Report in which the committee requests to be kept informed of development - Report No 234, June 1984

Case No 1241 (Australia) - Complaint date: 03-OCT-83 - Closed

1. 329. The Northern Territory Public Service Association (NTPSA) presented a complaint of violations of trade union rights against the Government of Australia in a communication dated 3 October 1983; it supplied additional information in a communication dated 31 October 1983. The Government submitted its observations in a communication of 24 April 1984.
2. 330. 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. The complainant's allegations

1. 331. In its communication of 3 October 1983, the NTPSA alleges that through various actions of the Public Service Commissioner of the Northern Territory, the Government has contravened Convention No. 87. In particular it states that it has been subjected to the following treatment: a ban of access to the members was placed on officials of the association; a ban was placed on distribution of literature; a ban was placed on the use of notice-boards; members were threatened with loss of employment by other organisations; its members were transferred; it has been denied the right to represent its members in matters arising out of employment.
2. 332. To its communication the complainant attaches copies of correspondence in support of its allegations. For example, it supplies a copy of a letter dated 14 September 1982 signed by the Public Service Commissioner explaining to the NTPSA that it will not be granted a general right of entry to government premises, including the holding of meetings on such premises, until such time as its application for registration under the Conciliation and Arbitration Act has been granted and that the organisation will not be allowed to use departmental notice-boards and distribute association literature until it is registered. Another attachment is a letter dated 9 March 1983 to the Northern Territory Attorney-General in which the NTPSA complains that it could not obtain a copy of the Northern Territory Public Service General Orders to aid in the preparation of the defence of its members in court and before disciplinary hearings. In the letter it is explained that the documents in question are not available from the information centre and that although a copy of the orders could be examined by the official in his department, this did not help the NTPSA in preparing the defence since, until registration, officers of the organisation are not allowed entry to such departments.
3. 333. To its communication of 31 October 1983, the complainant attaches further documentation in support of its allegation that it has not been allowed to represent its members. The communications concern in particular the situation at the Darwin Hospital, one of the attachments being a handwritten notice of meeting apparently authorised by various other registered unions covering the workers involved, including the ACOA, calling for a meeting to discuss the. "illegal activities of the NTPSA". In this connection there is also a series of letters concerning a proposed meeting to be held on hospital premises on 9 September 1982, which meeting was cancelled by the medical superintendent of the hospital pending the Public Service Commissioner's decision of 14 September 1982. Another attachment dated 16 November 1982 and addressed to the Industrial Registrar who deals with applications for registration under the Conciliation and Arbitration Act contains a complaint from the NTPSA about its treatment pending acceptance of its application. Further NTPSA letters dated 9 and 29 March 1983 respectively complain of this situation to the Attorney-General's Department and the Minister responsible for the Public Service; these letters contain complaints concerning the delay in the processing of the organisation's application for registration under the Act, a delay which has hampered the organisation's ability to represent its members. Lastly, an attachment dated 1 June 1983 from the NTPSA to the Australian Council of Trade Unions deplores the ACTU's resolution to lodge an objection to the NTPSA's application for registration under the Act.

B. The Government's reply

1. 334. In its communication of 24 April 1984 the Government explains that in September 1982 the NTPSA lodged two separate applications for registration under the Conciliation and Arbitration Act, 1904. The first application was refused by the Industrial Registrar on 16 August 1983 on the grounds that the secretary of the organisation had declined to be cross-examined and hence the Industrial Registrar was unable to satisfy himself that the application conformed with the requirements of the Act. The second application was withdrawn before proceedings could begin before the Industrial Registrar on 7 February 1984. The Government goes on to explain that, in the Australian context, registration under the Act is not a prerequisite to the lawful establishment of worker and employer organisations. Associations which decide to seek registration under the Act are required to comply with its requirements, these being set out in Part VIII of the Act and Part V of its regulations. These requirements are consistent with the two objectives of the Act as set out in its section 2, namely: to encourage the organisations of representative bodies of employees and employers and their registration under the Act and to encourage the democratic control of organisations so registered and the full participation by members of such an organisation in its affairs.
2. 335. The Government encloses a copy of the regulations under the Act, regulation 116 of which sets out the procedural requirements for making an application for registration, regulations 118 to 124 of which set out the procedure for dealing with such an application (including a public hearing and a hearing of any objections made under regulation 119), regulation 141 of which sets out the general powers of the Industrial Registrar in relation to any application or proceedings with which he is authorised to deal. The Government also states that an important requirement for associations applying for registration and for registered organisations under section 132 of the Act is that, in the case of employee bodies, they have a minimum number of members in or in connection with the relevant industry. In addition, all associations applying for registration or registered organisations must have rules which comply with the requirements of the Act, in accordance with regulation 115 and sections 132, 133, 133AA, 133A, 133B and 137.
3. 336. The Government explains that registered organisations are required to meet certain obligations, for example, the filing of returns in compliance with statutory financial accounting standards. However, a number of benefits accrue from registration, such as corporate status, specific representative rights in relation to members employed in the industry in or in connection with which the organisation is registered, rights of entry on premises as well as certain rights in relation to coverage of members, or potential members, under awards made by the Australian Conciliation and Arbitration Commission. According to the Government, it is for each association to decide whether or not it wishes to be registered and to be subject to the requirements of the Act as well as enjoying the benefits of registration. The Government stresses that the non-availability of the benefits of registration to unregistered associations cannot be construed as discrimination against such associations.
4. 337. Regarding the NTPSA's allegations that it has been subjected to actions contrary to Convention No. 87, such as a ban on entry, distribution of literature and the use of notice-boards, the Government replies that the Northern Territory Public Service Commissioner does not consider that he has taken any action which could be construed as inhibiting freedom to organise. As regards the NTPSA's further claims of threatened loss of employment, transfer from positions and that it has been denied the right to represent its members, the Northern Territory Government has advised that threats by other organisations concerning loss of employment would not be condoned by the Public Service Commissioner and that there has been no evidence presented that such events have taken place. Furthermore, the Public Service Commissioner is unaware of any transfer of NTPSA members other than as provided for under the Public Service Act and it states that the NTPSA has not been denied the right to act as an agent of individual employees.

C. The Committee's conclusions

1. 338. The Committee notes that this case concerns allegations of interference in the free functioning of a public service workers' organisation - the Northern Territory Public Service Association - through various actions taken by the Public Service Commissioner and by other registered workers' organisations during the period it was awaiting processing of its application for registration under the Australian Conciliation and Arbitration Act. The acts complained of included prohibition of access to members, a prohibition on the distribution of literature and the use of notice-boards, threats of loss of employment by other organisations, transfers and denial of the right to represent its members in disputes arising out of employment.
2. 339. The Committee notes in particular that these various actions commenced after the issuance on 14 September 1982 of a memorandum by the Public Service Commissioner to all departments and statutory authorities concerned suspending certain facilities that had previously been granted to the NTPSA until its application for registration had been decided. Since certain of these rights, and particularly the right of entry, can only be enforced once an organisation is registered, it is important to note that the NTPSA's first application for registration failed due to lack of conformity with the requirements of the Act and that, for reasons that are not explained, its second application was withdrawn by the association itself.
3. 340. In this connection, the Committee would point out that it recognises that, in a legal system where registration of a workers' organisation is optional, the act of registration can confer on an organisation a number of important advantages such as special immunities, tax exemption, the right to obtain recognition as exclusive bargaining agent, etc. [see General Survey of Committee of Experts, Report III (Part IVB), ILC, 1983, paragraph 111]. In order to obtain such recognition an organisation may be required, as in the present case, to fulfil certain formalities which do not amount to previous authorisation and which do not normally pose any problem as regards the requirements of Convention No. 87.
4. 341. As regards the other allegation, namely, that other workers' organisations threatened NTPSA members with loss of employment, that NTPSA members were transferred and that the NTPSA could not represent its members in matters arising out of employment, the Committee regrets the lack of detail supplied by the complainant organisation in spite of the opportunity which it had to supply additional information in support of its allegations. In view of the Government's denial of this allegation, and the fact that the various copies of letters transmitted by the complainant show that the NTPSA did represent its members in various individual cases (for example, it complains that it was unable to have copies of certain government orders to prepare the defence in disciplinary actions), the Committee considers that this aspect of the case does not call for further examination.

The Committee's recommendations

1. 342. In these circumstances, the Committee recommends the Governing Body to approve this report, and in particular the following conclusions:
   • (a) The Committee notes that the Northern Territory Public Service Association was subject to various restrictions during the period pending its application for registration under the Conciliation and Arbitration Act. The applications in the first place failed and secondly were withdrawn at the instigation of that organisation.
   • (b) The Committee considers that such basic facilities, as the right of access to its members through meetings and the distribution of literature at the workplace, should be granted to the Northern Territory Public Service Association until it obtains registration; it requests the Government to keep it informed of any measures taken to this end.
   • (c) The Committee considers that the allegations concerning threats by other trade union organisations with loss of employment, transfer of NTPSA members and denial of the right to the NTPSA to represent its members, do not call for further examination.