Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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 takes note of the Government’s reply to the previous 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, resulting in obstacles to the representation of workers or significant delays in this regard. In particular the Committee notes the Government’s indication that the requirement that an organization must be entitled to represent the industrial interests of the employee concerned is a long- and well-established feature of the Fair Work Act and its predecessors. It further notes the Government’s indication that the phrase “entitled to represent the industrial interests” does not mean that a registered organization is only entitled to represent the interests of its current members, but is broad enough to cover, for example, potential members or, in the case of greenfields projects, employees who have not yet been employed and are therefore unascertained.

Protected action ballots. In its previous comments, the Committee noted the observations of the ACTU that the amendment to section 437 of the FWA overturned the right to take industrial action prior to the commencement of bargaining. The ACTU further indicated 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, was a significant restriction on the right to strike, constituting a prohibition on strikes related to recognition disputes.

The Committee notes the Government’s reiteration that this amendment was considered necessary, reasonable and proportionate to achieving the legitimate objectives of: promoting the integrity of the collective bargaining framework, including by giving primacy to negotiations voluntarily entered into and conducted in good faith; balancing the right to voluntary collective bargaining with the requirement to bargain where a majority of employees wish to do so; and providing greater certainty as to the circumstances in which protected industrial action can be taken. The Government adds that applications for majority support determinations pursuant to section 236 have not significantly changed since the amendment came into force.

Recalling from its previous comments 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 once again requests the Government to review section 437(2A) of the FWA in consultation with the social partners, to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom. It further asks the Government to continue supplying information on the application of this provision in practice.

Access to the workplace. With reference to its previous comments, the Committee notes the Government’s indication that the Fair Work Amendment (Remaining 2014 Measures) Bill 2015 lapsed at the prorogation of the Parliament on 15 April 2016 and has not been reintroduced.

Fair Work (Registered Organisations) Amendment Bill. In its previous comments, the Committee noted the observations of the ACTU that the Fair Work (Registered Organisations) Amendment Bill would 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 notes the Government’s indication that the Fair Work (Registered Organisations) Amendment Act 2016 amended the Fair Work Act and the Fair Work (Registered Organisations) Act 2009 to ensure better governance and financial accountability of registered organizations (unions and employer groups). Major changes included: the establishment of the Registered Organisations Commission on 1 May 2017 to regulate registered organizations with enhanced investigation and information gathering powers; new accounting and disclosure requirements; new criminal offences for serious breaches of officers’ duties; and increased civil penalties, including penalties for breaches of officers’ duties. The Government states that the reforms were introduced following high profile instances of financial misconduct within registered organisations and were supported by the findings and recommendations of the Royal Commission into Trade Union Governance and Corruption. Observing that the broad powers of the Registered Organisations Commission may give rise to interference in the right of workers’ and employers’ organizations to exercise their activities freely, the Committee requests the Government to provide detailed information on the activities of the Commission, investigations undertaken and any penalties or fines issued.

Building industry. In its previous comments, the Committee noted the observations of the ACTU concerning the Building and Construction Industry (Improving Productivity) (BCIIP) Act and the Building and Construction Industry (Consequential and Transitional Provisions) Act. As regards restrictions on picketing in section 47 of the BCIIP Act, the Committee recalled 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, and that penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed. The Committee notes the Government’s indication that the prohibition on unlawful picketing is necessary in the interests of public safety, public order, and the protection of the rights and freedoms of others and does not of itself affect the engaging in or taking of protected industrial action under the FWA. The BCIIP Act allows the Australian Building and Construction Commissioner (ABCC) to make an application to a court against parties who engage in unlawful picketing so as to act as a disincentive and to change the culture of the industry for the better, thereby protecting the rights and safety of all workers and employers. The Government adds that to date, no penalties have been imposed for unlawful picketing. The Committee also observes that the Committee on Freedom of Association has reviewed this matter within the framework of Case No. 3278 and requested it to ensure that the prohibition of unlawful picketing is applied in a manner consistent with the principles of freedom of association and the effective recognition of the right to collective bargaining and to provide detailed information on the manner in which section 47 is applied in practice across the next three years and copies of any relevant court decisions that might touch on the interpretation of this section during that period. The Committee requests the Government to continue to consider the application of this section, in consultation with the social partners, with a view to ensuring that its provisions are in conformity with the above-mentioned considerations and to provide information on any developments in this respect.

In its previous comments, the Committee requested the Government to provide information on measures taken to introduce sufficient safeguards to ensure that the functioning of the ABCC did not lead to interference in the internal affairs of trade unions and to ensure that penalties are proportional to the gravity of the offence. The Committee notes the Government’s indication that it has provided detailed comments to the Committee on Freedom of Association within the framework of Case No. 3278 and that important safeguards have been put in place to ensure that examination notices are used appropriately and to protect persons required to give information under an examination notice. Moreover, the Government indicates that the BCIIP Act interacts with the framework of the FWA, which provides stronger protections for workers. Observing that the Committee on Freedom of Association requested the Government to keep it informed of any use of these penal sanctions against trade unions over a period of three years, the Committee requests the Government to continue to provide information on any measures taken or envisaged to further safeguard the rights of workers’ organizations in exercising their legitimate activities and to ensure that any penalties inflicted for failure to provide information requested are proportional to the gravity of the offence.

In its previous comments, the Committee requested the Government to review the application of provisions in the BCIIP Act which defined 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. The Committee notes the Government’s indication that these provisions are reasonable, necessary and proportionate to legitimate aims, including that sympathy action (i.e. by persons not directly engaged in bargaining for an enterprise agreement) is not used as a means to place unreasonable pressure on employers in the building industry during enterprise bargaining. The Government adds that these adjustments were based on recommendations by the Cole Royal Commission to address undesirable practices that were more common in the building industry than in other industries. Recalling once again that workers’ organizations should be able to call for industrial action in support of multi-employer contracts, the Committee requests the Government to provide information on any further measures taken 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 (NSW). 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. The Committee notes from the Government’s latest report that there has still not been any action taken to cancel the registration of a registered organization on the grounds set out in section 226(c) and that the 1996 IRA has no effect beyond the NSW public sector and local government. It further observes the Government’s indication that workers in state-owned corporations delivering essential services such as electricity, water, transport, etc., lie outside the NSW industrial relations jurisdiction and are therefore not covered under the IRA but rather under the provisions of the Fair Work Act 2009. The Committee requests the Government to provide information on any use of this provision to cancel the registration of a registered organization.

Queensland. The Committee previously noted that the Industrial Relations Act (IRA), 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)). While noting with interest that, following the review of the IRA, section 241 of the 2016 Act relating to Industrial Relations in Queensland now grants this authority to the Queensland Industrial Relations Commission (established as a court of record), the Committee observes that the new Act retains the provision for suspension or termination of industrial action which threatens to cause significant damage to the State’s economy or part of it. The Committee further observes that following the Commonwealth’s expansion of its industrial relations jurisdiction in 2005 to cover all trading corporations in the private sector, the Queensland’s industrial relations jurisdiction and the scope of the IRA in this regard now comprises state and local government sectors and some statutory entities specifically excluded from the national system. Recalling that it does not consider that economic damage in itself renders a service essential justifying restrictions on strike action, the Committee requests the Government to provide information on any instances where the commission may have suspended or terminated industrial action under this provision.

With reference to its previous comments, the Committee had also requested the Government to review section 391A of the 1999 IRA which provided 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. The Committee notes with interest that this restriction no longer figures in section 371 of the 2016 IRA.

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. Observing from the Government’s report that there has been no change in this respect, the Committee once again requests it to take action so that the state government will review this provision with the social partners in order 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.

[The Government is asked to reply in full to the present comments in 2020.]