Chapter 3 - International obligations
In 1996, the Majority Committee Report on the
Workplace Relations and Other Legislation Amendment Bill expressed
concerns about the possibility that some of the proposed amendments, if
enacted, would result in Australia breaching its international obligations
under certain International Labour Organisation (ILO) Conventions.
This warning proved to be well founded. The ILO
Committee of Experts has now considered and criticised the 1996 amendments in
two separate observations.
We preface our remarks by noting the Committee of Experts’ comments concerning
the general complexity of the Act, and their hope that ‘the Government will
make available simplified summaries of the legislation to workers and employers.’
The Labor Senators concur with this suggestion.
Impact of the Workplace Relations Act
The evidence available to this Committee clearly
indicates that the introduction of the WR Act has placed Australia in breach of
its international obligations. In this regard, it is useful to review the
specific comments made by the Committee of Experts on the WR Act. Extracts from
the Committee of Experts’ observations regarding ILO Convention 87 Freedom of
Association and Protection of the Right to Organise, and Convention 98 Right to
Organise and Collective Bargaining, are set out in Appendix 1.
The Department has been at pains to minimise the
potential embarrassment and damage to Australia’s reputation as a good
international citizen arising from the passage of the 1996 amendments, and the
apparent conflict between those amendments and our international obligations
under these ILO Conventions.
For instance, the Department suggests at
paragraph 98 of section A(i)(k) of their submission that there were ‘only a
small number of provisions of the Act about which the ILO Committee of Experts
has expressed concerns’.
This statement is disingenuous, as the observations express concerns about two
of the central features of the 1996 Act: those dealing with bargaining, and the
rights of unions and their members. These observations should not be viewed
lightly, and the quantity of the observations has no bearing on the important
substance of the Committee of Expert’s comments.
The Department also submitted that the Committee
of Experts made their observations without the benefit of the Government’s full
explanation. In a supplementary answer to a question on notice from this
Committee, the Department even suggested that ‘The CEACR’s observations
resulted in large part from representations made to the ILO by the Australian
Council of Trade Unions (ACTU), in some cases without the value of the
Government’s response’. The Government also made this contention to the ILO
Conference’s Committee on the Application of Standards.
The ILO Committee of Experts include eminent
jurists and the world’s foremost experts on international labour law, whose
charter is as follows:
The Committee’s fundamental principles are those of
independence, impartiality and objectivity in noting the extent to which the
position in each State appears to conform to the terms of the Conventions and
the obligations accepted under the ILO Constitution.
It is astounding that the Government would
suggest that the Committee of Experts had failed to seek its views in evaluating
the extent to which Australia’s laws comply with its international obligations,
and frankly embarrassing that the Government would attempt to claim that the
Committee’s findings were biased in favour of trade union submissions.
The Government clearly believes that the world’s
foremost international labour lawyers’ observations were poorly founded, and
incorrect. The Labor Senators assume that this is also why the Government is
conducting ‘continuing dialogue’ with the ILO regarding the observations, in
attempt to persuade the ILO that that Committee of Experts were wrong. This
dialogue was referred to by the Department in evidence before the Committee:
...the dialogue is of a nature where the government is trying to
convince the ILO that it is wrong.
The Labor Senators do not accept the
Government’s position regarding the Committee of Experts’ observations on a
number of grounds. Firstly, there is evidence that the experts, at least in
their observation concerning Convention 87, had before them all the relevant
information, including the Government’s views. The Committee of Experts made
the following introductory statement to their observation:
The Committee notes the information provided in the
Government’s report, in particular the adoption of the Workplace Relations
Act 1996, which according to the Government, substantially
amended the Industrial Relations Act 1988, and the recent adoption
of legislation in certain States: the Labour Relations Legislation Amendment
Act, 1997, of Western Australia, amending the Industrial Relations Act, 1979;
the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997,
of Queensland; and the Industrial Relations Act, 1996, of New South Wales. The
Committee also takes note of the comments of the Australian Council of Trade
Unions (ACTU) and the National Union of Workers (New South Wales Branch), and
the Government replies to these comments. (emphasis added).
As for the observation relating to Convention
98, there is a possibility that the Government were late in responding to the
Committee of Experts:
Apparently the Government had not replied within a reasonable
time, because the Committee of Experts had received it too late – probably
during the Committee of Experts’ meeting in December – to be considered. The
Worker members deeply deplore this negligence on the part of the Government.
The Department also attempted to convey to the
Committee the impression that the ILO does not view the potential breaches of
Conventions 87 and 98 as a serious matter. Although never explicitly expressed,
the Department’s supplementary response on this issue makes a calculated effort
to communicate this view:
If the CEACR had considered that it wanted an urgent response to
its observations on Conventions 87 and 98, it would have asked Australia to
report in the following year.
As the Department submits, it is true that the
CEACR did not ask Australia to report the following year. However, the
Department failed to mention that the Committee on the Application of Standards,
to whom the CEACR reports, did ask Australia to report the following year.
We question the value, if any, of the
Government’s ‘continuing dialogue’. In particular, we question whether the
dialogue holds any likelihood of success - which in the Department’s and the
Government’s terms no doubt means convincing the ILO and the Committee of
Experts that their observations concerning Convention 98 and perhaps Convention
87 are incorrect.
It is the view of the Labor Senators that we
should accept the Committee of Experts’ assessment of the 1996 legislation, and
their interpretations of the relevant ILO Conventions. The Committee of Experts
includes the world’s foremost authorities on international labour law, and
eminent jurists completely capable of understanding and interpreting the
provisions of the WR Act.
The Department’s evidence to this inquiry
appeared to give the impression that ‘dialogue’ is the full measure of our
requirements and duties as an ILO member. We contend that this is not only
wrong, it is mischievously wrong. Australia, as a sovereign state, has ratified
ILO Conventions 87 and 98. The ratification of international conventions brings
with it obligations under international law. States must comply with
international obligations that they have voluntarily entered into with
responsibility and integrity. It is not acceptable for a state to simply breach
its obligations at international law. If the Government seriously considers
that these obligations are no longer relevant, or inappropriate, then there are
formal mechanisms for repudiating the conventions.
The Committee of Experts in their observation
concerning Convention 87 (where they had the full benefit of the Government’s
views) perhaps best express our obligations:
The Committee hopes that the Government will indicate in its
next report measures taken or envisaged to amend the provisions of the
Workplace Relations Act referred to above, to bring the legislation into
conformity with the requirements of the Convention.
The Government’s continuing refusal to address
these significant problems raises two possibilities. Either the Department is
not competent to deal with such matters, or the Government is deliberately
determined to ignore Australia’s obligations under ILO Conventions and is
willing to bring Australia into disrepute in the international community of
nations as a consequence.
The Labor Senators recommend that the Government
immediately comply with the Committee of Experts’ request to provide an outline
of measures that will be taken to amend the WR Act to bring the Act into
conformity with Australia’s international obligations.
The Labor Senators also suggest that the
Government review its current approach to the ILO, and take a more serious and
considered attitude to Australia’s participation in the development and
implementation of international labour standards. In this regard, the Labor
Senators note that the Government made completely inappropriate representations
to the 1999 International Labour Conference, informing the ILO that the
Australian Government supported pregnancy testing of women by employers before
This would seem to have been either a sick joke or the result of complete
incompetence, and will bring Australia into disrepute within the international
Amendments proposed in the Bill
The rest of this chapter deals with the proposed
amendments to the Act set out in the Bill, and their potential impact on
Australia’s international obligations. Despite the criticisms of the WR Act by
the ILO Committee of Experts, it appears that the Government is determined to
bring further shame and embarrassment to the nation by enacting more amendments
that would place Australia even further in breach of its international
It is the very real fear of the Foundation that certain aspects
of the proposed legislation will run counter to these charters of civil and
political rights and that the good standing in which Australia is generally
held in the family of nations may be further impugned by possible future
negative determinations by the...Committee of Experts, such as occurred after
the passage of the Workplace Relations Act 1996...The new suggested reforms
contained in [the Bill] would seem to invite further hostile criticism by the
Committee of Experts. Quite simply these suggested reforms would put Australia
at odds with our clear obligations under Conventions 87...and 98...
Right of entry
Convention 87 protects two basic rights: the
right of workers and employers to form and join organisations of their choice,
and secondly, the organisational autonomy of trade union and employer
In interpreting the principles of freedom of association and the
right to organise, the Freedom of Association Committee of the Governing Body
of the ILO has held that: Workers representatives should enjoy such
facilities as may be necessary for the proper exercise of their functions,
including the right of access to workplaces.
Schedule 13 of the Bill tightens provisions for
the right of entry of unions into workplaces. The Bill imposes a stringent and
heavily regulated system of access to the workplace. The proposed amendments
compound what are already stringently regulated access rights of unions from
the 1996 Act. The provisions would probably also not conform with the
provisions of Convention No. 35, Workers’ Representatives 1971, which Australia
Restrictions upon union entry rights and the
resulting limits upon investigating breaches of industrial law, undermine
workers fundamental rights of freedom of association and the right to
collectively organise. Stronger regulation of entry rights restrains the
essential service of monitoring compliance with industrial instruments not only
for existing members but also to eligible members in the workplace.
Under the Bill proposals, people who are not
union members would not be able to invite a union to their workplace to meet
with them or to investigate possible award or agreement breaches. People who
are not presently union members would therefore be denied the ability to freely
associate and the right to organise:
The 1999 Bill...curtails even more seriously the right of unions
to organise employees. Under the Bill, a non-member would not be able to invite
a union representative into their workplace either for the purpose of
investigating a suspected breach or for the purpose of holding discussions with
that person. This severely limits the freedom of association of individuals and
the rights of unions to organise.
The 1996 Act was criticised for breaching
Convention 87 on the grounds that the subject matter of lawful or protected
strikes was limited. The WR Act prohibits the right to strike in negotiation of
multi-employer agreements and grants wide scope to the Commission to terminate
a bargaining period, which limits the capacity to take industrial action. The
very fact that a differentiation is made between protected and non-protected
action, and penalties are set to remedy unprotected action that does take
place, impinges on ILO standards of the basic right of all workers’ to withdraw
their labour and strike.
The proposed amendments would compound
Australia’s current breaches of international obligations by ‘strengthening’
section 127 orders so that they are available almost automatically and in a
broader range of circumstances, by outlawing ‘pattern bargaining’ and by
broadening the circumstances in which the Commission would be required to
suspend or terminate bargaining periods:
- Section 170ML would ensure that only unionised employees whose
employment is to be covered by the proposed certified agreement can undertake
- Section 170LG, the pattern bargaining provision, introduces an
exacerbation of an already existing breach of international conventions by the
WR Act. It requires the Commission to refuse an application for a secret ballot
to allow protected strike action to take place if pattern bargaining is
considered to exist. The 1996 amendments were criticised by the experts for the
excessive restrictions imposed upon multi-employer and industry wide agreement
- The 1996 Act was criticised by the ILO experts because of section
‘170MW Power of Commission to terminate a bargaining period’. The 1999 Bill
goes further in the offending direction. For example, the Commission must
arbitrarily suspend a bargaining period after 14 days of protected industrial
action to allow for a ‘cooling off’ period for negotiations to take place
between the parties. A bargaining period can now also be suspended if unprotected
industrial action takes place during negotiations.
The International Centre for Trade Unions Rights
provided a detailed critique of the proposed amendments to industrial action
The net effect of these amendments will be to take Australia
even further out of compliance with our industrial obligations regarding the
right to strike.
The Bill would also curtail the ability of
workers to collectively organise and take industrial action by introducing a
requirement for secret ballots (schedule 12):
By placing restrictions on the right of people to unite for the
common purpose of taking action to seek better working conditions, the
Australian Government are in breach of the Convention for the Right to Organise
and Collective Bargaining...The introduction of secret ballots is likely to
isolate workers and break up the group spirit.
The extensive regulation of the process of
conducting a secret ballot contravenes the principle that organisations should
be free to organise their administration and to formulate their programs. The
International Labour Office was critical of similar provisions in the Western
Australian Labour Relations Amendment Bill 1997.
A group of eighty industrial lawyers has
described the secret ballot rules as ‘cumbersome, complex, and time consuming’. They argue that that the aim
is purely to make it more difficult for employees to take industrial action.
The ACTU goes one step further, describing the secret ballots provisions as an
attempt to nullify industrial action all together.
Collective bargaining has long been recognised
in international law as critical in addressing the inherent imbalance in the
The Committee of Experts condemned the clear
bias to individual agreement making over collective bargaining in their 1998
report. The 1999 Bill takes another step away from collective bargaining. The
promotion of AWAs and individual agreements continues to undermine the
collective bargaining process and in all likelihood exacerbate the breaches of
ILO conventions identified.
The 1999 Bill proposes that the process leading
to AWAs be further simplified and streamlined. AWAs are to be given primacy
over federal, state awards and certified agreements, and do not include a role
for unions, or the institutional framework that protects the rights of workers
in an unequal bargaining situation.
Some AWAs are offered on a ‘take it or leave it basis’, which illustrates most
graphically the logic behind the encouragement of collective bargaining, as
enunciated in Convention 98. Notably, neither these amendments, nor those
proposed in 1996, proposed penalties for refusing to hire someone if they have
no desire to sign an AWA.
The submission by the Department to the Inquiry
asserts that the Committee of Experts’ judgement of the WR Act on this issue
was unjustified. The explanation provided is ‘while the WR Act does not require
collective bargaining for AWAs, it does not prohibit or prevent collective
This explanation is facile. The Bill may allow access to collective bargaining
but clearly individual agreement making is encouraged over collective
bargaining. The convention is clear: it requires the promotion of collective
Labor Senators also note that the Government
indicates in the most recent Article 22 report to the ILO on Convention 98 that
‘when a certified agreement has been certified and is in operation, the
certified agreement prevails over an inconsistent Australian Workplace
Agreement which takes effect during that period.’ This statement was presumably
made in defence of the Government’s position that the WR Act does not undermine
collective bargaining so is therefore not in breach of the Convention.
Unfortunately, the Government will no longer be
able to rely on this argument if the Bill is enacted. The proposed amendments
would ensure that individual AWAs take precedence over collective certified
During its period of operation, an AWA operates to the exclusion
of any certified agreement or old IR agreement that would otherwise apply to
the employee’s employment...
Before moving away from collective bargaining
and the framework of bargaining established by the WR Act, it is discussed
elsewhere in this report (Chapter 7 ‘The needs of workers vulnerable to
discrimination’) that the deregulated bargaining environment created by the WR
Act has had a negative effect on equal remuneration for women, with the gender
pay gap appearing to increase. In this context, the WR Act purports to ensure
equal remuneration under Division 2 of Part VIA, to give effect to
Anti-Discrimination Conventions and Equal Remuneration Convention. The
Government clearly needs to assess the interaction of the bargaining framework
established by the WR Act and Australia’s obligations under these conventions
This report does not pretend to provide a
complete review of the evidence before the Committee that dealt with the issue
of Australia’s international obligations. Within the limitations of this
report writing process, the most obvious examples are dealt with. There were
many other examples bought to our attention.
The ‘reforms’ that are being pursued by the
Government are largely an extension of the 1996 amendments. The Bill would
further extend Australia’s non-compliance with international standards without
attempting to rectify the previously identified breaches.
The general theme of all submissions dealing
with this area was, however, consistent. Almost without exception, those whose
submissions dealt with this issue concluded, as we do, that the provisions of
this Bill will again put Australia out of step with the international
community, and make us again the subject of an embarrassing review of our
legislation by the relevant ILO bodies. The only exception is the submission of
the Department, representing the Government, which, given the foregoing, cannot
be accorded any weight.
Labor Senators recommend the Act be amended to
ensure Australia is able to meet its international obligations regarding labour
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