Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

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 Industrial Relations Act, 1999 of Queensland which repeals the Workplace Relations Act, 1997 and the Industrial Organizations Act, 1997. The Committee also notes the decisions of the Australian Industrial Relations Commission (AIRC) and of various courts at the State and Federal levels which were appended to the Government’s report.

Federal jurisdiction

1.  The Workplace Relations Act, 1996.  The Committee previously expressed the hope that simplified summaries of the Workplace Relations Act, 1996 (The Act) would be made available to workers and employers. The Committee observes with interest the Government’s indication that "user guides" and "fact sheets" on the main elements of the Act have been published by the Government and distributed widely to assist employers and employees.

Article 2 of the Convention.  Registration requirements.  Noting that the Act significantly altered the registration system, providing for the registration of general and enterprise organizations (section 189), the Committee requested the Government to provide information on its practical application. The Committee also requested information concerning how the right to associate, to negotiate and to strike is applied for workers’ organizations with membership of less than 50 employees, or where the majority of those entitled to be members do not support registration of an enterprise association. The Government indicates that there is no legal restriction on the formation of workers’ organizations outside the provisions of the Act, and unregistered organizations of any size may lawfully be formed and may negotiate with employers; however, strike action taken by an unregistered organization of workers would not be protected from civil liability. In addition, an enterprise association that did not have the support of a majority of employees eligible for membership could not be eligible for registration, and thus would be in the same position as any other unregistered organization. The Government points out, however, that there is no legal requirement that an organization of workers have a minimum level of membership in an enterprise to represent its members in that enterprise. The Committee also notes the Government’s explanation that members of an enterprise organization that could not be registered might be eligible for membership of a general registered organization, registration of which does not depend on the level of membership the organization has in that enterprise.

The Committee notes that according to the Government, since the commencement of the relevant provisions of the Act, there have been 13 applications for registration of workers’ organizations, eight general and five enterprise. Of the general organizations applying for registration, only one was granted (four were refused, and the other proceedings have been adjourned or are pending). Of the five enterprise unions, only one application was granted. Given the low rate of applications for registration that have been approved, and that registration confers a number of significant traditional advantages on an organization, the Committee considers that the registration requirements may not be reasonable, thus encroaching on the right of workers to form organizations of their own choosing without previous authorization. In this regard, the Committee requests the Government to consider reviewing the registration requirements to ensure that workers without distinction whatsoever are entitled to form and join organizations of their own choosing. The Committee also requests the Government to continue providing information on the practical application of the registration system, including supplying statistics as well as the reasons for the refusal of the applications in both enterprise and general unions.

Article 3.  Right to draw up their constitutions and rules.  The Committee previously requested the Government to refrain from any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules by leaving the issue of disciplining of members to the rules of the organization, if the organization and its members so wish, and to amend sections 298R and 298U of the Act accordingly. Noting the Government’s response to the effect that it will consider complying with the Committee’s request, the Committee encourages it to take positive measures in this respect.

Articles 3 and 10.  Organizing administration and activities to further and defend the interests of workers.  The Committee takes note of the court decisions and comments provided by the Government concerning the scope of "protected action" and matters that are or are not permitted to be covered by certified agreements. Concerning the relationship between section 166A providing tort immunities in certain circumstances, and the other provisions of the Act providing protection for industrial action (sections 170ML, 170MT and 170MU), the Committee notes that according to the Government, section 166A applies to both protected and unprotected industrial action, and the relationship between the two sets of provisions is only relevant where proceedings under section 166A concern protected action. Where proceedings under section 166A fail to stop industrial action that is protected, section 170MT operates to make that industrial action immune from tort proceedings that might otherwise be available. The Committee takes due note of this information and requests the Government to continue providing relevant court and tribunal decisions concerning this matter.

2.  Trade Practices Act, 1974.  Secondary boycotts.  Regarding the application of section 45E of the Act, the Government states that it is not aware of any cases involving the application of this provision to industrial action by workers. The Committee takes note of this information, and requests the Government to keep it informed in its next reports whether there have been any cases involving the application of this provision.

State jurisdictions

New South Wales.  The Committee notes the information provided by the Government concerning the liability of striking workers and their organizations, and the application in practice of the Police Service’s Protocol for pickets. As regards 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, while noting the information provided by the Government on the existing substantive and procedural safeguards, and on the Commission’s powers in this respect, the Committee recalls that prohibitions of 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.

Western Australia.  The Committee takes due note of the Government’s statement that it intends to consider the Committee’s observations in detail, which will involve a detailed review of the industrial relations legislation and Australia’s international obligations. The Government has not, however, determined how this review will be undertaken. The Committee reminds the Government in this regard of the availability of ILO technical assistance.

Article 2.  The Committee requested various information from the Government concerning registration requirements (section 53), exclusive representation (section 72A), and the substitution of parties to an agreement (Part IIIA), and notes that the Government has supplied detailed information in this regard. Concerning registration requirements, the Committee takes due note that according to the information provided by the Government, there are currently 18 registered workers’ organizations with less than 200 members. The Committee requests the Government to continue 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. Concerning the practical application of the provisions providing exclusive representation rights, the information provided by the Government emphasizes that the discretion of the Western Australian Industrial Relations Commission in this process is in reality circumscribed since it must be exercised within the confines of the requirements and duties of the Industrial Relations Act, 1979. The Government also points to case law establishing additional objective criteria to be applied in determining exclusive representation rights. The Committee takes due note of this information.

On the issue of the substitution of one organization for another as a party to an award or industrial agreement, the Committee notes the Government’s statement that it wishes to consider in detail the Committee’s specific observations; the Government also provides the following preliminary information on this subject: no organization has been substituted for another and therefore it remains to be seen how matters under Part IIIA would proceed in practice; Part IIIA regulates the rights and obligations only of those workers’ organizations that chose to participate in the formal system under the Industrial Relations Act; any organization subject to Part IIIA would have made a democratic decision to pursue coverage under the federal system; there are processes in place to ensure workers’ organizations are informed of the decision; an organization is neither dissolved nor is its registration cancelled, rather where an organization chooses to abandon a State award or agreement in favour of a Federal alternative, its control of the State instrument it has abandoned is surrendered. The Committee notes the information provided by the Government; however, this information addresses the situation of the party being withdrawn from the agreement, and not the party ultimately substituted. Noting that recognition of the most representative union may be granted for the recognition of certain preferential rights, the Committee observes that the provisions at issue do not address the representative nature of the organization which takes over the award or industrial agreement. The Committee expresses the firm hope that in its further consideration of the Committee’s comments, the Government will take measures to amend the legislation to ensure that the representative nature of an organization is the paramount criterion for permitting it to take over an award or industrial agreement.

Article 3.  Interference in internal affairs.  The Committee had expressed the view that the following provisions constitute excessive interference in the internal affairs of the organizations:

-  procedures and limitations for maintaining a political fund (Part VIC);

-  requiring a person’s membership to end where subscriptions have not been paid for three months (section 64B);

-  the expansive definition of "financial officer", potentially subjecting a wide range of people to the financial obligations of an organization and to the penalties for breach of such obligations (sections 74, 80 and 97S).

The Government states in its report that it wishes further to consider the Committee’s views regarding these provisions, but states as an interim response that there are often very sound policy reasons to regulate the electoral and financial affairs of workers’ and employers’ organizations to protect the interests of individual members. While acknowledging that reasonable financial accountability is acceptable, the Committee considers that the abovementioned provisions go further, and constitute excessive interference in the internal affairs of organizations, and again suggests that such matters be left to the rules of the organizations.

Articles 3 and 10.  Restrictions on strikes.  The Committee raised previously a number of provisions that, in its view, unduly limit the exercise of legitimate strike action:

-  recourse to work orders which can be granted in a wide range of situations and by a wide range of people to bring a strike to an end;

-  limitation of the objectives of a strike to wages and conditions of employment of the employees participating in the strike, thus prohibiting secondary action (sections 32 and 44);

-  a strike can be brought to an end in an essential service, which is not defined, or which indirectly threatens the welfare of the employees participating in the strike or if it may cause "undue hardship" to any of the parties to the dispute (sections 32 and 44);

-  the lack of protection from common law liabilities, which in effect denies the right to strike in order to protect the economic and social interests of workers (section 97B);

-  a complex and lengthy mandatory pre-strike ballot procedure which makes it difficult, if not impossible, to declare a legal strike or to declare a strike in a timely manner, and which allows people other than the workers and their organizations to force a ballot (Part VIB).

The Committee notes that the Government has not provided a substantive reply concerning these issues, but rather states that it wishes further to examine the Committee’s views. The Committee, being of the view that the above provisions unduly limit the exercise of legitimate strike action, again urges the Government to take measures as soon as possible to bring the legislation into conformity with Articles 3 and 10 of the Convention.

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