Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the Australian Council of Trade Unions (ACTU) received 1 September 2014 and 31 August 2016. The Committee also notes the observations received on 1 September 2014 and 1 September 2016 from the International Organisation of Employers (IOE) which are of a general nature.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee requested the Government to, in consultation with the social partners, review: (i) provisions of the Competition and Consumer Act prohibiting secondary boycotts; (ii) sections 423, 424 and 426 of the Fair Work Act (FWA) relating to suspension or termination of protected industrial action in specific circumstances; and (iii) sections 30J and 30K of the Crimes Act prohibiting industrial action threatening trade or commerce with other countries or among states; and boycotts resulting in the obstruction or hindrance of the performance of services by the Government or the transport of goods or persons in international trade.

The Committee notes the Government’s indication that the Productivity Commission’s Final Report on Australia’s Workplace Relations Framework of 21 December 2015, recommended certain amendments to these provisions. With respect to the provisions of the Competition and Consumer Act prohibiting secondary boycotts, the Government indicates that the Report concluded that these provisions were still required, and should be enforced, particularly in the construction industry. Concerning section 423 of the FWA (on suspension or termination of protected industrial action where the action is causing or threatening to cause significant economic harm to the employer or employees) and section 426 (on suspension of protected industrial action causing significant economic harm to a third party), the Report noted that applications were very rarely successful, and recommended that the term “significant” should be interpreted as “important or of consequence”. No recommendations were made concerning section 424(1)(d) of the Act, on the suspension or termination of protected industrial action that is threatening to cause significant damage to the economy, or concerning sections 30J and 30K of the Crimes Act. The Committee also notes the observations of the ACTU that section 424 of the FWA can be used by large employers to have protected industrial action terminated instead of making concessions within the context of collective bargaining.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association (CFA) in Case No. 2698 (357th Report, paragraphs 213–229) concerning, among others, these provisions of the FWA. It recalls in this respect that the right to strike may be restricted or prohibited only when it is related to essential services in the strict sense of the term, that is services whose interruption would endanger the life, personal safety or health of the whole or part of the population; in the public service only for servants exercising authority in the name of the State; or in situations of acute national or local crisis (only for a limited period and solely to the extent necessary to meet the requirements of the situation) (see General Survey of 2012 on the fundamental Conventions, paragraph 127). With reference to its previous comments, the Committee recalls that a broad range of legitimate strike action could be impeded by linking restrictions on strike action to interference with trade and commerce, and the impact of industrial action on trade and commerce in and of themselves does not render a service “essential”. The Committee once again requests the Government to take all appropriate measures, in the light of its previous comments and in consultation with the social partners, to review the abovementioned provisions of the Fair Work Act, the Competition and Consumer Act and the Crimes Act with a view to bringing them into full conformity with the Convention. In the meantime, the Committee requests the Government to provide detailed information on the application of these provisions in practice.

State jurisdictions. Queensland. The Committee previously requested that steps be taken to review the provisions of the Industrial Relations Act requiring a ballot of trade union members for authorization of expenditure which exceeds 10,000 Australian dollars (AUD) “for a political purpose”, broadly defined. In this respect, the Committee notes with satisfaction that pursuant to the Sustainable Planning (Infrastructure Charges) and Other Legislation Amendment Act of 2014, the Industrial Relations Act has been amended and these provisions removed.

The Committee is raising other matters in a request addressed directly to the Government.