Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020 [2021] AUPJCHR 20 (24 February 2021)

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Purpose	This bill seeks to amend the Fair Work Act 2009 and other legislation to: • provide regular casual employees a statutory pathway to ongoing employment by including a casual conversion entitlement in the National Employment Standards; • extend two temporary JobKeeper flexibilities to businesses significantly impacted by the COVID-19 pandemic; • allow the nominal life of greenfields agreements made in relation to the construction of a major project to be extended; • ensure industrial instruments do not transfer where an employee transfers between associated entities at the employee’s initiative; and • amends various Fair Work Commission processes and powers
Portfolio	Industrial Relations
Introduced	House of Representatives, 9 December 2020
Rights	Rights to work and just and favourable conditions of work; freedom of association; fair hearing; equality and non-discrimination

Strengthening compliance and enforcement measures

1.40 The bill seeks to amend the Fair Work Act 2009 (Fair Work Act) to introduce a number of compliance and enforcement measures.^[2] For example, the bill would prohibit employers advertising employment with a rate of pay that is less than the national minimum wage.^[3] It would introduce a new criminal offence for employers who dishonestly engage in a systematic pattern of underpaying one or more employees.^[4] The bill would also increase the penalty for sham contracting.^[5]

Preliminary international human rights legal advice

Rights to work and just and favourable conditions of work

1.41 To the extent that these compliance and enforcement measures are effective in reducing underpayment of employees and incentivising greater compliance by employers with workplace laws, the bill appears to promote the rights to work and just and favourable conditions of work. The right to work is understood as the right to decent work providing an income that allows the worker to support themselves and their family, and which provides safe and healthy conditions of work.^[6] The right to just and favourable conditions of work includes the right of all workers to adequate and fair remuneration and safe working conditions.^[7] The United Nations (UN) Committee on Economic, Social and Cultural Rights has noted that '[f]or the clear majority of workers, fair wages are above the minimum wage' and 'should be paid in a regular, timely fashion and in full'.^[8] It has recognised the importance of enforcement of labour legislation for the realisation and protection of the right to just and favourable conditions of work.^[9] It has noted that the 'failure of employers to respect the minimum wage should be subject to penal or other sanctions' and appropriate measures are 'necessary to ensure the application of minimum wage provisions in practice'.^[10]

1.42 The statement of compatibility states that the compliance and enforcement measures promote the right to work by increasing the likelihood that employees receive their full entitlements and increasing penalties for employers that do not comply with their workplace obligations. By prohibiting employers advertising jobs with pay rates below the relevant minimum wage, increasing the penalty for sham contracts and criminalising systematic underpayment of employees, the measures would appear to promote the rights to work and just and favourable conditions of work, particularly the right to fair renumeration.

Committee view

1.43 The committee notes that the bill seeks to introduce a number of compliance and enforcement measures, such as criminalising systematic underpayment of employees. The committee considers that the measures are important to more effectively deter non-compliance with workplace laws by employers.

1.44 To the extent that these measures are effective in reducing underpayment of employees and incentivising greater compliance with workplace laws, the committee considers that these measures promote the rights to work and just and favourable conditions of work.

Simplified additional hours agreements

1.45 The bill seeks to include provisions relating to simplified additional hours agreements as terms of 12 identified modern awards in the accommodation and food services and retail trade industries, as well as any other awards prescribed by regulations.^[11] This measure would allow for the making of a simplified additional hours agreement between an employer and part-time employee for the employee to work additional hours.^[12] Additional agreed hours would be paid without overtime (namely, paid at the ordinary rate instead of the overtime rate) and would be treated as ordinary hours for certain purposes, including penalty rates, annual leave and superannuation.^[13] A simplified additional hours agreement can be entered into if an identified modern award applies; the employee is a part-time employee; and the employee's ordinary hours of work are at least 16 hours per week.^[14] An employer would be prohibited from requiring an employee to enter into a simplified additional hours agreement.^[15] If an employee and employer entered into an agreement under the proposed provisions, the bill provides that to the extent of any inconsistency between a simplified additional hours agreement provision and a provision in the relevant identified modern award, the former prevails, except in specified circumstances.^[16]

Preliminary international human rights legal advice

Rights to work and just and favourable conditions of work, and equality and
non-discrimination

1.46 The statement of compatibility states that the simplified additional hours agreements are aimed at realising article 1(1) of International Labour Organization (ILO) Convention No. 122, namely stimulating economic growth and development, raising standards of living, meeting workforce demands, overcoming unemployment and underemployment, and promoting full, productive and freely chosen employment.^[17] The statement of compatibility states that the measure is directed to this objective because it is intended to remove barriers to part-time employment by providing more flexibility around the deployment of part-time employees in response to changing business needs. The statement of compatibility states that this thereby promotes the right to work.^[18] To the extent that the measure, if the simplified additional hours agreements were voluntarily entered into, may overcome underemployment and unemployment as well as promote full, productive and freely chosen employment, this may promote the rights to work and just and favourable conditions of work.

1.47 However, insofar as the measure would allow employers to not pay overtime for additional agreed hours performed by an employee, thereby having the effect of reducing an employee's wages and adversely altering their working conditions, the bill may limit the rights to work and just and favourable conditions of work. The right to work provides that everyone must be able to freely accept or choose their work, and must not be unfairly deprived of work.^[19] The right to just and favourable conditions of work includes the right to fair wages and equal renumeration, a decent living for the worker and their families, and safe and healthy working conditions.^[20] Regarding fair wages, the UN Committee on Economic, Social and Cultural Rights has stated that '[w]orkers should receive additional pay for overtime hours above the maximum permitted hours worked in any given week'.^[21] It has previously criticised additional work without overtime pay and observed that a lack of compulsory overtime pay hinders the enjoyment of the right to just and favourable conditions of work.^[22] Australia has obligations to progressively realise economic, social and cultural rights, including the rights to work and just and favourable conditions of work, using the maximum of resources available,^[23] and has a corresponding duty to refrain from taking retrogressive measures, or backwards steps, with respect to their realisation.^[24] The measure may be characterised as retrogressive to the extent that it has the effect of reducing the rates of pay for employees who agree to work additional hours. Retrogressive measures, a type of limitation, may be permissible under international human rights law providing that they address a legitimate objective, are rationally connected to that objective and are a proportionate way to achieve that objective.

1.48 Additionally, as it appears that women comprise a majority of part-time employees in Australia,^[25] the measure may engage and limit the right to equality and non-discrimination. This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.^[26] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).^[27]Indirect discrimination occurs where a 'measure that is neutral at face value or without intent to discriminate', disproportionately affects people with a particular protected attribute.^[28] In the context of gender equality and the rights to work and just and favourable conditions of work, the UN Committee on Economic, Social and Cultural Rights has, in another context, expressed concern at the overrepresentation of women in part-time employment and the persistent wage gap between men and women, with women being concentrated in lower paying and part-time working arrangements.^[29] In order to realise the right to fair wages and equal renumeration, in particular the right of women to be guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work, the UN Committee on Economic, Social and Cultural Rights has encouraged States to adopt proactive measures to address structural gender inequalities, including temporary special measures to strengthen the right to full-time work for women.^[30] As women comprise nearly 68 per cent of all part-time employees in Australia, the measure, which only applies to part-time employees, may have a disproportionate impact on women.^[31] Where a measure has a disproportionate impact on a group with a protected attribute, including sex, it establishes that there may be indirect discrimination.^[32] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.^[33]

1.49 In relation to the objective of the measure, as noted above, the statement of compatibility states that the simplified additional hours agreements are aimed at stimulating economic growth and development, raising standards of living, meeting workforce demands, overcoming unemployment and underemployment, and promoting full, productive and freely chosen employment.^[34] The statement of compatibility states that the measure is directed to this objective because it is intended to remove barriers to part-time employment by providing more flexibility around the deployment of part-time employees in response to changing business needs. The explanatory memorandum notes that the current law requires employers to pay overtime rates for additional hours worked by employees on an ad hoc basis and this arrangement operates as a disincentive for employers to offer additional work to part-time employees.^[35] It states that the measure is intended to incentivise employers to engage part-time rather than casual employees and encourage more employment in recovering businesses.^[36] The statement of compatibility acknowledges that the measure may limit the right to just and favourable conditions of work but states that it is reasonable, necessary and proportionate in the context of overcoming unemployment and underemployment.^[37]

1.50 The general objectives of raising living standards, overcoming underemployment and unemployment, and promoting more permanent employment opportunities are capable of constituting legitimate objectives for the purposes of international human rights law. However, in order to assess whether these are legitimate objectives in the context of this measure, further information is required as to whether there is a pressing and substantial concern which gives rise to the need for this specific measure. While the statement of compatibility provides some information regarding the need to enhance flexibility around the deployment of part-time employees, it does not fully address why it is necessary to require that additional agreed hours are to be paid without overtime and why the existing modern award terms, which contain provisions to vary ordinary hours so as to enable part-time employees to work additional hours, are insufficient to achieve the stated objectives, particularly raising living standards.^[38] In order to demonstrate that the measure pursues a legitimate objective for the purpose of international human rights law and is rationally connected to that objective, further information is required as to the substantial and pressing concern that is sought to be addressed by the measure and how the measure is likely to be effective in achieving that objective.

1.51 In assessing the proportionality of the measure, it is necessary to consider whether the measure is accompanied by sufficient safeguards; sufficiently circumscribed; and whether any less rights restrictive alternatives could achieve the same stated objective. The statement of compatibility states that simplified additional hours agreements will be subject to a range of protections,including:

1.52 Some of these protections may operate to safeguard certain minimum modern award terms and conditions of employment, such as the limit on the maximum number of consecutive days that an employee may work and the requirement to still pay overtime in certain circumstances. However, there are questions as to whether these protections are adequate in all circumstances.

1.53 The bill would provide that an employer cannot 'require' an employee to enter into a simplified additional hours agreement,^[44] and the bill notes that section 344 of the Fair Work Act prohibits the exertion of 'undue influence' or 'undue pressure' on an employee in relation to such a decision. Australian courts have determined that 'influence' here means 'to move or impel to, or to do, something', whereas 'pressure' refers to harassment or oppression.^[45] They have further stated that such pressure or influence will be 'undue' in this context where it is: 'unwarranted; excessive; too great' or 'not proper, fitting or right; unjustified'.^[46] This appears to indicate that some forms of influence or pressure will not meet the threshold of being 'undue', and so not be prohibited. That is, while an employer may not require (or order) an employee to enter into a simplified additional hours agreement, it is unclear if they may apply a permissible degree of pressure or influence in order to cause the employee to consent to an agreement. This raises questions about the conditions under which consent may be validly provided for the purposes of entering into a simplified additional hours agreement. This is a particular concern noting that the employment relationship may be said to be characterised by an overall and innate power imbalance (though noting that this may vary in specific contexts).^[47]

12 identified modern awards in industries that have been hard hit by COVID-19.^[48] However, while the bill sets out 12 specific awards to which this measure applies,^[49] the specified awards would cover a broad range of industries and the bill also provides that regulations can prescribe other modern awards as an identified modern award for the purposes of this measure.^[50] The explanatory memorandum states that this is 'necessary to effectively adapt this framework to changing circumstances, which may warrant the inclusion or exclusion of a particular award'.^[51] It is therefore not clear what other awards this measure may apply to. There is also no requirement that the employer be financially distressed as a result of the COVID-19 pandemic—and thus unable to pay overtime rates—in order to make use of simplified additional hours agreements. Without such a requirement, there appears to be a risk that employers may use simplified additional hours agreements in the first instance in order to pay part-time employees at a reduced rate, irrespective of whether they have the financial capacity to pay employees at the overtime rate. This may result in employers only offering additional hours to those employees who can afford to work at the reduced rate. The potentially broad scope of this measure raises concerns as to whether it is sufficiently circumscribed.

1.55 Furthermore, it is not clear that a measure which authorises employers to effectively contract out of minimum employment terms and conditions is the least rights restrictive way of achieving the stated objectives. In the context of retrogressive measures, a type of limitation, the UN Committee on Economic, Social and Cultural Rights has stated that:

1.56 In order to assess the compatibility of this measure with the rights to work and just and favourable conditions of work, and equality and non-discrimination, further information is required as to:

part-time employees in Australia, and if so, what safeguards, if any, exist to ensure that the measure does not indirectly discriminate against women;

Committee view

1.57 The committee notes that the measure would allow for the making of a simplified additional hours agreement between an employer and part-time employee for the employee to work additional hours at the ordinary rather than overtime rate of pay. The measure would apply to 12 identified modern awards in the accommodation and food services and retail trade industries, as well as any other awards prescribed by regulations.

1.58 To the extent that the measure may overcome underemployment and unemployment, and promote full, productive and freely chosen employment, the committee considers this measure may promote the rights to work and just and favourable conditions of work.

1.59 Insofar as the measure allows employers, albeit with the agreement of the employee, to not pay overtime for additional agreed hours worked by part-time employees and may have the effect of reducing employees' rate of pay, the rights to work and just and favourable conditions of work may be engaged and limited. Noting that the measure only applies to part-time employees and that women constitute the majority of part-time employees, the right to equality and non-discrimination may also be engaged and limited. The committee notes that these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.60 The committee notes that the measure is intended to introduce more flexible provisions for the deployment of part-time employees in response to changing business needs and encourage employers to engage part-time rather than casual employees. The committee considers the general objectives of raising living standards, overcoming underemployment and unemployment, and promoting more permanent employment opportunities are capable of constituting legitimate objectives, but some questions remain as to whether these are legitimate objectives in the context of this measure. As regards proportionality, the committee notes that there are protections in place to safeguard minimum terms and conditions of employment, however, further information is required to fully assess the proportionality of the measure.

1.61 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this measure, and as such seeks the minister’s advice as to the matters set out at paragraph [1.56].

Flexible work directions

1.62 The bill seeks to introduce provisions to allow employers to issue flexible work directions to employees about their functions and duties (a flexible work duties direction), and the location of their work (a flexible work location direction). A flexible work duties direction could require an employee to perform any duties during a period that are within the employee's skill and competency so long as the duties are safe, the employee has the requisite licence or qualification, and the duties are reasonably within the scope of the employer's business operations.^[53] A flexible work location direction could require an employee to perform duties during a period at an alternative location, including the employee's home. The alternative location must be suitable having regard to the employee's duties; must not require the employee to travel a distance that is unreasonable in all circumstances, including the COVID-19 pandemic; and must be safe and reasonably within the employer's business operations.^[54] To have effect, flexible work directions must not be unreasonable in all the circumstances and the employer must reasonably believe that the direction is a necessary part of a reasonable strategy to assist in the revival of the employer's enterprise.^[55] The employer is also required to consult with the employee about the direction, although the employee is not required to consent to the direction for it to have effect.^[56] The flexible work direction measure applies to employees and employers covered by an identified modern award and to the extent of any inconsistency between this measure and an identified modern award provision, the flexible work direction provision would prevail.^[57] Additionally, this measure would cease to have effect after two years from the day the proposed sections would commence.^[58]

Preliminary international human rights legal advice

Rights to work and just and favourable conditions of work

1.63 To the extent that the measure may have the effect of adversely altering an employee's working conditions, including directing an employee to work in potentially less favourable conditions, without their consent, the bill may limit the rights to work and just and favourable conditions of work, including the right to freely accept or choose their work.^[59] These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.64 The statement of compatibility states that this measure is directed towards achieving the objective of facilitating ongoing employment, maximising employee retention rates and supporting employers during the COVID-19 pandemic.^[60] The statement of compatibility acknowledges that the measure may limit the right to just and favourable conditions of work but states that it is reasonable, necessary and proportionate in the context of responding to the extreme economic impacts of the COVID-19 pandemic.^[61] Promoting ongoing employment and stimulating economic recovery during the COVID-19 pandemic would likely be legitimate objectives for the purpose of international human rights law. By providing employers with greater flexibility to respond to changing business needs during the COVID-19 pandemic and the power to direct employees to perform different duties as part of a strategy to revive their enterprise, the measure would appear to be rationally connected to these objectives.

1.65 In assessing whether the measure is proportionate to achieving the stated objectives, it is necessary to consider whether the proposed limitation is sufficiently circumscribed. The statement of compatibility notes that the measure applies to distressed industries that have been negatively affected by the extreme economic impacts of the COVID-19 pandemic.^[62] However, as noted above at paragraph [1.54], the specified awards would cover a broad range of industries and the bill provides that regulations can prescribe other modern awards for the purposes of th[63] measure.⁶³ As such, the measure would not necessarily be limited to distressed industries. The threshold that employers must meet in order to give effect to a flexible work direction—namely, that an employer has information that leads them to reasonably believe that the direction is a necessary part of a reasonable strategy to assist in the revival of their enterprise—would appear to be relatively low. It would seem that any employer to which an identified modern award applies could utilise this measure, irrespective of whether they have experienced or are experiencing economic downturn due to the COVID-19 pandemic, if they reasonably believed that it would revive their business. This would mean for example, that unlike the JobKeeper scheme, there would be no need for the employer to actively meet a decline in turnover test before issuing any such[64]irection.⁶⁴ It is noteworthy that there is no definition of 'revival' in the bill, raising questions as to whether the term may be open to disputation due to its ambiguity. As drafted, it is not clear if the measure could have a broader scope of application than perhaps is intended. This raises questions as to whether the measure is sufficiently circumscribed.

1.66 Other relevant factors in assessing the proportionality of the measure include whether it is accompanied by sufficient safeguards and whether any less rights restrictive alternatives could achieve the same stated objective. The statement of compatibility notes that the measure is subject to a range of safeguards, including:

1.67 Some of these protections may operate as important safeguards, such as the requirement that flexible work directions are safe and not unreasonable in all of the circumstances and the protection of an employee's hourly base rate of pay. However, noting that many of the protections are drafted in broad terms, their value as a safeguard will likely depend on how they are interpreted and applied in practice. For instance, duties that are reasonably within the scope of the employer's business operations could be quite broad, depending on the nature of the business. Likewise, duties within an employee's skill and competency could encompass a wide range of duties, particularly if those duties do not require specific licences or qualifications. The reasonableness criterion could also be interpreted quite broadly, noting that the bill contains limited guidance as to how the term 'unreasonable in all of the circumstances' should be interpreted and applied in practice.^[73] For example, it is unclear what factors will be considered, and what weight will be given to those factors, by the employer in determining whether a direction is reasonable. As regards the consultation provisions, it is not clear that they would substantially assist with the proportionality of the measure, noting that an employee does not have to consent to the direction for it to have effect and the notice period is only three days, raising questions as to whether this is sufficient time to facilitate meaningful consultation between an employee and employer. Additionally, while the measure is characterised as temporary, depending on the extent of any interference with an employee's rights to work and just and favourable conditions of work, two years could be a substantial amount of time. Furthermore, it is not evident from the statement of compatibility that careful consideration has been given to all alternatives so as to ensure that the measure is the least rights restrictive way of achieving the stated objectives.^[74]

1.68 In order to assess the compatibility of this measure with human rights, particularly the proportionality of the measure, further information is required as to:

Committee view

1.69 The committee notes the measure would allow an employer to issue a flexible work direction, which may require an employee to perform different functions and duties and work at an alternative location, including at the employee's home. To the extent that the measure may result in less favourable working conditions for an employee subject to a flexible work direction, the measure may engage and limit the rights to work and just and favourable conditions of work. The committee notes that these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.70 The committee notes that the measure pursues the legitimate objectives of facilitating ongoing employment, maximising employee retention rates and supporting employers during the COVID-19 pandemic, and that the measure would appear to be rationally connected to these objectives. As regards proportionality, the committee notes that the measure includes a number of safeguards, but questions remain as to the adequacy of these safeguards in practice.

1.71 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this measure, and as such seeks the minister’s advice as to the matters set out at paragraph [1.68].

Enterprise agreements

1.72 The bill proposes a number of amendments to processes relating to the making and approval of enterprise agreements as well as the Fair Work Commission's (FWC) power to vary or revoke decisions relating to enterprise agreements and workplace determinations. The bill would permit the FWC to approve enterprise agreements that may not satisfy or pass the better off overall test (BOOT) in certain circumstances.^[75] In order to approve an agreement, the FWC would need to be satisfied that it is appropriate to do so taking into account all the circumstances and because of those circumstances, the approval of the agreement would not be contrary to the public interest.^[76] Proposed subsection 189(1A)(a) sets out a non-exhaustive list of circumstances that the FWC must take into account, including the views and circumstances of the employees and employers, the impact of COVID-19 on the agreement, and the extent of employee support for the agreement as expressed in the outcome of the voting process. An agreement approved under this proposed provision would have a nominal expiry date not longer than two years after the day on which it is approved by the FWC and the measure will automatically be repealed two years after it commences.^[77]

1.73 The bill also seeks to amend how the FWC may inform itself in relation to approving and varying an enterprise agreement.^[78] In considering an agreement, the FWC would be permitted to inform itself only on the basis of an exhaustive list of matters prescribed in proposed subsection 254AA(2), unless exceptional circumstances exist. The effect of the amendment would be to limit the FWC's ability to inform itself on the basis of submissions, evidence or other information provided by or requested from persons or organisations that are not bargaining representatives, including trade unions that are not bargaining representatives.

1.74 Further, the bill would authorise the FWC to vary or revoke decisions that deal with enterprise agreements or workplace determinations.^[79] The FWC could vary or revoke such a decision on its own initiative or on application by a person who is affected by the decision or a person prescribed in the regulations.^[80] For example, the FWC could revoke or vary its decision to approve an agreement where the agreement lodged contained an error.^[81]

Preliminary international human rights legal advice

Rights to just and favourable conditions of work and freedom of association

1.75 The rights to just and favourable conditions of work and freedom of association may be limited insofar as the measures may result in employees being subject to agreements that contain less favourable conditions and leave them worse off overall; the ability of trade unions to intervene in applications to approve or vary agreements would be restricted, thereby limiting the right of trade unions to function freely; and the terms and conditions of agreements that were collectively bargained for may be varied or revoked by the FWC. The statement of compatibility acknowledges that the measures limit these rights.^[82] The right to just and favourable conditions of work includes the right of all workers to adequate and fair remuneration, safe working conditions, and the right to join trade unions.^[83] The right to freedom of association protects the right of all persons to group together voluntarily for a common goal and to form and join an association.^[84] It explicitly guarantees everyone 'the right to form trade unions for the protection of [their] interests',^[85] and 'the right of trade unions to function freely'.^[86] The right to freedom of association includes the right to collectively bargain without unreasonable and disproportionate interference from the state.

1.76 The interpretation of these rights is informed by International Labour Organization (ILO) treaties, including the ILO Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) and the ILO Convention of 1949 concerning the Right to Organise and Collective Bargaining (ILO Convention No. 98), which protects the right of employees to collectively bargain for terms and conditions of employment.^[87] The Human Rights (Parliamentary Scrutiny) Act 2011 does not include the International Labour Organization (ILO) Constitution or ILO conventions on freedom of association and the right to bargain collectively in the list of treaties against which the human rights compatibility of legislation is to be assessed. Nonetheless, these ILO standards and jurisprudence are relevant to the mandate of the committee as they are the practice of the international organisation with recognised and long-established expertise in the interpretation and implementation of these rights. It is a specialised body of law which can inform the general guarantees set out in the human rights treaties, which the committee is required to consider under the Human Rights (Parliamentary Scrutiny) Act 2011. In the current case, ILO Convention No. 87 is directly relevant, in that both article 22(3) of the International Covenant on Civil and Political Rights and article 8(3) of the International Covenant on Economic, Social and Cultural Rights expressly state that measures which are inconsistent with the guarantees provided for in ILO Convention No. 87 will not be consistent with the right to freedom of association, the right to form and join trade unions and the right to strike.^[88] The UN Committee on Economic, Social and Cultural Rights has also considered ILO Conventions No.87 and 89 when assessing Australia's compliance with article 8 of the International Covenant on Economic, Social and Cultural Rights.^[89]

1.77 The rights to just and favourable conditions of work and freedom of association may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective. However, no limitations are permissible on the right to freedom of association if the measures taken would prejudice the guarantees of freedom of association and the right to collectively organise contained in the ILO Convention No. 87.^[90]

1.78 Regarding the general objectives being pursued by these measures, the explanatory memorandum notes that the measures seek to make enterprise agreement making and approval processes easier and faster, balancing flexibility and fairness.^[91] With respect to the measure that would allow the FWC to approve agreements that do not pass the BOOT, the statement of compatibility states that it pursues the objective of preserving employment impacted by the COVID-19 pandemic and supporting the recovery of Australian jobs.^[92] The second reading speech notes that the measure is intended to provide greater flexibility for businesses and employees in the COVID-19 recovery period.^[93] With respect to restrictions on

third-party intervention, the statement of compatibility states that the measure is aimed at avoiding unnecessary delays in the agreement approval process by ensuring that only those parties involved in bargaining can be heard.^[94] With respect to the FWC's discretion to vary or revoke decisions about agreements, the statement of compatibility states that the objective of the measure is to improve the efficiency of the FWC by ensuring that applications can be dealt with in a timely, practical and transparent manner.^[95]

1.79 In general terms, the objectives of preserving employment and supporting employers during the COVID-19 pandemic and recovery period may be capable of constituting legitimate objectives for the purposes of international human rights law. However, it is unclear whether improving the efficiency and expediency of agreement making and approval processes would also constitute a legitimate objective. To be capable of justifying a proposed limitation on human rights, a legitimate objective must address a pressing or substantial concern and not simply seek an outcome regarded as desirable or convenient. Administrative convenience, in and of itself, is unlikely to be sufficient to constitute a legitimate objective for the purposes of international human rights law. The statement of compatibility does not fully address why current laws are insufficient to achieve the stated objectives and why the measures are necessary. For instance, noting that the FWC already has the power to approve agreements that do not pass the BOOT in exceptional circumstances, such as to respond to a short-term crisis or assist in the revival of an employer's enterprise, it is unclear why this current exception to the requirement for agreements to pass the BOOT is not sufficient to cover circumstances arising in the context of the COVID-19 pandemic.^[96] Without further information, questions remain as to whether the measures address an issue of public or social concern that is pressing and substantial enough to warrant limiting rights.

1.80 Under international human rights law, it must also be demonstrated that any limitation on a right has a rational connection to the objective sought to be achieved. The key question is whether the relevant measures are likely to be effective in achieving the objectives being sought. Restricting the intervention of non-bargaining representatives in applications to approve or vary agreements and broadening the FWC's discretion to vary or revoke decisions relating to agreements may be effective to achieve the objectives of reducing delays in the agreement approval process and facilitating the timely and practical resolution of issues relating to agreements, such as correcting administrative errors.^[97] However, it is unclear that the measures would likely be effective in achieving the other stated objectives. For instance, it is not clear that allowing the FWC to approve agreements that do not pass the BOOT is rationally connected to the objective of preserving employment. In order to demonstrate that the measures are rationally connected to all stated objectives, a reasoned and evidence-based explanation of how each measure is likely to be effective in achieving the stated objectives is required.

1.81 In assessing the proportionality of the measures, it is necessary to consider whether they are accompanied by sufficient safeguards and whether any less rights restrictive alternatives could achieve the same stated objectives. A further consideration is the extent of any interference with human rights. The greater the interference, the less likely the measure is to be considered proportionate.

1.82 The statement of compatibility identifies some safeguards with respect to each measure. Regarding the measure amending the BOOT, the primary safeguard identified in the statement of compatibility is the requirement for the FWC to take into account: the views of employees; the circumstances of those employees and any employee organisation, including the likely effect on employees of approving the agreement; the extent of employee support for the agreement; and whether the agreement is contrary to the public interest.^[98] The extent to which consideration of the employees' views, circumstances and support for the agreement would operate as a safeguard to protect employees' rights will depend on how much weight is attributed to these factors in practice, noting that the bill contains limited guidance as to what weight the FWC should give to the circumstances set out in proposed subsection 189(1A)(a). This is of relevance because the FWC is required to also take into account other circumstances that may be contrary to the interests and rights of employees, including the views and circumstances of employers, and the impact of COVID-19 on enterprises. Additionally, as the circumstances set out in proposed subsection 189(1A)(a) are non-exhaustive, it is not clear what other circumstances may be considered by the FWC in assessing whether it is appropriate to approve an agreement that does not pass the BOOT.

1.83 As regards the extent of interference with human rights, the statement of compatibility notes that agreements approved that do not meet the BOOT will nominally expire in two years after FWC approval and the measure to allow approval of agreements that do not pass the BOOT will sunset after two years.^[99] It is relevant to the proportionality of this measure that it is time-limited. However, depending on the extent to which employees' rights are limited, two years may constitute a substantial amount of time.

1.84 Regarding the proportionality of the measure to restrict third-party intervention in applications to approve or vary agreements, the statement of compatibility notes that trade unions and other third parties that are not bargaining representatives may intervene where exceptional circumstances exist.^[100] Ensuring some difference of treatment in exceptional circumstances may assist with the proportionality of the measure insofar as it provides some flexibility to treat different cases differently, although it is noted that 'exceptional circumstances' would appear a high bar to reach.

1.85 Regarding the measure to allow the FWC to vary or revoke decisions relating to agreements, the statement of compatibility notes that the FWC must exercise its discretion in a manner that is fair and just, open and transparent, and promotes harmonious and cooperative workplace relations, as well as in accordance with the objects of the Fair Work Act.^[101] Noting that the objects of the Fair Work Act recognise the right to freedom of association and collective bargaining, and promote fair, relevant and enforceable minimum terms and conditions of employment, this may assist with the proportionality of this measure.^[102] However, it is unclear whether these safeguards alone are sufficient, noting that the statement of compatibility does not identify any other safeguards with respect to these measures or address whether there are less rights restrictive ways of achieving the stated objectives.

1.86 In order to assess the compatibility of these measures with human rights further information is required as to:

1.87 Additionally, it is not possible to conclude on the compatibility of the measure to amend the BOOT provisions (as originally proposed, noting that amendments have been agreed to in the House of Representatives to withdraw this measure)^[103] without further information as to:

Committee view

1.88 The committee notes that the bill seeks to amend the Fair Work Act to enable the Fair Work Commission (FWC) to approve enterprise agreements that do not pass the better off overall test (BOOT) in certain circumstances; restrict intervention of non-bargaining representatives in applications to approve or vary agreements; and expand the FWC's power to vary or revoke decisions relating to enterprise agreements and workplace determinations. By permitting the FWC to approve agreements that do not pass the BOOT, restricting the rights of trade unions that are not bargaining representatives, and allowing the FWC to vary or revoke agreements that were collectively bargained for and determine terms and conditions of employment, the measures engage and may limit the rights to just and favourable conditions of work as well as freedom of association. The committee notes that these rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.89 The committee notes that the general objectives of preserving employment and supporting employers during the COVID-19 pandemic and recovery period may be capable of constituting legitimate objectives for the purposes of international human rights law. However, questions remain as to whether the measures address a pressing and substantial concern for the purposes of international human rights law and are rationally connected to those objectives. The committee notes that the bill contains some safeguards that may assist with the proportionality of the measures. However, further information is required to assess whether these safeguards are likely to be sufficient and whether there are less rights restrictive ways of achieving the stated objectives.

1.90 The committee has not yet formed a concluded view in relation to the amendments restricting the intervention of non-bargaining representatives in applications to approve or vary agreements and the expansion of the FWC's power to vary or revoke certain decisions. It considers further information is required to assess the human rights implications of these measures, and as such seeks the minister’s advice as to the matters set out at paragraph [1.86].

1.91 Noting that the House of Representatives have agreed to amendments to withdraw the proposed measure that would have amended the BOOT provisions, the committee makes no further comment in relation to this measure.

Extending the nominal expiry of greenfields agreements

1.92 A greenfields agreement is an enterprise agreement relating to a genuinely new enterprise which is made at a time when the employer has not yet employed any workers for the business. Currently, such an agreement expires four years after it is made. The bill seeks to double the maximum nominal expiry date from four years to eight years for greenfields agreements made in relation to construction of major projects, such as new mining ventures.^[104] If the FWC is satisfied that the nominal expiry date should be extended beyond four years, it must also be satisfied that the agreement includes a term that provides for at least an annual increase of the base rate of pay payable to each employee who will be covered by the agreement.^[105]

Preliminary international human rights legal advice

Rights to just and favourable conditions of work and freedom of association

1.93 To the extent that the measure requires greenfields agreements that have a nominal expiry date of more than four years to include a term that provides for at least an annual wage increase for employees covered by the agreement, the measure may engage and promote the right to just and favourable conditions of work. The right to just and favourable conditions of work includes the right of all workers to adequate and fair remuneration, and decent work providing an income that allows the worker to support themselves and their family.^[106] The statement of compatibility states that the measure promotes this right by ensuring that employees receive annual pay increases.^[107] While requiring annual wage increases may promote the right to fair remuneration, it is unclear whether other conditions of work would also be promoted by this measure. This is because the effect of the measure would be to extend the timing for renegotiating a new enterprise agreement and this may limit the ability of employees to bargain for more favourable conditions of work, noting that the employees were not employed at the time the enterprise agreement was entered into.

1.94 In addition, section 417 of the Fair Work Act currently prohibits employees or employee organisations organising or engaging in industrial action before the nominal expiry date of an enterprise agreement.^[108] Thus, by extending the nominal expiry date of greenfields agreements, employees covered by that agreement would be prohibited from organising or engaging in industrial action for up to eight years, which engages and limits the rights to strike and freedom of association. The right to strike is protected as an aspect of the right to freedom of association and the right to form and join trade unions under article 8 of the International Covenant on Economic, Social and Cultural Rights. The UN Committee on Economic, Social and Cultural Rights has noted that the right to 'freedom of association and the right to strike are crucial means of introducing, maintaining and defending just and favourable conditions of work'.^[109] The existing restrictions on taking industrial action under Australian domestic law have been consistently found by international supervisory mechanisms to go beyond what is permissible under international law.^[110]

1.95 The right to strike is not absolute and may be limited in certain circumstances. Generally, to be capable of justifying a limitation on human rights, the measure must address a legitimate objective, be rationally connected to that objective and be a proportionate way to achieve that objective. Further, article 8 of the International Covenant on Economic, Social and Cultural Rights expressly provides that no limitations are permissible on this right if they are inconsistent with the guarantees of freedom of association and the right to collectively organise contained in the ILO Convention No. 87.

1.96 The statement of compatibility states that the measure pursues the objective of encouraging investment to promote conditions for productive and increased employment and the realisation of the right to work, thereby supporting ILO Convention No. 122.^[111] By extending the nominal expiry date and consequently reducing the frequency of renegotiation of enterprise agreements, the statement of compatibility states that the measure will make major projects more attractive to investors by providing greater certainty of construction costs and delivery timeframes, and minimising delays caused by negotiations. The statement of compatibility notes that increased investment in major projects will create more jobs.^[112] The second reading speech further notes that the risk that agreements will expire during the construction of a major project has contributed to uncertainty, including over unexpected delays and protracted negotiations. The second reading speech states that this uncertainty can impact investment and job creation, which are relevant to economic recovery.^[113]

1.97 While attracting investment in major projects to promote employment opportunities may be capable of constituting a legitimate objective, questions remain as to whether the measure address a pressing and substantial concern for the purposes of international human rights law. In particular, it is not clear why the current nominal expiry date of greenfields agreements is insufficient to achieve the stated objectives. The second reading speech notes that there is a risk that agreements may expire during the construction of a major project and this may contribute to uncertainty, thereby impacting investment. However, the likelihood of whether and how often this risk will eventuate is unclear, raising questions as to whether this concern would be pressing and substantial enough to warrant limiting the right to strike. In order to assess this, further information is required as to why the measure is necessary and how the measure will address a substantial and pressing concern.

1.98 In assessing the proportionality of this measure, it is necessary to consider whether the measure is accompanied by sufficient safeguards and whether any less rights restrictive alternatives could achieve the same stated objective. As regards proportionality, the statement of compatibility states that an agreement would provide for annual pay increases for employees and that on commencement of employment, employees have access to representation and can agree with employers to vary the terms of the agreement, including the nominal expiry date.^[114] While providing for annual wage increases may promote the right to fair renumeration, it may not necessarily operate as a safeguard with respect to the right to strike. Additionally, access to representation and the right to negotiate with the employer to vary the terms of the agreement may have limited safeguard value where negotiations are ineffective and employees are of the view that taking particular forms of industrial action, including unprotected industrial action, may be a necessary means of 'introducing, maintaining and defending just and favourable conditions of work'.^[115] Further, the statement of compatibility does not address whether there are less rights restrictive ways of achieving the stated objectives. As such, it appears that the proposed safeguards may be insufficient to ensure that the measure constitutes a proportionate limitation on the right to strike.

1.99 A further consideration with respect to proportionality is the extent of any interference with human rights. The greater the interference, the less likely the measure is to be considered proportionate. In this case, the measure would double the nominal expiry date of greenfields agreements and have the effect of prohibiting employees from exercising their right to strike for up to eight years. This is a substantial amount of time and would appear to constitute a significant interference with employees' right to strike and associated rights to just and favourable conditions of work. This is particularly the case where a greenfields agreement is made without the consent or agreement of an employee organisation. Section 182(4) of the Fair Work Act provides that notwithstanding that the employee organisation has not agreed to a greenfields agreement, an agreement is taken to have been made between an employer and employee organisation where certain criteria are met.^[116] In these circumstances, there is a risk that employees could be subject to an agreement that governs the terms and conditions of their employment for a period of eight years, without their consent or the consent of a representative trade union.

1.100 In order to assess the compatibility of this measure with human rights further information is required as to:

Committee view

1.101 The committee notes that the measure seeks to extend the nominal expiry date of greenfields agreements relating to the construction of a major project from four years to eight years. To the extent that the measure provides for an annual wage increase for employees covered by a greenfields agreement, the measure may promote the right to just and favourable conditions of work. However, insofar as the measure has the effect of extending the existing limit on the right to strike, the measure may also engage and limit the right to freedom of association. The committee notes that this right may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.

1.102 The committee notes that attracting investment in major projects to promote employment opportunities may be capable of constituting a legitimate objective for the purposes of international human rights law. However, the committee notes that questions remain as to whether the measure addresses a pressing and substantial concern and is rationally connected to those objectives. As regards proportionality, the committee notes that further information is required to assess whether there are sufficient safeguards and less rights restrictive ways of achieving the stated objective.

1.103 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this measure, and as such seeks the minister’s advice as to the matters set out at paragraph [1.100].

Fair Work Commission appeal or review without a hearing

1.104 The bill would enable the FWC to hear an appeal without a hearing where the FWC considers a matter can be adequately determined without oral evidence and submissions, provided it has taken into account the view of the persons who would otherwise make submissions as to whether the appeal should be heard on that basis.^[117] The Fair Work Act currently provides that an appeal may be conducted without holding a hearing only with the consent of the person who would otherwise be making oral or written submissions for consideration.^[118]

Preliminary international human rights legal advice

Right to a fair hearing

1.105 In providing for an appeals process which may deny an individual the ability to have a hearing involving oral evidence and submissions, this measure engages and may limit the right to a fair hearing. The right to a fair hearing provides that in the determination of a person's rights and obligations in a 'suit at law', everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. In order to constitute a fair hearing, the hearing must be conducted by an independent and impartial court or tribunal, before which all parties are equal, and have a reasonable opportunity to present their case.^[119] Ordinarily, the hearing must be held in public, but in certain circumstances, a fair hearing may be conducted in private. The right to a fair hearing may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.

1.106 The statement of compatibility briefly states that this measure does not limit the right to a fair hearing on the basis that an appeal is a way of re-hearing, and the material on which the FWC will base its appeal decision will be publicly available, as will the decision itself.^[120] Comparable jurisprudence from the European Court of Human Rights supports this view and states that in order to establish whether a trial complies with the requirement of publicity, it is necessary to consider the proceedings as a whole.^[121] The Court has further stated that if a public hearing has been held at first instance, a less strict standard applies to the appellate level, noting that appeals in superior courts involving only questions of law—as opposed to questions of fact—may not require hearings in order to comply with the right to a fair hearing.^[122]

1.107 However, the statement of compatibility does not explain why it is proposed that the existing requirement to seek the consent of the affected person in an appeal justifies amendment. It also does not address the extent to which first instance proceedings meet the components of a fair hearing in all circumstances, noting that this right includes the right to a public and oral hearing—a principle central to the open and transparent administration of justice. Consequently, some questions remain as to whether proceedings before the FWC would in fact meet the standard required under human rights law, and permissibly justify the absence of a public hearing.

1.108 In order to assess the compatibility of this measure with the right to a fair hearing, further information is required as to:

Committee view

1.109 The committee notes that the bill would enable the Fair Work Commission (FWC) to hear an appeal without a hearing where the FWC considers a matter can be adequately determined without oral evidence and submissions, provided it has taken into account the view of the persons who would otherwise make submissions as to whether the appeal should be heard on that basis.

1.110 The committee notes that this engages and may limit the right to a fair hearing and considers that it is not clear whether this proposed amendment would unduly limit the right of an individual to a public hearing in the determination of their rights in a suit at law.

1.111 In order to form a concluded view of the human rights implications of this measure, the committee seeks the minister's advice as to the matters set out at paragraph [1.108].

[4] Schedule 5, Part 7, item 46, proposed section 324B. The penalty for an offence relating to underpayments is 4 years or 5,000 penalty units for individuals. A person convicted of this dishonesty offence would be automatically disqualified from managing corporations: Corporations Act 2001, section 206B(1)(b)(ii).

[5] Schedule 3, Part 5, item 39. A sham contracting arrangement refers to a situation where an employer misrepresents an employment relationship as an independent contracting arrangement, often for the purpose of avoiding responsibility for employee entitlements. See Fair Work Act 2009, sections 357–359.

[6] International Covenant on Economic, Social and Cultural Rights, articles 6–7; UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016).

[7] See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

[8] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [10].

[9] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [2].

[10] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [24]. Additionally, article 4 of the International Labour Organization (ILO) Convention No. 26 requires States to take the necessary measures 'to ensure that the employers and workers concerned are informed of the minimum rates of wages in force'. States also have an obligation under article 5 of the ILO Convention No. 131 to take appropriate measure to protect the minimum wage.

[13] Schedule 2, Part 1, item 5, proposed subsections 168Q(2)–(4). Proposed subsection 168Q(3) specifies the circumstances where overtime is still payable in respect of additional hours worked.

[14] Schedule 2, Part 1, item 5, proposed subsection 168M(1). Proposed sections 168N and 168P sets out the conditions that must be met for the simplified additional hours agreement to have effect.

[15] Schedule 2, Part 1, item 5, proposed subsection 168M(2). Section 344 of the Fair Work Act 2009 also prohibits an employer from exerting undue influence or pressure on the employee in relation to a decision to enter into, or not enter into, an agreement, including an additional hours agreement (proposed section 168T).

[16] Schedule 2, Part 1, item 5, proposed subsection 168M(6). Proposed subsection 168P(3) states that a simplified additional hours agreement has no effect to the extent that it is inconsistent with a provision of the relevant identified modern award that (a) limits the maximum number of consecutive days that the employee may be required to work or that requires the employee not to work on a day; and (b) that cannot be varied or avoided by any agreement or arrangement between the employer and employee.

[17] Statement of compatibility, p. cviii; ILO Convention No. 122, article 1(1).

[19] International Covenant on Economic, Social and Cultural Rights, article 6. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].

[21] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [37].

[22] UN Committee on Economic, Social and Cultural Rights, Concluding observations on the second and third periodic reports of Paraguay, E/C.12/PRY/CO/3 (2008) [15]; UN Committee on Economic, Social and Cultural Rights, Concluding observations on the third periodic report of the United Kingdom of Great Britain and Northern Ireland (Hong Kong), E/C.12/1/Add.10 6 (1996) [21].

[23] UN Committee on Economic, Social and Cultural Rights, General Comment No. 3: The nature of States parties obligations (Art. 2, par. 1) (1990) [9]. The obligation to progressively realise the rights recognised in the ICESCR imposes an obligation on States to move 'as expeditiously and effectively as possible' towards the goal of full realisation of those rights.

[26] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights. Articles 1–4 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women further describe the content of these obligations, including the specific elements that States parties are required to take into account to ensure the rights to equality for women.

[27] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).

[28] Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.

[29] UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Sweden, E/C.12/SWE/CO/5 (2008) [18]; UN Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Sweden, E/C.12/SWE/CO/6 (2016) [25]–[26].

[30] UN Committee on Economic, Social and Cultural Rights, Concluding observations on the fifth periodic report of Sweden, E/C.12/SWE/CO/5 (2008) [18]; UN Committee on Economic, Social and Cultural Rights, Concluding observations on the sixth periodic report of Sweden, E/C.12/SWE/CO/6 (2016) [25]–[26].

[32] D.H. and Others v the Czech Republic, European Court of Human Rights (Grand Chamber), Application no. 57325/00 (2007) [49]; Hoogendijk v the Netherlands, European Court of Human Rights, Application no. 58641/00 (2005).

[33] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].

[34] Statement of compatibility, p. cviii; ILO Convention No. 122, article 1(1).

[38] Section 144 of the Fair Work Act 2009 requires that modern awards contain a flexibility term which allows an employer and employee to agree to vary the application of modern award terms with respect to overtime and ordinary hours in order to meet the genuine needs of the employee and employer via an individual flexibility agreement.

[41] Schedule 2, Part 2, item 8, proposed section 168T; Statement of compatibility, p. cvii.

[45] See, Wintle v RUC Cementation Mining Contractors Pty Ltd (No. 2) [2012] FMCA 459 [37].

[47] This issue was considered by the Victorian Law Reform Commission. See, Workplace Privacy: Final Report (October 2005), chapter 3. The bargaining relationship between employer and employee has also been considered extensively in academic and legal scholarship. See, for example, Aditi Bagchi, ‘The Myth of Equality in the Employment Relation’, Michigan State Law Review (2009), pp. 579–628; and Australian Institute of Employment Rights, Collective Bargaining: Delivering for the public interest? (2018), p. 9.

[49] The specified awards being: the Business Equipment Award 2020; the Commercial Sales Award 2020; the Fast Food Industry Award 2010; the General Retail Industry Award 2020; the Hospitality Industry (General) Award 2020; the Meat Industry Award 2020; the Nursery Award 2020; the Pharmacy Industry Award 2020; the Restaurant Industry Award 2020; the Registered and Licensed Clubs Award 2010; the Seafood Processing Award 2020; and the Vehicle Repair, Services and Retail Award 2020.

[52] UN Committee on Economic, Social and Cultural Rights, General Comment 13: the right to education (1999) [45].

[56] Schedule 2, Part 2, item 8, proposed section 789GZL. Subsection 789GZL(2) provides that the employer is not required to consult with the employee in relation to a subsequent direction if consultation occurred in relation to the first direction and during that consultation, the employee expressed their views and the employer considered the employee's views.

[57] Schedule 2, Part 2, item 8, proposed sections 789GZD and 789GZF. The identified modern awards are those specified in proposed subsection 168M(3), including 12 identified modern awards in the accommodation and food services and retail trade industries, as well as any other awards prescribed by regulations.

[58] Schedule 2, Part 2, item 8, proposed subsection 789GZI(3) and Part 3, item 10.

[59] International Covenant on Economic, Social and Cultural Rights, articles 6 and 7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].

[64] The second reading speech notes that this measure adapts specific elements of the COVID-19 JobKeeper flexibilities: Attorney-General and Minister for Industrial Relations, the Hon Christian Porter MP, Second Reading Speech on the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Bill 2020, 9 December 2020, pp. 4–5. However, unlike the JobKeeper directions, the employer does not have to meet a 'decline in turnover' test in order to issue a flexible working direction: see Fair Work Act 2009, Part 6–4C.

[73] Schedule 2, Part 2, item 8, proposed section 789GZJ: the note in this proposed section states that a 'direction may be unreasonable depending on the impact of the direction on any caring responsibilities the employee may have'.

[74] UN Committee on Economic, Social and Cultural Rights, General Comment 13: the right to education (1999) [45].

[75] See Fair Work Act 2009, section 193. In applying the BOOT, the FWC currently considers the proposed terms of the agreement and the terms of the relevant modern award and makes an assessment as to whether employees would be better off overall under the agreement than the relevant award. An agreement passes the BOOT if the FWC is satisfied that employees would be better off overall under the agreement than the relevant award.

[79] Schedule 6, item 2. Under the current law, the FWC must not vary or revoke decisions that deal with enterprise agreements or workplace determinations: Fair Work Act 2009, subsection 603(3)(b) and (c).

[83] International Covenant on Economic, Social and Cultural Rights, article 7. See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

[87] The Convention concerning Freedom of Association and Protection of the Right to Organize (ILO Convention No. 87) is expressly referred to in article 22(3) of the International Covenant on Civil and Political Rights and article 8(3) of the International Covenant on Economic, Social and Cultural Rights.

[88] Regarding the rights of freedom of association and of trade unions to freely function, the ILO Freedom of Association Committee has noted: in the context of 'ban[s] on third party intervention in the settlement of disputes...that such an exclusion constitutes a serious restriction on the free functioning of trade unions, since it deprives them of assistance from advisers': Freedom of Association: Compilation of decisions of the Committee of Freedom of Association (6^th ed, 2018) [1403].

[89] See, UN Committee on Economic Social and Cultural Rights (UNCESCR), Concluding Observations on Australia, E/C.12/AUS/CO/5 (2017) [29]-[30]. The Committee has raised concerns 'about the existence of legal restrictions to the exercise of trade union rights, including in the Fair Work Amendment Act of 2015, the Code for the Tendering and Performance of Building Work 2016, and The Building and Construction Industry (Improving Productivity) Act 2016'.

[90] International Covenant on Civil and Political Rights, article 22(3); and International Covenant on Economic, Social and Cultural Rights, article 8(3).

[96] Fair Work Act 2009, subsection 189(2). Subsection 189(3) provides that 'an example of a case in which the FWC may be satisfied of the matter referred to in subsection (2) is where the agreement is part of a reasonable strategy to deal with a short‑term crisis in, and to assist in the revival of, the enterprise of an employer covered by the agreement'.

[98] Statement of compatibility, p. cviii. Fair Work Commission (previously Fair Work Australia) jurisprudence on the concept 'contrary to the public interest' (under current subsection 189(2) of the Fair Work Act 2009) may offer some guidance as to how proposed subsection 189(1A)(b) may be interpreted in practice. Fair Work Australia has held that the expression 'in the public interest' 'is to be determined by making a discretionary value judgement on the relevant facts, constrained only by the subject matter and the scope and purpose of the legislation...The public interest is distinct from the views of persons directly affected and refers to matters that might affect the public as a whole': Re Top End Consulting Pty Ltd [2010] FWA 6442 (24 August 2010) [44]–[46]. See also Re Kellogg Brown and Root Bass Strait (Esso) Onshore/Offshore Facilities Certified Agreement 2000 (2005) 139 IR 34 [23]: Public interest considerations include 'matters that might affect the public as a whole such as the achievement or otherwise of various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards', and Re Agnew Legal Pty Ltd [2012] FWA 10861 (24 December 2012) [12].

[101] Statement of compatibility, p. cx. Section 577 of the Fair Work Act 2009 provides that the FWC must perform its functions and exercise its powers in a manner that: is fair and just; quick, informal and avoids unnecessary technicalities; is open and transparent; and promotes harmonious and cooperative workplace relations. Section 578 of the Fair Work Act 2009 specifies matters that the FWC must take into account in performing its functions or exercising powers, including: the objects of the Act; equity, good conscience and the merits of the matter; and the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of various protected attributes.

[103] On 23 February 2021, the House of Representatives agreed to various amendments to the bill in order to remove the proposed amendments to the BOOT provisions. In particular, the subsequent amendments proposed to omit Schedule 3, items 17–23 and 27–31 and Schedule 7, item 1.

[106] International Covenant on Economic, Social and Cultural Rights, article 7. See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

[109] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [1].

[110] UN Committee on Economic Social and Cultural Rights, Concluding Observations on Australia, E/C.12/AUS/CO/5 (2017) [29]-[30]: 'The Committee is also concerned that the right to strike remains constrained in the State party (art. 8). The Committee recommends that the State party bring its legislation on trade union rights into line with article 8 of the Covenant and with the provisions of the relevant International Labour Organization (ILO) Conventions (nos. 87 and 98), particularly by removing penalties, including six months of incarceration, for industrial action, or the secret ballot requirements for workers who wish to take industrial action'. See, also, UN Committee on Economic Social and Cultural Rights, Concluding Observations on Australia, E/C.12/AUS/CO/4 (2009) 5; Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia, ILO Committee of Experts on the Adoption of Conventions and Recommendations (CEACR), adopted 2013,published 103^rd ILC session (2014); Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia, ILO CEACR, adopted 2011, published 101^st ILC session (2012); Observation Concerning Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) – Australia, ILO CEACR, adopted 2009, published 99^th ILC session (2010); Observation Concerning the Right to Organise and Collective Bargain Convention, 1949, (No.98) – Australia, ILO CEACR, adopted 2009, published 99^th ILC session (2010).

[115] UN Committee on Economic, Social and Cultural Rights, General Comment No. 23: on the right to just and favourable conditions of work (2016) [1].

[116] Fair Work Act 2009, section 182(4): The agreement is taken to have been made if there has been a notified negotiation period for the agreement; that period has ended; the employer gave each employee organisation that was a bargaining representative a reasonable opportunity to sign the agreement; and the employer applied to the FWC for approval of the agreement.

[119] See UN Human Rights Committee, General Comment 32: Article 14, Right to Equality before Courts and Tribunals and to Fair Trial (2007) [18].

[121] See, Axen v Germany, European Court of Human Rights, Application No. 8273/78 (1984)

[122] See, Miller v Sweden, European Court of Human Rights, Application No. 55853/00 (2005) [30].

Australian Parliamentary Joint Committee on Human Rights