Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards in June 2006 and June 2007 and notes that, in its conclusions, the Conference Committee requested the Government to pursue full and frank consultations with the representative employers’ and workers’ organizations regarding the impact of the Workplace Relations Act 1996 (the WR Act) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act), on the rights afforded by the Convention, in particular regarding the promotion of the effective recognition of the right to collective bargaining, and to report to this Committee in 2007 in this regard.

The Committee notes the information provided in the Government’s reports dated 22 December 2006 and 15 January, 13 July, 20 September and 5 and 18 October 2007, including the Government’s observations on the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 17 May 2006, which were examined in the Committee’s previous observation. The Committee also takes note of the comments made by the International Trade Union Confederation (ITUC) in a communication dated 27 August 2007 with regard to issues already raised by the Committee and the Government’s reply thereto dated 18 October 2007.

On issues concerning the education industry, the Committee takes due note of the Government’s communication of 16 November 2006 containing the Government’s observations on the comments made by the National Tertiary Education Industry Union (NTEU).

On issues concerning the building and construction industry, the Committee notes the comments made by the ACTU in communications dated 9 October 2006 on the Building and Construction Industry Improvement (BCII) Act as well as the comments made by the Trade Unions International of Workers of the Building, Wood and Building materials Industries (UITBB) in support of the ACTU submission. It further notes the Government’s observations in this respect contained in a communication dated 13 July 2007 as well as the communication of 18 April 2007 on the tripartite consultations which have taken place on this subject. The Committee also notes the comments made by the ITUC in its communication dated 27 August 2007 as well as the Government’s reply to certain of these comments. The Committee finally notes the ACTU comments dated 14 September 2007 on this subject as well as the Government’s communication of 1 November 2007 indicating that the upcoming elections prevent it from responding to the ACTU comments at this time, and requests the Government to provide its observations at the appropriate time.

A. Federal jurisdiction. 1. In its previous comments, the Committee raised the need to rectify the possible exclusion from protection against anti-union dismissals (section 659 of the WR Act) of the particular classes of employees covered by section 693 of the WR Act (employees “in relation to whom the operation of the provisions causes or would cause substantial problems because of: (i) their particular conditions of employment; or (ii) the size or nature of the undertaking in which they are employed”). The Committee notes that according to the Government, this section allows the Government to make regulations excluding specific classes of employees in certain limited circumstances; as no regulations have been made under this section, all Australian employees are protected from termination. The Committee notes that section 693 of the WR Act does not preclude future regulations excluding particular classes of employees from protection against anti-union dismissals. Recalling once again that the Convention requires that all workers be protected from anti-union dismissals, the Committee requests the Government to indicate in its next report the measures taken or contemplated with a view to amending section 693 of the WR Act so as to ensure that there is no possibility of introducing exceptions from the right to be protected against anti-union dismissal.

2. The Committee also notes that the new section 643 introduced in the WR Act by the Work Choices Act excludes from protection against harsh, unjust or unreasonable dismissals establishments with less than 100 employees. The Committee notes that according to the ITUC, this means that around two-thirds of private sector workers have lost their right to challenge an unfair dismissal. The Committee also notes that the ITUC refers to dismissals of trade union leaders and members – including migrant workers – because of legitimate trade union activities, such as expressing concerns about health and safety issues at a company meeting, or simply joining a union. Noting that the Government has not provided specific replies to these comments and recalling that no one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and that the persons responsible for such acts should be punished, the Committee requests the Government to provide its observations on the above comments by the ITUC.

3. In its previous comments, the Committee raised the need to repeal section 400(6) and amend sections 793 and 400(5) of the WR Act so as to ensure sufficient protection against anti-union discrimination at the time of recruitment and, in particular, rectify situations where offers of employment conditional on the signing of an Australian Workplace Agreement–(AWA) (“AWA or nothing”) are considered by the courts as not amounting to duress. The Committee notes that according to the Government, section 400(6) which was recently introduced in the WR Act by the Work Choices Act so as to explicitly provide that offering an “AWA or nothing” does not amount to duress, did nothing more than confirm the position established by the Federal Court in Schanka v. Employment National (Administration) Pty Ltd ([2001] FCA 579); in that case, the Federal Court of Australia held that merely offering employment conditions upon acceptance of an AWA was not duress because an employee remained free to refuse that employment; according to the Government, this situation is not different from an employee declining an offer of employment because the conditions of employment provided for by an award or collective agreement were either inadequate and/or unacceptable to the individual. The Government adds that, on the contrary, it was found in Schanka that an employer that required a transferring employee to enter into an AWA as a condition of engagement in a transmission of business situation applied illegitimate pressure and therefore, the WR Act, as amended by the Work Choices Act, introduced substantial pecuniary penalties for persons applying duress in connection with an AWA in such situations. Moreover, according to the Government, in general, offering an “AWA or nothing” does not amount to discrimination because AWAs are not anti-union and can be negotiated with workers irrespective of whether they are union members. Workers may even appoint a union official as bargaining agent to negotiate an AWA on their behalf.

The Committee once again emphasizes that workers who refuse to negotiate an AWA at the time of recruitment do not appear to enjoy adequate legal protection against acts of anti-union discrimination and that their right to join the organization of their own choosing with the objective of determining their conditions of employment through collective bargaining, does not appear to be fully protected. It therefore once again requests the Government to indicate in its next report the measures taken or contemplated to repeal section 400(6) of the WR Act and to amend sections 793 and 400(5) of the WR Act so as to ensure that workers are adequately protected against any discrimination at the time of recruitment related to their refusal to sign an AWA.

4. In its previous comments, the Committee had raised the need to amend sections 423 and 431 of the WR Act so as to ensure adequate protection against anti-union discrimination, especially dismissals for industrial action taken in the context of negotiations of multiple business agreements and “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company). The Government indicates that pattern bargaining and multiple business agreements would have the effect of diminishing the focus of Australia’s workplace relations system on agreement-making at the workplace level and therefore, the restrictions established in the WR Act with regard to industrial action in pursuance of pattern bargaining or multiple business agreements are reasonable. According to the Government, the jurisprudence has tightly confined the elements of the definition of “pattern bargaining” so that where a person seeks common wages and conditions in two or more proposed collective agreements, the expression “common” has been held to mean “same” or “identical”. The Full Bench of the Australian Industrial Relations Commission (AIRC) in Trinity Garden Aged Care and another v. Australian Nursing Federation ((PR973718), 21 August 2006) held that a range of alternative meanings of “common” such as “frequent” “similar” or “prevalent”, were too broad and would introduce a substantial element of judgement into the application of section 421(1)(b) of the WR Act, which would cause the parties to be unsure of their rights and would “substantially deny employees access to protected industrial action in the real industrial context in which common market circumstances and common bargaining objectives (such as at least maintaining the real value of wages) will naturally result in claims for similar wages and conditions”.

The Committee once again recalls that action related to the negotiation of multiple business agreements and “pattern bargaining” is legitimate trade union activity for which adequate protection should be afforded in the law and that the choice of the bargaining level should normally be made by the parties themselves. The Committee therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 423 and 431 of the WR Act, so as to ensure that workers are adequately protected against acts of anti-union discrimination, in particular dismissal for negotiating collective agreements at whatever level deemed appropriate by the parties.

5. In its previous comments, the Committee raised the need to establish a mechanism for the rapid and impartial examination of allegations of acts of interference in the context of the selection of a bargaining partner in the enterprise under section 328(a) of the WR Act, if one did not already exist. The Government indicates that it has not established such a mechanism. It adds that regardless of which union, if any, the employer chooses to make an agreement with, its employees have an ultimate right of veto over that decision because under subsection 340(2) of the WR Act, a collective agreement is approved only if it has the support of a majority of employees to which it will apply. The Committee recalls that section 328(a) of the WR Act gives an employer the widest possible discretion to select a bargaining partner as it enables it to negotiate with organizations which have “at least one member” in the enterprise. It also considers that the possibility to put the outcome of negotiations to a vote does not afford a sufficient safeguard against interference, as the employer has the ability to abandon negotiations altogether if the collective agreement is not approved, thereby excluding any real choice for the workers. The Committee once again requests the Government to indicate in its next report measures taken or contemplated with a view to setting up safeguards against acts of interference by the employer in the context of the selection of a bargaining partner in the enterprise.

6. In its previous comments, the Committee raised the need to address various provisions of the WR Act which give preference to individual agreement-making over collective bargaining and in particular, amend section 348(2) of the WR Act so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers.

The Committee takes note in this respect of the request made by the Conference Committee for information on the impact of the amendments introduced by the Work Choices Act into the WR Act on the Government’s obligation to ensure the promotion of the effective recognition of the right to collective bargaining in law and in practice, as well as the holding of full and frank consultations with the representative employers’ and workers’ organizations in this regard.

The Committee notes the detailed information contained in the Government’s report on the economic justification of the successive reforms of the workplace relations framework introduced since 1996. The aim of these reforms has been, according to the Government, to promote more jobs and better pay through improvements in productivity so as to maintain Australia’s economic prosperity and strength. The reforms ensured that the primary focus of the workplace relations system is agreement-making at the workplace level, gave Australian employers and employees greater choice in negotiating working conditions and simplified overly prescriptive awards. The object of the WR Act does not preference one form of agreement-making over another. Rather, the WR Act enables employers and employees to choose the most appropriate form of agreement for their particular circumstances. Indeed, the latest data from the Australian Bureau of Statistics shows that more employees are employed under collective agreements than any other arrangement. In particular, as of May 2006, 41.2 per cent of employees nationally were employed under collective agreements; 19.0 per cent under awards; 34.6 per cent under individual agreements; and 5.1 per cent as working proprietors. Moreover, since the commencement of the 27 March 2006 workplace relations reforms, over 8,300 collective agreements have commenced covering about 735,000 employees. In addition to this, at the federal level, as at 31 August 2007, AWAs regulated the terms and conditions of an estimated 830,000 employees, whereas collective agreements covered some 1,773,600 employees, a fact which clearly demonstrates that collective agreements continue to be the norm in Australia. The Committee also notes that the Government reiterates its position on its obligations under Article 4 of the Convention to the effect that measures for the encouragement and promotion of collective bargaining should be taken only “where necessary” and only where they are “appropriate to national conditions”. The Government maintains that the key components of Article 4 are all reflected in Australia’s federal workplace relations system in a way which is appropriate to national conditions. Specifically, the WR Act promotes bargaining since this constitutes one of the principal objects of the Act; it provides that bargaining is voluntary so that under the WR Act an employer cannot compel an employee to enter into an agreement; and does not prefer one form of agreement over another in light of the fact that collective bargaining continues to be the norm in Australia. The Committee also notes from the summary record of the consultations held with representatives of the ACTU and the Australian Chamber of Commerce and Industry (ACCI) on 20 August 2007 – communicated by the Government – that the consultations did not lead to any new element as all sides appear to maintain their respective positions.

The Committee notes with deep regret that the Government’s report is confined to largely reiterating the position it has already stated on numerous occasions. The Committee further notes with concern that although the statistical information provided by the Government as to the number of employees covered by AWAs and collective agreements as at 31 August 2007 (830,000 and 1,773,600 employees respectively) shows that collective agreements continue to be the norm in Australia, it also shows that the number of employees covered by AWAs has increased exponentially since the introduction of these instruments in 1986 (in 2004, the Government had reported 352,531 AWAs in force in the first seven years since their introduction (1997–2003); see 2004 direct request, 75th Session). Moreover, as will be seen in the next section, one quarter of collective agreements are concluded with non-unionized workers regardless of whether trade unions exist in an enterprise. The Committee considers that these statistics are not unrelated to the legal provisions of the WR Act which promote AWAs over collective agreements negotiated with trade unions, and also correlate with the information noted under Convention No. 87, according to which trade union membership has been halved in the last 20 years. The Committee once again recalls that giving primacy to AWAs, which are individual agreements, over collective agreements, is contrary to Article 4 of the Convention which calls for the encouragement and promotion of voluntary negotiations with a view to the adoption of collective agreements. As noted in the Committee’s previous observation, although the expressions “where necessary” and subject to “national conditions” found in Article 4 of the Convention allow for a wide range of different national practices in the implementation of measures for the encouragement and promotion of collective bargaining, they were not intended to authorize in any way the introduction of disincentives, obstacles to and even prohibitions of negotiations (as will be seen further below) amounting to a negation of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.

The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated so as to promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, as called for by Article 4 of the Convention. Considering that full and frank consultations with the social partners could be particularly appropriate in this regard, and while noting that the consultations already held have not led to any outcome, the Committee requests the Government to indicate in its next report any further consultations held and the impact they may have in ensuring greater respect for the effective exercise of the right to collective bargaining.

With regard to the specific request of the Committee for an amendment to section 348(2) of the WR Act, so that AWAs prevail over collective agreements only to the extent that they are more favourable to the workers, the Committee notes that according to the comments made by the ITUC, the incentives for employers to prefer AWAs instead of collective agreements have been greatly increased as a result of the Australian Fair Pay and Conditions Standard; AWAs must now include only five minimum conditions (minimum wage, annual leave, sick leave, unpaid parental leave and maximum weekly working hours) rather than being measured against comprehensive industrial awards, meaning that they can substantially undercut employees’ previous wages and working conditions. The ITUC also refers to one incident – on which the Government has not provided comments – concerning pressure put on workers to renounce their collective agreement before its expiration and sign individual contracts under which they faced pay cuts and penalties for taking sick leave or career’s leave; the incident is under investigation by the Workplace Rights Advocate for the State of Victoria. The Committee also recalls the extensive comments made by the ACTU on this issue, which were summarized in the Committee’s previous observation, to the effect that: (i) the previously applicable “no disadvantage test” has been replaced by a “fairness test”; (ii) AWAs can now override collective agreements irrespective of whether they were made before or after the collective agreement; (iii) award conditions can be displaced by inferior AWAs not only for new employees but also for existing employees so that their acquired rights are not protected; (iv) the primacy given to AWAs makes the purported ability of unions to bargain collectively nugatory.

The Committee notes that the Government indicates that it is difficult to objectively determine what constitutes an “inferior” AWA compared to a collective agreement, as individual agreements may contain terms and conditions which might appear at first sight to be less beneficial (variations in the payment or type of penalty rates for work undertaken at certain times) but might be accompanied by other terms considered as being superior or more generous by the employee (higher base rate of pay, more flexible working hours at the request of the employee, leave arrangements and the opportunity to receive performance-based pay and incentives) to those contained within a collective agreement. Furthermore, a fairness test has been introduced by the Australian Fair Pay and Conditions Standard to provide a safety net of minimum terms and conditions that all employers must provide, regardless of the industrial instrument applicable to employees. The Act requires the Workplace Authority to apply the fairness test to ensure that workplace agreements provide fair compensation in lieu of protected award conditions such as penalty rates; it is not the intention of the Government to have protected award conditions traded off without proper compensation.

The Committee once again recalls that employers and workers bound by a collective agreement should be able to include in contracts of employment stipulations which depart from the provisions of the collective agreement only if these stipulations are more favourable to the workers. The Committee observes that the “fairness test” presumes a comparison between two instruments of the same nature; however, AWAs are not collectively negotiated and therefore should not be subject to an evaluation of the whole instrument and all of its specific parts as if they were part of a negotiated trade-off. AWAs should rather be re-adjusted to the provisions of the collective agreement, where one is in force, so as to allow those specific conditions that are more favourable in the collectively negotiated instrument to prevail. The Committee therefore once again requests the Government to amend section 348(2) of the WR Act so as to ensure that AWAs may prevail over collective agreements only to the extent that they are more favourable to the workers. It further requests the Government to provide information/observations on the incident under investigation by the Workplace Rights Advocate of the State of Victoria mentioned by the ITUC in its comments.

7. In its previous comments, the Committee raised the need to ensure that “employee collective agreements” do not undermine workers’ organizations and their ability to conclude collective agreements, and that negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise (sections 326–327 of the WR Act). The Committee notes the comments of the ITUC to which the Government has not responded, according to which, the WR Act does not require employers to negotiate with unions at all, even when all the employees are union members and wish to be represented in bargaining by their union. The Committee requests the Government to provide its observations in this regard.

The Committee notes that according to the Government, in a context of declining trade union density, the WR Act balances the right of employees to be represented by a trade union and an employer’s right to pursue their preferred form of industrial instrument. Since the implementation of the reforms in March 2006, 64 per cent of employees covered by new federal workplace agreements were covered by collective agreements (as at the end of August 2007); 49 per cent of employees were covered by agreements negotiated with unions and 15 per cent by agreements negotiated by employers directly with their employees; in other words, over three-quarters (76 per cent) of employees covered by collective agreements, made following the workplace relations reforms, are covered by union collective agreements.

The Committee once again recalls that Article 4 of the Convention refers to voluntary negotiations between employers or employers’ organizations and workers’ organizations. It therefore once again requests the Government to take measures to ensure that employee collective agreements do not undermine workers’ organizations and their ability to conclude collective agreements, and to indicate in its next report the measures taken or contemplated with a view to ensuring that negotiations with non-unionized workers take place only where there is no representative trade union in the enterprise.

8. In its previous comments, the Committee raised the need to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act so as to ensure that multiple business agreements are not subject to a requirement of prior authorization at the discretion of the employment advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Government indicates that from the commencement of the workplace relations reforms in March 2006 to July 2007, there were 22 applications for authorization to make a multiple business agreement. Of these, six were approved, two were approved in principle (subject to amendments reflecting the provisions of the Fair Pay and Conditions Standard and the removal of prohibited content), five have been abandoned, and four were being assessed. Five applications were refused. Furthermore, with regard to “pattern bargaining” (which might lead to a form of multi-employer business agreement), the Government indicates that this form of bargaining is prohibited if there are no genuine attempts to negotiate an agreement which takes into account the individual circumstances of the employer in determining wages and conditions of employment.

The Committee once again recalls that the level of collective bargaining should be decided by the parties themselves and not be imposed by law and that legislative provisions which make the entry into force of a collective agreement subject to prior approval by the administrative authority at its discretion, is incompatible with the Convention and a violation of the principle of the autonomy of the parties. The Committee therefore once again requests the Government to indicate in its next report the measures taken or contemplated to repeal or amend sections 151(1)(h), 152, 331(1)(a)(ii) and 332(3) of the WR Act, so as to ensure that multiple business agreements are not subject to the requirement of prior authorization at the discretion of the employment advocate and that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority. The Committee also requests the Government to keep it informed of any regulations adopted in relation to this matter.

9. In its previous comments, the Committee raised the need to amend the Workplace Relations Regulations 2006 so as to ensure that any “prohibited content” of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining and to consider in this context, tripartite discussions for the preparation of collective bargaining guidelines. The Government indicates that the provisions on “prohibited content” are based on the fact that some content is not germane to the employment relationship and therefore inappropriate to be included in workplace agreements; such restrictions are a continuation of the limits that the Australian workplace relations system has always placed on the content of binding industrial instruments.

The Committee recalls that the issues listed in the Workplace Relations Regulations 2006 as constituting “prohibited content” (e.g. provisions which require a person to encourage trade union membership or indicating support for such membership; or requiring or permitting payment of a bargaining services fee; payroll deduction systems for union dues; leave to attend training provided by a trade union; paid leave to attend union meetings; process for renegotiating the agreement on its expiry; right of entry to the premises for union officials; union representation rights in disputes procedures, unless specifically requested by the employee; restrictions on the use of contractors and labour hire; forgoing of annual leave other than in accordance with the Act; encouragement or discouragement of trade union membership; allowing of industrial action; remedies for unfair dismissal; direct or indirect restrictions on AWAs); represent to a large extent the type of matters that have traditionally been subjects for collective bargaining. As a general rule, negotiation over such matters should be left to the discretion of the parties. Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with the Convention and the free and voluntary nature of collective bargaining. In the event of doubt as to the matters falling within the purview of collective bargaining, tripartite discussions for the preparation on a voluntary basis, of guidelines for collective bargaining could be a particularly appropriate method for resolving such difficulties. The Committee once again requests the Government to consider tripartite discussions for the preparation of collective bargaining guidelines and to indicate in its next report any measures taken or contemplated to amend the Workplace Relations Regulations 2006, and to ensure that any “prohibited content” of collective agreements is in conformity with the principle of the free and voluntary nature of collective bargaining enshrined in Article 4 of the Convention.

10. In its previous comments, the Committee raised the need to amend section 330 of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves and that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an “employer greenfields agreement” has been registered (enabling the employer to unilaterally determine the terms and conditions of employment in a new business including any new activity by a government authority, or a body in which a government has a controlling interest or which has been established by law for a public purpose as well as a new project which is of the same nature as the employer’s existing business activities). The Government indicates that “employer greenfields agreements” aim at allowing the employer to unilaterally establish a set of terms and conditions of employment that will operate in new projects or enterprises for a maximum of 12 months, during which time, negotiations can take place for subsequent workplace agreements. Even if the employer determines the terms and conditions unilaterally, the “agreement” should comply with the Australian Fair Pay and Conditions Standard and is subject to a fairness test. Moreover, the Government indicates that the definition of “new business” recently introduced in the WR Act by the Work Choices Act, did not aim at expanding the definition of new business where greenfields agreements may be made, but rather clarifying a situation of legal uncertainty as to what constitutes a new business, due to various decisions taken on this subject by the AIRC. As for the concern expressed by the ACTU that employees may be moved to AWAs during the life of greenfields agreements, the Government highlights the substantial protections contained in the WR Act against an employer applying duress to employees to make them enter into an AWA.

The Committee once again observes that the provisions on employer greenfields agreements in combination with the total exclusion of any attempts at good-faith bargaining, the much enlarged definition of new business to further include the very broad concept of “new activity”, and the greater primacy accorded to AWAs, would appear to seriously hinder the possibility of workers in such circumstances to negotiate their terms and conditions of employment. It therefore once again requests the Government to indicate in its next report any measures taken or contemplated to amend sections 323 and 330 of the WR Act so as to ensure that the choice of bargaining agent, even in new businesses, may be made by the workers themselves and that they will not be prohibited from negotiating their terms and conditions of employment in the first year of their service for the employer even if an employer greenfields agreement has been registered.

B. Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409–457), had raised the need to rectify several discrepancies between the BCII Act and the Convention.

The Committee notes the comments made by the ACTU according to which the BCII Act is framed so as to operate in conjunction with the uniquely harsh measures introduced under the WR Act by the Work Choices Act. In particular, in addition to restrictions introduced in parallel with the WR Act, section 64 of the BCII Act also prohibits project agreements which have been a common feature of the building industry and are particularly suited to its nature as an efficient means of ensuring that all employees on a building site, who may be employed by a large number of small subcontractors, are covered by one agreement setting standard wages and conditions. The ACTU finally indicates that the BCII Act purports to grant the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by Ministerial Decree through a device referred to as a building code which escapes parliamentary scrutiny. In fact, the code which has been applicable in the industry since 1999 is inconsistent with the Convention on several points as noted by the Committee in its previous comments. This system is now combined with an accreditation scheme (foreseen in Chapter 4 of the BCII Act) for contractors who wish to enter into Commonwealth contracts so as to ensure that they apply the code.

The Committee notes that according to the Government, the focus of the BCII Act is on bargaining at the enterprise or workplace level. Thus, it is not appropriate to have project agreements negotiated between head contractors and unions that impose common arrangements on any subcontractor working on the project, as the employer and employees who will be covered by a workplace agreement have the right to determine the content of their working arrangements themselves. Subcontractors providing at least 90 per cent of all labour in the building and construction industry should not be denied the possibility to determine themselves whether particular terms and conditions should apply. According to the data provided by the Government, 84 per cent of employees covered by federal collective agreements in the construction industry have been employed under union negotiated collective agreements. Since the Work Choices amendments, 68 per cent of construction employees covered by new federal collective agreements were employed under union negotiated collective agreements. The remaining 32 per cent were employed under the other agreement-making options available under the WR Act such as employee collective agreements or employer greenfields agreements. Finally, the Government indicates with regard to the absence of parliamentary scrutiny over the provisions of the National Code of Practice for the Construction Industry, that the Code can be challenged before the Federal Court and any sanctions imposed under the Code are subject to judicial review or an internal administrative review, or a complaint to the Commonwealth Ombudsperson.

Noting with regret that the Government reiterates the same position in respect of the issues raised under both the WR Act and the BCII Act with regard to collective bargaining, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to bring the BCII Act into conformity with the Convention with regard to the following points: (i) the revision of section 64 of the Act so as to ensure that the determination of the bargaining level is left to the discretion of the parties and is not imposed by law or by decision of the administrative authority; (ii) the promotion of collective bargaining, especially by ensuring that there are no financial penalties or incentives linked to undue restrictions of collective bargaining (sections 27 and 28 of the Act authorize the Minister to deny Commonwealth funding to contractors bound by a collective agreement that, although lawful, does not meet the requirements of the building code; the latter: (i) excludes a wide range of matters from the scope of collective bargaining; and (ii) contains financial incentives to ensure that AWAs may override collective agreements).

C. Higher education sector. In its previous comments, the Committee noted the need to amend section 33-5 of the Higher Education Support Act 2003, and the Higher Education Workplace Relations Requirements (HEWRRs) which raise obstacles to collective bargaining similar to those raised by the WR Act and the BCII Act, by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit.

The Committee notes the Government’s reply to the comments made by the NTEU, which were summarized in the Committee’s previous observation. With regard to the relationship between collective agreements and AWAs, the Committee notes that the Government reiterates its position on its obligations under Article 4 of the Convention. As to the example of impediments to collective bargaining provided by the NTEU, the Government describes it as an isolated incident which bears no relevance to the HEWRRs.

Noting with regret that the Government reiterates once again its position on questions of collective bargaining, the Committee can only request the Government once again to indicate in its next report the measures taken or contemplated to amend section 33-5 of the Higher Education Support Act 2003, and the HEWRRs which raise obstacles to collective bargaining similar to those raised by the WR Act and the BCII Act, by: (1) providing economic incentives to ensure that collective agreements contain exceptions in favour of AWAs; and (2) allowing for negotiations with non-unionized workers even where representative trade unions exist in the unit.

The Committee has been informed by the Government of Australia, newly elected on 24 November 2007, that it is committed to making substantial amendments to Australia’s workplace relations legislative framework and to addressing issues the Committee has raised with regard to the Building and Construction Industry Improvement Act 2005. The Committee expresses the hope that its comments will prove useful to the Government in its deliberations on legislative revision.

A request on another point is being addressed directly to the Government.

[The Government is asked to report in detail to the present comments in 2008.]