Colin Fenwick

Director, Centre for Employment and Labour Relations Law, University of Melbourne

Australia's New Labour Law: An International Legal Perspective

Paper delivered at the Castan Centre 'Human Rights 2005: Year in Review' conference on 2 December 2005

INTRODUCTION

The proposed changes to Australia’s federal labour laws are far-reaching in terms of Australia’s federal system, and in terms of the traditional model of Australian labour law. The changes are intended all but to abandon reliance on the arbitration power in the Commonwealth Constitution as a source of federal legislative authority in this field, in favour of the corporations power. Despite this shift, they are intended to override regulation by the states.(i) According to the Coalition government’s rhetoric, the changes are intended to give Australia ‘WorkChoices’, as part of a ‘simpler, fairer, national system’ for labour law.

It would not surprise today’s audience, I suspect, to learn that the proposed changes have far-reaching implications for Australian workers’ rights, as those rights are protected by a wide range of international human rights law that is binding upon Australia. Yet this aspect of the new laws has received relatively little attention to date. There have of course been notable exceptions to this general proposition. They include the speeches and submissions of the Australian Council of Trade Unions (ACTU) and of the International Centre for Trade Union Rights (ICTUR); some of the observations and work of Professor Ron McCallum;(ii) remarks in a couple of recent speeches by the Shadow Minister for Foreign Affairs, the Honourable Kevin Rudd MP; and aspects of a submission made to the recent Senate inquiry into the Workplace Relations Act Amendment (WorkChoices) Bill 2005 (WorkChoices Bill) by 151 academics in the fields of industrial relations, labour markets, and law.(iii)

The fact is that from both a labour law and a human rights perspective, in what has recently passed for debate on these laws, most attention has been focused on matters that while not unimportant, are relatively marginal in a broader analysis of the laws’ likely effects. Of course it is essential that workers should have satisfactory legal protection in relation to key working conditions such as working hours and payment of wages. And from the point of view of Australia’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR), they have a human right to that protection. Nevertheless, the focus on so-called ‘iconic public holidays’ (for example) has overlooked some very significant human rights problems in Australia’s labour laws.

This, however, is only consistent with the position as it has been for some time. The fact is that Australia fails in many respects, and in many respects by a significant margin, to comply with its obligations at international law to protect the human rights of Australia’s workers. It remains true, however, that labour rights are ‘a neglected area in human rights discourse’.(iv) This fact is only emphasized by the general omission of labour rights concerns from recent efforts to develop and implement Bills of Rights in the ACT and in Victoria. In a country that still generally lacks a ‘human rights culture’, there remains an ‘artificial divide’ between labour rights and human rights.(v) In that respect, Australia’s labour laws, the WorkChoices Bill, and the debate about them only show how far we still have to go.

In the time available I would like to try to do three things. First, to give an overview of the sources of Australia’s international legal obligations relating to the human rights of workers. Secondly, to outline the extent to which Australia already fails to comply with these obligations, and thirdly, to make some observations about the likely impact of Australia’s new labour laws. In doing so, I will consider not only the WorkChoices Bill, but also the implications of the Higher Education Legislation Amendment (Workplace Relations Requirements) Bill 2005 (Cth) (HE Act) and the Building and Construction Industry Improvement Act 2005 (Cth) (BCII Act). In commenting on the BCII Act, I will refer in particular to the criticisms of it delivered in recent weeks by the Committee on Freedom of Association of the International Labour Organisation (ILO).(vi)

Indeed I will focus for the most part on Australia’s compliance with its obligations under ILO instruments, and in particular the extent to which Australian labour law does and will fail properly to protect freedom of association. One reason for this focus is the limited space available. A second, more substantive reason is that through the operation of the ILO’s supervisory machinery, we already know a lot about the existing position at international law, and can be reasonably confident in predictions about the impact of the WorkChoices Bill. Since the introduction of the Workplace Relations Act in 1996 (WR Act), Australia has been criticised repeatedly by the ILO’s supervisory bodies: the Committee of Experts on the Application of Conventions and Recommendations (CEACR), the Conference Committee on the Application of Standards (CCAS), and the Committee on Freedom of Association (CFA).(vii) Suffice to say for now that the WorkChoices legislation is not going to improve the situation.

But before narrowing the focus, I will note a couple of other things in passing. One is that the ILO has also expressed its concerns in other key areas of human rights law. One of these has been Australia’s failures to overcome discrimination in the labour market against women, and against indigenous people. Another has been the regulation of the work of prisoners, insofar as they are held in privately run facilities. I make a second point in passing, although it is one to which I will return briefly. The combined effect of the WorkChoices Bill together with the Government’s proposed Welfare to Work measures is likely to be a significant failure to comply with Australia’s obligations under articles 6 to 10 of the ICESCR.

AUSTRALIA’S INTERNATIONAL OBLIGATIONS TO RESPECT WORKERS’ FUNDAMENTAL RIGHTS

Australia’s obligations to respect workers’ human rights arise from a number of multilateral instruments, including both general human rights treaties and ILO conventions. There are important protections of basic rights at work in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and as noted, the ICESCR. The UDHR and the ICCPR, for example, each protect freedom of association, including for trade union purposes (UDHR Arts 20(1) and 23(4); ICCPR Art 22).(viii) The ICESCR also protects freedom of association, including the right to strike (Art 8). Moreover, it protects significant rights in relation to working life: a right to work (Art 6), a right to fair working conditions (Art 7), and a right to social security (Art 9).

Australia is also a party to 58 of the ILO’s 185 conventions. Although the issue is not without controversy,(ix) the ILO at least is satisfied that from among these instruments it is possible to identify a group of ‘core’ standards that are said to relate to the protection of fundamental human rights. These core standards protect four things: first, the right to freedom of association and protection of the right to organise and to bargain collectively; secondly, freedom from forced or compulsory labour; thirdly, freedom from discrimination in employment, including the right to equal remuneration for work of equal value; and fourthly, freedom from harmful child labour.(x) Australia has ratified six of the eight core standards: it has not yet ratified those relating to harmful child labour.

In addition to the protection offered by these core conventions - which, once ratified, are binding international treaties - the principles embodied in the core standards are protected by the operation of the Fundamental Declaration of Principles and Rights at Work, 1998. Under the terms of this instrument, all ILO members are bound, by virtue of their ILO membership, and the obligation to comply with its Constitution, to respect and to protect the rights that are protected by the core conventions. Thus, Australia is further bound in the areas where it has ratified core conventions, and subject to some obligations in relation to harmful child labour, even though it has not yet ratified the relevant instruments.

Freedom of association is also enshrined in the ILO Constitution. It is embodied in article 41 of the original constitution of the ILO,(xi) and affirmed both in articles I(b) and III(e) of the Declaration of Philadelphia, and in the preamble of the revised Constitution of 1946.(xii) Freedom of association is a cardinal principle for the ILO: it is the basis from which workers might most fairly pursue their economic and social interests, including as they are protected in other ILO instruments. The importance of freedom of association is highlighted by the operation of the CFA, which is a specialised supervisory committee dealing with complaints only on this set of issues. The CFA has emphasised that states’ must implement and observe the principles of freedom of association by virtue of the very fact of their ILO membership.(xiii)

THE CURRENT SITUATION

As it stands, Australian labour law fails in significant respects to comply with Australia’s obligations under international human rights law. Particular problems are posed by:
* The operation of Australian Workplace Agreements (AWAs);
* The absence of any right to engage in collective bargaining;
* The strict limits on negotiating what are referred to as ‘multiple-business agreements’;
* Limits on what might be included in a collective agreement; and
* The failure to provide a satisfactory right to strike.

Australian workplace agreements
An AWA is an instrument under the WR Act that regulates an individual work relationship; it may or may not be the same thing as a contract of employment at common law.(xiv) The CEACR has frequently criticised the operation of AWAs in Australia’s labour law framework in two important respects. First, Australian law does too little to protect workers who do not want to agree to an AWA against acts of anti-union discrimination.(xv) Secondly, Australian law and policy promotes AWAs over collective bargaining.(xvi)

AWAs and anti-union discrimination
The CEACR has repeatedly expressed the view that Australia fails to comply with article 1 of the Right to Organise Convention (No 98). It requires States to protect workers against acts of anti-union discrimination in general. In particular, workers should be protected against acts calculated to ‘make the employment . . . subject to the condition that [they] shall not join a union or shall relinquish trade union membership’; and/or to ‘cause the dismissal of or otherwise prejudice a worker by reason of union membership…’.

There are of course important protections along these lines in Part XA of the WR Act. Workers cannot be dismissed or prejudiced in their employment for, among other things, belonging or not belonging to a trade union. The difficulty is that the particular provisions (which are complex) do not specifically identify refusal to sign an AWA as a ground of prohibited conduct.(xvii) This is a problem because the Federal Court has held that an employer may lawfully require a prospective employee to accept an AWA as a condition of taking up employment.(xviii) This is not, according to the Court, ‘duress’ within the meaning of the WR Act because at the time of negotiation the individual worker does not yet have an employment relationship with the prospective employer.

Thus, any employer may require an employee to agree to an AWA. (We might think of this as an employer-imposed policy of ‘no ticket, no start’.) So any employer may lawfully construct a workforce in which each worker’s employment is regulated individually, under an AWA, regardless of whether workers may prefer to have their working conditions regulated collectively. Not surprisingly, the CEACR has observed that the provisions do ‘not appear to afford adequate guarantees against anti-union discrimination at the time of recruitment and cannot be considered as measures to promote collective bargaining.’(xix)

A second problem is that an employer may lawfully decline to bargain collectively with workers’ chosen trade union, and offer AWAs instead, including AWAs that provide enhanced wages and working conditions. The CEACR has also considered this to be a breach of article 1(2)(b) of Convention 98: workers who refuse to give up their right to collective bargaining may effectively be penalised, and so prejudiced by reason of being a union member or participating in trade union activities.(xx)

A third problem relates to the limits of the WR Act as it protects workers against being dismissed from employment. The WR Act does include protection against unlawful termination of employment. Among the grounds on which it is unlawful to terminate an employee’s employment is their refusal to agree to an AWA (s 170CK(2)(g)). The difficulty here is that the WR Act also allows the Government to exclude by regulation various categories of workers from this and other protections relating to termination of employment (s170CC).(xxi) So the protection is contingent, and potentially limited.

The promotion of AWAs over collective agreements
Article 4 of Convention 98 requires States to take measures ‘to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements’. Australia fails to comply with this obligation because the WR Act gives AWAs preference over collectively determined agreements.(xxii) In 1997 the CEACR concluded that the WR Act ‘gives primacy to individual over collective relations through the AWA procedures’.(xxiii)

There is a relationship here also to the requirement in article 1 of Convention 98 that States protect workers against acts of anti-union discrimination. The CEACR has observed that the promotion of AWAs over collective agreements may constitute a disincentive to join a trade union, and so discrimination against workers who wish to join, who can be prevented from enjoying the benefit of a collective agreement.(xxiv) This is also inconsistent with the promotion of collective bargaining, as required by article 4 of Convention 98. (xxv)

Failure to require employers to bargain collectively
Freedom of association in international labour law is directly related to the ability of workers to bargain collectively. In Australia, however, there is no right to do so: an employer cannot be compelled to engage in bargaining with a trade union. As I mentioned, an employer might lawfully prefer to offer its workforce AWAs, and simply choose not to engage any longer in bargaining with the trade union of which the workers are members.(xxvi) Nor, should they condescend to participate in bargaining, is an employer obliged to bargain in good faith: the Australian Industrial Relations Commission (AIRC) may only exercise limited powers while the parties are engaged in a ‘bargaining period.’ Australia therefore stands in stark contrast to its counterparts in other OECD countries such as Canada, the UK, USA and New Zealand. It might also be noted that we do worse in this respect than many non-OECD countries including, for example, South Africa.(xxvii)

Multiple business agreements
International labour law recognises that parties to collective bargaining should be free to choose the level at which to bargain. In other words, if workers and employers want to agree conditions at the sectoral level (say in the mining industry), or even nationally, then they should be free to do so. Under Australian labour law, however, workers and employer may not have an agreement certified if it covers more than one business, unless the AIRC specifically authorises it.(xxviii) The CEACR considers that these provisions violate the principle of autonomy of the bargaining parties, by restricting their ability to choose the level at which to bargain.(xxix) The CEACR has observed that the role of the AIRC in this respect effectively ‘allows the authorities full discretion to deny approval… or stipulate that the approval must be based on criteria such as compatibility with general or economic policy…’.(xxx) The CEACR has noted that, while procedural restrictions on multiple-business agreements are legitimate, requiring prior approval on the basis of wider considerations is not.

Content of collective agreements
It follows from the idea of voluntary collective bargaining that the parties should determine the level at which they bargain. It also follows that they should be allowed to determine the subject-matter of their agreement. The WR Act however restricts the parties from reaching agreement on specified matters. These include strike pay, bargaining service fees, and clauses requiring an employer to offer preference in employment to members of a trade union or obliging workers to join a trade union upon commencing their employment. The CEACR has criticised these provisions as constituting an unacceptable interference with the rights of the parties to bargain freely.(xxxi)

Right to strike
Workers’ right to strike in support of their economic and social interests is protected by the ICESCR (article 8(1)(d)) and, by implication, by Convention No 87 (arts 3, 8 and 10). The CFA has emphasised that the right to strike is one of ‘the principal means by which workers and their associations may legitimately promote and defend their economic and social interests’.(xxxii)

There is no general right to strike in Australia. Under the common law, all industrial action is unlawful as it constitutes a breach of contract and/or a tort.(xxxiii) The CEACR and CFA have observed that this is inconsistent with the internationally-recognised right to strike. Broadly speaking, the current statutory regime protects ‘industrial action’ (as defined)(xxxiv) by employers and employees only during a bargaining period, and only in support of identified claims for conditions that might later appear in a single business collective agreement. Such action is ‘protected’ in the sense that employers may not take common law action or retribution against employees who are involved in it.

The ILO’s supervisory bodies have criticised this regime, repeatedly emphasising that the right to strike should not be limited to industrial disputes that are likely to be resolved through the signing of a collective agreement.(xxxv) The right to strike extends to enabling workers to express their dissatisfaction through industrial action with economic and social policy matters that affect their interests.(xxxvi) The ILO bodies have also criticised the prohibitions in Australian law on sympathy action, secondary boycotts, and the ability of the Government to make industrial action criminal by proclamation under ss 30J and K of the Crimes Act 1914 (Cth).(xxxvii) Neither does the ILO consider it permissible that Australian law imposes a blanket prohibition on workers receiving pay for the period during which they are engaged in industrial action: this is something over which the parties ought to be allowed to bargain, and to strike.(xxxviii)

A major issue that arises for Australia is the power of the AIRC to suspend or to terminate a bargaining period that is in operation under the terms of the WR Act (s 170MW). The point here is that if workers may only enjoy protection against the legal sanctions that are otherwise available at common law for striking during the course of a bargaining period, then the ability of the AIRC to suspend or terminate the bargaining period becomes quite significant. It is important here to note that the ILO does consider that it is permissible for a State to regulate the right to strike procedurally, and also to abrogate the right completely in limited circumstances, being where workers are engaged in ‘essential services’. By this the ILO means ‘services whose interruption would endanger the life, personal safety or health of the whole or part of the population’.(xxxix) The ability of the AIRC to suspend or to terminate a bargaining period (and thereby to abrogate the right to strike) is not at all limited in these terms. On the contrary, it may also suspend or terminate a bargaining period where industrial action is threatening ‘to cause significant damage to the Australian economy or to an important part of it’ (s 170MW(3)(b)).

THE SITUATION IN THE FUTURE

What I have said so far suggests that Australian labour law has much to do to repair the gap between how it protects freedom of association, and what is required by our obligations under international law. And I repeat that I have not been exhaustive: there are aspects of freedom of association that I have overlooked and, as I noted earlier, other problems relating to non-discrimination and the work of prisoners upon which I have not touched at all. Sadly, but perhaps not surprisingly, the passage of the WorkChoices Bill will only exacerbate the situation, as have the passage already of the BCII Act and the HE Act.

AWAs
Under WorkChoices, an employer’s right to make employment contingent upon signing an AWA will now be enshrined in the statute itself: s 104(6). The Bill also makes it clear that an employer can lock out an employee in order to compel them to sign an AWA.(xl)

The WorkChoices Bill also strengthens the position of AWAs relative to other forms of workplace agreements, and so will take Australia further from compliance with article 4 of Convention 98. At present, a (collective) certified agreement will prevail over an AWA while the collective agreement is in force. However, under s 100A(2) of the WorkChoices Bill this is reversed: a collective agreement will have no effect while an AWA operates, even if a collective agreement is already in operation within the workplace.(xli) In its examination of a provision to the same effect in the BCII Act, the CFA expressed its concern that while considerable incentives exist to ensure AWAs can override collective agreements, the opposite is not possible under the BCII Act or the WR Act: this tends to promote individual agreements over collective bargaining.(xlii) Apart from the implications of this at international law, it is obvious of course that under WorkChoices an employer will be able to take further steps to de-unionise their workforce by the simple expedient of signing their workers up to AWAs at any time, including during the operation of a collective agreement.

The WorkChoices Bill is not the only offender when it comes to AWAs and how they are promoted over voluntary collective negotiation. Under the HE Act, all universities, in accordance with the Higher Education Workplace Relations Requirements, are required to offer and actively to promote AWAs to all current and future employees. They must also institute a range of other measures designed to reduce union presence, as a condition for having access to Commonwealth Grant Scheme Funding. The CFA has already commented adversely on the Australian Government’s willingness to use financial incentives to promote individual workplace agreements in its examination of the BCII Act, and it seems likely that it would draw similar conclusions in relation to these higher education reforms.(xliii)

The WorkChoices Bill requires employers to receive approval from the Office of Employment Advocate (OEA) prior to entering into negotiations for multiple-business agreements (ss 96E–F). The OEA must not grant such permission unless it is satisfied that it is in the public interest to do so (s 96F). As the prior discretion given to the AIRC under the existing provisions of the WR Act is considered by the CEACR to violate the principle of autonomy of the parties, the similar discretion enjoyed by the OEA will also likely be found to be in breach of international obligations.

The content of collective agreements
The WorkChoices Bill imposes only greater restrictions on the content of collective agreements. Under s 101E, employers will be forbidden from lodging an agreement that contains ‘prohibited content’. The Bill does not specify what precisely this is, instead giving to the Minister a power to make regulations prohibiting content from time to time. An information booklet published in advance of the Bill indicates that matters that will be prohibited include those that are already prohibited, as well as others, including in particular any remedy in relation to unfair dismissals. In addition in this area we should recall the Workplace Relations Amendment (Right of Entry) Bill 2004), which is intended to prohibit the parties from including provisions within a collective agreement relating to the rights of trade union officials to enter the workplace. The ILO has emphasised however that this is a legitimate subject for collective bargaining.(xliv) The WorkChoices Bill also goes considerably further than the WR Act: it will provide for fines of up to $33,000 for parties who even seek to include a term in a workplace agreement that is deemed ‘prohibited content’.(xlv)

The right to strike
Under WorkChoices, Australian labour law will further curtail the right of workers to engage in lawful strike action. First, the Bill retains the ‘protected action’ regime that has already attracted criticism from ILO supervisory bodies. Secondly, the Bill introduces a requirement that workers first authorise any industrial action through a secret ballot (s 108J). The new process will be complicated and lengthy, and likely to deter workers from exercising their right (such as it is) to strike. Before workers may even seek authorisation by ballot to take industrial action, they or their union will be required to make application to the AIRC for an order allowing the matter to be put to a ballot (s 109B). The ballot itself will be subject to a quorum requirement: at least 50 percent of workers eligible to vote must participate, and the action will have to be approved by more than 50 percent of the votes cast (s 109ZC). Furthermore, the authorisation will only be valid for the following 30 days. These procedural burdens are highly likely to be held in breach of the internationally recognised right to strike.(xlvi)

The WorkChoices Bill also exacerbates existing breaches in the WR Act in relation to the capacity of the AIRC to suspend bargaining periods, and so to terminate industrial action. The WorkChoices Bill leaves intact the existing powers of the AIRC to suspend or terminate a bargaining period (s 107(G)). In addition, however, it now gives similar powers directly to the Minister (s 112). This will give the Australian Government unprecedented power to intervene directly to stop industrial action, and it seems inevitable that these powers will be held to contravene our obligations at international law.

Three other aspect of the industrial action regime in the WorkChoices legislation are likely to breach international law. First, the Bill enables third parties (i.e. not negotiating parties) to apply to the AIRC for suspension of a bargaining period where industrial action is threatening significant harm to that person (s 107J). Secondly, where industrial action involves persons who are not protected for the purposes of that industrial action, all of the industrial action will be invalidated, rendering even those negotiating parties whose actions would otherwise have been lawful vulnerable to sanction under the common law (s 108C). Finally, the Bill makes it clear that industrial action is not protected if it is undertaken in support of ‘pattern bargaining’ claims (s 108D). This again interferes impermissibly with the ability of the parties to determine the content of their own bargains. 

CONCLUSION

Clearly the situation is not going to get any better in the immediate future. Indeed we can confidently expect that the ILO’s supervisory bodies will have more adverse things to say about Australian labour law after the passage of the WorkChoices Bill, certainly as far as freedom of association is concerned. There are however a couple of other important human rights issues that should be recalled before I finish.

First, the legislation will undoubtedly have a discriminatory impact against women in the workforce. Already women are more dependent upon working conditions set under awards of the AIRC. Yet the content of awards is going to be further curtailed, and the AIRC will largely be unable to make any new awards. In addition, women do much worse under the terms of AWAs than do men. Yet it is only going to be easier for employers to use AWAs in the future.

Secondly, the legislation brings about significant changes to how minimum working conditions will be established in Australia, and the level at which they will be set. Officially these changes are intended to ensure that those who can’t get a job because their labour is too expensive will be able to overcome this hurdle. There are many things one might say about all this, but only limited space! Let me just note this: those who have read the WorkChoices Bill will know that despite the creation of a ‘Fair Pay Commission’ and a ‘Fair Pay and Conditions Standard’, the use of the word ‘fair’ is only there as an adjective in those titles. There is no legislative requirement of ‘fairness’ that binds the Fair Pay Commission or that will determine the content of the Fair Pay Standard. This is a significant step back from the obligations and powers of the AIRC in relation to setting a safety net of fair minimum wages and conditions. There are significant implications in this, I suspect, for Australia’s compliance with the ICESCR, particularly article 6 as it provides a right to work that is freely chosen, and also article 7, which protects a right to what may broadly be described as fair working conditions. The interaction of these changes with the Welfare to Work changes also needs to be borne in mind.xlvii

Australia’s new labour laws are intended, as the Government has repeatedly emphasised, to try to ensure that all workers who want a job in Australia can get one. In particular, they are intended to do so by ensuring that those with few skills are not priced out of the labour market. The Government likes to refer to Tony Blair’s adage that the best form of welfare is a job, and its Welfare to Work changes are a related part of that approach. What Australia’s new labour (and social security) laws are plainly not intended to do, however, is to achieve any policy goal by protecting the human rights of Australia’s workers. On the contrary.

Colin, Fenwick, Director, Centre for Employment and Labour Relations Law, Melbourne Law School.
I thank Ingrid Landau for her research assistance in the preparation of this paper.


i I say ‘despite’ this shift, as it is not obvious that reliance on the corporations power will enable the Commonwealth to regulate the working conditions of all Australian workers. Most obviously, it will not be possible to capture those who do not work for a corporation (as defined in the Constitution and as interpreted by the High Court of Australia).
ii Professor Breen Creighton has also written and taught extensively on the Workplace Relations Act 1996 (Cth) from the point of view of Australia’s international human rights obligations, although not, so far as I am aware, in relation to the changes that are currently proposed.
iii Research Evidence About the Effects of the ‘Work Choices’ Bill, A Submission to the Inquiry into the Workplace Relations Act Amendment (WorkChoices) Bill 2005, A Group of One Hundred and Fifty One Australian Industrial Relations, Labour Market, and Legal Academics, November 2005, available at <http://www.aph.gov.au/Senate/committee/eet_ctte/wr_workchoices05/index.htm>.
iv T MacDermott, ‘Labour Law and Human Rights’ in D Kinley (ed) Human Rights in Australian Law (1998) 194.
v I have in mind here various observations made by Hilary Charlesworth over time.
vi Committee on Freedom of Association, Complaint against the Government of Australia presented by the Australian Council of Trade Unions (ACTU) and supported by the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB), Case No 2326, 338th Report of the Committee on Freedom of Association (November 2005)(‘Case No 2326’).
vii The CEACR was created by a resolution of the International Labour Conference (‘ILC’) in 1926 to monitor and report on ILO Member-states’ compliance with the provisions of ILO conventions to which they were signatories. The CCAS publicly examines more serious cases that have been examined in the CEACR. The CFA was created by the ILO Governing Body (‘GB’) in 1951. It examines complaints that ILO Member-states have violated the principles of freedom of association, regardless of whether the states have ratified the relevant ILO Conventions. Its jurisdiction derives from the constitution of the ILO.
viii These rights are also protected by other instruments, including for example the European Convention on Human Rights (Art 11).
ix On the controversy see: Philip Alston, ‘“Core Labour Standards” and the Transformation of the International Labour Rights Regime’ (2004) 15 European Journal of International Law 457; Philip Alston and James Heenan, ‘Shrinking the International Labour Code: An Unintended consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work?’ (2004) 36 New York University Journal of International Law and Policy 101; Brian Langille, ‘Core Labour Rights – The True Story (Reply to Alston)’ (2005) European Journal of International Law 409; Francis Maupain, ‘Revitalization Not Retreat: The Real Potential of the 1998 ILO Declaration for the Universal Protection of Workers’ Rights’ (2005) 15 European Journal of International Law 439; and Philip Alston, ‘Facing up to the Complexities of the ILO’s Core Labour Standards Agenda’ (2005) 16 European Journal of International Law 467.
x The eight ILO Conventions are Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98); the Forced Labour Convention, 1930 (No 29) and the Abolition of Forced Labour Convention, 1957 (No 105); the Minimum Age Convention, 1973 (No 138) and Worst Forms of Child Labour Convention, 1999 (No 182); the Equal Remuneration Convention, 1951 (No 100) and the Discrimination (Employment and Occupation) Convention, 1958 (No 111).
xi Constitution of the International Labour Organization, opened for signature 28 June 1919, 2 Bevans 241.
xii ‘Declaration Concerning the Aims and Purposes of the International Labour Organisation’, annex to the Constitution of the International Labour Organization and Standing Orders of the International Labour Conference (1994). The annex was adopted at Philadelphia on 10 May 1944.
xiii International Labour Organisation, Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (4th ed, 1996) [10] (‘Freedom of Association Digest’).
xiv WR Act s 170VF. See B Creighton and A Stewart, Labour Law (4th ed, 2005), p 291.
xv See, eg, ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, (ILC, 93rd session, Report III(Part 1A))(2005) (‘CEACR Report 2005’).
xvi See, eg, ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations (ILC, 86th session, Report III (Part IA)(1998), 223.
xvii See generally ss 298L and 298K of the WR Act.
xviii See, eg, Maritime Union of Australia v Burnie Port Corporation Pty Ltd (2000) 101 IR 435.
xix CEACR Report 2005, above n 15, 35.
xx Ibid. In Australian Workers’ Union v BHP Iron Ore Pty Ltd (No 3) (2001) 106 FCR 482, the Federal Court of Australia held that the freedom of association provisions in Part XA of the WR Act permitted BHP to offer AWAs to all employees and refuse to grant wage increases to those who wished to continue to be represented by a union. For a discussion of this case, see D Quinn, ‘To Be or Not to Be a Member – Is That the Only Question? Freedom of Association under the Workplace Relations Act’ (2004) 17 Australian Journal of Labour Law 1.
xxi CEACR Report 2005, above n 15, 35.
xxii See WR Act s 170VQ(6)(b) and s 170VQ(6)(c).
xxiii ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations (ILC, 86th session, Report III (Part IA)(1998), 223.
xxiv CEACR Report 2005, above n 15, 37.
xxv Ibid, 35.
xxvi See, eg, AWU v HP Iron Ore, above n 20.
xxvii See, eg, Quinn, above n 20.
xxviii Under s 170LC(4) of the WR Act, the AIRC must not certify a multiple-business agreement unless it is satisfied that it is in the public interest to do so, considering (a) whether the matters dealt therein could be more appropriately dealt with by agreement other than at that level; and (b) any other matter that the AIRC considers relevant.
xxix CEACR Report 2005, above n 15, 37. This principle is articulated in ILO, General Survey of the Reports on the Freedom of Association and Protection of the Right to Organise Convention 1948 and the Right to Organise and Collective Bargaining Convention 1949 (81st session, ILC, 1994) Report III (Part 4B), [251] (‘General Survey’).
xxx CEACR Report 2005, above n 15, 36.
xxxi See the CEACR’s Individual Observations Concerning Convention No 98: Australia, in 1998, 2000, 2001 and 2005. 
xxxii Freedom of Association Digest, above n 13, [484].
xxxiii Recent decisions by the Australian Courts have confirmed that there is no general right to strike in Australia: see, eg, National Workforce v Australian Manufacturers Workers’ Union Victorian Court of Appeal (Phillips, Charles and Batt JJA) 6 October 1997.
xxxiv The definition of ‘industrial action’ in s 4 of the WR Act has been interpreted as not including picketing as a form of industrial action that might be capable of enjoying the limited protection that is otherwise available: Davids Distribution v NUW (1999) 91 FCR 436, at 491.
xxxv B Gernigon, A Odero and H Guido, ‘ILO Principles Concerning the Right to Strike’ (1998) 137 International Labour Review 441, 445.
xxxvi Freedom of Association Digest, above n 13, [484].
xxxvii See, eg, CEACR Individual Observation Concerning Convention No 87, Freedom of Association and Protection of the Right to Organise, 1948, Australia, 2004.
xxxviii Ibid.
xxxix General Survey, above n 29, [164].
xl Proposed s 104(2).
xli This interpretation of the provision is supported by the Explanatory Memorandum, which emphasises that an employer and employee are free to make an AWA at any time and that this AWA will prevail over an existing collective agreement.
xlii Case No 2326, above n 6, [451]
xliii See ibid [457].
xliv In the context of the BCII Act, see Case No 2326, above n 6, [450].
xlv Proposed s 101M
xlvi As the ACTU observed in its submission to the Senate Employment, Workplace Relations and Education Legislation Committee’s Inquiry into the WorkChoices Bill,  the CFA has held that whilst the obligation to observe a certain quorum may be acceptable, the requirement of a decision by over half of the workers involved in order to declare a strike is ‘excessive and could excessively hinder the possibility of carrying out a strike, particularly in large enterprises’: Freedom of Association Digest, above n 13, [507, 510], as cited in ACTU Submission [9.54].
xlvii See generally C Rider, ‘Using Tax and Social Security to Reconstruct the Part-Time Labour Market: A Note on “Welfare to Work”’ (2005) 18 Australian Journal of Labour Law 302.