Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

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

The Committee notes the information provided in the Government's report, in particular the adoption of the Federal Workplace Relations Act, 1996, which according to the Government, substantially amended the Industrial Relations Act, 1988, and the recent adoption of legislation in certain States: the Labour Relations Legislation Amendment Act, 1997, of Western Australia, amending the Industrial Relations Act, 1979; the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland; and the Industrial Relations Act, 1996, of New South Wales. The Committee also takes note of the comments of the Australian Council of Trade Unions (ACTU) and the National Union of Workers (New South Wales Branch), and the Government replies to these comments.

Federal jurisdiction

The Workplace Relations Act, 1996

The Committee observes firstly that this major restructuring of the law governing labour relations is enshrined in a long and complicated statute. The Committee again expresses the hope that the Government will make available simplified summaries of the legislation to workers and employers.

Articles 3 and 10 of the Convention

Organizing administration and activities to further and defend the interests of workers. On the issue of strikes, the Government states that the Act prohibits strike action only in the following circumstances: (i) in relation to the period during which a collective agreement under the Act is in operation (section 170MN); (ii) in support of a claim for strike pay (section 187AB); and (iii) with respect to industrial action with the intent of coercing employers and eligible persons to take certain action for various reasons relating primarily to membership or non-membership of industrial associations (sections 298P and 298S). The Government states further that the Act provides for certain industrial action to be protected from civil liability and provides access to various legal remedies in respect of "unprotected" industrial action if affected parties wish to seek them. The Committee is of the view that given that where a strike is "unprotected" under the Act, it can give rise to an injunction, civil liabilities and dismissal of the striking workers (sections 127, 170ML, 170MT, 170MU), even if these consequences are not automatic, for all practical purposes, the legitimate exercise of strike action can be made the subject of sanctions. The Committee will now turn to consider whether such limitations on strike action conform with the requirements of the Convention.

(i) Restrictions on the subject-matter of strikes

The Committee notes that protected industrial action may be taken only during a bargaining period in negotiations for a certified agreement; thus, the subject- matter of industrial action is limited in scope to those matters that may be covered by a certified agreement, namely, matters pertaining to the relationship between an employer and employees in a single business or part thereof (section 170LI). The Committee notes that by linking the concept of protected industrial action to the bargaining period in the negotiation of single-business certified agreements, the Act effectively denies the right to strike in the case of the negotiation of multi-employer, industry-wide or national-level agreements, which excessively inhibits the right of workers and their organizations to promote and protect their economic and social interests. The Committee notes further that the Act prohibits industrial action with the aim of coercing an employer to make payments in relation to periods of industrial action (sections 166A and 187AB), and that industrial action can lose protected status if it involves a demarcation dispute (sections 166A and 170MW), which also, in the view of the Committee, excessively limit the subject- matter of a strike.

(ii) Prohibition of sympathy action

The Committee notes that the bargaining period, during which protected industrial action can take place, can be terminated or suspended for a number of reasons (section 170MW). Once the bargaining period is terminated or suspended, the industrial action is no longer "protected". The Committee notes that sympathy action is effectively prohibited under this provision (section 170MW(4) and (6)). Industrial action also remains unprotected if it involves secondary boycotts (section 170MM). The Committee recalls in this regard that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful (see General Survey on freedom of association and collective bargaining, 1994, paragraph 168).

(iii) Restrictions beyond essential services

The Committee notes that the bargaining period can be terminated or suspended, thereby divesting industrial action of its protected status, not only where the industrial action is threatening to endanger the life, the personal safety or health, or the welfare of the population or part of it, but also where it is threatening to cause significant damage to the Australian economy or an important part of it (section 170MW(3)). The Committee notes further that registration of an organization may be cancelled where it or its members engage in industrial action interfering with trade or commerce or the provision of any public service (section 294), the practical effect of which would be to prohibit strikes in such circumstances. The Committee recalls that prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services accepted by the Committee, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159), as does the reference in the context of cancellation to industrial action affecting trade, commerce or the provision of a public service. Regarding the provision of public services, the Committee recalls that the prohibition on the right to strike in the public service should be limited to public servants exercising authority in the name of the State (see General Survey, op. cit., paragraph 158).

The Committee hopes that the Government will indicate in its next report measures taken or envisaged to amend the provisions of the Workplace Relations Act referred to above, to bring the legislation into conformity with the requirements of the Convention.

Trade Practices Act, 1974

Secondary boycotts. The Committee notes that it has raised questions and concerns regarding certain provisions of this Act for a number of years, and that these provisions have been amended by Schedule 18 of the Workplace Relations and Other Legislation Amendment Act, 1997. On the practical application of sections 45D and 45DB, the Government states that since the new provisions came into effect in January 1997, 11 applications have been made, four of which were discontinued, two dismissed at preliminary stages, and the others have not been completed. The Federal Court has not granted any final injunctions or made any orders in relation to penalties or damages. The Government states that the Act prohibits certain forms of boycott conduct; however, an exemption is made where the dominant purpose is related to the pay, conditions of employment, hours of work or working conditions of the employees taking the action or of other employees of the same employer (section 45DD).

The Committee notes that section 45D, as amended (section 45D, 45DA, 45DB), continues to render 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 the following: (i) a pecuniary penalty -- for a violation of sections 45D or 45DB, up to a maximum of A$750,000 for a trade union and A$500,000 for a person; for a violation of 45DA, up to a maximum of A$10,000,000 for a trade union and A$500,000 for a person (section 76); (ii) injunctions (section 80); and (iii) damages, with no upper limit as to quantum (section 82). The Committee notes with regret that the recent amendments to the Act maintain the boycott prohibitions and render unlawful a wide range of sympathy action. The Committee again recalls that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is lawful. With respect to the elevated penalties that may be imposed under the Act, the Committee recalls that (a) sanctions should only be imposed where there are violations of strike prohibitions or restrictions that are in conformity with the principles of freedom of association; and (b) sanctions should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177-178). The Committee expresses the firm hope that the Government will amend the legislation accordingly, and will continue to provide information as to the practical application of the boycott provisions of the Act.

Crimes Act, 1914

Restrictions on strikes and boycotts beyond essential services. The Committee recalls its previous comments, requesting the Government to keep it informed of any progress made in repealing the provisions of the Act banning 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" (section 30J), and prohibiting 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 (section 30K). The Government states that it is considering the Committee's request, but that no further measures have been taken in respect to these provisions at this stage. It also states that no action has been taken under the relevant provisions for 40 years. The Committee takes due note of this information, and requests the Government to repeal these provisions to bring the legislation into conformity with the Convention and the national practice.

The Committee is also addressing certain matters directly to the Government concerning the Workplace Relations Act, 1996, and the Trade Practices Act, 1974.

State jurisdiction

The Committee notes that pursuant to the Northern Territory (Self Government) Act, 1978 and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, the Federal Workplace Relations Act, 1996, is the principal legislation applying in the Northern Territory and Victoria. With respect to the State of Queensland, the Committee notes that a number of provisions of the Queensland Workplace Relations Act, 1997, are closely based on those found in the Federal Workplace Relations Act, 1996. The Committee refers, in particular, to the provisions found in the Queensland Act in Chapter 2, Part 1, concerning certified agreements and protected industrial action, Chapter 6 on industrial disputes, and Chapter 7, Part 2, concerning the Industrial Relations Commission. The Committee notes further the similarities between section 187 of the Queensland Industrial Organizations Act, 1997, and section 294 of the Federal Workplace Relations Act, 1996. Concerning South Australia, the Committee notes that pursuant to section 222 of the Industrial Employee Relations Act, 1994, the secondary boycott provisions of the Federal Workplace Relations Act, 1996, are applied as laws of the State. The Committee requests the Government to take measures to have the state legislation referred to above examined and amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.

The Committee is addressing a request directly to the Government concerning a number of aspects of the Industrial Relations Act of Western Australia, as recently amended, in particular concerning the right of workers to establish and join organizations of their own choosing, interference in the internal affairs of organizations, and limitations on legitimate strike activities. Requests have also been addressed to the Government concerning the Industrial Relations Act, 1996, of New South Wales, and the Workplace Relations Act, 1997, and the Industrial Organizations Act, 1997, of Queensland.