Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

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

The Committee notes that the Government’s report does not address most of the issues previously raised by the Committee.

Federal jurisdiction. The Workplace Relations Act (WR Act) 1996. 1. The Committee recalls that its previous comments concerned the need to lift the restrictive conditions set for granting a permit allowing trade union representatives to have entry to the workplace in order to meet with workers (sections 740, 742(1), (2)(b), 2(d) and (2)(h)). The Committee notes the Government’s indication that the WR Act gives union officials a legally enforceable right to enter workplaces even if the employer does not wish to allow them access so as to give a reasonable opportunity to communicate with members and investigate genuine breaches of relevant industrial instruments, including AWAs.

The Committee recalls that the WR Act contains a right of entry of trade union representatives to the workplace subject to a special permit requirement (section 740 of the WR Act) which may be refused (or revoked or suspended) in certain cases including in case the official has been convicted for an offence against an industrial law, or ordered to pay a penalty under the WR Act or any other industrial law (section 742(2)(b) and (d) of the WR Act). The Committee notes in this regard that the WR Act contains a multitude of prohibitions accompanied by heavy fines or a conviction, sometimes for acts which should not constitute offences under Conventions Nos 87 and 98. Moreover, the Registrar has discretion to refuse the permit if he or she is not satisfied that the applicant is “a fit and proper person” having regard to any matter that the Registrar considers relevant in this respect (section 742(1) and (2)(h) of the WR Act). Furthermore, the permit gives the holder the right to enter premises for the purposes of holding discussions with “eligible employees”, i.e. employees who: (i) carry out work covered by an award or collective agreement that is binding on the permit holder’s organization; and (ii) are members of the permit holder’s trade union or are eligible to become a member of this trade union (section 760 of the WR Act). Thus, section 760 has the effect of preventing discussions with employees who are covered by an AWA even if they are trade union members.

The Committee recalls that the right of trade union officers to have access to places of work and to communicate with management is a basic activity of trade unions, which should not be subject to interference by the authorities. Moreover, a trade unionist should not be limited in discussions at the workplace only to eligible employees, but should also be able to apprise workers of the potential advantages of unionization or of coverage by a collective agreement instead of an AWA. The Committee therefore once again requests the Government to indicate any measures taken or contemplated to amend sections 742(1), (2)(b), 2(d) and (2)(h) and 760 of the WR Act so as to lift the restrictive conditions set for granting a permit giving right of entry to the workplace and ensure that the group of workers with whom a trade union representative may meet at the workplace is not artificially restricted.

2. The Committee recalls that its previous comments concerned the need to amend sections 798 and 807 of the WR Act on the issue of disciplining members, so as to avoid any interference that would restrict the right of workers’ organizations freely to draw up their constitutions and rules. Noting that the Government’s report does not contain any information in this respect, the Committee once again requests the Government to indicate in its next report the measures taken or contemplated to amend sections 798 and 807 of the WR Act so as to leave such matters up to the democratically elaborated rules or by-laws of the unions concerned.

State jurisdictions. New South Wales. The Committee recalls that its previous comments concerned the need to amend 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.

Noting that the Government’s report does not contain information in this regard, the Committee once again requests the Government to keep it informed of any measures taken or contemplated with a view to ensuring that any prohibition of the right to strike and related penalties are limited to essential services in the strict sense of the term and to public servants exercising authority in the name of the State. It also requests the Government to indicate the effect of the adoption of the Work Choices Act on section 226(c) of the Industrial Relations Act 1996.

Western Australia. In its previous comments, the Committee raised the issue of provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid and requested the Government to keep it informed of any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned.

Noting that the Government’s report does not contain information in this respect, the Committee once again reiterates its request for information on any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. It also requests the Government to indicate the effect of the adoption of the Work Choices Act in this respect.