform in higher education workplaces.

The Committee recalls once again that the Higher Education Support Act 2003 and the HEWRRs raise obstacles to collective bargaining similar to those raised by the Workplace Relations Act 1996 (WR Act) on which the Committee has been commenting for a number of years, recalling that Article 4 of the Convention establishes the principle of the promotion of collective bargaining between employers or their organizations and workers’ organizations. The Committee expresses the hope that the Government will take the necessary measures without delay so as to bring these instruments into conformity with the Convention and requests the Government to indicate in its next report any measures taken or contemplated in this respect.

2. Union fees. The Committee’s previous comments concerned the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 which amended the WR Act so as to prevent the Australian Industrial Relations Commission (AIRC) from certifying agreements which contain clauses requiring payment of bargaining services fees.

The Committee notes from the Government’s report that in the case Electrolux Home Products Pty. Ltd v. Australian Workers’ Union [2004] HCA 40 (2 September 2004), the High Court affirmed that in order for an agreement to be certified, every substantive clause must pertain to the employment relationship and a clause providing for bargaining agency fees, payable to a negotiating union by all employees, does not pertain to the employment relationship. Thus, any certified agreement that contains such clauses is invalid. Moreover, industrial action taken to support claims for bargaining agency fees do not qualify as "protected action" under the WR Act. While the Government introduced the Workplace Relations Amendment (Agreement Validation) Act 2004 to retrospectively validate certain certified agreements whose validity had been brought into question following this decision, this Act did not affect the invalid status of bargaining agency fees clauses in certified agreements.

The Committee once again recalls that bargaining agency fees should be a matter for the parties to decide and that the law should not prevent them from reaching an agreement on this issue. Moreover, the prohibition of agency fees, in conjunction with section 170NB(1)(a) of the WR Act which effectively expands the outcome of collective bargaining to all workers in a unit regardless of trade union affiliation, leads to a situation where non-trade union members benefit from advantageous provisions in collective agreements without having to affiliate to trade unions and without having to contribute any fees, thereby discouraging trade union affiliation and involvement in trade union activities. The Committee therefore once again requests the Government to amend the Workplace Relations Amendment Act (Prohibition of Compulsory Union Fees) Act 2003 so that the matter of agency fees can be freely negotiated by the parties themselves and not be legislatively imposed.

3. Statistical data. The Committee takes note of the statistical data provided by the Government and requests it to continue to provide such information in its next report.

South Australia. The Committee once again requests the Government to provide information on the percentages of workers covered respectively by enterprise agreements and awards.

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

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.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report. It also notes the comments of the Australian Council of Trade Unions (ACTU) dated 13 October 2003, the comments of the Australian Chamber of Commerce and Industry (ACCI) dated 10 November 2003 as well as the Government’s observations thereon dated 13 November 2003.

Article 1 of the Convention. The Committee notes that in its previous comments it had requested the Government to keep it informed of the status of the Workplace Relations Amendment (Unfair Dismissals) Bill. The Committee notes from the Government’s report that the Bill was blocked by the Senate and was not enacted into law; the subsequent Workplace Relations Amendment (Termination of Employment) Act 2001 (No. 100 of 2001) amended the termination provisions of the Workplace Relations Act (WR Act) as of 30 August 2001 so as to enhance disincentives for unmeritorious and speculative claims, remove the unnecessary procedural burdens that unfair dismissal applications place on employers and introduce greater rigour into unfair proceedings before the Australian Industrial Relations Commission (AIRC). The Committee requests the Government to transmit in its next report information on the exact provisions which have been amended and their content.

Article 2. In a previous direct request the Committee had requested the Government, in the context of a claim by the ACTU that the WR Act had the effect of promoting the establishment of workers’ organizations that are under the domination of the employer, to forward a copy of the relevant decisions addressing the issue of interference or domination of workers’ organizations by employers. The Committee notes that according to both the Government and the ACTU, despite the fact that the AIRC decided to reject an application by the Sucorp-Metway Queensland Enterprise Union (SMQEU) for registration as an enterprise association (inter alia because members of the SMQEU (including members of its committee of management) held shares in the employer), it did not rely on the fact that the SMQEU was a trade union established and entirely funded by the employer in reaching its decision. The AIRC found that the issue of funding did not mean that the association had failed to meet the independence criteria set out in paragraphs 189(4)(a) and (b) of the WR Act because the employer had no discretion to refuse the funding and no power to direct the association as to how to spend the money under the deed whereby the company agreed to fund the association. The Committee notes that, according to the Government, the AIRC’s conclusion relied on the particular circumstances of the case and is not general authority for the proposition that the provisions of the WR Act permit the registration of unions which are funded by the employer; this is borne out by a more recent decision which rejected a registration application on the basis of evidence that the applicant association had received payments from the employer. The Committee recalls that under Article 2 of the Convention, acts which are designed to support workers’ organizations by financial or other means with the object of placing such organizations under the control of employers or employers’ organizations are deemed to constitute acts of interference. It requests the Government to ensure that this Article is fully implemented in the future.

Article 4. 1. The Committee notes from the Government’s report that section 170MW of the WR Act was amended by the Workplace Relations Amendment (Genuine Bargaining) Act, 2002 so as to encourage genuine bargaining at the enterprise level. A new section 170MWA empowers the AIRC to make orders to prevent the initiation of a new bargaining period or to order that conditions be attached to any such bargaining period where an earlier bargaining period has ended because the initiating party has given notice to withdraw the bargaining period under section 170MV(b). The Committee notes that according to the Government, the new section reinforces the AIRC’s ability to end protected industrial action by suspending or terminating bargaining periods if a party is not genuinely bargaining about their claims at the enterprise level. The amendment was based on the decision of the AIRC in Australian Industry Group v. Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union & Ors (16 October 2000) which involved a party withdrawing bargaining periods, ostensibly as a cooling off period, whenever the other party sought to suspend or terminate a bargaining period through an application to the AIRC; a short time later a new bargaining period was re-instigated which allowed further protected industrial action to be taken. The AIRC found that these tactics showed that the negotiating party was not genuinely trying to reach agreement. The Committee recalls that the parties should be given every opportunity to bargain collectively, during a sufficient period, with the help of independent facilitators (mediator, conciliator, etc.) and machinery and procedures designed with the foremost objective of facilitating collective bargaining (see General Survey on freedom of association and collective bargaining, 1994, paragraph 259). The Committee requests the Government to keep it informed of the decisions taken by the AIRC in the future on the basis of section 170MWA of the WR Act.

2. Collective bargaining in the higher education sector. The Committee takes note of the comments of 13 October 2003 made by ACTU to the effect that, through section 33-15 of the Higher Education Support Bill, the Government provides economic incentives to universities, the employees of which are not government employees, to apply specific workplace relations policies (the Higher Education Workplace Relations Requirements (HEWRRs)) which inter alia: (1)  allow an AWA signed at any time to override a certified collective agreement which is still in force; (2) provide that staff involvement in negotiations on key workplace issues should not be restricted to union representation but should include direct employee involvement. The Committee takes note of the comments of 10 November 2003 communicated by the ACCI to the effect that the Government does not prescribe the way that a higher education institution must conduct its workplace relations, but rather is setting a framework to extend the scope for bargaining so as to allow for individual bargaining agreements. The Committee finally notes that, according to the Government’s observations dated 13  November 2003, the workplace relations policies that it promotes do not express a preference for one form of agreement over another and emphasize choice for employees and universities so as to tailor working arrangements to their particular needs and circumstances. The Committee notes however that section 33-15 of the Higher Education Support Bill along with the HEWRRs seem to raise obstacles to collective bargaining first by granting economic incentives so as to influence the content of collective bargaining in a way that exceptions can be conceded in favour of AWAs and, second, by allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit. The Committee therefore requests the Government to indicate in its next report any steps taken or contemplated to amend section 33-15 of the Higher Education Support Bill or the HEWRRs so as to eliminate any obstacles to collective bargaining and bring them into conformity with Article 4 of the Convention.

3. Union fees. The Committee notes from the Government’s report that the Workplace Relations Amendment Act (Prohibition of Compulsory Union Fees) 2003 amended the WR Act to prevent the AIRC from certifying an agreement containing a clause requiring payment of bargaining services fees and that the Full Bench of the AIRC has rejected the suggestion that disallowing bargaining agency fee clauses would offend against the principle of voluntary collective bargaining. The Committee considers that bargaining agency fees should be a matter for the parties to decide and that the law should not prevent them from reaching an agreement on payment of such fees, if they so decide. Moreover, the Committee considers that the prohibition of agency fees should be read in conjunction with section 170NB(1)(a) of the WR Act which effectively expands the outcome of collective bargaining to all workers in a unit regardless of trade union affiliation (as it obliges an employer not to discriminate between trade union members and non-members during the negotiation of a collective agreement). The Committee observes that these provisions lead to a situation where non-trade union members benefit from advantageous provisions in collective agreements without having to affiliate to trade unions and without having to pay any agency fees in return for such benefits, thereby effectively discouraging trade union affiliation and involvement in trade union activities. The Committee therefore requests the Government to amend the Workplace Relations Amendment (Prohibition of Compulsory Union Fees) Act 2003 so that the matter of agency fees can be freely negotiated by the parties themselves and not be legislatively imposed.

4. Statistical data. The Committee takes note of the statistical data provided by the Government according to which, between 1 January 1997 and 30 June 2003, a total of 40,789 collective agreements (certified agreements) were finalized under the WR Act with an estimated 1,671,000 employees covered by federal certified agreements. As for AWAs, according to statistics provided by the Office of the Employment Advocate, over 352,531 AWAs were approved in the period between March 1997 (when the AWA provisions came into effect) and the end of June 2003. The Committee also notes that 20.5 per cent of non-farm employees had their pay set by awards, 36 per cent through a registered collective enterprise agreement, 2.2 per cent through an unregistered collective enterprise agreement, 2  per cent through a registered individual agreement and 39 per cent through an unregistered individual agreement. The Committee notes on the basis of the above information that AWAs seem to have been applied to 2 per cent of the non-farm employees since their introduction six years ago and requests the Government to keep it informed in this respect.

South Australia. The Committee takes note of the information provided by the Government of South Australia in its report. It also notes, however, that the Government does not provide any information with regard to the Committee’s previous request concerning the percentages of workers covered respectively by enterprise agreements and awards. The Committee once again requests the Government to provide information on the percentages of workers covered respectively by enterprise agreements and awards.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s reports as well as the comments of the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI) as well as the Government’s observations thereon.

Federal jurisdiction. The Committee recalls that its previous comments concerned the conformity of several provisions of the Workplace Relations Act, 1996 (WR Act) with the Articles of the Convention. 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. Protection against anti-union discrimination in case of refusal to negotiate an Australian Workplace Agreement (AWA). As to the particular notion of "Australian Workplace Agreement" (AWA), the Committee refers to the clarifications provided in its 1997 observation on the application of the Convention by Australia. The Committee notes that its previous comments concerned the issue of protection against anti-union discrimination under the WR Act. The Committee takes note of the Government’s statement that full protection against all acts of anti-union discrimination and for all categories of workers is provided under the combined provisions of: (1) section 170CK of the WR Act, which applies in case of anti-union dismissals; (2) Part XA of the WR Act, in particular sections 298K and 298L which provide protection to all workers and in relation to a broader range of conduct, including not only conduct resulting in the termination of employment, but also threatened conduct; and (3) section 170WG(1) of the WR Act which prohibits the application of duress against an employee in connection with an AWA. The Committee takes note in this respect of several court rulings communicated by the Government. The Committee also notes, however, that the abovementioned sections do not seem to provide adequate protection against anti-union discrimination (at the time of recruitment, during employment or, for certain wide categories of workers, at the time of dismissal) to workers who refuse to negotiate an AWA and insist on having their terms and conditions of employment governed by collective agreements, contrary to Articles 1 and 4 of the Convention.

Firstly, with regard to discrimination at the time of recruitment, the Committee notes that section 298L of the WR Act does not include a refusal to negotiate an AWA among the prohibited grounds of anti-union discrimination at the time of hiring. According to both the ACTU and the Government, the courts found that an employer offering new employees a job conditional on signing an AWA did not apply duress, as, in that case, there was no pre-existing relationship between the parties (Maritime Union of Australia v. Burnie Port Corporation Pty. Ltd. (2000) 101 IR 435), while the Employment Advocate has repeatedly held that where an employee is offered a position with a new employer conditional upon entering into an AWA this will not, without more, amount to duress under section 170WG(1) of the WR Act. The Committee recalls that the protection provided for in the Convention covers both the time of recruitment and the period of employment, including the time of work termination (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 210). The Committee considers that sections 170WG(1) and 298L of the WR Act and the relevant national practice do not appear to afford adequate guarantees against anti-union discrimination at the time of recruitment and cannot be considered as measures to promote collective bargaining.

Secondly, the Committee notes with regard to discrimination during employment, that according to both the ACTU and the Government, the courts found no anti-union discrimination in a case in which employees had been required to sign AWAs in order to receive a wage increase, thereby giving up their right to collective bargaining; as a result, those who chose to remain on the collective agreement received inferior conditions (Australian Workers’ Union v. BHP Iron-Ore Pty. Ltd. (2001) FCA 3). The Committee notes that according to the Government, the Court found that in this case, there was no evidence of pressure by the employer, who had made offers of individual agreements to all employees, as it was clear that the existing collective instruments would continue to operate for those employees who did not accept the offer of individual agreements. The Committee understands from the above that the finding that there was no discrimination, was based on the fact that there would be no dismissals; however, the issue of anti-union discrimination in the course of employment was not addressed. The Committee recalls that Article 1(2)(b) of the Convention covers, in addition to dismissal, acts which "otherwise" prejudice a worker by reason of union membership or because of participation in union activities (see General Survey, op. cit., paragraph 212). It considers that situations in which workers who refuse to give up the right to collective bargaining are denied a wage rise amount to anti-union discrimination contrary to Article 1 and constitute an obstacle to collective bargaining contrary to Article 4 of the Convention.

Furthermore, the Committee notes with concern from the Government’s report that in another case the Australian Industrial Relations Commission (AIRC) held that an employer would not be in breach of either section 170CK or section 298K by relying on an undertaking given by an employee to "not involve himself in union activities forever" and that such an undertaking could be enforced by the employer (Container Terminals Australia Limited v. Toby, 24 July 2000). The Committee considers that enforcing an undertaking not to be involved in union activities forever amounts to a clear act of anti-union discrimination, contrary to Article 1 of the Convention and certainly does not constitute a measure to encourage and promote collective bargaining.

Thirdly, with regard to discrimination at the time of termination of employment, the Committee notes that whereas refusal to negotiate in connection with an AWA is provided as a prohibited ground for dismissal in section 170CK(2)(g), such refusal is not a prohibited ground for dismissal under section 298L. As a result, the wide categories of workers who are excluded from the scope of section 170CK by virtue of section 170CC (employees on contracts of employment for a specified period of time or a specified task, employees on probation or engaged on a casual basis, those "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", and those whose remuneration falls below a certain threshold), do not seem to be protected against anti-union dismissals if they refuse to negotiate an AWA (thereby insisting on having their conditions and terms of employment governed by collective agreements). The Committee considers that these provisions are contrary to Article 1 of the Convention and constitute an obstacle to collective bargaining contrary to Article 4.

The Committee therefore requests the Government to indicate in its next report all measures, taken or envisaged, to revise sections 170CC, 170WG and 298L of the WR Act so that sufficient legal protection is provided against all acts of anti-union discrimination (committed at the time of recruitment, during employment, and for the wide categories of workers excluded from the scope of section 170CK, at the time of dismissal) against workers who refuse to negotiate an AWA and insist on having their terms and conditions of employment governed by collective agreements.

2. Protection against anti-union discrimination in case of negotiation of multiple business agreements. The Committee recalls that in its previous comments it had expressed concern at the exclusion from the scope of section  170ML, by section 170LC(6) of the WR Act, of industrial action taken with regard to the negotiation of multiple business agreements which was therefore not considered as "protected action" and was not covered by legal immunity. The Committee notes that this exclusion means that workers negotiating a multiple business agreement are not protected from anti-union dismissals under section 170MU and that, if they undertake industrial action, this might be regarded as coercion under section 170NC and would not appear to afford them the protection provided for lawful trade union activities under sections 298K and 298L(1)(n). The Committee takes note of the Government’s statement that, although the provisions of the Act are directed towards facilitating agreement at the enterprise or workplace level, the parties are free to negotiate and make multiple employer agreements outside the formal system if they so choose, and the Act expressly contemplates such bargaining. The Committee notes, however, that according to ACTU such agreements outside the formal system would be difficult to enforce and could not be adequately negotiated because any industrial action taken would be unlawful in common law. The Committee therefore observes that, by not affording adequate protection against anti-union discrimination during the negotiation of multi-employer agreements, the WR Act introduces obstacles to such negotiation. The Committee recalls in this respect that in its previous comments it had emphasized that the choice of the bargaining level should normally be made by the partners themselves and that the parties "are in the best position to decide the most appropriate bargaining level" (see General Survey, op. cit., paragraph 249). The Committee once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 170LC(6) of the WR Act so as to ensure that workers are adequately protected against discrimination for negotiating a collective agreement at whatever level the parties deem appropriate and that employers’ and workers’ organizations have a free choice as to the level at which they wish to negotiate collectively.

Articles 2 and 4. Protection against acts of interference in the framework of collective bargaining. The Committee notes that section 170LJ(1)(a) enables an employer to make an agreement "with one or more organisations of employees" where each organization has "at least one member" employed in the single business and is entitled to represent the industrial interests of the member in relation to work that will be subject to the agreement. It appears to the Committee that the effect of this provision read together with the non-discrimination provision in section 170NB(1) (which requires that in negotiating an agreement, an employer must not discriminate between employees who are members of an organization and those who are not members, or between those who are members of a particular organization and others who are members of a different one) is that collective bargaining in the name of all workers may take place regardless of the representativeness of a trade union in the particular undertaking and of the wishes of the employees. The Committee notes in this respect that, according to the ACTU, these provisions allow employers to "shop around" amongst unions to see whether they can gain an advantage by dealing with one union over another. The Committee notes that the provisions of section 170LJ(1)(a) in conjunction with those of section 170NB might enable an employer to unduly influence the choice of workers as to the trade union that should represent them in negotiations thereby enabling the employer to interfere in the functioning of trade unions, contrary to Article 2 of the Convention. It also recalls that the determination of representative trade unions should be based on objective and pre-established criteria so as to avoid any possibility of partiality and abuse (see General Survey, op. cit., paragraph 97). The Committee therefore requests the Government to indicate in its next report any measures taken or contemplated to amend section 170LJ(1)(a) of the WR Act so as to establish appropriate guarantees against employer interference in the context of the selection of a bargaining partner. In particular, the Committee would suggest the establishment of a mechanism for the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner, and the adoption of safeguards like objective and pre-established representativeness requirements.

Article 4. Measures to promote free and voluntary collective bargaining. 1.  Relationship between AWAs and collective agreements. The Committee recalls that in its previous comments it had noted that under section 170VQ(6)(c) of the WR Act, once an AWA is in place, it operates to the exclusion of a certified collective agreement (unless the latter was already in operation and until its expiry, according to section 170VQ(6)(a)(i) and (ii) or if the certified collective agreement expressly allows a subsequent AWA to operate to its exclusion, according to section 170VQ(6)(a)(iii)). It further notes that according to the Government, if an AWA has not passed its nominal expiry date, it excludes the application of a certified collective agreement which has taken effect in the meantime, even where the collective agreement contains more favourable terms and conditions of employment (section  170VQ(6)(b) of the WR Act). The Committee is of the view that the fact that a collective agreement which is subsequent to an AWA may prevail over it only after the expiration of the duration of the AWA, constitutes discrimination with regard to workers who may wish to join a union during their employment, since such workers will not be able to profit from any favourable provisions of the collective agreement despite their affiliation. It also notes that a special issue exists in this respect with regard to newly recruited workers because the WR Act enables employers to offer an "AWA-or-nothing" at the time of recruitment without this being considered as duress (see above); such workers will be unable to benefit from the provisions of a collective agreement until the expiry of their AWA. Thus, the Committee considers that section 170VQ(6) of the WR Act contains disincentives to trade union affiliation by unduly restricting the field of application of collective agreements. The Committee requests the Government to indicate in its next report any measures taken or contemplated to amend section 170VQ(6) of the WR Act so as to eliminate these disincentives and restrictions. The Committee also requests the Government to provide information on the evolution of affiliation levels since the adoption of the WR Act.

2. Collective agreements with non-unionized workers. The Committee observes that whereas section 170LJ is entitled "Agreement with organisations of employees", section 170LK is entitled "Agreement with employees" without any reference to workers’ organizations. Section 170LK(1) provides that "[t]the employer may make [an] agreement with a valid majority of the persons employed at the time whose employment will be subject to the agreement". Section 170LH requires the AIRC to certify agreements made by corporations either with trade unions or directly with employees. It appears to the Committee that (as also noted by ACTU), these provisions allow for collective negotiations over individual agreements to take place directly with employees, even where unions exist in an enterprise. The Committee notes that, according to the Government, section 170LK is in conformity with the Convention because individual workers are entitled under section 170LK(4) to request that they be represented by a trade union of which they are members in "meeting and conferring" with the employer. The Committee notes that the outcome of such request for trade union representation appears to be uncertain as section 170LK(6)(b) provides that the right of workers to be represented by trade unions will cease if any of the conditions stipulated in section 170LK(4) cease to be met. Thus, as noted by ACTU, even where workers are initially entitled to be represented by trade unions in negotiations, the employer may subsequently avoid any union involvement by unilaterally changing the scope and content of the negotiations (so that section 170LK(4)(b) no longer applies) or by simply declaring that it does not any longer wish to pursue an agreement under section 170LK. The Committee considers that if there is a possibility in the law that a request for trade union representation may lead to the partial or total abandonment of negotiations, then the law establishes a disincentive to request such representation. Recalling that Article 4 requires measures to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, the Committee requests the Government to indicate in its next report any measures taken or contemplated to amend section 170LK(6)(b) so as to ensure that the right to trade union representation is effectively guaranteed and that negotiations with non-unionized workers can take place only where there is no representative trade union in the enterprise.

3. Collective bargaining level. The Committee takes note of a long list of multiple business agreements certified by the AIRC, which is provided by the Government in its report. However, the Committee also notes from the Government’s report that during the reporting period the AIRC refused two applications to certify a multiple-business agreement on public interest grounds because the agreement applied to a number of employees whose operations were substantial and the matters would be more appropriately dealt with by single business agreements. The Committee recalls that section 170LC(4) of the WR Act provides that the AIRC must not certify a multiple-business agreement unless it is satisfied that it is in the public interest to do so, having regard to: (a) whether the matters dealt with therein could be more appropriately dealt with by agreement other than a multiple-business agreement; and (b) any other matter that the AIRC considers relevant. The Committee considers that approval should be refused only if the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation; if legislation allows the authorities full discretion to deny approval (as seems to be the case under section 170LC(4)(b) of the WR Act) or stipulates that approval must be based on criteria such as compatibility with general or economic policy (in this case, the public interest), it in fact makes the entry into force of the collective agreement subject to prior approval, which is a violation of the principle of autonomy of the parties (see General Survey, op. cit., paragraph 251). The Committee therefore requests the Government to indicate in its next report any measures taken or contemplated to amend section 170LC(4) so as to eliminate the requirement of prior approval of multiple business agreements by the AIRC.

4. Negotiations over strike pay. The Committee further recalls that in its previous comments it had raised the issue of strike pay as a matter for negotiation noting that although the mere fact that there are deductions for days on strike is not contrary to the Convention, it is incompatible with the Convention to impose such deductions in all cases (as under section 187AA) as, in a system of voluntary collective bargaining, the parties should be able to raise this matter in negotiations. The Committee notes that, according to the Government, it is reasonable to prevent improper demands for payment for periods where employees or unions that come within the norms of the system have taken industrial action. The Committee once again recalls that in a system of voluntary collective bargaining, the parties should be able to raise the matter of strike pay in negotiations and that by preventing them from doing so, the law unduly constrains the permissible scope of collective bargaining. The Committee therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend section 187AA in accordance with the above.

5. Greenfields agreements. The Committee recalls that in its previous comments it had referred to the pre-selection by an employer of a bargaining partner before workers are employed according to section 170LL of the WR Act ("greenfields agreements") and had noted that this is permissible only for a first agreement and that since the Act permits the duration of any agreement to be up to three years (section 170LT(10)) section 170LL potentially prejudices the workers’ choice of bargaining agent for a considerable period. The Government states in its report that the Committee’s view that three years is a considerable period is a substantive judgement and expresses the view that it would take three years for a new business to get established, and that it is a reasonable amount of time to provide for "greenfields agreements". The Committee notes that its view that restrictions on collective bargaining for three years are too long is shared by other supervisory bodies like the Committee on Freedom of Association (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paragraph 887). It also notes that this view is implicitly shared by the Government itself as section 170LT(10) prohibits a duration of more than three years for (freely negotiated) certified collective agreements. The Committee considers that being an exceptional situation, "greenfields agreements" should not have the same duration as freely negotiated certified agreements. The Committee therefore once again requests the Government to indicate in its next report any steps taken or contemplated to amend section 170LL of the WR Act so that the choice of bargaining agent can be made by the workers themselves, including in the case of a new business.

Western Australia

In its previous comments the Committee had taken note of the Western Australia Government’s intention to repeal the 1993 Workplace Agreements Act, give preference to collective bargaining, repeal restrictions on unions’ access to workplaces, introduce a good-faith bargaining principle and strengthen the role of the Western Australian Industrial Relations Commission. The Committee notes with interest from the Government’s report that the Workplace Agreements Act will be repealed in stages by the Labour Reforms Act, which now formally recognizes the primacy of collective over individual agreements and contains new provisions relating to good faith bargaining, entry of authorized union representatives to working places (with due respect for the rights of property and management) and reinstatement as the primary remedy in cases of unfair dismissal. The Committee also notes, however, with regard to its previous comments concerning the absence of provisions prohibiting acts of discrimination for trade union activities in the Industrial Relations Act, 1979, that the Government does not indicate any new provision protecting workers against anti-union discrimination on the basis of trade union activities. The Committee requests the Government to indicate in its next report whether the concept of unfair dismissal encompasses anti-union dismissals and to indicate any further measures taken or contemplated so as to afford full protection against anti-union discrimination at the time of recruitment, during employment and at the time of dismissal, and provide for specific remedies and penalties where there has been anti-union discrimination.

A request on certain other points, including comments made by ACTU and those of ACCI, is being addressed directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the Government’s extensive reports. It further notes the detailed comments made by the Australian Council of Trade Unions (ACTU) and by the Australian Chamber of Commerce and Industry (ACCI), as well as the Government’s response to these comments, which it received recently. In these conditions, the Committee was not able to examine the questions relating to the application of the Convention and will examine them next year.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the Government’s report, and of the references to the various jurisdictions’ legislation, as requested in previous comments.

Federal jurisdiction

The Committee notes that the Commonwealth’s report will be forwarded to the ILO as soon as possible after the installation of the new Government, following the general election of 10 November 2001, and that the governments of Victoria and the Australian Capital Territory have not provided their comments.

The Committee requests once again the Government to provide the reports of these jurisdictions, which it will examine along with the Commonwealth’s report once it is received.

State jurisdictions

New South Wales. The Committee notes the Industrial Relations Commission’s decision in the Graham Davis case, in relation with the issue raised by the Committee in its previous request concerning the protection of workers from discrimination for trade union activities.

Queensland. The Committee notes the information provided by the Government in reply to its previous request concerning the number of employees covered by Queensland Workplace Agreements, and the criteria to be used by the Industrial Relations Commission in applying the "public interest" test under section 203 of the 1999 Industrial Relations Act.

South Australia. The Committee had 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 Government indicates that while collective bargaining occurs at enterprise level, there is also a comprehensive system of industry-based awards which set wages and work conditions; these awards are negotiated collectively by employer and employee representatives under the direction of the independent Industrial Relations Commission of South Australia.

The Committee notes this information and requests the Government to indicate the percentages of workers covered, respectively, by enterprise agreements and awards.

Tasmania. The Committee notes the provisions of the 1998 Anti Discrimination Act, which protect workers against discrimination based on participation in trade union activities.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note of the Government’s report, and of the references to the various jurisdictions’ legislation, as requested in previous comments.

Federal jurisdiction

The Committee notes that the Commonwealth’s report will be forwarded to the ILO as soon as possible after the installation of the new Government, following the general election of 10 November 2001, and that the governments of Victoria and the Australian Capital Territory have not provided their comments.

The Committee requests once again the Government to provide the reports of these jurisdictions, which it will examine along with the Commonwealth’s report once it is received, inasmuch as the same legislation is applicable.

State jurisdictions

Western Australia. The Committee had requested the Government to review and amend its legislation in order to ensure conformity with the Convention as regards protection against anti-union discrimination and promotion of collective bargaining. The Government indicates that the new Western Australian government, elected in February 2001 with a substantial mandate for industrial relations reform, will ensure compliance with the Convention through a series of measures, including: the repeal of the 1993 Workplace Agreements Act; a clear and effective preference for collective bargaining over a modified version of individual bargaining; the creation of a more balanced system between employers and employees, including the repeal of restrictions on unions’ access to workplaces; the introduction of a good faith bargaining principle; and a strengthened role for the Western Australian Relations Commission. The Government adds information on the characteristics of the future Employer Employee Agreement (EEA), which distinguish them from the current Workplace Agreement (WPA) system.

The Committee notes this information with interest and requests the Government to transmit a copy of the Act once adopted, and to provide information on its application in practice.

The Committee is also addressing a direct request to the Government concerning the federal jurisdiction, as well as the Australian Capital Territory, New South Wales, Queensland, South Australia, Tasmania and Victoria.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes due note of the information provided by the Government concerning a number of decisions of the Federal Court and the Australian Industrial Relations Commission which have interpreted provisions of the Workplace Relations Act, in particular regarding anti-union discrimination. The Committee will address the issues raised therein, as well as the other pending issues next year when it receives the Government’s full report. The Committee requests that the Government continue forwarding relevant decisions of the courts and the Commission.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

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.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee had previously expressed the hope that simplified summaries of the Workplace Relations Act, 1996 (the Act), would be made available to employers and workers. The Committee observes with interest the Government's indication that "user guides" and "fact sheets" on the main elements of the Act have been published by the Department of Employment, Workplace Relations and Small Business.

Articles 1 and 4 of the Convention. The Committee notes that according to the documentation submitted by the ACTU, including case studies of practical difficulties faced by unions since the adoption of the Act, it appears that an employer can give preferential treatment to workers who agree to have their terms and conditions governed by non-union agreements rather than union agreements, and some employers are doing so with impunity. It also appears that some job positions are being designated as "Australian Workplace Agreement (AWA) only" positions, with no real opportunity for the workers to have their terms and conditions of employment governed by a collective agreement. In the view of the Committee, such situations could amount to anti-union discrimination, contrary to Article 1, and could not be said to encourage and promote voluntary collective bargaining, contrary to Article 4. The Committee, therefore, requests the Government to indicate in its next report any steps taken to ensure that under the Act as applied in practice, workers cannot be discriminated against for seeking to have their terms and conditions determined through collective bargaining. The Committee also requests the Government to comment on the question of whether the Act, in practice, results in the effective discouragement of collective bargaining.

Article 2 of the Convention. The Committee notes that the ACTU in its most recent comments raises a concern with respect to a recent decision of the Australian Industrial Relations Commission. In the view of the ACTU, this decision has demonstrated that in the case of enterprise unions, the Act has the effect of promoting the establishment of workers' organizations that are under the domination of employers. The Committee also notes the response of the Government on this point. The Committee requests the Government to forward a copy of the relevant decision as well as any other court or tribunal decisions addressing the issue of interference or domination of workers' organizations by employers.

Article 4 of the Convention. The Committee notes the comment of the ACTU that employers are using the Act to prevent the involvement of representative unions in bargaining, by allowing employers to "shop around" amongst unions to see whether they can gain an advantage by dealing with one union over another, or refusing to negotiate at all. The ACTU also states that with the adoption of the Act, the jurisdiction of the Australian Industrial Relations Commission to make orders requiring good faith bargaining was removed. In the context of encouraging and promoting voluntary collective bargaining, the Committee recalls the importance of the public authorities encouraging employers to recognize trade unions that can prove their representativeness (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240). In order to encourage the harmonious development of collective bargaining and avoid disputes, the Committee considers it desirable to draw up and apply objective procedures which make it possible to determine the most representative trade unions for the purpose of collective bargaining when it is not clear which trade unions the workers would like to represent them (op. cit., paragraph 242). The Committee also recalls the importance it attaches to the principle that employers and trade unions should negotiate in good faith and endeavour to reach an agreement (op. cit., paragraph 243). The Committee, therefore, requests the Government to respond to these assertions of the ACTU.

The Committee notes from the Government's report that the number of Australian Workplace Agreements has increased rapidly. The Committee requests the Government to continue providing information as to the number of workers covered by AWAs, certified agreements and awards. The Committee also requests the Government to keep it informed of the status of the Workplace Relations Legislation Amendment (More Jobs, Better Pay) Bill, 1999, and to forward a copy once it is enacted into law.

State jurisdictions

The Committee requests the Government to provide information concerning the number of Queensland Workplace Agreements and how the "public interest" test under section 203 of the Industrial Relations Act, 1999 is interpreted. With respect to New South Wales, the Committee requests the Government to keep it apprised of any court or tribunal decisions interpreting the phrase "public or political activity" in section 210 of the Industrial Relations Act, 1996. In addition, noting the Government's indication that the categories of employees excluded from the unfair dismissal provisions of the Industrial Relations Act, 1996, are provided with adequate protection in accordance with Article 1 of the Convention through the Industrial Relations Amendment (Unfair Contracts) Act, 1998, and the Industrial and Commercial Training Act, 1989, the Committee requests the Government to forward a copy of these two Acts. The Committee also notes the Government's indication that the 65 per cent approval rate before an enterprise agreement can be made or registered only applies to the making of an enterprise agreement by employees without union involvement. Concerning Tasmania, the Committee notes that while the Industrial Relations Act, 1984, does not provide specific protection against discrimination based on participation in trade union activities, the Anti-Discrimination Act (which has not yet been proclaimed) appears to address this lacuna. The Committee requests the Government to forward a copy of the Anti-Discrimination Act once it has been proclaimed.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

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.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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 which took place thereafter. The Committee also notes the Government's response to comments made by the Australian Council of Trade Unions (ACTU) regarding various aspects of the Workplace Relations Act, 1996. The Committee further observes that on 13 August and 2 October 1998, the ACTU submitted further detailed comments on, inter alia, the Workplace Relations Act, 1996, as well as other Australian laws. The Committee therefore requests the Government to reply to the most recent comments furnished by the ACTU as well as to the previous comments made by the Australian Chamber of Commerce and Industry (ACCI) in order to review the various issues raised therein in full knowledge of all the facts.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the information provided in the Government's report, in particular regarding the extensive legislative changes at the federal and state levels. The Committee also notes the comments submitted by the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI) regarding the recently enacted Workplace Relations Act, 1996, which has considerably altered the legislative foundation of industrial relations at the federal level.

The Committee notes that information regarding the application of the Convention in Victoria, Tasmania and the Australian Capital Territory has not been included in the Government's report, and requests the Government to forward this information. The Committee further requests the Government to forward any court or commission decisions regarding the recently enacted legislation. The Committee received a further communication from the Government of Australia but it was received too late to be considered.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee observes firstly that this major restructuring of the law governing workplace relations is enshrined in a long and complicated statute. The Committee hopes that simplified summaries will be available to the employers and especially to the workers concerned. Its aims are to promote cooperative workplace relations and its principal objects in this respect are set out succinctly and with clarity in section 3. The Act establishes an Australian Industrial Relations Commission which is to have an important role in overseeing the application of the statute and dealing with problems and disputes that arise.

Article 1 of the Convention. 1. The Committee notes that protection against dismissal is provided for under section 170CK(2)(b) of the Act based on trade union membership or participation in trade union activities outside working hours or, with the employer's consent, within working hours. Pursuant to section 170CC(1), however, regulations may exclude certain employees from specified termination of employment provisions, including employees on contracts of employment for a specified period of time or a specified task, employees on probation or engaged on a casual basis or those "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". Section 170CC(3) and (4) appear to provide that where employees pass a threshold of remuneration (now set at A$64,000 pursuant to Regulation 30BB), they can be disqualified from protection under the termination of employment provisions. The Committee also takes note of a recent amendment proposed to the Act through the Workplace Relations Amendment Bill, 1997, that excludes new employees of small businesses (employing 15 employees or less) from the unfair dismissal provisions.

2. The Committee recalls that under Article 6 of the Convention only public servants engaged in the administration of the State may be excluded. The Committee requests the Government to indicate in its next report how the above-noted legislative provisions have been applied and which groups of workers, if any, have been excluded from which provisions of the Act. It would appreciate receiving information as to whether and how adequate protection in accordance with Article 1 of the Convention is provided for these workers in other legislation. The Committee also requests clarification regarding the relationship between section 170CC(1) and sections 170CC(3) and (4), and recalls that the protection of Article 1 cannot be restricted due to the rate of remuneration received prior to the termination. The Committee also requests the Government to keep it informed of the status of the Workplace Relations Amendment Bill, 1997. The Committee requests the Government to ensure that employees of small businesses are adequately protected as required by the Convention, and to inform it of any steps taken in this regard.

3. The Committee notes that further protection from discrimination on the ground of trade union activities is provided under sections 170MU and 298K of the Act. Pursuant to Part IVB, Division 8, in particular section 170MU, an employer is prohibited from dismissing or otherwise prejudicing an employee in his or her employment on the basis of the employee's participation in "protected action". "Protected action", as defined in section 170ML, is industrial action taken regarding the negotiation of a single-business certified agreement, and does not extend to a multiple-business agreement due to section 170LC(6) which excludes multiple-business agreements from the scope of Division 8. Section 298K also protects employees from discrimination in employment, in this case where such discrimination is based on "prohibited reasons", which are defined in section 298L to include membership in an industrial association and some specific activities, but does not appear to cover the negotiation of multiple-business agreements. In short, it appears to the Committee that the full scope of trade union activities is not covered. The Committee 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 4.4. The Committee notes that one of the principal objects of the Act, as set out in section 3(b), is "ensuring that the primary responsibility for determining matters affecting the relationship between employers and employees rests with the employer and employees at the workplace or enterprise level". This emphasis on direct employee-employer relations is particularly evident in Part VID of the Act regarding Australian workplace agreements (AWAs), which are defined in section 170VF: "an employer and employee may make a written agreement, called an Australian workplace agreement, that deals with matters pertaining to the relationship between an employer and employee". This Part promotes AWAs, which are essentially individual in nature, over collective agreements, through simpler filing requirements in comparison with the collective certification procedure, the advice and assistance of the Employment Advocate and giving AWAs primacy over federal awards and state awards or agreements, and over certified agreements, unless the certified agreement is already in operation when the AWA comes into operation (section 170VQ). Once there is an AWA in place, a collective agreement certified under the Act cannot displace it. In addition, under Part XV of the Act, providing for the extension of the provisions of the Act to the State of Victoria, when a collective employment agreement ceases to be in force, it is replaced by "an individual employment agreement with the same terms" (section 516). The Committee concludes that primacy is clearly given to individual over collective relations through the AWA procedure. The Committee considers that the provisions of the Act noted above do not promote collective bargaining as required under Article 4 of the Convention. It, therefore, requests the Government to indicate in its next report any steps taken to review these provisions of the Act and to amend it to ensure that it will encourage collective bargaining as required by Article 4 of the Convention.

5. The Committee notes that with respect to the levels of bargaining, a clear preference is given in the Act to workplace/enterprise-level bargaining, as evidenced in section 3(b), as noted above, as well as section 88A(d) which charges the Australian Industrial Relations Commission with exercising its functions and powers regarding awards in a manner "that encourages the making of agreements between employers and employees at the workplace or enterprise level". Regarding certified agreements, Part VIB of the Act sets out a series of provisions facilitating single-business agreements, and giving them priority over multiple-business agreements. Section 170L states that the object of the part "is to facilitate the making, and certifying by the Commission, of certain agreements, particularly at the level of a single business or part of a single business". Preference for enterprise-level bargaining is also evidenced in sections 170ML and 170MU which, as noted above, provide some protection in the case of industrial action taking place during the bargaining period for certified agreements. However, due to section 170LC(8), this protection is not afforded with respect to the negotiation of multiple-business agreements. The Committee also notes that a multiple-business agreement can only be certified pursuant to section 170LC if it is found to be "in the public interest to certify the agreement" taking into consideration whether the matters could be more appropriately dealt with in a single-business agreement. In short, the determination of what level of bargaining is considered appropriate is placed in the hands of the Commission, which is mandated to give primary consideration to single-business agreements and to use the criterion of "the public interest". The Committee is of the view that conferring such broad powers on the authorities in the context of collective agreements is contrary to the principle of voluntary bargaining.

6. The Committee recalls that, since the Convention contemplates voluntary collective bargaining, the choice of the bargaining level should normally be made by the partners themselves, and the parties "are in the best position to decide the most appropriate bargaining level" (see General Survey on freedom of association and collective bargaining, 1994, paragraph 249). The Committee requests the Government to review this issue and amend the legislation in the light of the requirements of the Convention.

7. Regarding the subjects of negotiation, the combined effect of sections 166A, 187AA and 187AB prohibit the issue of strike pay being raised as a matter for negotiation. Considering that in general the parties should be free to determine the scope of negotiable issues (see General Survey, op. cit., paragraph 250), the Committee requests the Government to review and amend these provisions to ensure conformity with the Convention.

8. With reference to the provisions of the Act in Part VIB requiring majority approval of a certified agreement, the Committee recalls that where no trade union represents a majority of the workers, the unions should be able to negotiate an agreement at least on behalf of their own members (see General Survey, op. cit., paragraph 241).

9. The Committee requests clarification regarding section 170LL of the Act which appears to permit an employer of a new business to choose which organization to negotiate with prior to employing any persons. The Committee recalls that the choice of bargaining agent should be made by the workers themselves; section 170LL appears to allow the employer to preselect the bargaining partner on behalf of the potential employees, regardless of whether or not that union will ultimately be truly representative of the workers finally employed.

10. The Committee considers that it is obvious that the impact of the legislation will not be fully clear for several years. The role of the Industrial Relations Commission will be crucial in this development. It is important that such natural evolution be carefully monitored to ensure that the spirit of the Convention is maintained. The Committee would welcome regular reports on future developments.

Queensland

The Committee notes the recent adoption of the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997. As affirmed in the Government's report, the Committee notes that the Workplace Relations Act of Queensland is closely based on the Federal Workplace Relations Act. While there are differences between some of the provisions of the Queensland legislation and the provisions referred to above by the Committee in relation to the federal legislation, they are sufficiently similar, that the Committee recalls its above comments in the context of the Queensland legislation. The Committee refers in particular to the corresponding provisions in the Workplace Relations Act, 1997, in Chapter 2 on certified agreements and Queensland Workplace Agreements, Chapter 5 on dismissals, and Chapter 6 on industrial disputes, and in the Industrial Organizations Act, 1997, in Part 14 on freedom of association.

New South Wales

The Committee notes that certain categories of employees are excluded, or permitted to be excluded through regulation, from the unfair dismissal provisions under Part 6 of the Industrial Relations Act, 1996 (sections 83(1)(a) and 83(2)). These exclusions and potential exclusions are set out in similar terms as section 170CC(1), (3) and (4) of the Federal Workplace Relations Act, 1996, referred to above; the Committee, therefore, refers to its comments above on this matter. Also with reference to Article 1 of the Convention, the Committee requests the Government to indicate in its next report how the phrase "public or political activity" in section 210 has been defined, and if, in particular, protection from victimization on this basis protects workers from discrimination on the basis of trade union activities.

Regarding the system of enterprise agreements provided for under the Act, the Committee requests the Government to indicate in its next report whether and to what extent collective bargaining can and does take place at levels other than the enterprise level. The Committee notes that pursuant to section 36(4), an enterprise agreement has no effect until, inter alia, it is approved by 65 per cent of employees who are to be covered by the agreement. The Committee recalls that where no union or group of unions has majority support, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members, and requests the Government to indicate in its next report whether and to what extent unions can and do bargain collectively when the 65 per cent approval rate is not attained.

South Australia

The Committee notes the recent amendments to the Industrial and Employee Relations Act, 1994. Regarding the system of enterprise agreements provided for under the Act, the Committee, as in the context of New South Wales, requests the Government to indicate in its next report whether and to what extent collective bargaining can and does take place at levels other than the enterprise level.

Western Australia

The Committee notes the recent adoption of the Labour Relations Legislation Amendment Act, 1997, which amends the Industrial Relations Act, 1979, the Workplace Agreements Act, 1993, and the Minimum Conditions of Employment Act, 1993.

Industrial Relations Act, 1979, as amended. The Committee notes that pursuant to Part VIA of the recently amended Industrial Relations Act of Western Australia, while there is some protection against discrimination on the basis of trade union membership, no provision addresses discrimination based on trade union activities, as required under the Convention. The Committee recalls that specific remedies and penalties against anti-union discrimination are needed to ensure the effective application of Article 1 of the Convention.

The Workplace Agreements Act, 1993, as amended. The Committee notes that the Act, as recently amended, establishes a system of contracts between an employer and an employee or a group of employees. The preference given through this system to individual agreements over collective agreements is evidenced in a number of provisions: (i) the Act overrides the Industrial Relations Act, 1979, generally (section 4) and the awards system specifically (section 6); (ii) although the Act contemplates agreements with a group of employees (collective workplace agreements), trade unions may be party to such an agreement in a limited sense, for example a trade union is not a party in determining the provisions to be included in the agreement (sections 11(3) and 16(2)); (iii) specific provision is made to allow individual workplace agreements to override collective workplace agreements, but not the converse; (iv) protection from common law liability under tort and contract conferred concerning workplace agreements (section 77) is denied in the context of the Industrial Relations Act, 1979 (section 97B). The Committee concludes that the Workplace Agreements Act, and its interrelation with the Industrial Relations Act, does not create a system whereby collective bargaining is effectively promoted.

The Committee requests the Government to take the necessary measures to ensure the full application of the Convention at the federal and state levels, and to keep it informed of any progress.

Observation (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee takes note of the Government's report. It notes that the major development which has occurred in relation to the Convention during the reporting period concerns the amendment of the Industrial Relations Act, 1988, by the Industrial Relations Reform Act, 1993. It proposes to examine the compatibility of law and practice with the Convention after the Committee on Freedom of Association has examined a complaint (Case No. 1774) against the Government of Australia presented by the Australian Chamber of Commerce and Industry which alleges, amongst others, violations of the rights enshrined in the Convention as a result of the Industrial Relations Act, 1988, as amended.

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee notes the Government's report on the application of the Convention.

2. The Committee notes with interest that section 115 of the Industrial Relations Act 1988 permits some or all of the parties to an industrial dispute to agree on terms for the settlement of all or any of the matters in dispute, to draw up a memorandum of agreement, and to submit that memorandum to the Australian Industrial Relations Commission for certification. This provision appears to the Committee to be intended to encourage and to promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations as envisaged by Article 4 of the Convention. It asks the Government, in its next report, to provide information as to:

(i) the number of agreements which have been certified under section 115;

(ii) the number of instances where certification has been refused, and the reasons for such refusal; and

(iii) the number of agreements which have been varied, set aside or terminated in accordance with section 117, and the reasons for such variation, etc.

3. The Committee notes that section 334 of the Industrial Relations Act (which is in similar terms to section 5 of the recently repealed Conciliation and Arbitration Act, 1904) provides that an employer shall not dismiss an employee or injure an employee in her or his employment, or alter the position of an employee to her or his detriment, on a number of grounds. These include the fact (i) that the employee "is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member" of a trade union; (ii) that the employee, being a member of a registered union that is seeking better industrial conditions, is dissatisfied with his or her conditions; and (iii) that the employee, being an officer, delegate or member of a registered union has "done or proposes to do, an act or thing" for the purpose of furthering or protecting the industrial interests of the union where the act or thing is lawful and is "within the limits of an authority expressly conferred on the employee by the organisation (union) under its rules". Breach of this provision is an offence. On conviction an employer may be fined, and may be ordered to reinstate the employee with arrears of pay.

This provision appears to be in accord with the requirements of Article 1 of the Convention. However, it does not appear to provide any protection for workers who are denied employment on the grounds of trade union membership or activity. Both the wording of Article 1, and the jurisprudence of the Committee (see General Survey on Freedom of Association and Collective Bargaining, 1983, paragraphs 256 and 259), make it clear that workers should be provided with legislative protection against such discrimination.

The Committee notes that the Human Rights and Equal Opportunity Commission Act, 1986 makes specific reference to the International Covenant on Civil and Political Rights, article 22 of which purports to protect the right to form and to join trade unions. The Government is asked to indicate whether it is of the view that the 1986 Act provides a degree of protection against anti-union discrimination at, or prior to, engagement which is adequate for purposes of Article 1. If the Government is of this view, it is also asked to explain the enforcement procedures which operate under the 1986 Act, and to describe the penalties which may be imposed in respect of breaches thereof. If the Government is of the view that the 1986 Act does not provide adequate protection against this form of discrimination, it is asked to indicate the steps it proposes to take in order to remedy the situation.