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

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

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.