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

The 2009 Fair Work Act reinstated many of the rights removed by the previous Government. At same time, there is concern at the prospect of another assault on workers' rights in newly-elected conservative State Government in Western Australia. Harassment of trade union members and officials in the construction sector by the Australian Building and Construction Commission continued.

Trade union rights in law

While the 2009 Fair Work Act improved the legislation concerning trade union rights, problematic areas remain. Freedom of association is guaranteed for both private and public sector workers. However, in order to register a union, an excessive 50 members is required, and in New South Wales, registration can be cancelled in case of a strike having a substantially adverse effect on public service. Employers and other unions also have the right to challenge changes to union "eligibility rules", which essentially outline the types of employees unions can represent. Furthermore, a tribunal can proceed to arbitrate disputes in a restricted number of cases where bargaining has come to a halt.

The right to strike is limited, as lawful strikes can only be called in connection with collective bargaining, but not when bargaining with multiple employers unless they form a single interest group (e.g. a joint venture). Also, protected industrial action can be terminated by the Minister at her/his own initiative, and the Fair Work Authority can suspend or terminate a strike if deemed to cause significant economic damage. Strikes are also prohibited in a number of other instances, e.g. if they obstruct government services. Secondary action appears to be unlawful.

Trade union rights in practice and violations in 2009

Background: Since the government did not have a majority in the Australian Senate, opposition parties were able to block key elements of labour law reform. The newly-elected conservative State Government in Western Australia, which when previously in office had provided a test-bed for the anti-union laws of the former Federal Government, launched a review of industrial relations which it was feared would lead to another assault on workers' rights in that State.

Heavy restrictions on construction workers: Australian Building and Construction Commission (ABCC) inspectors continued to harass trade union members and officials in the construction sector during 2009, including conducting secret interrogations of individual workers without a guarantee of legal representation of their choice. The ABCC has the power to impose fines of up to A$22,000 on workers and those who refuse to submit to the interrogation procedure can face prison terms of up to 6 months.

Ark Tribe, a construction worker on a building site at Flinders University in South Australia was charged with not attending an ABCC interrogation in 2008. Workers at the site had been demanding that the company management fix a series of serious safety issues and it was only when the South Australian State authorities intervened that the safety breaches were rectified. The ABBC had visited the building site and interviewed workers, but did not interview company managers over the safety breaches for which the company was responsible. Tribe was summonsed for questioning by ABCC, which subsequently charged him with failing to attend the interview at the appointed time. After four court hearings in 2009, a judgement on the case, with the possibility of a prison sentence, was scheduled for 2010.

Many rights restored, but deficiencies remain: The passing of the Fair Work Act in 2009 reinstated many of the rights which had been removed by the previous Australian Government, and the establishment of Fair Work Australia as a government authority provided a mechanism through which these rights can be enforced.

At the same time, employers were able to exploit deficiencies in the legislation which remained in place, including restrictions on collective bargaining insufficient protection from unfair dismissal for workers in small businesses during a 12-month probationary period, limitations on right of entry of trade union representatives to workplaces, and the retention of the notorious Australian Building and Construction Commission (ABCC).

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.