2008 Annual Survey of violations of trade union rights - Australia

Population: 21,300,000
Capital: Canberra
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 182

The Howard Government's industrial relations laws continue to impact harshly on workers and trade unions. Employers used the laws to move workers from collective agreements onto individual statutory agreements and to refuse to bargain with unions, even where a majority of workers had indicated their preference for a union collective agreement. Heavy fines were imposed on construction workers and trade unions who took industrial action over safety concerns.

Trade union rights in law

The law establishes freedom of association for workers, including those in the public sector, and the right to bargain collectively, but increasing restrictions have been imposed on those rights. Even prior to the coming into force in March 2006 of the Workplace Relations Amendment (Work Choices) Act 2005 ("the Work Choices legislation") Australian law fell short of meeting internationally recognised standards in respect of freedom of association and the right to bargain collectively.

In particular, the Workplace Relations Act 1996 ("WRA"):

• Placed union and non-union agreements on the same footing;

• Prohibited industrial action in support of multi-employer agreements;

• Did not require employers to negotiate with unions even when its employees were union members and wished to be represented in bargaining by their union;

• Provided for individual Australian Workplace Agreements (AWAs) which were privileged over collective agreements;

• Restricted industrial action, including provision for court orders and financial penalties in cases such as where the action could damage the Australian economy or where it involved sympathy or protest action.

In spite of repeated requests from the ILO's Committee of Experts on the Application of Conventions and Recommendations (the CEACR) to review and amend the WRA, the Government's Work Choices legislation has taken the WRA even further away from compliance with the relevant ILO Conventions. In 2007, the CEACR observed that it was " ... particularly concerned by the primacy accorded to individual contracts (AWAs) over collective agreements in the WR Act, the obstacles contained in this Act with regard to bargaining at any level above that of the workplace, and the express prohibition of bargaining over a very wide range of matters which normally constitute common topics in free and voluntary negotiations, as well as the heavy penalties incurred in case the parties try to negotiate such subjects. The Committee observes that the above measures can in no way be seen as measures to encourage and promote collective bargaining as they deny the parties any choice and restrict their bargaining autonomy and free will."

Collective bargaining: Work Choices further restricts the ability to bargain at a multi-employer or industry level. Pre-authorisation and subsequent approval is required from the Employment Advocate (EA) after private deliberations, where previously this occurred in an open hearing by the Industrial Relations Commission (IRC).

Industrial action in support of multi-employer agreements remains unlawful, as was previously the case, but this is broadened by a new prohibition on "pattern bargaining", that is, the pursuit of common claims against a number of employers although there is a preparedness by the union to negotiate each agreement separately. The ban on pattern bargaining applies even to subsidiaries of the same parent company.

Individual agreements: Work Choices substantially strengthens the place of individual AWAs in the industrial relations system. AWAs are no longer subject to collective agreements during the term of those agreements. This means that an employer is free to offer to all employees, and to require new employees to sign, inferior AWAs even where there is a collective agreement in place binding the employer in respect of all employees. This totally undermines the integrity of any collective bargaining process.

The incentives for employers to require AWAs have also been greatly increased. Under Work Choices, AWAs initially had to include only five minimum conditions (minimum wage, annual leave, sick leave, unpaid parental leave and maximum weekly working hours) rather than being measured against comprehensive industrial awards, meaning that they substantially undercut employees' previous wages and working conditions. In mid 2007, a new 'fairness test' was introduced through the Workplace Relations Amendment Act, under which AWAs have to be vetted by the Workplace Authority (WA) to ensure that 'fair compensation' is given for the removal of certain award conditions. This test contains major loopholes, however, including the fact that it does not apply to the 300,000 workers on existing AWAs, does not ensure that workers receive fair pay rises, does not apply to workers earning over AU$75,000, and does not ensure workers receive financial compensation for loss of entitlements.

Once an AWA is made, awards cease to operate for that employee even after the expiry of the AWA. Further, AWAs operate from the time lodged, rather than requiring scrutiny and approval from the EA or the IRC, as was previously the case.

Employer greenfields agreements (EGA): Work Choices introduces a new type of agreement which allows an employer to unilaterally set the terms of an agreement covering the first 12 months of operation of a new project or undertaking, which can include an extension of an existing business, or in some circumstances, when a business is sold.

Restrictions on bargaining subject matter: Work Choices increases the number of matters which are prohibited by law from being the subject of bargaining, to the extent that financial penalties apply to individuals or organisations which seek to include these matters in their agreements. "Prohibited content" includes: leave to attend trade union meetings or training; right of entry for union officials; general representative rights for unions; restrictions on contractors; encouragement of trade union membership; remedies for unfair dismissal; restrictions on AWAs.

The right to strike: The Work Choices legislation imposes significant and new restrictions on the right to strike:

• Lawful action cannot be taken in support of common claims or of "prohibited content";

• The IRC's discretion to make orders stopping industrial action has been weakened, so that such orders are close to mandatory; for example, in cases of sympathy action or where the action could damage the Australian economy or an important part of it;

• Third parties have been given an expanded right to seek orders against workers taking industrial action;

• All industrial action must be authorised through a cumbersome and legalistic secret ballots procedure;

• Employers may apply for a cooling off period to stop industrial action;

• Penalties for taking unlawful industrial action have been sharply increased.

Restricting union access to workplaces: The new law severely curtails the right of union representatives to visit workplaces, thereby restricting their ability to ensure that workplaces are safe, to advise employees of their rights and to recruit members. The Act includes a rigid set of requirements for unions seeking to enter workplaces.

Unfair dismissal: The Work Choices legislation removed unfair dismissal protection for employees of employer with fewer than 100 employees, meaning that around two thirds of private sector workers lose their right to challenge an unfair dismissal. Even in workplaces with 101 or more employees, a dismissal which is even partly for operational reasons cannot be challenged for unfairness.

Building industry Act restricts union rights: The Building and Construction Industry Improvement Act 2005 imposes even stronger limitations on the right to strike than the WRA, imposing a blanket prohibition on unprotected action (i.e. strike action not specifically protected by the WRA) and introduces the notion of "unlawful industrial action", accompanied by severe penalties and sanctions (of up to A$110,000 for bodies corporate and A$22,000 for individuals). The Act also interferes in collective bargaining through a list of provisions that render project agreements (i.e. those negotiated at a multi-employer level) unenforceable, and by restricting the issues that can be the subject of collective bargaining. Furthermore, the Act gives considerable powers to the Australian Building and Construction Commissioner (ABCC) to investigate compliance with the law, including the power to enter premises and confiscate documents. There are insufficient safeguards against interference in trade union activities. The ILO Committee on Freedom of Association (CFA) has found the BCII Act to be in breach of the principles of Freedom of Association placing undue restriction on collective bargaining and industrial action.

Calls for compliance: Australian industrial relations law has been extensively reviewed by the ILO supervisory mechanism. The CFA, CEACR and the ILC Committee on the Application of Standards have repeatedly found the WR Act 1996, the Work Choices legislation 2005, and the BCII Act 2005 to be in breach of ILO conventions 87 and 98 and clear requests and recommendations have been made for legislative amendments to resolve these problems.

Western Australia – more rights than at federal level: In August 2002, the Western Australian Labour government enacted the Labour Relations Reform Act. The Act repealed laws that permitted individual contracts to override collective agreements, reversed many of the discriminatory measures against trade unions contained in 1997 legislation, and removed requirements that unions undertake complicated pre-strike ballots.

Queensland – possible sanctions for protest action: In Queensland, the 1999 law on labour relations states that an organisation's registration can be cancelled if its members participate in protest action that prevents or disrupts economic or commercial activity or the provision of a public service.

Trade union rights in practice and Violations in 2007

Widespread protest against the Howard Government's industrial relations laws grew in the lead up to the November federal election, with the union-led "Your Rights at Work" campaign playing a key role in mobilising voters in opposition to Work Choices. The Howard Government was defeated by the Australian Labor Party, led by Kevin Rudd, which has promised to abolish Work Choices. Australian unions continue their campaign to ensure that the new Government delivers on its promises to abolish individual statutory agreements and the ABCC, and to implement laws that protect the rights of workers and trade unions.

AWAs used to undermine unions: Employers continued to use Work Choices to undermine collective bargaining and promote individual agreements. Many employers offer AWAs to prospective employees as a condition of employment.

Workers on individual contracts worse off: Workers who have been moved by employers onto individual contracts have usually lost out. Many employers have used AWAs to remove entitlements without adequate compensation and the median pay of non-managerial employees on AWAs is less than for those on collective agreements. AWAs have impacted particularly harshly on women and those in casual or part-time employment.

Freedom of association in construction industry restricted: The ABCC continues its campaign against workers and unions in the construction industry. The ABCC has the power to fine workers for taking action to defend their wages and conditions and to target workers who take part in union meetings and refuse to cooperate with secret government interrogations. In 2007, the ABCC warned unions that flying the Eureka Flag (a symbol adopted by some Australian unions) on building sites may breach government regulations. It also launched a prosecution of the Construction, Forestry, Mining and Energy Union (CFMEU) and some of its members over unlawful industrial action, despite resolution of the dispute. Eighty-seven workers admitted to taking unlawful industrial action in protest against the sacking of a workmate who raised a workplace health and safety issue at the Perth to Mandurah railway construction site and were fined up to AUS$10,000. In another case, the CFMEU and a union organiser were fined $35,000 over a health and safety strike on a mine construction site in Victoria.

Employers refuse to negotiate with unions: Some employers refuse to bargain with unions, even where a majority of workers have expressed a preference for a union collective agreement. The company Esselte only agreed to negotiate a union collective agreement after members of the National Union of Workers spent 14 weeks on a picket line. At Cochlear, despite workers having voted twice overwhelmingly for a union agreement, management refused to negotiate with the Australian Manufacturing Workers Union. In October 2007, the company announced that it was terminating the existing agreement and transferring its workers to individual common law contracts.