Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Australia (Ratification: 1973)

1. The Committee notes the Government's report on the application of the Convention.

2. The Committee notes with interest that section 115 of the Industrial Relations Act 1988 permits some or all of the parties to an industrial dispute to agree on terms for the settlement of all or any of the matters in dispute, to draw up a memorandum of agreement, and to submit that memorandum to the Australian Industrial Relations Commission for certification. This provision appears to the Committee to be intended to encourage and to promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations as envisaged by Article 4 of the Convention. It asks the Government, in its next report, to provide information as to:

(i) the number of agreements which have been certified under section 115;

(ii) the number of instances where certification has been refused, and the reasons for such refusal; and

(iii) the number of agreements which have been varied, set aside or terminated in accordance with section 117, and the reasons for such variation, etc.

3. The Committee notes that section 334 of the Industrial Relations Act (which is in similar terms to section 5 of the recently repealed Conciliation and Arbitration Act, 1904) provides that an employer shall not dismiss an employee or injure an employee in her or his employment, or alter the position of an employee to her or his detriment, on a number of grounds. These include the fact (i) that the employee "is or has been, or proposes, or has at any time proposed, to become an officer, delegate or member" of a trade union; (ii) that the employee, being a member of a registered union that is seeking better industrial conditions, is dissatisfied with his or her conditions; and (iii) that the employee, being an officer, delegate or member of a registered union has "done or proposes to do, an act or thing" for the purpose of furthering or protecting the industrial interests of the union where the act or thing is lawful and is "within the limits of an authority expressly conferred on the employee by the organisation (union) under its rules". Breach of this provision is an offence. On conviction an employer may be fined, and may be ordered to reinstate the employee with arrears of pay.

This provision appears to be in accord with the requirements of Article 1 of the Convention. However, it does not appear to provide any protection for workers who are denied employment on the grounds of trade union membership or activity. Both the wording of Article 1, and the jurisprudence of the Committee (see General Survey on Freedom of Association and Collective Bargaining, 1983, paragraphs 256 and 259), make it clear that workers should be provided with legislative protection against such discrimination.

The Committee notes that the Human Rights and Equal Opportunity Commission Act, 1986 makes specific reference to the International Covenant on Civil and Political Rights, article 22 of which purports to protect the right to form and to join trade unions. The Government is asked to indicate whether it is of the view that the 1986 Act provides a degree of protection against anti-union discrimination at, or prior to, engagement which is adequate for purposes of Article 1. If the Government is of this view, it is also asked to explain the enforcement procedures which operate under the 1986 Act, and to describe the penalties which may be imposed in respect of breaches thereof. If the Government is of the view that the 1986 Act does not provide adequate protection against this form of discrimination, it is asked to indicate the steps it proposes to take in order to remedy the situation.