Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee takes note of the discussion that took place at the Conference Committee on the Application of Standards in June 2006 and notes that in its conclusions, the Conference Committee requested the Government to provide a detailed report to this Committee, for examination, this year, on the provisions of the Work Choices Act and its impact both in law and in practice, on the Government’s obligation to ensure respect for freedom of association. It further requested the Government to engage in full and frank consultations with the representative employers’ and workers’ organizations with respect to all the matters raised during the debate and to report back to this Committee in this regard.

The Committee notes that the report requested from the Government has not been received, nor has the Government replied to the extensive comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 17 May 2006 with regard to the passage of the Work Choices Act and the National Tertiary Education Union (NTEU) in a communication dated 19 April 2006, as well as the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 12 July 2006.

In a communication dated 29 November 2006, the Government of Australia explains the range of factors that significantly impeded its efforts to provide a report to the Committee. In particular, the Government refers to the constitutional challenge to the Work Choices Act, which was only concluded on 14 November 2006, when the High Court dismissed the challenge in its entirety. The Committee further notes the Government’s indication that, in dismissing the challenge, the High Court made no findings concerning the merit of the Work Choices Act, but merely held that the Australian Government had the legal authority to enact the legislation.

The Committee notes the extensive legislative changes introduced at the federal and state levels pursuant to the amendment of the Workplace Relations Act 1996 (the WR Act) by the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act).

Federal jurisdiction

Article 3 of the Convention. Right to strike. The Committee recalls that its previous comments concerned the conformity of several legislative provisions, including of the WR Act, to the Convention. In particular, the Committee had requested the Government to amend: (i) section 170MN of the WR Act which prohibited industrial action in support of multiple business agreements; the Committee notes, in this respect, that section 423(1)(b)(i) of the WR Act, as amended by the Work Choices Act, excludes such agreements from the procedure for initiating a bargaining period thereby preventing the staging of protected industrial action in relation to such agreements; (ii) section 187AA of the WR Act prohibiting industrial action in support of a claim for strike pay (now section 508 of the WR Act, as amended by the Work Choices Act); (iii) section 45D of the WR Act prohibiting secondary boycotts (now section 438 of the WR Act as amended); (iv) section 170MW of the WR Act which provided for the power of the Australian Industrial Relations Commission (AIRC) to terminate a bargaining period, and thus the ability to take protected industrial action, when the action was threatening to cause significant damage to the Australian economy or an important part of it (now section 430(3)(c)(ii) of the WR Act as amended); (v) section 30J of the Crimes Act, 1914, which prohibited industrial action threatening trade or commerce with other countries or among states; and (vi) section 30K of the Crimes Act, 1914, 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.

The Committee notes that, according to ACTU, not only have the Committee’s previous comments not been addressed, but the Work Choices Act introduced additional prohibitions on industrial action. Thus, according to ACTU:

(i) the WR Act as amended by the Work Choices Act prevents the taking of lawful industrial action relative to “pattern bargaining”, that is, negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even with different subsidiaries of the same employer-parent company (section 421 WR Act as amended). The Committee observes that under section 439 of the WR Act (as amended) industrial action in support of pattern bargaining is not protected action. The AIRC must not grant an order authorizing a strike ballot if the applicant is engaged in pattern bargaining (section 461(1)(c) WR Act as amended) and the Court may grant an injunction against industrial action in support of pattern bargaining (section 497 WR Act as amended).

(ii) section 436 of the WR Act as amended further narrows the range of matters which can be the subject of industrial action by providing that such action is not protected if it is taken in support of claims which include “prohibited content”. The latter is defined in the Workplace Relations Regulations, 2006, as including a wide range of subjects that, to a large extent, constitute collective bargaining topics (see below under Convention No. 98). Moreover, section 356 of the WR Act as amended, allows the identification of prohibited content to be carried out through regulations in a non-exhaustive manner, and therefore does not prevent future exclusions from bargaining and therefore from industrial action, of an unlimited number of matters as determined by the Minister for Employment and Workplace Relations (the Minister).

(iii) Section 438 of the WR Act as amended, tightened the prohibition of industrial action taken in concert with other parties who are not protected (i.e. sympathy strikes) in that it is now mandatory for the AIRC to order that such action stop or if it has not yet occurred, that it not occur.

(iv) Section 430(3)(c)(ii) of the WR Act as amended, removes the discretion formerly held by the AIRC in respect of suspending or terminating a bargaining period in case of danger to the economy, and makes it mandatory to do so. Section 433(1)(d) and (2)(c) now makes provision for a third party who is affected by the industrial action to apply for the suspension or termination of the bargaining period, which must be granted if the AIRC is satisfied that the employer is adversely affected and economic loss is also caused to the applicant (that is, without any consideration, whatsoever, of the interests of the employees involved).

(v) Section 498 of the WR Act as amended enables the Minister to unilaterally issue a declaration terminating a bargaining period in circumstances including threatened economic damage, thereby preventing the taking of protected industrial action. The Committee further observes that section 500(a) provides for compulsory arbitration in this case with the decision being binding for up to five years under section 504(3).

The Committee also observes that to the extent that industrial action which is unprotected under the above provisions may also fall under the definition of “coercion and duress” in section 400(1) of the WR Act (which prohibits industrial action with intent to coerce another person to agree to a collective agreement), it may lead to heavy pecuniary penalties under section 407 of the WR Act.

The Committee once again recalls that strikes can be prohibited under the Convention only in essential services in the strict sense of the term, that is, those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and for public servants exercising authority in the name of the State, in addition to the armed forces and police (1994 General Survey on freedom of association and collective bargaining, paragraphs 158 and 159). Thus, the prohibitions noted above with regard to multi-employer agreements, “pattern bargaining”, secondary boycotts and sympathy strikes, negotiations over “prohibited content” that should otherwise fall within possible subjects for collective bargaining, danger to the economy, etc., go beyond the restrictions which are permissible under the Convention.

The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to amend the following provisions of the WR Act – as amended by the Work Choices Act – so as to bring them into conformity with the Convention: provisions which lift the protection of industrial action in support of multiple business agreements (section 423(1)(b)(i)), “pattern bargaining” (section 439); secondary boycotts and generally sympathy strikes (section 438), negotiations over “prohibited content” (sections 356 and 436 WR Act in connection with the Workplace Relations Regulations, 2006), strike pay (sections 508, WR Act); and provisions which prohibit industrial action in case of danger to the economy (sections 430, 433 and 498, WR Act) through the introduction of compulsory arbitration at the initiative of the Minister (section 500(a) and 504(3), WR Act). It also requests, once again, the Government to take measures to amend sections 30J and 30K of the Crimes Act, 1914, so as to bring them into full conformity with the Convention.

Building industry. In its previous comments, the Committee had taken note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409-457), concerning several discrepancies between the Building and Construction Industry Improvement Act, 2005, and the Convention, and had requested the Government to indicate in its next report the measures taken or contemplated so as to bring this Act into conformity with the Convention.

The Committee once again requests the Government to indicate in its next report any measures taken or contemplated with a view to: (i) amending sections 36, 37 and 38 of the Building and Construction Industry Improvement Act, 2005, which refer to “unlawful industrial action” (implying not simply liability in tort vis-à-vis the employer, but a wider responsibility towards third parties and an outright prohibition of industrial action); (ii) amending sections 39, 40 and 48-50 of the Act so as to eliminate any excessive impediments, penalties and sanctions against industrial action in the building and construction industry; (iii) introducing sufficient safeguards into the Act so as to ensure that the functioning of the Australian Building and Construction (ABC) Commissioner and inspectors does not lead to interference in the internal affairs of trade unions – especially provisions on the possibility of lodging an appeal before the courts against the ABC Commissioner’s notices prior to the handing over of documents (sections 52, 53, 55, 56 and 59 of the Act); and (iv) amending section 52(6) of the Act which enables the ABC Commissioner to impose a penalty of six months’ imprisonment for failure to comply with a notice to produce documents or give information so as to ensure that penalties are proportional to the gravity of any offence.

A request on certain other points is being addressed directly to the Government.