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

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

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.