Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee notes the information provided in the Government's report, in particular the adoption of the Federal Workplace Relations Act, 1996, which according to the Government, substantially amended the Industrial Relations Act, 1988, and the recent adoption of legislation in certain States: the Labour Relations Legislation Amendment Act, 1997, of Western Australia, amending the Industrial Relations Act, 1979; the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland; and the Industrial Relations Act, 1996, of New South Wales. The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) and the National Union of Workers (New South Wales Branch), and the Government replies to these comments.

The Committee notes that information regarding the application of the Convention in Tasmania and Victoria has not been included in the Government's report, and only partial information has been included concerning New South Wales. The Committee requests the Government to forward full information concerning these three States.

Federal jurisdiction

The Workplace Relations Act, 1996

Article 2 of the Convention (Registration requirements). The Government states in its report that registration is voluntary and not a prerequisite to the formation or functioning of an organization of workers or employers. However, in the view of the Committee, given that registration confers a number of significant traditional advantages on an organization, the requirements for registration must be reasonable. The Committee notes that the Act has significantly altered the registration system, providing for the registration of general and enterprise organizations (section 189); therefore, it requests the Government to provide information on its practical application, and on the interrelationship of the two categories of registration. In particular, the Committee requests information on how many organizations have been registered and under which category, whether any organizations have been deregistered, and how the right to associate, to negotiate and to strike is applied for workers' organizations with membership of less than 50 employees or where a majority of those entitled to be members do not support registration of an enterprise association. With respect to the ACTU's comment that workers have been denied the effective possibility of creating more than one workers' organization per enterprise, the Committee notes the Government's statement that the registration of enterprise associations does not preclude general registered organizations from enrolling and representing the interests of workers who may also be eligible to join enterprise unions.

Article 3 of the Convention (Right to draw up their constitutions and rules). The Committee notes that the Act prohibits, on penalty of, inter alia, the payment of compensation and a fine of up to A$10,000, an industrial association from imposing or threatening to impose a penalty, forfeiture or disability of any kind on a member because the member has refused or failed to join in industrial action (sections 298R and 298U). The Committee recalls that Article 3 of the Convention implies that when drawing up their constitutions and rules, workers' organizations should have the right to determine whether or not to provide for the disciplining of members, including by expulsion or fine, who refuse to comply with democratic decisions to take lawful industrial action. The Committee, therefore, requests the Government to refrain from any interference which would restrict the right of workers' organizations to draw up their constitutions and rules freely by leaving the issue of disciplining of members to the rules of the organization, if the organization and its members so wish. The Committee requests the Government to take appropriate steps to amend the legislation accordingly.

Articles 3 and 10 of the Convention (Organizing administration and activities to further and defend the interests of workers). The Committee notes that protected industrial action may be taken only during a bargaining period in negotiations for a certified agreement; thus, the subject-matter of industrial action is limited in scope to those matters that may be covered by a certified agreement, namely, matters pertaining to the relationship between an employer and employees in a single business or part thereof (section 170LI). In this respect, the Committee notes that according to the ACTU, there are many matters which the Australian courts have found to be outside the scope of the relationship between employers and employees, including a claim for the deduction of union dues. The Committee requests the Government to forward any court or Commission decisions on the scope of "protected action" and on matters that are or are not permitted to be covered by certified agreements. In addition, while noting the Government's description of section 166A, the Committee requests the Government for clarification as to the relationship between section 166A, which provides tort immunities in certain circumstances, and the other provisions providing protection for industrial action (sections 170ML, 170MT and 170MU).

Trade Practices Act, 1974

Secondary boycotts. The Committee notes that a number of provisions of this Act have been amended by Schedule 18 of the Workplace Relations and Other Legislation Amendment Act, 1997. The ACTU raises concerns with respect to, inter alia, the application of section 45E of the Act. The Committee requests the Government to provide information in its next report on the practical application of this provision.

State jurisdiction

New South Wales

The Committee notes the concerns raised by the National Union of Workers (New South Wales Branch) (NUW) regarding the absence of a right to strike under the Industrial Relations Act, 1996. The NUW states that the Act provides no right to strike under any circumstances. The Committee also notes the Government's response that strikes are not prohibited under the Act. The Committee requests the Government to provide further information regarding the liability of striking workers and their organizations, including whether they are subject to common law liabilities. The Committee notes that the registration of an organization may be cancelled where it or its members have engaged in any industrial action having a major and substantially adverse effect on the provision of any public service (section 226(c)). In this regard, the Committee recalls that the prohibition on the right to strike should be limited to essential services in the strict sense of the term, and to public servants exercising authority in the name of the State (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 158-159). The Committee would, therefore, request the Government to ensure that section 226(c) is limited accordingly. Concerning the statement of the NUW regarding the treatment of striking workers by police, the Committee notes the establishment of a Protocol for Pickets, and requests the Government to keep the Committee informed of its application in practice.

Queensland

The Committee notes that pursuant to the Industrial Organizations Act, 1997 (section 243) and the Workplace Relations Act, 1997 (section 246), an employee organization must not penalize a member for not taking part in industrial action. The provision in the Industrial Organization Act, 1997, adopts the wording of section 298R of the Federal Workplace Relations Act, 1996; the Committee, therefore, refers to its comments above in relation to the Federal Act. The Committee notes further that the Industrial Organizations Act, 1997, contains provisions concerning political funds (sections 224 to 231), and deeming members to have resigned if they have not paid their membership subscriptions for one year (section 89). The Committee considers such provisions to constitute undue interference in the internal affairs of organizations, which is not in keeping with Article 3 of the Convention, and suggests that such matters be left to the rules of the organizations.

Western Australia

Article 2 of the Convention (i) Registration requirements. The Committee notes the Government's statement that although generally a workers' organization must not have less than 200 members to be entitled to register under the Industrial Relations Act, 1979, as amended, an organization with fewer members can register if it can show that there is good reason for its registration (section 53). The Committee notes that registration confers a number of significant traditional advantages on an organization. The Committee requests the Government to provide information on the application in practice of section 53, in particular what is considered to be a "good reason" for registering, and how many applications for organizations with less than 200 members have been made, and how many granted and denied.

(ii) Exclusive representation. The Committee notes that the Industrial Relations Act provides that an order may be made giving an organization exclusive rights to represent the industrial interests of a particular class or group of employees in an enterprise (section 72A). In this context, the Committee recalls that it accepts that the recognition of the most representative trade union is not a violation of the right of workers to establish and join organizations of their own choosing, provided certain conditions are met, including that the determination of the most representative organizations is based on objective, pre-established and precise criteria (see General Survey, op. cit., paragraph 97). The Committee, therefore, requests the Government to provide information on the criteria, in law and in practice, used to make a determination under section 72A.

(iii) Substitution of parties to agreements. The Committee notes that pursuant to Part IIIA of the Industrial Relations Act, one organization may be substituted for another as a party to an award or industrial agreement under sections 84E and 84F, without the desires of the relevant workers being taken into consideration, and without the nominated organization being able to refuse to represent those workers (section 84G). The Committee further notes that notice of an order cancelling the rights of a state organization need only be given to the relevant employers and not to the workers involved (section 84J). The Committee recalls that workers and employers should have the right to establish and join organizations of their own choosing pursuant to the Convention. While accepting the recognition of the most representative unions for the granting of certain preferential rights, as noted above, the Committee notes that the provisions referred to do not address the representative nature of the organization. The Committee is of the view that as it is likely that many workers will not wish to remain members of an organization that is not entitled to represent their industrial interests, the provisions of Part IIIA could deny them in practice the right to establish and join organizations of their own choosing.

Article 3 of the Convention. Interference in internal affairs. The Committee notes that a number of the amendments touch upon the internal affairs of organizations. First, Part VIC of the Act, which was added by the Industrial Relations Legislation Amendment and Repeal Act, 1995, and more recently amended, establishes procedures and limitations for maintaining a political fund and making political expenditures. Violation of the provisions is an offence, giving rise to a penalty of A$5,000 (section 97S). Secondly, the Act requires a person's membership in an organization to end if that person has not paid his or her membership subscription for three months (section 64B). Thirdly, the Committee notes that the definition of "finance official" had been expanded to include an employee of an organization who is entitled to participate in the financial management of the organization in a representative or advisory capacity (section 74), thus potentially subjecting a wide range of people to the financial obligations of an organization. The penalties for breach of financial duty have also recently been amended to add disqualification from holding office in any organization for up to three years (section 80). The financial official is also subject to a penalty for any direct or indirect involvement in the violation of provisions concerning political expenditures (section 97S). The Committee is of the view that the above-noted provisions constitute excessive interference in the internal affairs of organizations, contrary to Article 3, and suggests that such matters be left to the rules of the organizations.

Articles 3 and 10 of the Convention (Restrictions on strikes). The Committee notes the extensive amendments to the Industrial Relations Act, 1979, regarding the right of unions to organize their activities to further and defend the interests of workers, resulting from the adoption of the Labour Relations Legislation Amendment Act, 1997. The Committee notes in particular the following provisions which in its view unduly limit the exercise of legitimate strike action:

-- The ability of a strike to be brought to an end through "resume work orders" in a broad range of situations, and the limitation of the objectives of the strike to wages and conditions of employment of the employees participating in the strike. Also, a potentially wide range of people are permitted to bring an application and there are more avenues created to challenge a denial of a resume work order than a granting of such an order (sections 32 and 44).

-- The prohibition of secondary action through the restrictive definition of the objectives of the strike (sections 32 and 44).

-- Essential services -- Again with reference to sections 32 and 44, a strike can be brought to an end in an essential service, which is not defined in the Act, or where it indirectly threatens the welfare of the employees participating or if it may cause "undue hardship" to any of the parties to the dispute. The Committee requests information on how these terms have been interpreted and applied, recalling that a strike may only be prohibited in undertakings performing an "essential service" as strictly defined, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee also recalls that where the right to strike is subject to restrictions or prohibitions, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures, leading if necessary to arbitration machinery seen to be reliable by the parties concerned (see General Survey, op. cit., paragraph 164). The Committee, therefore, requests the Government to inform it of the compensatory guarantees existing where the right to strike has been withdrawn pursuant to the Act.

-- Pursuant to section 97B, common law rights and liabilities are not affected by the Act. Since most, if not all, industrial action is prima facie unlawful at common law, due to this provision, trade unions appear to have been essentially denied the right to strike in order to protect and promote the economic and social interests of workers. There do not appear to be any provisions in the Act to protect workers from prejudice because of their participation in legitimate trade union activities, including strikes, nor to protect them from criminal liabilities.

-- Pre-strike ballots -- The Committee notes that the recently added Part VIB of the Act institutes a mandatory system of pre-strike ballots, consisting of numerous stages. In the view of the Committee, the complex and lengthy procedures mandated in the Act make it extremely difficult, and in many cases impossible from a practical point of view, to declare a legal strike, or to declare a strike in a timely manner. The Committee notes that harsh penalties can be imposed on an organization of employees or an officer or employee of the organization for inciting, encouraging or assisting a member of an organization to participate in a strike where there has not been a pre-strike ballot, including cancellation or suspension of the organization's registration (sections 73(3), 97C, 97K). In addition, with respect to the threshold that must be met for a pre-strike ballot to be declared successful (a majority of those entitled to vote) (section 97C), the Committee recalls that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. Furthermore, section 97E provides that a pre-strike ballot may be forced by an employer on a test of his or her belief that a strike is likely to occur. A ballot may also be forced by someone who believes he or she is likely to be affected by the strike. This provision, as well as section 97F which gives the Minister and the Commission broad powers to force a ballot, in the view of the Committee, restrict legitimate strike action.

The Committee requests the Government to review the Industrial Relations Act, 1979, in the light of the above comments, and take measures to bring it into fuller conformity with the requirements of the Convention.