2011 Annual Survey of violations of trade union rights - Australia

Population: 21,300,000
Capital: Canberra
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111

There is growing concern at the prospect of an assault on workers' rights in Western Australia, with a recent report commissioned by the conservative state Government recommending that employers be given the power to insist their employees sign individual contracts and that unfair dismissal protections for employees in small businesses be removed. The unfair and punitive laws applying to workers and unions in the building and construction industry remain in place.

TRADE UNION RIGHTS IN LAW

While the Fair Work Act 2009 has improved respect for trade union rights, problematic areas remain. Freedom of association is guaranteed for both private and public sector workers. However, in order to register a union, an excessive 50 members is required, and in New South Wales, registration can be cancelled in case of a strike having a substantially adverse effect on public service. Employers and other unions also have the right to challenge changes to union "eligibility rules", which essentially outline the types of employees unions can represent. The right to collective bargaining is secured in the Fair Work Act but there are restrictions with regard to the content of the collective agreements.

The right to strike is limited as lawful industrial action can only be taken during the process of bargaining for a collective agreement, and cannot be taken when bargaining with multiple employers unless they form a single interest group (e.g. a joint venture). Protected industrial action can be suspended or terminated in a number of different circumstances by the Minister and/or by Fair Work Australia (such as where the strike is deemed to be causing significant economic damage to the parties or where the action is causing significant harm to a third party). Secondary action is also unlawful. Finally, separate and punitive laws continue to apply to workers and trade unions in the building and construction industry.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

Background: The Australian Labor Party returned to power at the 2010 federal election after forming a minority government with the support of the Australian Greens and independents. There was a change of government in the state of Victoria, with the incumbent Labor Government defeated by the Liberal/ National Coalition at the November 2010 election.

Heavy restrictions on construction workers: Australian Building and Construction Commission (ABCC) inspectors continued to harass trade union members and officials in the construction sector, including by conducting secret interrogations of individual workers without a guarantee of legal representation of their choice. The ABCC has the power to impose fines of up to AUD 22,000 on workers, and those who refuse to submit to the interrogation procedure can face prison terms of up to 6 months.

Ark Tribe, a construction worker on a building site at Flinders University in South Australia, was charged with not attending an ABCC interrogation in 2008 and faced up to six months in jail. Workers at the site had been demanding that the company management fix a series of serious safety issues and it was only when the South Australian State authorities intervened that the safety breaches were rectified. The ABBC had visited the building site and interviewed the workers, but it did not interview the company managers over the safety breaches for which the company was responsible. Tribe was summoned for questioning by the ABCC, which subsequently charged him with failing to attend the interview at the appointed time. Tribe was found not guilty by the Adelaide Magistrates' Court in November 2010, with the court finding that the former ABCC Commissioner had failed to lawfully delegate his functions.

A bill introduced into the federal parliament by the Labor Government in 2009 – which sought to abolish the ABCC but to create a separate building industry inspectorate with coercive powers but with additional safeguards – would have represented some improvement on the current situation. However, it failed to pass through the Parliament. Australian unions have continued their campaign to ensure that the Government delivers on its promise to abolish the ABCC and to implement laws that recognise and protect the rights of workers and trade unions.

Rights of workers in Western Australia at risk: The conservative State Government in Western Australia – which when previously in office had provided a test-bed for the anti-union laws of the former Federal Government – commissioned a review of industrial relations which recommended that employers be given the power to insist their employees sign individual contracts and that unfair dismissal protections for employees in small businesses be removed. The Western Australian Government has yet to respond to the report.

Collective bargaining agreements ignored in South Australia: The Government in South Australia has used budget legislation to cut entitlements to long service leave and leave loading of public sector workers which had been agreed upon in good faith through collective agreements. The Government has also opposed the public sector union's notification of an industrial dispute in the state industrial tribunal on the basis that it is not the employer of the public sector workers, arguing that the employer is the Chief Executive of each Department and that, consequently, the Government is not bound to the collective agreements it was involved in negotiating.