Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

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

The Committee recalls its previous request to ensure that the exercise of the right to strike in practice is not restricted by unduly challenging and complicated strike ballot procedures. It notes in this respect the Government’s indication that the provisions dealing with protected action ballots were amended by the Fair Work (FW) Amendment Act, 2012, so as to clarify and streamline the process for conducting protected action ballots and to ensure that the right to take such action is not unduly frustrated or delayed. According to the Government, FW Legislation Amendment Regulations 2012 No. 1 further facilitate electronic voting in protected action ballots. The Committee notes the statistics provided by the Government, which appear to indicate that there were no excessive delays resulting from the procedure for obtaining a ballot order and that the majority of the protected application ballots were granted. It requests the Government to provide information on the practical impact of the amended provisions and regulations.

State jurisdictions. New South Wales. The Committee recalls that its 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 the Government’s indication that no registered industrial organization has had its registration cancelled on the grounds set out in section 226(c). The Committee requests the Government to provide information on any recourse had to this section which would have resulted in the threat of or cancellation of a union’s registration.

Queensland. The Committee notes the Industrial Relations (Fair Work Act Harmonisation) and Other Legislation Amendment Act 2012 which amended the Industrial Relations Act (IRA) 1999 by providing the Minister (Attorney-General) with the power to terminate protected industrial action in relation to a proposed agreement if the Minister is satisfied that the action is being engaged in, or is threatened, intending or probable; and that the action is threatening or would threaten to cause or has caused, significant damage to the economy, community or local community, or part of the economy (section 181B(1)(a) and (b)(ii)). The Committee recalls that it does not consider that economic damage in itself renders a service essential so as to justify restrictions on strikes. In addition, the Committee recalls that responsibility for declaring a strike illegal should not lie with the Government, but with an independent body, which has the confidence of the parties. The Committee requests the Government to take appropriate measures, in the light of its previous comments and in consultation with the social partners, to review the amended Act and to provide information on all measures taken or contemplated in this regard.

The Committee further notes that the Industrial Relations Act has been further amended by the Industrial Relations (Transparency and Accountability of Industrial Organisations) and Other Legislation Amendment Act 2013, by inserting Division 1B, requiring a ballot of trade union members for authorization of expenditure which exceeds $10,000 Australian dollars (AU) “for a political purpose”, broadly defined. The Committee recalls that such requirement provided for in the legislation is in violation of the right of organizations to draw up their own constitutions and rules and to organize their administration and activities, enshrined in Article 3 of the Convention, and considers that the issue of the need for expenditure ballots should be left to the rules of the organizations concerned. The Committee therefore requests the Government to take the necessary steps, in consultation with the social partners, to review the relevant provisions contained in Division 1B of the Act and to provide information on all measures taken or envisaged in this regard.

The Committee notes that the Australian Council of Trade Unions (ACTU) further refers to section 691C of the Act as amended, which rendered any provision requiring an employer to facilitate deductions of industrial association membership subscriptions from an employee’s wages of no effect. The ACTU further indicates that the 2013 Amendment Act has been adopted without any consultation with the social partners. Emphasizing the importance of prior consultation of the social partners before the adoption of any legislation affecting their interests, the Committee requests the Government to provide its observations on the ACTU’s comments.

Western Australia. The Committee had previously 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 the Government’s indication that in November 2012, the draft Labour Relations Legislation Amendment and Repeal Bill seeking to reform aspects of the state industrial relations system, was tabled in the Western Australian Parliament. According to the Government, while the draft Bill does not propose to amend the provisions of the IRA 1979 relating to trade union membership and subscriptions, it is yet to undergo the process of public submissions and does not necessarily represent the Government’s settled position. The Committee requests once again the Government to take the necessary measures to ensure that provisions relating to trade union membership and subscriptions are removed from the law and regulated by the internal rules of the organizations concerned.