Australia: free to associate?

Field: Social Sciences (Social Sciences)

Opening the International Labour Organisation (‘ILO’) centenary year the Global Commission on the Future of Work released its Work for a Brighter Future report, advocating a ‘human centred’ approach to the future of work and calling for a global response to technology and changes to the world of work. The report recommends greater investment in worker capabilities and skills, the institutions of work, and sustainable jobs. Speaking at Australia’s Monash University in early 20191 Greg Vines, ILO Deputy Director-General for Management & Reform said that Australia is generally on a ‘good path’ and may be looked to as an example by other countries preparing for the future of work. However, he noted there is still ‘much more’ to be done around freedom of association and strengthening the role of employer groups and unions. Of particular importance to the ILO, freedom of association is essential to the tripartite structure of the Organisation and to free, democratic and participatory society. Freedom of Association is primarily understood by reference to the Freedom of Association and Protection of the Right to Organise Convention (No. 87) and the Right to Organise and Collective Bargaining Convention (No. 98). These Conventions guarantee workers the right to form and join trade unions and enjoy protection from discrimination resulting from union membership or activity. Further, the Conventions set out an obligation on member states to support and promote mechanisms for collective bargaining, and the right of workers, employers and their respective associations to engage in free and voluntary collective bargaining. Although not explicitly set out in either Convention it is also accepted that Convention 87 affords a right to take industrial action – or ‘strike’ – in support of social and economic interests. The freedom to associate is fundamental to democratic society. Collective power may be used to directly further the economic and social interests of a population and enable the realisation of a range of other human rights and freedoms. The International Covenant on Civil and Political Rights (‘ICCPR’) and the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’) set out the right of an individual to ‘form and join trade unions for the protection of his [sic] interests’. Whilst the ICCPR and the ICESCR are expressed ‘subject to the law of the land’, this limitation is qualified in both instruments such that signatories of ILO Convention 87 may not take ‘legislative measures which would prejudice, or apply the law in such a manner as would prejudice the guarantees provided for in that Convention.’ The authoritative nature of Conventions 87 and 98 is further supported by the high level of ratification they each enjoy — 155 and 166 ratifications respectively — and the special supervisory mechanisms they are afforded, namely the Committee on Freedom of Association (‘CFA’), and the Fact-Finding and Conciliation Commission (‘FFCC’). Australia is an ILO founding member state and significant donor to the Organisation. However, Australia’s relationship with international human rights systems, including ILO labour standards has long been fraught. Australia’s recent relationship with the ILO has been characterised by regular and repeated criticism from the ILO supervisory bodies. Central to this criticism are inconsistencies between Australian domestic labour law and the international standards pertaining to freedom of association by which Australia has freely and consistently agreed to be bound. In accordance with the 1998 Declaration on Fundamental Principles and Rights at Work, Australia is obliged by virtue of its ILO membership to respect, promote and realise the principles of free association. Further, Australia has ratified both ILO Conventions 87 and 98; is a signatory to both the ICCPR and ICESCR; and has formally re-affirmed a commitment to these principles through the inclusion of labour clauses in various international trade agreements which require adherence to ILO Conventions. Despite international obligations, Australia has done little to promote or protect freedom of association, typically enacting legislation protective of a negative right not to associate. Australian labour law is primarily set out by the Fair Work Act 2009 (Cth) (‘FW Act’). In 2009 the Fair Work Bill 2008 (Cth) was subject to an urgent complaint to the CFA2 which alleged the Bill replicated and expanded upon breaches of the rights to free association, collective bargaining and...