3 – Regular violations of rights
The ITUC Global Rights Index

Australia

The ITUC affiliate in Australia is the Australian Council of Trade Unions (ACTU).

The Liberal-National Coalition Government, elected in September 2013, has proposed a range of amendments to the Fair Work Act 2009 that curtail trade union rights and restrict freedom of association freedom of association The right to form and join the trade union of one’s choosing as well as the right of unions to operate freely and carry out their activities without undue interference.

See Guide to the ITUC international trade union rights framework
and collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
, most notably in the construction industry.
With the exception of Victoria, public sector workers in the states remain subject to state rather than federal industrial laws. Conservative state governments in NSW and Queensland have passed laws which restrict the capacity of these workers to improve their wages and conditions through collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
and to participate in genuine consultation on workplace issues.

In practice

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Persistent targeting and dubious charges against union organisers 01-07-2015

In July 2015 Johnny Lomax, an organiser for the Construction Forestry Mining and Energy Union (CFMEU) was arrested on allegations of intimidating and blackmailing a company over the signing of an Enterprise Bargaining Agreement (EBA). The Australian Federal Police (AFP) alleged that this resulted in financial loss for the company since it has to pay its workers 26 Australian dollars (18 USD) an hour, when it claims it could have paid as low as 17 Australian dollars (12 USD). However the Australian Capital Territory (ACT) Director of Public Prosecutions decided it would not offer any evidence against Lomax when his case came up in court on 19 October 2015. The CFMEU welcomed that decision, noting that the union organiser had simply been doing his job, negotiating for higher wages.

His was not the only case. In mid-2015 the Trade Union Royal Commission Police brought charges against a CFMEU Queensland official Andrew Sutherland over an incident in November 2012. In March 2016 the Commonwealth Department of Public Prosecutions decided not to pursue charges, given the lack of evidence to back them up. Charges were also brought against another Queensland organiser Justin Steele for alleged assault against a developer in May 2015, and then dropped. In fact it transpired that the developer wanted to stop him taking photographs of unsafe practices.
Similarly, charges were brought, then dropped, against the CFMEU’s Australian Capital Territory (ACT) secretary, Dean Hall, while a not guilty verdict was delivered in the case of the New South Wales official Michael Greenfield.
The CFMEU’s Construction National Secretary Dave Noonan noted that “it was obvious from the outset that there were very spurious grounds for the charges laid...These actions seem to be designed to create a storm of negative publicity for the union.”

NSW law restricts collective bargaining in the public sector01-03-2015

In March 2015 the Community and Public Sector Union, the Public Service Association of New South Wales (NSW) and the Australian Council of Trade Unions (ACTU) filed a complaint with the ILO International Labour Organization A tripartite United Nations (UN) agency established in 1919 to promote working and living conditions. The main international body charged with developing and overseeing international labour standards.

See tripartism, ITUC Guide to international trade union rights
asking it to investigate the NSW government’s actions in denying them the right to collectively bargain for wage increases.
In 2011, the government of New South Wales enacted a law preventing employees from seeking wage rises above 2.5 per cent per annum. Collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
on wages is therefore restricted, capping public sector employee wage increases at 2.5 per cent per annum. Under certain conditions, increases above the cap are allowed, but only if they are offset by cost savings.
The complaint came as unions rallied around the country to protest against the NSW and Federal government’s privatisation of public assets and salary cuts.

Collective agreement ignored and worker activists targeted in mass dismissals06-08-2015

On 6 August Hutchison Ports Australia sacked 97 workers in Sydney and Brisbane
via an email sent at midnight. Some 40 per cent of Hutchison Ports Australia’s workforce of 224 received the overnight termination notices, 57 in Sydney and 40 in Brisbane, Mr. Keating of the Maritime Union of Australia (MUA) said. The workers were told they would be paid until 16 August but need not show up for work again.

By the following afternoon some 200 of them and their supporters were protesting at the entrance to the company’s container terminal on Foreshore Drive Port Botany, as hired guards blocked the security gates and police kept watch.
Earlier in the week the MUA had notified a dispute to the Fair Work Commission on the grounds that the company had breached the enterprise bargaining agreement by not consulting with the union over workplace changes and not providing information to support its actions. The union said it would accept genuine redundancies, but the company was not struggling and had contracts that “without question sustained the viability of 224 workers”. Hutchison Ports had instead subcontracted half its work out to another stevedoring company.
Mr Keating said elected workplace representatives had been targeted for redundancy, including “the whole safety committee”. Ross Pettett, an elected health and safety representative who was among the recipients of the midnight email, said it was clear that “they have not wanted to work with the union at all.”

Chevron’s anti-union port11-05-2015

On 11 May 2015 an International Transport Workers’ Federation (ITF) conference in Perth, Australia, declared Chevron’s Barrow Island a ’port of convenience’ (POC)’ for excluding the Maritime Union of Australia (MUA) from the port. The ITF’s “Port of Convenience” campaign mirrors its “Flags of Convenience” campaign, and targets all world ports judged to exclude union labour or undermine union conditions.
Chevron was preparing to export liquid natural gas (LNG) from the Australian island, but did not want Australian union labour involved. The union and Chevron were at loggerheads over the company’s claims that Australian unions were to blame for an estimated USD17 billion overspend at the Gorgon LNG Project. The unions commissioned a report that claimed mismanagement and logistical issues were behind the overspend, while accusing the company of breaching health and safety guidelines. Chevron was suing the union for USD20 million in damages over union safety stoppages.

Delaying tactics to avoid collective bargaining:19-06-2015

In the case of APESMA v Peabody Energy Australia Coal Pty Ltd [2015] FWCFB 1451 (3 March 2015), the company initially refused to negotiate an agreement, preferring that the employees remain on their individual contracts. The union obtained a majority support determination to force the company to negotiate an agreement. However, after more than ten fruitless meetings, the negotiations came to a halt, prompting the union to apply for bargaining orders on the basis that Peabody was engaging in “surface bargaining”. On appeal, the Fair Work Commission held that the company’s refusal to meet for further discussions after the union put a “substantially revised proposal” to it constituted a breach of the good faith obligations. The Bench ordered Peabody to meet with the union and give it “a genuine proposal which includes the matters that it may be prepared to accept in an enterprise agreement”.

Refusal to bargain with representative union: 19-06-2015

In the recent decision of Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940 the Fair Work Commission considered, among other things, whether an employer had avoided its bargaining obligations by attempting to exclude the union from negotiations for a new agreement.
The employer went to great lengths to avoid bargaining with the union by closing the mine for three months (to avoid certain transfer provisions in the Fair Work Act), hiring a small number of employees (21 from a required total of over 400) who were thought to be non-members, and negotiating an agreement directly with the employees and excluding the union. The employer essentially forced the employees to relinquish their rights to be represented by the union by having them appoint themselves as their own representatives for the bargaining.
Ultimately the Fair Work Commission found that the union had been a representative of at least one employee for a short period of time and allowed the union to provide the Fair Work Commission with information that it had about the agreement and the bargaining process. While the union had a right to be heard in the final stages of the agreement approval process, it was effectively denied the right to represent its members during the agreement negotiations and was denied the ability to ensure that the terms and conditions applying to its members at that particular mine and in the industry in general were upheld.

State governments dictate public sector wages04-08-2014

In Queensland, the Government has passed laws which remove important protections for state public sector workers with respect to termination, change and redundancy that exist in collective agreements and awards and render unenforceable any restrictions on the use of contractors. These laws come at a time when the government is laying off tens of thousands of workers. New laws also impose requirements on the industrial tribunal in Queensland to take into account the state’s financial position and fiscal strategy when determining public sector wages and conditions by arbitration arbitration A means of resolving disputes outside the courts through the involvement of a neutral third party, which can either be a single arbitrator or an arbitration board. In non-binding arbitration, the disputing parties are free to reject the third party’s recommendation, whilst in binding arbitration they are bound by its decision. Compulsory arbitration denotes the process where arbitration is not voluntarily entered into by the parties, but is prescribed by law or decided by the authorities.

See conciliation, mediation
. The laws introduce limitations on the right to bargain collectively and take industrial action industrial action Any form of action taken by a group of workers, a union or an employer during an industrial dispute to gain concessions from the other party, e.g. a strike, go-slow or an overtime ban, or a lockout on the part of the employer. , including requirements for protected action ballots, provisions enabling an employer to submit a ballot directly to employees, and new powers for the Minister to terminate industrial action industrial action Any form of action taken by a group of workers, a union or an employer during an industrial dispute to gain concessions from the other party, e.g. a strike, go-slow or an overtime ban, or a lockout on the part of the employer. on a number of grounds.

Individual agreements undermine collective bargaining04-08-2014

The Fair Work Amendment Bill 2014 also removes a number of existing safeguards on individual statutory contracts (known as Individual Flexibility Arrangements) that were designed to address significant problems associated with Australian Workplace Agreements (AWAs) made under the former Workplace Relations Act. In practice these changes will enable employers to exploit vulnerable employees and systematically undermine collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
by requiring employees to enter into an arrangement that reduces terms and conditions of employment on an individual basis.

Maximum three month negotiation period for certain kinds of agreements04-08-2014

The provisions of the Fair Work Amendment Bill 2014 restrict the right to freely bargain for a “greenfields agreement” to cover a new enterprise. The proposed amendments enable an employer to unilaterally give notice of a three month negotiation period, the consequence of which is that at the end of the period, the good faith bargaining requirements no longer apply to negotiations and an employer can request the Commission to approve an agreement (that covers the union) without the union’s agreement. The new provisions limit the outcomes that are available through arbitration arbitration A means of resolving disputes outside the courts through the involvement of a neutral third party, which can either be a single arbitrator or an arbitration board. In non-binding arbitration, the disputing parties are free to reject the third party’s recommendation, whilst in binding arbitration they are bound by its decision. Compulsory arbitration denotes the process where arbitration is not voluntarily entered into by the parties, but is prescribed by law or decided by the authorities.

See conciliation, mediation
by requiring the Commission to set terms that are consistent with prevailing pay and conditions in the relevant industry. Essentially, this is a return to the position under Work Choices where an employer could make an “agreement” with themselves.

Private employers’ anti-union tactics 04-08-2014

The provisions of the Fair Work Amendment Bill 2014 concerning right of entry will make it even more difficult for unions to access workplaces. The current provisions of the Act enable a union official to enter a workplace to hold discussions with employees whose industrial interests the union is entitled to represent and who wish to participate in those discussions. The proposed amendments will require employees to take positive steps to enable a union to attend a workplace unless a union is already covered by an agreement. Contrary to the very clear pre-election commitment given by the Government, there is no explicit right of entry where a union is seeking to bargain in good faith for an agreement. In practice, employers will be able to prevent unions from accessing workplaces in order to invite employees to join a union or commence collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
.
The Bill also reverses recent amendments to the Fair Work Act that required employers to provide unions with a suitable location to meet with workers and facilitate access to worksites at remote locations by providing accommodation and transport on a cost-recovery basis,

No right to strike unless employer agrees to bargain04-08-2014

The Fair Work Amendment Bill 2014 contains new pre-requisites that must be met in order to take lawful industrial action industrial action Any form of action taken by a group of workers, a union or an employer during an industrial dispute to gain concessions from the other party, e.g. a strike, go-slow or an overtime ban, or a lockout on the part of the employer. . If the Bill is passed, there will be no right to strike strike The most common form of industrial action, a strike is a concerted stoppage of work by employees for a limited period of time. Can assume a wide variety of forms.

See general strike, intermittent strike, rotating strike, sit-down strike, sympathy strike, wildcat strike
unless the employer agrees to bargain for a collective agreement or the Commission makes a majority support determination, scope order or low paid authorisation. In practice, the only way of compelling an employer to come to the bargaining table will be to obtain a determination that a majority of employees who will be covered by the agreement want to bargain.

NSW government dictates wages30-11-2010
Private employers’ anti-union tactics 30-11-2010

In practice, many employers (particularly in the mining sector) do their best to frustrate trade union activity. Examples include employer refusals to transport union officials to remote sites to meet with workers, refusals to bargain collectively until the union can demonstrate it has majority support in the workplace, refusal to allow union delegates to undertake union activity in the workplace during working time.

In many industries, harassment and victimisation of union members and delegates occurs, but it is often difficult to prove an anti-union motive in court. One exception is the recent case of Barclay v Bendigo TAFE, where a union delegate was disciplined for sending emails to staff that were critical of the University. The University claimed it was simply responding to action that was “contrary to University policy”, but the court found an anti-union motive existed. Unfortunately, this decision has been appealed by the employer to the High Court.

Rights of workers in Western Australia at risk31-12-2010

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 industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
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.

Heavy restrictions on construction workers31-12-2010

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.

Many rights restored, but deficiencies remain14-04-2010

The passing of the Fair Work Act in 2009 reinstated many of the rights which had been removed by the previous Australian Government, and the establishment of Fair Work Australia as a government authority provided a mechanism through which these rights can be enforced.
At the same time, employers were able to exploit deficiencies in the legislation which remained in place, including restrictions on collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
insufficient protection from unfair dismissal for workers in small businesses during a 12-month probationary period, limitations on right of entry of trade union representatives to workplaces, and the retention of the notorious Australian Building and Construction Commission (ABCC).

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