Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. The Committee notes the Government’s detailed report received in November 2006, and particularly the relevant provisions of the Workplace Relations Amendment (Work Choices) Act, 2005, which amends the Workplace Relations Act, 1996. The 1996 Act provided remedies for unfair dismissals and unlawful dismissals. Those remedies give effect respectively to Articles 4 and 5 of the Convention.

2. The Work Choices Act exempts employers who employ 100 employees or less from the provisions of the unfair dismissal provisions in the 1996 Act. The Act also removes the unfair dismissal remedy for genuine operational reasons such as those based on economic, technological, structural or similar matters relating to the employer’s business. The Government identified in its report two main justifications for the Act: (a) to remove constraints on demand for labour and to allow businesses to respond to changes in market conditions; and (b) the cost of defending an unfair dismissal claim, even one without merit, can be substantial and impacts more significantly on the hiring decisions of smaller and medium businesses.

3. Article 2, paragraphs 4–6, of the Convention. Categories of workers excluded from the scope of the Convention. The Government indicates in its report that the exclusion of employers with 100 employees or less is consistent with Article 2, paragraph 5, of the Convention, because “special problems of a substantial nature” arise depending on the size of the employer’s undertaking. The Committee recalls that the exclusion permitted by Article 2, paragraph 5, only applies if the Government lists the exclusion in the Government’s first report. It notes that the Government did not list the exclusion of employers with 100 employees or less in its first report received in September 1995.

4. Valid reasons. Remedies. The Committee notes that the Convention applies to all employees (Article 2, paragraph 1). It further notes that Article 4 states that the employment of a worker shall not be terminated unless there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service. Article 8 states that workers who considered that their employment is unjustifiably terminated shall be entitled to appeal that termination to an impartial body. The Committee observes that the exclusion of employers with 100 employees or less from the remedies for unfair dismissal in the Workplace Relations Act, 1996 is therefore inconsistent with the Convention as well as the removal of the remedy to appeal against a termination which purports to be based on operational reasons. It thus requests the Government to amend the Workplace Relations Act so as to give full effect to the provisions of this Convention and to advise on developments in this regard.

5. The Committee further notes a communication of 3 December 2007 sent by the Government recording its commitment to making substantial amendments to Australia’s workplace relations legislative framework. It requests the Government to report on any amendments that touch upon the application of Convention No. 158.

[The Government is asked to reply in detail to the present comments in 2009.]