The impact of the increasing divergence of Australian statutory labour law from international legal norms is compounded by the fact that there are a series of conventions which Australia has not ratified and should ratify in order to give proper recognition to the objects of industrial relations laws as discussed in our introductory chapter.
Australia has not ratified the Collective Bargaining Convention 1981(154) or the Collective Bargaining Recommendation 1981. The Collective Bargaining Convention requires the member states to take measures to promote collective bargaining (see Item 5). The recommendation requires that “measures adapted to national conditions should be taken, if necessary, so that collective bargaining is possible in any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry, or regional or national levels.
The regulatory framework of enterprise bargaining in the FW Act and the prohibition on pattern bargaining fix the locus of bargaining at the enterprise level. This is not consistent with international norms.
Australia has also not ratified any conventions that specifically deal with public sector workers. The Labour Relations (Public Service) Convention 1971 for example recognises the unique difficulties experienced by public sector workers in collective bargaining with sovereign governments. This convention precedes on the basis that public sector workers require a multiplicity of methods to deal with disputes over terms and conditions. Article 5 of the Convention states:
“The settlement of disputes in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between parties through independent and impartial machinery, such as mediation, conciliation and arbitration established in such a manner as to ensure confidence of the parties involved”
We have provided commentary to the ILO concerning Australia’s compliance with unratified conventions as part of its regular survey and reporting cycle. Again, we assume these materials are available to the PC however we can provide copies should this assumption be mistaken.