Observation (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

Articles 3 and 10 of the Convention. Organizing administration and activities to further and defend the interests of workers.

1.  The Workplace Relations Act, 1996.  The Committee previously noted the following discrepancies between provisions of the Workplace Relations Act, 1996 and the Convention:

-  Restrictions on the objectives of strikes.  The Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national level agreements (section 170LI), which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests. It also prohibits industrial action with the aim of coercing an employer to make payments in relation to periods of industrial action (sections 166A and 187AB), and industrial action can lose protected status if it involves a demarcation dispute (a dispute (i) between rival organizations or within an organization as to the rights, status or functions of members; (ii) between employers and employees or between members as to the demarcation of functions of employees; or (iii) concerning representation of industrial interests) (sections 4, 166A and 170MW), which also excessively limit the subject matter of a strike.

-  Prohibition of sympathy action.  Sympathy action is effectively prohibited under the Act (section 170MW(4) and (6)). Industrial action also remains unprotected if it involves secondary boycotts (section 170MM).

-  Restrictions beyond essential services.  The bargaining period can be terminated or suspended, thereby divesting industrial action of its protected status, where industrial action is threatening to cause significant damage to the Australian economy or an important part of it (section 170MW(3)). In addition, registration of an organization may be cancelled where it or its members engage in industrial action interfering with trade or commerce or the provision of any public service (section 294), which for practical purposes prohibits strikes in such circumstances.

The Government reiterates in its report that the Act does not expressly prohibit strike action (except in relation to the period during which a collective agreement under the Act is in operation) but rather provides for certain industrial action to be protected from civil liability; in its view, the conditions to be fulfilled before taking industrial action are reasonable and appropriate in the context of the national system as a whole. While noting the Government’s comments, the Committee must again point out that given that "unprotected" strikes can give rise to an injunction, civil liability and dismissal of the striking workers (sections 127, 170ML, 170MT and 170MU), the legitimate exercise of the right to strike can, for all practical purposes, result in sanctions.

With respect to the right to strike in support of a multi-employer, industry-wide or national-level agreement, the Government states that the Act does not expressly limit or restrict the scope of the subject matter pertaining to the relationship between an employer and employee, but does provide immunities in respect of a proposed single-business agreement. The Committee recalls that where strike action is "unprotected" and therefore potentially subject to a wide range of sanctions, as in the case of action in support of multi-employer, industry-wide and national-level agreements, it is for all practical purposes prohibited. On the issue of strike pay, the Committee acknowledges the Government’s statement that it is not incompatible with the Convention for an employer to refuse to pay wages to employees on strike. However, in the Committee’s view, providing in legislation that workers cannot take action in support of a claim for such wages, is not compatible with the principles of freedom of association.

Concerning industrial action threatening to cause significant damage to the Australian economy, the Government stresses that the AIRC is not required to terminate the bargaining period (and thereby divesting the action of protected status) but rather has discretion to do so, and that conciliation and arbitration procedures are then available to the parties. In the view of the Committee, however, since there remains a very real possibility for workers and their organizations to be subject to sanctions for taking such strike action, industrial action threatening to cause significant damage to the Australian economy is essentially prohibited. The Committee recalls that strike action may be restricted or even prohibited in essential services, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey on freedom of association and collective bargaining, 1994, paragraph 159). However, prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services accepted by the Committee, as does the reference in the Act to action affecting trade, commerce and the provision of a public service.

The Committee again requests the Government to take measures to amend the provisions of the Workplace Relations Act referred to above, to bring the legislation into conformity with the requirements of the Convention.

2.  Trade Practices Act, 1974.  Secondary boycotts.  In its previous comments, the Committee noted that section 45D, as amended (section 45D, 45DA and 45DB), continues to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. While noting the Government’s statement that the penalties imposed are maximum amounts, and that injunctive relief is not granted lightly, the Committee must again note with regret that the Act prohibits a wide range of boycott and sympathy action. The Committee again recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. Since the provisions are not in conformity with the principles of freedom of association, sanctions should not be imposed. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and will continue to provide information as to the practical application of the boycott provisions of the Act.

3.   Crimes Act, 1914.  Restrictions on strikes and boycotts beyond essential services.  The Committee recalls its previous comments requesting the Government to keep it informed of any progress made in repealing the provisions of the Act banning strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" (section 30J), and prohibiting boycotts resulting in the obstruction or hindrance of the performance of services by the Australian Government or the transport of goods or persons in international trade (section 30K). The Government reiterates that it is considering the Committee’s request; however, it notes that since no action has been taken under the relevant provisions for over 40 years, amending the Crimes Act would be given low legislative priority. The Committee takes due note of this information, and expresses the firm hope that the Government will take measures to amend the legislation to bring it into conformity with the national practice and the requirements of the Convention.

4.  The Committee is also addressing certain matters directly to the Government concerning the Workplace Relations Act, 1996, and the Trade Practices Act, 1974.

State jurisdictions

Queensland.  The Committee notes that the Industrial Relations Act, 1999 (which repealed the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997) provides that an organization may be deregistered if its members are engaged in industrial action that has prevented or interfered with trade or commerce or providing a public service (section 638), which in the view of the Committee results in the prohibition of strikes going beyond essential services, as discussed above in the context of the Federal Workplace Relations Act, 1996.

Northern Territory and Victoria.  The Committee also notes that pursuant to the Northern Territory (Self Government Act), 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria.

South Australia.  The Committee noted previously that pursuant to section 222 of the Industrial Employee Relations Act, 1994, the secondary boycott provisions of the Federal Workplace Relations Act, 1996, are applied as laws of the state and therefore referred to its corresponding comments concerning the Federal Workplace Relations Act, 1996. The Committee regrets that the Government limits its response to the comment concerning South Australia by stating that it considers that the establishment of conditions to be fulfilled before taking industrial action are reasonable and appropriate and not incompatible with the Convention.

The Committee again requests the Government to take measures to have the state legislation referred to above examined and amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

The Committee is addressing a request directly to the Government concerning Western Australia and New South Wales.