UNION LAWYERS AND INDUSTRIAL OFFICERS - NEW SOUTH WALES CONFERENCE
Sydney
CHECK AGAINST DELIVERY
Friday, 26 March 2010
First, may I acknowledge the traditional owners of the land we meet on – and pay my respects to their elders, both past and present.
Thank for you for the opportunity to speak today.
The establishment of the Union Lawyers and Industrial Officers NSW Association is a positive initiative.
Supporting and upholding the principles of trade unionism, and the legal rights and interests of working people, are of extreme importance. They reflect a desire to promote better and fairer conditions for all working Australians and ensure that their voice is heard.
Indeed, the principles which contribute to promoting better and fairer working conditions are also reflective of Australia’s international human rights obligations. At the heart of these principles and our human rights obligations, is respect for the individual dignity and equality of all people.
It is this intersection between human rights and fair working conditions that I would like to talk about this afternoon. Because in my view, this area provides a practical example of human rights in an everyday situation.
For instance, the first paragraph of section 3 - the Objects section of the Fair Work Act 2009, provides that it is an object of the act to "take into account Australia's international labour obligations".
This is not part of a new international conspiracy - a similar object was also contained in the former Government's Work Choices legislation.
Having such a reference to international obligations in the objects clause is significant in itself. In particular, section 15 AA of the Acts Interpretation Act 1901 provides that "in the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the act …shall be preferred to a construction that would not promote that purpose or object.” Thus, irrespective of the question as to the extent to which courts should have regard to international human rights instruments when construing ambiguous legislation, in the case of the Fair Work Act, the situation is made clear by the specific object to which I have referred.
Further, it is of note that 6 out of the 7 key international human rights treaties to which Australia is a party contain some form of reference to international labour obligations. This includes the International Covenant on Economic, Social And Cultural Rights, the International Covenant on Civil and Political Rights, the Convention for the Elimination of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities, and the Convention on the Rights of the Child.
I will say a little more about the relevance of these instruments to industrial law shortly.
Human Rights
The Rudd Government’s commitment to human rights is founded on the belief in the fundamental equality of all people. Australia has been a longstanding supporter of economic and social as well as civil and political rights.
Since 1975, under the leadership of Gough Whitlam, Australia became a party to the International Covenant on Economic, Social and Cultural Rights, which provides for the protection of rights concerning employment.
For example, the Covenant expressly guarantees the right to form trade unions.
Undoubtedly, trade unions play a pivotal role in protecting and promoting fairer working conditions for Australian employees.
The Covenant also contains specific protections regarding working conditions such as recognising the individual’s right to work, and to work in a freely chosen or accepted field.
Importantly, the Covenant ensures the individual’s enjoyment of just and favourable conditions of work.
Such conditions include minimum and fair wages, equal pay between men and women, safe and healthy working conditions, equal opportunities for promotions, and reasonable limitation of working hours.
The Convention for the Elimination of Racial Discrimination also refers to the right to work, to free choice of employment to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration (article5(e)(i)). The Convention also refers to the right to form and join trade unions (Article 5(e)(ii)).
Also, significantly, the Convention on the Rights of the Child provides that State parties recognized the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development (article 32).
Industrial Relations
Accordingly, the protection of these, and other international human rights, can very much be seen in the field of Australian industrial relations.
In addition to the international treaties I have mentioned, Australia is a party to a number of International Labour Organisation (ILO) conventions, which encourage decent employment opportunities and promote decent work.
As you are all aware, the ILO is devoted to advancing opportunities for women and men to obtain decent and productive working conditions of freedom, equity, security and human dignity. It also aims to enhance social protection and strengthen dialogue in handling work-related issues.
Article 22(1) of the International Covenant on Civil and Political Rights provides that everyone shall have the right to freedom of association with others, as well as the right to form, and join, trade unions for the protection of their interests.
Fair Work Act
The Government is committed to ensuring that Australia’s domestic industrial relations arrangements are consistent with our international obligations.
One of our major achievements has been the passage of the Fair Work Act 2009.
The Australian Government has been publicly praised by the ILO in successfully implementing crisis response measures to support employment whilst simultaneously maintaining labour standards.
The success of the Fair Work Act and Australia’s response to the economic and jobs crises have shown that fairness and productivity are mutually reinforcing concepts in this instance.
Our actions demonstrate that one does not have to come at the expense of the other.
Recent comments by the ILO suggest a recognition that the Fair Work Act brings fairness and productivity into the workplace.
In creating the Fair Work Act, the Australian Government was mindful of its international obligations.
Through these reforms we have further demonstrated the Government’s support of the ILO’s core message: ‘that decent work is a fundamental right for all.’
Just this month, I am pleased to advise that the ILO’s Committee of Experts published a report which stated that Australia’s new laws fulfil our international obligations.
Importantly, for the first time since 2001, the Committee of Experts has not expressed concern with Australia’s compliance with two of the ILO’s fundamental conventions – the Right to Organise and Collectively Bargain Convention; and the Freedom of Association and Protection of the Right to Organise Convention.
In 2009, the International Committee on Economic Social and Cultural Rights noted too with appreciation the Fair Work Act – commenting in particular on its new employment standards and the improvements it makes to the protection of the right to work.
Further to the introduction of the Fair Work Act, the Government established a new, dedicated office, the Fair Work Ombudsman.
The Ombudsman’s role is to ensure that the standards under that Act are maintained.
The Australian Government is also currently exploring the inclusion of labour provisions in a number of Free Trade Agreements.
This recognises the importance of promoting internationally recognised labour standards and in particular, the fundamental principles and rights articulated by the ILO.
Equality Between Men and Women
A fundamental right in the workplace is to be free from discrimination, whether due to gender, disability, age or other factors.
Australia is a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) which condemns, and seeks to eliminate, sex discrimination in all its forms.
A significant step towards achieving workplace equality will be the introduction of the paid parental leave scheme in January 2011, as announced in May last year.
At present, Australia is one of just two OECD countries without a national statutory paid parental leave scheme. By introducing the scheme, we will provide benefits commensurate with international standards and will encourage women to stay connected to their jobs.
The Government is also considering its response to the House of Representatives’ report on pay equity for women – Making it Fair: Pay Equity and Associated Issues Related to Increasing Female Participation in the Workforce.
In addition, the Government initiated the review of the effectiveness of the Equal Opportunity for Women in the Workplace Act.
A key objective of this review is to consider how the Government can support employers to remove barriers to equal employment opportunity, with a view to improving outcomes for both women and business.
Support for Working Families
The Rudd Government is also strengthening support for working families.
Currently, I am considering the Senate Standing Committee’s report on the Effectiveness of the Sex Discrimination Act in Eliminating Discrimination and Promoting Gender Equality and in particular, the recommendations which address the needs of working families.
The Senate Committee recommended that the Sex Discrimination Act be amended to refer to international conventions that create obligations in relation to gender equality, as well as CEDAW, in order to ensure that the Act provides equal coverage to men and women.
For example, the Committee recommended that the Sex Discrimination Act refer to the ILO Conventions on workers with family responsibilities and on discrimination in employment.
Currently, discrimination on the ground of family responsibilities is only unlawful where the employee is dismissed.
The Committee recommended that this prohibition be broadened to provide protection in all areas of employment, and to provide protection from indirect, as well as direct, discrimination.
Discrimination and Disabilities
A further area in which the Rudd Government has sought to create fair working conditions is that relating to disabilities.
In July 2008, Australia became a party to the Convention on the Rights of Persons with Disabilities, and in August last year, to the Option Protocol to that Convention. These are significant steps forward.
The Disabilities Convention ensures that persons with a disability have equal access to work opportunities. The right of persons with disabilities to work, and to work on an equal basis, is expressly enshrined in the Convention.
Discrimination concerning all forms of employment, such as conditions of recruitment, hiring, continuance of employment, career advancement and safe and healthy working conditions, is prohibited against persons with disabilities.
Importantly, if an individual feels that their rights under the Convention have been breached, they may lodge a complaint against Australia under the Optional Protocol with the Committee on the Rights of Persons with Disabilities.
Conclusion
In sum, the intersection between human rights and fair working conditions can be seen in the every day.
Many of our domestic industrial laws are shaped by, or reflective of, our international human rights obligations.
The right to join a trade union, enjoy fair working conditions, and be free from discrimination in the workplace are such rights.
The Rudd Government is actively working towards improving conditions in the workplace, to support working families and introducing paid parental leave.
The Government is also demonstrating its commitment to meeting international human rights standards by becoming a party to key human rights treaties such as the Disabilities Convention.
I am sure that the Union Lawyers and Industrial Officers NSW Association will be key in protecting and promoting the rights and interests of working people.
Thank you.
