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Published online by Cambridge University Press: 24 January 2025
The use of public procurement as a vehicle for achieving public policy objectives can conveniently be traced to the Fair Wages Resolution which was adopted by the British House of Commons in 1891. This technique was subsequently adopted in many jurisdictions, and finds clear expression in the International Labour Organisation (‘ILO’)'s Labour Clauses (Public Contracts) Convention 1949 (No 94) (‘Convention No 94’). This article describes the British model and its international progeny, and then examines a controversial and unusual Australian mutation in the form of the National Code of Practice for the Construction Industry (‘Code’) and the various iterations of the associated Implementation Guidelines (‘Guidelines’) which have been adopted since 1998. It suggests that the Code and Guidelines, especially under the Howard Government, constitute a perversion of the traditional use of public procurement as a vehicle for the implementation of public policy in the industrial context. That is because they were directed to the curtailment of the rights of workers and their organisations rather than protecting employment standards and promoting collective bargaining. The article argues that the Code and Guidelines sit uneasily with accepted notions of the rule of law in a number of respects, and with certain aspects of Australia's obligations in international law. It also discusses the Fair Work Principles (‘FW Principles’) which have applied to all aspects of procurement by the Commonwealth since January 2010, and suggests that they embody an approach to public procurement and the promotion of social objectives which is rather more in keeping with international best practice than that reflected in the Construction Industry Code and Guidelines.
The author wishes to thank the Review's anonymous referees for their helpful comments on an earlier version of this article. He, of course, retains full responsibility for the end-result.
1 Convention (No 94) Concerning Labour Clauses in Public Contracts, opened for signature 29 June 1961, 183 UNTS 208 (entered into force 20 September 1952) ('Convention No 94’).
2 Of course Work Choices had application beyond the construction industry, but it had a particular impact in that industry — especially in relation to right of entry by union officials, unprotected industrial action and coercive behaviour. For more detailed discussion of both the BCII Act and Work Choices as they applied to the construction industry, see Anthony, Forsyth et al, Workplace Relations in the Building and Construction Industry (Butterworths LexisNexis, 2007)Google Scholar. See also Breen, Creighton and Andrew, Stewart, Labour Law (5th ed, Federation Press, 2010)Google Scholar ch 24.
3 Colin, Turpin, Government Contracts (Penguin, 1972) 254Google Scholar.
4 First Report from the Select Committee of the House of Lords on the Sweating System, Parliamentary Papers 1888, No 361.
5 United Kingdom, Parliamentary Debates, House of Commons, 13 February 1891, vol 350, col 647. On the origins of the 1891 Resolution, see Christopher, McCrudden, Buying Social Justice: Equality, Government Procurement, and Legal Change (Oxford University Press, 2007) 42–9Google Scholar. For an assessment its efficacy, see B, Bercusson, Fair Wages Resolutions (Mansell, 1978)Google Scholar ch 5.
6 United Kingdom, Parliamentary Debates, House of Commons, 10 March 1909, vol 2, cols 415–58. For detailed analysis of the 1909 Resolution, see Bercusson, above n 5, chs 6–10.
7 United Kingdom, Parliamentary Debates House of Commons, 14 October 1946, vol 427, cols 619–718. For detailed analysis of the background to, and requirements of, the 1946 Resolution, see O, Kahn-Freund, ‘Legislation Through Adjudication: The Legal Aspect of Fair Wages Clauses and Recognised Conditions’ (Pt 1) (1948) 11 Modern Law Review 269Google Scholar; O, Kahn-Freund, ‘Legislation Through Adjudication: The Legal Aspect of Fair Wages Clauses and Recognised Conditions’ (Pt 2) (1948) 11 Modern Law Review 429Google Scholar.
8 In practice, complaints were invariably referred to the Industrial Court, established under the Industrial Courts Act 1919 (Cth). This tribunal was subsequently reconstituted as the Industrial Arbitration Board and (after 1975) the Central Arbitration Committee.
9 Bercusson, above n 5, 358. In contrast, the United States of America did adopt legislative provision that was to essentially the same effect as the Fair Wages Resolutions. The first such measure was the Davis-Bacon Act 1931, which required contractors on federal construction projects to pay the local ‘prevailing wage'. The second measure, the Public Contracts Act 1936 (the Walsh–Healey Act), was of more general application. See further McCrudden, above n 5, 40–2; Herbert, C Morton, Public Contracts and Private Wages: Experience under the Walsh-Healey Act (Brookings Institute, 1965)Google Scholar.
10 Brian, Doyle, ‘Legal Regulation of Collective Bargaining’ in Roy, Lewis (ed), Labour Law in Britain (Blackwell, 1986) 109, 120Google Scholar. See also P B, Beaumont, ‘The Use of Fair Wages Clauses in Government Contracts in Britain’ (1977) 28 Labor Law Journal 147Google Scholar.
11 Turpin (above n 3, 267) suggests that in doctrinal terms the fair wages clause was neither a ‘condition’ nor a ‘warranty'. This meant that the question of whether a breach merited rescission would depend upon the nature of the breach and its consequences.
12 Since the fair wages clause constituted part of the contract between the department and the contractor, the doctrine of privity of contract operated to prevent employees who were meant to be the principal beneficiaries of the clause from obtaining relief in respect of any breach on the part of their employer – see Simpson v Kodak Ltd [1948] 2 KB 184.
13 Sandra, Fredman and Gillian, S Morris, The State as Employer: Labour Law in the Public Services (Mansell, 1989) 471Google Scholar.
14 Bercusson, above n 5, 293–309. See also Doyle, above n 10, 120–2, and the sources cited therein.
15 Bercusson, above n 5, 342–5.
16 Paul, Davies and Mark, Freedland, Kahn-Freund's Labour and the Law (Stevens, 3rd ed, 1983) 198Google Scholar. See also Beaumont, above n 10.
17 See, eg, Bercusson, above n 5, chs 12–18.
18 See, eg, Fredman and Morris, above n 13, 11. For legislative endorsement of the Resolution, see the Housing Act 1957 (UK); Films Act 1960 (UK); Public Passenger Vehicles Act 1981 (UK); and Independent Broadcasting Authority Act 1973 (UK). See further K W, Wedderburn and P L, Davies, Employment Grievances and Disputes Procedures in Britain (University of California Press, 1969), 199–210Google Scholar.
19 Fredman and Morris, above n 13, 459, referring to a statement in the House of Commons by the Secretary of State for Employment of the day — United Kingdom, Parliamentary Debates, 16 December 1982, House of Commons, vol 34, cols 499–508.
20 ILO, General Report of the Conference Committee on the Application of Conventions and Recommendations, ILC, 97th Session, 2008, Report 22 (ILO, 2008) [100].
21 Stephen, Evans and Roy, Lewis, ‘Labour Clauses: From Voluntarism to Regulation’ (1988) 17 Industrial Law Journal 209, 215Google Scholar.
22 For discussion of early support for the notion that the Commonwealth should serve as a model employer, see Gerald, E Caiden, Public Employment Compulsory Arbitration in Australia (Institute of Labor and Industrial Relations, 1971) 19–20Google Scholar.
23 For an indication of past practice in this area, see Department of Industrial Relations, Status of ILO Conventions in Australia 1994 (Department of Industrial Relations, 1994) 210–11Google Scholar.
24 It is clear that simply enjoining compliance with national laws, ‘including those dealing with wages, hours of work and other conditions of employment', is not sufficient to establish compliance with Convention No 94 — see ILO, General Survey Concerning the Labour Clauses (Public Contracts) Convention, 1949 (No 94) and Recommendation (No 84) ILC, 97th Session, 2008, Report III (Part 1B) (ILO, 2008) [41].
25 See, Doyle, above n 10, 120. A further instance of such dominant influence is furnished by Convention (No 155) Concerning Occupational Safety and Health and the Working Environment, opened for signature 22 June 1981, 1331 UNTS 279 (entered into force 11 August 1983), which was strongly influenced by the Health and Safety at Work etc Act 1974 (UK) c 37, and by the Report of the Committee on Health and Safety at Work ('The Robens Report’) (Cmnd 5034) (HMSO, 1972), upon which that measure was based.
26 ILO, above n 24, [2].
27 Article 2(2) deals with the situation where conditions of labour are not regulated in the manner contemplated by art 2(1).
28 Article 3 provides that where workers are not already covered by occupational health and safety legislation, adequate measures should be taken ‘to ensure fair and reasonable conditions of health, safety and welfare for the workers concerned'.
29 Article 1(4). See further Henrik, Karl Nielsen, ‘Public Procurement and International Labour Standards’ (1995) 3 Public Procurement Law Review 94Google Scholar, 95 and 101.
30 Convention No 94 does not define the term ‘public authority', but it is clearly intended to denote entities that can in some meaningful way be said to perform public functions, and that are distinguishable from those that are purely ‘private’ in character. See further ILO, above n 24, [59]–[62].
31 See further text accompanying n 74.
32 Convention (No 98) Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, opened for signature 1 July 1949, 96 UNTS 257 (entered into force 18 July 1951) ('Convention No 98’).
33 Convention (No 87) Concerning Freedom of Association and Protection of the Right to Organise, opened for signature 17 July 1948, 68 UNTS 17 (entered into force 4 July 1950) ('Convention No 87’).
34 ILO, above n 24, [278].
35 Ibid [313]. In addition to Convention No 87 and Convention No 98, the Declaration requires adherence to the Convention (No 29) Concerning Forced or Compulsory Labour, opened for signature 28 June 1930, 39 UNTS 612 (entered into force 1 May 1932); Convention (No 105) Concerning the Abolition of Forced Labour, opened for signature 25 June 1957, 320 UNTS 4648 (entered into force 17 January 1959); Convention (No 100) Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, opened for signature 29 June 1951, 165 UNTS 2181 (entered into force 23 May 1953); Convention (No 111) Concerning Discrimination in Respect of Employment and Occupation, opened for signature 25 June 1958, 362 UNTS 31 (entered into force 15 June 1960); Convention (No 138) Concerning Minimum Age for Admission to Employment, opened for signature 26 June 1973, 1015 UNTS 14862 (entered into force 19 June 1976). In addition, Convention (No 182) Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, opened for signature 17 June 1999, 2133 UNTS 37245 (entered into force 19 November 2000) is treated as part of the 1998 Declaration, even though it was adopted in the following year. Australia has ratified all of these Conventions, apart from No 138.
36 DIR, above n 23, 198. Interestingly, in 1984 Commonwealth and State Labour Ministers had identified the Convention as a suitable target for ratification — Department of Industrial Relations, Review of Australian Law and Practice in Relation to Conventions Adopted by the International Labour Conference (Department of Industrial Relations, 1985). Furthermore, at least two jurisdictions (Victoria (1969) and ACT (1989)) signified formal agreement to ratification.
37 Norway (1996), St Vincent and the Grenadines (1998) and Armenia (2005).
38 ILO, above n 24, [282]–[283].
39 Ibid [175].
40 Ibid [174]. Note, however, that public procurement is extensively relied upon in a number of countries as a means of combating discrimination in employment and promoting equality of opportunity for women and other disadvantaged groups — ibid [24], [46]. See further McCrudden, above n 5, Parts II and III.
41 See especially Directive 2004/17/EC of 31 March 2004 on Coordinating the Procurement Procedures of Entities Operating in the Water, Energy, Transport and Postal Service Sectors [2004] OJ L 134/1, and Directive 2004/18/EC of 31 March 2004 on the Coordination of Procedures for the Award of Public Works Contracts, Public Supply Contracts and Public Service Contracts [2004] OJ L 134/114. See more generally McCrudden, above n 5, Part III; C, Barnard, ‘Using Procurement Law to Enforce Labour Standards’ in G, Davidov and B, Langille (eds) The Idea of Labour Law (Oxford University Press, 2011)Google Scholar ch 16.
42 ILO, above n 24, [181]. See also the CEACR's review of the more important of these instruments, ibid, ch III.
43 See, eg, ibid [248] (on the EU Directives). See also Nielsen, above n 29, 97–101.
44 ILO, above n 24, [279].
45 Ibid [307]–[308].
46 Ibid [311]–[313].
47 Ibid [314].
48 ILO, above n 20, [103].
49 Ibid.
50 Ibid [80], [122], [133].
51 Ibid [123]–[124], [126]–[127].
52 See ibid [125] (Denmark), [128] (Italy), [131] (Spain) — cf [129] (Canada) and [130] (Lebanon). The British government representative [100] indicated that the United Kingdom had denounced the Convention because it was not consistent with the Government's procurement policy and national employment legislation, but, curiously, went on to express the Government's commitment to ‘the principles of the ILO standards and Convention No 94'!
53 Parts of this section draw upon material which originally appeared in Creighton and Stewart, above n 2, ch 24.2.
54 The current incarnations of these bodies are, respectively, the Australian Procurement and Construction Ministerial Council and the COAG Select Council on Workplace Relations.
55 For a (somewhat dated) list of State codes and guidelines, see Forsyth et al, above n 2, 23.
56 For discussion of the Howard Government's attempts to force the States to give effect to its version of the Guidelines see John, Howe, ‘“Money and Favours“: Government Deployment of Public Wealth as an Instrument of Labour Regulation’ in Christopher, Arup et al (eds), Labour Law and Labour Market Regulation (Federation Press, 2006) 167, 176–8Google Scholar.
57 The revitalisation of some of the 2006 proscriptions prompted a prominent academic lawyer to warn that enforcement of these aspects of the Victoria Guidelines might run foul of the General Protections in Part 3–1 of the FW Act – see ‘Enforcement of Victorian Construction Guidelines Could Lead to Adverse Action Claim, Says Stewart', Workplace Express, 3 April 2012.
58 See ‘Hadgkiss Returns to Enforce New Victorian Construction Code', Workplace Express, 9 March 2012.
59 John Howe, ‘“Deregulation” of Labour Relations in Australia: Towards a More “Centred” Command and Control Model’ in Arup et al, above n 56, 148.
60 The BCII Act was extensively amended by the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Act 2012 (Cth), with effect from 1 June 2012. As of that date the 2005 Act was renamed as the Fair Work (Building Industry) Act 2012 (Cth) ('FW(BI) Act’). Amongst other things, the ABCC was abolished, and its functions transferred (in modified form) to the Director of the Fair Work Building Industry Inspectorate ('FWBII’). The Director and the associated inspectorate now operate as ‘Fair Work Building and Construction’ ('FWBC’).
61 In Beyond Cole – The Future of the Construction Industry: Confrontation or Cooperation? (2004) 51, the Senate Employment, Workplace Relations and Education References Committee described this regime as a form of ‘quarantine’ — quoted in Howe, above n 59, 159.
62 Commonwealth of Australia, Royal Commission into the Building and Construction Industry, Final Report (2003) vol 1, [15–31].
63 Howe, above n 59, 147 and 162.
64 Committee on Freedom of Association ('CFA’), 338th Report of the Committee on Freedom of Association (ILO, 2005) [429].
65 CFA, 342nd Report of the Committee on Freedom of Association (ILO, 2006) [22].
66 See further Forsyth et al, above n 2, 23.
67 Interestingly, however, s 27 has been retained in the FW(BI) Act.
68 In a Report to the Minister for Education, Employment and Workplace Relations in April 2009 entitled Transition to Fair Work Australia for the Building and Construction Industry ('Wilcox’), Murray Wilcox QC recommended (para [7.32(f)]) that the Guidelines ‘ought to be made a disallowable instrument'. This reflected the position put by many submissions to his inquiry including those of major employers, State Governments, and the Combined Construction Unions (see [7.13], [7.23] and [7.31]). In a letter to the Minister dated 27 April 2009, the then-ABCC, John Lloyd, expressed concern at the loss of ‘flexibility and adaptability’ that might follow from ‘Parliamentary scrutiny, and tribunal and court interpretation’ of the Guidelines.
69 Except where otherwise stated, all pinpoint references to the Guidelines are to the May 2012 iteration.
70 Code, 2.
71 2006 Guidelines, [2.1.4].
72 This change was introduced to give effect to a recommendation set out in Wilcox, above n 68, [1.31].
73 Paragraph [3.1] of the Guidelines defines ‘funding entities’ in effect to include all Commonwealth departments and agencies, Commonwealth authorities, and wholly-owned Commonwealth companies.
74 Entities are regarded as ‘connected’ where one can control or materially influence the activities or internal affairs of the tenderer; or has the capacity to determine or materially influence the tenderer's financial and operating policies; or is a member of the tenderer; or is ‘financially interested’ in the tenderer's success or failure (para [3.5.4]). According to para [3.5.5], entities are ‘related’ for the purposes of the Code and Guidelines when they fall within the definition of that term in s 9 of the Corporations Act 2001 (Cth).
75 The Code and Guidelines also apply to pre-commitment lease projects (para [3.6]), to Build Own Operate Transfer/Build Own Operate projects (para [3.7]), and to Public Private Partnerships and Private Finance Initiatives (para [3.8]).
76 ‘Industrial instrument’ is defined in para [6.1.1] to include awards or agreements made under or recognised by an industrial law that ‘concerns the relationship between an employer and the employer's employees’ including, but not limited to ‘freedom of association, employee entitlements and wages, and occupational health and safety requirements'.
77 More detailed treatment of these issues can be found in Forsyth et al, above n 2, ch 3 (dealing with the 2006 iterations of the Guidelines), and in Creighton and Stewart, above n 2, ch 24.2 (dealing with the August 2009 iteration).
78 See Breen, Creighton ‘International Labour Standards and Collective Bargaining under the Fair Work Act 2009’ in Breen, Creighton and Anthony, Forsyth (eds), Rediscovering Collective Bargaining: Australia's Fair Work Act in International Perspective (Routledge, 2012)Google Scholar ch 3.
79 The restrictive approach to project agreements under the Code and Guidelines provides an interesting contrast to the situation in the United States, where early in his term of office President Obama rescinded a ban on project agreements put in place by his predecessor. He replaced the ban with an Executive Order empowering executive agencies to require the use of project agreements when awarding contracts for federally-funded construction projects valued at more than $US 25m. See ‘Obama Moves Quickly to Axe Bush's Ban on Project Labour Agreements in Construction', Workplace Express, 18 March 2009.
80 Cole, above n 62, 36.
81 These were very strict. Amongst other things, they stipulated that project agreements could be made only for contracts with a value in excess of $100m, and that they could be made only where there was ‘a clear and demonstrable benefit to the Australian Government in doing so'.
82 ‘New Rules Ease Barriers for Project Agreements; Allow ‘Green’ Clauses', Workplace Express, 5 March 2012.
83 For discussion of the legal effect of unregistered or ‘common law’ collective agreements, see Creighton and Stewart, above n 2, 344–6.
84 FW Act, ss 413(6), 417.
85 FW Act, ss 408–9.
86 Cole, above n 62, vol 1, 4 (emphasis added).
87 They would also have been unlawful under the now-repealed ss 44–6 of the BCII Act.
88 See also ILC, 32nd Session Geneva, 1949, Record of Proceedings (ILO, Geneva, 1951) 468; ILO, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (ILO, 5th ed, Geneva, 2006) [364]–[365], [367]. See also Virginia, Mantouvalou, ‘Is There a Human Right Not to Be a Trade Union Member? Labour Rights under the European Convention on Human Rights’ in Colin, Fenwick and Tonia, Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart Publishing, 2010)Google Scholar ch 15.
89 This might, eg, include providing the names of new staff, job applicants, contractors or subcontractors to union representatives.
90 The ‘ticket’ or ‘card’ in question is a card which shows that the individual concerned is a paid-up member of the relevant union. Where such arrangements apply, individuals who do not produce a valid ‘ticket’ within a specified period (usually 24 hours) are not permitted to start work on the site. Anecdotal evidence suggests that whilst overt adherence to the practice is less common than in the past, it has certainly not been eliminated.
91 See further Creighton and Stewart, above n 2, ch 17.5.
92 This proscription provides an interesting contrast to the approach adopted in Australian Tramway Employees Association v Prahran and Malvern Tramways Trust (1913) 17 CLR 680, where the High Court determined that a claim that union members should be permitted to wear a union badge on their watch chains on company-provided uniforms could give rise to an ‘industrial dispute’ for purposes of the Conciliation and Arbitration Act 1904 (Cth), thereby enabling the matter to be dealt with in an arbitrated award under that Act.
93 Paragraph [5.5] of the Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry purports to constrain the content of agreements in much the same way as para [8.5.3] of the 2006 Guidelines.
94 2006 Guidelines, [8.10.4].
95 See further Creighton and Stewart, above n 2, 296–7.
96 See further Forsyth et al, above n 2, 22.
97 On good faith bargaining under the FW Act, see Anthony, Forsyth, ‘The Impact of “Good Faith” Obligations on Collective Bargaining Practices and Outcomes in Australia, Canada and the USA’ (2011) 16 Canadian Labour and Employment Law Journal 1Google Scholar; Alex, Bukarica and Andrew, Dallas, Good Faith Bargaining under the Fair Work Act 2009 (Federation Press, 2012)Google Scholar; Breen, Creighton and Pam, Nuttall, ‘Good Faith Bargaining Down Under’ (2012) 33 Comparative Labor Law and Policy Journal 257Google Scholar.
98 FW Act, ss 146 and 186(6) respectively require that modern awards and enterprise agreements contain terms dealing with disputes under the award or agreement as the case may be.
99 See FW Act, s 186(6); Re Woolworths Ltd [2010] FWAFB 1464. The Model Term is precisely that: it is a term that parties may include in their agreement if they so choose, but failure to do so does not mean that the agreement cannot be approved — so long as it includes a term that meets the s 186(6) criteria.
100 Guidelines, [4.4.2]. See further the Model Tender and Contract Documentation — May 2012,which can be accessed at <http://www.deewr.gov.au/WorkplaceRelations/policies/BuildingandConstruction/Documents/ModelTenderClauses2012>.
101 For the role of the ABCC, see Creighton and Stewart, above n 2, 142–4, 863–4.
102 Grant and funding recipients are placed under similar, but not identical, obligations under para [5.2.2] of the Guidelines.
103 See further Forsyth et al, above n 2, 22–3.
104 Department of Education, Employment and Workplace Relations, ‘2006 Guidelines and FW Act Agreements’ (Press Release, 7 October 2009).
105 This obligation applies to both protected and unprotected industrial action. It is not clear, however, whether it applies to action (most obviously, picketing) that does not constitute ‘industrial action’ for purposes of the FW Act. See further Creighton and Stewart, above n 2, 772, 871.
106 Forsyth et al, above n 2, 36 also refer to ‘publication of the details of the breach and identification of the party committing the breach’ and ‘a reduction in opportunities to tender for Commonwealth funded work for a specified period'. The 2012 Guidelines do not expressly refer to either option, although according publicity to breaches is clearly implicit in the notification requirements in para [8.2.11].
107 Cf Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64.
108 See, eg, Farrington v Thomson and Bridgland [1959] VR 293; Tampion v Anderson [1973] VR 715; Dunlop v Woollahra Municipal Council [1982] AC 158; Northern Territory v Mengel (1995) 185 CLR 307; Sanders v Snell (1998) 196 CLR 329.
109 Wilcox, above n 68, [7.32(i)].
110 Ibid [7.13] (AiG and Australian Constructors Association) and [7.28] (ACTU).
111 Lloyd, above n 68, [33].
112 See also Forsyth et al, above n 2, 36. Note, however, that the authors describe a different basis for the John Holland formal warning than that which appears on the DEEWR website.
113 Julia Gillard, ‘Contractors Must Meet Fair Work Principles to Secure Government Work’ (Media Release, 31 July 2009). For further comment on the FW Principles, see John Howe, ‘Government as Industrial Relations Role Model: Promotion of Collective Bargaining and Workplace Cooperation by Non-Legislative Mechanisms’ in Creighton and Forsyth, above n 78, 191–5.
114 See, eg, the Federal Secretary of the Australian Workers Union and the National Secretary of the Australian Manufacturing Workers Union as quoted in ‘New Mandate for Government Tenderers to Comply with Fair Work Principles, or Miss Out', Workplace Express, 28 July 2009.
115 Department of Education, Employment and Workplace Relations, Fair Work Principles User Guide (DEEWR, Canberra, 2010) [4.3.1(iii)].
116 Ibid [5.1.5], [5.1.7] — cf [5.1.1] as described above.
117 See, eg, Mark Skulley, ‘Labor Puts IR burden on Business', Australian Financial Review (Sydney) 14 April 2010, 1, quoting representatives of the ACCI and AiG.
118 Australian Government, Australian Government Procurement Statement (July 2009) 2.
119 Ibid 9.
120 Ibid. See also the Department of Finance and Deregulation, Commonwealth Procurement Rules: Achieving Value for Money (Department of Finance and Deregulation, 2012) 3Google Scholar, which became operative on 1 July 2012, and which ‘represent the Government's policy framework under which agencies govern and undertake their own procurement'. The Rules do not, however, make any express reference to the FW Principles.
121 Wilcox, above n 68, [7.8]–[7.18].
122 Ibid [7.11] (emphasis added).
123 Ibid [7.27]–[7.31].
124 Ibid [7.27].
125 ILO, above n 24, xiv.
126 Convention No 94 art 4(b)(ii).
127 ILO, above n 64, [409]–[457]. For further consideration of this case by the CFA see ILO, above n 65, [21]–[24]; CFA, 348th Report of the Committee on Freedom of Association (ILO, 2006) [35]–[42]; CFA, 353rd Report of the Committee on Freedom of Association (ILO, 2009) [41]–[45].
128 Both the complainant (ILO, above n 64, [421]) and the CFA (ibid, [449]) seem to have assumed that the Code would not be subject to Parliamentary scrutiny even when it was made part of the Building Code. This is not correct, as is clear from s 27(5) of the original BCII Act and now the FW(BI) Act. Indeed, as noted earlier, it was in order to avoid such scrutiny that the Howard Government decided not to make the Code part of the proposed Building Code.
129 ILO, above n 64, [449]. The monetary penalties contemplated by s 28(4) related only to failure to provide reports to the ABCC when requested to do so under s 28(2). This provision was repealed in 2012.
130 Relevantly, Convention No 98, art 4 protects the right of employers and unions to engage in autonomous collective bargaining. This includes the right to determine the content of agreements, and the level at which they are negotiated. Convention No 87, art 3(1) protects the right of organisations of employers and workers ‘to organise their administration and activities and to formulate their programs', whilst art 3(2) enjoins the public authorities to ‘refrain from any interference which would restrict this right or impede the lawful exercise thereof'. For summaries of the guarantees provided by Convention No 87 and Convention No 98, see N, Valticos and G, von Potobsky, International Labour Law (Kluwer Law and Taxation Publishers, 1995) 94–100Google Scholar; Breen, Creighton, ‘Freedom of Association’ in R, Blanpain (ed) Comparative Labour Law and Labour Relations in Industrialized Market Economies (10th ed, Kluwer Law International, Alphen aan den Rijn, 2010) 291–301, 325–35Google Scholar.
131 ILO, above n 64, [457(d)].
132 See, eg, ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 95th Session, 2006, Report III (Part 1A) (ILO, 2006) 42–3. The Committee was still sharply critical of (and still misunderstanding the character of) the role of the Code and Guidelines in 2012 — see ILO, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 101st Session, 2012, Report III (Part 1A) (ILO, 2012) 60–1.
133 See, eg, Shae, McCrystal, The Right to Strike in Australia (Federation Press, 2010)Google Scholar ch 10; Shae, McCrystal, ‘Fair Work in the International Spotlight: The CEPU Complaint to the ILO's Committee on Freedom of Association’ (2011) 24 Australian Journal of Labour Law 163Google Scholar; Creighton, above n 78, ch 3.
134 In this context, it is well to note Freedland's concerns about extra-parliamentary ‘law-making', even where the objects of that process are entirely benign — see Mark, Freedland, ‘Leaflet Law: the Temporary Short Time working Compensation Scheme’ (1980) 9 Industrial Law Journal 254Google Scholar; Mark, Freedland, ‘Labour Law and Leaflet Law: the Youth Training Scheme of 1983’ (1983) 12 Industrial Law Journal 220Google Scholar.
135 See, eg, ‘Summary of findings and recommendations', Cole, above n 62, vol 1, 3–5.
136 For interesting studies on the use of procurement as a social policy tool by State governments, see John, Howe and Ingrid, Landau, ‘''Light Touch'’ Labour Regulation by State Governments in Australia’ (2007) 31 Melbourne University Law Review 367Google Scholar; John, Howe and Ingrid, Landau, ‘Using Public Procurement to Promote Better Labour Standards in Australia: A Case Study of Responsive Regulatory Design’ (2009) 51 Journal of Industrial Relations 575Google Scholar.