Government move would open the way for unions to file a complaint with the UN

Ewin Hannan
April 24, 2013
The Australian

EMPLOYERS have warned the states they could face legal action by unions as a result of the Gillard government signing up to an international convention on child labour.

The Australian Chamber of Commerce and Industry said the government move would open the way for unions to file a complaint with the UN’s International Labour Organisation if they object to after-school short shifts by students in retail outlets.

ACCI chief executive Peter Anderson said the states could also be forced to consult with unions on the design of vocational education for students under 18.

The government is proposing to ratify the ILO’s 1976 international convention on minimum age of employment. If ratified, every employment arrangement of persons under 18 would have to fall within one of the exempt categories of the convention.

Mr Anderson said “most, possibly all” Australian arrangements would be exempt, but “we are not sure and cannot be”.

In his letter to state and territory industrial relations ministers, Mr Anderson said ratification would allow third parties, including unions, to commence proceedings alleging breach of the convention.

“For example, if a trade union believed that after-school short shifts by students in shops was objectionable under the terms of the convention they could seek an international ruling on the matter,” he said.

He said enforceable obligations on states and territories “would extend to process issues such as mandatory consultation with trade unions on the design of vocational employment arrangements for persons under the age of 18 years”.

Every current and future act of employment by a person aged under 18 would need to fall within the convention’s exemptions or Australian would be in breach. If so, a state government might be asked to account to the commonwealth, and through the commonwealth to the ILO, for that breach.

“That previous Australian governments since the mid 1970s – including the Labor governments of Bob Hawke, Paul Keating and Kevin Rudd – resisted trade union pressure for ratification, largely for these reasons, is telling,” Mr Anderson wrote.

“We emphasis that simply because a state or territory believes its current law and practice to be in compliance is not a sufficient basis to act passively on this issue.”

The matter is before federal parliament’s joint standing committee on treaties, and the ACCI will make a submission by next week opposing ratification.

Mr Anderson insisted that employer concerns were “not theoretical”.

He cited an ILO ruling in the mid 1990s that the Australian practice requiring prisoners to work in prison laundries was “forced labour” if the prison had been privatised. The commonwealth was forced to legally defend the Kennett government against international litigation.
“It was still going on seven years later, when both the then government and I, on behalf of employers, personally had to put the case in Geneva,” he said.

In “95 per cent of cases” the treaty would not be a problem as Australia had minimum school-age laws that acted as a proxy to block underage employment.