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

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative recalled that her Government had appeared before the Committee at its previous session in relation to Convention No. 87 and Convention No. 98. She expressed her Government's concern and disappointment that it had been called before the Committee once again, despite the limited comments from the Committee of Experts on Australia's most recent article 22 report, and the outcome of last year's consideration by the Conference Committee, whereby the Government agreed to continue dialogue with the Committee of Experts, something it had in fact undertaken. Moreover, Australia had recently enacted new and wide ranging workplace relations legislation. This had involved a revision of almost all the federal Workplace Relations (WR) Act. The reforms included an expansion of the federal jurisdiction so that the federal laws now covered up to 85 per cent of Australian workers, compared to 50 per cent in the past. All members of the ILO and the supervisory bodies involved in the debate with Australia on this issue had been made aware of these changes. One consequence of these legislative reforms was that the comments of the Committee of Experts on Australia's workplace relations legislation were no longer strictly applicable, as they related to superseded legislation. In the Government's view, debating the detail of laws that were no longer in force raised questions as to the efficacy of the supervisory processes.

However, Australia wished to comment on the interpretation of instruments. The Committee of Experts had acknowledged in its most recent comments the Government's wish to continue a constructive dialogue on outstanding issues. However, constructive dialogue could only take place if both parties involved were willing to address the arguments presented by the other party. In this regard, it was noted that the Committee of Experts had chosen not to respond to the argument presented by the Government to the Committee at its 2005 session, concerning the appropriate interpretation of Convention No. 98. The point at issue was the view of the Committee of Experts that Article 4 of the Convention imposed an unqualified obligation to promote collective bargaining, and excluded the possibility of any other form of bargaining. Australia facilitated collective bargaining, but believed that parties should be permitted to pursue other forms of bargaining if they freely chose to do so. Resolution of this fundamental issue was essential if the present dialogue was to be productive. The Government had pointed out in its responses to the comments of the Committee of Experts, and before the Conference Committee in 2005, that Article 4 required measures for the encouragement and promotion of collective bargaining to be taken "where necessary", and that such measures were to be "appropriate to national conditions". The Government had also highlighted the fact that collective bargaining had been the norm in Australia for more than a century and that the superseded Workplace Relations Act did not give primacy to individual bargaining over collective bargaining. Consequently, the Government had argued that, as collective bargaining had been the historical norm in Australia, the availability of individual agreements as a choice among several industrial instruments could not be reasonably considered to contravene Convention No. 98. It was not appropriate to prohibit the availability of other forms of bargaining. Accordingly, in the language of Article 4, the legislation that was the subject of the Committee's comments was consistent with Australian "national conditions" and Australia was not in breach of that provision.

The Government representative reiterated her disagreement with comments made by the Worker members last year to the effect that it should simply accept the interpretation of Article 4 adopted by the Committee of Experts. The narrow interpretation of the scope of Article 4 that was being applied by the Committee of Experts was not supported by the travaux préparatoires for Convention No. 98. In fact, the travaux préparatoires gave firm support to the Government's argument. Examination of the report considered at the 1948 and 1949 sessions of the Conference revealed that the words "where necessary" were added to the draft Convention by the Office following a proposal to the Conference Committee. The report also showed that the Conference Committee that developed the Convention added the words "appropriate to national conditions" to the final draft, and reported to the Conference plenary that Article 4 was "drafted in terms designed to take account of the widely divergent conditions in various countries". The reasons behind the adoption of flexibility provisions in Article 4 could not be simply ignored. It was important that the Committee of Experts responded to this point and its particular interpretation of Article 4. The Committee of Experts had stated in its most recent comments concerning Australia that it "recalls that Article 4 of the Convention aims at the promotion of free and voluntary collective bargaining between employers or employers' organizations and workers' organizations". This comment did not acknowledge that Australia had questioned the Committee's position on the matter. As this issue went to the very core of the discussion between the Government and the Committee of Experts on Australia's compliance with Convention No. 98, the Government asked the Committee of Experts to respond to the Australian Government's argument.

Finally, the Government representative stated that her Government was prepared to work closely with the ILO with a view to resolving issues of interest that remained relevant following the enactment of the substantial changes to the Workplace Relations Act. To this end, the Government would respond in detail to the further comments made by the Committee of Experts and to comments made by the Australian Council of Trade Unions in its next regular report on Conventions Nos. 87 and 98, which was due in 2007.

The Worker members pointed out that the specificity of the case in question lay in a total of seven failures to comply with Conventions Nos. 87 and 98, which, at first glance, seemed to be hidden from view. This year, there was however some change; some provisions had been adapted, but new discriminations had been introduced. The Committee of Experts had provided a clear analysis, extending its observations to the jurisdiction of federate States and territories. Almost all the failures to comply related to the 1996 Workplace Relations Act. They were as follows:

(1) The 1996 Act, as well as another law dating from 1914 relating to crimes for a whole range of prohibited strikes, made any industrial action more or less impossible. The Committee of Experts had requested that all these provisions should be modified, as was the case in Queensland, which had repealed the provision that an organization whose members had taken part in industrial action that prevented or interfered with trade or commerce could be deregistered.

(2) Any worker who refused to sign an Australian Workplace Agreement (AWA) and opted for a collective contract was no longer protected from discriminatory acts by the Act of 1996, which was not in conformity with Convention No. 98, mainly Article 1 (anti-union discrimination) and Article 4 (obstacles to collective bargaining). The Australian Government claimed that AWAs were not in themselves anti-union. However, to be denied employment because of a refusal to sign such a contract and because one preferred a collective agreement was not considered discriminatory either by the Act or by relevant case law that considered that there was no working relationship between the two parties at the time. The Committee of Experts had clearly stated that the protection provided by Convention No. 98 also applied to the recruitment stage.

(3) On the issue of dismissals, the 1996 Act did forbid terminating the employment contract of a worker who refused to sign an individual contract, but wide categories of workers were excluded from this protection, including temporary, casual, pieceworkers or workers on probation. According to the Government, these exclusions were repealed by an Act of 2003, but this had not been confirmed. It appeared that some categories continued to be excluded for reasons relating to their employment conditions, or the size or the type of enterprise, a confused legal situation that required clarification.

(4) The Act also excluded protection from dismissal for anti-union discrimination for workers seeking to negotiate multi-employer contracts. The Committee of Experts stated that this was in fact discrimination as the social partners should be free to choose their level of negotiation.

(5) The 1996 law allowed employers to undertake collective bargaining with one or more trade unions, of which "at least one member" was employed in the enterprise. The employer could therefore choose the union with which it wanted to negotiate and therefore exert undue interference. The Committee of Experts pointed out that such provisions gave employers full discretion to interfere with trade union internal affairs, which was in flagrant contradiction with Article 2 of Convention No. 98.

(6) The 1996 Act clearly sought to favour, by different means, collective bargaining at the enterprise level and even individual negotiation: AWAs were given prevalence over collective agreements; the employer could directly undertake bargaining with non-unionized employees rather than with representative unions: sectoral agreements were subject to prior approval by the AIRC, whose policy it was to refuse them if they did not comply with public interest; and a new employer could choose the union with which he wished to negotiate for the coming three years. On this point, the Committee of Experts drew attention to the fact that one of the fundamental principles of Convention No. 98 was to promote free and voluntary collective bargaining between employers' and workers' organizations.

(7) In 2005, the Government announced new reforms which would provide more leeway and flexibility to employers at the workplace level. This year, it had made no comments on this point and had not sought ILO advice. Meanwhile, the reform had been passed and had already entered into force. Its content and scope would be described by the Worker member of Australia, but the least that could be said was that it did not go in the direction sought by the Committee on the Application of Standards.

The Employer members recalled that the Committee had discussed this case under Convention No. 98 several times since 1998 and noted that this year the focus had been expanded to Convention No. 87. In respect of both Conventions the Government was asked to provide its comments on the observations of the International Confederation of Trade Unions (ICFTU) and the Australian Council of Trade Unions (ACTU). In both cases, the Committee of Experts referred to the conclusions and recommendations made by the Committee on Freedom of Association in Case No. 2326, which dealt with discrepancies between the Building and Construction Industry Improvement Act 2005 and the Conventions. This reference was incorrect, as the Committee on Freedom of Association dealt with principles of freedom of association, while this Committee addressed the specific requirements of Conventions. With respect to Convention No. 87, the Employer members noted that the Committee of Experts' observation pointed to the need to amend several provisions relating to industrial action. In this regard, they recalled that the Employer members' position on the right to strike was well-known. As there was no consensus on the right to strike, it could not be included in the Committee's conclusions. They also noted that the Committee of Experts expressed satisfaction with relation to the amendments made by the Queensland Government to the Industrial Relations Act, removing subsection (b) of section 638 which provided that the full bench was empowered to order the deregistration of an organization on the grounds that the organization or its members had engaged in industrial action that had prevented or interfered with trade or commerce. Further, the Committee of Experts requested the Government to indicate progress made in amending the secondary boycott provisions contained in section 222 of the Industrial and Employees Relations Act.

With respect to Convention No. 98, the Employer members noted that the Committee of Experts drew a connection between Articles 1 and 4 of the Convention, which, in their view, was not correct. Articles 1 to 3 dealt with matters relating to the right to organize, while Article 4 dealt with collective bargaining, which was a different issue. Article 4 provided for double flexibility as it called for measures to be taken which were "appropriate to national conditions" and "where necessary". This language had been included in the Convention because the negotiators intended to ensure that collective bargaining agreements were not the only acceptable form of how workers and employers related to each other. In the Employer members' view, the bottom line was that there should be effective recognition of voluntary collective bargaining between workers' and employers' organizations, without dictating the level of bargaining. Finally, the Employer members regretted that the Government did not seek to make a tripartite arrangement to avoid a discussion of the case at this session of the Committee.

The Worker member of Australia, speaking on the effects of the Work Choices Act on Australia's compliance with Conventions Nos. 87 and 98, stated that the country was a serial offender against ILO core standards. The passage of the Workplace Relations Amendment (Work Choices Act 2005) meant that Australia's longstanding failure to comply with its obligations had substantially worsened. Since 1997, the Committee of Experts had repeatedly observed that Australian legislation as reflected in the WR Act 1996 fell well short of meeting the requirements of Conventions Nos. 87 and 98. The 2005 amendment further limited the possibility of collective bargaining. In the case of Convention No. 87, the Committee of Experts' concerns about compliance centred on the right to strike. The restrictions on industrial action in support of multi-employer agreements had been extended; the matters which could be the objectives of industrial action had been restricted; all sympathy action was prohibited; and the prohibition of industrial action went beyond essential services. Even when legal authority for industrial action was obtained, the Government could seek an order to the effect that the bargaining period was terminated. In her view, there was effectively no right to strike in Australia. The Work Choices Act 2005 further narrowed the range of matters which could be the subject of industrial action and also provided the Government with the power to dictate what matters could be excluded from industrial action because of "prohibited content". The Government could also unilaterally terminate a bargaining period if such action was deemed likely to damage the economy.

In reviewing Australia's compliance with Convention No. 98, the Committee of Experts was particularly critical of many aspects of Australian law. In its 2005 observation, the Committee of Experts had asked the Government to report any measures taken or contemplated to address its concern that a collective agreement made subsequent to an AWA could prevail over it only after the expiry date of the AWA. The Committee noted a "special issue" in that workers deciding to join a union would not benefit from the collective agreement. In her view, the Work Choices Act only provided that a collective agreement had no effect if an AWA was in place, irrespective of whether the AWA was made before or after the collective agreement and of the period of operation of the collective agreement. This primacy given to AWAs made the ability of unions to collectively bargain ineffective, and the extension of the period of operation of an AWA from three to five years only worsened matters. The Work Choices Act gave employers the freedom to refuse collective bargaining and added restrictions on industrial action, as well as sanctions for unprotected action. As to greenfields agreements, the speaker indicated that employers could effectively bargain among themselves to ensure that collective bargaining never took place. The Act also failed to provide protection to workers who refused to negotiate an AWA and who insisted on collective bargaining, which the Committee of Experts held to be contrary to Articles 1 and 4 of Convention No. 98. The speaker concluded that the Government's refusal to address the concerns of the Committee of Experts deserved strong condemnation by the Committee and the Conference.

The Worker member of Germany recalled the deep concerns expressed by the Committee on Freedom of Association over the serious violations of trade union rights in Australia. She agreed that in the construction sector a number of problems, such as illegal work or dumping, had to be addressed, but it was surprising that a democratic country such as Australia would adopt measures such as the 2005 Building and Construction Industry Improvement Act. Further, the Government ignored the recommendations of the Committee on Freedom of Association concerning the 2003 legislation. Under the 2003 and 2005 legislation, generally applicable penalties and sanctions could be increased 11 times if they were imposed in relation to negotiations with several employers that led to a multi-employer agreement, to sympathy strikes or to secondary boycotts. In cases where employers or other persons sought damages for harm suffered as a result of industrial action, the burden of proof had been put on the defendant. Because the current legislation did not permit multi-employer agreements, the Committee on Freedom of Association and the Governing Body had called on the Government to amend the legislation and to bring it into conformity with Conventions Nos. 87 and 98. Accordingly, trade unions should also be able to take industrial action in relation to multi-employer agreements. The current practice which gave preference to AWAs was contrary to Convention No. 98. The Committee of Experts rightly requested legislative changes to ensure that unions were negotiation partners where they existed and that collective negotiations did not cover only strike pay. Further, it was not acceptable that multi-employer agreements were subject to approval by the Australian Industrial Relations Commission (AIRC). Regarding the situation in the construction sector, the speaker stated that the Australian Building and Construction Commissioner had powers to interfere in internal trade union matters. Failure to supply information or documents could be punished with up to six months of imprisonment, which was out of proportion. The existing problems in this sector could not be solved through single-handed penalization of the workers. In this context, she recalled the recommendations of the Governing Body that comprehensive tripartite negotiations should take place on these matters. In Germany, a number of problems of common concern in the construction sector were successfully resolved through tripartite negotiations. Finally, she called on the Government to implement the recommendations of the ILO's supervisory bodies and to make the necessary legislative amendments.

The Employer member of Australia thanked the Committee of Experts for its report. He observed that the present case involved issues that were not new, but related, rather, to concerns with the WRA that the Committee of Experts and trade unions had first expressed some eight years ago. As the Government and the Committee of Experts continued to be apart on the interpretation of certain aspects of Conventions Nos. 87 and 98 in the Australian context, there was little new to add to this discussion, which furthermore concerned a law that had been substantially amended since the Committee of Experts' 2005 observation. He noted that the WRA had, in both its objective and substantive provisions, important references to international labour standards in the Australian national context of introducing flexible working arrangements to the labour market. He pointed out that developments in the Australian system, in law and practice, had resulted in outcomes that directly gave effect to the ILO's overall mission of removing disadvantage through decent and productive employment; unemployment had been halved to almost 5 per cent; wages had risen significantly in real terms; more people than ever before, including women and migrant workers, were employed; there was a well-skilled and educated workforce; and industrial disputes were at an all time low.

The speaker noted that the enduring difference in opinion on the scope of the right to strike, as established by Convention No. 87, stemmed from the fact that the Convention itself made no express reference to that particular right. He recalled that the Employer members did not share the Committee of Experts' view on the right to strike, nor did they agree with the proposition that the WRA was in breach of Convention No. 87 on this particular point. Australian law established a right to strike in every collective bargaining dispute at a single business level, but not in the case of multi-employer disputes. Strong policy reasons existed for this - strikes damaged economic interests and cost jobs - and to allow the right to strike, to shut an entire industry down, might gravely damage the community and the labour market, thus weakening the very base on which jobs in that sector were founded. The speaker observed that the Employer members also departed from the opinion of the Committee of Experts on the subject of sympathy strikes. The fact that Convention No. 87 did not expressly provide for the right to strike meant that governments enjoyed sufficient latitude to place limits on its exercise, according to national circumstances, and prohibitions on sympathy strikes were one such circumstance. The Employer members considered that it was more consistent with the language of the Convention to restrict the right to strike to disputes between the parties to the employment relationship. Additionally, the same policy reasons for prohibiting multi-employer industrial action, namely preserving industries and labour markets from serious disruption, also justified the prohibition on sympathy strikes.

Noting that Article 4 of Convention No. 98 only required measures "appropriate to national conditions" to be taken "where necessary" to encourage voluntary negotiation of collective agreements, the speaker expressed the view that the AWA provisions of the Australian law were fully consistent with that requirement, as they allowed for individual employment agreements while, at the same time, promoting and giving equal access to the conclusion of collective agreements. Furthermore, the flexibility implied by the phrases "appropriate to national conditions" and "where necessary" meant that governments enjoyed a significant degree of discretion in regulating the relationship between individual employment contracts and collective agreements. A number of systems and regulatory models could be fashioned, without necessarily running counter to the Convention; the AWA system was one such example.

The Worker member of the United States recalled that freedom of association was at the heart of democracy, and the right of workers to form their own labour organizations and engage in meaningful collective bargaining was at the heart of freedom of association. These rights were reflected in Conventions Nos. 87 and 98. It was unacceptable for any member State to violate core ILO standards, yet this was what Australia continued to do under its law, according to which employers had the right to refuse to bargain collectively, contrary to the will of the majority of workers at a workplace. Australia's initiative would put pressure on other nations to act similarly and placed multinational enterprises, some of which were willing to extend the right to their workers, in an untenable position. In a global economy, such violations of freedom of association had wide implications and posed serious questions for trade agreement negotiations. The stakes presented by this case were high if infringements on basic rights continued.

The Worker member of Japan expressed full support for the statement made by the Worker members. The Committee of Experts and the Committee on Freedom of Association had made clear and unambiguous conclusions that the Government of Australia had been seriously violating Conventions Nos. 87 and 98. He expressed disappointment that a socially and economically well-developed country such as Australia continued to violate these fundamental human rights, even in the face of strong recommendations to the contrary by the ILO supervisory bodies. The speaker noted with regret that no consultation with trade union representatives had taken place to discuss the revision of the legislation in question. He also expressed deep concern regarding the apparent policy of the Government not to consult or negotiate with trade unions and to practise anti-union discrimination. Consultation with social partners was a fundamental principle of the ILO and should be the guiding principle upon which day-to-day decisions were made. The speaker recalled the case of his own country, in which, after recommendations from the ILO, the Government had set up a special mechanism to encourage full and meaningful consultation with public sector trade unions. He urged the Government of Australia to implement the recommendations of the Committee of Experts in demonstration of goodwill and cooperation with the ILO. Violations of fundamental rights and the denial of democratic due process could not be permitted.

The Worker member of the Netherlands noted that one of the recurrent issues in this case related to the right to strike and that the Committee of Experts had been insisting that the Government made legislative changes. The Government had been consistently defiant, which was prejudicial to the ILO supervisory bodies and their work. However, he was pleased to note that some authorities in Australia took a different attitude. The legislative changes in Queensland were one of the very few encouraging elements of the case, which should be included in the conclusions. The right to strike was the most difficult issue to discuss under Convention No. 87, the main reason for this being a change of attitude of the Employer members who held the view that it was not covered by the Convention. The Employer members, for many years, however, had shared the views of the Committee of Experts on this issue by supporting the workers in difficult debates, sometimes even taking the lead in urging Soviet regimes to respect the right to strike and to stop criminalizing genuine union activities. To argue that this happened only because of the Cold War would undermine the credibility of the ILO and its supervisory bodies, since fundamental principles should not change along with changes in the political environment. The Committee should be careful in cases, such as the one under discussion, in order to ensure that the Convention and the principles embodied in it remained unimpaired in the future as an effective instrument to defend democracy and workers' rights.

The Worker member of New Zealand shared the concern of the Worker members that the Government of Australia had not only failed to take measures to ensure compliance with Conventions Nos. 87 and 98 but had, subsequent to the last report of the Committee of Experts, passed legislation compounding and extending the breaches of these fundamental Conventions. Australia had effectively turned away from a long tradition of tripartite cooperation to anti-union legislation. He compared the Australian Work Choices Act with the Employment Contracts Act in force in New Zealand between 1991 and 2000, which had dramatically reduced collective bargaining during a period when the disparity between rich and poor had risen quicker than in any other developed country. The two pieces of legislation were comparable in placing restrictions on strike action, especially in support of multi-employer collective agreements; giving primacy to individual agreements; and restricting the rights of unions to represent their members in collective bargaining. He believed that the Australian Work Choices Act actually went further in restricting, undermining and frustrating collective bargaining by legitimate workers' organizations and shifted the balance even further in the employer's favour.

The Government representative thanked the Committee's members for their statements. She noted that many of these comments were outside the scope of the matters being considered by the Committee and indeed some were factually incorrect. The Worker members had argued that the same issues continued to arise under the new legislation. However, the new work relation legislation could not be considered in isolation, as the matters raised in the Committee of Experts' observation should be seen in the context of the whole of Australia's unique workplace relations system. Her Government stood ready to work with the Committee of Experts and the Office on the pending matters.

The Worker members deplored the fact that the Government, which had still not provided the information requested by the Committee of Experts on the reform of labour legislation, accused others of lack of knowledge and understanding. The Worker members objected to the simplistic interpretation of Convention No. 87 given by the Employer members with regard to the right to strike, which they refused to consider as an integral part of freedom of association. The Worker members reaffirmed the link between Articles 1 and 4 of Convention No. 98 and stressed that any discrimination in respect of a trade union jeopardized all possibility to conduct collective bargaining freely. The Australian Government had not provided information concerning legislative reforms requested last year and had not requested the ILO's opinion on the matter. They noted that on the contrary, the Government affirmed that the problem lay in the interpretation of Convention No. 98 and stated that Australian legislation did not prevent collective bargaining but simply did not promote it. It should be recalled, however, that Convention No. 98 expressly provided that public authorities should encourage and promote voluntary collective bargaining. The Worker members underlined that, in the case of Australia, the Committee of Experts had revealed certain legislative provisions, which, on the one hand, enshrined anti-union discrimination and, on the other, prevented collective bargaining. They underlined the importance which this case represented for the fundamental principles of the ILO and the trade union movement in the world. The Worker members stated that the Government should be requested to provide to the Committee of Experts a detailed report concerning the new legislation. They further considered that if the Committee of Experts was to conclude that this new legislation was to the same effect as the previous one, the case of Australia should be examined next year for the third consecutive year.

The Employer members stated that the Government needed to provide information to the Committee of Experts on the new legislation to which it had referred in its statement. They considered that individual companies should not be named in submissions made to the Committee, which had the mandate to discuss the application of ratified Conventions and the measures taken by the Government to this effect. The focus of the discussion had almost exclusively been on Convention No. 98 which should be reflected in the conclusions. Clarifying their comments on the changes in the Queensland legislation, the Employer members stated that they had merely noted these changes without taking a position on their substance. Finally, they reiterated their position concerning the right to strike in the context of Convention No. 87 and insisted that this position had remained unchanged.

The Committee noted the statement by the Government representative and the debate that followed. The Committee recalled that the Committee of Experts had been making comments for several years on certain provisions of the Workplace Relations Act, particularly in relation to restrictions on the right of trade unions to exercise their activities, the exclusion from the scope of application of the Act of certain categories of workers, the limitations on the scope of union activities covered by protection against anti-union discrimination and the relationship between individual contracts and collective agreements. The Committee of Experts had also noted discrepancies between the Building and Construction Industry Improvement Act 2005 and the provisions of the Convention.

The Committee noted the Government's statement that the federal legislation criticized in the Committee of Experts' report had been significantly amended and thus the Experts' comments were no longer strictly applicable. It further noted the Government's statement that this legislative reform needed to be reviewed within the context of the workplace relations system as a whole and that it stood ready to assist the understanding of the Committee of Experts in this regard.

The Committee noted that the Workplace Relations Act had been amended by the Workplace Relations (Work Choices) Act 2005. It observed, however, with regret that, while this Committee had requested the Government to transmit copies of all draft laws that might relate to the application of the Convention to the Committee of Experts, this had not been done. It also noted certain concerns raised in respect of a lack of prior consultation on this legislation.

The Committee also noted that serious concerns were raised in respect of the impact that the new legislation would have on the application of the provisions of Conventions Nos. 87 and 98, and in particular the effect that this Act would have on collective bargaining.

The Committee requested the Government to provide a detailed report to the Committee of Experts for examination this year on the provisions of the Workplace Relations (Work Choices) Act 2005 and its impact, both in law and in practice, on the Government's obligation to ensure respect for freedom of association and, in particular, the promotion of the effective recognition of the right to collective bargaining in Australia. It requested the Committee of Experts to examine the conformity of the newly adopted legislation with the Conventions concerned. The Committee 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 this debate and to report back to the Committee of Experts in this regard.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Protected action ballots. In its previous comment, the Committee requested the Government once again to review section 437(2A) of the Fair Work Act, 2009 (FWA). The Committee recalls that, in the context of an application for a protected action ballot order to determine whether employees wish to engage in an industrial action for a proposed enterprise agreement, this provision restricts the right to take industrial action until after the commencement of bargaining. The Committee notes the Government’s indication that it is not currently considering any review or reforms of section 437(2A) of the FWA. The Committee requests the Government to continue to provide updates on the application in practice of section 437(2A) of the FWA and to engage with the social partners with a view to reviewing this provision to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom.

Fair Work (Registered Organisations) Amendment Bill. In its previous comment, the Committee requested the Government to continue to provide information on the activities of the Registered Organisations Commission (ROC) established by the Fair Work (Registered Organisations) Amendment Act, 2016 to regulate registered organizations with enhanced investigation and information-gathering powers. The Government indicates that the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022 amended both the FWA and the Fair Work (Registered Organisations) Act, 2009 (RO Act). The main amendments include the abolition of the ROC and the transfer of its regulatory functions relating to registered organizations to the General Manager of the Fair Work Commission (FWC). The Government further indicates that: (i) the functions of the General Manager are now independent (no longer under specific direction of the President of the FWC); (ii) the General Manager may make inquiries and conduct investigations regarding organizations’ compliance with the RO Act and their rules on finances and financial administration; (iii) the process includes providing a notice of proposed adverse findings, an opportunity to respond, payment of fines in case of contravention, as well as access to court; and (iv) some of the investigations undertaken relate to improper record keeping, non-compliance with the requirement to keep and report a register of members and unauthorized expenditure of funds for personal purposes in breach of official duties. The Committee understands from the above that the aim of these procedures is to prevent and investigate serious misconduct of trade union and employers’ organizations officials in relation to financing. The Committee trusts that the independent nature of the proceedings, as reported by the Government, will contribute to good governance and compliance with the law by registered organizations while at the same time avoid any undue interference by the State in the internal affairs of workers’ and employers’ organizations. The Committee requests the Government to provide information on the activities of the General Manager of the FWC in this respect, investigations undertaken and any penalties or fines issued.

Building industry. In its previous comment, the Committee requested the Government to review the application of section 47 of the Building and Construction Industry (Improving Productivity) (BCIIP) Act, which contains restrictions on picketing. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act abolished parts of the BCIIP Act, including section 47 (the amended law was renamed as the Federal Safety Commissioner Act, 2022). While no new proceedings in relation to potential contraventions of section 47 can be initiated, there are a number of ongoing procedures (there have been 49 cases dealing with unlawful picketing since the Government’s previous report). The Committee also observes the establishment of the National Construction Industry Forum as a statutory advisory body to the Government on workplace issues, including workplace relations and skills and training, in the building and construction industry. The Committee notes with satisfaction the abolition of section 47 of the BCIIP Act. The Committee trusts that the remaining pending cases in relation to allegations of unlawful picketing will be rapidly resolved, in accordance with the considerations that restrictions on picketing should be limited to cases where the action ceases to be peaceful and that penalties in respect of illegitimate actions linked to strikes should be proportionate to the offence or fault committed.

In its previous comment, the Committee requested the Government, in relation to the functioning of the Australian Building and Construction Commission (ABCC) and its examination powers, 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. The Committee notes the Government’s indication that the Secure Jobs, Better Pay Act abolished the ABCC, including the examination powers previously provided in sections 61 (Issue of Examination Notice) and 62 (Offence for failing to comply with an examination notice) of the BCIIP Act. As a result, the Fair Work Ombudsman is now the single regulator for compliance and enforcement of the FWA. The Committee notes with satisfaction the repeal of the ABCC examination powers. The Committee trusts that safeguards were put in place to ensure that the work of the Fair Work Ombudsman is conducted in a manner consistent with the Convention, so as to avoid any undue interference in the internal affairs of trade unions. The Committee requests the Government to provide information on the application in practice of these arrangements.

The Committee further requested the Government to provide information on any measures taken to review the application of the BCIIP Act provisions concerning unlawful industrial action. The Committee notes with satisfaction the reported abolition of section 46 of the BCIIP, which prohibited unlawful industrial action defined in broad terms. It also notes the Government’s indication that since its previous report, there have been 15 cases dealing with unlawful industrial action, two of which are pending. The Committee trusts that these cases will be rapidly solved and requests the Government to indicate whether any other provisions regulate unlawful industrial action in the building sector.

State jurisdictions. New South Wales (NSW). In its previous comment, the Committee requested the Government to provide information on cases where section 226(c) of the Industrial Relations Act, 1996 (IRA) was used to cancel the registration of an organization when its members engaged in industrial action having a major and substantially adverse effect on the provision of any public service. The Committee notes the Government’s indication that no action has been taken to cancel the registration of any registered organization pursuant to section 226(c) of the IRA. Taking note of this indication, the Committee requests the Government to continue to provide information in this respect and to consider amending this provision.

Queensland. The Committee requested the Government to continue to provide information on any instances where the Queensland Industrial Relations Commission (QIRC) may have suspended or terminated industrial action under section 241of the Industrial Relations Act, 2016 (Queensland) (IRA). The Committee recalls that this provision allows for suspension or termination of an industrial action where it threatens to endanger the life, personal safety, health or welfare of the population or threatens to cause significant damage to the State’s economy or an important part of it. The Committee notes the Government’s indication that since 2020, two applications were made under section 241, neither of which led to a decision by the QIRC (in one case the parties did not pursue the matter and in the other case the application was withdrawn). The Government further informs that one application was made under section 240(1) of the IRA (suspension or termination of industrial action which threatens to cause significant economic harm to an employer or employee who will be covered by the proposed bargaining instrument in relation to which the industrial action is ongoing or threatens to cause significant economic harm, where the harm is imminent) but the parties reached an agreement on the matter. Taking note of the above, the Committee requests the Government to continue to provide information on the practical application of these provisions, in particular any decisions taken by the QIRC in this regard. Further considering that terminating a strike where it threatens to cause significant damage to the economy may undermine the exercise of the right to strike, the Committee encourages the Government to review the relevant provisions, in consultation with the social partners.

The Committee further notes the Government’s indication in its report under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) that the 2021 review of the IRA pointed to a lack of clarity as to which organizations could act in industrial matters due to some organizations purporting to be trade unions but not complying with any registration or reporting requirements of the Act. In response, the Industrial Relations and Other Legislation Amendment Act, 2022 was adopted, which includes amendments to the definition of registered organizations and introduces civil penalties for misrepresentations. The Committee observes in this respect that a new amendment concerning registration allows the Industrial Relations Commission to grant an application only if the applicant organization does not have an officer: (i) who is the subject of an order made under section 483D (prohibition to represent an entity); (ii) against whom a civil penalty order was made in the previous five years; and (iii) who was an officer of a cancelled incorporated association (section 607(1)(e)); and only if the applicant is free from control by, or improper influence from, a person who was an officer of a cancelled incorporated association (section 607(1)(f)). New section 483A(f) further stipulates that an entity is eligible for registration only if it has not been refused an application for registration within the previous five years. The Committee observes that some of these provisions refer to broad criteria which may raise concerns with regard to compatibility with the Convention and recalls, in particular, that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office. While taking due note of the Government’s indication that the amendments were introduced to address concerns of entities misrepresenting themselves as trade unions, the Committee requests the Government to ensure that the amendments are applied in line with the Convention so as not to restrict the exercise, by legitimate trade union organizations, of the rights enshrined in the Convention. The Committee requests the Government to provide information on the practical application of these amendments.

The Committee further observes that section 878 of the IRA contains a list of grounds on which deregistration of an organization can be ordered. These include engagement in an industrial action which has, or is likely to have, a substantial adverse effect on the safety, health or welfare of the community or a part of the community (section 878(b)) and harsh or oppressive rules of the organization or their administration (section 878(d) and (e)). While noting that there are some safeguards in the procedure for deregistration (section 881), the Committee observes that the mentioned criteria are phrased in broad language that may lead to extensive interpretation, and recalls that dissolution of an organization constitutes an extreme form of interference in its activities. In line with these considerations, the Committee requests the Government to provide information on the application in practice of the above provisions, in particular, whether any organizations have been deregistered and if so on which specific grounds. The Committee also encourages the Government to engage in discussions with the social partners with a view to reviewing the grounds for deregistration provided for in section 878 of the IRA.

Western Australia. In its previous comment, the Committee recalled the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid, so as to leave the issues of membership and subscriptions to the internal rules of the organizations concerned. Welcoming the Government’s indication that the State undertakes to review the relevant provisions of the Industrial Relations Act, 1979 (Western Australia), in consultation with the stakeholders, the Committee requests the Government to provide any updates on measures taken in this regard.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Legislative reform process. In its previous comment, the Committee requested the Government to provide information on any legislative developments or proposals concerning the industrial relations reform process. The Committee notes the Government’s indication that numerous industrial relations reforms were adopted since its last report. The Committee notes, in particular: (i) the adoption of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act, 2022 (assessed in more detail in its direct request); (ii) the adoption of the Industrial Relations and Other Legislation Amendment Act, 2022 (Queensland) (addressed in more detail in its direct request); (iii) the entry into force of the Human Rights Act, 2019 (Queensland), which protects freedom of association (section 22(2)) and also covers actions and decision-making of a public entity as an employer (section 58); (iv) the adoption of the Human Rights (Workers Rights) Amendment Act, 2020 (Australian Capital Territory), which introduces section 27B to the Human Rights Act, setting out the right to work and other work-related rights, including the right to form or join work-related organizations and trade unions; (v) legislative reforms in government procurement (Australian Capital Territory) aimed at including fair and safe conditions for workers and improving employment standards in procurement contracts; (vi) the adoption of the Union Encouragement Policy, 2018 (Australian Capital Territory) which details the Government’s commitment to encourage union membership among its workers in the public sector; and (vii) the adoption of the Public Health and Wellbeing Amendment (Pandemic Management) Act, 2021 (State of Victoria), allowing for rapid pre-emptive responses to protect public health. Taking note of these legislative reforms, the Committeetrusts that they will be applied in line with the Convention.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. The Committee previously requested the Government to review: (i) the provisions of the Competition and Consumer Act, 2010 prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act, 2009 (FWA) relating to suspension or termination of protected industrial action in specific circumstances; and (iii) sections 30J and 30K of the Crimes Act, 1914, prohibiting industrial action threatening trade or commerce with other countries or among states, and 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, with a view to bringing them into full conformity with the Convention.

In relation to sections 30J and 30K of the Crimes Act, the Government reports that no changes were made to these provisions and no prosecutions were initiated.

Concerning the prohibition of secondary boycotts under the Competition and Consumer Act, the Committee notes the Government’s indication that the Australian Productivity Commission invited public comments on the issue and discussed it with the social partners, following which it did not recommend any changes to the legislation. The Government indicates that the Australian Chamber of Commerce strongly opposed any potential changes in this area and the Maritime Union of Australia did not support changes to these provisions or the supporting compliance and enforcement activities but considered the applicable penalties extremely onerous. The Committee further notes the Government’s indication that the relevant provisions were enforced on one occasion where a construction company and the Construction, Forestry, Maritime, Mining and Energy Union were both ordered to pay penalties for a boycott conducted in breach of competition laws.

While taking note of the above, in particular the limited use in practice of sections 30J and 30K of the Crimes Act and of the provisions of the Competition and Consumer Act prohibiting secondary boycotts, the Committee recalls that these provisions may nevertheless have a chilling effect on the right of workers’ organizations to organize their activities and carry out their programmes in full freedom. The Committee therefore requests the Government to bring the above-mentioned provisions into conformity with the Convention , in consultation with the social partners. The Committee further requests the Government to continue providing detailed information on the application of these provisions in practice.

With regard to sections 423, 424 and 426 of the FWA, which relate to suspension or termination of protected industrial action threatening trade or commerce with other countries or among states, the Committee notes the Government’s indication that it is not considering any reforms to the relevant provisions. The Committee further notes the information transmitted by the Government on the rationale of these provisions and on their practical application, in particular, that: (i) in 2022, there were three applications to suspend or terminate protected industrial action under section 423 and three applications under section 426; (ii) the Fair Work Commission (independent tribunal and statutory regulator of federally registered unions and employers’ groups) did not make any decisions in relation to sections 423 and 426 as all applications were withdrawn or discontinued, or orders were otherwise not required; (iii) there were 18 applications under section 424 in 2022 and 9 applications in 2023, with only one order to suspend or terminate an industrial action; (iv) from 2020 to 2023, the Fair Work Commission made decisions on section 424 concerning the railway sector (order to terminate an industrial action due to a threat to endanger the welfare of the population of New South Wales), an aircraft engineers union (application dismissed for lack of evidence on any threat to the life, personal safety or welfare of the population), a harbour towage enterprise (order to suspend an intended lockout of all harbour towage employees), the healthcare sector (order to suspend the intended industrial action for two weeks), a gas company (order to suspend a company lockout for 30 days), a transport workers’ union employed in court security and custodial services operations (order to suspend an industrial action for two months), a transport workers’ union (application to suspend the industrial action dismissed for lack of evidence on the link between the industrial action and the threat to life, safety and health or welfare of the population) and the maritime transport sector (discontinuance of the application for termination of an industrial action).

Taking note of the detailed information provided by the Government, in particular as to the practical application of the above provisions, the Committee observes that while some of the sectors fall within essential services in the strict sense of the term or concern public servants exercising authority in the name of the State, and suspensions or terminations of industrial action would therefore not raise issues of compatibility with the Convention, in other cases which do not fall within these categories industrial action should not be fully restricted, although the Government may consider the establishment of negotiated minimum services. In line with the above, the Committee requests the Government to continue to provide information on the practical application of sections 423, 424 and 426 of the FWA and to indicate any measures taken to review these provisions.

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

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. Protected action ballots. In its previous comments, the Committee noted the observations of the Australian Council of Trade Unions (ACTU) that the amendment to section 437 of the Fair Work Act (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 and provides statistical information in this regard. The Government also provides some examples of decisions of the Fair Work Commission in relation to notification time.

The Committee once again requests the Government to review section 437(2A) of the FWA in consultation with the social partners within the framework of the industrial relations reform process to ensure that workers’ organizations are able to exercise their activities and carry out their programmes in full freedom. It further requests the Government to continue supplying information on the application of this provision in practice.

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 FWA 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. The Registered Organizations Commissioner has concluded ten Federation Court proceedings with one pending proceeding. The misconduct alleged in these cases concerned: the failure by an organization to lodge prescribed information to enable the conduct of elections for over a decade; artificial inflation of membership numbers over a five year period; accepting payments for the organization in exchange for failing to seek better terms and conditions for certain members; failure to lodge financial returns over a number of years and failing to keep proper financial records.

The Committee requests the Government to continue 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 indicates that as of 8 September 2020 the Federal Court had imposed penalties ranging from 96,000 to 255,000 AUD for the breach of unlawful picketing provision in three cases. 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 including copies of any relevant court decisions that might touch on the interpretation of this section during that period. Recalling that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful, the Committee requests the Government to review 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 continue to provide information on its application in practice.

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. The Government indicates that only 3 union officials have been summoned for examination since 2 December 2016 and there have been no criminal prosecutions to date of trade union representatives or any witness for failure to comply with the examination powers. The Review of the BCIIP Act released in October 2018 noted that the current arrangements for exercising oversight of the compulsory examination powers are generally appropriate. 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 in its 2019 report 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 added 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. The Committee further notes the indication in the Government’s latest report that it had released a discussion paper on 18 February 2020 on the Code for the Tendering and Performance of Building Work 2016, welcoming views from stakeholders, including social partners, on its operation and potential areas for strengthening to ensure it remains fit for purpose. As a result of COVID-19, the consultation process has been paused. 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 including the consultation process paused in early 2020 as a result of COVID-19.

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 (IRA), 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 FWA 2009. Moreover, the Government stresses that this section has not been used to cancel the registration of any registered organization. The Committee requests the Government to provide information should this provision be used in the future 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 (QIRC) (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 notes the Government’s indication that the QIRCs power to suspend threatened industrial action under section 240 has not been used to date, while the power under section 241 has been used five times since the section’s commencement (four of the five concerning corrective services officers and only two of these applications for suspension being granted). While it would appear from the information made available to it that the suspension orders related to industrial action under section 241 concerned essential services in the strict sense of the term, the Committee recalls that economic damage, as also allowed for in sections 240 and 241(1)(b), does not in itself render a service essential. The Committee requests the Government to continue to provide information on any instances where the commission may have suspended or terminated industrial action under this provision.

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.

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

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.

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

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.]

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

The Committee takes note of the observations made by the International Trade Union Confederation (ITUC) received on 9 September 2019 in relation to the application of the Convention in law and in practice. It requests the Government to provide its comments thereon.

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. The Committee notes that the ITUC expresses its deep and serious concern regarding the ongoing attempt by the Government to pass the Fair Work (Registered Organisations) Amendment (Ensuring Integrity) Bill 2019 into law. The ITUC considers these attempts as reckless and harmful to industrial relations and the protection of workers’ rights and liberal democratic values in Australia. The ITUC contends that the Bill will violate Australia’s international labour standards and human rights obligations, undermining, in particular, the right to freedom of association and effective recognition of collective bargaining and the right to freedom of expression for organised labour. According to the ITUC, the “Ensuring Integrity Bill” has introduced unprecedented measures for trade union governance and administration that threaten the effective functioning and very existence of unions in Australia without meaningful consultations with the unions. The Bill conflates the right to form or join unions to protect the social and economic interests of workers with the duties of officers of a corporation, leading to further conflation of the punishment arising from criminal conduct with breaches of civil duties and obligations arising from running a membership-based organization in the nature of a trade union. The measures introduced will seriously undermine the agency of workers’ organizations, permit gross interference by public authorities and hostile persons, create uncertainty and instability in the administration and operation of the organizations and result in undermining the peace and stability required for a productive industrial relations landscape in Australia. The Committee considers that this communication received after the deadline in a reporting year falls within the exceptional cases for its consideration as it refers to legislative proposals where the Committee’s comments may be of assistance in the country’s further consideration of this proposed legislation (CEACR 2019 General Report, paragraph 95).

The ITUC enumerates four broad measures it considers to be contrary to the Convention: disqualification from office; cancellation of registration; administration of dysfunctional organisations; and a public interest test for amalgamations. As regards the first point, the ITUC refers to the proposed power for the State officials to seek to deny trade union officers their right to stand for office because they have committed civil offences, some of which may be unrelated to the capacity to properly perform trade union duties, or for having been held in contempt of court. According to the ITUC, this measure has the potential to destabilize trade union functionality with frivolous but debilitating court actions and thereby denying the union its autonomy and its members their primary responsibility to protect their own interest. The ITUC indicates that the Bill also proposes to grant power to apply to the Federal Court to cancel trade union registration on grounds such as: officers having acted in a conflict- of-interest situation; and officers managing the affairs of the organization in an oppressive, unfairly prejudicial or discriminatory manner against members, or acting contrary to the interest of the organization, or having a record of not complying with designated laws (with no limitation as to scope or reach or time covered by this compliance record). Also included in the grounds for requesting cancellation of registration is the organization of unprotected industrial action. The ITUC is deeply concerned that these measures impute individual responsibility and actions of officers and officials to the existence of the organization itself and mete out collective punishment by the cancellation or deregistration of the trade union organization and create a high risk of legal uncertainty. Similarly, the Bill grants powers to apply to the Federal Court for a declaration that the organisation is not functioning effectively, for which a number of measures including placing it under administration may be applied. The ITUC considers these measures to be intrusive and to pose a serious risk of interfering with, or imposing a chilling effect on, the free functioning of trade unions. The autonomy and independence of the union would be undermined to the extent that matters and concerns that would ordinarily be addressed through the normal democratic and accountable functioning of the membership would instead elicit a public takeover possibly instigated by hostile interests. Finally, the ITUC refers to the proposed public interest test for the amalgamation of unions. The Fair Work Commission (FWC) has to decide that an amalgamation is in the public interest before it can take effect. Those who can make submissions in this regard include the Commissioner, the Minister, any other organisation that represents industrial interests of employers or employees or may otherwise be affected by the amalgamation, other organisations not representing interests of employers or employees in the industry concerned, and any other person of a sufficient interest in the amalgamation. The grounds for establishing public interest include record of compliance with law, the impact on employees and employers in the industry concerned and other matters which may be considered by the FWC. According to the ITUC, this represents an intrusive interference in trade union affairs and amounts to previous authorisation for trade union registration.

The Committee observes with concern the numerous proposals raised in the Bill which would broaden the possibilities of intervention in the internal functioning of workers’ organizations. It recalls that it has always considered that the conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see the 2012 General Survey on the fundamental Conventions, paragraph 106). Moreover, cancellation of trade union registration is an extreme measure affecting the entire trade union membership. Where there are individual acts that need to be sanctioned, measures taken should rather focus on those responsible and avoid undermining the rights and benefits of collective representation. Finally, the Committee recalls that the right of workers to establish organizations of their own choosing without previous authorization, enshrined in the Convention, includes the amalgamation of unions. In light of the seriousness of the matters raised, the Committee calls 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 are in full conformity with the Convention. It requests the Government to keep it informed of the steps taken in this regard and any further developments.

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 indication that it considers the current 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 AUD90 million 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.

Observing finally that there have been no changes to the provisions of the Competition and Consumer Act prohibiting secondary boycotts or to sections 30J and 30K of the Crimes Act, the Committee once again requests the Government, in light of its comments above and in consultation with the social partners, to review the above-mentioned provisions so as to ensure that they are not applied in a manner contrary to the right of workers’ organizations to organize their activities and carry out their programmes in full freedom. It further requests the Government to continue providing detailed information on the application of these provisions in practice.

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

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

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

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.

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received 1 September 2014 and 31 August 2016. The Committee also notes the observations received on 1 September 2014 and 1 September 2016 from the International Organisation of Employers (IOE) which are of a general nature.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to, in consultation with the social partners, review: (i) 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; and (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and 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.

The Committee notes the Government’s indication that the Productivity Commission’s Final Report on Australia’s Workplace Relations Framework of 21 December 2015, recommended certain amendments to these provisions. With respect to the provisions of the Competition and Consumer Act prohibiting secondary boycotts, the Government indicates that the Report concluded that these provisions were still required, and should be enforced, particularly in the construction industry. Concerning section 423 of the FWA (on suspension or termination of protected industrial action where the action is causing or threatening to cause significant economic harm to the employer or employees) and section 426 (on suspension of protected industrial action causing significant economic harm to a third party), the Report noted that applications were very rarely successful, and recommended that the term “significant” should be interpreted as “important or of consequence”. No recommendations were made concerning section 424(1)(d) of the Act, on the suspension or termination of protected industrial action that is threatening to cause significant damage to the economy, or concerning sections 30J and 30K of the Crimes Act. The Committee also notes the observations of the ACTU that section 424 of the FWA can be used by large employers to have protected industrial action terminated instead of making concessions within the context of collective bargaining.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2698 (357th Report, paragraphs 213–229) concerning, among others, these provisions of the FWA. It recalls in this respect that the right to strike may be restricted or prohibited only when it is related to essential services in the strict sense of the term, that is services whose interruption would endanger the life, personal safety or health of the whole or part of the population; in the public service only for servants exercising authority in the name of the State; or in situations of acute national or local crisis (only for a limited period and solely to the extent necessary to meet the requirements of the situation) (see General Survey of 2012 on the fundamental Conventions, paragraph 127). With reference to its previous comments, the Committee recalls that a broad range of legitimate strike action could be impeded by linking restrictions on strike action to interference with trade and commerce, and the impact of industrial action on trade and commerce in and of themselves does not render a service “essential”. The Committee once again requests the Government to take all appropriate measures, in the light of its previous comments and in consultation with the social partners, to review the abovementioned provisions of the Fair Work Act, the Competition and Consumer Act and the Crimes Act with a view to bringing them into full conformity with the Convention. In the meantime, the Committee requests the Government to provide detailed information on the application of these provisions in practice.

State jurisdictions. Queensland. The Committee previously requested that steps be taken to review the provisions of the Industrial Relations Act requiring a ballot of trade union members for authorization of expenditure which exceeds 10,000 Australian dollars (AUD) “for a political purpose”, broadly defined. In this respect, the Committee notes with satisfaction that pursuant to the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act of 2014, the Industrial Relations Act has been amended and these provisions removed.

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

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee recalls its previous request to ensure that the exercise of the right to strike in practice is not restricted by unduly challenging and complicated strike ballot procedures. It notes in this respect the Government’s indication that the provisions dealing with protected action ballots were amended by the Fair Work (FW) Amendment Act, 2012, so as to clarify and streamline the process for conducting protected action ballots and to ensure that the right to take such action is not unduly frustrated or delayed. According to the Government, FW Legislation Amendment Regulations 2012 No. 1 further facilitate electronic voting in protected action ballots. The Committee notes the statistics provided by the Government, which appear to indicate that there were no excessive delays resulting from the procedure for obtaining a ballot order and that the majority of the protected application ballots were granted. It requests the Government to provide information on the practical impact of the amended provisions and regulations.

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. The Committee notes 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 requests the Government to provide information on any recourse had to this section which would have resulted in the threat of or cancellation of a union’s registration.

Queensland. The Committee notes the Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Act 2012 which amended the Industrial Relations Act (IRA) 1999 by providing 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. The Committee requests the Government to take appropriate measures, in the light of its previous comments and in consultation with the social partners, to review the amended Act and to provide information on all measures taken or contemplated in this regard.

The Committee further notes that the Industrial Relations Act has been further amended by the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Legislation Amendment Act 2013, by inserting Division 1B, requiring a ballot of trade union members for authorization of expenditure which exceeds $10,000 Australian dollars (AU) “for a political purpose”, broadly defined. The Committee recalls that such requirement provided for in the legislation is in violation of the right of organizations to draw up their own constitutions and rules and to organize their administration and activities, enshrined in Article 3 of the Convention, and considers that the issue of the need for expenditure ballots should be left to the rules of the organizations concerned. The Committee therefore requests the Government to take the necessary steps, in consultation with the social partners, to review the relevant provisions contained in Division 1B of the Act and to provide information on all measures taken or envisaged in this regard.

The Committee notes that the Australian Council of Trade Unions (ACTU) further refers to section 691C of the Act as amended, which rendered any provision requiring an employer to facilitate deductions of industrial association membership subscriptions from an employee’s wages of no effect. The ACTU further indicates that the 2013 Amendment Act has been adopted without any consultation with the social partners. Emphasizing the importance of prior consultation of the social partners before the adoption of any legislation affecting their interests, the Committee requests the Government to provide its observations on the ACTU’s comments.

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. The Committee notes the Government’s indication that in November 2012, the draft Labour Relations Legislation Amendment and Repeal Bill seeking to reform aspects of the state industrial relations system, was tabled in the Western Australian Parliament. According to the Government, while the draft Bill does not propose to amend the provisions of the IRA 1979 relating to trade union membership and subscriptions, it is yet to undergo the process of public submissions and does not necessarily represent the Government’s settled position. The Committee requests once again 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.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) and the International Trade Union Confederation (ITUC) contained in communications dated 30 August, and 22 and 26 November 2013.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. For a number of years, the Committee has been requesting the Government, in consultation with the social partners, to review: (i) sections 423, 424 and 426 of the Fair Work (FW) Act relating to suspension or termination of protected industrial action in specific circumstances; (ii) provisions of the Competition and Consumer Act prohibiting secondary boycotts; and (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states, and 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 the Government’s indication that the FW Act has been reviewed, in consultation with the relevant stakeholders, by an independent panel. The panel concluded that the Act was broadly meeting its objectives and did not require wholesale change, and recommended 53 mainly technical amendments to improve the operation of the legislation. According to the Government, it has so far responded to 23 of these recommendations.

The Committee notes that, while the ACTU recognizes that the practical impact of section 423 has to date been minimal as a result of the interpretation by the Fair Work Commission (FWC) of the term “significant economic harm”, it maintains that the existence of this provision is inconsistent with the Convention. With regard to section 424, the ACTU expresses its concern over the possibility for protected industrial action to be terminated on the basis that the action was or is causing “significant damage to the Australian economy or an important part of it”. Referring to the FWC’s decisions, the ACTU considers that it has now been demonstrated that section 424 can be used by large employers to have protected industrial action terminated rather than having to make concessions within the context of collective bargaining. As for section 426, the ACTU indicates that the FWC has adopted a high threshold as to what constitutes a “significant harm” to a third party.

While noting the detailed information on the application of the abovementioned provisions in practice, the Committee requests the Government to provide information on the follow-up to the technical amendments to the FW Act relevant to freedom of association suggested by the independent panel. It further requests the Government to continue its work on reviewing, in consultation with the social partners, the FW Act, the Competition and Consumer Act, and the Crimes Act, including ongoing interpretations of those Acts by the FWC and the courts.

With regard to access to the workplace, the Committee notes with interest the Government’s indication that the FW Amendment Act, 2013, which will enter into force on 1 January 2014, introduced a number of amendments to the right of entry, which will affect the practical application of the FW Act, and that prior to this amendment, the review panel found that in almost all cases, entry to workplaces by permit holders involved no disruption to business operations. The Committee also notes that the ACTU welcomes this amendment.

The Committee recalls that it has previously requested the Government to amend the Building and Construction Industry Improvement Act 2005. The Committee notes with interest that the Fair Work (Building Industry) Act entered into force in 2012 and that the Fair Work Building Industry Inspectorate commenced its operation (in lieu of the abolished Australian Building and Construction Commission) in June 2012. In this respect, the Committee notes that the ACTU states that these changes represent an improvement in the compliance with the Convention and that social partners, including ACTU representatives, are members of the new Inspectorate’s advisory board. The Committee notes that the ACTU nevertheless expresses its concerns in respect of the retention, in the new Act, of coercive powers for use in the investigation of industrial issues, albeit with some procedural safeguards and for a limited period of three years. The Committee requests the Government to provide its observations on the above concerns of the ACTU and information on the practical application of the new legislation.

The Committee further notes that, in their communications dated 22 and 26 November 2013, the ACTU and ITUC allege that the Building and Construction Industry (Improving Productivity) Bill 2013 introduced into Parliament will infringe, if adopted, upon freedom of association rights of workers in the industry. The Committee requests the Government to provide its observations thereon.

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

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Statistical data. The Committee previously indicated that the substantive labour reform might reverse the continuing decline of trade union membership and requested that the Government continue to provide information on this matter. The Committee notes that the Government provides no new statistical data in this respect and trusts that the Government will be in a position to provide statistics in that regard with its next report.

The Workplace Relations Act, 1996. The Committee recalls that previous comments concerned the need to amend sections 798 and 807 of the Workplace Relations Act on the issue of disciplining members, so as to avoid any interference that would restrict the right of workers’ organizations to freely draw up their constitutions and rules. The Committee had noted that item 7(d) of subsection 342(1) and section 539 contained in the general protections and compliance provisions of the Fair Work Act were broadly equivalent to former sections 798 and 807 of the repealed Workplace Relations Act. The Committee had requested the Government to provide information on the application of these provisions in practice. The Committee notes that the Government is not aware of any matters that have been brought before either Fair Work Australia or the Federal Court considering the application of this provision. The Committee requests the Government to keep it informed of any application of these provisions in practice.

State jurisdictions. New South Wales. The Committee recalls that 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 that the Government indicates that no registered industrial organization has had its registration cancelled on the grounds set out in section 226(c). The Committee once again requests the Government to provide information on 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.

Western Australia. In several previous comments, the Committee had 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. The Committee had previously noted that an independent review of the Western Australian industrial system, including the Industrial Relations Act, was under way. The Committee notes that the Government indicates that Western Australia is in the process of considering its proposed changes to the State industrial relations system and that there are no plans to amend provisions concerning trade union membership. The Committee requests once again the Government to take 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.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2011, and of the International Trade Union Confederation (ITUC) in a communication dated 4 August 2011 on the application of the Convention.

The Committee notes that the Government indicates that from 1 January 2010, all states other than Western Australia referred their industrial relations powers to the Commonwealth, essentially creating a new national industrial relations system for the private sector known as the national system. Pursuant to the Fair Work Act 2009, the Fair Work Regulations 2009, the Fair Work (Registered Organizations) Act 2009 and the Fair Work (Registered Organizations) Regulations 2009, the national system covers constitutional corporations, the Commonwealth and its authorities, employers who employ flight crews, maritime employees or waterside workers in connection with interstate or overseas trade and commerce, all employers in Victoria, the Northern Territory and the Australian Capital Territory, private sector employers in New South Wales, Queensland, South Australia and Tasmania and local government employers in Tasmania. The Committee notes that the following employers are not covered by the Fair Work Act: (1) state public sector or local government employment or employment by non-constitutional corporations in the private sector in Western Australia; (2) state public sector and local government employment in New South Wales, Queensland and South Australia; and (3) state public sector employment in Tasmania.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous observation, the Committee had noted the concerns raised by the ACTU that most of the restrictions in place under the Workplace Relations Act, 1996, (WR Act) remained in place in the Fair Work Act and had requested the Government to review the following provisions in consultation with the social partners concerned, so as to bring them into conformity with the Convention:

• (i) absence of protection for industrial action aimed at achieving:

– multiple business agreements (section 413(2));

– “pattern bargaining” (sections 409(4), 412, 422, 437(2));

– secondary boycotts and general sympathy strikes (sections 408–411 and Trade Practices Act 1974);

• (ii) negotiations over “unlawful terms” including: to extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay ; to pay bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior to those contained within the Act (sections 172, 194, 353, 409(1) and (3) and sections 470–475); and
• (iii) provisions which allow for restrictions or prohibitions of industrial action, including through the introduction of compulsory arbitration at the initiative of the Minister, when industrial action is threatening to cause harm to the Australian economy or the life, personal safety or health, or the welfare of the population or a third party (sections 423, 424, 426 and 431).

As regards pattern bargaining, the Government reaffirms that industrial action taken in support of pattern bargaining is not protected under the Fair Work Act but that making common claims across multiple workplaces is not considered to be pattern bargaining if the bargaining representative is genuinely trying to reach an agreement and is willing to negotiate claims at each enterprise (section 412); relevant considerations under section 412(3) include whether the bargaining representative is: (1) demonstrating a preparedness to take into account the individual circumstances of the particular employer; (2) bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees, and; (3) meeting the good faith bargaining requirements.

As regards industrial action in support of claims for unlawful terms, the Committee takes note of the decisions by Fair Work Australia (FWA) to refuse an application for a protected action ballot order on grounds that it was satisfied that the union’s proposed agreement included an unlawful term, with the result that the proposed industrial action would not have been protected and which led to the issuance of an order terminating the proposed action. The Committee further notes that the Government reaffirms that it is unlawful, under the Fair Work Act, for an employer to pay, or an employee to demand or request, strike pay and that this provision is consistent with the general common law rule that employees are not entitled to receive payment for employment services they do not perform. The Government nevertheless indicates that the Federal Magistrates Court dismissed an employer’s claim that the union had impermissibly asked the employer to pay strike pay, on the basis that expressing a view that employees “should” be paid did not constitute a “demand” for payment in the circumstances.

In respect of the prohibition of secondary boycotts and sympathy strikes, the Committee notes that the Government indicates that the Competition and Consumer Act 2010 has replaced the Trade Practices Act 1974 but that the secondary boycott provisions have not been amended and that it is not contemplating making such amendments. Furthermore, the Committee had previously noted the need to amend sections 30J and 30K of the Crimes Act, 1914, which respectively prohibit industrial action threatening trade or commerce with other countries or among states and 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. In addition, section 419 of the Fair Work Act requires FWA to suspend or terminate industrial action in non-national enterprises or by non-national employees, if the event will or would be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation. The Committee observes that the Government has taken note of its request to review sections 30J and 30K of the Crimes Act 1914 and further notes its indication that there has been one interim order made by FWA under section 419 of the Fair Work Act which was revoked shortly thereafter and no written decision has yet been published in relation to this matter. The Committee nevertheless notes with regret that the Government has not made any amendments to sections 30J and 30K of the Crimes Act 1914 and has maintained the prohibition of secondary boycotts in the Competition and Consumer Act 2010 despite the repeal of the Trade Practices Act 1974 and its long-standing comments in this regard.

As regards FWA authority to suspend or terminate protected industrial action where it causes or threatens to cause significant economic harm pursuant to section 423, the Committee notes the Government’s indication that FWA must be satisfied that the threat of significant economic harm is imminent, that the industrial action is protracted and that the dispute will not be resolved in the reasonably foreseeable future as well as further factors listed in section 423(4). The Committee takes note that FWA has considered applications but had not, at the time of reporting, suspended or terminated protected industrial action under section 423 of the Fair Work Act. The Committee further notes that FWA declined to suspend or terminate a protected industrial action on the grounds that it was not convinced that the dispute would not be resolved in the foreseeable future and that FWA did not consider that an action which was causing considerable economic harm to the employer was significant enough in terms of it being exceptional in either its character or magnitude, and further considered that terminating the protected industrial action at that time would not assist in facilitating bargaining and resolving the dispute in the reasonably foreseeable future.

As regards FWA authority to suspend or terminate protected industrial action where it threatens to endanger the life, personal safety or health, or welfare, of the population or part of it or cause significant damage to the Australian economy or an important part of it under section 424 of the Fair Work Act, the Committee notes the Government’s indication that applications have been received by FWA under this section and that, like under section 423, FWA has set a high threshold for ending industrial action on these grounds. The Committee however notes comments made by ACTU with regard to a decision of FWA, upheld in appeal, to suspend protected action for two weeks in the context of industrial action in the education sector, on the basis that a union ban on recording and transmitting exam results threatened the welfare of graduating students by prejudicing their ability to secure future employment. ACTU indicates that this decision was taken despite the union having taken steps to set up an exemptions committee to ensure that any student with a genuine need to obtain results could do so. The ACTU considers that a broad interpretation of section 424 unduly restricts the rights of workers to take industrial action. The Committee further notes that the Government indicates that FWA considered cases concerning actions causing damage to the Australian economy and started applying the decision of the High Court of Australia which ruled that there must be a rigorous basis for deciding that protected industrial action is causing significant damage to the Australian economy over and above “generalized predictions” as to the likely consequence of the industrial action in question.

As regards FWA authority to suspend protected industrial action where it is threatening to cause significant harm to a third party under section 426 of the Fair Work Act, the Committee notes the Government’s indication that FWA may take into account the extent to which the protected action threatens to damage the ongoing viability of an enterprise carried on by a person, disrupt the supply of goods or services to an enterprise carried on by the person, reduce the person’s capacity to fulfil a contractual obligation or cause other economic loss to the person. FWA must also be satisfied that the suspension is appropriate, taking into account whether the suspension would be contrary to the public interest or inconsistent with the objects of the Act. The Government indicates that section 426 was considered by FWA which concluded that the expression “significant harm” required the identification of harm that was exceptional in its character or magnitude, out of the ordinary and over and above harm of the sort that is commonly a consequence of protected industrial action.

The Committee takes due note of the detailed information provided by the Government concerning the limitations on the use of the abovementioned provisions. It also notes the Government’s indications that it has not amended the abovementioned provisions as it considers that, overall, the industrial action provisions of the Fair Work Act strike the right balance between an employee’s right to strike and the need to protect life and economic stability in a manner that is appropriate to Australia’s national conditions and that FWA has set a high threshold for allowing for suspension or termination of protected industrial action in specific circumstances under sections 423, 424, 426 of the Fair Work Act.

The Committee further notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2698 (357th Report, paragraphs 213–229) concerning the abovementioned provisions. The Committee recalls that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. These interests not only have to do with better working conditions and pursuing collective demands of an occupational nature, but also with seeking solutions to economic and social policy questions and to labour problems of any kind which are of direct concern to the workers (General Survey of 1994 on freedom of association and collective bargaining, paragraph 147). The Committee further recalls that the right to strike may only be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term. The Committee recalls that a broad range of legitimate strike action could be impeded by linking restrictions on strike action to interference with trade and commerce. While the economic impact of industrial action and its effect on trade and commerce may be regrettable, such consequences in and of themselves do not render a service “essential” and thus do not justify restrictions on the right to strike. The Committee requests once again the Government to take all appropriate measures, in the light of its previous comments and in consultation with the social partners, to review the abovementioned provisions of the Fair Work Act, the Competition and Consumer Act 2010 and the Crimes Act 1914 with a view to bringing them into full conformity with the Convention. In the meantime, the Committee requests the Government to continue providing detailed information on the application of these provisions by the FWA.

Strike ballots. The Committee recalls the concerns raised by the ACTU that the ballot process could be used by employers to frustrate or delay the taking of protected industrial action. In this regard, the Committee recalls that under the Fair Work Act, industrial action must be authorized by a protected action ballot of employees except where employees are taking protected industrial action in response to industrial action taken by their employer. Section 459 of the Fair Work Act requires at least 50 per cent of employees on the roll of voters to vote, and of these, more than 50 per cent must approve the proposed action. The Committee notes that the Government indicates that for FWA to make a protected action ballot order where an application is made under section 437 it must be satisfied that each applicant has been, and is, genuinely trying to reach an agreement with an employer (section 443(1)). Whether an applicant has been genuinely trying to reach an agreement is a question of fact to be determined in the circumstances of the particular case. The Government further indicates that a substantial body of case law has developed about the meaning of “genuinely trying to reach an agreement” in the context of protected action ballot applications. The Committee takes note in particular of the general indicia set out by FWA including: (1) the length of negotiations, including the amount of explanation and detail exchanged between the applicant and other parties; (2) the extent of progress in negotiations and steps taken to try to reach an agreement; and (3) whether the applicant has articulated its claims and has provided responses to proposals made by other parties. The Committee further notes that the recent statistics provided by FWA indicate that in the December 2010 quarter, 189 protected application ballots were made and 184 granted and that in the March 2011 quarter, 134 applications were made and 115 granted.

The Committee requests the Government to continue to take steps to ensure that the exercise of the right to strike in practice is not restricted by unduly challenging and complicated strike ballot procedures and to continue providing statistics on the number of protected action ballots authorized out of a total number of applications, as well as to any important or excessive delays resulting from this procedure.

Access to the workplace. The Committee recalls that it previously raised the need to amend the restrictive conditions set for granting a permit allowing trade union representatives to have entry to the workplace in order to meet with workers. In its previous observation, the Committee had noted that, under the Fair Work Act, a union official must hold a permit provided by FWA in order to have the right of entry for a certain workplace. In determining whether to grant an entry permit, FWA will consider any matter it considers relevant, including whether the applicant has ever been convicted of violating an industrial law or convicted of a crime involving fraud, entry into premises, or intentional use of violence or destruction of property (section 513). The Committee had further noted that the Fair Work Act permits union officials to hold discussions with employees who are members, or eligible to be members, of a union and to enter workplaces to investigate suspected breaches of the Act or an instrument made under the Act and had requested the Government to provide information on the practical application of this provision, including statistics relating thereto.

The Committee notes that the Government indicates that it considers that the Fair Work Act retains a fair and balanced framework for right of entry for officials of organizations and empowers FWA to deal with abuses of rights by officials, unreasonable requests by employers and disputes. The Government further indicates that FWA has reported in its quarterly reports that 1,079 applications for a right of entry permit have been received since July 2010 and 866 have been granted. The Committee requests the Government to continue providing information on the practical application and impact of these provisions concerning workers representatives’ access to the workplace in its next report, including on the delay in which entry permits are granted and the grounds provided for denying applications or revoking permits.

Building industry. The Committee recalls from previous comments that the Building and Construction Industry Improvement (BCII) Act of 2005: (i) renders virtually all forms of industrial action in the building and industrial sector unlawful (sections 36, 37 and 38 of the BCII Act 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) introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful industrial action” (sections 39, 40 and 48–50 of the BCII Act); (iii) gives the enforcement agency known as the Australian Building and Construction Commission (ABCC) wide-ranging coercive powers akin to an agency charged with investigating criminal matters, which have allegedly resulted in interference in the internal affairs of trade unions, including through the use of the power to impose a penalty of six months’ imprisonment for failure to comply with a notice to produce documents or give information (sections 52, 53, 55, 56 and 59 of the BCII Act); and (iv) grants the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by ministerial decree through a device referred to as a building code which is inconsistent with the Convention on several points and is implicitly “enforced” through an “accreditation scheme” for contractors who wish to enter into contracts with the Commonwealth. The Committee recalls that it previously requested the Government to indicate any progress made concerning the adoption of new legislation in respect of the building and construction industry in full conformity with the Convention.

The Committee notes that the Government indicates in its report that the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill 2009, introduced into the Parliament on 17 June 2009, was not adopted before the Parliament was prorogued when the 2010 Federal election was called, and has been placed on the legislative agenda to be reintroduced in the 2011 spring sitting of Parliament. The Committee further notes the Government’s indication that in early 2011, the ABCC Commissioner conducted a review of the practice and procedure relating to the use of powers under section 52 of the BCII Act and has, where possible, voluntarily adopted the Wilcox report recommendations and put in place some safeguards which should be respected before issuing a notice under section 52 of the BCII Act. The Government further indicates that the Commonwealth Ombudsman will be invited to conduct its own investigation on each occasion where section 52 powers are used as well as asked to review the way in which the ABCC Commissioner intends to use these powers.

The Committee notes with regret that the abovementioned restrictions remain unchanged in the construction and building industry and observes with concern the allegations made by the ITUC and the ACTU respectively that ABCC inspectors continue to harass trade union members and officials in the construction sector, including by conducting secret interrogations of individual workers, and that the ABCC investigations and prosecutions show a strong bias in targeting trade unions and workers. The Committee requests the Government to provide its observations on the ITUC and the ACTU comments and to take all necessary measures to ensure that trade union members and officials in the construction sector are not victim of harassment and targeting by the ABCC. The Committee further expresses once again the firm hope that the legislative reform undertaken in the building and construction industry will soon be completed and will bring the legislation into full conformity with the Convention. The Committee requests the Government to provide further information in this respect in its next report, including information related to the use of section 52 powers by the ABCC and to related investigations conducted by the Commonwealth Ombudsman.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce (ACC) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over the years in relation to the application of the Convention.

Statistical data. The Committee previously indicated that the substantive labour reform might reverse the continuing decline of trade union membership and requested that the Government continue to provide information on this matter. The Committee recalls that, in 2006, 20.3 per cent of all workers (15.2 per cent of private sector employees and 42.6 per cent of public sector employees) were trade union members. The Committee notes that the Government indicates in its report that trade union membership levels continued to decline following the introduction of Work Choices. In August 2007, 18.9 per cent of all employees were trade union members. By sector, 13.7 per cent of all private sector employees were trade union members compared with 41.1 per cent of all public sector employees. The Government additionally states that by August 2008 the figures stabilized and that the percentage of trade union members remained unchanged from 2007 at 18.9 per cent. By sector, trade union membership in the private sector declined by 0.1 percentage points to 13.6 per cent, while it increased by 0.8 percentage points to 41.9 per cent in the public sector.

The Workplace Relations Act, 1996. The Committee recalls that previous comments concerned the need to amend sections 798 and 807 of the Workplace Relations Act on the issue of disciplining members, so as to avoid any interference that would restrict the right of workers’ organizations to freely draw up their constitutions and rules. The Committee notes that the Government indicates in its report that provisions broadly equivalent to former sections 798 and 807 of the repealed Workplace Relations Act are now contained in the general protections and compliance provisions of the Fair Work Act, in particular referring to item 7(d) of subsection 342(1) and section 539. According to the Government, the formulation of the protection in the new statutory framework is different because protection is on the basis of “workplace rights” (which can broadly be described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in “industrial activities” (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association). The Committee requests the Government to provide information on the application of these provisions in practice.

State jurisdictions. New South Wales. The Committee recalls that 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 that the Government indicates that no registered industrial organization has had its registration cancelled on the grounds set out in section 226(c). The Committee once again requests the Government to inform it 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.

Western Australia. In several previous comments, the Committee had 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. The Committee notes that the Government indicates that an independent review of the Western Australian industrial system, including the Industrial Relations Act, is currently under way. The Committee requests the Government to inform it of any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce and Industry (ACCI) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over recent years in relation to the application of the Convention.

The Committee notes with interest that the Government indicates that the development of the new system under the Fair Work Act benefited from a process of genuine and extensive consultation with the social partners and key stakeholders – the most comprehensive consultation process on workplace relations ever undertaken in Australia. According to the Government, this extensive consultation process ensured that all stakeholders had the opportunity for their concerns to be raised and addressed before the Bill was debated in Parliament and adopted in amended form as the Fair Work Act. The Government indicates that Australia’s new system represents a significant move away from the fundamental elements of the previous Government’s Work Choices regime and that the Fair Work Act has been designed to balance the needs of employees, unions and employers and to foster increased competitiveness and prosperity, at the same time as safeguarding workplace rights and guaranteeing minimum standards. The Government considers that the new legislation strikes the right balance between fairness and flexibility in the workplace to achieve the objectives of both social equity and economic modernization.

Article 3 of the Convention. The right of organizations freely to organize their activities and to formulate their programmes. The Committee recalls that it previously expressed the need to amend numerous provisions of the Workplace Relations Act, 1996, (WR Act) which lifted the protection of industrial action in support of: multiple business agreements (section 423(1)(b)(i)); “pattern bargaining” (section 439); secondary boycotts and general sympathy strikes (section 438); negotiations over “prohibited content” (sections 356 and 436 of the WR Act, in connection with the Workplace Relations Regulations, 2006); strike pay (section 508 of the WR Act); and provisions which prohibited industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act), through the introduction of compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act). The Committee also recalls that it previously raised the need to amend provisions of the WR Act which prohibited industrial action in instances when it risked harm to the national economy and empowered the Minister to order compulsory arbitration.

The Committee notes the concerns raised by the ACTU that most of the restrictions remain in place in the Fair Work Act. In particular, sections 408–411 protect industrial action only if it is undertaken in the process of bargaining for an agreement, which would appear to effectively prohibit sympathy strikes and general secondary boycotts. The Act maintains the removal of protection of industrial action in support of multiple enterprise agreements (section 413(2)). The Committee notes that the Government indicates in its report that, under the Fair Work Act, certain categories of multiple employers with a close connection to each other are able to bargain together as single-interest employers for a single enterprise agreement with their employees. In that instance, protected industrial action is available to employers and employees. The Fair Work Act also allows voluntary multi-employer bargaining. However, employers and employees do not have access to protected industrial actions in these circumstances. In addition, the pre-existing secondary boycott arrangements, regulated by the Trade Practices Act, 1974, remain in place. The Committee requests the Government to review the abovementioned provisions, in the light of its previous comments, in full consultation with the social partners concerned, with a view to bringing them into full conformity with the Convention.

Pattern bargaining remains unprotected, unless the parties are “genuinely trying to reach an agreement” (sections 409(4) and 412). Industrial action remains unprotected if it is in support of the inclusion of unlawful terms, including: to extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay; to pay bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior to those contained within the Act (section 409(3)). The Committee notes that the Government indicates that, under the Fair Work Act, industrial action in pursuit of an agreement that contains non-permitted matters is still protected, provided the bargaining representatives reasonably believed the claims were permitted. The Government further indicates that, under the Fair Work Act, it remains unlawful for an employer to pay, or an employee to demand or request strike pay, but that when protected industrial action is taken there will no longer be a minimum mandatory deduction of four hours’ pay. In addition, section 423 permits the suspension or termination of protected industrial action if it may cause significant economic harm. Section 424(1)(d) requires the suspension or termination of industrial action if it has threatened, is threatening or would threaten to cause significant damage to the Australian economy or an important part of it, while section 431 permits the Minister to terminate proposed industrial actions in the same circumstances. Industrial actions that are threatening to cause significant harm to a third party must also be suspended or terminated (section 426). The Government indicates that in order for the prohibition or suspension of industrial action to be ordered by the FWA, that agency must be satisfied that the action is threatening to cause significant and imminent economic harm. The Committee observes that these restrictions depend upon a complex review of conditions apparently set forth with the aim of balancing a number of concerns. With reference to its previous comments on these matters and recalling that the right to strike is an intrinsic corollary of the right of association protected by Convention No. 87 (see in particular the 1994 General Survey on freedom of association and collective bargaining, paragraphs 159, 160, 168 and 179), the Committee requests the Government to provide detailed information on the application of these provisions by the FWA and to continue to keep them under review with the social partners with the aim of ensuring the full application of the provisions of the Convention.

The Committee previously noted the need to amend section 30J of the Crimes Act, 1914, which prohibits industrial action threatening trade or commerce with other countries or among states. Section 30K of that Act prohibits 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 the ITUC states that there have been no amendments to the Crimes Act. In addition, section 419 of the Fair Work Act, 2009, requires the FWA to suspend or terminate industrial action in non-national enterprises or by non-national employees, if the event will or would be likely to have the effect of causing substantial loss or damage to the business of a constitutional corporation. The Committee once again requests the Government to review the abovementioned provisions, in the light of its previous comments, in full consultation with the social partners concerned, with a view to bringing them into full conformity with the Convention and, in the meantime, to provide detailed information on any use of these provisions in practice.

In addition, the Committee notes the concerns raised by the ACTU in relation to the potential obstacles to the effective exercise of industrial action that may be posed by the provisions concerning strike ballots. The Committee requests the Government to provide information on the application of those provisions in practice.

The Committee recalls that it previously raised the need to amend the restrictive conditions set for granting a permit allowing trade union representatives to have entry to the workplace in order to meet with workers. The Committee notes that, under the Fair Work Act, a union official must hold a permit provided by the FWA in order to have the right of entry under the Fair Work Act for a certain workplace. In determining whether to grant an entry permit, the FWA will consider any matter it considers relevant, including whether the applicant has ever been convicted of violating an industrial law or convicted of a crime involving fraud, entry onto premises, or intentional use of violence or destruction of property (section 513). The Committee notes that the Government indicates that the Fair Work Act permits union officials to hold discussions with employees who are members, or eligible to be members, of a union and to enter workplaces to investigate suspected breaches of the Act or an instrument made under the Act. The Committee requests the Government to provide information on the practical application of this provision, including statistics relating thereto.

Building industry. The Committee recalls from previous comments that: (i) the Building and Construction Industry Improvement (BCII) Act of 2005 renders virtually all forms of industrial action in the building and industrial sector unlawful; (ii) introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful” industrial action; (iii) gives the enforcement agency known as the Australian Building and Construction Commission (ABCC) wide-ranging coercive powers akin to an agency charged with investigating criminal matters; (iv) grants the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by ministerial decree through a device referred to as a building code which is inconsistent with the Convention on several points and is implicitly “enforced” through an “accreditation scheme” for contractors who wish to enter into contracts with the Commonwealth. The Committee previously requested the Government to indicate whether the proposed bill would: (i) amend sections 36, 37 and 38 of the BCII 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) amend sections 39, 40 and 48–50 of the BCII Act so as to eliminate any excessive impediments, penalties and sanctions against industrial action in the building and construction industry; (iii) introduce sufficient safeguards into the BCII Act so as to ensure that the functioning of the ABCC 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 ABCC’s notices prior to the handing over of documents (sections 52, 53, 55, 56 and 59 of the BCII Act); and (iv) amend section 52(6) of the BCII Act which enables the ABCC 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.

The Committee notes that the Government indicates that the Office of the ABCC will be retained until 31 January 2010 and that, after that date, subject to the passage of legislation, it will be replaced with a new agency, the Office of the Fair Work Building Industry Inspectorate. In addition, based on an independent report the Government commissioned and consultation with industry stakeholders, the Government developed and introduced the Building and Construction Industry Improvement Amendment (Transition to Fair Work) Bill, 2009, into Parliament on 17 June 2009. According to the ACTU, that Bill maintains the coercive powers of the ABCC, while allowing trade unions to petition for the coercive powers to be switched off. This Bill: (i) repeals sections 36, 37 and 38 of the BCII Act; (ii) repeals sections 39 and 40 of the BCII Act and repeals and substitutes sections 48–50 with the effect that the provisions of the Fair Work Act apply to the building and construction industry in the same way as they do to all other industries; (iii) introduces numerous safeguards and limits the coercive powers to no longer allow investigation of matters relating to compliance with laws governing the registration of the internal affairs of unions; and (iv) maintains the current limitation on the ABCC’s power to impose any penalty under section 52(6) of the BCII Act, which requires the ABCC to refer the matter to the Office of the Commonwealth Director of Public Prosecutions who determines whether to prosecute. The Committee requests the Government to indicate any progress made concerning the adoption of the Transition to Fair Work Bill. The Committee also once again requests the Government to indicate any measures taken to instruct the ABCC to refrain from imposing penalties or commencing legal proceedings under the ABCC while the review is under way.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with regret that the Government’s report does not address the issues raised by the Committee in its previous direct request.

Federal jurisdiction. 1. Statistical data. Noting that the Government does not provide any information with regard to the Committee’s previous comments on the effect that the Work Choices Act may have on trade union membership (the proportion of employees who were trade union members had been steadily declining from the August 1986 figure of 45.6 per cent to the August 2006 figure of 20.3 per cent; only 15.2 per cent of employees in the private sector were trade union members compared to 42.6 per cent in the public sector), the Committee expresses the hope that the substantive labour reform currently under way will reverse this trend and requests the Government to continue to provide information in this regard.

2. The Workplace Relations Act (WR Act), 1996. 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 to freely draw up their constitutions and rules. The Committee expresses the hope that the substantive labour reform currently under way will address the need to ensure that disciplinary matters are left up to the democratically elaborated rules or by-laws of the unions concerned.

State jurisdictions. 1. New South Wales. The Committee recalls that 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 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.

2. Western Australia. In its previous comments, the Committee 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.

The Committee 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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes with interest the general statement made in the Government’s report to the effect that the new Australian Government acknowledges that the aspects of federal workplace relations laws, previously commented on by the Committee, did not, in a number of important respects, meet the key requirements of ILO standards ratified by Australia relating to collective bargaining and freedom of association. These comments related primarily, but were not limited to, amendments made in 2005 to the Workplace Relations Act, 1996, (WR Act) by the Workplace Relations Amendment (Work Choices) Act, 2005 (Work Choices Act). The Committee also notes that: (i) a critical component of the new Government’s legislative programme is to enact new laws governing workplace relations in Australia, having due regard to the issues canvassed in the report of the Committee of Experts; (ii) the first stage of the Government’s legislative programme is now in place following the entry into force of the Workplace Relations Amendment (Transition to Forward with Fairness) Act, 2008 (Transition Act), on 28 March 2008; this Act amends the WR Act and provides for a measured transition to the Government’s new workplace relations system which will be fully operational from 1 January 2010; (iii) the substantive workplace relations reforms under development have been the product of extensive consultation and review by employer and worker representatives and subject to extensive parliamentary scrutiny. The Committee requests the Government to communicate with its next report a copy of any draft legislation under consideration in the framework of the substantive labour law reform, so as to examine its conformity with the Convention.

Article 3 of the Convention. Right to strike. The Committee’s previous comments concerned the need to amend numerous provisions of the WR Act with a view to bringing them into conformity with the Convention. The Committee had referred in particular to 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 general sympathy strikes (section 438); negotiations over “prohibited content” (sections 356 and 436 of the WR Act, in connection with the Workplace Relations Regulations, 2006); strike pay (section 508 of the WR Act); and provisions which prohibit industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act), through the introduction of compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act). Finally, the Committee had raised the need to amend section 30J of the Crimes Act, 1914, which prohibits industrial action threatening trade or commerce with other countries or among States and 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 from the Government’s report that the substantive workplace relations reforms under development for consideration by Parliament later in 2008 will provide for protected industrial action authorized by a secret ballot during bargaining for a collective enterprise agreement; the ballot process will be fair and simple. The Committee also notes, however, that according to a communication by the Australian Congress of Trade Unions (ACTU) dated 1 September 2008, the Government has indicated its intention to retain the existing provisions which prohibit secondary boycotts and make industrial action in favour of “pattern bargaining” (i.e. negotiations seeking common wages or conditions of employment for two or more proposed collective agreements with different employers or even different subsidiaries of the same parent company) illegal. The Committee hopes that the substantive workplace relations reform will address the need to bring law and practice into conformity with the comments made by the Committee on the points raised above. It requests the Government to indicate in its next report the measures taken in this regard.

Access to the workplace. In a previous direct request, the Committee had raised 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 comments made by ACTU detailing the hurdles faced by unions in this regard and noting the intention of the new Government to retain the existing provisions.

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 and should not be limited to communications with “eligible” employees, as trade unions should be able to apprise non-unionized workers of the potential advantages of unionization or of coverage by a collective agreement. The Committee therefore 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.

Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409–457), had raised the need to rectify numerous discrepancies between the Building and Construction Industry Improvement (BCII) Act, 2005, and the Convention. The Committee had regretted, in particular, the declining rate of trade unionism in the industry which, in the Committee’s view, might not be unrelated to impediments placed over collective bargaining in the BCII Act.

The Committee recalls from previous comments that: (i) the BCII Act renders virtually all forms of industrial action in the building and industrial sector unlawful; (ii) introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful” industrial action; (iii) gives the enforcement agency known as the Australian Building and Construction Commission (ABCC) wide-ranging coercive powers akin to an agency charged with investigating criminal matters; (iv) grants the capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by Ministerial Decree through a device referred to as a building code which is inconsistent with the Convention on several points and is implicitly “enforced” through an “accreditation scheme” for contractors who wish to enter into contracts with the Commonwealth.

The Committee notes that according to the comments made by the ACTU in its communication dated 14 September 2007, the ABCC issued a fact sheet based on the building code which implicitly discourages trade union membership and encourages resignations from trade unions; moreover, the ABCC issued a “warning” against an employer that it might suffer a reduction in opportunities to tender for Government projects or be precluded from tendering for contracts for a period of time, if it continued to allow a union delegate, rather than site management, to conduct “staff inductions”. The Committee also notes that, in its comments dated 1 September 2008, the ACTU regrets that the new Government has given no indication that it is considering amending the BCII Act and that it has retained the ABCC with its powers and resources undiminished and its policy orientation unaltered. With regard to the steps taken to replace the ABCC with a “specialist regulator” as of 1 February 2010, the ACTU notes that it opposes in principle the granting of additional powers to a “specialist regulator”. It adds that it considers the existence of a separate set of industrial laws for a single industry to be contrary to the principle of treating all workers equally and fairly. The ACTU raises a number of serious concerns (inter alia, by citing statistical data) about the conduct of the ABCC, the activities of which appear to continue to be targeted against trade unions and workers. The ACTU also refers to heavy financial penalties imposed by the ABCC under the BCII Act (amounting to 1.2 million Australian dollars from October 2005 to May 2008). The ACTU finally refers to the prosecution by the ABCC of a trade union officer who risks up to six months imprisonment, without being the subject of any investigation, simply for having failed to appear before the ABCC to answer questions (s. 52(6), BCII Act). The Committee also notes the comments by the ITUC in a communication dated 29 August 2008 referring to additional restrictions on trade union activities and fines imposed by the ABCC in a “campaign against workers and unions in the construction industry”.

The Committee notes that, according to the Government, the ABCC will be retained until 31 January 2010, after which time, it will be replaced with a specialist building and construction division of the inspectorate of a new workplace relations agency, Fair Work Australia. The Government has engaged a former judge of the Australian Federal Court to consult and report on matters related to the creation of the specialist division and to report to the Government in 2009. A report will be provided to the Committee of Experts once the Government has had the opportunity to consider the recommendations of this inquiry.

The Committee requests the Government to provide a full reply to the information communicated by the ACTU and the ITUC in 2007 and 2008.

The Committee wishes to emphasize once again that all workers without distinction whatsoever, including workers in the building and construction industry, have the right to organise, and that the exercise of the right to organize presupposes that trade unions have the right to freely organize their activities and formulate their programmes for furthering and defending the interests of workers, without interference from the authorities. The Committee, therefore, once again urges 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 BCII 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 BCII 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 BCII 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 BCII Act); and (iv) amending section 52(6) of the BCII 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. The Committee also requests the Government to indicate any measures taken to instruct the ABCC to refrain from imposing penalties or commencing legal proceedings under the ABCC while the review is under way.

The Committee addresses a request on certain other points directly to the Government.

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

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.

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

The Committee notes the information provided in the Government’s reports dated 22 December 2006 and 15 January, 13 July, 20 September and 5 October 2007, in reply to the request made by the Conference Committee on the Application of Standards in June 2006 for a detailed report on the provisions of the Workplace Relations Amendment (Work Choices) Act 2005 (the Work Choices Act), which introduced extensive legislative amendments to the Workplace Relations Act 1996 (the WR Act). The Committee also notes that the Government’s report of 22 December 2006 provides a reply to the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 17 May 2006, which were noted in the Committee’s previous observation. The Committee finally takes note of the comments made by the International Trade Union Confederation (ITUC) in a communication dated 27 August 2007 with regard to issues already raised by the Committee and the Government’s reply thereto dated 18 October 2007.

With regard to the building and construction industry in particular, the Committee notes the comments made by ACTU in a communication dated 9 October 2006, as well as the communication of the Trade Unions International of Workers of the Building, Wood and Building Materials Industries (UITBB) in support of the ACTU submission and the comments made by ITUC in a communication dated 27 August 2007. It further notes the Government’s observations in this respect contained in a communication dated 13 July 2007 as well as the communication of 18 April 2007 on the tripartite consultations which have taken place on this subject. The Committee finally notes the ACTU comments dated 14 September 2007 on this subject, as well as the Government’s communication of 9 November 2007 indicating that the upcoming elections prevent it from responding to the ACTU comments at this time. It requests the Government to provide its observations at the appropriate time.

The Committee recalls that in June 2006 the Conference Committee had requested the Government to: (i) provide a detailed report to this Committee for examination in 2006 on the impact of the amendments introduced by the Work Choices Act to the WR Act on the Government’s obligation to ensure respect for freedom of association both in law and in practice; (ii) 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. In previous communications, the Government had announced the conclusion of a tripartite agreement between the Government, ACTU and the Australian Chamber of Commerce and Industry (ACCI) on the following process: the Government would provide a report to this Committee focusing on key issues identified by the social partners, i.e. the level and substance of bargaining rights and the right to strike; the ACCI and ACTU would provide separate comments on the Government’s report, once submitted to the Committee and copied to them; the report and observations of the Committee would then be used as a basis for further tripartite consultations. However, as explained by the Government in subsequent communications, it was not possible to provide a report to the Committee on time for examination in 2006 due to a range of factors. The Committee further notes that in its report of 5 October 2007, the Government provides a summary record of the consultations held with the social partners on 20 August 2007. The Committee observes from the records that the consultations did not lead to any new element as all sides appear to maintain their respective positions. The Committee requests the Government to continue the consultation process so as to allow sufficient time for the parties to discuss their views in full with a view to eventually reaching commonly acceptable solutions, and to provide information on this issue in its next report.

Article 3 of the Convention. Right to strike. The Committee’s previous comments concerned numerous discrepancies between the provisions of the WR Act – as amended by the Work Choices Act – and the Convention. In particular, the Committee had raised the need to amend the following provisions of the WR Act with a view to bringing 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 of the WR Act in connection with the Workplace Relations Regulations 2006); strike pay (sections 508 of the WR Act); and provisions which prohibit industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act) through the introduction of compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act). Finally, the Committee had raised the need to amend section 30J of the Crimes Act 1914, which prohibits industrial action threatening trade or commerce with other countries or among States and 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 the Government provides detailed information on the economic justification of the provisions in question which are the result of successive reforms of the workplace relations framework since 1996. The aim of these reforms has been, according to the Government, to promote more jobs and better pay through improvements in productivity so as to maintain Australia’s economic prosperity and strength. The Government states that, as a result, real wages have grown by 21.5 per cent since 1996. The reforms ensured that the primary focus of the workplace relations system is agreement-making at the workplace level, as an increased emphasis on direct bargaining between employers and workers is key to greater productivity. The Committee notes that, according to the Government, accepting the Committee’s comments on the need to lift restrictions over industrial action in case of multiple-business agreements (section 423(1)(b)(i)), pattern bargaining (section 439), or secondary boycotts and generally sympathy strikes (section 438) would have the effect of diminishing the focus of the entire system on agreement-making at the workplace level and would in certain respects be unfair to the employer who has reached agreement with its staff but might be subject to industrial action aimed at other employers. Moreover, the provisions on “prohibited content” (sections 356 and 436 of the WR Act in connection with the Workplace Relations Regulations 2006) largely represent, according to the Government, a continuation of the limits that the Australian workplace relations system has always placed on the content of binding industrial instruments, which should be limited to matters pertaining to the relations between employers and employees, to the exclusion of academic, political or social matters. Furthermore, the provisions which lift the protection of industrial action in support of strike pay (section 508 of the WR Act) are reasonable. The provisions prohibiting industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act) through the introduction of compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act) do not lead to a blanket prohibition of industrial action; since the commencement of the Work Choices Act reforms in March 2006 there have been only eight applications seeking suspension or termination of a bargaining period and the bargaining period was terminated in only three of these instances. Finally, with regard to sections 30J and 30K of the Crimes Act, 1914 (prohibition of industrial action threatening transport, trade and commerce), the Government indicates that the repeal of these sections remains under consideration, but as no action has been taken under the relevant sections of the Crimes Act for over 50 years, any such amendment would be given low legislative priority.

The Committee notes with regret the Government’s statement that it is not intending to adopt amendments along the lines of the Committee’s previous comments. It also notes the statistical information provided by the Government according to which the proportion of employees who are trade union members has been steadily declining from the August 1986 figure of 45.6 per cent to the August 2006 figure of 20.3 per cent and that only 15.2 per cent of employees in the private sector are trade union members compared to 42.6 per cent in the public sector and expresses its concern as to the effect that the Work Choices Act may have on trade union membership. The Committee once again urges the Government to indicate in its next report the measures taken or contemplated so as to bring its law and practice into conformity with the Convention on all the points raised above and to continue to provide information on the impact of the Work Choices Act both in law and in practice on the Government’s obligation to ensure respect for freedom of association.

Building industry. In its previous comments, the Committee, taking note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2326 (338th Report, paragraphs 409-457), had raised the need to rectify several discrepancies between the Building and Construction Industry Improvement (BCII) Act 2005, and the Convention.

The Committee notes that in its communication of 9 October 2006, ACTU emphasizes that the BCII Act makes it practically impossible to declare a legal strike, renders virtually all forms of industrial action in the building and industrial sector unlawful and introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful” industrial action (unions are “deemed” legally liable for certain conduct by their members); moreover, it establishes a new enforcement agency known as the Australian Building and Construction Commission (ABCC) which is not sufficiently independent from the Government, has wide-ranging coercive powers akin to an agency charged with investigating criminal matters (capacity to compel a person to attend, produce documents and answer questions under oath without being able to refuse answers which might incriminate the witness and power to publicize “findings” against union members and officials without the guarantees of an impartial judicial procedure; on one occasion, the ABCC denied legal representation to a worker on the basis that his/her legal representative had acted for another person who had also been interrogated over the same industrial matter). According to ACTU, the ABCC has standing to bring legal proceedings in its own right, irrespective of the views of the parties to the industrial relationship, a power it exercised for instance, against 107 workers in the Perth to Mandurah New Metro City Rail construction project in Western Australia; these workers faced fines up to AU$22,000 under the BCII Act plus 6,600 under the WR Act. Moreover, ITUC refers in its communication dated 27 August 2007 to several instances where proceedings were initiated against trade unions and individual workers for their participation in industrial action in the construction industry including a case in which a trade union meeting which ran 15 minutes too long was considered to be unlawful industrial action, and the individual workers faced the prospect of fines up to AU$28,600 each and possible jail sentences while the unions faced penalties of up to AU$220,000. According to ACTU, the ABCC warned trade unions through public statements not to participate in the “National day of community protest” of 15 November 2005, organized by ACTU, by reinforcing the prospect that such action would be deemed unlawful and that workers would face a real threat of prosecution by the ABCC.

The Committee takes note of the Government’s position as set out in its communication of 13 July 2007 that: (i) the right to strike is not unqualified and can be subject to restrictions to be developed with regard to national conditions. These conditions in Australia, as reported by the Royal Commission into the Building and Construction Industry and other independent reports, are that industrial action in the building and construction industry can cause more harm to more people than similar action in other industries and that, over the last 20 years, this industry has been undermined by conflict, lawlessness and inefficiency, which demonstrated an urgent need for structural and cultural reform. (ii) Consequently, the restrictions on industrial action introduced in the BCII Act are reasonable and intentionally broad so as to encompass all conduct that adversely affects the performance of building work, since both employer and employee interests are disadvantaged by strike action. Moreover, penalties are increased so as to ensure a strong deterrent against unlawful industrial action in the industry. (iii) The Government adds that it continues to provide construction employees and their unions with a qualified right to strike. The right to take protected industrial action is restricted to disputes between the parties to the employment relationship and the Government does not intend to enact provisions that would enable parties to take protected action in support of multiple-business agreements; this is, according to the Government, consistent with the Convention; employees can still protest in pursuit of broader industrial, political or economic objectives, like the 15 November 2005 national protest organized by ACTU, if they obtain first the permission of their employer to be absent from work on that day. (iv) The Government also reports that there is a consistent declining trend in trade union membership in the construction industry with only 22 per cent of construction industry employees being trade union members in August 2006. On the contrary, since the entry into force of the BCII Act, wages rose at an above-average rate, output and employment also increased while the number of working days lost to industrial disputation fell to levels consistent with other industries. Notwithstanding the positive indicators of the success of the reforms, the Government considers it necessary to maintain the existing arrangements to address the deeply entrenched culture of disregard for the law. (v) The Government adds that the ABCC is an independent regulatory body aimed to address the culture of lawlessness and intimidation evident in the building and construction industry. For that reason, it is vested with the ability to undertake legal proceedings in its own right, as an independent statutory authority. In the Australian national context, it helps the building industry participants achieve better compliance with their obligations under the Convention. More than 67 per cent of complaints received by the ABCC concern trade unions; of 59 prosecutions brought by the ABCC and concluded by 4 April 2007, 29 involved unions only, 20 involved employers only, six involved both unions and employers, two involved employees only, one involved unions, employers and employees and one involved the Victorian State government. To date, no person has been jailed as a result of any ABCC prosecution, or in relation to the exercise of the ABCC’s compliance powers. The Federal Court ruled on 12 October 2006 that the decision to exclude a solicitor was lawful and reasonable in the circumstances of the case. The decision is now subject to further appeal. To date, the ABCC has used its power to publicize non-compliance with the BCII Act and the WR Act by building industry participants only once, after a work stoppage at a building site in Port Melbourne, Victoria, and the decision has not been challenged in any court by the union. With regard to the proceedings initiated by the ABCC to which ACTU refers, the Government indicates that the intervention of the ABCC was motivated by a dispute caused by continued disruptions to building work including “numerous unauthorized meetings, bans on overtime and strikes of more than two hours”. Even though the parties reached a settlement on penalties amounting to AU$150,000 to be paid by the Construction, Forestry, Mining, Energy Union (CFMEU), this settlement had to be “accepted” by a judge who decided the allocation of the amount among different branches of the CFMEU and its individual members/leaders; in addition to this penalty, a damages claim by the employer is still pending. (vi) Finally, the Government reports on the consultations with building and construction industry participants which took place on 12 December 2006 in Canberra. The Committee notes from the minutes of these consultations that all parties appeared to maintain their positions.

The Committee notes with regret the Government’s statements indicating that there is no intention to amend the BCII Act, as well as the severe penalties imposed on trade unions and individual members for industrial action, including strikes lasting more than two hours, the prosecutions initiated by the ABCC which appear to be targeted on numerous occasions against trade unions and workers, and the declining rate of trade unionism in the industry which, in the Committee’s view, may not be unrelated to impediments placed over collective bargaining in the BCII Act. The Committee wishes to emphasize that the exercise of the right to organize presupposes that trade unions have the right to freely organize their activities and formulate their programmes for furthering and defending the interests of workers, without interference from the authorities. The Committee therefore once again urges 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.

The Committee has been informed by the Government of Australia, newly elected on 24 November 2007, that it is committed to making substantial amendments to Australia’s Workplace Relations Act and its legislative framework and to addressing issues the Committee has raised with regard to the Building and Construction Industry Improvement Act 2005. The Committee expresses the hope that its comments will prove useful to the Government in its deliberations on legislative revision.

[The Government is asked to report in detail in 2008.]

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

The Committee notes with regret that the Government’s report has not been received.

Federal jurisdiction. The Workplace Relations Act (WR Act), 1996. 1. Right to draw up constitutions and rules. The Committee recalls that its previous comments concerned the need to amend sections 298R and 298U of the WR Act concerning 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. The Committee notes that pursuant to the amendment of the WR Act by the Workplace Relations Amendment (Work Choices) Act, 2005, (the Work Choices Act), these provisions now figure in sections 807 and 798 of the WR Act and requests the Government to amend this provision so as to leave such matters up to the democratically elaborated rules or by-laws of the unions concerned.

2. Workplace access. (i) The Committee notes that the International Confederation of Free Trade Unions (ICFTU), in its communication dated 12 July 2006, raises its concern that the new law severely curtails the right of union representatives to visit workplaces, thereby restricting their ability to advise employees of their rights and to recruit members. According to the ICFTU, the WR Act, as amended, includes a rigid set of requirements for unions seeking to enter workplaces and imposes a lifetime ban on visiting workplaces for union officials who breach the new laws. The Committee observes, in this respect, that, pursuant to the amendment of the WR Act by the Work Choices Act, the right of entry of trade union representatives to the workplace in order to meet with workers has become subject to a special permit requirement (section 740 WR Act), which may be refused (and can also be revoked or suspended) in certain cases including: if the official has been convicted of an offence against an industrial law; or if the official has been ordered to pay a penalty under the WR Act or any other industrial law (sections 742(2)(b) and (d), WR Act). 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). The Committee draws the Government’s attention to its General Survey of 1994 wherein it has indicated 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 (see General Survey of 1994 on Freedom of Association and Collective Bargaining, paragraph 128). The Committee considers that the restrictive conditions set for granting the permit could constitute a serious obstacle to the exercise of this right given 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 Convention Nos. 87 and 98. The Committee therefore requests the Government to reply, in its next report, to the comments made by the ICFTU in this respect and to indicate any measures taken or contemplated to amend this section of the WR Act.

(ii) The Committee further notes that 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, WR Act). The Committee observes that section 760 has the effect of preventing discussions with employees who are covered by an AWA (instead of an award or collective agreement), even if they are trade union members. The Committee is of the view that 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. It therefore requests the Government to indicate in its next report the measures taken or contemplated to amend this section so as not to artificially restrict the group of employees with whom a trade union representative may discuss.

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.

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 direct request, the Committee raised the issue of provisions that stipulate that workers’ membership in a trade union end 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.

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.

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

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.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the information provided in the Government’s report.

Federal jurisdiction

The Workplace Relations Act (WR Act), 1996. Right to draw up constitutions and rules. The Committee recalls that its previous comments concerned the need to amend sections 298R and 298U of the WR Act concerning the issue of disciplining members, so as to avoid any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules.

The Committee notes that, according to the Government, these provisions serve to protect members of industrial associations from adverse action by the industrial association or by an officer or another member, and empower the Federal Court to make various orders for breaches of Part XA of the WR Act. Thus, they are vested with the protections afforded by a judicial process. The rules of industrial associations must be consistent with the protections afforded by these provisions. Moreover, these sections do not otherwise restrict an industrial association from independently disciplining a member for engaging in prohibited conduct of the kind proscribed by section 298R. There have been moreover no reported cases concerning the practical application of this section.

The Committee once again notes that the issue of disciplining members should be up to trade union members themselves to decide on the basis of the rules that they have freely drawn up and requests the Government to amend sections 298R and 298U of the WR Act accordingly.

State jurisdictions

New South Wales. The Committee recalls that in its previous comments it requested the Government 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 from the Government’s report that the New South Wales Government will consider the concerns of the Committee in any future review of the Industrial Relations Act, 1996, 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.

Western Australia. The Committee notes with interest from the Government’s report that the reforms to the Western Australian labour relations system have been operational since 15 September 2002 and are working well in practice. In particular, Western Australian trade unions are now able to operate without undue interference in their internal affairs and may engage in industrial action without unworkable and unnecessary bureaucratic restrictions.

The Committee recalls that in its previous comments it had also raised the issue of provisions which stipulate that workers’ memberships in a trade union end if their subscriptions are not paid. The Committee notes that there is no information in this respect in the Government’s report. The Committee once again requests 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.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the information provided in the Government’s report. It further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005 with regard to restrictions on the right to strike and the comments made by the Australian Council of Trade Unions (ACTU) in a communication dated 2 September 2005 with regard to proposed legislative reforms concerning the redistribution of jurisdiction over workplace relations issues between the federal and state levels. The Committee requests the Government to provide its observations on these comments.

The Committee also take 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. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to bring this Act into conformity with the Convention.

Federal jurisdiction

The Committee recalls that its previous comments concerned the conformity of several legislative provisions, including of the Workplace Relations Act, 1996 (WR Act), to the Convention. Noting that the WR Act applies also to the State of Victoria, the Northern Territory and the Australian Capital Territory, the Committee’s comments on the WR Act, as set out below, are also relevant with respect to these jurisdictions.

In particular, in its previous comments the Committee had raised the need to amend several provisions which prohibit: (i) industrial action in support of multi-employer agreements (section 170MN of the WR Act); (ii) industrial action threatening to cause significant damage to the economy (section 170MW of the WR Act); (iii) secondary boycotts (section 45D of the WR Act); (iv) industrial action threatening trade or commerce with other countries or among states (section 30J of the Crimes Act, 1914); (v) 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 (section 30K of the Crimes Act, 1914); (vi) action in support of a claim for strike pay (section 187AA of the WR Act).

The Committee, noting with regret that the Government reiterates previously provided information and remains of the view that there is no need to amend the above provisions, can only reiterate its hope that the Government will take measures to amend the above provisions so as to bring them into full conformity with the Convention, and requests the Government to indicate in its next report any measures taken or contemplated in this respect.

The Committee understands that legislative amendments are under way and trusts that the Government will take all of the above into consideration in this framework.

State jurisdictions

1. Queensland. In its previous comments, the Committee had requested the Government to amend section 638 of the Industrial Relations Act, 1999, which provided that an organization may be deregistered if its members are engaged in industrial action that prevents or interferes with trade or commerce.

The Committee notes with satisfaction from the Government’s report that the Queensland Government has amended section 638 by removing subsection (b) which provided that the full bench may order the deregistration of an organization on the grounds that the organization or its members were engaging in industrial action that had prevented or interfered with trade or commerce.

2. South Australia. In its previous comments, the Committee requested the Government to keep it informed of any progress made in amending section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions). The Committee notes that the Government’s report does not contain any information in this respect. It once again requests the Government to indicate in its next report any progress made in amending section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions).

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided in the Government’s report.

Federal jurisdiction

The Workplace Relations Act, 1996. Right to draw up constitutions and rules. The Committee previously requested the Government to refrain from any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules by leaving the issue of disciplining members to the rules of the organization and to amend sections 298R and 298U of the Act accordingly. The Committee requests the Government to keep it informed of developments in this respect.

State jurisdictions

New South Wales. As regards 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 that no union has had its registration cancelled on such grounds, and that the only two applications for cancellation were made by the organizations in question in respect of their own registration. The Committee recalls that prohibitions of the right to strike 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. It therefore requests the Government to keep it informed of any measures taken or envisaged to amend this section so as to bring it into conformity with the provisions of the Convention.

Western Australia. The Committee’s previous comments concerned interference in trade union affairs and restrictions on strikes. The Government indicates that it is not possible to provide any further details on the application in practice of the Labour Relations Reform Act at this time since it has only been fully operational since 15 September 2002. The Committee requests the Government to keep it informed of the application of the Act in practice in future reports.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes the information provided in the Government’s report, and the decisions of various courts at state and federal levels. The Committee further notes the recent communications by the Australian Council of Trade Unions and the Australian Chamber of Commerce and Industry and requests the Government to transmit its comments thereon.

Federal jurisdiction

1. Workplace Relations Act, 1996. The Committee’s previous comments concerned the provisions of the Act dealing with the restrictions on the objectives of strikes, the prohibition of action in support of multi-employer agreements and the restrictions on industrial action beyond essential services. The Government reiterates its previous comments as follows:

-  as regards multi-employer agreements, the Act itself does not prohibit strike action except in relation to industrial action during the period of operation of a certified agreement (section 170MN); the existing scope of protected industrial action is appropriate; extending protection to action associated with the negotiation of multi-employer certified agreements would discourage workplace level agreements and could potentially encourage disputes about matters extraneous to the parties, over which they have no power to agree;

-  as regards strike pay, the prohibition in the legislation is not incompatible with freedom of association principles and merely reflects the common law rule that denies remuneration to workers who don’t perform the work required by their contract of employment, as confirmed by national courts;

-  as regards industrial action threatening to cause significant damage to the economy and sympathy action, the existing provisions have neither the effect of prohibiting industrial action beyond essential services or of amounting to an outright ban on strikes; termination or suspension of a bargaining period under section 170MW does not operate automatically and requires the exercise of a discretion by the Australian Industrial Relations Commission (AIRC), which must first identify whether one of a number of statutory criteria exist in the particular factual situation and then decide whether to exercise its discretion to suspend or terminate the bargaining period, as shown by a number of such decisions by the AIRC; in the event a bargaining period is suspended or terminated, further orders need to be obtained before any sanctions can be applied to those taking industrial action; these mechanisms provide ample safeguard against blanket prohibition on industrial action.

Noting with regret that the Government reiterates that it is not contemplating any legislative reform to bring its legislation into conformity with the Convention on the abovementioned points, the Committee recalls that: workers’ organizations should be able to take industrial action in support of multi-employers agreements without running the risk of being sanctioned; providing in legislation that workers cannot take action in support of a claim for strike pay is not compatible with the principles of freedom of association; prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services in the strict sense of the term. In the case of the latter restriction, however, the Committee has considered that, in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to a dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in services which are of public utility rather than impose an outright ban on strikes. The Committee requests the Government to amend these provisions of the Act.

2. Trade Practices Act, 1974. Secondary boycotts. In its previous comments, the Committee noted that section 45D, as amended, continued to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. The Committee requested to be informed of the results of the review undertaken by the Committee for review of the competition provisions of the Trade Practices Act. The Government indicates that the Review Committee has made no recommendations with respect to section 45D of the Act; it concluded that these provisions have served Australians well, have sustained a competitive environment which has benefited consumers, has achieved an appropriate balance between the prohibition of anti-competitive conduct and the encouragement of competition. Competition laws need to be distinguished from industry policy and should not be seen as a means of achieving social outcomes unrelated to the encouragement of competition. No judicial decisions have been issued in this respect during the period under review.

The Committee recalls once again that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and requests it to continue to provide information on the practical application of the boycott provisions of the Act.

3. Crimes Act, 1914. The Committee’s previous comments concerned the repeal of the provisions of the Act banning strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" (section 30J), and 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 (section 30K). The Government indicates that it is still considering the Committee’s request to repeal these provisions but that, since no action has been taken under these provisions for over 40 years, amending the Crimes Act would be given low priority. The Committee notes this information, reiterates its hope that the Government will take measures to amend this legislation, and requests the Government to keep it informed of any practical application of these provisions.

State jurisdictions

1. Queensland. In its previous comments, the Committee had noted that section 638 of the Industrial Relations Act, 1999, provides that an organization may be deregistered if its members are engaged in industrial action that prevents or interferes with trade or commerce. The Government reiterates that the powers under section 638 would be used only in extreme circumstances and that such deregistration may only occur through an order of the full bench of the Queensland Industrial Relations Commission, which must perform its functions in a way that furthers the objects of the Act and that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act. The Government considers that these provisions protect against deregistration of industrial organizations unless an exceptional situation arose. Recalling that this provision results in a prohibition of strikes going beyond essential services in the strict sense of the term, the Committee requests the Government to indicate the measures taken or envisaged to amend this provision.

2. South Australia. Noting that the Government of South Australia refers generally to the ongoing review of industrial relations in the State, the Committee requests the Government to keep it informed of any progress made in amending section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions).

3. Northern Territory and Victoria. The Committee requests the Government to keep it informed of developments concerning the Northern Territory (Self Government Act), 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, and again requests it to take measures to have these state legislations amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report, the decisions of various courts at State and Federal levels, and the comments of the Australian Chamber of Commerce and Industry (ACCI) and the International Transport Workers’ Federation (ITF).

Federal jurisdiction

1. The Workplace Relations Act, 1996. Registration requirements. The Committee had requested that the Government consider reviewing the registration requirements to ensure that workers without distinction whatsoever are entitled to form and join organizations of their own choosing, and to continue providing information on the practical application of the registration system. The Government indicates that the existing registration provisions are designed to ensure the independence and viability of organizations, and that the low level of registration of new unions does not indicate that the registration requirements are unreasonable. The Committee notes this information, including the examples of registration, cancellation and amalgamation.

Right to draw up constitutions and rules. The Committee previously requested the Government to refrain from any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules by leaving the issue of disciplining of members to the rules of the organization and to amend sections 298R and 298U of the Act accordingly. Noting that the Government had stated that it would consider complying with its request, the Committee requests that the Government keep it informed of developments in this respect.

Organizing administration and activities to further and defend the interests of workers. The Committee takes note of the court decisions and comments provided by the Government on the scope of protected action, and on the relationship between section 166A (providing tort immunities in certain circumstances) and sections 170ML, 170MT and 170MU (providing protection for industrial action). It notes that some of these decisions have curtailed the ability of employers to bring civil proceedings in respect of industrial action.

2. Trade Practices Act, 1974. Secondary boycotts. The Committee notes the Government’s statement that it is not aware of any cases involving the application of section 45E of the Act, and requests that the Government continue to provide information in its next reports on any cases involving the application of this provision.

State jurisdictions

New South Wales. As regards 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 that no union has had its registration cancelled on such grounds, and that the only two applications for cancellation were made by the organizations in question in respect of their own registration. Recalling that prohibitions of the right to strike 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, the Committee requests the Government to keep it informed of developments in this respect.

Western Australia. Article 2 of the Convention. The Committee notes the Government’s indications concerning the "good reason" criteria for registration of organizations with less than 200 members and the absence of such applications in view of the general trend in trade unions structure.

Article 3 of the Convention. Interference in trade union affairs. The Committee had expressed the view that some provisions of the Act (procedures and limitations for maintaining a political fund; workers’ membership to end if subscriptions are not paid; extensive definition of financial officer) constitute excessive interference in the internal affairs of the organizations. The Committee notes with interest that the definition of financial official has been circumscribed and that the provisions concerning political expenditures have been repealed. Noting that the Government currently has no plans to amend the provisions stipulating that workers’ memberships in a trade union end if their subscriptions are not paid, the Committee recalls that this matter should be left to the rules of the organizations, and requests the Government to keep it informed of developments in this respect in future reports.

Restrictions on strikes. The Committee previously commented on a number of provisions that, in its view, unduly limit the exercise of legitimate strike action. Noting with interest that the provisions of the Act dealing with back-to-work orders, common law liability and strike ballots have been repealed, the Committee requests the Government to keep it informed of the application of the Act in practice in future reports.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information provided in the Government’s report, and the decisions of various courts at state and federal levels. It further notes the comments of the Australian Chamber of Commerce and Industry (ACCI) and the International Transport Workers’ Federation (ITF) and requests the Government to provide its comments thereon.

Federal jurisdiction

1. The Workplace Relations Act, 1996. The Committee’s previous comments concerned the provisions of the Act dealing with the restrictions on the objectives of strikes, the prohibition of sympathy action and the restrictions on industrial action beyond essential services.

The Government reiterates its previous comments as follows:

-  as regards multi-employer agreements, the Act itself does not prohibit strike action; it confers immunity from tort liability in respect of certain industrial action in support of claims for proposed certified agreements and Australian workplace agreements (AWAs); this immunity can be described as a right to strike as it creates a right to take certain forms of industrial action without sanction. The requirement that certain conditions be met in order to attract the immunities is compatible with the Convention; the current conditions are reasonable and appropriate in the overall national industrial relations context. Extending protection to action associated with the negotiation of multi-employer agreements would discourage workplace-level agreements and could potentially encourage disputes about matters extraneous to the parties, over which they have no power to agree;

-  as regards strike pay, the prohibition in the legislation merely reflects the common law rule that denies remuneration to workers who do not perform the work required by their contract of employment, as confirmed by national courts;

-  as regards industrial action threatening to cause significant damage to the economy and sympathy action, the termination or suspension of a bargaining period under section 170MW does not operate automatically and requires the exercise of a discretion by the Australian Industrial Relations Commission (AIRC), which must first identify whether one of a number of statutory criteria exist in the particular factual situation and then decide whether to exercise its discretion to suspend or terminate the bargaining period, as shown by a number of such decisions by the AIRC; conciliation and arbitration procedures are then available to the parties.

Noting with regret that the Government states that no legislative reform is proposed, the Committee recalls that: workers’ organizations should be able to take industrial action in support of multi-employer agreements; providing in legislation that workers cannot take action in support of a claim for strike pay is not compatible with the Convention; prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services in the strict sense of the term. In the case of the latter restriction, however, the Committee has considered that, in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to a dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in services which are of public utility rather than impose an outright ban on strikes. The Committee requests once again the Government to amend the provisions of the Act, to bring it into conformity with the Convention.

2. Trade Practices Act, 1974. Secondary boycotts. In its previous comments, the Committee noted that section 45D, as amended, continued to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. The Committee recalls once again that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. Noting that the Government has set up a committee of inquiry for the review of the competition provisions of the Act, the Committee requests that the Government keep it informed of the results of that review, which it hopes will take the above principles into consideration. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and requests that it continue to provide information on the practical application of the boycott provisions of the Act. The Committee also requests that the Government provide in its next report its observations concerning the comments of the International Transport Workers’ Federation.

3. Crimes Act, 1914. The Committee’s previous comments concerned the repeal of the provisions of the Act banning strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" (section 30J), and 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 (section 30K). The Government reiterates that, since no action has been taken under these provisions for over 40 years, amending the Crimes Act would be given low legislative priority. The Committee notes this information, reiterates its hope that the Government will take measures to amend this legislation, and requests the Government to keep it informed of developments in this respect.

State jurisdictions

Queensland. In its previous comments the Committee had noted that section 638 of the Industrial Relations Act, 1999 provides that an organization may be deregistered if its members are engaged in industrial action that prevents or interferes with trade or commerce. The Government states that the powers under section 638 would be used only in extreme circumstances and that no action has been taken under this provision. The Government considers that this provision establishes a fair balance between its obligations under the Industrial Relations Act and the organization’s right to take industrial action. Recalling that this provision results in a prohibition of strikes going beyond essential services in the strict sense of the term, the Committee requests that the Government amend this provision.

South Australia. In reply to the Committee’s previous comments concerning section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions), the Government mentions that the Act is currently the object of a legislative review, which includes in its terms of reference the appropriateness of integrating international labour standards within the South Australian legislation, and that the Committee’s comments on section 222 will be considered as part of that review. The Committee requests that the Government keep it informed of developments in this respect.

Northern Territory and Victoria. The Committee also notes that pursuant to the Northern Territory (Self-Government) Act, 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria. The Committee again requests that the Government take measures to have these state legislations amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, in particular the adoption of the Industrial Relations Act, 1999 of Queensland which repeals the Workplace Relations Act, 1997 and the Industrial Organizations Act, 1997. The Committee also notes the decisions of the Australian Industrial Relations Commission (AIRC) and of various courts at the State and Federal levels which were appended to the Government’s report.

Federal jurisdiction

1.  The Workplace Relations Act, 1996.  The Committee previously expressed the hope that simplified summaries of the Workplace Relations Act, 1996 (The Act) would be made available to workers and employers. The Committee observes with interest the Government’s indication that "user guides" and "fact sheets" on the main elements of the Act have been published by the Government and distributed widely to assist employers and employees.

Article 2 of the Convention.  Registration requirements.  Noting that the Act significantly altered the registration system, providing for the registration of general and enterprise organizations (section 189), the Committee requested the Government to provide information on its practical application. The Committee also requested information concerning how the right to associate, to negotiate and to strike is applied for workers’ organizations with membership of less than 50 employees, or where the majority of those entitled to be members do not support registration of an enterprise association. The Government indicates that there is no legal restriction on the formation of workers’ organizations outside the provisions of the Act, and unregistered organizations of any size may lawfully be formed and may negotiate with employers; however, strike action taken by an unregistered organization of workers would not be protected from civil liability. In addition, an enterprise association that did not have the support of a majority of employees eligible for membership could not be eligible for registration, and thus would be in the same position as any other unregistered organization. The Government points out, however, that there is no legal requirement that an organization of workers have a minimum level of membership in an enterprise to represent its members in that enterprise. The Committee also notes the Government’s explanation that members of an enterprise organization that could not be registered might be eligible for membership of a general registered organization, registration of which does not depend on the level of membership the organization has in that enterprise.

The Committee notes that according to the Government, since the commencement of the relevant provisions of the Act, there have been 13 applications for registration of workers’ organizations, eight general and five enterprise. Of the general organizations applying for registration, only one was granted (four were refused, and the other proceedings have been adjourned or are pending). Of the five enterprise unions, only one application was granted. Given the low rate of applications for registration that have been approved, and that registration confers a number of significant traditional advantages on an organization, the Committee considers that the registration requirements may not be reasonable, thus encroaching on the right of workers to form organizations of their own choosing without previous authorization. In this regard, the Committee requests the Government to consider reviewing the registration requirements to ensure that workers without distinction whatsoever are entitled to form and join organizations of their own choosing. The Committee also requests the Government to continue providing information on the practical application of the registration system, including supplying statistics as well as the reasons for the refusal of the applications in both enterprise and general unions.

Article 3.  Right to draw up their constitutions and rules.  The Committee previously requested the Government to refrain from any interference which would restrict the right of workers’ organizations freely to draw up their constitutions and rules by leaving the issue of disciplining of members to the rules of the organization, if the organization and its members so wish, and to amend sections 298R and 298U of the Act accordingly. Noting the Government’s response to the effect that it will consider complying with the Committee’s request, the Committee encourages it to take positive measures in this respect.

Articles 3 and 10.  Organizing administration and activities to further and defend the interests of workers.  The Committee takes note of the court decisions and comments provided by the Government concerning the scope of "protected action" and matters that are or are not permitted to be covered by certified agreements. Concerning the relationship between section 166A providing tort immunities in certain circumstances, and the other provisions of the Act providing protection for industrial action (sections 170ML, 170MT and 170MU), the Committee notes that according to the Government, section 166A applies to both protected and unprotected industrial action, and the relationship between the two sets of provisions is only relevant where proceedings under section 166A concern protected action. Where proceedings under section 166A fail to stop industrial action that is protected, section 170MT operates to make that industrial action immune from tort proceedings that might otherwise be available. The Committee takes due note of this information and requests the Government to continue providing relevant court and tribunal decisions concerning this matter.

2.  Trade Practices Act, 1974.  Secondary boycotts.  Regarding the application of section 45E of the Act, the Government states that it is not aware of any cases involving the application of this provision to industrial action by workers. The Committee takes note of this information, and requests the Government to keep it informed in its next reports whether there have been any cases involving the application of this provision.

State jurisdictions

New South Wales.  The Committee notes the information provided by the Government concerning the liability of striking workers and their organizations, and the application in practice of the Police Service’s Protocol for pickets. As regards 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, while noting the information provided by the Government on the existing substantive and procedural safeguards, and on the Commission’s powers in this respect, the Committee recalls that prohibitions of the right to strike 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.

Western Australia.  The Committee takes due note of the Government’s statement that it intends to consider the Committee’s observations in detail, which will involve a detailed review of the industrial relations legislation and Australia’s international obligations. The Government has not, however, determined how this review will be undertaken. The Committee reminds the Government in this regard of the availability of ILO technical assistance.

Article 2.  The Committee requested various information from the Government concerning registration requirements (section 53), exclusive representation (section 72A), and the substitution of parties to an agreement (Part IIIA), and notes that the Government has supplied detailed information in this regard. Concerning registration requirements, the Committee takes due note that according to the information provided by the Government, there are currently 18 registered workers’ organizations with less than 200 members. The Committee requests the Government to continue to provide information on the application in practice of section 53, in particular what is considered to be a "good reason" for registering, and how many applications for organizations with less than 200 members have been made, and how many granted and denied. Concerning the practical application of the provisions providing exclusive representation rights, the information provided by the Government emphasizes that the discretion of the Western Australian Industrial Relations Commission in this process is in reality circumscribed since it must be exercised within the confines of the requirements and duties of the Industrial Relations Act, 1979. The Government also points to case law establishing additional objective criteria to be applied in determining exclusive representation rights. The Committee takes due note of this information.

On the issue of the substitution of one organization for another as a party to an award or industrial agreement, the Committee notes the Government’s statement that it wishes to consider in detail the Committee’s specific observations; the Government also provides the following preliminary information on this subject: no organization has been substituted for another and therefore it remains to be seen how matters under Part IIIA would proceed in practice; Part IIIA regulates the rights and obligations only of those workers’ organizations that chose to participate in the formal system under the Industrial Relations Act; any organization subject to Part IIIA would have made a democratic decision to pursue coverage under the federal system; there are processes in place to ensure workers’ organizations are informed of the decision; an organization is neither dissolved nor is its registration cancelled, rather where an organization chooses to abandon a State award or agreement in favour of a Federal alternative, its control of the State instrument it has abandoned is surrendered. The Committee notes the information provided by the Government; however, this information addresses the situation of the party being withdrawn from the agreement, and not the party ultimately substituted. Noting that recognition of the most representative union may be granted for the recognition of certain preferential rights, the Committee observes that the provisions at issue do not address the representative nature of the organization which takes over the award or industrial agreement. The Committee expresses the firm hope that in its further consideration of the Committee’s comments, the Government will take measures to amend the legislation to ensure that the representative nature of an organization is the paramount criterion for permitting it to take over an award or industrial agreement.

Article 3.  Interference in internal affairs.  The Committee had expressed the view that the following provisions constitute excessive interference in the internal affairs of the organizations:

-  procedures and limitations for maintaining a political fund (Part VIC);

-  requiring a person’s membership to end where subscriptions have not been paid for three months (section 64B);

-  the expansive definition of "financial officer", potentially subjecting a wide range of people to the financial obligations of an organization and to the penalties for breach of such obligations (sections 74, 80 and 97S).

The Government states in its report that it wishes further to consider the Committee’s views regarding these provisions, but states as an interim response that there are often very sound policy reasons to regulate the electoral and financial affairs of workers’ and employers’ organizations to protect the interests of individual members. While acknowledging that reasonable financial accountability is acceptable, the Committee considers that the abovementioned provisions go further, and constitute excessive interference in the internal affairs of organizations, and again suggests that such matters be left to the rules of the organizations.

Articles 3 and 10.  Restrictions on strikes.  The Committee raised previously a number of provisions that, in its view, unduly limit the exercise of legitimate strike action:

-  recourse to work orders which can be granted in a wide range of situations and by a wide range of people to bring a strike to an end;

-  limitation of the objectives of a strike to wages and conditions of employment of the employees participating in the strike, thus prohibiting secondary action (sections 32 and 44);

-  a strike can be brought to an end in an essential service, which is not defined, or which indirectly threatens the welfare of the employees participating in the strike or if it may cause "undue hardship" to any of the parties to the dispute (sections 32 and 44);

-  the lack of protection from common law liabilities, which in effect denies the right to strike in order to protect the economic and social interests of workers (section 97B);

-  a complex and lengthy mandatory pre-strike ballot procedure which makes it difficult, if not impossible, to declare a legal strike or to declare a strike in a timely manner, and which allows people other than the workers and their organizations to force a ballot (Part VIB).

The Committee notes that the Government has not provided a substantive reply concerning these issues, but rather states that it wishes further to examine the Committee’s views. The Committee, being of the view that the above provisions unduly limit the exercise of legitimate strike action, again urges the Government to take measures as soon as possible to bring the legislation into conformity with Articles 3 and 10 of the Convention.

The Committee requests the Government to review the Industrial Relations Act, 1979, in the light of the above comments, and to take measures to bring it into full conformity with the requirements of the Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information provided in the Government’s report, in particular the adoption of the Industrial Relations Act, 1999 of Queensland which repeals the Workplace Relations Act, 1997 and the Industrial Organizations Act, 1997. The Committee also notes the decisions of the Australian Industrial Relations Commission (AIRC) and of various courts at the state and federal levels which were appended to the Government’s report.

Federal jurisdiction

Articles 3 and 10 of the Convention. Organizing administration and activities to further and defend the interests of workers.

1.  The Workplace Relations Act, 1996.  The Committee previously noted the following discrepancies between provisions of the Workplace Relations Act, 1996 and the Convention:

-  Restrictions on the objectives of strikes.  The Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national level agreements (section 170LI), which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests. It also prohibits industrial action with the aim of coercing an employer to make payments in relation to periods of industrial action (sections 166A and 187AB), and industrial action can lose protected status if it involves a demarcation dispute (a dispute (i) between rival organizations or within an organization as to the rights, status or functions of members; (ii) between employers and employees or between members as to the demarcation of functions of employees; or (iii) concerning representation of industrial interests) (sections 4, 166A and 170MW), which also excessively limit the subject matter of a strike.

-  Prohibition of sympathy action.  Sympathy action is effectively prohibited under the Act (section 170MW(4) and (6)). Industrial action also remains unprotected if it involves secondary boycotts (section 170MM).

-  Restrictions beyond essential services.  The bargaining period can be terminated or suspended, thereby divesting industrial action of its protected status, where industrial action is threatening to cause significant damage to the Australian economy or an important part of it (section 170MW(3)). In addition, registration of an organization may be cancelled where it or its members engage in industrial action interfering with trade or commerce or the provision of any public service (section 294), which for practical purposes prohibits strikes in such circumstances.

The Government reiterates in its report that the Act does not expressly prohibit strike action (except in relation to the period during which a collective agreement under the Act is in operation) but rather provides for certain industrial action to be protected from civil liability; in its view, the conditions to be fulfilled before taking industrial action are reasonable and appropriate in the context of the national system as a whole. While noting the Government’s comments, the Committee must again point out that given that "unprotected" strikes can give rise to an injunction, civil liability and dismissal of the striking workers (sections 127, 170ML, 170MT and 170MU), the legitimate exercise of the right to strike can, for all practical purposes, result in sanctions.

With respect to the right to strike in support of a multi-employer, industry-wide or national-level agreement, the Government states that the Act does not expressly limit or restrict the scope of the subject matter pertaining to the relationship between an employer and employee, but does provide immunities in respect of a proposed single-business agreement. The Committee recalls that where strike action is "unprotected" and therefore potentially subject to a wide range of sanctions, as in the case of action in support of multi-employer, industry-wide and national-level agreements, it is for all practical purposes prohibited. On the issue of strike pay, the Committee acknowledges the Government’s statement that it is not incompatible with the Convention for an employer to refuse to pay wages to employees on strike. However, in the Committee’s view, providing in legislation that workers cannot take action in support of a claim for such wages, is not compatible with the principles of freedom of association.

Concerning industrial action threatening to cause significant damage to the Australian economy, the Government stresses that the AIRC is not required to terminate the bargaining period (and thereby divesting the action of protected status) but rather has discretion to do so, and that conciliation and arbitration procedures are then available to the parties. In the view of the Committee, however, since there remains a very real possibility for workers and their organizations to be subject to sanctions for taking such strike action, industrial action threatening to cause significant damage to the Australian economy is essentially prohibited. The Committee recalls that strike action may be restricted or even prohibited in essential services, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey on freedom of association and collective bargaining, 1994, paragraph 159). However, prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services accepted by the Committee, as does the reference in the Act to action affecting trade, commerce and the provision of a public service.

The Committee again requests the Government to take measures to amend the provisions of the Workplace Relations Act referred to above, to bring the legislation into conformity with the requirements of the Convention.

2.  Trade Practices Act, 1974.  Secondary boycotts.  In its previous comments, the Committee noted that section 45D, as amended (section 45D, 45DA and 45DB), continues to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. While noting the Government’s statement that the penalties imposed are maximum amounts, and that injunctive relief is not granted lightly, the Committee must again note with regret that the Act prohibits a wide range of boycott and sympathy action. The Committee again recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. Since the provisions are not in conformity with the principles of freedom of association, sanctions should not be imposed. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and will continue to provide information as to the practical application of the boycott provisions of the Act.

3.   Crimes Act, 1914.  Restrictions on strikes and boycotts beyond essential services.  The Committee recalls its previous comments requesting the Government to keep it informed of any progress made in repealing the provisions of the Act banning strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" (section 30J), and 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 (section 30K). The Government reiterates that it is considering the Committee’s request; however, it notes that since no action has been taken under the relevant provisions for over 40 years, amending the Crimes Act would be given low legislative priority. The Committee takes due note of this information, and expresses the firm hope that the Government will take measures to amend the legislation to bring it into conformity with the national practice and the requirements of the Convention.

4.  The Committee is also addressing certain matters directly to the Government concerning the Workplace Relations Act, 1996, and the Trade Practices Act, 1974.

State jurisdictions

Queensland.  The Committee notes that the Industrial Relations Act, 1999 (which repealed the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997) provides that an organization may be deregistered if its members are engaged in industrial action that has prevented or interfered with trade or commerce or providing a public service (section 638), which in the view of the Committee results in the prohibition of strikes going beyond essential services, as discussed above in the context of the Federal Workplace Relations Act, 1996.

Northern Territory and Victoria.  The Committee also notes that pursuant to the Northern Territory (Self Government Act), 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria.

South Australia.  The Committee noted previously that pursuant to section 222 of the Industrial Employee Relations Act, 1994, the secondary boycott provisions of the Federal Workplace Relations Act, 1996, are applied as laws of the state and therefore referred to its corresponding comments concerning the Federal Workplace Relations Act, 1996. The Committee regrets that the Government limits its response to the comment concerning South Australia by stating that it considers that the establishment of conditions to be fulfilled before taking industrial action are reasonable and appropriate and not incompatible with the Convention.

The Committee again requests the Government to take measures to have the state legislation referred to above examined and amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

The Committee is addressing a request directly to the Government concerning Western Australia and New South Wales.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report, in particular the adoption of the Federal Workplace Relations Act, 1996, which according to the Government, substantially amended the Industrial Relations Act, 1988, and the recent adoption of legislation in certain States: the Labour Relations Legislation Amendment Act, 1997, of Western Australia, amending the Industrial Relations Act, 1979; the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland; and the Industrial Relations Act, 1996, of New South Wales. The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) and the National Union of Workers (New South Wales Branch), and the Government replies to these comments.

The Committee notes that information regarding the application of the Convention in Tasmania and Victoria has not been included in the Government's report, and only partial information has been included concerning New South Wales. The Committee requests the Government to forward full information concerning these three States.

Federal jurisdiction

The Workplace Relations Act, 1996

Article 2 of the Convention (Registration requirements). The Government states in its report that registration is voluntary and not a prerequisite to the formation or functioning of an organization of workers or employers. However, in the view of the Committee, given that registration confers a number of significant traditional advantages on an organization, the requirements for registration must be reasonable. The Committee notes that the Act has significantly altered the registration system, providing for the registration of general and enterprise organizations (section 189); therefore, it requests the Government to provide information on its practical application, and on the interrelationship of the two categories of registration. In particular, the Committee requests information on how many organizations have been registered and under which category, whether any organizations have been deregistered, and how the right to associate, to negotiate and to strike is applied for workers' organizations with membership of less than 50 employees or where a majority of those entitled to be members do not support registration of an enterprise association. With respect to the ACTU's comment that workers have been denied the effective possibility of creating more than one workers' organization per enterprise, the Committee notes the Government's statement that the registration of enterprise associations does not preclude general registered organizations from enrolling and representing the interests of workers who may also be eligible to join enterprise unions.

Article 3 of the Convention (Right to draw up their constitutions and rules). The Committee notes that the Act prohibits, on penalty of, inter alia, the payment of compensation and a fine of up to A$10,000, an industrial association from imposing or threatening to impose a penalty, forfeiture or disability of any kind on a member because the member has refused or failed to join in industrial action (sections 298R and 298U). The Committee recalls that Article 3 of the Convention implies that when drawing up their constitutions and rules, workers' organizations should have the right to determine whether or not to provide for the disciplining of members, including by expulsion or fine, who refuse to comply with democratic decisions to take lawful industrial action. The Committee, therefore, requests the Government to refrain from any interference which would restrict the right of workers' organizations to draw up their constitutions and rules freely by leaving the issue of disciplining of members to the rules of the organization, if the organization and its members so wish. The Committee requests the Government to take appropriate steps to amend the legislation accordingly.

Articles 3 and 10 of the Convention (Organizing administration and activities to further and defend the interests of workers). The Committee notes that protected industrial action may be taken only during a bargaining period in negotiations for a certified agreement; thus, the subject-matter of industrial action is limited in scope to those matters that may be covered by a certified agreement, namely, matters pertaining to the relationship between an employer and employees in a single business or part thereof (section 170LI). In this respect, the Committee notes that according to the ACTU, there are many matters which the Australian courts have found to be outside the scope of the relationship between employers and employees, including a claim for the deduction of union dues. The Committee requests the Government to forward any court or Commission decisions on the scope of "protected action" and on matters that are or are not permitted to be covered by certified agreements. In addition, while noting the Government's description of section 166A, the Committee requests the Government for clarification as to the relationship between section 166A, which provides tort immunities in certain circumstances, and the other provisions providing protection for industrial action (sections 170ML, 170MT and 170MU).

Trade Practices Act, 1974

Secondary boycotts. The Committee notes that a number of provisions of this Act have been amended by Schedule 18 of the Workplace Relations and Other Legislation Amendment Act, 1997. The ACTU raises concerns with respect to, inter alia, the application of section 45E of the Act. The Committee requests the Government to provide information in its next report on the practical application of this provision.

State jurisdiction

New South Wales

The Committee notes the concerns raised by the National Union of Workers (New South Wales Branch) (NUW) regarding the absence of a right to strike under the Industrial Relations Act, 1996. The NUW states that the Act provides no right to strike under any circumstances. The Committee also notes the Government's response that strikes are not prohibited under the Act. The Committee requests the Government to provide further information regarding the liability of striking workers and their organizations, including whether they are subject to common law liabilities. The Committee notes that the registration of an organization may be cancelled where it or its members have engaged in any industrial action having a major and substantially adverse effect on the provision of any public service (section 226(c)). In this regard, the Committee recalls that the prohibition on the right to strike 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 158-159). The Committee would, therefore, request the Government to ensure that section 226(c) is limited accordingly. Concerning the statement of the NUW regarding the treatment of striking workers by police, the Committee notes the establishment of a Protocol for Pickets, and requests the Government to keep the Committee informed of its application in practice.

Queensland

The Committee notes that pursuant to the Industrial Organizations Act, 1997 (section 243) and the Workplace Relations Act, 1997 (section 246), an employee organization must not penalize a member for not taking part in industrial action. The provision in the Industrial Organization Act, 1997, adopts the wording of section 298R of the Federal Workplace Relations Act, 1996; the Committee, therefore, refers to its comments above in relation to the Federal Act. The Committee notes further that the Industrial Organizations Act, 1997, contains provisions concerning political funds (sections 224 to 231), and deeming members to have resigned if they have not paid their membership subscriptions for one year (section 89). The Committee considers such provisions to constitute undue interference in the internal affairs of organizations, which is not in keeping with Article 3 of the Convention, and suggests that such matters be left to the rules of the organizations.

Western Australia

Article 2 of the Convention (i) Registration requirements. The Committee notes the Government's statement that although generally a workers' organization must not have less than 200 members to be entitled to register under the Industrial Relations Act, 1979, as amended, an organization with fewer members can register if it can show that there is good reason for its registration (section 53). The Committee notes that registration confers a number of significant traditional advantages on an organization. The Committee requests the Government to provide information on the application in practice of section 53, in particular what is considered to be a "good reason" for registering, and how many applications for organizations with less than 200 members have been made, and how many granted and denied.

(ii) Exclusive representation. The Committee notes that the Industrial Relations Act provides that an order may be made giving an organization exclusive rights to represent the industrial interests of a particular class or group of employees in an enterprise (section 72A). In this context, the Committee recalls that it accepts that the recognition of the most representative trade union is not a violation of the right of workers to establish and join organizations of their own choosing, provided certain conditions are met, including that the determination of the most representative organizations is based on objective, pre-established and precise criteria (see General Survey, op. cit., paragraph 97). The Committee, therefore, requests the Government to provide information on the criteria, in law and in practice, used to make a determination under section 72A.

(iii) Substitution of parties to agreements. The Committee notes that pursuant to Part IIIA of the Industrial Relations Act, one organization may be substituted for another as a party to an award or industrial agreement under sections 84E and 84F, without the desires of the relevant workers being taken into consideration, and without the nominated organization being able to refuse to represent those workers (section 84G). The Committee further notes that notice of an order cancelling the rights of a state organization need only be given to the relevant employers and not to the workers involved (section 84J). The Committee recalls that workers and employers should have the right to establish and join organizations of their own choosing pursuant to the Convention. While accepting the recognition of the most representative unions for the granting of certain preferential rights, as noted above, the Committee notes that the provisions referred to do not address the representative nature of the organization. The Committee is of the view that as it is likely that many workers will not wish to remain members of an organization that is not entitled to represent their industrial interests, the provisions of Part IIIA could deny them in practice the right to establish and join organizations of their own choosing.

Article 3 of the Convention. Interference in internal affairs. The Committee notes that a number of the amendments touch upon the internal affairs of organizations. First, Part VIC of the Act, which was added by the Industrial Relations Legislation Amendment and Repeal Act, 1995, and more recently amended, establishes procedures and limitations for maintaining a political fund and making political expenditures. Violation of the provisions is an offence, giving rise to a penalty of A$5,000 (section 97S). Secondly, the Act requires a person's membership in an organization to end if that person has not paid his or her membership subscription for three months (section 64B). Thirdly, the Committee notes that the definition of "finance official" had been expanded to include an employee of an organization who is entitled to participate in the financial management of the organization in a representative or advisory capacity (section 74), thus potentially subjecting a wide range of people to the financial obligations of an organization. The penalties for breach of financial duty have also recently been amended to add disqualification from holding office in any organization for up to three years (section 80). The financial official is also subject to a penalty for any direct or indirect involvement in the violation of provisions concerning political expenditures (section 97S). The Committee is of the view that the above-noted provisions constitute excessive interference in the internal affairs of organizations, contrary to Article 3, and suggests that such matters be left to the rules of the organizations.

Articles 3 and 10 of the Convention (Restrictions on strikes). The Committee notes the extensive amendments to the Industrial Relations Act, 1979, regarding the right of unions to organize their activities to further and defend the interests of workers, resulting from the adoption of the Labour Relations Legislation Amendment Act, 1997. The Committee notes in particular the following provisions which in its view unduly limit the exercise of legitimate strike action:

-- The ability of a strike to be brought to an end through "resume work orders" in a broad range of situations, and the limitation of the objectives of the strike to wages and conditions of employment of the employees participating in the strike. Also, a potentially wide range of people are permitted to bring an application and there are more avenues created to challenge a denial of a resume work order than a granting of such an order (sections 32 and 44).

-- The prohibition of secondary action through the restrictive definition of the objectives of the strike (sections 32 and 44).

-- Essential services -- Again with reference to sections 32 and 44, a strike can be brought to an end in an essential service, which is not defined in the Act, or where it indirectly threatens the welfare of the employees participating or if it may cause "undue hardship" to any of the parties to the dispute. The Committee requests information on how these terms have been interpreted and applied, recalling that a strike may only be prohibited in undertakings performing an "essential service" as strictly defined, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee also recalls that where the right to strike is subject to restrictions or prohibitions, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example, conciliation and mediation procedures, leading if necessary to arbitration machinery seen to be reliable by the parties concerned (see General Survey, op. cit., paragraph 164). The Committee, therefore, requests the Government to inform it of the compensatory guarantees existing where the right to strike has been withdrawn pursuant to the Act.

-- Pursuant to section 97B, common law rights and liabilities are not affected by the Act. Since most, if not all, industrial action is prima facie unlawful at common law, due to this provision, trade unions appear to have been essentially denied the right to strike in order to protect and promote the economic and social interests of workers. There do not appear to be any provisions in the Act to protect workers from prejudice because of their participation in legitimate trade union activities, including strikes, nor to protect them from criminal liabilities.

-- Pre-strike ballots -- The Committee notes that the recently added Part VIB of the Act institutes a mandatory system of pre-strike ballots, consisting of numerous stages. In the view of the Committee, the complex and lengthy procedures mandated in the Act make it extremely difficult, and in many cases impossible from a practical point of view, to declare a legal strike, or to declare a strike in a timely manner. The Committee notes that harsh penalties can be imposed on an organization of employees or an officer or employee of the organization for inciting, encouraging or assisting a member of an organization to participate in a strike where there has not been a pre-strike ballot, including cancellation or suspension of the organization's registration (sections 73(3), 97C, 97K). In addition, with respect to the threshold that must be met for a pre-strike ballot to be declared successful (a majority of those entitled to vote) (section 97C), the Committee recalls that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. Furthermore, section 97E provides that a pre-strike ballot may be forced by an employer on a test of his or her belief that a strike is likely to occur. A ballot may also be forced by someone who believes he or she is likely to be affected by the strike. This provision, as well as section 97F which gives the Minister and the Commission broad powers to force a ballot, in the view of the Committee, restrict legitimate strike action.

The Committee requests the Government to review the Industrial Relations Act, 1979, in the light of the above comments, and take measures to bring it into fuller conformity with the requirements of the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information provided in the Government's report, in particular the adoption of the Federal Workplace Relations Act, 1996, which according to the Government, substantially amended the Industrial Relations Act, 1988, and the recent adoption of legislation in certain States: the Labour Relations Legislation Amendment Act, 1997, of Western Australia, amending the Industrial Relations Act, 1979; the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland; and the Industrial Relations Act, 1996, of New South Wales. The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) and the National Union of Workers (New South Wales Branch), and the Government replies to these comments.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee observes firstly that this major restructuring of the law governing labour relations is enshrined in a long and complicated statute. The Committee again expresses the hope that the Government will make available simplified summaries of the legislation to workers and employers.

Articles 3 and 10 of the Convention

Organizing administration and activities to further and defend the interests of workers. On the issue of strikes, the Government states that the Act prohibits strike action only in the following circumstances: (i) in relation to the period during which a collective agreement under the Act is in operation (section 170MN); (ii) in support of a claim for strike pay (section 187AB); and (iii) with respect to industrial action with the intent of coercing employers and eligible persons to take certain action for various reasons relating primarily to membership or non-membership of industrial associations (sections 298P and 298S). The Government states further that the Act provides for certain industrial action to be protected from civil liability and provides access to various legal remedies in respect of "unprotected" industrial action if affected parties wish to seek them. The Committee is of the view that given that where a strike is "unprotected" under the Act, it can give rise to an injunction, civil liabilities and dismissal of the striking workers (sections 127, 170ML, 170MT, 170MU), even if these consequences are not automatic, for all practical purposes, the legitimate exercise of strike action can be made the subject of sanctions. The Committee will now turn to consider whether such limitations on strike action conform with the requirements of the Convention.

(i) Restrictions on the subject-matter of strikes

The Committee notes that protected industrial action may be taken only during a bargaining period in negotiations for a certified agreement; thus, the subject- matter of industrial action is limited in scope to those matters that may be covered by a certified agreement, namely, matters pertaining to the relationship between an employer and employees in a single business or part thereof (section 170LI). The Committee notes that by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests. The Committee notes further that the Act prohibits industrial action with the aim of coercing an employer to make payments in relation to periods of industrial action (sections 166A and 187AB), and that industrial action can lose protected status if it involves a demarcation dispute (sections 166A and 170MW), which also, in the view of the Committee, excessively limit the subject- matter of a strike.

(ii) Prohibition of sympathy action

The Committee notes that the bargaining period, during which protected industrial action can take place, can be terminated or suspended for a number of reasons (section 170MW). Once the bargaining period is terminated or suspended, the industrial action is no longer "protected". The Committee notes that sympathy action is effectively prohibited under this provision (section 170MW(4) and (6)). Industrial action also remains unprotected if it involves secondary boycotts (section 170MM). The Committee recalls in this regard that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful (see General Survey on freedom of association and collective bargaining, 1994, paragraph 168).

(iii) Restrictions beyond essential services

The Committee notes that the bargaining period can be terminated or suspended, thereby divesting industrial action of its protected status, not only where the industrial action is threatening to endanger the life, the personal safety or health, or the welfare of the population or part of it, but also where it is threatening to cause significant damage to the Australian economy or an important part of it (section 170MW(3)). The Committee notes further that registration of an organization may be cancelled where it or its members engage in industrial action interfering with trade or commerce or the provision of any public service (section 294), the practical effect of which would be to prohibit strikes in such circumstances. The Committee recalls that prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services accepted by the Committee, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159), as does the reference in the context of cancellation to industrial action affecting trade, commerce or the provision of a public service. Regarding the provision of public services, the Committee recalls that the prohibition on the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158).

The Committee hopes that the Government will indicate in its next report measures taken or envisaged to amend the provisions of the Workplace Relations Act referred to above, to bring the legislation into conformity with the requirements of the Convention.

Trade Practices Act, 1974

Secondary boycotts. The Committee notes that it has raised questions and concerns regarding certain provisions of this Act for a number of years, and that these provisions have been amended by Schedule 18 of the Workplace Relations and Other Legislation Amendment Act, 1997. On the practical application of sections 45D and 45DB, the Government states that since the new provisions came into effect in January 1997, 11 applications have been made, four of which were discontinued, two dismissed at preliminary stages, and the others have not been completed. The Federal Court has not granted any final injunctions or made any orders in relation to penalties or damages. The Government states that the Act prohibits certain forms of boycott conduct; however, an exemption is made where the dominant purpose is related to the pay, conditions of employment, hours of work or working conditions of the employees taking the action or of other employees of the same employer (section 45DD).

The Committee notes that section 45D, as amended (section 45D, 45DA, 45DB), continues to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters. Breach of this provision may be sanctioned by one or more of the following: (i) a pecuniary penalty -- for a violation of sections 45D or 45DB, up to a maximum of A$750,000 for a trade union and A$500,000 for a person; for a violation of 45DA, up to a maximum of A$10,000,000 for a trade union and A$500,000 for a person (section 76); (ii) injunctions (section 80); and (iii) damages, with no upper limit as to quantum (section 82). The Committee notes with regret that the recent amendments to the Act maintain the boycott prohibitions and render unlawful a wide range of sympathy action. The Committee again recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. With respect to the elevated penalties that may be imposed under the Act, the Committee recalls that (a) sanctions should only be imposed where there are violations of strike prohibitions or restrictions that are in conformity with the principles of freedom of association; and (b) sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177-178). The Committee expresses the firm hope that the Government will amend the legislation accordingly, and will continue to provide information as to the practical application of the boycott provisions of the Act.

Crimes Act, 1914

Restrictions on strikes and boycotts beyond essential services. The Committee recalls its previous comments, requesting the Government to keep it informed of any progress made in repealing the provisions of the Act banning strikes in services where the Governor-General has proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the States" (section 30J), and 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 (section 30K). The Government states that it is considering the Committee's request, but that no further measures have been taken in respect to these provisions at this stage. It also states that no action has been taken under the relevant provisions for 40 years. The Committee takes due note of this information, and requests the Government to repeal these provisions to bring the legislation into conformity with the Convention and the national practice.

The Committee is also addressing certain matters directly to the Government concerning the Workplace Relations Act, 1996, and the Trade Practices Act, 1974.

State jurisdiction

The Committee notes that pursuant to the Northern Territory (Self Government) Act, 1978 and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria. With respect to the State of Queensland, the Committee notes that a number of provisions of the Queensland Workplace Relations Act, 1997, are closely based on those found in the Federal Workplace Relations Act, 1996. The Committee refers, in particular, to the provisions found in the Queensland Act in Chapter 2, Part 1, concerning certified agreements and protected industrial action, Chapter 6 on industrial disputes, and Chapter 7, Part 2, concerning the Industrial Relations Commission. The Committee notes further the similarities between section 187 of the Queensland Industrial Organizations Act, 1997, and section 294 of the Federal Workplace Relations Act, 1996. Concerning South Australia, the Committee notes that pursuant to section 222 of the Industrial Employee Relations Act, 1994, the secondary boycott provisions of the Federal Workplace Relations Act, 1996, are applied as laws of the State. The Committee requests the Government to take measures to have the state legislation referred to above examined and amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

The Committee is addressing a request directly to the Government concerning a number of aspects of the Industrial Relations Act of Western Australia, as recently amended, in particular concerning the right of workers to establish and join organizations of their own choosing, interference in the internal affairs of organizations, and limitations on legitimate strike activities. Requests have also been addressed to the Government concerning the Industrial Relations Act, 1996, of New South Wales, and the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report.

1. (a) Federal legislation. Section 45(D) of the Trade Practices Act. In its previous comments, the Committee had noted that the Industrial Relations Reform Act of 1993 (hereinafter the "Reform Act") had amended the Trade Practices Act to confine the operation of section 45(D) to non-industrial secondary boycotts which had the purpose and effect of causing a lessening of competition in a market. The Committee had further noted that the Reform Act, while not prohibiting secondary boycotts, limited them in certain situations. The Committee now notes from the Government's report that the Workplace Relations and other Legislation Amendment Bill, 1996, which is currently before the Federal Parliament, contains extensive amendments of the current secondary boycott provisions. The Committee takes note of this information. It requests the Government to provide a copy of the Workplace Relations and other Legislation Amendment Bill, 1996 as soon as it has been adopted, and to supply, in its next report, information on the practical application of the new secondary boycott provisions, including any eventual court decision handed down in this regard.

(b) State legislation. New South Wales (NSW) Industrial Relations Act, 1991 and sections 4, 17 and 18 of the NSW Essential Services Act, 1988. In its previous comments, the Committee had requested the Government to indicate any new developments with respect to the ban on secondary boycotts and the definition of essential services in New South Wales. The Government states in its report that, as regards the secondary boycott provisions contained in the Industrial Relations Act, 1991 (NSW), which were based on sections 45(D) and 45(E) of the Federal Trade Practices Act, 1974, the Industrial Relations Act, 1991, (NSW) has now been repealed. The said provisions do not form part of the replacing Industrial Relations Act, 1996 (NSW). The Committee takes note of this information.

2. Essential services legislation.

(a) Federal legislation. In its previous comments, the Committee had requested the Government to keep it informed of any progress made in repealing sections 30(J) and 30(K) of the Crimes Act, 1914. The Committee had, in effect, noted that section 30(J) banned strikes in services where the Governor-General had proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states", and that section 30(K) prohibited 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 Government states that as it took office following the federal election on 30 March 1996, it has yet to determine its attitude to the possible repeal of these provisions. The Committee would draw the Government's attention to the fact that the previous Government had indicated that section 30(J) had not been invoked since 1951 and that there had been no prosecutions under section 30(K) for many years. Consequently, the Committee would request the Government to give serious consideration to the repeal of both these provisions so as to bring its legislation into conformity with the Convention and national practice.

(b) State legislation. The Committee had further requested the Government to indicate the number and types of occasions where the restrictions on strikes provided for under the Conspiracy and Protection of Property Act, 1878 (hereinafter the Conspiracy Act), and the Criminal Law Consolidation Act, 1935-75 (hereinafter the Consolidation Act), had been used in the States of South Australia and Tasmania respectively.

The Government states in its report that no restrictions on strikes provided for under the Conspiracy Act or the Consolidation Act have been used during the reporting period. The Government then explains that the Conspiracy Act, 1878, came into operation on 30 November 1879 and reflected provisions of the British Conspiracy and Protection of Property Act, 1875, which were adopted at that time by all Australian states and territories. The Conspiracy Act was subsequently repealed in 1935 and the relevant provisions consolidated into the Consolidation Act in sections 260-266. These provisions proscribed certain trade union activity which could lead to breach of the peace including violence, intimidation, picketing etc., and were considered at that time to be a significant step toward the freedom afforded to trade union activity. The Consolidation Act was subsequently amended by Bill No. 35 of 1992 which removed sections 260-266 and substituted a new section 258 which came into operation on 6 July 1992. The new section 258 provides that an act in contemplation or furtherance of an industrial dispute as defined under the State's industrial laws is not punishable under the Consolidation Act unless it is an indictable offence. The Committee takes note of this information with satisfaction.

Referring to the Committee's previous comments, the Government indicates in its report that section 26 of the South Australian Criminal Law Consolidation Act 1935-75, and the Tasmanian Conspiracy and Protection of Property Act, 1889, have been repealed by Act No. 59 of 1994, and the Statute Law Revision Act, 1991, respectively. The Committee takes note of this information with satisfaction.

The Government of the State of Victoria indicates that there is no outright ban on strikes in essential services or vital industries in Victoria. The Essential Services Act, 1958, the Vital State Industries (Works and Services) Act, 1992, and the Public Safety Preservations Act, 1958, as their names imply, cover situations that relate to vital industries and essential services. But all these Acts provide safeguards to the exercise of power by requiring the Governor-in-Council to invoke the powers of these Acts when it appears to him/her that a state of emergency has arisen. The first two Acts in particular limit the life span of any declaration or proclamation made under these Acts, and authorize Parliament to repeal such declaration or proclamation. Moreover, none of the above-mentioned essential services legislation was invoked during the reporting period. The Committee takes note of this information.

Finally, the Committee takes note of an Australian High Court decision handed down on 4 September 1996. The Committee notes that the decision follows proceedings brought against the Commonwealth Government of Australia by the States of Victoria, South Australia and Western Australia seeking declarations that certain provisions of the Industrial Relations Act, 1988, were invalid. The provisions of the Act which were challenged were, amongst others, those that provide for collective bargaining and the right to strike. The Committee notes with interest that the decision largely upheld these provisions, on the basis that the Commonwealth Government had the power to legislate on these matters under section 51 of the Australian Constitution concerning the "external affairs" power of the Commonwealth Government.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee takes note of the Government's reply to its previous direct request.

1. Civil liability in respect of industrial action. The Committee takes note of a communication dated 17 March 1993 from the International Federation of Air Line Pilots Associations (IFALPA) concerning Case No. 1511 which was examined by the Committee on Freedom of Association in its 277th Report, paragraphs 151-246. IFALPA indicates that the problems arising from common law liability for industrial action which were raised in Case No. 1511 continue and provides another example of a case where, in 1992, court action was undertaken against the president of a union for organizing industrial action. The court action was withdrawn only after intense pressure was exerted from the union and the Government.

The Committee recalls that it has been commenting upon the question of civil liability in respect of industrial action for a number of years now. In its previous comment, the Committee noted that there was as yet no agreement in the tripartite consultations concerning the adoption of a revised set of compliance mechanisms within the Federal Act and requested the Government to keep it informed of the progress made in protecting unions and their members from common law actions based on their exercise of the right to strike. The Committee notes with interest from the Government's latest report that the Industrial Relations Reform Act of 1993 (hereinafter, the "Reform Act") contains a number of measures to protect unions in this regard. The object of Division 4 of this Act (immunity from civil liability) "is to give effect, in particular situations, to Australia's international obligation to provide for a right to strike". It provides that, except for certain types of wilful or reckless conduct involving personal injury or destruction of, or damage to, property, no action lies under any law of a State or Territory in respect of industrial action that is "protected action" (i.e., that which takes place in relation to an industrial dispute during the bargaining period).

2. (a) Section 45D of the Trade Practices Act. In its latest report, the Government indicates that the Reform Act amends the Trade Practices Act to confine the operation of section 45D to non-industrial secondary boycotts which have the purpose and effect of causing a lessening of competition in a market. According to the Government, new section 162 of the Act prohibits secondary boycotts, but does not apply to cases where the boycott action is in support of claims that directly affect the person taking the action or where sympathy action is taking place in a corporation which is legally related to the corporation in which a strike is occurring. Peaceful picketing is also exempt from the prohibition. Furthermore, section 163F provides that criminal proceedings do not lie against a person merely for engaging in boycott conduct. Section 163G however empowers the Industrial Relations Court to grant injunctions in respect of boycott conduct and section 163H provides that a person who suffers loss or damage by boycott conduct may recover the amount of the loss or damage by action in court. Noting from this information that the situations wherein secondary boycotts are not prohibited are still limited, the Committee recalls the principle according to which workers should be able to take sympathy action provided the initial strike they are supporting is itself lawful (see 1994 General Survey on Freedom of Association and Collective Bargaining, paragraph 168) and requests the Government to indicate any further measures taken to bring the legislation into full conformity with this principle.

(b) New South Wales (NSW) Industrial Relations Act 1991 and sections 4, 17 and 18 of the NSW Essential Services Act 1988. In its previous comments, the Committee noted that the NSW Industrial Relations Act incorporated the provisions of sections 45D and 45E of the Federal Trade Practices Act without the requirement of the Federal Act that the target be a corporation. The Committee requested the Government to draw to the state Government's attention the comments it has made in previous direct requests on provisions banning sympathy strikes. In its latest report, the NSW Government indicates that numerous provisions of the Reform Act of 1993, including those provisions related to secondary boycotts, immunity from civil action and consequential restrictions, are currently the subject of a High Court challenge by a number of States. The state Government indicates that these matters and their ultimate determination impact directly upon the comments raised by the Committee and that it will therefore give consideration to these comments once the High Court decision has been taken. The Government is requested to indicate in its next report any developments with respect to secondary boycotts and the definition of essential services in New South Wales.

3. Essential services legislation. (a) Federal legislation. The Committee notes from the Government's report that section 30J of the Crimes Act of 1914 which bans strikes in services where the Governor-General has proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the states" has not been invoked since 1951 and can be considered moribund and that for many years there have been no prosecutions under section 30K which prohibits boycotts resulting in 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 with interest the Government's indication that it is currently giving consideration to repealing both these sections of the Crimes Act and requests it to keep it informed of the progress made in this regard.

(b) State legislation. The Committee requested the Government to bring to the attention of the state Governments of the Northern Territory, Victoria, Queensland, Tasmania, and South Australia the principles of the ILO concerning essential services and the use of minimum services in the event that the extent and duration of a strike might result in an acute national crisis and requested the Government to supply information on the practical application of the state provisions in question. The Northern Territory, Queensland and Victoria all indicated generally that the definition of an essential service must be looked at in the context of a modern economy. In particular, the Northern Territory and Queensland referred to the specific needs due to both the size of their states and the remote regional locations encountered within the state. Queensland indicated that the emergency powers contained in section 22 of the State Transport Act have been utilized only on rare occasions in relation to strikes, while Victoria indicated that there are several safeguards to the exercise of power granted in the 1992 Vital State Industries and Essential Services Acts as the regulations made by the Governor-in-Council have a limited life span and Parliament may repeal them. In this regard, the Committee draws the Government's attention to paragraph 160 of its 1994 General Survey in which it has provided that account must be taken of the special circumstances existing in the various member States, since the interruption of certain services which in some countries might at worst cause economic hardship could prove disastrous in other countries and rapidly lead to conditions which might endanger the life, personal safety or health of the population. Furthermore, a non-essential service in the strict sense of the term may become essential if the strike affecting it exceeds a certain duration or extent so that the life, personal safety or health of the population are endangered. In such cases, the Committee once again recalls that the authorities may wish to establish a system of a negotiated minimum service rather than impose an outright ban on strikes and requests the Government to continue to supply information on the application in practice of the relevant state provisions. Furthermore, as no information was provided concerning the States of Tasmania and South Australia, the Government is requested to indicate in its next report the number and types of occasions where the restrictions on strikes provided in the Conspiracy and Protection of Property Act 1989 and the Criminal Law Consolidation Act 1935-75 respectively have been used.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

With reference to its previous comments, the Committee notes with satisfaction that section 75 of the Industrial Relations Reform Act (hereinafter, the "Reform Act") of 1993 amends section 189 of the Industrial Relations Act of 1988 bringing the previous requirement of 10,000 minimum membership in employees' and employers' associations for registration in the federal industrial relations system down to 100 members. Furthermore, section 76 of the Reform Act repeals section 193 and 193A of the IRA which previously required a Presidential member of the Australian Industrial Relations Commission to review the continued registration of organizations having fewer than 1,000 (stage 1 review) and 10,000 employees (stage 2 review).

Furthermore, the Committee notes with satisfaction that a number of provisions of the Reform Act respond to concerns raised by the Committee in previous comments with respect to the right to strike. In particular, the Reform Act repeals the ban on officers from engaging in strikes which interfered with public services or utilities (section 53) and provides greater protection of workers against dismissal for engaging in or proposing to engage in industrial action (section 80).

The Committee is raising a number of other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

1. The Committee takes note of the Government's reply to its previous direct requests which encloses comments from the Confederation of Australian Industry (CAI) and the Australian Council of Trade Unions (ACTU), as well as comments from various state governments. The Committee also takes note of the conclusions of the Committee on Freedom of Association in Case No. 1559 (284th Report, paragraphs 200 to 263, approved by the Governing Body in November 1992).

2. Sections 118 and 118A of the Federal Industrial Relations Act, 1988. The Committee notes the information given by the Government on the withdrawal of the High Court challenge to the constitutional validity of the original section 118 and on the situation in practice. In the light of these explanations, the Committee is now satisfied that the role of the Industrial Relations Commission (IRC) in making orders to resolve membership claims by competing unions does not violate Article 2 of the Convention.

3. Civil liability in respect of industrial action. Regarding the lack of protection of trade unions and their members against common law liability for industrial action and the tripartite consultations under way in an attempt to secure agreement to the adoption of a revised set of compliance mechanisms within the Federal Act itself, the Committee notes the Government's statement that so far no agreement has been reached. The Committee asks it to continue supplying information in future reports as to progress in protecting unions and their members from common law actions based on their exercise of the right to strike, particularly in view of the ACTU's statement that employer use of such actions has increased markedly in recent years.

4. (a) Section 45D of the Trade Practices Act. Noting that the ACTU agrees with its conclusion that this restriction on boycotts and sympathy action ought to be lifted to enable such action where the initial strike being supported is itself a legitimate exercise of the right to strike, and that the CAI supports its retention since the conciliation and arbitration systems offer settlement procedures to the exclusion of strikes, the Committee observes that this issue has been included in the tripartite discussions referred to above. It accordingly requests the Government to indicate in its next report any developments in this regard.

(b) New South Wales Industrial Relations Act 1991. The Committee notes that the ACTU raises incompatibilities between the Convention and this new legislation, which was passed on 30 October 1991 and entered into force on 31 March 1992, since it incorporates into NSW law (as sections 256-258) the provisions of sections 45D and 45E of the Federal Trade Practices Act without the requirement of the Federal Act that the target be a corporation. The offences of engaging in such unlawful industrial action are punishable (sections 215 and 216) by fines of up to A$100,000 in the case of a trade union and A$10,000 in the case of an individual. In addition, the ACTU considers that the new Act failed to address the problem of common law liability. The Committee asks the Government to draw to the state Government's attention the comments it has made in previous direct requests on the federal provisions banning sympathy action and to indicate in its next report any developments in this regard.

5. Essential services legislation. (a) With reference to Articles 2 and 3 of the Convention, the Committee had called for measures to be taken so that sections 4, 17 and 18 of the New South Wales Essential Services Act 1988 be brought into conformity with the ILO concept of essential services and with the principle of non-interference in the internal affairs of unions. The Committee notes that, on the one hand, the ACTU considers that the Act's list of services where strikes may be banned includes services that go beyond the definition established by the ILO supervisory bodies and that, on the other hand, the Government of New South Wales and the CAI argue that the concept of essential services should be looked at in the context of a modern economy, taking into account the geographical circumstances of New South Wales; that the supply of energy for the refrigeration of food in remote areas should be considered as falling within the ILO definition of essential services; that the Governor's power in section 4(2) to declare any service to be essential is necessary to permit an urgent response to unforeseen emergencies; and that the principles of judicial review temper this power. The state Government maintains, inter alia, that the sanctions for breach of a proclamation of an essential service available under sections 17 (suspension/cancellation of registration) and 18 (amendment of union rules) are linked to the arbitration proceedings before the Industrial Relations Commission and stresses that registration under the State's Industrial Arbitration Act is in any case a voluntary choice in which workers' organizations agree to submit disputes to the Commission; appeal is available against both sorts of measures. Lastly, it indicates that states of emergency have only been declared four times since the Act was passed, in only one of which were the provisions actually implemented to require action from the parties and they were immediately complied with. The Committee, after due consideration of all the arguments, must refer to its definition of essential services (General Survey, 1983, para. 214), namely that strike action may be limited or prohibited in essential services in the strict sense of the term where an interruption would endanger the life, personal safety or health of the whole or part of the population. It is of the opinion that certain of the services listed in section 4(1), namely, in particular the public transportation of persons or freight, the production, supply or distribution of pharmaceutical products, the conduct of a welfare institution, and the power to add any service to this list in section 4(2) do not concord with this definition and should therefore be deleted from the Act. On the other hand, in so far as the sanctions outlined in sections 17 and 18 have been explained by the Government, the Committee does not consider that measures need to be taken in their regard.

(b) The Committee notes that various other states have legislation similar to that analysed above, in particular the following provisions: Northern Territory Essential Goods and Services Act 1981 (sections 2, 7 and 18(2) can restrict strikes if there is a declared shortage of goods, which are defined to include fuel, bread, eggs and milk and the administrative authority can add to this definition); Victoria Public Safety Preservation Act, 1958 (section 5 can restrict strikes affecting the supply and distribution of food, fuel and transport) and the Employee Relations Act, 1992 (section 36(1)(e) read together with the Essential Services Act, 1958 or the Vital State Industries (Works and Services) Act, 1992); Queensland State Transport Acts 1938-81 (section 22 can restrict strikes affecting the supply and distribution of food, fuel and transport); Tasmania Conspiracy and Protection of Property Act 1889 (sections 3 and 4 can restrict strikes affecting gas supply and valuable property); South Australia Criminal Law Consolidation Act 1935-75 (section 261 can restrict strikes affecting gas supply and railway transport). The Committee accordingly asks the Government to bring to the attention of the state governments involved the principles of the ILO concerning essential services and also the criteria that it would be legitimate for a minimum service to be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. It asks the Government to supply information on the practical application of these provisions.

(c) It also notes that certain other federal legislation contains broad powers to stop industrial action in circumstances which do not appear to concord with the criteria set out by the ILO supervisory bodies: Public Service Act, 1922 in section 66 bans officers from engaging in strikes which interfere with public services or utilities and the Crimes Act, 1914 bans strikes in services where the Governor-General has proclaimed the existence of a serious industrial dispute "prejudicing or threatening trade or commerce with other countries or among the States". The Committee thus asks the federal Government to supply in its next report information on the practical application of these provisions during the period covered by the report.

6. Sections 189 and 193 of the Federal Industrial Relations Act. The Committee notes that the CAI's comments support the International Organization of Employers' contention that the 10,000 minimum membership requirement for registration in the federal industrial relations system is contrary to Article 2 of the Convention and that the review of current registrations of organizations having lesser members (using a "special circumstances" test) does not save the provisions, and that the ACTU does not see the new provisions as inconsistent with the Convention. Noting the conclusions of the Committee on Freedom of Association in Case No. 1559, the Committee considers that this requirement could influence unduly the workers' free choice of union to which they wish to belong, even when federal registration is only one of the alternatives available for protecting their rights and asks the Government to take measures so that it is not a requirement that a union has 10,000 members or demonstrates special circumstances to claim access to the benefits deriving from registration under the federal system.

Direct Request (CEACR) - adopted 1991, published 78th ILC session (1991)

1. The Committee notes the Government's report, and the decision of the Committee on Freedom of Association in Case No. 1511 (277th Report, approved by the Governing Body at its 249th Session (February-March 1991), paragraphs 151-246). It also notes the comments of the International Organisation of Employers in its communication of 26 November 1990.

2. Section 118 of the Industrial Relations Act. In its 1989 direct request the Committee noted that section 118 of the Industrial Relations Act 1988 (IR Act) enabled the Australian Industrial Relations Commission (AIRC), in the context of a "demarcation dispute", to direct that a specified union should no longer have the right to represent the industrial interests of its members for the purposes of the IR Act. The Committee considered that this provision might have the effect of denying workers the right to establish and join organisations of their own choosing as guaranteed by Article 2 of the Convention. It asked the Government for its comments on this issue, and also to supply information as to the number and effect of orders under section 118.

In its report the Government states that the Industrial Relations Legislation Amendment Act, 1990 repealed the original section 118 with effect from 1 February 1991, and replaced it with a revised section 118 and an entirely new section 118A. Subsection (1) of this latter provision allows for the making of the same orders as the original section 118(3), but without the requirement that there be a "demarcation dispute". The Government also indicates that the constitutionality of the original section 118 is presently subject to a High Court challenge, although it is not entirely clear whether this matter will proceed in the light of recent legislative changes.

The Committee notes the information provided by the Government. It asks it in its next report to provide an up-date of the information relating to the number and effect of orders under section 118A. It also asks the Government to advise it as to the outcome of the High Court challenge to the constitutionality of the original section 118.

3. Civil liability in respect of industrial action. In its 1989 direct request the Committee noted that trade unions and their members and officials do not appear to have any protection against common law liability in respect of industrial action. This seemed to have the consequence that workers and unions who engaged in industrial action were liable to be sued for damages by employers or other parties who suffered loss as a result of their actions, and to be restrained from committing unlawful acts by means of injunctions. This appeared to the Committee to deny workers the right to take industrial action to protect and to promote their economic and social interests. The Committee had asked the Government to provide factual information as to the numbers and outcomes of common law actions against unions and their members and officials in recent years, and to indicate the manner in which it proposed to provide some measure of protection against these common law liabilities.

The Committee notes that in Case No. 1511, the Committee on Freedom of Association also expressed its concern at the scope of the common law liabilities which appear to attach to industrial action in Australia.

In its report the Government provides details of ten cases where employers had recourse to the common law between 1988 and 1990. Injunctions were issued in at least six of these cases, and were refused in two. Damages of $A6.48 million were awarded in one case (which formed part of the basis of the complaint in Case No. 1511), and have been awarded but not not assessed in another.

The Government states that it considers that it is undesirable that industrial disputes should become the subject of proceedings in the ordinary courts of law, and that the appropriate fora for dealing with such matters are the specialist industrial tribunals established for that purpose. This explains why, when it introduced the Industrial Relations Bill in 1987, the Government had attempted to place some restrictions on access to common law injunctions in certain circumstances. These proposals were strenuously opposed by major employer groups and by the Parliamentary Opposition. This led the Government to conclude that it would not be practicable to proceed with these proposals at that time. Accordingly, when the Bill was reintroduced in 1988 these provisions were omitted. The Government indicates, however, that it remains of the view that industrial disputes should not be dealt with in the ordinary courts of law, and that consultation had recently commenced in the tripartite National Labour Consultative Council in an attempt to secure agreement to the adoption of a revised set of compliance mechanisms within the IR Act which were comprehensive, fair and balanced. In pursuing this objective, adherence to the principles of freedom of association would be a primary consideration.

The Committee trusts that these tripartite consultations will result in the adoption of enforcement mechanisms which respect the right of workers and their organisations to take strike action to protect and promote their economic and social interests (1983 General Survey, paragraph 200) - subject to those restrictions which have been considered by the Committee to be permissible (1983 General Survey, paragraphs 204-223). The present state of the law in Australia is not in conformity with these principles.

4. Section 45D of the Trade Practices Act. In its 1989 direct request the Committee noted that section 45D of the Trade Practices Act, 1974 rendered unlawful a wide range of boycott activity and most, if not all, sympathy action. The Committee considers that both of these forms of industrial action should be permissible in certain circumstances. For example, it should be possible to impose boycotts in relation to health and safety disputes on construction sites where there are several different employers or to disputes about the performance of work by employees of employer "A" rather than employer "B". As concerns sympathy strikes, the Committee recalls that more frequent recourse is being had to this form of action because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. It should, therefore, be permissible for workers to have recourse to sympathetic action where the initial strike in respect of which such action is taken is itself a legitimate exercise of the right to strike. These considerations led the Committee to ask the Government to provide information as to the practical application of section 45D and its associated provisions, and to indicate whether it had any plans to amend the 1974 Act so as to bring it into conformity with the requirements of the Convention.

In its report the Government indicates that there have been almost 200 actions under section 45D since it was introduced in 1977. In 34 proceedings between 1988 and 1990, injunctions were issued in 15 cases, and were refused in only four. The remaining 15 cases were either pending at the time of the Government's report, or had been resolved by agreement of the parties. Many of the cases where injunctions were issued were also subsequently resolved by agreement. In no case during this period were damages awarded against a union under this provision. No monetary penalty (which in theory could amount to $A250,000) has ever been imposed in respect of breach of section 45D.

The Government indicates that it attempted to repeal this provision in 1984, but that the legislation was defeated in the Senate (of which the Government did not have control). It also attempted to restrict access to injunctive relief in respect of section 45D as part of the enforcement provisions of the 1987 Industrial Relations Bill. For the reasons set out above, the Government decided that it would not be prudent to proceed with those proposals at that time. Since it has no reason to suppose that the opposition parties or the major employer groups have changed their position in relation to this matter, the Government states that it has not taken further legislative action to implement its policy in relation to section 45D. It does not, however, indicate whether it has included this issue in the consultations on compliance mechanisms to which it referred in relation to access to the common law.

The Committee remains of the view that section 45D and its associated provisions render unlawful certain forms of industrial action which ought to be permissible. Accordingly, it calls upon the Government again to take steps to bring this legislation into full conformity with the requirements of the Convention.

5. Essential Services Act 1988 (New South Wales). In its report the Government indicates that in 1988 the Parliament of New South Wales adopted new legislation dealing with essential services in that State. This legislation enables the Governor (acting on the advice of the Government) to take a wide range of measures to prevent the disruption of essential services as defined. These include the outlawing of industrial action.

The Committee has always considered that it is permissible to curtail the right to strike in relation to services whose interruption would endanger the life, personal safety or health of the whole of part of the population - so long as appropriate guarantees are afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. These should include access to adequate, impartial and speedy conciliation and arbitration procedures, in which the awards should in all cases be binding on both parties. Such awards, once rendered, should be rapidly and fully implemented (1983 General Survey, paragraph 214).

The definition in section 4(1) of the 1988 Act appears to go beyond this concept of "essential services". In particular, the Committee considers that "the production, supply or distribution of any form of energy, power or fuel or of energy, power or fuel resources", "the public transportation of persons or freight" and "a service comprising the supply of goods or services necessary for providing" any of the services enumerated in subsection (1) do not necessarily constitute services whose interruptions would endanger the life, personal safey or the health of the whole or part of the population. The Committee also notes that the power which is vested in the Governor by section 4(2) to declare "any service to be an essential service for the purposes of the Act" is not conditioned by reference to the life, personal safety or the health of the whole or part of the population. This leaves open the possibility that this power could be used in a manner which would not be compatible with the principles of the Convention.

The Committee notes that section 15 appears to provide for arbitration in relation to industrial disputes in essential services as required by the principles of freedom of association. However it also notes that section 17 of the Act provides for the cancellation of the registration of a trade union by order of the Governor on receipt of an appropriate certificate from the Minister, whilst section 18 provides for the amendment of union rules so as to terminate the membership of, and to exclude from membership, a particular group or description of members of a union.

The Committee considers that orders under sections 17 and 18 might be said to interfere with the right of workers to establish or join the organisation of their own choosing as guaranteed by Article 2 of the Convention, whilst orders under section 18 might constitute an interference with the right of organisations to draw up their constitutions and rules as guaranteed by Article 3.

The Committee invites the Government to draw these matters to the attention of the Government of New South Wales so that it may take the appropriate action to bring the provisions of the Essential Services Act into conformity with the principles of freedom of association. It also asks the Government to provide full details of essential services legislation which may be extant in other States, and within its own area of legislative competence.

6. Sections 189 and 193 of the Industrial Relations Act. By its communication of 26 November 1990 the International Organisation of Employers expresses certain concerns as to the compatibility of sections 189 and 193 of the IR Act with Article 2 of the Convention. This communication was sent to the Government for its observations on 4 December 1990. No such observations have yet been received. The Committee notes that these provisions are presently the subject of a complaint to the Committee on Freedom of Association. Accordingly, the Committee proposes to examine these provisions at its next meeting in the light of the Government's observations and the findings of the Committee on Freedom of Association.

[The Government is asked to report in detail for the period ending 30 June 1991.]

Direct Request (CEACR) - adopted 1989, published 76th ILC session (1989)

1. The Committee notes the Government's report on the application of the Convention. It also notes that on 8 November 1988 the Governor-General signified his assent to the Industrial Relations Act 1988 (IR Act) and the Industrial Relations (Consequential Provisions) Act, 1988 which repeals the Conciliation and Arbitration Act of 1904. It further notes that the Industrial Relations Act commenced operation on 1 March 1989.

2. Demarcation disputes

The Committee notes that section 118(3) of the IR Act enables the Australian Industrial Relations Commission to make the following orders in relation to "demarcation disputes" (as defined in section 4(1) of the Act):

(a) an order that an organisation of employees shall have the right, to the exclusion of another organisation or organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b) an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees shall have that right;

(c) an order than an organisation of employees shall not have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

The Committee notes that section 118(3) does not enable the Commission to direct that employees shall no longer be members of a given union. But it does empower the Commission to direct that a specified union shall no longer have the right to represent the industrial interests of a group of workers who choose to be members of that union. It seems reasonable to suppose that many workers will not wish to remain members of an organisation which cannot represent their industrial interests. Therefore, section 118 could have the effect of denying workers the right to establish and to join organisations of their own choosing as guaranteed by Article 2 of the Convention. The Committee asks the Government for its comments on this aspect of the legislation. It is also asked to supply information as to the number and effect of orders made under section 118(3).

3. Civil liability in respect of industrial action

The Committee has always regarded the right to strike as one of the essential means available to workers and their organisations for the promotion and protection of their economic and social interests as guaranteed by Articles 3, 8 and 10 of the Convention. (General Survey on Freedom of Association and Collective Bargaining, 1983, paragraph 200). It has also taken the view that the restrictions relating to the objectives of a strike and to the methods used should be sufficiently reasonable as not to result in practice in a total prohibition or an excessive limitation of the exercise of the right to strike (General Survey, paragraph 226. See also paragraphs 218-220).

The Committee notes that in Australia trade unions (and their members and officials) do not appear to have any protection against common law liability in respect of industrial action. The Committee observes that most, if not all, industrial action is prima facie unlawful at common law. This means that workers who engage in such action are liable to be sued for damages by employers or other parties who suffer loss as a result of their actions, and (more importantly in practical terms) may be restrained from committing unlawful acts by means of injunctions (issued on both an interlocutory and a permanent basis). This appears to deny workers the right to take industrial action in order to protect and to promote their economic and social interests.

The Committee has recognised that where trade unions have voluntarily decided to register with the authorities (thereby acquiring access to machinery for the settlement of disputes by means of conciliation and arbitration proceedings with binding awards), it may be consistent with the requirements of the Convention to ban recourse to strike action during the currency of an award (General Survey, paragraph 221). On this basis, the "bans clause" provisions embodied in sections 181-186 of the IR Act appear to be compatible with the requirements of the Convention. The same reasoning could be applied to workers who take industrial action whilst conciliation and arbitration proceedings are under way. However, it does not appear to be compatible with the requirements of the Convention to permit unrestricted access by employers to common law remedies in addition to those set out in the IR Act.

The Committee notes that one of the statutory objects set out in section 3 of the IR Act is to provide a "framework for the prevention and settlement of industrial disputes by conciliation and arbitration in a manner which minimises the disruptive effects of industrial disputes on the community". It appears to the Committee that it would be compatible with this object, and with the requirements of the Convention, to place some restrictions upon the capacity of those who have chosen to remain outside the system of conciliation and arbitration to take industrial action. However, it is not compatible with the requirements of the Convention entirely to deprive such workers (and their unions) of the capacity lawfully to take strike or other industrial action to protect and to promote their social and economic interests. The lack of protection against common law liability appears to do just that. It also appears to be incompatible with the requirements of the Convention to permit unrestricted access to common law remedies where the parties cannot obtain access to the conciliation and arbitration system - for example because the workers involved or the issue in dispute do not satisfy the relevant legislative and/or constitutional criteria.

The Committee notes that the version of the Industrial Relations Bill which was introduced in the Parliament in May 1987 did attempt to place some restrictions upon access to common law injunctions in certain circumstances. These provisions were not incorporated in the Bill which became law in November 1988. But the fact that they were included in the earlier version of the Bill does suggest that the Government has some concerns about the state of the law in this area.

In the light of the foregoing the Government is asked:

(i) to provide information as to the numbers, and outcomes, of common law actions against trade unions and their members and officials in recent years;

(ii) to indiciate the manner in which it proposes to provide some measure of legislative protection against common law liability; and

(iii) to provide information as to whether the law of the States provides any form of protection against common law liability for industrial action.

4. Section 45D of the Trade Practices Act

The Committee notes that section 45D of the Trade Practices Act, 1974 (as amended) renders unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters. Breach of this provision may be sanctioned by one or more of damages (with no upper limit as to quantum), injunctions and monetary penalties (up to a maximum of $A250,000 in the case of a trade union, $A50,000 in the case of an individual).

The Committee has never expressed any decided view on the use of secondary boycotts (in the sense of boycotts imposed by workers who are not directly involved in the dispute with the employer against whom the boycott is imposed) as an exercise of the right to strike. However, it notes that as drafted section 45D appears also to render unlawful disputes where the boycotters are directly involved in a dispute with the employer against whom the boycott is imposed (for example, a dispute about occupational health and safety on a construction site where there are several different employers, or about the performance of work by employees of employer "A" rather than those of employer "B").

Section 45D also appears to render unlawful most, if not all, sympathy action. The Committee has noted that it appears that more frequent recourse is being had to this form of action because of the structure or the concentration of industries or the distribution of work centres in different regions of the world. This has caused the Committee to conclude that a general prohibition of sympathy strikes could lead to abuse and that workers should be able to take such action provided the initial strike they are supporting is itself lawful (General Survey, paragraph 217).

As regards penalties, the Committee has always taken the view that: (a) penal sanctions should be imposed only where there are violations of strike prohibitions which are in conformity with the principles of freedom of association; and (b) sanctions should be proportionate to the offences committed (General Survey, paragraph 223). Depending upon the use to which they are put, the "monetary penalties" which may be imposed in respect of breaches of section 45D do not appear to meet either of these criteria.

The Committee notes that the Industrial (Commercial Practices) Act, 1984 (as amended) appears to make very similar provision for the State of Queensland to that embodied in section 45D of the Federal Trade Practices Act.

In the light of the foregoing, the Government is asked:

(i) to indicate whether it has any plans to amend section 45D (and its associated provisions) so as to bring it into conformity with the principles of freedom of association;

(ii) to provide information as to the number of cases where unions and/or members have been sued for damages in respect of breaches of section 45D, and the outcome of such cases;

(iii) to provide information as to the numbers of interim (interlocutory) and perpetual injunctions which have been issued since the introduction of section 45D;

(iv) to indicate how many actions under section 45D have related: (a) to situations where the workers who had imposed the boycotts were in dispute with the "target" of the boycott, and (b) to situations where the boycott was imposed to demonstrate sympathy with other workers;

(v) to provide information as to the number, and outcomes, of cases which have been brought on the basis of the Queensland Industrial (Commercial Practices) Act.