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

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

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45(D) and 45(E) of the Federal Trade Practices Act, 1974, the Industrial Relations Act, 1991, (NSW) has now been repealed.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.