- ILO 191
International Labour Organization Convention No. 191: Safe and Healthy Working Environment (Consequential Amendments) Convention, 2023
5.1ILO 191 was referred to the Committee on 15 May 2024.
5.2The Committee received three submissions and one response to Questions on Notice. The Committee held a public hearing in Canberra on 1 July 2024. A list of submissions can be found at Appendix A. The hearing and witnesses are listed at Appendix B. The transcript of evidence from the public hearing can be accessed through the Committee’s website.
Overview and background
5.3The proposed major treaty action (Category 2) International Labour Organization Convention No. 191: Safe and Healthy Working Environment (Consequential Amendments) Convention, 2023 (Convention No. 191)[1]aims to amend seven ILO Conventions and one Protocol to ensure the right to a safe and healthy working environment is reflected in existing ILO instruments.
5.4Amendments are proposed to the preambles of six Conventions and one protocol, and to the operative articles of three Conventions.
5.5Of the amendments to ILO instruments, only those to the Maritime Labour Convention, 2006, as amended (MLC) and the Violence and Harassment Convention, 2019No. 190 (Convention No. 190) have implications for Australia as these are the only Conventions with operative amendments to which Australia is a party.
5.6In 2022, the International Labour Organization (ILO) Declaration on the Fundamental Principles and Rights at Work was revised to include ‘a safe and healthy working environment’ as a fundamental principle and right at work. Consequently, ILO Members have an obligation to respect, promote and realise this right.
Justifications
5.7The Government has stated that ratification of Convention No. 191 would ‘demonstrate Australia’s commitment to workplace health and safety, and ensure Australia continues to promote a safe and healthy working environment and protect workers from occupational harm, particularly in the maritime sector and in relation to violence and harassment at work’.
5.8Ratification would demonstrate commitment to the implementation of key ILO standards and uphold Australia’s international standing. It would also support Australia’s role in providing leadership to promote international labour standards globally, including in the Asia-Pacific.
5.9Ratification would complement measures taken to implement the two fundamental Conventions expressing the right to a safe and healthy working environment in ILO Convention No. 155: Occupational Safety and Health Convention, 2005 adopted on 22 June 1981 and entered into force for Australia on 26 March 2005, and ILO Convention No. 187: Promotional Framework for Occupational Safety and Health Convention, adopted on 15 June 2006 (not yet in force).
Obligations
5.10Ratification of Convention No. 191 would result in Article 1(3) imposing new obligations for Australia in relation to the amendments to the MLC and Convention No. 190. These obligations are:
- MLC: Adding the words ‘a safe and healthy working environment’ to Article III will require member states to ensure their national laws respect fundamental rights at work. Accordingly, Members’ laws and regulations will need to respect, in the context of the MLC, the right to a safe and healthy work environment, and
- Convention No. 190: Adding the words ‘a safe and healthy working environment’ to Article 5 will require Members’ laws, policies, and practices to respect, promote and realise the right of a safe and healthy work environment, with a view to the prevention and elimination of violence and harassment.
- No changes to Commonwealth, State or Territory legislation are required for Australia to implement the amendments that Convention No. 191 will make to Australia’s obligations under the MLC or Convention No. 190.
- Each ILO Member must report on measures taken to give effect to the Conventions to which it is a party. Given its nature, reporting would not be required on Convention No. 191, but would be required on the new obligations as part of reporting on the MLC and Convention No. 190.
Implementation
5.13Article 4(1) stipulates that Convention No. 191 would enter into force on the date on which the ratifications of two ILO Members have been registered. Article 4(2) states that once Convention No. 191 enters into force generally, it shall come into force for any Member on the date on which that Member’s ratification is registered.
5.14In accordance with Article XIV(4) of the MLC, its amendments shall be deemed to have been accepted 12 months after Convention No. 191, or the MLC as amended by Convention No. 191, has been ratified by at least 30 Members with a total share in the world gross tonnage of ships of at least 33 per cent. Article XIV(6) of the MLC states that the amendments made by Convention No. 191 to the MLC will then enter into force 12 months after the date of deemed acceptance or the date on which a Member’s ratification of Convention No. 191 has been registered, whichever date is later.
5.15Australia has a well-developed national scheme to enable a safe and healthy working environment consistent with the objectives of Convention No. 191, including Commonwealth, State and Territory laws and policies, covering work health and safety, anti-discrimination, workplace relations, criminal activity, and maritime safety.
5.16For the MLC, the Australian Maritime Safety Authority is responsible for its implementation and administers a range of laws and regulations that respect the right to a safe and healthy working environment in the maritime industry. The Fair Work Act 2009 and Commonwealth anti-discrimination laws also contribute to ensuring a safe and healthy working environment.
5.17For Convention No. 190, a range of Commonwealth, State and Territory laws and policies provide a comprehensive framework to ‘respect, promote and realize’ the right to a safe and healthy working environment.Some of these include:
- Workplace health and safety (WHS) laws, policies and practices that include enforceable duties that operate to, in effect, confer a right on persons to a safe and healthy working environment
- The Australian Work Health and Safety Strategy 2023-2033 to improve WHS outcomes
- Safe Work Australia’s role in developing national WHS policy, systems, and programmes
- Anti-discrimination laws and practices
- The Fair Work Act 2009, which prohibits workplace sexual harassment and adverse action based on certain protected attributes, and enables the Fair Work Commission to make an order to stop bullying and to stop sexual harassment
- Criminal laws that provide additional coverage against conduct that can occur at work.
Costs
5.18There are no costs for Australia associated with ratifying Convention No. 191.
Future treaty action
5.19Ratification of Convention No. 191 is not expected to result in any future treaty action.
5.20If a new Convention is adopted that revises Convention No. 191, ratification of the revising Convention would be subject to Australia’s domestic treaty-making procedures. This is also the case for any separate future proposals to revise the MLC or Convention No. 190.
Denunciation
5.21Convention No. 191 does not contain provisions on withdrawal or denunciation, other than in relation to Article 7. In any other circumstances, termination or withdrawal could only occur consistently with Article 54(b) of the Vienna Convention on the Law of Treaties and would require the consent of all other parties.
5.22The MLC and Convention No. 190 contain provisions on denunciation. Article 15(1) of Convention 190 provides that Members may denounce the conventions in the 12-months after each ten-year period from the date in which it entered into force generally. If the right is not exercised, Members are bound for another ten years.Denunciation takes effect 12-months after registration with the Director-General. Article IX of the MLC contains similar provisions.
Consultation
5.23Australia’s compliance with and ratification of Convention No. 191 has been discussed at regular meetings of Commonwealth, State and Territory officials responsible for ILO matters, most recently on 3 April 2024. All State and Territory governments have advised that their law and practice is consistent with Convention No. 191.
5.24The Minister for Employment and Workplace Relations, the Hon Tony Burke MP, wrote to State and Territory industrial relations Ministers on 15 November 2023 and 27 March 2024 in relation to ratifying Convention No. 191.
5.25The ratification of Convention No. 191 has been periodically discussed at meetings of the International Labour Affairs Committee, comprising the Department of Employment and Workplace Relations (DEWR), the Australian Council of Trade Unions (ACTU) and the Australian Chamber of Commerce and Industry (ACCI). The ACTU and ACCI support Australia’s ratification of Convention No. 191.
Issues
Advocacy within the Asia-Pacific
5.26Australia’s advocacy for stronger workplace standards within the Asia-Pacific region was raised at the public hearing. The Committee noted that 63 per cent of the world’s work-related mortalities occur within the Asia-Pacific region. DEWR stated that continued ratification of ILO Conventions would uphold Australia’s ‘standing in the international community and demonstrate[s] Australia's commitment to the implementation of key ILO standards, including within our region’.
5.27DEWR detailed Australia’s work with the ILO’s Pacific office, including funding to strengthen labour standards in the Pacific, collaborating on projects with the Cook Islands and Fiji, and developing a Pacific Occupational Safety and Health Convention toolkit. DEWR also cited the recent example of Fiji ratifying Convention No. 190 after Australia had provided assistance.
5.28DEWR said that ratifying international agreements such as Convention No. 191 would complement Australia’s work within the Pacific and would ‘lend Australia the gravitas to call on others in the Asia-Pacific to also ratify these conventions’.
5.29In their support for ratification of Convention No. 191, the ACTU said ratification ‘demonstrates Australia’s commitment to workplace health and safety in line with International Labour Standards and supports Australia playing a leading role in the Asia-Pacific region to promote compliance with International Labour Standards’.
5.30Professor Sean Cooney from the University of Melbourne indicated support, stating that Australia was a ‘world leader in work health and safety regulation and innovation’ and ratification would affirm Australia’s role in assisting other countries in a region where WHS practices are often poor.
Development of WHS strategies
5.31At the public hearing, DEWR noted that ‘Australia has a well-developed national scheme that promotes and protects occupational safety and health’. DEWR stated that existing Commonwealth, state and territory laws and policies in tandem with Australia's national WHS framework would meet the requirements established by Convention No. 191.
5.32DEWR stated that ratification of Convention No. 191 would align with the aims of the Australian Work Health and Safety Strategy 2023-2033. The Committee heard that the strategy, developed and agreed through Safe Work Australia, establishes ‘a national vision for safe and healthy work for all and provides the platform for delivering key work health and safety improvements to achieve this vision’.
State and Territory compliance
5.33At the public hearing, the Committee raised the issue of State and Territory laws complying with Convention No. 191. DEWR stated that it had ‘engaged extensively with the states and territories through the law and practice assessment process, and all have provided information indicating their law and practice complies’.
5.34DEWR noted at the hearing that while no State or Territory had indicated opposition to ratification of Convention No. 191, Western Australia had not yet provided formal support in writing, Victoria and Northern Territory were finalising their formal processes, and Tasmania had provided ‘in principle’ support.
5.35Following the public hearing, DEWR communicated that Western Australia and Northern Territory had since indicated their formal support for ratification of Convention No. 191. DEWR said that Tasmania’s in principle support remained while the ratification went through formal Cabinet processes and that Victoria would consider the ratification of Convention No.191 in August 2024.
Committee comment
5.36The Committee recognises the importance of Convention No. 191 in demonstrating Australia’s commitment to workplace health and safety as a fundamental principle and right at work. Australia has a good reputation with respect to supporting and advocating for WHS matters and ratification of Convention No. 191 would ensure that its reputation is maintained.
5.37The Committee notes that Convention No. 191 amends Conventions already ratified by Australia and elevates the principle of a safe and healthy working environment by adding the principle to operative articles and preambles.
5.38Australia engages with the ILO in collaboration with the ACTU and ACCI organisations that support the creation of safe and healthy work environments and promote the social and economic wellbeing of all workers in Australia. Both organisations support the ratification of Convention No. 191 to help achieve these goals.
5.39The Committee acknowledges that the additions to existing Conventions create minimal obligations for Australia and are compliant with law and practice in this area. There are no costs or future treaty obligations associated with ratifying Convention No. 191.
5.40The Committee was pleased that issues such as Australia’s advocacy for WHS in the Asia-Pacific, the continued development of WHS strategies and Convention No. 191’s compliance with existing State and Territory laws were addressed at the public hearing.
5.41The Committee supports the International Labour Organization Convention No. 191: Safe and Healthy Working Environment (Consequential Amendments) Convention, 2023 and recommends that binding treaty action be taken.
Mr Phillip Thompson OAM, MP Acting Chair
12 August 2024