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Executive summary
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Australia does not have a bill of rights, but it has ratified a range of major international covenants and conventions which have been designed to provide a system of protection of fundamental human rights and standards. [1] These include international labour standards developed by the International Labour Organisation (ILO) and its member states to protect and promote rights at work. These standards provide a comprehensive range of labour obligations and binding international legal commitments.
This paper outlines the role of the ILO and its supervisory bodies
in the development and implementation of international labour standards.
It notes the continuing attempts of the ILO to refocus the attention
of its member states on the adoption and implementation of a set of
fundamental conventions and core labour standards in the context of
the pressures of globalisation. It examines the ILO’s concerns for the
impact of the Workplace Relations Act 1996 (Workplace Relations
Act) on
The ILO was founded in 1919, in the wake of the First World War. In 1919, the achievement of social justice was seen as an essential prerequisite for the maintenance of world peace. The ILO was entrusted with working towards this objective and was given the task of adopting international labour standards as its principal means of action. This vision was set out in the preamble to the ILO’s constitution, which also identified priorities in carrying out this program:
… conditions of labour exist involving such injustice hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required; as, for example, by the regulation of the hours of work including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of equal remuneration for work of equal value, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures. [2]
In 1944, the ILO Conference adopted the Declaration of Philadelphia, which was subsequently incorporated into the ILO’s constitution. Importantly for the work of the ILO, the Declaration established the principle of the primacy of social objectives over those of economic policy and marked a shift in emphasis to the protection of fundamental rights of the individual. It made the ILO responsible for promoting basic human rights in the workplace, including the principle that:
… all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity … it is the responsibility of the International Labour Organisation to examine and consider all international and fiscal policies and measures in the light of this fundamental objective. [3]
Originally part of the League of Nations, the ILO became an agency of the United Nations (UN) in 1946.
The ILO is the only tripartite UN agency. It brings together representatives of governments, employers and workers to shape its policies and programmes. The ILO considers that this arrangement allows it to incorporate practical knowledge about employment and work into its agenda and outputs.
The member states of the ILO meet at the International Labour Conference
in
The Governing Body is the executive council of the ILO and meets three times a year in Geneva. It comprises 56 members, of whom 28 represent governments, 14 represent workers and 14 represent employers. Ten of the 28 government seats are reserved for the states of ‘chief industrial importance’. [5] The Governing Body takes decisions on ILO policy and establishes the programme and the budget, which it then submits to the Conference for adoption.
The International Labour Office is the administrative arm of the ILO. It is headed by the Director General who is elected by the Governing Body for a renewable term of five years. The Office is answerable to the Governing Body through the Director General.
The ILO formulates instruments that set minimum standards for basic labour rights. These instruments are generally conventions, which are legally binding international treaties that may be ratified by member states. However, the ILO also uses other mechanisms to establish important standards or principles, such as declarations adopted by its conference (for example, the 1944 Declaration of Philadelphia, and the 1998 Declaration on Fundamental Principles and Rights at Work).
The ILO also formulates recommendations, which serve as non-binding guidelines that complement its conventions.
International labour standards generally result from international concern that action needs to be taken on a particular issue. As a first step, the Governing Body agrees to put an issue on the agenda of a future International Labour Conference. The International Labour Office then prepares a report that analyses the laws and practices of member states with regard to the issue. The report is circulated to member states and to workers’ and employers’ organisations for comment and is discussed at the International Labour Conference. A second report is then prepared by the Office with a draft instrument for comment and submitted for discussion at the following Conference, where the draft is amended as necessary and proposed for adoption. This double discussion process gives Conference participants time to examine the draft instrument and provide comments.
A two-thirds majority of votes by delegates is required for an international
labour standard to be adopted. This has a number of benefits, as Creighton
and
… a standard cannot be adopted in the face of concerted opposition from government delegates. It also means that a standard is unlikely to be adopted in the face of the concerted opposition of employer or union delegates … This sometimes means that standards which are adopted represent the ‘lowest common denominator’ … On the other hand, it also means that those standards which are adopted have a unique authority by virtue of the fact that they have received a significant measure of acceptance with all three constituencies. [6]
In 2003, the ILO began using an integrated approach to improve the coherence, relevance and impact of its standards-related activities. This approach involves developing a plan of action, including a package of tools to address a specific subject. These tools may include conventions, recommendations and other types of instruments, promotional measures, technical assistance, research, dissemination of knowledge and inter-agency cooperation.
ILO member states are required to submit any convention adopted at the International Labour Conference to their national competent authority(s)—generally their parliament(s)—for the enactment of relevant legislation or other action, including ratification. They are required to do this:
… within the period of one year at most from the closing of the session of the Conference, or if it is impossible owing to circumstances to do so within the period of one year, then at the earliest practicable moment and no later than 18 months from the closing of the session of the Conference …’ [7]
If the member state does not obtain the consent of the competent authority (or authorities), then no further obligation rests on the member except in relation to reporting requirements. [8]
Ratified conventions become binding one year after the date of ratification, and remain binding until denounced under established procedures. Ratification is a formal procedure whereby a state accepts the convention as a legally binding instrument. Ratified conventions have the effect of a treaty in international law. Ratification obliges the country concerned to maintain its law and practice in conformity with the convention. Once it has ratified a convention, a country is subject to the ILO’s regular supervisory system responsible for ensuring that the convention is applied.
Most of the ILO’s standards are drafted with provision for some flexibility in their application—recognising the considerable diversity of member nations’ cultural, legal and institutional arrangements and stages of development. For example, standards on minimum wages do not require member states to set a specific minimum wage, but to establish a system and the machinery to determine minimum wage rates appropriate to their economic development. Other standards include flexibility clauses allowing states to lay down temporary standards that are lower than those normally prescribed, to exclude certain categories of workers from the application of a convention, or to apply only certain parts of the instrument. Ratifying countries are usually required to make a declaration to the Director General of the ILO if they exercise any of the flexibility options, and to make use of such clauses only in consultation with the social partners (that is, representatives of employers and workers).
Member states are required to report to the ILO on the measures they have taken to give effect to ratified conventions, according to the type of instrument and the schedule notified by the International Labour Office.
Every two years governments must submit reports detailing the steps they have taken in law and practice to apply any of the eight fundamental and four priority conventions [9] that they have ratified. For all other conventions, reports must be submitted every five years; except for conventions that have been shelved (these are no longer supervised on a regular basis). Reports on the application of conventions may also be requested at shorter intervals. In addition, each year a general survey is conducted on one or more conventions or recommendations relating to a particular subject and all member states are required to report, irrespective of whether they have ratified the instruments concerned. Representative worker and employer organisations have the opportunity to comment before government reports are sent to the ILO.
Conventions are not only of influence in the countries where they have been ratified. Governments that have not ratified conventions may use them as guidance when developing their labour legislation. Member states also have an obligation to report on unratified conventions at appropriate intervals as requested by the Governing Body. Representative worker and employer organisations have the opportunity to comment on these reports. A streamlined annual reporting process applies to any of the fundamental conventions that governments have not ratified. [10]
The ILO’s supervisory bodies—the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts or CEACR) and the Conference Committee on the Application of Standards (CCAS)—regularly examine these reports to assess the application of standards in member states. The Governing Body is also empowered to require member states to report on the obstacles preventing or delaying ratification of nominated conventions.
The Committee of Experts is composed of 20 eminent jurists appointed by the Governing body for three-year terms. Its role is to provide an impartial and technical evaluation of the state of application of the ILO’s standards. [11]
The annual report of the Committee of Experts, usually adopted in December,
is submitted to the International Labour Conference the following
If there are any problems in the application of standards, the ILO generally seeks to assist countries through dialogue with the government concerned, as well as providing advice and technical assistance. In this context, dialogue between the ILO and the government concerned may involve ‘direct requests’ or ‘observations’.
The Committee of Experts often makes unpublished direct requests to governments, pointing to apparent problems in the application of a standard and giving the country concerned time to respond and tackle these issues. [12]
Observations are assessments of a government’s compliance with a convention, which are published in the report of the Committee of Experts. They generally only occur when the Committee is not satisfied with the progress of the closed process of dialogue through direct requests. It should be noted that observations are not legal determinations and are not finally binding. Only the International Court of Justice can provide a definitive view of the meaning of a convention. However, observations are authoritative in the sense that they represent the considered views of a panel of eminent jurists elected for the purpose of providing an impartial, technical evaluation of the application of the ILO’s conventions. The reports of the Committee of Experts provide the basis for discussion at the Conference Committee on the Application of Standards.
Representation and complaint procedures can also be initiated for states that fail to comply with conventions they have ratified.
Representations may be made by organisations of employers or workers. The Governing Body decides whether or not to receive a representation. Where appropriate, a representation may be referred to the Committee on Freedom of Association, or it may be examined by a tripartite committee of the Governing Body and result in a published report of the committee’s assessment of compliance. The Governing Body will make findings and may decide to pass such a report to the Committee of Experts for follow-up. The Governing Body can also establish a Commission of Inquiry to deal with the matter as a complaint.
Complaints may be filed by member states that have ratified the relevant convention, or by a delegate to the Conference, or be referred by the Governing Body (as above). Where complaints concern trade union rights, they may be referred to the Committee on Freedom of Association. Complaints are generally investigated by a Commission of Inquiry, conducted by a panel of eminent jurists. Where a Commission of Inquiry is held, the ILO publishes its report and the government can either accept the recommendations, or appeal to the International Court of Justice. Where a member state fails to carry out recommendations of a Commission of Inquiry within the time specified, the Governing Body may recommend to the Conference ‘such actions it may deem wise and expedient to secure compliance’. [13] This could include recommending the application of diplomatic and trade pressures or the use of media and public opinion to focus attention on the issue.
A special procedure—the Committee on Freedom of Association (CFA)—reviews complaints concerning violations of freedom of association, whether or not a member state has ratified the relevant conventions. This is because the principles of freedom of association are considered to be guaranteed under the ILO Constitution to which member states are bound, irrespective of ratification of conventions. The CFA is a Governing Body committee. If it finds that there has been a violation of freedom of association standards or principles, it issues a report through the Governing Body and makes recommendations on how the situation could be remedied. Governments are subsequently requested to report on the implementation of such recommendations.
The mid to late 1990s marked a new phase for the ILO, which sought to reposition itself in the multilateral arena and re-establish its credibility as an influential international agency. It did this by refocusing the attention of its member states on the implementation of a set of core labour standards contained in conventions identified as fundamental. These instruments were concerned with the protection of fundamental human rights that were seen to attain heightened importance in the context of globalisation. The ILO has been successful in having its revised agenda endorsed by a number of international organisations. Key steps leading to the adoption of this approach are outlined at Appendix A.
The ILO’s Declaration on Fundamental Principles and Rights at Work, which was accepted at the 1998 International Labour Conference, recognised that:
… all Members, even if they have not ratified the Conventions in question [that is, the fundamental conventions], have an obligation arising from the very fact of membership in the Organisation, to respect, to promote and to realise, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions.
This Declaration has been recognised as marking ‘a new and important step in the ongoing struggle to develop multilateral instruments that will reconcile the globalisation process with the need to preserve the core rights of labour.’ [14] In relation to these core rights, their recognition was not to be governed by the national context or the level of economic development. Further, as noted above, the source of the obligation to implement these principles and fundamental rights was said to lie in membership of the ILO, not ratification of the conventions.
A follow-up to the Declaration established arrangements to encourage member states to promote the fundamental principles and rights enshrined in the Declaration. These include technical cooperation, simplified annual reporting requirements in relation to unratified fundamental conventions, and global reports. The latter are reports submitted to the ILO’s annual conference by the Director General and focus on a different fundamental convention each year. [15]
In 2005, the Director General outlined the underlying rationale for the Declaration on Fundamental Principles and Rights at Work, as follows:
The fundamental principles and rights which are the subject of the Declaration seek to enable people ‘to claim freely and on the basis of equality of opportunity their fair share of the wealth which they have helped to generate, and to achieve fully their human potential’. Freedom of association and the effective recognition of the right to collective bargaining are the foundation for a process in which workers and employers make claims upon each other and resolve them through a process of negotiation leading to collective agreements that are mutually beneficial. In the process, different interests are reconciled. For workers, joining together allows them to have a more balanced relationship with their employer. It also provides a mechanism for negotiating a fair share of the results of their work, with due respect for the financial position of the enterprise or public service in which they are employed. For employers, free association enables firms to ensure that competition is constructive, fair and based on a collaborative effort to raise productivity and conditions of work. [16]
The core standards (and associated fundamental conventions) cover:
A brief summary of the fundamental conventions is provided at Appendix B.
The ILO’s Governing Body has also designated another four conventions as priority instruments, thereby encouraging member states to ratify them because of their importance for the functioning of the international labour standards system. These conventions are:
It should be noted, that there has been some debate about the extent to which the 1998 Declaration and the ILO’s focus on core labour standards has strengthened the international labour rights regime. For example, Alston has criticised the ‘lack of definable content for the principles,’ and argued that the supervisory and follow-up mechanisms for the Declaration needed to be strengthened. He also noted:
The Declaration’s privileging of a limited range of process rights and its neglect of substantive norms such as those relating to safety and health, minimum wages, and reasonable conditions of work has been criticised by a great many commentators.[17]
It is beyond the scope of this paper to examine fully the economic costs and benefits of international labour standards. It must be acknowledged, however, that the critics of labour standards often argue that the adoption of such standards distorts market mechanisms by affecting the price of labour and reducing its supply. They also suggest that the adoption of international labour standards can lead to a reduction in foreign investment and may be regarded as a form of protectionism. [18] Consequently, they argue that standard setting should be left to a freely operating labour market. [19]
There is, however, a significant body of literature that argues that international labour standards make good economic sense. Turnell summarises the arguments:
… the adoption of core labour standards confers economic benefits to developing and developed countries alike. It offers the possibility for greater human capital formation, can increase the supply of labour through the elimination of arbitrary discrimination, and is likely to increase foreign investment into developing countries through its promise of greater economic and social stability. The adoption of core labour standards is also likely to bring greater democratic legitimacy to international economic institutions, the pillars that support the emerging liberal trading order. [20]
This view has received some support from two major studies by the Organisation for Economic Cooperation and Development (OECD). In 1996, the OECD released a study which examined the link between core labour standards and trade, drawing on information from more than 70 countries. It concluded that the adoption of core labour standards did not have any negative consequences for the economies and trade of developing countries and did not undermine their competitive position. It also suggested that:
… it is conceivable that the observance of core standards would strengthen the long-term economic performance of all countries. [21]
In 2000, the OECD undertook a second study which essentially confirmed the results of the 1996 study. In 2000, the OECD tentatively concluded that:
In 2001, the World Bank observed that:Countries which strengthen their core labour standards can increase economic efficiency by raising skill levels in the workforce and by creating an environment which encourages innovation and higher productivity … The results suggest that countries that develop democratic institutions – here taken to include core labour rights – before the transition to trade liberalisation will weather the transition with smaller adverse consequences than countries without such institutions. [22]
Keeping labour standards low is not an effective way of gaining a competitive advantage over trading partners. Indeed, low labour standards are likely to erode competitiveness over time because they reduce incentives for workers to improve skills and for firms to introduce labour-saving technology. [23]
It has also been claimed that the ‘decisive argument’ for having international labour standards is that ‘only if workers’ fundamental rights are taken out of the competitive arena by international agreement, is it possible to ensure that producers who respect those rights are not put at a competitive disadvantage.’ [24]
The ILO has also examined the economic benefits of the core standards, for example, arguing that child labour is detrimental to development since it means that the next generation of workers will be unskilled and less well-educated. Further, collective bargaining and tripartite dialogue are necessary elements for creating an environment that encourages innovation and higher productivity, attracts foreign direct investment and enables the society and economy to adjust to external shocks, such as financial crises and natural disasters. In addition, the discrimination faced by women and minority groups are important obstacles to economic efficiency and social development. [25]
More recently, a joint study undertaken by the International Labour Office and the Secretariat of the World Trade Organisation examined the connections between trade, labour and social policies. It concluded that trade policies and labour and social policies do interact. It also found that greater policy coherence in the two domains can have significantly positive impacts on the growth effects of trade reforms and thus, ultimately, on their potential to improve the quality of jobs around the world. [26]
Australia has been a member of the ILO since its foundation in 1919
and has played an active role in its activities for most of that period.
However, as at September 2007,
However, as Creighton and Stewart point out, ‘there is no legal, as opposed to political or practical reason why the Commonwealth could not ratify conventions without the agreement of the States and Territories,’ and without law and practice in Australia being judged to be in compliance with the convention at the time of ratification. This is because:
In the early 1990s, the Keating (Labor) Government ratified a number
of conventions without the agreement of all states and territories,
and legislated to give effect to
The validity of the Keating Government’s strategy was ‘with only very
partial exceptions, upheld by the High Court in
Developments under the Keating Government were, however, criticised by the Senate Legal and Constitutional References Committee in 1995. When the Howard Government took office in 1996, it put in place arrangements that gave effect to that Committee’s recommendations, which were aimed at enhancing the Commonwealth Parliament’s role in treaty-making. The changes included a revised process for ratifying treaties, involving:
The mechanisms put in place go some way towards addressing the controversial issue of the ‘democratic deficit’ that may be said to result from executive decisions to become a party to international treaties. [36]
During the early years of the Howard Government,
As Creighton observed in 1998,
… until recently, none of these communications or complaints disclosed significant non-compliance with the relevant standards. [39]
Since 1996, however, ILO communications have raised a number of unresolved
non-compliance, or potential non-compliance, issues. In 1998, for the
first time in the history of its membership of the ILO,
In more recent years,
… a perception that Australia has a better chance of influencing the policies and programmes of the ILO if it is an active participant in the decision-making process of the Organisation rather than a somewhat petulant outsider, as was the case in the period following 1996. [43]
| Core labour standards |
||||||||
|---|---|---|---|---|---|---|---|---|
| Elimination of all forms of forced labour |
Freedom of association & recognition of the right to collective bargaining |
Elimination of discrimination in employment |
Abolition of child labour |
|||||
| Fundamental Conventions |
||||||||
| Forced Labour Convention |
Abolition of Forced Labour Convention |
Freedom of Association & Protection of the Right to Organise Convention |
Right to Organise & Collective Bargaining Convention |
Equal Remuneration Convention |
Discrimination (Employment & Occupation) Convention |
Minimum Age Convention |
Worst Forms of Child Labour Convention |
|
| Total number of ratifications (all members) |
172 |
170 |
148 |
158 |
164 |
166 |
150 |
165 |
Australia |
1932 |
1960 |
1973 |
1973 |
1974 |
1973 |
- |
2006 |
| Canada |
1972 |
- |
- |
1959 |
1972 |
1964 |
- |
2000 |
| China |
- |
- |
- |
- |
1990 |
2006 |
1999 |
2002 |
| Cuba |
1952 |
1952 |
1953 |
1958 |
1954 |
1965 |
1975 |
- |
| France |
1951 |
1951 |
1937 |
1969 |
1953 |
1981 |
1990 |
2001 |
| Germany |
1957 |
1956 |
1956 |
1959 |
1956 |
1961 |
1976 |
2002 |
| Greece |
1962 |
1962 |
1952 |
1962 |
1975 |
1984 |
1986 |
2001 |
| Indonesia |
1998 |
1957 |
1950 |
1999 |
1958 |
1999 |
1999 |
2000 |
| Italy |
1958 |
1958 |
1934 |
1968 |
1956 |
1963 |
1981 |
2000 |
| India |
- |
- |
1954 |
2000 |
1958 |
1960 |
- |
- |
| Japan |
1965 |
1953 |
1932 |
- |
1967 |
- |
2000 |
2001 |
| Republic of Korea |
- |
- |
- |
- |
1997 |
1998 |
1999 |
2001 |
| Netherlands |
1950 |
1993 |
1933 |
1959 |
1971 |
1973 |
1976 |
2002 |
| New Zealand |
- |
2003 |
1938 |
1968 |
1983 |
1983 |
- |
2001 |
| South Africa |
1996 |
1996 |
1997 |
1997 |
2000 |
1997 |
1977 |
2001 |
| Sweden |
1949 |
1950 |
1931 |
1958 |
1962 |
1962 |
1990 |
2001 |
| Thailand |
- |
- |
1969 |
1969 |
1999 |
- |
2004 |
2001 |
| UK |
1949 |
1950 |
1931 |
1957 |
1971 |
1999 |
2000 |
2000 |
| USA |
- |
- |
- |
1991 |
- |
- |
- |
1999 |
Source: International Labour Organisation, ILOLEX Database of International Labour Standards, September 2007.
| Documents relating to Australia |
Pre-1996# |
1996 to September 2007 |
|---|---|---|
| Individual observations of the Committee of Experts on the Application of Conventions & Recommendations |
13 |
32 |
| Direct requests of the Committee of Experts on the Application of Conventions & Recommendations |
33 |
133 |
| General Observations of the Conference Committee on the Application of Conventions and Recommendations |
- |
1* |
| Individual Observations of the Conference Committee on the Application of Conventions and Recommendations |
- |
7 |
| Direct requests regarding submissions to the Competent Authorities |
- |
4 |
| Freedom of Association cases (complaints by employee and employer organisations) |
18@ |
2 |
| Commission of Inquiry |
- |
- |
Source: International Labour Organisation, ILOLEX Database on ILO documents,
September 2007.
Note: # data for the Committee of Experts is available from 1960. For
the Committee on Freedom of Association data is available since 1951.
* This case concerned a failure to supply information and related to a number of countries, including Australia.
@ The majority of these cases related to complaints against State governments.
The scope of this paper is confined to areas of non-compliance, or potential non-compliance, with obligations arising from the fundamental conventions and associated with the Workplace Relations Act 1996 (the Workplace Relations Act) and the further changes implemented by the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act). It should be noted, however, that other Commonwealth legislation has also raised some long-standing issues—including sections of the Trade Practices Act 1974, sections of the Commonwealth Crimes Act 1914 that provide for criminalisation of industrial action, and legislation relating to the building industry and the higher education sector. The ILO has also expressed concerns regarding Australia’s failures to overcome discrimination in the labour market against Indigenous people and in relation to the regulation of the work of prisoners in privately run facilities. [44]
The changes introduced by the Workplace Relations Act have been extensively documented and discussed and will not be reviewed here. [45] The objective of this section is to outline the ILO’s areas of concern with international obligations associated with the fundamental conventions, as the issue of Australia’s compliance with its international obligations has received little attention during the parliamentary and media debates that surrounded passage of the reforms. [46] These issues have also received limited attention since that time.
In 1997, following enactment of the Workplace Relations Act, Australia’s compliance with Conventions Nos. 87 and 98 was considered by the ILO Committee of Experts on the Application of Conventions and Recommendations. The Committee upheld union criticisms concerning the lack of protection of employees from dismissal due to anti-union discrimination, as well as contraventions of principles relating to the promotion of voluntary collective bargaining. [47] The ILO Conference Committee on the Application of Standards in June 1998 drew further attention to these criticisms. [48] The ILO Committee of Experts has expressed continuing concerns regarding the Australian legislation every year since then. The ILO Committee on Freedom of Association has also been involved in trying to convince the Australian Government of the need to amend its legislation. [49]
The Howard Government, together with the Australian Chamber of Commerce and Industry, has generally not accepted the views of the ILO’s supervisory bodies, resulting in an ongoing dialogue through the processes of direct requests, observations, and appearances before the committees and conference debates. The Government and employers have argued that:
In 2006 and 2007, the Howard Government also argued that substantial amendments to the Workplace Relations Act as a result of the Work Choices amendments meant that earlier comments and findings by the ILO’s supervisory bodies were no longer valid.
The ILO’s concerns regarding compliance with binding international legal commitments arising from fundamental ILO Conventions relate to Australia’s efforts to protect freedom of association and encourage and promote collective bargaining (Conventions Nos. 87 and 98). The lack of progress towards equal remuneration has also been a concern. More specifically, those aspects of the Workplace Relations Act which have given rise to concerns are provisions which:
The following sections outline the ILO’s concerns in more detail, with particular reference to observations and requests made during 2006 and 2007. [51] The ILO’s more recent observations have been modified to some degree by the dialogue and debate which has occurred since 1997. However, a number of significant areas of concern have remained outstanding for the last 10 years and, in some cases, have intensified following the Work Choices changes. At the time of publication of this paper, the Australian Government had not provided a report to the ILO that explained the effect of the Work Choices amendments and the implications for compliance with Conventions Nos. 87 and 98. Given the outcome of the 2007 election, the task for the Rudd Labour Government will be to outline its proposed changes to the industrial relations framework, and their implications for Australia’s compliance with its international obligations.
Convention 98 requires that all workers are protected from anti-union discrimination, at the time of engagement, during employment and in relation to termination of employment. The Workplace Relations Act includes protections from anti-union discrimination; making dismissal on the grounds of union membership unlawful. However, the Committee of Experts has found that section 170CC of the Workplace Relations Act (now section 639 of the Workplace Relations Act, as amended by the Work Choices Act) allows regulations which may provide for additional exclusions. This may effectively exclude some employees from protection under section 170CK of the Workplace Relations Act (now section 659), which relates to protection from unlawful termination. The Committee of Experts has requested the Government to provide information on the particular classes of employees excluded and the manner in which the exclusion has been applied in practice.
The Committee of Experts had identified the need to amend sections 298L and 170WG(1) of the Workplace Relations Act (now sections 793 and 400(5) respectively) to provide adequate protection against anti-union discrimination at the time of recruitment. In 2007, the Committee reiterated its concerns:
These sections did not seem to afford adequate guarantees against anti-union discrimination to the extent that they allowed offers of employment to be conditional on the signing of an AWA (‘AWA or nothing’) without this being considered as duress by the courts. The Committee observes that section 400(6) of the [Workplace Relations] Act, as amended by the Work Choices Act, now further strengthens the previous provisions by explicitly specifying that offering an ‘AWA or nothing’ does not amount to duress. The Committee once again emphasises that workers who might refuse to negotiate an AWA at the time of recruitment should be afforded legal protection against acts of anti-union discrimination relative to such refusal and emphasises that the right of workers to join the organisation of their own choosing, combined with the legitimate objective of determining their conditions of employment through collective bargaining, should be fully protected. [53]
The Committee of Experts has requested the Government to indicate the measures taken or contemplated to repeal section 400(6) of the Workplace Relations Act and to amend sections 793 and 400(5).
Section 423(1)(b)(i) of the Workplace Relations Act, as amended by the Work Choices Act, provided that a bargaining period cannot be initiated with regard to a multiple business agreement unless an employer (rather than a union) obtained authorisation from the Employment Advocate [54] (section 332). The Employment Advocate must not grant the authorisation unless he or she is satisfied that it is in the public interest to do so (section 332(3)). The Committee of Experts noted that, in the absence of a bargaining period, industrial action is not protected (section 437). It concluded that workers are not protected under the Workplace Relations Act against acts of anti-union discrimination, in particular, dismissals, if they organise or participate in industrial action in support of multiple business agreements.
The Committee also noted that the Work Choices reforms introduce further restrictions concerning pattern bargaining. [55] They did this by prohibiting industrial action in relation to pattern bargaining (section 439 of the Workplace Relations Act, as amended) and requiring the Australian Industrial Relations Commission (AIRC) to suspend or terminate the bargaining period where such bargaining is occurring, thereby preventing the taking of lawful, protected industrial action [56] (sections 431(1)(b) and 437).
The Committee considered that action related to the negotiation of multiple business agreements and pattern bargaining represent legitimate trade union activity for which adequate protection should be afforded by the law. The Committee also emphasised that the choice of the bargaining level should normally be made by the parties themselves who are in the best position to decide this matter.
The Committee also requested that the government indicate any measures taken or contemplated to amend sections 423 and 431 of the Workplace Relations Act. It regards such measures as necessary to ensure that workers are adequately protected against acts of anti-union discrimination, in particular, dismissal, for negotiating collective agreements at whatever level deemed appropriate by the parties.
In 2007, the Committee of Experts made a direct request to the Australian Government concerning the right of union representatives to visit workplaces. It noted that the Work Choices Act made the right of entry of trade union representatives to the workplace in order to meet with workers subject to a special permit requirement (section 740). Such a permit may be refused (and can also be revoked or suspended) in certain circumstances outlined in the legislation. The Committee noted that section 760 limited the permit holder to entering premises for the purposes of holding discussions with eligible employees; that is, employees who carry out work covered by an award or collective agreement (but not an AWA) that is binding on the organisation and are members of the permit holder’s trade union or eligible to become members.
Having examined the provisions, the Committee reminded the government that the right of trade union officers to have access to places of work and to communicate with management is a basic activity of trade unions which should not be subject to the interference of authorities. It observed that the ‘restrictive conditions’ set for the granting of permits ‘could constitute a serious obstacle to the exercise of this right’. It also emphasised that:
… a trade unionist should not be limited in discussions at a workplace only to eligible employees, but should also be able to appraise workers of the potential advantages of unionisation or of coverage of a collective agreement instead of an AWA. [57]
The Committee requested the government to indicate any measures taken or contemplated to amend these sections. [58]
Key ILO requirements relating to collective bargaining (based in Convention No. 98) are that the public authorities should take appropriate measures to encourage and promote—as distinct from merely provide for—voluntary negotiations with a view to concluding collective agreements. However, the ILO has recognised that the parties cannot be compelled to reach agreement and that effective bargaining relationships can only be achieved by the voluntary and persistent efforts of both parties. [60] The ILO’s supervisory bodies have emphasised that interference with the autonomy of the bargaining partners (for example, by measures taken unilaterally by the authorities to restrict the level at which bargaining may occur or restrict the content of agreements) are generally contrary to the concept of voluntary bargaining. [61]
The Committee of Experts noted that section 170LJ(1)(a) of the Workplace Relations Act (now section 328(a)) gives employers wide discretion in selecting a bargaining partner. It enables an employer to make an agreement with one or more organisations of employees where each organisation has ‘at least one member’ in the enterprise. The Committee suggested the establishment of a mechanism to undertake the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner. It requested the government to provide information on whether such a mechanism exists or, if not, the measures taken or contemplated with a view to establishing one.
Convention 98 requires member states to take measures to encourage
and promote voluntary negotiation with a view to the regulation of the
terms and conditions of employment by collective agreements. Since 1997,
the Committee of Experts has indicated that
Prior to the adoption of the Work Choices amendments, an AWA did not operate to the exclusion of a collective agreement if the latter was already in operation and until its expiry, unless the collective agreement expressly allowed a subsequent AWA to operate to its exclusion. Nevertheless, the Committee criticised the fact that a collective agreement that was subsequent to an AWA did not prevail over the AWA until the expiration of the AWA. In the Committee’s view, this prevented workers from profiting from any favourable provisions in a subsequently negotiated collective agreement.
In 2007, the Committee of Experts noted that amendments introduced by the Work Choices Act gave further primacy to AWAs over collective agreements. In particular, it suggested that:
The Committee indicated that it:
… considers that giving primacy to AWAs, which are individual agreements, over collective agreements, is contrary to Article 4 of the Convention which calls for the encouragement and promotion of voluntary negotiations with a view to the adoption of collective agreements. [64]
The Committee requested the Australian Government to indicate the measures taken or contemplated to amend section 348(2) of the Workplace Relations Act ‘so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers.’
Note that the ILO supervisory bodies’ concerns in relation to the removal of the no disadvantage test have not yet been reviewed in the light of the fairness test introduced following the enactment of the Workplace Relations Amendment (A Stronger Safety Net) Act 2007, which received Royal Assent on 28 June 2007. This Act amended the Workplace Relations Act by introducing a fairness test for workplace agreements lodged on, or after, 7 May 2007. The fairness test is intended to ensure that employees receive fair compensation if their AWA or collective agreement removes or modifies protected conditions, such as penalty rates and overtime loadings.
The Committee of Experts identified the need to amend section 170LK(6)(b) of the Workplace Relations Act, which allowed for negotiations to take place directly with non-unionised workers instead of representative trade unions in the enterprise. The Committee noted that the Workplace Relations Act, as amended by the Work Choices Act, places on an equal footing various types of agreements, such as union collective agreements (section 328), AWAs (section 326) and employee collective agreements (section 327). Further, section 4 of the Workplace Relations Act defines a collective agreement as either an employee collective agreement or a union collective agreement.
The Committee observed that Article 4 of the Convention requires the encouragement and promotion of voluntary negotiations between employers or employers’ organisations and workers’ organisations. It requested the Australian Government to take measures to ensure that employee collective agreements do not undermine workers’ organisations and their ability to conclude collective agreements. It also asked the government to indicate the measures taken or contemplated with a view to ensuring that negotiations with non-unionised workers take place only where there is no representative trade union in the enterprise.
The Committee identified the need to amend section 170LC(4) of the Workplace Relations Act, which required the AIRC to refuse the certification of multiple business agreements unless certification was in the public interest. Following its amendment by the Work Choices Act, the Workplace Relations Act enabled the Employment Advocate (rather than the AIRC) to authorise the making or varying of multiple business agreements (sections 151(1)(h) and 347(3)). The Committee noted that whereas the AIRC is a quasi-judicial body, the Employment Advocate is part of the administration, appointed by the Governor-General, and subject to the directions of the Minister for Employment and Workplace Relations with which he or she must comply (section 152).
The Employment Advocate must not grant authorisation to make or vary a multiple business agreement unless satisfied that it is in the public interest to do so. In making this decision, the Employment Advocate must have regard to whether the matters could be dealt with more appropriately in a collective agreement other than a multiple business agreement and to any other matter specified in regulations (section 332(3)). Authorisation can be granted only at the request of the employer (section 332). Trade unions are not able to request authorisation. Any employer who lodges an unauthorised agreement with the Employment Advocate incurs a penalty (sections 343 and 407). Moreover, regulations may set a procedure for applying for authorisation to the Employment Advocate and the Employment Advocate ‘need not consider an application if it is not made in accordance with the procedure’ (section 332(2)). Finally, multiple business agreements are identified not only as agreements relating to one or more single businesses, but also relating to one or more parts of a single business (section 331(1)(a)(ii)). The Committee said that this effectively obliged the parties ‘to carry out fragmented negotiations within single businesses.’ Similar authorisation requirements are set in relation to variations of multiple business agreements (section 376).
The Committee noted that the exclusion of pattern bargaining from protected action introduced in the Workplace Relations Act by the Work Choices Act (see above) prevents parallel bargaining on a multi-employer basis, or on the basis of several subsidiaries of the same parent company. This, it found, forced an even greater focus on the single business, even in cases where the business might be part of a larger group of enterprises with common ownership and management.
The Committee observed that the level of collective bargaining should be decided by the parties themselves and not be imposed by law and noted that:
… legislation, which makes the entry into force of collective agreements subject to prior approval by the administrative authority, at the latter’s discretion, is incompatible with the Convention and a violation of the principle of autonomy of the parties. [65]
The Committee requested the government to indicate the measures taken or contemplated to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the Workplace Relations Act. It indicated that such measures should ensure that:
It should be noted that since the Committee of Experts made its observations in relation to the role of the Employment Advocate, the Workplace Relations Amendment (A Stronger Safety Net) Bill 2007 was passed. That bill amended the Workplace Relations Act to establish a fairness test for workplace agreements and create two new statutory agencies: the Workplace Authority and the Workplace Ombudsman. The Workplace Authority replaced the Employment Advocate—taking over many of its functions, as well as being given the additional functions of administering the fairness test and providing information and advice to employees and employers about workplace agreement-making and the Commonwealth’s workplace relations laws. The Workplace Ombudsman took over the functions previously undertaken by the Office of Workplace Services—including information, education, inspection, inquiry and enforcement roles. These changes have not addressed the concerns raised by the Committee of Experts.
The Committee of Experts had indicated the need to amend section 187AA of the Workplace Relations Act, which excluded negotiations over strike pay from the scope of collective bargaining. In 2007, the Committee observed that section 507 of the Workplace Relations Act, as amended by the Work Choices Act, prohibited payments for days off work due to industrial action. (For consideration of the right to strike see further below).
The Committee noted that the Work Choices Act extended the list of subjects over which negotiations are excluded, by forbidding negotiations and the reaching of an agreement over prohibited content. The range of matters constituting prohibited content is specified in regulations (sections 436 and 356 of the Workplace Relations Act). The Workplace Relations Regulations 2006, specify prohibited content in a non-exhaustive manner. [66] In addition to prohibiting these matters from being negotiated, the Workplace Relations Act, as amended by the Work Choices Act, also introduces a substantial financial penalty for a person who seeks to include prohibited content in an agreement, or who is reckless as to whether a term contains prohibited content (sections 365 and 407).
The Committee of Experts observed that the issues listed above as constituting prohibited content represented to a large extent the type of matters that have traditionally been subjects for collective bargaining. It said that, as a general rule, negotiation over such matters should be left to the discretion of the parties and indicated that:
… measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and the free and voluntary nature of collective bargaining. In the event of doubt as to the matters falling within the purview of collective bargaining, tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining could be a particularly appropriate method for resolving such difficulties.’ [67]
The Committee requested the government to consider tripartite discussions for the preparation of collective bargaining guidelines and to indicate in its next report any measures taken or contemplated to amend the Workplace Relations Regulations, 2006, and to ensure that any prohibited content of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.
Following the introduction of the Workplace Relations Act, the Committee of Experts indicated the need to amend section 170LT(10), which excessively restricted the opportunity for workers in a new business to choose their bargaining agent by enabling the employer to negotiate a greenfield agreement and pre-select a bargaining partner prior to the employment of any persons in the new business.
In 2007, the Committee noted the Workplace Relations Act, as amended by the Work Choices Act, had introduced a new category of greenfield agreement with a nominal life of no more than one year. [69] For this new category of agreement, the requirement for an agreement to be made with a trade union was removed. This enabled the employer to determine unilaterally the terms and conditions of employment through an employer greenfield agreement (that is, an ‘agreement’ made by the employer with the employer as the only party) (section 330 of the Workplace Relations Act). The changes also extended the scope of greenfield agreements beyond the establishment of a new business, project or undertaking to cover any new activity proposed to be carried out by a government authority, a body in which a government has a controlling interest or which has been established by law for a public purpose (section 323). The Committee also noted that the law had been amended to specify that a new project which is of the same nature as the employer’s existing business activities is included in the definition of ‘greenfield’.
The Committee concluded that:
… the inclusion of employer greenfields agreements, to the total exclusion of any attempts at good-faith bargaining, within the context of a much enlarged definition of new business to further include the very broad concept of ‘new activity’, coupled with the greater primacy of AWAs, would appear to seriously hinder the possibilities of workers in such circumstances from negotiating their terms and conditions of employment. [70]
The Committee has requested the government to indicate any measures taken or contemplated to amend the relevant provisions of the Workplace Relations Act, so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves. It has also called on the government to indicate that workers will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer—even if an employer greenfields agreement has been registered.
The Committee of Experts has also requested the Government to indicate the measures taken or contemplated to bring the Building and Construction Industry Improvement Act 2005 into conformity with the Collective Bargaining Convention, in particular with regard to:
This legislation has also been brought to the attention of the Committee on Freedom of Association which has made similar recommendations. [72]
The Committee of Experts has identified the need to amend sections 33-35 of the Higher Education Support Act 2003, and the Higher Education Workplace Relations Requirements. It regards these Acts as raising:
… obstacles to collective bargaining similar to those raised by the Workplace Relations Act 1996 … by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionised workers even where representative trade unions exist in the unit. [73]
In 2007, the Committee of Experts concluded by addressing key arguments of the government and employers, and stating:
The Committee observes, as it has already done on numerous occasions in the past, that a large number of provisions of the [Workplace Relations] Act have the effect of preventing the negotiating parties from exercising a free choice between different forms of bargaining. The Committee is particularly concerned by the primacy accorded to individual contracts (AWAs) over collective agreements in the [Workplace Relations] Act, the obstacles contained in this Act with regard to bargaining at any level above that of the workplace, and the express prohibition of bargaining over a very wide range of matters which normally constitute common topics in free and voluntary negotiations, as well as the heavy penalties incurred in case the parties try to negotiate such subjects. The Committee observes that the above measures can in no way be seen as measures to encourage and promote collective bargaining as they deny the parties any choice and restrict their bargaining autonomy and free will. In the Committee’s view, although the expressions ‘where necessary’ and subject to ‘national conditions’ found in Article 4 of the Convention allow for a wide range of different national practices in the implementation of measures for the encouragement and promotion of collective bargaining, they do not authorise in any way the introduction of disincentives, obstacles to, and downright prohibitions of negotiations which amount to a negation of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.’ [74] (Emphasis added.)
The Committee reiterated the request of the Conference Committee for the government to engage in consultations with the representative employers’ and workers’ organisations with respect to these matters. It also requested the government to provide detailed statistical data on the impact of the Workplace Relations Act and its most recent amendments on the number and coverage of collective agreements in the country.
Creighton and Stewart explain that:
Neither the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87) nor the Right to Organise and Collective Bargaining Convention 1949 (No. 98) makes any express reference to the right to strike. However, the right to strike is taken to be an integral part of the Principles of Freedom of Association developed by the Governing Body’s Committee on Freedom of Association, and is taken as read into Articles 3, 8 and 10 of Convention No 87. [75] By contrast, a right to strike in support of economic and social interests is expressly protected by the UN International Covenant on Economic, Social and Cultural Rights. [76] (Emphasis added.)
In
… the ILO’s supervisory bodies have criticised this regime, repeatedly emphasising that the right to strike should not be limited to industrial disputes that are likely to be resolved through the signing of a collective agreement. The right to strike extends to enabling workers to express their dissatisfaction through industrial action with economic and social policy matters that affect their interests. [78]
In addition to these general concerns, the Committee of