Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Eligibility rules. The Committee notes the observations of the Australian Council of Trade Unions (ACTU) that a union can only take action sanctioned by the Fair Work Act (FWA) on behalf of an employee, if the Fair Work Commission is satisfied that the union is an organization that is entitled to represent the industrial interests of the employee by virtue of having a membership eligibility rule that entitles the employee to join the union in question. The ACTU indicates that in practice, this has prevented unions from representing workers, or has resulted in significant delays. The ACTU refers, in this regard, to the phrase in the FWA “an organisation that is entitled to represent the industrial interests of one or more employees or employers”. The Committee notes that this phrase applies to a number of actions regulated in the FWA, including bargaining representation (relating to certain proposed multi enterprise agreements and greenfields agreements), applications for an equal remuneration order, applications for orders relating to instruments covering a new employer and transferring employees, applications to vary or revoke a modern award, applications to deal with a dismissal dispute, and entry to premises to investigate suspected contraventions and for the purposes of holding discussions with employees (pursuant to sections 158, 176, 177, 318, 365, 481, 483A and 484 of the FWA). The Committee requests the Government to provide its comments on the observations of the ACTU, and to provide information on the application in practice of the provisions of the FWA concerning trade unions’ eligibility rules with respect to the taking of action on behalf of an employee regulated under the Act.

Protected action ballots. The Committee notes the Government’s statement that the FWA was amended in 2015 so that an application for a protected action ballot order (a precursor to taking protected industrial action) may only be made when bargaining for a proposed enterprise agreement has commenced (either voluntarily or because of a majority support determination). The Government states that this has limited the right to strike until bargaining has commenced between the employer, employees and relevant employee organization.

The Committee notes the observations of the ACTU that this amendment to section 437 of the FWA has overturned the right to take industrial action prior to the commencement of bargaining. The ACTU states that this requirement will give employers a veto right, and that it will discourage employers from engaging in bargaining as this will temporarily protect them from industrial action. The ACTU further states that the obligation to obtain a majority support determination (pursuant to section 236 of the FWA, a determination by the Fair Work Commission that a majority of employees that will be covered by the agreement want to bargain with the employer) where the employer refuses to bargain, prior to seeking a protected industrial action ballot order, is a significant restriction on the right to strike, constituting a prohibition on strikes related to recognition disputes.

The Committee recalls that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and, in any event, not such as to burden rights under the Convention by placing a substantial limitation on the means of action open to trade union organizations. It further recalls that a ban on strikes related to recognition disputes for collective bargaining is not in conformity with the principles of freedom of association. The Committee requests the Government to provide its comments on the observations of the ACTU, to supply information on the application of section 437(2A) of the FWA in practice, and to take measures, in consultation with the social partners, to ensure that the abovementioned principles are fully complied with.

Process for protected action ballots. The Committee notes the information provided by the Government, in response to a request for information on the impact of the amendments made to the FWA to streamline the process for conducting protected action ballots, that between 1 April 2013 and 31 March 2016, 92 per cent of applications were granted (2,066 out of a total of 2,250).

Access to the workplace. The Committee notes the observations of the ACTU that proposed amendments to the FWA, through the Fair Work Amendment (Remaining 2014 Measures) Bill 2015, will restrict access to the workplace by trade union representatives and reverse recent amendments related to the location of interviews and discussions, as well as concerning the provision of transport and accommodation arrangements in respect of remote locations.

The Committee notes that the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 will amend section 484 of the FWA to require that a permit holder may enter premises for the purpose of holding discussions with one or more workers whose industrial interests the permit holder is entitled to represent, if an enterprise agreement applies to the work performed on the premises and the permit holder’s organization is covered by the enterprise agreement. If the permit holder’s organization is not covered by an enterprise agreement, they may enter the premises if a member, or prospective member, of the organization has invited the organization to send a representative to the premises for the purposes of holding a discussion. The Committee recalls that governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers. The Committee requests the Government to provide its comments on the issues raised by the ACTU, and trusts that, in consultation with the social partners, it will ensure that the amendments fully respect the abovementioned principles. The Committee further requests the Government to provide information on the access to the workplace by trade union officials in practice.

Fair Work (Registered Organisations) Amendment Bill. The Committee notes the observations of the ACTU concerning the Fair Work (Registered Organisations) Amendment Bill, indicating that this Bill will further regulate the activities of unions and increase the penalties for officials of registered organizations, which includes unions, including the introduction of criminal offences related to financial management. The Committee requests the Government to provide its comments on the ACTU’s observations.

Building industry. The Committee notes the observations of the ACTU concerning the Building and Construction Industry (Improving Productivity) Act and the Building and Construction Industry (Consequential and Transitional Provisions) Act. The ACTU indicates that the Building and Construction Industry (Improving Productivity) Act increases financial penalties for industrial conduct for both unions and individual workers and prohibits certain forms of picketing.

In this respect, the Committee notes that the Building and Construction Industry (Improving Productivity) Act prohibits organizing or engaging in an unlawful picket (section 47(1)), defined as an action for the purpose of preventing or restricting a person from accessing or leaving a building site or an ancillary site; or picketing that directly prevents or restricts such access or leaving; or would reasonably be expected to intimidate a person accessing or leaving such sites; and is motivated for the purpose of supporting or advancing claims against a building industry participant in respect of the employment of employees or for the purpose of advancing industrial objectives of a building association (section 47(2)).

The Committee recalls that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, while it is also necessary to guarantee respect for the freedom to work of non-striking workers and the right of the management to enter the premises. It further recalls that all penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed. The Committee requests the Government to review the application of the Acts, in consultation with the social partners, with a view to ensuring that their provisions are in conformity with the abovementioned principles and to provide information on any developments in this respect.

The Committee notes the indication of the ACTU that the abovementioned Acts permit the Australian Building and Construction Commission (ABCC) to interrogate workers to extract information about industrial relations issues upon threat of up to six months imprisonment for failure to cooperate. The ACTU indicates that the Acts remove safeguards in place to protect persons interrogated by the ABCC, with effects including that the ABCC can authorize notices requiring persons to produce documents or give information as a first resort, empowering the Director of the ABCC to issue coercive notices, and the imposition of a non-disclosure order following interrogation. The Committee notes that the Acts re-establish the ABCC, and empower it to issue notices requiring a person to give information, produce documents and answer questions, with failure to do so punishable with a penalty of imprisonment of up to six months. In this respect, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2326, when examining earlier Australian legislation on the building and construction industry, which requested that safeguards be introduced to ensure that the functioning of the ABCC did not lead to interference in the internal affairs of trade unions. With respect to the penalty of up to six months’ imprisonment for failure to comply with a notice by the ABCC to produce documents or give information, the CFA conclusions requested that measures be taken to ensure that penalties are proportional to the gravity of the offence (Report No. 338, paragraph 455). The Committee requests the Government to provide information on measures taken to introduce sufficient safeguards in this respect and to ensure that penalties are proportional to the gravity of the offence.

The Committee notes that the Building and Construction Industry (Improving Productivity) Act defines an unlawful industrial action as including action that is engaged in concert with one or more persons (or the organizers of the action include persons) that are not “protected persons”. Protected persons are defined as an employee organization that is a bargaining representative for the proposed enterprise agreement; a member of such an organization who is employed by the employer and who will be covered by the enterprise agreement; an officer of such an organization; and an employee who is a bargaining representative for the proposed enterprise agreement. In this respect, the Committee refers again to the conclusions and recommendations of the CFA in Case No. 2326, in recalling that workers in the construction industry should enjoy the right to strike without undue impediments. The CFA recalled that provisions which prohibit strikes, if they are concerned with the issue of whether a collective employment contract will bind more than one employer, are contrary to the principles of freedom of association. Concurring with the CFA, the Committee considers that, under their right to freely organize their activities and to defend workers’ interests, workers’ organizations should be able to call for industrial action in support of multi-employer contracts. The Committee requests the Government to review the application of these provisions with the social partners, and to provide information on any developments in this regard.

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. In this respect, the Committee noted the Government’s indication that no registered industrial organization has had its registration cancelled on the grounds set out in section 226(c). The Committee recalls that the cancellation of registration of an organization is an extreme measure involving a serious risk of interference by the authorities with the very existence of organizations, that the presence of such legislation may inhibit the exercise of otherwise protected industrial action, and that any prohibition of the right to strike and related penalties 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. Noting the Government’s indication that there have been no changes to the industrial legislation in New South Wales, the Committee requests the Government to provide information on any measures taken or contemplated to amend this provision in light of the abovementioned principles.

Queensland. The Committee previously noted that the Industrial Relations Act, 1999 had been amended to provide the Minister (Attorney-General) with the power to terminate protected industrial action in relation to a proposed agreement, if the Minister is satisfied that the action is being engaged in, or is threatened, intending or probable, and that the action is threatening or would threaten to cause or has caused, significant damage to the economy, community or local community, or part of the economy (section 181B(1)(a) and (b)(ii)). The Committee recalls that it does not consider that economic damage in itself renders a service essential so as to justify restrictions on strikes. In addition, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body, which has the confidence of the parties. Noting the Government’s indication that Queensland is currently undertaking a comprehensive review of its industrial relations legislation, the Committee requests the Government to take appropriate measures, in consultation with the social partners, to review the Industrial Relations Act and to provide information on all measures taken or contemplated in this regard.

The Committee previously noted the observations of the ACTU that the Industrial Relations Act, 1999 had been amended so that any provision requiring an employer to facilitate deductions of industrial association membership subscriptions from an employee’s wages were of no effect. In this respect, the Committee notes that section 391A of the Act provides that an employer may not deduct from an employee’s wages an amount for paying the employee’s membership subscription for an industrial association, even if the employee has authorized the amount to be paid to an industrial association, and any contract that provides for such a deduction is void. The Committee recalls that the deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and trade unions without legislative obstruction. The Committee requests the Government to review section 391A of the Industrial Relations Act, in consultation with the social partners, and to provide information on any progress achieved in this respect.

Western Australia. The Committee had previously raised the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid, and requested the Government to indicate any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. In this respect, the Committee notes the Government’s indication that the government of Western Australia has not progressed in its efforts to amend the Industrial Relations Act. The Committee once again requests the Government to take the necessary measures to ensure that provisions relating to trade union membership and subscriptions are removed from the law and regulated by the internal rules of the organizations concerned.