CHAPTER ELEVEN
Australia's International Standing
The International Labour Organisation
11.1 The International Labour Organisation (ILO) is the oldest continuing
international organisation, having been founded in 1919 as part of the
Treaty of Versailles. Originally part of the League of Nations, it survived
the demise of that organisation and in 1946 became a specialised agency
of the United Nations.
11.2 Unlike all other international organisations, the ILO has a tripartite
structure with delegates from government, organisations of employees
and organisations of employers.
11.3 There are 3 parts to the ILO: the International Labour Conference,
the Governing Body, and the International Labour Office.
11.4 The International Labour Conference (ILC), which meets annually,
is responsible for the adoption of formal international instruments
establishing international labour standards (known as conventions and
recommendations), the general oversight of the ILO's operation and budget,
and monitoring of action by member states to ensure the application
of ratified conventions.
11.5 The Governing Body of the ILO is responsible for planning the
work of the ILO on a day-to-day basis. It prepares the budget of the
ILO and determines the agenda for the ILC meetings. This includes deciding
which issues should be considered by the ILC as appropriate for the
adoption of conventions or recommendations. The Governing Body has a
number of standing committees, including the Committee on Freedom of
Association.
11.6 The International Labour Office is the permanent secretariat of
the ILO. Its functions, as set out in the ILO's constitution, include:
the collection and dissemination of information on all subjects
relating to conditions of labour in the international context;
the examination of subjects which it is proposed to bring before
the ILC with a view to the adoption of Conventions and Recommendations;
the conduct of special investigations ordered by the ILC or Governing
Body;
servicing all meetings of the ILO;
the provision of technical assistance to member states;
the administration of aid programs on behalf of other agencies such
as the UN Development Program and individual donor countries.
11.7 The establishment and supervision of international labour standards
is an important function of the ILO. An instrument establishing labour
standards may be adopted by the ILC if it is agreed to by a two-thirds
majority of delegates present and voting, although this final step usually
follows several years of investigation and consultation.
11.8 Once adopted, a Convention is open for ratification by member states.
There is no obligation to ratify. Where a Convention is adopted, each
member state is required to bring the Convention before the competent
authority (in Australia, the Parliament) 'for the enactment of legislation
or other action'. 'Other action' may consist of a decision not to ratify.
[1]
11.9 If a state does ratify a Convention, it becomes binding on that
state 12 months after the date of ratification. Ratification of the Convention
requires the country to maintain its law and practice in conformity with
the terms of the Convention. In some countries, notably the United States,
ratified Conventions have immediate effect in domestic law. In Australia,
however, ratified Conventions have no effect in Australian law until given
effect by legislation. [2]
ILO Conventions
11.10 Australia has ratified a total of 54 ILO Conventions, one of which
has subsequently been denounced by the ILO. [3]
11.11 A member state has an obligation under international law to ensure
its law and practice is in compliance with the Conventions it has ratified.
The ILO does not have any ability to enforce compliance with conventions,
other than the moral force exerted by international opinion.
11.12 However, the ILO does have a number of supervisory mechanisms
to review members' compliance with their international obligations.
There are two broad approaches:
the examination of the routine reports provided by each member state
advising on the effect given to each particular Convention and recommendation
by that state; and
the examination of complaints and representations alleging a failure
of a member state to honour its obligations under ratified Conventions
or under the ILO Constitution.
11.13 Member states are required to report to the International Labour
Office at regular intervals on the effect given to ratified Conventions
within their area of responsibility. Primary responsibility for the
examination of such reports rests with the Committee of Experts on the
Application of Conventions and Recommendations. This Committee is made
up of 20 eminent international jurists. If the Committee has concerns
that a member state may be in non-compliance with a Convention it may
decide to open a dialogue with the government concerned, which may take
the form of 'direct requests' or 'observations' or both. A 'direct request',
as the name suggests, is a direct communication between the Committee
and the government concerned. Direct requests are not published by the
ILO. However, many governments choose to make them public.
11.14 Observations are published in the Annual General Report of the
Committee of Experts and are an authoritative assessment of compliance
or non-compliance with the Convention concerned.
11.15 Under Article 26 of the ILO's Constitution, an industrial association
of employers or workers may make a representation to the International
Labour Office concerning any member state which has failed to observe
a Convention to which it is a party.
11.16 Such representations are normally referred to a Governing Body
Committee composed of one representative each of government, employer
and worker members. The Committee examines submissions from the Government
concerned and the association that made the representation. The Governing
Body then considers the report of the Committee and may direct that
the representation and the Government's reply be published.
11.17 Several submissions to the Committee questioned whether certain
provisions contained in the Workplace Relations Bill were in compliance
with Australia's international obligations under ILO Conventions and,
more generally, under certain United Nations Conventions.
11.18 The Department of Industrial Relations' submission, whilst emphasising
that Australia's fulfilment of international obligations depended on
the combination of Federal, State and Territory legislative practice,
generally rejected the contention that the Workplace Relations Bill
was in breach of Australia's international obligations.
Convention 87 - Freedom of Association and Protection of the Right
to Organise
11.19 The ILO's Committee of Experts on the Application of Conventions
and Recommendations has (in 1989, 1991 and 1993) expressed the view
that section 45D of the Trade Practices Act 1974 appeared to
render unlawful certain forms of activity which ought to be lawful under
Convention No. 87. DIR acknowledges the views expressed by the Committee
of Experts but rejects the conclusion of the Committee that the extent
of the legislation results in Australia's non-compliance with the Convention:
The Government considers that those exceptions [ie. the defences to secondary
boycotts permitted in the Bill], and the right to take protected action
in negotiating an agreement under the Industrial Relations Act, provide
appropriately for the right to strike, in the context of Australian law
and practice, and proposes to inform the Committee of Experts accordingly
in response to the most recent direct request … [4]
11.20 In evidence to the Committee, Mr Richard Naughton drew attention
to a conclusion made by the ILO Committee of Experts and noted that the
range of legal prohibitions on strike action contained in the Bill undermined
the recognised ILO principle of 'respecting the rights of workers and
their organisations to take strike action to protect and promote their
economic and social interests'. [5]
11.21 The ACTU's submission referred to the 1995 Direct Request of the
ILO Committee of Experts which sought advice from the Government on whether
any measures were being taken to bring Australian law into conformity
with the principle that workers should be able to take sympathy action
provided the initial strike they are supporting is itself lawful. The
ACTU concluded that the amendments made by the Bill further weakened Australia's
adherence to the Convention. [6]
11.22 The proposed limitations on unions' right of entry were also
canvassed as potentially in breach of Australia's obligations under
this Convention.
11.23 The International Centre for Trade Union Rights stated that:
The Workplace Relations Bill seeks to deny to unions the right of access
to workplaces which the principle of freedom of association embodies.
This constitutes a clear breach of Australia's international obligations.
Access to workplaces should be unlimited save for the reasonable restrictions
that are provided by the existing Industrial Relations Act 1988. [7]
ILO Convention 98 - Right to Organise and Collective Bargaining Convention
11.24 This Convention requires that measures appropriate to national
conditions be taken, where necessary, to encourage and promote the full
development and utilisation of machinery for voluntary negotiation between
employers (or their organisations) and workers' organisations, with
a view to the regulation of terms and conditions of employment by collective
agreements.
11.25 The submission from the Department of Industrial Relations concluded
that: 'the proposed new arrangements could not reasonably be seen as incompatible
with ILO C87 (freedom of association) or C98 (collective bargaining).'
[8] However, a number of other submissions,
particularly that of the International Centre for Trade Union Rights,
reached quite the opposite conclusion.
11.26 The submission presented by the International Centre for Trade
Union Rights was prepared by a Panel of Experts on international labour
law including Professor Breen Creighton from La Trobe University and
Professor Keith Ewing of London University, together with several lawyers
practising in industrial law from Australia and the UK.
11.27 The primary difference between the arguments of those submissions
which claimed that the Bill was in compliance with ILO C98 and those
which claimed non-compliance was their view of what the requirements
to 'encourage and promote' meant.
11.28 The submission from International Centre for Trade Union Rights
outlined eight internationally recognised principles for collective
bargaining:
collective representation and collective agreements should be promoted
and encouraged and have primacy over individual representation and
individual agreements;
employees and their unions must be lawfully able to engage in industrial
action and advance claims made in the bargaining process;
in collective bargaining, employees should be represented by representative
workers' organisations, or in the absence of such organisations, representatives
of workers duly elected and authorised by them;
employers should recognise for the purpose of collective bargaining
the main unions represented in the undertaking or the most representative
of those unions;
in keeping with the principles of freedom of association and the
right to negotiate freely about terms and conditions of employment,
the scope of collective agreements ought not be restricted by the
authorities;
collective bargaining should be possible at any level, whether at
enterprise level or at the industry, regional or national level;
employers' and workers' organisations should bargain in good faith
making every effort to reach an agreement; and
workers' representatives should enjoy such facilities as may be necessary
for the proper exercise of their functions, including the right of access
to workplaces. [9]
11.29 The Department of Industrial Relations stated in its submission
that Australia's obligation is achieved 'by providing for organisations
of employees to be able to seek agreements with employers for certification
and to be able to use their right to engage in protected industrial action
to support or advance the claims against the employer'. [10]
11.30 In the view of International Centre for Trade Union Rights, none
of the above eight principles are adequately met by the provisions of
the Bill. Its submission examined in detail how the Bill failed to meet
those principles (such as giving individual representation and individual
agreements primacy over collective representation and collective agreements,
and by placing on the same footing union and non-union collective agreements).
In their view, it was not enough for negotiating collective agreements
to be merely one option among many. The expression 'encourage and promote'
requires more.
ILO Convention 158 - Termination of Employment at the Initiative of
the Employer
11.31 As discussed above, the Department of Industrial Relation's submission
emphasised that Australia's compliance with international obligations
is not just to be ascertained by reference to Commonwealth legislation
and practice, but must also consider State and Territory law and practice.
In relation to ILO C158 the Department stated that: 'the Government intends
that certain Articles of this Convention will in future be given effect
by the separate Federal and State unfair dismissal systems, with the remaining
Articles being given effect by a range of means, but with compliance secured
by provisions in the proposed Workplace Relations Act as a safety net'.
[11]
11.32 As described in Chapter 10 (Paragraphs 10.27-10.29), the Commonwealth
Government is essentially vacating the field in relation to harsh, unjust
or unreasonable dismissals, except in relation to Federal award employees,
the Commonwealth's employees and employees in the Territories. Non-Federal
award employees in the States will have protection against unfair dismissal
through their respective State systems.
11.33 Attachment 2 of the Department's submission gives a detailed
discussion of Australia's obligations under ILO C158 and includes a
table summarising the extent to which State legislation is in compliance
with the various articles of the Convention. In relation to a significant
number of articles, the table indicates that compliance in the States
'depends on practice'. This means that the state legislation itself
does not secure compliance and is dependent on the principles developed
by the responsible tribunal.
11.34 It is in relation to the Victorian system that significant questions
of non-compliance are raised. The Department's table identifies two
areas in which Victoria's system fails to comply with the Convention
- namely, the complete exclusion of all casual employees (rather than
just those engaged for a short period of time) and the prohibition on
the payment of compensation except where re-employment is also awarded.
11.35 It is quite clear that for Federal nations, such as Australia,
where there is a division of legislative responsibility between the
Federal Parliament and constituent States, compliance with international
obligations must, in some circumstances, be achieved by a mix of State
and Federal legislation and practice (see Article 19(7) of the ILO Constitution).
However, it is the Federal Government which ratifies conventions and
which has the responsibility at international law of ensuring compliance.
11.36 It is this abdication of responsibility which was criticised
by Professor Andrew Stewart, Professor and Dean of the School of Law,
Flinders University:
Bound - whether it likes it or not - by the previous ratification of
ILO C158, it should assume responsibility for ensuring compliance and
open its system to applications from all workers, whether Federal award,
state award or award-free … [12]
11.37 Professor Stewart was also critical of four other aspects of
the Termination of Employment Schedule which may also not comply with
the Convention, the first two of which are already contained in the
Act.
11.38 These are:
the exclusion of 'higher' paid employees relying on the ability
to exclude 'limited categories of employment persons in respect of
which special problems of a substantial nature arise'; and
the restriction of the amount of compensation awarded to 6 months
remuneration, or $30,000 (whichever is less).
11.39 Professor Stewart contended that no evidence had been presented
as to the nature of the 'special problem' associated with employees who
earn more than $60,000 and questioned why access to a 'fair go all round'
should be determined by the size of an employee's pay packet. This aspect
of the legislation was also questioned by Mr Tony Macken of AJ Macken
and Co, Solicitors who submitted that '[I]f an injustice occurs it should
not be left without a remedy' [13].
11.40 The Association of Professional Engineers, Scientists and Managers
Australia (APESMA) was critical of the $30,000 cap on limitation. As
the union representing more highly paid professional employees, APESMA
was of the view that this cap did not provide adequate compensation
for its membership:
In our view it should be $60,000, but [in any case] certainly higher
than it is now, because it does not do much to assist those in the workforce
who are covered by awards and whose salaries - the profession groups are
the key groups in this regard - are much greater that the cap of $30,000
to start with. Our plea to the Committee is that it should consider doing
something in this area. [14]
11.41 The two further areas of possible non-compliance were:
the Bill's requirement that the Commission take into account the
effect of any award on the 'viability' of an employer's business;
the failure of the Bill to specify that the employee must not bear
the burden of proof as required by Article 9 of the Convention.
11.42 Professor Stewart queried whether this blanket limitation complies
with Article 10 of the Convention which requires 'adequate compensation'
where reinstatement is impracticable, and the relevance of the state of
an employer's business to the amount of compensation which the applicant
deserves. [15]
ILO Convention 100 - Equal Remuneration for Men and Women Workers
for Work of Equal Value
11.43 Division 2 of Part VIA of the Industrial Relations Act provides
that the Commission may make such orders as it considers appropriate
to ensure that, for employees covered by such orders, there will be
equal remuneration for work of equal value. The Commission may only
make such an order on application of an employee who would be covered
by the order, a trade union whose members would be covered, or the Sex
Discrimination Commissioner.
11.44 The Workplace Relations Bill repeals Division 2 of Part VIA of
the Act. The Explanatory Memorandum says that: 'while the AIRC will continue
to play an important role in ensuring its awards and agreements are not
discriminatory, the appropriate mechanism through which complaints of
discrimination will continue to be handled is the Human Rights and Equal
Opportunity Commission.' [16]
11.45 In relation to awards, the Commission is required to ensure a
safety net of fair minimum wages and conditions having regard to, inter
alia, the need to apply the principle of equal pay for work of equal
value, without discrimination based on sex (proposed paragraph 88B(2)(g)).
11.46 The Minimum Conditions Schedule, which stipulates the minimum
conditions for certified agreements and AWAs, requires that the rates
of pay of an employee be determined on the basis that a man and a woman
employed by the same employer must receive equal pay for work of equal
value without any discrimination on the ground of sex (proposed section
170XM).
11.47 These proposals have been criticised, in part, for their alleged
failure to comply with Australia's obligations under ILO C100.
11.48 Of particular concern was the replacement of the term 'remuneration'
with 'pay'. The ILO Convention expressly uses the term 'remuneration'
which is defined in Article 1 to include the ordinary, basic or minimum
wage or salary and any additional emoluments whatsoever payable directly
or indirectly, whether in cash or in kind, by the employer to the worker
and arising out of the worker's employment.
11.49 The term 'pay' is not defined in the Bill and it will therefore
be up to the Commission, and ultimately the Court, to determine the
precise scope of the protection. It is, however, well accepted that
the term 'pay' is more restrictive than 'remuneration'.
11.50 Currently, women earn only 54% of the over award payments of men.
The equal remuneration provisions of the Industrial Relations Act were
designed specifically to redress this inequality in over-award payments
and the effect of the proposed return to 'equal pay' will be to prevent
the redress of this inequality. There was a consensus that returning to
the concept of 'equal pay' rather than 'equal remuneration' was equivalent
to returning to the 1970s definition of equal pay. [17]
11.51 The Commission will ensure that the minimum conditions contained
in awards and the terms and conditions of certified agreements are not
discriminatory, but it will no longer have a role in ensuring that over-award
payments are non-discriminatory. This will be the responsibility of
the Sex Discrimination Commissioner and the Human Rights and Equal Opportunity
Commission.
11.52 The Australian Chamber of Commerce and Industry stated that access
to Human Rights and Equal Opportunity Commission would be a full and
adequate remedy for dealing with discriminatory over-award payments
and went on to argue that
…discriminatory over-award payments are not a major problem in Australia
today because all the evidence points to over-award payments being set
overwhelmingly on market not discriminatory grounds. [18]
11.53 The submission of the Human Rights and Equal Opportunity Commission
(HREOC) rejected the contention that access to the Sex Discrimination
Commissioner is an acceptable method of redress, for two reasons. [19]
Firstly, because the determinations of HREOC are not enforceable (following
the Brandy decision of the High Court [20]).
Secondly, the remedies available from HREOC are aimed at returning the
complainants to the positions they were in, or should have been in, had
the discrimination not occurred. That is, HREOC provides redress for harm
suffered to date. This may include lost wages and damages for humiliation,
hurt feelings, etc. This contrasts sharply with the remedies currently
available in the industrial jurisdiction, where broad orders can be made
applying to all relevant employers and employees, present and future,
which actually remedy the problem rather than the harm experienced.
11.54 At the present time, if the Sex Discrimination Commissioner makes
a determination that discrimination has occurred and awards a sum in compensation
for the damage suffered, that determination is not enforceable. Thus,
if an employer chose not to comply, the person affected would have to
take another case to the Federal Court to obtain a remedy. The Government
has yet to indicate what solution it proposes to overcome the difficulties
raised in the Brandy decision. [21]
However, any system in which a person may have to commence two separate
proceedings to obtain a remedy (including one which may involve considerable
legal expense) compares very unfavourably with the current remedies available
through the AIRC.
11.55 The second point, that the AIRC has the ability to make awards
and orders which apply to all workers who are suffering from the same
discriminatory conduct regardless of whether or not they are joined in
an application (or perhaps even unaware of the discrimination), was noted
by a number of other witnesses. [22]
11.56 The relevance of the equal pay requirement in the case of AWAs
was also the subject of much comment by witnesses. The minimum condition
(in proposed section 170MX), discussed above, applies to persons covered
by AWAs. However, unlike certified agreements, the contents of AWAs
are not checked to ensure compliance with the minimum conditions. They
are merely filed with the Employment Advocate.
11.57 As AWAs are not public documents, the only way a female employee
would discover that she was not being paid the same as a male colleague
would be if that colleague or her employer happened to reveal the details
of the other AWA. The Legislative Overview provided with the Workplace
Relations Bill, advises that 'claims that AWAs breach the equal pay standard
could, like other claims, be raised with the Employment Advocate and taken
to the Court'. [23]
11.58 HREOC's submission recommends that the Employment Advocate be required
to scrutinise AWAs to ensure compliance with the minimum conditions, including
that on equal pay. [24]
11.59 The Australian Chamber of Commerce and Industry rejected claims
that the Bill and the other existing remedies do not constitute adequate
compliance with the Convention. [25]
However, ACCI did not address the difficulties outlined by HREOC.
11.60 The issue of adequate resourcing of HREOC was also raised by a
number of opponents of the Bill. Women for Workplace Justice submitted
that waiting periods from point of complaint to conciliation regularly
exceed 12 months. [26]
11.61 It would appear that the Government's views of its obligations
under the Equal Remuneration Convention are quite narrow, that it is
sufficient compliance if an individual who can prove discrimination
has access to a remedy (however expensive). The majority of witnesses
sought a broader, more expansive view whereby systemic discrimination
could be addressed.
Conclusions
11.62 The majority of the Committee does not believe it is in a position
to conclude whether the Bill is in compliance with Australia's international
obligations.
11.63 However, the majority of the Committee notes the evidence suggesting
areas of non-compliance, particularly that evidence given by the International
Centre for Trade Union Rights.
11.64 Accordingly, the majority of the Committee feels justified in
highlighting the following doubts about the Bill:
- that Bill's equivalent of former sections 45 D & 45E of the
Trade Practices Act 1974 are not in compliance with Convention
No. 87;
- that the union right of entry provisions may not be in compliance
with Convention No. 87;
- that the Bill does not `encourage and promote collective bargaining'
and therefore is not in compliance with Convention No. 98;
- that the vacation by the Commonwealth of much of the field concerning
termination of employment the concomitant reliance on State systems
will cause Australia to be not in compliance with Convention No. 158;
- that the Bill's treatment of the issue of equal remuneration for
men and women workers for work of equal value will be in non-compliance
with Convention No. 100.
11.65 Given these strong doubts, the majority of the Committee is concerned
that the Bill may be subject to complaints regarding alleged non-compliance
with those International Conventions which Australia has ratified. It
is the majority of the Committee's view that the Government should take
all necessary steps to avoid breaching accepted ILO standards.
11.66 Ultimately, however, the majority of the Committee recognises
that the Government must bear the responsibility if complaints are made
and upheld. Indeed, should any of the provisions of the Bill be found
by the ILO Committee of Experts not to comply with Australia's international
obligations, the majority of the Committee would hope and expect that
the Government would act appropriately so as to ensure that Australia
meets its obligations under international law and that our international
relations are not adversely affected.
11.67 Government Members of the Committee disagree with the above conclusions.
J A Collins
Chair
Footnotes
[1] Article 19(5)(b) of the ILO Constitution.
[2] This position has been somewhat qualified
by the High Court's decision in Minister for Immigration & Ethnic
Affairs v. Teoh (1985) 183 CLR 273 where it held that in the absence
of statutory or executive indications to the contrary, the applicant
had a legitimate expecation that the administrative decision makers
would act in conformity with the Convention (namely, the Convention
on the Rights of the Child).
[3] Being Convention No 45 Underground Work
(Women) 1935, which was no longer relevant or appropriate to modern
conditions.
[4] Submission No. 1016, p. 57, Department
of Industrial Relations.
[5] Submission No. 1159, p. 4, Mr Richard
Naughton, University of Melbourne.
[6] Submission No. 1017, p. 82, Australian
Council of Trade Unions.
[7] Submission No. 904, p. 12, International
Centre for Trade Union Rights.
[8] Submission No. 1016, p. 53, Department
of Industrial Relations.
[9] Submission No. 904, pp. 9-10, International
Centre for Trade Union Rights.
[10] Submission No. 1016, p. 53, Department
of Industrial Relations.
[11] Submission No. 1016, p. 62, Department
of Industrial Relations
[12] Submission No. 1253, p. 7, Professor
Andrew Stewart.
[13] Submission No. 443, p. 10, Mr A.J. Macken.
[14] Evidence, p. E1927.
[15] Submission No. 1253, p. 11, Professor
Andrew Stewart.
[16] Submission No. 1016, p. 57, Department
of Industrial Relations.
[17] See Evidence, p. E 896, Professor R.C.
McCallum.
[18] Submission No. 905, p. 40, Australian
Chamber of Commerce and Industry.
[19] Submission No. 923, p. 20, Human Rights
and Equal Opportunity Commission.
[20] Brandy v. Human Rights and Equal
Opportunity Commission & Ors (1995) 183 CLR 245.
[21] The Attorney-General, the Hon. Daryl
Williams QC, has since outlined the Government's proposed response to
the Brandy decision announcing the establishment of a Human Rights Registry
within the Federal Court, with HREOC being substantially reformed; see
Katharine Murphy, The Australian Financial Review, 9 August 1996,
p.2.
[22] See for example, Submission No. 927,
p.45, National Pay Equity Coalition.
[23] 'The Reform of Workplace Relations -
Legislation Guide', p. 23, Department of Industrial Relations, May 1996.
[24] Submission No. 923, p. 44-46, Human
Rights and Equal Opportunity Commission.
[25] See for example, Submission 905, p.
40, ACCI.
[26] Submission No. 1020, p. 11, Women for
Workplace Justice.