Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated 31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the Australian Chamber of Commerce (ACC) in a communication dated 14 October 2009 and the Australian Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising over the years in relation to the application of the Convention.

Statistical data. The Committee previously indicated that the substantive labour reform might reverse the continuing decline of trade union membership and requested that the Government continue to provide information on this matter. The Committee recalls that, in 2006, 20.3 per cent of all workers (15.2 per cent of private sector employees and 42.6 per cent of public sector employees) were trade union members. The Committee notes that the Government indicates in its report that trade union membership levels continued to decline following the introduction of Work Choices. In August 2007, 18.9 per cent of all employees were trade union members. By sector, 13.7 per cent of all private sector employees were trade union members compared with 41.1 per cent of all public sector employees. The Government additionally states that by August 2008 the figures stabilized and that the percentage of trade union members remained unchanged from 2007 at 18.9 per cent. By sector, trade union membership in the private sector declined by 0.1 percentage points to 13.6 per cent, while it increased by 0.8 percentage points to 41.9 per cent in the public sector.

The Workplace Relations Act, 1996. The Committee recalls that previous comments concerned the need to amend sections 798 and 807 of the Workplace Relations Act on the issue of disciplining members, so as to avoid any interference that would restrict the right of workers’ organizations to freely draw up their constitutions and rules. The Committee notes that the Government indicates in its report that provisions broadly equivalent to former sections 798 and 807 of the repealed Workplace Relations Act are now contained in the general protections and compliance provisions of the Fair Work Act, in particular referring to item 7(d) of subsection 342(1) and section 539. According to the Government, the formulation of the protection in the new statutory framework is different because protection is on the basis of “workplace rights” (which can broadly be described as employment entitlements and the freedom to exercise and enforce those entitlements) and engaging in “industrial activities” (which encompasses the freedom to be or not be a member or officer of an industrial association and to participate in lawful activities, including those of an industrial association). The Committee requests the Government to provide information on the application of these provisions in practice.

State jurisdictions. New South Wales. The Committee recalls that previous comments concerned the need to amend section 226(c) of the Industrial Relations Act, 1996, which provides that the registration of an organization may be cancelled where it or its members engage in industrial action having a major and substantially adverse effect on the provision of any public service. The Committee notes that the Government indicates that no registered industrial organization has had its registration cancelled on the grounds set out in section 226(c). The Committee once again requests the Government to inform it of any measures taken or contemplated with a view to ensuring that any prohibition of the right to strike and related penalties are limited to essential services in the strict sense of the term and to public servants exercising authority in the name of the State.

Western Australia. In several previous comments, the Committee had raised the need to amend provisions that stipulate that workers’ membership in a trade union ends if their subscriptions are not paid and requested the Government to indicate any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned. The Committee notes that the Government indicates that an independent review of the Western Australian industrial system, including the Industrial Relations Act, is currently under way. The Committee requests the Government to inform it of any measures taken or contemplated so as to leave the issues of membership and subscriptions to the rules of the organizations concerned.