ILO Convention 129 / ACT

International Labour Organisation

Labour Inspection (Agriculture) Convention, 1969 (No. 129)

Law and Practice Report of ACT

2012

Instructions:

  • This template is designed to assist you to provide the relevant information for the purpose of assessing the extent to which your jurisdiction complies with the Labour Inspection (Agriculture) Convention (C129).
  • Please be guided by the comments under “Note”. In some cases you are referred to provisions of the Labour Inspection Convention, 1947 (No. 81) which was reported on last year as part of the Article 22 reporting process. Your responses in that report may adequately demonstrate compliance with the corresponding provisions of Convention 129. In some cases further information specific to the agriculture industry may be required.
  • When describing legislation, please do not reproduce large sections of Acts and Regulations – please refer to the relevant provisions and then summarise them in prose
  • In some cases responses from the commonwealth law and practice report have been provided to provide further guidance about how compliance might be demonstrated. Note that these responses are drafts only and further changes may be made before the commonwealth report is finalised
  • Safe Work Australia have provided information on the content of the model Work Health and Safety (WHS) Actrelevant to the Convention. This information is included below under relevant articles.

Overview

The Australian Capital Territory (ACT) regards itself as compliant with the Labour Inspection (Agriculture) Convention, 1969 (No. 129). Labour inspection services for employers and workers in the ACT agricultural industry as set out in the Convention are provided for by both the Commonwealth and Territory Governments.

The Commonwealth Fair Work Act 2009 applies wholly to the Territory and is enforced by the Fair Work Ombudsman and Fair Work Inspectors. As set out in further detail by the Commonwealth, this legal framework provides for the industrial rights and entitlements of workers, employers and their respective representatives in the agricultural industry.

The ACT provides for the regulation and inspection of work health and safety in all industries through the Work Health and Safety Act 2011 and Work Safety Regulation 2011. These laws cover a broad range of businesses and undertakings and protect workers outside the traditional employment relationship, including apprentices and self-employed persons. These laws are regulated by WorkSafe ACT and its inspectors in accordance with a public Compliance and Enforcement Policy and Prosecution Policy of the Director of Public Prosecutions.

As inspectors are officials of the ACT Government Public Service, they must comply with the values and Code of Conduct set out in the Public Sector Management Act 1994 and associated Standards in exercising their statutory powers. Exercise of their powers under the Work Health and Safety Act 2012 must also be consistent with provisions that ensure independent and fair application of the law, such as those dealing with apparent and perceived conflicts of interest. In addition, relevant processes and entitlements for the engagement of inspectors are set out in the Justice and Community Services Directorate Enterprise Agreement 2011-14. The Crimes Act 1900(ACT) is also relevant to the conduct of inspectors.

WorkSafe ACT regulates work health and safety in all industries through planned, proactive and responsive inspection regimes. The activities of the regulator across all industries is

structured and prioritised according to a matrix of factors. This includes notifiable incidents, public reports and relevant safety and compensation data for specific industries and hazards. This regime also takes into account industries and hazards selected for specific attention at a national level.

In light of the low number of employers and workers in the agricultural industry in the Territory it has not been a focus of compliance and enforcement action to date. That said, WorkSafe ACT will continue to respond to specific employers and hazards brought to its attention.

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ILO Convention 129 / ACT

Article 1

1. In this Convention the term agricultural undertaking means undertakings and parts of undertakings engaged in cultivation, animal husbandry including livestock production and care, forestry, horticulture, the primary processing of agricultural products by the operator of the holding or any other form of agricultural activity.

2. Where necessary, the competent authority shall, after consultation with the most representative organisations of employers and workers concerned, where such exist, define the line which separates agriculture from industry and commerce in such a manner as not to exclude any agricultural undertaking from the national system of labour inspection.

3. In any case in which it is doubtful whether an undertaking or part of an undertaking is one to which this Convention applies, the question shall be settled by the competent authority.

Note:

Please indicate whether all agricultural undertakings listed in paragraph one are covered byinspection regimes or whether any types of agricultural undertakings are excluded from the scope of the inspection regimes.

ACT response:

The work health and safety inspection regimein the Territory, under the Work Health and Safety Act2011and Work Health and Safety Regulation2011, covers all agricultural undertakings in the Territory without any of the above exclusions.

Article 2

In this Convention the term legal provisions includes, in addition to laws and regulations, arbitration awards and collective agreements upon which the force of law is conferred and which are enforceable by labour inspectors.

Article 3

Each Member of the International Labour Organisation for which this Convention is in force shall maintain a system of labour inspection in agriculture.

Note:

Please refer to Articles 1 and 2 of the C81 report. Please add any additional available information about how the inspection regime operates in practice specific to the Agricultural Industry.

Commonwealth response:

The Commonwealth system of labour inspection is provided by the Fair Work Act 2009(FW Act) and the Fair Work Regulations 2009 (FW Regs). Part 5-2 of the FW Act establishes the Office of the Fair Work Ombudsman, and confers powers and functions on the Fair Work Ombudsman and Fair Work Inspectors.

The Office of the Fair Work Ombudsman is responsible for providing education, assistance and advice about the Commonwealth workplace relations system. In addition, the Fair Work Ombudsman is also responsible for impartially enforcing compliance with the FW Act and fair work instruments.

The Fair Work Ombudsman appoints Fair Work Inspectors to provide education, assistance and advice to employer and employees, and to investigate and enforce compliance with relevant Commonwealth workplace laws and fair work instruments.

The Fair Work Ombudsman provides labour inspection services nationally, including across the agriculture industry. These activities include:

  • providing education, assistance and advice regarding rights and entitlements
  • conducting targeted education campaigns in industries and regions
  • conducting compliance audits
  • investigating workplace complaints
  • providing assistance in resolving workplace complaints
  • investigating suspected contraventions of relevant Commonwealth workplace laws and fair work instruments
  • taking steps to enforce relevant Commonwealth workplace laws and fair work instruments through the court system (where necessary).

ACT response:

The ACT’s work health and safety (WHS)inspection system supplements the Commonwealth system of labour inspection, which has full coverage of Territory agricultural undertakings. It comprises, for WHS,the WHS Act, enforced by Work SafeACT as the relevant regulator responsible for compliance and enforcement.

The agricultural industry is not inspected differently to any other business or undertaking.

Article 4

The system of labour inspection in agriculture shall apply to agricultural undertakings in which work employees or apprentices, however they may be remunerated and whatever the type, form or duration of their contract.

Note:

Please confirm that the inspection regime discussed under Article 3 covers employees and apprentices in the agricultural industry and operates irrespective of the nature of the employee’s and apprentice’s contract of employment.

Commonwealth response:

The Fair Work Ombudsman’s jurisdiction covers all employees and apprentices within the national workplace relations system. This includes any agricultural undertakings that are considered national system employers.

ACT response:

The ACT’s work health and safety inspection regime covers all workers including employees, apprentices, work experience students and volunteers.

Section 7 of the Work Health and Safety Act2011 defines worker to include an employee, a contractor or subcontractor, an employee of a contractor or subcontractor, an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, an outworker, an apprentice or trainee, a student gaining work experience, and a volunteer.

Article 5

1. Any Member ratifying this Convention may, in a declaration accompanying its ratification, undertake also to cover by labour inspection in agriculture one or more of the following categories of persons working in agricultural undertakings:

(a) tenants who do not engage outside help, sharecroppers and similar categories of agricultural workers;

(b) persons participating in a collective economic enterprise, such as members of a co-operative;

(c) members of the family of the operator of the undertaking, as defined by national laws or regulations.

2. Any Member which has ratified this Convention may subsequently communicate to the Director-General of the International Labour Office a declaration undertaking to cover one or more of the categories of persons referred to in the preceding paragraph which are not already covered in virtue of a previous declaration.

3. Each Member which has ratified this Convention shall indicate in its reports under article 22 of the Constitution of the International Labour Organisation to what extent effect has been given or is proposed to be given to the provisions of the Convention in respect of such of the categories of persons referred to in paragraph 1 of this Article as are not covered in virtue of a declaration.

Note:

Please indicate whether the inspection regime described under Article 3 includes or excludes any of the categories of persons described in paragraph one.

Commonwealth response:

The Fair Work Ombudsman’s jurisdiction covers all employees who are employed by a national system employer.

Genuine independent contractors are not covered by the FW Act.

ACT response:

All businesses and undertakings and their workers are covered by the work health and safety inspection regime in the Territory. Under Section 5 of the Work Health and Safety Act2011, this covers all operations, whether conducted by a natural person alone, or with others, and irrespective of whether it is conducted for profit or gain.

Article 6

1. The functions of the system of labour inspection in agriculture shall be--

(a) to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, such as provisions relating to hours, wages, weekly rest and holidays, safety, health and welfare, the employment of women, children and young persons, and other connected matters, in so far as such provisions are enforceable by labour inspectors;

(b) to supply technical information and advice to employers and workers concerning the most effective means of complying with the legal provisions;

(c) to bring to the notice of the competent authority defects or abuses not specifically covered by existing legal provisions and to submit to it proposals on the improvement of laws and regulations.

2. National laws or regulations may give labour inspectors in agriculture advisory or enforcement functions regarding legal provisions relating to conditions of life of workers and their families.

3. Any further duties which may be entrusted to labour inspectors in agriculture shall not be such as to interfere with the effective discharge of their primary duties or to prejudice in any way the authority and impartiality which are necessary to inspectors in their relations with employers and workers.

Note:

Please refer to Article 3 of the C81 report.

Model WHS Act

Through the Council of Australian Governments (COAG) National Reform Agenda, an Intergovernmental Agreement for Regulatory and Operational Reform in Occupational Health and Safety (IGA) is achieving harmonisation of the current work health and safety legislative framework in Australia.

The objects of harmonising work health safety laws through a model framework are:

  • to protect the health and safety of workers
  • to improve safety outcomes in workplaces
  • to reduce compliance costs for business, and
  • to improve efficiency for regulatory agencies.

The IGA included a commitment to implement the new harmonised framework by 1 January 2012.

This process has resulted in four components:

  • the model Work Health and Safety Act (WHS Act)
  • the model Work Health and Safety Regulations (WHS Regulations)
  • model Codes of Practice, and
  • model compliance and enforcement policies.

The model WHS Act includes:

  • reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking
  • provision for enforcement and compliance including a compliance role for work health and safety inspectors, and
  • regulation-making powers and administrative processes including mechanisms for improving cross-jurisdictional cooperation.

Section 152 of the model WHS Act outlines the functions of the regulator. These are:

  • to advise and make recommendation to the Minister and report on the operations and effectiveness of the Act
  • to monitor and enforce compliance with the Act
  • to provide advice and information on work health and safety to duty holders under the Act and to the community
  • to collect, analyse and publish statistics relating to work health and safety
  • to foster a co-operative, consultative relationship between duty holders and the person to whom they owe duties and their representatives in relation to work health and safety matters
  • to promote and support education and training on matters relating to work health and safety
  • to engage in, promote and co-ordinate the sharing of information to achieve the object of the Act, including the sharing of information with a corresponding regulator
  • to conduct and defend proceedings under the Act before a court or tribunal, and
  • any other function conferred on the regulator by the Act.

Section 155 of the model WHS Act provides regulators with powers to obtain information, documents or evidence if it reasonably believes that a person is capable of doing so or if it will assist the regulator to monitor or enforce compliance with the Act.

Section 156 of the model WHS Act outlines that the regulator may, by instrument, appoint any of the following as an inspector:

  • A public servant
  • An employee of a public authority
  • The holder of a statutory office
  • A person who is appointed as an inspector under a corresponding WHS law, or
  • A person in a prescribed class of persons.

Section 160 of the model WHS Act outlines the functions and powers of inspectors. These are:

  • to provide information and advice about compliance with the Act
  • to assist in the resolution of:
  • work health and safety issues at workplaces
  • issues related to access to a workplace by an assistant to a health and safety representative, and
  • issues related to the exercise or purported exercise of a right of entry under Part 7 of the Act
  • to review disputed provisional improvement notices
  • to require compliance with the Act through the issuing of notices
  • to investigate contraventions of the Act and assist in the prosecution of offences, and
  • to attend coronial inquests in relation to work-related deaths and examine witnesses.

Commonwealth Response:

Pursuant to Part 5-2 of the FW Act, functions of the Fair Work Ombudsman include:

•offering a single point of contact for employers and employees to get accurate and timely advice and information about Australia’s workplace relations system;

•promoting and monitoring compliance with the FW Act and fair work instruments including through the provision of education, assistance and advice to employees, employers, outworkers and outworker entities and organisations, and producing best practice guidelines;

•investigating complaints or suspected contraventions of workplace laws, awards and agreements;

•conducting wide-ranging targeted education and compliance campaigns in industries which, for instance, have a high level of non-compliance, or a high proportion of vulnerable workers, or that have employers who have repeatedly contravened workplace laws;

•instituting proceedings in a court or with Fair Work Australia to enforce the FW Act or fair work instruments;

•referring matters to relevant authorities; and

•representing employees or outworkers who are, or may become, parties to court or Fair Work Australia proceedings.

Fair Work Inspectors provide education, assistance and advice to employers and employees regarding their obligations and entitlements. Fair Work Inspectors are also empowered under Part 5-2, Division 3 of the FW Act to investigate a range of workplace relations matters, including, but not limited to, minimum employment standards as set out in the Act and entitlements under modern awards.

These functions of the Fair Work Ombudsman’s labour inspection service are applied across industries, including the agricultural industry.

There are no other duties which are entrusted to Fair Work Inspectors either under the FW Act or otherwise that interfere with the effective discharge of their primary duties.

ACT response:

The Work Health and Safety Act2011(WHSAct) includes:

  • reporting requirements for ‘notifiable incidents’ such as the serious illness, injury or death of persons and dangerous incidents arising out of the conduct of a business or undertaking;
  • provision for enforcement and compliance including a compliance role for work health and safety inspectors; and
  • regulation-making powers and administrative processes (including mechanisms for improving cross-jurisdictional cooperation).

Part 2.1 of the WHS Actlists the functions of the Work Safety Council, which includes to advise the Minister on matters relating to work safety, and to inquire into and report to the Minister on matters referred to the council by the Minister in relation to work safety.

Part 2.2 of the WHS Act provides the Work Safe Commissioner with the function of undertaking research, and develop educational and other programs, for the purpose of promoting work safety.