Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973)

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Article 4 of the Convention. Promotion of collective bargaining. The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act enhances the enterprise bargaining framework by: (i) removing unnecessary complexity, ensuring bargaining is genuine, fair and conducted in good faith, and making “the better off overall test” simple, flexible and fair; (ii) encouraging bargaining for single-enterprise agreements by making it easier to bargain and simplifying approval requirements; (iii) removing unnecessary limitations on access to “the supported bargaining stream” and “the single-interest employer authorisation stream”, and providing enhanced access to the Fair Work Commission (FWC) for employees and their employers who require assistance to bargain; and (iv) restoring balance and fairness to the system by ensuring the process for agreement terminations is fit for purpose and fair, and sunsetting outdated and unfair collective agreements (“zombie agreements”). The Committee understands from the above and from publicly available information, that the reforms aim to promote and facilitate collective bargaining, both with a single employer and multi-enterprise bargaining. This includes simplification of approval requirements for an enterprise agreement (the FWC must be satisfied of workers’ “genuine agreement”), simplified initiation of bargaining for replacement agreements (reduced use of “the majority support determination” under section 236 of the FWA), changes to provisions on unilateral termination of outdated agreements by employers, increased role of trade unions to veto a multi-enterprise agreement, facilitated bargaining of multiple employers with a common interest, and increased role of the FWC to assist in collective bargaining, whether in industries with low agreement coverage (“supported bargaining”) or in protracted negotiations (“intractable bargaining”), and to resolve bargaining disputes, including through easier access to arbitration. Taking due note of the numerous legislative amendments introduced aimed at enhancing collective bargaining, the Committee requests the Government to provide information on the application in practice of these changes, in particular on: (i) the application of the simplified initiation and approval of collective bargaining agreements; and (ii) the recourse to facilitation abilities of the FWC in the context of “supported bargaining” or “intractable bargaining” and their effect on collective bargaining coverage. The Committee also requests the Government to indicate whether the FWC may, under certain circumstances, have recourse to arbitration with compulsory effect requested by one of the parties or the authorities.

Scope of collective bargaining. Building industry. With reference to its previous comment, the Committee recalls that section 11 of the Code for the Tendering and Performance of Building Work 2016 (the Code), accompanying the Building and Construction Industry (Improving Productivity) (BCIIP) Act, prohibits certain types of clauses in collective agreements (the reference to the type of contractual arrangement offered by the employer, requirement to consult in relation to the engagement of subcontractors, the terms and conditions of employment for subcontractors, limiting employer decisions about redundancy, demobilization or redeployment of employees based on operational requirements, and providing for the establishment or maintenance of an area which is intended to be designated for use by members, officers, delegates or other representatives of a building association). The Committee therefore requested the Government to provide information on the discussion and review process of the Code (initiated in February 2020 but halted by the COVID-19 pandemic) and to indicate the progress made to review section 11, in consultation with the social partners, with a view to removing restrictions on collective bargaining matters. The Committee notes with satisfaction the Government’s indication that the Code, including section 11 on restrictions on the content of enterprise collective agreements, was repealed by the Secure Jobs, Better Pay Act. The Government adds that there are no ongoing court cases relating to the Code.

Greenfields agreements. The Committee recalls, from its previous comment, that section 182(4) of the FWA establishes a new process for the negotiation of single enterprise greenfields agreements (an agreement between a union and a new employer that has not yet employed any employees, used for new projects to provide more certainty on labour arrangements) which enables an employer to apply to the FWC for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months. The Committee requested the Government to continue providing information on any cases in which the FWC approved agreements pursuant to section 182(4), as well as on the outcome of the working group mentioned by the Government, which was considering potential reforms to greenfields agreements. The Committee notes the Government’s indication that since 2019, one agreement was approved under section 182(4) in relation to a wharf project. The Government further states that the industrial relations working groups contributed to the development of the Fair Work Legislation Amendment (Supporting Australia’s Jobs and Economic Recovery) Act, 2021, which in its draft version included reforms to greenfields agreements but which are not reflected in the Act, as adopted. Taking note of the above and recalling that compulsory arbitration may be permissible in the case of first collective agreements so as to promote collective bargaining where the first steps to sound industrial relations in new contexts may be difficult, the Committee requests the Government to continue to provide information on collective bargaining agreements adopted pursuant to section 182(4) of the FWA, as well as on any measures taken to discuss or review the use of greenfields agreements.

Individual flexibility arrangements (IFAs). In its previous comment, the Committee noted that, pursuant to section 202 of the FWA, an enterprise agreement must include a term that enables an employee and their employer to agree to an IFA, varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs, while ensuring that the employee is better off overall than if no IFA had been agreed to (section 203(4)). The Committee requested the Government to continue providing information on the application of this and other relevant provisions of the FWA in practice, as well as any supervision or complaints submitted in relation to these arrangements. The Committee notes the information provided by the Government that the General Manager’s report on the use of IFAs from 2018 to 2021 found that the prevalence of IFAs was low but occurred in a range of industries and the respondents involved in the survey generally indicated to have concluded between two and ten IFAs, even though the survey method does not allow for reliable calculations. The Government adds that it is not aware of any significant considerations by the FWC or the relevant courts of any provisions relating to IFAs except for one decision in the aviation sector (a dispute in which the employer unilaterally terminated pilots’ IFAs under an enterprise agreement in response to the COVID-19 pandemic; the parties agreed to a settlement by providing new IFAs to the pilots). Taking note of the above, the Committee requests the Government to continue to provide information on the application of this and other relevant provisions of the FWA in practice, as well as any supervision or complaints submitted in relation to these arrangements.

Conclusion of an enterprise agreement with a group of employees. The Committee’s previous comments concerned the practice which permitted, under the FWA, the conclusion of an enterprise agreement, negotiated with a small number of employees, and its subsequent extension to cover a larger number of employees hired afterwards. The Committee requested the Government to provide detailed information on the application of these provisions, including on any cases observed of such agreements interfering with established workers’ organizations. The Committee notes the Government’s indication that there are no statistics on the exact number of agreements concluded by small voter cohorts. The Government further informs that: (i) the Secure Jobs, Better Pay Act simplified the approval requirements for enterprise agreements by providing one broad requirement that the FWC must be satisfied that an enterprise agreement has been genuinely agreed to by the employees; (ii) the Act also directly addressed the issue of small voter cohorts by amendments to section 188 of the FWA, which now stipulates that the FWC can only be satisfied that an enterprise agreement has been genuinely agreed to by employees if the employees who requested to approve the agreement by voting for it have a sufficient interest in the terms of the agreement and are sufficiently representative, having regard to the employees the full agreement is expressed to cover; and (iii) the FWC published a statement of principles setting out matters that it must take into account in determining whether it is satisfied that an enterprise agreement has been genuinely agreed to by the employees. The Committee takes due note of these amendments. Recalling that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective bargaining level, the Committee requests the Government to take further measures to: (i) gather information on the number of enterprise agreements signed with small cohort workers; and (ii) ensure that such agreements do not interfere with the actions of established workers’ organizations.

State jurisdictions. New South Wales. The Committee had previously noted the restriction imposed by clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation, 2014 on the content of collective bargaining (policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments) and requested the Government to indicate the precise categories of public servants covered by the 2014 Regulation. The Committee notes the Government’s indication that the 2014 Regulation was automatically repealed in September 2023 and will have no further application. The Government also informs about the establishment of an Industrial Relations Taskforce, which will work, among other activities, on adding a new, more consultative interest-based bargaining stream to allow frontline workers and their representatives to engage with Government agencies to identify savings and productivity gains in exchange for pay increases. It will also ensure that the Industrial Relations Commission is independent, properly resourced and with real powers to prevent and settle industrial disputes. The Committee requests the Government to provide updates on the functioning of the Taskforce and, in particular, to provide information on any decisions or measures taken which have an effect on the application of the Convention.

Victoria. The Committee notes the adoption of the Victorian Public Service Agreement, 2020, which the Government indicates is the key industrial instrument for public service covering 35,000 employees. The Government also emphasizes that the Public Sector Workplace Relations Policies, 2015 (no changes), read together with the Wages Policy and Enterprise Bargaining Framework, 2023 set out the position of the Victorian Government on a number of workplace relations matters arising in the public sector and covering approximately 260,000 employees. These include, among others, the Government’s promotion of free choice of union representatives in collective bargaining and a proposal to develop a Best Practice Employment Commitment on matters of collective bargaining.

Queensland. The Committee notes the Government’s indication that the 2021 review of Queensland’s Industrial Relations Act, 2016 pointed to a lack of clarity as to which organizations could act in industrial matters, resulting from some organizations purporting to be trade unions but not complying with any registration or reporting requirements of the Act. In reply, the Industrial Relations and Other Legislation Amendment Act, 2022 was adopted, which includes amendments to the definition of registered organizations and introduces civil penalties for misrepresentations. It also introduces amendments allowing a single Commissioner of the Industrial Relations Commission to mediate or arbitrate one or more matters in dispute in bargaining negotiations, at the joint request of the parties; and amendments providing a framework for good faith collective bargaining. The Committee also notes that the Act aims to regulate working conditions of independent couriers, including their right to collective bargaining. While taking due note of the Government’s indication that the amendments were introduced to address concerns of entities misrepresenting themselves as trade unions, the Committee requests the Government to ensure that the amendments are applied in line with the Convention so as not to restrict the exercise, by legitimate trade union organizations, of the rights protected by the Convention. The Committee requests the Government to provide information on the practical application of these amendments.

Application of the Convention in practice. The Committee notes the Government’s reference to the report of the General Manager of the FWC on developments in enterprise agreements, which indicates that between 2018 and 2021 fewer enterprise agreements were approved and fewer employees were covered by these agreements than in the previous reporting period. The Government further informs that the Victorian Equal Opportunity and Human Rights Commission (State of Victoria) received 456 enquiries about discrimination on the basis of industrial activity and 439 formal complaints of discrimination on this basis between 2019 and 2023, industrial action ranking high in the most common complaints received, compared to previous years. Taking note of this information, the Committee encourages the Government to continue to provide information on the application of the Convention in practice.