Labor Rights and Child Labor Laws in Australia

Labor Rights and Child Labor Laws in Australia

Submitted by the American Federation of Labor and Congress of Industrial Organizations

September 2, 2003

I.Introduction

The AFL-CIO appreciates this opportunity to comment on Australia’s labor laws and its compliance with the core labor standards, including standards on child labor. While Australia is a developed country with a relatively high standard of living and a vibrant, independent labor movement, it also has an imbalanced, inadequate system of labor laws that fails to fully protect workers’ core rights. Like the U.S., Australia has a federal legal system with various laws covering labor issues at the national and sub-national levels. But Australia’s federal labor laws are far from comprehensive, leaving significant gaps in legal guarantees for workers’ rights that are filled only partially, if at all, by the labor laws of Australia’s states and territories and by common law.

It is vital that any free trade agreement (FTA) between the U.S. and Australia address these deficiencies in Australia’s labor laws. The kind of workers’ rights provisions contained in the Chile and Singapore FTAs are insufficient to ensure that core labor standards will actually be respected in Australia, and must not serve as the model for the U.S. – Australia FTA. The Chile and Singapore FTAs only require governments to enforce the labor laws they have, no matter how inadequate those laws may be. In addition, the FTAs allow governments to specify which set of laws, at which level of government, they are committing to enforce.

The U.S., for example, has only committed itself to enforce its federal labor laws and regulations under the Chile and Singapore FTAs. If Australia made a similar decision, and only committed to enforce the federal labor laws it has on the books, it would leave a broad range of core workers’ rights completely unprotected under the FTA. There are, for example, no federal laws in Australia prohibiting forced labor, setting a minimum age for employment, or prohibiting forced or bonded labor by children. In addition, the federal laws that do exist on labor relations have been criticized by the U.S. State Department, the International Confederation of Free Trade Unions (ICFTU), and the International Labor Organization (ILO) for failing to fully protect workers’ freedom of association and their right to organize and bargain collectively.

It is imperative that the Department of Labor develop a comprehensive analysis of Australia’s labor laws early enough to inform the content of the FTA negotiations now taking place. The administration should not conclude its FTA negotiations until it has a full understanding of the problems in Australia’s labor laws and has developed FTA provisions that will address these problems. To truly protect workers’ rights in the U.S. and Australia, FTA negotiators should follow the principles outlined in the attached joint statement between the AFL-CIO and the Australian Council of Trade Unions (ACTU), which states:

The FTA must include meaningful and enforceable commitments to the core workers’ rights outlined in the International Labour Organisation (ILO) 1998 Declaration on Fundamental Principles and Rights at Work. These obligations must be in the core of the agreement, and be subject to the same enforcement mechanisms as the agreement’s commercial provisions.

Absent a binding obligation to meet the ILO core labor standards, the proposed FTA will only allow the serious flaws in Australia’s labor law system to continue to go unremedied, to the detriment of both American and Australian workers.

II.Freedom of Association and the Right to Organize and Bargain Collectively

Australia’s laws contain a number of onerous restrictions on workers’ right to freedom of association and their right to organize and bargain collectively. Many of these restrictions were created by the 1996 Federal Workplace Relations Act (WRA), which constituted a major restructuring of Australia’s labor laws and has been criticized repeatedly by the ILO, the U.S. State Department, and the ICFTU.[1] The fairly recent enactment of the WRA shows that problems with workers’ rights in Australia are not the result of insufficient enforcement resources or the inheritance of outdated labor legislation from another era – they are the result of a conscious and recent decision in the Australian government to restrict the fundamental rights of workers. Many Australian states and territories have labor laws with defects similar to those in the federal law.

A.Freedom to Choose a Union

The WRA allows employers to choose a union to bargain with before it has even employed any workers, through “greenfield” agreements. These agreements can last for up to three years, effectively denying workers the right to choose their own bargaining representative for that length of time. The ILO criticized this provision in 1998 and again in 2000, and requested that the Australian government review and amend the WRA to eliminate this problem. According to the ICFTU, the WRA also makes it much harder for unions to get into workplaces to organize workers, further depriving workers of their ability to freely join the union of their choosing.

In addition, the WRA undermines the ability of a majority-supported union to represent all of the members in a bargaining unit by abolishing closed shops and union demarcations. These provisions deprive majority-supported unions of the ability to reach closed-shop agreements or use demarcation tools to maintain bargaining power on behalf of their members, and could foster the proliferation of small, competing unions within the workplace. The State Department calls these provisions “the primary curb on union power” in the WRA.

B.Anti-Union Discrimination

The WRA provides workers only partial protection from anti-union discrimination, in violation of ILO Convention 98. The Act gives regulators wide latitude to exclude whole categories of workers – including contract workers, casual workers, or workers paid above a specified salary – from the Act’s most comprehensive protections against dismissal based on trade union activities. These excluded workers may enjoy some more limited protections against anti-union discrimination in other sections of the Act, but these protections fall short of those required by the ILO.

For example, an excluded worker participating in an industrial action regarding the negotiation of a single-employer collective bargaining agreement can be protected from employer discrimination, but the same excluded worker would not be protected if the industrial action she were involved in was related to a multi-employer agreement. In addition, a non-excluded worker enjoys protection against employer discrimination if he refuses to bargain an individual contract with the employer outside of the collective bargaining agreement. An excluded worker does not appear to enjoy the same protection. The ILO recommended in 1998 and 2000 that the government amend the WRA to ensure that all workers are covered by the Act’s more comprehensive protections against anti-union discrimination.

Finally, the ICFTU and State Department both note that the Act imposes new limits on redress and compensation claims by employees that have been targeted by employers for their union activities.

C.Collective Bargaining

The WRA law allows employers to conclude individual “Australian Workplace Agreements” (AWAs) with their employees, and privileges these agreements over collective bargaining agreements. AWAs are less regulated than collective agreements and easier to file, yet they can cover all of the conditions of employment and are fully enforceable. The AWAs take primacy over federal awards and over any subsequent collective agreement in the workplace. This creates an incentive for employers to conclude AWAs with their workers in order to avoid being bound by a collective agreement, and the ICFTU reports that employers are using the law to undermine collective bargaining. In 2000, the ILO found that theses AWA provisions “do not promote collective bargaining as required under Article 4 of [ILO] Convention [98],” and recommended amendments to the WRA to bring Australia into compliance with international standards on the right to bargain collectively.

While AWAs are supposed to meet working condition standards comparable to those in their sectors, the content of AWAs is in fact confidential, making it very difficult for unions to ensure that this requirement is met. The ICFTU reports that Australian Bureau of Statistics figures show most AWA workers being paid $100 - $193 (Australian dollars) less a week than workers doing similar work under collective bargaining agreements. The State Department reports that 290,029 AWAs have been approved since the new labor law came into effect in 1997.

In addition, the WRA privileges bargaining at the enterprise and workplace level over industrial and sectoral bargaining arrangements. This preference is written directly into the WRA, which gives priority to single-business agreements over multiple-business agreements. In fact, a multiple-business agreement can only be certified if it is found to be in the “public interest,” and the Industrial Relations Commission must consider whether matters covered by the agreement would be more appropriately dealt with at the enterprise level. The ILO, noting that the level of bargaining should be determined by the parties themselves and not by the government, requested that the Australian government amend the legislation to bring it into compliance with ILO Convention 98 in 1998 and again in 2000.

Australian law also impermissibly restricts the subjects of collective negotiation by not allowing parties to bargain over strike pay. The ICFTU has criticized this provision, and in 1998 and 2000 the ILO recommended amendments to this provision in order to bring Australia up to international standards on the right to bargain collectively.

D.The Right to Strike

In Australia, a worker can be subject to common law court claims and onerous personal damages for strike activities unless Australian law explicitly protects those activities. The WRA only protects some categories of strike activity, thus penalizing workers engaging in other industrial actions and undermining workers’ right to strike as it the ILO has defined it. Workers striking over a multi-employer agreement, strike pay, demarcation issues, or economic and social interests outside of the direct employer-employee relationship enjoy no protection from common law liability. This lack of protection effectively limits the permissible subjects of strike activity, a violation of workers’ rights under ILO Conventions 87 and 98. In 2003, the ILO recommended Australia fix this violation by amending its laws on the right to strike.

In addition, Australia’s Crimes Act forbids strikes in services that are declared by the government to be “prejudicing or threatening trade or commerce.” Boycotts that obstruct government delivery of services or the transport of goods or persons in international trade are also prohibited. The WRA also allows the Industrial Relations Commission to suspend a strike that threatens to cause significant damage to the economy. These prohibitions go far beyond the limited exception to the right to strike for essential services recognized by the ILO, and the ILO recommended amending these provisions in 2003. These provisions, by protecting employers engaged in international trade from legal industrial actions, undermine Australian workers’ right to strike for better wages and working conditions in precisely those sectors where American workers will face more direct competition under the proposed U.S. – Australia FTA.

III.Child Labor and Forced Labor

There are no federal laws in Australia prohibiting forced labor, setting a minimum age for employment, or prohibiting forced or bonded labor by children. Australia has not ratified ILO Convention 138 establishing a Minimum Age for Employment, nor Convention182 on the worst forms of child labor. While technical discussions are continuing between the Federal Government and the State and Territory Governments, there is no timetable for ratification of either of these Conventions. In terms of the issues covered in ILO C.182, the Australian Government has refused to make any commitments to ensuring effective collection, monitoring and analysis of data related to the “worst forms of child labor.”

A. Involvement in prostitution/pornography

Adequate and reliable data related to the size and scale of the commercial exploitation of children in Australia is not regarded as a priority by any state or federal government.

However, the following overview of the data currently available will provide some indication of the seriousness of the situation:

* The Australian Institute of Criminology research “using a variety of different figures and sources resulted in an estimate of approximately 400 – 450 children across Australia believed to be engaged in commercial or quasi-commercial sexual activity during a typical 24 hour period.” [2]

* Child Wise surveyed 451 agencies. Of those, 258 agencies were aware of incidences of young people engaging in commercial sexual activities, reporting 3,100 young people confirmed or believed to be participating. This is in addition to 600 cases reported in the pilot study undertaken in Melbourne. A disturbing finding was that a few agencies reported children in the 10 – 12 years and under 10 years of age categories engaging in commercial sexual activities.[3]

* A further note on indicative data is to be found in the 1999 Queensland Criminal Justice Commission study on Reported Sexual Offences in Queensland. This found that “on average approximately 6,500 sexual offences were reported to the Queensland Police Service annually between the years 1996 – 1998”; with “the majority of reported offences committed against children younger than 16 years of age (58%)” (p.vii)

B. Harmful Work

Again, the Australian government has ignored the problem of inadequate data related to children and harmful or dangerous work.

While the exposure of children to dangerous work is not a new problem, recent reports indicate that the situation has not improved and perhaps is becoming more serious:

The Australian Bureau of Statistics, Work-Related Injuries Report, September 2000, indicated that in the year ending September 2000:

• a total of 29,000 people 15 – 19 years old experienced work-related injury (a rate of 39.5 per 1,000 persons working).

• 14,200 of these did not have leave entitlements.

The NOHSC report, Work-related aspects of patient presentations to general practitioners in Australia: Analysis of the first two years of BEACH data,December 2001, reports:

• 21,000 work-related problems of persons under 15.

• 374,000 work-related problems of persons aged 15 to 24.

The NOHSC Compendium of Workers’ Compensation Statistics Australia 2000 – 2001 indicates that 6,943 new compensation cases were reported that year for persons under 20 years.

In New South Wales (NSW), “at least four people under 18 are killed at workplaces and farms each year, 377 suffer permanent injury, and more than 1,300 suffer temporary disabilities, according to WorkCover NSW statistics in the report. Every 13 days, a child on an Australian farm dies an accidental death, and one in every four tractor deaths is a child under 16.”(Sydney Morning Herald, 4/11/2000)

In Victorian workplaces some 998 workers under 18 years were injured; “Among the injuries sustained by Victoria’s teenage workforce last year were 18 amputations and 134 fractures. Worksafe statistics revealed 60 teenagers suffered severe bruises or crush injuries, 22 had burns, 175 suffered cuts, 381 reported sprains and strains from work, and 26 had foreign-body injuries to their eyes, ears and noses. The figures are slightly up on 977 in 2000”.(The Herald Sun, 25/1/02).

C. Sweatshops

Recent research in Australia indicates that “the number of outworkers employed in the clothing industry increased ten-fold over the past ten years … there were about 330,000 sweatshop workers in Australia”.(Daily Telegraph, 12/4/01).

Recent reports provide an insight into the use of children in outwork (home work):

(i)“Children as young as eight are working up to 18 hours a day alongside their parents in Sydney ‘sweatshops’ making fashion garments … young children are working past mid night, after school, and during holidays and weekends to help terrified parents meet impossible deadlines”. (Sydney Morning Herald, 31/3/95)

(ii)“An estimated 70,000 Australian children as young as eight have been caught in the shift to outworking in the garment industry … one store measures and ‘fits’ children for heavy industrial sewing machines destined for outworkers sweatshops”.(Insight Special Report: Rag Trade Entraps Migrant Families, The Age, 27/10/98)

(iii)“Sweatshop Anger: Children as young as nine are being exploited by unscrupulous clothing manufacturers in background sweatshops in Whitehorse”.(Whitehorse Gazette, 21/3/01)

D. Armed Conflict

While it had been a long standing practice not to send defense force members under the age of 18 years to areas of hostility, a report by the Australian national Audit found that at least four under- 18-year-olds had been sent to East Timor during the crisis (Herald Sun, 25/3/02). The Audit Report noted that, “Personnel tracking was so inadequate that at least four soldiers under the age of 18 served in areas of hostility despite directives that this should not happen and was a contravention of the UN Rights of the Child Treaty”(Sydney Morning Herald, 18/4/03).

There have been some reports of abuse of child labor among ethnic communities and in clothing sweatshops in Sydney and Melbourne over the past few years. According to the State Department, though the Australian government committed to study the need for laws on these matters, no action has yet been taken.

IV. Conclusion

The State Department, the ICFTU, and the ILO have all criticized Australian labor laws for falling short of the international core labor standards. Australia has refused to amend its laws to comply with these standards, despite repeated ILO recommendations that it do so. In fact, Australia’s labor laws seem to be deteriorating rather than improving over time, given that some of the most often-criticized portions of its labor law went into effect just six years ago. The FTA now being negotiated between the U.S. and Australia must require full compliance with the ILO core labor standards, and must make that obligation fully enforceable. Given the restrictions on workers’ rights contained in Australia’s federal law, the gaps in federal law not filled by Australia’s states and territories, and the ability of the Australian government to further weaken protections for workers’ rights in the future just as it did in 1996, a mere obligation to enforce existing law will simply not be sufficient to ensure that workers’ fundamental rights will be respected under the proposed FTA.