Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report and the information provided in reply to its previous comments. It also notes the observations provided by the Australian Council of Trade Unions (ACTU) on the implementation of the Convention, received by the ILO on 2 September 2005.

The Committee notes with interest the provision of the information requested in relation to: Article 6 of the Convention concerning the status and conditions of service of labour inspectors in New South Wales; Articles 5, 13, 15 and 17 relating to Queensland; Article 16 relating to Tasmania; and Article 12, paragraph 1(a) and Article 17 relating to Western Australia.

Article 12, paragraph 1(a). Right of labour inspectors to enter freely workplaces liable to inspection.

Queensland. The Committee requests the Government to specify whether workplace health and safety inspectors are legally empowered to enter workplaces at any hour of the day or night and, if so, to provide a copy of any relevant texts. If not, it would be grateful if the Government would ensure that measures are taken rapidly to give effect to this provision.

New South Wales. In the absence of the information requested previously on this point, the Committee hopes that the Government will not fail to ensure that measures empowering labour inspectors to enter freely, and without previous notice, at any hour of the day or night any workplace liable to inspection are introduced in practice and that it will provide information on any development in this regard.

Articles 20 and 21. The Committee notes with interest the Government’s statement that it intends to take due account of the Committee’s comments on the need to ensure that the annual reports on labour inspection activities in Western Australia are completed in accordance with Article 21 of the Convention.

With regard to the Northern Territory, the Committee notes that all the information required by this provision of the Convention is communicated to the Office of the Australian Safety and Compensation Council, Department of Employment and Workplace Relations, and that the information provided by all the Australian jurisdictions is compiled in the Comparative Performance Monitoring (CPM) report of the Workplace Relations Ministers’ Council, which provides trend analysis on occupational health and safety and workers’ compensation schemes in Australia and New Zealand.

The Committee also takes due note of the availability on the web sites indicated by the Government of abundant information and numerous legislative texts and activity reports by the bodies engaged in labour inspection activities. However, it notes that statistics on the number of workplaces liable to inspection and the number of workers employed therein (Article 21, paragraph (c)), as well as on cases of occupational disease, are not included in the annual reports available. It recalls the importance of having available all the data required by Article 21 for inclusion in the annual inspection report so that it reflects as faithfully as possible the effectiveness of the labour inspectorate throughout the country and enables the social partners in particular, as well as any interested party, to express their views and to make proposals for their progressive improvement. The Committee would be grateful if the Government would take every appropriate measure to this end and keep the ILO informed of the progress made in this regard.

Article 5(b). Collaboration between the inspection services and representative workers’ organizations. According to the ACTU, the measures taken by the federal Government with respect to labour inspection are not used for the protection of workers, but to intimidate them. Traditionally, the task of the federal labour inspectorate has essentially been to recover wages owed to workers as well as redundancy money, a task which the inspectorate carried out relatively passively and generally only in response to a specific request from a worker. Over the past 12 months the labour inspectorate has changed its focus and has started to play a more aggressive role in ensuring compliance with the provisions of the Workplace Relations Act 1996. The ACTU considers its methods of investigation to be aggressive and intended above all to determine whether trade unions and workers are in breach of the Act, to identify union delegates and members or to obtain the correspondence between the union and the employer for the purpose of determining whether employees have been paid during industrial action or have taken action that was not protected.

The ACTU considers that the intention of the inspectorate is above all to sue unions for breaching the provisions of the Workplace Relations Act or other texts, regardless of whether the employer wishes this to occur. The inspectorate does not take into account any settlement reached between the employer and the union, in contradiction with the Committee’s requests for explanations in 2005 concerning the right of employers and unions to reach agreements on strike pay.

According to the ACTU, the adoption of the Workplace Relations Act Amendment (Right of Entry) Bill 2004 will make it more difficult for unions to access the workplace and will therefore severely restrict the critical role that they have historically played in ensuring that the provisions of individual awards and agreements are applied properly. Furthermore, the Government recently announced new guidelines for the issuing of government contracts in the construction industry which specifically state that companies that enter into agreements with their workers which allow the union to oversee implementation of the agreement will not be eligible for any government contract. According to the ACTU, these legislative developments have restricted union access to workplaces. The same applies to the draft legislation prepared by the Government which will explicitly prohibit the entry of unions to discussions where all the employees concerned are parties to Australian Workplace Agreements (AWAs), and prohibit union participation in the bargaining process (Workplace Relations Act Amendment (Right of Entry) Bill 2004). A recent decision of the Australian Industrial Relations Commission held that the union had no right of entry into a workplace where all staff had been employed on AWAs.

With regard to the Office of the Employment Advocate (OEA), the ACTU considers that it fails to protect workers and has approved individual agreements with terms below award standard wages and conditions. A recent court decision concerning the application of the “no disadvantage test” found it “troubling” that more than 50 AWAs had been approved on the same terms as one that paid a student 25 per cent less than her minimum award entitlement. Some of the agreements approved do not even contain wages clauses.

However, based on the information available on the official government web site of the Workplace Authority, the Committee notes that arrangements have recently been made to provide workers and employers with the necessary assistance for the conclusion of individual workplace agreements containing appropriate clauses that are at least equal to those contained in federal law.

The Committee notes furthermore that the OEA’s name has been changed to the “Workplace Authority”, which has the principal task of overseeing the content of workplace agreements. Through its offices located in every state capital except Canberra, it provides free advice and information to employers and workers relating to the conclusion of workplace agreements and on the Australian Fair Pay and Conditions Standard, to ensure that workplace agreements do not contain prohibited clauses. Specific assistance using appropriate means of communication is available for young people and non-English speakers, as well as for persons with hearing or speech impediments.

In response to the ACTU’s allegations concerning the existence of clauses that do not meet federal standards in some approved individual agreements, the Authority has made it clear that the individual agreement containing an unfair clause to which the union refers concerned a student who had left her job before her individual labour agreement had been lodged with the Authority. The Authority maintains that the prior “no disadvantage test” procedure applies to all AWAs and that, in two cases concerning students, the approval of the AWAs had been postponed until they met federal standards.

The Committee would be grateful if the Government would keep the ILO informed of any developments relating to the collaboration between the labour inspection services and employers’ and workers’ organizations in order to ensure compliance with the legislation relating to conditions of work and the protection of workers while engaged in their work. It would be grateful if the Government would also provide any comments that may be useful as well as any additional explanation in response to the points raised by the ACTU.