We note that under section 8(j) of the Productivity Commission Act 1998, the PC is bound to “have regard to the need for Australia to meet its international obligations and commitments”13 (emphasis added). We concur that the need for Australia to do so is non-negotiable.
International conventions (including conventions of the ILO) do not automatically apply in Australia. The classical statement of the legal position on ratification of international conventions is the judgement of Mason CJ and McHugh J in Kioa v. West (1985) 159 CLR 550 at 570 where they stated:
“Ratification (of a convention) as an executive act has no active legal effect upon domestic law; the rights and obligations in (international conventions) are not incorporated into Australian Law unless and until specific legislation is passed implementing the provisions”
Essentially this means the ratification of a convention, of and by itself, has little or no effect on Australian domestic law. The provisions of a Convention only become part of Australian domestic law if they are incorporated by specific legislation implementing the provisions of a convention.
The conceptual foundations of many parts of the FW Actfollow the labour standards established in international labour conventions (such as a minimum wage apparatus, a provision for gender pay equity and the general protections aimed at freedom of association). However, the FW Actdoes not expressly state an intention to implement conventions ratified by Australia.
This was not always the case - the connection between the Federal workplace relations statutes and the international conventions has been variable. Since 1996 the connection has become increasingly remote.
For example, the IR Act (as amended by the Industrial Relations Reform Act 1993) provided:
170PA. (1) The object of this Division is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike. This obligation arises under:
(a) Article 8 of the International Covenant on Economic, Social and Cultural Rights (a copy of the English text of the Preamble, and Parts II and III, of the Covenant is set out in Schedule 8); and
(b) the Freedom of Association and Protection of the Right to Organise Convention, 1948 (a copy of the English text of the Preamble, and Parts I and II, of the Convention is set out in Schedule 15); and
(c) the Right to Organise and Collective Bargaining Convention, 1949 (a copy of the English text of the Preamble, and Articles 1 to 6, of the Convention is set out in Schedule 16); and
(d) the Constitution of the International Labour Organisation; and
(e) customary international law relating to freedom of association and the right to strike.
In considering the above general provisions and the specific provisions which followed them, the High Court made the following observations concerning the right to strike as contained in the International Covenant on Economic, Social and Cultural Rights:
“…the right to strike, subject to the possibility of common law remedies, might be reasonably seen as no right all, so too might the existence of the right be doubted where its exercise might lead to the loss of employment or punitive action by the employer against the employee.”14
“…the absence of criminal penalties does not equate with the provision of a right to strike. In our view, it was reasonably open to the Parliament to conclude that even the existence of common law remedies against strikers and strike organisers is inconsistent with the provision of the right to strike.”15
The IR Act as amended by the Industrial Relations Reform Act 1993 was indeed the high point in forging connections between international and domestic law. That Act had:
a constitutional footprint that included the foreign affairs power. It had as one of its objects “providing the means for ensuring that labour standards meet Australia’s international obligations” (s3(b)(ii) .
The text of many parts of that Act were expressed “to implement” ILO conventions. For example, the minimum wage apparatus (Division 1 Part VIA) was expressed to implement the Minimum Wage Fixing Convention 1970 (26), the equal pay for work of equal value provisions in Division 2 Part VIA sought to implement the Equal Remuneration Convention 1951(100) and the unfair dismissal provisions in Division 3 of Part VIA were designed to implement the Convention on the Termination of Employment Convention 1982 (158).
Since the WR Act the Federal Parliament has ceased using the implementation of international conventions through the foreign affairs power as the constitutional foundation of the federal statutory labour law.
The FW Act has as its constitutional basis the Corporations power (s51(20) and the referral power (s51(37). It does not rely on the foreign affairs power (s51(29)). The objects of the Fair Work Act 2007 at s3 (f) has Australia’s international obligations as a sort of afterthought or footnote to s3(f) to provide “..Workplace relations that are fair...flexible...those promote economic growth and “take into account Australia’s international labour obligations” (emphasis added).
The “footnote” character of ILO conventions to the operation of FWA is illustrated by the fact that it refers to the ILO Conventions only twice:
Section 722 refers to the notification and consultation requirements of an employer to registered organisations of employees in s787. The FW Commission “must not make” such an order unless it “will give effect to the requirements of Article 13” of the Termination of Employment convention (158). The reference to the Convention is not to “implement” it but as a condition precedent to making the relevant order; and
Part 6-3 Division 2. This is the only Division in the FWA that seeks to implement conventions. The Division deals “extension of entitlements to unpaid maternity leave and related entitlements”. That Division has as one of its objects: to “give effect to” the ILO Convention on Equal Opportunity and Equal Treatment for Men and Women workers with Family Responsibilities (no 156) (s743 (a)) and the Workers with Family Responsibilities Recommendation (R135)(s743(b)).
As can be seen, the “world did not end” when our domestic courts were required to reconcile the terms of an international convention and domestic labour law legislation which expressly stated an intent to implement it. That model of legislative drafting has much to recommend it, not the least being transparency, and the FW Commission should consider itself duty bound by its charter to recommended that the FW Act adopt this model.