Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

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, and the decisions of various courts at state and federal levels. The Committee further notes the recent communications by the Australian Council of Trade Unions and the Australian Chamber of Commerce and Industry and requests the Government to transmit its comments thereon.

Federal jurisdiction

1. Workplace Relations Act, 1996. The Committee’s previous comments concerned the provisions of the Act dealing with the restrictions on the objectives of strikes, the prohibition of action in support of multi-employer agreements and the restrictions on industrial action beyond essential services. The Government reiterates its previous comments as follows:

-  as regards multi-employer agreements, the Act itself does not prohibit strike action except in relation to industrial action during the period of operation of a certified agreement (section 170MN); the existing scope of protected industrial action is appropriate; extending protection to action associated with the negotiation of multi-employer certified agreements would discourage workplace level agreements and could potentially encourage disputes about matters extraneous to the parties, over which they have no power to agree;

-  as regards strike pay, the prohibition in the legislation is not incompatible with freedom of association principles and merely reflects the common law rule that denies remuneration to workers who don’t perform the work required by their contract of employment, as confirmed by national courts;

-  as regards industrial action threatening to cause significant damage to the economy and sympathy action, the existing provisions have neither the effect of prohibiting industrial action beyond essential services or of amounting to an outright ban on strikes; termination or suspension of a bargaining period under section 170MW does not operate automatically and requires the exercise of a discretion by the Australian Industrial Relations Commission (AIRC), which must first identify whether one of a number of statutory criteria exist in the particular factual situation and then decide whether to exercise its discretion to suspend or terminate the bargaining period, as shown by a number of such decisions by the AIRC; in the event a bargaining period is suspended or terminated, further orders need to be obtained before any sanctions can be applied to those taking industrial action; these mechanisms provide ample safeguard against blanket prohibition on industrial action.

Noting with regret that the Government reiterates that it is not contemplating any legislative reform to bring its legislation into conformity with the Convention on the abovementioned points, the Committee recalls that: workers’ organizations should be able to take industrial action in support of multi-employers agreements without running the risk of being sanctioned; providing in legislation that workers cannot take action in support of a claim for strike pay is not compatible with the principles of freedom of association; prohibiting industrial action that is threatening to cause significant damage to the economy goes beyond the definition of essential services in the strict sense of the term. In the case of the latter restriction, however, the Committee has considered that, in order to avoid damages which are irreversible or out of proportion to the occupational interests of the parties to a dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in services which are of public utility rather than impose an outright ban on strikes. The Committee requests the Government to amend these provisions of the Act.

2. Trade Practices Act, 1974. Secondary boycotts. In its previous comments, the Committee noted that section 45D, as amended, continued to render unlawful a wide range of boycott activity directed against persons who are not the employers of the boycotters and that breach of this provision could be sanctioned by severe pecuniary penalties, injunctions and damages. The Committee requested to be informed of the results of the review undertaken by the Committee for review of the competition provisions of the Trade Practices Act. The Government indicates that the Review Committee has made no recommendations with respect to section 45D of the Act; it concluded that these provisions have served Australians well, have sustained a competitive environment which has benefited consumers, has achieved an appropriate balance between the prohibition of anti-competitive conduct and the encouragement of competition. Competition laws need to be distinguished from industry policy and should not be seen as a means of achieving social outcomes unrelated to the encouragement of competition. No judicial decisions have been issued in this respect during the period under review.

The Committee recalls once again 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. The Committee again expresses the firm hope that the Government will amend the legislation accordingly, and requests it to continue to provide information on the practical application of the boycott provisions of the Act.

3. Crimes Act, 1914. The Committee’s previous comments concerned the repeal of the provisions of the Act banning 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" (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 indicates that it is still considering the Committee’s request to repeal these provisions but that, since no action has been taken under these provisions for over 40 years, amending the Crimes Act would be given low priority. The Committee notes this information, reiterates its hope that the Government will take measures to amend this legislation, and requests the Government to keep it informed of any practical application of these provisions.

State jurisdictions

1. Queensland. In its previous comments, the Committee had noted that section 638 of the Industrial Relations Act, 1999, provides that an organization may be deregistered if its members are engaged in industrial action that prevents or interferes with trade or commerce. The Government reiterates that the powers under section 638 would be used only in extreme circumstances and that such deregistration may only occur through an order of the full bench of the Queensland Industrial Relations Commission, which must perform its functions in a way that furthers the objects of the Act and that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the Act. The Government considers that these provisions protect against deregistration of industrial organizations unless an exceptional situation arose. Recalling that this provision results in a prohibition of strikes going beyond essential services in the strict sense of the term, the Committee requests the Government to indicate the measures taken or envisaged to amend this provision.

2. South Australia. Noting that the Government of South Australia refers generally to the ongoing review of industrial relations in the State, the Committee requests the Government to keep it informed of any progress made in amending section 222 of the Industrial and Employees Relations Act, 1994 (secondary boycott provisions).

3. Northern Territory and Victoria. The Committee requests the Government to keep it informed of developments concerning the Northern Territory (Self Government Act), 1978, and the Victorian Commonwealth Powers (Industrial Relations) Act, 1996, and again requests it to take measures to have these state legislations amended in the light of the corresponding comments concerning the Federal Workplace Relations Act, 1996.