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Joint Standing Committee on Treaties
Treaties tabled on 12 March 2013
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Joint Standing Committee on Treaties
CHAIR (Mr Marles)
Stone, Dr Sharman, MP
Fawcett, Sen David
Ferguson, Laurie, MP
Smith, Sen Dean
McKenzie, Sen Bridget
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Joint Standing Committee on Treaties
(Joint-Monday, 13 May 2013)
Mr LAURIE FERGUSON
CHAIR (Mr Marles)
- Mr Mammone
Content WindowJoint Standing Committee on Treaties - 13/05/2013 - Treaties tabled on 12 March 2013
ANDERSON, Mr Peter, Chief Executive, Australian Chamber of Commerce and Industry
MAMMONE, Mr Daniel, Director, Workplace Policy and Director of Legal Affairs, Australian Chamber of Commerce and Industry
Committee met at 09:17
Labour Inspection (Agriculture) Convention, 1969
Minimum Age Convention, 1973
Evidence from Mr Mammone was taken via teleconference—
CHAIR ( Mr Marles ): I declare open this public hearing of the Joint Standing Committee on Treaties. We are taking evidence in relation to the proposed ILO convention No.129: Convention concerning Labour Inspection in Agriculture; and the ILO convention No. 138: Convention concerning Minimum Age for Admission to Employment.
I welcome representatives from the Australian Chamber of Commerce and Industry, Mr Peter Anderson and Mr Daniel Mammone. As I understand it, Peter, you are just giving evidence in relation to No. 138?
Mr Anderson : Yes, that's right.
CHAIR: Okay. So I welcome you here today. As veterans of these inquiries, you will have heard this spiel many times before. The committee does not require you to give evidence under oath but this is a formal proceeding of the Australian parliament and warrants the same respect as proceedings of the House and the Senate. The giving of false or misleading evidence is a serious matter and can be regarded as a contempt of the parliament.
If questions come up during your evidence which require you to give a response in writing, it would be great if we could get that within a week. With that introductory set of comments, would you like to make some introductory remarks.
Mr Anderson : Thank you very much, Chair, Senators and Members, for inviting the Australian Chamber of Commerce and Industry along. We have a very close and deep association with the work of the International Labour Organisation. As a number of you would be aware, I am a member of the ILO's governing body—an elected representative of employers from the Asian region. We are also a primary member of the Australian government's consultative processes on international labour matters, through a subset of the National Workplace Relations Consultative Council. That subset is called the International Labour Advisory Committee, a tripartite structure which we are involved in.
The evidence that we will give today does concern purely convention No. 138. Our proposition to you, in our submission, is that it is not in the Australian national interest to ratify convention No. 138. I say that, to a certain degree, with a heavy heart, given the way in which we work as an organisation, as a representative of employers, in the forums of the International Labour Organisation; and also recognising that it is one of the ILO's fundamental conventions. So it is an important issue.
I can also say that, even though we think that there is a haste in the government bringing this matter before the parliament for ratification, it is not an area where I am critical of the government's absence of consultation—this is a matter that has been discussed amongst ourselves, the ACTU and the government over a couple of years. Our reasons for opposing ratification are understood by the government, and the department has been more than reasonable in discussing those matters with us, as has the ACTU and its senior officers. But our reasons for opposing ratification are very clear.
I will start my remarks by saying that there is one good reason why Australia would ratify—and only really one good reason, in my view—and that is as an act of solidarity with the International Labour Organisation to attempt to put pressure on other nations to improve their practices with respect to child labour. There is some merit in an argument that says a country would ratify a convention, even though they may not need to do so, in order to act as measure of international solidarity on an important issue. But that really is the high-water mark of the proposition from our point of view, because there are half a dozen very substantial other reasons why the convention ought not be ratified. And the balance of interest, in our view, clearly is against ratification.
I will very briefly mention our reasons, which are very similar to the reasons why the Hawke government did not ratify the convention, the Keating government did not, the Howard government did not and the early years of the Rudd government did not. The reasons are, firstly, that we do not have any structural child labour problem in Australia that would warrant international action of this type.
Secondly, the convention, in its structure, as a legislative instrument, does not fit neatly with the way that Australia regulates the issue of employment of persons under the age of 18 years. I will expand on that proposition in a moment, because I think that is at the heart of what you need to think about as a committee in your advice and recommendations to the parliament.
Thirdly, we cannot be confident that Australia would in all respects be in compliance with this convention, substantially and certainly not procedurally.
Fourthly, we would be subjecting ourselves to international supervision where we do not need to do so and where potential damage to reputations would arise if we were found to be in breach, either technically or substantively, with the convention.
Fifthly, the impact of the processes of the International Labour Organisation's supervisory bodies—that is, the bodies that assess compliance with conventions—are in a state of flux, in the sense that there is a continuing body of jurisprudence built up inside the International Labour Organisation which can create quite unintended interpretations to conventions once they are ratified; and we need to be fully aware of that risk because, once you ratify, you subject yourself not just to compliance with a convention as we would understand it to be but to compliance and international rulings as the external bodies interpret them over time. They can be living and moving interpretations.
My core point is that we in Australia do not regulate child employment—that is, employment of persons under the age of 18—by passing laws that prohibit employment or only allow employment in certain limited circumstances. That is what this convention does. That is the style of regulation of this convention. In Australia we do this through the education acts of the states, by and large. We do it by passing laws which say that below a particular age a person, a child, ought to be in full-time education and is required to be in full-time education. The unsaid proposition from that is that once you are above a certain minimum education age you as a child are entitled to continue in education or be in employment, or a combination thereof, or otherwise be dependent on family or your own means.
Australia approaches this issue from a different starting proposition, and it means there is always going to be tension between a legislative instrument internationally which says that employment of a person under the age of 18 is prohibited unless it falls into certain specified categories of exemption, and the that way we do this, which is effectively to say that education to a certain age is mandatory and, beyond that, there is no prohibition on employment. So, employment arrangements in Australia, particularly between the ages of 15 and 18, are going to be the subject of assessment under the terms of this convention. Each of those arrangements—every one of them—will need to fall within the exemptions and exclusions that the convention contemplates, in order for those employment arrangements to be in compliance. Those exemptions and exclusions are, firstly, based on a convention that is pretty old. It is a 1976 convention, so it is not particularly up to date. Just look at the terms of it. It talks about employment that may offend the morals of a young person. We would not necessarily pass laws in this day and age that talk in that type of language.
Secondly—to my point about unintended interpretations—it is not a flippant point for me to come to this committee and say that there is a real prospect of unintended interpretations, because only in the last 10 or 15 years now have we as a country had to defend ourselves in the International Labour Organization against unintended interpretations of other conventions, such as the forced labour convention, when, as a result of the privatisation of prisons by some state governments, particularly the Victorian government, we all of a sudden found ourselves in a position where, completely to the surprise of the national government and the state governments of the country, the International Labour Organization was ruling that work by prisoners in prison laundries in a privatised prison was forced labour, in contravention of the terms of the forced labour convention. No-one had expected or intended that and yet we had to stand up and defend Australia as being a country that was employing forced labour.
This is the type of very technical interpretation that can be applied that affects reputations. I am particularly concerned about not just our national reputation but also the reputation of a business that may employ a 16-year-old student in a vocational placement or for after-school work, or something like that, and, even if ultimately the international tribunal does not find that to be in breach of the convention, the mere fact that there is an international complaint brought alleging that that business is employing people as child labour in breach of an international convention carries a stigma, and that is a very difficult thing to erase. So—and I know we have only a short time—that is the essence of the argument and the discussion we have had with our union colleagues and our government colleagues over a number of years and is essentially why, with our education act structure, past governments have not taken the decision that the current government has now taken.
CHAIR: Thank you. I might start the batting. I understand that proposition being put forward. I guess I have two questions. One is that there seems to me to be two types of under-18 employment in the context of this convention: the paperboy who has a holiday job and is still attending school—does that gets caught?—and the person who has left school in year 10 and is not wanting to pursue further study and has gone into the workforce but who is 16 or could even be 15—is that category of employment caught by the convention? But the fundamental question I really want to ask you is: do you feel that the potential breaches that exist in Australia are technical in nature, in the sense that you just described with that other convention? Or do you think what the convention is seeking to do is stop practices we engage in of the kind I have just described? I understand that there are exemptions, and a lot of this is going to turn on whether the exemptions cover our practices. But do you think fundamentally this convention does not want us to behave in a way that we currently behave?
Mr Anderson : There are two aspects to the convention's regulation. One is the substantive regulation of the character of employment, and the other is some process and procedural requirements about the consultations required with industry and trade unions before those forms of employment should or can be permitted in a country. I think some of the vocational placements in Australia, particularly when we are starting to deal with state governments and some state government vocational training systems, will be at real risk of breaches of the procedural aspects of this convention if state governments have not materially and substantially involved the trade union movement in the development of those vocational placement frameworks. There are mandatory obligations in this convention that industry and trade unions must be consulted in respect of vocational employment arrangements.
On the substantive side to the examples you gave, I do not think the convention is intended to call into question our known employment arrangements for persons under the age of 18. As I said at the outset, we do not have a structural problem with child labour. Short of extreme examples that are hidden deep in the shadows of Australian industry, where you may have a person under the age of 18 working as a sex worker in a dark corner of the country, this convention is not directed at trying to call into question what we would see as mainstream practices. That is why I say in our submission that 95 per cent of the arrangements we would employ are not problematic. The difficulty is that we do—and will need to as a country—put in place, and increasingly so, arrangements that will be non-standard for people in vulnerable circumstances, such as Indigenous young people who have dropped out of schooling or people subject to drug addictions, to try to get them back in the workplace. And they are 15 or 16 years old. We will have forms of engagement that are completely non-standard and will attempt to put them into work in order to create a stronger sort of social structure for them. And subjective questions then emerge about whether or not that is putting them at any health or safety risks.
CHAIR: Yes, I get that. Is there anywhere in the other seven core conventions where we rely on exemptions? The reason I ask that question is that you said very appropriately, I thought, at the outset that you oppose this with a heavy heart and the reason one would support this is as an act of solidarity. Presumably that is at least in part what we do in relation to the other seven. Are we saying that dealing with exemptions is something we do not have to worry about in those?
Mr Anderson : The other seven work much more comfortably because the way in which they set rules is very similar to the way our legislation sets rules. So, minimum standards in respect of certain matters; we set minimum standards on certain matters. But here this a convention that says: you are prohibited as a country from employing a person under the age of 18. That is the starting proposition to article 1 right at the top.
Mr Mammone : I would just add to that, Peter, if I may. That also covers, Chair, all forms of work—that means paid and unpaid. The convention does not talk in the language of a contract for service or a contract of service. It covers the spectrum in supervisory committees and in examining country's compliance with the convention. It has reiterated that point and we have referred to it in our submission.
Mr Anderson : We see a situation there where this convention's architecture is a square peg in a round hole in terms of the way we regulate, whereas the other seven conventions do not have architecture. There are some exemptions and exclusions in some of them, but the essential architecture of those conventions is much more compatible with the Australian law and practice.
Mr Mammone : To follow up the previous question about reliance on exemptions, through our knowledge and our research on this particular convention, article 4 is being heavily relied upon by the Australian government to effectively attempt to comply with the technical aspects of the convention. Article 4 allows member states to exclude limited categories of work where there are, 'special and substantial problems of application'. This heavy reliance on article 4 does not seem to have been in our analysis of the other conventions that have been ratified. It appears to be a very different way about going to ratify this particular convention.
Mr Anderson : That was one of the reasons the Clark government in New Zealand did not ratify this convention. They have very similar reasons. They apply their laws in an architecture similar to what we do.
Dr STONE: You have been fairly compelling in your argument about what how we are different in terms of application of various laws and regulations to ensure that there is not child labour exploitation in Australia. Is there any move on the part of countries like us—you just mentioned New Zealand—to reform this 1976 convention? Are we going to in any way be less able to participate in that debate if we take this stand?
Mr Anderson : I do not think it would reduce our capability of dealing with the debate, but it is a major issue for the ILO to bring about a substantive review of a convention like this, particularly one of its fundamental conventions. Over a number of years we, employers, and governments including the Australian government, have supported processes where outdated conventions have been assessed and some have been altered, but they have tended to be conventions which are completely outdated. The ILO will not say that this convention is outdated; it is one of its fundamental conventions. It would be, I think, a long time on the horizon before we would have the substantive debate in the ILO on the structure of this convention. Certainly, I can say that there is nothing on the horizon at the moment that gives us any confidence that the ILO would in the medium term even be looking to review the architecture of this convention.
Dr STONE: It is not only architecture, but it is actually intent or the application.
Mr Anderson : The application is only subject to review by the supervisory bodies dealing, firstly, with complaints and, secondly, by supervisory bodies assessing government reports on their asserted compliance.
Dr STONE: You used the word 'haste' at the beginning of your remarks and said that the government appears to be acting in some haste to have this considered. Why is that? What is your view of why this government would be wanting to hasten the resolution of this business?
Mr Anderson : This is an area where for the last couple of years there has been discussion and contest between ourselves, the government, and the ACTU as to whether verification ought to be made. The government, in my view, is moving in a way that would bring about ratification inside the life of this parliament. That is clearly what is happening and government has the right to do so but it is doing so in the absence of a consensus amongst the tripartite stakeholders and in circumstances where these decisions also affect state governments very materially. While state governments would understandably say, and want to say, 'Our laws and practices are in compliance,' no state government is going to put their hand up and say, 'Sorry, we are breaching the ILO child labour convention.'
The reality is that they, by and large, have not been jumping out of their skins calling on the Commonwealth to ratify. So it looks like something that has come from within the Commonwealth.
Senator FAWCETT: You talked about the dangers of unintended consequences down the track if people interpret things differently. If that were to occur and Australia had ratified it, can we withdraw from, in this case, 138?
Mr Anderson : Yes, a country can put in place processes to renounce the ratification of a convention. That is a matter of very public note and would be a matter of public controversy. I think an Australian government renouncing an international convention on child labour would bring about a substantial stigma on that government. Irrespective of the merit of reasons, it just would not be space to which a government would easily want to go.
Senator FAWCETT: Sure. In 1976, when 138 was formed, was that in response to the perceptions of structural problems in a raft of nations around the world, such as that it was addressing a very real need? If we do not have a structural problem and this is seeking to apply a fairly heavy-handed approach, are its origins trying to address the need in many other countries and it is not really applicable to us?
Mr Anderson : It was never directed at a country like Australia. We were never put on the stand as it were, having our labour practices questioned. This was very much directed even a generation or two ago at those countries where there is—and was and remains—serious incidents of forced labour.
Senator FAWCETT: That was my question. Of those countries it was directed to, have we seen tangible improvements in the area of child labour?
Mr Anderson : We could on about that for a long time. There have been some structural improvements in some countries but the problems continue to be deep in those nations. They have large informal economies where child labour is present. To give you a flavour of how these things work, a number of the governments of those countries—let's say in India and some African nations—will ratify conventions like these, knowing that they are not in compliance. They will ratify in an endeavour to signal to the international community, 'We as a government are concerned about practices in our country and we want the international community to help us do something about it.' They will ratify using a completely different base to what we have in Australia. They will ratify knowing they are not in compliance but as an act to try and say, 'We have an aspiration that one day we will not have child labour in our country.'
Australia's approach—and it is the right approach for a country like Australia—is to say, 'We will not ratify international treaties unless our national interest assessment tells us that our law and practice is in compliance,' because we take a failure to be in compliance with our international obligations as a failure of our national standing. We have a different set of threshold tests that we use for international treaty ratification.
Senator FAWCETT: There are school based apprenticeships, traditional trade apprenticeships, and even volunteer roles, for example, where children help out working in a charity sorting stuff for Vinnies or whatever in their space time perhaps through a church or Scouts doing jobs for raising funds. How broad is the reach of this?
Mr Anderson : I think, as Mr Mammone said, the reach is very broad, particularly given that the supervisory bodies—and I am a member of one of the supervisory bodies of the ILO; I am the global spokesperson in the freedom of association committee that does not deal with this convention but deals with others—do not narrowly interpret their conventions for understandable reasons. The concepts of work and worker are not just employed persons but people in a range of self-employment arrangements, family work arrangements and, whilst the exemptions in this convention try to deal with some of those circumstances, this is not just a convention about age—and I really want to emphasise this. It is called the minimum age convention, because it says that you cannot employ people under the age of eighteen. That is where age comes in. Then the articles deal with certain ages under the age of eighteen where employment can occur if certain factors are present, and those certain factors are qualitative issues, whether work affects the safety of an individual, whether work affects the morals of an individual, and whether work compromises education of an individual. You also have to look at qualitative issues. What is the working environment? What are the working arrangements? What are the working hours? What are the working facilities? So, yes, this convention involves some subjective assessments which are much broader than the convention on the face of it would be.
Mr LAURIE FERGUSON: I have understood what you have said about the tradition of Australia regulating this through the education system, and we also understand that, if intervention by the ILO was to have very wide interpretations, they are logical arguments. I would assume that not every Western developed country has got a system that is so in line with the ILO that they have no difficulties themselves, and they are opening themselves up to ILO intervention and wide interpretations. What is the status of ratification in the western world?
Mr Anderson : It is divided is the answer, and I think that most of the industrialised countries have argued to the ILO over the years that this convention needs to be restructured to make it easy for ratification because we, Canada and New Zealand do not like the fact that we are not in a position to be able to ratify, or easily ratify, a fundamental convention of the ILO. It is not a good look—and that is why I made my opening remark. It is actually quite regrettable that we have to oppose this ratification. So the practices of the industrialised countries are divided.
Mr LAURIE FERGUSON: Can you give me some sense of that?
Mr Anderson : Australia, New Zealand, Canada—Mr Mammone might have some other examples of the countries that have been prominent in the discussions.
Mr Mammone : The US.
Mr Anderson : The US has not ratified this convention.
CHAIR: Any European countries?
Mr Anderson : European countries more so have ratified this convention
CHAIR: Britain, do you know?
Mr Mammone : I would have to take it on notice without misleading, but I understand that they have.
Mr LAURIE FERGUSON: They have. You have said that Australia, as opposed to, say, India and the developing world, ratifies these for different purposes. I am just wondering, despite that analysis, which I accept, how worried we should really be if this foreshadowed possible wide interpretation, very strictly intervening and criticising this country, which if it is true could be correct. Are you saying that the supervisory activity of the ILO in a sense has been captured by Third World nations that come down on Australia and the Western world? If it is going to be that wide India, Pakistan, Bangladesh are certainly going to be under the international spotlight if it is so damning and so interventionist that Australia would worry.
Mr Anderson : It is a good question and, as I said, I am a member of the supervisory mechanism, so I am very familiar with this. It is in the interests of the ILO for its supervisory bodies to apply a reasonable but nonetheless wide interpretation to the conventions so that the conventions can pick up unacceptable practices as they emerge. The ILO wants its legal instruments to be adaptable and agile to unacceptable labour practices but, in those developing countries where they still have child labour problems, the ILO's interpretations are not made in the context of expecting governments to be able to flick their fingers, change their practices and remedy their practices immediately. They are made for the purposes of working with those governments on a process or to try and bring about better practices.
Mr LAURIE FERGUSON: I understand.
Mr Anderson : That is the difficulty.
Senator SMITH: Given that international experience and exposure, do you think non-ratification of this treaty in any way undermines Australia's ability to address labour rights issues more generally or child labour issues specifically throughout the South-East Asian region?
Mr Anderson : Yes, that is a good question. My answer to that is: no, it does not. As I said, I have been a senior member of the work of the ILO now for a decade—and a bit more—and I have not found any impediment to the work of Australia, either at a government level or as a social partner in the work of the ILO as industry, in being able to work with other governments and the ILO and its officers on eliminating child labour. In fact, we have done a number of pieces of work over recent years on the elimination of 'the worst forms of child labour'. Australia has been a party to that, and our absence of ratification has not inhibited that. Whilst the ILO officers and other governments—those that have ratified—would like Australia to ratify this, they understand that there are some issues with our domestic legal structure which give rise to the fact that Australia has not.
Senator SMITH: Thank you.
Senator McKENZIE: My question goes to the conversation that is being had with the state governments. In comments around our consultation, Victoria raised no formal objection to signing up to the convention but is waiting on more formal advice. Can you comment more broadly about the conversation that is being had and the perspectives of our state governments around this?
Mr Anderson : I can obviously only advise you and inform you in my evidence on what we know. We know that, by and large, what has been advised to us by the department—by the Australian government—is that the states have not indicated opposition, although we understand some of them are taking some further advice on compliance. An indication of the absence of opposition does not mean active support and argument in favour of ratification. I think I would make that point.
Secondly, what a state government responds to in this respect is very much dependent on the question that is asked of the state governments: do you believe that you employ people and your law and practice is in compliance with the convention? If a state has not fully appreciated the dimensions of the convention then it may be answering the question in the affirmative without fully examining its procedural as well as substantive arrangements for compliance with the convention. My own view is that the states have looked at this in a way that creates a broad sweep of whether or not we think we are in compliance based on what we know without getting the full body of advice that they might need in order to assess whether, on the margins of either their practices or employment arrangements, they could be in some breach.
I think there is absolutely no doubt that, if we ratify this convention, the ILO will want to work with Australia to progressively change the way our legislative systems deal with the employment of people under the age of 18 to prevent the 'square peg in the round hole' tension and to start to try to get more compatibility in our structure. That is a matter which will go to the heart of whether the states are prepared to change their education acts, and I am not sure that any state has put its hand up for that.
Senator McKENZIE: Thank you.
CHAIR: As there are no further questions, thank you very much, Peter and David, for providing evidence today. If other questions arise from members of the committee, we would appreciate the opportunity to follow up with you with those, but we very much thank you for providing your evidence today.
Mr Anderson : Thank you for your time.