Definitive Report - Report No 164, June 1977

Case No 846 (Australia) - Complaint date: 07-MAY-76 - Closed

1. 45. The complaint of the Amalgamated Metal Workers' Union (AMWU) is contained in a communication of 7 May 1976. The complainant furnished further information in letters of 7 and 10 June 1976. The Government forwarded its observations in a communication of 14 December 1976.
2. 46. Australia has ratified the Freedom of Association and protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 47. In its first communication the complainant alleged that the Australian Government intended to introduce legislation enabling it to intervene directly in the internal affairs of trade unions. It added that, since the trade union movement was instituted in Australia, individual unions had had to conduct their business against growing interference from the Government and outside bodies. It was now the Government's intention to require that union elections be by postal ballot to be conducted by a government electoral officer. This procedure was to be mandatory, despite the fact that legislation had hitherto provided for secret ballots and had permitted any union or association to request a ballot to be supervised if it so desired. Past experience of such procedures, continued the complainant, had shown them to be wide open to gross interference by outside bodies financed and operated on behalf of corporations. All union ballots in Australia were secret and were conducted according to the rules of each union, registered under the Industrial Arbitration Act. In the complainant's view, legislation such as was proposed was a flagrant encroachment on the freedom and rights of the Australian trade union movement and constituted an attempt to destroy it.
2. 48. In its subsequent communications the complainant explained the procedures for trade union elections in Australia: under the existing provisions on arbitration and conciliation the rules of trade union organisations must be registered by the Industrial Registrar, and changes in the rules required his approval. AMWU added that its own rules, an extract from which it attached, were clear and concise in this respect, and described in detail the voting system adopted, stressing that provisions had been made for postal voting. It pointed out that under the Australian Conciliation and Arbitration Act any union member might complain to the Arbitration Court about any aspect of a union's elections, and that if the complaint were founded a new ballot could be ordered and put under the control of the Industrial Registrar or his appointee.
3. 49. The complainant's concern was based on historical experience of government-ordered ballots, which it claimed were open to manipulation and malpractice, and it protested against the interference of the authorities in trade union affairs. Like other unions in Australia it had complied with the numerous requirements of the conciliation and Arbitration Act regarding registration and union rules, but the mandatory postal ballot was, in the complainant's opinion, a denial of fundamental rights and prevented the unions from determining their own structure on the basis of the industries they were associated with and the historical developments of their organisation. Finally, AMWU states that there is more than adequate provision in the existing Conciliation and Arbitration Act to protect the rights of members and assure the propriety of union elections.
4. 50. In its reply, the Government states that Act No. 64 of 1976, which was adopted since the complaint was lodged, amended the Conciliation and Arbitration Act to provide, inter alia, that elections for offices in organisations registered under the latter Act should be conducted by secret postal ballot. It attaches the text of the Act and that of the speech made by the competent minister when introducing it in Parliament. The objective of the amendment, adds the Government, is to ensure that every member of a registered union or employers' organisation has a real opportunity, without intimidation, to choose who should conduct the affairs of that organisation.
5. 51. The Government's original proposal, it adds, was that all elections for offices in registered organisations should be conducted by the Australian Electoral office, a government agency, the cost of the election being met by the Government. This was the proposal to which AMWU referred in its initial communication and which met with strong publicly expressed opposition from the trade union movement as constituting interference in its internal affairs. While rejecting this objection, the Government, following consultations with the Australian Congress of Trade Unions (ACTU) and with employers' organisations, decided, with a view to meeting union objections as far as possible while at the same time achieving its policy objectives, to retain merely the obligation to conduct elections by secret postal ballot, without the requirement that they be carried out under government auspices. The Government indicates that this arrangement has been adopted for a two-year trial period.
6. 52. This legislation, adds the Government, was assented to on 9 June 1976 and came into force on 9 August 1976. It recognises that in special circumstances there may be other methods of election by which all members would be given an adequate opportunity to vote without intimidation and which would result in greater participation by members. Thus, the Industrial Registrar may, on application from the organisation, exempt it from the postal ballot provisions where he is satisfied that all of the above conditions are met. At the same time, it is still open to organisations to use the provisions of the Act (section 170) whereby officially conducted ballots may be requested at government expense.
7. 53. The fundamental objective of the Act, continues the Government, was to ensure a greater degree of industrial democracy by the fullest possible participation of members of employers' organisations and union members in determining who should be their office bearers. This was done by extending the previously existing requirements for secret ballots so as to provide that they should be conducted by post, except in the cases indicated above. The Government categorically rejects the complainant's allegation that this obligation constitutes an infringement of the standards of Convention No. 87, which is ratified and implemented by Australia.
8. 54. There are in Australia, says the Government, no substantive or formal conditions which must be fulfilled by employers' and workers' organisations when they are being established, although there are formal conditions which must be satisfied if an organisation opts to apply for registration under the industrial arbitration legislation operative in the federal and four of the six state jurisdictions. Registration enables organisations to participate in the system of industrial arbitration which constitutes the legal core of Australia's industrial relations arrangements. When an organisation decides to register, it accepts at the same time that its rules must comply with certain formal requirements: in particular, they must contain certain provisions regarding elections and must not be tyrannical or oppressive, accounts must be audited annually, etc. These obligations are designed to safeguard the members of the organisation rather than to control its operations or effectiveness. These conditions now include the obligation to organise secret postal ballots except in the circumstances outlined above. More recently, further legislation has been introduced following consultation with workers' and employers' organisations to take into account procedures applicable to organisations where election of officials has been by means of "collegiate" voting.
9. 55. The new legislation, stresses the Government, leaves to the organisation concerned the decision whether elections are to be conducted by the organisation itself or by statutory authorities at government expense. It builds on the previously existing provisions in the Act and strengthens the legislative safeguards regarding participation of members in the affairs of organisations. The AMWU rules, the Government goes on to point out, already provide that members may record their votes by post if they wish, and the question therefore arises as to why the AMWU has chosen to lodge a complaint. It would appear, adds the Government, that the objection is not to postal voting as such but to the alleged risks of manipulation and malpractices in officially conducted ballots. The Government rejects these allegations and furthermore holds the view that they are totally irrelevant to the provisions of the 1976 legislation, which do not in any way make officially conducted ballots compulsory. Nor does the legislation make voting compulsory but rather ensures that every possible opportunity is given to members of organisations to have a say in the election of their representatives.

B. B. The Committee's conclusions

1. 56. In general, the Committee considers that any intervention by the public authorities in trade union elections runs the risk of appearing arbitrary and thus constituting interference in the operation of workers' organisations, which is incompatible with their right to elect their representatives in full freedom, as provided under Article 3 of Convention No. 87. In the present case, however, the amendments to the Conciliation and Arbitration Act were finally limited, as regards the point raised by the complainant, to imposing on organisations which wish to register the obligation to elect their leaders by secret postal vote, without intervention from the administrative authorities except at the request of the organisation concerned.

57. The Committee notes that the Government proposed these amendments in order to ensure the greatest possible participation of members in elections. Such procedural arrangements regarding elections do not appear to restrict the freedom of workers to elect their representatives. In these circumstances, the Committee recommends the Governing Body to decide that this case calls for no further examination.