Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

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

The Committee takes note of the Government's reply to its previous direct request.

1. Civil liability in respect of industrial action. The Committee takes note of a communication dated 17 March 1993 from the International Federation of Air Line Pilots Associations (IFALPA) concerning Case No. 1511 which was examined by the Committee on Freedom of Association in its 277th Report, paragraphs 151-246. IFALPA indicates that the problems arising from common law liability for industrial action which were raised in Case No. 1511 continue and provides another example of a case where, in 1992, court action was undertaken against the president of a union for organizing industrial action. The court action was withdrawn only after intense pressure was exerted from the union and the Government.

The Committee recalls that it has been commenting upon the question of civil liability in respect of industrial action for a number of years now. In its previous comment, the Committee noted that there was as yet no agreement in the tripartite consultations concerning the adoption of a revised set of compliance mechanisms within the Federal Act and requested the Government to keep it informed of the progress made in protecting unions and their members from common law actions based on their exercise of the right to strike. The Committee notes with interest from the Government's latest report that the Industrial Relations Reform Act of 1993 (hereinafter, the "Reform Act") contains a number of measures to protect unions in this regard. The object of Division 4 of this Act (immunity from civil liability) "is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike". It provides that, except for certain types of wilful or reckless conduct involving personal injury or destruction of, or damage to, property, no action lies under any law of a State or Territory in respect of industrial action that is "protected action" (i.e., that which takes place in relation to an industrial dispute during the bargaining period).

2. (a) Section 45D of the Trade Practices Act. In its latest report, the Government indicates that the Reform Act amends the Trade Practices Act to confine the operation of section 45D to non-industrial secondary boycotts which have the purpose and effect of causing a lessening of competition in a market. According to the Government, new section 162 of the Act prohibits secondary boycotts, but does not apply to cases where the boycott action is in support of claims that directly affect the person taking the action or where sympathy action is taking place in a corporation which is legally related to the corporation in which a strike is occurring. Peaceful picketing is also exempt from the prohibition. Furthermore, section 163F provides that criminal proceedings do not lie against a person merely for engaging in boycott conduct. Section 163G however empowers the Industrial Relations Court to grant injunctions in respect of boycott conduct and section 163H provides that a person who suffers loss or damage by boycott conduct may recover the amount of the loss or damage by action in court. Noting from this information that the situations wherein secondary boycotts are not prohibited are still limited, the Committee recalls the principle according to which workers should be able to take sympathy action provided the initial strike they are supporting is itself lawful (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 168) and requests the Government to indicate any further measures taken to bring the legislation into full conformity with this principle.

(b) New South Wales (NSW) Industrial Relations Act 1991 and sections 4, 17 and 18 of the NSW Essential Services Act 1988. In its previous comments, the Committee noted that the NSW Industrial Relations Act incorporated the provisions of sections 45D and 45E of the Federal Trade Practices Act without the requirement of the Federal Act that the target be a corporation. The Committee requested the Government to draw to the state Government's attention the comments it has made in previous direct requests on provisions banning sympathy strikes. In its latest report, the NSW Government indicates that numerous provisions of the Reform Act of 1993, including those provisions related to secondary boycotts, immunity from civil action and consequential restrictions, are currently the subject of a High Court challenge by a number of States. The state Government indicates that these matters and their ultimate determination impact directly upon the comments raised by the Committee and that it will therefore give consideration to these comments once the High Court decision has been taken. The Government is requested to indicate in its next report any developments with respect to secondary boycotts and the definition of essential services in New South Wales.

3. Essential services legislation. (a) Federal legislation. The Committee notes from the Government's report that section 30J of the Crimes Act of 1914 which bans strikes in services where the Governor-General has proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" has not been invoked since 1951 and can be considered moribund and that for many years there have been no prosecutions under section 30K which prohibits boycotts resulting in obstruction or hindrance of the performance of services by the Australian Government or the transport of goods or persons in international trade. The Committee notes with interest the Government's indication that it is currently giving consideration to repealing both these sections of the Crimes Act and requests it to keep it informed of the progress made in this regard.

(b) State legislation. The Committee requested the Government to bring to the attention of the state Governments of the Northern Territory, Victoria, Queensland, Tasmania, and South Australia the principles of the ILO concerning essential services and the use of minimum services in the event that the extent and duration of a strike might result in an acute national crisis and requested the Government to supply information on the practical application of the state provisions in question. The Northern Territory, Queensland and Victoria all indicated generally that the definition of an essential service must be looked at in the context of a modern economy. In particular, the Northern Territory and Queensland referred to the specific needs due to both the size of their states and the remote regional locations encountered within the state. Queensland indicated that the emergency powers contained in section 22 of the State Transport Act have been utilized only on rare occasions in relation to strikes, while Victoria indicated that there are several safeguards to the exercise of power granted in the 1992 Vital State Industries and Essential Services Acts as the regulations made by the Governor-in-Council have a limited life span and Parliament may repeal them. In this regard, the Committee draws the Government's attention to paragraph 160 of its 1994 General Survey in which it has provided that account must be taken of the special circumstances existing in the various member States, since the interruption of certain services which in some countries might at worst cause economic hardship could prove disastrous in other countries and rapidly lead to conditions which might endanger the life, personal safety or health of the population. Furthermore, a non-essential service in the strict sense of the term may become essential if the strike affecting it exceeds a certain duration or extent so that the life, personal safety or health of the population are endangered. In such cases, the Committee once again recalls that the authorities may wish to establish a system of a negotiated minimum service rather than impose an outright ban on strikes and requests the Government to continue to supply information on the application in practice of the relevant state provisions. Furthermore, as no information was provided concerning the States of Tasmania and South Australia, the Government is requested to indicate in its next report the number and types of occasions where the restrictions on strikes provided in the Conspiracy and Protection of Property Act 1989 and the Criminal Law Consolidation Act 1935-75 respectively have been used.