2012 Annual Survey of Violations of Trade Union Rights - Australia
|Publisher||International Trade Union Confederation|
|Publication Date||6 June 2012|
|Cite as||International Trade Union Confederation, 2012 Annual Survey of Violations of Trade Union Rights - Australia, 6 June 2012, available at: http://www.refworld.org/docid/4fd8896723.html [accessed 28 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified:
29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
Reported Violations – 2012
Murders: none reported
Attempted Murders: none reported
Threats: none reported
Injuries: none reported
Arrests: none reported
Imprisonments: none reported
Dismissals: none reported
Documented violations – actual number of cases may be higher
Employers and governments successfully invoke laws forcing striking workers back to work, in major disputes. The New South Wales (state) government dictates wages to public servants, refusing to bargain collectively and banning strikes. The federal government was unsuccessful in repealing anti-union laws in the construction sector.
The Australian Labor Party won government at the federal level in 2007, after 11 years of conservative rule. The 2010 election returned it as a minority government, relying on the support of the Australian Greens and independent MPs. The conservative Coalition parties hold government at the state level in three of the four most populous states: New South Wales, Victoria and Western Australia.
Trade union rights in law
While the Labor party's Fair Work Act 2009 has improved respect for trade union rights, problematic areas remain. Freedom of association is guaranteed for both private and public sector workers; however, employers can seek 'representation orders' in the workplace tribunal, which can dictate which classes of employee the union can (or cannot) represent.
The right to collective bargaining is provided for, but is mostly limited to enterprise-level bargaining, and certain terms (such as clauses banning the use of contract or replacement labour) cannot be included in agreements.
The right to strike is limited, as lawful industrial action can only be taken during the process of bargaining for a collective agreement, cannot be taken at the sectoral or national level, and sympathy strikes/secondary boycotts are banned. Even lawful industrial action can be stopped by the workplace tribunal, on the application of employers or governments, in a range of circumstances (such as where a strike is causing significant harm to both parties, or to a third party).
Finally, separate and punitive laws continue to apply to workers and unions in the building and construction industry.
Link to additional detailed information regarding the legislation on the ITUC website here
Private employers' anti-union tactics:
In practice, many employers (particularly in the mining sector) do their best to frustrate trade union activity. Examples include employer refusals to transport union officials to remote sites to meet with workers, refusals to bargain collectively until the union can demonstrate it has majority support in the workplace, refusal to allow union delegates to undertake union activity in the workplace during working time.
In many industries, harassment and victimisation of union members and delegates occurs, but it is often difficult to prove an anti-union motive in court. One exception is the recent case of Barclay v Bendigo TAFE, where a union delegate was disciplined for sending emails to staff that were critical of the University. The University claimed it was simply responding to action that was 'contrary to University policy', but the court found an anti-union motive existed. Unfortunately, this decision has been appealed by the employer to the High Court.
NSW government dictates wages: NSW laws have always prohibited public servants (including teachers, police and nurses) from striking, but provided for arbitration of wage claims by an independent workplace tribunal. During the year, the conservative government passed a law dictating that the tribunal could not award a pay increase greater than 2.5% per annum, in line with the government's wages policy. This allows the government to dictate the wages of over 300,000 workers, without the obligation to bargain and without the right to strike.
Heavy restrictions on construction workers remain: Laws introduced by the former conservative federal government fine workers AUD22,000 (and unions AUD110,000) for participating in industrial action in the construction industry (except during specified bargaining periods). Australian Building and Construction Commission inspectors continue to harass trade union members and officials, including by conducting secret interrogations of individual workers without a guarantee of legal representation of their choice. Workers who refuse to answer questions face prison terms of up to six months. The current federal government has introduced a bill to abolish the fines, but retain the interrogation powers; however, this was opposed by the conservative parties and did not pass the Parliament in 2011.
Employers and governments force an end to major disputes:
Industrial action by workers was stopped at the behest of employers or governments in a number of cases. In one case, Qantas responded to low-level industrial action by a small group of workers by grounding its entire fleet and locking its workers out. The federal government applied to the workplace tribunal to stop both sides' action and refer the dispute to arbitration, which it did. In another case, the Victorian state government applied to the tribunal to stop industrial action by 32,000 public servants, on the grounds that the welfare of children would be harmed if 1,500 child protection workers did not return to work. The tribunal stopped the industrial action and referred the matter to arbitration.
These decisions abridged workers' rights to strike, and the ensuing arbitration is unlikely to deliver outcomes that are favourable to the workers.
No entry for this country for this year