Texts of pending comments

Articles 2, 3 and 5 of the Convention. Right of workers to form and join organizations of their own choosing without previous authorization and of these organizations to elect their officers, freely organize their activities and formulate their programmes without undue interference. In its previous comment, the Committee noted the deep and serious concern expressed by the ITUC regarding the attempt by the Government to pass the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 into law, which it considered was contrary to the Convention. Having noted with concern the numerous proposals raised in the Bill which would broaden the possibilities of intervention in the internal functioning of workers’ organizations, the Committee had called upon the Government to review the proposals in the Bill with the representative workers’ and employers’ organizations concerned so as to ensure that any measures adopted were in full conformity with the Convention and to keep it informed in this regard. The Committee notes from the Government’s report that, on 26 May 2020, the Prime Minister announced that the Government would not pursue a further vote in the Parliament on the Ensuring Integrity Bill. The Prime Minister indicated that this decision was made in good faith in order to maximise the opportunity for genuine negotiation, compromise and cooperation as part of an industrial relations reform process designed to create jobs and chart a path back to mutually beneficial prosperity following the COVID-19 pandemic. The Committee requests the Government to provide information in its future reports on any legislative developments or proposals concerning the industrial relations reform process.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take all appropriate measures, in consultation with the social partners, to review: (i) the provisions of the Competition and Consumer Act prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act (FWA) relating to suspension or termination of protected industrial action in specific circumstances; (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and (iv) boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade; and to provide detailed information on the application of these provisions in practice with a view to bringing them into full conformity with the Convention.

The Committee notes the Government’s reiteration that the 2015 reports of all three independent bodies, which had examined the operation of secondary boycott provisions under the Competition and Consumer Act, found that a strong case remained for retaining their prohibition. As regards the Crimes Act, the Committee notes the Government’s indication that there have been no referrals for prosecution of an offence contrary to section 30J since the 1980s and that there has only been one prosecution of an offence contrary to section 30K in 1988. The Government therefore does not consider that these offences are being used in a manner contrary to the right of workers’ organizations and does not consider that a review of these provisions is necessary at this time.

While duly noting the absence of prosecution under the Crimes Act in recent times, the Committee, observing the chilling impact that these provisions may nevertheless have on the right of workers’ organizations to organize their activities and carry out their programmes in full freedom, once again requests the Government, to continue to keep the above-mentioned provisions under review, in consultation with the social partners, so as to ensure that they are not applied in a manner contrary to this right. It further requests the Government to continue providing detailed information on the application of these provisions in practice.

In its 2019 report, the Government indicated that it considers the above provisions dealing with industrial action to be necessary, reasonable and proportionate to support the objects of the FWA, which is to provide a balanced framework for cooperative and productive industrial relations that promotes national economic prosperity and social inclusion for all Australians. While protected industrial action is legitimate during bargaining for a proposed enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease, at least temporarily. The Government adds that a variety of factors must be taken into account when considering an application under section 423 of the FWA and that such applications are rare, with two applications lodged in 2016–17 and one application lodged in 2017–18. As regards section 424, there have been relatively few applications with only nine in 2017–18, in contrast to 579 applications for a protected action ballot order during the same period. Finally, there were only two applications made under section 426 in 2017–18.

The Government indicates that no decisions were made under sections 423 and 426, while it provides some examples of decisions taken by the FWC under section 424 either to suspend or terminate protected industrial action or to refuse to issue such an order. Cases concerning the termination or suspension of industrial action included: (a) terminated action in an oil refinery that would cause significant damage to the Western Australian economy estimated at nearly 90 million Australian dollars per day as well as to the Australian economy as a whole; (b) suspension for two months of industrial action by employees of court security and custodial services where the action threatened to endanger the personal safety, health and welfare of part of the population; (c) the suspension in the form of an indefinite ban on a work stoppage in railway transport which threatened to endanger the welfare of a part of the population and threated to cause significant damage to the Sydney economy; and (d) termination of industrial action affecting the Australian Border Force. An application requesting termination of industrial action in independent schools was however refused noting that, while the action was causing “inconvenience”, it was “not as yet causing significant harm”.

The Committee appreciates the information transmitted by the Government concerning the practical application of these provisions in the FWA. The Committee notes that some of the services concerned in the cases where industrial action was either suspended or terminated (such as border control, court security and custodial services) may be understood to be essential services in the strict sense of the term or public servants exercising activity in the name of the State where strike action may be restricted. The Committee recalls however that it does not consider oil refinery or railway transport to constitute services in which this right may be fully restricted, although the Government may consider the establishment of negotiated minimum services.

In the light of the above comments, the Committee requests the Government to keep it informed of any steps taken within the framework of the overall industrial relations reform process to review these provisions of the FWA.

The Committee is raising other matters in a request addressed directly to the Government.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Protected action ballots. In its previous comments, the Committee noted the observations of the Australian Council of Trade Unions (ACTU) that the amendment to section 437 of the Fair Work Act (FWA) overturned the right to take industrial action prior to the commencement of bargaining. The ACTU further indicated that the obligation to obtain a majority support determination (pursuant to section 236 of the FWA, a determination by the Fair Work Commission that a majority of employees that will be covered by the agreement want to bargain with the employer) where the employer refuses to bargain, prior to seeking a protected industrial action ballot order, was a significant restriction on the right to strike, constituting a prohibition on strikes related to recognition disputes.

The Committee notes the Government’s reiteration that this amendment was considered necessary, reasonable and proportionate to achieving the legitimate objectives of: promoting the integrity of the collective bargaining framework, including by giving primacy to negotiations voluntarily entered into and conducted in good faith; balancing the right to voluntary collective bargaining with the requirement to bargain where a majority of employees wish to do so; and providing greater certainty as to the circumstances in which protected industrial action can be taken. The Government adds that applications for majority support determinations pursuant to section 236 have not significantly changed since the amendment came into force and provides statistical information in this regard. The Government also provides some examples of decisions of the Fair Work Commission in relation to notification time.

The Committee once again requests the Government to review section 437(2A) of the FWA in consultation with the social partners within the framework of the industrial relations reform process to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom. It further requests the Government to continue supplying information on the application of this provision in practice.

Fair Work (Registered Organisations) Amendment Bill. In its previous comments, the Committee noted the observations of the ACTU that the Fair Work (Registered Organisations) Amendment Bill would further regulate the activities of unions and increase the penalties for officials of registered organizations, which includes unions, including the introduction of criminal offences related to financial management. The Committee notes the Government’s indication that the Fair Work (Registered Organisations) Amendment Act 2016 amended the FWA and the Fair Work (Registered Organisations) Act 2009 to ensure better governance and financial accountability of registered organizations (unions and employer groups). Major changes included: the establishment of the Registered Organisations Commission on 1 May 2017 to regulate registered organizations with enhanced investigation and information gathering powers; new accounting and disclosure requirements; new criminal offences for serious breaches of officers’ duties; and increased civil penalties, including penalties for breaches of officers’ duties. The Government states that the reforms were introduced following high profile instances of financial misconduct within registered organisations and were supported by the findings and recommendations of the Royal Commission into Trade Union Governance and Corruption. The Registered Organizations Commissioner has concluded ten Federation Court proceedings with one pending proceeding. The misconduct alleged in these cases concerned: the failure by an organization to lodge prescribed information to enable the conduct of elections for over a decade; artificial inflation of membership numbers over a five year period; accepting payments for the organization in exchange for failing to seek better terms and conditions for certain members; failure to lodge financial returns over a number of years and failing to keep proper financial records.

The Committee requests the Government to continue to provide detailed information on the activities of the Commission, investigations undertaken and any penalties or fines issued.

Building industry. In its previous comments, the Committee noted the observations of the ACTU concerning the Building and Construction Industry (Improving Productivity) (BCIIP) Act and the Building and Construction Industry (Consequential and Transitional Provisions) Act. As regards restrictions on picketing in section 47 of the BCIIP Act, the Committee recalled that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, while it is also necessary to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises, and that penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed. The Committee notes the Government’s indication that the prohibition on unlawful picketing is necessary in the interests of public safety, public order, and the protection of the rights and freedoms of others and does not of itself affect the engaging in or taking of protected industrial action under the FWA. The BCIIP Act allows the Australian Building and Construction Commissioner (ABCC) to make an application to a court against parties who engage in unlawful picketing so as to act as a disincentive and to change the culture of the industry for the better, thereby protecting the rights and safety of all workers and employers. The Government indicates that as of 8 September 2020 the Federal Court had imposed penalties ranging from 96,000 to 255,000 AUD for the breach of unlawful picketing provision in three cases. The Committee also observes that the Committee on Freedom of Association has reviewed this matter within the framework of Case No. 3278 and requested it to ensure that the prohibition of unlawful picketing is applied in a manner consistent with the principles of freedom of association and the effective recognition of the right to collective bargaining, and to provide detailed information on the manner in which section 47 is applied in practice across the next three years including copies of any relevant court decisions that might touch on the interpretation of this section during that period. Recalling that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, the Committee requests the Government to review the application of this section, in consultation with the social partners, with a view to ensuring that its provisions are in conformity with the above-mentioned considerations and to continue to provide information on its application in practice.

In its previous comments, the Committee requested the Government to provide information on measures taken to introduce sufficient safeguards to ensure that the functioning of the ABCC did not lead to interference in the internal affairs of trade unions and to ensure that penalties are proportional to the gravity of the offence. The Committee notes the Government’s indication that it has provided detailed comments to the Committee on Freedom of Association within the framework of Case No. 3278 and that important safeguards have been put in place to ensure that examination notices are used appropriately and to protect persons required to give information under an examination notice. The Government indicates that only 3 union officials have been summoned for examination since 2 December 2016 and there have been no criminal prosecutions to date of trade union representatives or any witness for failure to comply with the examination powers. The Review of the BCIIP Act released in October 2018 noted that the current arrangements for exercising oversight of the compulsory examination powers are generally appropriate. Observing that the Committee on Freedom of Association requested the Government to keep it informed of any use of these penal sanctions against trade unions over a period of three years, the Committee requests the Government to continue to provide information on any measures taken or envisaged to further safeguard the rights of workers’ organizations in exercising their legitimate activities and to ensure that any penalties inflicted for failure to provide information requested are proportional to the gravity of the offence.

In its previous comments, the Committee requested the Government to review the application of provisions in the BCIIP Act which defined unlawful industrial action as including action that is engaged in concert with one or more persons (or the organizers of the action include persons) that are not “protected persons”. Protected persons are defined as an employee organization that is a bargaining representative for the proposed enterprise agreement; a member of such an organization who is employed by the employer and who will be covered by the enterprise agreement; an officer of such an organization; and an employee who is a bargaining representative for the proposed enterprise agreement. The Committee notes the Government’s indication in its 2019 report that these provisions are reasonable, necessary and proportionate to legitimate aims, including that sympathy action (i.e. by persons not directly engaged in bargaining for an enterprise agreement) is not used as a means to place unreasonable pressure on employers in the building industry during enterprise bargaining. The Government added that these adjustments were based on recommendations by the Cole Royal Commission to address undesirable practices that were more common in the building industry than in other industries. The Committee further notes the indication in the Government’s latest report that it had released a discussion paper on 18 February 2020 on the Code for the Tendering and Performance of Building Work 2016, welcoming views from stakeholders, including social partners, on its operation and potential areas for strengthening to ensure it remains fit for purpose. As a result of COVID-19, the consultation process has been paused. Recalling once again that workers’ organizations should be able to call for industrial action in support of multi-employer contracts, the Committee requests the Government to provide information on any further measures taken to review the application of these provisions with the social partners, and to provide information on any developments in this regard including the consultation process paused in early 2020 as a result of COVID-19.

State jurisdictions. New South Wales (NSW). The Committee recalls that its previous comments concerned the need to amend section 226(c) of the Industrial Relations Act (IRA), 1996, which provides that the registration of an organization may be cancelled where it or its members engage in industrial action having a major and substantially adverse effect on the provision of any public service. The Committee notes from the Government’s latest report that there has still not been any action taken to cancel the registration of a registered organization on the grounds set out in section 226(c) and that the 1996 IRA has no effect beyond the NSW public sector and local government. It further observes the Government’s indication that workers in state-owned corporations delivering essential services such as electricity, water, transport, etc., lie outside the NSW industrial relations jurisdiction and are therefore not covered under the IRA but rather under the provisions of the FWA 2009. Moreover, the Government stresses that this section has not been used to cancel the registration of any registered organization. The Committee requests the Government to provide information should this provision be used in the future to cancel the registration of a registered organization.

Queensland. The Committee previously noted that the Industrial Relations Act (IRA), 1999 had been amended to provide the Minister (Attorney-General) with the power to terminate protected industrial action in relation to a proposed agreement, if the Minister is satisfied that the action is being engaged in, or is threatened, intending or probable, and that the action is threatening or would threaten to cause or has caused, significant damage to the economy, community or local community, or part of the economy (section 181B(1)(a) and (b)(ii)). While noting with interest that, following the review of the IRA, section 241 of the 2016 Act relating to Industrial Relations in Queensland now grants this authority to the Queensland Industrial Relations Commission (QIRC) (established as a court of record), the Committee observes that the new Act retains the provision for suspension or termination of industrial action which threatens to cause significant damage to the State’s economy or part of it. The Committee further notes the Government’s indication that the QIRCs power to suspend threatened industrial action under section 240 has not been used to date, while the power under section 241 has been used five times since the section’s commencement (four of the five concerning corrective services officers and only two of these applications for suspension being granted). While it would appear from the information made available to it that the suspension orders related to industrial action under section 241 concerned essential services in the strict sense of the term, the Committee recalls that economic damage, as also allowed for in sections 240 and 241(1)(b), does not in itself render a service essential. The Committee requests the Government to continue to provide information on any instances where the commission may have suspended or terminated industrial action under this provision.

Western Australia. The Committee had previously raised the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid, and requested the Government to indicate any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. Observing from the Government’s report that there has been no change in this respect, the Committee once again requests it to take action so that the state government will review this provision with the social partners in order to ensure that provisions relating to trade union membership and subscriptions are removed from the law and regulated by the internal rules of the organizations concerned.

Article 4 of the Convention. Promotion of collective bargaining. 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, including: the reference to the type of contractual arrangement offered by the employer (such as a limitation of casual or daily hire employees) or requiring consultation in relation to the engagement of subcontractors; the terms and conditions of employment for subcontractors or 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 notes that the Government specifies with respect to some of these exclusions that the Code does not ban consultation with unions, but only prohibits the inclusion of clauses requiring consultation on specified matters. The Government considers that the measures in section 11 of the Code are necessary to enable effective and productive business management, given the circumstances within the building and construction industry, such as evidence that unions use the clauses in question to apply undue pressure for employers to give preference to union subcontractors and workers. Clauses not permitted by the Code can still be included in agreements with builders who do not wish to undertake taxpayer-funded work and thus do not need to comply with the Code. However, the inclusion of these restrictions in the Code enables the Government through its purchasing power to use one of its strongest levers to change the culture of disregard for the law that has pervaded parts of the building and construction industry.

The Committee notes the Government’s reference to the examination of this legislation by the Committee on Freedom of Association (CFA) within the framework of Case No. 3278 (see 388th Report, March 2019, paragraphs 109–165). The Committee, like the CFA, once again recalls that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and underlines that, in light of the increasing impact on conditions of employment of the diversification of contractual work arrangements, parties should not be penalized for deciding to include such issues in their negotiations. The Committee notes the latest information provided by the Government that it had released a discussion on the Code in February 2020, welcoming the views of the stakeholders, including the social partners, on its operation and potential areas where it could be strengthened to ensure it remains fit for purpose. As a result of COVID-19, however, the consultation process has been paused. The Committee requests the Government to inform of the review process of the Code once it has been recommenced and to indicate the progress made within this framework, in particular to review section 11, in consultation with the social partners, with a view to removing restrictions on collective bargaining matters.

Greenfields agreements. The Committee recalls that section 182(4) of the Fair Work Act (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 enable an employer to apply to the Fair Work Commission for the approval of its greenfields agreement where an agreement cannot be reached with the relevant employee organization within six months.

The Committee notes the information provided by the Government relating to the 2017 independent Greenfields Agreement Review, which received submissions from Australia’s social partners and a range of other workers’ and employers’ organizations. The Government indicates that the review specifically supported the retention of the mechanism to resolve greenfields bargaining impasses (Recommendation 6). The Review was satisfied with the protections provided in this regard and in fact noted that, in the context of all the information provided to it, a six-month negotiation period represented a substantial possible delay and could very likely jeopardize either a final project approval decision or a contractor’s capacity to participate in a project. The Review also considered that the application of the prevailing pay and conditions test would most likely extend the normal approval time for a greenfields agreement. For all these reasons, including the employment significance of the successful negotiation of greenfields agreements, the Review was satisfied that a capacity to resolve disagreements about greenfields agreements was necessary and further recommended the reduction of the six-month period for negotiation, which it considered to be too long (Recommendation 7). The Government indicates however that it has not implemented the recommendation to reduce the bargaining period. In response to the Australian Council of Trade Unions (ACTU) allegation that employers may seek to withhold consent to an agreement to take advantage of these provisions, the Government recalls that the requirements for bargaining in good faith also extend to the negotiation of greenfields agreements and that the Fair Work Commission may make bargaining orders if it is satisfied that one or more of the bargaining representatives for the proposed agreement have not met or are not meeting the good faith bargaining requirements. The Fair Work Commission advised the Review that no applications had been made up to that point for a bargaining order in relation to a greenfields agreement. The Government adds that no agreements have so far been approved by the Commission under section 182(4). The Government adds that a greenfields agreement is not imposed on negotiating parties but rather all parties have an opportunity to present their case and the Commission must be satisfied that the Agreement, considered on an overall basis, provides for pay and conditions that are consistent with the prevailing pay and conditions with the relevant industry for the equivalent work (section 187(6)). Finally, the Government indicates that on 26 May 2020, the Prime Minister announced the establishment of five industrial relations working groups comprising of employer representatives and employee representatives to develop proposals for a reform agenda aimed at job creation, one of which is considering potential reforms to current greenfields agreements arrangements. 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 providing information on any cases in which the Fair Work Commission has approved agreements pursuant to section 182(4), as well as on the outcome of the working group considering potential reforms to greenfields agreements.

Individual flexibility arrangements (IFA). In its previous comments, 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 individual flexibility arrangement varying the effect of the enterprise agreement in relation to the employee and the employer, in order to meet their genuine needs. The Committee took note of the concerns of the ACTU that employers frequently use individual flexibility arrangements to undercut the terms contained in a collective agreement or modern award and apply pressure to employees to accept unfair arrangements while the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would give primacy to inferior individual agreements over collective agreements, expand the range of matters subject to individual agreements and modify the operation of the better off overall test to enable non-monetary benefits to be taken into account.

The Committee notes the Government’s indication that the FWA provides safeguards to address the ACTU’s concerns, including that an employee must be better off overall under any IFA (section 203). The Government adds that both parties must genuinely agree to an IFA, an employee cannot be forced to sign an IFA to secure a job, and an employee has a right to refuse to agree to an IFA. If an employer were attempting to exert undue influence or pressure on an employee to agree to an IFA, an employee would have recourse to the general protections provisions of the FWA. If an employee and employer agree to an IFA, the IFA is taken to be a term of the agreement, and the usual remedies for breach of the terms and conditions of an agreement would apply. While the Government considers that the measures in the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 would have allowed employees and employers greater capacity to tailor working arrangements to suit their individual needs, it informs the Committee that the Bill lapsed at the prorogation of the Parliament on 15 April 2016.

As regards the application of IFA provisions in practice, the Government indicates that, between 1 July 2015 and 30 June 2018, 9 per cent of employers who responded to the Commonwealth’s Survey of Employer’s Recruitment Experiences reported that they had made at least one IFA. Of these, the highest proportion of employers indicated that the IFA varied a condition of employment in a modern award (36 per cent), while 25 per cent of respondents indicated that the IFA varied an enterprise agreement. Twenty-nine per cent indicated that they had made IFAs which varied both a modern award and an agreement. The Government recalls that an IFA can be made at any time after the employee has started working for the employer and ended at any time by written agreement between an employer and employee. In the event there is not agreement, an IFA can be ended by giving the other party appropriate notice (13 weeks’ notice under an award, no more than 28 days as specified in enterprise agreements).

Duly noting that the flexibility term in an enterprise agreement must require the employer to ensure that any individual flexibility arrangement results in the employee being better off overall, a notion which may be difficult to objectively define, the Committee requests the Government to continue providing information on the application of the provisions of the FWA concerning individual flexibility arrangements 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 raised by the ACTU 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 recalled that, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations of whatever level, and with employers and their organizations, and that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level. It requested the Government to take measures to ensure that collective bargaining with workers’ organizations is not undermined in practice and to provide detailed information on the application of these provisions.

The Committee notes the Government’s indication that the provisions in the FWA that deal with genuine agreement (including with respect to agreements voted on by small voter cohorts) are currently operating as intended and are reasonable and proportionate to support the objectives of Fair Work and the Australian industrial environment. In particular, the provisions in conjunction with the developing case law provide adequate protections regarding genuine agreement, including avenues available to parties to seek review of approval decisions. The Government adds that an employer that will be covered by a proposed enterprise agreement must take all reasonable steps to give Notice of Employee Representational Rights (NERR) to each employee that will be covered by the proposed enterprise agreement, as soon as practicable, and no later than 14 days after the notification time. Provision of the NERR ensures that employees are aware of their rights around appointing bargaining representatives, including in workplaces where there is no union member and hence no union as a default bargaining representative. The provision of the NERR to employees also assists the Fair Work Commission to determine who is proposed to be covered by the enterprise agreement. The Fair Work Act also contains a requirement for the Fair Work Commission to be satisfied that an agreement has been genuinely agreed to by the employees employed at the time who will be covered by it. Moreover, the Explanatory Memorandum of the Fair Work Bill 2008 indicates that, when an agreement contains a large number of classifications in which employees are not employed, there may be a question as to whether the agreement was genuinely agreed to under section 188 of the Fair Work Act. While the High Court of Australia has made clear that enterprise agreements with broad coverage can properly be made with small cohorts of employees, some agreements have not been approved due to concerns that the small voting cohort in those particular matters could not have genuinely agreed to an agreement that covers a large number and variety of classifications. Finally, the Government indicates that, before approving an enterprise agreement, the Fair Work Commission must be satisfied that each award covered employee and prospective award covered employee will be better off overall under the proposed enterprise agreement than if the relevant modern award applied (section 186(2)(d)). The Committee requests the Government to provide statistics on the number of agreements concluded by small voter cohorts and information on any cases observed of such agreements interfering with established workers’ organizations or of having been found to extend to a large coverage of workers that could not be considered to represent genuine agreements.

State jurisdictions. New South Wales (NSW). In its previous comments, the Committee requested the Government to provide information on the measures taken to review the restriction imposed by clause 6(1)(f) of the 2014 Industrial Relations (Public Sector Conditions of Employment) Regulation, in consultation with the social partners, so as to promote collective bargaining on all matters related to terms and conditions of employment for public servants not engaged in the administration of the State.

The Committee notes the Government’s indication that the NSW Government is committed to consulting with its employees in relation to the terms and conditions of their employment. While clause 6(1)(f) of the Industrial Relations (Public Sector Conditions of Employment) Regulation 2014 (the Regulation) states that policies regarding the management of excess public sector employees are not to be incorporated into industrial instruments, the policy is enacted through Premier’s Memorandum M2011-11, alongside other mechanisms by which the Government consults its employees. The Government also refers to Premier’s Memorandum M2016-02 (Transfer of Government Sector services or functions to the Non-Government Sector) and the NSW Government Guidelines on Change Management, which require agencies to consult with employees and the relevant union(s) on the content of a change management plan, including details of employee services and any proposed voluntary redundancy programme. While these policies sit outside the Regulation, agencies are obliged to consult with public sector employees and their representatives according to the provisions in industrial instruments, such as awards. For example, the major award covering public sector employees, the Crown Employees (Public Sector Conditions of Employment) Reviewed Award 2009, contains obligations that departments consult with unions, both formally and informally, regarding change. Recalling the importance placed in Article 4 of the Convention on promoting collective bargaining on all matters related to terms and conditions of employment, the Committee requests the Government to indicate the precise categories of public servants covered by the 2014 Regulation, and in particular whether they may cover public servants not engaged in the administration of the State, such as teachers or those working in state institutions or enterprises.

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

Article 4 of the Convention. Promotion of collective bargaining. Scope of collective bargaining. Fair Work Act (FWA). In its previous comments, the Committee noted that sections 186(4), 194 and 470–475 of the FWA exclude from collective bargaining as “unlawful terms” any terms relating to the extension of unfair dismissal benefits to workers not yet employed for the statutory period, the provision of strike pay, the payment of bargaining fees to a trade union, and the creation of a union’s right to entry for compliance purposes more extensive than under the provisions of the FWA. It had observed the concerns expressed by the Australian Council of Trade Unions (ACTU) with respect to the restrictions in the FWA on the content of agreements and requested the Government to review these sections, in consultation with the social partners, so as to bring them into accordance with the Convention.

The Committee notes that the Government considers these provisions to be appropriate to Australia’s national conditions (as permitted by Article 4) and that the formulation “matters pertaining to the employment relationship” in section 172(1) in relation to permissible content in enterprise agreements is a long-standing part of Australia’s industrial relations framework developed through extensive tripartite negotiation and consultation with the social partners, including the ACTU. The Government adds that the post-implementation review of the FWA by an independent expert panel (the Review Panel) was informed by submissions from various stakeholders (including the social partners) and supported the FWA content rules. Finally, the Government concludes that the current provisions dealing with permitted matters in enterprise agreements are necessary, reasonable and proportionate to support the objects of the FWA.

Emphasizing that the measures adapted to the national conditions referred to in Article 4 of the Convention should aim to encourage and promote the full development and utilization of machinery for collective bargaining, and recalling that legislation or measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention, while tripartite discussions for the voluntary preparation of guidelines for collective bargaining are a particularly appropriate method of resolving such difficulties (see the 2012 General Survey on the fundamental Conventions, paragraph 215), the Committee once again requests the Government to review the above-mentioned sections of the FWA, in consultation with the social partners, so as to leave the greatest possible autonomy to the parties in collective bargaining.

The Committee also notes the supplementary information provided by the State of Queensland that as part of the health workforce response to the COVID-19 pandemic, a set of industrial relations principles and supporting documents were developed in partnership between Queensland Health and the relevant unions. These principles form an overarching employment framework in addition to the existing Certified Agreements and Awards, to allow for the rapid and respectful consultation required to make rapid temporary changes, while ensuring that industrial obligations continue to be met. The principles enshrined a commitment to flexibility on both the part of the employer and staff and ensure that the union rights of entry and right to organize continued to be met throughout the pandemic in a safe manner. The Committee welcomes these efforts to ensure broad-ranged consultation and effective and safe union access to defend workers’ interests in the challenging context of the COVID-19 pandemic.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU), received on 10 October 2018.

Articles 1 and 2 of the Convention. Legislative developments. The Committee previously welcomed the adoption of the Workplace Gender Equality Act of 2012 (the Act), under which all non-public sector employers with more than 100 employees must report annually to the Workplace Gender Equality Agency (WGEA) against a set of gender equality indicators, including equal remuneration between women and men. It noted that, following the amendments made in 2015 to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1), with the aim of streamlining workplace gender equality reporting requirements in response to the difficulties encountered by businesses in complying with the former requirements (employers were no longer required to report on several elements concerning remuneration), a working group of stakeholders had been established to identify ways of improving data collection. The Committee requested the Government to provide information on the composition of the working group, the outcome of its discussions and any follow-up action taken. The Committee notes the Government’s statement, in its report, that the non-manager working group was tasked with ensuring that reporting on standardized occupational categories and remuneration met the intended purpose of identifying disparities at the workplace level, so that the data is useful for benchmarking and for employers to improve gender equality in the workplace, which is consistent with the Act’s objectives and the principle of the Convention. The working group identified Standard Business Reporting (SBR) as the best option to meet the dual aims of reducing the reporting burden on employers while improving data quality. The Workers’ group recommended that an SBR pilot be developed and tested by the WGEA to investigate how an SBR-like solution could work for reporting under the Act. The Government adds that the options tested were not viable at that time. Referring to the amendments made in 2015 to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1), the Government indicates that the amendments reflected extensive consultation, following the Workplace Gender Equality Reporting Regulation Impact Statement (2015), which assessed the burden of reporting as quite high, to the extent that it was affecting data quality. The Government states that the 2013 Instrument requires reporting on additional data including appointments, promotions and resignations, as well as the proportion of employees ceasing employment before returning to work from parental leave. Furthermore, data continue to be collected on flexible working arrangements, as well as gender-specific access to parental leave and support for caring. The Committee notes the Government’s indication that the WGEA 2016–17 dataset indicates that there has been a 10.8 percentage points rise in the proportion of employers analysing their remuneration data for gender pay gaps, and that the proportion of organizations with specific pay equity objectives in their remuneration policy and/or strategy has doubled over the last three reporting periods. In 2017, in accordance with the Workplace Gender Equality Act 2012, the WGEA reported on progress achieved in relation to the gender equality indicators in its 2014–16 Progress Report to the Minister. The Report indicated that compliance with the Act remains strong at about 99 per cent. The Report also noted that the value of the data is becoming widely recognized by employers and the research community. The Committee however notes the ACTU’s reiterated concerns regarding the reporting process implemented under the WGEA and its indication that it is neither rigorous nor detailed enough, as companies do not have to disclose actual pay data, but merely to tick a box advising whether or not they have an equal remuneration policy in place. The ACTU adds that companies, including those with fewer than 100 employees, should be required to provide detailed information on wages to enable a proper assessment of the causes, effects and drivers of the gender pay gap. The Committee asks the Government to provide information on the steps taken to evaluate, in collaboration with workers’ and employers’ organizations, the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) in light of the objectives of the Workplace Gender Equality Act, 2012 and the principle of the Convention. It asks the Government to provide information on any measures taken or envisaged to improve data collection on remuneration from companies, including those that employ fewer than 100 employees, and ensure the effectiveness of the reporting process implemented under the Workplace Gender Equality Act of 2012, including as a result of the recommendations made by the multi-stakeholders working group.

With regard to Queensland, the Committee welcomes the adoption of the Industrial Relations Act 2016 (IR Act), which entered into force on 1 March 2017 and covers only public sector workers and those who work for municipal councils in Queensland, as well as of the Industrial Relations Regulations 2018, which entered into force on 1 March 2018. It notes more particularly that the Queensland Industrial Relations Commission shall ensure equal remuneration for work of equal or comparable value, including by establishing and maintaining a system of non discriminatory awards; supervising the bargaining of agreements and certifying those agreements; and making equal remuneration orders to ensure that employees covered by the order receive equal remuneration when the Commission is not satisfied that an award or agreement provides equal remuneration (sections 4(j), 141(2)(d), 143(1)(c), 201, 245–259, and 447(1) of the IR Act). The Committee asks the Government to provide information on the practical implementation of the Industrial Relations Act 2016 and the Industrial Relations Regulations 2018, including on the measures taken by the Queensland Industrial Relations Commission to ensure equal remuneration for work of equal value in awards, agreements and through equal remuneration orders in accordance with the obligations imposed by the Convention. It asks the Government to provide information on any difficulties encountered in the implementation of the Act and the Regulations, as well as the measures taken or envisaged to overcome them.

With regard to Victoria, the Committee notes that a Gender Equality Bill 2018, containing new obligations for the Victorian public sector to plan and report on gender equality, has been released for public consultation. The Committee asks the Government to provide information on any progress made towards the adoption of the Gender Equality Bill 2018 and to provide a copy once adopted.

With regard to Western Australia, the Committee notes that, in September 2017, the Ministerial Review of the State Industrial Relations System (the Review) was established in order to, inter alia, consider including an equal remuneration provision in the Industrial Relations Act 1979 (the IR Act), which applies to State public sector workers, municipal council workers and other workers in Western Australia not covered by the Fair Work Act, 2009. It notes that, on July 2018, the Review released its final report in which it recommended amending the IR Act to: (i) include an equal remuneration provision based on the model of the Queensland Industrial Relations Act 2016; and (ii) require the Western Australian Industrial Relations Commission (WAIRC), established under the IR Act, to develop an equal remuneration principle to assist parties in bringing applications pursuant to the equal remuneration provisions. The Committee notes that the final report was tabled in the state Parliament on 11 April 2019. The Committee asks the Government to provide information on any progress made towards the inclusion of an equal remuneration provision in Western Australian legislation, in particular by amending the Industrial Relations Act 1979, as well as the development of an equal remuneration principle by the Western Australian Industrial Relations Commission.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received on 10 October 2018.

Articles 1 and 2 of the Convention. Assessing and addressing the gender pay gap. The Committee previously welcomed the measures taken by the Government to narrow the gender pay gap while observing that it remained high, being estimated at 17.9 per cent in 2015. The Committee notes that, according to the ACTU, there has been limited progress towards pay equity as the gender pay gap remains high, together with the gap in retirement savings. The ACTU indicates that, for 2016–17, the full-time gender pay gap was 15.3 per cent, and women’s average full-time base salary across all industries and occupation was 17.3 per cent less than that of men. On average, according to the ACTU, taking into account full time total remuneration, men still earn 22.4 per cent more than women per year. The ACTU also indicates that women face discrimination in hiring practice and start their careers at a pay disadvantage. The ACTU adds that the current pay setting methods affect women’s pay and other conditions as many women are in occupations or industries that are dependent on awards and are not empowered to bargain with employers. The Committee notes the Government’s indication, in its report, that, since 2014, the gender pay gap for average weekly earnings of full-time adult employees decreased from 18.5 to 14.5 per cent in May 2018. The Government however acknowledges that the causes of the gender pay gap are various and complex as they encompass a broad range of factors including: (i) women and men working in different industries and different jobs, with industries and jobs where women workers are predominant attracting lower wages; (ii) discrimination and bias in hiring and pay decision; (iii) women’s disproportionate share of unpaid caring and domestic work; (iv) lack of workplace flexibility to accommodate caring and other responsibilities, especially in senior roles; (v) women’s more “precarious attachment to the workforce” (largely due to their unpaid caring responsibilities); (vi) women’s greater time out of the workforce impacting career progression and opportunities; and (vii) differences in education, work experience and seniority. The Committee notes the Government’s statement that, as highlighted in the report released on July 2017 “Towards 2025: An Australian Government strategy to boost women’s workforce participation”, several measures were taken to address factors that drive pay inequity, such as ensuring affordable, accessible and flexible childcare, improving workplace flexibility and strengthening women’s economic security. The Government indicates that through the Workplace Gender Equality Agency (WGEA), the Government works closely with private sector employers to narrow the gender pay gap, providing a number of resources aimed at promoting pay equity and improving the ability of women and men to combine paid work and caring responsibilities. The Government underlines that the “Balancing the future: The Australian Public Service gender equality Strategy for 2016–19”, which is currently implemented, recognizes that the low representation of women in leadership positions contributes to the gender pay gap and requires every public agency to set targets for gender equality in such positions and to boost gender equality more broadly in the public service. Welcoming this information, the Committee notes however that, in its 2017 concluding observations, the United Nations (UN) Committee on Economic, Social and Cultural Rights expressed specific concerns about limited progress achieved in closing the gender wage gap, which is attributed to persistent industrial and occupational sex segregation, and the concentration of women in low-paid sectors and in part-time work (E/C.12/AUS/CO/5, 11 July 2017, paragraph 25). It further notes that, in its 2018 concluding observations, the UN Committee on the Elimination of Discrimination against Women (CEDAW) was concerned about: (i) industrial and occupational segregation which, together, account for 30 per cent of the 15.3 per cent gender pay gap; (ii) the lack of obligations on employers regarding flexible working arrangements, which contributes to the overrepresentation of women in part-time work and lower-paid sectors; and (iii) the average superannuation balance for men which is 37 per cent higher than for women, and puts women at a particularly high risk of poverty and homelessness in old age (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 43). The Committee asks the Government to provide information on the measures implemented to address the gender pay gap by identifying and addressing its underlying causes, such as vertical and horizontal occupational gender segregation and stereotypes regarding women’s professional aspirations, preferences and capabilities, their role in the family and the concentration of women in low-paid sectors and part-time work, and by promoting women’s access to a wider range of jobs with career prospects and higher pay. It asks the Government to provide information on any assessment made of such measures and their effective impact in addressing the gender pay gap. The Committee asks the Government to provide information on the obligation of employers regarding flexible work arrangements. Last, the Committee asks the Government to continue to provide statistical information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Referring to its previous comments requesting information about the impact of various initiatives undertaken in Queensland to attract and retain women in the minerals industry where a significant gender pay gap exists, the Committee notes the Government’s commitment to support the Queensland Resources Council/Women in Mining and Resources Queensland Mentoring Programme for a further three years until 2020, including an expansion of the program in 2019 to include girls enrolled in the Queensland Mineral and Energy Academy. It further notes that an initiative called “Towards Gender Parity: Women on Boards Initiative” is being implemented to support organizations to enhance women’s representation on boards, with a focus on industries where men are most represented, such as natural resources, technology, engineering and science industries. The Committee notes the Government’s statement that gender pay equity is identified as one of the key components for the advancement of gender equality under the Queensland Women’s Strategy 2016–21, and that a gender pay equity review across the public sector was conducted in this framework in 2017. It notes that the Queensland Public Service Commission developed a five-year strategy “50/50 on equal footing: Queensland public sector gender equity strategy 2015–20” to support gender equity for the public sector. The Committee notes, from the March 2018 workforce report published by the Queensland Public Service Commission, that while women and men receive the same salary for the same classification job, the full-time equivalent average annual earnings for women was 9,307 Australian dollars (AUD) lower than those of men. The report adds that women are massively concentrated in lower paid jobs, whereas it is estimated that they represent 37.3 per cent of the incumbents of senior executive and equivalent level positions. The Committee, once again, asks the Government to provide information on the concrete impact of the initiatives implemented to attract and retain women in the minerals industry, including the effect it has had on the gender pay gap in the industry. It also asks the Government to continue to provide information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

With regard to New South Wales, the Committee notes that the State’s Strategy for 2018–22 for advancing economic and social equity, recognizes that women working full-time earn on average AUD239.70 less than men per week, with women being over-represented among lower-paying industries. It notes that, in the framework of the New South Wales Women’s Strategy for 2018–22, the Year One Action Plan provides for an exploratory review in the public service of pay parity for specific categories of workers. The Committee asks the Government to provide information on the concrete measures implemented, in particular in the framework of the New South Wales Women’s Strategy for 2018–22, to address the gender pay gap, as well as on their impact.

With regard to Victoria, the Committee notes the setting-up in March 2017 of the Equal Workplace Advisory Council (EWAC), in the framework of Victoria’s Gender Equality Strategy of 2015, to provide advice to the Minister for Industrial Relations on initiatives that will address the gender pay gap. It notes that EWAC developed a gender equality pledge and that, in March 2018, several public and private sector representatives committed to such pledge in order to address gender equity by using tools that find the causes of gender pay gaps and to implement plans to redress such gaps. The Committee notes that the Victorian Public Sector has a gender pay gap of 12 per cent as a result of women being mostly concentrated in areas traditionally dominated by women, such as junior clerical roles, education aids, nurses, teachers and welfare support workers. The Government indicates that, as a result of its commitment to promote and encourage the appointment of women to Government boards, between March 2015 and June 2018, 52 per cent of all new board appointments were women, increasing the representation of women overall from 39 to 53 per cent of positions on paid Victorian Government boards. The Committee further notes that a pilot gender equity audit is underway, with the assistance of the EWAC, and will provide objective, measurable evidence on performance and progress across several gender equity indicators including pay equity, recruitment and promotion, and flexible working arrangements. The Committee asks the Government to provide information on the nature and impact of the measures implemented and initiatives envisaged, including by the Equal Workplace Advisory Council, to address the gender pay gap and its underlying causes such as vertical and horizontal occupational gender segregation. It asks the Government to provide information on the results of the gender equality audit, in particular concerning the pay equity indicators.

Referring to its previous comments where it requested the Government to indicate how many agencies in Western Australia had undertaken pay equity audits as a result of the Pay Equity Unit (PEU)’s recommendations, the Committee notes the Government’s indication that the PEU was closed on 30 June 2015 as a result of the reduced demand for pay equity services from private sector organizations, following the introduction of the Workplace Gender Equality Act 2012 and the fact that information and assistance on pay equity strategies are available from the federal WGEA. The Government adds that workplace gender equality resources developed by the PEU, including the pay equity audit tool, are still available for public and private sector organizations but data on whether organizations are using this tool or other resources to undertake pay equity audits is not being collected. The Committee asks the Government to provide information on any measures adopted in Western Australia to address the gender pay gap, as well as on their impact. It also asks the Government to provide information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Low-paid assisted bargaining and minimum wages. In its previous comment, the Committee noted the ACTU’s views that the provisions of the Fair Work Act 2009 relating to low-paid assisted bargaining are subject to significant limitations which impede the capacity of these provisions in practice to provide access to collective bargaining for low-paid workers and thereby limit their potential to promote equal remuneration for work of equal value because the majority of low-paid employees are women. The Committee asked the Government to provide information concerning the implementation of these provisions and its impact on pay equity as well as on any other developments in relation thereto. It notes the Government’s indication that there have been no changes to the low-paid bargaining provisions and that there have been no further applications for low-paid bargaining authorisations made to the Fair Work Commission since the last reporting period. According to the ACTU, this demonstrates that, as the current provisions are unable to provide an effective means of promoting equal remuneration for work of equal value, unions have abandoned pursuing this avenue. The ACTU reiterates that amendments to the Fair Work Act are required to address this situation, as the simplification of current rules and facilitation of collective bargaining is an essential element of achieving gender equality at work. The Committee asks the Government to provide information on any assessment made of the provisions of the Fair Work Act of 2009 on low-paid bargaining and their impact on pay equity, as well as any measures taken or envisaged to implement, in practice, the principle of the Convention.

Minimum wages and the equal remuneration principle. In its previous comment, the Committee noted that the Fair Work Commission is responsible for setting and reviewing modern awards and minimum wages for Australian workers and must, in this regard, take into account the principle of equal remuneration. The Committee notes the ACTU’s indication that the Minimum Wages Expert Panel of the Fair Work Commission has not been able to give much weight to the fact that an increase in minimum wages is likely to promote pay equity. The ACTU adds that, in determining the minimum wage increases 2016–17, the Panel indicated that “the application of the principle of equal remuneration for work of equal or comparable value is such that it is likely to be of limited relevance in the context of the review […]. Review proceedings are of limited utility in addressing any systemic gender evaluation of work”. The Committee also notes that the Government indicates that, while the principle of equal remuneration was found likely to be of “only limited relevance in the context of a Review” by the Expert Panel in the Annual Wage Review decision of 1 June 2018, the Expert Panel also accepted “that moderate increases in the national minimum wage and modern award minimum wages would be likely to have a relatively small, but nonetheless beneficial, effect on the gender pay gap.” (Annual Wage Review 2017–18 Decision [2018] FWCFB 3500, paras 35–38). The Committee asks the Government to continue to provide information on the manner in which the principle of equal remuneration is taken into consideration in practice in the determination of minimum wage and the impact of minimum-wages decisions on the gender pay gap.

Equal remuneration orders. The Committee notes that the Fair Work Act provides that the Fair Work Commission may make equal remuneration orders that “it considers appropriate to ensure that, for the employees to whom the order will apply, there will be equal remuneration for work of equal or comparable value” (section 302 of the Act). The Committee notes that in its report the Government indicates that the Fair Work Commission may make equal remuneration orders but has not provided further detail in this regard. The Committee also notes the ACTU’s indications that the pursuit of equal remuneration orders has proved to be extremely costly, time consuming, highly adversarial and an ineffective process. The ACTU indicates that this is demonstrated by the decision of the Fair Work Commission to dismiss the application by the Australian Education Union and United Voice for Equal Pay for the children’s services and early childhood industry. The ACTU indicates that the interpretation of the provisions of the legislation by the Fair Work Commission is unduly narrow and that the above case demonstrates not only that there is a need for legislative amendment to ensure that the equal remuneration provisions are strong, clear and effective, but also that they must be supported and appropriately implemented by key institutional actors, such as the Federal Government and Fair Work Commission. The ACTU also indicates that legislative amendment is required to ensure that the Fair Work Commission has broad powers to make orders to remedy gender inequality. The Committee therefore requests the Government to provide its comments regarding the ACTU’s observations, in particular information regarding the practical operation of section 302 of the Fair Work Act, which gives the Fair Work Commission power to make equal remuneration orders. The Committee requests the Government to provide information regarding the number and nature of the cases (indicating the groups of employees and the work undertaken by them and the relevant sectors) in which an application has been made for equal remuneration orders, their outcome, the reasons for the results and their impact in light of the achievement of the principle of the Convention requiring equal pay for work of equal value. The Committee also requests the Government to indicate any measures, including legislation, envisaged in order to achieve full implementation in law and practice of the principle of the Convention in this respect.

Enforcement. The Committee notes that the WGEA continues its work with employers to help them comply with the reporting requirements under the Workplace Gender Equality Act 2012, and uses the reporting data to develop educational Competitor Analysis Benchmark Reports based on six gender equality indicators. It further notes that the Fair Work Ombudsman continues to promote the principle of equal remuneration for work of equal value through the resources provided on its website, including delivering tailored advice and information regarding the Equal Remuneration Order. The Fair Work Ombudsman’s Pay and Conditions Tool (PACT) reflects updated rates of pay following the Equal Remuneration Order and all other relevant Fair Work Commission decisions. The Committee notes that the ACTU highlights that the institutions and legal instruments designed to reduce pay inequality have not been sufficiently resourced. The ACTU indicates that the Fair Work Ombudsman confirmed the high levels of non compliance with workplace instruments and the underpayment of wages and legal entitlements especially among small-sized employers. The Committee asks the Government to provide information on the nature of the training and awareness-raising activities carried out by the Workplace Gender Equality Agency and the Fair Work Ombudsman concerning the promotion and enforcement of the principle of equal remuneration between men and women for work of equal value, and the results achieved. It also asks the Government to provide information on the awards and decisions of the Fair Work Commission, as well as on the number, nature and outcome of any cases or complaints concerning pay inequality dealt with by the labour inspectors, the courts or any other competent authority.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislative developments and enforcement. Gender equality. Federal level. In its previous comments, the Committee asked the Government to report on the amendments to the Fair Work Act 2009, the adoption of comprehensive anti-discrimination legislation at the federal level and on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) of 2015. The Committee notes the Government’s repeated indication in its report that the proposal to consolidate the five Commonwealth anti-discrimination Acts into a single comprehensive federal law was withdrawn and does not form part of the current Government’s policy. The Government adds that equality and non-discrimination continue to be protected and promoted through legislative, policy and programme measures, including legislative anti-discrimination protections at the Commonwealth, state and territory levels. The Committee notes the Government’s indication that the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) requires reporting from relevant employers on additional data including appointments, promotions and resignations, as well as the proportion of employees ceasing employment before returning to work from parental leave. Data on flexible working arrangements, as well as gender-specific access to parental leave and support for caring, continue to be collected. Referring to its 2019 observation on the application of the Equal Remuneration Convention, 1951 (No. 100), the Committee notes the Government’s indication that reporting provided for under the 2013 Instrument seems to have had a positive impact in practice. The Workplace Gender Equality Agency’s (WGEA) most recent 2016–17 dataset shows that the proportion of organizations with specific pay equity objectives in their remuneration policy and/or strategy has doubled over the last three reporting periods. The Committee asks the Government to report any new legislative developments or amendments made to the federal anti-discrimination laws, including the Fair Work Act 2009, as well as their application in practice. It asks the Government to provide information on any evaluation undertaken of the amendments made to the Workplace Gender Equality (Matters in relation to Gender Equality Indicators) Instrument 2013 (No. 1) and their impact in achieving effective equality of opportunity and treatment.

Article 1(1)(a). Discrimination based on religion. State level. Victoria. The Committee previously raised concerns about sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010, which provides exemptions to the prohibition on discrimination in the case of religious bodies and schools that conform to the doctrines, beliefs or principles of a religion, or when it is reasonable to avoid injury to the religious sensitivities of adherents to the religion. The Committee noted the Victorian Government’s commitment to amending the religious exemptions in the Equal Opportunity Act 2010. The Committee further notes that the Victorian Government introduced the Equal Opportunity Amendment (Religious Exceptions) Bill 2016 to that end. This will reinstate the “inherent requirement” test for employment by a religious body or religious school, which had previously been removed. The Committee, however, notes that the Bill passed the Legislative Assembly in September 2016, but was defeated in the Legislative Council in December 2016 and that as a result the “inherent requirement” test for employment by a religious body or religious school has not been reintroduced. The Committee asks the Government to indicate how it is ensured that sections 82(2) and 83(2) of the Victoria Equal Opportunity Act 2010 do not, in practice, hinder the enjoyment of equality of opportunity and treatment in respect of employment. The Committee also asks the Government to continue to provide information on any amendments envisaged to the Equal Opportunity Act 2010 with a view to bringing the provisions regarding religious exemptions into conformity with the Convention by establishing an “inherent requirement” test.

Discrimination on the basis of race, colour and social origin. Indigenous peoples. Federal level. For a number of years, the Committee has been expressing concern regarding restrictions on the rights of indigenous peoples to land and property recognition and use. It previously noted that the Council of Australian Governments (COAG) conducted an investigation into indigenous land administration and use and, in its December 2015 final report, made six key recommendations to take forward this agenda, including many proposed amendments to the Native Title Act 1993. The Committee notes the Government’s indication that it is developing a package of native title reforms to improve the efficiency and effectiveness of the native title system for all parties, including by: focusing on improving claims resolution; coming to agreements around the use of native title land; and introducing measures to promote the autonomy of native title groups to make decisions about their land and to resolve internal disputes. The Government indicates that, as of November 2017, approximately 79 per cent of native title determinations had been made by consent (406 determinations made in total). The Government adds that a paper seeking stakeholders’ views on options for reform was released on 29 November 2017 and that feedback from stakeholders will inform the development of a draft Native Title Amendment Bill. The Committee however notes that several United Nations (UN) Treaty Bodies remain concerned about: (i) the high standard of proof required to demonstrate an uninterrupted connection to the area being claimed, and a continued practice of their traditional laws and customs; and (ii) the extreme difficulties in obtaining compensation under the current native title scheme for those people who had their native title extinguished. The Special Rapporteur on the rights of indigenous peoples expressed further concerns at the complex system, with multiple and overlapping legal regimes applicable to native title claims and land rights at the federal, state and territory levels (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 21; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 51; A/HRC/36/46/Add.2, 8 August 2017, paragraph 99; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 15). The Committee asks the Government to provide specific information on any progress made in the review and adoption of the draft Native Title Amendment Bill, in collaboration with indigenous peoples and other relevant stakeholders. It asks the Government to provide information on any other steps taken to ensure that indigenous peoples have access to land and resources to allow them to engage in their traditional occupations and access employment without discrimination.

Article 2. Equality of opportunity and treatment of indigenous peoples. Constitutional recognition. The Committee recalls the steps undertaken to examine, raise awareness and build support for the constitutional recognition of Aboriginal and Torres Strait Islander peoples, including the adoption of the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013. It previously noted that while the Referendum Council, established to give advice on Aboriginal and Torres Straight Island peoples, called for constitutional recognition of indigenous peoples, the Government had rejected this proposal. The Committee notes the Government’s statement that it remains committed to recognizing Aboriginal and Torres Strait Islander peoples in the Constitution, but does not believe that the Referendum Council’s proposal to provide for a national indigenous representative assembly to constitute a ‘Voice to Parliament’ is either desirable or capable of winning acceptance in a referendum. The Government indicates that the Commonwealth Parliament’s Joint Select Committee on Constitutional Recognition Relating to Aboriginal and Torres Strait Islander Peoples was appointed in March 2018 and will consider the recommendations of the Referendum Council (2017), the Uluru Statement from the Heart (2017), the Joint Select Committee on Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples (2015) and the Expert Panel on Constitutional Recognition of Indigenous Australians (2012). The Committee asks the Government to continue providing information on the status of the process of specifically recognizing Aboriginal and Torres Strait Islander peoples in the Constitution.

National policy and programmes for indigenous peoples. The Committee previously noted the “Closing the Gap Strategy”, which is a formal commitment by federal, state and territory governments to achieve equality for Aboriginal and Torres Strait Islander peoples within 25 years. However, it noted from the 2017 assessment report that the employment target was not being met, and that while there had been an increase in the employment rate of indigenous peoples since 1994, there has been a decline since 2008. The Committee notes the Government’s indication that it is on track to meet three out of seven of the current “Closing the Gap” targets and that all Australian governments are working together, in consultation with Aboriginal and Torres Strait Islander peoples, to update the “Closing the Gap” targets. The Government adds that, between November 2017 and April 2018, “Closing the Gap Refresh” hosted a special gathering of indigenous representatives, conducted 18 national round tables and held a series of workshops, presentations and meetings. Over 1,000 stakeholders have participated in these consultations. The Government indicates that a public submission process closed on 30 April 2018 with over 170 submissions received and that, based on these consultations, Commonwealth, state and territory officials worked with indigenous academics, experts and practitioners to draft potential targets. The Committee notes that the COAG will consider “Closing the Gap” targets at its next meeting.

Concerning indigenous employment initiatives, the Committee notes the reference made by the Government to several specific initiatives aimed, inter alia, at enhancing indigenous people’s access to employment and vocational training, such as the Employment Parity Initiative (EPI) which encourages large employers to enter into a parity partnership with the Government to increase the proportion of indigenous employment, as well as to use indigenous businesses in their supply chains. The Government adds that specific affirmative measures have been implemented to expand the range of indigenous employment opportunities in the public sector, including in the framework of the Australian Public Service Commissioner’s Directions 2016 and the Commonwealth Aboriginal and Torres Strait Islander Employment Strategy. While welcoming this information, the Committee notes that the ACTU remains concerned that work-related discrimination against indigenous peoples is not being properly addressed by the current governmental scheme. The ACTU also highlights that, according to a recent survey, 9 per cent of Australians aged 25–44 would not hire an indigenous person for a job and 22 per cent do not see this as an act of discrimination. The ACTU expresses specific concern about the Community Development Programme (CDP), which aggressively targets indigenous people, who represent 80 per cent of CDP participants. The ACTU indicates that, according to the Australia Institute, the programme is not generating employment, as less than 20 per cent of CDP participants are supported into a job and less than 10 per cent stay in that job for six months. The trade union further expresses concern at the fact that CDP participants are typically required to work 25 hours a week for 280 Australian dollars (AUD) or AUD11.20 per hour, while the hourly minimum wage was AUD18.93 in 2018. The ACTU highlights that recipients receive even less if penalties for non-compliance are incurred, which is a common occurrence, and asks the Government to end this programme. The Committee notes that several UN Treaty Bodies express further concern at: (i) the low level of implementation of the “Closing the Gap” targets; (ii) the low level of school attainment and high drop-out rates at all school levels; as well as (iii) the high unemployment rate among indigenous peoples (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 51; A/HRC/38/47/Add.1, 17 April 2018, paragraph 47; CERD/C/AUS/CO/18-20, 26 December 2017, paragraphs 17 and 23; A/HRC/36/46/Add.2, 8 August 2017, paragraphs 11, 46, 54 and 57; E/C.12/AUS/CO/5, 11 July 2017, paragraphs 15 and 51; and A/HRC/35/41/Add.2, 9 June 2017, paragraphs 40, 48 and 51).

State level. The Committee notes the range of initiatives being undertaken in some of the states and territories to promote equality of opportunity and treatment of indigenous peoples and to address discrimination. The Committee notes that several states, such as Queensland, New South Wales, Victoria and Western Australia, are implementing affirmative actions to enhance the employment of Aboriginal and Torres Strait Islander peoples in the public sector, in particular in senior positions. It further notes that, within the framework of Queensland’s Annual Vocational Education and Training (VET) Investment Plan, several programmes have been implemented to enhance access to vocational education and training for indigenous people. The Committee notes the release in 2017 of the “Tharamba Bugheen” Aboriginal Business Strategy 2017–21 in Victoria, which aims to strengthen the entrepreneurial culture and to advance the economic position of aboriginal Victorians, as well as improving the visibility and networks of aboriginal businesses.

In light of the failure to meet the employment targets and the persistent disadvantaged position of indigenous peoples in education and employment, the Committee asks the Government to pursue its efforts and provide information on any assessment carried out on the impact of the different measures undertaken to enhance indigenous peoples’ access to the labour market, as well as on any corrective measures taken as a result, in particular to address the concerns expressed regarding the Community Development Programme. It asks the Government to provide information on any revision made of the “Closing the Gap Strategy” targets, in collaboration with indigenous peoples and other relevant stakeholders, as well as on any progress made in meeting these targets, in particular concerning employment. The Committee asks the Government to continue providing detailed information on the policies and programmes implemented to address discrimination and promote equality of opportunity and treatment in employment and occupation for indigenous peoples at the federal, state and territory levels, as well as on their impact.

The Committee is raising other matters in a request addressed directly to the Government.

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) of 10 October 2018.

Articles 1 and 2 of the Convention. Legislation and policy. Federal level. Discrimination on the basis of sex. Sexual harassment. The Committee previously requested the Government to develop and implement a national sexual harassment prevention strategy. The Committee notes that the ACTU indicates that sexual harassment at the workplace is a significant issue as nearly 40 per cent of women reported having experienced sexual harassment in the past five years. The ACTU adds that studies show that incidence of sexual harassment has increased by nearly 3.5 per cent each year over the past five years. The Committee notes the Government’s indication, in its report, that on 20 June 2018, the Minister for Women and the Sex Discrimination Commissioner announced a national inquiry into sexual harassment in workplaces which will be undertaken by the Australian Human Rights Commission (AHRC) over 12 months and will report on systematic issues including the nature, prevalence and reporting of sexual harassment in workplaces, the drivers of workplace sexual harassment, the current legal framework with respect to sexual harassment and existing measures and good practice to address workplace sexual harassment. The Committee however notes that, in its 2018 concluding observations, the United Nations (UN) Committee on the Elimination of Discrimination against Women (CEDAW) expressed concern at: (i) the impact of harassment and bullying in school environments on women and girls who are exposed to intersecting forms of discrimination, highlighting that one in ten women have been sexually harassed at university over the past two years; as well as (ii) the fact that 48 per cent of women have experienced sexual harassment at work and that fear of dismissal often prevents them from reporting such incidents (CEDAW/C/AUS/CO/8, 25 July 2018, paragraphs 41 and 47). It notes that, in its 2018 report, the UN Special Rapporteur on violence against women, its causes and consequences highlights that 20 per cent of the total number of complaints handled by the AHRC are primarily related to sexual harassment of women in employment (A/HRC/38/47/Add.1, 17 April 2018, paragraph 30). Recalling that sexual harassment is a serious form of sex discrimination, the Committee asks the Government to provide information on the proactive measures taken to address the high incidence of sexual harassment in workplaces, such as the elaboration and implementation of comprehensive national policy on the prevention of sexual harassment. It asks the Government to provide information on the results of the national inquiry into sexual harassment in workplaces undertaken by the Australian Human Rights Commission, the recommendations formulated, and the implementation of these recommendations. The Committee asks the Government to provide information on the additional activities undertaken by the Australian Human Rights Commission and the Sex Discrimination Commissioner to address sexual harassment, as well as on the number, nature and outcome of any cases or complaints of sexual harassment dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

Sexual orientation. The Committee previously noted the amendment of the Sex Discrimination Act to prohibit discrimination on the grounds of gender identity, sexual orientation and intersex status in prescribed areas of public life, including employment and occupation. It notes the Government’s indication that during the period 2016–17 the AHRC received 465 complaints under the Sex Discrimination Act, of which 39 related to gender identity, seven to intersex status and 40 to sexual orientation; 78 per cent of all complaints received over this period related to employment discrimination. Referring to its previous comments concerning the amendment to the Anti-Discrimination Act 1998 in Tasmania, ensuring protection against discrimination in employment on the basis of gender identity and intersex status, and extending protection against conduct that offends, humiliates, intimidates, insults or ridicules on the grounds, inter alia, of sexual orientation, gender identity and intersex status, the Committee notes that from 2016 to 2018, the Tasmanian Anti-Discrimination Commissioner received three complaints alleging discrimination on the basis of gender identity, and eight complaints concerning sexual orientation. The Committee asks the Government to continue to provide information on the number, nature and outcome of any complaints or cases alleging discrimination on the grounds of gender identity, sexual orientation and intersex status in employment and occupation dealt with by the labour inspectors, the courts or any other judicial or administrative competent authority.

The state level. New South Wales. Pregnant women. The Committee notes with interest the Justice Legislation Amendment Act, 2018, amending the Anti-Discrimination Act by removing two exemptions to the general prohibition on discrimination on the ground of sex which allowed an employer not to offer a pregnant woman a job, or to dismiss a pregnant woman from her job, if the woman was pregnant at the time she applied for or was interviewed for the job. Welcoming this information, the Committee asks the Government to provide information on the application of the Justice Legislation Amendment Act, 2018 in practice, including on any activities undertaken to raise awareness of these new legislative provisions, in particular among women workers, as well as the procedures and remedies available.

Article 1(1)(b). Additional grounds of discrimination. Disability. The Committee previously noted the adoption of several initiatives and affirmative action measures to promote the employment of persons with disabilities at the national and state levels, but noted the concerns expressed by ACTU regarding the manner in which the wage assessment tools used to determine minimum wages discriminate against persons with disabilities. The Committee notes that ACTU reiterates its concern about wage assessment tools used to determine minimum wages for employees with disabilities and in particular the Business Services Wage Assessment Tool (BSWAT) as it relies on a hybrid model of assessment measuring both competency as well as productivity. It notes the Government’s statement that, on 5 June 2015, the Fair Work Commission (FWC) removed the BSWAT from the Supported Employment Services Award 2010 (SES Award), requesting all Australian disability enterprises to transition to an alternative approved wage assessment tool under the SES Award. The Government adds that on 16 April 2018, the FWC found that, while supported employment has a valuable and socially significant role in providing employment to persons with disabilities, the current wage assessment tools do not meet the Modern Award Objective, so it proposed to: (i) phase out all the existing wage assessment tools; (ii) replace them with a new single prescribed method for the adjustment of the award wage rates for supported employees; and (iii) amend the classification structure of employees in the award. The Government adds that in March 2015, it requested the AHRC to conduct a national inquiry into employment discrimination against persons with disabilities. As a result, in May 2016, the inquiry found that: (i) the labour force participation rate for persons with disabilities was 53.4 per cent, a figure that has changed very little over the last 20 years; (ii) persons with disabilities are also more likely to be unemployed compared to those without disability (10.0 per cent compared with 5.3 per cent in 2016); and (iii) employment discrimination against people with disabilities is ongoing and systemic. As a result, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of discrimination against persons with disabilities in employment. The Government indicates that consultations with several stakeholders were held in 2018 and further work is underway on a detailed proposal of policy options to inform a future model for supported employment. The Committee notes that the Australian Public Service Disability Employment Strategy for 2016–19 aims, inter alia, at expanding the range of employment opportunities for persons with disabilities and access to senior positions in the public sector. It notes that the AHRC undertakes regular awareness-raising activities and produces tools and resources on employment discrimination against persons with disabilities which are available online. The Committee however notes that, in its 2019 concluding observations, the UN Committee on the Rights of Persons with Disabilities (CRPD) was concerned at: (i) the lack of an effective legislative framework to protect persons with disabilities from systemic, intersectional and multiple forms of discrimination, especially at the Commonwealth level; (ii) the significant increase in students with disabilities experiencing a segregated education, seclusion, and isolation; (iii) the ongoing segregation of persons with disabilities employed through “Australian Disability Enterprises” and the fact that such persons receive a subminimum wage; and (iv) the low labour force participation of persons with disabilities, particularly women and Aboriginal and Torres Strait Islander persons (CRPD/C/AUS/CO/2-3, 15 October 2019, paragraphs 9, 45 and 49).

The Committee notes that several initiatives were implemented at the state level to promote vocational training and employment of persons with disabilities, including in Victoria in the framework of the Public Sector Disability Employment Action Plan for 2018–20 which commits to a 6 per cent disability employment target across all Victorian Government departments by 2020, increasing to 12 per cent by 2025. It further notes that in South Australia, the Disability Employment Community of Practice was established as a network of employers who act collectively and individually to increase and sustain employment of people with disabilities.

The Committee asks the Government to continue to provide information on any measures taken at federal and state levels to promote equal opportunity and treatment for persons with disabilities in education, vocational training and employment, particularly with regard to conditions of work and wages. It asks the Government to provide information on any follow-up actions undertaken following the recommendations made by the AHRC to reduce the prevalence of discrimination against persons with disabilities in employment, including within the framework of the elaboration of a future model for supported employment at federal level. The Committee asks the Government to provide statistical information on the employment rate of persons with disabilities, disaggregated by sex and work environment (segregated work environment or open labour market).

Age. The Committee previously noted that the AHRC was conducting a national inquiry into employment discrimination against older workers, which would explore whether Commonwealth laws should be amended, or what other actions should be taken. The Committee notes the Government’s indication that, as a result of the national inquiry, it was found that (i) people aged 55 years and over make up roughly a quarter of the population, but only 16 per cent of the total workforce; and (ii) 27 per cent of people over the age of 50 had recently experienced discrimination in the workplace. The Government states that following the inquiry, in May 2016, the AHRC made recommendations aimed at reducing, inter alia, the prevalence of age discrimination in employment against older workers. The Government adds that, as announced in the 2018–19 Budget, the Government will work with the Age Discrimination Commissioner and industry to establish a collaborative partnership on mature age employment. The Committee notes that such partnership aims at raising awareness of age discrimination among employers, promoting the benefits of employing older workers, and helping employers to manage an age-diverse workforce. Welcoming this information, the Committee asks the Government to continue to provide information on any measures introduced or activities undertaken or envisaged to prevent and address age discrimination in employment and occupation, as well as on their impact.

Articles 2 and 3. Equality of opportunity and treatment between men and women. Occupational segregation. The Committee previously noted from the Australia’s Gender Equality Scorecard for 2015–16 that women in leadership positions, including chief executive officers (CEOs) and key management personnel, scored low at 16.3 and 28.5 per cent respectively, and asked the Government to provide information on any legislative, policy or other measures taken to promote and encourage the appointment of women to leadership positions in both the private and public sectors. The Committee notes the Government’s indication that the Australia’s Gender Equality Scorecard for 2016–17 shows that the gender balance in leadership is improving as the representation of women across all managerial categories has increased since 2013–14, with the percentage of CEOs who are women now at 16.5 per cent, and the percentage of key management positions held by women now at 29.7 per cent. The Committee notes the Government’s commitment to achieving a target of women holding 50 per cent of Government board positions overall. The Government states that, as of 31 December 2017, women held 44.5 per cent of Australian Government board positions, a 1.8 percentage point increase since June 2017. The Committee notes that, following a report released in June 2017 by the Sex Discrimination Commission, recommendations were issued, calling for sweeping reforms to the recruitment and retention of women in the armed forces, as well as their enhanced access to leadership positions, and accepted by the Chief of the Defence Force. The Government adds that under the Women’s Leadership Development Program (WLDP), funding is focused on improving gender equality and providing support for women’s economic empowerment, safety and leadership, in order to contribute to increasing diversity on boards and in management. The Government further indicates that it is committed to supporting women’s participation in high-earning careers through a 13 million Australian dollars (AUD) investment to enhance women’s representation in science, technology, engineering and mathematics (STEM), as well as through entrepreneurship initiatives under the National Innovation and Science Agenda. The Committee, however, notes that ACTU indicates that gender inequality in the workplace remains a significant problem. While recognizing some improvements in gender ratios for senior positions, ACTU expresses concern at the extremely gender segregated industries and occupations. The Committee notes that several UN Treaty Bodies also expressed concern about (i) the industrial and occupational segregation; (ii) the low proportion of girls (less than one in 20, compared with one in five boys) who envisage a career in the field of STEM, in which jobs are higher-paid and in high demand; (iii) the lack of obligations on employers regarding flexible working arrangements, which contributes to the overrepresentation of women in part-time work and lower-paid sectors; as well as (iv) the lack of incentives for the reconciliation of work and family responsibilities (CEDAW/C/AUS/CO/8, 25 July 2018, paragraph 43; and E/C.12/AUS/CO/5, 11 July 2017, paragraph 21). The Committee asks the Government to continue to provide information on any legislative, policy or other measures taken to promote equality of treatment and opportunity between men and women in law and in practice, and on the results achieved by such measures, in particular in order to address vertical and horizontal occupational gender segregation, by enhancing women’s access to a wider range of jobs and to jobs at higher levels, in particular in sectors where women are less represented such as the armed forces. It asks the Government to provide updated statistical information on the participation of men and women in education, training, employment and occupation, disaggregated by occupational categories and positions, in both the public and private sectors.

The state level. The Committee welcomes the measures implemented by several states, such as in Queensland, New South Wales, Victoria, and Western Australia, to take affirmative actions to promote the representation of women at senior leadership level, in particular in the public sector. It further notes that South Australia and the Australian Capital Territory introduced flexible working arrangements for workers in order to better reconcile work and family responsibilities. The Committee asks the Government to continue to provide information on the policies and programmes implemented to promote equality of opportunity and treatment between men and women in employment and occupation and address occupational gender segregation at state and territory levels, as well as on their impact.

New South Wales. The Committee previously noted that the Government Sector Employment Act 2013, No. 40, deleted the section on equal employment opportunity and the mandate for government agencies to prepare equal employment management plans, as set out in the Anti-Discrimination Act, 1977. It further noted that the Act provides that employees in the Government sector should be recruited and promoted on merit, and that affirmative action measures may be taken to facilitate the employment of persons with a disability, Aboriginal people, Torres Strait Islanders and persons under the age of 25. The Committee notes that the Government refers to the Sector Employment Rules 2014, implementing the Act of 2013, but observes that it does not provide any new information concerning the issue previously raised. The Committee again asks the Government to indicate how discrimination is prohibited and equal opportunity in employment is ensured under this Act, and to supply information on the application of the 2013 Act in practice, including any implementing regulations, as well as any decisions issued by tribunals or administrative bodies.

Tasmania. Gender Equality. The Committee previously noted the 2016 Government’s commitment to a target of 50 per cent of women’s representation across Government’s boards and committees by June 2020, which was supported by the 2015–20 Five Year Plan and the Tasmanian Women’s Plan 2013–18. It notes the Government’s indication that women’s representation on all Government boards and committees has increased from 33 per cent in July 2015 to 40 per cent in April 2018, and that up to 52 per cent of Government business enterprise directors are women as well as 44 per cent of state-owned company directors. The Committee notes that a new Tasmanian Women’s Strategy covers the period 2018–21. The Committee asks the Government to continue to provide information on the development, monitoring and implementation of legislation, policies and plans adopted at the state level to promote gender equality.

Discrimination on the grounds of race, colour, national extraction and religion. The Committee previously requested the Government to provide information on any measures introduced to give effect to the recommendation made by the UN Special Rapporteur on contemporary forms of racism, racial discrimination and xenophobia concerning the possibility of employers undertaking “blind” recruitment as a result of significant likelihood that indigenous Australians, persons of African descent, Asians and Muslims would experience discrimination otherwise. It notes that the Government refers to the Racial Discrimination Act 1975 which prohibits discrimination in employment, in particular in recruitment, on the grounds of race, colour, national extraction and ethnic origin, as well as to a racial discrimination case brought by the Fair Work Ombudsman in which financial penalties were imposed on both the employer and employer operators. The Government adds that, since 2017, specific practices were developed to reach vulnerable and migrant workers and enable them to better understand their rights, such as the creation of an anonymous online reporting tool. These measures have helped to raise awareness among workers on their workplace rights and have made it easier to report alleged breaches. While welcoming this information, the Committee notes that several UN Treaty Bodies and Special Rapporteurs reiterated their concerns about increasing xenophobic hate speech leading to the creation of a negative perception of migrants, as well as reports of discrimination on the basis of ethnic, racial, cultural or religious background and racial profiling, targeting in particular Muslims and persons of African descent. It notes that further concerns were expressed about: (i) the working conditions of migrant workers, particularly those on temporary visas (approximately 1.8 million workers), who receive lower wages and work for longer hours, especially in the construction, agricultural and hospitality industries; as well as (ii) the fact that, owing to heavy reliance on their employers, combined with a lack of knowledge about their rights and entitlements and fear of dismissal, many of those workers refrain from seeking redress, which contributes to increased exploitation by employers (CERD/C/AUS/CO/18-20, 26 December 2017, paragraph 34; CCPR/C/AUS/CO/6, 1 December 2017, paragraph 19; E/C.12/AUS/CO/5, 11 July 2017, paragraph 27; A/HRC/35/41/Add.2, 9 June 2017, paragraph 56; and A/HRC/35/25/Add.3, 24 April 2017, paragraph 95). The Committee asks the Government to provide information on the proactive steps taken to prevent and address discrimination on the grounds of race, colour, national extraction, and religion, in particular by addressing bias and negative attitudes that may lead to discrimination and by promoting equality of opportunity and treatment in employment and occupation of migrant workers, while ensuring that they have access to effective protection and remedies. It asks the Government to provide information on the number, nature and outcome of cases or complaints of discrimination on the grounds of race, colour, national extraction or religion detected or dealt with by the labour inspectors, the courts or any other competent authority.

General observation of 2018. Regarding the above issues and more generally, the Committee would like to draw the Government’s attention to its general observation on discrimination based on race, colour and national extraction which was adopted in 2018. In the general observation, the Committee notes with concern that discriminatory attitudes and stereotypes based on the race, colour or national extraction of men and women workers continue to hinder their participation in education, vocational training programmes and access to a wider range of employment opportunities, resulting in persisting occupational segregation and lower remuneration received for work of equal value. Furthermore, the Committee considers that it is necessary to adopt a comprehensive and coordinated approach to tackling the obstacles and barriers faced by persons in employment and occupation because of their race, colour or national extraction, and to promote equality of opportunity and treatment for all. Such an approach should include the adoption of interlocking measures aimed at addressing gaps in education, training and skills, providing unbiased vocational guidance, recognizing and validating the qualifications obtained abroad, and valuing and recognizing traditional knowledge and skills that may be relevant both to accessing and advancing in employment and to engaging in an occupation. The Committee also recalls that, in order to be effective, these measures must include concrete steps, such as laws, policies, programmes, mechanisms and participatory processes, remedies designed to address prejudices and stereotypes and to promote mutual understanding and tolerance among all sections of the population.

The Committee draws the Government’s attention to its general observation of 2018 and requests the Government to provide information in response to the questions raised in that observation.

The state level. The Committee notes with interest that Victoria has launched a “RecruitSmarter pilot” to introduce a de-identification trial within selected organizations to address unconscious bias in the recruitment process. During the de-identification trial, personal information that could potentially be used to identify an applicant is removed, such as religion, gender, sexual orientation, age, contact details and details of their academic institution. The Victorian Government adds that the pilot results will be analysed shortly and will form the basis for recommendations for best practice for the sectors involved. The Committee asks the Government to provide information on the results of the assessment made of the introduction of a de-identification recruitment process, as well as on any recommendations made or follow-up measures taken or envisaged.

Article 2 of the Convention. Minimum Age. Commonwealth. The Committee notes the information provided by the Government in its report that Marine Order 51 and Marine Order 505, which were made under the Navigation Act 2012 and the National Law, are legislative instruments and set out minimum age requirements for qualifications of fishers. The Committee takes note of this information.

South Australia. In its previous comment, the Committee had requested the Government to provide further information on the exemptions granted by the Minister pursuant to section 81A of the Education Act 1972 to employ a child of compulsory school age. The Committee notes the Government’s indication that while it cannot provide detailed information in this regard, it considers that there is little opportunity for the Convention to be breached in practice, given that a child is of compulsory school age until the age of 16 years, and that, according to section 78 of the Education Act 1972, employers are prohibited from employing a child of compulsory school age during school time or in any labour or occupation that renders, or is likely to render, the child unfit to attend school. However, the Government recognizes that there is no law, other than section 78 of the Education Act 1972, which prohibits children under the age of 15 years from working out of school or during their school holidays. The Committee therefore requests the Government to indicate any measure taken to comply with the general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)-(3) and 4 of the Convention.

Queensland. The Committee had requested the Government to bring the Education (General Provisions) Act 2006 and the Child Employment Act 2006 into conformity with the Convention by including a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Government did not provide a specific reply on this point. The Committee has noted that section 4 of the Child Employment Regulation 2006 sets the minimum age for all types of work to 13 years, except for supervised delivery work, which is 11 years. In light of the above, the Committee requests the Government to indicate the measures taken or envisaged to bring the legislation into conformity with this requirement of the Convention.

Western Australia. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that the Department for Child Protection and Family Support is considering, as part of a 2017 statutory review of the Children and Community Services Act 2004, the possibility of including such a prohibition. The Committee notes that while the Children and Community Services Act 2004 sets in its Part 7 restrictions on the employment of children under the age of 15 years, it contains exceptions in relation, among others, to a family business. In this regard, the Committee recalls that Articles 2(2)–(3) and 4 of the Convention provide for limited exceptions that do not include the work performed within a family business. In light of the 2017 statutory review, the Committee requests the Government to indicate the specific measures taken or envisaged to bring the legislation into full conformity with the requirements of the Convention.

New South Wales. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that the Children and Young Persons (Care and Protection) Act cannot set a minimum age for fishers, since it regulates children’s employment in a restricted range of industries, which does not include fishing. The Government further indicates that in practice minimum age is complied with thanks to the work of the Australian Maritime Safety Authority (which would refuse applicants for certificates of competencies who do not meet the minimum age), the Roads and Maritime Services (which check the ages of all certificate holders) and regular compliance activity combined with the application of penalty provisions. In this regard, the Government informs that in 2014–15 only one offence relating to operating without the required certificate of competency was reported. In light of the above, the Committee requests the Government to adopt the necessary measures to ensure full compliance with the requirements of the Convention.

Northern Territory. The Committee had requested the Government to include in its legislation a general prohibition against the employment of children under the age of 15 years on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention. The Committee notes the Government’s indication that there are no current plans to amend the Care and Protection of Children Act to provide more specific protections in the area of employment of children under 15 years on board fishing vessels. The Government further states that the Department of Children and Families is unaware of any issues arising in relation to this area. In light of the above, the Committee requests the Government to adopt the necessary measures to ensure full compliance with the requirements of the Convention.

Tasmania. The Committee had requested the Government to provide more information on the exemptions granted by the Secretary of the Education Department pursuant to the Education Act 1994 to school-aged children from compulsory schooling to authorize them to work. The Government replied that no further information on exemptions is available. The Government further indicates that the Education Act 1994, together with the Youth Participation in Education and Training (Guaranteeing Futures) Act 2005, have been repealed by Schedule 6 to the Education Act 2016. Accordingly, the Committee requests the Government to indicate the relevant provisions of the Education Act 2016 which ensure compliance with the Convention and whether a general prohibition against the employment of children under the age of 15 on board fishing vessels subject to the limited exceptions allowed under Articles 2(2)–(3) and 4 of the Convention has been included in the current legislation. Furthermore, the Committee requests the Government to indicate whether the exemptions that can be granted pursuant to sections 13 and 247 of the Education Act 2016 by the Minister or by the Secretary of the Education Department, respectively, are issued in compliance with the Convention.

Moreover, the Committee understands that, for persons employed in commercial fishing, a minimum age is imposed through the Marine Safety (Domestic Commercial Vessel) National Law 2012, which regulates all domestic commercial vessels, including fishing vessels. In particular, the National Standard for Commercial Vessels (NSCV) Part D requires (including for “General Purpose Hand”, among others) that the minimum age of an applicant must be at least 16 years when the certificate of crew competency is issued, according to its chapter 2, clause 2.1(1)(a). The Committee takes note of this information.

Norfolk Island. The Committee had noted that section 24 of the Employment Act 1988 is not consistent with the Convention as it allows the employment, including as apprentice, of children under the age of 15 years under the conditions that go beyond the limited exceptions set out in Articles 2(2) and 4 of the Convention. The Committee notes the Government’s indication that the legislation and administrative regulations largely remained the same and that there is currently no commercial fishing activity in the Norfolk Island, except for limited island-based restaurant and café, take away fish catch suppliers who are highly dependent on favourable weather conditions. According to the Government, the only legislation controlling the minimum age of fishers is the Employment Act 1988. The Committee has noted that several provisions of this Act have been amended and this is reflected in the Norfolk Island Continued Laws Ordinance 2015 (Cth), but the relevant provision for the Convention, i.e. section 24 of the Act, remains unchanged. The Committee therefore requests the Government to indicate the measures taken or envisaged to ensure full compliance with the Convention.

Article 4. Exemptions for work on school-ships. Queensland. The Committee had requested the Government to explain how compliance is ensured with the requirements of the Convention under the Vocational Education, Training and Employment Act 2000 (VETA), which allows students and young persons of less than 15 years of age to take part in a range of employment types. The Committee notes the Government’s indication that: (1) the Further Education and Training Act (FETA) 2014 repealed the VETA; (2) the FETA does not contain provisions for the regulation of vocational placements, as the power in relation to this issue was referred to the Commonwealth; (3) apprenticeships and traineeships can be declared under the FETA, and can only be established under contracts which, according to its section 15(3), must also include the signed consent of a parent, if the apprentice or trainee is under 18 years of age; and (4) should there be any change to regulatory requirements for the employment of persons under 15 years on fishing vessels, an apprenticeships or traineeship declaration can be adjusted to reflect the new requirements. Recalling that Article 4 of the Convention allows exemptions to the rule on the minimum age only for work by children on board school-ships, provided that such work is approved and supervised by the competent authority, the Committee requests the Government to clarify how compliance is ensured with this requirement of the Convention and indicate the indicate any change to the regulatory requirements for the employment of persons under 15 years on fishing vessels.

Tasmania. The Committee notes the Government’s indication that, if a school-ship is built, owned and operated by a Tasmanian school, the related activities are conducted under the authority of the school; if the vessel is not owned by a school, an exemption from compulsory schooling to undertake work needs to be granted by the Secretary of the Department of Education under the Education Act 1994. The Committee further notes that the Government has indicated that, while the Tasmanian Marine Safety Agency (MAST) is the delegated authority for the effective operation of the National System, it is not responsible for matters relating to training or employment in the fishing industry. It is the Tasmanian Department of Education, according to the Government’s report, which is responsible for all matters related to the Education Act 1994 and Guaranteeing Future legislation. In light of the above, and taking into account that the Education Act 1994 and the Guaranteeing Future legislation have been repealed, the Committee requests the Government to indicate the new relevant provisions and the authority in charge of approving and supervising work done by children on school-ships or training-ships under Article 4 of the Convention.

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

In its previous comment, the Committee requested the Government to reply to the observations by the Australian Council of Trade Unions (ACTU) that the Fair Work Amendment Bill 2014 would restrict access to the workplace and limit the capacity of trade union representatives to effectively represent workers. The Committee notes the Government’s indication that the Fair Work Amendment Bill passed both Houses of Parliament and received royal assent in November 2015 and does not include amendments to the right of entry framework. Other matters related to the Fair Work Act and the legislation and code concerning the building and construction industry are being considered under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Comments adopted by the CEACR: Australia

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C099 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C111 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C112 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C135 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C173 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

Comments adopted by the CEACR: Australia

Display the list by:

Adopted by the CEACR in 2020

C087 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

C087 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C098 - Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

C098 - Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Adopted by the CEACR in 2019

C099 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C100 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C111 - Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

C111 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C112 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C131 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)

C135 - Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

C173 - Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2019, published 109th ILC session (2021)