
Issue No 33		01 October 1999

Legal

Bad, Bad Things

By David Chin - Jones Staff and Associates

Some of Australia's leading industrial lawyers argue that the Workplace Relations Act breaches basic international obligations.

The 1996 Senate inquiry submissions made by ICTUR in respect to the Bill that became the Workplace Relations Act 1996 were vindicated by subsequent findings of the Committee of Experts of the International Labour Organisation.

The ILO Committee of Experts has found that the 1996 Act contravenes fundamental ILO standards on freedom of association and the right to collective bargaining in a manner foreshadowed by ICTUR in its 1996 Senate submissions.

Australia should be seen fully to comply with international obligations because Australia plays an important part in the community of nations and it is important that Australia demonstrates leadership in the observance and application of international human rights instruments

ICTUR urges the Senate Committee to recommend that the government takes steps to comply with its international obligations, and to introduce amending legislation to comply with all relevant ILO Conventions, including Conventions Nos 87 and 98 and the Termination of Employment Convention. ICTUR also urges the Senate Committee to recommend that the government desist from implementing the proposals in the 1999 Bill that would compound Australia's breaches of its international obligations and generate further criticism from the supervisory bodies of the ILO.

Chapter 1 - Restructuring the Commission, Conciliation & Mediation

Proposed ss 16(1) and 16(1A) of the 1999 Bill propose the establishment of a system of fixed term appointments to the AIRC. This will have the effect of removing the long entrenched provisions of the 1996 Act which provide for tenure of members of the AIRC to age 65.

In ICTUR's submission proposed ss 16(1) and 16(2) unnecessarily threaten the impartiality and independence of the AIRC. In particular:

(a) it is fundamental to the effective operation of the AIRC that the public perceives that decisions of the AIRC are made independently. The introduction of fixed term appointments has the potential to disturb this perception by giving rise to concerns that the AIRC is not adequately protected from external governmental influences;

(b) the provisions in proposed s 16(1A) permitting repeated reappointment of members to the AIRC increases the likelihood of the public perceiving members of the AIRC to be more inclined to uphold decisions that they otherwise would have considered inappropriate in order to secure reappointment; and

(c) the provisions in proposed s 16(1A) permitting repeated reappointment mean that members of the AIRC have no ongoing job security. There is a risk therefore that an AIRC member may become reliant upon parties who have appeared before him/her for future work in the industrial relations sphere.

(d) Moreover, the provisions of the 1999 Bill do not accord with a number of fundamental tenets of international law which recognise the importance of the independence of decision makers: see in particular Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant on Civil and Political Rights, and principles 2, 11 and 12 of the Basic Principles on the Independence of the Judiciary.

The provisions of the 1999 Bill which provide for the establishment of a system of voluntary conciliation make it clear that the voluntary conciliation procedure is of limited application: see in particular proposed ss 88AB(1) and 88AC(3).

In ICTUR's submission the fetters imposed by proposed s 88AC(3) are unnecessary. The express requirement that the AIRC make a preliminary determination as to whether the matter before it falls within the scope of proposed s 88AB(1) introduces unnecessary complications to the conciliation process and has the potential to inhibit the AIRC in assisting the parties to expeditiously resolve the matter in issue.

Moreover, the provisions of proposed s 89A(1)(a) which provide that the AIRC can deal with an industrial dispute by compulsory conciliation only if it is about allowable award matters will effectively curtail the proper functioning of the AIRC by severely limiting its compulsory conciliation jurisdiction.

The introduction of a system of such complexity should not be entertained. Industrial disputation needs to be resolved as quickly as possible so as to ensure the continuation of productive working relationships and to minimise the damage to the Australian economy that can arise from industrial disputes.

Chapter 2 - Awards, Certified Agreements & AWAs

Collective bargaining is the prime means by which workers are able to redress the inherent imbalance in bargaining power between employers and individual employees. In Australia, collective agreements between unions and employers have been traditionally reflected in awards that were largely the product of agreement and, more recently, in certified agreements.

The right to collective bargaining is regarded internationally as a central component of a select cluster of "core" labour standards that form a subset of internationally accepted basic human rights.

The 1996 Act established a clear bias in favour individual agreement making in the form of AWAs. In 1998, the ILO Committee of Experts found that the 1996 Act contravened ILO standards in the following ways:

i.The 1996 Act fails to promote collective bargaining as required under Article 4 of the Collective Bargaining Convention No. 98 owing to the primacy given to individual over collective relations through the AWA procedure.

ii. The Act contravenes the principle of voluntary bargaining by favouring single-business agreements over multi-business agreements.

iii. The Act is inconsistent with the principle of voluntary collective bargaining in that it limits the scope of negotiable issues, in particular, the issue of strike pay.

ICTUR's submission to the Senate inquiry into the Bill that became the 1996 Act explicitly warned that the subordination of collective agreements to AWAs would result in a fundamental breach of Australia's international obligations.

The provisions of the 1999 Bill would take Australia's non-compliance with its international obligations to a new level. It would do this by:

i. further downgrading the award system by significantly reducing the range of "allowable award matters", including the deletion of employee benefits on termination;

ii. enhancing the supremacy of AWAs over certified agreements by ensuring that new AWAs will always prevail over existing certified agreements and by preventing certified agreements from containing any "anti-AWA" provisions;

iii. extending the preference for enterprise-level agreements by narrowing the definition of "single business"; and

iv. further inhibiting the ability of unions to intervene in the certified agreement process.

The primacy now accorded to the AWA system and which the proposed amendments intend to enhance, is to be understood in a context where the individual contract system in place is deficient and in the following respects, the proposed amendments will make it more so:

i.The role of the Australian Industrial Relations Commission in the approval of AWAs is removed;

ii.The no-disadvantage test, a test which applies the relevant award as a benchmark for the approval of an AWA, is to be diminished or excluded in a number of ways. Principally and of greatest concern, the no-disadvantage test may increasingly be supplanted by an amorphous "not contrary to the public interest" test applied by staff of the Employment Advocate.

iii. The current obligation on employers to offer an AWA in the same terms to all comparable employees is to be repealed. The repeal will encourage the application of differential terms and conditions of employment and will result in discrimination particularly against women and migrant workers;

iv. A number of verification and due process provisions are also proposed to be removed.

Chapter 3 - Industrial Action and Secret Ballots

Both existing Australian law and the 1999 Bill are in glaring breach of Australia's international obligations on the right to strike.

The right to strike in international law derives primarily from jurisprudence developed by the ILO supervisory bodies; it has been implied from the principle of freedom of association, a founding principle of the ILO - particularly as enshrined in Articles 3, 8 and 10 of ILO Convention 87.

This jurisprudence on Convention 87 applies by virtue of membership of the ILO - all members are therefore obliged to provide for the right to strike.

As ICTUR argued in its 1996 submission to the Senate Committee, Australian law (including the 1996 Act's provision of limited immunity from civil liability for 'protected' industrial action) does not satisfy the ILO jurisprudence on the right to strike.

These views have been upheld by no less a body than the ILO's Committee of Experts, which found in March 1999 that Australian law restricts the right to strike contrary to Convention 87, because:

i. it excessively restricts the subject matter of strikes (ie. to bargaining in respect of single-business agreements, with no scope for multi-employer or industry-wide agreements);

ii. it prohibits sympathy or secondary industrial action;

iii. it restricts the taking of industrial action beyond permissible limits on strikes in essential services

The 1999 Bill, if passed, will increase Australia's level of non-compliance with our international obligations in this area.

The Bill's provisions on industrial action (Schedule 11) and secret ballots (Schedule 12) will result in greater recourse to litigation, rather than dispute resolution.

The proposals in the Bill dealing with section 127 orders amount to an unacceptable encroachment on the right to strike - they unfairly increase the susceptibility of unions and workers to civil liability.

The prohibitions on 'pattern bargaining' in the Bill would result in an amplification of a major breach of Convention 87 identified by the Committee of Experts in its recent findings, ie. the existing restrictions on industrial action in support of multi-employer or industry-wide agreements.

The increased notice requirements and other limitations on 'protected' action contained in the Bill focus attention on the already unacceptably narrow nature of the right to take industrial action.

When added to existing limits on strike activity, these new provisions would impose manifestly unreasonable conditions on the taking of industrial action in Australia - combined with the secret ballot provisions, they would make it practically impossible to take any form of legal industrial action at all.

The provisions in the Bill broadening the circumstances in which a bargaining period can be suspended or terminated again fly in the face of the ILO Committee of Experts' March 1999 findings.

The Bill's complex requirements for the holding of compulsory secret ballots as a further precondition to the taking or organising of 'protected' industrial action are onerous and unnecessary.

The secret ballot provisions provide fertile ground for employers to obstruct and delay, through litigation, the exercise of the tightly constrained 'right' to take protected action.

These provisions would amount to an unacceptable interference with unions' rights to regulate their own internal affairs (see Article 3 of Convention 87).

ILO jurisprudence requires the legal procedures for declaring a strike (eg. ballots) to be reasonable; not to place substantial limitations on the means of action open to trade unions; not to be so complicated as to make it practically impossible to strike; and specifies that such procedures are acceptable only when they are intended to promote democratic principles in unions.

The secret ballot provisions in the Bill violate each of these principles - they are unnecessarily complicated and inflexible; their true purpose is not to promote democracy in union decision-making, but to make the exercise of the right to strike almost impossible, and where possible of little or no effect.

Far from rectifying Australia's lack of compliance with international labour standards, the 1999 Bill (particularly as it relates to industrial action) will result in an even greater degree of non-compliance and (inevitably) another rebuke from the ILO.

The Bill is irreconcilable with the Minister's recent speech to the ILO, where he pledged the Australian Government's firm support for the ILO Declaration on Fundamental Principles and Rights at Work (which includes freedom of association as a fundamental commitment) - instead, the Government seeks through the 1999 Bill to place greater restrictions on the right to strike than ever before, in blatant disregard of its obligations as a member of the ILO.

Chapter 4 - Termination of Employment

The Termination of Employment Convention and Recommendation were adopted by the ILO in recognition that workers must be protected against arbitrary and unjustified dismissal and that appeal rights in respect of such dismissal are intrinsic to the rights of a worker.

The 1996 Act stands in breach of the letter and spirit of the Termination of Employment Convention in that it:

i. fails to provide the required level of protection for probationary employees and those whose employment is governed by special arrangements or whose employment raises special problems of a substantial nature;

ii. discourages employees from pursuing their legitimate rights in respect of unlawful dismissal and unlawful termination by:

(a) in many cases requiring them to institute two separate proceedings;

(b) imposing an application fee; and

iii. excludes vulnerable and dependent workers who fall outside the restrictive common law concept of "employee" from obtaining redress for harsh, unjust or unreasonable dismissals by requiring employees to be covered by a Federal award. In this regard a recent decision of the Full Court of the Federal Court of Australia has held that the Termination of Employment Convention applies to workers beyond "employees" under the common law (Konrad v Victoria Police). The effect of the Full Court's decision is to highlight Australia's failure to comply with ILO standards.

The provisions of the 1999 Bill would place Australia in further breach of the letter and spirit of the Termination of Employment Convention by:

i. circumscribing the test to be applied in determining whether a dismissal has taken place by subverting the concept of "constructive dismissal";

ii. denying employees a remedy where operational requirements may not be the only reason for their terminations (ie. where conduct and/or performance are also taken into account);

iii. placing additional jurisdictional obstacles in the path of an employee who lodges an application out of time;

iv. broadening the power to award costs; and

v. allowing for an order for security for costs.

The Unfair Dismissals Bill would place Australia in breach of the letter and spirit of the Termination of Employment Convention by:

i. imposing a qualifying period of employment before employees could access an unfair dismissal remedy;

ii. excluding new employees of businesses that employ no more than 15 employees.

Chapter 5 -Entry and Inspection of Premises by Organisations

The proposed changes to the right of entry provisions would convert a scheme which confers a limited right of access into a scheme of access to workplaces by invitation only which also requires a substantial degree of co-operation from the employer or occupier of the workplace. ICTUR submits that the Bill:

i. unfairly shifts the burden of monitoring compliance with complex industrial regulation onto union members;

ii. seeks to introduce excessively formalised, legalistic procedures for exercising right of entry;

iii. places impracticable and inappropriate requirements on permit holders to identify and particularise grounds for investigating suspected breaches before gaining access;

iv. equips employers and occupiers with means of denying access and therefore avoiding proper scrutiny;

v. gives employers and occupiers unwarranted control over the location of permit holders' meetings with employees;

vi. needlessly increases the range of penalties against unions and individual permit holders.

For these reasons, the effect of the Bill, if passed, would be to:

(a) prevent unions from providing the services which members seek for their representatives:

(b) reduces unions' access to prospective members and reduce non-union members' freedom of association by reducing their access to information about the benefits of union membership;

Chapter 6 - Freedom of Association

The Conventions of the ILO specifically provide for the right to form and join trade unions and make express provision against anti-union discrimination.

ILO jurisprudence makes clear that the right to union membership is not restricted to the right to hold a membership card. In terms the right to membership also involves the right, through union membership, to protection of the members' interests by the union including the right to take strike action in the last resort. This right to union membership expressly involves the right of employees' representative unions to participate in collective bargaining and the obligation of member States to encourage and promote collective bargaining.

The 1999 Bill proposes to amend the definition of "objectionable provisions" (which are provisions that must be deleted from awards and agreements) in such a way as to be inconsistent with Convention No. 98. The amendments to section 298Z(5) in the 1999 Bill extend the definition of "objectionable provisions" to include provisions in a collective agreement or an award which indicate support for persons being members of a trade union, and provisions which require a person to encourage others to become or remain members of a trade union.

Therefore, any provision in a certified agreement which enables or encourages legitimate industrial conduct and recruitment activities by a shop steward or union official contrary may be considered to be "objectionable provisions".

This would be clearly contrary to the principles of freedom of association and in particular, the rights guaranteed by Article 3 of Convention No 98.

The proposed amendments will impose legislative constraints on the range of matters that may be negotiated by employers and employees and their unions (eg. "objectionable provisions") which is in conflict with Australia's obligations under ILO Convention No 98.

The 1999 Bill seeks to prohibit the establishment or maintenance of a "closed shop" which is defined in such a way as to lead to an unreasonable interference with the right of workers to join a trade union of their choice. The practical effect of the amendments is likely to be a prima facie presumption that a closed shop exists where a union has organised 60% or more of the workers of a particular employer.

The exclusion of enterprise unions from the definition of a "closed shop" is a clear infringement of the freedom of association principles which have the effect of prohibiting governments from according differential treatment to a given organisation over other organisations. In effect, the 1999 Bill provides that an employee can be required as an express or implied condition of his or her employment to be a member of an enterprise union. This provision nullifies any right for an employee to join a trade union of their choice.

It is conceivable that trade union officials and their members, whilst engaging in legitimate trade union activity of organising workers, could be found to be acting with an intent (in part) to establish a closed shop, and thereby incur a substantial penalty under the proposed legislation ($10,000 for trade unions and $2,000 for individuals). The prospect of such penalties being imposed on legitimate trade union activity is a clear contravention of the right to organise workers contained in Convention No 98.

This is the exectuive summary of ICTUR's submission to the Senate inquiry into the Workplace Relations Act

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Issue 33 contents

Interview: The Boys
Labor Party heavyweights Eric Roozendaal and Damian O'Connor will lock horns this weekend. They fire their first shots.

Economics: Reasons to Be Cheerful
Can we change the way we look at the economy to better reflect community happiness and well-being?

Unions: Breaking the Wave
ACTU President's submission to the Senate Inquiry into the Workplace Relations Act.

International: The Wisdom of Solomon
A disturbing case from the Pacific where corporate lawyers are playing a deadly game.

History: Groundhog Day
Ghosts of Conferences past: some strangely familiar debates and decisions from previous state ALP conferences

Legal: Bad, Bad Things
Some of Australia's leading industrial lawyers argue that the Workplace Relations Act breaches basic international obligations.

Review: Tailing Out
As the BHP steelworks close in Newcastle a special book chronicles the stories of working live that have just become history.

Satire: Police Cut-Backs Lead To Drop In Organised Crime
An audit of the NSW Police has revealed that they have been seriously cutting back their operating budgets to ensure that they will be able to afford the increased security costs of the Olympics.

Work/Time/Life: It's Official: Aussies Work Harder
Australians continue to work long hours in contrast to a world-wide trend in industrialised countries that has seen hours at work remaining steady or declining in recent years.

» Station Cuts Derailed - But More Hits for the Scull

» Social Audit Backed by Community Groups

» Unions Take Common Priorities to State Conference

» Simmering Discontent Hits Boiling Point

» Public Sector Job Numbers Rubbery

» Timor Protest to be Dumped in Reith Wave

» Big Lunch Break for Stress-Free Day

» Arch Apologises for Youth Wage Debacle

» Clean Air Policy Up In Smoke

» Child Carers Stretched to the Limit

» Building Workers Won�t Settle for Half Pay

» Life, Art and Politics