Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Australia (Ratification: 1973)

The Committee notes with regret that the Government’s report has not been received.

Federal jurisdiction. The Workplace Relations Act (WR Act), 1996. 1. Right to draw up constitutions and rules. The Committee recalls that its previous comments concerned the need to amend sections 298R and 298U of the WR Act concerning the issue of disciplining members, so as to avoid any interference that would restrict the right of workers’ organizations freely to draw up their constitutions and rules. The Committee notes that pursuant to the amendment of the WR Act by the Workplace Relations Amendment (Work Choices) Act, 2005, (the Work Choices Act), these provisions now figure in sections 807 and 798 of the WR Act and requests the Government to amend this provision so as to leave such matters up to the democratically elaborated rules or by-laws of the unions concerned.

2. Workplace access. (i) The Committee notes that the International Confederation of Free Trade Unions (ICFTU), in its communication dated 12 July 2006, raises its concern that the new law severely curtails the right of union representatives to visit workplaces, thereby restricting their ability to advise employees of their rights and to recruit members. According to the ICFTU, the WR Act, as amended, includes a rigid set of requirements for unions seeking to enter workplaces and imposes a lifetime ban on visiting workplaces for union officials who breach the new laws. The Committee observes, in this respect, that, pursuant to the amendment of the WR Act by the Work Choices Act, the right of entry of trade union representatives to the workplace in order to meet with workers has become subject to a special permit requirement (section 740 WR Act), which may be refused (and can also be revoked or suspended) in certain cases including: if the official has been convicted of an offence against an industrial law; or if the official has been ordered to pay a penalty under the WR Act or any other industrial law (sections 742(2)(b) and (d), WR Act). Moreover, the Registrar has discretion to refuse the permit if he or she is not satisfied that the applicant is “a fit and proper person” having regard to any matter that the Registrar considers relevant in this respect (section 742(1) and (2)(h) of the WR Act). The Committee draws the Government’s attention to its General Survey of 1994 wherein it has indicated that the right of trade union officers to have access to places of work and to communicate with management is a basic activity of trade unions, which should not be subject to interference by the authorities (see General Survey of 1994 on Freedom of Association and Collective Bargaining, paragraph 128). The Committee considers that the restrictive conditions set for granting the permit could constitute a serious obstacle to the exercise of this right given that the WR Act contains a multitude of prohibitions accompanied by heavy fines or a conviction, sometimes for acts which should not constitute offences under Convention Nos. 87 and 98. The Committee therefore requests the Government to reply, in its next report, to the comments made by the ICFTU in this respect and to indicate any measures taken or contemplated to amend this section of the WR Act.

(ii) The Committee further notes that the permit gives the holder the right to enter premises for the purposes of holding discussions with “eligible employees”, i.e. employees who: (i) carry out work covered by an award or collective agreement that is binding on the permit holder’s organization; and (ii) are members of the permit holder’s trade union or are eligible to become a member of this trade union (section 760, WR Act). The Committee observes that section 760 has the effect of preventing discussions with employees who are covered by an AWA (instead of an award or collective agreement), even if they are trade union members. The Committee is of the view that a trade unionist should not be limited in discussions at the workplace only to eligible employees, but should also be able to apprise workers of the potential advantages of unionization or of coverage by a collective agreement instead of an AWA. It therefore requests the Government to indicate in its next report the measures taken or contemplated to amend this section so as not to artificially restrict the group of employees with whom a trade union representative may discuss.

State jurisdictions. New South Wales. The Committee recalls that its previous comments concerned the need to amend section 226(c) of the Industrial Relations Act, 1996, which provides that the registration of an organization may be cancelled where it or its members engage in industrial action having a major and substantially adverse effect on the provision of any public service.

The Committee once again requests the Government to keep it informed of any measures taken or contemplated with a view to ensuring that any prohibition of the right to strike and related penalties are limited to essential services in the strict sense of the term and to public servants exercising authority in the name of the State. It also requests the Government to indicate the effect of the adoption of the Work Choices Act on section 226(c) of the Industrial Relations Act, 1996.

Western Australia. In its previous direct request, the Committee raised the issue of provisions that stipulate that workers’ membership in a trade union end if their subscriptions are not paid and requested the Government to keep it informed of any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned.

The Committee once again reiterates its request for information on any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. It also requests the Government to indicate the effect of the adoption of the Work Choices Act in this respect.