The Fair Work Act 2009 could breach International Labour Organization (ILO) Conventions, including freedom of association for workers to join trade unions and the right to engage in collective bargaining, a legal expert believes.
A Labour law professor at the University of Sydney, Ron McCallum, told Lawyers Weekly that opposite views on the role of trade unions could contribute to potential breaches by Australian law of ILO Conventions 87 and 98.
"I think the ILO regards trade unions as joint regulators of the workforce with employers. I think Australia, on the other hand, simply regards trade unions as no more than agents for their members. So I think - in many ways - it is quite a different philosophy," he said.
The ILO is a United Nations agency that promotes rights at work and brings together representatives of governments, employers and works to jointly shape policies and programs.
McCallum said the ILO had indicated that the right to engage in collective bargaining by trade unions was a broad right.
"For example, a trade union should be free to choose the level at which it bargains, and by the level I mean that the trade union could bargain collectively with a single enterprise, or it could bargain with a group of employers on a regional basis or on an industry basis," he said.
"The Fair Work Act only permits full-blooded collective bargaining at the enterprise level. While it does allow for multi-employer agreements, it does not permit trade unions to take industrial action to further their demands and the ILO might say 'That is really limiting the options of the trade union'."
McCallum was also critical that Australia is the only country in the world to outlaw pattern bargaining - where a trade union seeks the same wages and working conditions from a group of individual employers.
The ILO's Committee of Experts has sought more details on the Fair Work Act but McCallum said domestic politics will play an influential role on its future.
"It will be interesting to see what will be the response of the internationally minded Rudd Government. I suspect that any changes are likely to be limited because Australian domestic politics are likely to have a stronger pull than does the ILO," he said.
"Australia cannot simply ignore the fundamental right of freedom of association which enables employees to join trade unions and to bargain collectively by simply saying that its own processes are appropriate."
However, McCallum also asserted that the ILO needed to look at its own jurisprudence and how it applied to all nations.
"It's very hard to establish a series of conventions that will be applicable at one and the same time to a newly independent developing country - where trade unions may only be fledglings - and the vigorous economy countries which have longstanding traditions of labour law and are longstanding democracies," he said.
"That doesn't mean that everything is sweetness and lightness in Australia and that doesn't mean that international law shouldn't apply - but one has to examine these things in their contexts."
- Sarah Sharples