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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Limitation of the scope of collective bargaining in the construction sector14-03-2018

In the construction sector, industry specific laws further confine the scope of permitted topics for collective agreements. This is because building companies become ineligible to perform work funded by the government if they make collective agreements dealing with particular matters. Those matters include limits on the number of hours that can be worked in a day, requiring the hiring of a minimum ratio of apprentices, safe staffing levels and requirements about pay parity for indirect/agency workers.

Suspension of a lawful strike in the paper production sector15-02-2018
The Fair Work Commission limits the scope of collective bargaining27-09-2017

Unions in Australia observe with concern a narrowing of the scope of permitted bargaining matters and its impact on the 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
. In a decision of 27 September 2017 ([2017] FWC 4951), the Fair Work Commission (FWC) declared that the clause put forward by United Voice in its negotiation with Castlemaine Perkins Pty Ltd was outside of the scope of “permitted content”.
Bargaining between the union and the company is currently underway and commenced in mid-2017. After several meetings between the parties, the union filed for a protected action ballot order, the first necessary step to taking protected 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. , which in recent years has become overly prescriptive and legalistic.
Under the current regime, the key requirement the union must meet for the order to be granted is demonstration that it “is and had been genuinely trying to reach agreement”. This phrase has become overly technical and legalistic, divorced from any practical reality of what it means to bargain “in good faith”.
Often the debate about whether a union party is genuinely trying to reach agreement is conflated with whether that party is seeking to advance claims for “non-permitted” content. The most common debate is around content which seeks to place limitation or restriction on the engagement of third party labour (e.g., agency workers).
Such was the case in the current matter, wherein the union applied for a protected action ballot order of workers to be covered by the relevant agreement. In the course of bargaining, the union tabled a clause which sought to place limitations and restrictions on engagement of labour hired to perform work under the agreement. The Fair Work Commission determined that the clause fell beyond the scope of what is considered to be “permitted content” and this in turn led to the conclusion that the union was not genuinely trying to reach agreement. It is concerning that such a conclusion can be reached under current laws, in isolation of the remainder of the conduct of the parties in bargaining.

Workers in lawful strike can still be dismissed, according to the High Court of Australia16-10-2017

The circumstances surrounding the termination of Henk Doevendans, as reported in High Court case [2014] HCA 41, highlight the limits of protections for workers participating in lawful strikes and otherwise supporting, participating in or and advancing the views and lawful activities of their union.
Mr Dovenans was a union member employed at a coal mine operated by the BHP Billiton Mitsubishi Alliance. A lawful 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
occurred and involved among other things a protest outside the mine. Mr Dovenans participated in the protest. A number of protesters held signs at the protest, such as “This is a community not a camp”, “Families together, families forever” and “BMA Charter values profits before people”. Mr Doevendans held a sign that said “Scabs no principles no guts”. It appears that particular sign was displayed when non-striking workers entered or left the site. He was then dismissed. He argued that his dismissal was unlawful because he was dismissed because of lawful union activity. The employer said he was not dismissed “because” he participated in the union action, but because of how he participated in the union action. It argued that the only reason he was dismissed was because the sign he held during the union action was offensive and in breach of the company code of practice, and that this was not legally the same as dismissing a person because of their lawful industrial activity. The High Court agreed with the employer.

Strike prohibited in the railway sector09-02-2018

On 9 February 2018 a lawful 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
in the railway sector was cancelled by the Fair Work Commission (FWC) on the basis of its economic impact, its impact on passengers and the increased road congestion it would cause. Under the law the FWC can suspend or terminate protected 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 it deems that it endangers the life, safety, health or welfare of part of the population, or causes significant damage to the Australian economy – or if the commission decides that bargaining representatives would benefit from a cooling-off period during negotiations. The head of the Australian Council of Trade Unions, Sally McManus, said the decision showed Australia’s industrial relation laws were “stacked in favour of the employers. […] Rail workers followed every single rule and law, and still the minister of the day can get an order to cancel bans on working excessive overtime.” The national secretary of the Rail, Tram and Bus Union, Bob Nanva, agreed with McManus, saying the decision “marks the death of the 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
in Australia. […] Australia already has some of the most restrictive industrial laws in the world when it comes to the rights of workers to withhold their labour. The Fair Work Commission has said workers cannot 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
even when they have complied with these restrictive laws.”
In Australia, limitations on the categories of workers who can maintain a 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
extends far beyond the “essential services essential services Services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Can include the hospital sector, electricity and water supply services, and air traffic control. Strikes can be restricted or even prohibited in essential services.

See Guide to the ITUC international trade union rights framework
” restrictions as understood by 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
supervisory bodies. For example, on 9 February 2018 a lawful train 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
was cancelled by the Fair Work Commission on the basis of its economic impact, its impact on passengers and the increased road congestion it would cause.

Court awards costs to union for unlawful search02-02-2017

On 2 February 2017, the CFMEU were awarded costs by the Supreme Court of the Australian Capital Territory, in relation to an unlawful search and seizure operation carried out on the union’s Canberra office by the Australian Federal Police in August 2015.

High Court judgement further restricts the right to strike06-12-2017

On 6 December 2017 a High Court ruling in a case between Esso Australia and the Australian Workers’ Union (AWU) further limited the 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
and weakened unions’ bargaining position.
Under the Australian Fair Work Act, a union may not organise protected 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 it contravenes an order of the Fair Work Commission (FWC). The High Court ruled that the disentitlement to organise 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. continues to apply for the remainder of the period of enterprise bargaining; the cessation of operation of the FWC order does not affect this. The failure or inability to take or maintain 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. will significantly weaken the unions’ bargaining power.
In a statement following the ruling, the Australian Council of Trade Unions (ACTU) noted that the High Court had described 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. as a “privilege”. Yet under international law the 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
is recognised as a fundamental human right. ACTU Secretary Sally McManus noted the increasing restrictions on the 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
in Australia, saying, “There are currently a myriad of complex and onerous rules restricting 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. to a very limited window with severe penalties should not all these rules and red tape be complied with.”

Union denied entry to site following workplace death29-11-2017

The Construction Forestry, Mining and Energy Union (CFMEU) was denied entry to the workplace following the death of a 56-year-old contractor on 29 November 2017.

Carl Delaney, a member of the CFMEU, was working in a confined spaced installing insulation inside a cryogenic tank at the INPEX energy company’s site in the Northern Territory (NT) when he died. Circumstances surrounding the death were initially unclear. When the union arrived at the project, they were initially denied entry by contractor JKC for more than two hours.

The site was examined shortly after the accident, however, by the Northern Territory WorkSafe inspector Rebecca Trimble. It emerged that Carl Delaney fell into the insulation dust and disappeared below the surface. He was pulled from the dust and treated by the on-site INPEX medical team while St John Ambulance was called. However, by the time they arrived, Mr Delaney had died.
The State Secretary for the Electrical Trades Union (ETU) in Queensland and NT, Peter Ong, said the project had been plagued by a culture of fear and intimidation against workers who spoke out against safety issues during the past four years. The ETU believed industrial manslaughter legislation may be the only way to force companies such as INPEX, JKC and their contractors to fulfil their safety obligations to workers and prevent further tragedies occurring. The CFMEU also argued for the changes to the law after the death of its member.

Police raid union offices24-10-2017

On 24 October the Australian Federal Police, under the direction of the newly established Registered Organisations Commission (ROC), raided the offices of the Australian Workers’ Union (AWU) in both Sydney and Melbourne.

The raids were purportedly to uncover documentation relating to allegations that the union gave financial support to a progressive community group “GetUp!” along with political candidates more than a decade ago. Sally McManus, secretary of the Australian Council of Trade Unions (ACTU), described the raids as “an outrageous abuse of power”.
It emerged that media outlets had been given advance warning of the raids by the government, presumably to maximise publicity. After initial denials, the senior media adviser to the Office of Workplace Relations Minister Michaelia Cash admitted that he had leaked the information to the media.
The ROC Commissioner, Mark Bielecki, told the Senate on 25 October that the raid was necessary because the AWU had “expressly declined” to provide all the documents requested of them in August. Yet the AWU had stated that the ROC had never requested documents from it before the police raid on their offices. In another bizarre twist Mr Bielecki quickly retracted his claim that the AWU had refused to hand over the documents. In fact, the documents had already been provided to the Trade Union Royal Commission some years ago, and showed that the union had fully supported and endorsed the donations to GetUp! The raids appeared to be totally unjustified and a waste of police resources. The unions believe they were politically motivated.

Building commission found guilty of misleading workers and employers about union rights12-09-2017

On 12 September 2017 Nigel Hadgkiss, the head of the Australian Building and Construction Commission (ABCC), admitted that he had been in contravention of the Fair Work Act, by publishing incorrect information about right of entry rules.

For two years, multiple ABCC publications on right of entry laws incorrectly asserted that union officials had to comply with the employer’s wishes on the location of meetings. This led employers to believe they were able to dictate where meetings could be held. In fact, under right of entry rules in the Fair Work Act, lunchrooms are to be the default location for union officials to conduct meetings with workers. The law was introduced in 2014 to protect workers who might be intimidated by being forced to hold discussions with their union representative in clear view of their employer.
The issue of the false information was brought to Mr Hadgkiss’ attention by his staff. According to internal ABCC emails, however, Mr Hadgkiss had insisted that corrections to ABCC publications were to be “canned” because the incoming coalition government had indicated that it would reverse the laws. In the emails Nigel Hadgkiss said he was extremely comfortable “handling” the matter in Senate Estimates Committee (that looks at government spending) or the media.

His situation became increasingly uncomfortable, however, and Mr Hadgkiss was forced to resign.

Intimidation used to undermine collective bargaining at concrete company 01-09-2017

On 1 September 2017 the Federal Court found that management of a subsidiary of the Boral construction company, the concrete placers De Martin and Gasparini, acted illegally in threatening to make its workers redundant and had contravened the Fair Work Act.
In late June, De Martin and Gasparini threatened more than 100 workers with redundancy before 31 August, after they voted down changes to their enterprise agreement that would remove key conditions and pave the way for the casualisation casualisation The practice of increasing the flexibility of the workforce by replacing permanent, full-time workers with workers on temporary, irregular contracts. of their workforce.
The changes would have taken away the employees’ right to four-day weekends six times a year on public holidays – an important condition for managing fatigue in an industry characterised by long hours and physical labour. They would also have lifted restrictions on the use of contract labour, reducing the security of employment for construction workers.

The company claimed that the workers agreement was not compliant with the Building Code. The judge found that the statements made by De Martin and Gasparini managers to its workforce were intimidatory, threatening and intended to terminate the workforce.

The National Construction Secretary of the Construction, Forestry, Mining and Energy Union (CFMEU), Dave Noonan, said, “Our members were put under enormous pressure as a result of the company’s actions. Their job security was threatened, causing them stress, anxiety and fear.... At the heart of this is Malcolm Turnbull’s Building Code. It’s unfair, it’s unnecessary and it’s causing serious disruption to the industry.”

Murdoch University unilaterally cancels workplace agreement30-08-2017

On 30 August 2017 the Fair Work Commission approved the request by Murdoch University to cancel a workplace agreement that covered 3,000 staff part way through bargaining. The University had argued that the agreement affected its financial and operational performance.
In granting Murdoch’s application to terminate the current agreement, the Commissioner acknowledged that the cancellation would, "change the context of bargaining, more to Murdoch’s favour”. Failure to reach a new agreement – lengthy negotiations had repeatedly broken down – would mean workers would have their pay and conditions reduced to the basic standards set out in the general agreement, or award, covering their sector.
The Australian Council of Trade Unions (ACTU) noted the increasing use of this tactic, used to bypass the normal 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
process. In the preceding three years over 850 agreements had been terminated impacting approximately 120,000 workers.
In a 2017 Senate Inquiry into corporate avoidance of the Fair Work Act, particular consideration was given to the termination of agreements. The majority report of the Senate Education and Employment References Committee recommended amending the Fair Work Act to prevent the Fair Work Commission from terminating an agreement where workers would be worse off as a result of the termination.

Bad faith bargaining at Streets Ice Cream 22-11-2017

Unilever sought to end a lengthy dispute over a workplace agreement at Streets Ice Cream in August 2017 by applying to the Fair Work Commission to terminate the existing agreement and cut wages by 46 per cent.

The Australian Council of Trade Unions (ACTU) described the company’s tactics as typical – management proposed a new agreement, with such harsh conditions that Streets’ workers inevitably overwhelmingly voted against it. In response, rather than continuing to negotiate, the company applied to have the independent umpire drastically reduce wages and working conditions, notably annual, personal, parental and compassionate leave, limits on overtime, redundancy conditions, and protection against the use of contract labour. ACTU Secretary Sally McManus described the move as “industrial blackmail. Unilever and Streets are forcing workers to choose between an agreement they don’t want and a 46 per cent cut in wages, with crippling cuts to conditions.”

In October the Australian Manufacturing Workers Union (AMWU) launched a boycott boycott A collective refusal to buy or use the goods or services of an employer to express disapproval with its practices. Primary boycotts are used to put direct pressure on an employer, while a secondary boycott involves the refusal to deal with a neutral employer with the view of dissuading it from patronising the target employer. of Streets Ice Cream in support of the 100 plus workers at the company’s Minto factory in Sydney.

The pressure of the boycott boycott A collective refusal to buy or use the goods or services of an employer to express disapproval with its practices. Primary boycotts are used to put direct pressure on an employer, while a secondary boycott involves the refusal to deal with a neutral employer with the view of dissuading it from patronising the target employer. worked. The dispute ended on 22 November after employees forged an agreement with the organisation that will see them receive a five per cent wage increase over three years, be able to maintain their current working conditions and rosters and have 39 new flexible part-time jobs added to the company.

Glencore undermines collective bargaining through intimidation of miners05-11-2017

By 27 January 2018 miners at Glencore’s Oaky North mine had been locked out for 200 days.

The dispute began in May after workers at the mine rejected Glencore’s proposed workplace agreement, and went on 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
in protest. The proposed agreement would have undermined workers’ rights, notably by removing access to workplace representation in some cases, and allowing the company to unilaterally change rosters.

On 23 July 2017 the Construction, Forestry, Mining and Energy Union (CFMEU) reported that the workers had called off their 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. . The union proposed a two-year rollover of the existing agreement with a zero per cent pay increase. However, when the miners turned up for work, they found they had been locked out. The CFMEU believe Glencore’s aim was to replace the permanent workforce with casual contractors.

Further negotiations and stalemates followed. Meanwhile, the workers found themselves the subject of surveillance by Glencore’s private security guards. A case was filed before the Fair Work Commission, and evidence was submitted showing that Glencore’s security company was briefed to monitor and record specific activities by union members, including specific instructions such as ensuring the use of “long lens camera etc. for photos of piquet (picket). We need to be able to ID individuals”.
At the end of October 2017, the Fair Work Commission ordered the company to cease its surveillance of Oaky North mine workers because it was “outside the scope of what would be reasonable” and “undermines 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 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
”. The Commission also ordered Glencore to withdraw a direction to staff regarding the wearing of union clothing at the mine, and to drop disciplinary action against workers.
On 2 February 2018 Glencore applied to the Fair Work Commission to terminate the current enterprise agreement at the Oaky North Mine, while the lockout lockout A form of industrial action whereby an employer refuses work to its employees or temporarily shuts down operations. continued.

Cold storage company using agencies to shirk bargaining responsibilities16-06-2017

AB Oxford Cold Storage Co Pty Ltd, which describes itself as Australia’s largest privately owned cold storage operator, seeks to avoid direct responsibility for negotiating collective agreements with its workforce by using multiple labour-hire agencies rather than employing workers directly.

There are more than 400 workers at its Laverton North site in Victoria, but fewer than 30 are directly employed by AB Oxford under the terms of the enterprise agreement negotiated by the National Union of Workers (NUW). In 2017, NUW members working at the site were employed by at least six distinct employing entities.

In a submission to the Senate Education and Employment Committee, the NUW explained that every few years their members are informed that their employment agency is “wrapping up” and that they may continue their employment at AB Oxford if they sign up with a new agency – almost always operated by the same sole director as the previous agency. Before offering redeployment, however, a non-union enterprise agreement has been “negotiated” with a small number of employees (usually fewer than four). Workers are thereby coerced into accepting conditions they are not able to negotiate, and the agencies prevent their employees from ever having an opportunity to bargain collectively.

In June 2017 the Federal Court granted an interim injunction injunction A court order prohibiting or preventing a certain course of action, such as calling or continuing with a strike. against Oxford Cold Storage to stop it from transferring workers to a new labour-hire company to avoid negotiating a fresh enterprise agreement. The Victoria branch of NUW said it knew of only one similar case, the Australian waterfront dispute of 1998 when Patrick Stevedores sacked and locked out its workforce and set up new companies to employ a non-unionised workforce.

Bad faith bargaining by glass wool manufacturer14-02-2017

In mid-February 2017 members of the Australian Workers’ Union (AWU) employed by Fletcher Insulation, a glass wool manufacturer, began a work stoppage in protest at the company’s application to terminate their collective agreement and its blatantly unacceptable proposals for a new agreement.

The company’s offer included no pay rise for four years, the extension of the working week by three hours, and the removal of minimum staffing levels, a clear safety concern. The company also intended to make unlimited use of casual workers and drastically reduce redundancy provisions.
The previous collective agreement had expired, but in law should have remained in place until a new agreement came into force. The workers saw no reason for the company’s proposals, given that it was profitable and its workers had set new productivity levels.

The 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
lasted 96 days, throughout which management at the Dandenong plant maintained its threat to force all employees back onto an agreement that would halve their pay and remove almost all their entitlements. It ended in victory for the AWU members, however, and the 90 glass wool workers returned to work on 1 June after winning key improvements in their working conditions.

Seasonal migrant workers pressured to leave union14-03-2017

In March 2017 it emerged that the labour hire firm MADEC, the largest user of Australia’s Seasonal Workers Program, had pressured migrant workers to quit the National Union of Workers (NUW). If they did not, they were told they would be denied future employment.
The workers had been brought from Vanuatu on special visas to pick tomatoes in the giant greenhouses run by Perfection Fresh. They decided to join the union after they discovered that their pay cheques were drastically reduced by unexpected deductions for transport, accommodation, etc. One worker said his salary of AUD 800 a week had shrunk to just 500 after deductions.
When MADEC discovered that the workers had decided to organise, it pressured them into leaving the union, warning them that they would no longer be hired under the Seasonal Workers Program otherwise. The hire company even distributed a pro-forma resignation form to 145 workers that they were required to fill in and hand to the union, in clear breach of their 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
rights. This action was also against the rules of the Seasonal Workers Program, supposedly designed to protect migrant workers from exploitation. The case was taken to the Federal Court and new legislation has been proposed to boost the power of the Fair Work Ombudsman.

Brewery sacks workers to bypass union negotiated terms and conditions01-07-2016

In July 2016, Carlton & United Breweries (CUB) sacked 55 union machine maintenance workers at its Melbourne brewery, ahead of the acquisition of CUB’s parent company SABMiller by AB InBev. The 55 workers were all members of the Australian Manufacturing Workers’ Union (AMWU) and the Electrical Trades Union (ETU). They were told their jobs would be outsourced to a new contractor but they could return to work as employees of the subcontractor – with a 65% pay cut. The workers refused, sparking a long-running dispute and a boycott boycott A collective refusal to buy or use the goods or services of an employer to express disapproval with its practices. Primary boycotts are used to put direct pressure on an employer, while a secondary boycott involves the refusal to deal with a neutral employer with the view of dissuading it from patronising the target employer. of the company’s products.

A CUB spokeswoman was quoted as saying, “We believe this dispute is about unions wanting to enforce their power over an external company and the wages being offered.”

The union campaign lasted six months and received widespread support, including from global unions. The boycott boycott A collective refusal to buy or use the goods or services of an employer to express disapproval with its practices. Primary boycotts are used to put direct pressure on an employer, while a secondary boycott involves the refusal to deal with a neutral employer with the view of dissuading it from patronising the target employer. of the company’s products was also well supported. Finally, on 6 December unions and management concluded an agreement providing for the following: all workers who wished to return to work be allowed to do so under their original union pay and conditions; any new contractor will have to meet the existing conditions; and there would be no involuntary redundancies.

Unionised crew members forced off ship 13-01-2016

In the middle of the night on 13 January 2016, 30 security guards boarded the Alcoa ship “MV Portland” to remove five crew members, all Australian and all members of the Maritime Union of Australia (MUA). They then escorted foreign seafarers on to the ship that immediately left for Singapore. The MUA had been in dispute with the ship owner who wanted to make the crew redundant after sailing the Portland cargo ship to Singapore for scrap.
The MV Portland had been used to transport minerals and, under Australian laws, had to have an Australian flag and crew, but had been granted a temporary licence by the government to use a foreign crew. Alcoa had already been using a replacement ship to cover the route used by the MV Portland, and the MUA believed the company was trying to use the replacement ship to undermine the rights and conditions of Australian workers.

Gunman targets CFMEU offices21-12-2016

Early on the morning of Wednesday 21 December a car drove up outside the CFMEU’s Melbourne headquarters, a man got out, fired several shots, then drove away, said witnesses. A glass door and several windows were shattered but, as the attack took place at 3 a.m., no one was in the building and no one got hurt. The CFMEU did not know who the attacker could have been, noting that it had many potential enemies. The police were investigating the incident.

Tough new watchdog designed to curb the power of construction unions30-11-2016

At the end of November, Australia’s coalition government passed the Australian Building and Construction Commission (ABCC) bill, re-establishing a watchdog that had been replaced in 2012 under the Labor government. The bill was designed to limit the power of “militant” unions, amid claims that construction unions were driving up house prices through strikes and over-generous pay deals. A report by the think tank “Australia Institute” found no link between construction wages and rising house prices, however. It pointed out that labour costs account for only about 10 per cent of housing prices and that average earnings in the construction industry had grown less than the national average over the last five years. The ACTU noted that the new ABCC will reduce job security for workers, reduce the employment of apprentices, ban limits on hiring casual labour and obstruct employees seeking union help on safety issues. The construction union, the CFMEU, further warned that the ABCC would discriminate against one group of workers by imposing harsh penalties that do not apply to the rest of the workforce. The bill was adopted even after a Royal Commission rejected the idea of creating industry-specific legal restrictions and different penalties that apply to just one industry.

Those penalties are fairly steep. Penalties for unlawful 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. or supposed coercion are up to AUD 36,000 for individual workers and AUD 180,000 for trade unions, and can apply to any other workers or supporters who join pickets. The agency’s powers go beyond building sites to cover workers involved in off-site prefabrication, transport, supply and offshore oil and gas platforms. It also has the power to prosecute workers and unions even after they have settled or abandoned a dispute with an employer, and to pursue legal costs and uncapped compensation—potentially millions of dollars—for damage allegedly suffered by a company.

Repeated attempts to prevent construction union official doing his work13-12-2016

The Secretary of the Queensland branch of the CFMEU, Michael Ravbar, faced repeated attempts by the Australian Building and Construction Commission (ABCC) to take away his Right of Entry permit (which allows union officials to enter premises to exercise tasks related to the Work Health and Safety Act). The first attempt came in 2014 when the union applied for the permit. The government agency Fair Work Building and Construction (FWBC) opposed the decision, but the permit was granted. FWBC appealed and lost. Finally, on 13 December 2016, the Full Court of the Federal Court dismissed an ABCC submission to take away Mr. Ravbar’s Right of Entry.

The head of FWBC at the time it opposed the original granting of the permit was Nigel Hadgkiss. He later became head of the ABCC, when it sought to get the permit withdrawn. As the CFMEU commented, “Mr. Hadgkiss has shown again that he does not accept the legitimacy of unions in the industry.”

More harassment as CFMEU offices searched01-08-2016

On 1 August 2016 the Australian Competition and Consumer Commission carried out a search of the CFMEU headquarters seeking documents in relation to the Competition and Consumer Act. The search warrant seemed to have been granted following a case study conducted by the Heydon Royal Commission. As the union pointed out, however, the Royal Commission had been unable to conclude that the CFMEU had breached the Competition and Consumer Act. The CFMEU cooperated with providing documents and rejected any allegation that it had breached the Competition and Consumer Act through the negotiation of enterprise bargaining agreements for its members under the Fair Work Act.

Harassment against construction union continues01-10-2016

The Construction, Forestry, Mining and Energy Union (CFMEU) continued to face what its national secretary Dave Noonan has described as “political harassment”.

On 6 December 2015 the head of the Victoria branch of the CFMEU, John Setka, and his deputy, Shaun Reardon, were charged with blackmail against the concrete company Boral. Instead of going to the CFMEU offices, however, police chose to pull Mr. Setka over while he was driving with his family and two young children on a Sunday in North Melbourne before taking him to police headquarters to be charged. Mr. Reardon was also arrested in front of his family.

It was the latest in a string of legal cases brought against the union. The blackmail charges related to comments made in a meeting in April 2013 with Boral bosses concerning the union’s long running dispute with development company Grocon. If found guilty, the pair could face up to 15 years in prison. As their barrister pointed out, however, their “offence” was to have threatened secondary picketing picketing Demonstration or patrolling outside a workplace to publicise the existence of an industrial dispute or a strike, and to persuade other workers not to enter the establishment or discourage consumers from patronising the employer. Secondary picketing involves picketing of a neutral establishment with a view to putting indirect pressure on the target employer. within the context of their industrial dispute industrial dispute A conflict between workers and employers concerning conditions of work or terms of employment. May result in industrial action. , which is explicitly decriminalised under the Competition and Consumer Act.

In October 2016 both men were re-elected unopposed to their posts as Victoria branch secretary and deputy secretary. At the time of writing the court case was ongoing.

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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