2007 Annual Survey of violations of trade union rights - Australia

Population: 20,600,000
Capital: Canberra
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111

Fears that the new industrial relations legislation would be used against workers and trade unionists soon proved true: 107 construction workers face individual prosecution and huge fines. A union delegate was sacked for voicing concerns over health and safety issues and guest workers were dismissed for joining a union. More workers have been forced out of collective agreements onto individual agreements, usually with less favourable conditions.

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 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.

Collective bargaining: The Work Choices legislation 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 separately negotiate each agreement. The ban on pattern bargaining applies even to subsidiaries of the same parent company.

Individual agreements: The Work Choices legislation 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. AWAs now must 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 can substantially undercut employees' previous wages and working conditions. 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 green fields agreements (EGA): The Work Choices legislation 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: The Work Choices legislation 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 2005 Building and Construction Industry Improvement Bill 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.

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

AWAs used to undermine unions: Employers use the legislation on workplace agreements to undermine collective bargaining and promote individual agreements. Trends show a move towards AWAs and away from union-negotiated collective agreements.

Impact of individual contracts: Workers who have been moved by employers onto individual contracts have usually lost out. The government's own workplace agency revealed that two thirds of the new AWAs registered under the new laws removed penalty rates, one third cut overtime pay, a half removed shift allowances and another third scrapped public holiday payments, all leading to a fall in real wages. Following public exposure of this information, the Employment Advocate has stopped collecting this data.

Violations in 2006

Background: The Howard government's industrial relations laws galvanised support for the unions and led to widespread national protest. On 28 June 300,000 Australians took to the streets to protest against the new laws. Similar protests took place on 30 November, one year after the controversial legislation was passed. Just two weeks earlier the High Court ruled that the laws were legal.

Call centre forces workers out of collective agreement: Global Tele Sales, a subsidiary of the German airline Lufthansa based in Melbourne, took advantage of the new industrial relations laws in June to force 80 workers to renounce a collective agreement signed with the Australian Services Union (ASU), not due to expire until December, and sign individual contracts. Under the new contracts the workers faced pay cuts and penalties for taking sick leave or carer's leave, with no right to negotiate with the company over the terms of the contract. The company claimed that employees were not being forced to sign the AWAs, yet it stated that it would not negotiate a new collective agreement, and that certain privileges would be withdrawn from those who refused to sign. Staff reported that they felt they had no choice but to sign. The Workplace Rights Advocate for the state of Victoria announced an investigation into the AWAs after the ASU expressed its concerns.

Construction workers prosecuted over industrial action: 107 construction workers from Western Australia face individual prosecutions brought by the government appointed and funded Australian Building and Construction Commission (ABCC). Over 400 workers employed on the Perth to Mandurah railway link project had taken part in industrial action in February in protest at the unfair dismissal of their health and safety representative, Peter Ballard, from the Construction, Forestry, Mining and Energy Union (CFMEU). Writs were issued against the workers on 5 July, months after the dispute between the workers and the employer had been settled. It was the first time that fines had been issued against individual workers for taking strike action. The prosecution was brought under the terms of Building and Construction Industry Improvement (BCII) Act 2005. As a result of the court case, which began on 28 August, the workers face fines of up to AUD$ 28,600 each and possible jail sentences. The Federal Court indicated that the hearing was unlikely to begin before October 2007.

Workers sued over union meeting: In a similar case, also brought under the terms of the 2005 BCII Act, and the WRA, 40 workers were sued by Total Corrosion Controls (TCC). They had taken part in a meeting in June called by the Australian Manufacturing Workers' Union (AMWU) to explain their rights and obligations under a back to work order issued during a strike over a pay dispute. The meeting allegedly ran 15 minutes too long and so constituted unlawful industrial action. Each worker faced fines of AUD$ 28,600 and unspecified damages, while the AMWU was sued for at least UD$ 220,000.

TCC subsequently agreed to withdraw its action in the Federal Court on condition that the AMWU agree to various conditions regarding the resolution of any future industrial matters. However, the ABCC has intervened in the case and if it so chooses has the right to continue the prosecution of its own volition, regardless of an agreement that might be reached between the employer and the employees. At the time of writing the AMWU had no indication of the Commission's intentions.

Dismissed for union activities: The mobile crane company Botany Cranes sacked a CFMEU union delegate on 6 September, for "insubordination". Barry Hemsworth had been a union delegate at the Sydney based company for ten years, and was a respected crane driver. His dismissal came after he had expressed his concerns about health and safety issues at the company at a meeting on the subject, after being asked by his employer not to. Unfair dismissal laws have been abolished in Australia, making it difficult for him to fight his dismissal. Fellow employees condemned his sacking but under the new laws, they would face fines of up to AUD$20,000 each if they were to attend a meeting to discuss it.

Guest workers sacked for joining union: Three Filipino guest workers were sacked on 16 October for joining a union, and five others were told to resign or lose their visas. They had arrived in Brisbane eight weeks earlier to work as welders for a Brisbane labour hire company. They had contacted AMWU after discovering their pay packets were vastly reduced by deductions for accommodation, transport and other charges, that they had no sick leave, no extra rates for night or weekend work, and could be sacked at a day's notice. The agency promptly put pressure on the workers by calling one of their wives in the Philippines, to say they would be sacked if they joined the union. The workers ignored the threats and the agency lived up to its promise.