Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

Articles 2, 3 and 5 of the Convention. Right of workers to form and join organizations of their own choosing without previous authorization and of these organizations to elect their officers, freely organize their activities and formulate their programmes without undue interference. In its previous comment, the Committee noted the deep and serious concern expressed by the ITUC regarding the attempt by the Government to pass the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 into law, which it considered was contrary to the Convention. Having noted with concern the numerous proposals raised in the Bill which would broaden the possibilities of intervention in the internal functioning of workers’ organizations, the Committee had called upon the Government to review the proposals in the Bill with the representative workers’ and employers’ organizations concerned so as to ensure that any measures adopted were in full conformity with the Convention and to keep it informed in this regard. The Committee notes from the Government’s report that, on 26 May 2020, the Prime Minister announced that the Government would not pursue a further vote in the Parliament on the Ensuring Integrity Bill. The Prime Minister indicated that this decision was made in good faith in order to maximise the opportunity for genuine negotiation, compromise and cooperation as part of an industrial relations reform process designed to create jobs and chart a path back to mutually beneficial prosperity following the COVID-19 pandemic. The Committee requests the Government to provide information in its future reports on any legislative developments or proposals concerning the industrial relations reform process.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to take all appropriate measures, in consultation with the social partners, to review: (i) the provisions of the Competition and Consumer Act prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act (FWA) relating to suspension or termination of protected industrial action in specific circumstances; (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and (iv) boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade; and to provide detailed information on the application of these provisions in practice with a view to bringing them into full conformity with the Convention.

The Committee notes the Government’s reiteration that the 2015 reports of all three independent bodies, which had examined the operation of secondary boycott provisions under the Competition and Consumer Act, found that a strong case remained for retaining their prohibition. As regards the Crimes Act, the Committee notes the Government’s indication that there have been no referrals for prosecution of an offence contrary to section 30J since the 1980s and that there has only been one prosecution of an offence contrary to section 30K in 1988. The Government therefore does not consider that these offences are being used in a manner contrary to the right of workers’ organizations and does not consider that a review of these provisions is necessary at this time.

While duly noting the absence of prosecution under the Crimes Act in recent times, the Committee, observing the chilling impact that these provisions may nevertheless have on the right of workers’ organizations to organize their activities and carry out their programmes in full freedom, once again requests the Government, to continue to keep the above-mentioned provisions under review, in consultation with the social partners, so as to ensure that they are not applied in a manner contrary to this right. It further requests the Government to continue providing detailed information on the application of these provisions in practice.

In its 2019 report, the Government indicated that it considers the above provisions dealing with industrial action to be necessary, reasonable and proportionate to support the objects of the FWA, which is to provide a balanced framework for cooperative and productive industrial relations that promotes national economic prosperity and social inclusion for all Australians. While protected industrial action is legitimate during bargaining for a proposed enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease, at least temporarily. The Government adds that a variety of factors must be taken into account when considering an application under section 423 of the FWA and that such applications are rare, with two applications lodged in 2016–17 and one application lodged in 2017–18. As regards section 424, there have been relatively few applications with only nine in 2017–18, in contrast to 579 applications for a protected action ballot order during the same period. Finally, there were only two applications made under section 426 in 2017–18.

The Government indicates that no decisions were made under sections 423 and 426, while it provides some examples of decisions taken by the FWC under section 424 either to suspend or terminate protected industrial action or to refuse to issue such an order. Cases concerning the termination or suspension of industrial action included: (a) terminated action in an oil refinery that would cause significant damage to the Western Australian economy estimated at nearly 90 million Australian dollars per day as well as to the Australian economy as a whole; (b) suspension for two months of industrial action by employees of court security and custodial services where the action threatened to endanger the personal safety, health and welfare of part of the population; (c) the suspension in the form of an indefinite ban on a work stoppage in railway transport which threatened to endanger the welfare of a part of the population and threated to cause significant damage to the Sydney economy; and (d) termination of industrial action affecting the Australian Border Force. An application requesting termination of industrial action in independent schools was however refused noting that, while the action was causing “inconvenience”, it was “not as yet causing significant harm”.

The Committee appreciates the information transmitted by the Government concerning the practical application of these provisions in the FWA. The Committee notes that some of the services concerned in the cases where industrial action was either suspended or terminated (such as border control, court security and custodial services) may be understood to be essential services in the strict sense of the term or public servants exercising activity in the name of the State where strike action may be restricted. The Committee recalls however that it does not consider oil refinery or railway transport to constitute services in which this right may be fully restricted, although the Government may consider the establishment of negotiated minimum services.

In the light of the above comments, the Committee requests the Government to keep it informed of any steps taken within the framework of the overall industrial relations reform process to review these provisions of the FWA.

The Committee is raising other matters in a request addressed directly to the Government.