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

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

Previous comment

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

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

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

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

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

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

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

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

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations made in 2015 by the Australian Council of Trade Unions (ACTU), and the Government’s reply thereto. The Committee also notes the observations made by the ACTU received on 10 October 2018. The Committee requests the Government to provide its comments to the 2018 observations.

Article 3(1) of the Convention. Functions of the system of labour inspection. The Committee notes the Government’s reply in response to the concerns raised by the ACTU in 2012, concerning the measures taken by the Fair Work Ombudsman (FWO) to address the increase in the use of “sham contracting” and precarious work.

Labour inspection in the area of wages, working conditions and annual leave. The Committee notes the observations made by the ACTU received in 2015 concerning non-compliance issues found by the FWO with regard to the payment of wages (including underpayment and the failure to maintain time and wage records). It also notes the Government’s indication, in response to the Committee’s request, that the top two types of complaints lodged with the FWO between 2013 and 2014 continued to concern issues in relation to wages, working conditions and annual leave. It further notes the Government’s reference to the measures taken by the FWO to address these non-compliance issues (education and dispute resolution as a priority, and the issuance of compliance notices, the initiation of court procedures, and the total amount recovered).

Article 3(2). Additional functions of labour inspectors. Investigation into workers and trade unions. FWO, Fair Work Building Industry Inspectorate, and Australian Building and Construction Commission (ABCC). The Committee notes that the ACTU reiterates its concerns over the extent to which the FWO expends its time, effort and resources investigating whether workers and trade unions have breached workplace laws, and most notably whether they have taken industrial action contrary to the provisions regulating this activity in the Fair Work Act 2009. The ACTU indicates that these do not concern primary functions of labour inspectors. It notes the Government’s reply indicating that it is the duty of the FWO inspectors to ensure the application of the Fair Work Act, both with regard to employers’ and workers’ obligations.

The Committee also notes that the ACTU, in its 2015 observations, refers to the powers of the Fair Work Building Industry Inspectorate to compel workers to attend and face interrogation, noting that up to 35 per cent of annual investigations related to rules governing unions’ rights of entry to workplaces or allegations of unprotected industrial action, and states that the Inspectorate’s continued emphasis on the prosecution of workers is incompatible with the Convention. The Committee notes the Government’s indication in this respect that the Inspectorate used its compulsory examination powers as a last resort. Moreover, the Government indicates that in December 2016, the ABCC replaced the Fair Work Building Industry Inspectorate and became responsible for investigating and ensuring compliance with workplace relations laws in the building and construction industry. In this regard, the Committee notes that pursuant to section 29(2) of the Building and Construction Industry (Improving Productivity) Act 2016, the Office of the Fair Work Building Industry Inspectorate is renamed the ABCC and responsible for applying that Act. Pursuant to section 16, this includes investigating suspected contraventions of the Act, which the Committee observes includes unlawful industrial action (Chapter 5 of the Act). The Committee further notes that pursuant to section 61B(1) and (2) of the Act, ABCC inspectors have the power to issue notices requiring a person to provide information, produce documents and attend before the ABCC Commissioner to answer questions. Pursuant to section 62 of the Act, a person who fails to give information or produce a document in accordance with the notice, or to attend to answer questions, or to answer questions relevant to the investigation while attending an examination is subject to a penalty of imprisonment for six months.

The Committee recalls that it expressed reservations in its 2006 General Survey, Labour inspection, paragraph 80, regarding excessive use of close supervision of the activities of trade unions and employers’ organizations to ensure that they do not exceed the limits laid down by legal provisions, their own internal regulations and their by-laws to the extent that it takes the form of acts of interference in these organizations legitimate activities. The Committee requests the Government to provide information on the proportion of the FWO’s time and resources spent investigating workers and their organizations, as well as the proportion of violations found and penalties imposed for workers and their organizations, and to provide the same information in relation to the activities of the ABCC in the building and construction industry.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes the Government’s detailed information, in reply to its previous request on the collaboration between officials of the labour inspectorate and employers and workers or their organizations. Concerning the concerns raised by the ACTU in its 2012 observations with regard to the restrictions in the Fair Work Act in relation to the right of access by unions to workplaces, which according to that trade union significantly limits the capacity of unions to perform their monitoring and compliance activities, the Committee refers the Government to its direct request on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Article 6. Status and conditions of service of labour inspectors. The Committee previously noted that section 700 of the Fair Work Act limits the appointment of Fair Work Inspectors to a period not exceeding four years, although a Fair Work Inspector is eligible for reappointment. In response to the Committee’s request, the Government indicates that Fair Work Inspectors may be reappointed if they continue to fulfil the requirements of the Fair Work Act, and that inspectors have access to an appeal mechanism against a decision not to reappoint them through an independent and external review.

The Committee once again recalls that, under the terms of Article 6 of the Convention, the inspection staff should be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. The Committee requests the Government to provide information on the measures taken to ensure that Fair Work Inspectors are guaranteed stability of employment, in conformity with Article 6. It once again requests the Government to provide information on the reasons for limiting the period of appointment of Fair Work Inspectors, and indicate the possible grounds for not reappointing a Fair Work Inspector at the end of his or her appointment. It further requests the Government to provide information on the number of inspectors that were not reappointed in the years 2015–18, and the grounds for any such decisions.

Article 12(b). Entry by day of premises. The Committee notes the Government’s information in reply to the Committee’s request concerning the number of search warrants that have been issued under sections 167–169 of the Model Work Health and Safety (WHS) Act, in the jurisdictions that have adopted legislation based on the model WHS , in places that were not workplaces.

Article 18. Adequate penalties. The Committee notes that the ACTU reiterates its previous observations concerning high levels of non-compliance of workplace instruments by employers, especially in smaller enterprises, and its claims that increased fines are necessary for underpayment or non-compliance to ensure a deterrent effect. The Committee notes the information provided in the Government’s report concerning the increased fines in the Fair Work Act, as amended in 2017. The Committee also notes that the Government provides statistical information on the number and amount of penalties imposed, indicating that in 2016–17, 55 civil penalty litigations were initiated by the FWO, and that more than 4.8 million Australian dollars in penalties were ordered by the courts during that period. The Committee requests the Government to continue to provide information on the number and amount of penalties imposed, including information on instances under the 2017 Act penalties imposed for “serious contraventions” of the Fair Work Act and for record-keeping and payslip contraventions of the Fair Work Act.

Articles 20 and 21. Publication and content of an annual report on the functioning of labour inspection services. The Committee previously noted the absence of statistical data in some jurisdictions on the number of workplaces liable to inspection and the number of workers employed therein. In this respect, the Committee recalled that annual reports on the work of the labour inspection services are an invaluable source of practical information and data not only for other public bodies and the ILO supervisory bodies, but also the employers’ or workers’ organizations who may make, on this basis, comments on ways to improve the functioning of the labour inspection system.

The Committee notes the Government’s reiterated indications that in the Commonwealth, information on the number of workplaces liable to inspection and the number of workers employed therein is not contained in the annual report of the FWO, but that relevant information is published by the Australian Bureau of Statistics. The Committee is also unable to locate information on the number of workplaces liable to inspection and the workers employed therein in the annual reports containing statistics on labour inspection activities in Victoria, Queensland, Tasmania, Australian Capital Territory, and Northern Territory. The Committee welcomes however the information in the annual report of New South Wales, and particularly the information in this respect in the annual report of the Department of Commerce for Western Australia. The Committee requests the Government to continue to provide information on measures taken to ensure that the annual reports published by the central inspection authorities contain statistics of workplaces liable to inspection and the number of workers employed therein, as well as information on the other items as required under Article 21 of the Convention.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

With reference to its observation, the Committee would also like to raise the following points.

Legislation. The Committee notes the information provided in the Government’s report, and in particular the recent harmonization of Workplace Health and Safety (WHS) laws and the development, by Safe Work Australia, of a National Compliance and Enforcement Policy, which aims to ensure that work health and safety regulators take a nationally consistent approach to compliance and enforcement. New South Wales. The Committee notes that the Workers Compensation Legislation Amendment Act 2012, which amends the Workplace Injury Management and Workers Compensation Act 1998, allows for inspectors to issue improvement notices to employers where they have contravened the workplace injury management provisions of the legislation (such as, for example, the employer obligation to provide suitable work to injured workers). Victoria. The Committee notes the adoption of the Child Employment Amendment Act 2010, which amends the Child Employment Act 2003, and improves the child employment permit process and strengthens compliance powers of Child Employment Officers. Western Australia. The Committee notes the adoption of the Industrial Legislation Amendment Act 2011, which amends the provisions of the Industrial Relations Act 1979 relating to Industrial Inspectors, and more specifically requires that identity cards must be produced by industrial inspectors upon request when exercising their powers, unless impracticable to do so and then at the first reasonable opportunity. South Australia. The South Australian Government is currently in the process of developing a new draft Child Employment Bill that would expand the role of the inspectorate by providing for more effective enforcement of industrial and health and safety protections for children. Tasmania. The Committee notes that on 1 January 2010 the industrial relations referral of powers to the Commonwealth came into operation, which had the effect of the Fair Work Ombudsman (FWO) assuming, under the Fair Work Act 2009, many of the functions previously undertaken under the Tasmanian Industrial Relations Act 1984, but does not include long service leave issues and applies only to private sector employees. In addition, the Committee welcomes the information provided by the Government that the Labour Inspection (Agriculture) Convention, 1969 (No. 129), will be tabled in the Australian Parliament by the end of 2012 with a view to ratification by mid-2013. The Committee asks the Government to continue to provide information on any relevant legislative developments in the country.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Government indicates that there has been no change since its previous report with respect to the status and conditions of service for Fair Work Inspectors. The Committee notes that all Fair Work Inspectors employed by the Fair Work Ombudsman are presently employed under the Office of the Fair Work Ombudsman Enterprise Agreement 2011–2014. In addition, the Committee recalls that section 700 of the Fair Work Act 2009 limits the appointment of Fair Work Inspectors to a period that must not exceed four years, although a Fair Work Inspector is eligible for reappointment. The Committee asks the Government to provide further information on the reasons for limiting the period of appointment of Fair Work Inspectors; to indicate the grounds for not reappointing a Fair Work Inspector at the end of their instrument of appointment; and to specify whether inspectors have access to any impartial or independent appeal mechanism to contest any decision not to reappoint. In addition, the Committee asks the Government to provide information on the application of section 700 of the Fair Work Act in practice.

Article 12(b). Enter by day any premises. The Committee notes the response provided by the Government, and in particular notes that section 163 of the model WHS Act, adopted by the Commonwealth, New South Wales, Queensland, the Northern Territory and the Australian Capital Territory and Tasmania, allows an inspector to enter, at any time, a place that is, or that the inspector reasonably suspects is, a workplace. Section 163(4) allows an inspector to enter any place if the entry is authorized by a search warrant and sections 167–169 specify the requirements for obtaining such a search warrant. The Government indicates that no applications for a search warrant have been made since the introduction of this new legislation in New South Wales. The Committee asks the Government to provide further information on the number of search warrants that have been issued under sections 167–169 of the WHS Act, in the jurisdictions that have adopted the model legislation; and, where such search warrants have been issued, to indicate the purpose for which they were issued, and the time frame involved in applying and executing the warrant by the inspector.

Articles 20 and 21. Publication and content of an annual report on the functioning of labour inspection services. Western Australia. The Committee notes that the Department of Commerce Annual Report 2010–2011 deals with the information required under Article 21 of the Convention, including the total number of businesses liable to inspection by workplace inspectors and the estimated number of workers employed by these businesses. Commonwealth. The Committee notes that the FWO does not generally include statistics in its annual report with respect to the number of workplaces liable to inspection and the corresponding number of workers employed within the national workplace relations system, as required by Article 21(c). The Government indicates however, that this information is collated and reported on by the Australian Bureau of Statistics (ABS). The most recent report published by the ABS indicates that, as at May 2010, 87 per cent of Australian employees fell within the national workplace relations system. Victoria. The Committee notes that the annual report by WorkSafe does not specifically report on the number of workplaces liable to inspection in Victoria or the number of workers employed, but that WorkSafe will consider whether these specific statistics could be included in future annual reports. South Australia. The Committee welcomes the ongoing efforts taken to improve information provided in labour inspection annual reports, and in particular the addition in the 2010–11 annual report of data relating to workplaces liable to inspection and the number of workers therein. The Committee recalls that annual reports on the work of the labour inspection services are an invaluable source of practical information and data not only for other public bodies and the ILO supervisory bodies, but also the employers’ or workers’ organizations who may make, on this basis, comments on ways to improve the functioning of the labour inspection system. In this regard, the Committee asks the Government to keep the Office informed of measures taken to ensure that the annual report published by the central inspection authority deals with the statistics of workplaces liable to inspection and the number of workers employed therein.

Part IV of the report form. Application in practice. The Committee notes the information provided by the Government in relation to assisted voluntary resolution (AVR), as well as statistics concerning the compliance and education activities of the FWO during the 2010–11 and 2011–12 financial years. The Government indicates that the top two types of complaints lodged with the FWO between 2010–12 concerned matters relating to wages and conditions and annual leave. Wages and conditions were also the major type of proceedings for which penalties were imposed by the courts over this period. The Committee also notes that the FWO continues to run proactive and targeted education and audit campaigns in addition to community engagement programmes. The Committee asks the Government to continue to provide information on the practical application of the Convention in the country, and in particular to indicate the measures taken by the FWO to address the compliance issues concerning wages and conditions and annual leave.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the Government in its report received on 7 September 2012 by the Office in reply to the communications of the Australian Council of Trade Unions (ACTU), dated 31 August and 25 October 2010. The Committee further notes the latest communication by the ACTU, dated 31 August 2012, concerning the application of the Convention in law and in practice, transmitted to the Government on 14 September 2012.

Article 3(1) and (2) of the Convention. Functions of the system of labour inspection. Contracting and precarious work. The Committee notes the concerns raised by the ACTU regarding the extent of “sham contracting”, and the growth in precarious forms of work, in Australian workplaces. According to the ACTU, just under 40 per cent of all workers in Australia are in “non-standard” work arrangements, including casual, short-term, contracting and labour hire arrangements. The ACTU refers to a recent independent inquiry commissioned by them to examine the extent of insecure work and its impact. The inquiry recommended that the Federal Government increase the resources allocated to the Fair Work Ombudsman (FWO) to improve enforcement and compliance, with a focus on developing new approaches to protect insecure workers.

Investigation into workers and trade unions. The ACTU raises further concerns over the extent to which the FWO expends its time, effort and resources investigating whether workers and trade unions have breached workplace laws, and most notably whether they have taken industrial action contrary to the restrictive provisions regulating this activity in the Fair Work Act 2009 (the FW Act). The ACTU indicates that this activity risks distracting the FWO from its core and critical task of assisting vulnerable workers in enforcing their rights.

Building and construction industry. The Committee takes note of the response provided by the Government with regard to its previous comment and the 2010 communications by the ACTU. The Committee notes in particular that the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 has been adopted, and that it abolishes the Office of the Australian Building and Construction Commissioner (ABCC), and replaces it with the Fair Work Building Industry Inspectorate, known as Fair Work Building and Construction (FWBC). The FWBC and the Fair Work (Building Industry) Act 2012 commenced operations on 1 June 2012. The Government indicates that the long-standing practice of referring wages and entitlements claims, including the underpayment of employees, to the FWO has been terminated, with the aim of turning the ABCC, and now the FWBC, into a full service regulator. The FWBC retains, however, the power to compulsorily obtain information and/or documents. The Government indicates that the retention of these powers is balanced by the introduction of significant new safeguards, including a sunset provision three years after they come into effect. The Committee notes that the ACTU, in its 2012 communication, again raises concerns in relation to these coercive powers for use in the investigation of industrial issues. The ACTU alleges that early indications show that the investigation and prosecution of workers and their organizations remain a key aspect of the FWBC’s work. The ACTU believes this continued focus on enforcing laws against workers and trade unions is inconsistent with the primary duties of inspectors as specified in Article 3 of the Convention.

The Committee invites the Government to respond to the concerns raised by the ACTU, and in particular concerning measures taken to address the increase in the use of “sham contracting” and precarious work, and regarding the use of the FWO’s time and resources to investigate workers and their organizations, including in the building and construction industry.

Article 4. Labour inspection under the supervision and control of a central authority. In response to the concerns raised by the ACTU in 2010, the Government indicates that it considers an independent body to oversee labour inspection in the building and construction industry would give best effect to the Wilcox report’s recommendation that the FWBC have “operational autonomy”, and that it is both appropriate and necessary to retain industry-specific regulation within a separate body while genuine cultural reform continues in the building and construction industry. The Committee notes that the ACTU’s most recent communication again raises concerns in relation to the creation of this second federal labour inspectorate, in particular given that the model adopted by the Government was specifically rejected by the Wilcox inquiry. The ACTU alleges that separate inspectorates inevitably lead to differing standards applying to workers within different sectors. The Committee invites the Government to respond to the concerns raised by the ACTU in relation to the risks associated with having separate inspectorates.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee takes note of the response by the Government to its previous comment and the communication by the ACTU dated 31 August 2010, concerning collaboration between the FWO and employers’ and workers’ organizations. The Government indicates that an example of such collaboration was the AU$2.5 million Shared Industry Assistance Project (SIAP), designed to help specific industries transition to Modern Awards. In partnership with 15 employer and employee organizations, the FWO developed resources, including interpretive guides and tables, industry-specific helplines, fact sheets and handbooks. The Committee notes that the ACTU has again remarked on how the operation of the restrictions in the FW Act in relation to the right of access by unions to workplaces for compliance purposes is significantly limiting the capacity of unions to perform their monitoring and compliance activities. While the ACTU welcomes the introduction of new laws in 2012, which amend the current right of entry provisions to address sweatshop conditions for outworkers in the textile, clothing and footwear industry, it calls on the Government to amend the FW Act so as to permit agreements to improve on the statutory right of entry, and to ensure trade unions can enter premises where their members have been employed. The Committee invites the Government to respond to the concerns raised by the ACTU in relation to right of access by unions to workplaces for compliance purposes, and to continue to provide information on the collaboration between officials of the labour inspectorate and employers and workers or their organizations.

Article 18. Adequate penalties. The Committee notes the most recent communication by the ACTU, which indicates high levels of non-compliance of workplace instruments by employers, especially in smaller enterprises. In this regard, the ACTU calls on the Government to consider increasing fines for underpayment or non-compliance so as to increase deterrence. The Committee asks the Government to respond to the comments by the ACTU concerning the adequacy of penalties for non-compliance of workplace instruments by employers.

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

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

With reference to its observation, the Committee would like to draw the Government’s attention to the following additional points.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Committee notes from the Government’s report that the Public Service Act 1999 sets out the conditions of service for all Australian Public Service (APS) employees, including engagement and termination provisions; and establishes the APS values which require APS employees to be apolitical, performing their functions in an impartial and professional manner. According to the Government, a change of government may not have any effect on the conditions of service or employment of APS employees, unless an administrative rearrangement occurs in line with the provisions of the Public Service Act 1999. The Government adds that the majority of fair work inspectors are employed under the Office of the Fair Work Ombudsman Enterprise Agreement 2010–11 (EA) with a very small number of inspectors covered by individual workplace agreements. The EA and other agreements do not assure stability of employment; however, they include clear provisions outlining conditions of service, redundancy entitlements, termination procedures, and dispute resolution. Finally, the Fair Work Ombudsman and the fair work inspectors are expected under the Fair Work Act (FWA) to perform their functions in an impartial manner and on the basis of procedural fairness. The inspectors are consistently reminded of their duties as public servants and as inspectors to uphold the Australian Public Service (APS) Code of Conduct.

The Committee recalls that, under the terms of Article 6 of the Convention, the inspection staff should be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. The Committee notes that stability of employment is not assured to the Fair Work Ombudsman and inspectors by sections 687 and 700 of the FWA as well as section 29 of the Public Service Act 1999 and the EA and individual workplace agreements on the basis of which most inspectors are employed. The Committee requests the Government to take measures so that the Fair Work Ombudsman and the fair work inspectors are guaranteed stability of employment according to Article 6 and to provide information on progress made in this regard.

In relation to the states and territories, the Government indicates that inspection staff are assured stability of employment in Victoria and Tasmania. While in Queensland inspectors have tenure, certain mining inspectors and some petroleum and gas inspectors are employed on a contract basis under section 122 of the Public Service Act 208 due to limitations on public service pay scales and the need to offer competitive salary packages to attract suitable inspectors. The Committee would be grateful if the Government would provide further information on the numbers of such inspectors and their functions, indicating the grounds for non-renewal.

Article 12. Right of labour inspectors to enter freely workplaces liable to inspection. New South Wales. With reference to its previous request for information, the Committee takes due note of the clarifications provided by the Government to the effect that under sections 51–58 of the Occupational Health and Safety (OHS) Act 2000, WorkCover inspectors in New South Wales have the power to enter and inspect workplaces at any time of the day or night when work is carried out or is usually carried out at the premises. An inspector may also apply for a search warrant if the inspector has reasonable grounds for believing that the OHS Act or the regulations have been or, are about to be, contravened in or about any premises that is a place of work. The Committee recalls that, under Article 12(1)(b) of the Convention, labour inspectors provided with proper credentials should be empowered to enter by day any premises which they may have reasonable cause to believe to be liable to inspection. The Committee requests the Government to specify the conditions under which labour inspectors are empowered to enter premises which function as workplaces (e.g. whether a search warrant is required also for inspections by day and the procedure/conditions for obtaining one).

Articles 20 and 21. Annual labour inspection report.  With reference to its previous comments on the need to include additional information in the annual inspection reports of Western Australia, the Committee notes from the Government’s report that the annual report of the Department of Commerce now provides information that is consistent with the provisions of Article 21. However, it has not been possible to access the report in question on the Government website. The Committee recalls that under Article 20, the annual general report on the work of the inspection services should be published, i.e. that it remains accessible. The Committee requests the Government to ensure that the annual labour inspection report is accessible and, if that is not the case, to furnish a printed copy of the excerpts relative to the application of Article 21.

With reference to its previous comments on the need to include statistics in annual reports on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)) as well as on cases of occupational disease (Article 21(g)), the Committee notes from the Government’s report that, as far as the Commonwealth is concerned, the FWO relies upon inter-institutional cooperation for the gathering of relevant data to assist in the design and implementation of targeted campaigns, since relevant data are available in a number of government services. The FWO’s claims management system also contains information on workplaces that had had complaints filed against them, have been audited or have called the FWO for information.

At the level of the state jurisdiction, the Committee notes that the statistics in question are not reflected in the annual report but could be available through other sources, including the Australian Bureau of Statistics. Victoria and South Australia indicate that further consideration will be given to the issue. Western Australia reports that the annual report now provides information consistent with the provisions of Article 21.

The Committee notes that as the vast majority of Australian workplaces now fall within the jurisdiction of the FWO, it is possible to comply with the requirement of the Convention to publish an annual report containing information on the items listed in Article 21. This would enable the labour inspection authority to make a comprehensive assessment of the magnitude of the task entrusted upon the FWO in terms of the number of enterprises and workers’ activities carried out, results achieved, and possible improvements, notably in relation to the human and material resources placed at the disposal of the labour inspection system.

The Committee therefore once again requests the Government to take measures to ensure the inclusion of full data in annual labour inspection reports, and to keep the ILO informed of any progress in this regard.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2010 as well as the Government’s response thereto. It finally notes the observations by the ACTU dated 25 October 2010 and requests the Government to communicate any comment it deems relevant in this regard.

Articles 3(1), 16, 17 and 18 of the Convention. Impact of legislative developments on the functioning of the system of labour inspection. 1. In its previous comments, the Committee had noted that following the replacement of the Workplace Relations Act (WR Act) by the Fair Work Act 2009 (FW Act), the Workplace Ombudsman, i.e., the inspection body which had been previously criticized by the ACTU for using aggressive methods of investigation in order to determine whether trade unions and workers had been in breach of the workplace legislation, had ceased operations on 30 June 2009, all of its functions having been assumed by the Office of the Fair Work Ombudsman (FWO).

The Committee notes with interest from the Government’s report that the FWO is committed to encouraging and enforcing compliance with the provisions of the FW Act and other specified legislation through procedural fairness and that the FWO’s authority has expanded to include oversight of almost all workplaces in New South Wales, Queensland, South Australia and Tasmania as a consequence of the referral to the Commonwealth of the industrial relations power of these states on 1 January 2010. In this framework, contracts for services were signed with the New South Wales, Queensland and South Australian industrial relations agencies, as a result of which, 203 inspectors from these provinces have been appointed as fair work inspectors and will carry out investigations under the direction of the FWO. In addition, the FWO has appointed 12 inspectors from the Western Australian labour inspection agency to investigate federal matters that have some relevance to the Western Australian state system. Fair work inspector numbers have therefore increased by approximately 74 per cent.

The Committee also notes that the FWO implements a compliance model that combines complaints, investigations, targeted education and compliance campaigns (undertaken upon the basis of evidence of systemic non-compliance, or in the presence of a higher percentage of vulnerable workers within a given industry), and prosecutions deemed to be in the public interest. The Committee notes in particular with interest from the annual report of the FWO the increased use of civil litigation as a form of insistence on compliance and the significant penalties awarded by the courts which confirms according to the FWO that “the light-handed approach to industrial regulation is a thing of the past”. From 1 July 2009 to 30 June 2010, the FWO had: finalized over 21,070 investigations; recovered AU$21,312,749 on behalf of employees; and had 66 proceedings commenced and enforceable undertakings received for breaches of the FW Act.

Furthermore, the Government indicates that extensive education efforts are continually being applied to allow employers and employees to understand their rights and obligations through a range of guides, tools and educational material, the Fair Work Infoline, the Transition Assist Service (aimed at unions and industry groups), the National Employer Branch (to assist large national enterprises) and media campaigns.

The Committee requests the Government to continue to provide information on the activities of the FWO, and to indicate in particular the matters in relation to which most violations were found, prosecutions initiated and penalties imposed.

Furthermore, the Committee notes from the Government’s report that the FWO has tried a new compliance technique, termed assisted voluntary resolution (AVR), which is typically applied in the first 30 days of a complaint, and involves fair work inspectors facilitating communication between complainants and the other party to reach mutually acceptable outcomes; the FWO will roll out this method more widely during 2010–11. The Committee would be grateful if the Government would provide detailed information on the scope of activities carried out by the FWO and the range of subjects addressed in the framework of the AVR and also indicate the percentage of labour inspection activities dedicated to AVR and their outcomes.

Article 5(b). Collaboration between officials of the labour inspectorate and employers and workers or their organizations. In its previous comments, the Committee noted that the FW Act maintained certain restrictions initially imposed by the WR Act on the wide powers traditionally conferred upon trade unions to ensure enforcement of awards and agreements and transferred most of this power to a public authority, namely, the FWO. The Committee notes that according to the latest comments by the ACTU, despite some improvements in relation to the former statutory regime (the WR Act), the FW Act has retained much of the WR Act architecture on the right of entry, i.e., a permit system, the prohibition of obtaining, through collective bargaining, entry rights that are superior to those in the statutory regime and the possibility for a party (e.g., employer) to apply for a “representation order” which may have the effect of preventing a trade union from representing certain classes of employees (including with regard to the access to workplaces to investigate suspected breaches of workplace laws). According to the ACTU, it is very important for the application of the new statutory provisions to be closely monitored so as to ensure that these provisions do not unduly limit trade union access to workplaces. The ACTU indicates certain improvements in relation to regular consultations taking place with the social partners on issues such as targeted education and compliance campaigns and best practice guides available on the FWO website.

According to the Government, collaboration and consultation with employer and employee organizations is an integral part of the FWO’s activities in respect of development and implementation of framework policies as well as in the conduct of complaints, investigations and targeted education and compliance campaigns. The Government refers to the example of the development of the FWO’s education and advice material such as best practice guides, and guidance notes, including the interpretation of transitional arrangements created by the national workplace tribunal, Fair Work Australia. However, the Government acknowledges that the coverage of the system of the FWO has considerably expanded so that inspections of all businesses within its jurisdiction is not possible.

In this respect, the Committee is of the view that the establishment of a mechanism of collaboration between the FWO, and the organizations of workers could help maximize the effectiveness of the labour inspection system, notably through information exchange, the submission of complaints etc. Moreover, tripartite bodies and cooperation agreements at various levels could play an important role to this end (see General Survey of 2006 on labour inspection, paragraphs 163–171).

The Committee would be grateful if the Government would furnish information in its next report on arrangements made or envisaged in order to promote collaboration between the Fair Work Ombudsman and employers’ and workers’ organizations. The Committee would also appreciate statistical data on the exercise by trade unions of the right of entry to workplaces for compliance purposes.

Article 3(1) and (2). Building and construction industry. The Committee recalls that in its previous comments it took note of the serious concerns expressed by the ACTU on the conduct of the Australian Building and Construction Commission (ABCC), established on the basis of the Building and Construction Industry Improvement (BCII) Act, 2005, mainly in relation to an unbalanced approach of the ABCC in favour of employers and wide-ranging coercive powers bestowed upon it by the BCII Act. In particular, the ACTU had criticized the fact that the ABCC can carry out interrogations in private and the interviewees are generally not allowed to disclose to anyone else what happened during the interrogation on penalty of six months’ imprisonment.

The Committee takes note of the comments by the ACTU dated 31 August 2010 according to which despite electoral commitments to abolish the ABCC and replace it by a specialist division of the general labour inspectorate, in June 2009 the Government introduced legislation to Parliament to amend the BCII Act by replacing the ABCC with a separate and autonomous statutory agency working in parallel with, but independently of, the FWO. The Bill proposes to retain the power of coercive interview for this specialist statutory agency, but in an amended form with some procedural safeguards. Although the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009 was introduced into the Parliament in June 2009, it has not passed through the Senate. Consequently, the BCII Act remains unamended and the ABCC continues to operate as it has done since September 2005. The ACTU believes that the retention of such a separate labour inspectorate runs counter to the principle of a single central system of labour inspection which is embodied in Article 1 of the Convention. It notes in this regard that Australia is moving rapidly towards a single national system of labour law as all but one state have referred their industrial powers to the Commonwealth Government. The ACTU also notes that the ABCC does not operate in such a way as to enforce the legal provisions that are designed to protect workers in their employment. Rather, workers themselves are the subject of ABCC investigation, interrogation and prosecution for alleged breaches of industrial relations law (which includes wages and hours of work) and the BCII Act while only 4.5 per cent of the ABCC’s investigations in 2008–09 were directed at employers. The ACTU provides detailed data to support this view:

–           the ABCC has adopted an “understanding” with the former Workplace Ombudsman (now the FWO) that the ABCC will not deal with allegations of non-payment of wages and entitlements in accordance with applicable awards and agreements, despite the fact that the construction industry has been recently ranked as the fourth highest for employer non-compliance with legally binding awards and agreements that set employee rates of pay and conditions of employment;

–           in its most recent annual report, the ABCC disclosed that 63 per cent of all its investigations were directed at trade unions and a further 8.5 per cent concerned the conduct of workers in 2008–09. In 2006–07, the corresponding figures were 73 and 11 per cent respectively. Unions or employees were the subject of on average 76.5 per cent or more than three-quarters of all ABCC investigations between 1 July 2006 and 30 June 2009;

–           the ABCC’s report on the exercise of compliance powers for the period 1 October 2005 to 31 March 2010, shows that out of 197 “examinations” conducted in the period, 135 were directed at employees and ten at union officials; only 50 examinees were management/employer representatives. One worker is presently on trial for allegedly refusing to attend a coercive interview facing a possible penalty of six months’ imprisonment. An earlier criminal prosecution against a union official had been withdrawn in November 2008;

–           as of 8 July 2010 there had been 37 ABCC prosecutions before the courts. Of these, 36 identified a trade union, trade union official or employee as respondents to the proceedings. Only one of the 37 matters has been taken by the ABCC against an employer. The number of ABCC prosecutions against unions and workers has dramatically increased in the last 18 months.

The ACTU therefore considers that the ABCC disregards the functions which should be the primary responsibility of any labour inspectorate under the Convention and exercises unwarranted powers which should not be bestowed on a body dealing with contraventions of the civil law and potentially minor breaches of industrial instruments. According to the ACTU, this situation also undermines a key element of the Convention, namely, the impartiality of inspectors in their relations with employers and workers. Finally, the ACTU observes that the ABCC remains extensively resourced, with a total workforce of 156 people, and a recent addition of AU$33,342,000 to its annual funding.

The Government replies that the Building and Construction Industry Improvement (Transition to Fair Work) Bill 2009 has been based on the recommendations of a former Federal Court Judge and Chief Justice of the Industrial Relations Court of Australia (Transition to Fair Work Australia for the building and construction industry, March 2009). The Bill gave effect to the Government’s commitment to abolish the ABCC and replace it with a new independent regulator, the Fair Work Building Industry Inspectorate (the Inspectorate) which was designed to ensure compliance with relevant workplace relations laws by actively pursuing the unlawful or inappropriate conduct of all building industry participants including, importantly, the underpayment of employee entitlements, such as wages.

However, the coercive interrogation powers currently given to the ABCC were retained since according to the abovementioned report: “there is still such a level of industrial unlawfulness in the building and construction industry, especially in Victoria and Western Australia, that it would be inadvisable not to empower the [Inspectorate] to undertake compulsory examination. The reality is that, without such a power, some types of contravention would be almost impossible to prove” (op. cit., paragraph 1.23). However, the Bill also included a number of safeguards to ensure that these coercive interrogation powers vis-à-vis workers and their organizations are used in a fair and balanced manner. The Bill passed the lower house on 13 August 2009 and was introduced into the Senate on 17 August 2009 but lapsed when, on 19 July 2010, Parliament was prorogued for General Election for the House of Representatives and half the Senate. The re‑elected Australian Government is committed to reintroducing this legislation as a matter of priority. A ministerial direction which had been issued on 17 June 2009 to circumvent the application of coercive powers and the conduct of compulsory interviews by the ABCC, was finally overturned in full by the Senate on 25 June 2009.

The Committee notes with concern that the enforcement of legal provisions on the protection of workers constitutes a very small percentage of the ABCC’s activities; this body has according to the ACTU declared that it will refrain from its primary functions under the Convention, i.e., investigating allegations of
non-payment of wages and entitlements, directing instead the main bulk of its activities at the investigation, examination and prosecution of workers and trade union officials, notably for industrial action. The Committee cannot emphasize enough that under Article 3 of the Convention, the prosecution of workers does not constitute part of the primary duties of inspectors and may not only seriously interfere with the effective discharge of their primary duties – which should be centred on the protection of workers under Article 3(1) – but also prejudice the authority and impartiality necessary in the relations between inspectors and employers and workers as provided for in Article 3(2). With regard to the “unlawfulness” which justifies according to the report on “Transition to Fair Work Australia for the building and construction industry” the exercise of such functions by the labour inspection system, the Committee notes that it essentially relates to industrial action (strikes) (op. cit., paragraph 1.17) and refers in this regard to its comments under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

Noting with concern that the manner in which the ABCC carries out its activities seems to have led to the exclusion of workers in the building and construction industry from the protection that the labour inspection system ought to secure for these workers under the applicable laws, the Committee urges the Government to ensure that the priorities of the ABCC (or the Fair Work Building Industry Inspectorate) are effectively reoriented so that labour inspectors in the building and construction industry may focus on their main functions in full conformity with Article 3(1) and (2) of the Convention. The Committee would be grateful if the Government would provide detailed information in this regard.

Noting the steps taken so far to introduce safeguards in the way in which the ABCC exercises its activities the Committee requests the Government to indicate the progress made in reintroducing and promoting the adoption of the Building and Construction Industry Improvement (Transition to Fair Work) Bill as a matter of priority.

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

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

With reference to its observation, the Committee would like to draw the Government’s attention to the following points.

Article 6 of the Convention. Status and conditions of service of labour inspectors. The Committee notes that in accordance with section 687 of the Fair Work Act (FWA), the Fair Work Ombudsman is to be appointed by the Governor-General by written instrument after the Minister has been satisfied that the person has suitable qualifications or experience and is of good character. The Ombudsman holds office for a period specified in the instrument of appointment which must not exceed five years. The Ombudsman is eligible for reappointment. In accordance with section 700, fair work inspectors are appointed by the Fair Work Ombudsman for a period which may not exceed four years. They are also eligible for reappointment.

The Committee recalls that, under the terms of Article 6 of the Convention, the inspection staff shall be composed of public officials whose status and conditions of service are such that they are assured of stability of employment and are independent of changes of government and of improper external influences. The Committee notes that stability of employment is not assured by sections 687 and 700 of the FWA, since the appointments of the Ombudsman and the inspectors are limited to renewable terms of five and four years respectively. The Committee requests the Government to indicate the ways in which the Fair Work Ombudsman and the fair work inspectors are ensured stability of employment and independence from improper external influences as provided for in Article 6 of the Convention. For instance, the Committee would like to request information on the reasons for the non-renewal of appointments.

Article 12, paragraph 1(a). Right of labour inspectors to enter freely workplaces liable to inspection. Queensland. With reference to its previous request for information, the Committee notes from the Government’s report that workplace health and safety inspectors have the right to enter workplaces at any time.

New South Wales. With reference to its previous request for information, the Committee notes that under sections 51–58 of the Occupational Health and Safety Act 2000, WorkCover inspectors in New South Wales have the power to enter and inspect workplaces generally at a reasonable time when work is usually carried out on the premises. However, under certain circumstances they can attend a workplace without notice and gain entry by “use of force” in emergency situations. Finally, they can apply for a search warrant if there are reasonable grounds for believing that a provision of the legislation has been or is being or is about to be contravened in or about any work premises.

The Committee recalls that, under the terms of Article 12(1)(a), labour inspectors with proper credentials shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. It also notes that the protection of workers and the technical requirements of inspection should be the primordial criteria for determining the appropriate timing of visits, for example to check for violations such as abusive night work conditions in a workplace officially operating during the daytime, or to carry out technical inspections requiring machinery or production processes to be stopped (see General Survey of 2006 on labour inspection, paragraph 270). The Committee requests the Government to indicate in its next report any measures taken or envisaged to enable labour inspectors to carry out inspections at any hour of the day or night, where this is warranted.

Articles 20 and 21. Annual labour inspection report. 1. With reference to the Committee’s previous comments on the need to include additional information in the annual inspection reports of Western Australia, the Committee notes from the Government’s report that consultations have taken place with the staff responsible for compiling the relevant annual reports and efforts are underway to include additional information in the 2007–08 annual report and to implement systems that will collect the remaining data required for future reports. The Department of Consumer and Employment Protection will endeavour to include additional information as set out in Article 21 of the Convention in future annual reports. The Committee requests the Government to indicate in its next report the progress made in this regard.

2. With reference to its previous comments on the need to include statistics in annual reports on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)) and on cases of occupational disease (Article 21(g)), the Committee notes from the Government’s report that, as far as the Commonwealth is concerned, it will inform the Committee of any developments as they occur. The Committee also notes that most other jurisdictions have not commented on this question. With regard to the Northern Territory, the Committee notes that, according to the Government, the reports cover all the information required by Article 21, except for items (b) on the staff of the labour inspection service and (c) on statistics of workplaces liable to inspection and the number of workers employed therein. However, information on all of the above statistics is provided to the Office of the Australian Safety and Compensation Council, Department of Employment and Workplace Relations. The information provided by all the Australian jurisdictions is compiled in the Comparative Performance Monitoring (CPM) report of the Workplace Relations Ministers’ Council, which provides trend analysis on occupational health and safety and workers’ compensation schemes in Australia and New Zealand.

In its previous comments, the Committee took due note of the availability on the web sites indicated by the Government of abundant information and numerous legislative texts and activity reports by the bodies engaged in labour inspection activities. The Committee once again observes that statistics on the number of workplaces liable to inspection and the number of workers employed therein (Article 21(c)), as well as on cases of occupational disease (Article 21(g)), are not included in the annual reports available. It recalls the interest of having available all the data required by Article 21 for inclusion in the annual inspection report so that it reflects as faithfully as possible the effectiveness of the labour inspectorate throughout the country and enables the social partners in particular, as well as any interested party, to express their views and to make proposals for its progressive improvement. The Committee therefore once again requests the Government to indicate in its next report any measure taken or envisaged, and any progress made in this regard.

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

The Committee notes the Government’s report and the information provided in reply to its previous comments. It also notes the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 1 September 2008, as well as the Government’s response to these comments. The Committee finally notes the adoption of the Fair Work Act 2009 (No. 28, 2009) (FWA) which establishes Fair Work Australia, a new statutory body with a wide range of functions including an inspectorate – the Fair Work Ombudsman and its Office – which has responsibility for monitoring and enforcing compliance with industrial laws.

Impact of legislative development on the functioning of labour inspection. In a previous direct request the Committee had noted comments communicated by the ACTU with regard to a change in orientation of the labour inspectorate which, instead of focusing on its traditional task of recovering wages owed to workers, had begun to use aggressive methods of investigation in order to determine whether trade unions and workers were in breach of the legislation which applied prior to the adoption of the FWA (i.e. the Workplace Relations Act 1996 (WR Act)) and which had itself been found by the Committee to be contrary to other international labour standards.

The Committee takes note of the Government’s reply which was communicated prior to the adoption of the FWA. The Government provides information on the activities of the Workplace Ombudsman who preceded the recently established Fair Work Ombudsman. The Workplace Ombudsman had commenced on 1 July 2007 on the basis of Part 5A of the WR Act. According to the Government, it had established itself as a strong, effective and independent regulator having finalized over 45,000 investigations, having recovered in excess of 52 million Australian dollars (AUD) on behalf of employees, and having commenced 123 court proceedings for breaches of the WR Act. The courts imposed over AUD2 million in penalties against employers as a result of the Workplace Ombudsman’s work. Furthermore, the Workplace Ombudsman performed targeted compliance and education campaigns, as a result of which it audited more than 9,500 businesses and recovered more than AUD14 million on behalf of over 15,000 employees.

The Committee also notes that in the meantime, the WR Act was replaced by the FWA and the Workplace Ombudsman ceased operations on 30 June 2009, all of its functions having been assumed by the Office of the Fair Work Ombudsman. It also takes note of the statement of the Chairperson of the ACTU to the 98th Session of the International Labour Conference (Geneva, June 2009) according to which “[i]n July [2009], the Fair Work Act will begin operation, re-establishing a decent safety net for all working Australians, restoring unfair dismissal rights, placing collective bargaining at the centre of industrial relations, and restoring the powers of the independent umpire with Fair Work Australia”. (Provisional Record No. 9, page 44)

The Committee takes note of this information with interest. It requests the Government to provide in its next report information on the activities of the Fair Work Ombudsman, with statistical information in particular on the number of violations found and prosecutions initiated.

The Committee also notes that in its comments, the ACTU raised the issue of provisions in the WR Act which restricted the right to access of trade unions to workplaces, effectively preventing them from performing inspection functions. The ACTU indicated that under the Australian industrial relations system, trade unions had historically played a key role in overseeing the enforcement of awards and agreements. In recent years, however, the WR Act, as amended by the Work Choices Act, had severely restricted the capacity of union officials to enter the workplace to investigate a suspected breach of industrial obligations and to hold discussions with employees. The ACTU strongly regretted that the new Government had indicated its intention to retain the existing restrictions.

The Committee notes that the WR Act has now been replaced by the FWA, Part 3–4 and in particular sections 481–483E which enable union representatives to enter premises and investigate suspected contraventions of the FWA or a term of a fair work instrument (i.e., a “modern award”, “workplace determination” or order issued by Fair Work Australia, or an enterprise agreement (section 12)) that relates to or affects a member of their organization. However, the exercise of this right is subject to certain conditions concerning the right of entry aimed at maintaining a balance between the right of organizations to investigate suspected contraventions and the right of occupiers of premises and employers to go about their business without undue inconvenience (as stipulated in section 480 of the FWA). Moreover, trade union representatives are not entitled to exercise general inspection functions under the FWA. According to section 152(b) of the FWA, a “modern award” must not include terms that require or authorize an official of an organization to enter premises to inspect any work, process or object. Moreover, the conditions under which trade union representatives have right of entry to carry out inspections of suspected contraventions, cannot be modified by enterprise agreement, as provided in section 194 of the FWA.

The Committee observes that these provisions place certain restrictions on the wide powers traditionally conferred upon trade unions to ensure enforcement of awards and agreements. The power to enforce legal entitlements has now been transferred to a public authority, namely, the Fair Work Ombudsman while trade unions maintain the power to investigate suspected contraventions which relate to or affect one of their members.

The Committee recalls that, according to Article 4 of the Convention, so far as is compatible with the administrative practice of the Member, labour inspection shall be placed under the supervision and control of a central authority. At the same time, the Committee notes that according to Article 5(b), the competent authority shall make appropriate arrangements to promote collaboration between officials of the labour inspectorate and employers and workers or their organizations. The Committee notes that in its report, which antedated the adoption of the FWA, the Government referred to the measures taken to ensure that the Workplace Ombudsman (now replaced by the Fair Work Ombudsman) was as accessible as possible to the Australian community: the agency investigated all complaints and allegations of breaches of workplace relations law from any source, including employer and employee industrial associations, individuals, Commonwealth and state territory agencies, state and federal members of Parliament, and the media. Members of the public could access the Workplace Ombudsman and information regarding compliance rights and obligations through the post, the telephone, in person or online. In addition to this, key stakeholders including union and employer associations were contacted prior to the commencement of compliance and education campaigns and provided with the opportunity to both comment on and participate in the educational phase of the campaigns. Furthermore, the Workplace Ombudsman had a good general working relationship with peak union and employer associations such as the ACTU and the Australian Chamber of Commerce and Industry (ACCI).

While taking due note of this information, the Committee emphasizes that possible arrangements for collaboration with the social partners normally go beyond the right to communicate complaints to the Ombudsman and can take various forms, ranging from tripartite bodies, to cooperation agreements at various levels (national, regional, sectoral and enterprise) (see General Survey of 2006 on labour inspection, paragraphs 163–71). The Committee also recalls that Recommendation No. 81 provides specific guidance on possible forms and methods of collaboration in the area of occupational safety and health. The Committee notes that it does not have recent information at its disposal to enable it to evaluate whether the collaboration with employers’ and workers’ organizations has been further developed after the creation of the Fair Work Ombudsman. The Committee requests the Government to provide further information in its next report on arrangements made or envisaged in order to promote collaboration between the Fair Work Ombudsman and employers’ and workers’ organizations.

Specific impact of new legislation on labour inspection in the building and construction sector. The Committee finally notes that in its comments dated 1 September 2008, the ACTU refers to the Australian Building and Construction Commission (ABCC), established on the basis of the Building and Construction Industry Improvement (BCII) Act, 2005. The ACTU raises serious concerns about the conduct of the ABCC, in particular, its unbalanced approach in favour of employers in relation to the selection of matters for prosecution, its refusal to prosecute employer breaches of industrial instruments and its failure to observe reasonable standards of prosecutorial fairness in the conduct of litigation against unions and workers. The ACTU emphasizes that according to the ABCC’s annual report for 2006–07, trade unions were the subject of 73 per cent of investigations and employees the subject of 11 per cent (a total of 84 per cent). At the same time, the total number of employers prosecuted by the ABCC since October 2005 for failure to pay minimum lawful entitlements was zero; the total number of employers referred to other statutory agencies for such breaches was four. This was the case although the Workplace Ombudsman had ranked the construction industry as having the fourth highest rate of non-compliance with minimum standards by employers. According to the ACTU, the ABCC had apparently adopted a policy position not to investigate or prosecute such matters.

The ACTU adds that the BCII Act contains provisions which give the ABCC wide-ranging coercive powers akin to an agency charged with investigating criminal matters and a harsh regime of financial penalties for acts which constitute regular trade union activity. Among other things, the BCII Act imposes the penalty of imprisonment for failing to appear and answer questions or provide documents to the ABCC. As of May 2008, the overwhelming majority of individuals who had been served with notices under section 52 of the BCII Act compelling them to attend and answer questions, were workers as opposed to management representatives. The total amount of financial penalties imposed from 1 October 2005 to May 2008 was AUD1.2 million, including AUD883,200 imposed on 107 individual employees in a single prosecution in Western Australia. Finally, on 2 June 2008, a trade union officer in Victoria was prosecuted and faced imprisonment simply for failing to attend and answer questions as required by a notice issued by the ABCC (section 52(6) BCII Act) without being the subject of any investigation.

According to the ACTU, since the election of the new Government in 2007, the BCII Act has continued to apply without amendment and the ABCC has continued to operate with the same powers, with undiminished resources and unaltered policy direction. Despite having the capacity to do so under section 11(1) of the BCII Act, the incoming minister has not issued any directions to the ABCC specifying the manner in which the ABCC should exercise or perform the powers or functions it has under the Act. The new Government announced that the ABCC would be retained until 31 January 2010, and after that date, responsibilities would transfer to a specialist division within Fair Work Australia. The ACTU objects to the creation of a specialist division on building and construction.

The Committee notes the Government’s reply to these comments, according to which the ABCC will be retained until 31 January 2010, after which time it will be replaced with a specialist building and construction division of the inspectorate of Fair Work Australia. The Government has engaged a former judge of the Australian Federal Court to consult and report on matters related to the creation of the specialist division and to report to the Government in 2009. A report will be provided to the Committee of Experts once the Government has had the opportunity to consider the recommendations of this inquiry.

The Committee recalls that under Article 3 of the Convention, the functions of the system of labour inspection shall be to secure the enforcement of legal provisions relating to conditions of work and the protection of workers while engaged in their work; any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers. The Committee considers that the prosecution of workers does not constitute part of the primary duties of inspectors and may not only seriously interfere with the effective discharge of their primary duties – which should be centred on the protection of workers under Article 3 of the Convention – but also prejudice the authority and impartiality necessary in the relations between inspectors and employers and workers. This is even more so when the laws on the basis of which the workers are prosecuted have been repeatedly found by this Committee to be contrary to other international labour standards, notably Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

The Committee hopes that the above issues will be fully resolved in the framework of the formal inquiry into the regulatory arrangements to replace the ABCC and the establishment of a specialist building and construction division in Fair Work Australia. The Committee requests the Government to communicate the results of this inquiry and to indicate in its next report the measures taken or envisaged to ensure that labour inspectors in the building and construction division of Fair Work Australia focus on enforcement of legal provisions relating to conditions of work and the protection of workers while engaged in their work and that any further duties which may be entrusted to them are not such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

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

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

The Committee notes the Government’s report and the information provided in reply to its previous comments. It also notes the observations provided by the Australian Council of Trade Unions (ACTU) on the implementation of the Convention, received by the ILO on 2 September 2005.

The Committee notes with interest the provision of the information requested in relation to: Article 6 of the Convention concerning the status and conditions of service of labour inspectors in New South Wales; Articles 5, 13, 15 and 17 relating to Queensland; Article 16 relating to Tasmania; and Article 12, paragraph 1(a) and Article 17 relating to Western Australia.

Article 12, paragraph 1(a). Right of labour inspectors to enter freely workplaces liable to inspection.

Queensland. The Committee requests the Government to specify whether workplace health and safety inspectors are legally empowered to enter workplaces at any hour of the day or night and, if so, to provide a copy of any relevant texts. If not, it would be grateful if the Government would ensure that measures are taken rapidly to give effect to this provision.

New South Wales. In the absence of the information requested previously on this point, the Committee hopes that the Government will not fail to ensure that measures empowering labour inspectors to enter freely, and without previous notice, at any hour of the day or night any workplace liable to inspection are introduced in practice and that it will provide information on any development in this regard.

Articles 20 and 21. The Committee notes with interest the Government’s statement that it intends to take due account of the Committee’s comments on the need to ensure that the annual reports on labour inspection activities in Western Australia are completed in accordance with Article 21 of the Convention.

With regard to the Northern Territory, the Committee notes that all the information required by this provision of the Convention is communicated to the Office of the Australian Safety and Compensation Council, Department of Employment and Workplace Relations, and that the information provided by all the Australian jurisdictions is compiled in the Comparative Performance Monitoring (CPM) report of the Workplace Relations Ministers’ Council, which provides trend analysis on occupational health and safety and workers’ compensation schemes in Australia and New Zealand.

The Committee also takes due note of the availability on the web sites indicated by the Government of abundant information and numerous legislative texts and activity reports by the bodies engaged in labour inspection activities. However, it notes that statistics on the number of workplaces liable to inspection and the number of workers employed therein (Article 21, paragraph (c)), as well as on cases of occupational disease, are not included in the annual reports available. It recalls the importance of having available all the data required by Article 21 for inclusion in the annual inspection report so that it reflects as faithfully as possible the effectiveness of the labour inspectorate throughout the country and enables the social partners in particular, as well as any interested party, to express their views and to make proposals for their progressive improvement. The Committee would be grateful if the Government would take every appropriate measure to this end and keep the ILO informed of the progress made in this regard.

Article 5(b). Collaboration between the inspection services and representative workers’ organizations. According to the ACTU, the measures taken by the federal Government with respect to labour inspection are not used for the protection of workers, but to intimidate them. Traditionally, the task of the federal labour inspectorate has essentially been to recover wages owed to workers as well as redundancy money, a task which the inspectorate carried out relatively passively and generally only in response to a specific request from a worker. Over the past 12 months the labour inspectorate has changed its focus and has started to play a more aggressive role in ensuring compliance with the provisions of the Workplace Relations Act 1996. The ACTU considers its methods of investigation to be aggressive and intended above all to determine whether trade unions and workers are in breach of the Act, to identify union delegates and members or to obtain the correspondence between the union and the employer for the purpose of determining whether employees have been paid during industrial action or have taken action that was not protected.

The ACTU considers that the intention of the inspectorate is above all to sue unions for breaching the provisions of the Workplace Relations Act or other texts, regardless of whether the employer wishes this to occur. The inspectorate does not take into account any settlement reached between the employer and the union, in contradiction with the Committee’s requests for explanations in 2005 concerning the right of employers and unions to reach agreements on strike pay.

According to the ACTU, the adoption of the Workplace Relations Act Amendment (Right of Entry) Bill 2004 will make it more difficult for unions to access the workplace and will therefore severely restrict the critical role that they have historically played in ensuring that the provisions of individual awards and agreements are applied properly. Furthermore, the Government recently announced new guidelines for the issuing of government contracts in the construction industry which specifically state that companies that enter into agreements with their workers which allow the union to oversee implementation of the agreement will not be eligible for any government contract. According to the ACTU, these legislative developments have restricted union access to workplaces. The same applies to the draft legislation prepared by the Government which will explicitly prohibit the entry of unions to discussions where all the employees concerned are parties to Australian Workplace Agreements (AWAs), and prohibit union participation in the bargaining process (Workplace Relations Act Amendment (Right of Entry) Bill 2004). A recent decision of the Australian Industrial Relations Commission held that the union had no right of entry into a workplace where all staff had been employed on AWAs.

With regard to the Office of the Employment Advocate (OEA), the ACTU considers that it fails to protect workers and has approved individual agreements with terms below award standard wages and conditions. A recent court decision concerning the application of the “no disadvantage test” found it “troubling” that more than 50 AWAs had been approved on the same terms as one that paid a student 25 per cent less than her minimum award entitlement. Some of the agreements approved do not even contain wages clauses.

However, based on the information available on the official government web site of the Workplace Authority, the Committee notes that arrangements have recently been made to provide workers and employers with the necessary assistance for the conclusion of individual workplace agreements containing appropriate clauses that are at least equal to those contained in federal law.

The Committee notes furthermore that the OEA’s name has been changed to the “Workplace Authority”, which has the principal task of overseeing the content of workplace agreements. Through its offices located in every state capital except Canberra, it provides free advice and information to employers and workers relating to the conclusion of workplace agreements and on the Australian Fair Pay and Conditions Standard, to ensure that workplace agreements do not contain prohibited clauses. Specific assistance using appropriate means of communication is available for young people and non-English speakers, as well as for persons with hearing or speech impediments.

In response to the ACTU’s allegations concerning the existence of clauses that do not meet federal standards in some approved individual agreements, the Authority has made it clear that the individual agreement containing an unfair clause to which the union refers concerned a student who had left her job before her individual labour agreement had been lodged with the Authority. The Authority maintains that the prior “no disadvantage test” procedure applies to all AWAs and that, in two cases concerning students, the approval of the AWAs had been postponed until they met federal standards.

The Committee would be grateful if the Government would keep the ILO informed of any developments relating to the collaboration between the labour inspection services and employers’ and workers’ organizations in order to ensure compliance with the legislation relating to conditions of work and the protection of workers while engaged in their work. It would be grateful if the Government would also provide any comments that may be useful as well as any additional explanation in response to the points raised by the ACTU.

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

The Committee notes the Government’s report and the attached documentation on the implementation of the Convention at the Federal and state levels. It also notes that the report does not reply in full to the Committee’s previous requests concerning Article 21 and, as regards New South Wales, Article 6. Moreover, the Committee has not yet received information on the implementation of the Convention from the State of Victoria.

The Committee welcomes the Government’s indication that the system of data collection is being improved, particularly in the area of occupational diseases, as part of the National Occupational Health and Safety Strategy, 2002-12. It hopes that the Government will keep it informed of any developments in this regard and will provide information on the various subjects enumerated in Article 21 of the Convention.

Referring to paragraphs 272 to 276 of the General Survey of 1985 on labour inspection with regard to the objectives of an annual report on the work of the labour inspection services, the Committee asks the Government to take appropriate measures to ensure that the central authority complies with its obligation to communicate reports drawn up in the form and within the time limits prescribed by Article 20, and containing the information required under Article 21 of the Convention, and to supply more detailed information in accordance with Part IV of Recommendation No. 81.

Article 6 of the Convention. New South Wales. The Committee notes that the Government has not replied to the comments made in 2001 concerning inspectors employed on a contract basis, whose status, salaries and other conditions of service are determined by the Statutory and Other Officer Remuneration Tribunal. The Government is therefore once again asked to supply information on whether stability of employment is assured for these inspectors.

In addition, the Committee would also like to draw the Government’s attention to the following points.

Article 5. Queensland. The Committee notes with interest the information provided on labour inspection activities in accordance with the Industrial Relations Act and Article 5(a) of the Convention. It would be grateful if the Government would indicate whether any other private or public bodies are responsible for supervising the application of labour law in such areas as wages and employers’ registration obligations, and if it would provide a copy of any relevant legal provisions.

Article 6. Queensland. According to the Government of Queensland, within the Department of Natural Resources, Mines and Energy, certain mining inspectors are employed on a contractual basis. Referring to the above comment relating to the application of this provision in New South Wales, the Committee asks the Government to indicate the manner in which the stability of employment of such inspectors and their independence of changes of Government are ensured and to provide a copy of any relevant legal provision.

Article 12. 1. New South Wales. Under the terms of section 385 of the Industrial Relations Act, 1996, an inspector may inspect "at any reasonable time" any presumed premises of an employer and any work being done there. Emphasizing the need to provide a legal basis for the application of the principle of free access to any workplace liable to inspection without previous notice at any hour of the day or night, (paragraph 1(a)). If not, the Committee requests the Government to indicate the measures taken to give full effect to this provision of the Convention in law and practice.

2. Queensland. The Committee notes section 353(1) of the Industrial Relations Act, under which the inspector has to tell the occupier of the inspector’s intention to gain access to the workplace if it is practicable. In this regard, section 104(3), of the Workplace Health and Safety Act established that, if it is practicable to do so, tell the occupier of the inspector’s intention of gaining access to a workplace. Furthermore, under section 139 of the Electrical Safety Act, in urgent circumstances the inspector must make a reasonable attempt to tell the occupier the purpose of the entry.

The Committee emphasizes that the only distinction between formal workplaces and presumed workplaces made under Article 12, paragraph 1, concerning the right of free access consists of the period when inspection is authorized in relation to points (a) and (b). With regard to the principle of notification by inspectors to the employer or his/her representative of their presence on the occasion of an inspection, the Convention provides that inspectors should be allowed to refrain from such notification where they consider that it might be prejudicial to the performance of their duties (paragraph 2).

The Government is therefore asked to take the necessary measures to ensure that the law is in compliance with each of the provisions of Article 12 and to provide information on any progress achieved in this respect.

Moreover, the Committee would be grateful if the Government would provide explanations as regards the cases in which the occupier’s consent and the corresponding warrant, as referred to in the Workplace Health and Safety Act and the Electrical Safety Act, 2002, are compulsory for labour inspectors to be able to enter a workplace.

The Committee would also be grateful if the Government would provide information on the extent of the labour inspector’s right of entry, in accordance with the Workplace Health and Safety Act and the Industrial Relations Act, and in particular whether inspectors are authorized to enter workplaces liable to inspection at any hour of the day or night.

3.  Western Australia. The Committee asks the Government to indicate the extent to which labour inspectors can enter workplaces freely (Article 12, paragraph 1(a)) under the terms of the Industrial Relations Act and the Occupational Safety and Health Act and to provide information on the effect given to the relevant provisions in practice.

Noting that, pursuant to section 45(1) of the Occupational Safety and Health Act, the inspector shall take all reasonable steps to notify the employer of her or his presence on the occasion of an inspection visit, the Committee would be grateful if the Government would indicate the measures adopted in this respect and provide information on the application of Article 12, paragraph 2.

4. Northern Territory. The Committee notes that, under the terms of section 37 of the Work Health Act and 89L(1) of the Petroleum Act, work health officers or inspectors shall not conduct an investigation at the workplace until they have taken reasonable steps to notify the employer or the employer’s representative of their entry into the workplace.

Furthermore, under section 88(1) of the Petroleum Act, an inspector may, at all reasonable times, "enter and remain in an exploration permit or licence area, or inspect and test equipment. In this respect, the Committee recalls once again that, in accordance with Article 12(1)(a), labour inspectors shall be empowered to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. Moreover, under paragraph 2, inspectors should be authorized to decide whether they should refrain from notifying the employer or her or his representative of their presence where they consider that such notification may prejudice the effectiveness of the inspection. The Government is asked to provide information on any measure taken to give effect to these provisions of the Convention.

Articles 13 and 17. Queensland. Noting that, according to the Government, within the fields covered by the Department of Industrial Relations, the relevant national and state laws provide access to prompt legal proceedings in case of non-compliance. The Committee asks the Government to indicate the corresponding legislative provisions.

Article 15. Queensland. The Committee notes that, according to the Government, inspectors in the Department of Natural Resources, Mines and Energy, and the Department of Industrial Relations are covered by departmental codes of conduct which meet the requirements of this Article. The Committee asks the Government to indicate the legal status of these codes of conduct and to provide copies of them, and of any related legal provisions.

Article 16. Tasmania. The Committee notes with interest that, according to the Government of Tasmania, inspections relating to workers employed under terms and conditions set in awards by the Tasmanian Industrial Commission are performed on a reactive basis. Highlighting the importance of preventive inspections, the Committee would be grateful if the Government would indicate frequency with which preventive inspections are undertaken and the areas covered.

Article 17. Western Australia. The Committee notes the Government’s indication that cases of non-compliance are addressed by improvement notices, prohibitions notices, prosecutions and verbal instructions during inspections. The Committee would be grateful if the Government would provide details on whether it is left to the discretion of labour inspectors to give warning and advice instead of instituting or recommending proceedings, as provided for in paragraph 2 of this Article, and if it would provide a copy of the relevant provisions.

Article 21. 1. Western Australia. The Committee notes the Government’s indication concerning the information contained in the annual report of the Department of Consumer and Employment Protection, including the lack of data on the number of workers employed in workplaces liable to inspection. It encourages the Government to continue its efforts to compile and publish all the information required by this Article of the Convention.

2. Northern Territory. The Committee notes the Government’s indication that some of the statistics required under Article 21 are missing in the annual report and that measures are being taken to improve reporting in this respect. The Committee encourages the Government to continue its efforts to compile and publish the data required under this Article of the Convention and to provide information on any development in this regard.

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

The Committee notes the Government’s detailed report. It requests the Government to provide further information on the points below.

Article 6. New South Wales. The Committee notes that the Government’s report does not respond to the point raised in its previous comments concerning the status, salaries and conditions of service of the inspectors determined by the Statutory and Other Officers Remuneration Tribunal as these inspectors are employed on a contract basis (such as, Senior Executive Service contract). The Committee hopes that the Government will supply precise information on whether the stability of employment is assured for them.

Article 21. The Committee notes that the annual inspection reports of the states and territories supplied by the Government provide detailed information on the activities of the competent authorities. Noting however, that most of the reports do not always contain full information on each of the subjects set out in Article 21 of the Convention, the Committee hopes that future annual inspection reports will include such information.

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

The Committee notes the detailed Government’s report as well as the annual inspection reports. It requests the Government to provide further information on the points raised below:

Article 6 of the Convention.  (i) Federal Government.  The Committee notes the Government’s indication that inspectors appointed under subsection 84(2)(a) of the Workplace Relations Act 1996 are officials employed under the Public Service Act 1922, and therefore they have public sector conditions of service, stability of employment and security of tenure. The Committee notes in this connection the provisions of subsection 84(2)(b) of the above Act, which refers to the inspectors appointed for such period as is specified in the instrument of appointment. Noting that the Government’s report contained no information on the status and conditions of service of the inspectors appointed under the provision of this subsection 84(2)(b), the Committee requests the Government to provide detailed information in this regard as well as to indicate whether these inspectors are assured of stability of employment.

(ii) New South Wales.  The Committee notes that some of the labour industrial inspectors are employed on a contract basis (such as, Senior Executive Service contract) and their status, salaries and conditions of service are determined by the Statutory and Other Officers Remuneration Tribunal. With regard to the status and conditions of service of these inspectors, the Committee hopes that the Government will supply detailed information and indicate whether the stability of employment is assured for them.

(iii) Queensland.  The Committee notes the Government’s indication that, as a part of the restructuring of the Mines Inspectorate in 1996, the inspectors have been employed under five‑year contracts which is in contrast to their previously tenured position. The Committee hopes that the Government will supply detailed information on the status and conditions of service of mine inspectors and indicate whether they are assured of stability of employment as prescribed by the Convention.

Articles 13(2) and 14.  The Committee notes the information in the Government’s report concerning the State of Western Australia that labour inspectors responsible for the inspection of defects which may constitute a threat to the health or safety of workers, are engaged by WorkSafe Western Australia. Noting that Government’s report contained no further information regarding powers of inspectors (Article 13(2)) and on notification of cases of occupational disease (Article 14), the Committee requests the Government to provide detailed information in this regard.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the detailed information provided by the Government. It hopes future reports will give information on the application of the Convention in all jurisdictions, including South Australia, Tasmania, Northern Territory and Australian Capital Territory.

Article 18 of the Convention. 1. Queensland. Please indicate any steps taken or envisaged to ensure that penalties for violations of legislation enforced by the labour inspectorate, notably the Inspection of Machinery Act, are adequate, as required by the Convention. 2. Western Australia. The Committee notes the concern expressed in the Joint Annual Report 1989-90 of the Commission and the Department of Occupational Health, Safety and Welfare that, although the maximum penalty for breach of the Occupational Health, Safety and Welfare Act is $50,000, the highest penalty imposed was $9,000. The Committee would be grateful to receive additional information in future reports on any measures taken or proposed in the light of the Convention's requirements.

Articles 2O and 21. 1. New South Wales. In future, the Committee would be grateful if the Government would transmit copies of the annual reports of the Workcover Authority. 2. Western Australia. In future, the Committee would be grateful if the Government would transmit copies of the reports of the inspection activities of the Department of Productivity and Labour Relations and the Department of Mines.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

Further to previous comments over several years, the Committee notes that the Government is investigating the measures to be adopted to enable New South Wales to comply with Article 15(a) of the Convention, by prohibiting labour inspectors from having any direct or indirect interest in the undertakings under their supervision. It hopes the necessary steps will be taken shortly.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government in reply to its previous direct request concerning the application of Article 12, paragraph 1(c)(iv) of the Convention in Western Australia.

Article 15(a): New South Wales. The Committee notes that the matter raised in its earlier comments (prohibition of inspectors having any interest in the undertaking under supervision) is still under consideration by the Department of Industrial Relations and Employment. It hopes that information on measures adopted to bring the legislation into conformity with this provision will be supplied in the next report.