Definitive Report - Report No 158, November 1976

Case No 757 (Australia) - Complaint date: 27-JUL-73 - Closed

1. 76. This case was first examined by the Committee at its sessions in February 1974 and 1975, at each of which it submitted a report to the Governing Body. These reports, which appear in paragraphs 137 to 156 of its 143rd report and 44 to 55 of its 149th report, were respectively adopted by the Governing Body at its 193rd (May-June 1974) and 195th (March 1975) Sessions.
2. 77. Australia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

• Examination of the Case by the Committee at Previous Sessions
  78. 78 In February 1974 the Committee noted that, according to the complaint, in New South Wales arbitration machinery existed only for salary issues and not for working conditions and that teachers, who were prohibited from having recourse to strike action, could not submit their claims on working conditions to binding arbitration machinery. It therefore recommended the Governing Body to request the Government to send information concerning the nature of means and procedures for arbitration on working conditions available to the teachers in New South Wales. The Committee also recommended the Governing Body to suggest that the competent authorities reconsider the question of reintroducing the check-off system of trade union dues for members of the Federation since the Committee was of the opinion that, in view of the fact that this system had prevailed for many years, its reintroduction might contribute to more harmonious industrial relations.
  79. 79 With regard to the nature of the means and procedures for arbitration on working conditions available to teachers in New South Wales the Government stated that the Government of New South Wales bad undertaken an inquiry to determine whether the Industrial Arbitration Act, 1940 (as amended), should be further amended so as to extend the jurisdiction of the industrial tribunals to areas not covered at present. The Government added that the Industrial Commission of New South Wales, which is the highest industrial tribunal in the State of New South Wales, had commenced the inquiry and that all interested parties had been invited to participate. It pointed out that persons employed under the Public Service Act, 1902, as amended, and the Teaching Service Act, 1970, as amended are specified in the terms of reference as persons to whom additional access to the industrial tribunals may be made available if the Industrial Commission considers it appropriate.
  80. 80 The Government indicated that the Industrial Commission in Court Session had held that matters outside the jurisdiction of the Commission to determine, e.g. class sizes, might be the subject of a compulsory conference under section 25 of the Industrial Arbitration Act, 1940, as amended, to encourage conciliation between the parties. The Industrial commission had held several such conferences between the Public Service Board and the Teachers' Federation of New South Wales and in every case where recommendations had been made for the settlement of a dispute the Public Service Board had carried out the Commission's recommendations.
  81. 81 With regard to the check-off system of union dues, the Government explained that this practice is not normal throughout industry in New South Wales. The unions are voluntary organisations, and as such are entitled to make rules governing their relations with their members in accordance with democratic processes. There is, however, no obligation upon the employers to deduct fees from salaries due to members of unions. It is held that freedom of association is safeguarded if employers are not involved in any financial arrangements with unions. Where the funds of a union are in any way assisted by employers, the Government considers, doubts could easily arise as to the bona fides of the union concerned.
  82. 82 The Committee noted that a public inquiry was being held concerning, inter alia, the desirability of extending the powers of a conciliation Committee (and consequently the powers of the Industrial Commission of New South Wales) to make an award affecting certain categories of public servant, including teachers, by authorising such an award to be made for the purposes set out in section 20, 1(b) and (e) of the Industrial Arbitration Act, 1940. In this connection, the Committee again recalled the importance it attaches to the principle which it has emphasised on a number of occasions as regards the public service and essential services; namely that, where strikes are prohibited or subject to restrictions, there should be adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. The Committee has pointed out that, in such cases, the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties can take part at every stage and in which the awards are binding in all cases on both parties. Once such awards have been made, they should be fully and promptly implemented.
  83. 83 In these circumstances, the Committee recommended the Governing Body to note with interest that a public inquiry had been instituted to consider the extent to which the Industrial Commission should be granted access to areas from which public servants, and in particular teachers, were excluded, and to request the Government to keep it informed of any development in the matter.
• Latest Developments
  84. 84 In a further communication dated 16 July 1975 the New South Wales Teachers' Federation states that it has the impression that the state Government misled both the Australian Government and the ILO with regard to certain relevant details. The complainants declare that the above-mentioned inquiry is now finished and that the Commission has published its report, which recommends the state Government to grant public servants, including teachers, full access to the Industrial Commission. The complainants put forward this view both during and after the inquiry, but the state Government had not yet indicated what it proposed to do although several months had elapsed since the report had been submitted.
  85. 85 The complainants draw attention to the Government's claim that the Public Service Board has always carried out the industrial Commission's recommendations following the compulsory conferences referred to in paragraph 80 above. Whether or not the statement was absolutely correct at the time, the complainants continue, it is so no longer because earlier in 1975 the Board rejected a judge's recommendation intended to facilitate settlement of a dispute over preference to members of the Federation.
  86. 86 The complainants also state that it carried out an inquiry regarding the check-off system among public service unions in New South Wales, as a result of which it found that, whether or not the system is common practice in industry in the State, it certainly is so among public service employees. This being so, the complainants consider that there is discrimination against its members and point out in particular that school cleaners and other ancillary staff have union subscriptions deducted at source whereas teachers employed by the same Government do not. The complainants therefore request that teachers be placed on the same footing as almost all other state public servants.
  87. 87 In its communication of 11 March 1976 the Government confirms that the Industrial Commission's inquiry has been completed and its report submitted. Copies of the latter have been made available to the interested parties, and discussions are being held with the various unions in an endeavour to achieve some agreement on matters arising out of it. The report is being actively considered by the state Government.
  88. 88 The Government repeats that the Public Service Board had carried out the recommendations made by the Industrial Commission in compulsory conferences as mentioned in paragraph 80 above, and gives a long explanation of the circumstances which subsequently led the Board and the Government not to comply with one of the Commission's recommendations (made at the compulsory conferences held between 22 January and 20 February 1975) concerning a dispute over certain preferential rights to be accorded to union members. It states with some emphasis that the Teachers' Federation has on many occasions rejected not only the Commission's recommendations but also its orders and directions.
  89. 89 The Government next comments on the decision taken in 1973 to stop the deduction of union dues from teachers' salaries at source, which it had been doing, "as an act of grace", since 1953. As early as 1969, it affirms, the complainant union carried a number of resolutions on working conditions, listing a variety of tasks that were never again to be performed by teachers and having recourse to direct action in campaigns to implement aspects of these resolutions. At a special conference of the Federation on 22 April 1972 it was resolved to establish a "Fighting Fund" in support of direct action. Citing various examples, the Government considers that the policies of the Federation over recent years have led to actions in defiance of the law and to political actions against governments of the day.
  90. 90 The Government observes that in 1973, after examining the history of the Federation's industrial activities, the Full Bench of the State Industrial Commission declared that a case for deregistration existed. It was only after a trial period during which the Federation markedly reduced its direct and illegal action that the deregistration application was dismissed. These were the circumstances, states the Government, which led to its decision on 9 May 1972 that the Department of Education would cease deducting, membership fees for the Teachers' Federation from teachers' salaries. The Department, however, continues to deduct health fund and certain other contributions from teachers' salaries at their own request. The Minister for Education had stated at frequent meetings with the Teachers' Federation that if the union could produce evidence of appropriate changes in the circumstances which led to the cessation of deductions, he would consider placing the new circumstances before the Cabinet for possible review of the situation.

B. B. The Committee's conclusions

• Conclusions of the Committee
  91. 91 The Committee notes the Government's reasons for stopping deduction of the complainant union's dues at source.
  92. 92 As regards the possibility for teachers to have recourse to arbitration in questions relating to working conditions, the Committee wishes to stress once again that where strikes are prohibited or subject to restrictions, as in public and essential services, in the strict sense of the term, there should be adequate procedures for the peaceful settlement of disputes and, in the final instance, arbitration procedures whose judgments would be in all cases binding upon both parties and would be promptly and fully carried out.
  93. 93 From the information available in the present case it appears that the Industrial Commission's inquiry has been completed and that its report, which, according to the complainants, recommends granting public service employees, including teachers, unrestricted access to the Industrial Commission, is being actively considered by the Government.

The Committee's recommendations

1. 94. In these circumstances, the Committee recommends the Governing Body:
   • (a) to note the Government's explanations regarding the discontinuation of the check-off system with respect to fees due to the complainant;
   • (b) to note that the public inquiry mentioned in the 149th Report of the Committee has been completed and that the recommendations of the Industrial Commission appear to accord the teachers represented by the complainants unrestricted access to the said Commission for the settlement of disputes over working conditions; and
   • (c) to express the hope that the Industrial Commission's recommendations in this connection will be adopted and carried out rapidly, and to request the Government to keep it informed of any developments in the matter.