2009 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 newly-elected Labor Government amended the Workplace Relations Act 1996 in early 2008 so as to ban the making of new Australian Workplace Agreements, a type of individual statutory contract. Most of the former Government's workplace laws remained in effect in 2008, however. In November, the Australian Government introduced the Fair Work Bill into Parliament. This Bill represents a substantial rewrite of the industrial relations laws and provides stronger rights for workers to be represented by their union and to bargain collectively. There has been no significant progress made in respect to the punitive laws applying to the building and construction industry.

Trade union rights in law

Freedom of Association: Australia's principal federal industrial relations law – the Workplace Relations Act 1996 (the WRA) – 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. Australian law does not comply with internationally recognised standards in respect of freedom of association and the right to bargain collectively.

The WRA:

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

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

• Does not require employers to negotiate with unions even when their employees are union members and wish to be represented in bargaining by their union;

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

Collective bargaining: The WRA restricts the ability to bargain at a multi-employer or industry level. Pre-authorisation and subsequent approval is required from the Workplace Authority after private deliberations. Industrial action in support of multi-employer agreements is unlawful. There is also a prohibition on "pattern bargaining", that is, the pursuit of common claims against a number of employers although there is 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: Prior to March 2008, the law promoted individual statutory agreements (Australian Workplace Agreements or AWAs) over collective agreements. AWAs totally undermined the integrity of the collective bargaining process as they could be offered to employees as a condition of employment or when a collective agreement was in place.

The Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 amended the WRA so as to prevent the making of new AWAs. However, it allows for the creation of new Individual Transitional Employment Agreements (ITEAs) to be available for limited use during the transitional period until 31 December 2009. It also put in place a new no-disadvantage test for future workplace agreements to provide better protection for employees.

Employer greenfields agreements (EGA): The Workplace Relations Amendment Act 2005 (or "Work Choices Act") introduced 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 WRA identifies a number of matters which are prohibited 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 law imposes significant restrictions on the right to strike:

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

• The Australian Industrial Relations Commission's discretion to make orders stopping industrial action has been changed, 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: Australian 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 WRA includes a rigid set of requirements for unions seeking to enter workplaces.

Unfair dismissal: Employees of employers with fewer than 100 employees do not have unfair dismissal protection, meaning that around two thirds of private sector workers have no 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 severe limitations on the right to strike, imposing a blanket prohibition on unprotected action (i.e. strike action not specifically protected by the WR Act) 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 Commission (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's Committee of Experts on the Application of Conventions and Recommendations has requested that the Australian Government amend the Act.

The Australian Government has indicated that the ABCC will remain in place until January 2010, after which time it will be rolled into the new industrial relations umpire, Fair Work Australia.

Fair Work Bill 2008: In November 2008, the Australian Government introduced the Fair Work Bill into Parliament. This Bill is intended to deliver on the Rudd Government's pre-election commitment to abolish Australia's unfair workplace laws. The Bill provides a new industrial relations system for Australia. The Bill recognises the right of workers to be represented by their union and to bargain collectively, imposes good faith bargaining obligations on employers, and restores unfair dismissal rights for most Australian workers.

The Fair Work Bill does not seek to amend or repeal the special laws that apply to the building and construction industry.

Trade union rights in practice and violations in 2008

Australian unions continued their campaign to ensure that the new Government delivers on its promises to abolish Australia's unfair workplace laws and the ABCC, and to implement laws that recognise and protect the rights of workers and trade unions.

Workers on individual contracts worse off: Workers who were moved by employers onto individual contracts continue to lose out. Many employers 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.

Employers sought to take advantage of the transitional arrangements to impose AWA-like conditions on their workforce for years to come. Under the current law, employees on AWAs or ITEAs are not eligible to vote on collective agreements in their workplace. This is despite the fact that these employees will move onto these agreements when their individual statutory arrangements expire.

At their iron ore operation in West Australia, BHP used this loophole to push through a non-union collective agreement which it concedes is "identical to existing AWAs." This agreement was voted on by 46 new employees with no consultation with the rest of the workforce. The agreement will run for 5 years and will potentially apply to the remaining 12,000 employees when their AWAs expire. In June 2008, Austral Shipping held a ballot of employees for a proposed non-union collective agreement. The agreement was drafted by the company and circulated on a "take it or leave it" basis. Only those employees whose AWAs had expired were eligible to vote and this represented a small percentage (an estimated 20%) of the workforce. Existing employees who were still subject to AWAs were not entitled to vote, even though many of them could find themselves subject to the agreement in the future.

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 gaol workers who take part in union meetings and refuse to cooperate with secret government interrogations. More than 100 construction workers have been interrogated by the ABCC. In 2008, Noel Washington, a Victorian branch senior vice president of the Construction, Forestry, Mining and Energy Union (CFMEU), was threatened with six months gaol for refusing to attend an ABCC examination. The charges against Mr Washington were dropped just six days before he was scheduled to appear before the Federal Court.

Employers refuse to negotiate with unions: Some employers refused to bargain with unions, even where a majority of workers have expressed a preference for a union collective agreement. Train drivers employed by Pilbara Iron Company, a rail services subsidiary of mining giant Rio Tinto, wanted the CFMEU to negotiate a new enterprise agreement following the expiry of their AWAs but the company has refused to negotiate with the union. For months, employees at Maxitrans Australia in Ballarat sought to be represented by the Australian Manufacturing Workers Union in negotiations with the company. The union had been issued with certification as a bargaining agent on behalf of its members, but the company has still refused to negotiate. Instead, Maxitrans put a non-negotiated deal on the table which sought to strip away many employment conditions.

Australia's largest telecommunications provider Telstra continued to ignore the wishes of its employees by refusing to negotiate with unions concerning a new enterprise agreement. Instead, it insisted on offering very small groups of its workers non-union agreements designed to undermine wages and conditions and deny workers their right to representation.

Employers take advantage of restrictive laws on right of entry: The WRA operates to remove the limited statutory rights of union officials to enter workplaces where the employees are covered by individual AWAs or a non-union agreement. There is no obligation on employers to warn employees that, by entering into these arrangements, they also forego their rights to union representation at work.

Even where statutory rights remain, employers have taken advantage of restrictions on union rights to enter workplaces to make it virtually impossible for workers to discuss industrial issues with union organisers. At Geon Australia, a printing factory in Brisbane, a union meeting was forced to be held in an open-air car park adjacent to a loading dock under the eye of a surveillance camera. In another case, an organiser from the Textile, Clothing and Footwear Union of Australia was instructed by an employer to hold a meeting with male and female workers in the women's toilet area.