Legal information for Trade unionists
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Workers' rights in international conventions
The Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognise the rights to:
- work
- have just and safe conditions of work
- be free of discrimination at work
- receive equal pay for equal work; and
- form and join trade unions. (ICESCR, Articles 6, 8 and 7 respectively)
The International Labour Organisation (ILO) is a United Nations body consisting of government, employer and union representatives. It has developed many conventions on workers' human rights, which many governments, including the Australian Government, have signed. These cover:
- prevention of forced labour
- safe working conditions
- non-discrimination at work
- equal pay for equal work
- minimum age of employment to prevent child labour; and
- the right to organise trade unions and to negotiate working conditions collectively.
However, the rights in the signed Conventions have never been fully implemented into Australian law. Trade Unionists in Australia are left with scattered protections in some state and Commonwealth legislation.
Workers' rights in Australian law
Legal proceedings against unions and their members for engaging in industrial action have always been part of Australia's industrial relations. The anti-union provisions including in the Workplace Relations Act 1996 (Cth) , including those in relation to secondary boycotts, have been a consideration in the development of union strategies. These laws are constantly changing and your union is the best place to begin to find out about these laws and how they might affect you.
Australia has federal and state industrial laws, which set minimum standards for employment and regulate industrial action by unions.
The Workplace Relations Act 1996 (Cth) is the main federal law covering workplaces in Australia. It includes maternity and parental leave, equal pay for equal work, and limited recognition of the role of unions. It also provides employers with a formidable array of legal avenues to deal with industrial action.
State industrial laws generally provide for minimum wages, and annual and sick leave. However, for Victorian workers these areas are covered in the Workplace Relations Act 1996 (Cth) , section 500. This Act also enables employers to implement individual workplace agreements (Australian Workplace Agreements), which can deny the right to collectively negotiate through unions.
State anti-discrimination laws prohibit, subject to some exceptions and variations from state to state, discrimination in the workplace on the grounds of age, breastfeeding, gender identity, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activity, sex, sexual orientation or personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
Occupational health and safety laws promote a safe working environment.
Changes to Australia's workplace laws
In May 2005,the Federal Government announced changes which will take away many basic rights at work. It wants to change Australia's workplace laws to:
- Abolish protection from unfair dismissal for 4 million workers employed in companies with fewer than 100 staff
- Allow employers to put workers onto individual contracts that cut take-home pay and reduce employment conditions to only 5 minimum standards - workers who refuse to sign may fear being sacked
- Change the way minimum wages are set to make them lower
- Keep unions out of workplaces and reduce the capacity for workers to bargain collectively with their employer
- Take away the powers of the Australian Industrial Relations Commission
- Effectively abolish the award safety net and replace it with just 5 conditions:
- A minimum hourly rate of pay (currently $12.75)
- Sick leave
- 4 weeks annual leave (2 weeks of which could be 'cashed out')
- Unpaid parental leave
- 38 hour week but no extra pay for overtime, long shifts or weekend work.
As a result of the mooted changes many workers could lose conditions like weekend, shift and public holiday rates, overtime, redundancy pay, allowances and loadings
The ACTU and its affiliated unions are currently mounting a campaign in opposition to the changes that the Federal Government wishes to make to Australia's industrial laws. Details can be found on the ACTU's website.
Freedom of association and collective bargaining
While Australia has signed many important international Conventions, these standards have not always been put into practice and have sometimes been breached.
The ILO has concluded that, in practice, Australia's Workplace Relations Act 1996 (Cth) allows employers to deny the right to collective agreements.
The ILO has consistently requested that the Australian Government amend the legislation to bring it into line with the Convention on the Right to Organise and Collective Bargaining. In a case about the 1998 waterfront strikes, the ILO again found that the Workplace Relations Act 1996 (Cth) was in breach of the right to negotiate work conditions collectively. To date the Federal Government has not taken the necessary steps to address this fundamental breach of human rights in the legislation. (Complaint against the Government of Australia Report No. 320, Case No. 1963.)
Section 298 of the Workplace Relations Act prohibits dismissal, injury in employment and other discriminatory behaviour on a number of grounds relating to union membership or activity.
Improving workers' rights in Australia
Workers' organisations have improved working conditions through organising workers and by influencing law and policy makers. Unions have also taken test cases through industrial tribunals.
The Australian Council of Trade Unions' (ACTU) reasonable hours test case in the Australian Industrial Relations Commission is a positive example. This case established the right of workers to refuse to work overtime when doing so would result in the employee working unreasonable hours. In recognition of the adverse effects on employee health and their families, the Commission ruled that workers may refuse to work overtime if there is a risk to the worker's health and safety or on the basis of family responsibility.
However, such improvements are not guaranteed and can be reversed. Protection of workers' rights in line with international standards is required to prevent unfair treatment at work.
The above material is adapted from the fact sheet "Worker's Rights: Protecting Human Rights in Australia", courtesy of the Public Interest Advocacy Centre.www.piac.asn.au
Police and picket lines
Police have no responsibility for the removal of a picket line but may act to remove a physical obstruction.
According to Victoria Police operating procedures, a picket line becomes a physical obstruction when it denies access to or egress from the particular location to any person who has a legal right (which can be anybody on a public street) to enter or leave.
Victoria Police have an Industrial Disputation Liaison Officer in the Community and Cultural Division who is brought in to liaise and advise on industrial disputes and union pickets.
Right of entry of union officials
Accredited union officials must hold a permit as required by the Workplace Relations Act 1996 (Cth) and can only enter a workplace under certain circumstances outlined in the Act. The union official has no power to gain entry or remain by force but in some circumstances the employer may be in error for refusing entry.
Police may often try and refer to the appropriate industrial tribunal to resolve the disputed right of entry.
Some of the changes to workplace laws that the Federal Government has announced include:
- Making unions give written notice of their reasons for workplace visits, and lettin managers restrict where union meets with members.
- Encouraging employers to monitor members' discussions with unions and giving employers the right to know whether an employee is in a union.
- Stopping unions from visiting a workplace more than once every 6 months (if they talk about recruiting while they are there).
- Making it harder for working people to legally take industrial action, like strikes, while in negotiation with their employer.
- Increasing penalties for unions and workers.
Unions and community activism
Apart from being organisations that seek to maintain and improve working conditions for their members, unions can often act as vehicles for social change as a whole. Some of the community-based campaigns that unions in Victoria have become involved with include:
- Black banning the export of pig iron to Japan in the lead up to WWII
- Green bans on certain developments.
- Opposition to nuclear weapons, and visits by nuclear armed or powered ships
- The protection of our natural resources, including our rain forests
- Land rights for Aboriginal people and improved rights for women
- Supporting self determination for the people of East Timor
- Highlighting the inhumane treatment of refugees seeking asylum in Australia
Some unions are far more active around social issues than others. The need to campaign against the Federal Government's IR changes may also limit the capacity of some unions to respond to other social issues
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